TOWNSEND v. USA

Filing 1

MEMORANDUM ORDER. Petitioner's Motion for Discovery (Doc. 361 at related criminal action) is DENIED and Petitioner's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 353 at related criminal action) is DENIED. A Certificate of Appealability is DENIED. See contents of this filing. Signed by Judge Cathy Bissoon on 10/4/18. (rdl)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
KENNETH TOWNSEND,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Criminal Action No. 12-125-3
(Related to Civil Action No. 18-215)
Judge Cathy Bissoon

MEMORANDUM ORDER
Pending before the Court is Petitioner Kenneth Townsend’s Motion to Vacate, Set Aside
or Correct a Sentence pursuant to 28 U.S.C. § 2255 (Doc. 353) filed at Criminal Action No. 12125-1 and at Civil Action No. 18-215. Petitioner has also filed an “Informal Memorandum in
Support” of his motion (Doc. 354). The Government has filed a Response to the Motion and
Memorandum (Doc. 359). Petitioner contends in his motion that he was denied effective
assistance of counsel under the Sixth Amendment of the Constitution based on his trial counsel’s
failure in negotiating a favorable plea deal, and trial counsel’s failure to file a motion to suppress
intercepted communications obtained by way of a wiretap order. After the Government filed its
Response, Petitioner filed a Motion for Discovery (Doc. 361). The Government filed a Response
(Doc. 363), to which Petitioner filed a Reply (Doc. 364). For the reasons stated herein, the Court
will deny Petitioner’s motion for discovery and his Section 2255 motion.
BACKGROUND
The Court writes exclusively for the parties and therefore sets forth only those facts that
are necessary to the disposition of Petitioner’s motions.

On May 15, 2012, Petitioner Kenneth Townsend was charged in three counts of a fourcount Indictment with: (1) conspiracy to possess with the intent to distribute 280 grams or more
of cocaine base, in violation of 21 U.S.C. § 846 (Count One); (2) possession with the intent to
distribute less than 500 grams of cocaine, in violation of 21 U.S.C. § 841(a)(1) (Count Three);
and (3) possession with the intent to distribute more than 28 grams of cocaine base, in violation
of 21 U.S.C. § 841(a)(1) (Count Four).
The charges arose out of an investigation by the Federal Bureau of Investigation (“FBI”),
in coordination with other federal and local law enforcement agencies, focused on heroin
trafficking in the East Hills section of Pittsburgh, Pennsylvania. In particular, the primary targets
of the investigation were members of the East Hills Bloods gang. The investigation initially
involved surveillance of low-level heroin sellers on the streets, but eventually required the use of
Title III intercepts of communications on numerous target telephones.
Pursuant to intercepted communications, agents learned that Damon Boyd and Carter
Gaston were trafficking in heroin and cocaine. Shane Countryman, an Allegheny County
Deputy Sheriff and member of the task force investigating the East Hills Bloods gang,
participated in the investigation and reviewed the intercepted communications. In January 2012,
Countryman and fellow law enforcement officers conducted surveillance of Boyd and Gaston,
and they learned that Boyd and Gaston intended to purchase narcotics. That surveillance
revealed that Boyd and Gaston went to the street of Kenneth Townsend’s residence.
Approximately two hours after arriving on Townsend’s street, surveillance observed Boyd and
Gaston leaving Townsend's residence. In addition, surveillance observed Townsend outside of
his residence and law enforcement officials were able to identify him.

