EBO v. United States

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DONTE EBO, )

Petitioner

) Criminal Docket No. 17-cr-155

) Civil Docket No. 19-cv-713

UNITED STATES OF AMERICA,

Respondent.

OPINION

Mark R. Hornak, Chief United States District Judge

Petitioner Donte Ebo pleaded guilty to a two-count Indictment charging him with

unlawfully possessing a firearm and distributing a mixture of cocaine base and fentanyl. Because

Ebo pleaded guilty without a written agreement between him and the United States, he retained all

of his appellate and collateral review rights. Today, Ebo exercises his right to collateral review of

his conviction under 28 U.S.C. § 2255. Ebo tells the Court that the Federal Public Defender

appointed during his criminal case failed to provide the effective assistance promised by the Sixth

Amendment. And as a result of counsel’s ineffective assistance, Ebo claims, he received a sentence

that included six (6) years of supervised release instead of three (3). The Court, after careful review

of Ebo’s petition and the record, cannot agree with Ebo’s assertions. Ebo received the effective

assistance of counsel that our Constitution promises to all criminal defendants. As a result, Ebo’s

petition is DENIED.

I. BACKGROUND

The factual basis for Ebo’s conviction is largely irrelevant to the Court’s task in deciding

his § 2255 petition. So the Court will refrain from a detailed recitation of the events leading to

Ebo’s arrest. Instead, Ebo’s petition largely turns on procedural matters during the criminal case

against him. In June 2017, a federal grand jury indicted Ebo on one (1) count of unlawful

possession with intent to distribute a mixture of cocaine base and fentanyl, under 21 U.S.C.

§§ 841(a)(1) and (b)(1)(C), as well as one (1) count of unlawful possession of a firearm, under 18

U.S.C. § 922(g)(1). (Indictment, ECF No. 12.) Soon after, Assistant Federal Public Defender

Andrew Lipson entered his appearance on Ebo’s behalf. (Notice of Att’y Appearance, ECF No.

8.) In early May 2018, the Court entered a Scheduling Order setting a change of plea hearing for

2:00 PM on May 17, 2018. (Scheduling Order, ECF No. 34.) On May 17, the day set for the change

of plea hearing—but before the hearing itself—the Government filed an Information to Establish

Prior Conviction pursuant to 21 U.S.C. § 851 on the docket.' (ECF No. 35.) The Government’s

§ 851 Information relied on Ebo’s 2008 Pennsylvania state conviction for possession with intent

to deliver a controlled substance under 35 Pa. Cons. Stat. § 780-113(a)(30). (ECF No. 35.)

Ebo’s change of plea hearing kicked off later that same day—May 17, 2018—and ended

with the Court accepting Ebo’s plea of guilty as to both counts of the Indictment. (Minute Entry,

ECF No. 36; Guilty Plea Entry, ECF No. 37.) During the hearing, the Court advised Ebo of the

maximum possible penalties under each count. The colloquy followed as such:

The Court: ...As to Count 1 of the indictment, the maximum

penalties are any or all of the following: A term in prison of up to

twenty years, a fine of up to one million dollars, a term of supervised

release of at least three years.

If it were to turn out that your conviction on Count 1 is fora

second or later felony drug conviction, whether it’s federal, state or

foreign, that has become final, then the maximum penalties change.

The maximum becomes a term of imprisonment of up to 30 years, a

fine of up to $2 million, and a term of supervised release of at least

Six years.

! The Notice of Electronic Filing, generated by the Court’s CM/ECF system, shows that the Government filed the

Information at 1:29 PM EDT on May 17, 2019. (Notice of Electronic Filing, Information to Establish Prior Conviction,

ECF No. 35.) The Notice of Electronic Filing shows that Ebo’s attorney, Andrew Lipson, received a copy of the

Information when it was filed. (/d.) And under our District’s Local Rules—which were in effect throughout the entirety

of Ebo’s case—“[t]ransmission of the Notice of Electronic Filing constitutes service of the filed document upon each

party in the case who is registered as a Filing User.” W.D. Pa. Crim. R. 49(C) (effective Nov. 1, 2016).

