United States District Court, M.D. Pennsylvania
William W. Caldwell United States District Judge
before the court is defendant Adrian Totton's motion
(Doc. 1162) under 28 U.S.C. § 2255 to vacate, set aside,
or correct sentence. For the reasons that follow, the court
will grant Defendant's motion.
25, 2012, Defendant was indicted, along with numerous
co-defendants, on multiple counts related to conspiracy to
commit, and the commission of, various drug offenses. (Doc.
1). An arrest warrant was issued the same day, but Defendant
was not immediately apprehended; thus, he did not initially
appear before the court until August 24, 2012. (Docs.
155-57). At his initial appearance, Defendant requested
appointment of counsel under the Criminal Justice
(“CJA”), and Attorney Steve Rice (“Attorney
Rice”) was appointed. (Docs. 156, 205). A little more
than two weeks later, Defendant hired private counsel,
Attorney Jerry Russo (“Attorney Russo”), who
entered his appearance on September 10, 2012, replacing
Attorney Rice. (See Doc. 170).
point in 2013, a plea agreement was offered to Defendant.
(See Docs. 1215 at 12-13; 1238-1). Among the
provisions in the agreement was a clause informing Defendant
of a twenty-year “cap, ” or maximum sentence,
which could be imposed for the substantive conspiracy offense
to which Defendant was to plead guilty under the agreement.
(Doc. 1238-1 at 2, 3, 29). The agreement also provided that
the government would recommend, for sentencing guideline
purposes, a drug weight attributable to Defendant of fifteen
to fifty kilograms. (Id. at 14). When the plea
agreement was offered in 2013, the guideline range applicable
to Defendant-without adjustments under United States
Sentencing Guidelines (“U.S.S.G.”) § 5K1.1
or 18 U.S.C. § 3553-was 188 to 235 months'
imprisonment. (See Doc. 1215 at 15; Doc. 1238 at
10). Defendant ultimately rejected this plea agreement. (Doc.
1215 at 22).
September 2013 until his withdrawal in August 2014, Attorney
Russo attempted to negotiate a reduction in the plea
agreement's drug-weight recommendation in order to reduce
Defendant's sentencing exposure. (Id. at 16-22).
In particular, Attorney Russo testified that his goal-and
that of his client-was to reduce the drug-weight
recommendation in order to move to a lower tier on the
guidelines' drug quantity table, U.S.S.G. §
2D1.1(c). (Id. at 17). A drop to the next tier on
the drug quantity table would precipitate a two-level
reduction in the Base Offense Level. See U.S.S.G.
§ 2D1.1(c). Attorney Russo explained that this, in turn,
would result in a guideline range of 151 to 188 months'
imprisonment under the then-applicable 2013 edition of the
sentencing guidelines. (Doc. 1215 at 17). The Government
repeatedly declined to reduce the agreement's drug-weight
recommendation. (See Doc. 1215 at 18, 20, 21; Doc.
1210-1; Doc. 1238-3 at 2; April 28, 2016 § 2255 motion
hearing, Exhibit “2”).
16, 2014, Attorney Russo moved to withdraw as counsel,
explaining that his “client's desired method of
litigating the case at this juncture creates an
irreconcilable conflict for undersigned counsel to provide
effective representation during [trial].” (Doc. 772 at
2). Attorney Russo's motion to withdraw was granted on
August 14, 2014. (Doc. 826). On August 25, 2014, Attorney
Rice was re-appointed under the CJA to represent Defendant.
(Docs. 835, 837).
November 1, 2014, Amendment 782 to the sentencing guidelines-
proposed in January 2014 and approved in April 2014-became
effective, reducing by two levels the base offense levels
assigned to most drug quantities under U.S.S.G. §
2D1.1(c). See U.S.S.G. app. C, amend. 782 (Supp.
Nov. 1, 2014). It is undisputed that Amendment 782 was
relevant in calculating Defendant's sentencing guidelines
under the proposed plea agreement. (See Doc. 1236 at
5; Doc. 1238 at 11-12).
November 18, 2014, Attorney Rice, realizing the deadline for
filing pretrial motions had “long since passed”
prior to his reappointment, moved for leave to file a motion
to suppress evidence nunc pro tunc. (Doc. 929 at 1;
see also Doc. 611 (extending pretrial motion
deadline to December 9, 2013)). The court denied the motion.
(Doc. 934). The day after Attorney Rice attempted to file the
untimely motion to suppress, the Government filed an
information charging prior felony drug convictions,
indicating that it would seek a mandatory minimum sentence of
twenty years' imprisonment if Defendant were convicted at
trial. (Doc. 930 at 1-2).
was set to begin on December 8, 2014. (Doc. 889). On that
day, immediately preceding jury selection, the court held a
brief pretrial conference on the record. (Doc. 1187 at
63-67). During this conference, the interpretation of which
is now the subject of substantial disagreement, the
Government outlined the plea agreement that had been offered
to Defendant. (Id.) Attorney Rice eventually
indicated to the court that Defendant wished to proceed to
trial, Defendant was found guilty of conspiracy to distribute
and possess with intent to distribute cocaine and crack
cocaine, 21 U.S.C. § 846, and distribution and
possession with intent to distribute cocaine and crack
cocaine, 21 U.S.C. § 841(a)(1). (Doc. 989). On June 1,
2015, Defendant was sentenced to 240 months' imprisonment
on each count-the statutory mandatory minimum-with the
sentences to be served concurrently. (Doc. 1142 at 3). A
direct appeal was not filed.
August 11, 2015, Defendant filed the instant motion under 28
U.S.C. § 2255 to vacate, set aside, or correct sentence.
