IN THE UNITED STATES DISTRICT COURT 


FOR THE EASTERN DISTRICT OF PENNSYLVANIA 


FILED: 


KAREElVl[ MYERS, 

Petitioner, 

CIVIL NO. 08-4309 

CRIMINAL NO. 05-619-6 

v. 

UNITED STATES OF AMERICA. 


MEMORANDUM OPINION AND ORDER 

RUFE,J. June 10,2010 

Petitioner Kareem Myers seeks to vacate, set aside, or correct the sentence imposed 

on him by this Court on March 16, 2007. Petitioner alleges that trial counsel was ineffective for 

failing to request an independent chemical analysis ofthe substances that he sold to a government 

cooperator, to determine whether those substances contained a detectable amount of cocaine base 

and to determine the correct weight of the substances. He also asserts that trial counsel failed to 

adequately explain the implications of his career offender status. Now before the Court is 

Petitioner's Amended Habeas Corpus Motion to Vacate, Set Aside, or Correct Sentence Pursuant 

to 28 U.S.C. § 2255 1

• This matter has been fully briefed, an evidentiary hearing has been conducted 

thereon, and it is ripe for disposition. 

I. PROCEDURAL BACKGROUND 

Petitioner entered a counseled guilty plea on February 2, 2006 to two counts of 

distribution of5 grams or more ofcocaine base, in violation of21 U.S.c. § 841(a)(1) and (b)(1)(B).2 

iDoc. No. 527. The document numbers referenced herein correspond with criminal docket number 05-619­

6. 

2Doc. No. 183. 
Petitioner entered into a Guilty Plea Agreement ("Agreement"),3 in which he agreed to provide 

truthful testimony and fult cooperation to the Government in return for a motion for downward 

departure pursuant to § 5KI.I of the United States Sentencing Guidelines ("Guidelines"). The 

Agreement stipulated that Petitioner was classified as a career offender under Guidelines § 4B1.1, 

and that the Government would not move for a sentence below the mandatory minimum often years 

imprisonment. 4 The Agreement also stipulated that the amount of crack cocaine distributed by 

Petitioner weighed approximately 54 ounces. 5 Petitioner discussed the Agreement with his counsel, 

Salvatore Adamo, Esquire,6 signed the Agreement, and acknowledged at the plea hearing that he 

understood the contents of the Agreement. 7 

After his guilty plea and before sentencing, Petitioner infonned the Government that 

he was withdrawing his cooperation. 8 On March 16,2007, the Court sentenced Petitioner to 262 

months on each count to be served concurrently, eight years of supervised release, and a special 

assessment of $200.9 At sentencing, Petitioner did not object to the Presentence Report or to his 

classification as a career offender, nor did he challenge the substances as crack cocaine. Petitioner 

timely appealed his conviction to the Third Circuit; however, his appeal was soonafter dismissed 

when that Court granted the Government's Motion to Enforce the appellate waiver provisions of 

3Doc. No. 204 (Guilty Plea Agreement ("Agreement")). 

4Agreement ,;,; 5, 7 ( c ). 

,; 7(b). 

°Doc. No. 554 (Transcript of habeas hearing held on March 31,2010 ("Habeas Tr.")) 13:21 - 19:25. 

7Doc. No. 183. (Transcript of plea hearing held on February 2, 2006 ("Plea Tr.")) 11: 19-21. 

8Habeas Tr. 24:4-8. 

9Doc. No. 360. 

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Petitioner's Agreement. to On August 6, 2007, Petitioner challenged the appellate waiver in his 

petition for certiorari to the United States Supreme Court, which was denied. Petitioner also filed 

a Motion ft:)r Modification ofSentence pursuant to 18 U.S.C. § 3582(c)(2)(2) with this Court, which 

was denied as welL 11 

Petitioner then filed a timely pro se habeas corpus motion pursuant to 28 U.S.c. § 

