HARDY v. USA

Filing 1

MEMORANDUM OPINION as to KELLY HARDY indicating that, based on the reasons stated within, Defendant's Motion to Vacate under 28 U.S.C. 2255 ( 101 at CR 09-151) is denied. An appropriate Order follows. Signed by Judge Nora Barry Fischer on 7/23/13. (jg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA,
v.
KELLY HARDY,
Defendant.

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Criminal No. 09-151
Civil No. 13-355
Judge Nora Barry Fischer

MEMORANDUM OPINION
I.

INTRODUCTION
This matter is before the Court on a Motion to Vacate, Set Aside or Correct Sentence

under 28 U.S.C. § 2255 (“Motion”) filed by pro se Defendant Kelly Hardy (“Defendant” or
“Hardy”). (Docket No. 101). Defendant seeks to vacate his convictions for possession, receipt
and transportation of child pornography and the sentence of 360 months imposed by this Court
on October 4, 2010 because he alleges that he was provided ineffective assistance of counsel
prior to the entry of his guilty plea to all counts. (Docket No. 104). Defendant claims that his
counsel induced him to plead guilty by promising him that a sentence of ten years’ incarceration
would be imposed, thus rendering his guilty pleas unknowing and involuntary. (Id. at 5). Hardy
further suggests that his counsel was ineffective for erroneously advising him that significant
sentencing enhancements would not apply in his case and for underestimating the advisory
guidelines range as 151-188 months prior to his guilty pleas rather than the range of 360 to life
which was ultimately calculated by the Court and from which he was sentenced to 360 months.
(Id. at 8-9). The Government opposes Defendant’s motion and argues that Defendant’s claims of
ineffective assistance are not credibly established in light of the Court’s comprehensive change
of plea colloquy. (Docket No. 106). The Government points out that Defendant asserted during
this proceeding that he was not made any promises about the length of the sentence which was
1

imposed by the Court and further that he fully understood that the advisory guidelines range
articulated by counsel at the proceeding was merely an estimate and that it was the Court’s role
to ultimately calculate the advisory guidelines range. (Id. at 2). The Government also maintains
that Defendant was not prejudiced by his trial counsel’s representation given the overwhelming
evidence of Defendant’s guilt and his expressed intent to plead guilty to the charges. (Id.). Upon
consideration of the parties’ positions and the filings of record, for the following reasons,
Defendant’s Motion [101] is DENIED.
II.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On May 5, 2009, a federal grand jury returned a three-count indictment against
Defendant, charging him with the Transportation of Child Pornography, in violation of 18 U.S.C.
§ 2252(a)(1) (Count One), Receipt of Child Pornography, in violation of 18 U.S.C. § 2252(a)(2)
(Count Two) for conduct occurring on or about May 1, 2008 to on or about April 16, 2009 and
Possession of Child Pornography in violation of 18 U.S.C. § 2252(a)(4)(B) (Count Three) on or
about April 16, 2009. (Docket No. 11). The potential penalties at Counts One and Two included
a statutory mandatory minimum sentence of not less than five years’ incarceration and up to
twenty years, see 18 U.S.C. § 2252(b)(1), while Defendant faced a sentence up to ten years at
Count Three. see 18 U.S.C. § 2252(b)(2). Defendant did not have any prior criminal history. He
was represented by Assistant Public Defender W. Penn Hackney, Esquire, throughout the
proceedings before the District Court.1 Assistant United States Attorney Craig Haller prosecuted
the case on behalf of the Government.

1

W. Penn Hackney graduated from Cornell Law School in 1978 and was admitted to practice in
Pennsylvania, the U.S. District Court of the Western District of Pennsylvania and the U.S. Third Circuit Court of
Appeals in 1979 and then the Supreme Court in 1985. Due to his extensive experience within the Federal Public
Defender’s Office, Hackney has earned the title of Senior Litigation Counsel.

2

Initially, Defendant pled not guilty to the charges on May 14, 2009. (Docket No. 14). At
Defendant’s request, the Court held a change of plea hearing on October 22, 2009 during which
Defendant pled guilty to all three counts against him. (Docket No. 26). At the time of his guilty
plea, Defendant was 39 years old, had attained an Associate’s degree in computer science and
was working towards a Bachelor’s degree. (Docket No. 50 at 3-4). At his change of plea hearing,
he claimed no difficulty communicating with his attorney or the Court. (Id. at 4-5). He also
averred that he was not under the influence of drugs or alcohol nor was he under the ongoing
care of a physician, therapist, psychologist or psychiatrist for any ailments which would have
affected his ability to understand the proceedings. (Id. at 5-6). Defendant stated that he fully
understood the proceedings, and his counsel also believed that Defendant was competent to
plead. (Id. at 6-7). The Court concluded that Defendant was competent to meaningfully
participate in the proceeding based on his responses to the Court’s questions and demeanor in the
courtroom. (Id. at 7). By all accounts, Defendant presented himself as a sophisticated individual
who was more than capable of participating in the proceedings and understanding them.
During this change of plea proceeding, Defendant stated that he was satisfied with the
representation provided by Mr. Hackney and that he understood the charges against him. (Id. at
7-8). Following the Court’s recitation of the constitutional rights and protections that would be
waived if he pled guilty to the charges (Id. at 10-14), the Court outlined the potential sentence
which could be imposed at each count. (Id. at 14). In response, Defendant acknowledged that he
understood that he faced significant statutory penalties if he pled guilty to the charges, including
mandatory minimum sentences of imprisonment of five years and up to twenty years for each of
Counts One and Two and a sentence of up to ten years at Count Three. (Id. at 14-15). He further