Do you understand those things, sir?

Mr. Ebo: Yes, your Honor.

(Tr. of Change of Plea Hr’g, ECF No. 76, at 12:24—13:9, 14:8—9 (emphasis added).) At the change

of plea hearing both the Government and Ebo’s counsel confirmed that there was no plea

agreement in the case. (/d. at 16:6-13, 17:3—-11.) Ebo himself also acknowledged that he intended

to plead guilty without a “plea bargain or plea arrangement or agreement.” (/d. at 16:6—9.) In fact,

the Government never even offered a formal plea agreement to Ebo. (/d. at 16:6—-13, 17:3-11.)

And Ebo confirmed that he understood the Court could sentence him to the maximum penalties

allowed under the applicable statutes. (Jd. at 16:22-17:2.) In the end, Ebo pleaded guilty—and the

Court accepted his plea—as to all counts of the Indictment. (ECF No. 37.)

Following Ebo’s guilty plea, the Court ordered that the Probation Office prepare a

Presentence Report (“PSR”). (Order, ECF No. 39.) In the PSR, the Probation Office specifically

noted the mandatory six-year term of supervised release resulting from the Government’s § 851

Information. (PSR, ECF No. 45, at §75.) Ebo and his defense attorney reviewed the PSR and filed

a position notice that “Mr. Ebo has no objections, additions, or corrections to the contents of the

PSR.” (Position of Def., ECF No. 48.) Nor did Ebo or his counsel file any objection under 21

U.S.C. § 851(c), to the Government’s use of his prior conviction.

At Ebo’s sentencing hearing, Ebo’s attorney noted that “[i]n light of the government’s

election to file a Section 851 notice .. . the penalty will be doubled in the form of a six-year term

of supervision.” (Tr. of Sentencing Hr’g, ECF No. 61, at 22:12—14.) Far from objecting to the

Government’s § 851 Information, Ebo’s attorney noted that the additional period of supervision

would have an “extraordinary effect” on ensuring Ebo stayed on the straight-and-narrow following

his release from incarceration. (/d. at 22:16.) Ebo, for his part, did not challenge the Government’s

§ 851 Information during his allocution at the sentencing hearing. (/d. at 25:23-27:19.) And when

the Court asked Ebo whether he personally reviewed the PSR with his attorney before the

sentencing hearing, Ebo confirmed that he had. (/d. at 8:14.)

The Sentencing Guidelines recommended an advisory sentence between fifty-seven (57)

and seventy-one (71) months of incarceration. Ebo’s counsel vigorously argued that U.S.S.G.

§ 2D1.1 drove Ebo’s advisory sentencing guidelines range. That section of the guidelines imposed

a higher penalty for cocaine base than for powder cocaine. (/d. at 15:14—-16:10.) The Court agreed,

concluding that §2D1.1 would cause an unnecessary sentencing disparity in Ebo’s case, and

therefore varied downwards to a guidelines range of forty-one (41) to fifty-one (51) months. (/d.

at 33:10—-12.) The Court then sentenced Ebo to a period of incarceration of forty-two (42) months.

(Judgment, ECF No. 60.) As for the term of supervised release, because the United States filed a

§ 851 Information, Ebo received a mandatory sentence of six (6) years of supervised release. (/d.)

Ebo did not directly appeal his conviction. Instead, Ebo filed this collateral attack within

one (1) year of his conviction as required by 28 U.S.C. § 2255(f). The Court issued a Miller notice

and Ebo elected to adjudicate his § 2255 petition as filed. (Notice, ECF No. 63; Resp., ECF No.

72.) Ebo’s only claim is that his defense attorney provided constitutionally ineffective assistance

during his criminal proceedings. (ECF No. 62.) The United States responded. (Resp., ECF No.

