United States v. Cobb

110 F.Supp.3d 591

UNITED STATES

v.Jonathan COBB.

Criminal Action No. 09–733–01.

Civil Action No. 13–4754.

United States District Court, E.D. Pennsylvania.

Signed June 24, 2015.

Neuman Leverett, III, Karen S. Marston, U.S. Attorney's Office, Philadelphia, PA, for United States.

William T. Cannon, William T. Cannon, P.C., Philadelphia, PA, for Jonathan Cobb.

MEMORANDUM

EDUARDO C. ROBRENO, District Judge.

Petitioner Jonathan Cobb is a federal prisoner incarcerated at the Federal Correctional Institution, Fort Dix (New Jersey), serving a sentence of incarceration of 288 months (24 years) for drug-related offenses. Cobb filed a pro se petition under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence, making several claims—including that he received ineffective assistance of counsel at the plea bargaining stage. The Court granted him an evidentiary hearing on that claim and appointed counsel to represent him. Now, following the evidentiary hearing and additional briefing, the motion is ripe for disposition. For the reasons that follow, the Court will grant the § 2255 petition on this claim, and order further briefing to determine what kind of relief Petitioner is owed.

I. BACKGROUND

Petitioner was arraigned on the First Superseding Indictment, ECF No. 81, on April 29, 2010, for one count of conspiracy to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(B), and one count of possession with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(B), and aiding and abetting, in violation of 18 U.S.C. § 2. At his April 29, 2010 arraignment, Petitioner entered a plea of not guilty.

Following a five-day trial, a jury convicted Petitioner and co-conspirator David Cobb (Petitioner's brother) on all counts.¹ At sentencing, the Court fixed Petitioner's Guidelines range at 130 to 162 months of custody. Sentencing Hr'g Tr. 45:14–19, ECF No. 210. The Court granted the Government's motion for a variance, and Petitioner was sentenced to 288 months of imprisonment, 8 years supervised release, and a $2,500 fine. District Court Judgment 1, ECF No. 186. On November 10, 2010, Petitioner filed a Notice of Appeal through Counsel. Pet.'s Notice of Appeal 1, ECF No. 186. On May 25, 2012, the Third Circuit affirmed the decision of the District Court as to both Petitioner and David Cobb. Third Circuit Judgment 2, ECF No. 215.²

Petitioner claims in his pro se § 2255 Petition that counsel was ineffective for failing to:

1. Advise Petitioner of 21 U.S.C. § 851 notice and challenge the notice;

2. Challenge the Government's affidavit in support of wiretap evidence;

3. Advise Petitioner of the advantages of entering a guilty plea; and

4. Provide real notice to Petitioner of the conspiracy charge.

He also makes a supplemental claim of a Sixth Amendment Due Process violation based on Alleyne v. United States, ––– U.S. ––––, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013).

On September 9, 2014, the Court entered an Order, ECF No. 241, with accompanying Memorandum, ECF No. 240, granting Petitioner an evidentiary hearing as to his claim of ineffective assistance due to counsel's failure to inform Petitioner of the options and benefits of entering an open plea. The Court denied the balance of Petitioner's § 2255 claims. United States v. Cobb, No. 09–733–01, 2014 WL 4433868 (E.D.Pa. Sept. 9, 2014).

On November 7, 2014, the Court held an evidentiary hearing, at which Petitioner was represented by Caroline Goldner Cinquanto, Esquire. Petitioner and Petitioner's trial counsel, William T. Cannon, testified. Following the hearing, Petitioner filed a counseled supplemental brief in support of his § 2255 Petition. ECF No. 251. The Government filed a Response, ECF No. 252, and Petitioner filed a Reply Brief, ECF No. 258. Petitioner also filed a Motion to Amend his § 2255 Petition, arguing that his claim that his trial counsel provided ineffective assistance by grossly miscalculating his sentencing exposure relates back to his original claim. The Government did not oppose the motion, and the Court granted it. ECF No. 259.

Petitioner's remaining claim is now ripe for disposition.

