United States District Court, D. New Jersey
HOPE K. KANTETE, Petitioner,
UNITED STATES OF AMERICA, Respondent.
B. KUGLER UNITED STATES DISTRICT JUDGE
Hope Kantete, is a federal prisoner currently incarcerated at
FMC Carswell in Fort Worth, Texas. She is proceeding through
counsel with a motion to vacate, set aside, or correct her
sentence pursuant to 28 U.S.C. § 2255. For the reasons
set forth below, Petitioner's motion will be denied and a
certificate of appealability shall not issue.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
direct appeal, the Court of Appeals for the Third Circuit
succinctly described the underlying circumstances as follows:
Kantete owned and operated Safari Auto Sales, a car
dealership in Jersey City, New Jersey, but did not limit her
stake in the automotive trade to legitimate business.
Instead, Kantete worked with several sources to obtain stolen
vehicles-typically high-end luxury vehicles, such as Range
Rovers, Mercedes-Benzes, BMWs, and Porsches-and employed
other individuals to change the Vehicle- Identification
Numbers (“VINs”) and obtain counterfeit
Certificates of Title. She also located customers for those
vehicles, including many in Africa.
Kantete was ultimately convicted of one count of conspiracy
to transport stolen motor vehicles and ten counts of
transportation of stolen motor vehicles, in violation of 18
U.S.C. §§ 371 and 2312. At sentencing, the District
Court determined that Kantete was responsible for a loss
amount between $2.5 million and $7 million, resulting in an
eighteen-level Guidelines enhancement. The District Court
also found applicable a number of other enhancements that
resulted in a Guidelines range of 262 to 327 months'
imprisonment. After considering the parties' arguments,
the District Judge sentenced Kantete to the bottom of that
range, ordering her to serve 262 months' imprisonment and
concurrent three-year terms of supervised release and to pay
restitution in the amount of $346, 936.91.
United States v. Kantete, 610 Fed.Appx. 173, 175 (3d
appealed to the Third Circuit. See Id. On May 7,
2015, the Third Circuit denied her appeal and affirmed the
sentence imposed by the District Court. See id. at
178-79. Petitioner then filed the instant § 2255 motion
in August 2016. (See ECF No. 1.) In November 2016,
Respondents submitted their Answer. (See ECF No. 4).
Petitioner filed a traverse thereafter. (See ECF No.
28 U.S.C. § 2255, a motion to vacate, set aside or
correct a sentence of a person in federal custody entitles a
prisoner to relief if “the sentence was imposed in
violation of the Constitution or laws of the United States,
or that the court was without jurisdiction to impose such
sentence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral
attack.” 28 U.S.C. § 2255(a). When considering a
§ 2255 motion, a district court “‘must
accept the truth of the movant's factual allegations
unless they are clearly frivolous on the basis of the
existing record.'” United States v.
Tolliver, 800 F.3d 138, 141 (3d Cir. 2015) (quoting
United States v. Booth, 432 F.3d 542, 545 (3d Cir.
2005)). Additionally, a district court must hold an
evidentiary hearing on the motion if “‘the files
and records do not show conclusively that [the movant] was
not entitled to relief.'” United States v.
Tolliver, 800 F.3d 138, 141 (3d Cir. 2015) (alteration
in original) (quoting Solis v. United States, 252
F.3d 289, 294 (3d Cir. 2001)).
raises two ineffective assistance of counsel claims in her
§ 2255 action. First, Petitioner asserts that her trial
counsel was ineffective for advising her “to proceed to
trial rather than to seek a plea deal, or, at a minimum plead
guilty ‘open.'” (See Id. at 5.)
Second, Petitioner argues that her trial counsel was
ineffective for failing to “properly preserve [her]
objection to the ‘serious bodily injury' upward
adjustment.” (See ECF No. 1 at 4.)
ineffective assistance of counsel claim has two components:
First, the defendant must show that counsel's performance
was deficient. This requires showing that counsel made errors
so serious that counsel was not functioning as the
“counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing
that counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.
Strickland v. Washington, 466 U.S. 668, 687 (1984).
first prong of the test “requires a defendant to show
‘that counsel's representation fell below an
objective standard of reasonableness.'” Lafler
v. Cooper, 132 S.Ct. 1376, 1384 (2012) (quoting Hill
v. Lockhart, 474 U.S. 52, 57 (1985) (quoting
Strickland, 466 U.S. at 688)). There is “a
strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance; that
is, the defendant must overcome the presumption that, under
the circumstances, the challenged action ‘might be
considered sound trial strategy.'”
