MATTHEWS v. UNITED STATES OF AMERICA
Filing
2
MEMORANDUM OPINION as to Daniel Keith Matthews denying petitioner's motion to vacate, set aside, or correct sentence by a person in federal custody in its entirety. The clerk shall mark this case closed. Signed by Judge Joy Flowers Conti on 4/12/13. (kjm)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DANIEL KEITH MATTHEWS,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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) CIVIL NO. 10-1740
) CRIMINAL NO. 03-072
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MEMORANDUM OPINION AND ORDER
CONTI, District Judge
Pending before the court is a motion to vacate, set aside, or correct sentence by a person
in federal custody pursuant to 28 U.S.C. § 2255 (ECF No. 953) filed by petitioner Daniel Keith
Matthews1 (“Matthews” or “petitioner”). In a memorandum opinion dated August 27, 2012, the
court denied petitioner’s motion to vacate, set aside, or correct sentence by a person in federal
custody in all respects except for the claim that petitioner’s trial counsel, Martha Bailor
(“Bailor”), was ineffective because she failed to advise him that if the government filed prior to
trial a notice of his prior drug conviction pursuant to 21 U.S.C. § 851 (the “851 information”), he
faced a mandatory minimum term of imprisonment of 120 months. (ECF No. 1021 at 11-10.) A
ruling on the sole remaining issue raised by petitioner’s motion was reserved until after a hearing
was held. (Id.)
1
The court notes that in petitioner’s filings with the court, he spells his name “Mathews.” (See
e.g. ECF No. 782.) On the court’s electronic filing system, petitioner’s name is spelled
“Matthews.” For the sake of consistency with the electronic filing system and the court’s
previous filings in this case, the court refers to petitioner as “Matthews.”
On December 18, 2012, the court held a hearing with respect to the remaining issue
raised by petitioner’s motion. Bailor was deceased at the time of the hearing, and thus, the record
could not reflect her recollection of the events in issue. Petitioner, however, testified about those
events. Given that situation, the court found that Bailor’s failure to inform petitioner about the
implications of the government’s filing a § 851 information was deficient representation. (H.T.
12/18/12 (ECF No. 1067) at 99, 101.) The court deferred ruling on whether Bailor’s deficient
representation prejudiced petitioner until after the parties submitted supplemental briefs
addressing the issue. (Id. at 101.)
After reviewing petitioner’s motion to vacate, set aside, or correct sentence by a person in
federal custody, the government’s brief in opposition (ECF No. 970), the evidence presented at
the hearing, and the supplemental briefs submitted by the parties (ECF Nos. 1062, 1063), the
court will deny petitioner’s motion because he did not establish prejudice.
I.
Background
On August 5, 2004, in a superseding indictment, Matthews, Larry Lewis Ferguson
(“Ferguson”), Michelle Harris (“Harris”), John C. Steele (“Steele”), Roscoe B. Thompson
(“Thompson”), and others were jointly charged in count one with conspiracy to possess and
distribute more than 100 grams of a mixture or substance containing a detectable amount of
heroin from November 20, 2002 to February 8, 2003, in violation of 21 U.S.C. §§ 846 and
841(b)(1)(B)(i). (ECF No. 354.) Petitioner was also separately charged in count sixteen with
possession with intent to distribute and distribution of a quantity of heroin on or about January
11, 2003, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). Id. While ten of petitioner’s
co-defendants, including Harris and Steele, chose to cooperate and pleaded guilty to the
2
conspiracy count, petitioner, Ferguson and Thompson went to trial before a jury on the counts in
which they were charged. (ECF No. 970 at 2.)
On May 2, 2005, prior to jury selection, the government filed the § 851 information with
respect to petitioner. By reason of that filing, the previous state drug conviction would be used, if
he was convicted of the pending charges against him, to increase the statutory mandatory
minimum term of imprisonment from five years to ten years. (ECF No. 456.) The initial trial,
which began on May 10, 2005, ended in a mistrial due to juror misconduct, (see ECF No. 492),
and all three defendants were retried beginning on January 12, 2006.
On March 2, 2006, after all the evidence was presented, the jury found petitioner guilty
of count sixteen and all three defendants guilty of count one. (ECF No. 644.) Following the
verdict, petitioner filed pro se Rule 29 and Rule 33 motions, which were denied by the court as
untimely on September 8, 2006. (ECF No. 778.) Petitioner’s sentencing was scheduled for
September 29, 2006. Id. After September 8, 2006 and prior to sentencing, petitioner requested
new counsel to replace Bailor. (ECF No. 782.) On September 18, 2006, Bailor filed a motion for
leave to withdraw as counsel. (ECF No. 784.) The court held a hearing with respect to
petitioner’s motion for new counsel and Bailor’s motion to withdraw as counsel. The court
granted both motions. On October 2, 2005, Sally A. Frick (“Frick”) was appointed as petitioner’s
counsel. (ECF No. 797.) Frick prepared the defendant’s Position with Respect to Presentence
Investigation Report, which she filed on January 5, 2007. (See ECF No. 862.) Petitioner
continued to file numerous pro se motions with the court. (See ECF Nos. 809, 843, 849, 855,
856, 860, and 861.) Each pro se motion was denied without prejudice by the court because he
was represented by Frick, who, among other things, could address the matters raised by filing
motions on his behalf or raising arguments at the sentencing hearing set for January 17, 2007.
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(ECF No. 866.) On that date, the court sentenced petitioner to 120 months of imprisonment to be
followed by eight years of supervised release. (See ECF No. 867.) The sentence was the statutory
minimum sentence for a violation of 21 U.S.C. § 841(b)(1)(B) because prior to trial the
government filed the § 851 information providing the court notice of petitioner’s prior felony
drug offense. (ECF No. 970 at 4.) The mandatory minimum term of imprisonment was greater
than the range which would have been determined under the federal sentencing guidelines had
the government not filed the § 851 information. The lower guidelines range of imprisonment was
70 to 87 months based upon petitioner’s base offense level and criminal history category without
taking into consideration the filing of the § 851 information. (See id.)
Petitioner appealed his conviction, arguing, among other things, that the evidence was
insufficient to support his conviction for participation in the heroin conspiracy. United States v.
Ferguson, 394 F. App'x 873, 878 (3d Cir. 2010). In an opinion issued on September 21, 2010, the
Court of Appeals for the Third Circuit affirmed the conviction, finding that the “evidence
presented at trial was more than sufficient to permit a rational trier of fact to conclude that
Petitioner shared a unity of purpose with the other conspirators to distribute heroin and entered
into an agreement to further that objective.” Id. at 878.
