The opinion of the court was delivered by: Cooper, District Judge
This matter comes before the Court on the pro se motion of James C. Edwards, Jr. ("petitioner") under 28 U.S.C. § 2255, seeking to vacate, set aside, or correct his sentence for violation of supervised release. The underlying criminal case here was United States v. James Edwards, Crim. No. 04-884 (MLC). That case originated in the U.S. District Court for the Eastern District of Pennsylvania, and jurisdiction was transferred to this Court during the period of supervised release. The caption of the criminal action there was United States v. James Edwards, Crim. No. 95-494 (E.D. Pa.). For the reasons set forth herein, the Court will conduct an evidentiary hearing on one of the two issues raised in the pro se motion. Procedures will be followed to conduct that hearing according to the applicable rules.*fn1
The Section 2255 motion challenges the sentence of four years imprisonment, with no further supervised release, imposed by this Court on March 19, 2008. On that date petitioner pleaded guilty and was sentenced on one count of violation of supervised release, consisting of having committed another state offense while on federal supervision. The motion alleges, in its entirety, as petitioner's ground for relief: "Ineffective assistance of counsel. Counsel failed to file a direct appeal as I instructed him to do and relay to the Court about my concurrent sentences." (Mot. ¶ 12.) No brief accompanies the motion.*fn2
The motion papers, and the files and records of the underlying
criminal case, set forth the pertinent procedural history as follows.
On September 7, 1995, a grand jury in the Eastern District of
Pennsylvania returned a four-count Indictment charging petitioner with
two counts of distribution of cocaine base (crack cocaine), in
violation of 21 U.S.C. § 841(a)(1), and two counts of distribution of
cocaine base within 1,000 feet of a playground, in violation of 21
U.S.C. §§ 841(a)(1) and 860. (E.D. Pa. Presentence Report dated
3-27-97 ("PSR") ¶ 1.) On
November 17, 1995, the U.S. Attorney's Office filed an Information To
Establish Prior Convictions, pursuant to 21 U.S.C. § 851, based upon a
prior conviction on a drug distribution offense. (Id. ¶ 2.)*fn3
On December 7, 1995, a Superseding Indictment was returned,
adding one more count under each of the same two offense statutes, for
a total of six counts. (Id. ¶ 1.) On December 16, 1996, pursuant to a
written plea agreement, petitioner pled guilty to the three counts of
the Superseding Indictment that charged three separate incidents of
distribution of cocaine base within 1,000 feet of a playground, in
violation of 21 U.S.C. §§ 841(a)(1) and 860. (Id. ¶ 3; see Superseding
Indictment, D.N.J. dkt. 2 at 21-26.)
Sentencing was conducted by Hon. Robert S. Gawthrop, III on March 12, 1998. (E.D. Pa. Judgment, D.N.J. dkt. 2 at 27.) The Court found a total offense level of 34 and Criminal History Category VI, resulting in a Guideline range of 262-327 months imprisonment. (Id. at 32.)*fn4 Each of the three counts of conviction carried a maximum term of life imprisonment, with a mandatory minimum of 10 years imprisonment, pursuant to 21 U.S.C. §§ 841(b)(1)(B) and 860. (PSR ¶ 76.) There was also a mandatory minimum term of 16 years supervised release. (Id. ¶ 79.) However, the government moved for downward departure at the sentencing hearing, pursuant to USSG § 5K1.1, which the Court granted. (E.D. Pa. Judgment, D.N.J. dkt. 2 at 32.) Petitioner received a sentence of 78 months imprisonment on all three counts of conviction, to be served concurrently. (Id. at 28.) It included an 8-year term of supervised release. (Id. at 29.)
Despite having received a departure below the mandatory minimum terms of imprisonment and supervised release, petitioner appealed the sentence, arguing that his statutory penalties under 21 U.S.C. § 841(b) could not be enhanced, pursuant to 21 U.S.C. § 851(a)(2), because his prior drug felony convictions were not prosecuted by indictment. (Those offenses were prosecuted under Pennsylvania's felony complaint system rather than a grand jury indictment system.) The Court of Appeals affirmed on November 19, 1998, based upon United States v. Lynch, 158 F.3d 195 (3d Cir. 1998). (USCA Mem. Op., USCA No. 98-1244, filed 11-19-98.)*fn5
Lynch, decided while petitioner's case was on appeal, addressed the identical issue and rejected that argument. Petitioner sought rehearing en banc, which was denied by order filed January 7, 1999. (USCA Order Sur Petition for Rehearing, USCA No. 98-1244, filed 1-7-99.) He did not file a motion under Section 2255 further challenging that conviction or sentence. (D.N.J. dkt. 2 at19.)
