NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 10

- 1982

_____________ UNITED STATES OF AMERICA

v.
J OHN PURCELL, a/k/a Jack Purcell

John Purcell,

A ppellant

_____________ On Appeal from the United States Di strict Court f or the Eastern District of Pennsylvania (No. 2

- 05

- cr
- 00709

- 001 ) District Judge: Honorable Jan E. Du B ois

_____________ Submitted Under Third Circuit L.A.R. 34.1(a),

March 18 , 201 3
BEFORE: F UENTES , CHAGARES and BARRY , Circuit Judges

(Opinion File d: April 10, 2013 )

_____________ OPINION OF THE COURT

_____________ FUENTES, Circuit Judge

. John Purcell appeals the District Court ’s O rder denying his m otion to correct, vacate, or set aside judgment filed under 28 U.S.C. § 2255 , and its O rder denying his

m otion for reconsideration

. We will affirm.2 I. Because we write primarily for the parties, who are well acquainted with this case, we recite only the facts essential to o ur disposition of this appeal. On December 14 , 2005, John Purcell was charged by a g rand jury in the Eastern District of Pennsylvania with one count of conspiracy to manufacture and distribute methamphetamine in violation of 21 U.S.C. § 846 , and one count of manufacturing methamphetamine in
violation of 21 U

. S.C. § 841. On July 13, 2006, approximately two weeks prior to Purcell’s scheduled trial date, Kenya Mann, the Assistant United States Attorney assigned to prosecute the case, filed an I nformation under 21 U.S.C. § 851 ( “ § 851 Information”)

. 1 The Information alleg ed that Purcell had two prior felony drug convictions, m a king him a career offender and subject ing him to a mandatory life

sentence i f convicted of the crimes charged in the Indictment

. Purcell’s trial counsel, proceeding under the belief that Purcell faced a statutorily man dated sentence of life imprisonment regardless of whether he pled guilty or not, failed to enter into plea negotiations on Purcell’s behalf. Purcell proceeded to trial, and was convicted on both

counts. However, i n reviewing Purcell’s two prior drug conv ictions in advance of sentencing, the United States Probation Office determined that they were related. As a result, the prior convictions comprised only one offense under § 841(b)(1)(A), resulting

1 Under 21 U.S.C. § 851 (a)(1) , “[n]o person who stands convicted of an offense under this part shall be sentenced to increased punishment by reason of one or more prior convictions, unless before trial, or before entry of a plea of guilty, the United States attorney files an informatio n with the court . . . stating in writing the previous convictions to be relied upon.” The statutes under which Purcell was convicted

— 21 U.S.C. § 841(a)(1), (b)(1)(A) and 21 U.S.C. § 846

— are both codified within the same part of the United States Code as 21 U.S.C. § 851.3

in a mandatory minimum sentence of 240 months rather than life imprisonment. The
District Court ultimately imposed the mandatory minimum sentence of 240 months’ imprisonment. Both sides acknowledge that if no § 851 Information had been filed, the

m andatory minimum sentence would have been 120 months’ imprisonm ent

. Purcell subsequently filed a motion to correct, vacate, or set aside his conviction
under 28 U.S.C. § 2255, alleging , inter alia , that his trial counsel was ineffective for failing to pursue plea negotiations with the government. Purcell also moved for discovery in order to prove that, if his lawyer had attempted to negotiate a plea agreement involving the withholding of the § 851 Information, the government would have been responsive to such a request.
The District Court held an evidentiary heari ng on the motion s on February 24,
2009. In advance of the hearing, a D epartment of J ustice policy memorandum was
submitted into evidence by the government . The memorandum makes clear that , while prosecutors are expected to charge the most serious readily provable offense supported by the facts of the case, along with all applicable statutory enhancements, they have the discretion to withhold the filing of a § 851 Information in certain situations

. However, a t the hearing, both Mann and her supervisor , Na rcotics Section Chief Thomas Perricone , testified emphatically that the government would not have considered withholding the
fil ing of a § 851 Information in Purcell’s case , even if he had offered to p le a d guilty. In addition, Purcell’s trial counsel test ified that he never asked the government to withhold the filing of a § 851 Information because he believed that such a request would not have
been fruitful.4

