CRUTE v. USA, No. 2:2009cv00498 - Document 11 (W.D. Pa. 2011)
Court Description: MEMORANDUM and ORDER denying Motion to Vacate/Set Aside/Correct Sentence (2255) filed by GEORGE WASHINGTON CRUTE. Signed by Chief Judge Gary L. Lancaster on 5/20/11. (map)
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CRUTE v. USA Doc. 11 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA GEORGE WASHINGTON CRUTE, Petitioner, v. Civ. Action No. 09-0498 Crim. Action No. 05 100 UNITED STATES OF AMERICA, Respondent. MEMORANDUM Gary L. Lancaster, Chief Judge. This sentence May 20, 2011 is an action to vacate, pursuant Washington Crute distribute and cocaine. to was 28 U.S.C. convicted distribution of 2255. § of set aside, Petitioner possession more or correct than 5 with grams George intent of to crack The court sentenced him to 120 months incarceration. Petitioner claims that his sentence should be vacated, set aside, or corrected because he was denied effective assistance of counsel in violation of the Sixth Amendment to the United States Constitution. Specifically he maintains that his trial counsel failed to inform him that the government sought a sentencing U.S.C. § enhancement 851. for He claims would have agreed his prior offenses pursuant that if he had known this to cooperate with the government to 21 fact, he and would have been amenable to a plea bargain, instead of going to trial. The United States Government opposes Crute's petition contending that petitioner was not denied effective assistance Dockets.Justia.com of counsel, and that even if there was any deficiency, petitioner suffered no prejudice because he cannot demonstrate that he was ever offered a plea bargain. On hearing on March 18, 2011, petitioner's the court motion. At Uni ted States Attorney Michael Comber, held the an evidentiary hearing, Assistant the original prosecutor on the case, was called by the petitioner. Crute testified on his served own behalf. Chris Rand Eyster, who as Crute's attorney from the inception of the case through trial testified for the government. After considering the hearing, the credibility the witnesses, the evidentiary the parties' the court is prepared to rule. briefs on this matter, of testimony from and For the following reasons, petitioner's motion to vacate, set aside, or correct sentence will be denied. I. FINDINGS OF FACT The credible evidence introduced at the hearing establishes the following: On March 25, charges against Crute. 100, at Doc. No. 12] 2005, the government filed criminal The Indictment Memorandum [Crim. No. 05 indicates that on count three, 2 possession with intent to distribute and distribution of more than 5 grams of crack cocaine, the charge upon which Crute was ultimately convicted, Crute faced a 5-year mandatory minimum sentence. On January 19, 2006 Eyster and Crute met prosecutor assigned to his case. with the Eyster's time records support this noting that Eyster met with the "[Assistant United States Attorney], agents and defendant. [Hearing Exhibit 1/ 9]. The purpose of this meeting was to discuss a possible plea agreement in exchange for investigations. case. Crute's They cooperation discussed the in possible on-going penalties drug in the They also discussed the fact that if Crute did not plead guilty and agree to cooperate, the government planned to file an information pursuant to 21 U.S.C. Crute's mandatory incarceration. minimum Crute § 851, sentence indicated which would increase from that he 5 to was 10 not years of willing to cooperate with the government and the negotiations ended. On January 20, 2006, the government filed an information charging Crute with prior offenses in violation of federal drug law pursuant to 21 U.S.C. §851. at Doc. No . 34]. [Crim. No. 05-100, Upon the filing of this information, became subject to a 10-year mandatory minimum sentence. began on January 24, 2006. 3 Crute Trial II. CONCLUSIONS OF LAW The court reviews claims of ineffective assistance of counsel under the Washington, 466 U.S. must prove: (1) two-prong was 668 standard (1984). of Strickland For petitioner to succeed he that his counsel was deficient; and (2) prejudiced by his counsel's v. deficiency. that he Strickland, 466 U.S. at 687. The court of appeals recently observed that, to satisfy the first prong of the Strickland test, in order petitioner "must show that counsel's representation fell below an objective standard of reasonableness." (3d Cir. 2009) so, Lewis v. (quoting Strickland, of hindsight, to 581 F.3d 92, 466 U.S. at 688). we "must make every effort effects Horn, 106 In doing to eliminate the distorting reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel' s time." perspective at the internal quotation omitted). we must falls indulge within assistance that the and a Id. 113 (citation and The court of appeals directs that strong presumption the wide that petitioner must challenged at range action might 4 of be that counsel's reasonable overcome the considered conduct professional presumption sound trial Id. ~trategy. Petitioner can rebut that presumption, however, that "by showing that the conduct was not, in fact, part of a strategy or by showing that the strategy employed was unsound." Id. In prejudice, order petitioner probabi1i ty that, result to of prove must the "show second that prong there is establish a reasonable but for counsel's unprofessional errors, the proceeding would have been Strickland, 466 U.S. at 694; Weeks v. Snyder, (3d Cir. 2000). and the different." 219 F.3d 245, 257 In other words, petitioner must show that there is a reasonable probability that his counsel's errors resulted in his conviction. See Glover v. United States, 531 U.S. 198, 203 (2001). Crute contends that his trial counsel was ineffective because Eyster Memorandum, mandatory never never minimum gave informed sentence, him him of and a copy of his his exposure to never warned Indictment him government had filed an information under 21 U.S.C. a 10-year that § the 851 thus increasing his mandatory minimum sentence exposure from 5 years to 10 years. He maintains that he was prej udiced by these omissions because if he had known that his mandatory minimum was 5 10 years of incarceration, then he would have been amenable to a plea bargain and willing to cooperate with the government. The counseled, government argues that Crute was properly but also maintains that Crute's claim fails because he must first prove that a plea bargain was actually offered, which he cannot do. The credible evidence establishes, and the court finds, that Eyster did inform his client of the risk that he would face of a incarceration. mandatory minimum sentence 10 years of The court also finds it credible that Crute was present during the January 19, 2006 meeting where the government made plain its intention to file an information under 21 U.S.C. § 851 for the purpose of seeking an enhanced sentence against Crute if he refused to cooperate with the government. Because of this, the court holds that trial counsel's representation did not fall below the range of reasonable professional assistance owed to petitioner. Therefore, Crute's claim that trial counsel was ineffective fails. Further, correct that Crute the court must finds prove that that the the government government is actually offered him a plea bargain in order to bring a successful claim of ineffective assistance of counsel 6 on these facts. The discretion to engage in plea bargaining rests prosecution. Weatherford v. Bursey, 429 U.S. solely with the 545, 561 See U.S. v. Carter, No. 09-1173, 2010 WL 883716 at *6 Mar. II, 2010). Here, although some informal plea agreement (1977). (W.D. Pa. the credible evidence establishes that preliminary discussions was actually occurred, offered. no formal Because or Crute cannot prove that he was ever offered a plea bargain, he cannot meet his burden to show that he was prejudiced in any manner by the actions of his trial counsel. III. CONCLUSION Based establishes that on § An foregoing, petitioner is petition to vacate, 28 U.S.C. the set aside, not the record entitled to conclusively relief on his or correct sentence pursuant to 2255. appropriate order follows. 7 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA GEORGE WASHINGTON CRUTE, Petitioner, Civ. Action No. 09-0498 Crim. Action No. 05-100 v. UNITED STATES OF AMERICA, Respondent. ORDER AND ORDERED that NOW, this V petitioner's f;" day motion of to May, 2011, vacate, IT set IS HEREBY aside, or correct sentence [Crim. No. 05-100, at Doc. No. 71] is DENIED. BY THE COURT, ~C.J. cc: All Counsel of Record
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