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recognized that restitution was potentially owed and acknowledged the consequences of
violating the terms of supervised release. (Id. at 15-16).
The Court next thoroughly advised Defendant how his sentence would be determined.
(Id. at 16-17). Defendant responded that he understood that although the Sentencing Guidelines
would be considered by the Court, they were only advisory and the Court had discretion to
sentence him to a term of imprisonment outside of the advisory guidelines range so long as such
sentence was within the statutory minimum and maximum penalties. (Id. at 17). Defendant
acknowledged that he discussed the potential effect of the Sentencing Guidelines with his
counsel and understood that a sentence would not be imposed until after the Court had an
opportunity to read and analyze the Presentence Investigation Report (“PIR”), which had yet to
be prepared. (Id. at 18-19). AUSA Haller informed the Court of his position as to the advisory
guidelines range, stating that he believed that Defendant’s adjusted offense level would be 34,
and that the advisory guidelines range would be 151-188 months. (Id. at 19). Defense counsel
concurred with the Government’s calculation. (Id.). The Court then directly questioned
Defendant about the parties’ estimates, “[d]o you understand that I’m not bound by any
recommendation of a sentence either Mr. Hackney and/or the government’s attorney may have
suggested to you, and I can sentence you up to the maximum sentence permitted by the statute.”
(Id. at 20). Without hesitation, Defendant affirmatively responded that he understood. (Id.).
After the AUSA summarized each of the elements of the offenses that it would have been
required to prove beyond a reasonable doubt at trial, (Id. at 21-22), the Assistant U.S. Attorney
summarized the Government’s evidence against Defendant as follows:
During January of 2009, ICE agents in Mississippi executed a search
warrant at the residence of a man who possessed and distributed child
pornography. Upon reviewing the man’s computer, agents located chats the man
had with Mr. Hardy. The chats were very sexually explicit and included
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statements by Defendant about breaking into homes, raping children, killing them,
and making their parents watch. The evidence on the computer also revealed that
Mr. Hardy had sent and received child pornography files.
During the investigation, the National Center for Missing and Exploited
Children was consulted, and it was determined that a complaint had been made
about Mr. Hardy by the mother of a twelve-year-old girl in Kentucky in 2004. The
investigating ICE agents eventually tracked Mr. Hardy to his residence in New
Castle, Pennsylvania.
On April 16th, 2009, a federal search warrant was served at Mr. Hardy’s
residence. A tremendous amount of computer and electronic equipment was
seized, including 14 desktop computers, 3 laptop computers, 60 hard drives, over
4,000 compact disks and digital versatile disks, over 3,000 floppy disks, eight
thumb drives, 36 zip disks, two camcorders, one Palm Pilot, one digital camera,
one 35-milimeter camera, two webcams, one cellphone and over 800 videotapes.
Also seized were thirty-three pairs of soiled young girls’ underwear.
During an interview on April 16, 2009, Mr. Hardy admitted that he
acquired the underwear by taking them from houses in which he was invited by
friends or acquaintances. He would look for the underwear, and then, he would
subsequently take the underwear and ejaculate into them. Mr. Hardy also admitted
transporting, receiving and possessing child pornography via computers and
internet.
Forensic analysis of the computers confirmed Mr. Hardy possessed
thousands of images of child pornography, transported many images to others via
computer and received many images from others via computer. Many of the
images are of young children engaged in sexual acts.
(Id. at 22-24). Defendant did not disagree with the facts presented, but only wished to clarify that
the internet chats were about fantasies, not about actual events and that most of the pairs of girls’
underwear seized by the agents was new and not soiled. (Id. at 24-25).
Defendant then confirmed that his act of pleading guilty was voluntary, and assured the
Court that no one had made any promise, prediction or suggestion other than the potential
advisory guidelines range, as to what sentence would be imposed by the Court at the time of
sentencing. (Id. at 26-27). Defendant stated that he had not been instructed by anyone to respond
untruthfully to any question concerning a promised sentence, and that he still wished to plead
guilty to all the charges. (Id. at 27). He again acknowledged that his guilty pleas were voluntary
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and the product of his own free will. (Id. at 27-28). Immediately before entering his guilty pleas,
Defendant reaffirmed that he was satisfied with the advice and representation of his counsel,
Hackney (Id. at 28). The Court then accepted Defendant’s guilty plea, stating that:
Mr. Hardy, since you are competent, since you know and understand your right to
a trial, and the consequences of giving up that right, since you know the potential
possible penalty, and since you are voluntarily pleading guilty, this Court now
accepts your guilty plea, finds you guilty of the offenses for which you are
pleading guilty, and enters a judgment of guilty on your pleas.
(Id. at 29). The Court ordered the Probation Office to prepare a PIR and specifically advised
Defendant that he would have the opportunity to present additional information regarding the
PIR, “as well as other matters you [Defendant] feel you should put in front of this court.” (Id. at
30). The PIR was produced by the Probation Office and distributed to the parties and the Court
on December 30, 2009. The Probation Office calculated the advisory guidelines range in
Defendant’s case as 360 months to life due to several enhancements, well in excess of the
proffered range at Defendant’s change of plea hearing.
Following the completion of the PIR, the Government submitted its Position with
Respect to the Sentencing Factors on January 27, 2010 (Docket No. 30), and Defendant
submitted his position on February 5, 2010. (Docket No. 34). Defendant objected to the
Probation Office’s application of two separate five-level enhancements (Guideline §§
2G2.2(b)(3)(B)2 and § 2G2.2(b)(5)3) on the grounds that these enhancements had not been
included with the Government’s initial estimation of the advisory guidelines. (Docket No. 34).
The Court issued its Tentative Findings and Rulings on April 19, 2010, overruling Defendant’s
2

