This matter comes before the Court upon the pro se Petition to Vacate Defendant’s Conviction Pursuant to 28 U.S.C. § 2255, and Memorandum and Points of Authorities in Support Thereof (“Def.’s Mem.”). The defendant, George Brisbane, alleges that his conviction and sentence for the sale of cocaine were obtained in violation of his Sixth Amendment right to effective representation, and in violation of the Double Jeopardy Clause of the Fifth Amendment. Also before the Court is the defendant’s Motion to Alter or Amend Judgment/Order of 2/19/08, pursuant to Federal Rule of Civil Procedure 59(e) (“Def.’s Rule 59(e) Mot.”). The petitioner seeks an evidentiary hearing, a new trial, or immediate release. These motions are opposed by the government, see United States’ Opposition to Petition to Vacate Defendant’s Conviction Pursuant to 28 U.S.C. § 2255 (“Gov’t’s Opp’n”). For the reasons that follow, this Court will deny in part the defendant’s motions, and order an evidentiary hearing solely to address the defendant’s claim that his trial counsel was ineffective for failing to investigate and present an entrapment defense.
I. Factual and Procedural Background
On January 28, 2003, the defendant was found guilty by a jury of distributing five grams or more of “cocaine base,” in violation of 21 U.S.C. §’ 841(b)(l)(B)(iii) (2006). Although the government had indicted the defendant for the sale of “cocaine base, also known as crack,” this Cоurt determined, in response to a mid-trial Motion for Judgment of Acquittal by the defen
On appeal to the District of Columbia Circuit, the defendant, now represented by Law Professor Adam H. Kurland, raised the following four claims: (1) the evidence was insufficient to support a finding that the substance at issue was cocaine base within the meaning of Section 841(b)(l)(B)(iii); ' (2) under
Apprendi v. New Jersey,
[distribution of “cocaine” is a lesser included offense of distribution of “cocaine base.” The elements of the latter offense include all the elements of the former, plus proof that the type of cocaine is “cocaine base” within the meaning of subsection (iii). See Kelly v. United States,370 F.2d 227 , 228 (D.C.Cir.1966). There is no doubt that the government’s evidence sufficiently supported Brisbane’s conviction for distributing “cocaine,” although the evidence did not support his conviction for distributing “cocaine base” as that term may be understood under either of the options discussed above.
Id. at 914-15. Hence, the defendant’s conviction was vacated and remanded “with instructions to enter a judgment of conviction for ‘cocaine’ and to sentence accordingly.” Id. at 915. On May 25, 2005, this Court entered a judgment of conviction against the defendаnt - for distribution, of cocaine, and the defendant, now represented by Cary Clennon, was re-sentenced to 327 months imprisonment and five years supervised release.
The defendant again appealed. Through Gregory B. English, now his fourth lawyer, the defendant argued (1) that distribution of cocaine hydrochloride is not a lesser included offense of the distribution of cocaine base, and (2) that the defendant’s prior convictions were elements of the offense and thus were required to be charged in the indictment and proven beyond a reasonable doubt to the jury. The defendant’s conviction was summarily affirmed on March 7, 2006.
U.S. v. Brisbane,
No. 05-3098, at 1 (D.C.Cir. Mar. 7, 2006) (unpublished). The defendant
The defendant, now proceeding pro se, filed this timely motion under 28 U.S.C. § 2255 on September 1, 2007. After failing to respond to or acknowledge the defendant’s motion as ordered by the Court on November 27, 2007, November 27, 2007 Order at 1, the Court ordered the government to file a response on or before February 1, 2008, or risk the entry of a judgment for the defendant, January 15, 2008 Order to Show Cause at 1. Although the deadline for the gоvernment’s response had not yet come to pass, the defendant filed a motion on January 28, 2008, requesting that the Court, inter alia, enter judgment in his favor of due to the government’s failure to file its response in a timely fashion. Petitioner’s [ ] Motion to Compel [ ] Judgment in Demand [ ] Pursuant to Section [ ] 2255 Proceedings Rules 4(b), and 5(a)-(d) at 2. Meanwhile, the Court “learned that the attorney listed as counsel of record on behalf of the United States [was] no longer employed by the Office of the United States Attorney,” February 19, 2008 Order at 1, and because the United States [had] not received either of the Court’s prior orders,” id. at 1-2, the Court vacated the January 15, 2008 Order and directed the government to file a memorandum in opposition to the defendant’s Section 2255 motion on or before March 31, 2008, id. at 2.
