The opinion of the court was delivered by: JOHN BISSELL, Chief Judge, District
This matter comes before the Court on a motion filed by
Petitioner Joseph Wash pursuant to 28 U.S.C. § 2255 seeking to
vacate, set aside or correct his sentence. Petitioner sets forth
the following grounds for this motion: (1) ineffective assistance
of counsel, and (2) the sentence violates Blakely v.
Washington, 542 U.S. 296, 124 S.Ct. 2531 (2004). FACTS & PROCEDURAL HISTORY
Officials of the Federal Bureau of Investigation ("FBI")
received information in November 2002 that the Petitioner, Joseph
Wash, was involved in substantial drug trafficking in the
Irvington, New Jersey area. See Presentence Investigation
Report ("PSR"), ¶ 6. The resulting investigation revealed that
one of the persons with whom Petitioner worked distributing
crack-cocaine was his cousin, Gary Smith. Id. It was later
learned that the duo's source of supply was a woman known as
"Moms."*fn1 Id. ¶¶ 21-22. Between November 21, 2002 and
January 16, 2003, the FBI used a confidential informant to make
numerous purchases totaling 222.3 grams of crack-cocaine, from
Wash and Smith. Id. ¶¶ 7-15.
On January 23, 2003, pursuant to issued warrants, Petitioner
and Gary Smith were arrested. Id. ¶ 16. Upon Mr. Smith's arrest
at his residence, FBI agents seized an additional 397.2 net grams
of crack-cocaine, a Lorcin 380 semi-automatic pistol, one
magazine loaded with seven rounds, and $1,018 in U.S. currency.
Id. ¶ 17. Petitioner was arrested on the street in Irvington,
New Jersey. Thereafter, FBI agents traveled to his residence and,
pursuant to a consent search, seized a Remington Rand .45 caliber
semi-automatic handgun (with a defaced serial number), seven rounds of ammunition and one empty 5.56 mm magazine. Id.
¶ 18. After admitting it was his, FBI agents also seized a 9 mm
Jennings firearm from Petitioner's girlfriend Quadyrah Adam's,
home. Id. ¶ 19. Ms. Adams stated to agents that because
Petitioner paid her rent, on occasion, she allowed Petitioner to
store and "cook up" cocaine in her apartment. Id. Subsequent to
his arrest, Petitioner admitted to storing a Bushmaster
semi-automatic rifle in a public storage unit. Id. ¶ 20. This
rifle was also seized by law enforcement. Id. In a post-arrest
statement, Petitioner admitted to having sold crack-cocaine for
approximately three to four years. Id. ¶ 22. Petitioner also
stated that every ten days, he purchased between 400 and 500
grams of cocaine from "Moms." Id. ¶ 22.
On July 8, 2003, Petitioner entered a plea of guilty to the
one-Count Information, Criminal Number 03-505. The Information
charged that from August 2002 through January 22, 2003,
did knowingly and intentionally conspire and agree
with others to distribute and possess with intent to
distribute more than 50 grams of a mixture or
substance containing cocaine-base, specifically
crack-cocaine, a Schedule II narcotic drug controlled
substance, contrary to Title 21, United States Code,
Section 841(a)(1). In violation of Title 21,
United States Code, Sections 846 and 841(b)(1)(A)(iii).
See Information, Attached to Government's Answer, Ex. A. In a
cooperating written plea agreement between the United States and Petitioner dated February 26, 2003, the parties stipulated
that, pursuant to the United States Sentencing Guidelines
("U.S.S.G."), the Base Offense Level applicable to Petitioner's
violation was 36. See Plea Agreement, Schedule A, Attached to
Government's Answer, Ex. B. Furthermore, the parties stipulated
that as of that time, Petitioner "clearly demonstrated a
recognition and affirmative acceptance of personal responsibility
for the offense charged." Id. Accordingly, if Petitioner were
to clearly demonstrate acceptance of responsibility through the
date of sentencing, a two-level acceptance of responsibility
downward adjustment pursuant to U.S.S.G. § 3E1.1(a) was
warranted. Id. In addition, because Petitioner intended to
plead guilty, he was entitled to an additional one-level downward
adjustment pursuant to U.S.S.G. § 3E1.1(b). Id. Finally, the
parties stipulated to a conditional waiver of appeal which
provided that Petitioner waived his right to file any appeal, any
collateral attack, or any other writ or motion after sentencing,
including but not limited to an appeal under 18 U.S.C. § 3742 or
a motion under 28 U.S.C. § 2255, which challenges the sentencing
Court's determination or imposition of the offense level, if the
total offense level determined by the Court is equal to or less
than 33. Id. Conversely, the conditional waiver of appeal
precluded the Government from appealing the sentencing Court's
calculation of the offense level if that offense level was equal to or greater than 36. Id.
