1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF PENNSYLVANIA 

UNITED STATES OF AMERICA, ) 

 ) 

v. ) Cr. No. 1:07-cr-00052 Erie 

 ) (Civ. No. 12-61 Erie) 

JASON SCALISE, ) 

 

Opinion and Order 

 Pending before the Court is Petitioner Jason Scalise’s Motion to Vacate, Set Aside, or 

Modify Sentence under 28 U.S.C. § 2255, filed at Criminal No. 07-52 Erie, with Brief in 

Support. ECF No. 86. The government has filed a Response to the Motion (ECF No. 89), to 

which Mr. Scalise has filed a Reply to Opposition (ECF No. 105). Mr. Scalise contends in his 

motion that he was denied effective assistance of counsel under the Sixth Amendment of the 

Constitution and denied his right to due process under the Fifth Amendment to the Constitution 

based on his trial counsel’s failure to investigate and present mitigating evidence to government 

counsel in order to negotiate a favorable plea agreement, or to the Court at sentencing to obtain a 

greater variance or a departure, and thus a lower sentence. 

Mr. Scalise also contends that he was denied effective assistance of counsel because his 

attorney operated under an actual conflict of interest while representing him. He alleges that the 

conflict of interest was due to his counsel’s contemporaneous federal criminal investigation by 

the same office prosecuting Mr. Scalise, and that this conflict affected the adequacy of his 

representation. Mr. Scalise requests an evidentiary hearing to fully develop the record on these 

issues. ECF No. 109. Because we are unable to conclusively determine whether Mr. Scalise is 

entitled to relief based on the record, we will grant the motion for an evidentiary hearing. 

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I. Background 

 A. Mr. Scalise’s Criminal Case

 On October 23, 2007, a Criminal Complaint was filed against Jason Scalise. ECF No. 1. 

Mr. Scalise retained Timothy J. Lucas, Esquire, as his counsel. ECF No. 15. On November 13, 

2007, a federal grand jury returned an indictment against Mr. Scalise charging him with one 

count of receipt and attempted receipt of material depicting the sexual exploitation of a minor in 

violation of 18 U.S.C. §2252(a)(2), and one count of possession and attempted possession of 

material depicting the sexual exploitation of a minor in violation of 18 U.S.C. §2252(a)(4)(B). 

ECF No. 16. 

 On January 20, 2009, Mr. Scalise entered a plea of guilty to both counts of the 

indictment. ECF No. 45. A sentencing hearing was scheduled for May 11, 2009. ECF No. 45. 

The sentencing hearing was rescheduled to August 4, 2009 at the request of defense counsel. 

ECF No. 47. Prior to the hearing, a presentence report was prepared by the Probation Office, 

which calculated Mr. Scalise’s advisory sentencing guidelines range at 210 to 240 months of 

imprisonment based upon an offense level of 37 and a criminal history category of I. PSR, ¶63. 

Neither side objected to this calculation of the guideline range. 

 At sentencing, Mr. Lucas spoke at length about a report prepared by a Clinical and 

Consulting Psychologist, Dr. Jerome Troncone, based on his examination of Mr. Scalise. 

Sentencing Tr. 9-11, 15-16, ECF No. 66. The thrust of defense counsel’s argument to this Court 

was that Mr. Scalise did not meet the DSM4 criteria for being labeled a pedophile, and that the 

Court should consider this assertion in determining Mr. Scalise’s future danger to society. 

Sentencing Tr. 10. Mr. Lucas also reminded this Court of the voluntary counseling Mr. Scalise 

had undergone before the time of sentencing. Sentencing Tr. 11. 

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 Mr. Lucas also challenged several increases in the base offense level arguing, among 

other things, that the increases are not grounded in empirical data. Sentencing Tr. 12-14. First, 

he challenged the two-level increase for use of a computer, arguing that this has become so 

commonplace that the enhancement is unreasonable. Sentencing Tr. 13. He also argued against 

the application of increases for number of images of prepubescent individuals under the age of 

12, and for images portraying sadomasochistic conduct. Sentencing Tr. 13-14. The thrust of 

this argument was Mr. Lucas’s contention that these penalties were “a Sentencing Commission 

decision to simply reach out and increase these penalties for certain factors where there really is 

no basis to do that.” Sentencing Tr. 14. 

