Mr. Rasheen Mines #56248066, USP McCREARY, Pine Knot, KY, Petitioner Pro Se.
Paul J. Fishman, United States Attorney, Howard J. Wiener, Assistant U.S. Attorney, Steven J. D'Aguanno, Assistant U.S. Attorney, OFFICE OF THE U.S. ATTORNEY, Camden, NJ, Attorneys for Respondent.
JEROME SIMANDLE, Chief
This matter comes before the Court on Petitioner Rasheen Mines's petition to vacate, set aside, or correct his sentence, filed pursuant to 28 U.S.C. § 2255, on the grounds of ineffective assistance of counsel under the Sixth Amendment of the U.S. Constitution. [Docket Item 1.]
The Court finds that the motion, files and records of the case conclusively show that Petitioner is not entitled to relief, and therefore his § 2255 petition will be denied without a hearing.
This case arises from a home invasion and robbery in Erial, New Jersey, in which seven children were terrorized and which culminated in a high-speed chase that led police from New Jersey into Philadelphia, Pennsylvania. Petitioner was arrested immediately after an SUV, carrying stolen goods from the home, crashed near the intersection of Frankford Avenue and Castor Avenue in Philadelphia, and the four co-defendants attempted to flee. A jury convicted Petitioner and his co-defendants of conspiracy to violate the Hobbs Act, 18 U.S.C. §§ 1951(a), (b)(1), and (b)(3), and the Travel Act, 18 U.S.C. §§ 1952(a)(2), (a)(3)(B), (b) and (2); substantive violations of the Hobbs Act and the Travel Act; brandishing a firearm in connection with a crime of violence under 18 U.S.C. § 924(c)(1)(A)(ii) and (2); and possession of a firearm by a convicted felon, under 18 U.S.C. § 922(g)(1) and (2). (See Amended Judgment, United States v. Mines, Cr. No. 06-126-JBS-4 (D.N.J. entered May 1, 2007), ECF No. 147 at 1.) Petitioner received a prison sentence of 480 months. (Id. at 2.)
Petitioner appealed his conviction and sentence to the Third Circuit on the grounds that (1) there was insufficient evidence on the Hobbs Act counts, (2) the District Court improperly applied § 924(c), and (3) the District Court erred in admitting the pretrial and in-court identifications of him. United States v. Hernandez , 306 F.App'x 719, 721-22 (3d Cir. 2009). The Third Circuit affirmed the conviction and sentence. Id. at 723. The U.S. Supreme Court denied certiorari. Mines v. United States , 558 U.S. 905 (2009).
Petitioner, pro se, timely filed this petition to vacate, set aside or correct his sentence under 28 U.S.C. § 2255. He claims numerous incidents of ineffective assistance of counsel by his retained trial and appellate attorney, James P. Lyons, Esq., in violation of the Sixth Amendment of the U.S. Constitution. He alleges his counsel (1) failed to advise Petitioner about his sentence exposure; (2) failed to advise Petitioner about rejecting a plea offer; (3) failed to properly investigate and research legal issues and call favorable witnesses; (4) failed to object on double jeopardy grounds to simultaneous prosecution of the Hobbs Act and the Travel Act; (5) failed to challenge the prosecution's witnesses; (6) failed to properly object to a Bruton violation; (7) failed to properly advise Petitioner on his right to testify; (8) failed to object to the application of § 924(c) and the resulting sentence; (9) failed to object to the Presentence Report and sentencing guideline miscalculations; (10) counsel failed to raise his erroneous classification as a career offender on direct appeal; and (11) failed to present other meritorious claims on direct appeal. Petitioner requests this Court to hold an evidentiary hearing on his § 2255 claims and to vacate his conviction and sentence. He also requests the appointment of counsel to assist at his evidentiary hearing.
The government filed an answer contesting all of Petitioner's claims, and provided voluminous supporting documents, including a declaration from Mr. Lyons. [Docket Item 10; App. at 59-64.] Petitioner filed a reply [Docket Item 29], and later filed a motion to supplement his petition, which the government opposes. [Docket Items 30 & 35.]
The Court will assess each claim separately.
III. Standard of Review
Under 28 U.S.C. § 2255(a), a federal prisoner may move to vacate, set aside or correct a sentence on the ground that the sentence was imposed in violation of the Constitution or federal law, the sentencing court was without jurisdiction, or the sentence is in excess of the maximum authorized by law or is otherwise subject to collateral attack. The district court shall grant a hearing to determine the issues and make findings of fact and conclusions of law. § 2255(b). However, if the motion, files and records of the case conclusively show that the prisoner is not entitled to relief, the petition will be denied. Id .; see also United States v. McCoy , 410 F.3d 124, 131-32 (3d Cir. 2005) (holding a district court must grant an evidentiary hearing unless the record before it conclusively showed the petitioner was not entitled to relief).