Strickland, 466 U.S. at 689 (quoting Michel v.
Louisiana, 350 U.S. 91, 101 (1955)). “The Sixth
Amendment guarantees reasonable competence, not perfect
advocacy judged with the benefit of hindsight.”
Yarborough v. Gentry, 540 U.S. 1, 8 (2003)
(citing Bell v. Cone, 535 U.S. 685, 702 (2002);
Kimmelman v. Morrison, 477 U.S. 365, 382 (1986);
Strickland, 466 U.S. at 689; United States v.
Cronic, 466 U.S. 648, 656 (1984)).
second prong of the Strickland test, prejudice,
requires a defendant to “show that there is a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different.” Strickland, 466 U.S. at
694. “A reasonable probability is one ‘sufficient
to undermine confidence in the outcome.'”
Collins v. Sec. of Pennsylvania Dept. of Corr., 742
F.3d 528, 547 (3d Cir. 2014) (quoting Strickland,
466 U.S. at 694). A court need not address both components of
the ineffective assistance inquiry. Strickland, 466
U.S. at 697. “If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient
prejudice [. . .] that course should be followed.”
first ineffective assistance of counsel claim arises out of
the plea process itself. Petitioner argues that her trial
counsel was ineffective for allegedly advising her “to
proceed to trial rather than seek a plea deal or, at minimum
plead guilty ‘open.'” (See ECF No. 1
at 5.) To demonstrate ineffective assistance of counsel in
the context of a rejected plea offer, a defendant must show
but for the ineffective advice of counsel, there is a
reasonable probability that the plea offer would have been
presented to the court (i.e. that the defendant
would have accepted the plea and the prosecution would not
have withdrawn it in light of intervening circumstances);
that the court would have accepted its terms; and that the
conviction or sentence, or both, under the offer's terms
would have been less severe than under the judgment and
sentence ultimately imposed.
Lafler, 132 S.Ct. at 1385.
Third Circuit has recognized that “counsel must provide
defendants facing a potential guilty plea ‘enough
information to make a reasonably informed decision whether to
accept a plea offer.'” United States v.
Vaughn, 704 Fed.Appx. 207, 212 (3d Cir. 2017) (quoting
United States v. Bui, 795 F.3d 363, 367 (3d Cir.
2015)). Significantly, “[k]nowledge of the comparative
sentence exposure between standing trial and accepting a plea
offer will often be crucial to the decision whether to plead
guilty.” United States v. Day, 969 F.2d 39, 43
(3d Cir. 1992). But the Third Circuit has also cautioned that
courts should be “wary” of claims that trial
counsel did not adequately advise a defendant about the
benefits and consequences of a plea offer because
“defendants will always want the best of both worlds:
the chance at acquittal at trial, yet the chance to plead
guilty if the trial defense fails.” Id. at 46
Petitioner contends that:
[H]er attorney performed in an objectively unreasonable
manner by advising Kantete to proceed to trial rather than to
plead guilty. By negotiating a plea agreement and pleading
guilty there was certainly a reasonable probability Kantete
would have obtained some concessions from the Government as
inducement for the guilty plea, as is usually the case. But
if not, Kantete would certainly have received a three point
“acceptance of responsibility” reduction.
(ECF No. 1-1 at 9.)
contrary to Petitioner's assertion that counsel should
have negotiated a plea offer on her behalf, Petitioner did,
in fact, receive two plea agreement offers from the
Government. (See ECF No. 4 at 5-7.) Petitioner was
initially offered the opportunity to plead guilty after the
first indictment was brought against her, but she ultimately
rejected that offer. (See Id. at 5.) Petitioner was
then again offered the opportunity to plead guilty after the
third superseding indictment was handed down. (See
Id. at 6.) At arraignment on that indictment, the
Government detailed on the record the charges contained in
the indictment, as well as Petitioner's sentencing
exposure if convicted of each of those offenses.
(See ECF No. 4-1 at 3-5.)
THE COURT: Mr. Almonte, can you tell us what the penalty --
can you the defendant what the penalties are if convicted on