2255. 12 The Court appointed Criminal Justice Act counsel John 1. Fioravanti, Jr., Esquire to 

represent Petitioner and permitted counsel to submit an amended motion and supporting 

memorandum oflaw, I 3 to which the Government responded. 14 Petitioner makes several arguments 

in his pro se motion and his amended motion, all under the umbrella of his sixth amendment right 

to receive effective assistance of counsel. Petitioner admits that he knowingly and voluntarily 

entered into an appellate waiver, but asserts that the waiver does not bar appeals in which a 

defendant alleges that he entered into a guilty plea based on ineffective assistance of counsel. 15 In 

such cases, he argues, the waiver is invalid as it is the result of a miscarriage ofjustice. 16 

Petitioner argues that trial counsel was ineffective for several reasons: first, counsel 

failed to request an independent chemical analysis of the substances that Petitioner sold to a 

government cooperator to determine whether those substances contained a detectable amount of 

JODoc. Nos. 363, 420. 


J'Doc. No. 514. 


12Doc. No. 494. 


I3Doc. Nos. 517, 527, 528. 


14Doc. No. 535. 


15Pet'r's Br. in SUpp. of Mot. for Hr'g and Grant ofRelief Pursuant to 28 U.S.c. § 2855 at 2. 


i6.k1~ 

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cocaine base and to determine the correct weight ofthe substances. Second, Petitioner asserts that 

his plea counsel encouraged him to enter a guilty plea without explaining that he would be sentenced 

as a career offender, and that any imposed sentence would be enhanced due to his prior convictions, 

in effect alleging that his guilty plea was not knowing or voluntary. Third, Petitioner claims that he 

did not have two qualifying prior convictions pursuant to U.S.S.G. § 4B 1.1, and that his attorney 

failed to object to his treatment as a career offender. Petitioner states that he expected to receive a 

sentence ofimprisonment between 87 to 108 months; instead he received 262 months. The Court 

granted an evidentiary hearing on Petitioner's Amended Motion, but limited the inquiry to 

Petitioner's sixth amendment right to assistance of counsel claim. 

At the evidentiary hearing, held on March 31, 2010, the Government presented the 

testimony ofSalvatore Adamo, Esquire, Petitioner's attorney from the date ofhis arrest through his 

sentencing. 17 Mr. Adamo summarized his interactions with Petitioner, explaining conversations the 

two had regarding his culpability, his career offender status, and the guideline sentence. 18 Mr. 

Adamo's testimony reflected that they had these conversations both before Petitioner's guilty plea 

and between the guilty plea and sentencing; Petitioner did not contend that he was innocent, he did 

not assert lhat the drugs were not properly identified in the indictment or the Agreement, nor did he 

insist that he was not a career offender. 19 Petitioner, however, testified that, after his guilty plea, he 

had asked Mr. Adamo to "check to see if [the substance sold to the government cooperator] was [] 

17Mr. Adamo was appointed as counsel for Petitioner pursuant to the Criminal Justice Act. Habeas Tr. 

37:3-7. 

18!ft 6:3 - 19:8. 

8:20-22,12:24-13:14,15:10-17,16:21-19:8. 

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cocaine and the amount ofit," and that Mr. Adamo promised to check into it and never did.20 With 

respect to his career offender status, Petitioner asserted that he never understood what it meant and 

Mr. Adamo did not respond to his requests to explain it; Petitioner did admit, however, that he knew 

. he was facing a ten-year mandatory minimum sentence.21 

II. DISCUSSION 

Habeas corpus relief protects only "against a fundamental defect which inherently 

results in a complete miscarriage of justice or an omission inconsistent with the rudimentary 

demands offair procedure.,,22 Section 2255 allows a prisoner in federal custody to move for habeas 

corpus relief"upon the ground that the sentence was imposed in violation ofthe Constitution or laws 

ofthe United States."23 Such a motion "is addressed to the sound discretion ofthe district court."24 

Ifthe sentencing court finds "a denial or infringement ofthe constitutional rights ofthe prisoner as 

to render the judgment vulnerable to collateral attack," it may grant habeas corpus relief by 

discharging or re-sentencing a federal prisoner.25 Pursuant to § 2255, habeas corpus relief may be 

granted for claims of constitutional error.26 Yet, a prisoner must first establish that such an error 

2°Ist 37:8-25. 


21~1" 39: 19-40: 18. 


