CRUTE v. USA
Filing
11
MEMORANDUM and ORDER denying Motion to Vacate/Set Aside/Correct Sentence (2255) filed by GEORGE WASHINGTON CRUTE. Signed by Chief Judge Gary L. Lancaster on 5/20/11. (map)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
GEORGE WASHINGTON CRUTE,
Petitioner,
v.
Civ. Action No. 09-0498
Crim. Action No. 05 100
UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM
Gary L. Lancaster,
Chief Judge.
This
sentence
May 20, 2011
is
an action to vacate,
pursuant
Washington
Crute
distribute
and
cocaine.
to
was
28
U.S.C.
convicted
distribution
of
2255.
§
of
set
aside,
Petitioner
possession
more
or correct
than
5
with
grams
George
intent
of
to
crack
The court sentenced him to 120 months incarceration.
Petitioner claims that his sentence should be vacated,
set
aside,
or
corrected
because
he
was
denied
effective
assistance of counsel in violation of the Sixth Amendment to the
United States Constitution.
Specifically he maintains that his
trial counsel failed to inform him that the government sought a
sentencing
U.S.C.
§
enhancement
851.
for
He claims
would have agreed
his
prior
offenses
pursuant
that if he had known this
to cooperate with
the
government
to
21
fact,
he
and would
have been amenable to a plea bargain, instead of going to trial.
The United States Government opposes Crute's petition
contending that petitioner was not denied effective assistance
of
counsel,
and
that
even
if
there
was
any
deficiency,
petitioner suffered no prejudice because he cannot demonstrate
that he was ever offered a plea bargain.
On
hearing
on
March
18,
2011,
petitioner's
the
court
motion.
At
Uni ted States Attorney Michael Comber,
held
the
an
evidentiary
hearing,
Assistant
the original prosecutor
on the case, was called by the petitioner.
Crute testified on
his
served
own
behalf.
Chris
Rand
Eyster,
who
as
Crute's
attorney from the inception of the case through trial testified
for the government.
After considering the
hearing,
the
credibility
the
witnesses,
the evidentiary
the
parties'
the court is prepared to rule.
briefs on this matter,
of
testimony from
and
For the
following reasons, petitioner's motion to vacate,
set aside,
or
correct sentence will be denied.
I.
FINDINGS OF FACT
The
credible
evidence
introduced
at
the
hearing
establishes the following:
On
March
25,
charges against Crute.
100,
at Doc.
No.
12]
2005,
the
government
filed
criminal
The Indictment Memorandum [Crim. No. 05
indicates that on count three,
2
possession
with intent to distribute and distribution of more than 5 grams
of
crack cocaine,
the
charge upon which Crute
was
ultimately
convicted, Crute faced a 5-year mandatory minimum sentence.
On January 19,
2006
Eyster and Crute met
prosecutor assigned to his case.
with the
Eyster's time records support
this noting that Eyster met with the "[Assistant United States
Attorney],
agents
and defendant.
[Hearing Exhibit
1/
9].
The
purpose of this meeting was to discuss a possible plea agreement
in
exchange
for
investigations.
case.
Crute's
They
cooperation
discussed
the
in
possible
on-going
penalties
drug
in
the
They also discussed the fact that if Crute did not plead
guilty and agree to cooperate, the government planned to file an
information pursuant to 21 U.S.C.
Crute's
mandatory
incarceration.
minimum
Crute
§ 851,
sentence
indicated
which would increase
from
that
he
5
to
was
10
not
years
of
willing
to
cooperate with the government and the negotiations ended.
On
January
20,
2006,
the
government
filed
an
information charging Crute with prior offenses in violation of
federal drug law pursuant to 21 U.S.C. §851.
at
Doc.
No . 34].
[Crim. No. 05-100,
Upon the filing of this information,
became subject to a 10-year mandatory minimum sentence.
began on January 24, 2006.
3
Crute
Trial
II.
CONCLUSIONS OF LAW
The court reviews claims of ineffective assistance of
counsel
under
the
Washington,
466 U.S.
must prove:
(1)
two-prong
was
668
standard
(1984).
of
Strickland
For petitioner to succeed he
that his counsel was deficient; and (2)
prejudiced by his
counsel's
v.
deficiency.
that he
Strickland,
466
U.S. at 687.
The court of appeals recently observed that,
to satisfy the first prong of the Strickland test,
in order
petitioner
"must show that counsel's representation fell below an objective
standard of reasonableness."