 In conclusion, Mr. Lucas reminded this Court of the §3355 factors to be considered when 

imposing a sentence, and argued that, in light of such considerations and concerns, the guidelines 

seemed “so Draconian compared to the conduct of a Jason Scalise as to be unjustified and 

unwarranted.” Sentencing Tr. 15. The focus of his argument was pointed to the second and third 

of the §3355 factors: “[T]o afford adequate deterrence to criminal conduct” and “to protect the 

public from further crimes of the defendant.” See 18 U.S.C. §3553(a)(2)(B), 18 U.S.C. 

§3553(a)(2)(C). In arguing for strong consideration of these factors, Mr. Lucas again directed 

this Court to Dr. Troncone’s report finding that Mr. Scalise was not a pedophile. Sentencing Tr. 

16. Mr. Lucas concluded by asking the Court, in light of the advisory nature of the guidelines, to 

take into account the §3553(a) factors in exercising our discretion. Sentencing Tr. 17. 

 After Mr. Lucas addressed the Court, the Assistant United States Attorney prosecuting 

the case spoke. He questioned Dr. Troncone’s assertion that Mr. Scalise was not sexually 

interested in children, calling the claim “laughable.” Sentencing Tr. 26. The government 

otherwise did not address Dr. Troncone’s report, and instead focused on the size and breadth of 

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Mr. Scalise’s collection of child pornography and the victims of the crime. Sentencing Tr. 26. 

The Assistant United States Attorney further argued that the guidelines were based in “human 

decency,” and therefore were not Draconian as Mr. Lucas suggested. ECF No. 66, Sentencing 

Transcript, at 27-28. 

 After hearing arguments, we imposed a sentence of 168 months at Count 1, and 120 

months at Count 2 to be served concurrently for a total sentence of 168 months. Sentencing Tr. 

31. This sentence was a 42-month variance from the guideline’s suggested minimum sentence of 

210 months. We explained after imposing sentence that we varied, in part, because 

enhancements for this offense concern features that are present “in many, if not most, cases [that] 

diverge[] significantly from the Sentencing Commission’s typical empirical approach and 

produces a sentence greater than necessary.” Sentencing Tr. 36 (quoting United States v. 

Hanson, 561 F.Supp.2d 1004 (E.D.Wis. 2008)). 

 Following his sentencing, Mr. Scalise appealed to the United States Court of Appeals for 

the Third Circuit, which affirmed his sentence. United States v. Scalise, 398 Fed. Appx. 736, 

2010 WL 4230797 (3d Cir. Oct. 27, 2010). Mr. Scalise then filed a petition for a writ of 

certiorari with the United States Supreme Court. The Supreme Court ultimately denied the 

petition on February 28, 2011. Scalise v. United States, 131 S.Ct. 1585 (Feb. 28, 2011) (cert. 

denied). Mr. Scalise then filed the instant petition. 

B. Mr. Lucas’s Criminal Case 

 In order to resolve this Motion, it is also necessary to provide some background on Mr. 

Lucas. Mr. Lucas had maintained a practiced law in the Western District of Pennsylvania, which 

included a thriving criminal defense practice. This practice was abruptly interrupted in 1992, 

when Mr. Lucas pleaded guilty to an Information charging him with willful failure to file a 

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timely tax return in violation of 26 U.S.C. § 7203. United States v. Lucas, Cr No. 92-19 Erie. 

On February 1, 1993, we sentenced Mr. Lucas to a term of imprisonment of 3 months, to be 

followed by one year of supervised release. Judgment, 2/1/1993, Ex. K, attached to ECF No. 

85. Eventually, Mr. Lucas regained his law license and again established a thriving law practice, 

including representing criminal defendants in state and federal court. 