The defendant continued to press on, however, and on February 21, 2008, he moved for summary judgment, arguing once again that he is entitled to judgment in his favor because of the government’s failure to timely file a response to his Section 2255 motion. Motion for Summary Judgment for Failure of Respondent to Oppose Petitioner’s Timely 2255 (2000) Motion to Vacate Unconstitutional Conviction and Sentence at 1. Given that the Court had already ordered the government to file its oppоsition memorandum by March 31, 2008, the Court denied both the defendant’s motion to compel judgment, as well as his motion for summary judgment. February 27, 2008 Order at 2.
In response to the Court’s latest order, the defendant filed yet another motion on February 29, 2008, this time asking the Court to vacate, alter, or amend its February 19, 2008 Order and to reinstate its January 15, 2008 Order. Def.’s Rule 59(e) Mot. at 1. Furthermore, the defendant requests that the Court enter judgment in his favor based on the government’s delayed response, or alternatively to proceed without allowing the government to file any responsive pleadings. Def.’s Rule 59(e) Mot. at 9; see also Defendant’s Motion for Summary Judgment, and Reply to Respondents Opposition to Petitioner’s 28 U.S.C. § 2255 [Motion] to Vacate Unconstitutional Conviction and Sentence (“Def.’s Reply”) at 4. Each of these motions will be addressed below.
II. Analysis
A. Defendant’s Motion to Alter or Amend The Court’s Order of February 19, 2008 and to Reinstate the Court’s January 17, 2008 Order Pursuant to Federal Rule of Civil Procedure 59(e)
Pursuant to Federal Rule of Civil Procedure 59(e), the defendant requests that the Court vacate its Order of February 19, 2008, and enter judgment for him based on the government’s delayed response, or alternatively to proceed without allowing the government to file any responsive pleadings. Def.’s Reply at 3.
The defendant argues that the government, by failing to respond to his motion by February 1, 2008, “has defaulted,” and that its excuse (the attorney of recording having retired) is “totally inexcusable.” Def.’s Reply at 2. The defendant cites
Santobello v. New York,
[t]he staff of the prosecution is a unit and each member must be presumed to know the commitments made by any other member. If responsibility could be evaded that way, the prosecution would have designed another deceptive ‘contrivance,’ akin to those we condemned in Mooney v. Holohan,294 U.S. 103 ,55 S.Ct. 340 ,79 L.Ed. 791 [ (1935) ], and Napue v. Illinois,360 U.S. 264 ,79 S.Ct. 1173 ,3 L.Ed.2d 1217 [ (1959) ].
Def.’s Reply at 2. The defendant also cites
Ruiz v. Cady,
These cases are inapposite. In
Santobello,
a promise made during a plea agreement negotiation was breached at the defendant’s sentencing hearing by “another prosecutor [who] had replaced the prosecutor who had negotiated the plea.”
Moreover, even if the inadvertent failure to file a timely response by the government could be said to be indicative of a “[general] practice of routinely delaying habeas corpus proceedings,”
Ruiz,
B. The Defendant’s Motion to Vacate His Conviction Pursuant to 28 U.S.C. § 2255
The defendant’s current substantive challenge to his conviction and sentence is made pursuant to 28 U.S.C. § 2255, which permits a prisoner under sentence of a federal court to “move the court which imposed the sentence to vacate, set aside, or correct the sentence[,]” on the grounds that “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. Under § 2255, the reviewing court, if it
finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or [is] otherwise open to collateral attack, or that there has bеen such a denial or infringement of constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack ... shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.
Id.
Here, broadly, the defendant’s collateral attack is premised on three theories: (1) ineffective assistance of counsel; (2) the Double Jeopardy Clause; and (3) the bias of this Court. More precisely, the defendant alleges first that each of his four lawyers were constitutionally ineffective under
Strickland v. Washington,
1. Ineffective Assistance of Counsel
To prevail on an ineffective assistance of counsel claim, a defendant must demonstrate both deficient performance by his counsel and prejudice to him because of that deficient performance.
United States v. Williams,
a. Defendant’s Contention that His Attorneys Were Ineffective for Not Raising a Double Jeopardy Claim, and that his Conviction itself was Obtained in Violation of the Double Jeopardy Clause.
