LEONARD P. STARK, District Judge.
Nashebo Seeney ("Movant") filed a Motion to Vacate, Set Aside, or Correct Sentence pxirsuant to 28 U.S.C. § 2255. (D.I. 77; D.I. 87) The United States ("government") filed an Answer in Opposition. (D.I. 100) For the reasons discussed, the Court will deny Movant's § 2255 Motion without holding an evidentiary hearing.
On or ahout May 11, 2011, federal law enforcement officers identified an Express Mail parcel as being suspicious, and determined that the parcel contained over five kilograms of powder cocaine. (D.I. 100 at 2-3) The next day, the agents conducted surveillance of a "controlled deliveiy" of the package to the listed address by an undercover agent posing as a postal letter carrier. During the delivery, Movant identified himself as the addressee and signed for the package. (Id.) After conducting further surveillance of Movant's activities, the agents entered the residence, lawfiiUy searched the premises, and subsequendy arrested Movant and his co-defendant, Melvin Lowe. (D.I. 100 at 4-5) On June 16, 2011, the grand jury for the District of Delaware of Delaware issued a three coimt Indictment charging Movant and co-defendant Lowe with: (1) conspiracy to possess with intent to distribute a Controlled Substance (500 grams or more of a mixture and substance containing a detectable amount of cocaine), in violation of 21 U.S.C. § 846;(2) attempted possession with intent to distribute a controlled substance (500 grams or more of a mixture and substance containing a detectable amount of cocaine), in violation of 21 U.S.C. § 841(a)(1); and (3) possession of ammunition by a prohibited person, in violation of 18 U.S.C. § 922(g). (D.I. 11; D.I. 12) Thereafter, the government and Movant entered into plea negotiations, and Movant pled guilty to conspiring to possess with intent to distribute 500 grams or more of a mixture and substance containing a detectable amount of cocaine. (D.I. 431) On February 13, 2012, the Court sentenced Movant to 120 months of imprisonment, followed by eight years of supervised release. (D.I. 62) Movant did not appeal.
Movant timely filed a pro se Motion to Vacate, Set Aside, or Correct Sentence Pursuant To 28 U.S.C. § 2255, and then an amended § 2255 Motion (hereinafter collectively referred to as "§ 2255 Motion"). (D.I. 77; D.I. 87) The government filed a Reply in Opposition. (D.I. 100)
In his Motion, Movant asserts that defense counsel provided ineffective assistance by: (1) incorrecdy advising him about the law concerning conspiracy; (2) failing to challenge the government's notice that Movant was subject to enhanced penalties under 21 U.SC. § 851; and (3) failing to subject the government's case to a meaningful adversarial testing process. The government contends that all three claims should be denied as meridess.
Movant has properly raised his ineffecdve assistance of coimsel allegations in a § 2255 motion. See Massaro v. United States, 538 U.S. 500 (2003). Although Paragraph 9 of Movant's Plea Agreement contains the following waiver of Movant's right to file a direct appeal and/or a collateral attack on his conviction and sentence, the waiver expressly exempts ineffective assistance of counsel claims:
D.I. 43) (emphasis added). Therefore, the Court can consider the Claims asserted in the instant Motion. See United States v. Phillips, 396 F. App'x 831, 835 n.4 (3d Cir. 2010) (noting that appellant could pursue ineffective assistance of counsel claim in collateral proceeding because appellate waiver expressly exempted ineffective assistance claims).
As a general rule, ineffective assistance of counsel claims are reviewed pursuant to the two-pronged standard established in Strickland v. Washington, 466 U.S. 668 (1984). Under the first Strickland prong, Movant must demonstrate that "counsel's representation fell below an objective standard of reasonableness," with reasonableness being judged under professional norms prevailing at the time counsel rendered assistance. Strickland, 466 U.S. at 688. Under the second Strickland prong, Movant must demonstrate a reasonable probability that, but for counsel's error, the outcome of the proceeding would have been different. See id. at 694; United States v. Nahodil, 36 F.3d 323,326 (3d Cir. 1994). In the context of a guilty plea, a movant satisfies Strickland's prejudice prong by demonstrating that, but for counsel's error, there is a reasonable probability that he would have insisted on proceeding to trial instead of pleading guilty. See Hill v. Lockhart, 474 U.S. 52, 58 (1985). A court can choose to address the prejudice prong before the deficient performance prong, and reject an ineffectiveness claim solely on the ground that the defendant was not prejudiced. See Strickland, 466 U.S. at 668. Finally, although not insurmountable, the Strickland standard is highly demanding and leads to a strong presumption that counsel's representation was professionally reasonable. Id. at 689.