22United States v. DeLuca, 889 F.2d 503, 506 (3d Cir. 1989) (quoting Hill v. United States, 368 U.S. 424, 


428 (1962)). 

2328 U.S.C.A. § 2255(a) (2008). 

24United States v. Williams, 615 F.2d 585, 591 (3d Cir. 1980). 

2528 U.S.C.A. § 2255(b). 

2°United States v. Addonizio, 442 U.S. 178, 185 (1979). 

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occurred to be successful on his claimY 

If a prisoner fails "to raise his claim on direct review, the writ of [habeas corpus] is 

available only if the [prisoner] establishes 'cause' for the waiver and shows 'actual prejudice 

resulting from the alleged violation. ",28 A petitioner must demonstrate cause by showing that "'some 

external impediment' prevented him from raising the claim," such as ineffective counse1. 29 Prejudice 

will be found when "'errors at trial ... worked to [the petitioner's] actual and substantial 

disadvantage, infecting his entire trial with error of constitutional dimensions.,,3o "A further 

exception exists where 'a fundamental miscarriage ofjustice would result from a failure to entertain 

the claim. ",31 

The Sixth Amendment right to assistance ofcounsel is actually "the right to effective 

counsel."};! To establish a claim for ineffective assistance of counsel, Petitioner must show that (1) 

his counsel's performance was deficient, and (2) that Petitioner was prejudiced by itY To succeed 

on the first prong, Petitioner must show that his counsel's representation "fell below an objective 

standard of reasonableness.,,34 Petitioner "must identify the acts or omissions of counsel that are 

27.s.t~ Deluca, 889 F.2d at 506. 


28Reed v. Farley, 512 U.S. 339, 354 (1994) (quoting Waimvright v. Sykes, 433 U.S. 72, 84 (1977». 


29Wise v. Fulcomer, 958 F.2d 30,34 (3d Cif. 1992) (quoting McClesky v. Zant, 499 U.S. 467, 494, 497 


(1991)). 

JOWise, 958 F.2d at 34 (quoting Murray v. Carrier, 477 U.S. 478, 494 (1986) (emphasis in original). 

31M., (quoting McClesky, 499 U.S. at 494-95). 

32Strickland v. Washington, 466 U.S. 668,686 (1984). 

33United States v. Lilly, 536 F.3d 190, 195 (3d Cir. 2008) (citing Strickland, 466 U.S. at 687). 

34Strickland, 466 U.S. at 688. 

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alleged not to have been the result ofreasonable professional jUdgment. ,,35 The Court will determine 

"whetJier counsel's assistance was reasonable considering all the circumstances," including 

prevailing professional norms ofpractice.36 A fair assessment ofattorney performance makes "eveI}' 

effort . . . 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. ,,37 

The Court"s scrutiny of counsel's performance will be "highly deferential," "indulg[ing] a strong 

presumption that counsel's conduct falls within the wide range of professional assistance."38 

In order to demonstrate prejudice, Petitioner must establish "a reasonable probability 

that, but for counsel's unprofessional errors, the result of the proceeding would have been 

different."J9 "A reasonable probability is a probability sufficient to undermine confidence in the 

outcome."40 The Court may determine ifthere is sufficient prejUdice to maintain an ineffectiveness 

claim before evaluating the reasonableness of counsel's performance 

Petitioner in the instant matter has not provided any credible evidence that Mr. 

Adamo committed any errors in representing him, nor did he convincingly assert that he was 

prejudiced by the representation. His responses at the plea hearing, in fact, reflect the opposite: 

THE COURT: Mr. Adamo, has been representing you? 

[PETITIONER]: Yes. 

3SId, at 690. 


36Id" at 688. 


37!Q, at 689. 


39!Q.:. at 694. 


4°Id" 


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THE COURT: And have you had an adequate opportunity to discuss your case with 

him? 

(PETITIONER]: Yes. 

THE COURT: Are you satisfied with the representation? 