The defendant charges that all four of his attorneys were constitutionally ineffective for failing bo argue that his conviction violated the Double Jeopardy Clause. The defendant argues that “once this [C]ourt acquitted him of [distribution, of] crack cocaine[,] [t]hen legally that was the end of the government’s case.” Def.’s Reply at 7. Essentially, the defendant argues that the Court’s mid-trial ruling on the sufficiency of the government’s evidence was a complete judgment of acquittal, and that it was a Double Jeopardy Clause violation to send the question of whether the defendant had distributed “cocaine base” to the jury. Id.
The government ■ responds that “[h]ere, [the] defendant was convicted in a single trial, was not tried for the same offense in a second trial after acquittal or convictiоn
The Double Jeopardy Clause “ ‘protects against a second prosecution for the same offense after acquittal[, and] protects against a second prosecution for the same offense after conviction.’ ”
United States v. Ginyard,
The defendant’s reliance on
Smith
is misplaced, however. This Court’s mid-trial ruling on the sufficiency of the government’s evidence was only a “partial judgment of acquittal.”
Brisbane,
b. Defendant’s remaining claims against trial counsel Lyons.
The defendant further contends that trial counsel Lyons was' constitutionally ineffective for failing to investigate and present an entrapment defense, 3 and, alternatively, for presenting a defense which permitted the government to fill the gaps in its case-in-chief. Def.’s Mem. at 11-12, 17; -see also Def.’s Mem. at 15 (stating that the “existing fact’s [sic] were readily available to raise the entrapment defense that was suggested and instructed to defense counsel to pursue. But for whatever reason, defense counsel incompetently abandoned the issue [before trial]”). 4 The government responds with a number of arguments. First, it claims that “[t]he record in this case conclusively established that this defense was not available to [the] defendant because he did not admit to committing the crime[,]” but instead testified that he lacked the requisite intent to distribute cocaine base. Gov’t’s Opp’n at 11. Further, the government argues that the record also demonstrates that the defendant cannot show prejudice, because he could not have proven inducement to committing the crime and would have been found predisposed to distribute cocaine because of his prior criminal history. Id. at 13.
It is imрossible for the Court to hold that the existing record conclusively establishes that Lyons’s trial preparation was constitutionally sound. “[C]ounsel’s function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case.”
Kimmelman v. Morrison,
Correspondence between the defendant and Lyons might or might not reflect a misunderstanding of the right to present conflicting defenses. In an e-mail to the defendant, Lyons'states his reasons for declining to present an entrapment defensе:
As you will recall, we discussed the entrapment defense on several occasions. Entrapment is a defense where a defendant says “yes, I did the crime charged, but I didn’t want to and I was pressured into it by the government’s actions.” In our case, your position was that YOU DID NOT COMMIT THE OFFENSE CHARGED (distribution and possession with intent to distribute). You [sic] purpose was not to actually sell any drugs, but to flim flam the prospective buyer and get the money and run. Your position was simply not consistent with entrapment. Your defense was I am not guilty because I did not intend to commit the crime charged.
Gov’t’s Opp’n, Ex. 3 (E-mail Correspondence Between George Brisbane and James Lyons, February 6, 2007) (“Lyons E-mail”) (emphasis added and capitalization in original) at 1. To the extent that Lyons was suggesting that it would be imprudent to pursue an entrapment defense because such a defense was “simply not consistent with entrapment,” thereby potentially affecting the credibility of the defendant, then it would appear to the Court that Lyon’s strategic assessment is a reasonable one that would be entitled to “a heavy measure of deference.”
Strickland,
Even if counsel’s performance was deficient, the defendant must still show prejudice in order to be granted relief.
See Strickland,
“When a government informant buys drugs from a defendant, the defendant can show inducement by pointing to ‘evidence of reluctance’ to sell the drugs or the informant’s use of ‘persuasive overtures,’ beyond those- ‘ordinarily present in a drug transaction.’ ”
United States v. Law,
In a case such as this one, where a defendant claims that his attorney was ineffective for failing to raise an entrapment defense, “the necessary corollary of
Mathews
is that the version of the facts [the Court] must take as true for purposes of analyzing the validity of [a defendant’s] entrapment defense is the one that supports that defense ..., and not his alternative claim of innocence” adduced at trial, because “[o]therwise, there would be no evidence of inducement, and no crime into which the defendant had been induced. And that would effectively deprive the defendant of his right, under
Mathews,
to assert inconsistent defenses.”