74.) With that, the Court can decide Ebo’s petition.

I. STANDARD OF REVIEW

Under 28 U.S.C. § 2255, a prisoner in federal custody may collaterally attack a 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, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). An

evidentiary hearing is required for a § 2255 motion unless the filings and record of the case

conclusively show that the petitioner has no right to relief. 28 U.S.C. § 2255(b); see also Gov’t of

the V.L v. Forte, 865 F.2d 59, 62 (3d Cir. 1989). In determining whether an evidentiary hearing is

required, “the court must accept the truth of the movant’s factual allegations unless they are clearly

frivolous on the basis of the existing record.” United States v. Booth, 432 F.3d 542, 545 (3d Cir.

2005).

Ill. DISCUSSION

In this § 2255 petition, Ebo brings a single claim: ineffective assistance of counsel.” Ebo

gives two (2) grounds to support his claim. First, Ebo asserts that his “counsel was ineffective by

advising [him] to enter into a plea agreement with a [sic] improper sentencing enhancement based

on 851 enhancement on supervised release.” (ECF No. 62, at 5.) Second, Ebo asserts that his

attorney should have “asked the Court to continue [his] sentencing until the signing of the First

Step Act.” (/d. at 8.) Neither argument holds water, and Ebo’s petition is denied.

A. Ineffective Assistance of Counsel

The Sixth Amendment guarantees every criminal defendant “the Assistance of Counsel for

his defence.” U.S. Const. amend VI. But that guarantee would be mere words if the defendant’s

counsel was not effective in her or his representation of the defendant. So our Supreme Court

interpreted the Sixth Amendment to require that the defendant receive “effective” representation.

See Strickland v. Washington, 466 U.S. 668 (1984). ,

Strickland provides the two-prong legal standard for analyzing ineffective assistance of

2 Although Ebo did not file a direct appeal of his conviction, the Court can still address his ineffective assistance of

counsel claims in this § 2255 proceeding. See Massaro v. United States, 538 U.S. 500, 509 (2003) (“We do hold that

failure to raise an ineffective-assistance-of-counsel claim on direct appeal does not bar the claim from being brought

in a later, appropriate proceeding under § 2255.”).

counsel claims. First, the Court looks for deficient performance on the part of the attorney. See id.

at 688 (asking whether “counsel’s representation fell below an objective standard of

reasonableness.”). Second, the Court asks whether the defendant suffered any prejudice as a result

of counsel’s deficient performance. See id. at 693 (“Even if a defendant shows that particular errors

of counsel were unreasonable . . . the defendant must show that they actually had an adverse effect

on the defense.”). Not limited to counsel’s performance at trial, Strickland’ s two-prong test equally

“applies to challenges to guilty pleas based on ineffective assistance of counsel.” Hill vy. Lockhart,

474 USS. 52, 58 (1985).

i. Deficient Performance

For Stricklana’s first prong—whether counsel provided deficient performance—“[t]he

proper measure of attorney performance remains simply reasonableness under prevailing

professional norms.” Strickland, 466 U.S. at 688. Though identifying the “prevailing professional

norms” is not always a simple task. Compare Wiggins v. Smith, 539 U.S. 510, 524 (2003) (noting

that the Court has long referred to ABA Guidelines) and Hummel v. Rosemeyer, 564 F.3d 290, 297

(3d Cir. 2009) (“The [ABA] standards are guides, but only guides, to what is reasonable”), with

Bobby v. Van Hook, 558 US. 4, 13 (2009) (Alito, J., concurring) (“I see no reason why the ABA

Guidelines should be given a privileged position” in measuring counsel’s performance).

In the plea context, the Supreme Court has identified a handful of circumstances where

counsel is expected to perform in a specific manner under prevailing professional norms. In

Missouri v. Frye, the Supreme Court held that counsel’s performance was constitutionally

deficient when he failed to inform his client of a formal plea offer extended by the prosecution.