Generally, an evidentiary hearing must be held to resolve issues of fact falling outside the record of the case. United States v. McCoy , 410 F.3d 124, 131 (3d Cir. 2005); United States v. Costanzo , 625 F.2d 465, 470 (3d Cir. 1980). However, a hearing need not be held if the petition raises no legally cognizable claim, or if the factual matters raised by the petition may be resolved through the district court's review of the motions and the records in the case, or, in some circumstances, if the court, in its discretion, finds the movant's claims to be too vague, conclusory or palpably incredible. Costanzo , 625 F.2d at 470 (quoting Machibroda v. United States , 368 U.S. 487, 495 (1962)). Government affidavits filed in opposition to a petition for § 2255 relief are not part of the files and records of the case and are not conclusive against the petitioner. Id.
To prevail on a claim of ineffective assistance of counsel, Petitioner must demonstrate that (1) counsel's performance was so deficient as to deprive him of the representation guaranteed to him under the Sixth Amendment of the U.S. Constitution, and (2) the deficient performance prejudiced the defense by depriving the defendant of a fair trial. Strickland v. Washington , 466 U.S. 668, 687 (1984). To show prejudice under Strickland, 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." Rainey v. Varner , 603 F.3d 189, 197-98 (3d Cir. 2010) (quoting Strickland , 466 U.S. at 694).
A. Failure to advise about sentence exposure
Petitioner claims that his counsel did not inform him about the possibility of consecutive terms of imprisonment, his status as a career offender and other provisions of the sentencing guidelines and resulting sentence exposure if he went to trial and were found guilty. (Pet. at 3-4.) He suggests that, had he received more "information, advice and knowledge... there is a reasonable probability that Movant would have pled guilty, avoided a jury trial, and received a sentence" of less than 40 years. (Id. at 4.) The government responds that the record conclusively shows that Petitioner knew about his possible sentence exposure and therefore cannot show prejudice under Strickland. (Resp't Opp'n at 11-12.)
The record shows that in the initial appearance upon the criminal Complaint on February 8, 2006, Judge Rosen, then a U.S. Magistrate Judge, summarized the charges against Petitioner during a hearing, and asked the prosecutor, Mr. D'Aguanno, to state the maximum penalties associated with each count. (App. at 72-75.) Mr. D'Aguanno stated that the statutory maximum for a violation of § 924(c) "is life in prison." (Id. at 74-75.) Judge Rosen asked Petitioner, who was present in the courtroom, "Did you hear and understand that, sir?" Petitioner replied: "Yes, sir." (Id. at 75.)
A similar interaction occurred on March 1, 2006, before this Court. (App. at 77-82.) Mr. D'Aguanno summarized the maximum penalties of each charge, including life in prison for the § 924(c) violation. (Id. at 78-80.) The Court asked Petitioner: "did you hear the Assistant United States Attorney state the maximum penalties that are provided by law in the event of conviction on these various counts?" Petitioner responded: "Yeah, I heard him." (Id. at 82.)
Finally, at another proceeding before this Court, on June 13, 2006, Mr. D'Aguanno once again summarized the possible sentence exposure stemming from the Superseding Indictment, including life in prison for the § 924(c) count, in the Petitioner's presence. (Id. at 88-89.)
The record therefore conclusively shows that Petitioner was aware of the possible risks of being found guilty at trial: life in prison. Because Petitioner knew of this possibility, he will be unable to show prejudice from counsel's alleged ineffective assistance under Strickland, and no evidentiary hearing will be held on this claim.
B. Failure to advise about an open plea
Relatedly, Petitioner asserts that his counsel never informed him that he could receive a reduction in his Base Offense Level by pleading guilty and accepting responsibility without cooperating with authorities. (Pet. at 3-4.) In his affidavit, Petitioner states that Mr. Lyons "never informed me about being able to plead guilty and receive credit for acceptance of responsibility, or assist me with further negotiations for a plea agreement without cooperation requirement." (Mines Aff. ¶ 3.) Petitioner contends that "there is a reasonable probability" that he would have pleaded guilty and received a lighter sentence if he was aware of the possibility of pleading without cooperating with the government. (Pet. at 4.)
The government responds that Mr. Lyons informed Petitioner about the possibility of pleading guilty, including that he could plead guilty without cooperating with the government. (Resp't Opp'n at 14-15; see also Lyons Decl. ¶¶ 5, 7 [App. at 60-62] (declaring that counsel informed Petitioner of attending a proffer session and the possibility of pleading guilty without cooperating and that Petitioner had no interest in either option; and stating that the government never tendered a formal plea offer).)
The government also argues that no plea offer was extended to counsel "because there was never any indication from Movant (or from any of the defendants), either directly or through counsel, that he was interested in pleading guilty." (Resp't Opp'n at 16.) The government contends that, without a formal plea offer, Petitioner cannot show prejudice because he cannot show that he would have received a lesser sentence. (Id. at 17-19.) The government acknowledges that Mr. Lyons described in his declaration engaging in "preliminary plea negotiations" with the prosecution, but the government emphasizes that Petitioner stated he did not wish to plead guilty because of the possible sentencing exposure of 27 years in prison. (Id. at 18, citing Lyons Decl. ¶ 7.)