Glover,
Of course, these allegations alone are certainly insufficient to warrant the relief the defendant seeks (a new trial). As the District of Columbia Circuit has made clear,
[w]hen a convicted defendant seeks to overturn a jury verdict based on inadequate investigation by counsel, courts should insist that the defendant show to the extent possible precisely what information would have been discovered through further investigation. Any other rule would give defendants an incentive to present as little evidence as is necessary to create some doubt, even when disclosure of more facts would make clear that further investigation by trial counsel would not have created a reasonable probability of a different outcome. Although defendants are entitled to the benеfit of reasonable doubt at trial, an appellate court should not overturn a conviction simply because the defendant has teasingly suggested that there may be facts out there that his trial counsel could have discovered and that would have helped his case. If any such facts exist, the defendant must identify them.
United States v. Askew,
To be sure, the Court need not hold an evidentiary hearing if the record establishes beyond a rеasonable doubt that the defendant was predisposed to committing the crime. The government contends that there was “evidence [at trial] of [the] defendant discussing additional drug transactions,” and that the defendant’s conviction in 1984 for distribution of $10 worth of cocaine serves as additional evidence of predisposition. Gov’t’s Opp’n at 13. Unfortunately for the government, these assertions alone are not necessarily sufficient to establish predisposition on the part of the defendant. First, the evidence that the defendant engaged in discussions concerning future drug transactions was contested at trial,
compare
1/24/03 Tr. 33 (the defendant testified that after the drugs changed hands between the seller and purchaser, he “really paid no attention to [what they said about future deals] ... They talked. I paid no attention to it.”),
with
1/27/03 Tr. 27 (government counsel arguing in closing statement that the defendant “does join in the conversation” about future deals and assents at least implicitly to being a future go-between), and there is no evidence or allegation that the defendant participated in any drug-related activity after the single transaction in question' which occurred many years earlier Moreover, the predisposition inquiry focusеs on the defendant’s predisposition
independent of
any government inducement; thus, “[t]he government may attempt to prove disposition by introducing evidence of the defendant’s actions after a government agent approached him, but under
Jacobson
[that evidence of] predisposition does not count if it is itself the
As for the government’s reliance on the defendant’s prior conviction for distribution of illegal drugs, it certainly is far from clear that the defendant’s single prior drug conviction almost twenty years earlier and contested statements about unrealized future transactions are sufficient to establish predisposition as a matter of law. Indeed, the defendant alleges in his briefs and presented testimony at sentencing that notwithstanding that prior conviction, prior to the seven months of alleged pressure placed on him by the government’s “special employee,” he had reformed himself, and thus was not predisposed to distributing narcotics. See Def.’s Mem. at 14 (alleging a lack of predisposition); Def.’s Reply at 9 (“Common sense would indicate to any prudent person that a drug dealer does not need 7 months to sell one ounce of drugs.”); 5/13/03 Tr. 44 (“[BJasically, I have given up the street life nearly 20 years аgo anyway.... All I had in mind was just working and trying to be a good father to my kids.... I possessed no desires then, nor do I do now, to involve myself in a criminal element, at all. None.”). If credited by the jury, this testimony (backed up by evidence of strong, consistent performance by the defendant at his job, see 1/24/03 Tr. 83-87), might be sufficient to rebut the government’s case for predisposition. In the words of the District of Columbia Circuit,
Jacobson allows a jury to consider the possibility that a defendant’s disposition to commit a crime changed over time. Sinners may become saints and saints may become sinners. Nothing is necessarily permanent about either state. A person might be disposed to commit a crime one day and not disposed to do so some time later.
Vaughn,
Finally, and starkly contrary to his entrapment claim, the defendant argues that Lyons simply should have rested after the government presented its case and not presented any defense at all, because doing so allowed the government to fill in the gaps of its case-in-chief. Def.’s Mem. at 4. This argument merits only brief discussion. Quite aside from the fact that the defendant does not point to any gaps in the government’s case that were filled in as a result of the presentation of his defense, the Court had already determined that the government’s evidence was sufficient to go to the jury, as the undis
Thus, the Court determines that the record, briefs, and documents before it conclusively demonstrate that in all regards except the alleged failure to investigate and present an entrapment defense, the representation by trial counsel Lyons was constitutionally sound. Regarding the entrapment issue, the Court will hold an evidentiary hearing to determine (1) trial counsel Lyons’s reasons for foregoing an entrapment defense, and (2) whether the defendant’s allegations rise to the level of inducement sufficient to present an entrapment defеnse.
c. Defendant’s claims against appellate counsels Kurland and English regarding their decisions to forego particular sentencing claims on appeal.