In his first claim, Movant contends that defense counsel incorrecdy advised him that a conspiracy could be estabhshed without a written or verbal agreement, and that, as a result, he did not enter the guilty plea voluntarily, knowingly, or intelligendy. Movant asserts that there was only circumstantial evidence of a conspiracy, because there was no connecting link (or agreement) between Movant and the sender of the "mysterious drug-filled package." (D.I. 77 at 21-23) This argument is unavailing.
Defense coimsel's affidavit, and representations made by Movant and defense counsel to the Court during the plea colloquy and sentencing hearing, demonstrate that defense counsel and Movant met twelve times to discuss the legal options available to Movant, including potential witnesses and defenses. (D.I. 100-1 at 2-3; D.I. 100-1 at 15) During these meetings, defense counsel and Movant discussed the elements of the conspiracy charge, and defense counsel explained to Movant that "it's not necessary for the government to prove [you] knew the exact contents of that package" to establish guilt. (D.I. 100-1 at 44) According to counsel, the two of them extensively reviewed the case during their fourth meeting, after which Movant decided to enter a guilty plea. (D.I. 100-1 at 3)
During the plea colloquy, the government described the evidence it would have presented at trial to prove that Movant participated in the conspiracy (D.I. 100-1 at 26-32), and recited the following facts:
(D.I. 100-1 at 29-32) Movant admitted that these facts were true. (D.I. 100-1 at 32)
In addition, during the plea coUoquy, the Court informed Movant of the elements of the conspiracy charge and reviewed the terms of the written Plea Agreement, and Movant acknowledged he understood the terms and that the written agreement accurately reflected his agreement with the government. (D.I. 100-1 at 16-32) Movant stated that he understood the elements of the conspiracy charge against him, that he was aware of his rights he was waiving, and that he was entering the guilty plea because he "conspired with another person to possess 500 grams or more of cocaine." (D.I. 100-1 at 28)
During the presentence interview, defense counsel reviewed the facts of the case with Movant, and Movant informed counsel that he "agreed to what he did" so that he could get acceptance of responsibility. (D.I. 100-1 at 43-4) It was defense counsel's opinion that, at "all times, [Movant] understood that he was pleading guilty to conspiring with intent possess . . . a substantial amount of cocaine." (D.I. 100-1 at 44) Thereafter, during the sentencing hearing, Movant stated, "Your Honor, I knew it was something illegal, some contraband. The type and weight of it, I did not know." (D.I. 100-1 at 50) Movant also agreed with the following description of the situation provided by defense counsel during the sentencing hearing:
(D.I. 100-1 at 50)
It is well-settled that "[s]olemn declarations in open court carry a strong presumption of verity" that create a "formidable barrier in any subsequent collateral proceedings." Blackledge v. Allison, 431 U.S. 63, 74 (1977). In this proceeding, Movant's allegation that he did not knowingly and voluntarily enter into the Plea Agreement because defense counsel misinformed him about the elements of a conspiracy charge fails to provide compelling evidence as to why the statements he made during the plea colloquy should not be presumptively accepted as true. As a result, the Court concludes that Movant is boimd by the representations he made during the plea colloquy, and that his guilty plea was knowing and voluntary.
The Court also concludes that defense coimsel's advice did not amount to ineffective assistance. Significantly,
United States v. Laboy, 511 F. App'x 228, 230 (3d Cir. 2013) (internal citations omitted; emphasis added). In other words, an agreement to commit a conspiracy can be implicit or explicit, and can be proven entirely by circumstantial evidence. See United States v. Kapp, 781 F.2d 1008, 1010 (3d Cir. 1986). Strong circumstantial evidence, without more, can be enough to support a jury's finding of possession of narcotics with intent to distribute,
Analyzing defense counsel's advice within this legal framework demonstrates that defense counsel reasonably determined that Movant's use of a fake name, his admission that the parcel belonged to him, the fact that he had engaged in counter-surveiUance measures during the controlled dehvery, and the discovery of drug paraphernalia and ammunition in the residence, presented enough circumstantial evidence that Movant was part of a conspiracy, even without any proof of a written or verbal agreement between Movant and the sender of the parcel. See United States v. Smith, 294 F.3d 473, 477 (3d Cir. 2002) ("The existence of a conspitacy can be inferred from evidence of related facts and circumstances from which it appears as a reasonable and logical inference, that the activities of the participants . . . could not have been carried on except as the result of a preconceived scheme or common understanding."). Additionally, Movant's statement that he "
In Claim Two, Movant asserts that defense counsel provided ineffective assistance by failing to: (1) argue that the government's "Information to Establish Prior Conviction" ("§ 851 Notice") (D.I. 40) did not comply with the notice requirements of 21 U.S.C. § 851(a); (2) inform Movant of the government's § 851 Notice and explain its effect on his sentence; and (3) investigate the prior conviction that formed the basis of the § 851 Notice and challenge its accuracy and relevance. These contentions are unavailing.
