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United States v. Atwood

United States District Court, M.D. Pennsylvania

September 5, 2017



          Christopher C. Conner, United States District Court Chief Judge.

         The court sentenced defendant Tyrone A. Atwood (“Atwood”) to 63 months' imprisonment for conspiracy and attempt to distribute and possession with intent to distribute cocaine. (Doc. 203). Presently before the court is Atwood's pro se motion (Doc. 215) to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Atwood asserts that he was denied effective assistance of counsel in violation of the Sixth Amendment to the United States Constitution. The court will deny the motion.

         I. Factual Background & Procedural History

         In 2012, Atwood's father and brother-defendants Rodger T. Atwood I and Rodger T. Atwood II, [1] respectively-were incarcerated in Adams County Prison. (See Doc. 231 at 15:4-7). The pair were in custody and awaiting sentencing for federal drug trafficking charges. (Id.) Atwood I and II expressed their desire to cooperate with Drug Enforcement Administration (“DEA”) agents. (Id. at 15:8-9). Atwood's father and brother enlisted Atwood to facilitate their cooperation with the DEA. (Id. at 15:9-12).

         The government sanctioned Atwood's initial participation. (See id.) However, his father and brother soon asked him to expand his assistance to include unauthorized “side deals.” (Id. at 15:12-15). The authorities were unaware of these side deals until Atwood I and II contacted a fellow inmate seeking a Guatemalan source of cocaine. (Doc. 155 ¶ 8; see Doc. 231 at 15:16-17). The inmate subsequently informed authorities of this request and began working with the DEA to investigate the Atwoods. (Doc. 155 ¶ 8).

         The cooperating inmate gave Atwood I and II a Maryland post office box address with instructions to send $3, 150 for a cocaine purchase. (Id. ¶ 9; see Doc. 231 at 15:17-19). Atwood proceeded to send the money on behalf of his father and brother. (Doc. 155 ¶ 9; see Doc. 231 at 15:17-19). DEA agents were monitoring the post office box and seized the funds when they arrived. (Doc. 155 ¶ 9; see Doc. 231 at 15:17-19). Atwood also communicated with a government confidential source to set up meetings and discuss future buys. (Doc. 155 ¶ 11; Doc. 231 at 15:22-16:1). One such meeting occurred at the King of Prussia Mall in Philadelphia, Pennsylvania on August 19, 2013. (Doc. 155 ¶ 11; Doc. 231 at 15:22-16:1). In a series of phone calls with the confidential source after the meeting, Atwood negotiated the price and quantity for future purchases of cocaine. (Doc. 155 ¶ 12; Doc. 231 at 17:4-20).

         Authorities arrested Atwood before he could make further contact with the confidential source. (Doc. 155 ¶ 17). On November 20, 2013, a grand jury returned an indictment charging Atwood in a single count with conspiracy and attempt to distribute and possess with intent to distribute more than 500 grams of cocaine hydrochloride in violation of 21 U.S.C. § 846. (Doc. 1). Atwood retained Attorney R. Mark Thomas (“Attorney Thomas”) as his counsel. (Doc. 33). On April 14, 2015, Atwood pled guilty to the indictment. (Doc. 104). The United States Probation Office subsequently prepared a presentence report, calculating a total offense level of 29 and a Guidelines range of 151 to 188 months' imprisonment. (Doc. 155 ¶ 60).

         At sentencing, Attorney Thomas objected to paragraphs 38 and 39 of the report on the ground that several of Atwood's prior offenses should not count as predicate convictions for career offender classification. (Doc. 232 at 4:10-21, 5:16-20). The court sustained Attorney Thomas's objection, concluding that Atwood's 1992 drug conviction was too dated to qualify, and his escape-related conviction was not a crime of violence under the career offender Guideline. (See Id. at 5:6-16, 6:16-22). The ruling reduced Atwood's offense level to 21 and his Guidelines range to 70 to 87 months. (Id. at 8:1-3). At Attorney Thomas's request, the court struck paragraphs 14 through 16 from the presentence report due to a lack of credible evidence to support the factual statements therein. (Id. at 17:15-18). The court also granted a government 5K1.1 motion for downward departure for substantial assistance. (Id. at 8:19-12:21). Atwood's resulting final offense level was 18 with a Guidelines range of 51 to 63 months. (Id. at 12:18-21).

         The court considered the salient 18 U.S.C. § 3553(a) factors, including Atwood's three prior federal drug offenses, before sentencing Atwood to 63 months' imprisonment. (See Id. at 18:15-19:23). Atwood timely filed the instant motion (Doc. 215) seeking to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 on November 2, 2016. The motion is fully briefed (Docs. 216, 225) and ripe for disposition.

         II. Legal Standard

         Under 28 U.S.C. § 2255, a federal prisoner may move the sentencing court to vacate, set aside, or correct his sentence. 28 U.S.C. § 2255. Courts may afford relief under § 2255 on a number of grounds including, inter alia, “that the sentence was imposed in violation of the Constitution or the laws of the United States.” 28 U.S.C. § 2255(a); see also R. Governing § 2255 Cases 1(a). The statute provides that, as a remedy for an unlawfully-imposed sentence, “the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.” 28 U.S.C. § 2255(b). The court accepts the truth of the defendant's allegations when reviewing a § 2255 motion unless those allegations are “clearly frivolous based on the existing record.” United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005). A court is required to hold an evidentiary hearing when the motion “allege[s] any facts warranting § 2255 relief that are not clearly resolved by the record.” United States v. Tolliver, 800 F.3d 138, 141 (3d Cir. 2015) (quoting Booth, 432 F.3d at 546).

         A collateral attack based on ineffective assistance of counsel is governed by the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on this claim, a petitioner must demonstrate (1) that counsel's representation fell below an objective standard of reasonableness based on prevailing professional norms and (2) that the deficient representation was prejudicial. See Id. at 687-88. Conclusory allegations are insufficient to entitle a petitioner to relief under § 2255. See Sepulveda v. United States, 69 F.Supp.2d 633, 639-40 (D.N.J. 1999) (citing Blackledge v. Allison, 431 U.S. 63, 74 (1977)).

         In determining whether counsel has satisfied the objective standard of reasonableness in accordance with the first prong, courts must be highly deferential toward counsel's conduct. Strickland, 466 U.S. at 689. There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. See United States v. Gray, 878 F.2d 702, 710 (3d Cir. 1989). Only a “rare claim” of ineffectiveness of counsel should succeed “under the properly deferential standard to be applied in scrutinizing counsel's performance.” Id. at 711 (citing Strickland, 466 U.S. at 689-90). Counsel will not be deemed ineffective for failing to raise a meritless claim. See United States v. Sanders, 165 F.3d 248, 253 (3d Cir. 1999).

         To satisfy the prejudice prong, the petitioner must show that, but for counsel's errors, the outcome of the proceeding would have been different. See Strickland, 466 U.S. at 694. The district court need not conduct its analysis of the two prongs in a particular order or address both prongs of the inquiry if a defendant makes an ...

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