Unfortunately, Mr. Lucas again began to evade his tax obligation beginning in 1997, 

culminating in an Information charging him with Tax Evasion from August 25, 1997, and 

continuing to the date of the Information. United States v. Lucas, Cr No. 10-45 Erie. In that 

case, the government indicated that Mr. Lucas knowingly and willfully evaded the payment of 

$329,704 in tax due for the 11-year period set forth in the Information. Tr. of Change of Plea, 

8/4/2010, at 14. Mr. Lucas pleaded guilty to the Information, and was eventually sentenced to 

imprisonment of 12 months and 1 day, to be followed by 2 years of supervised release. 

Judgment, 1/12/2011, ECF No. 28, at Cr No. 10-45 Erie. This sentence was a variance from the 

advisory guideline range of 21 to 27 months’ imprisonment. 

 The investigation of Mr. Lucas’s failure to meet his tax obligations began as early as 

2004, and included a July 24, 2007 interview of Mr. Lucas by IRS agents, with numerous 

subsequent contacts between the IRS agents and Mr. Lucas or his representatives. On October 

31, 2007, Mr. Lucas appeared on behalf of Mr. Scalise at his detention hearing. Thus, there is no 

question that Mr. Lucas was well aware before he began his representation of Mr. Scalise, that he 

was being investigated for his conduct and that it was highly likely that the investigation would 

result in criminal charges being filed against him 

 On September 9, 2009, the IRS agent investigating Mr. Lucas completed a Criminal 

Initiation Form referring the matter to the United States Attorney’s office for the Western 

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District of Pennsylvania. On September 14, 2009, Mr. Lucas was contacted by Assistant United 

States Attorney Jim Wilson, from the Pittsburgh Division of the Western District of 

Pennsylvania, who informed Mr. Lucas that the IRS investigation had been referred to his office 

for prosecution. Following this notification, Mr. Lucas withdrew from his representation of all 

his federal clients. ECF No. 89 at 28. 

II. Standard of Review 

 Under section 2255, a federal prisoner in custody may move the court which imposed the 

sentence to vacate, set aside, or correct the sentence upon the ground that “the sentence was 

imposed in violation of the Constitution or laws of the United States, or that the court was 

without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum 

authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255. Relief under 

this provision is “generally available only in ‘exceptional circumstances’ to protect against a 

fundamental defect which inherently results in a complete miscarriage of justice or an omission 

inconsistent with the rudimentary demands of fair procedure.” United States v. Gordon, 979 F. 

Supp. 337, 339 (E.D. Pa. 1997), citing Hill v. United States, 368 U.S. 424, 428 (1962). 

The statute provides, as a remedy for a sentence imposed in violation of the law, that “the court 

shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or 

grant a new trial or correct the sentence as may appear appropriate.” 28 U.S.C. § 2255. 

 The Court must consider the motion together with all the files, records, transcripts and 

correspondence relating to the judgment under attack. See 28 U.S.C. § 2255, Rule 4(b). A 

district court considering a § 2255 motion “‘must accept the truth of the movant’s factual 

allegations unless they are clearly frivolous on the basis of the existing record,’” United States v. 

Booth, 432 F.3d 542, 545 (3d Cir. 2005), quoting Virgin Islands v. Forte, 865 F.2d 59, 62 (3d 

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Cir. 1989), and it “abuses its discretion if it fails to hold an evidentiary hearing when the files 

and records of the case are inconclusive as to whether the movant is entitled to relief.” Booth, 

432 F.3d at 546, citing United States v. McCoy, 410 F.3d 124, 134 (3d Cir. 2005). However, the 

final disposition of a § 2255 motion lies with the discretion of the trial judge, See Virgin Islands 

v. Nicholas, 759 F.2d 1073, 1075 (3d Cir. 1985), and a district court may summarily dismiss a § 

2255 motion where the motion, files and records “show conclusively that the movant is not 

entitled to relief.” United States v. Mason, 2008 WL 938784, 1 (E.D. Pa. 2008), citing Forte, 

865 F.2d at 62. 

 Because we are unable to conclusively determine whether Mr. Scalise is entitled to relief 

based on the record, we will hold an evidentiary hearing. 

III. Discussion 

Mr. Scalise seeks relief, in general, on the basis he was denied effective assistance of 

counsel under the Sixth Amendment of the Constitution. “A claim of ineffective assistance 

requires a defendant to establish that counsel’s representation fell below an objective standard of 

reasonableness and that the deficient performance prejudiced the defendant.” McAleese v. 

