U.S. v. Enigwe

• Decision Date: 04 June 2004
• Docket Number: Criminal Action No. 92-257.
• Citation: 320 F.Supp.2d 301
• Parties: UNITED STATES of America, v. Ifedoo Noble ENIGWE.
• Court: U.S. District Court — Eastern District of Pennsylvania

320 F.Supp.2d 301

UNITED STATES of America, v. Ifedoo Noble ENIGWE.

Criminal Action No. 92-257.

United States District Court, E.D. Pennsylvania.

June 4, 2004.

David Hall, Roland Jarvis, Asst. U.S. Attys., Philadelphia, PA, for Plaintiff.

Alan L. Yatvin, Esq., Popper & Yatvin, Joseph P. Capone, Esq., Philadelphia, PA, for Defendant.

ORDER AND MEMORANDUM

DUBOIS, District Judge.

ORDER

AND NOW, this 4th day of June, 2004, upon consideration of Ifedoo Noble Enigwe's Motion to Vacate Judgement Pursuant to Rule 60(b), Fed.R.Civ.Proc. (Docket No. 371, filed September 9, 2003), Supplemental Submission to the Rule 60(b)(6) Motion Pending Before this Court (Docket No. 375, filed October 27, 2003) United States' Response to Defendant's Motion to Vacate Judgment Pursuant to Rule 60(b)(6) Fed.R.Civ.P. (Docket No. 378, filed November 24, 2003), Defendant's Reply to Government's November 24th, 2003 Response (Docket No. 379, filed December 3, 2003) and petitioner's letter dated December 12, 2003,¹ IT IS ORDERED for the reasons set forth in the attached Memorandum, that the Motion to Vacate Judgment Pursuant to Rule 60(b) Fed.R.Civ.Proc. is DENIED.

IT IS FURTHER ORDERED, as follows:

1. Petitioner's Motion for Bail Pending Court's Ruling on Motion on Actual Innocence (Docket No. 382, filed April 12, 2004) is DENIED as MOOT; and

2. Motion to Expedite Rulings filed by Ifedoo Noble Enigwe (Docket No. 383, filed May 3, 2004) is DENIED as MOOT.

Upon consideration of the letter from defendant, Ifedoo Noble Enigwe, dated January 7, 2004 (Docket No. 381), with attachment, relating to payment of defendant's fine in the amount of $10,000.00, the Court having issued a Writ of Execution on September 11, 1995, directing the United States Marshal Service, inter alia, to levy on and sell the property of the judgment debtor, Ifedoo Noble Enigwe, described in the Writ of Execution — 1,870 German Deutschmarks — and to apply the resulting funds to defendant's fine, and the Government's letter/report dated March 22, 2004, with attachments,² in which the Government stated it complied with the Writ of Execution issued by the Court by liquidating the 1,870 German Deutschmarks seized from defendant and applying the proceeds to defendant's fine, IT IS FURTHER ORDERED that petitioner's letter request for the return of such funds dated January 7, 2004, or for correction of the fine balance, is DENIED.

MEMORANDUM

Currently before the Court is a pro se motion under Federal Rule of Civil Procedure 60(b) to vacate this Court's Order of July 16, 1997 denying petitioner's Motion to Vacate, Set Aside, or Correct his Sentence pursuant to 28 U.S.C. § 2255 ("Motion for Reconsideration"). In the Motion for Reconsideration, petitioner asks the Court to vacate its ruling denying petitioner's first ineffective assistance of counsel claim — the alleged ineffectiveness of trial counsel in advising defendant as to whether he should plead guilty without a plea agreement — on the ground that the law has changed and the Court's Order and Memorandum of July 16, 1997 is inconsistent with the change. The change in the law was announced, according to petitioner, by the U.S. Circuit Court of Appeals for the Sixth Circuit, Griffin v. United States, 330 F.3d 733 (6th Cir.2003).³

Petitioner subsequently filed a Supplemental Submission to the Rule 60(b)(6) Motion Pending Before this Court (Docket No. 375, filed October 27, 2003) ("Supplemental Submission") in which he argues that he has come into possession of newly discovered evidence that establishes his innocence. Thus, the Supplemental Submission does not supplement the Motion for Reconsideration, which argues a change in the law, but rather introduces an entirely distinct argument for the Court to consider. For the reasons outlined below, the Motion for Reconsideration is denied.

I. BACKGROUND

The Court sets forth only an abbreviated factual and procedural history as pertinent to the pending motion. A detailed factual and procedural history is included in the Court's previously reported opinions in this case. E.g., United States v. Enigwe, Cr. No. 92-257, 2003 WL 151385, at *2-6 (E.D.Pa. Jan. 14, 2003) (history of habeas proceedings); United States v. Enigwe, Cr. No. 92-257, 2001 WL 708903, at *1-2 (E.D.Pa. June 21, 2001) (postconviction procedural history); United States v. Enigwe, 212 F.Supp.2d 420 (E.D.Pa.2002) (same); United States v. Enigwe, Cr. No. 92-257, 1992 WL 382325, at *2-3 (E.D.Pa. Dec. 9, 1992) (factual history).

