The opinion of the court was delivered by: Debevoise, Senior District Court Judge
Petitioner, Oding Dill, moves pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct a sentence imposed upon him on September 17, 2008.
On April 17, 2007, pursuant to a plea agreement, Petitioner entered a plea of guilty to a one-count Information charging him with conspiracy to export more than 50 grams of cocaine base and a quantity of heroin in violation of 21 U.S.C. §§ 953(a) and 960(b)(1)(A), and in violation of 21 U.S.C. § 963. The plea agreement contained a factual stipulation that the offense involved at least 297 grams of cocaine base and at least 82 grams of heroin.
A hotly contested sentencing hearing was held on September 15, 2008. A critical issue was whether Petitioner was entitled to the benefit of the Safety Valve provision. The government contended that Petitioner was an organizer or manager of the several persons who participated in exportation of illegal drugs from the United States to Bermuda and thus failed to meet one of the five criteria for qualification for the Safety Valve provision. If that were the case, Petitioner's mandatory minimum sentence would have been 120 months and, according to the government's calculations, the sentencing range would have been 120 to 135 months. The court accepted the argument of defense counsel that Petitioner was not an organizer or manager and that the Guidelines prison range was 70 to 87 months.
Petitioner's counsel argued for a downward departure on two grounds, family ties and responsibilities and the medical condition of the Petitioner. The government strenuously opposed departure. Petitioner suffered from a hereditary condition known as familial adenomatous polyposis, sometimes known as an inherited colorectal cancer syndrome. Persons suffering from the condition require continuous treatment and testing and have to perform five or ten bowel movements each day. Petitioner was incontinent at night, requiring that he get up a number of times to shower and cleanse himself.
At the sentencing hearing the issue of whether the prison system could handle Petitioner's medical condition arose. The government introduced two detailed letters of a Federal Bureau of Prison Health Systems Administrator describing the manner in which the Bureau of Prisons could adequately address Petitioner's condition.
The court concluded that the combination of Petitioner's family circumstances and medical condition supported a downward departure and sentenced Petitioner to 24 months imprisonment. Although Petitioner's medical condition was an important factor in the decision to grant a downward departure, the court also concluded that the prison system could handle that condition at least for a limited period of time. In a follow-up letter the Health Systems Administrator advised the Assistant United States Attorney handling the case that Petitioner had been designated to the Federal Medical Center (FMC) Devens in Ayer, Massachusetts and that:
I am aware that this medical referral center currently houses other inmates with similar issues and diagnosis as Mr. Dill. In addition, I have confirmed that FMC Devens has housing units in which inmates needing frequent access to bathing and restroom facilities are assigned. While in the unit, with exception of count time, an inmate may access the restroom and shower facilities as frequently as necessary, including during the evening and overnight hours.
Petitioner asserts that he is entitled to the relief he seeks because he was deprived of effective assistance of counsel. Counsel was ineffective, according to Petitioner, because (1) at all times during the prosecution and sentencing of the case she failed to advise or discuss with him the effect of his conviction upon his immigration status and (2) she failed at the time of sentencing to challenge the evidence of the Bureau of Prison's ability to deal with Petitioner's medical condition and to demand that an evidentiary hearing be held on that issue.
To prevail on an ineffective assistance of counsel claim, a petitioner must demonstrate that his attorney's performance was deficient, i.e., unreasonable under prevailing professional standards; and that he was prejudiced by the attorney's performance. Strickland v. Washington, 466 U.S. 668 (1984); United States v. Booth, 432 F. 3d 542, 546 (3d Cir. 2005). The prejudice prong in the context of the plea process focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process. Id. Thus to establish prejudice, Petitioner "must demonstrate that, but for his trial attorney's alleged ineffectiveness, he would have likely received a lower sentence" or would have "pleaded not guilty and insisted on going to trial." Id., at 546-47.
Petitioner has not demonstrated, and could not demonstrate, that his attorney's performance was deficient or that he was prejudiced in any way by his attorney's performance and that he would have received a lower sentence but for his attorney's actions. In fact, the record demonstrates that by reason of his attorney's diligence and creative ...