United States District Court, M.D. Pennsylvania
H. RAMBO UNITED STATES DISTRICT JUDGE.
the court is a petition filed by Jonathan Santana pursuant to
28 U.S.C. § 2255 to vacate, set aside or correct a
sentence. In the petition, Santana argues that his trial and
appellate counsel were ineffective for not challenging his
career offender enhancement and seeks to have his sentence
vacated. The government has responded.
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).
January 13, 2016, Santana pleaded guilty to a violation of 21
U.S.C. § 841 for distribution and possession with the
intent to distribute heroin and a violation of 21 U.S.C.
§ 846 for conspiracy to do the same. The Probation
Office determined in its Presentence Investigation Report
that Santana qualified as a career offender under the
Guidelines because of three prior state offenses. The court
accepted the PSR, but granted Santana a three-level reduction
for acceptance of responsibility and then varied one level
downward, sentencing him to 168 months.
issue of his classification as a career offender was raised
on direct appeal. In an opinion filed on January 31, 2017,
the Third Circuit addressed Santana's classification and
upheld this court's decision that his prior felony
conviction under New York law, for fourth-degree attempted
sale of a controlled substance, qualified as a predicate
controlled substance offense for sentencing under the
Guidelines. See United States v. Santana, 677
Fed.Appx. 744 (3d Cir. 2017).
now argues that he cannot be considered a career offender due
to the Second Circuit Court of Appeals recent decision in
Harbin v. Sessions, 860 F.3d 58, 68 (2nd Cir. 2017).
In Harbin, the defendant was seeking asylum or
cancellation of removal, but was denied relief by the Board
of Immigration Appeals due to his prior New York conviction
for possession of chorionic gonadotropin. The court found
that while chorionic gonadotropin is a controlled substance
under New York law, it is not a considered a controlled
substance under the Federal Controlled Substances Act. The
court explained that, “[t]o be a drug-trafficking
aggravated felony under the INA based on ‘the
categorical approach, a state drug offense must . . .
‘necessarily' proscribe conduct that is an offense
under the CSA.” Id. at 68 (citing
Moncrieffe v. Holder, 133 S.Ct. 1678, 1685 (2013)).
Therefore, the Harbin court, using the categorical
approach, concluded that the defendant's New York
conviction could not be used as an aggravated felony for
purposes of denying his application for asylum. Id.
difficult to comprehend why Santana believes the
Harbin case is applicable to him since his two prior
New York felony drug trafficking convictions that were used
in determining that he was a career offender involved
marijuana, cocaine and crack cocaine and involved the
sentencing guidelines. All of these are controlled substances
under the federal Controlled Substances Act.