§ 2G2.2(b)(3)(B) provides a five level enhancement if the offense involved “[d]istribution for the receipt,
or expectation of receipt, of a thing of value, but not for pecuniary gain.”
3
§ 2G2.2(b)(5) provides a five level enhancement “[i]f the defendant engaged in a pattern of activity
involving the sexual abuse or exploitation of a minor.” Further, § 2G2.2, Application Note 1 explains that a
“‘[p]attern of activity involving the sexual abuse or exploitation of a minor’ means any combination of two or more
separate instances of the sexual abuse or sexual exploitation of a minor by the defendant, whether or not the abuse or
exploitation (A) occurred during the course of the offense; (B) involved the same minor; or (C) resulted in a
conviction for such conduct.”

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objections to the applicability of said enhancements and adopting the Probation Office’s
calculation of the advisory guidelines range of 360 to life imprisonment. (Docket No. 54). First,
the Court concluded that the enhancement under Guideline § 2G2.2(b)(3)(B) for distributing
child pornography in exchange for a “thing of value” properly applied because Defendant traded
child pornography with other individuals in exchange for more child pornography. (Id. at 6).
Second, the Court determined that Defendant’s past sexual relationship with a female, beginning
when she was fourteen years old, constituted a pattern of abusive conduct under Guideline §
2G2.2(b)(5), because even though such relationship was allegedly consensual, the sexual
relationship violated 18 U.S.C. § 2243 for sexual abuse of a minor. (Id. at 7-8).
The Court also overruled Defendant’s objection that the Probation Office’s recommended
advisory guideline range of 360 to life should be disregarded in favor of the Government’s initial
estimate of 151-188 months proffered at the change of plea hearing. (Id. at 5-6). In so holding,
the Court noted that Defendant had not entered into a plea agreement which would have bound
the Court to the parties’ proffered initial positions. (Id.). Further, the Court found that during the
change of plea hearing, Defendant affirmatively acknowledged all of the following:
(1) that the Court would not be able to determine the advisory guidelines range until
after the PIR was completed; (2) that the Court was not bound by any
recommendation of a sentence that either the Government, through its counsel, or
his counsel had suggested to him; and, (3) that the Court could sentence him up to
the maximum sentence permitted by statute, i.e., twenty years at Counts 1 and 2,
and five years at Count 3.
(Id. at 5-7 (citing Docket No. 50 at 13-19, 26-28)).
The Court tentatively calculated the advisory guidelines range with the two challenged
five-level enhancements included. (Docket No. 54 at 9). Thus, the Court found that Defendant’s
total offense level was 42, which along with a criminal history category of I, resulted in an

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advisory guideline range of 360 months’ imprisonment to life. (Id. at 10-11).4 Thereafter,
Defendant’s sentencing proceeding was continued multiple times and was eventually held over a
period of two separate sessions. The parties’ positions were exhaustively briefed in sentencing
memoranda. (Docket Nos. 30, 34, 37). Defense counsel Hackney dutifully advocated that a
sentence of ten years’ incarceration was appropriate while AUSA Haller recommended that a
guidelines sentence of at least 360 months’ incarceration be imposed. At the first hearing on
August 12, 2010, Defendant answered affirmatively that he had read the PIR, the addendum, the
Court’s Tentative Findings and Rulings, and the Amended Tentative Findings and Rulings.
(Docket No. 87 at 5-6). Additionally, Defendant stated that he had reviewed and discussed those
documents with counsel, and that he had no further questions for the Court at that time. (Id. at 67).5
At the second session of the sentencing hearing on October 4, 2010, Defendant stated that
he had read the Court’s Tentative Findings and Rulings and acknowledged that he also read the
Court’s Supplemental Tentative Findings which contained the Court’s factual findings as to the
evidence presented at the prior hearing. (Docket No. 86 at 6-7). Defendant further answered that
he had spoken with counsel about any concerns regarding these documents and that he had no
questions for the Court at that time. (Id. at 7). Counsel for the parties then provided oral
argument as to the potential sentence to be imposed. When given the opportunity by the Court to
4

As the parties litigated these sentencing issues as to the advisory guidelines factors, they were also
litigating the issue of restitution owed to the victims, an issue which involved substantial briefing by the parties and
counsel for the victim, “Amy,” as well as a hearing on March 15, 2010. (Docket No. 49). The Court issued a
decision on the restitution issue on the same date it issued its Tentative Findings and Rulings concluding that
restitution was due to “Amy” but required further information concerning the damages proximately caused to
“Amy” by Defendant’s criminal possession, receipt and distribution of child pornography. (Docket No. 53).
Ultimately, Defendant reached a stipulation with “Amy”’s counsel and the Court ordered that $1,000 in restitution
of be paid to “Amy”. (Docket No. 64).
5
The Court then accepted evidence from the parties, including the testimony of Defendant’s expert medical
witness, Dr. Jolie Brams. (Docket No. 87). The sentencing was then continued until September 28, 2010 to allow the
Court time to review the testimony of Dr. Brams. (Docket No. 68). Defendant moved to continue the sentencing
hearing once more, which was granted by the Court and re-set for October 4, 2010. (Docket Nos. 72, 73, 74).

