ALEXANDER WILLIAMS, Jr., District Judge.
Before the Court is Petitioner/Defendant Evans Ray, Jr. ("Petitioner")'s Motion to Vacate, Set Aside, or Correct a Sentence under 28 U.S.C. § 2255. For the reasons set forth below, the Court will, by separate Order, DENY Petitioner's Motion.
After a federal grand jury in the District of Maryland released a Fifth Superseding Indictment against Petitioner Evans Ray, Jr., his case proceeded to a jury trial. Petitioner was convicted of distribution of 50 grams or more of crack cocaine, in violation of 21 U.S.C. § 841, and possession of ammunition and firearms by a convicted felon, in violation of 18 U.S.C. § 922(g). Trial Tr., at 1039:5-1042:13. On May 15th, 2007, Petitioner was sentenced to life imprisonment, after the Court reconsidered an earlier decision to decline to impose the mandatory sentence required by 21 U.S.C. § 841(b)(1)(A). Trial Tr., at 1074:15-17, 1078, 1085:12-13. Petitioner appealed, and the Fourth Circuit upheld his conviction and sentence on February 26th, 2010. United States v. Ray, 367 F.Appx. 478 (4th Cir. 2010). He filed this petition on September 19th, 2011. Doc. No. 611.
Law enforcement learned of Petitioner's involvement in the drug trade via a cooperating witness and wiretapped phone conversations. Trial Tr., at 53:15-63:18. After a controlled purchase of narcotics, agents began wiretapping the phone of Stevie Burton, one of Petitioner's alleged collaborators. Id. at 56:21-23. DEA Agent Tom Hickey testified that phone conversations between Petitioner and Burton concerned drugs, and, on rebuttal, testified that Burton told him the phone conversations were about drugs. Id. at 971:10-20.
In May 2004, confidential informant Timothy Patterson informed law enforcement that Petitioner was his friend from prison and a supplier of cocaine. Id. at 283:7-16. Patterson testified that he had a chance encounter with Petitioner in 2001 or 2002, where Petitioner informed Patterson that he could supply "all the cocaine you want." Id. at 281:6-12. Law enforcement then arranged for Patterson to engage in controlled purchases of cocaine from Petitioner. Id. at 66:2-67:17. Patterson testified that he asked Petitioner to sell him cocaine two or three times before Petitioner told him that he would "see what he could do." Id. at 392:13-23. DEA and FBI agents began to record conversations between Patterson and Petitioner on June 29th, 2004. Id. at 66:10-12. Nothing on the recordings suggests that Petitioner was hesitant to sell Patterson cocaine. Id. at 287:2-322:13. The recordings do, however, suggest that Petitioner had multiple sources of cocaine, and had customers other than Patterson. Id. at 397:7-17, 860:2-8.
Law enforcement then had Patterson participate in two recorded, controlled purchases of narcotics from petitioner. At the first, on July 12th, 2004, Patterson purchased about 62 grams of powder cocaine from Petitioner for $1800. Id. at 124:3-15. On July 20th, 2004, Petitioner sold Patterson 61 grams of crack cocaine for $1900. Id. at 139:2-12, 146:22-147:7. Law enforcement then executed a search warrant on Petitioner's home on December 16th, 2004. Id. at 463:22-464:2. They found a nine millimeter semi-automatic handgun on the premises, along with a box of nine millimeter ammunition, and a.40 caliber gun. Id. at 472:14-20, 525:12-22, 527:2-13.
At trial, Petitioner asserted an entrapment defense and requested a jury instruction that read: "the fact, if it is a fact, that Mr. Ray may have committed prior offenses of a similar character does not by itself require you to conclude that he was ready and willing to commit the offense with which he is now charged." Id. at 745:13-16. The court refused to adopt this instruction, instead giving a model instruction that read:
The next instruction is 55. This is the entrapment defense. The defendant here, I believe, is going to assert and has asserted a defense that he was a victim of entrapment by an agent of the government. While the law permits the government agents to trap an unwary criminally-minded person, the law does not permit the government agents to entrap an unwary innocent.
Thus, a defendant may not be convicted of a crime if it was the government who gave the defendant the idea to commit the crime, if it was the government who also persuaded him to commit the crime, and if he was not ready and willing to commit the crime before the government official or agents first spoke with him.
On the other hand, if the defendant was ready and willing to violate the law and the government merely presented him with an opportunity to do so, that would not constitute entrapment.
Your inquiry on this issue should first be to determine if there is any evidence that a government agent took the first step that led to a criminal act. If you find there was no such evidence, there can be no entrapment and your inquiry on this defense should end there.
If, on the other hand, you find some evidence that a government agent initiated the criminal acts charged in the indictment, then you must decide if the government has satisfied its burden to prove beyond a reasonable doubt that prior to being approached by the government agents, the defendant was ready and willing to commit the crime. If you find beyond a reasonable doubt that the defendant was predisposed, that is, ready and willing to commit the offenses charged and merely was awaiting a favorable opportunity to commit them, then you should find that the defendant was not the victim of entrapment.
On the other hand, if you have a reasonable doubt that the defendant would have committed the offense charged without - if you have a reasonable doubt that the defendant would have committed the offenses charged without the government's inducements, you must acquit the defendant. That's instruction 55.
Under these instructions, Petitioner was found guilty of distribution of 50 grams or more of crack cocaine, in violation of 21 U.S.C. § 841, and possession of ammunition and firearms by a convicted felon, in violation of 18 U.S.C. § 922(g). Trial Tr., at 1039:5-1042:13.
In support of his Motion filed under 28 U.S.C. § 2255, Petitioner asserts that he was denied the effective assistance of counsel. Doc. No. 651. The Court reviews claims of ineffective assistance of counsel under the well-established standard of Strickland v. Washington, 466 U.S. 668 (1984). In order to succeed on a claim of ineffective assistance of counsel, a convicted defendant must: (1) "show that counsel's performance was deficient" and (2) "show that the deficient performance prejudiced the defense." Id. at 687-88.
The deficiency prong of the ineffective assistance of counsel prong is satisfied only by a "showing that counsel's performance was so serious that counsel was not functioning as the counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. When the Court reviews for deficiency of performance, the petitioner must show that "counsel's performance fell below an objective standard of reasonableness." Id. at 688. The proper guidepost for review is "prevailing professional norms, " and the Court is to be "highly deferential" to counsel's decisions. Id. at 688-89. The petitioner must overcome a presumption that "the challenged action might be considered sound trial strategy.'" Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
After the petitioner establishes deficiency, he must then demonstrate that counsel's inadequate performance prejudiced him. Id. at 687. To show prejudice, the petitioner must demonstrate that "there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different." Id. at 694. Even an unreasonable error by counsel cannot establish prejudice "if the error had no effect on the judgment." Id. at 691 (citing United States v. Morrison, 449 U.S. 361, 364-65 (1981)). Because the motion, records, and files conclusively show that the Petitioner is not entitled to relief, an evidentiary hearing ...