Petitioner's term of supervised release under the E.D. Pa. Judgment commenced on September 8, 2004.*fn6 However, because he was residing in Camden, New Jersey, this Court consented to a transfer of probation jurisdiction to the District of New Jersey, by Order effective December 16, 2004. (D.N.J. dkt. 1.) The standard conditions of his supervised release included requirements that he not leave the judicial district where he was being supervised without permission from the Probation Officer or the Court, and that he not commit another federal, state or local crime. (Violation of Supervised Release Report dated 1-24-08 ("VSR") at 2-3.)
On September 7, 2007, new criminal complaints were filed against petitioner in the Pennsylvania Court of Common Pleas, Bucks County ("Pennsylvania Court"), stemming from an incident on that date in Bristol, Pennsylvania. (Id. at 2.) On November 13, 2007, petitioner appeared in that court and entered a not guilty plea, and trial was set for January 8, 2008. (Id.)
A petition alleging violations of his federal supervised release was filed against petitioner in this Court on December 14, 2007. (VOSR Petition, D.N.J. dkt. 3.) All four of the alleged violations related to the September 7, 2007 incident in Bristol, Pennsylvania. The conditions of federal supervised release allegedly violated were:
1. You shall not commit another federal, state, or local crime.
2. You shall not leave the judicial district without the permission of the Court or Probation Officer.
3. You shall notify the probation officer within 72 hours of being arrested or questioned by a law enforcement officer.
4. The defendant shall not possess a firearm or destructive device. (Id. at 1-2.)
Petitioner appeared in the Pennsylvania Court on January 8, 2008, and entered a guilty plea to certain of the charges pending there. (Id. at 3.) That disposition was relevant to the VOSR Petition then pending in this Court, and counsel for both parties here in the VOSR matter submitted briefs and exhibits on that topic. Those materials are described in the margin.*fn7 This Court thus carefully reviewed those Pennsylvania Court records, as well as petitioner's underlying federal criminal case file, in adjudicating the VOSR Petition here.
The Pennsylvania Court records established that on January 8, 2008, the Pennsylvania Court accepted petitioner's guilty plea to the following state charges relating to the September 7, 2007 incident: simple assault (count 2), possessing an instrument of crime with intent to employ it criminally (count 3), recklessly endangering another person (count 4), and disorderly conduct (counts 5 and 6). (PA Plea Hearing at 4-6; PA Sen. Hearing at 4- 5.) The most serious of the admitted offenses was count 3, a first degree misdemeanor that carried a maximum penalty of five years imprisonment and $10,000 fine. (See PA Plea Hearing at 4; PA Sen. Hearing at 9-10.) As part of the oral plea agreement in that case, as represented to the court at the plea hearing, the prosecutor agreed to withdraw two felony counts of aggravated assault (counts 1 and 7), which carried much higher penalties, and petitioner agreed that his sentence under that guilty plea would run consecutive to any sentence he would receive for violation of his federal supervised release in the District of New Jersey. (PA Plea Hearing at 7; PA Sen. Hearing at 3-5.)
The Pennsylvania Court imposed sentence in its case on February 11, 2008. The sentence was based on count 3, possessing an instrument of crime with intent to employ it criminally, in violation of 18 PA. Crim. Code § 907(a). Petitioner was sentenced on count 3 to state imprisonment for one to three years, "consecutive to any sentences received in New Jersey or in federal court." (PA Sen. Hearing at 9-10.) The quoted reference to New Jersey courts is explained in the margin.*fn8 He was also sentenced to two years of "probation consecutive to the parole on this case." (Id. at 10.) As to the post-release probation period, however, the Pennsylvania Court specified that it could be served "concurrently with any probation or its equivalent then being served."(Id.)
The Pennsylvania Court summed up its February 11, 2008 sentencing decision on this point, stating as follows:
It is my intent by this sentence as follows: The one to three years which I have imposed as a state sentence is to be served consecutive to any sentence of incarceration that is imposed in federal court or in New Jersey state court. However, with regard to the probation which I've imposed consecutive to my sentence, I intend either that Mr. Edwards be supervised on my probation or concurrent with any probation that he may then be serving. And I am aware, obviously, that probation is called probation in New Jersey, but it is called supervised release in federal court. And I am trying by this sentence to make sure that there be a supervisory period during which Mr. Edwards will be supervised either under my sentence or concurrently with any other sentence of probation that he is then serving. And that's it.....