The defendant claims that both Kurland and English were constitutionally ineffective for failing to challenge the reasonableness of his sentence on appeal. See Def.’s Mem. at 28, 41. The defendant also claims that Kurland was constitutionally deficient for failing to challenge the use of his prior drug conviction as a basis for classifying him as a career offender. Id. at 4.
The defendant’s first claim against Kurland here merits only summary treatment, as there clearly can be no prejudice to the defendant from the decision of Kurland not to challenge the reasonableness of the defendant’s sentence on direct appeal. On appeal, Kurland succeeding in having the defendant’s conviction and sentence vacated. The District of Columbia Circuit then remanded the case for resentencing under a different (but lesser included) offense.
Brisbane,
Regarding English, the defendant argues that a “reasonableness” challenge to his sentence was viable because it was “truly disparait [sic] to other sentences received in this same [District of Columbia] Federal Courthouse.” Def.’s Reply at 15 (citing
United States v. Foster,
02-cr-396, at *7, Sentencing Memorandum of October 25, 2005) (sentencing defendant to
In challenging the decision of an appellate attorney to forego a particular issue on appeal where others were presented, a defendant fights a particularly difficult battle, as he bears the burden of “showing that a particular nonfrivolous issue was clearly stronger than issues that counsel did present.”
Smith v. Robbins,
In Jones v. Barnes,463 U.S. 745 ,103 S.Ct. 3308 ,77 L.Ed.2d 987 (1983), we held that appellate counsel who files a merits brief need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal. Notwithstanding Barnes, it is still possible to bring a Strickland claim based on counsel’s failure to raise a particular claim, but it is difficult to demonstrate that counsel was; incompetent. See, e.g., Gray v. Greer,800 F.2d 644 , 646 (7th Cir.1986) (“Generally, only whеn ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome”).
Id.
According to one district court, “Challenges on appeal to the reasonableness of a sentence are the norm ever since
[Booker],
so it is perhaps somewhat surprising that [defendant’s] appellate counsel did not make the argument.”
United States v. Redmond,
Civil Action No. 09-2971,
there is no way to attack Judge Walton for abusing his discretion. He imposed a sentence within in [sic] the guidelines so it is presumptively reasonable ... Your sufficiency of the evidence [and § 851 notice] arguments] [are] good one[s], and you do not want to screw [them] up by arguing stuff that is crap.
Def.’s Reply, Exhibit 2, Correspondence Between Defendant George Brisbane and Appellate Counsel Gregory English, September 22, 2005 and October 28, 2005 (“Ex. 2”);
see also United States v. Dorcely,
Thus, each of the defendant’s claims against Kurland, English, and Clennon, regarding the decisions to forego challenges to the defendant’s sentence and the defendant’s classification as a Career Offender, are conclusively without merit.
d. The defendant’s claim that appellate counsel Kurland was ineffective for failing to request era banc review.
The defendant claims that Kurland was constitutionally ineffective for failing to file for en banc review “after being instructed to do [so] by” the defendant. Def.’s Mem. at 41. The defendant states that Kurland should have petitioned for en banc review based on the “myriad of constitutional violations” committed by the District of Columbia Circuit panel that decided his direct appeal, allegations that amount to a claim that the circuit court’s use of 28 U.S.C. § 2106 to order his conviction for cocaine distribution as a lesser included offense was unconstitutional. See id. This claim is utterly without merit.
First, “[a]n en banc hearing or rehearing is not favored and ordinarily will not be ordered” except to ensure uniformi
e. The Defendant’s contentions that Kurland and Clennon were constitutionally ineffective for failing to raise the constitutional ineffectiveness of their predecessors.
The defendant argues that both Kurland and Clennon were constitutionally ineffective for failing to raise the purported constitutional ineffectiveness of lawyers who had handled earlier phases of the defendant’s case. This argument is premised on the proposition that Kurland should have raised on direct appeal the constitutional ineffectiveness o'f Tyons, and Clennon should have raised the ineffectiveness of both Kurland and Lyons during resentencing. See Def s Mem. at 5. These claims are without merit. Even if the Court were to determine that any of the actions of the defendant’s dedicated lawyers were constitutionally deficient, the petitioner was not prejudiced by a failure to raise an ineffectiveness claim on direct appeal or during sentencing, because those claims remain open to him on collateral attack, as evidenced by the petition that is the subject of this opinion.
f. The Defendant’s remaining claim that English did not adequately consult with him.
