Specifically, Mr. Sacksith was charged with, and eventually pled guilty to, 1

violating 21 U.S.C. §§841(a)(1), 846 and 860 (a), and 18 U.S.C. §2.

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA : CRIMINAL ACTION

 : NO. 04-390-1 

 v. :

 : CIVIL ACTION

XANG SACKSITH : NO. 08-4620 

MEMORANDUM AND ORDER

Gene E.K. Pratter, J. June 3, 2010

INTRODUCTION

Xang Sacksith confounded his counsel in 2004 because of his insistence on

pleading guilty to a three-count indictment charging him with drug distribution crimes even though 1

that plea was certain to result in a mandatory life imprisonment sentence, given Mr. Sacksith’s

refusal to cooperate with the Government’s investigation of others. Mr. Sacksith’s superficially

puzzling actions have continued to frustrate various defense counsel who, seriatim, have taken on the

challenges of representing him. The latest endeavor on his behalf is the pending Amended Petition

For Habeas Corpus Relief Pursuant to 28 U.S.C. §2255 (Doc. No. 163), which, for the reasons

discussed in this memorandum, the Court denies.

BACKGROUND

In large measure the extensive procedural history of this case, with the attendant

safeguards demonstrably made available to Mr. Sacksith, mandates denial of the pending petition. 

Therefore, it is appropriate to recount in some detail the background of this case.
Mr. Sacksith was sentenced to one to two years imprisonment for his guilty plea 2

conviction for possession of a controlled substance (crack cocaine and marijuana) with intent to

deliver in violation of 35 P.S. §780–113(A)(30) stemming from a September 3, 1997 incident. He

was also sentenced to one and a half to three years for his guilty plea conviction for possession of a

controlled substance (crack cocaine) with intent to deliver in violation of 35 P.S. §780–113(a)(30)

arising from a June 7, 1996 incident.

2

Mr. Sacksith came to the United States from his native Laos in 1989 as a very

young teenager. He attended public school in America through his early high school years. By his

own account, and according to public records, he illegally used drugs and engaged in various illicit

felony drug trafficking offenses, including two he committed in his early 20's for which he was

convicted in the Court of Common Pleas of Philadelphia County. In the normal course of 2

governmental processes, Mr. Sacksith was ordered deported to Laos following these convictions, but

the Laotian government’s failure to respond to the deportation communiques resulted in Mr. Sacksith

being released by the Immigration and Naturalization Service on or about February 24, 2003, subject

to an order of supervision. Thus, he remained in the United States.

On June 10, 2004 Mr. Sacksith was arrested by DEA agents in Philadelphia as he

attempted to broker the sale of approximately 10,000 ecstacy pills to a cooperating government

witness for $65,000 from which Mr. Sacksith hoped to clear $10,000 for himself. Immediately prior

to the arrest, a DEA cooperating witness had discussed with Mr. Sacksith the likelihood of making

such a purchase. Mr. Sacksith had assured the putative purchaser that he could provide 10,000 pills

as requested and proceeded to contact his co-defendant, Thanh Nguyen, to obtain the pills. 

The day prior to his arrest Mr. Sacksith had given the cooperating witness

three sample pills, and the two men struck a deal for the $65,000 purchase price for 10,000 pills. 

The pills were actually secured through the machinations of Mr. Sacksith’s co-defendants, Mr.

Nguyen, Duong Vu, and Toan Kim of the Benjamin Ton Drug Trafficking Organization. On the day

of the actual transaction, Mr. Sacksith joined the other three in their car to drive to the appointed

meeting place, a particular Dunkin’ Donuts establishment that was located within 1,000 feet of a
Judge Katz has ceased actively presiding over cases, and on September 24, 2008 3

this case was reassigned to this Court for all purposes. (Doc. No. 145 in Cr. 04-390).

3

school. Mr. Sacksith accompanied Mr. Vu, who was physically carrying the pills in his backpack,

into the donut shop to meet with the purchaser, who was secretly wearing a recording and

transmitting device. Once DEA agents received the purchaser’s signal, they arrested Messrs. Vu and

Sacksith. A search of the backpack revealed a number of plastic bags containing various different

colored pills, all of which were subsequently counted, measured, weighed, and analyzed under

appropriate conditions.