(Doc. 1162). On January 6, 2016, this court ordered the
appointment of CJA counsel for Defendant. (Doc. 1190). A
hearing on several of the issues raised in Defendant's
2255 motion was also scheduled, which took place on April 28,
2016. (Doc. 1211). A second day of brief testimony was held
on August 15, 2016. (Doc. 1225). The parties then filed
supplemental briefing, and the instant 2255 motion is now
ripe for disposition.
raises five claims in his initial 2255 motion, all sounding
in ineffective assistance of counsel in contravention of the
Sixth Amendment to the United States Constitution. It is
firmly established that claims of ineffective assistance of
counsel are governed by Strickland v. Washington,
466 U.S. 668 (1984). The burden is on the defendant to prove
such a claim. Strickland, 466 U.S. at 687.
sets forth a two-prong test to determine claims of
ineffective assistance of counsel. First, counsel's
performance must be deficient. Jacobs v. Horn, 395
F.3d 92, 102 (3d Cir. 2005) (citing Strickland, 466
U.S. at 687). “Performance is deficient if
counsel's efforts ‘fell below an objective standard
of reasonableness' under ‘prevailing professional
norms.'” Shotts v. Wetzel, 724 F.3d 364,
375 (3d Cir. 2013) (quoting Strickland, 466 U.S. at
counsel's deficient performance must have prejudiced the
defendant. Jacobs, 395 F.3d at 105 (citing
Strickland, 466 U.S. at 692). “To demonstrate
prejudice, ‘a defendant must show that there is a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.'” Shotts, 724 F.3d at 375
(quoting Strickland, 466 U.S. at 694).
Defendant claims that his counsel was ineffective for (1)
allegedly providing federal agents with Defendant's
private cellular telephone number which led to
Defendant's apprehension; (2) failing to timely file
pretrial motions; (3) failing to file for an extension of
time in which to file pretrial motions; (4) failing to file a
direct appeal; and (5) failing to properly advise Defendant
regarding plea agreement negotiations. The court will address
each claim in turn.
Providing Cell Phone Number to Law Enforcement
first claims that Attorney Russo provided constitutionally
deficient assistance by allegedly giving Defendant's
private cellular telephone number to federal agents, who used
the number to locate and apprehend Defendant. Defendant
provides no support for this claim other than alleging that
the phone number was “known only by [Attorney
Russo]” and that “Mr. Russo gave federal agents
my number to apply for a Trap and Trace to find my location
after he agreed to represent me.” (Doc. 1162 at 4).
According to Defendant, this was a “[c]onflict of
in its initial response to Defendant's 2255 motion, the
Government painstakingly explained how Defendant was located
through “common call analysis” rather than by
receiving any information from Attorney Russo. (See
Doc. 1185 at 7-8; Doc. 1187 at 1-61). Through this
investigative method, and with the assistance of
court-authorized wiretaps and subpoenaed cell phone records,
the Government was able to independently ascertain
Defendant's purported “secret” phone number,
and then use that cellular phone to track and locate
if, for the sake of argument, Attorney Russo did turn over
Defendant's private phone number to federal agents-which
the Government and Attorney Russo deny, (Doc. 1185 at 7
n.1)-and that action fell below an objective standard of
reasonableness, Defendant has not explained how this
purported deficient assistance “unfairly prejudiced
him, ” as the second prong of the Strickland
analysis requires. Defendant has not explained, nor can the
court surmise, how Defendant's eventual apprehension by
federal authorities, pursuant to a valid arrest warrant,
unfairly prejudiced him in this case. Consequently, Defendant
has met neither Strickland prong on his first claim,
and it is therefore denied.
Failing to File Pretrial Motions or Extend Time to File
second and third claims will be addressed together, as they
encompass similar ineffectiveness allegations. Defendant
claims that Attorney Russo was ineffective for failing to
timely file a pretrial motion to suppress evidence, which
Defendant alleges he requested be filed. (Doc. 1162 at 5).
Relatedly, Defendant asserts that Attorney Russo was also
ineffective for failing to move to extend the time in which
to file a pretrial motion to suppress. (Id. at 7).
to timely file a motion to suppress evidence, when there is a
valid basis for suppression, may rise to the level of
constitutionally deficient representation. See Thomas v.
Varner, 428 F.3d 491, 501-02 (3d Cir. 2005) (citing
Morrison v. Kimmelman, 752 F.2d 918, 922 (3d Cir.
1985)); Rodriguez v. Young, 906 F.2d 1153, 1160-61
(7th Cir. 1990). In order to succeed on such a claim,
however, the defendant must not only show a valid basis for
suppression, but also that (1) the motion would likely have
been granted, and (2) there is a reasonable likelihood that
the resultant suppression would have affected the outcome at
trial. Thomas, 428 F.3d at 502.
instant case, Defendant has provided little information
regarding the suppression motion he alleges Attorney Russo
should have filed. Defendant's only elaboration on his
claim asserts that “post-arrest statements, ”
which were allegedly “obtained illegally and used
against [D]efendant improperly, ” were a “key
factor” in his conviction. (Doc. 1162 at 14).
Defendant, however, does not explain why there would have
been a basis to suppress this evidence (i.e., why
the post-arrest statements were “obtained
illegally”), let alone why a suppression motion would
likely have been granted and changed the outcome of trial.
Accordingly, Defendant's second claim is denied.
because Defendant has failed to demonstrate ineffective
assistance for not filing a pretrial motion to suppress
evidence, it follows that Defendant's claim of
ineffectiveness regarding Attorney Russo's failure to
extend the time in which to file a pretrial motion to
suppress evidence also falls short. Defendant has not
established that failing to extend the pretrial motion
deadline was objectively unreasonable conduct, or that such
conduct prejudiced Defendant. Thus, Defendant's third
claim is also denied.
Failing to ...