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After Boyd’s meeting with Townsend, Title III intercepts indicated that Boyd had
cocaine available for sale. Agents surmised that Boyd had obtained cocaine while at
Townsend’s residence. Boyd and Townsend arranged to meet again, according to intercepted
communications, and the FBI and Countryman believed this meeting would also be to conduct a
drug transaction. Accordingly, on February 1, 2012, surveillance of Townsend’s residence was
again initiated.
The surveillance revealed that Boyd and Gaston traveled to Townsend’s residence in a
Ford Expedition registered to Boyd and another individual. Approximately two hours after Boyd
and Gaston arrived at Townsend’s residence, they drove from the residence in the Expedition.
The agents recognized that this was the same sequence of events that happened when Boyd went
to Townsend’s residence in January, after which Boyd indicated he had cocaine available for
sale. The agents therefore had reason to believe that Boyd and Gaston were traveling with
cocaine. Law enforcement officials at the scene knew that Boyd did not have a valid driver’s
license and had an active warrant for his arrest. The officers conducted a stop of Boyd’s vehicle
in order to arrest him.
Local law enforcement arrested Boyd pursuant to the arrest warrant. Prior to towing the
vehicle, pursuant to normal procedures to inventory contents of vehicles, Countryman conducted
a search of the areas immediately accessible to Boyd and Gaston. During the search,
Countryman noticed that the radio was not secured and he pulled slightly on the radio. When he
did so, the dashboard moved creating a crease. When Countryman placed his fingers within the
crease, the dashboard fell off revealing a “trap” where Boyd and Gaston stored their stash of
crack cocaine. Concealed within the trap were plastic bags containing crack cocaine still wet
from processing.

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Based on the information set forth above, local law enforcement obtained a search
warrant authorizing them to search Townsend’s residence. Within Townsend’s residence, law
enforcement officials found what amounted to a small crack cocaine processing operation,
including cocaine, baking powder, strainers, digital scales and other indicia associated with
processing cocaine into crack cocaine. Townsend was arrested and charged, along with
codefendants Boyd and Gaston.
Prior to trial, Townsend’s counsel filed two motions to suppress evidence pertaining to
the search of his residence, both of which were denied. Following a jury trial in April 2014,
Townsend was found guilty of Counts Three and Four. The jury could not reach a verdict with
respect to the conspiracy count at Count One, and Count One was later dismissed.
The Probation Office and the Court determined that Townsend was a Career Offender
under Section 4B1.1 of the United States Sentencing Guidelines as a result of two prior
convictions: (i) possession with intent to deliver cocaine, and (ii) fleeing and attempting to elude
a police officer. Thus, Townsend faced a potential Guideline sentence of 360 months to Life.
The Court granted Townsend’s request for a downward variance and sentenced him to 200
months imprisonment for each count, to run concurrently.
Townsend timely appealed both his conviction and sentence. The United States Court of
Appeals for the Third Circuit affirmed his conviction, but, in light of the Supreme Court’s
decision in Johnson v. United States, 135 S. Ct. 2551 (2015), concluded that his prior conviction
for eluding a police officer no longer qualified as a crime of violence. United States v.
Townsend, 638 F. App’x 172, 178 (3d Cir. 2015). Because Townsend no longer qualified as a
career criminal, his sentence was vacated and remanded to the District Court for resentencing.

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Without the career offender designation, his guideline sentence range became 108 to 135
months. At sentencing, the Court increased the base offense level for obstruction of justice,
making the guideline sentence range 135 to 168 months. The Court noted that at the initial
sentencing hearing it had varied downward from the minimum guideline range of 360 months,
and the fact that Townsend was no longer considered a career offender did not change what the
Court believed to be an appropriate sentence. Accordingly, the Court varied upward from the
sentence range and again sentenced Townsend to 200 months imprisonment.
Townsend appealed the sentence, which was affirmed by the United States Court of
Appeals for the Third Circuit. United States v. Townsend, 664 F. App’x 202 (3d Cir. 2016).
Thereafter, Petitioner timely filed the instant motion to vacate raising issues of ineffectiveness of
his trial counsel.
ANALYSIS
Pursuant to 28 U.S.C. § 2255, a federal prisoner may move the sentencing court to
vacate, set aside, or correct a sentence:
[U]pon 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.
28 U.S.C. § 2255(a). As a remedy, the court must “vacate and set the judgment aside and . . .
discharge the prisoner or resentence him [or her] or grant a new trial or correct the sentence as
may appear appropriate.” 28 U.S.C. § 2255(b). Relief under this provision is “generally
available only in ‘exceptional circumstances’ to protect against a fundamental defect which
inherently results in a complete miscarriage of justice or an omission inconsistent with the