On July 7, 2004, Messrs. Sacksith and Duong Vu were charged in a three-count

indictment. The case was assigned to the docket of Honorable Marvin Katz . Mr. Sacksith qualified 3

for representation by the Federal Defender, and by June 17, 2004, the first of Mr. Sacksith’s three

very able, experienced and dedicated counsel entered an appearance on his behalf.

As of the time of the initiation of this prosecution, if eventually Mr. Sacksith was

convicted of the crimes charged, the applicable Sentencing Guidelines placed him at an offense level

34 and criminal history category VI, resulting in a guideline range of incarceration for between 262

and 327 months. When he was arrested, Mr. Sacksith was 28 or 29 years old. 

Reportedly, from the start of this prosecution Mr. Sacksith acknowledged his guilt

and expressed an intention and desire to plead guilty. Proffer sessions, pursuant to an executed

proffer letter, aimed at reaching a cooperation plea agreement were arranged and undertaken. Those

efforts were ultimately to no avail because the Government personnel perceived that Mr. Sacksith

was not telling them the complete truth. In particular, investigators concluded that Mr. Sacksith

materially misled them concerning the relative conduct and culpability of co-defendants Vu and

Nguyen, contrary to the information these co-defendants themselves imparted during their own

proffer sessions and guilty plea hearings. 
Mr. Bostic, as well as each of his two successors, explained to the Court that in all 4

interactions between counsel and Mr. Sacksith or during court proceedings, Mr. Sacksith disavowed

any need for an interpreter, but rather demonstrated an ability to understand spoken English, to raise

(continued...)

4

After the Sacksith proffers came to naught, and Mr. Sacksith disavowed any interest

in cooperating with law enforcement officials, the Government filed an information notice on

October 26, 2004, delineating the Government’s intention to invoke 21 U.S.C. §851 for a mandatory

life sentence due to Mr. Sacksith’s two prior convictions. Presumably, the §851 notice was expected

to encourage Mr. Sacksith to rethink his abandonment of cooperation activities and to return to

making an effort to be helpful to the Government and himself. Contrary to those expectations,

however, Mr. Sacksith remained intent upon pleading guilty without cooperating, even though he

faced a certain mandatory life sentence. He so informed his then counsel, Edson Bostic. By the

same token, Mr. Sacksith also informed Mr. Bostic that he would accept a “C plea” for a 20-year

sentence in lieu of a life sentence if his counsel could secure the Government’s agreement to such a

proposal. Not surprisingly, the Government would not agree to a C plea in the absence of Mr.

Sacksith’s cooperation.

Accordingly, by the end of 2004 Mr. Sacksith had the choice to (1) go to trial on the

charges, (2) enter a guilty plea without having cooperated with the Government which would lead to

a mandatory life sentence against the strenuous advice of his counsel but which option Mr. Sacksith

then reportedly favored, or (3) plead guilty having cooperated with the Government as a predicate to

securing the Government’s motion for a lesser sentence, a choice Mr. Sacksith eschewed but which

his lawyer urged.

With a change of plea hearing necessarily looming, on November 16, 2004, Mr.

Bostic filed a motion to withdraw as Mr. Sacksith’s counsel. Judge Katz convened a hearing to

address the motion on November 30, 2004. Even though Mr. Sacksith had at all times pertinent to

this matter demonstrated functional facility with the English language , a Laotian interpreter was 4
(...continued)

4

a question when clarification was needed, and to express himself in English. See, e.g., 11/30/04

N.T. at 7-8.

5

present for Mr. Sacksith if desired. The premise of counsel’s withdrawal motion was that although

counsel had devoted himself to vigorous representation of Mr. Sacksith, had met with his client, had

met with Mr. Sacksith’s girlfriend to outline the situation and had endeavored to hammer home to

Mr. Sacksith that he would be sentenced to life in prison if he persisted in his intention to plead

guilty while refusing to cooperate with the Government, Mr. Sacksith continued to refuse to follow

counsel’s advice. Positing that in spite of counsel’s experience and skill, he had for some

inexplicable reason failed to “get through” to Mr. Sacksith so that Mr. Sacksith could “see the light,”

Mr. Bostic suggested that perhaps some other defense counsel would succeed where he, Mr. Bostic,

had failed. 11/30/04 N.T. at 5-6; 8. Understandably, Judge Katz asked Mr. Bostic:

What would new counsel be able to do that

you have not already done with your client;

that’s what I’m not clear on? 11/30/04 N.T. at 8. 