8

make a statement prior to sentencing, Defendant expressed regret for his actions, but did not
address any issue regarding his plea or possible sentence. (Id. at 46-47). After carefully
considering the parties’ positions and weighing all of the § 3553(a) factors, the Court imposed a
sentence of 240 months’ imprisonment at Count One with a consecutive term of 120 months’ for
Count Two, for a total term of 360 months’ imprisonment, along with a life-term of supervised
release. (Id. at 58). No sentence was imposed as to Count 3 because it merged with Count 2 for
sentence purposes. (Id.). Defendant swiftly appealed his sentence on October 14, 2010. (Docket
No. 77). The Court of Appeals affirmed this Court’s decision on December 20, 2011 and
expressly held that the sentence of 360 months was both procedurally and substantively
reasonable. United States v. Hardy, 454 F.App’x 132, 134-35 (3d Cir. 2011). To this end, in
affirming this Court’s sentencing, the Court of Appeals rejected Defendant’s arguments that the
advisory guidelines range was incorrectly calculated and concluded that the sentence of 360
months which was imposed was supported by the evidence of record. Id.
Defendant’s motion to vacate was timely filed as of March 6, 2013 under the prisoner
mailbox rule.6 He also filed a Motion for Leave to file a supplemental memorandum. (Docket
No. 103). This Court responded by entering its standard order pursuant to United States v. Miller,
197 F.3d 644 (3d Cir.1999), advising Defendant that all federal constitutional claims must be
included in a single habeas corpus petition and of his right to: (1) withdraw the pending petition
and file one new, all-inclusive § 2255 petition setting forth every ground which may entitle him
to relief from the conviction and sentence, provided that such motion is filed within the one year
statute of limitations; (2) amend the § 2255 petition presently on file with any additional claims
or materials within 120 days; or (3) choose to have the petition ruled on as filed. (Docket No.

6

The Government concedes that Defendant’s Motion was timely made under 28 U.S.C. 2255(f)(1) and the
prisoner mailbox rule. (Docket No. 106). As such, timeliness is not an issue.

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103). The Court also granted leave to file the supplemental memorandum within 30 days. (Id.).
Defendant then submitted his supplemental memorandum on April 25, 2013. (Docket No. 104).
The Court ordered the Government to respond and it filed a brief in opposition along with its
exhibits on May 19, 2013.7 (Docket No. 106). No further briefing has been ordered and the Court
considers the matter fully briefed and ripe for disposition.
III.

LEGAL STANDARD

Petitioner filed the instant motion challenging his sentence under 28 U.S.C. § 2255(a),
which provides that:
A prisoner in custody under sentence of a court established by Act
of Congress claiming the right to be released 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 such sentence, or that the sentence was in excess of the
maximum authorized by law, or is otherwise subject to collateral
attack, may move the court which imposed the sentence to vacate,
set aside or correct the sentence.
28 U.S.C. § 2255(a). Thus, a criminal defendant “is entitled to relief only if he can demonstrate
that he is in custody in violation of federal law or the Constitution.” Hernandez v. United States,
Civ. A. No. 07–752, 2008 WL 3843510, at *2 (D.N.J. 2008).
In order for a district court to correct a criminal defendant’s sentence pursuant to a § 2255
motion to vacate, it must find “that ... judgment was rendered without jurisdiction, or that the
sentence imposed was not authorized by law or otherwise open to collateral attack, or that there
has been such a denial or infringement of the constitutional rights of the [defendant] as to render
the judgment vulnerable to collateral attack.” Garcia v. United States, 2008 WL 1375571, at *2
(D.N.J. Apr. 9, 2008) (internal quotation and citation omitted). A criminal defendant bears the
burden of establishing his entitlement to § 2255 relief. United States v. Davies, 394 F.3d 182,

7

The Government’s exhibits consist of the Change of Plea and Sentencing Hearings held before this Court.

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189 (3d Cir. 2005). Moreover, as a § 2255 motion to vacate is a collateral attack on a sentence, a
criminal defendant “must clear a significantly higher hurdle than would exist on direct appeal” to
obtain relief. See United States v. Bohn, 1999 WL 1067866, at *3 (E.D.Pa. 1999) (quoting
United States v. Frady, 456 U.S. 152, 166, (1982)). The court is required to construe pro se
pleadings liberally. See United States v. Otero, 502 F.3d 331, 334 (3d Cir. 2007) (citing Haines
v. Kerner, 404 U.S. 519, 520 (1972)). However, “vague and conclusory allegations contained in
a § 2255 petition may be disposed of without further investigation.” United States v. Knight,
2009 WL 275596, at *13 (W.D.Pa. 2009) (quoting United States v. Thomas, 221 F.3d 430, 437
(3d Cir. 2000)).
Generally, a district court must order an evidentiary hearing in a federal habeas case if a
criminal defendant’s § 2255 allegations raise an issue of material fact. United States v. Biberfeld,
957 F.2d 98, 102 (3d Cir.1992). But, if there is “no legally cognizable claim or the factual
matters raised by the motion may be susceptible of resolution through the district judge’s review
of the motion and records in the case,” the motion may be decided without a hearing. United
States v. Costanzo, 625 F.2d 465, 470 (3d Cir. 1980); see also United States v. Lilly, 536 F.3d
190, 195 (3d Cir. 2008). If a hearing is not held, the district judge must accept the criminal
defendant’s allegations as true “unless they are clearly frivolous on the basis of the existing
record.” Gov’t of Virgin Islands v. Bradshaw, 726 F.2d 115, 117 (3d Cir.1984).
It long has been established that there is no federal constitutional
right to counsel when mounting a collateral attack upon a criminal
conviction. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987).
While Rule 8 of the Rules Governing § 2255 Proceedings requires
the appointment of counsel where an evidentiary hearing is
warranted, see also United States v. Bendolph, 409 F.3d 155 (3d
Cir. 2005), the decision to appoint counsel in a § 2255 proceeding
otherwise is left to the discretion of the court. See 18 U.S.C. §
3006A(a)(2)(B). (“[w]henever ... the court determines that the

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interests of justice so require, representation may be provided” in a
§ 2255 proceeding) (emphasis added).
United States v. Wilson, 2011 WL 1877654, at n. 1 (W.D.Pa. 2011). The Court resolves the
pending motion without holding a hearing because, for the reasons set forth infra, assuming
Defendant’s allegations as true, he is not entitled to the relief requested in his § 2255 petition.
IV.