The government also acknowledges that the prosecutor extended to the defendants the opportunity to participate in a proffer with law enforcement. (Id. at 15 n.11, citing App. at 118-121.) Mr. D'Aguanno stated on the record that each defendant was given the opportunity to come in and sit down and proffer. (Id.) Mr. D'Aguanno stated that the offer to come in and proffer was communicated to attorneys orally but never put in writing. (App. at 119-120.)
The Third Circuit has held that, in certain circumstances, a habeas petitioner states a plausible claim for ineffective assistance of counsel when he asserts that his counsel failed to advise of the possibility of entering an open plea, which would have reduced his sentence. United States v. Booth , 432 F.3d 542, 549 (3d Cir. 2005). In Booth, defendant Booth rejected a plea offer from the government and countered with a different offer. Id. at 544. The government declined the counteroffer and informed Booth's counsel that it would only allow Booth to plea if he "would give a proffer concerning his own culpability and the criminal involvement of any other participants" in the crime. Id . Because Booth did not want to cooperate against any of the other defendants, negotiations broke down, he proceeded to trial, and he was sentenced to 90 months in prison. Id . After exhausting his appeals, Booth filed a § 2255 petition, alleging his counsel was ineffective, because he was not informed about all possible plea options, including an "open plea, " which would not have required Booth to cooperate with the government. Id. at 543. The district court denied the motion without holding a hearing, but the Third Circuit reversed, concluding that "a defendant has the right to make a reasonably informed decision whether to accept a plea offer" and that Booth raised a sufficient allegation that he would have accepted an "open plea" and was entitled to an evidentiary hearing on the merits. Id. at 545, 549. The Third Circuit stated: "We must accept that Booth would have truthfully admitted the conduct comprising counts one and two and any additional relevant conduct" and the court found that Booth likely would have received a reduction in sentence for accepting responsibility. Id. at 548-49. The Third Circuit ordered the district court to hold an evidentiary hearing on the question. Id. at 550.
The Third Circuit declined to extend Booth in United States v. Gonzalez-Rivera , 217 Fed.Appx. 166 (3d Cir. 2007). In that case, the Third Circuit affirmed the district court's denial of a § 2255 petition for an evidentiary hearing. The petitioner Gonzalez-Rivera argued that his counsel was ineffective for failing to pursue a plea agreement. Id. at 168. The Third Circuit disagreed, distinguishing Booth because the petitioner in Gonzalez-Rivera had maintained his innocence throughout the proceedings and was unwilling to plead guilty, unlike Booth, who had engaged in plea negotiations. Id. at 170. The Third Circuit found that Gonzalez-Rivera's "contention that he would have accepted a guilty plea is belied by the evidence below" and that, because Gonzalez-Rivera was unable to point to "any specific benefit that he would have received for his plea" the "alleged prejudice that he may have suffered as a result is far too speculative." Id . The court also noted that Gonzalez-Rivera's counsel actually had informed him of the option to plead guilty without cooperation, unlike Booth's counsel, who did not. Id.
District courts in this Circuit have followed Gonzalez-Rivera and denied evidentiary hearings when (1) the petitioner claimed his or her attorney never informed him or her about an open plea, (2) the petitioner maintained his or her innocence throughout the proceedings, and (3) the record belied the contention that the petitioner would have accepted a plea deal. See Donna v. United States, No. 10-1607, 2011 WL 322636, at *7-*8 (D.N.J. Jan. 31, 2011); Darby v. United States, No. 10-1437, 2010 WL 4387511, at *6-*7 (D.N.J. Oct. 28, 2010); United States v. Jackson, No. 09-5255, 2010 WL 1688543, at *4 (E.D. Pa. Apr. 27, 2010).
This case is similarly distinguishable from Booth - and analogous to Gonzalez-Rivera, Donna, Darby, and Jackson - because Petitioner here did not engage in plea negotiations with the government. He did not receive a formal plea offer and counter with his own, only to be told he must proffer to plead guilty. There is nothing in the record of this case to indicate that Petitioner would have accepted a plea deal. Such an assertion, which would lead to the conclusion that Petitioner suffered prejudice under Strickland, is "far too speculative" given the record in this case. Gonzalez-Rivera, 217 F.App'x at 170; Darby, 2010 WL 4387511, at *6; Jackson, 2010 WL 1688543, at *4.
Petitioner maintained his innocence throughout the trial, belying the contention that he would have accepted a deal. Mr. D'Aguanno stated on the record that the government had extended the offer to discuss a proffer with the government, and none of the defendants accepted that offer. (App. at 118-121.) Additionally, although Petitioner never testified at trial, he did speak at his sentencing, and had this exchange with the Court:
THE DEFENDANT:... I would like to say that throughout this trial I maintained my innocence and as I stand here today, I do also. Now, I sat through three weeks of this trial, and I understand what happened to them [the victims] was indeed a nasty crime.... I would like to say that, you know, it was a terrible act. I ...