With respect to Movant's first contention, § 851(a)(1) provides, in pertinent part,
21 U.S.C. § 851(a)(1) (emphasis added). The government complied with this provision by filing the § 851 Notice on October 3, 2011, specifying the Movant was subject to an enhanced penalty "by virtue of Movant's July 27, 1995 conviction for a felony drug offense in the Delaware Superior Court. (D.I. 40) Defense counsel was representing Movant on that date, and a copy of the § 851 Notice was electronically dehvered to defense counsel through the Court's CM/ECF system. Movant entered his guilty plea two days later, on October 5, 2011. Since these procedures satisfy the filing requirements for a § 851 Notice, defense counsel's failure to challenge the method by which the § 851 Notice was filed did not amount to ineffective assistance. See United States v. Sanders, 165 F.3d 248, 253 (3d Cir. 1999) (holding that attorney does not provide ineffective assistance by failing to raise meritless arguments or objections).
Movant's next assertion — that defense counsel never reviewed the § 851 Notice with him, and that he did not understand that his sentence could be enhanced due to his prior felony conviction — is similarly unavailing. Defense counsel, in his affidavit, asserts that he reviewed the § 851 Notice with Movant the day after it was filed. Moreover, paragraphs Two and Three of the Plea Agreement state;
(D.I. 43 at 1-2) Finally, at the plea colloquy, the Court informed Movant that a guilty plea would result in a mandatory minimum sentence of ten years. Given these circumstances, the Court rejects as meridess Movant's contention that he did not understand the enhanced penalties to which he was subjected.
In his last allegation of Claim Two, Movant asserts that defense counsel failed to investigate and challenge the accuracy or relevance of the prior § 851 conviction. He also alleges that he did not qualify for the § 851 enhancement because his prior convictions were "petty" and, therefore, "in contrast" to the intent of the recidivist enhancement. (D.I. 116 at 2) However, Movant does not provide, and the Court does not discern, any basis for challenging the validity or relevance of his 1995 Delaware felony conviction. As just explained, Movant stipialated to the conviction in his Plea Agreement. Moreover, a defendant cannot challenge the validity of a qualifying prior § 851 conviction if it "occurred more than five years before the date of the information alleging such prior conviction." 21 U.S.C. § 851(e). In this case, the government filed the § 851 Notice on October 3, 2011, more than sixteen years after Movant was convicted of the predicate Delaware felony. As such, any challenge to the § 851 conviction would have been denied as time-barred.
In short, defense counsel was not ineffective for failing to raise a futile challenge to the § 851 Notice and subsequent enhancement of his sentence. Accordingly, the Court will deny Claim Two in its entirety.
Finally, Movant asserts that defense counsel failed to review exculpatory evidence with him and failed to conduct any investigation into the illegal identification of Movant and the subsequent illegal search and seizure of evidence. (D.I. 87 at 2-3) Citing United States v. Cronic, 466 U.S. 648 (1984), Movant contends that the two-pronged Strickland/Hill standard is inapphcable to this argtiment and that the Court should presume prejudice because defense counsel failed to subject the government's case to meaningful adversarial testing on a "wholesale level." (D.I. 87 at 3) The premise of Movant's argument appears to be that he was constructively denied counsel because counsel "dismissed ptis] demands to develop a defense strategy and in essence was acting more as a `friend of the court' rather than [as] an adversary to the prosecution." (D.I. 87 at 2)
In Cronic, the United States Supreme Court articulated a very limited exception to Strickland's requirement that a petitioner must demonstrate both deficient performance and prejudice in order to prevail on an ineffective assistance of counsel claim, and held that there are three situations in which prejudice caused by an attorney's performance will be presumed: where the defendant is completely denied counsel at a critical stage; where "counsel entirely fails to subject the prosecution's case to meaningful adversarial testing"; or where the circumstances are such that there is an extremely small UkeUhood that even a competent attorney could provide effective assistance, such as when the opportunity for cross-examination has been eliminated. See 466 U.S. at 659 & n.25. The Cronic presumption of prejudice applies when counsel has completely failed to test the prosecution's case throughout the entire proceeding. See Bell v. Cone, 535 U.S. 685, 697 (2002).