566 U.S. 134, 147 (2012). A few years earlier, in Padilla v. Kentucky, the Supreme Court found

constitutionally deficient performance when an attorney failed to advise his client that a guilty plea

would trigger automatic deportation—something that counsel should have easily recognized by

reading the removal statute. 559 U.S. 356, 368-69 (2010). And our Court of Appeals has held that

counsel is deficient when she or he does not “know the Guidelines and the relevant Circuit

precedent” relating to the client’s guilty plea. United States v. Smack, 347 F.3d 533, 538 (3d Cir.

2003).

Here, it is somewhat unclear exactly what Ebo thinks his lawyer did wrong. At first, Ebo

argues that his attorney “was ineffective by advising [him] to enter into a plea agreement with a[n]

improper sentencing enhancement” based on the § 851 Information. (ECF No. 62, at 5.) As his

petition goes on, however, Ebo’s argument changes to: “[I] was never given a [section] 851 notice

or aware of any enhancement until after sentencing.” (/d. at 6.) Later Ebo argues that his attorney

was “ineffective for not arguing [that the § 851 Information was improper] at sentencing and not

informally making [him] aware of all the charges that [he] was pleading to.” (/d.)

For starters, Ebo argues that he is entitled to rescission of his guilty plea because of his

counsel’s allegedly deficient performance. Ebo is correct that many courts analogize plea bargains

to contracts. See, e.g., United States v. Gilchrist, 130 F.3d 1131, 1134 (3d Cir. 1997) (citing United

States v. Moscahlaidis, 868 F.2d 1357, 1361 (3d Cir. 1989) (“Plea agreements are contractual and

therefore are to be analyzed under contract law standards.”’). But it takes two to tango. Not only

did Ebo plead guilty without a formal agreement with the United States, the Government never

formally offered a plea deal. (ECF No. 76, at 16:6-13, 17:3-11.) Instead, Ebo pleaded guilty to

the Indictment with no promises from the Government. So any contractual remedies he seeks today

are inapt.

As for his second argument, that the Government did not file a § 851 Information and that

he was unaware of potential sentencing implications until after sentencing, Ebo is again incorrect.

First off, the Government filed the § 851 Information before Ebo’s change of plea hearing. (ECF

No. 35.) Yes, the Government filed the § 851 Information only an hour before Ebo’s change of

plea. But the text of § 851 does not say how long before the defendant’s plea the Information must

be filed. See 21 U.S.C. § 851. All the statute says is that the Government must file the Information

“before entry of a plea of guilty,” and here the Government filed the § 851 Information before Ebo

pleaded guilty.

As for Ebo’s assertion that he was unaware of the § 851 Information’s implications until

after sentencing, the Record says otherwise. At the very least, Ebo knew of the § 851 Information

at sentencing, because his attorney, the Assistant United States Attorney, and the Court referenced

the § 851 Information during the sentencing proceedings. Ebo’s attorney noted that “[iJn light of

the government’s election to file a Section 851 notice . . . the penalty will be doubled in the form

of a six-year term of supervision.” (Tr. of Sentencing Hr’g, ECF No. 61, at 22:12—14.) And Ebo

did not object to the § 851 Information during his sentencing allocution. (/d. at 25:23-27:19.)

Along the same lines, Ebo told the Court that he reviewed the PSR with his attorney before the

sentencing hearing. (/d. at 8:14.) That PSR explicitly referenced the six-year mandatory minimum

term of supervised release caused by the § 851 Information. (PSR, ECF No. 45, at 975.) So the

Record is replete with evidence that Ebo knew of the § 851 Information before his sentencing

hearing.