Petitioner continued to file motions pro se (see ECF Nos. 893, 923, 937, 938, and 945),
the last of which was filed on December 1, 2010 to “vacate, set aside or correct the sentence”
pursuant to 28 U.S.C. § 2255. Because “Matthews [sic] might not have been aware of the
potential legal consequences when he filed the Motion to Vacate, the Motion for Trial,
Supplement and Amended Motion,” this court delayed consideration of his motions and provided
him with the option, among others, to withdraw the motion and file an inclusive § 2255 motion.
(ECF No. 946); see United States v. Miller, 197 F.3d 644, 652 (3d Cir. 1999). Petitioner
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withdrew the previous motions, (see ECF No. 952), and filed one all-inclusive § 2255 petition on
December 27, 2010. (ECF No. 953). This motion was supplemented three days later with a
Motion for New Trial and a Motion for Sentencing Transcripts and DEA Surveillance Reports.
(ECF No. 954.)
In an order dated August 27, 2012, the court denied in part petitioner’s motion to vacate,
set aside, or correct sentence by a person in federal custody, reserving decision with respect to
whether Bailor was ineffective for failing to advise petitioner that if the government filed prior to
trial a notice of his prior drug conviction, he faced a mandatory minimum term of imprisonment
of 120 months.2 (ECF No. 1021 at 11-10.) Petitioner was appointed counsel to represent him in
connection with his motion. (Id. at 25.)
On December 18, 2012, the court held an evidentiary hearing with respect to the
remaining issue raised by petitioner’s motion. Petitioner, Assistant United States Attorney Troy
Rivetti (“Rivetti”), and Frick testified. The government and petitioner each entered exhibits into
evidence. As noted, the testimony of petitioner could not be contradicted by Bailor during the
hearing on December 18, 2012 because Bailor had died prior to the hearing. The court on the
basis of the record found that Bailor’s performance was deficient because she did not inform
petitioner about the impact the filing of the § 851 information could have on his ultimate
sentence. (H.T. 12/18/12 (ECF No. 1067) at 99, 101.) The parties were ordered to file
supplemental briefs with respect to whether petitioner was prejudiced by Bailor’s deficient
representation. On January 3, 2013, the parties each filed a supplemental brief with the court.
2
In the same order dated August 27, 2012, the court denied petitioner’s Motion for New Trial
and Motion for Sentencing Transcripts and DEA Surveillance Reports. (ECF No. 1021 at 24-25.)
5
Based upon the foregoing, the sole remaining issue for the court to decide is whether petitioner
was prejudiced by Bailor’s deficient representation.
On this 12th day of April 2013, the court makes the following findings of fact and
conclusions of law with respect to whether petitioner was prejudiced by Bailor’s ineffective
assistance of counsel.
II.
Standard of Review
A district court is required to hold an evidentiary hearing on a motion to vacate sentence
filed pursuant to § 2255 unless the motion, files, and records of the case show conclusively that
the movant is not entitled to relief. 28 U.S.C. § 2255 (“Unless the motion and the files and
records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . .
grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions
of law with respect thereto.”); United States v. Booth, 432 F.3d 542, 545-46 (3d Cir. 2005). An
evidentiary hearing is not required, however, if the court determines that the motion, files, and
records of the case conclusively support that the motion should be denied as a matter of law. Id.
With this in mind, the “district court must ‘accept the truth of the movant's factual allegations
unless they are clearly frivolous on the basis of the existing record.’” Johnson v. United States,
294 F. App'x 709, 710 (3d Cir. 2008) (quoting United States v. Thomas, 221 F.3d 430, 437 (3d
Cir. 2000)). The district court, however, without further investigation may dispose of “vague
and conclusory allegations contained in a § 2255 petition.” Id.
Under § 2255, a federal prisoner in custody may move the court which imposed the
sentence to vacate, set aside or correct the sentence
upon the ground that the sentence was imposed in violation of the Constitution or
laws of the United States, or that the court was without jurisdiction to impose
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such sentence, or that the sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack.
28 U.S.C. § 2255(a). In Hill v. United States, 368 U.S. 424 (1962), the Supreme Court of the
United States read the statute as stating four grounds upon which relief can be claimed:
(1) “that the sentence was imposed in violation of the Constitution or laws of the
United States,” (2) “that the court was without jurisdiction to impose such
sentence,” (3) “that the sentence was in excess of the maximum authorized by
law,” and (4) that the sentence “is otherwise subject to collateral attack.”
Id. at 426-27 (quoting 28 U.S.C. § 2255(a)).
The statute provides as a remedy for a sentence imposed in violation of law that “the
court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him
or grant a new trial or correct the sentence as may appear appropriate.” 28 U.S.C. § 2255(b).
For this remedy to be appropriate for a claim of ineffective assistance of counsel, there must be a
“showing that counsel made errors so serious that counsel was not functioning as the “counsel”
guaranteed the defendant by the Sixth Amendment.” Strickland v. Washington, 466 U.S. 668,
687 (1984).
The burden is on the petitioner to establish such a claim and requires a petitioner to
prove: (1) deficient representation, meaning that counsel’s representation fell below an objective
standard of reasonableness, and (2) prejudice, meaning there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been different. Id. at
687, 694.
III.
Findings of Fact
1.
Petitioner’s initial appearance on the charges contained in the indictment was
February 20, 2003. (H.T. 12/18/12 (ECF No. 1067) at 20-21; ECF No. 8.)
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2.
Bailor first met with petitioner with respect to those charges while he was
incarcerated prior to his arraignment, which took place on February 27, 2003. (H.T. 12/18/12
(ECF No. 1067) at 21.) During that meeting, Bailor gave petitioner a business card that listed her
telephone number and fax number. (Id. at 5.) The card did not contain her business address. (Id.)
3.
On March 3, 2003, petitioner was released from custody and placed on house
arrest. (ECF No. 61; H.T. 12/18/12 (ECF No. 1067) at 15.)
4.
A superseding indictment was filed in this case on August 5, 2004. (Id. at 21. ECF
No. 354.) Bailor represented petitioner at the arraignment on the charges contained in the
superseding indictment, which took place on August 26, 2004. (H.T. 12/18/12 (ECF No. 1067) at
22.)
5.
At the initial appearance on February 20, 2003, the arraignment on February 27,
2003, and the arraignment on August 26, 2004, Rivetti, the prosecutor assigned to petitioner’s
case, in open court explained the possible penalties petitioner was facing with respect to the
charges filed against him. (Id. at 52.) Rivetti’s explanation of penalties included the penalties for
a first-time offender and the penalties for a defendant with a prior felony drug conviction, which
included the increase in the statutory mandatory minimum term of imprisonment from five years
to ten years if defendant had a prior felony drug conviction. (Id. 52-53.) Rivetti testified that at
an arraignment, magistrate judges in the Western District of Pennsylvania, where petitioner was
arraigned, require an explanation of the possible penalties a defendant faces and that the possible
penalties are also set forth in an indictment memorandum filed with the court. (Id. at 53.)
