United States v. Peters

UNITED STATES v. EDWARD PETERS

CR 16-168

CV 17-1400

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

August 16, 2018

OPINION AND ORDER

SYNOPSIS

In this action, a criminal complaint, filed on May 12, 2015, charged Defendant with violating 18 U.S.C. § 922(g)(1). On May 22, 2015, that proceeding was transferred to Docket No. 15-109. Then, on August 16, 2016, at the current docket number, the Government filed an information charging Defendant with one Count of violating 18 U.S.C. § 922(j). At a hearing held that same date, Defendant waived indictment, pleaded guilty to violating Section 922(j), and was sentenced to a ten-year term of imprisonment pursuant to the parties' plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(C). At the hearing, the Government moved to dismiss the charge at Docket No. 15-109, and the Court granted the Motion. Defendant appealed. On March 21, 2017, the Court of Appeals granted the Government's Motion to enforce an appellate waiver in Defendant's plea agreement.¹

Before the Court is Defendant's Motion to Vacate pursuant to 28 U.S.C. § 2255, for which he was provided notice pursuant to United States v. Miller, 197 F. 3d 644 (3d Cir. 1999). Following Miller notice, Defendant elected to have his Motion ruled on as filed. His Motion alleges ineffective assistance of plea counsel, in failing to advise Defendant, during pleanegotiations, that he would be able to challenge his armed career criminal status, and for failing to properly deal with an allocution error. Also before the Court is the Government's Motion for a judicial finding of waiver of attorney-client privilege. For the following reasons, Defendant's Motion will be denied, and the Government's denied as moot.

I. APPLICABLE STANDARDS

A prisoner in federal custody may move to vacate his or her sentence under 28 U.S.C. § 2255(a) if such "sentence was imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255(a). "[R]elief under § 2255 is available only when 'the claimed error of law was a fundamental defect which inherently results in a complete miscarriage of justice, and ... present[s] exceptional circumstances where the need for the remedy afforded by the writ ... is apparent.'" United States v. Travillion, 759 F.3d 281, 288 (3d Cir. 2014) (quoting Davis v. United States, 417 U.S. 333, 346, 94 S. Ct. 2298, 41 L.Ed.2d 109 (1974)). A district court need not hold an evidentiary hearing on a Section 2255 motion if the motion, files, and records show conclusively that the defendant is not entitled to relief. United States v. Ritter, 93 F. App'x 402, 404 (3d Cir. 2004). Further, I have considered Defendant's submissions in accordance with well-established liberal standards applicable to pro se pleadings. In this case, an evidentiary hearing is unnecessary, and the Motion will be disposed of on the record.

II. DEFENDANT'S MOTION

Defendant challenges several aspects of counsel's conduct. Primarily, he contends that counsel was ineffective in the context of plea negotiations, because he failed to advise Defendant that he could challenge the validity of his predicate offenses, which would apply to his sentence absent a plea. In particular, Defendant asserts that counsel could have argued or advised that his predicate drug offenses were not committed on different occasions, as required by the ArmedCareer Criminal Act ("ACCA"), 18 U.S.C. § 924(e). He avers that he would not have pleaded guilty had he understood that this argument was available to him. Further, Defendant raises several additional challenges to counsel's conduct, relating to sentencing enhancements, the status of the gun involved in the crime to which he pleaded guilty, and points for cooperation.

A. Strickland v. Washington

Defendant's Motion implicates the standards applicable to claims of ineffective assistance of counsel. In order to demonstrate ineffective assistance, a defendant must show that counsel's performance fell below "the wide range of professionally competent assistance" and also that the deficient conduct prejudiced defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). "This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Buehl v. Vaughn, 166 F.3d 163, 169 (3d Cir. 1999) (quoting Strickland, 466 U.S. at 687). Because both prongs of Strickland must be met, the failure to establish one or the other is fatal to an ineffective assistance claim. See id.