Ebo’s third argument—that his counsel was “ineffective for not arguing [that the § 851

Information was improper] at sentencing and not informally making [him] aware of all the charges

that [he] was pleading to”—also fails. (ECF No. 62, at 6.) The Court has already addressed why

the record belies Ebo’s argument that he did not know what he pleaded guilty to. As for Ebo’s

argument that his attorney failed to argue the § 851 Information was improper, the Court concludes

otherwise. The Government’s § 851 Information established Ebo’s prior state conviction for

violation of 35 P.S. § 780-113(a)(30)—-Pennsylvania’s possession with intent to distribute a

controlled substance statute. According to Ebo’s PSR, that conviction involved his possession with

intent to distribute cocaine base-—one of the same controlled substances involved in this case.

(PSR, ECF No. 45, at $46.) Because cocaine base is a Schedule II substance, his previous

conviction exposed Ebo to more than one (1) year of imprisonment. See 35 P.S. §§ 780-104(2);

780-113(f)(1). In other words, it counted as a “felony drug offense.” United States v. Dotson, 513

F. App’x 221, 224 (3d Cir. 2013) (“[T]he predicate drug offense need only be punishable by more

than a year of imprisonment” to qualify under 21 U.S.C. § 841). So Ebo’s counsel did not deviate

from professional norms by failing to raise a losing argument over the § 851 Information. Cf

United States v. Velez, No. CR 06-338-02, 2017 WL 3028612, at *3 (E.D. Pa. Jan. 6, 2017).

ii, Prejudice

As for Strickland’s prejudice prong, the petitioner must show there was “a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would have

been different.” Strickland, 466 U.S at 694. “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” /d. For an ineffective assistance of counsel claim in the

context of a guilty plea, the way the Court examines prejudice can vary.

In Missouri v. Frye, 566 U.S. at 148, and Lafler v. Cooper, 566 U.S. 156, 163-64 (2012),

the Supreme Court held that a defendant must “show a reasonable probability that the end result

of the criminal process would have been more favorable by reason of a plea.” Frye, 566 U.S. at

147. But Lafler and Frye addressed cases in which the defendant did not plead guilty because of

counsel’s deficiency—so the ineffective assistance led to the offer’s rejection, not its acceptance.

See Lee v. United States, 137 S. Ct. 1958, 1965 & n.1 (2017). In those two cases, the relevant

question was whether the defendants “demonstrate[d] a reasonable probability they would have

accepted the earlier plea offer had they been afforded effective assistance of counsel” and

“demonstrate a reasonable probability” the prosecution would not have withdrawn the offer or the

trial judge refuse to accept the plea. Frye, 566 U.S. at 147. But Frye and Lafler’s prejudice inquiry

does not fit circumstances in which the defendant claims counsel’s ineffective assistance caused

his guilty plea. For that, the Supreme Court’s earlier decision in Hill v. Lockhart provides the

prejudice standard.

In Hill, the Supreme Court addressed a case in which the defendant did plead guilty. 474

U.S. at 59. There, the Supreme Court implemented Strickland’s prejudice prong by requiring that

the defendant demonstrate a “reasonable probability that, but for counsel’s errors, he would not

have pleaded guilty and would have insisted on going to trial.” Jd. In Hill, defense counsel

incorrectly told the defendant that he would be eligible for parole after he served one-third of his

sentence, when really the law required that the defendant serve half of his sentence before he

became parole eligible. See id. at 54-55. Without answering whether counsel’s performance fell

below prevailing professional norms, the Supreme Court held that the defendant failed to prove

prejudice. Jd. at 59-60. Nothing in the habeas petition before the Hill Court “support[ed] the

conclusion that he placed particular emphasis on his parole eligibility.” Jd. at 60. As a result, the

defendant in Hill could not show a reasonable probability that, had he known his parole prospects,

he would have insisted on going to trial. See id.