6.
Rivetti testified that there was no indication that petitioner was confused about the
possible penalties he faced if convicted of the charges filed against him in this case. (Id. at 56.)
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7.
On November 17, 2004, Rivetti sent a letter to Bailor and counsel for five other
defendants who were indicted with petitioner. (Gov’t Ex. 1; H.T. 12/18/12 (ECF No. 1067) at
36.) The letter provided, among other things:
Finally, we remain open to the possibility of resolving this case by means of a
plea agreement. Due to the various pretrial deadlines set forth in the Court’s
November 10, 2004 Case Management Order, we are setting Tuesday, December
7, 2004, as the deadline for reaching a plea agreement with our office. Thereafter,
we will be completing our trial preparation.
(Gov’t Ex. 1; H.T. 12/18/12 (ECF No. 1067) at 48-49.) In response to this letter, Rivetti and
Bailor spoke on the telephone. (H.T. 12/18/12 (ECF No. 1067) at 60.) Bailor told Rivetti that
petitioner was adamant that he was innocent, was not interested in a plea agreement, and was
going to trial. (Id. at 61-62.)
8.
Rivetti spoke with Bailor at least five times between petitioner’s arraignment on
August 26, 2004 and the start of the first jury trial on May 9, 2005. (H.T. 12/18/12 (ECF No.
1067) at 50.) Rivetti and Bailor discussed, among other things, the evidence the government had
against petitioner and the possibility of a plea agreement between petitioner and the government.
(Id.) Bailor told Rivetti that petitioner was adamant that he was not guilty of the charges
contained in the superseding indictment and that he was going to trial. (Id. at 52.) Rivetti testified
that Bailor told him she discussed with petitioner the possibility of enhanced penalties due to his
prior drug conviction. (Id.) Rivetti and Bailor never discussed the terms of a possible plea
agreement, such as the government agreeing not to file a § 851 information and stipulations with
respect to drug quantity and petitioner’s role in the offense, because according to Bailor,
petitioner was adamant he was not guilty. (Id. at 53-54.) Rivetti did not take notes with respect to
his conversations with Bailor about petitioner because it was not his practice to take notes if he
learned that a defendant did not intend to change his plea to guilty. (Id. at 58-59.)
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9.
Rivetti prosecuted cases against defendants represented by Bailor prior to and
following petitioner’s case. (H.T. 12/18/12 (ECF No. 1067) at 51.) Petitioner’s case was the only
case in which Rivetti was the prosecutor and Bailor was the defense counsel that proceeded to
trial. (Id.) All the other cases ended in plea agreements between the government and the
defendants represented by Bailor. (Id.)
10.
From the time of arraignment on August 26, 2004 and the start of the first jury
trial on May 9, 2005, petitioner called Bailor on the telephone, left her voicemails, and sent her
faxes. (H.T. 12/18/12 (ECF No. 1067) at 5-6.) Although Bailor had petitioner’s mailing address,
she did not send him correspondence during this time period. (Id. at 6.)
11.
Bailor met with petitioner one time to discuss his case between the arraignment
on August 26, 2004 and the start of the first jury trial on May 9, 2005. (H.T. 12/18/12 (ECF No.
1067) at 3.) This in-person meeting occurred on a Sunday close to the Easter holiday in 2005 (the
“Sunday meeting”). (Id. at 7.) Bailor called petitioner that morning and told him to meet her in
an office building on Fifth Avenue in Pittsburgh, Pennsylvania. (Id. at 7-8.)
12.
Prior to the meeting, petitioner did not know much about his case or the evidence
the government had against him. (H.T. 12/18/12 (ECF No. 1067) at 9.) Bailor and petitioner
talked about case strategy during the meeting. (Id. at 22.) Petitioner told Bailor he was innocent
of the charges against him, but testified that at that meeting, he asked her to look into the
possibility of obtaining a plea deal from the government. (Id. at 9.) Bailor told petitioner that she
did not respond to his telephone calls and faxes because her mentally challenged sister deleted
his voicemails and there was no paper in her fax machine. (Id.) Bailor told petitioner that at a
maximum, he was facing a term of imprisonment of five years and that he would be given credit
for time spent on house arrest, meaning he would be incarcerated for eighteen months. (Id. at
10
15.) Petitioner testified that he did not know there was a potential difference in the sentence he
would receive if he pleaded guilty as opposed to going to trial on the charges against him. (H.T.
12/18/12 (ECF No. 1067) at 16.) Petitioner testified that Bailor never informed him that there
were plea negotiations or that there was an offer made by the government to enter into a plea
agreement. (Id. at 32.)
13.
The Sunday meeting was the only time petitioner and Bailor met outside the
courtroom to discuss his case. (H.T. 12/18/12 (ECF No. 1067) at 33.)
14.
Petitioner testified that at some point after the Sunday meeting, he telephoned
Bailor because she was supposed to follow up with him with respect to the possibility of
obtaining a plea deal from the government. (H.T. 12/18/12 (ECF No. 1067) at 12.)
15.
The next time petitioner heard from Bailor, she telephoned him to tell him he
needed to attend a hearing that day at the federal courthouse in Pittsburgh, Pennsylvania. (Id. at
12-13.) When petitioner arrived at the courthouse, Bailor escorted him into the building. (Id. at
13.) Following the conference, petitioner tried to speak with Bailor about his case, but she was in
a hurry to attend a different court proceeding and petitioner had to return to work. (Id. at 14.)
Bailor told petitioner she would “get back with [him].” (Id.)
16.
On May 2, 2005, twenty-seven months after the indictment was filed in this case,
the government filed the § 851 information that identified petitioner’s prior drug felony offense.
(ECF No. 456.) Petitioner testified that he never received a copy of the § 851 information from
Bailor and that she never discussed its consequences or application to his case. (H.T. 12/18/12
(ECF No. 1067) at 16.)
17.
Petitioner testified that the only information Bailor provided him with respect to
his prior conviction was that the government could not use the prior conviction against him to
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prove that he was a part of the conspiracy because it was unconstitutional and there was a
conflict of interest.3 (Id. at 17.)
18.
