United States District Court, M.D. Pennsylvania
M. MUNLEY, JUDGE
the court for disposition is Defendant Desmond Mercer's
pro se motion to vacate and correct his sentence
under 28 U.S.C. § 2255. (Doc. 463). The parties have
briefed their respective positions, and the matter is ripe
and Procedural History
October 21, 2014, a grand jury indicted Defendant Mercer,
along with several other defendants, on conspiracy to
distribute heroin and related charges. (Doc. 36, Indictment).
Pursuant to the terms of a Rule 11 plea agreement, Defendant
Mercer pleaded guilty to one count of conspiracy to
distribute and possess with intent to distribute heroin in
violation of 21 U.S.C. § 846. (Doc. 228, Plea Agreement
at 1-2). The parties agreed to recommend that Defendant
Mercer be sentenced to a 168-month term of imprisonment.
(Id. at 9).
United States Probation Office then filed a presentence
report (“PSR”) regarding Defendant Mercer. (Doc.
296, PSR). Based on at least two prior convictions, the PSR
designated Defendant Mercer as a “career
offender” pursuant to § 4B1.1 of the United States
Sentencing Guidelines Manual (the “Guidelines” or
“U.S.S.G.”). (Id. at 8). The PSR
additionally found that Defendant Mercer had a criminal
history score of fifteen (15), which assigned him a criminal
history category of VI. (Id. at 13). Given these
findings, the PSR determined that Defendant Mercer's
applicable Guidelines range was 151 to 188 months of
imprisonment. (Id. at 18).
March 2, 2016, the court sentenced Defendant Mercer to the
parties' recommended 168 month-term of imprisonment.
(Doc. 302, Judgment). Defendant Mercer subsequently appealed
his sentence to the United States Court of Appeals for the
Third Circuit on March 16, 2016. (Doc. 307, Notice of
Appeal). The Third Circuit affirmed his sentence on February
1, 2017. (Docs. 391 & 398, Judgment and Mandate of the
U.S.Ct. of Appeals). Defendant Mercer then filed a pro
se motion for reduction of sentence under 18 U.S.C.
§ 3582(c), (Doc. 403), which the court denied by way of
memorandum and order on October 7, 2019. (Docs. 505 &
January 19, 2018, while his § 3582(c) motion remained
pending, Defendant Mercer filed the instant pro se
motion to vacate, set aside or correct sentence under 28
U.S.C. § 2255. (Doc. 463). In his supporting memorandum
of law, Defendant Mercer alleges that his attorney, Jason
Asbell (“Attorney Asbell”), provided ineffective
assistance of counsel in the following two respects: (1) by
failing to challenge the calculation of his criminal history
score, which erroneously accounted for a previously dismissed
offense carrying three (3) criminal history points; and (2)
by failing to object to his classification as a career
offender, given that one of his prior convictions under 35
Pa. Cons. Stat. Ann. § 780-113(a)(30) did not constitute
a “predicate offense” under the Guideline's
career offender provision. (Doc. 486, Def.'s Mem. in Supp. at
3-11). The Government filed a brief in opposition on May 17,
2018 and argued that the career offender section of the
Guidelines applied to Defendant Mercer for sentencing
enhancement purposes. (Doc. 487). Defendant Mercer then filed
a reply brief on June 22, 2018. (Doc. 492).
review of Defendant Mercer's reply brief, the court
temporarily stayed this case pending the outcome of
United States v. Glass, 701 Fed.Appx. 108 (3d Cir.
2017). (Doc. 493). In Glass, the Third Circuit
addressed the issue of whether a controlled substance offense
under 35 Pa. Cons. Stat. Ann. § 780-113(a)(30) also
qualified as a predicate offense pursuant to U.S.S.G. §
4B1.1. On March 27, 2019, the court lifted the stay and
directed the parties to file supplemental memoranda regarding
the Third Circuit's decision in United States v.
Glass, 904 F.3d 319 (3d Cir. 2018) cert.
denied, no. 18-1748, 2019 WL 113432 (U.S. Jan. 7, 2019).
(Doc. 495). The government filed a supplemental brief on
March 20, 2019, asserting that the Glass decision
foreclosed Defendant Mercer's arguments in support of
§ 2255 relief. (Doc. 496). After receiving two
extensions of time, (Docs. 500 & 502), Defendant Mercer
filed a supplemental brief on October 18, 2019, (Doc. 507),
bringing the case to its present posture.
Defendant Mercer brings his motion under 28 U.S.C. §
2255, we have jurisdiction under 28 U.S.C. § 1331
(“The district courts shall have original jurisdiction
of all civil actions arising under the Constitution, laws, or
treaties of the United States.”). We also have
jurisdiction under 28 U.S.C. § 2241 (“Writs of
habeas corpus may be granted by . . . the district
a federal prisoner in custody under the sentence of a federal
court may, within one year from when the judgment becomes
final, move the sentencing court to “vacate, set aside,
or correct” a sentence “imposed in violation of
the Constitution or laws of the United States.” 28
U.S.C. § 2255(a). A federal prisoner may also file a
§ 2255 motion within one year from “[t]he date on
which the right asserted was initially recognized by the
Supreme Court, if that right was newly recognized by the
Supreme Court and made retroactively applicable to cases on
collateral review.” 28 U.S.C. § 2255(f)(3). A
§ 2255 motion may attack a federal prisoner's
sentence on any of the following grounds: (1) the judgment
was rendered without jurisdiction; (2) the sentence imposed
was not authorized by law or otherwise open to collateral
attack; or (3) there has been such a denial or infringement
of the Constitutional rights of the prisoner as to render the
judgment vulnerable to collateral attack. 28 U.S.C. §
2255 does not, however, afford a remedy for all errors that
may have been made at trial or sentencing. United States
v. Essig, 10 F.3d 968, 977 n.25 (3d Cir. 1993). Rather,
§ 2255 permits relief for an error of law or fact
constituting a “fundamental defect which inherently
results in complete miscarriage of justice.” United
States v. Eakman, 378 F.3d 294, 298 (3d Cir. 2004)
(citing United States v. Addonizio, 442 U.S. 178,
185 (1979)). If the court determines that the sentence was
not authorized by law, was unconstitutional, or is otherwise
open to collateral attack, the court may vacate the judgment,
resentence the prisoner, or grant the prisoner a new trial as
appropriate. See 28 U.S.C. § 2255(b).
of review for ineffective assistance of counsel
noted above, the instant petition raises issues of
ineffectiveness of counsel. The Sixth Amendment to the United
States Constitution guarantees criminal defendants the right
to counsel. U.S. Const. Amend. VI. In Strickland v.
Washington, the United States Supreme Court determined
that “‘the right to counsel is the right to the
effective assistance of counsel.'” 466 U.S. 668,
686 (1984) (quoting McMann v. Richardson, 397 U.S.
759, 771 n.14 (1970)). Counsel is ineffective when
“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. As such, to succeed on
an ineffectiveness claim under Strickland, a
defendant must convince the court of two factors: 1)
deficient performance by counsel; and 2) prejudice from that
deficient performance. Id. at 687.
the first factor requires a “showing that counsel made
errors so serious that counsel was not functioning as the
‘counsel' guaranteed the defendant by the Sixth
Amendment.” Id. In assessing an attorney's
performance, courts apply a highly deferential level of
scrutiny. See Marshall v. Cathel, 428 F.3d 452, 462
(3d Cir. 2005) (quoting Strickland, 466 U.S. at
689). This deference is afforded because “counsel is
strongly presumed to have rendered adequate ...