The opinion of the court was delivered by: John G. Koeltl, District Judge
The petitioner, Robert McNaught, moves pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence for a violation of supervised release.*fn1 The primary basis for the petition is the alleged ineffective assistance of counsel in connection with the petitioner's plea of guilty, entered in this Court on October 27, 2006, to the violation of supervised release, and his sentencing the same day. The petitioner also alleges violations of due process in connection with the plea and sentencing proceedings. This case has involved several rounds of briefing by both sides and the Court has taken into account all the arguments raised by the parties in their submissions as well as during the arguments.
On March 19, 2002, the petitioner pleaded guilty to a conspiracy, in violation of 21 U.S.C. § 846, to distribute and possess with intent to distribute five kilograms and more of cocaine, in violation of 21 U.S.C. §§ 821, 841(a)(1), and 841(b)(1)(A). The Court sentenced the petitioner to a term of incarceration of time served, to be followed by five years supervised release, a $10,000 fine, and a mandatory $100 special assessment. The sentence was a substantial departure below the applicable Guideline Sentencing Range of 70-87 months based on this Court's finding that the offense was aberrant behavior and that a departure was warranted under § 5K2.20 of the Sentencing Guidelines, a departure to which the Government consented.
On October 27, 2006, the petitioner pleaded guilty to violating the conditions of his supervised release. According to the Amended Specification to which the petitioner pleaded guilty, on or about March 11, 2005, the petitioner violated his supervised release by committing the state crime of arson in the third degree, a third degree felony, in Ewing, New Jersey. According to the Amended Specification, the petitioner committed arson by going to the residence of his former girlfriend and, after seeing her enter the residence, throwing a rock through her window and starting a fire at her residence. (Amended Specification 3; Tr. 18.) In his allocution, the petitioner admitted that he started the fire by lighting a paper towel, placing it in a bottle of alcohol and leaving the bottle in a flower bed directly below the broken window. (Tr. 23-24.)
In July 2006, the petitioner had pleaded guilty to the state crime of arson in the third degree in Mercer County Superior Court in New Jersey. The state court sentenced the petitioner to a term of incarceration of four years and six months, and ordered him to pay restitution of $500 and incidental damages. (Tr. 3.) In the course of the petitioner's state court plea, he indicated that he understood that "the federal sentence that is going to be imposed as a result of the entry of this plea is going to be consecutive to the sentence that [the state court judge] impose[s] . . . ." (Gov't Ex. A, 18.) At the petitioner's state court sentencing, although the state court judge initially indicated that the state court sentence "will ultimately be concurrent to any sentence imposed as a result of the violation of [the petitioner's] federal probation" (Gov't Ex. A, 2), the petitioner's attorney clarified that "[i]t is a consecutive sentence no matter how you slice it if you go forward in state sentencing first" (Gov't Ex. A, 11).
As noted, the petitioner pleaded guilty to violating his supervised release on October 27, 2006. During the proceedings, at which the petitioner was represented by counsel, the petitioner pleaded to the Amended Specification and allocuted as described above. The Specification was amended at the request of the petitioner's attorney to reflect that the petitioner had committed the state crime of Arson in the Third Degree, to which he had pleaded guilty in state court, and not aggravated arson and arson for hire, crimes to which he had not pleaded guilty. (Tr. 5-6.) Before accepting the petitioner's plea, the Court recited the Amended Specification aloud to the petitioner and confirmed that the petitioner understood it. (Tr. 18.) The Amended Specification categorized the state crime committed by the petitioner as a Grade A violation of supervised release.
The parties assured the Court that no promises had been made with respect to the petitioner's sentence, and the petitioner assured the Court that no one had offered him any inducement or threatened him or forced him to plead guilty. (Tr. 22.) The Court explained that the maximum sentence the Court could impose was to revoke the petitioner's supervised release, sentence him to prison for five years, and re-impose supervised release for life. (Tr. 20.) The Court explained that the Sentencing Guidelines were only advisory and that they provided for a sentence of twenty-four to thirty months for the violation. (Tr. 21.) The Court also explained to the petitioner that no one, including his lawyer, could predict what his sentence would be, and that his sentence "lies within the discretion of the Court," which the petitioner confirmed that he understood. (Id.) The petitioner indicated that he was satisfied with counsel's representation of him. (Tr. 14.) After the petitioner's allocution, the Court accepted his guilty plea.
Following the acceptance of the petitioner's guilty plea, the parties indicated that they wished to proceed directly to sentencing. The Court instructed the petitioner that the petitioner did not have to proceed directly to sentencing, and that he could take time if he wished to make any submissions in connection with sentencing "or if for any reason [the petitioner] wanted to put the sentence off to another time . . . ." (Tr. 27.) The petitioner consulted with counsel and then assured the Court that he wished to proceed directly to sentencing, stating: "I don't see any reason to adjourn this matter." (Tr. 27.) The Court therefore proceeded directly to sentencing.
At sentencing, the Government requested a sentence within the Guidelines range of 24-30 months. However, the Probation Department recommended a sentence of five years imprisonment, the statutory maximum. A representative from the Probation Department indicated that the Probation Department's recommendation was largely based on the downward departure that the Court had granted to the petitioner in the original sentence for the drug conspiracy to which the petitioner pleaded guilty on March 19, 2002. (Tr. 31.) The Probation Officer stressed that the original sentence under the Sentencing Guidelines would have been 70-87 months but the Court had downwardly departed to a sentence of time served, and that deterrence warranted a sentence of 60 months imprisonment for the violation of supervised release. (Tr. 31-32.)
Speaking on behalf of the petitioner, defense counsel urged the Court, in determining an appropriate sentence, to take into account the petitioner's struggles with alcoholism and mental illness. The petitioner told the Court that "[defense counsel] has expressed very well for me." (Tr. 40.) In his own statement to the Court in connection with sentencing, the petitioner reiterated the representations made by defense counsel regarding the petitioner's struggles with alcoholism and mental illness. (Tr. 41.)
After listening to the parties, the Court sentenced the petitioner to thirty months incarceration to be served consecutively to the sentence imposed by the state court for arson, and a term of five years supervised release to follow imprisonment. (Tr. 46.) In November 2006, the petitioner appealed his sentence to the Court of Appeals for the Second Circuit. On January 30, 2008, the Court of Appeals granted the petitioner leave to withdraw his appeal without prejudice in order to file the present petition before this Court. In March, 2008, the petitioner filed the present petition to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255.
The petitioner's primary allegation is that defense counsel provided ineffective assistance to the petitioner in connection with the plea and sentencing proceedings on October 27, 2006. The petitioner's main argument in this regard is that defense counsel failed to protect his interests with respect to the grade classification of his violation of supervised release. Specifically, the petitioner argues that the conduct that resulted in his state court conviction for third degree arson was only a Grade B violation of supervised release, and that defense counsel was ineffective for failing to explain to him the difference between Grade A and Grade B violations, and for allowing the Amended Specification to categorize his conduct as a Grade A violation. The petitioner also argues that defense counsel was ineffective in a variety of other ways, including neglecting to make certain sentencing arguments.
To establish a claim of ineffective assistance of counsel, the petitioner must show both that: (1) his counsel's performance was deficient in that it was objectively unreasonable under professional standards prevailing at the time, and (2) his counsel's deficient performance was prejudicial to his case. See Strickland v. ...