While everyone is still here, I want to make sure there's one thing clear, and ... that is that I had mentioned the word "probation," and that the probation I impose is to be concurrent with any probation or its equivalent that Mr. Edwards is then serving. I mean by that also if he is serving a parole sentence, then my probation to be concurrent with that parole. It's any supervisory sentence outside of jail time. (PA Sen. Hearing at 11-13.) The Criminal Court Sheet setting forth the sentence, filed that same day, similarly stated that the term of imprisonment of not less than 1 year nor more than 3 years was to be "[c]onsecutive to any sentences imposed as violation of state of NJ and federal cases, directly or indirectly," "plus a 2 year consecutive probation." "The probation may be served concurrently with any probation/parole or equivalent then being served at the time of his parole on this case." It also contained the notation "NFP remaining counts", indicating that the sentence on count 3 was dispositive of the case, and no further penalty was imposed on the remaining counts of conviction. (2-11-08 Criminal Court Sheet, see n.7 supra; PA Sen. Hearing at 11; and 3-19-08 VOSR Transcript, D.N.J. dkt. 11 at 20.)
The hearing on petitioner's charges for violation of federal supervised release was conducted in this Court on March 19, 2008. (D.N.J. dkt. 8.) In preparation for the hearing, the Court and counsel for the parties received the VSR. It recommended that petitioner's Pennsylvania offense of possessing an instrument of crime with intent to employ it criminally would constitute a Grade A violation of supervised release. (VSR at 3.) That would be based upon a finding that the offense was "conduct constituting (A) a ... state ... offense punishable by a term of imprisonment exceeding one year that (i) is a crime of violence," as defined in the Guidelines. USSG §7B1.1(a)(1) and comment n.2.
The VSR also recommended that petitioner's guideline range be based upon a finding that his underlying federal offenses of conviction were class A felonies. (VSR at 1, 4.) See 18 U.S.C. § 3559(a)(1) (defining class A felony as offense not specifically classified by a letter grade in the section defining it, where the maximum term of imprisonment is life imprisonment or death). This topic is discussed infra Sec. II.
The determination of felony class would affect two aspects of petitioner's potential sentence. First, it would set the statutory maximum term of imprisonment for a violation of supervised release at 5 years for a class A felony, whereas the maximum would be 3 years for a class B felony. See 18 U.S.C. § 3583(e) ("a defendant whose [supervised release] term is revoked ... may not be required to serve on any such revocation more than 5 years in prison if the offense that resulted in the term of supervised release is a class A felony, [or] more than 3 years in prison if such offense is a class B felony...."). Second, it would create a recommended guideline range of 51-60 months for petitioner, if the violation itself were a Grade A violation of supervised release. That calculation is explained in the margin.*fn9
Both parties submitted pre-hearing briefs and other materials. See n.7 supra. This Court conducted a full plea hearing on March 19, 2008, before accepting petitioner's guilty plea, during which it advised petitioner of the penalties he faced for each of the alleged violations. (3-19-08 Transcript, D.N.J. dkt. 11 at 3-26.) A pertinent portion of the VOSR plea hearing is the following exchange between this Court and petitioner:
Q. Okay. Let's look at what the statutory limits are here. It [the VSR] does indicate that if your supervised release is revoked, as a result of any of these violations, you are facing a maximum statutory penalty of five years imprisonment.... If the Court did sentence you to something less than the statute five year maximum of imprisonment, then certainly the Court could have you serve out the balance of that term on supervised release. Understood?
Q. Now the Court would have to decide whether violation number 1 is a grade B or a grade A violation, Mr. Edwards. But I can't tell you how the Court would rule on that until we get to sentencing. So the maximum sentence that you would be facing would be five years of imprisonment on this violation if you plead guilty to alleged violation number 1. And your guideline range would be 51 to 60 months, if it is ... found to be a grade A violation. And, of course, I have already given you the guideline ranges for the grade B and grade C --
Q. -- violations. Bearing in mind that those are only recommendations, so the Court could still sentence you to the full five years --A. Yes.
Q. -- if you are in violation of supervised release on any level violation.
A. Yes. (Id. at 13-14.)*fn10
The VOSR plea hearing also covered with petitioner the fact that the imprisonment sentence imposed by the Pennsylvania Court was expressly set to run consecutive to any sentence of imprisonment he would receive from this Court for his violation of federal supervised release. The following excerpt of the VOSR plea hearing addressed that topic: BY THE COURT:
Q. Have you discussed with your attorney your array of options and how to respond to this petition, sir?
Q. Are you satisfied at this time with the advice and representation of [the Assistant Federal Public Defender ...