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Seeney v. United States

United States District Court, D. Delaware

March 22, 2018

NASHEBO SEENEY, Movant/Defendant,
v.
UNITED STATES OF AMERICA, Respondent/Plaintiff.

          Nashebo Seeney. Pro se Movant.

          Shannon Thee Hanson, Assistant United States Attorney, United States Department of Justice, Wilmington, Delaware. Attorney for Respondent.

          MEMORANDUM OPINION

          STARK, U.S. District Judge

         I. INTRODUCTION

         Nashebo Seeney ("Movant") filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. (D.I. 77; D.I. 87) The United States ("government") filed an Answer in Opposition. (D.I. 100) For the reasons discussed, the Court will deny Movant's § 2255 Motion without holding an evidentiary hearing.

         II. PROCEDURAL AND FACTUAL BACKGROUND

         On or about May 11, 2011, federal law enforcement officers identified an Express Mail parcel as being suspicious, and determined that the parcel contained over five kilograms of powder cocaine. (D.I. 100 at 2-3) The next day, the agents conducted surveillance of a "controlled delivery" of the package to the listed address by an undercover agent posing as a postal letter carrier. During the delivery, Movant identified himself as the addressee and signed for the package. (Id.) After conducting further surveillance of Movant's activities, the agents entered the residence, lawfully searched the premises, and subsequendy arrested Movant and his co-defendant, Melvin Lowe. (D.I. 100 at 4-5) On June 16, 2011, the grand jury for the District of Delaware of Delaware issued a three count Indictment charging Movant and co-defendant Lowe with: (1) conspiracy to possess with intent to distribute a Controlled Substance (500 grams or more of a mixture and substance containing a detectable amount of cocaine), in violation of 21 U.S.C. § 846; (2) attempted possession with intent to distribute a controlled substance (500 grams or more of a mixture and substance containing a detectable amount of cocaine), in violation of 21 U.S.C. § 841(a)(1); and (3) possession of ammunition by a prohibited person, in violation of 18 U.S.C. § 922(g). (D.I. 11; D.I. 12) Thereafter, the government and Movant entered into plea negotiations, and Movant pled guilty to conspiring to possess with intent to distribute 500 grams or more of a mixture and substance containing a detectable amount of cocaine. (D.I. 43 ¶ 1) On February 13, 2012, the Court sentenced Movant to 120 months of imprisonment* followed by eight years of supervised release. (D.I. 62) Movant did not appeal.

         Movant timely filed a pro se Motion to Vacate, Set Aside, or Correct Sentence Pursuant To 28 U.S.C. § 2255, and then an amended § 2255 Motion (hereinafter collectively referred to as "§ 2255 Motion"). (D.I. 77; D.I. 87) The government filed a Reply in Opposition. (D.I. 100)

         III. DISCUSSION

         In his Motion, Movant asserts that defense counsel provided ineffective assistance by: (1) incorrectly advising him about the law concerning conspiracy; (2) failing to challenge the government's notice that Movant was subject to enhanced penalties under 21 U.SC. § 851; and (3) failing to subject the government's case to a meaningful adversarial testing process. The government contends that all three claims should be denied as meritless.

         Movant has properly raised his ineffective assistance of counsel allegations in a § 2255 motion. See Massaro v. United States, 538 U.S. 500 (2003). Although Paragraph 9 of Movant's Plea Agreement contains the following waiver of Movant's right to file a direct appeal and/or a collateral attack on his conviction and sentence, the waiver expressly exempts ineffective assistance of counsel claims:

The defendant knows that he has, and voluntarily and expressly agrees to waive, the right to file any appeal, any collateral attack, or any other writ or the right to file any appeal, any collateral attack, or any other writ or motion in this criminal case after sentencing- including but not limited to, an appeal under Tide 18, United States Code, Section 3742 or Tide 28, United States Code Section 1291 or a motion under Tide 28, United States Code Section 2255 - except that the Defendant reserves his right to appeal based on a claim that (1) Defendant's sentence exceeded the statutory maximum; (2) that the sentencing judge erroneously departed upwards from the Guideline range; or (3) that his counsel was constitutionally ineffective.

D.I. 43) (emphasis added). Therefore, the Court can consider the Claims asserted in the instant Motion. See United States v. Phillips, 396 Fed.Appx. 831, 835 n.4 (3d Or. 2010) (noting that appellant could pursue ineffective assistance of counsel claim in collateral proceeding because appellate waiver expressly exempted ineffective assistance claims).

         As a general rule, ineffective assistance of counsel claims are reviewed pursuant to the two-pronged standard established in Strickland v. Washington, 466 U.S. 668 (1984). Under the first Strickland prong, Movant 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, Movant must demonstrate a reasonable probability that, but for counsel's error, the outcome of the proceeding would have been different. See Id. at 694; United States v. Nahodil, 36 F.3d 323, 326 (3d Cir. 1994). In the context of a guilty plea, a movant satisfies Strickland's prejudice prong by demonstrating that, but for counsel's error, there is a reasonable probability that he would have insisted on proceeding to trial instead of pleading guilty. See Hill v. Lockhart, 474 U.S. 52, 58 (1985). A court can choose to address the prejudice prong before the deficient performance prong, and reject an ineffectiveness claim solely on the ground that the defendant was not prejudiced. See Strickland, 466 U.S. at 668. Finally, although not insurmountable, the Strickland standard is highly demanding and leads to a strong presumption that counsel's representation was professionally reasonable. Id. at 689.

         A. Claim One: Advice About Conspiracy Charge

         In his first claim, Movant contends that defense counsel incorrecdy advised him that a conspiracy could be established without a written or verbal agreement, and that, as a result, he did not enter the guilty plea voluntarily, knowingly, or intelligendy. Movant asserts that there was only circumstantial evidence of a conspiracy, because there was no connecting link (or agreement) between Movant and the sender of the "mysterious drug-filled package." (D.I. 77 at 21-23) This argument is unavailing.

         Defense counsel's affidavit, and representations made by Movant and defense counsel to the Court during the plea colloquy and sentencing hearing, demonstrate that defense counsel and Movant met twelve times to discuss the legal options available to Movant, including potential witnesses and defenses. (D.I. 100-1 at 2-3; D.I. 100-1 at 15) During these meetings, defense counsel and Movant discussed the elements of the conspiracy charge, and defense counsel explained to Movant that "it's not necessary for the government to prove [you] knew the exact contents of that package" to establish guilt. (D.I. 100-1 at 44) According to counsel, the two of them extensively reviewed the case during their fourth meeting, after which Movant decided to enter a guilty plea. (D.I. 100-1 at 3)

         During the plea colloquy, the government described the evidence it would have presented at trial to prove that Movant participated in the conspiracy (D.I. ...


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