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rudimentary demands of fair procedure.” United States v. Gordon, 979 F. Supp. 337, 339 (E.D.
Pa. 1997) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)).
I. Need for Evidentiary Hearing
A district court is required to hold an evidentiary hearing on a motion to vacate sentence
filed pursuant to 28 U.S.C. § 2255 unless the motion, files, and records of the case show
conclusively that the movant is not entitled to relief. See 28 U.S.C. § 2255(b); United States v.
Booth, 432 F.3d 542, 545-46 (3d Cir. 2005); United States v. Nahodil, 36 F.3d 323, 326 (3d Cir.
1994). Thus, if the record conclusively negates the factual predicates asserted in support of a
Section 2255 motion, or if the movant would not be entitled to relief as a matter of law even if
the factual predicates as alleged in the motion are true, an evidentiary hearing is not required.
See Government of Virgin Islands v. Nicholas, 759 F.2d 1073, 1075 (3d Cir. 1985).
The Court finds no need for an evidentiary hearing here, as the record conclusively
establishes that Petitioner is not entitled to the relief sought in the petition. See 28 U.S.C.
§ 2255. Accordingly, the Court denies Petitioner’s motion for an evidentiary hearing.
II. Legal Standards
Petitioner argues that he was denied effective assistance of counsel under the Sixth
Amendment to the Constitution. A “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.
District Attorney of the County of Allegheny, 672 F.3d 198, 210 (3d Cir. 2012) (citing
Strickland v. Washington, 466 U.S. 668, 687 (1984)). “To show deficient performance, ‘a
person challenging a conviction must show that counsel’s representation fell below an objective
standard of reasonableness. . . . The challenger’s burden is to show that counsel made errors so

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serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.’” Ross, 672 F.3d at 210 (quoting Harrington v. Richter, 562 U.S. 86, 104 (2011)).
“‘[S]trategic choices made after thorough investigation of law and facts relevant to plausible
options are virtually unchallengeable.’” Hinton v. Alabama, 571 U.S. 273, 274 (2014) (quoting
Strickland, 466 U.S. at 690). “Because advocacy is an art and not a science, and because the
adversary system requires deference to counsel’s informed decisions, strategic choices must be
respected . . . if they are based on professional judgment.” Strickland, 466 U.S. at 681. “The
Supreme Court directs that our ‘scrutiny of counsel’s performance must be highly deferential’ to
avoid holding counsel incompetent because of reasonable strategic or tactical judgments which,
with the benefit of tactical hindsight, might prove not to have best served his client’s interests.”
United States v. Loughery, 908 F.2d 1014, 1018 (D.C. Cir. 1990) (quoting Strickland, 466 U.S.
at 689).
With respect to prejudice, a petitioner must “‘show that there is 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.’” Hinton, 571 U.S. at 275 (quoting Strickland, 466 U.S. at 694); see also Ross, 672
F.3d at 210 (quoting Richter, 131 S. Ct. at 787).
III. Petitioner’s Ineffective Assistance Claims
Petitioner claims his counsel was ineffective based on the following allegations:
(1) counsel failed to negotiate a favorable plea agreement; and (2) counsel failed to file a motion
to suppress intercepted communications obtained by the Government pursuant to wiretap
applications. The Court will consider each of these allegations in turn.