On the other hand, the Supreme Court’s more recent decision in Lee v. United States

encountered a defendant who did claim that he placed particular importance on-a factor about

which his attorney provided incorrect counsel. 137 S. Ct. at 1965-68 (addressing the prejudice

prong in the context of a Padilla error). There, the defendant argued that counsel’s incorrect advice

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about the immigration consequences of his plea prejudiced him. Jd. The defendant affirmatively

asserted that he prized avoiding deportation more than he worried about a longer period of

incarceration. Jd. at 1367-68. The Supreme Court held that “post hoc assertions from a defendant

about how he would have pleaded but for his attorney’s deficiencies” will not cut it to prove

Strickland’s prejudice prong. Jd. at 1367. Instead, “[j]udges should . . . look to contemporaneous

evidence to substantiate a defendant’s expressed preferences.” Jd. Then, noting the fact that the

defendant repeatedly stated—including during his plea colloquy—that deportation was the

determinative issue in his plea decision, the Supreme Court held that he surmounted Strickland’

high bar for proving prejudice. Jd. at 1367-68. In doing so, the Supreme Court made clear that

Lee’s case was the exceptional one when the defendant could point to a particular issue dispositive

in his plea decision and there was contemporaneous evidence of the immense importance the

defendant assigned to that issue. /d.

But Hill and Lee’s articulation of prejudice assumes a defendant who claims he would have

gone to trial absent his counsel’s deficient performance. Lee, 137 S. Ct. at 1965-68; Hill, 474 U.S.

at 59. Thus neither the Lafler and Frye line of cases, nor the Hill line of cases, presented a situation

in which the defendant claims he expected a lesser term of supervised release (or even a lesser

sentence), but does not claim that his plea would have been any different had his lawyer performed

up to prevailing professional standards.

When a petitioner’s prejudice arguments center not on whether he would have entered a

different plea, but simply on the fact that his attorney misadvised him about some aspect of his

potential sentence before his plea, our Court of Appeals has set a high bar. In United States v.

Shedrick, the Third Circuit held that a properly conducted plea colloquy ameliorates prior incorrect

sentencing advice provided by the defendant’s attorney. 493 F.3d 292, 299-300 (3d Cir. 2007).

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There, the defendant alleged that his attorney incorrectly advised him about the maximum possible

penalty he faced under a formal plea agreement with the government. Jd. The Third Circuit rejected

the defendant’s petition, however, because the district court conducted an adequate plea colloquy.

Id. at 300. Thus, the district court’s plea colloquy undid any misconceptions caused by defense

counsel’s erroneous advice. Jd. (“[A]ny erroneous sentencing information allegedly provided by

defense counsel was corrected by the written plea agreement and the detailed in-court plea

colloquy, both of which accurately stated [the defendant’s] potential sentence.’’).

While Shedrick involved a defendant pleading guilty under a formal plea agreement, its

reasoning still applies when the defendant pleads guilty without a formal agreement. Even with no

plea agreement, the district court’s properly conducted plea colloquy informs the defendant of the

maximum possible penalty that could result from a guilty plea. See United States v. Bui, 795 F.3d

363, 367 (3d Cir. 2015); Shedrick, 493 F.3d at 299-300. And the defendant is similarly on notice

of the court’s discretion in setting that sentence. See Shedrick, 493 F.3d at 300. So the district

court’s colloquy, in a sense, fulfills defense counsel’s obligation to provide the defendant with

sufficient information to make “a reasonably informed decision” about pleading guilty. Cf Shotts

v. Wetzel, 724 F.3d 364, 376 (3d Cir. 2013) (quoting United States v. Day, 969 F.2d 39, 43 (3d

Cir. 1992)); but see Bui, 795 F.3d at 367-68 (granting § 2255 petition partly because the district

court’s plea colloquy reinforced, rather than remedied, defense counsel’s erroneous sentencing

advice). In the mine run of cases, then, a properly conducted sentencing colloquy prevents a

defendant from later claiming Strickland prejudice based on counsel’s pre-plea erroneous

sentencing prediction.