(PETITIONER]: Yes.41 

Petitioner's contention that he asked Mr. Adamo to conduct an independent analysis ofthe substance 

that he sold to a government cooperator is flatly contradicted by Mr. Adamo's credible and thorough 

testimony, and it is inconsistent with Petitioner's statements to the Court during his guilty plea 

colloquy and the sentencing hearing. The Government and the Court clearly identified that the 

charged substance was cocaine base, or crack, several times during the plea hearing: 

THE COURT: Essentially, you are charged in Courts 9 and 10 ofthis indictment with 

knowingly and intentionally distributing more than five grams of 

cocaine base, that is crack.42 

[PROSECUTOR]: .... The plea agreement provides that [Petitioner] agrees to plead 

guilty to Counts 9 and 10 ofthe superceding indictment.43 

[PROSECUTOR]: .... The elements are first, that (Petitioner] distributed here more 

than five grams of cocaine base or crack and that [Petitioner] did so 

knowingly and intentionally. 

THE COURT: And do you understand the definitions ofthe crimes to which you are 

pleading guilty? 

[PETITIONER]: Yes. 44 

4lP;ea Tr. 8: 1-9. 

9:20-23. 

441(l. 21:23-25" 22:1-8. 

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The Court also made it clear to Petitioner the possible penalties he could receive in pleading guilty: 

THE COURT: And did you understand that on each count, Count 9 and Count 10, 

which are essentially the same crime but different instances, different 

occurrences, understand? 

[PETITIONER]: Yes. 

THE COURT: You could receive ten year mandatory minimum terms on each of 

those counts, not necessarily running together. Do you understand 

that? 

I have to give you the worst possible scenario so that you 

understand exactly what you are walking into, not that that will 

happen, anymore than you could get a sentence up to a lifetime in 

prison, which you could. Do you understand that is the maximum you 

can get? 

[PETITIONER]: Yes. 

THE COURT: Do you understand the mandatory minimums plus the maximum? 

[PETITIONER]: Yes.45 

The Court inquired ofPetitioner repeatedly whether he understood the charged offenses and the 

terms of the Agreement, for example: 

[PROSECUTOR]: As part of the [Guilty Plea] agreement, [Petitioner] and the 

Government have also entered into [sic] certain stipulation, essentially 

that the cocaine base in this case is crack. 

That he distributed a total of approximately 54.3 grams of 

crack, and that his guideline range should be calculated on that basis. 

That he is a career offender as defined in the guidelines.46 

THE COURT: Mr. Myers, do you understand that these are the terms of your plea 

agreement? 

25:15-25 - 26:1-7. 

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[PETITIONER] : Yes. 47 

After the Ciovernment recited the facts upon which the plea was based, Petitioner again confhmed 

his admission of guilt to the charges in the indictment: 

[PROSECUTOR]: Your Honor, the Government's evidence would show that in about 

September of 2004 the DEA Task Force in Philadelphia and the 

Philadelphia Police began an investigation of the drug activities of 

Robert Wright and Edward Basley. 

In the course ofthat investigation they obtained authorization 

to tap Mr. Wright's cell phone or one of his phones, and also in the 

course of that investigation they identified this defendant, Kareem 

Myers, as an associate of Mr. Wright. 

On April 26th, 2005 a confidential source asked Mr. Myers at 

the direction ofthe DEA task force to sell the [confidential source] an 

ounce ofcrack. Later that day the [confidential source] called Myers 

and they arranged to meet at the Old Navy store in the 4800 block of 

Roosevelt Boulevard in Philadelphia. 

The [confidential source] went to that location with DEA 

surveilling the meeting. He wore a wire. He met with Mr. Myers in 

[his] vehicle where Mr. Myers sold [him] approximately one ounce 

of crack. 

The [confidential source] then turned that substance over to 

the DEA agents who submitted it to the lab and the lab determined that 

it was exactly twenty-seven grams net weight of cocaine basis 

In the same way on May 10th the [confidential source] called 

Mr. Myers and they agreed to meet at the Old Navy store again so that 

Myers could again sell the [confidential source] an ounce of crack. 

Once again they went - DEA surveilled the location, the 

[confidential source] met with Myers there. Myers got into the 

[confidential source], s vehicle and he sold him approximately an 

ounce of crack again for eight hundred dollars. 

Again, the meeting was recorded, monitored and surveilled. 