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A. Ground 1: Failure to Negotiate Favorable Plea Deal
“During plea negotiations defendants are ‘entitled to the effective assistance of
competent counsel.’” Lafler v. Cooper, 566 U.S. 156, 162 (2012); Missouri v. Frye, 566 U.S.
134, 138 (2012) (extending the right to effective assistance of counsel to consideration of plea
offers that lapse or are rejected).
In the context of claims regarding the assistance of counsel at the plea bargaining
stage where a defendant eventually proceeded to trial, a habeas petitioner must
establish three components in order to demonstrate prejudice. He must prove that
a plea offer was extended by the government, and that a reasonable probability
exists that he would have accepted the plea offer and the court would have
approved the agreement.
Enright v. United States, 347 F. Supp. 2d 159, 165 (D.N.J. 2004). “If a plea bargain has been
offered, a defendant has the right to effective assistance of counsel in considering whether to
accept it.” Lafler, 566 U.S. at 168. “If that right is denied, prejudice can be shown if loss of the
plea opportunity led to a trial resulting in a conviction on more serious charges or the imposition
of a more severe sentence.” Id.
Petitioner contends that, during pretrial plea bargaining, the prosecutor offered a sentence
of 15 years imprisonment in exchange for Petitioner pleading guilty and not going to trial. He
claims his trial counsel advised him not to accept the plea offer, as counsel believed the
Government would not be able to prove that Petitioner was part of a conspiracy, and counsel
predicted he would not be deemed to be a career offender, and thus trial counsel believed
Petitioner would receive a lesser sentence if he went to trial.
Petitioner acknowledges that his counsel was correct on the conspiracy count, as
Petitioner was not convicted of that count. In addition, although counsel was initially wrong
about Petitioner’s career offender status, it was eventually determined that he no longer qualified
as a career criminal. Petitioner’s sentence was vacated, and he was resentenced without the
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career offender designation, albeit to the same term of imprisonment. Petitioner claims he was
prejudiced because he received a sentence greater than the alleged plea offer of 15 years.
Petitioner maintains that he suffered prejudice because the upward departure for obstruction of
justice was based on information produced at trial, which presumably would not have been
available had Petitioner pleaded guilty in lieu of a trial.
Petitioner also filed a Motion for Discovery, in which he seeks documents related to any
plea offers, draft plea agreements and plea negotiations. 1 In support of his motion, he attached a
letter from the Government indicating to counsel that because trial was about to commence it
was formally withdrawing all “previous draft plea agreements and plea offers,” and because trial
was imminent the government would not consent to a one-point reduction. (Doc. 361, 6.) In its
Response opposing the motion, the Government attached an unsigned printout from the
electronic case file in which the Government stated to counsel as follows:
Please be advised that if your client, Kenneth Townsend, pleads guilty to the
charges against him at Criminal No. 12-125 in an “open” plea (i.e., no written
plea agreement with the United States), the government will seek dismissal of the
Information filed pursuant to 21 U.S.C. § 851 that increases the mandatory and
maximum penalties for your client. This Letter sets forth the only obligation of
the government in connection with this matter, and there are no other agreements,
promises, terms or conditions, express or implied.
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Petitioner also seeks information related to the wiretap investigation and poses interrogatories
for the Prosecutor to answer. Rule 6(a) governing proceedings under Section 2255, provides that
a “judge may, for good cause, authorize…discovery under the Federal Rules of Criminal
Procedure or Civil Procedure, or in accordance with the practices and principles of law.” A
petitioner seeking discovery under § 2255 must show good cause “by setting forth specific
allegations which, if fully developed, would entitle him or her to the writ.” Lee v. Glunt, 667
F.3d 397, 404 (3d Cir. 2012); see also Bracy v. Gramley, 520 U.S. 899, 908-09 (1997); Harris v.
Nelson, 394 U.S. 286, 300 (1969). While the allegations must be specific, they need not be
“supported by solid evidence.” Bracy, 520 U.S. at 908. Upon a showing of good cause a
petitioner is entitled to discovery, but the court maintains discretion as to the scope. Williams v.
Beard, 637 F.3d 195, 209 (3d Cir. 2011). The material provided by Petitioner and the
Government is sufficient to present a developed record to resolve the motion. Petitioner has not
otherwise shown sufficient good cause and therefore the Court will deny the motion for
discovery.
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(Doc. 363-1.)
In Reply, Petitioner attached the first page of a letter his counsel sent to the prosecutor, in
which he characterizes the Government’s “unyielding offer that Mr. Townsend go down for 15
years” as excessive. (Doc. 364-1.) He then recites the reasons why he believes the offer is
excessive, including the weakness of the case, the lack of aggravating factors and his client’s
background, and notes that “Mr. Townsend [has] zero incentive” to accept the offer. (Id.) He
also noted the Government’s indication it would not consent to a third point for acceptance of
responsibility, commenting that in light of an offer for 15 years imprisonment, he did not see
how “acceptance of responsibility” would help his client. (Id.) In other words, if his client
agreed to 15 years imprisonment, “acceptance of responsibility” could not alter that sentence.
Thus, counsel acknowledged that if his client pleaded guilty pursuant to an offer of 15 years
imprisonment, he recognized that the Government would not agree to any further reduction of
that sentence.
Defendants have “no right to be offered a plea . . . nor a federal right that the judge accept
it.” Frye, 566 U.S. at 148 (citing Weatherford v. Bursey, 429 U.S. 545, 561 (1977) (defendants
have “no constitutional right to plea bargain; the prosecutor need not do so if he prefers to go to
trial”). Accordingly, “counsel cannot be ineffective for failing to negotiate a plea if there was no
plea offer made by the United States to be negotiated.” United States v. Terry, No. 14-CV-1006,
2015 WL 4255527, at *5–6 (W.D. Pa. July 14, 2015). Here, the evidence supports that the
Government made an informal offer of a 15-year sentence in exchange for Petitioner’s plea of
guilty to all counts of the Indictment (with no acceptance of responsibility credit), but that there
was no written plea agreement.

