The opinion of the court was delivered by: Richard W. Roberts United States District Judge
MEMORANDUM OPINION AND ORDER
Petitioner Curtis Allen Moore, Jr., filed a motion to vacate his sentence under 28 U.S.C. § 2255 or, in the alternative, to conduct an evidentiary hearing, arguing that his counsel provided ineffective assistance, the court misunderstood its discretion to depart from the criminal history category calculation, and the sentencing was unconstitutional in light of United States v. Booker, 543 U.S. 220 (2005). The government opposes Moore's motion to vacate his sentence, but requests an evidentiary hearing on whether Moore's attorney failed to appeal when requested. Moore has failed to substantiate most of his claims, and they warrant no hearing or relief. However, because Moore has alleged facts that may entitle him to relief on the issue of whether his attorney failed to file an appeal despite Moore's requests, Moore is entitled to an evidentiary hearing on that issue. In addition, because the court materially misperceived its sentencing discretion, Moore's sentence will be vacated and he will be resentenced.
Moore sold cocaine base ("crack") to undercover police officers on four occasions before his arrest. (Presentence Investigation Report ("PSR") ¶¶ 6-9.) Law enforcement agents also searched Moore's residence and vehicle and recovered additional crack, a loaded revolver, and drug paraphernalia. (Id. ¶¶ 11, 12, 14.) The weight of all of the crack totaled 267.3 grams. (Id. ¶ 15.) Moore was indicted on five counts. The first three counts each charged unlawful distribution of five grams or more of cocaine base. Count 4 charged unlawful distribution of 50 grams or more of cocaine base, and Count 5 charged unlawful distribution of 50 grams or more of cocaine base within 1000 feet of Takoma*fn1 Elementary School.
Moore entered a plea agreement with the government. (Gov't Opp'n at 3.) In the plea agreement, Moore agreed to plead guilty to Count 5, acknowledged that he would be treated as a career offender with an enhanced offense level of 37 and a criminal history category of VI under the U.S. Sentencing Guidelines, and agreed not to seek any downward departures from the guidelines. (Pet'r Mem. in Support of § 2255 ("Pet'r Mem."), Ex. 10 ("Plea Agreement") ¶¶ 1, 3, 22.) The government agreed to dismiss the
remaining four counts, to file a downward departure motion under § 5K1.1 of the sentencing guidelines if Moore provided substantial assistance in investigating or prosecuting other offenders, to not file papers that would double Count 5's mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(A), to not file any charges pertaining to the recovered firearm, and to consent to a three-level reduction of Moore's offense level for pleading guilty. (Id. ¶¶ 15, 16, 19, 22.) Moore pled guilty to Count 5 at a plea hearing in which the court conducted an extensive colloquy as required by Rule 11 of the Federal Rules of Criminal Procedure. The court found Moore's guilty plea voluntary and accepted the plea. (Pet'r Mem., Ex. 2 ("Plea Hrg. Tr.") at 31.) Moore was detained pending sentencing.
The PSR did classify Moore as a career offender under the sentencing guidelines. (PSR ¶ 27.) That resulted in a total offense level of 34 after a three-point reduction for pleading guilty and a criminal history category of VI, yielding a sentencing guidelines range of 262 to 327 months in prison. (Id. ¶¶ 27-28, 36, 59.) The government did not file a motion to depart under § 5K1.1 because the petitioner, while not at fault, did not provide substantial assistance. (Pet'r Mem., Ex. 1 ("Sent. Tr.") at 8.) Moore was sentenced in 2002 to 262 months of imprisonment. (Id. at 23.) Moore claims that after sentencing, he instructed his attorney, William Gregory Spencer, to file an appeal immediately and that his mother also made this request at a later meeting. (Pet'r Grounds & Supporting Facts for § 2255 Habeas Review ("Pet'r Grounds") at 1.) However, Spencer denies that Moore asked him to appeal. (Gov't Opp'n at
15.) Spencer says he did later speak with Moore's mother, advised her that there was no appealable issue, and said that Moore should contact Spencer if Moore wanted to appeal. (Id.) Spencer reports he did not receive any further contact from Moore and did not file an appeal. (Id.)