Mr. Bostic could not give any specific response to the Court other than to

emphasize generally the undeniable gravity of Mr. Sacksith’s circumstances and express the hope

that some other lawyer would be able to illuminate the path Mr. Bostic wanted his client to follow.

11/30/04 N.T. at 8-9. 

The Government’s counsel essentially echoed Mr. Bostic’s account of the case to

date:

Both Mr. Bostic and I have told [Mr. Sacksith] that while the 

Court is frequently prone to be merciful to deserving 

people, that nonetheless there are legal limitations in 

what the Court can do. Absent the filling of motions, 

indicating that the person cooperated and therefore

merits a consideration for downward departure, the Court

is powerless to depart. [Mr. Sacksith] seems to accept 

this intellectually, not emotionally so far. . . . [H]e has 
6

maintained a consistent position ever since the initial 

[proffer] meeting, which is . . . he has consistently 

taken the position that he just wants to plead guilty and 

doesn’t feel that he can cooperate because he is worried 

about endangering his family. 

Essentially what he said to us, if I have to go 

to jail for life, I go to jail for life. I’m just worried about 

doing something that will harm my family. 11/30/04 N.T. at 11.

When the Court turned to Mr. Sacksith at the hearing to give him the opportunity to

speak if he wished, Mr. Sacksith’s statements were not inconsistent with what the lawyers had

recounted:

I want the Court to know I’m responsible for everything

that I did but this stuff, what I have - - I’m just a drug addict.

I’m trying to make money on the side to support my high, 

and pay my bills. I never had any possession for what I see

or do. All I know, I make a phone call to people.

I would like to help the Government out, I’m

afraid for my family and loved ones would get in trouble.

I’m responsible for what I did, I deserve the punishment. I’m

not going to take this case to trial. I know what I did was 

wrong. That’s all I can say. 11/30/04 N.T. at 13.

After giving Mr. Sacksith and his counsel additional time to confer, Judge Katz

denied counsel’s request to withdraw, observing:

. . . [I]t would serve no useful purpose. I can’t imagine being 

able to get a more experienced or more able or conscientious 

attorney than the one who is presently defending Mr. Sacksith. 

There’s no cause shown for the change that is

requested. And, it just seems to me it would be pointless.

There is nothing that a new attorney could add to what this 

attorney has done with regard to the case, as I understand it. 

11/30/04 N.T. at 15-16.

One week later, on December 6, 2004, Mr. Sacksith returned to court for a change

of plea hearing. Once again, a Laotian interpreter was available, but ultimately deemed superfluous. 
7

Once again, defense counsel moved to withdraw as Mr. Sacksith’s counsel and asked the Court to

reconsider the prior ruling denying the withdrawal application. Once again, counsel could not

specify grounds for the motion other than his evident frustration that Mr. Sacksith continued to

decline to follow counsel’s advice. 12/06/04 N.T. at 3-5. Opposing counsel took no position on

defense counsel’s motion but did confirm having witnessed defense counsel “explain[] the realities

of his situation to [Mr. Sacksith] very clearly.” 12/06/04 N.T. at 7-8. Like defense counsel,

Government counsel described Mr. Sacksith as competent and fully understanding of his options,

observing that Mr. Sacksith appeared to have reasons sufficient to himself for not following

counsel’s advice, and, finally, the prosecutor endorsed defense counsel’s “fine representation” of Mr.

Sacksith in keeping with “constitutional standards of effective assistance of counsel.” Id.