DISCUSSION

Defendant claims that he was provided ineffective assistance of counsel during the
change of plea stage of this case. (Docket No. 104). He avers that his counsel, Hackney, advised
him that a sentence of 120 months would be imposed and further contends that Hackney was
deficient in his erroneous estimation of the advisory guidelines range in comparison to the
ultimate sentence imposed by this Court. (Id. at 4-5). Defendant claims prejudice based upon an
assertion that he would have insisted on going to trial had his counsel not committed such errors.
(Id. at 10). The Government maintains that Defendant has failed to demonstrate that his counsel
provided to him deficient advice or that he has been prejudiced by ineffective representation and
asks that the Court deny Defendant’s motion without an evidentiary hearing. (Docket No. 106 at
22).
A. Ineffective Assistance of Counsel Claim
The Sixth Amendment right to counsel provides that an accused is entitled to the
effective assistance of counsel at all phases of the prosecution of criminal charges, see Missouri
v. Frye, 132 S. Ct. 1399, 1404 (2012), including during the plea-bargaining process and the entry
of a guilty plea. Lafler v. Cooper, 132 S.Ct. 1376, 1384 (2012). Although not specifying the
particular requirements of effective assistance, the Sixth Amendment relies “on the legal
profession’s maintenance of standards sufficient to justify the law’s presumption that counsel
will fulfill the role in the adversary process that the Amendment envisions.” Strickland v.
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Washington, 466 U.S. 668, 687 (1984). A petitioner claiming that his Sixth Amendment rights
have been violated must satisfy a two part test demonstrating that his counsel was ineffective by
proving that counsel’s performance was deficient and that he was prejudiced by the deficient
representation. Strickland, 466 U.S. at 687. If either prong of this test is not satisfied, this Court
has discretion to deny a motion claiming ineffective assistance of counsel. Id. For the following
reasons, the Court finds that Defendant cannot meet his burden to demonstrate that he was
provided ineffective assistance by his trial counsel and/or that he was prejudiced by such
representation.
1. Was Counsel's Representation Objectively Unreasonable?
To satisfy the first prong of the Strickland test, the defendant must show that “counsel’s
representation fell below an objective standard of reasonableness.” Hill v. Lockhart, 474 U.S. 52,
57 (1985) (citing Strickland, 466 U.S. at 687-688). An attorney’s performance is constitutionally
sufficient if “counsel’s advice ‘was within the range of competence demanded of attorneys in
criminal cases.’” Lockhart, 474 U.S. at 52 (quoting McMann v. Richardson, 397 U.S. 759, 771
(1970)). Due to the wide latitude of tactical decisions counsel must make to address a variety of
circumstances, “a court must indulge a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. Therefore, a
petitioner asserting a claim of ineffective assistance of counsel must specifically identify the
attorney’s actions that were allegedly not reasonable and demonstrate that such actions failed to
meet the standard of professional responsibility. Id. at 690.
Defendant first argues that counsel’s representation was deficient because Hackney
assured Defendant that he would receive a sentence near the statutory minimum of ten years and
claims that he was unaware of his ultimate sentencing exposure. (Docket No. 104 at 8). The

13

Government counters that Defendant’s assertion is contradicted by his own responses during the
Court’s lengthy colloquies at his change of plea and sentencing hearings and that defense
counsel’s advice to plead guilty was satisfactory representation. (Docket No. 106 at 2).
Based upon the Court’s review of Defendant’s own pleadings and responses under oath,
Defendant’s actions have clearly contradicted his assertions that he was told by counsel that he
would receive a sentence of ten years’ imprisonment and that he did not fully understand his
sentencing exposure. In his own brief, Defendant relates how during plea negotiations with the
Assistant U.S. Attorney, he was aware “that [he] would plead guilty to an “open plea,” a nonbinding agreement that the presiding judge would not be bound by.” (Docket No. 104 at 4)
(emphasis added). Additionally, Defendant knew that “[a]s part of that [open plea] agreement,
counsel for the government and defense counsel did a preliminary estimate of the applicable
Sentencing Guidelines provisions.” (Id.). After both sides determined that the Guideline range
was 151-188 months, Defendant was apprehensive, (Id. at 4-5), but “[c]ounsel assured him that
his position that the numbers tossed about were estimates, and that it would be his position that
a sentence at or near the 120 month minimum term permitted by statute would be appropriate.”
(Id. at 5) (emphasis added).
Defendant’s pre-plea impressions reveal that Defendant had sufficient knowledge that
counsel could not guarantee that any particular sentence would be imposed by this Court.
Defendant knew that the Court had full discretion not to fashion a sentence as recommended by
the parties and that he was pleading guilty without any agreement with the U.S. Attorney’s
Office. (Id. at 4). Further, as counsel was advocating for the 120 month statutory minimum
below the proffered estimates (Id. at 5), Defendant knew that his potential sentence was not
confined to the estimated guideline range, but rather the statutory range. Additionally, by