On January 6, 2004, this Court sentenced Petitioner to a term
of imprisonment of 70 months. See Judgment of Conviction, at 2,
Attached to Government's Answer, Ex. C. This sentence departed
from the Sentencing Guidelines Total Offense Level of 35 due to
the substantial assistance Petitioner provided to the Government.
Id. at 4. The Court, relying on the PSR, found that a Base
Offense Level of 36 applied. Based on the firearms possessed by
Petitioner in connection with the conspiracy, the Court found
that a two-level enhancement pursuant to U.S.S.G. § 2D1.1(b)(1)
also applied. The adjusted offense level of 38 was thereafter
reduced three levels for Petitioner's acceptance of
responsibility to a Total Offense Level of 35. With a criminal
history category of II, the corresponding sentencing guideline
range was 188 to 235 months. This Court, after hearing the
arguments of defense counsel and the Government, granted the
Government's motion pursuant to U.S.S.G. § 5K1.1 and
18 U.S.C. § 3553 and effected a ten-level downward departure in Petitioner's
sentence, sentencing him at offense level 25. The Petitioner did
not file an appeal with the United States Court of Appeals for
the Third Circuit.
On January 3, 2005, Petitioner filed a petition to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. § 2255.
Petitioner raises two grounds for the § 2255 motion: (1) he was denied effective assistance of counsel because his counsel failed
to object to a two-level sentence enhancement pursuant to
U.S.S.G. § 2D1.1, and (2) by finding that the two-level
enhancement applied, this Court "usurped the jury's function and
violated [his] Sixth Amendment rights." See Petition, at 3-6.
Pursuant to 28 U.S.C. § 2255, a federal prisoner may move the
sentencing court to vacate, set aside or correct a sentence "upon
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; see
also U.S. v. Rosendary, 152 F.Supp.2d 835, 838 (W.D.Pa.
2001). "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 rudimentary demands
of fair procedure." Rosendary, at 838 (quoting U.S. v.
Gordon, 979 F.Supp. 337, 339 (E.D.Pa. 1997); Hill v. U.S.,
368 U.S. 424, 428 (1962)) (internal quotations omitted).
Title 28 U.S.C. § 2255 generally "may not be employed to
relitigate questions which were raised and considered on direct
appeal." U.S. v. DeRewal, 10 F.3d 100, 105 n. 4 (3d Cir. 1993) (quoting Barton v. U.S., 791 F.2d 265, 267 (2d Cir.
1986)). Moreover, with regard to those claims which were never
raised on direct appeal, the Supreme Court's decision in U.S. v.
Frady, 456 U.S. 152 (1982), reaffirmed the "cause and actual
prejudice standard" which was first enunciated in Davis v.
U.S., 411 U.S. 233 (1973). DeRewal, at 103. Under this
standard, "a convicted defendant must show both (1) `cause'
excusing his . . . procedural default, and (2) `actual prejudice'
resulting from the errors of which he complains." Id. (quoting
Frady, at 168)). It is well recognized, however, that a claim
of ineffective assistance of counsel should be raised under
Section 2255 rather than on direct appeal. DeRewal, at 103-04.
As stated above, Petitioner agreed that in return for the
Government's concessions in the plea agreement he would not
appeal or collaterally attack the determination or imposition of
his offense level if this Court sentenced him using an offense
level of 33 or less. This Court sentenced Petitioner consistent
with an offense level of 25. Petitioner nevertheless brought the
instant challenge. In United States v. Khattak, 273 F.3d 557,
563 (3d Cir. 2001), the Third Circuit held that "[w]aivers of
appeals, if entered into knowingly and voluntarily, are valid,
unless they work a miscarriage of justice." The Third Circuit
further noted that "waivers of appeals should be strictly
construed." Id. In the case at bar, Petitioner does not now contend, nor has he
ever argued, that his waiver of appeal was unknowing or
involuntary. Moreover, Petitioner has not and cannot articulate
any "miscarriage of justice" which would result from the
enforcement of the waiver of appeal as the Court's sentence was
in full conformity with that waiver. Accordingly, Petitioner is
barred from filing the instant appeal. Notwithstanding this bar
(and for completeness), this Court will address the merits of
A. Applicability of Blakely v. Washington
In Blakely, the Supreme Court held that "other than the fact
of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted
to a jury, and proved beyond a reasonable doubt." 542 U.S. 296,
124 S.Ct. 2531 (2004). At the time of Petitioner's sentencing,
United States v. Booker, 125 S.Ct. 738 (2005), had not been
decided. "Drawing upon its reasoning in Jones,*fn2
Apprendi*fn3 and Blakely, the Booker majority held
that mandatory enhancement of a sentence under the Guidelines,
based on facts found by the court alone, violates the
Sixth Amendment." United States v. Davis, 407 F.3d 162, ...