As before, the Court gave Mr. Sacksith the opportunity to address the Court. He

reiterated his knowledge of his guilt as well as his continued intention to plead guilty,

notwithstanding his belief that his brokering conduct in connection with the drug transaction at issue

should not lead to a life sentence. 12/06/04 N.T. at 10. The Court went ahead with the plea

colloquy, denied the motion to reconsider the denial of counsel’s motion to withdraw, and accepted

Mr. Sacksith’s guilty plea. The transcript of the plea hearing demonstrates that Mr. Sacksith knew

that his guilty plea inexorably would lead to a mandatory life sentence unless he provided

cooperation to law enforcement personnel. 12/06/04 N.T. at 13-14; 19-20; 31-34. He was also

informed that the opportunity to cooperate and possibly ameliorate his life sentence would continue

to be available even after sentencing. 12/06/04 N.T. at 34. 

Approximately one month later and prior to sentencing, Mr. Sacksith tried a

different tack. Specifically, contrary to virtually everything he had said at the two prior hearings, Mr.

Sacksith twice wrote to the Court and accused his counsel of having tricked and/or coerced him into
During Mr. Bostic’s testimony and the presentation of evidence, the interpreter

5

translated the proceedings for Mr. Sacksith. Because Mr. Sacksith indicated he understood what was

being said, the interpreter did not translate the attorneys’ arguments unless Mr. Sacksith requested

translation. 11/01/05 N.T. at 48-53. Judge Katz ruled there was no necessity to re-read the

arguments back for purposes of requiring contemporaneous translations of the arguments.

8

a guilty plea. Among other things, Mr. Sacksith claimed that Mr. Bostic had told him he was facing

a sentence of 10 to 12 years if he pled guilty. The Court permitted a substitution of counsel, Mr.

Bostic’s appearance was terminated and John Griffin, Esquire entered his appearance for Mr.

Sacksith on March 23, 2005. After a number of continuances, Mr. Sacksith’s sentencing hearing

was finally set for November 1, 2005.

Three weeks before the sentencing was to take place, Mr. Griffin filed on Mr.

Sacksith’s behalf a Motion to Withdraw Guilty Plea. The grounds for the motion were that Mr.

Sacksith had not understood the severity of the consequences of his guilty plea and had not fully

understood the plea proceedings and thought he would be getting a 10 to 12 year sentence. The

Court scheduled a hearing on the motion for November 1, 2005, immediately in advance of the

scheduled sentencing hearing. Again, an interpreter was in attendance to assist Mr. Sacksith if

needed. 11/01/05 N.T. at 11; 16-21. Prior counsel, Mr. Bostic, was called as a witness. Mr. Bostic

explained that he did not believe Mr. Sacksith had any material English language comprehension

problems, and recounted the repeated times that Mr. Sacksith had been told about the mandatory life

sentence by Mr. Bostic himself, by the prosecutor, by the DEA agents and by the Court. Mr. Bostic

flatly denied ever telling Mr. Sacksith that he would be sentenced to 10 to 12 years if he pled guilty. 

11/01/05 N.T. at 11; 16-21; 26-28.

Following the presentation of the evidence , the Court heard argument on the law 5

applicable to a motion to withdraw a guilty plea. The Court denied the motion, finding that it was
The various activities relating to the pro se efforts of Mr. Sacksith and the 6

Government’s responses appear on the docket for CR 04-390.

Mr. Sacksith’s counsel confirmed on the record that, once again, Mr. Sacksith did not 7

need the services of the interpreter. 2/16/10 N.T. at 68.

9

clear that Mr. Sacksith understood the consequences of the guilty plea and that the newly framed

claim that prior defense counsel had promised him some lower sentence was “completely false” and

indicative of the fact that “[Mr. Sacksith was] simply trying to play the system . . .” 11/01/05 N.T. at

53. The Court then proceeded with sentencing and imposed the mandatory life sentence. 11/01/05

N.T. at 68. Mr. Sacksith appealed, and the Third Circuit Court of Appeals affirmed Judge Katz on

September 21, 2007. United States v. Sacksith, 248 Fed. Appx. 430 (3d Cir. 2007). Three weeks

later, Mr. Sacksith’s Petition for Rehearing and Rehearing En Banc and for Supplemental Briefing

was denied. 