14

advocating for the ten-year statutory minimum for Counts One and Two, Defendant was aware
that those convictions would not be grouped together; otherwise he would have only faced a
potential five-year minimum sentence for each count that ran concurrently. (Id. at 5).
Defendant’s statements made under oath at the change of plea hearing further controvert
his present arguments. At that time, Defendant expressed his understanding to the Court that
Counts One and Two both carried separate statutory maximum penalties of twenty years and
mandatory minimum sentences of five years. (Docket No. 50 at 14-15). He also stated he had
discussed the guidelines with counsel. (Id. at 18-19). Defendant further represented that he knew
the Court had discretion to sentence outside the Guideline range so long as it fell within the
statutory maximum and minimum penalties. (Id. at 17). After hearing the parties’ positions that
his offense level was 34 with a Guideline range of 151-188 months, (Id. at 19), Defendant again
stated he understood the Court’s instruction that he could be sentenced up to the statutory
maximum despite any agreed upon recommendations by the parties. (Id. at 20). The Court
informed Defendant that his sentence would not be imposed until after the PIR was prepared and
reviewed. (Id. at 19-20). In addition, twice Defendant told the Court that he was fully satisfied
with the advice and representation from his trial counsel, Hackney. (Id. at 7, 28).
Following the hearing, the PIR was prepared and the Probation Office recommended that
Defendant’s Guideline range was 360 months to life imprisonment. Defendant was given an
opportunity to review the report and object to its findings. (Docket No. 34). He recounts the
circumstances of same in his brief, as follows: “[w]hen Petitioner expressed his shock that he
would face a possible life sentence for his conduct in this case, Attorney Hackney assured him
that Counsel would still advocate for a ten-year term.” (Docket No. 104 at 6) (emphasis
added). At this point, Defendant explained that “Counsel expressed his belief” that the sentence

15

would be closer to the statutory minimum than the guidelines range. (Id.) (emphasis added).
Again, Defendant’s own position undermines any argument that he was promised a sentence of
ten years by Hackney. At most, Hackney promised to be a zealous advocate on his behalf and
argue that a sentence of ten years should be imposed. From the Court’s perspective that is
exactly what occurred in this case. Defense counsel advocated for a lesser sentence, arguing
against the application of the five-level enhancements. (Docket No. 50 at 6). However, the Court
denied counsel’s sentencing arguments and concluded in its tentative findings that the Guideline
range was indeed 360 months to life. (Docket No. 54 at 11).
The record further discloses that Defendant never raised this present allegation that he
was promised a sentence of ten years, despite multiple opportunities to do so. As such, he never
repudiated his sworn statements at the change of plea hearing that no one, including Hackney,
had promised him anything regarding a sentence. At his first sentencing hearing, Defendant was
asked by the Court whether he had reviewed the PIR and tentative findings and rulings with his
counsel and he responded affirmatively as well as stating that he had no additional questions for
the Court. (Docket No. 87 at 56). Defendant told the Court at the second session that he had no
questions regarding the tentative findings. (Docket No. 86 at 7). When asked to make a statement
before the Court prior to being sentenced, Defendant expressed regret and did not address his
concerns with sentencing. (Id. at 46-47). Defendant was then sentenced for 360 months’
imprisonment, but blames this on counsel because his “prediction proved to be erroneous.”
(Docket No. 104 at 6) (emphasis added).
As noted by the Court, Defendant has made clear that Hackney only made estimates as to
his ultimate sentence, but never guaranteed that he would receive only the ten year minimum
sentence. (See Docket No. 104 at 4-6). Additionally, although claiming he was unaware of his

