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United States v. Totton

United States District Court, M.D. Pennsylvania

February 1, 2017



          William W. Caldwell United States District Judge

         I. Introduction

         Presently 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.

         II. Background

         On July 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 Act[1] (“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).

         At some 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).

         From 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”).

         On May 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).

         On 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).

         On 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).

         Trial 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. (Id.)

         At 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.

         On 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.

         III. Discussion

         Defendant 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.

         Strickland 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 688).

         Second, 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).

         Here, 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.

         A. Providing Cell Phone Number to Law Enforcement

         Defendant 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 [i]nterest.” (Id.)

         First, 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 Defendant. (Id.)

         Even 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.

         B. Failing to File Pretrial Motions or Extend Time to File Such Motions

         Defendant's 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).

         Failing 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.

         In the 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.

         Furthermore, 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.

         C. Failing to ...

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