A year later Mr. Sacksith initiated pro se 18 U.S.C. §2255 efforts. After this matter 6

was transferred to this Court’s docket, new counsel, namely Richard G. Freeman, Esquire, was

appointed to represent Mr. Sacksith. Because Mr. Sacksith’s various pro se motions were denied

without prejudice, Mr. Freeman was given time to consider what, if any, grounds to present for an

amended §2255 application on Mr. Sacksith’s behalf.

Mr. Freeman did present an Amended Petition for Habeas Corpus Relief for Mr.

Sacksith, which the Government opposed. The Court held an evidentiary hearing on the Amended

Petition on February 16, 2010. Once again, a Laotian interpreter attended, in the event Mr. Sacksith

needed or desired such services. The grounds for relief presented in this chapter of Mr. Sacksith’s 7

proceedings are that both of Mr. Sacksith’s prior counsel (namely, Messrs. Bostic and Griffin)

provided him with ineffective assistance because they made no investigative effort into the
These same arguments could have been made in 2005 when the motion to 8

withdraw the guilty plea was presented and an appeal taken.

10

underlying charges and, if such effort(s) had been made, it is possible that Mr. Sacksith would not

have pled guilty in the first instance, or a more persuasive argument possibly could have been made

to support withdrawal of the guilty plea, and/or Mr. Sacksith’s role in the drug transaction at issue

might have been characterized as minor or minimal. 

8

Mr. Bostic was again called as a witness. He recounted much the same

recollections as in his prior testimony or arguments to the Court about his representation of Mr.

Sacksith. Under additional questioning, Mr. Bostic added that Mr. Sacksith “did not provide much

information to me, other than acknowledging to me that he was involved in this matter and that he

wanted to plead guilty.” 02/16/10 N.T. at 20; 21. In response to the question of whether he

considered mounting an investigation of Mr. Sacksith’s role in the drug transaction so as to possibly

minimize that role or establish a defense for trial, Mr. Bostic explained that Mr. Sacksith’s own

description of his actions caused Mr. Bostic to believe that “Mr. Sacksith played an active role in

obtaining and helping the delivery of these drugs.” 02/16/10 N.T. at 22-23. Thus, according to Mr.

Bostic, rather than a factual investigation the defense strategy turned to the possibility of cooperating

with the Government, leading to the on-again-off-again proffer sessions and guilty plea discussions

described previously. 

Mr. Bostic stated plainly and under oath that at some point during these proffer

discussions Mr. Sacksith decided he no longer wanted to try to cooperate with the Government but

insisted on pleading guilty, even though Mr. Sacksith certainly would be considered a “career

offender” and would be sentenced to life in prison. 2/16/10 N.T. at 24-25. Mr. Bostic also stated

unequivocally that he did not engage an investigator to look into the facts of the case against Mr.
11

Sacksith for several reasons, namely, initially because Mr. Sacksith was going to cooperate with the

Government, but eventually because Mr. Sacksith never gave Mr. Bostic any indication that there

were any witnesses who could be helpful to Mr. Sacksith in the case. 2/16/10 N.T. at 29-32. Indeed,

Mr. Bostic stated plainly that Mr. Sacksith’s insistence on pleading guilty, together with his failure to

give Mr. Bostic “any room or ability to try this case” was the reason Mr. Bostic undertook no trial

preparation activities. 2/16/10 N.T. at 35-36; 38-40; 53; 60; 63-64. Essentially, based upon the

information made available by Mr. Sacksith or his girlfriend, even when supplemented by

information available from interactions with the Government investigators or counsel for the codefendants, Mr. Bostic could not hazard a guess as to what, if anything, any investigator could have

developed that would have been pertinent - - much less helpful - - to Mr. Sacksith’s case. Indeed,

the magnitude of the Government’s evidence of Mr. Sacksith’s guilt, including the taped statements

of Mr. Sacksith himself, only underscored the validity of Mr. Sacksith’s repeated admissions of his

guilt. Finally, Mr. Bostic acknowledged that, as frustrated and as flummoxed as he was by Mr.

Sacksith’s refusal to follow his professional advice, he did not consider Mr. Sacksith to be

incompetent. 2/16/10 N.T. at 58-60.