Following the hearing, the District Court denied Purcell’s § 2255 motion in part, holding that:
Eve n assuming (1) t hat the Court credits defendant’ s allegation t hat he would have pled guilty and (2) that the Court wou ld have accepted defendant’ s plea, defendant has failed to est ablish a reasonable probability

. . . that the government would have agreed to withhold the filing of a § 851 Information.
United States v. Purcell , 667 F. Supp. 2d 498, 512 (E.D. Pa. 2009). The C ourt noted that
it found “ both Mann ’s and Perricone’ s testimony on this issue credible ,” and concluded
that “ any deficient performance on the part of trial counsel which caused defendant to proceed to trial instead of pleading guilty did not prejudice the defendant. ” Id. at 513. 2 With respect to Purcell’s discover y motion, the District Court ordered the government to produce any writing s detailing the government’s policies for the filing of a § 851 Information and any notes concerning plea discussions in this specific case. However, it denied Purcell’s discovery request for “Information concerning the identity
of cases in which defendan ts were eligible for enhancement under 21 U.S.C. § 851, but in
which such enhancement was withheld, ” reasoning that Purcell had “ made no showing that the requested discovery would rebut the govern ment’ s evidence concerning its policy of filing § 851 Inform ations ” and that in any event, “ evidence of the government’ s actions in other cases would be of little or no evidentiary value in determining what the government would have don e in this case.” Id. at 519, 524.

2 The District Court granted Purcell’s § 2255 motion with regard to his claim that his trial counsel was ineffective for failing to file a direct appeal, and Purcell was granted leave to file and serve a notice of appeal nunc pro tunc with in 30 days. Id. at 523.5

Purcell filed a motion for reconsideration of these decisions, which was denied. He has timely filed t his appeal

. II. The District Court had jurisdiction under 28 U.S.C. § 2255. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. 3 With respect to Purcell’s § 2255 motion, we exercise plenary review over the District Court ’s legal conclusions, and apply the clearly erroneous standard to its factual findings. United States v. Cepero , 224 F.3d 256, 258 (3d Cir. 2000) (en banc)

. With respect to Purcell’s motion for discovery, the District Court ’s
decision is reviewed for abuse of discretion. Lloyd v. HOVENSA, LLC , 369 F.3d 263, 274 (3d Cir. 2004)

. On appeal, Purcell argues that the District Court was obliged to do more than simply rely on the testimony of the prosecutors concerning how they wou ld have reacted had Purcell’s trial counsel attempted to negotiate a plea agreement

. Purcell also argues
that without the benefit of the requested discovery, it was virtually impossible for him to contest the testimony of t he government’s witnesses and es tablish prejudice.
H aving reviewed the carefully crafted opinion of the District Court dated October
2 1, 2009, denying Purcell’s § 2255 motion in part and denying his motion for discovery

3 The District Court issued a Certificate of Appealability (“COA”) “ with respect to the claim in the § 2255 Motion that trial counsel was ineffective for failing to properly advise defendant with regard to his sentencing exposure a nd for failing to pursue plea negotiations with the government. ” Id. at 523. However, the court did not specifically issue a COA with respect to Purcell’s motion for discovery. The government argues that, as a result, we are without jurisdiction to cons ider this issue. We need not resolve this dispute, for we find that even if the appeal were permitted, the District Court ’s decision was proper.6

in part, and its opinion of March 10, 2010 , d enying Purcell ’ s mot ion for reconsideration
of the October 21 Order , we hereby affirm substantially for the reasons stated by the
District Court

. Under the circumstances presented, we cannot say that the District
Court ’s decision to rely on the prosecutors’ testimony regardi ng the § 851 Information was clear error, nor can we say that its decision to deny Purcell’s motion for discovery
was an abuse of disc retion

. III. For the foregoing reasons, we will affirm the judgment of the District Court.