Here, Ebo cannot show prejudice. First, he cannot satisfy Lafler and Frye’s framework for

analyzing prejudice in the context of a guilty plea. Those cases involved defendants who did not

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plead guilty because their counsels’ deficient performance deprived them of the benefit of a plea

bargain. Both cases are inapt because Ebo pleaded guilty without ever receiving a formal plea

offer. (ECF No. 76, at 16:6-13, 17:3—11.) So Ebo was never “subjected” to a trial that he otherwise

would have avoided had he been aware of a plea offer from the Government. The Government

made no formal plea offer. Instead, Ebo simply pleaded guilty to the Indictment.

Ebo similarly cannot satisfy Hil] and Lee’s formulation of prejudice. That is because Ebo’s

petition never asserts that he would have entered anything other than a plea of guilty. (ECF No.

62.) While Ebo writes that the Government did not file the § 851 Information properly and that his

attorney erroneously advised him about his sentencing exposure, he never says had either of those

factors been different that he would have gone to trial rather than pleading guilty. (/d.) Hill and

Lee’s prejudice framework presumes that, had the defendant learned about some consequence of

his guilty plea, he would not have pleaded guilty and instead risked a more serious sentence at

trial. See Lee, 137 S. Ct. at 1965-68

In Lee the Supreme Court held that the petitioner met Strickland’ s high bar because had he

known the immigration consequences of his plea he would not have pleaded guilty and there was

contemporaneous evidence of that fact in the record. Here, there is no evidence—let alone

contemporaneous evidence—that Ebo prized a shorter term of supervised release above all else. If

Ebo had gone to trial rather than pleaded guilty he would have lost the three-point adjustment that

he received for acceptance of responsibility under U.S.S.G. § 3E1.1(a) and (b). (PSR, ECF No. 45,

at §§36-37) That would have meant an offense level of twenty-four (24) instead of twenty-one

(21). Ud.) For Ebo, the loss of that three-point adjustment would have meant a Guidelines range

of seventy-seven (77) to ninety-six (96) months of incarceration, rather than the fifty-seven (57)

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to seventy-one (71) month range the Court calculated after the § 3E1.1 adjustment.? So for Ebo’s

argument to carry the day under Lee and Hill, he would need to assert that he was willing to risk

six (6) to thirty-nine (39) additional months in prison just to receive a shorter period of supervised

release. Such an argument is unsupported by the record. What’s more, that argument is illogical

because the Government’s § 851 Information would have had the same effect whether he pleaded

guilty or went to trial.

Ebo’s only remaining argument to meet Stricklana’s prejudice prong is to point to his

attorney’s allegedly erroneous advice about his sentencing exposure. The Third Circuit’s decision

in Shedrick guides the Court’s analysis. 493 F.3d at 299-300. There, our Court of Appeals held

that a properly conducted plea colloquy remedies defense counsel’s erroneous advice about the

defendant’s sentencing exposure. Jd. Here, the Court’s plea colloquy correctly informed Ebo of

his sentencing exposure. The Court told Ebo: “If... your conviction on Count 1 is for a second or

later felony drug conviction... then the maximum penalties change. The maximum becomes a

term of imprisonment of up to thirty years,... and a term of supervised release of at least six

years.” (ECF No. 76, at 12:24-13:9, 14:8-9 (emphasis added).) Ebo assured the Court that he

understood his term of supervised release might be six (6) years. (/d.) And he decided to plead

guilty anyways. Whether or not Ebo’s attorney said anything different about the potential term of

supervised release before the change of plea hearing, Ebo knew full well what he faced when he

changed his plea to guilty. Under Third Circuit precedent, the Court’s colloquy erased any alleged

error, and Ebo suffered no prejudice.

3 Ebo’s criminal history category IV status would stay the same either way. So the math reflected here simply uses the

2016 Guidelines Manual to identify the difference between offense level twenty-one (21) and twenty-four (24) for a

defendant who has a category IV criminal history.

