RICHARD D. BENNETT, District Judge.
On September 21, 2010, a jury convicted Petitioner Gregory Whyte ("Petitioner") of two drug-related charges. Thereafter, this Court sentenced Petitioner to concurrent terms of twenty-two (22) years imprisonment on those charges. On April 13, 2012, Petitioner filed a Motion to Vacate, Set Aside, or Correct Sentence (ECF No. 132) pursuant to 28 U.S.C. § 2255. The main contention in Petitioner's Motion is that Petitioner's trial counsel failed to communicate the government's offer of a plea bargain to Petitioner, thereby rendering ineffective assistance of counsel in violation of his Sixth Amendment rights. This Court held an evidentiary hearing on the matter on July 10, 2013, which was continued to and concluded on July 26, 2013. After the hearing, this Court permitted further briefing on the issue. For the reasons that follow, Petitioner Gregory Whyte's Motion to Vacate, Set Aside, or Correct Sentence (ECF No. 132) pursuant to 28 U.S.C. § 2255 is GRANTED, and Petitioner's sentence will be VACATED subject to re-sentencing.
The facts of this case have been detailed at length elsewhere, including this Court's April 16, 20013 Memorandum Opinion (ECF No. 142), so only a brief summary is included here. On April 27, 2010, a federal grand jury indicted Petitioner on charges of (1) conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846, and (2) attempt to possess with intent to distribute cocaine, as well as aiding and abetting such conduct, in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2, respectively. See Indictment, ECF No. 1. The charges stemmed from an incident in May 2009, when Drug Enforcement Administration agents in Los Angeles uncovered a drug transaction in which a large shipment of cocaine was sent to Baltimore, Maryland. Pre-Sentencing Report 3. Whyte was identified as the leader and organizer of the transaction. Id. at 5.
On June 23, 2010, while Petitioner's case was pending, the Government contacted Petitioner's trial counsel, Ms. Marnitta King, and proposed a written plea offer. If accepted, the offer stipulated a sentence of ten (10) years, which would have allowed Petitioner to avoid the the enhanced mandatory minimum sentence of twenty (20) years under 21 U.S.C. § 851 due to Petitioner's previous felony drug convictions. The offer included an express expiration date of June 30, 2010. For reasons disputed by the parties, the plea offer was not accepted.
After a jury trial, Petitioner was convicted of both charges. See J. 1, ECF No. 90. On January 31, 2011, this Court sentenced Petitioner to concurrent terms of twenty-two (22) years imprisonment. See id. Thereafter, the Fourth Circuit affirmed Petitioner's convictions on direct appeal. United States v. Whyte, 460 F.Appx. 236, 238 (4th Cir. 2012).
On April 13, 2012, Petitioner filed his petition for post-conviction relief pursuant to 28 U.S.C. § 2255. See Pet'r's Mot. Vacate, ECF No. 132. This Court held an evidentiary hearing on July 10, 2013 at which Marnitta King, Petitioner's trial counsel, testified. The evidentiary hearing was continued and completed on July 26, 2013, at which the Petitioner testified as well as Ms. King and several other witnesses.
STANDARD OF REVIEW
Under 28 U.S.C. § 2255, a prisoner in custody may seek to vacate, set aside or correct his sentence where (1) "the sentence was imposed in violation of the Constitution or laws of the United States, " (b) the court lacked "jurisdiction to impose the sentence, ... [(c)] the sentence was in excess of the maximum authorized by law, or [(d) the sentence] is otherwise subject to a collateral attack." 28 U.S.C. § 2255. "[A]n error of law does not provide a basis for collateral attack unless the claimed error constituted a fundamental defect which inherently results in a complete miscarriage of justice.'" United States v. Addonizio, 442 U.S. 178, 185 (1979) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)).
In order to state a claim for relief under 28 U.S.C. § 2255 based on a Sixth Amendment claim of ineffective assistance of counsel, a petitioner must satisfy the twoprong test set forth in Strickland v. Washington, 466 U.S. 668, 671 (1984). See Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000). The first, or "performance" prong, of the test requires a showing that defense counsel's representation was deficient and fell below an "objective standard of reasonableness." Strickland, 466 U.S. at 688. In making this determination, courts observe a strong presumption that counsel's actions fell within the "wide range of reasonable professional assistance." Id. at 688-89. The second, or "prejudice" prong, requires that defendant demonstrate that his counsel's errors deprived him of a fair trial. Id. at 687. It requires a showing that, "but for counsel's unprofessional errors, the result of the proceedings would have been different." Id. at 694.
It is well settled that the Sixth Amendment right to counsel applies at the critical stage of plea bargaining. See, e.g., Hill v. Lockhart, 474 U.S. 52, 57 (1985); Padilla v. Kentucky, 559 U.S. 356 (2010). "Claims of ineffective assistance of counsel in the plea bargain context are governed by the two-part test set forth in Strickland." See Missouri v. Frye, 132 S.Ct. 1399, 1405 (2012) (citing Hill , 474 U.S. at 57). The Supreme Court has recently held that defense counsel has a duty to communicate to the defendant formal plea offers from the Government. Id. at 1408. Where a plea offer has lapsed or been rejected because of counsel's deficient performance, a Strickland ineffective assistance claim may lie if the defendant makes three showings. Id. at 1409. First, a defendant "must demonstrate a reasonable probability [he] would have accepted the earlier plea offer had [he] been afforded effective assistance of counsel. Id. Second, the defendant "must also demonstrate a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it, if they had the authority to exercise that discretion under state law." Id. Finally, to prove prejudice, "it is necessary to show a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time." Id. (citing Glover v. United States, 531 U.S. 198, 203 (2001) ("[A]ny amount of [additional] jail time has Sixth Amendment significance.")).
The main question raised by Petitioner Gregory Whyte's Motion to Vacate is whether Petitioner's trial counsel, Marnitta King, ("Trial Counsel") communicated a June 23, 2010 plea offer to Petitioner. If Trial Counsel failed to communicate the offer to Petitioner and Petitioner suffered prejudice as a result, then counsel's performance was deficient for Sixth Amendment purposes. Missouri v. Frye, 132 S.Ct. 1399, 1408 (2012).
Both parties agree that the Government presented a written plea offer to Trial Counsel on June 23, 2010, which by its written terms would expire on June 30, 2010. Gov. Resp. 5, ECF No. 137. Petitioner testified that this plea offer was never communicated to him, and as a result, he was prejudiced. Pet'r's Mot. Vacate 4, ECF No. 132. In opposition, the Government argues that Trial ...