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sentencing exposure, Defendant never alleges that Hackney failed to inform him that he could
potentially face the maximum statutory sentence of forty years. Instead, he informed the Court
that he understood that both Counts One and Two carried a separate twenty years’ imprisonment
statutory maximum and that the Court could sentence outside of the Sentencing Guidelines, so
long as it was within the statutory maximum and minimum sentences. (Docket No. 50 at 14-15,
17). Therefore, Hackney’s advice and representations to Defendant regarding a potential
sentence of ten years’ imprisonment does not constitute ineffective assistance of counsel.
Defendant further contends that he suffered from ineffective assistance because a
reasonably competent attorney would have anticipated the two five-level enhancements which
were applied in the PIR and during the eventual sentencing. (Docket No. 104 at 8). The Court
recognizes that the AUSA and defense counsel incorrectly projected Defendant’s initial
Guideline range of 151-188 months when their positions were requested by the Court at
Defendant’s change of plea hearing. (Docket No. 50 at 19). They were both incorrect because
neither the AUSA nor Defendant’s attorney originally anticipated that the two five-level
enhancements applied. (Docket No. 50 at 19). However, the Third Circuit Court of Appeals has
explained that defense counsel who failed to appreciate possible enhancements and departures is
not constitutionally deficient:
[w]e recognize that the maximum sentence authorized by law is often so
extraordinarily long that few defendants other than “career criminals” plead guilty
with the expectation that the maximum sentence applies to them. However, all
that the law requires is that the defendant be informed of his/her exposure in
pleading guilty. The law does not require that a defendant be given a reasonably
accurate “best guess” as to what his/her actual sentence will be; nor could it,
given the vagaries and variables of each defendant’s circumstances and offending
behavior.
United States v. Shedrick, 493 F.3d 292, 299 (3d Cir. 2007) (citing United States v. Mustafa, 238
F.3d 485, 492 n. 5. (3d Cir. 2001)). Thus, counsel’s representation is not constitutionally
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deficient if he advises his client of an estimated advisory guidelines range that is later incorrect if
Defendant understands it was an estimate and is correctly advised of the potential statutory
penalties for the offense. See Jackson v. United States, 2008 WL 5429695, at *18 (W.D.Pa. Dec.
30, 2008) (holding that the petitioner voluntarily and knowingly plead guilty because the record
demonstrated that he knew he could receive a sentence up to the statutory maximum and that a
precise advisory guidelines range would not be calculated until the completion of the PIR).
As has been discussed above, the record fully demonstrates that Defendant was fully
aware that Hackney provided only estimates of the sentencing range. The Court had requested
both parties to provide their original positions for the advisory guidelines ranges. (Docket No. 50
at 19-20). After expressing their initial positions regarding the advisory guidelines range, the
Court directly informed Defendant that it would not be bound by these initial recommendations,
and Defendant responded that he understood. (Id. at 20). As Shedrick illustrates, Hackney did not
supply Defendant with ineffective assistance of counsel by presenting to the Court an incorrect
initial estimate of the advisory guidelines range given the failure to anticipate possible
enhancements.
Therefore, the Court finds that Defendant has not satisfied the first prong because he has
failed to show that he suffered from ineffective assistance of counsel. Defendant made it
abundantly clear throughout his brief that counsel was only ever estimating his possible sentence
of ten years. (Docket No. 104 at 4-6). Further, the failure to consider guideline enhancements
does not amount to deficient representation because the “law does not require that a defendant be
given a reasonably accurate ‘best guess’ as to what his/her actual sentence will be.” Shedrick,
493 F.3d at 299. Instead, the record shows that defense counsel’s only promise to Defendant was
that he would advocate on his behalf for a ten-year sentence. (Id.). Accordingly, based on the

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record evidence, the Court finds that Hackney’s representation of Defendant was objectively
reasonable.
Although the Court’s analysis could end here, for completeness, the Court will continue
to evaluate the second prong as if Defendant had presented sufficient evidence to demonstrate
error by his counsel.
2. Was Defendant Prejudiced by Counsel’s Sentencing Predictions?
If the first prong is met, then, the petitioner “must show that the deficient performance
prejudiced the defense.” Strickland, 466 U.S. at 687. In that regard, he “must show there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 694. Specifically, “defendant must show that there is a
reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would
have insisted on going to trial.” Lockhart, 474 U.S. at 59. A strong factor to consider is a
“prediction whether the [errors] likely would have changed the outcome of a trial.” Id. The Court
included this prejudice requirement because, “[a]n error by counsel, even if professionally
unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error
had no effect on the judgment.” Id. at 691.
In this Court’s opinion, even if counsel’s representation was below the objective
reasonableness standard, Defendant would not satisfy the second prong of the Strickland test. To
this end, Third Circuit precedent has made clear that “misrepresentations” or “erroneous
predictions” of possible sentences or guideline ranges do not amount to prejudice and render a
guilty plea involuntary or unknowing if the defendant had been informed by the Court of the
maximum potential penalties for the convictions and of the Court’s discretion to impose a
sentence outside the advisory guidelines range. See e.g., United States v. Harris, 2013 WL

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357236 *4, (W.D.Pa. Jan 29, 2013) (holding that counsel’s failure to advise the defendant of
career offender provision and its effects on the guideline provisions did not amount to
miscarriage of justice due to lengthy and extensive sentencing colloquy); Shedrick, 493 F.3d at
299 (holding that defense counsel’s estimates based upon a failure to consider potential
enhancements or departures were “irrelevant” where the defendant signed a plea agreement and
the Court conducted a detailed colloquy advising the defendant of the maximum potential
sentence and Court’s full discretion to levy the ultimate sentence); United States v. Jones, 336
F.3d 245, 254 (3d Cir. 2003) (no prejudice found where the defendant was sentenced to a term
greater than the range guaranteed by counsel because the District Court engaged in an extensive
colloquy which “clearly warned” the defendant of the maximum sentence and the defendant
informed the court that no one had made any threat, promise or assurance to convince him to
plead guilty); United States v. Mustafa, 238 F.3d 485, 492 (3d Cir. 2001) (holding that the
defendant interpreted counsel’s best estimate as a promise of the sentence he would receive and
that any possible attorney error regarding a potential sentence was “dispelled when Mustafa was
informed in open court that there were no guarantees as to sentence, and that the court could
sentence him to the statutory maximum”).
In this instance, the Court undertook a lengthy and extensive colloquy that informed
Defendant of all his rights and thoroughly explained the application of the sentencing guidelines.
(See Docket No. 50). Both parties were incorrect when they initially determined that the advisory
guidelines range was 151 to 188 months, but the Court’s colloquy with Defendant and
Defendant’s sworn responses to the Court’s questions conclusively demonstrate that the
Defendant did not suffer any prejudice as a result of the erroneous predictions. It is well-settled
that a defendant’s “[s]olemn declarations in open court carry a strong presumption of verity.”

