The opinion of the court was delivered by: Matsumoto, United States District Judge
On March 11, 2009, defendant Tyquan Midyett ("Midyett" or "defendant") was convicted by a jury of Counts 1, 2, 5, 10 and 11 of an eleven-count, third superseding indictment.*fn1 In anticipation of his sentencing scheduled for October 14, 2009, defendant filed a handwritten, pro se memorandum dated August 26, 2009, in which he asserts, inter alia, that defense counsel failed to advise him accurately of the government's plea offer and the consequences of rejecting the plea offer and proceeding to trial. (See Doc. No. 422, Defendant's Sentencing Memorandum dated Aug. 26, 2009 ("Def. Mem.") at 3.) Defendant asserts that his attorneys' alleged failures have exposed him to a longer sentence than he might otherwise be exposed had he pled guilty in advance of trial. Defendant thus requests "a meaningful opportunity to accept responsibility and receive the benefit therefrom." (Id. at 4.)
On October 28, 2009, the court held an evidentiary hearing to explore the pre-trial discussions between defendant and his former counsel, Joel S. Cohen, Esq. and Martin J. Siegel, Esq., regarding the circumstances surrounding the parties' plea negotiations, the advisability of a plea and the potential consequences of proceeding to trial. (See generally, Transcript of Proceedings held on Oct. 28, 2009 ("Tr.").) At the October 28, 2009 evidentiary hearing, the court heard the testimony of defendant, Cohen and Siegel, after defendant waived his privileged communications with counsel.*fn2 (See id. at 2-3.)
Having considered the appropriate burdens of production and proof, the testimony of witnesses, the hearing exhibits, the parties' written submissions, and having resolved issues of credibility, the court denies defendant's motion in its entirety. The court sets forth below the findings of fact and conclusions of law upon which this determination is based.
On December 7, 2007, defendant and others were indicted for conspiring to distribute and possess with the intent to distribute 50 grams or more of a substance containing cocaine base, in violation for 21 U.S.C. §§ 841(b)(1)(A)(iii) and 846, and distribution of cocaine base within 1,000 feet of a private elementary and secondary school and a public housing facility, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). The conspiracy charge in Count One of the indictment and subsequent superseding indictment carries a mandatory minimum term of 10 years' imprisonment. Additionally, because the defendant had previously been convicted of a felony drug trafficking offense, he is subject to a 20-year mandatory minimum term of imprisonment because the government filed a prior felony information pursuant to 21 U.S.C. §§ 841(b)(1)(A) and 851 after defendant declined to plead guilty.*fn3
Defendant was represented by Joel Cohen from his arraignment on December 13, 2007 until July 7, 2008. (See Tr. at 53; see also Doc. No. 7, Minute Entry for Arraignment on Dec. 12, 2007; Doc. No. 105, Minute Entry for Pretrial Conference on July 7, 2008.) During that period, Mr. Cohen had "between three and five meetings" with defendant at the Metropolitan Detention Center ("MDC") in Brooklyn, New York and had limited telephone contact with defendant. (Tr. at 53.)
Under cover of letter dated March 27, 2008, the government provided Mr. Cohen with a proposed plea agreement to the conspiracy count, subjecting defendant to a 10-year mandatory minimum term of incarceration. (Id. at 54-55; see also Gov. Ex. 3, Letter dated Mar. 27, 2008 and proposed Plea Agreement.) Although Mr. Cohen did not recall whether he provided defendant with a copy of the government's March 27, 2008 cover letter or proposed plea agreement, Mr. Cohen credibly testified that he communicated and explained the government's plea offer to defendant and explained the ramifications "in the event the government filed a second felony information" pursuant to 21 U.S.C. 851. (See Tr. at 56-57.) Specifically, Mr. Cohen testified that he explained to defendant that, if defendant chose not to accept the government's offer and plead guilty to the 10-year mandatory minimum, the government would file a prior felony information, subjecting defendant to a mandatory 20-year term of incarceration. (Id. at 59, 61.) Mr. Cohen also testified that he specifically advised defendant of the government's 10-year plea offer each time he met with defendant. (Id. at 61.)