The lawyer who replaced Mr. Bostic, John Griffin, also testified at the February 16th

hearing about the services he rendered to Mr. Sacksith. Mr. Griffin explained his efforts to persuade

the Court to allow Mr. Sacksith to withdraw his guilty plea. Mr. Griffin, like Mr. Bostic, thought

Mr. Sacksith’s circumstances only would be improved if he would cooperate with the Government. 

2/16/10 N.T. at 73. And, also like Mr. Bostic, Mr. Griffin was aware of no basis on which to argue

that Mr. Sacksith had a colorable defense to the charges against him. Indeed, Mr. Griffin

acknowledged that in connection with the effort to withdraw the guilty plea and otherwise Mr.

Sacksith did not protest that he was innocent. 2/16/10 N.T. at 75-76. Furthermore, and also like Mr.
Initially, in the pro se §2255 petition, Mr. Sacksith had challenged this aspect of the 9

Government’s underlying case. Even though new counsel confirmed that such grounds were deemed

abandoned, the Government opted to address the issue nonetheless.

12

Bostic, Mr. Griffin did not ever have a reason to question Mr. Sacksith’s competence. 2/16/10 N.T.

at 76-77. Mr. Griffin candidly testified that, beyond his lack of success in persuading the Court to

permit withdrawal of the guilty plea, there was no available basis under applicable sentencing law to

ameliorate the application of the mandatory life sentence. 2/16/10 N.T. at 82-85. Mr. Griffin

acknowledged that the Government continued to “let that [co-operation] door remain open, but I did

not have a client that would allow me to walk through that door, and I very much wanted to walk

through that door because I was cognizant of the uphill battle I had post plea, pre-sentencing, trying

to get a motion to withdraw [the guilty plea] granted.” 2/16/10 N.T. at 85.

Messrs. Bostic and Griffin were the only witnesses called by Mr. Sacksith to justify

the § 2255 petition. No other evidence was offered. In response, the Government submitted a

stipulated offer of proof relating to the senior forensic chemist at the DEA Northeast Regional

Laboratory in New York City who would testify that the pills secured from the transaction that

prompted the arrest of Mr. Sacksith contained methamphetamine. 2/16/10 N.T. at 91-96. Once 9

both parties rested, the Court permitted them to file written submissions once the transcript from the

hearing was available to them. 

DISCUSSION

Mr. Sacksith’s petition must be judged against the standards of 28 U.S.C. § 2255

which provides that:

A [federal] prisoner in custody under sentence of a court...may move 

the court which imposed the sentence to vacate, set aside or correct the 

sentence. Unless the motion and the files and records of the case 

conclusively show that the prisoner is entitled to no relief, the court
13

shall cause notice thereof to be served upon the United States 

attorney, grant a prompt hearing thereon, determine the issues and 

make findings of fact and conclusions of law with respect thereto...

As is clear from the foregoing recitation of the background of this case, a hearing

was held, even though in this case it could be persuasively argued that the § 2255 motion was raising

only issues that had been litigated previously and decided against Mr. Sacksith. See, e.g., United

States v. Leiby, 820 F.2d 70 (3d Cir. 1987). At that hearing and pursuant to the petition, Mr.

Sacksith bears the burden of proof by a preponderance of the evidence. Triana v. United States, 205

F.3d 36, 40 (2d Cir. 2000); Langston v. United States, 105 F.Supp. 2d 419, 422 (E.D.Pa. 2000). See

also, Wright, King, Klein & Welling, 3 Fed. Prac. & Proc. Crim. 3d § 600.

In this instance, Mr. Sacksith’s latest argument has been that his counsel, Messrs.

Bostic and Griffin, were ineffective in their assistance to him. It was his burden to demonstrate that

ineffectiveness. The analysis starts with Strickland v. Washington, 466 U.S. 668 (1984), in which

the Supreme Court held that the proper standard for attorney performance is that of reasonably

effective assistance. Mr. Sacksith is obliged to satisfy two prongs:

First, the defendant must show that counsel’s performance was 

deficient. This requires showing that counsel made errors so serious 

that counsel was not functioning as the “counsel” guaranteed the 

defendant by the Sixth Amendment. Second, the defendant must 

show that the deficient performance prejudiced the defense. This requires 

showing that counsel’s errors were so serious as to deprive the 

defendant of a fair trial, a trial whose result is reliable. 