The defendant claims that “[b]e-cause appellate counsel Gregory English intentionally failed to consult with [him] prior to preparing his direct appeal, in order to discuss the above [sentencing] issues and facts ..., he was not functioning as the counsel [required] by the Sixth Amendment.” Pet.’s Mot. at 36. The government responds that the defendant’s own plеadings belie this claim, pointing to a significant amount of correspondence between English and the defendant,
see
Def.’s Mem., Exhibit C (“English Correspondence”), and further contends that the defendant cannot show prejudice because the sentencing claims lack legal merit. Gov’t’s Opp’n at 20-21. Both the defendant and the government have submitted a great deal of correspondence between the defendant and English that conclusively demonstrates that significant, substantive
2. The Defendant’s Remaining Claim that the Court Was Biased Against Him.
Finally, the defendant argues that the Court was biased against him and failed to properly consider mitigating factors when it resentenced him. Specifically, the defendant baldly states that this Cоurt
stated [at the defendant’s first sentencing] that if it weren’t for the mandatory imposition of the guidelines, the court would have sentenced this petitioner nowhere near 30 years.... At petitioners [sic.] 2d sentencing hearing on May 25, 2005, this court took a completely different position irrespective of Booker (2005)[,] [a]nd all petitioner’s positive post-rehabilitative achievements and accomplishments, albeit, while petitioner had to indure [sic.] severe hardships, while confinedf.] This posture by the court was surely indicative to petitioner that the court was not exhibiting an extreme lack of impartiality.
Pet.’s Mem. at 35. The Government responds that that this final claim is procedurally barred. Gov’t’s Opp’n at 22.
Apart from claims of ineffective assistance of counsel, the procedural default rule generally precludes consideration of an argument made on collateral review that was not made on direct appeal, unless the defendant shows cause and prejudice.
Massaro,
III. Conclusion
For the foregoing reasons, the Court will hold an evidentiary hearing pursuant to 28 U.S.C. § 2255 on the defendant’s entrapment defense claim and the decision by trial counsel Lyons not to pursue that defense. The defendant’s remaining claims for post-conviction relief are without legal merit, and thus are denied. 8
Notes
. At trial, the defendant testified that he had never intended that a sale of drugs actually take place. Instead, the defendant claimed that he had brokered the transaction in order to steal the purchaser’s money before any drugs changed hands. Def.’s Mot. at 9.
.
See United States v. Barbosa,
. After the submission of the case to the jury, the jury submitted a question to this Court regarding whether it could consider entrapment. The Court instructed the jury not to consider entrapment, as the defense had not been raised.
.The Court construes this argument as encompassing both a claim that the evidence at trial was sufficient to merit a jury instruction on the entrapment defense and a claim of deficient investigation leading to a failure to present the defense.
. Indeed, the government asserts this very point in its opposition memorandum, stating that "[t]he record in this case conclusively establishes that this defense was not available to defendant because he did not admit to committing the crime.” Gov’t's Opp’n at 11-12. The government cites no authority for this proposition, instead relying only upon the e-mail from Lyons quoted above. Id.
. The defendant does argue that he was improperly categorized as a Career Offender because "under 28 U.S.C. § 994(1)(5), the framers of the U.S. Senetacing [sic] Guide
A defendant is a career criminal offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.
This provision plainly applies to the defendant. It is uncontested that the defendant's 1984 conviction for distribution of cocaine was a felony committed after his eighteenth birthday. And given the defendant's 1984 conviction for assault with intent to kill, there simply is no legal basis to challenge the Court’s determination that he is a Career Of- . fender. Thus, the defendant’s claim in this regard against Kurland and Clennon must fail due to his inability, to demonstrate prejudice, and there is no remaining dispute regarding whether the defendant's Guideline range was properly calculated.
. Notwithstanding the defendant's inability to show cause, he likely would be unable to show actual prejudice resulting from the bias of which he claims. To establish “actual prejudice,” the defendant must show that the errors at his sentencing “worked to his
actual
and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.”
United States v. Frady,
. The Court is issuing an order contemporaneously with this memorandum opinion (1) denying in part the defendant’s petition to vacate his conviction, and (2) directing the parties and James Lyons to appear before the Court for an evidentiary hearing on the merits of the defendant’s claim of ineffective assistance of counsel.