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Petitioner’s claim fails because he cannot show that he suffered prejudice. “Strickland’s
inquiry into whether ‘the result of the proceeding would have been different,’ requires looking . .
. at . . . whether he would have accepted the offer to plead pursuant to the terms earlier
proposed.” Frye, 566 U.S. at 148 (quoting Hill v. Lockhart, 474 U.S. 668, 694 (1985)). The
evidence shows only that Petitioner’s offer was an open plea to all counts with no written plea
agreement and no consent to an acceptance of responsibility credit.
In contrast, Petitioner has not presented evidence demonstrating a reasonable probability
that the Government would have offered a 15-year sentence in exchange for a plea to the
conspiracy count only. Petitioner not only believed, as did his counsel, that he would not be
convicted of the conspiracy count, he maintained that the drugs identified in the conspiracy count
comprised the only instance that he ever dealt with drugs. The Government knew this not to be
true based on the intercepted communications and surveillance of Townsend’s residence. Thus,
it is not reasonable to believe that the Government would have offered the plea deal Petitioner
claims he was offered.
Next, Petitioner does not present evidence to show that he would have accepted a plea
offer to all Counts or to an offer that would have required him to plead guilty to a conspiracy
count that in the end he was not convicted of at trial. Petitioner also does not allege that he
disagreed with trial counsel’s assessment of the evidence regarding the conspiracy count. The
Court therefore concludes that Petitioner cannot show a reasonable probability that he would
have accepted a plea offer of 15 years imprisonment if he had to plead guilty either to all counts
as supported by the evidence or to solely to the conspiracy count.
Finally, trial counsel believed that Petitioner would not have been convicted (and in fact
was not) of conspiracy, and thus trial counsel’s advice to reject the plea offer is an informed