The government filed a § 851 information for each of the three defendants named
in the superseding indictment who went to trial, i.e., petitioner, Thompson, and Ferguson. (Id. at
47, 64.) The government did not file a § 851 information for the defendants named in the
3
At the hearing on December 18, 2012, a letter dated May 3, 2006 allegedly written by Bailor to
petitioner was entered into evidence. The letter provided, in pertinent part:
I didn’t file any post verdict motions because it would be a futile act. The real
battle comes with the presentence report. I intend to take the position: 1. That
your 1996 conviction was procured by fraud that it cannot be counted against you.
2. That youshould [sic] be given credit for the three years you spent on the
bracelet.
(Def. Ex. A.) The letter was allegedly signed by Bailor. (Id.) At the hearing and after the letter
was entered into evidence, the government questioned the letter’s authenticity, i.e., whether it
was written by Bailor or created by petitioner with a word processing program. (H.T. 12/18/12
(ECF No. 1067) at 66.) The government did not present an expert that called into question the
authenticity of the signature on the letter. Petitioner did not have the original letter sent to him by
Bailor because according to petitioner’s counsel, when petitioner was transferred from a prison
in Pennsylvania to a prison in Ohio, the Bureau of Prisons did not allow him to take his
belongings, including the original letter, with him.
Following the hearing, the court compared Bailor’s signature on the letter to her signature
on documents previously filed with the court. Without the benefit of a handwriting expert, the
court is unable to conclude whether the signature on the letter was forged. The first two
signatures below are from documents Bailor filed with the court. (ECF Nos. 188, 475.) The third
signature is from the letter dated May 3, 2006 that petitioner offered into evidence.
(ECF Nos. 188, 475; Def. Ex. A.)
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indictment or superseding indictment that pleaded guilty and had prior felony drug convictions.
(Id. at 45-47, 64.)
19.
Jury selection began for the first jury trial on May 9, 2005. The majority of the
government’s evidence with respect to petitioner being a knowing member of the charged
conspiracy concerned his involvement and interactions with Michael Good (“Good”)4, who at
the time in question in the superseding indictment was a drug dealer on the North Side of
Pittsburgh, Pennsylvania, and Gary Sloan (“Sloan”)5, another member of the charged conspiracy.
20.
Petitioner testified on his own behalf during that trial. (T.T. 6/16/2005 (ECF No.
592) at 6.) Petitioner testified with fervency denying that he was involved in the distribution of
heroin with Good and Sloan. His testimony directly contradicted the testimony of the other fact
witnesses presented by the government. He testified that he was “just another customer” of
Good, he did chores for Good to make money, and Good and Sloan did not engage in drug
transactions in his house. (Id. at 42, 50, 118-19.) Petitioner testified that in 2003, Good dropped
off a package at his house, but he did not know the contents of the package. (Id. at 51.) Petitioner
testified that he hoped the package contained heroin so he could use it to alleviate the pain
4
Good was charged in counts one, two, three, four, six, seven, nine, ten, twelve, thirteen, fifteen,
and seventeen of the indictment in which petitioner, Ferguson, and Thompson were also charged.
Good was not named in the superseding indictment because he pleaded guilty to counts one, six,
and nine of the indictment prior to the filing of the superseding indictment. The remaining counts
charged against him in the indictment were dismissed on motion by the government. (See ECF
No. 230.)
5
Sloan was charged in counts six, fourteen, and sixteen of the indictment in which petitioner,
Ferguson, Thompson, and Good were also charged. Sloan, like Good, was not named in the
superseding indictment because he pleaded guilty to count six of the indictment prior to the filing
of the superseding indictment. Counts fourteen and sixteen were dismissed against him. (See
ECF No. 235.)
13
caused by his toothache. (Id.) The package contained ten bundles of ten packets of heroin. (Id. at
101). Petitioner testified that he used some of the heroin to treat the pain caused by his toothache.
(T.T. 6/16/2005 (ECF No. 592) at 104.) Petitioner testified that at some point after Good dropped
off the package, Sloan showed up at petitioner’s house. (Id. at 103.) Petitioner told the jury that
Sloan knocked at his door, but he did not answer the door because he was getting high. (Id. at
106.) Petitioner testified that after that day, he began to use three to four bags of heroin per day.
(Id. at 108.) A week and a half later, Good asked him about the package and was furious to learn
that petitioner destroyed the remainder of the heroin when his fiancé washed the sock in which
he had hidden the heroin in the washing machine. (Id. at 110.) Good and Sloan both testified that
petitioner was holding the heroin for Good, was to supply it to Sloan, and that Sloan and Good
engaged in drug transactions in petitioner’s home.
21.
On June 30, 2005, the first jury trial ended in a mistrial due to juror misconduct.
(ECF No. 492.)
22.
At the hearing on December 18, 2012, petitioner testified that prior to the court
granting the motion for a mistrial and while the court was questioning the jurors with respect to
the motion for a mistrial, he asked Bailor to see if she could obtain a plea agreement for him with
the government. (H.T. 12/18/12 (ECF No. 1067) at 29.)
23.
There was no contact between petitioner and Bailor between the end of the first
jury trial and the beginning of jury selection for the second trial. (Id. at 28.)
24.
Jury selection for the second trial began on January 9, 2006. Again, the
government’s evidence against petitioner concerned, among other things, his interaction and
involvement with Good and Sloan. (T.T. 1/12/06 (ECF No. 740) at 34.) Petitioner testified on his
own behalf during the trial. (T.T. 2/14/06 (ECF No. 753) at 161.) Again, petitioner testified with
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fervency that he was not involved in the distribution of heroin with Good and Sloan, and his
testimony contradicted the testimony of the government witnesses that testified against him.
Petitioner testified that at the time period in issue, he was not friends with Good, he tried to stay
away from him, Good never put him in charge of his drug business, and Good and Sloan did not
engage in drug transactions at his house. (Id. at 193-200, 222, 234.) Again, petitioner testified
that Good came to his house, gave him a package, and asked him to hold it for him. (Id. at 24445.) Petitioner testified that he agreed to hold the package and give it back to Good. (Id. at 236)
Petitioner told the jury that he eventually opened the package, saw it contained heroin, and began
to use the heroin to treat the pain caused by his toothache. (Id. at 238-40.) Petitioner testified that
later that day, Sloan came to his house and knocked on his door. (T.T. 2/14/06 (ECF No. 753.) at
243.) Petitioner testified that prior to that day, Sloan came to his house to do work for petitioner
and his fiancé. (Id.) Petitioner testified that although he knew Sloan used heroin in the past, he
did not know why Sloan showed up at his door that day and he did not answer the door. (Id. at
243.) Petitioner told the jury that the heroin in the package he received from Good was destroyed
when his fiancé put a sock in which he had hidden the heroin in the washing machine, but he
continued to purchase and use heroin from people other than Good until he was arrested in this
case.6 (Id. at 199.) Sloan testified in direct contradiction to petitioner’s testimony. Sloan testified
that Good entrusted petitioner with heroin to sell to him and that petitioner acted as an
intermediary between Good and him. (T.T. 2/1/06 (ECF No. 745) at 39-43.) Sloan purchased
6
Matthews never admitted to the court that he received the package of heroin from Good to sell
to Sloan or permitted Good and Sloan to conduct drug transactions at his house. His submissions
to the court are consistent with his testimony from the first and second jury trials, which if
believed by the jury, could be sufficient to acquit him of the charges against him in the
superseding indictment.