Moore asserts that Spencer was ineffective for failing to request or alert the court to certain downward departures at sentencing; for advising Moore to plead guilty while misrepresenting the quantity of the drug evidence and despite Moore's exculpatory claims, resulting in a plea that was not knowing and voluntary; for failing to claim that the government violated the plea agreement by not filing a substantial assistance motion under § 5K1.1; and for failing to file a timely notice of appeal. (Pet'r Grounds at 1-3, 5-17.) Additionally, Moore argues that the court committed error by not recognizing its own discretion to depart downward from his criminal history category (id. at 3-4), and that his sentence was unconstitutional following Booker.*fn2 (Pet'r Mem. in Support of Mot. for Leave to Amend § 2255 Mot. at 2.) The government consents to a hearing on whether Spencer failed to appeal, but opposes the remainder of Moore's motion to vacate his sentence by asserting that his plea was knowing and voluntary, that Spencer was not ineffective, and that Moore failed to show any prejudice from Spencer's alleged errors.*fn3 (Gov't Opp'n at 3, 14, 16-17.)
In a § 2255 motion, the petitioner can move the sentencing court to "vacate, set aside, or correct the sentence" if the sentence was "imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law. . . ." 28 U.S.C. § 2255(a). The petitioner bears the burden by a preponderance of the evidence. United States v. Pollard, 602 F. Supp. 2d 165, 168 (D.D.C. 2009). An evidentiary hearing need not be held when the "motion and the files and the records of the case conclusively show the prisoner is entitled to no relief." United States v. Horne, No. 99-3080, 2000 WL 60246, at *2 (D.C. Cir. Jan. 4, 2000) (per curiam) (noting that it is within the court's discretion whether to hold a hearing when it is the same court that presided over the petitioner's criminal proceedings) (internal quotation marks omitted).
I. INEFFECTIVE ASSISTANCE OF COUNSEL
In order to prove ineffective assistance of counsel, Moore must show (1) that counsel's representation fell below an objective standard of reasonableness, and (2) that there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). Counsel's performance is evaluated on the basis of how counsel would have viewed it at the time without the benefit of hindsight. Id. at 689. To satisfy the first prong, the petitioner must show that counsel did not provide reasonable service under the "prevailing professional norms" given the circumstances. Id. at 688. Courts will look to "an attorney's ethical duties, including those which require counsel to bring skill and knowledge to the case and to provide zealous representation." Best v. Drew, Civil Action No. 01-262 (RWR), 2006 WL 2035652, at *3 (D.D.C. July 18, 2006).
As for the second prong, a reasonable probability is a "probability
sufficient to undermine confidence in the outcome." Strickland, 466
U.S. at 694. The two-part Strickland test also applies where a
petitioner has pled guilty. Hill v. Lockhart, 474 U.S. 52, 58 (1985).
To satisfy the prejudice requirement, a petitioner who has pled guilty
"must show that there is a reasonable probability that, but for
counsel's errors, he would not have pleaded guilty and would have
insisted on going to
trial." Id. at 59; see also Missouri v. Frye, 132 S. Ct. 1399,
1409 (2012) (affirming that the Hill standard continues to govern
"cases where a defendant complains that ineffective assistance led him
to accept a plea offer as opposed to proceeding to trial"). When the
evidence supports a petitioner's assertion that he would not have
accepted the plea agreement, but for counsel's erroneous advice, a
petitioner has been prejudiced. See United States v. Streater, 70 F.3d
1314, 1322-23 (D.C. Cir. 1995) (stating that the defendant's affidavit
asserting his innocence and intention to argue a defense, his
rejection of plea offers until counsel's error, and the judge's
sending for a jury panel support an intent to proceed to trial). To
satisfy the required showing of prejudice, a "defendant must make more
than a bare allegation that he 'would have pleaded differently and
gone to trial[.]'" United States v. Horne, 987 F.2d 833, 836 (D.C.
Cir. 1993) (quoting Key v. United States, 806 F.2d 133, 139 (7th Cir.
1986)); see also United States v. Tolson, 372 F. Supp. 2d 1, 19
(D.D.C. 2005) (stating that the Strickland test requires not "some"
probability, but "reasonable" probability, a threshold that bare
allegations fail to satisfy). The prejudice inquiry determination is
"closely related to the objective prediction of whether the defense
could succeed if the case went to trial." United States v. Del
Rosario, 902 F.2d 55, 58 (D.C. Cir. 1990), abrogated on other grounds
by Padilla v. Kentucky, 130 S. ...