United States District Court, M.D. Pennsylvania
John E. Jones III Judge
pending before the Court is Defendant Maurice Michael
Henderson's (“Defendant”) Amended Motion
under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody. (Doc. 379).
Defendant filed a memorandum in support of the Motion, (Doc.
380), the Government filed a brief in response, (Doc. 396),
and Defendant filed a brief in reply, (Doc. 399). The Motion
is therefore fully briefed and ripe for our review. For the
reasons that follow, the Amended Motion shall be denied.
was indicted by a grand jury on October 3, 2012, charging him
and four co-defendants with conspiracy to distribute and
possess with intent to distribute cocaine hydrochloride and
cocaine base and distribution and possession with intent to
distribute cocaine hydrochloride and cocaine base. The grand
jury returned a superseding indictment on December 4, 2013,
which added a charge of possessing a firearm in furtherance
of drug trafficking. After a four-day jury trial that
commenced on February 4, 2014, the Defendant was convicted on
the first two counts and acquitted of the firearm charge.
Defendant's advisory guideline range was calculated as
360 months to life based on an offense level of 42 and a
criminal history category of VI. We ruled on the
Defendant's several objections, calculating an offense
level of 38 but maintaining a criminal history category of
VI. The revised offense level had no impact on the advisory
guideline range. However, we granted the Defendant's
request to vary and sentenced him to a term of 300
Defendant appealed to the Third Circuit, which affirmed our
judgment. The Defendant now brings the instant § 2255
motion, which he filed on May 12, 2016, and amended with
leave of Court on August 29, 2016. We ordered the Government
to file a response to the Defendant's Amended Motion on
February 27, 2018, which it did on April 12, 2018. The
Defendant filed his reply brief on May 30, 2018.
Defendant states several grounds in support of his motion,
arguing that he received ineffective assistance of counsel
during the pre-trial motions stage, as well as at trial,
sentencing, and on direct appeal. The United States Supreme
Court set forth a two-prong analysis for determining whether
a defendant has received ineffective counsel. First, we
determine whether counsel's performance “fell below
an objective standard of reasonableness, ” then we
consider whether “the deficient performance prejudiced
the defense.” Strickland v. Washington, 466
U.S. 668, 687 (1984). Under Strickland, we
“must indulge a strong presumption that counsel's
conduct falls within the wide range of reasonable
professional assistance.” Id. at 689. To show
prejudice, a defendant must demonstrate that “there is
a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different.” Id. at 694. Because this
matter is brought on a § 2255 motion, the burden remains
on the defendant. See United States v. Eakman, 378
F.3d 294, 302 (3d Cir. 2004) (“[A]t the [§ 2255]
hearing the prisoner retains the burden to demonstrate that
he is entitled to relief.”). We will begin with a
discussion of whether the performance of Defendant's
counsel, Attorney John A. Abom, fell below the objective
standard of reasonableness.
Reasonableness of Performance
grounds we will consider first relate to the testimony of
Michael Neff, an East Lampeter Township Police Department
detective assigned to the Drug Enforcement Administration.
The Defendant argues that Attorney Abom was ineffective
because he failed to adequately challenge Detective
Neff's testimony about the conversion ratio of cooking
powder cocaine into crack cocaine. The Defendant suggests
that Attorney Abom should have requested a pretrial hearing
to challenge Detective Neff's methodologies and should
have more effectively cross-examined Detective Neff during
trial. We find the Defendant's arguments in this regard
Abom had no discernable basis for objecting to Detective
Neff's qualifications to offer an expert opinion.
“In cases involving narcotics trafficking, courts have
admitted a broad range of expert testimony concerning the
‘modus operanti' of the drug trade.”
United States v. McGlory, 968 F.2d 309, 345 (3d Cir.
1992). Detective Neff testified that he had been a drug law
enforcement officer for several years and had been involved
in “well over a thousand narcotics
investigations” and personally headed
“hundreds” of them. (Doc. 289, 31:11-24).
Furthermore, Detective Neff did not perform a particular
methodology that Attorney Abom could have challenged. Rather,
Detective Neff described the common processes of converting
powder cocaine to crack cocaine. (Id. at 43:10-22).
He explained that he learned of the process in a number of
ways, including conversations with the drug dealers who
perform the conversion, trainings as a drug law enforcement
officer, and trade articles. (Id. at 43:23-44:12).
Detective Neff cautioned that the conversion ratio depends on
a number of factors, including the purity level of the powder
cocaine and the skill of the person cooking the cocaine into
crack. (Id. at 44:18-20). He then opined that
“on average, ” the conversion will yield
“an 80 percent return, 80 to 90 percent return.”
(Id. at 44:21-22). Detective Neff's testimony
provided the jury with an overall context for converting
powder cocaine into crack, not a case-specific opinion as to
the conversion ratio of the drugs in this matter. He was
clearly competent to do so.
Defendant also claims that Attorney Abom was ineffective by
failing to object to Detective Neff testifying as both a fact
witness and an expert. The Defendant suggests that the fact
testimony was not clearly distinguished from the expert
testimony, potentially causing confusion among jurors. The
record plainly contradicts the Defendant's argument. The
first portion of Detective Neff's testimony concerned
phone records he had obtained and the names of the
individuals associated with the phone numbers. Following that
line of questioning, the Government proceeded to establish
Detective Neff's qualifications as a drug law enforcement
officer, after which Attorney Abom was appropriately afforded
an opportunity for cross-examination on those qualifications.
Once accepted by the Court as an expert, Detective Neff
provided a general overview of the drug trade and conversion,
as discussed above. Contrary to the Defendant's
characterization, Detective Neff did not vacillate between
fact and expert testimony. His testimony was clearly in two
parts, without overlap.
Defendant next argues that Attorney Abom failed to adequately
object to the determination that the Defendant was an
organizer and a leader. The record clearly shows, however,
that Attorney Abom did in fact object to this determination
in the presentence report and advanced the same arguments on
behalf of the Defendant that the Defendant now raises
himself. In our reasoned opinion of August 26, 2014, we
overruled the objection based on the testimony elicited at
trial. (Doc. 295). Thus, there is no basis for finding that
Attorney Abom's performance was sub-standard here, as he
did precisely what the Defendant claims he did not do when he
objected to this enhancement.
Defendant's next ground asserts that Attorney Abom failed
to adequately challenge the use of his prior New York state
conviction as a predicate offense for his status as a career
offender. The Defendant hypothesizes that, under the statute,
the offense could have related to marijuana, which,
he suggests, would make it ineligible as a predicate. The
Defendant's argument fails for two reasons. First, the
statute at issue, N.Y.P.L. § 220.39, does not
include marijuana. See Del Orbe v. Holder, No. 12
Civ. 1057 (PAE), 2012 WL 3826182, at *4 n.5 (S.D.N.Y. Aug.
27, 2012). Second, even if the statute covered marijuana, the
term “felony drug offense” as it pertains to the
career offender designation, includes marijuana offenses.
See 21 U.S.C. § 802(44). Furthermore, we note