United States District Court, D. Delaware
Peter Levin, Esquire, Attorney for movant.
Mark M. Lee, Assistant United States Attorney, United States Department of Justice, Wilmington, Delaware. Attorney for respondent.
GREGORY M. SLEET, District Judge.
Movant Ivan Smith ("Smith") filed a prose motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 (D.I. 132) and an amended§ 2255 motion (D.I. 148) (hereinafter collectively referred to as"§ 2255 motion."). The government filed its answer in opposition. (D.I. 157) In a memorandum opinion dated September 10, 2012, the court denied all but one of Smith's claims as meritless. (D.I. 185) The court reserved ruling on the portion of claim two alleging ineffective assistance of counsel for failure to communicate a formal plea offer after determining that the inconsistent stories necessitated an evidentiary hearing. The court held an initial evidentiary hearing on the matter on November 13, 2012, which was continued and concluded on June 27, 2013. (D.I. 190; D.l. 196) The court then permitted further briefing on the issue. Smith filed his initial brief on October 21, 2013 (D.I. 200), the government filed its brief in opposition on April 7, 2014 (D.I. 205), and Smith filed a reply on June 13, 2014 (D.I. 210). For the reasons that follow, Smith's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 (D.I. 132; D.l. 148) is GRANTED.
On December 2, 2003, at approximately 11:15 p.m., Detectives Taylor, Silva, Leary, and Pfaff of the Wilmington Police Department's Drug, Organized Crime and Vice Division, were driving in an unmarked police vehicle in a part of the city known to be a regular site of street-level drug trafficking. Detective Taylor and Detective Silva observed Smith and another man engaging in what appeared to be a hand-to-hand drug transaction. The four officers exited the vehicle and announced they were the police. Smith fled and entered a nearby residence. Running after Smith, Detectives Taylor and Silva followed him inside the residence. Detective Taylor heard the residents of the house screaming and yelling and saw Smith exit the rear of the residence by breaking through a closed screen door onto a deck overlooking the backyard. When Detective Taylor arrived on the deck, he observed Smith climb over a fence and run north.
Although Detective Taylor lost sight of Smith briefly as Smith continued to run north, he remained on the back deck and radioed Smith's movements to Detectives Leary and Pfaff. In response, Detective Leary ran to cut off any escape routes Smith might take and witnessed Smith run between two houses and stop near the porch of another. Detective Leary made eye contact with Smith and saw Smith discard into an open trash can a black glove, which was later found to contain a loaded firearm.
Between one and three minutes after Smith discarded the weapon, Detective Leary saw Smith emerge from the front of an alleyway. After being ordered to stop, Smith was immediately arrested by Detective Leary. Upon his arrest, a search of Smith's person uncovered a small digital scale with white powder residue on it and a razor knife. Then, Detective Leary conducted a "grid search, " tracing the areas where Smith fled in order to look for additional evidence. At the rear of the alleyway, Detective Leary found a clear plastic bag on the ground which was later confirmed to contain 10.34 net grams of crack cocaine. At the police station, officers found in Smith's pockets several small pieces of an off-white chunky substance believed to be crack cocaine, $135 in bills, and three cellular phones. The officers sent the small pieces of off-white chunky substance to be chemically tested, but the amount of the substance was too small for testing to be completed.
On February 12, 2004, Smith was indicted on one count of possession with intent to distribute more than five grams of a substance containing a detectible amount of cocaine base, in violation of 21 U.S.C. § 841(a)(1) & (b)(l)(B) (Count I); one count of carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1) (Count II); and one count of possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1) (Count III). (D.I. 157 at 8)
Smith filed a motion to suppress evidence, which Judge Jordan denied after a hearing. Id. In July 2006, the government filed a motion in limine, seeking to introduce evidence which would demonstrate that Smith was involved as a seller in a hand-to-hand drug transaction prior to his arrest. (D.I. 52) The motion in limine was granted on August 15, 2006. (D.I. 63)
Following a two-day trial in August 2006, a jury found Smith guilty on all three counts. He was sentenced to concurrent terms of 360 months of imprisonment and 60 months of supervised release on Counts I and III, a consecutive term of 300 months imprisonment and 60 months supervised release on Count II, and a special assessment. (D.I. 109)
The Court of Appeals for the Third Circuit affirmed Smith's convictions and sentences. See United States v. Smith, 282 F.Appx. 143 (3d Cir. 2008). Smith filed a petition for a writ of certiorari, which the United States Supreme Court denied. See Smith v. United States, 129 S.Ct. 278 (2008).