The [confidential source] turned that substance over to the DEA task 

force, which submitted it to the lab and it was determined to be 27.3­

grams net weight ofcrack cocaine. 

THE COURT: Mr. Myers, do you think that [the Prosecutor] accurately summarized 

47!!L 11 :9-11. 

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the facts ofthis case for me? 

[PETITIONER]: No. 

THE COURT: What's different? 

[PETITIONER]: I'm sorry. That was right. 

THE COURT: That was right? 

[PETITIONER]: Yes. 

THE COURT: Did she tell me the facts that you agree occurred? 

[PETITIONER] : Yes. 

THE COURT: Then do you agree and admit that you are guilty ofthese offenses? 

[PETITIONER]: Yes.48 

At the hearing on his instant Motion, Petitioner could not explain to the Court why he pled guilty 

and accepted responsibility for the charged offenses ifhe believed that the substance that he sold was 

not cocaine. Similarly, he could not explain why he never raised the issue that his previous criminal 

history was somehow miscalculated or misstated. Furthermore, Petitioner's frequent memory lapses 

and contradictory statements concerning the time period at issue significantly diminish the weight 

of his argument. For example, he states in his instant Motion that prior to sentencing he believed 

he would receive a sentence of 87 to 108 months; at the evidentiary hearing, however, he admitted 

that he knew he was facing a ten-year mandatory minimum sentence. 

Petitioner was also unable to demonstrate prejudice; he did not show how Mr. 

Adamo's actions changed the outcome ofthe proceedings. Although Petitioner insists he asked for 

the substance to be tested, he does not assert that he believed the substance was something other than 

48Id.26:11 28:16. 


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crack cocaine. Also, he does not explain how the outcome ofthe proceedings would have differed 

if he had been given a better explanation by Mr. Adamo regarding the implications of his career 

offender status. 

Mr. Adamo, an experienced defense attorney,49 provided testimony in this matter that 

was credible and supported by the record. He testified that at no point during his representation did 

Petitioner assert his innocence or cast doubt upon the nature or amount of drugs included in the 

charged offenses. If Petitioner had asked for an independent analysis, Mr. Adamo claimed that he 

certainly 'would have acquired one. Also, Mr. Adamo listed the various times that he reviewed plea 

and sentencing documents with Petitioner, stating that he urged him to cooperate with authorities 

for a possible downward departure given the potential for a lengthy sentence of imprisonment. We 

find no reason to believe that he did not exercise his reasonable professional judgment at all times 

during the representation ofPetitioner, and we find Petitioner's allegations wholly insufficient. As 

the Court stated in the evidentiary hearing, 

"[I]fwe are going to entertain memory lapses that are convenient[ly] placed 

in order to support a premise and a position in hindsight that said I didn't 

know what could have happened to me, and those are not supported by the 

record, then it would tum the criminal justice in any court on its ear ... ."50 

The Court finds that Petitioner's ineffective assistance ofcounsel claim has no merit. 

As we do not find any evidence that Petitioner's constitutional right to effective counsel was 

violated, we find no miscarriage ofjustice sufficient to invalidate the appellate waiver. Thus, the 

49Mr. Adamo has handled in excess of 1,000 criminal defense cases, and has focused primarily on criminal 

defense in his law practice since 1983. See Habeas Tr. 5:3-24. 

5°Ist 67:7-12. 

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Court will enforce the appellate waiver and deny Petitioner's motion on this ground as well. 5

] 

III. CONCLUSION 

Petitioner has additionally filed an Application for Certificate ofAppealability,S2 to 

which the Government has responded. 53 For the reasons outlined above, Petitioner has not made a 

substantial showing of the denial of a constitutional right;54 his ineffective assistance claim lacks 

credibility and is unsubstantiated by the record. Thus, the Court will deny his request. 

An appropriate Order follows. 

51§.!~ United States v. Khattak, 273 F.3d 557 (3d Cir. 2001). 


52Doc. No. 551. 


53Doc. No. 553. 


54~\~ 28 U.S.c. § 2253(c)(2); Santana v. United States, 98 F.3d 752,757 (3d Cir. 1996). 


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