II. LEGAL STANDARD

A federal prisoner "claiming the right to be released ... may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a). Such a prisoner may attack his sentence on any of the following grounds: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose the sentence; or (3) the sentence was in excess of the maximum authorized by law. Id. An evidentiary hearing on the merits of a prisoner's claims is necessary unless it is clear from the record, viewed in the light most favorable to the petitioner, that he is not entitled to relief. Id. § 2255(b). The court is to construe a prisoner's pro se pleading liberally, Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam), but "vague and conclusory allegations contained in a § 2255 petition may be disposed of without further investigation," United States v. Thomas, 221 F.3d 430, 437 (3d Cir.2000).

A § 2255 petition may be based upon a violation of the Sixth Amendment right to effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 686, 697, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). By claiming his counsel was ineffective, a defendant attacks "the fundamental fairness of the proceeding." Id. at 697, 104 S.Ct. 2052. Therefore, as "fundamental fairness is the central concern of the writ of habeas corpus," "[t]he principles governing ineffectiveness should apply in federal collateral proceedings as they do on direct appeal or in motions for a new trial." Id. Those principles require a convicted defendant to establish both that (1) his counsel's performance was deficient, and (2) the deficient performance prejudiced his defense. Id. at 687, 104 S.Ct. 2052 ; Holland v. Horn, 519 F.3d 107, 120 (3d Cir.2008).

To prove deficient performance, a petitioner must show that his "counsel's representation fell below an objective standard of reasonableness." Id. (quoting Harrington v. Richter, 562 U.S. 86, 104, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) ). The court's "scrutiny of counsel's performance must be highly deferential." Douglas v. Cathel, 456 F.3d 403, 420 (3d Cir.2006) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052 ). Accordingly, there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Grant v. Lockett, 709 F.3d 224, 234 (3d Cir.2013) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052 ). In raising an ineffective assistance claim, the petitioner must first identify the acts or omissions alleged not to be the result of "reasonable professional judgment." Strickland, 466 U.S. at 690, 104 S.Ct. 2052. Next, the court must determine whether those acts or omissions fall outside of the "wide range of professionally competent assistance." Id.

To prove prejudice, a convicted defendant must affirmatively prove that the alleged attorney errors "actually had an adverse effect on the defense." Id. at 693, 104 S.Ct. 2052. "The defendant 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." Id. at 694, 104 S.Ct. 2052.

III. DISCUSSION

Petitioner's remaining claim, which was explored at the evidentiary hearing, is that his trial counsel provided ineffective assistance by failing to properly inform him of the option and benefits of entering an open plea, including by grossly miscalculating his sentencing exposure.

A. The Evidentiary Hearing

At the evidentiary hearing, Petitioner's trial counsel, William T. Cannon, testified that before trial, Petitioner and Cannon discussed Petitioner's three options: "simply to plead guilty," "to plead guilty with cooperation with the government," or "simply to go to trial." Evidentiary Hr'g Tr. 5:12–15, Nov. 7, 2014 [hereinafter Hr'g Tr.]. Cannon also testified that he discussed the Sentencing Guidelines with Petitioner, and in doing so, "explained the benefits of pleading guilty with or without cooperation in terms of reducing the offense level by three levels." Id. 5:16–21. In support of this testimony, the Government introduced a letter Cannon wrote to Petitioner on June 1, 2010—just two weeks before trial was scheduled to begin. Letter from William T. Cannon, Esq., to Jonathan Cobb (June 1, 2010), Gov. Ex. 2 [hereinafter June 1 Letter]. In that letter, Cannon said, "As you know, I am prepared to try this case if that must be done, but I have consistently urged you to consider either simply pleading guilty or pleading guilty with continued cooperation with the government." Id. (emphasis added). The letter also said, "You may think right now that there is some satisfaction to be derived from refusing to plead guilty or refusing to cooperate," and explained to Petitioner why he should consider cooperating with the Government. Id. (emphasis added).

While cross-examining Cannon, counsel for Petitioner focused largely on whether Cannon had correctly informed Petitioner before trial of his likely sentencing exposure. Cannon testified that at some point in time, he and the Government incorrectly believed Petitioner was a career offender—a designation that would increase his Guidelines range from 130–162 months to 360 months to life. Hr'g Tr. 11:8–12:8, 15:10–17. Initially, Cannon believed that he had learned "a month or two before the trial"—sometime in April or May 2010—that Petitioner was not, in fact, a career offender. Id. 12:23–24. However, counsel pointed out that based on notes Cannon had created on June 1, 2010—the same day he wrote the letter discussed above—Cannon clearly still believed as of that date that Peti...