The opinion of the court was delivered by: Wigenton, District Judge.
Before the Court is Petitioner Ruben Soto‟s ("Petitioner" or "Soto") motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 ("Motion"). This Motion is decided without oral argument pursuant to Fed. R. Civ. P. 78. For the reasons stated below, the Court DENIES Petitioner‟s Motion.
FACTUAL AND PROCEDURAL BACKGROUND
On March 29, 2007, a grand jury returned an eight-count second superseding indictment against Soto and his six co-conspirators, Arsenio Arzola ("Arsenio"), Benjamin Arzola ("Benjamin"), Misael Arzola ("Misael"), Domingo Hernandez ("Hernandez"), and Maximo Nieves ("Nieves"). (Resp‟t Answer 1, ¶ 1, Pet‟r‟s Br. 2.) Count One of the indictment charged Soto with conspiracy to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a), (b)(1)(A), and 846. (Id.)
On September 10, 2007,*fn1 the joint trial of Soto, Arsenio, Benjamin, Misael, Hernandez, and Nieves commenced in this Court. (Pet‟r‟s Br. 2.) On October 26, 2007, Petitioner was convicted of conspiracy to posses with intent to distribute five kilograms of cocaine in violation of 21 U.S.C. § 846. (Id.) On July 30, 2007, he was sentenced to 210 months in prison. (Id.)
On January 14, 2010, the Third Circuit affirmed Soto‟s conviction and sentence. United States v. Arzola, 360 F. App‟x 287 (3d Cir. 2010). On April 11, 2011, Petitioner commenced the instant action by filing a § 2255 claim alleging that "[t]he conviction was obtained and/or sentence [was] imposed in violation of the Sixth Amendment to the Constitution of the United States, specifically, the right to the assistance of counsel and the right to effective assistance of counsel at all critical stages of the criminal proceedings." (Pet‟r ‟s Br. 1.)
LEGAL STANDARD FOR § 2255 PETITIONS
A district court, in considering a petition under 28 U.S.C. § 2255, must "accept the truth of the [petitioner‟s] factual allegations unless they are clearly frivolous on the basis of the existing record." United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005) (internal quotation marks omitted). If the § 2255 petition and the underlying case record show conclusively that the petitioner is not entitled to relief, the district court is not required to hold an evidentiary hearing. Gov't of V.I. v. Forte, 865 F.2d 59, 62 (3d Cir. 1989). Furthermore, Rule 4(b) of the Rules Governing § 2255 Proceedings for the United States District Courts provides: "If it plainly appears from the [petition], any attached exhibits, and the record of prior proceedings that the [petitioner] is not entitled to relief, the judge must dismiss the [petition] and direct the clerk to notify the [petitioner]."
I.INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
Petitioner claims that he received ineffective assistance of counsel from his trial and appellate counsel. Petitioner contends that his trial counsel was ineffective for failing to object to Special Agent Rudy Mews‟s ("Mews") testimony, which allegedly included improper summary and fact testimony, inaccurate information, and improperly vouched for witness Jose Reyes ("Reyes"). Petitioner also alleges that his trial counsel failed to object to flawed jury instructions, which did not instruct the jury to distinguish between expert and fact testimony, and which failed to instruct the jury that inferences used to prove an element of the offense required proof beyond a reasonable doubt. In addition, Petitioner claims that he received ineffective assistance from his appellate counsel, who failed to "recount the testimony of the witnesses" and to "claim the trial errors" on appeal. (Pet‟r ‟s Br. 17.) Finally, Petitioner claims that appellate counsel was ineffective for failing to argue that there was insufficient evidence that he was guilty of conspiracy, and for failing to argue that the district court erred in applying the sentencing guidelines.*fn2 (Id. at 18.)
Section 2255 petitioners bear the burden of proving ineffective assistance of counsel. See United States v. Baynes, 622 F.2d 66, 69 (3d Cir. 1980). A defendant is denied the right to effective assistance of counsel if (1) his attorney‟s performance falls below "an objective standard of reasonableness," and (2) there is a "reasonable probability" that such ineffectiveness prejudiced the outcome of the trial. Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).
The first prong requires a petitioner to identify those acts or omissions by counsel that were "outside the wide range of professionally competent assistance." Id. at 690. A court must be highly deferential when assessing counsel‟s performance, and "should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. Further, a court must make "every effort . . . to eliminate the distorting effects of hindsight." Id. at 689. The Strickland Court reasoned, "[i]t is all too tempting for a defendant to second-guess counsel‟s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel‟s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Id. Therefore, a court "must judge the reasonableness of counsel‟s challenged conduct on the facts of the particular case, viewed as of the time of counsel‟s conduct." Id. at 690.
The second prong requires a petitioner to show a reasonable probability that, but for counsel‟s unprofessional mistakes, the outcome of the proceeding would have been different. Id. at 694. A reasonable probability of prejudice is one "sufficient to undermine confidence in the outcome." Id. Furthermore, "[i]t is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding" because "[v]irtually every act or omission of counsel would meet that test." Id. at 693.
a.Mews Did Not Testify as a Fact Witness
Petitioner contends that his trial counsel was ineffective for failing to object to Agent Mews‟s testimony, which allegedly included improper summary and fact testimony. Soto further maintains that "the prosecution failed to "assure [sic] that the jury is informed of the dual roles of a law enforcement officer as a fact witness and an expert witness, so that the jury [could] give proper weight to each type of testimony.‟" (Pet‟r‟s Br. 9.) Soto takes issue with the following testimony:
MR. CARLETTA: You recognize the notations on this pad?