15
about two bricks of heroin from Good every day during the six-month period prior to his arrest.
(T.T. 1/31/06 (ECF No. 744) at 180-82.) He went to the petitioner’s house to obtain the heroin
from petitioner between five to ten times. (Id. at 235.) Sloan would give money to petitioner and
petitioner would give him heroin, usually one to two bricks. (Id. at 236.)
25.
On March 2, 2006, the jury found petitioner, Ferguson, and Thompson guilty of
count one of the superseding indictment (conspiracy to distribute and possess with intent to
distribute 100 grams or more of heroin) and petitioner guilty of count sixteen of the superseding
indictment (distribution and possession with the intent to distribute a quantity of heroin on or
about January 11, 2003). (ECF No. 645.)
26.
On March 17, 2006, petitioner filed a motion to arrest verdict and motion for new
trial. (ECF No. 666.) In that motion, petitioner argued “the government did not meet its burden
of proof” and “[t]here was insufficient evidence of conspiracy.” (Id.) Petitioner argued: “Indeed
even the purchase of drugs and knowledge of conspiracy does not always make a defendant a coconspirator.” (Id.) The court denied petitioner’s motion as being untimely filed. (ECF No. 778.)
27.
On September 13, 2006, petitioner filed a motion to disqualify Bailor and for
appointment of new counsel. (ECF No. 782.) In the motion, petitioner argued he was denied
effective assistance of counsel because Bailor failed to seek a plea agreement from the
government on petitioner’s behalf and that he was “woefully uninformed of [e]nhancement of
penalty if found guilty of more than one count” and that he was not “advised of true
consequences and risks of going to trial.” (Id.)
28.
On September 18, 2006, Bailor filed a motion for leave to withdraw as counsel for
petitioner. (ECF No. 784.) In the motion, Bailor wrote, among other things:
16
On September 13, 2006, Defendant Daniel Keith Matthews filed a pro se motion
containing allegations of fact which the undersigned denies in their entirety.
…
Nonetheless it is clear that the attorney-client relationship is irretrievably broken
and the undersigned cannot function as Mr. Mathews’ attorney.
(Id.)
29.
On September 20, 2006, the court granted petitioner’s motion to disqualify
counsel and to appoint new counsel and Bailor’s motion for leave to withdraw as counsel. 7 (ECF
No. 787.)
30.
On October 2, 2005, Frick was appointed as petitioner’s counsel. (ECF No. 797.)
31.
Frick did not receive petitioner’s case file from Bailor when she was appointed as
his counsel. (H.T. 12/18/12 (ECF No. 1067) at 75.) There was no one to compile Bailor’s files at
that time because Bailor was unavailable due to illness. (Id.)
32.
In preparing for petitioner’s sentencing hearing, petitioner had “difficulty the
entire time grasping the fact that there was a mandatory minimum and that there wasn’t
something that we could do to get underneath the ten-year mandatory minimum.” (H.T. 12/18/12
(ECF No. 1067) at 78.) Frick explained that petitioner did not know what a § 851 information
was and that she had to explain it to him. (Id. at 79.)
33.
Petitioner told Frick he thought his conviction was improper because he was not a
member of the conspiracy. (Id. at 80.)
34.
On January 17, 2007, petitioner was sentenced to a term of imprisonment of 120
months at each of counts one and sixteen of the superseding indictment to be concurrently
7
The court did not make any findings about the allegations of ineffectiveness of counsel asserted
by petitioner in his motion to disqualify Bailor. The breakdown of communications between
petitioner and Bailor was the basis for the court’s decision.
17
served. (ECF No. 878.) One hundred and twenty months was the mandatory minimum term of
imprisonment to be imposed in light of the § 851 information filed by the government. See 21
U.S.C. § 841(b)(1)(B)(i).
35.
On appeal to the Third Circuit Court of Appeals, Frick, with petitioner’s input,
argued there was insufficient evidence to convict petitioner of membership in the conspiracy. (Id.
at 77.)
36.
Prior to petitioner’s evidentiary hearing with respect to his § 2255 motion, Bailor
passed away. (H.T. 12/18/12 (ECF No. 1067) at 67-68, 74.)
IV.
Conclusions of Law
1.
To support a claim that “counsel's assistance was so defective as to require
reversal of a conviction,” Strickland, 466 U.S. at 687, petitioner must make two showings. “[A]
habeas petitioner claiming a deprivation of his or her Sixth Amendment right to effective
assistance of counsel must show that: (1) counsel's performance was deficient; and (2) counsel's
deficient performance caused the petitioner prejudice.” Ross v. Dist. Att’y of the Cnty. of
Allegheny, 672 F.3d 198, 210 (3d Cir. 2012) (citing Strickland, 466 U.S. at 687).
2.
At the evidentiary hearing held on December 18, 2012, the court found that
Bailor’s performance was deficient under Strickland by reason of petitioner’s testimony which
could not be contradicted by Bailor who had died. Petitioner testified that Bailor failed to inform
petitioner about the implications of the government’s filing of a § 851 information and with
respect to there being an opportunity to have plea negotiations with the government. 8 (H.T.
8
The court’s determination that Bailor failed to advise petitioner of plea negotiation
opportunities with the government is called into question by Bailor’s motion for leave to
withdraw as counsel in which she denied petitioner’s allegations of fact in his motion to
disqualify her as counsel. (ECF No. 784.) The allegations of fact that Bailor denied include,
18
12/18/12 (ECF No. 1067) at 99, 101.) The issue presently before the court, therefore, is whether
petitioner was prejudiced by Bailor’s deficient performance.
3.
“With respect to prejudice, a challenger must demonstrate ‘a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient to undermine confidence in the
outcome.’” Id.
4.
