ALEXANDER WILLIAMS, Jr., District Judge.
Before the Court is Petitioner/Defendant Darnell Eugene Duckett ("Petitioner")'s Motion to Vacate, Set Aside, or Correct a Sentence filed pursuant to 28 U.S.C. § 2255. On March 21, 2011, Petitioner was charged with a one-count Superseding Criminal Indictment with Conspiracy to Distribute and Possess With Intent to Distribute Controlled Substances, in violation of 21 U.S.C. § 841(a)(1). At a rearraignment hearing held on October 18, 2011, following an extensive Rule 11 colloquy, Petitioner pled guilty and admitted to knowingly and willfully conspiring with others to distribute and to possess with intent to distribute at least ten grams of phencyclidine ("PCP") or at least 100 grams of a mixture and substance containing a detectable amount of PCP. The plea agreement stated that while Petitioner's base offense level was 26, if Petitioner was determined to be a Career Offender as defined by the United States Sentencing Guidelines § 4B.1.1,  the base offense level would be increased to a total of 34 and Petitioner's criminal history category would fall under Category VI. In exchange for Petitioner's guilty plea, the Government agreed to advocate for a three-level decrease in recognition of Petitioner's acceptance of personal responsibility. This would result in a base offense level of 23 or 31, depending on whether or not the Court categorized Petitioner as a Career Offender. The Government additionally agreed not to file a notice of Petitioner's prior felony drug convictions pursuant to 21 U.S.C. § 851, which would have otherwise resulted in an enhancement of the mandatory minimum sentence of five years.
A Presentence Report was filed on January 9, 2012,  following which Petitioner's counsel, Robert H. Waldman, submitted to the Court a Memorandum in Aid of Sentencing on January 13, 2012. In the Memorandum, Mr. Waldman urged the Court to not apply the Career Offender enhancement, as he claimed it would result in an unfair sentence of 188-235 months. In the alternative, Mr. Waldman recommended that the Court adhere to a base offense level of 23, arguing that 120-150 months was a more fair and reasonable sentence.
On January 26, 2012, the Court held a sentencing hearing. At the hearing, Mr. Waldman reiterated his support for a sentence in the range of 120-150 months, arguing that it was more appropriate when considering the Petitioner's age. The Government urged the Court to apply the Career Offender enhancement and recommended to the Court a sentence at the low end of the guideline range of 188-235 months. The Court determined that the Career Offender enhancement was appropriate in light of Petitioner's fourteen prior convictions and thirty prior charges, stating that it must "consider the intent of Congress and the Sentencing Commission to apply a bump when people present with a bad record." However, the Court reduced the 188-month minimum to 168 months in order to account for any disparities between other defendants' sentences and Petitioner's. On January 24, 2013, Petitioner filed a timely motion to vacate under 28 U.S.C. § 2255.
In support of his Motion, Petitioner argues that his counsel was ineffective in his assistance due to "his failure to investigate [Petitioner's] prior conviction in [sic] which does not apply and is not a prerequisite to be calculated in career offender status. Counsel's failure to investigate Petitioner's PSI category was ineffective." Doc. No. 223 at 6.
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.
When considering the first prong, whether or not counsel's performance was deficient, courts must consider whether counsel's representation "falls below an objective standard of reasonableness." Higgs v. United States, 711 F.Supp.2d 479, 502 (D. Md. 2010) (citing Strickland, 469 U.S. at 688). Courts afford substantial deference to counsel's decisions when reviewing them under Strickland. Id. In Strickland, the Court explained that "[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." 466 U.S. at 689; see also, Premo v. Moore, 131 S.Ct. 733, 742 (2011) (reversing the 9th Circuit's grant of habeas relief because its analysis failed to afford substantial deference to counsel's decision-making when considering whether counsel's performance could be construed as "deficient" under Strickland ).
If a petitioner is able to prove that counsel's performance was ineffective, the second prong under Strickland demands that petitioner prove "that counsel's errors were so serious as to deprive the defendant of a fair trial... whose result is reliable." Higgs, 711 F.Supp.2d at 502; see also United States v. Russell, 221 F.3d 615, 621 (4th Cir. 2000) (holding that counsel's failure to thoroughly investigate petitioner's past criminal convictions prejudiced the outcome of petitioner's trial); United States v. Roane, 378 F.3d 382, 405 (4th Cir. 2004) (holding that counsel's performance did not prejudice the outcome of court's decision due to the "overwhelming evidence" presented by the Government regarding criminal activity of the petitioners). In cases where the petitioner enters a guilty plea, he or she faces a higher burden in that the petitioner must prove that "but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985) (affirming 8th Circuit's denial of petitioner's § 2255 motion because petitioner failed to prove the prejudice element under the second prong of Strickland ).
In this case, Petitioner asserts that he was improperly subjected to the Career Offender enhancement due to Mr. Waldman's failure to investigate his prior convictions and submit timely objections to Petitioner's Career Offender enhancement. Doc. No. 227 at 2-3. To support his claim of counsel's ineffectiveness, Petitioner alleges that counsel failed to investigate the charges listed in the Presentence Report, specifically a charge related to criminal case number F-1671-04 in which Petitioner was convicted of attempted possession with intent to distribute Oxycontin. Doc. No. 236, Ex. 1 at 9. Had Mr. Waldman investigated the charge under F-1671-04, Petitioner argues that counsel would have discovered that the attempted possession charge did not qualify Petitioner for the Career Offender enhancement to which he was ultimately subjected. Doc. No. 227 at 3.
Petitioner fails to demonstrate that Mr. Waldman's actions were deficient as required under the first prong of Strickland. Petitioner has misunderstood the elements required to meet the Career Offender enhancement. Under 18 U.S.S.G. § 4B1.1(a), one qualifies for the Career Offender enhancement if he or she has at least two prior felony convictions of either a crime of violence or a controlled substance offense. See supra, note 2. Section 4B1.2(b) defines a "controlled substance offense" as one which "prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance." (emphasis added). Note 1 under the Commentary of 4B1.2(b) indicates that a "controlled substance offense" also includes the offense of attempting to commit one of the above offenses. Under this definition, Petitioner's conviction of attempted possession with intent to distribute Oxycontin is a qualifying felony for the purposes of the Career Offender enhancement.
Furthermore, the record reflects that while Mr. Waldman correctly refrained from objecting to the computation of the sentence under the Sentencing Guidelines, he did raise objections to the application of the Career Offender enhancement in Petitioner's case. In his Memorandum in Aid of Sentencing, Mr. Waldman argued that "the enhancement for Career Offender should not be applied in that a sentence far beyond what is necessary, sufficient and fair would be imposed." Doc. No. 178 at 2. Furthermore, during his remarks at Petitioner's sentencing hearing, counsel stated,
[T]he career offender formula works in a very harsh and inflexible way and that it doesn't really-it doesn't-in my experience it doesn't ordinarily fit the situations. In this case what it does is it boosts the offense level to an extraordinarily high degree, to a degree that ordinarily reflects people who have dealt in very large ...