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B. The First Step Act

Ebo’s ineffective assistance of counsel claim related to the First Step Act is partly wrapped

up with his § 851 Information claim. To the extent that Ebo argues that he “didn’t receive a 851

Notice to show what type of conviction was used, and was that conviction for a serious drug

conviction,” the Court’s discussion above cuts off that line of argument. But Ebo’s First Step Act

claim raises one (1) issue not yet addressed by the Court. That is, did Ebo’s attorney provide

ineffective assistance by not asking the Court to continue Ebo’s sentencing until after the signing

of the First Step Act. The Court concludes that counsel’s decision to not move for a continuance

based on the possibility that a proposed bill would become law does not violate the Sixth

Amendment—at least in Ebo’s circumstances.

The Court sentenced Ebo on October 29, 2018. (ECF No. 60.) Congress passed the First

Step Act on December 20, 2018, and the President signed it into law the following day. See First

Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (2018). So there was a nearly two (2) month

gap between Ebo’s sentencing and when the First Step Act became law. In that time, the Act’s

passage was not a fait accompli. Rather, even a light reading of the Congressional record shows a

flurry of activity in both the Senate and House in the time between Ebo’s plea and the President’s

signature. Neither Ebo nor the United States identified any case law requiring defense counsel to

wait for bills to become laws before scheduling sentencing. And the Court itself could not identify

any such precedent.

The decision to proceed with sentencing in late October represents exactly the sort of

strategic decision that Strickland and its progeny say this Court should not second guess. Accord

Sistrunk v. Vaughn, 96 F.3d 666, 670 (3d Cir. 1996) (citing Strickland, 466 U.S. at 689-90). Ebo’s

counsel made the decision to go ahead with sentencing and argue that the Court should sentence

15

below the guidelines because Ebo’s range reflected a gross disparity between crack and cocaine

charges. That strategic decision proved successful, because the Court varied downwards to a

guidelines range of forty-one (41) to fifty-one (51) months, and ultimately sentenced Ebo on the

low end of the guidelines at forty-two (42) months. (ECF No. 61, at 33:10—12.) So it is tough to

see how the Court could say that decision fell below “prevailing professional norms.”

Finally, it is important to note that Ebo’s petition does not ask this Court to grant him any

relief under the First Step Act. Instead, Ebo only invokes the First Step Act to say that his attorney

should have continued sentencing until after its passage. Throughout his § 2255 petition, Ebo

unambiguously states that his sole claim is for ineffective assistance. And here, the Court

concludes that his First Step Act arguments do not demonstrate that he suffered ineffective

assistance of counsel.

IV. CERTIFICATE OF APPEALABILITY

To appeal from a final order in a § 2255 proceeding, the petitioner must obtain a certificate

of appealability. 28 U.S.C. § 2253(c)(1)(B). A certificate of appealability “may issue only upon ‘a

substantial showing of the denial of a constitutional right.’” Michael v. Horn, 459 F.3d 411, 418

n.9 (3d Cir. 2006) (quoting 28 U.S.C. § 2253(c)(2)). When the Court denies the petition on the

merits of the claims, the petitioner must show that “reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484

(2000). For the reasons stated above, Ebo’s petition does not make that showing. Therefore, the

Court declines to issue a certificate of appealability regarding Ebo’s ineffective assistance of

counsel claim.

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V. CONCLUSION

The Court concludes that the files and records in this case conclusively show that Ebo is

not entitled to relief under § 2255. For both of his ineffective assistance of counsel claims, Ebo is

unable to meet Strickland’s standard. Because the record unambiguously demonstrates that Ebo’s

claims fail, no evidentiary hearing is warranted. Ebo’s Motion to Vacate Sentence Under 28 U.S.C.

§ 2255, is therefore DENIED, and no Certificate of Appealability shall issue, for the reasons

stated.

Mark R. Hornak

Chief United States District Judge

Dated: February 10, 2020

ce: All counsel of record via ECF;

Petitioner via U.S. Mail

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