On May 6, 1992, defendant Ifedoo Noble Enigwe was indicted for trafficking in heroin. He was convicted by a jury on all four counts on August 12, 1992 and, on August 13, 1993, was sentenced by this Court to 235 months in prison and five years of supervised release. Defendant's conviction and sentence were affirmed on appeal by the United States Court of Appeals for the Third Circuit in an unpublished decision on April 28, 1994. United States v. Enigwe, 26 F.3d 124 (3d Cir.) (table), cert. denied, 513 U.S. 950, 115 S.Ct. 364, 130 L.Ed.2d 317 (1994). Defendant is currently serving his sentence at FCI-Elkton, Lisbon, Ohio.

Defendant filed a pro se Motion to Vacate, Set Aside, or Correct his Sentence pursuant to 28 U.S.C. § 2255, on August 24, 1994 ("2255 Motion").⁴ Petitioner presented two claims: (1) ineffectiveness of defendant's trial counsel in advising defendant as to whether he should plead guilty without a plea agreement and (2) ineffectiveness of defendant's trial counsel in advising defendant whether he should testify at all. As to the first claim, petitioner presented evidence that his trial counsel, Joseph Capone, erroneously advised him that he faced the same sentence whether he pled guilty without an agreement from the government (an "open plea"), or went to trial and was convicted. Petitioner's sentencing range was in fact quite different under these two scenarios. If petitioner had accepted an open plea he would have faced a sentencing range of 168 to 210 months. In contrast, the sentencing range he faced after trial and conviction (with, inter alia, an enhancement for obstruction of justice) was 235 to 293 months.

The Court denied both claims. United States v. Enigwe, Cr. No. 92-257, 1997 WL 430993 (E.D.Pa. July 16, 1997), aff'd, 141 F.3d 1155 (3d Cir.), cert. denied, 523 U.S. 1102, 118 S.Ct. 1573, 140 L.Ed.2d 806 (1998). The Motion for Reconsideration addresses the Court's ruling on the first claim only and the discussion that follows is limited to that claim.

By Memorandum and Order of July 16, 1997, the Court denied petitioner's claim of ineffective assistance of counsel based on alleged erroneous sentencing advice. In evaluating his claim the Court applied the two-factor standard announced by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, to prevail on an ineffective assistance of counsel claim, the petitioner must prove that (1) counsel's performance fell below an objective standard of reasonableness, id. at 687-688, 104 S.Ct. 2052 and (2) petitioner was prejudiced by this performance, id. at 694, 104 S.Ct. 2052. The Court concluded that petitioner had met the first prong — petitioner established that his counsel's performance had been objectively unreasonable — but failed to meet the second prong — petitioner did not establish that he suffered prejudice.

Petitioner's trial counsel testified at the evidentiary hearing that he advised petitioner not to plead guilty because petitioner would get "the same" sentence whether he pled guilty or went to trial and was convicted. The Court concluded that trial counsel's statement was incorrect and was not a position a reasonable attorney would take. Thus, the Court ruled that counsel's performance fell below an objective standard of reasonableness.

With respect to the prejudice prong of Strickland, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. 2052. In this case, the Court had to determine whether a reasonable probability existed that petitioner would have pled guilty absent his counsel's objectively unreasonable performance. United States v. Day, 969 F.2d 39, 45 n. 8 (3d Cir.1992). As the Kates court explained, there are three general categories of evidence a defendant may present to establish reasonable probability:

(1) testifying that he [defendant] would have accepted the plea, (2) proving that the proposed plea agreement was much more favorable than the actual sentence, and (3) proving that at trial he followed counsel's advice not to testify in light of his criminal history.

Kates, 930 F.Supp. at 192 (citing Day 969 F.2d at 46). In his § 2255 Motion, defendant presented evidence on the first two categories.⁵

First, when defendant was asked at the February 1997 evidentiary hearing if he would have pled guilty had his counsel advised him properly, he testified as follows:

Q [Mr. Warren] Sir, if you had known that by pleading guilty and accepting responsibility for your conduct, your sentence would have been 151 to 188 months, would your decision to go to trial have been different?

A Of course.

Q Well, how so? What would have been different?

A It would have been different because, you know, once I see the difference in what I could get going to trial as opposed to what I could get pleading guilty, you know, even though the 151 months is not one day but comparing it with the 235 months, I would definitely plead guilty.

Q All right. Now, sir, you sit up there convicted of those crimes, right?

A Uh-huh.

Q How's the Judge to know that you're not just giving him the benefit of hindsight, that the only reason you're saying this is because you went to trial and got convicted and now you want the...