U.S. v. Purcell

667 F.Supp.2d 498

UNITED STATES of America v. John PURCELL.

Criminal Action Cr. No. 05-709-01.

Civ. No. 08-473.

United States District Court, E.D. Pennsylvania.

October 21, 2009.

As Amended October 30, 2009.

COPYRIGHT MATERIAL OMITTED

John Purcell, pro se.

MEMORANDUM

DuBOIS, District Judge.

I. INTRODUCTION

Defendant John Purcell was convicted by a jury trial of one count of conspiracy to manufacture and distribute methamphetamine, in violation of 21 U.S.C. § 846, and one count of manufacturing methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A) and 18 U.S.C. § 2. At sentencing, the Court imposed a twenty-year sentence, the mandatory minimum sentence for the offenses.

Presently before the Court are two pro se motions¹ filed by defendant. The first, a Motion to Vacate, Set Aside, and/or Correct Sentence, and Authority in Support Thereof, Brought in Accordance with 28 U.S.C. § 2255 ("§ 2255 motion"), was filed on January 31, 2008 and raises two ineffective assistance of counsel claims. With regard to the first claim, defendant argues two related issues: (1) that counsel was ineffective for advising him that he would receive a sentence of twenty (20) years or more regardless of whether he pled guilty, which advice was allegedly incorrect to the extent that the government's withholding of an Information under 21 U.S.C. § 851,² with or without a plea agreement, would have avoided the twenty-year mandatory minimum sentence arising from defendant's prior convictions, and (2) that counsel was ineffective for failing to pursue plea negotiations based on the government's withholding of a § 851 Information.³ Defendant's second claim alleges that counsel was ineffective for failing to communicate with him regarding the filing of a notice of appeal.

On April 8, 2008, following the filing of the government's response to his § 2255 motion, defendant filed the second motion, a pro se Motion for Discovery, Pursuant to Rule 6(a) of the Rules Governing Section 2255 Proceedings ("Discovery Motion"). In the latter motion, defendant requests discovery on other cases in which the government did not file § 851 Informations even though the defendants were eligible for enhanced penalties. On June 2, 2008, defendant, through counsel, filed a Supplemental Memorandum in Support of his Motion for Discovery. In that filing, defendant requested additional discovery, specifically "any and all memoranda, handbooks and other writings detailing the government's policies concerning the filing of § 851 Informations, and any and all memoranda, notes or other writing concerning plea discussions or the filing of § 851 Information in the underlying matter." (Supp. Disc. Memo. 1.)

The Court held a hearing on February 24, 2009. Upon consideration of the evidence presented at that hearing and the arguments of counsel, for the reasons set forth below, the Court denies defendant's § 2255 Motion. The Discovery Motion, as supplemented, is granted in part and denied in part. The Discovery Motion is granted with respect to defendant's requests for "any and all memoranda, hand books and other writings detailing the government's policies concerning the filing of 851 Informations" not previously produced and "any and all memoranda, notes or other writings concerning plea discussions or the filing of 851 Information in the underlying matter." The Discovery Motion, as supplemented, is denied with respect to defendant's request for "information concerning the identity of cases in which defendants were eligible for enhancement under 21 U.S.C. § 851, but in which such enhancement was witheld."

II. BACKGROUND

On December 14, 2005, defendant was charged in two counts of a three-count Indictment as follows: Count 1—Conspiracy to manufacture and distribute methamphetamine, in violation of 21 U.S.C. § 846; Count 2—Manufacturing methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A) and 18 U.S.C. § 2. Gregory Pagano, Esq., was retained as defense counsel. At his arraignment on December 21, 2005, defendant pled not guilty. Defendant's trial was initially scheduled to commence on February 14, 2006, but was later continued to July 31, 2006.

On July 13, 2006, approximately two weeks before trial, Kenya Mann, the Assistant United States Attorney assigned to prosecute the case, filed an Information pursuant to 21 U.S.C. § 851 ("§ 851 Information"). The Information covered two prior convictions—a November 28, 1988, conviction for distribution of methamphetamine and an October 31, 1989 conviction for conspiracy to distribute P2P and to manufacture methamphetamine. If convicted of the crimes charged in the Indictment—manufacturing or conspiring to manufacture in excess of 500 grams or more of methamphetamine—defendant's prior convictions, as stated in the § 851 Information, would have made him a career offender and subjected him to a mandatory life sentence under 21 U.S.C. § 841(b)(1)(A).

