The opinion of the court was delivered by: William J. Martini Judge
This matter comes before the Court on pro se Petitioner Braulio Batista's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255, as well as Petitioner's simultaneous request for appointment of pro bonocounsel. The Court did not hold oral arguments. Fed. R. Civ. P. 78. For the following reasons, Batista's motion to vacate, set aside, or correct sentence is DENIED. The Court will not appoint Batista pro bonocounsel.
BACKGROUND AND PROCEDURAL HISTORY
Braulio Batista was arrested on September 19, 2002 for his involvement in the sale illicit drugs. He served as a middle-man and plead guilty to a charge of conspiracy to distribute 150 grams or more of crack cocaine.
Not long after an unsuccessful proffer session with the government, Batista's attorney requested an evaluation to determine Batista's competency to stand trial. Over the course of the next two years, Batista underwent at least five evaluations. Initially, doctors found Batista incompetent to stand trial. However, subsequent evaluations unearthed malingering.
On June 2, 2005, the Honorable John C. Lifland sentenced Batista and granted the government's motion for a two-level enhancement for obstruction of justice. The Court determined that Batista feigned mental illness to avoid trial, transmitted this plan to a co-conspirator, and purposefully avoided taking his medication to increase the chance of being found incompetent. In addition, the Court denied Batista's motion for a three-level reduction for acceptance of responsibility.
Batista received a sentence of 188 months. The base offense level was 34, with a two-level increase for obstruction of justice, totaling an offense level of 36. Paired with a criminal history category of I, the United States Sentencing Guidelines mandated a range of 188 to 235 months. The Third Circuit subsequently affirmed this sentence in the precedential opinion United States v. Batista, 483 F.3d 193 (3d Cir. 2007).
On August 18, 2008, this Court granted Batista's motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2), lowering his sentence from 188 months to 155 months in light of the Sentencing Commission's policy of decreasing the base offense for crack cocaine offenses by two levels.
Batista now requests that the Court vacate his sentence pursuant to 28 U.S.C. § 2255. He contends that he received ineffective assistance for a variety of reasons and maintains that counsel should have: (1) raised the "crack/powder" disparity; (2) argued a sentencing disparity under 18 U.S.C. § 3553(a)(6); (3) investigated and subsequently addressed Batista's mental health and need for rehabilitation at sentencing; and (4) asked the sentencing judge to meaningfully consider the § 3553 factors. He also claims that counsel told the sentencing judge that he was a "liar."
The right to effective assistance of counsel is guaranteed by the Sixth Amendment. When evaluating claims of ineffective assistance of counsel, courts follow the two-prong test established by the Supreme Court in Strickland v. Washington,466 U.S. 668, 687 (1984). Under this test, the petitioner bears the burden of showing: (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defense. To show a deficiency in counsel's performance, the petitioner must demonstrate that "counsel's representation fell below an objective standard of reasonableness." Id. at 688. There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. For a court to find prejudice, the petitioner must demonstrate 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.
1. Crack/Powder Cocaine Disparity
Batista first argues that his sentencing counsel lacked effectiveness for failing to argue that the 100-to-1 disparity between powder cocaine and crack cocaine sentences. To support this argument, Batista relies on Kimbrough v. United States, --- U.S. --- , 128 S.Ct. 558 (2007), where the Supreme Court ...