United States District Court, M.D. Pennsylvania
Christopher C. Conner, United States District Court Chief
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.
Factual Background & Procedural History
2012, Atwood's father and brother-defendants Rodger T.
Atwood I and Rodger T. Atwood II,  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
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).
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).
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).
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
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.
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).
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)).
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).
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 ...