Movant's instant contention is not successful. In order to obtain relief under Cronic, there must be a complete collapse in the adversarial process. No such collapse happened here. During the plea process, defense counsel met with Movant on multiple occasions, reviewed the applicable law and facts of the case with Movant, and rendered his professional opinion as to the potential exposure Movant would face if he elected to proceed to trial. By pleading guilty, Movant saved himself from an additional three to five years of potential incarceration. Counsel's performance was more than adequate and fails to satisfy the exacting Cronic standard.
Defense counsel's performance during the court proceedings also fails to satisfy the Cronic standard. The record reveals that defense counsel met with Movant on three different occasions after Movant entered his guilty plea in order to discuss sentencing. In an effort to advocate that the Court not sentence Movant above the mandatory minimum, defense counsel responded to the draft PSR, filed a sentencing memorandum prior to sentencing, and argued forcefully for a middle-of-the-guidelines sentence. Additionally, after Movant sent a post-guilty plea letter to the probation officer stating that he never knew he was engaged in a drug conspiracy, which could have resulted in the Court denying the three-point reduction for acceptance of responsibility, defense counsel persuaded the Court that Movant should still be entitled to the full three-point reduction. These actions fail to justify presuming prejudice under Cronic.
Having determined that the Cronic presumption of prejudice is inapplicable, the Court must review Claim Three under both prongs of the Strickland/Hill standard. Doing so, the Court finds the Claim unavailing. Movant does not identify any exculpatory evidence that defense counsel did not review with him. To the contrary, defense counsel's affidavit illustrates that he properly investigated, researched, and advised Movant about the evidentiary issues involved in his case.
Also, the record belies Movant's conclusory contention that defense counsel "was well aware that the entire evidence put forth by the government was the `fruit of an illegal search and seizure' with regard to the identification of [Movant] and seizure of evidence." (D.I. 87 at 2-3) As explained in the Criminal Complaint, the parcel was initially deemed suspicious at the Philadelphia USPS Processing and Distribution Center because of its "size and weight [], and the fact that all seams were glued to prevent odor from emitting from the parcel." (D.I. 2 at 3, ¶ 9) Although the address indicated on the parcel was deliverable, "no individual with the name Michael Johnson, Sr. [the addressee] was currently receiving mail at the address." (D.I. 2 at 3-4, ¶ 10) A canine handler with the New Jersey State Police then conducted an exterior inspection of the parcel with his narcotic detection canine, who indicated that the parcel "contained a controlled substance or the residue of a controlled substance. The canine did not alert to any other parcel in the line-up." (D.I. 2 at 4, ¶ 11) The package was only opened and searched after a federal search warrant was obtained. (D.I. 2 at 4, ¶ 12) Nothing in this record even remotely supports Movant's contention that the evidence was obtained in an illegal manner.
In short, given Movant's failure to support his contentions regarding the exculpatory evidence and the illegality of the police search and seizure with anything but conclusory and sweeping generalizations, the Court concludes that counsel's actions with respect to the evidentiary issues of the case did not amount to ineffective assistance. Accordingly, the Court wiU deny Claim Three as meritless.
Section 2255 requires a district court to hold a prompt evidentiary hearing unless the "motion and the files and records of the case conclusively show" that the Movant is not entitled to relief. 28 U.S.C. § 2255; see also United States v. Booth, 432 F.3d 542, 545-46 (3d Cir. 2005); United States V. McCoy, 410 F.3d 124, 131 (3d Cir. 2005); Fed. R. Civ. P. 8(a), 28 U.S.C. foll. § 2255. As previously explained, the record conclusively demonstrates that Movant is not entitled to relief. Therefore, the Court will deny Movant's § 2255 Motion without an evidentiary hearing.
A district court issuing a final order denying a § 2255 motion must also decide whether to issue a certificate of appealabiHty. See 3d Cir. L.A.R. 22.2 (2011). A certificate of appealability is appropriate only if the movant "has made a substantial showing of the denial of a constimtional right." 28 U.S.C. § 2253(c)(2). The movant must "demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000).
The Court concludes that Movant's claims lack merit, and is persuaded that reasonable jurists would not find this assessment to be debatable. Therefore, the Court wiU not issue a certificate of appealability.
For all the foregoing reasons, the Court will dismiss Movant's 28 U.S.C. § 2255 Motion to Vacate, Set Aside, or Correct Sentence without an evidentiary hearing. Additionally, the Court wiU not issue a certificate of appealability. The Court shall issue an appropriate Order.