Strickland, 466 U.S. at 687. See also United States v. DeRewal, 10 F.3d 100, 104 (3d Cir. 1976).
Our Court of Appeals has sensibly made the practical observation that the second 10

prong, i.e., prejudice, ought to be examined first. United States v. Booth, 432 F.3d 542, 546 (3d Cir.

2005).

No affirmative evidence concerning the applicable standard of care for professionals in 11

the circumstances of Mr. Bostic or of Mr. Griffin was offered by Mr. Sacksith. If Mr. Sacksith had

satisfied the prejudice prong, the Court would have discussed at length the significance of the absence of

evidence of the objective standard of care. Suffice it to say, that the absence of such evidence is yet

another failing of Mr. Sacksith’s arguments here.

14

To show prejudice, Mr. Sacksith must show that there is a reasonable probability 10

that there would have been a different outcome, i.e., that the deficient performance deprived Mr.

Sacksith of proceedings whose results were reliable. DeRewal, 10 F.3d at 104. Under Strickland, a

“reasonable probability” is one sufficient to undermine confidence in the outcome. Strickland, 466

U.S. at 694.

To demonstrate the first Strickland prong, that is, representational deficiency, Mr.

Sacksith must show, without merely invoking the convenient clarity of hindsight, that his lawyers’

conduct fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688-90. Thus, 11

the Court’s examination of the services of Messrs. Bostic and Griffin should be highly deferential. 

Diggs v. Owens, 833 F.2d 439, 444-45 (3d Cir. 1987).

The current upshot of Mr. Sacksith’s § 2255 motion is that first Mr. Bostic, and

then Mr. Griffin, failed to investigate Mr. Sacksith’s role in the crimes to which he pled guilty and

that if they had undertaken an investigation they “might have been” able to moderate or ameliorate in

some way the Government’s view of Mr. Sacksith’s involvement in the illegal transaction to

consider him a minor or minimal participant. If that was possible, Mr. Sacksith’s argument goes,

then perhaps, too, there could have been a sentence below life imprisonment.

The fundamental flaw in this argument is that both Mr. Bostic and Mr. Griffin

testified that not only did Mr. Sacksith never tell them about any information to prompt any
15

investigation, but neither did anyone else ever impart any such information. No other evidence

suggested (then, or now) any avenue for investigation. Of course, speculation and guesswork is at

best an illusory foundation for Mr. Sacksith’s arguments that cannot support a viable prejudice

argument. Here, there is the added actual obstacle, namely, Mr. Sacksith’s repeated virtual

insistence that no investigation be undertaken, given Mr. Sacksith’s determination to plead guilty.

Mr. Sacksith now suggests that even through he repeatedly admitted his

responsibility and participation in the crime and was planning to plead guilty, his lawyers could have

tried to develop some sort of factual justification so that Mr. Sacksith could try to secure a downward

adjustment under Guideline § 3B1.2 by claiming minor or minimal participant status. This

argument, too, comes to naught given the record here. As the Government has correctly noted, when

Mr. Sacksith directly appealed the denial of his motion to withdraw his guilty plea, the Third Circuit

Court of Appeals declined to accept his protestations that he did not physically possess the drugs at

issue as tantamount to a claim of innocence. Sacksith, 248 Fed. Appx. at 435-36. Indeed, Mr.

Sacksith could not advance an argument of innocence, given his admissions that he (1) told the

putative purchaser he could arrange a transaction for a significant quantity of drugs, (2) he made the

requisite calls, (3) he set up the actual transaction, and (4) he accompanied the actual seller to the

location for the sale. These brokering activities could hardly be recast or re-characterized as minor

or minimal - - indeed, it would not have been out of the realm of reality to hear Mr. Sacksith’s own

acts characterized as the aggravating activities of an “organizer” pursuant to Guideline § 3B1.1. 