Smith timely filed a§ 2255 motion in July 2009 (D.I. 132), and an amended§ 2255 motion in October 2009. (D.I. 148) The government filed a response in opposition, to which Smith filed a reply. (D.I. 159; D.I. 167)
After reviewing these filings, the court determined that all but a portion of claim two of the § 2255 motion should be denied without an evidentiary hearing. However, the court concluded that an evidentiary hearing was required in order to properly consider the portion of claim two alleging ineffective assistance on the part of Ray Radulski, Esquire, for failing to communicate a formal plea offer to Smith. As such, in a memorandum opinion and order dated September 10, 2012, the court denied as meritless all of Smith's claims except for the portion of claim two alleging that Mr. Radulski provided ineffective assistance. (D.I. 185) The court also issued an order requesting an evidentiary hearing on the one remaining claim, and ordered that counsel be appointed to represent Smith during the proceeding. Id.
This court held an evidentiary hearing on November 13, 2012, at which Smith's former counsel Mr. Radulski testified, as well as three of Smith's friends and/or relatives: Jasmine Watkins, Tamika Brown, and Howard Porter. (D.I. 190) The evidentiary hearing was continued and completed on June 27, 2013, at which Smith testified, along with his former initial counsel Eleni Kousoulis. Jasmine Watkins was also recalled to testify. (D.I. 196)
Thereafter, Smith filed a brief in support of the § 2255 motion, the government filed a response, and Smith filed a reply. Briefing was completed on June 13, 2014. The case is ready for review.
In the sole remaining issue presently pending before the court, Smith contends that Mr. Radulski provided ineffective assistance by failing to inform him of a formal favorable plea offer from the government. In order to prevail this claim, Smith must satisfy the two-pronged standard articulated in Strickland v. Washington, 466 U.S. 668 (1984). Under the first Strickland prong, Smith must demonstrate that "counsel's representation fell below an objective standard of reasonableness, " with reasonableness being judged under professional norms prevailing at the time counsel rendered assistance. Strickland, 466 U.S. at 688. Under the second Strickland prong, Smith must demonstrate a reasonable probability that, but for counsel's error, the outcome of the proceeding would have been different. Id. at 694; United States v. Nahodil, 36 F.3d 323, 326 (3d Cir. 1994). Although not insurmountable, the Strickland standard is highly demanding and leads to a strong presumption that counsel's representation was professionally reasonable. Strickland, 466 U.S. at 689.
"Claims of ineffective assistance of counsel in the plea bargain context are governed by the two-part test set forth in Strickland." Missouri v. Frye, 132 S.Ct. 1399, 1405 (2012). It is now well-settled that defense counsel's failure to communicate a formal plea offer to the defendant constitutes deficient performance under Strickland. Id. at 1408. In turn, a defendant establishes prejudice from defense counsel's failure to communicate a formal plea by demonstrating: (1) a reasonable probability that he "would have accepted the earlier plea offer had [he] been afforded effective assistance of counsel"; (2) a reasonable probability that the prosecution would not have withdrawn the offer and the trial court would not have refused to accept the plea agreement; and (3) a "reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time." Id. at 1408-10. For the reasons that follow, the court finds that Smith has satisfied this standard.
A. First Prong: Deficient Performance
The only evidence the government presents to support an inference that Smith was notified of the existence of the plea offer is Mr. Radulski's testimony regarding: (1) his overall practice of informing his clients about plea offers; (2) Mr. Radulski's notes from his first meeting with Smith on April 19, 2006; and (3) Mr. Radulski's daytimer reference to a telephone conference on August 7, 2006 with Christopher Burke, the Assistant United States Attorney ("former AUSA Burke") handling the case.
With respect to his overall practice regarding plea offers, Mr. Radulski testified that,
[t]o my knowledge, I have never not communicated a plea offer or a settlement offer in a civil case to a client. It's my obligation. It's one thing that the client always has the decision on, whether to plead or not or to ...