(3d Cir. 2009)
so,
Lewis v.
(quoting Strickland,
of
hindsight,
to
581 F.3d 92,
466 U.S. at 688).
we "must make every effort
effects
Horn,
106
In doing
to eliminate the distorting
reconstruct
the
circumstances
of
counsel's challenged conduct,
and to evaluate the conduct from
counsel' s
time."
perspective
at
the
internal quotation omitted).
we
must
falls
indulge
within
assistance
that
the
and
a
Id.
113
(citation and
The court of appeals directs that
strong
presumption
the
wide
that
petitioner must
challenged
at
range
action
might
4
of
be
that
counsel's
reasonable
overcome
the
considered
conduct
professional
presumption
sound
trial
Id.
~trategy.
Petitioner can rebut that presumption, however,
that "by showing that the conduct was not,
in fact,
part of a
strategy or by showing that the strategy employed was unsound."
Id.
In
prejudice,
order
petitioner
probabi1i ty that,
result
to
of
prove
must
the
"show
second
that
prong
there
a
is
establish
reasonable
but for counsel's unprofessional errors,
the
proceeding
would
have
been
Strickland, 466 U.S. at 694; Weeks v. Snyder,
(3d Cir. 2000).
and
the
different."
219 F.3d 245,
257
In other words, petitioner must show that there
is a reasonable probability that his counsel's errors resulted
in his conviction.
See Glover v.
United States,
531 U.S.
198,
203 (2001).
Crute contends that his trial counsel was ineffective
because
Eyster
Memorandum,
mandatory
never
never
minimum
gave
informed
sentence,
him
him
of
and
a
copy
of
his
his
exposure
to
never
warned
Indictment
him
government had filed an information under 21 U.S.C.
a
10-year
that
§
the
851 thus
increasing his mandatory minimum sentence exposure from 5 years
to
10
years.
He maintains
that
he
was
prej udiced
by
these
omissions because if he had known that his mandatory minimum was
5
10 years of incarceration, then he would have been amenable to a
plea bargain and willing to cooperate with the government.
The
counseled,
government
argues
that
Crute
was
properly
but also maintains that Crute's claim fails because
he must first prove that a plea bargain was actually offered,
which he cannot do.
The
credible
evidence
establishes,
and
the
court
finds,
that Eyster did inform his client of
the risk that he
would
face
of
a
incarceration.
mandatory
minimum
sentence
10
years
of
The court also finds it credible that Crute was
present during the January 19, 2006 meeting where the government
made plain its intention to file an information under 21 U.S.C.
§
851 for the purpose of seeking an enhanced sentence against
Crute if he refused to cooperate with the government.
Because
of this, the court holds that trial counsel's representation did
not fall below the range of reasonable professional assistance
owed to petitioner.
Therefore, Crute's claim that trial counsel
was ineffective fails.
Further,
correct
that
Crute
the
court
must
finds
prove
that
that
the
the
government
government
is
actually
offered him a plea bargain in order to bring a successful claim
of
ineffective
assistance
of
counsel
6
on
these
facts.
The
discretion to engage in plea bargaining rests
prosecution.
Weatherford v.
Bursey,
429 U.S.
solely with the
545,
561
See U.S. v. Carter, No. 09-1173, 2010 WL 883716 at *6
Mar.
II,
2010).
Here,
although
some
informal
plea agreement
(1977).
(W.D. Pa.
the credible evidence establishes that
preliminary
discussions
was
actually
occurred,
offered.
no
formal
Because
or
Crute
cannot prove that he was ever offered a plea bargain, he cannot
meet his burden to show that he was prejudiced in any manner by
the actions of his trial counsel.
III.
CONCLUSION
Based
establishes
that
on
§
An
foregoing,
petitioner is
petition to vacate,
28 U.S.C.
the
set aside,
not
the
record
entitled to
conclusively
relief
on his
or correct sentence pursuant to
2255.
appropriate order follows.
7
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
GEORGE WASHINGTON CRUTE,
Petitioner,
Civ. Action No. 09-0498
Crim. Action No. 05-100
v.
UNITED STATES OF AMERICA,
Respondent.
ORDER
AND
ORDERED
that
NOW,
this
V
petitioner's
f;"
day
motion
of
to
May,
2011,
vacate,
IT
set
IS
HEREBY
aside,
or
correct sentence [Crim. No. 05-100, at Doc. No. 71] is DENIED.
BY THE COURT,
~C.J.
cc: All Counsel of Record
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