Moreover, there is no basis in law or in fact to inexorably equate being less culpable than others with

being a minor or minimal player. See, generally, United States v. Ray, 35 F.3d 354 (8th Cir. 1994);

United States v. Sostre, 967 F.2d 728 (1st Cir. 1992); United States v. Alvardo, 909 F.2d 1443 (10th

Cir. 1990).
The cases that Mr. Sacksith tries to invoke on this issue are materially 12

distinguishable from the “very novel and perhaps tenuous argument” advanced by Mr. Sacksith now. 

Mem. of Petitioner, Doc. 169, at 7.

The Court recognizes that none of Mr. Sacksith’s lawyers (given their uniform view 13

that he was legally and language-wise competent) have been willing to accept - - or understand - - Mr.

(continued...)

16

Moreover, Mr. Sacksith’s arguments completely overlook the practical reality of the

situation of his own making: in the absence of the Government’s § 5K1.1 and § 3553(e) motion

(which only would have been forthcoming in response to meaningful cooperation that Mr. Sacksith

knowingly refused to provide) Mr. Sacksith’s two prior drug trafficking felony convictions and the 

§ 851 information mandated the life sentence, rendering the idea of minor/minimal participant status

meaningless in any case. See, e.g., United States v. Moore, 304 Fed. Appx. 50, 52 (3d Cir. 2008);

United States v. Tannis, 942 F.2d 196, 198 (3d Cir. 1991). The record is clear that Mr. Sacksith

himself - - quite unrelated to anything his lawyers did or did not do - - made sure that the

Government would not move under § 3553(e) or § 5K1.1 when he failed to be truthful in the effort

he initially made to cooperate and then refused to cooperate at all.12

Therefore, even if one or both of Mr. Sacksith’s earlier attorneys had fallen short of

the applicable standard of care (of which theoretical shortcoming there is no evidence), Mr. Sacksith

was the master of his own fate: he admitted his participation in the drug transaction at issue, he

provided his counsel no factual or potential information to investigate or witnesses to interview, he

was only partially truthful to the extent he undertook any cooperation efforts and gave misleading or

untruthful information about his cohorts, he accepted terms of a proffer letter, he openly and

repeatedly admitted his conduct, and he insisted on pleading guilty without cooperating against his

lawyer’s advice and after having been repeatedly told that to do so would surely lead to life

imprisonment.13
(...continued)

13

Sacksith’s repeated insistence on pleading guilty in the face of a mandatory life sentence if he did not

cooperate with law enforcement. Having reviewed several times the transcripts of the pertinent

proceedings, the Court concludes that Mr. Sacksith expressed a sufficiently rational analysis and reasoning

in expressing over and over again his decision to plead guilty - - even if it was not a decision that counsel

or the Court would elect in the same circumstance. Given that there is no basis on which to think that Mr.

Sacksith was incompetent or that he was not provided necessary information that he understood, Mr.

Sacksith’s power over his own decision-making deserves to be respected. It may be that his counsel

adheres to the Platonic metaphor of the rational brain as the charioteer managing two powerful horses - -

one fully controllable and the other less noble and more obstinate - - to explain their puzzled frustration

with Mr. Sacksith. See Plato, Phaedrus, trans. by Alexander Nehamas & Paul Woodruff, New York:

Hackett, 1995. However, considering the behavior of human beings - - who are most certainly not

designed as wholly rational creatures - - that charioteer metaphor is no more useful than the modern

metaphor of the mind as a computer. It is simply undeniable that whenever someone makes a decision,

even when the person tries to be reasonable and restrained, personally-driven impulses influence his or her

judgment. We cannot escape the realization that a human being is not either wholly rational or wholly

irrational. There is no more universal solution to the problem of decision-making, any more than there is a

universal template for how a human being will choose to live his or her life.

17

CONCLUSION

Mr. Sacksith, having now enjoyed the skills and energies of a third capable attorney,

has not sustained his burden under 28 U.S.C. § 2255, and his Amended Petition for Habeas Corpus

Relief is DENIED. An appropriate Order follows. 

BY THE COURT:

 /s/ Gene E.K. Prater 

GENE E.K. PRATTER

United States District Judge