Petitioner argues that he was prejudiced because but-for Bailor’s deficient
performance, he would have pleaded guilty, not gone to trial, and been sentenced to a five-year
instead of a ten-year term of imprisonment.
among others, that petitioner told her to seek a plea agreement on his behalf, she failed to seek a
plea agreement on his behalf, failed to inform petitioner of the risks of going to trial, and insisted
she could win petitioner’s case. (ECF No. 782.) Bailor’s denial that petitioner requested that she
seek a plea agreement on his behalf and that she failed to do so is in opposition to petitioner’s
testimony at the evidentiary hearing held with respect to his § 2255 motion and supports
Rivetti’s testimony that Bailor told him petitioner was adamant that he was not guilty and wanted
to go to trial. The parties, however, did not point to Bailor’s motion for leave to withdraw as
counsel in their § 2255 briefing, during the evidentiary hearing with respect to the issue presently
before the court, or in their supplemental briefs on the same issue. For the purposes of this
memorandum opinion, the court will assume Bailor’s representation of petitioner was deficient
under Strickland and will consider whether petitioner was prejudiced by Bailor’s assumed
deficiencies.
As discussed above, a petitioner must prove deficient representation and prejudice to be
entitled to relief under Strickland. Strickland, 466 U.S. at 687, 694. As both of these components
must be demonstrated to support a claim of ineffective assistance, the absence of one negates the
need to address the other, and the prejudice prong may be addressed first without the need to
decide whether a defense counsel’s performance was deficient. Id. at 697 (“If it is easier to
dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we
expect will often be so, that course should be followed.”) If prejudice is not shown, the court
would not have to consider whether Bailor’s representation of petitioner was deficient.
19
5.
In Lafler v. Cooper, 132 S.Ct. 1376, 1385 (2012), the Supreme Court of the
United States held that when a defendant asserts he or she was prejudiced by pleading not guilty
and having to stand trial due to his counsel’s ineffective assistance, he or she
must show that but for the ineffective advice of counsel there is a reasonable
probability that the plea offer would have been presented to the court ( i.e., that
the defendant would have accepted the plea and the prosecution would not have
withdrawn it in light of intervening circumstances), that the court would have
accepted its terms, and that the conviction or sentence, or both, under the offer's
terms would have been less severe than under the judgment and sentence that in
fact were imposed.
Id. accord Wheeler v. Rozum, 410 F. App’x 453, 458 (3d Cir. 2010); United States v. Day, 969
F.2d 39, 45 (3d Cir. 1992); United States ex rel. Caurso v. Zelinsky, 689 F.2d 435, 444 (3d Cir.
1982); see also Paez-Ortiz v. United States, 200 F. App’x 946, 947-48 (11th Cir. 2006) (per
curiam) (“Where a defendant challenges a not-guilty plea based on ineffective assistance of
counsel, he ‘must show that there is a reasonable probability that but for counsel’s errors, he
would have pleaded guilty and would not have insisted on going to trial.’”).
6.
As instructed by Lafler, the court must decide, among other things, whether
petitioner met his burden to prove that there is a reasonable probability that but-for Bailor’s
deficiencies, he would have pleaded guilty to the charges contained in the superseding
indictment.
7.
Petitioner argues that the disparity in sentences alone, i.e., a mandatory five-year
term of imprisonment without the § 851 information versus a mandatory ten-year term of
imprisonment with the § 851 information, supports a finding of prejudice in this case under
Strickland.
8.
In United States v. Nigro, 419 F. App’x 244, 247 (3d Cir. 2011), the Third Circuit
Court of Appeals noted that “‘a defendant has the right to make a reasonably informed decision
20
whether to accept a plea offer,’ and that ‘[k]nowledge of the comparative sentence exposure
between standing trial and accepting a plea offer will often be crucial to the decision whether to
plead guilty.’” Nigro, 419 F. App’x at 247 (quoting Day, 969 F.2d at 43). The court in Nigro
acknowledged, however, that a court may find prejudice was not shown based upon the
determination that a petitioner’s testimony – that but-for counsel’s errors he would have pleaded
guilty – was not credible. Id. at 248.
9.
Here, the government argues that the disparity in sentences is not by itself
sufficient to support a finding that there is a reasonable probability that petitioner would have
pleaded guilty but-for Bailor’s deficiencies. The government argues that throughout pretrial
proceedings, both jury trials, his post-trial motions, and the evidentiary hearing held on
December 18, 2012, petitioner professed he was not guilty of the conspiracy charged in the
superseding indictment. The government argues that in light of petitioner’s consistent
protestations of innocence, the court cannot find there is a reasonable probability that even if
petitioner knew about the opportunity to enter into a plea agreement with the government and the
possibility and consequences of the government filing a § 851 information, he would have
pleaded guilty to the charges against him.
10.
As the court noted at the December 18, 2012 hearing, petitioner contends that he
was not a part of the conspiracy charged in the superseding indictment. Petitioner conceded that
he told Bailor he was innocent of the charges filed against him in this case. Petitioner twice
fervently testified in opposition to the charges against him. If petitioner’s testimony at both jury
trials that he received a package from Good and after opening it used some of the heroin in the
package and that Sloan and Good did not engage in drug transactions at his house had been
21
credited by the jury, he could have been acquitted.9 In other words, his testimony was consistent
with his plea of not guilty and contradicted by the evidence of guilt adduced by the government.
Although as counsel for petitioner noted at the December 18, 2012 hearing, petitioner never
testified that he was innocent of all crimes, his testimony supported his belief that he was not
guilty of the crimes charged against him in the superseding indictment. In petitioner’s post-trial
motions and his appeal to the Third Circuit Court of Appeals, he argued the government did not
present evidence sufficient for a reasonable jury to convict him beyond a reasonable doubt.
Consistent with his testimony and submissions to the court, petitioner told Frick that he was not a
member of the conspiracy charged in the superseding indictment.
11.
Under these circumstances, defendant failed to make a showing that there is a
reasonable probability that but-for Bailor’s ineffective assistance, he would have pleaded guilty
to the charges against him in the superseding indictment. The court does not find petitioner’s
9
To the extent that petitioner’s testimony from both jury trials could be characterized as
establishing a mere buyer-seller relationship with Good, that testimony, if believed by the jury,
would be sufficient to acquit him. In the court’s final charge at the conclusion of the second trial,
it instructed the jury:
A simple buyer/seller relationship, without any prior or contemporaneous
understanding beyond the sales agreement itself, is insufficient to establish that
the buyer was a member of the seller's conspiracy. If the only agreement that the
Government has proven involving a Defendant is that he agreed to buy heroin or
crack cocaine from Michael Good, even if there is evidence that the Defendant
intended to distribute the drug to others, then the Government has failed to prove
that the Defendant was a member of the charged conspiracy.
(T.T. 2/21/13 (ECF No. 803) at 34); see United States v. Gibbs, 190 F.3d 188, 198 (3d Cir. 1999)
(“It is well-settled that a simple buyer-seller relationship, without any prior or contemporaneous
understanding beyond the sales agreement itself, is insufficient to establish that the buyer was a
member of the seller's conspiracy.”).