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Blackledge v. Allison, 431 U.S. 63, 74 (1977). Under oath, Defendant stated that he understood
that the maximum possible sentence for both Counts One and Two were twenty years’
imprisonment for a total of forty years, and that regardless of any recommendation from the
parties, the Court could impose a sentence up to the statutory maximum. (Id. at 14-15). However,
before pleading guilty, the Court advised Defendant that it would not make any sentencing
decision, including calculating the advisory guidelines range, until it had read and analyzed the
PIR and considered any objections from the parties. (Id. at 18-19). Defendant confirmed under
oath that he understood all of his rights, asserted that his guilty pleas were voluntary, admitted
that he was not promised anything that induced him to plead guilty, and acknowledged that no
one threatened or coerced him into his guilty plea. (Id. at 26-28). Additionally, twice during the
Change of Plea hearing, Defendant informed the Court that he was fully satisfied with the
representation supplied by counsel. (Id. at 7-8, 28). Based upon the Defendant’s responses, the
Court concluded that Defendant understood all of the rights he was waiving and the potential
sentencing exposure and accepted his pleas of guilty to all of the charges. (Id. at 29).
This colloquy took place at the Change of Plea Hearing on October 22, 2009. (Docket
No. 26). Defendant was not sentenced until almost a full year later on October 4, 2010. (Docket
No. 75). During this time period, Defendant had numerous opportunities, including two separate
open court hearings, to raise any issue regarding his sentencing. He failed to do so. Upon the
preparation of the PIR or issuance of the Tentative Findings detailing that the actual Guideline
range was 360 months’ imprisonment to life, Defendant did not notify the Court that he pled
guilty primarily on counsel’s alleged assurance that he would receive a sentence of no more than
ten years, or that he did not understand that the Court was not bound by the parties’ proffered

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advisory guidelines range and could sentence him up to the maximum penalties authorized by
law or to a term of imprisonment which exceeded the 360 months which was imposed.
The Court further finds that Defendant has not satisfied his burden to present credible
evidence that he would have gone to trial if he had not pled guilty to the charges. In this regard,
Defendant’s Memorandum of Law in Support of this Motion does not indicate a “reasonable
probability” that Defendant would have considered pursuing a trial. (Docket No. 104). When
initially contemplating pleading guilty, Defendant acknowledged that his chance of acquittal was
“virtually non-existent” given the available evidence, including his own post-arrest statement
which he concedes was essentially an admission of guilt. (Docket No. 104 at 4). Defendant
further concedes that the enhancements under §§ 2G2.2(b)(3)(B) and 2G2.2(b)(5) “were likely, if
not automatic,” (Id. at 9-10), such that a trial would not have altered the advisory guidelines
computation in a manner more favorable to the defense.
Further, had Defendant proceeded to trial rather than pleading guilty, there is a strong
possibility he would have suffered a harsher sentence because he would not have received the
three-point reduction in his offense level for acceptance of responsibility which was included
because of his cooperative and timely plea. In fact, if his offense level was increased by one
point to a 43, the advisory guidelines range would have increased from 360 months to life to a
term of life imprisonment. See U.S.S.G. Ch. 5 Part A. Instead, Defendant received a sentence at
the bottom end of the advisory guidelines range of 360 months to life and a sentence which was
ten years below the statutory maximum of forty. Based upon these circumstances, it does not
appear that a “reasonable probability” exists that Defendant would have legitimately considered
going to trial.

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In this Court’s estimation, Defendant is an intelligent person, having completed his
associate’s degree in computer science and pursued a bachelor’s in the same. (Docket No. 50 at
3-4). In addition to formal education, he has also received additional certificates from various
institutions and associations, including the Northeast Ohio Corrections Center, the Skills USA
Kentucky Association, the Louisville Technical Institute and the I.C.M. School of Business all of
which indicate that Defendant has achieved in various academic settings. (Docket No. 86 at 16).
He clearly had the mental capacity and ability to understand the nature and circumstances of the
proceedings and the consequences of his guilty plea. The record repeatedly indicates that the
Court notified the Defendant of his possible sentencing exposure, and Defendant was given
every opportunity over the course of a year to express any of alleged his concerns and he did not.
In all, the Court’s extensive and thorough colloquy and Defendant’s coherent responses
and complete understanding of the parameters of his sentencing demonstrate that Defendant was
not prejudiced by the initial erroneous guidelines calculation by his counsel and that of the
Government. Instead, the record fully discloses that Defendant understood the potential sentence
he faced and entered his guilty pleas knowingly and voluntarily. For all of these reasons, the
Court finds that Defendant has failed to meet his burden under Strickland and denies Defendant’s
§ 2255 motion to vacate his convictions and sentence.
B. Evidentiary Hearing
It is well established that Defendant is entitled to an evidentiary hearing only if his
allegations raise an issue of material fact which must be resolved at a hearing. United States v.
Biberfeld, 957 F.2d 98, 102 (3d Cir. 1992). The Court may also deny a hearing if the records on
file with the Court conclusively prove that Defendant does not have a legally cognizable claim.
Here, the Court has examined the record and concluded that Defendant has no legally cognizable

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claims. Therefore, consistent with the Court’s rulings, the Court denies Defendant’s request for
an evidentiary hearing.
V.

CERTIFICATE OF APPEALABILITY

In addition, the Court finds that Defendant has not demonstrated a “substantial showing of
the denial of a constitutional right” as required under 28 U.S.C. § 2253(c)(2), and therefore holds
that Defendant is not entitled to a certificate of appealability on any of the claims asserted in his
motion.
VI.

CONCLUSION

Based on the foregoing, Defendant’s motion to vacate [101] is DENIED. An appropriate
Order follows.

s/Nora Barry Fischer
Nora Barry Fischer
United States District Judge
Date: July 23, 2013
cc/ecf: All counsel of record.
Kelly Hardy
30365-068
FCC Petersburg Medium
P.O. Box 1000
Petersburg, VA 23804-1000

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