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decision based on a reasonable strategic judgment. Strickland, 466 U.S. at 681. Counsel
reiterated his reasons in writing to the Government in which counsel explained that Petitioner
had no incentive to accept an offer of a 15-year sentence. Thus, we cannot conclude that trial
counsel’s performance amounts to ineffectiveness of counsel as his alleged advice was not
unsound and the possible benefit was speculative. United States v. Odinga, 2007 WL 2461705,
at *3–4 (E.D. Pa. Aug.23, 2007) (petitioner required to show that he was “offered an actual plea
offer about which counsel provided insufficient advice”). Such a conclusion would be
improperly based on hindsight that the decision to forego the alleged plea offer proved not to
have best served Petitioner. Loughery, 908 F.2d at 1018.
Petitioner therefore cannot sufficiently undermine confidence in the sentence he received
as he cannot demonstrate “a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Hinton, 134 S.Ct. at 1089. Petitioner’s
claim of ineffectiveness depends on speculation that the Court declines to credit. United States
v. Brooks, No. 10-20078-JWL, 2016 WL 1170947, at *4 (D. Kan. Mar. 23, 2016) (relief cannot
be based on mere speculation that something different might have occurred). Accordingly, for
the reasons stated above, Petitioner’s claim of ineffectiveness for failing to negotiate a favorable
plea deal will be denied.
B. Ground 2: Failure to Seek Suppression of Intercepted Communications
Next, Petitioner claims that counsel was ineffective for failing to raise a challenge to the
intercepted communications obtained from the wiretap orders. Petitioner offers no details to
support his argument that his counsel’s conduct in not filing a motion to suppress was inefficient
or that he suffered prejudice. Significantly, the Court did hold hearings on a codefendant’s
motion challenging the legality of the wiretap orders. The motion was denied as the Court

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determined that the Applications for wiretaps were lawful. Had trial counsel sought to suppress
the intercepted communications obtained from the wiretaps, his motion would have been
unsuccessful, and therefore his decision not to file such a motion cannot show ineffectiveness.
In addition, Petitioner would not be able to establish prejudice even if counsel’s conduct
was ineffective and the intercepted communications involving Petitioner were suppressed. The
primary evidence leading to the arrest of Petitioner was obtained from the lawful stop and search
of his codefendant Boyd’s vehicle. The drugs found in that vehicle led to the search of
Petitioner’s residence. Petitioner did not have standing to contest the search of Boyd’s vehicle.
The evidence would have been more than sufficient for the jury to find Petitioner guilty.
Accordingly, Petitioner cannot show that he was prejudiced by an alleged failure to suppress the
intercepted communications.
C. Certificate of Appealability
No certificate of appealability should issue in this case. A court should issue a certificate
of appealability where a petitioner makes a substantial showing of the denial of a constitutional
right. 28 U.S.C. § 2253(c)(2). A petitioner meets this burden by showing that reasonable jurists
would find the district court’s assessment of the constitutional claims debatable or wrong. Slack
v. McDaniel, 529 U.S. 473, 484 (2000). The Court finds that jurists of reason would not find it
debatable whether Petitioner states a valid claim for the denial of a constitutional right and jurists
of reason would not find it debatable whether the Court is correct in concluding that the petition
does not present any claims upon which habeas relief may be granted. Therefore, the Court will
deny a certificate of appealability.
Having found no merit to Petitioner’s claims of ineffectiveness of counsel, Petitioner’s
Motion to Vacate, Set Aside, or Correct a Sentence pursuant to 28 U.S.C. § 2255 will be denied.

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Accordingly, IT IS ORDERED that:
Petitioner’s Motion for Discovery is DENIED (Doc. 361) and Petitioner’s Motion to
Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 353) is DENIED. A
Certificate of Appealability is DENIED.
IT IS SO ORDERED.

October 4, 2018

s\Cathy Bissoon
Cathy Bissoon
United States District Judge

cc (via ECF email notification):
All Counsel of Record

cc (via First-Class U.S. Mail):
Kenneth Townsend
No. 33585-068
F.C.I. Loretto
P.O. BOX 1000
LORETTO, PA 15940

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