22
testimony that but-for Bailor’s errors he would have pleaded guilty credible in light of his
testimony and filings throughout the proceedings before this court, which evidence his intent not
to plead guilty to the charges against him. Petitioner has never admitted that he agreed with the
testimony of Good and Sloan. In other words, petitioner still continues to assert he is not guilty.
12.
As discussed above, petitioner asserts that despite arguing that he is not guilty of
the conspiracy charged in the indictment, he met his burden to show there is a reasonable
probability that he would have pleaded guilty because if Bailor negotiated a plea agreement with
the government on his behalf, the government would not have filed a § 851 information, and he
would have received the five-year mandatory minimum term of imprisonment instead of a tenyear mandatory minimum term of imprisonment. Petitioner cites three decisions in support of
this argument: Lafler, United States v. Otero, 502 F.3d 331, 337 (3d Cir. 2007), and Sawyer v.
United States, Nos. 11-1224 and 08-271, 2011 WL 6318029 (M.D. Fla. Dec. 15, 2011). These
decisions, however, are distinguishable from the present case.
13.
In Lafler, Cooper was charged under Michigan law with “assault with intent to
murder, possession of a firearm by a felon, possession of a firearm in the commission of a
felony, misdemeanor possession of marijuana, and for being a habitual offender.” Lafler, 132
S.Ct. at 1383. The government twice in that case “offered to dismiss two of the charges and to
recommend a sentence of 51 to 85 months for the other two, in exchange for a guilty plea.” Id.
The Court noted that “[i]n communication with the court [Cooper] admitted guilt and expressed a
willingness to accept the offer.” Id. Cooper rejected both government offers because his counsel
told him the government would be unable to prove intent to murder because Cooper shot his
victim below the waist. Id. On the first day of trial, the government offered Cooper a
“significantly less favorable plea deal.” Lafler, 132 S.Ct. at 1383. Cooper again rejected the
23
government’s plea offer and proceeded to trial. Id. The jury convicted Cooper on all counts. Id.
At sentencing, Cooper received a mandatory minimum term of imprisonment of 185 to 360
months. Id.
14.
The Court of Appeals for the Sixth Circuit found that Cooper’s counsel was
deficient and that Cooper was prejudiced because he “‘lost out on an opportunity to plead guilty
and receive the lower sentence that was offered to him.’” Lafler, 132 S.Ct. at 1384 (quoting
Cooper v. Lafler, 376 F. App’x 563, 573 (6th Cir. 2010)). On appeal to the Supreme Court of the
United States, the issue before the Court was “how to apply Strickland’s prejudice test where
ineffective assistance results in a rejection of the plea offer and the defendant is convicted at the
ensuing trial.” Id. at 1384.
15.
As discussed above, the Court held that where a defendant argues that his
counsel’s deficient representation caused him to reject a plea offer, to prove prejudice under
Strickland, he or she must show that there is a reasonable probability that:
(1)
(2)
(3)
(4)
he or she would have accepted the plea;
the prosecution would not have withdrawn it in light of intervening circumstances;
the court would have accepted its terms;
the conviction or sentence would have been less severe than under the judgment and
sentence that in fact were imposed.
Lafler, 132 S.Ct. at 1385.
16.
The Court found Cooper was prejudiced by his counsel’s deficient representation
during the plea bargaining process, explaining:
In the instant case respondent went to trial rather than accept a plea deal, and it is
conceded this was the result of ineffective assistance during the plea negotiation
process. Respondent received a more severe sentence at trial, one 3 1/2 times
more severe than he likely would have received by pleading guilty. Far from
curing the error, the trial caused the injury from the error. Even if the trial itself is
free from constitutional flaw, the defendant who goes to trial instead of taking a
24
more favorable plea may be prejudiced from either a conviction on more serious
counts or the imposition of a more severe sentence.
Lafler, 132 S.Ct. 1386.
17.
Petitioner cites Lafler in support of his position that the difference in the sentence
he received, i.e., a ten-year term of imprisonment, and the sentence he would have received had
he entered into a plea agreement with the government that prohibited the government from filing
a § 851 information, i.e., a five-year term of imprisonment, supports a finding that he was
prejudiced by Bailor’s deficient representation. Lafler and the present case, however, are
distinguishable.
18.
In Lafler, the Court noted that prior to going to trial, Cooper acknowledged his
guilt and willingness to accept the government’s plea offers in communications to the court. The
Court, therefore, did not need to consider whether Cooper would have accepted the plea
agreement and pleaded guilty under the facts presented by that case. Here, however, prior to trial,
during both jury trials, and in post-trial proceedings, petitioner testified contrary to the
government’s witnesses and argued he is not guilty of the crimes charged in the superseding
indictment. The court must consider whether petitioner met his burden to show that there is a
reasonable probability that he would have accepted a plea offer if presented by the government.
In light of petitioner’s continual protestations that he was not guilty of the crimes charged in the
superseding indictment, the court cannot find that petitioner would have pleaded guilty and
accepted any plea offer made by the government.
19.
In Otero, the Third Circuit Court of Appeals concluded that the trial counsel’s
representation of Demetrio Otero (“Otero”) was deficient for failing to object to a 16-level
enhancement in his presentence investigation report and that he was prejudiced by the error.
25
Otero, 502 F.3d at 336, 337. The court noted that “[p]rejudice is established when, but for
counsel’s error, there was a reasonable probability that the outcome of the proceeding would
have been different.” Id. at 337 (emphasis added). The court explained:
The prejudice prong is satisfied “when a deficiency by counsel resulted in a
specific, demonstrable enhancement in sentencing-such as an automatic increase
for a ‘career’ offender or an enhancement for use of a handgun during a felonywhich would not have occurred but for counsel's error.”
(Id.) (quoting United States v. Franks, 230 F.3d 811, 815 (5th Cir. 2000)). Petitioner argues that
Otero stands for the proposition that “[a]n increased sentence that is tied to trial counsel’s
deficient performance constitutes prejudice.” (ECF No. 1063 at 2.) This reading of Otero is too
narrow. Otero does not stand for the proposition that provided that a significantly more favorable
outcome is possible, the court must find a petitioner was prejudiced by his counsel’s deficient
representation. As the court in Otero acknowledged, there must be a “reasonable probability”
that the more favorable outcome would have occurred. Otero, 502 F.3d at 337. Petitioner’s
reading of the Otero ignores the reasonable probability standard. In that case, the court found that
the case law supported an argument that the 16-level enhancement was improper and that if
counsel would have raised and won that argument, Otero’s sentencing guideline range would
have been significantly less. Id. Under those circumstances, there was a reasonable probability
that but-for counsel’s error, Otero would have received a more favorable outcome. In this case,
petitioner argues he would have received a reduced sentence but-for Bailor’s errors. In light of
his trial testimony that was contrary to guilt and his continuing protestations of non-guilt, the
court does not find his testimony that he would have pleaded guilty to be credible. Accordingly,
he did not meet his burden to prove that there is a reasonable probability that but-for Bailor’s
26
errors, he would have pleaded guilty and received a more favorable sentence. Petitioner is,
therefore, not entitled to relief.