Trial commenced on July 31, 2006. On August 3, 2006, the jury found defendant guilty of the offenses charged in Counts 1 and 2 of the Indictment. The jury further found that defendant was responsible for manufacturing and conspiring to manufacture in excess of five hundred (500) grams of a mixture or substance containing a detectable amount of methamphetamine.⁴

Prior to sentencing, the United States Probation Office determined that the 1988 and 1989 convictions listed in defendant's § 851 Information were related.⁵ Because the two convictions were related, defendant did not qualify as a career offender under Section 4B1.1 of the United States Sentencing Guidelines. That provision of the guidelines having been found inapplicable, the Presentence Report ("PSR") calculated a total offense level of 37 and a criminal history category of III, resulting in a guideline imprisonment range of 262 to 327 months. At the sentencing hearing on May 16, 2007, the Court ruled that defendant's prior convictions were related for purposes of the career offender guideline and adopted the guidelines calculations in the PSR. The Court also concluded that the two convictions were related for purposes of the enhanced penalties in 21 U.S.C. § 841(b)(1)(A), resulting in a mandatory minimum sentence of twenty (20) years imprisonment, not life imprisonment. The Court granted defendant's Motion for Downward Departure and sentenced defendant to incarceration for 240 months— the twenty (20) year statutory mandatory minimum. Defendant did not file an appeal.

On September 25, 2007 defendant filed a Pro Se Motion to Modify Sentence, and Authority in Support Thereof, Brought Pursuant to Title 18, U.S.C. § 3582(c)(1)(B). In that motion, defendant argued that 18 U.S.C. § 3582(c)(1)(B) provided the Court with discretion to sentence him below the twenty (20) year statutory mandatory minimum sentence required by 21 U.S.C. § 841(a)(1) in light of defendant's poor health. Defendant also argued that his sentence was improper because the Court did not conduct a colloquy to determine whether he affirmed or denied his prior convictions, as required by 21 U.S.C. § 851(b). Thereafter, on October 15, 2007, defendant filed a Pro Se Motion to Stay Sentence of Imprisonment and for Release on Bond pending the Court's ruling on the Motion to Modify Sentence. The Court denied both motions by Order and Memorandum dated November 29, 2007.

Defendant filed the instant pro se Motion to Vacate, Set Aside, and/or Correct Sentence, and Authority in Support Thereof, Brought in Accordance with 28 U.S.C. § 2255 on January 31, 2008. Upon reviewing the motion, the government's response, pro se defendant's reply, and the government's sur-reply, the Court concluded that an evidentiary hearing would be necessary to resolve the issues raised by defendant, and, by Order dated March 26, 2008, the Court appointed counsel to represent the defendant. Thereafter, on April 8, 2008, defendant filed a pro se Motion for Discovery, Pursuant to Rule 6(a) of the Rules Governing Section 2255 Proceedings.⁶

Subsequent to the appointment of counsel, both defendant and the government filed a number of supplemental briefs and related documents which fleshed out the issues raised in defendant's pro se motions. The most significant of these filings were two declarations filed on July 8, 2008, one by Kenya Mann and one by Thomas Perricone, Chief of the Narcotics and Dangerous Drugs Section of the United States Attorney's Office for the Eastern District of Pennsylvania. Perricone was also the supervisor on defendant's case.

Counsel participated in several telephone conferences with the Court to discuss defendant's Discovery Motion and whether that motion should be decided prior to any evidentiary hearing. Following those conferences, the Court concluded that, in light of the significant privilege issues raised by the government with respect to the requested discovery, the appropriate course of action would be to proceed with the evidentiary hearing without discovery and determine after that hearing whether further discovery and a second hearing would be necessary.

By Order dated January 14, 2009, the Court scheduled the evidentiary hearing for February 24, 2009. Because the defendant's medical conditions prevented him from appearing at the hearing in person, the Court, by agreement, provided for his participation by video conference. Four witnesses testified at the February 24, 2009 hearing: defendant, Thomas Perricone, Kenya Mann, and Gregory Pagano, defendant's trial and sentencing counsel. At the conclusion of the hearing, the Court deferred ruling on defendant's motions.

III. MOTION TO VACATE, SET ASIDE, AND/OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255

Defendant's § 2255 motion, as supplemented, asserts two ineffective assistance of counsel claims. With regard to the first claim, defendant argues two related issues: (1) that counsel was ineffective for advising him that he would receive a sentence of twenty years or more regardless...