In evaluating the competency of assistance, counsel's conduct must be assessed according to the facts of the particular case, viewed as of the time of counsel's conduct. Id. at 689. A Court's review of ineffective assistance claims must be "'highly deferential,'" and must "'indulge a strong presumption' that, under the circumstances, counsel's challenged actions 'might be considered sound ... strategy.'" Buehl v. Vaughn, 166 F.3d 163, 169 (3d Cir. 1999) (quoting Strickland, 466 U.S. at 689). The standard is to be judged objectively, and not subjectively according to what actually motivated counsel's decisionmaking. See Muff v. Dragovich, 310 F. App'x 522, 525 (3d Cir. 2009). It is well established that counsel is not ineffective for failing to raise weak or frivolous challenges. Indeed, "the 'process of 'winnowing out weaker arguments... and focusing on' those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy.'" Sistrunk v. Vaughn, 96 F.3d 666, 670 (quoting Smith v. Murray, 477 U.S. 527, 536, 106 S. Ct. 2661, 91 L. Ed. 2d 434 (1986)). "It is [] only the rare claim of ineffective assistance of counsel that should succeed under the properly deferential standard to be applied in scrutinizing counsel's performance." United States v. Gray, 878 F.2d 702, 711 (3d Cir. 1989).

Under the prejudice prong, the pertinent question is "whether there is a reasonable probability that, absent the errors," the result would have been different. Id. at 695; see also United States v. Gray, 878 F.2d 702, 709-13 (3d Cir.1989). The prejudice prong of Strickland rests on "whether counsel's deficient performance renders the result of the . . . proceeding fundamentally unfair," or strips the defendant of a "substantive or procedural right to which the law entitles him." Id. at 844. To demonstrate prejudice, a claimant must show that counsel's errors had more than "some conceivable effect on the outcome of the proceeding." Strickland, 466 U.S. at 693.

B. ACCA

Defendant asserts that counsel advised him that absent the plea, he could face an ACCA sentence carrying a fifteen-year minimum term of imprisonment.² He further asserts that he was unaware that he could have challenged the applicability of ACCA on grounds that his predicate convictions did not occur on different occasions, and that counsel was ineffective for failing to properly investigate and advise him regarding this issue. As Defendant argues, the intended ACCA charge was based on "a single spree of drug transactions that were charged in asingle indictment and disposed of in a single proceeding." [ECF No. 17, p. 2]. Defendant states, and the Court accepts for present purposes, that he would not have pleaded guilty had he believed that he could raise this challenge.³ In this vein, Defendant also suggests that counsel should have argued that a judge, as opposed to a jury, cannot make a "different occasions" determination.

Defendant's contention is grounded in ACCA's requirement that, to be counted as separate offenses, predicate offenses must have been "committed on occasions different from one another." 18 U.S.C. § 924(e)(1).⁴ This Circuit has adopted a "separate episode test," requiring that the criminal episodes be "distinct in time." United States v. Swan, 661 F. App'x 767, 770 (3d Cir. 2016) (citing Blair, 734 F.3d at 228-29); United States v. Chatman, 487 F. App'x 769, 771 (3d Cir. 2012). Otherwise stated, "[a]s long as crimes are successive, and not simultaneous, they occur on different occasions for ACCA enhancement purposes." United States v. Bargeron, 435 F. App'x 892, 893-94 (11th Cir. 2011). Accordingly, the "critical inquiry...is whether the offenses occurred sequentially." United States v. Fuller, 453 F. 3d 274, 278 (5th Cir. 2006). Even when a defendant is arrested for and convicted of multiple offenses at one time, the offenses are distinct in time if committed days apart. See United States v. Crump, 229 F. App'x 186, 188 (3d Cir. 2007). A court may look to documents approved by Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005), including charging instruments, toresolve a "different occasions" question. United States v. Wilson, No. 6-97, 2017 U.S. Dist. LEXIS 140262, at *8 (W.D. Pa. Aug. 31, 2017) (collecting cases).

Here, the Government has submitted an information filed in the Court of Common Pleas of Allegheny County, Criminal Action No. CC201107969, charging Defendant with various drug offenses. The information charges that Defendant violated 35 P.S. § 780-113(a)(30) on three occasions: March 17, 2011, March 31, 2011, and May 27, 2011. The information specifically charged the delivery of and possession with intent to deliver heroin on each occasion. The Government has also submitted a state court document reflecting that Defendant pleaded guilty to these charges on February 16, 2012, in open court and with counsel. The pre-plea Presentence Investigation Report filed at Docket No. 15-109 stated that Defendant would be deemed an armed career criminal based on these particular offenses. Defendant does not dispute the validity of the state court convictions, or the Shepard documents denoting those convictions. A violation of Section 780-113(a)(30) involving heroin has been found to be a "serious drug offense" for ACCA purposes. See, e.g., United States v. Wiltshire, No....