20.
Petitioner cites Sawyer in support of his position that the disparity in sentences
provides a basis for the court to find he was prejudiced by Bailor’s ineffective assistance. In
Sawyer, the petitioner, Daniel Sawyer (“Sawyer”), argued that his counsel was deficient for
failing to advise him about a plea agreement offer. Sawyer, 2011 WL 6318029, at *5. The court
agreed with Sawyer and concluded that Sawyer’s counsel’s representation of him was deficient
because he failed to advise Sawyer with respect to “the risks associated with proceeding to trial
versus pleading guilty, including the potential § 851 enhancement and the possible sentence.”10
Id. The court credited Sawyer’s testimony11 that had he been properly advised of the risks
associated with going to trial, he would have pleaded guilty. Id. The government argued that
based upon Sawyer’s testimony at the evidentiary hearing that he was not guilty of the
conspiracy charged in the indictment, Sawyer would not have pleaded guilty if presented with a
plea offer, and, therefore, Sawyer could not show that he was prejudiced by his counsel’s
ineffectiveness. Id. at *6. The court rejected this argument, finding that Sawyer’s testimony with
respect to his belief that he was not guilty of the conspiracy was “based upon representations of
his former counsel.” Id. In moving for a judgment of acquittal, Sawyer’s former counsel argued
that the government failed to prove that Sawyer was a knowing-member of the charged
10
Similar to the case at hand, Sawyer’s trial counsel passed away at some point prior to the
evidentiary hearing with respect to his § 2255 motion. Sawyer, 2011 WL 6318029, at *1.
11
Sawyer’s testimony concerning representations made to him by his trial counsel, i.e., that the
government did not have a case against him and that he would be going home, was corroborated
by the testimony of his sister, Monica Elias, which the court credited. Sawyer, 2011 WL
6318029, at *2-3.
27
conspiracy. Sawyer, 2011 WL 6318029, at *6. Sawyer’s counsel acknowledged that the
government could have charged Sawyer with a number of crimes, including “attempting to
purchase cocaine...[and] attempting to traffic in cocaine[,]” but that the evidence presented did
not prove beyond a reasonable doubt that he was a member of the conspiracy charged in the
indictment. Id. The court found Sawyer’s testimony that he was not a member of the conspiracy
charged in the indictment was “understandable” in light of his counsel’s argument with respect to
the judgment of acquittal. Id. In rejecting the government’s argument, the court concluded
Sawyer was prejudiced by his counsel’s deficient representation based upon his testimony that
“had he been properly counseled regarding the law of conspiracy and the plea agreement, he
would have plead guilty.” Id.
21.
Like Lafler, Sawyer is distinguishable from the present case. In Sawyer, the court
credited Sawyer’s testimony that but-for his counsel’s errors, he would have pleaded guilty to the
charges against him. Sawyer, 2011 WL 6318029, at *6. The court acknowledged that Sawyer
testified at his trial, but did not describe his testimony or place any emphasis on it. The only
evidence of Sawyer professing his non-guilt of the charges against him that was relied on by the
government was the testimony he offered at the hearing with respect to his § 2255 motion. Id. In
this case, the court finds that petitioner’s testimony that he would have pleaded guilty but-for
Bailor’s ineffective assistance is not credible in light of his fervent testimony at both jury trials
which, if believed by the jury, would have been sufficient to acquit him and his continual
assertions that he was not guilty of the crimes charged in the superseding indictment before and
after both jury trials, on appeal to the court of appeals, and in his § 2255 motion.
22.
During the evidentiary hearing on December 18, 2012, petitioner testified that he
told Bailor he was not guilty of the charges in the superseding indictment because he “didn’t
28
really know what a conspiracy was.” (H.T. 12/18/12 (ECF No. 1067) at 25.) He explained: “I
didn’t ask for any drugs. It got dropped off on me. I figured conspiracy was something that you
had planned to do. I didn’t plan to do that.” (Id.) He, however, did not repudiate his trial
testimony. He testified that he did not hold drugs for Good to sell to Sloan and did not permit
Good and Sloan to engage in drug transactions in his house. The jury, however, credited the
testimony of Good and Sloan and found petitioner guilty. Under those circumstances, the court
cannot ignore petitioner’s testimony which if believed by the jury could have resulted in his
acquittal and his consistent protestations that he was not guilty of the crimes charged in the
superseding indictment. His testimony at both trials accounts for petitioner maintaining that he
was not guilty of the crimes charged in the superseding indictment throughout the appeal process
when Frick was his counsel and in his motion to vacate, set aside, or correct sentence by a person
in federal custody. Under these circumstances, the court concludes that petitioner failed to make
a showing that there is a reasonable probability that, but-for Bailor’s errors, he would have
pleaded guilty to the charges against him in exchange for a reduced sentence. Petitioner,
therefore, failed to show that he was prejudiced by Bailor’s deficient performance. Petitioner’s
motion to vacate, set aside, or correct sentence by a person in federal custody must, therefore, be
denied.
V. Certificate of Appealability
When a district court issues a final order denying a § 2255 petition, the court must also
make a determination concerning whether a certificate of appealability (“COA”) should issue or
the clerk of the court of appeals shall remand the case to the district court for a prompt
determination as to whether a certificate should issue. See 3rd Cir. LAR. 22.2 (2002). Based
upon the motion and files and records of the case, and for the reasons set forth herein, the court
29
finds that petitioner has not shown a substantial denial of a constitutional right. Therefore, a
COA should not issue.
VI. Order
AND NOW, this 12th day of April, 2013, upon consideration of petitioner’s motion to
vacate, set aside, or correct sentence by a person in federal custody, the government’s response
in opposition, the evidence presented at the hearing on December 18, 2012, and the supplemental
briefs submitted by the parties, IT IS HEREBY ORDERED that petitioner’s motion to vacate, set
aside, or correct sentence by a person in federal custody pursuant to 28 U.S.C. § (ECF No. 953)
is DENIED in its entirety.
IT IS FURTHER ORDERED that no certificate of appealability should issue.
By the court:
/s/ JOY FLOWERS CONTI
Joy Flowers Conti
United States District Judge
30
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