Moreover, although defendant, Mr. Cohen and the government discussed the possibility of a sentence below the ten-year mandatory minimum, Mr. Cohen testified that "the government made it pretty clear that there was no way, other than through cooperation, that [defendant] would have an opportunity to get less than ten years." (Id. at 61.) Mr. Cohen credibly testified that defendant "wasn't interested at all in cooperating. He had no interest in cooperating." (Id. at 58.) Indeed, defendant acknowledged that Mr. Cohen discussed with him the "possibility of pleading guilty . . . ." (Id. at 20.) Defendant testified that "Mr. Cohen informed me that the government said that I played a minimal role" in the offense but that to receive "five to 40" years' imprisonment, defendant would have to "play ball with the government[,]" which defendant testified he was not willing to do because he had "no information to give." (Id. at 20-21.) Defendant further testified that it was "[v]ery much possible" that he would have pled guilty to an offer of five years' imprisonment on the conspiracy count. (Id. at 23.)
Mr. Cohen further testified that in or around March or April 2008, he reviewed some of the government's evidence, which he then discussed with defendant. Specifically, Mr. Cohen reviewed "some DVDs . . . that purported to show a drug transaction that Mr. Midyett was involved in." (Id. at 63.)
Mr. Cohen testified that "when I saw [the DVDs] there was no doubt in my mind that the person pictured was Mr. Midyett and that he was selling drugs. There was very clear audio." (Id.) Mr. Cohen testified that he "told [defendant] that I didn't think he could walk away from a conviction on the substantive count at all because it was evident that the person on the video was [the defendant] and that he was selling drugs . . . ." (Id. at 64.) Defendant, by contrast, did not put forth any evidence contradicting Mr. Cohen's testimony regarding Cohen's analysis of and advice concerning the government's proof. (See id. at 46.)
By letter dated June 24, 2008, the government formally advised Mr. Cohen that, if defendant "did not enter a plea of guilty on or before June 30, 2008, the government intends to file a prior felony information[,]" which "would have the effect of doubling any mandatory minimum sentence to which your client is subject."*fn4 (Gov. Ex. 2.) Although Mr. Cohen did not recall showing defendant a copy of the government's June 24, 2008 letter, Mr. Cohen testified that he discussed with defendant "the ramifications . . . of taking this plea, and mindful of his [defendant's] record, what the ramifications would be in the event that the government filed a second felony information." (Tr. at 56-57.) Specifically, Mr. Cohen advised defendant that the effect of the prior felony information would be that, "if he [defendant] were convicted on the conspiracy [count,] . . . instead of having a ten-year minimum, it would be 20." (Id. at 60.)
Defendant testified that Mr. Cohen neither showed him the plea agreement nor advised him that the mandatory sentence would be doubled if he did not plead guilty. (Id. at 16.) Defendant further testified that he "never had a conversation about any minimums." (Id. at 19.) Defendant's Declaration, submitted in anticipation of the October 28, 2009 fact-finding hearing (Gov. Ex. 5), is silent with respect to defendant's conversations with Mr. Cohen.
Based on Mr. Cohen's review of the evidence, the strength of the government's case, the possibility of a 20-year mandatory sentence, and defendant's desire to be reunited with his family, Cohen recommended to defendant that he "take the ten years and avoid doing another ten." (Id. at 63, 68, 70.) Mr. Cohen testified that he discussed with defendant the strengths of the government's evidence and "talked to [defendant] about how foolish I thought it would be based on my escalating belief that he would be convicted if he risked going to trial." (Id. at 70.) Mr. Cohen testified that he "really almost begged him [defendant] not to risk throwing away ten years in light of what I thought was a pretty certain conviction." (Id. at 71.)
According to Mr. Cohen, despite his advice, defendant declined to plead guilty. (Id. at 70-71.) Mr. Cohen testified that defendant told him that he believed he was not guilty of the conspiracy count because defendant had a "strong belief" that he acted as a "lone operator[.]" (Id. at 71.) Mr. Cohen "explain[ed] to [defendant] how easy it is to be charged and convicted of conspiracy . . . . and told him that I thought that there was a good chance that he would be [convicted]." (Id.) Defendant testified that he and Mr. Cohen discussed "conspiracy in general." (See id. at 19.) The court finds Mr. Cohen's foregoing testimony credible.
At approximately the same time, relations between defendant and Mr. Cohen broke down. Mr. Cohen testified that during their last meeting, defendant "said something to me about his believing that I was working with the government." (Id. at 62.) Indeed, defendant testified that he believed that Mr. Cohen did not have defendant's "best interests at heart[.]" (See id. at 34.) Consequently, defendant requested new counsel. (See id.) On July 8, 2008, defendant's motion for new counsel was granted and Martin J. Siegel, Esq. was appointed to represent defendant. (See Doc. Nos. 96, 105.) According to the government, "because of the likelihood of appointment of new counsel, and in the interest of providing the defendant with an opportunity to plead guilty to the 10-year offer, the government orally extended the June ...