United States District Court, M.D. Pennsylvania
H. RAMBO UNITED STATES DISTRICT JUDGE.
the court is Petitioner Hector Rengifo's pro se
motion filed pursuant to 28 U.S.C. § 2255 in which he
seeks to have his sentence vacated, set aside, or corrected.
The petition raises allegations of incompetency of counsel.
For the reasons set forth herein, the motion will be denied.
sentencing, the court found that Rengifo was a career
offender under USSG § 4B1.1 because he had two prior
drug trafficking convictions. The first was a 1999 conviction
for Possession with Intent to Deliver a Controlled Substance
in the York County Court of Common Pleas, Docket No.
CP-67-CR-3609-1998, which arose from a May 20, 1998 traffic
stop in which Rengifo was arrested with seven individually
packaged bags of marijuana (“the 1999
conviction”). (PSR ¶ 31.) The second was a 2007
conviction for Criminal Conspiracy to Possession with Intent
to Deliver a Controlled Substance, York County Court of
Common Pleas, Docket No. CP 67-CR-1107-2007, which arose from
a January 13, 2005 search of Rengifo's residence where
fifteen individually packaged bags of cocaine, a larger bag
of cocaine, packaging material, and loaded 12 gauge shotgun
were recovered (“the cocaine trafficking
conviction”). (PSR ¶ 33.)
§ 2255 motion, Rengifo argues that trial and appellate
counsel were incompetent for failing to argue that the 1999
conviction does not qualify as a predicate offense under USSG
§ 4A1.2(e). He sets forth two reasons for this argument:
(1) the conviction does not qualify as a prior conviction
under the time period rules of USSG § 4A1.2(e),
i.e., the “lookback period, ” and (2)
the conviction does not qualify as a “serious drug
offense, ” and was instead a conviction for possession
of a small amount of marijuana for distribution and not for
sale, under 35 Pa. C.S. §780-113(a)(31).
further argues that both counsel were incompetent for failing
to raise the issue that his 1999 conviction should not
qualify because he entered the plea in the absence of his
Standard for Incompetency of Counsel
prevail on a claim of ineffective assistance of counsel, a
petitioner must establish that (1) the performance of trial
counsel fell below an objective standard of reasonableness,
and (2) the performance of counsel unfairly prejudiced the
defense. Strickland v. Washington, 466 U.S. 668,
687-88, 691 (1984). Both prongs must be established.
George v. Sively, 254 F.3d 438, 443 (3d Cir. 2001)
(citing United States v. Nino, 878 F.2d 101, 104 (3d
first Strickland prong requires the defendant to
“establish . . . that counsel's performance was
deficient.” Jermyn v. Horn, 266 F.3d 257, 282
(3d Cir. 2001). Proving a deficiency in conduct
“requires showing that counsel was not functioning as
‘counsel' guaranteed by the Sixth Amendment.”
Id. (quoting Strickland, 466 U.S. at 687)
(internal quotations omitted). “In assessing
counsel's performance, ‘every effort [must] be made
to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel's challenged
conduct, and to evaluate the conduct from counsel's
perspective at the time.'” Id. “That
is to say, the defendant must overcome the presumption that,
under the circumstances, the challenged action might be
considered sound trial strategy.” Id. (quoting
Berryman v. Morton, 100 F.3d 1089, 1094 (3d Cir.
1996) (quoting Strickland, 466 U.S. at 689)). It is
well settled that the benchmark for judging any claim of
ineffectiveness of counsel is “whether counsel's
conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as
having produced a just result.” Strickland,
466 U.S. at 686.
second prong of Strickland requires a defendant to
show that counsel's performance unfairly prejudiced the
defendant, meaning that counsel's errors were so serious
as to deprive the defendant of a trial whose result is
reliable. Id. It is not enough to show that the
error had some conceivable effect on the outcome of the
proceeding, for virtually every act or omission would meet
such a test. Id. Rather, the defendant must show
there is a reasonable probability that, but for counsel's
unprofessional error, the result of the proceeding would have
been different. Id. at 694. A reasonable probability
is sufficient to undermine confidence in the outcome of the
trial. Id. Effectiveness of counsel applies to
advise given by counsel during guilty plea discussions.
Hill v. Lockhart, 474 U.S. 52, 58 (1985); United
States v. Booth, 432 F.3d 542, 547 (3d Cir. 2005).
The Lookback Period
sentencing, Rengifo filed a direct appeal raising the issue
that his 1999 conviction exceeded the lookback time period.
The Third Circuit found that the conviction was appropriately
counted as a prior offense and affirmed the judgment of
sentence. United States v. Rengifo, 832 F.3d 220 (3d
Cir. 2016). Because §2255 “may not be employed to
litigate issues that were raised and considered on direct
appeal, ” this issue is without merit. United
States v. De Rewal, 10 F.3d 100, n.5 (3d Cir. 1993)
(quoting Barton v. United States, 741 F.3d 265, 267
(2d Cir. 1986)).