The opinion of the court was delivered by: FAITH HOCHBERG, District Judge
Petitioner Joseph Moten ("Petitioner" or "Moten") filed this
pro se motion to vacate, set aside, correct, amend, or modify
his sentence, pursuant to 28 U.S.C. § 2255. Petitioner claims he
received ineffective assistance of counsel because his attorney
(1) failed to object to the imposition of a three year period of
supervised release; (2) failed to argue that possession of nine
vials of cocaine was not a "felony offense"; and (3) failed to
inform Petitioner that the 2K2.1(b)(5) enhancement required proof
beyond a reasonable doubt.
On June 13, 2003, undercover officers with the Jersey City
Police Department observed Moten dealing narcotics on Martin
Luther King Drive in Jersey City. Upon seeing the undercover
officers, Moten attempted to flee into a nearby bar. The officers
pursued Moten into the bar. During the search incident to arrest,
the officers found a loaded Rugar P90, .45 caliber semiautomatic handgun. The officers also retrieved nine clear
vials of cocaine.
On November 3, 2003, Moten pled guilty to possession of a
firearm by a convicted felon in violation of 18 U.S.C. § 922
(g)(1). Moten further allocuted to possession with intent to
distribute of nine vials containing cocaine, a Schedule II
narcotic controlled substance. Accordingly, because Moten
possessed the firearm in connection with another felony offense,
Specific Characteristic § 2K2.1(b)(5) was applied for an increase
of 4 levels, resulting in an Adjusted Offense Level of 28. The
Petitioner then qualified for an adjustment for Acceptance of
Responsibility of -3, leaving him with a final Adjusted Offense
Level of 25. The plea agreement also advised Moten that he faced
an additional two to three years of supervised release.
Furthermore, the agreement stipulated that the sentence to be
imposed was within the sole discretion of the sentencing judge,
and that the United States Attorney's office made no
representation as to which guideline range the judge would find
applicable. On February 26, 2004, Moten was sentenced to 110
months imprisonment, with an additional term of three years
28 U.S.C. § 2255 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 . . . may move the court which
imposed the sentence to vacate, set aside or correct
the sentence. Unless the motion and the files and the
records of the case conclusively show that the
prisoner is entitled to no relief, the court shall
cause notice thereof to be served upon the United
States attorney, grant a prompt hearing thereon,
determine the issues and make findings of fact and
conclusions of law with respect thereto.
28 U.S.C. § 2255; see also Daniels v. United States,
532 U.S. 374
, 377 (2001). A federal district court must hold an evidentiary hearing on a Section 2255 only
when the Petitioner raises an issue of material fact because the
court would need to determine the truth of the allegations.
Solis v. United States, 252 F.3d 289
, 294 (3d Cir. 2001);
United States v. Nahodil, 36 F.3d 323
, 326 (3d Cir. 1994).
However, the defendant is not entitled to a hearing "if his
allegations were contradicted conclusively by the record or if
the allegations were patently frivolous." Solis,
252 F.3d at 294. Accordingly, the court must accept Petitioner's allegations
as true unless those allegations are "clearly frivolous." United
States v. Day, 969 F.2d 39
, 42 (3d. Cir. 1992); Virgin Islands
v. Forte, 865 F.2d 59
, 62 (3d Cir. 1989).
For the reasons discussed below, the Court finds that there is
no need to hold an evidentiary hearing as the motion and record
conclusively show that Petitioner is not entitled to relief.
A. Petitioner's Claim of Ineffective Assistance of Counsel
Petitioner's claim of ineffective assistance on counsel rests
of three assertions: counsel's failure to object to the three
year supervised release, her failure to argue that possession of
nine vials of cocaine is not a felony, and Petitioner's assertion
that the enhancement was an element of the offense as opposed to
a sentencing enhancement.
In order to prevail on a claim of ineffective assistance of
counsel, Petitioner must meet the two-pronged test set out in
Strickland v. Washington, 466 U.S. 668, 687-88 (1984). First,
Petitioner must establish that counsel's performance was
deficient because it fell below an objective standard of
reasonableness. Id. at 687-88. Second, Petitioner must show he
suffered "actual prejudice" from his counsel's performance. Id.
at 687. In examining whether an attorney's conduct meets the first part of the Strickland test,
the court must determine whether, in light of all of the
circumstances, "the identified acts or omissions were outside the
range of professionally competent assistance." Id. at 690. With
regard to the second part of the test, the 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. Id. at 694; see also United States v.
Day, 969 F.2d 39, 41 (3d Cir. 1992). It is not enough for
Petitioner to show that the errors had "some conceivable" effect
on the outcome. Id. (citing United States v.
Valenzuela-Bernal, 458 U.S. 858, 866-67 (1982)). Petitioner must
show a reasonable likelihood that additional information or
specific actions by counsel would have led to a favorable result.
See Lewis v. Mazurkiewicx, 915 F.2d 106, 115 (3d Cir. 1990).
Moreover, judicial scrutiny of counsel's performance must be
highly deferential for it is too easy to second guess counsel's
assistance in hindsight. Strickland, 466 U.S. at 690.
Petitioner must overcome the presumption that counsel's actions
"might be considered sound strategy." Id. at 689-90.
Petitioner's first argument regarding his counsel's failure to
object to the three year supervised release does not meet the
first prong of the Strickland test because he has not
demonstrated that his counsel was ineffective. The signed plea
agreement specifically advised Petitioner that he faced a period
of two to three years of supervised release following his
completion of any term of imprisonment imposed by the Court. The
plea agreement also advised Petitioner that his sentence is
wholly within the discretion of the sentencing judge, who is not
bound by the terms of the plea agreement. Given the explicit
nature of the plea agreement and the fact that the three year
supervised release term was within the terms of that agreement,
counsel's failure to object does not fall below an "objective
standard of reasonableness." Id. at 687-88. Petitioner's second claim is that his counsel erred in not
arguing that possession of nine vials of cocaine is not a felony
under state or federal law. This is obviously an incorrect
assertion as possession of cocaine with intent to distribute
vials of cocaine is a felony under both state, N.J.S.A. 2C:35-5,
and federal law, 21 U.S.C. § 841.
Petitioner's final claim alleges that counsel failed to inform
Petitioner that the 2K2.1(b)(5) enhancement is not a sentencing
enhancement, but rather an essential element of the crime and
therefore must be proven at trial beyond a reasonable doubt.
Petitioner claims he would have insisted the government prove the
enhancement beyond a reasonable doubt if had he been correctly
informed of 2K2.1(b)(5)'s status. However, petitioner's assertion
that the 2K2.1(b)(5) enhancement requires proof beyond a
reasonable doubt is incorrect, and therefore his counsel did not
err. See United States v. Hallam, 2005 WL 1149775, *5-6 (May
17, 2005) (upholding the application of 2K2.1(b)(5) as a
sentencing enhancement supported by a preponderance of the
evidence). Because the disputed enhancement ordering three years
supervised release did not exceed the maximum statutory sentence
of ten years, pursuant to 18 U.S.C. 922(g), evidence giving rise
to the enhancement need only proof by a preponderance. Cf.
Apprendi v. New ...