Mazurkiewicz, 1 F.3d 159, 166 (3d Cir. 1993), (citing Strickland v. Washington, 466 U.S. 668, 

687-688 (1984)). Mr. Scalise’s first argues that his counsel was ineffective for failing to 

properly investigate and present mitigating evidence, both prior to entering into a plea 

agreement, and at sentencing. Next, Mr. Scalise argues that his counsel, Timothy Lucas, 

represented him while operating under an actual conflict of interest due to his own criminal 

investigation, and that this conflict of interest affected Mr. Lucas’s representation. 

 There is some overlap between these two arguments in the sense that Mr. Scalise argues 

that the criminal investigation of Mr. Lucas during the pendency of his own case is a partial 

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explanation for trial counsel’s failure to properly investigate and present mitigation evidence on 

behalf of Mr. Scalise. However, Mr. Scalise argues that separate and apart from any alleged 

conflict of interest, Mr. Lucas’s performance fell below an objective standard of reasonableness 

in investigating and presenting mitigating evidence on his behalf. In addition, Mr. Scalise argues 

that the actual conflict of interest Mr. Lucas was operating under caused him, in some sense, to 

seek the goodwill of the office prosecuting him by foregoing a proper and vigorous investigation 

and presentation on behalf of Mr. Scalise. 

 We will address Mr. Scalise’s actual conflict of interest argument first, followed by his 

claim of ineffectiveness for failure to investigate and present mitigating evidence. 

A. Applicable Law 

A “petitioner claiming a deprivation of his or her Sixth Amendment right to effective 

assistance of counsel must show that: (1) counsel's performance was deficient; and (2) counsel’s 

deficient performance caused the petitioner prejudice.” Ross v. District Attorney of the County 

of Allegheny, 672 F.3d 198, 210 (3d Cir. 2012), citing Strickland, 466 U.S. at 687. 

 “To show deficient performance, ‘a person challenging a conviction must show that 

counsel's representation fell below an objective standard of reasonableness. . . . The challenger’s 

burden is to show that counsel made errors so serious that counsel was not functioning as the 

‘counsel’ guaranteed the defendant by the Sixth Amendment.’” Ross, 672 F.3d at 210 (quoting 

Harrington v. Richter, ––– U.S. ––––, ––––, 131 S.Ct. 770, 787, 178 L.Ed.2d 624 (2011)). 

“‘[S]trategic choices made after thorough investigation of law and facts relevant to plausible 

options are virtually unchallengeable.’” Hinton v. Alabama, ––– U.S. –––, ––––, 134 S.Ct. 1081, 

1088, (2014) (quoting Strickland, 466 U.S. at 690). “Because advocacy is an art and not a 

science, and because the adversary system requires deference to counsel’s informed decisions, 

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strategic choices must be respected . . . if they are based on professional judgment.” Strickland, 

466 U.S. at 681. “The Supreme Court directs that our ‘scrutiny of counsel's performance must 

be highly deferential’ to avoid holding counsel incompetent because of reasonable strategic or 

tactical judgments which, with the benefit of tactical hindsight, might prove not to have best 

served his client’s interests.” United States v. Loughery, 908 F.2d 1014, 1018 (D.C.Cir.1990), 

quoting Strickland, 466 U.S. at 689. 

With respect to prejudice, a petitioner must “‘show that there is a reasonable probability 

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

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

outcome.’” Hinton, 134 S.Ct. at 1089 (quoting Strickland, 466 U.S. at 694); see also Ross, 672 

F.3d at 210 (quoting Richter, 131 S.Ct. at 787). 

With respect to a claim alleging that counsel was ineffective due to an actual conflict of 

interest the applicable law is as follows. “In order to establish a violation of the Sixth 

Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict 

of interest adversely affected his lawyer’s performance.” Cuyler v. Sullivan, 446 U.S. 335, 348 

(1980). Further, “a defendant who shows that a conflict of interest actually affected the adequacy 

of his representation need not demonstrate prejudice in order to obtain relief.” Id. at 349-50. 

However, a “possibility of conflict is insufficient to impugn a criminal conviction,” and a 

defendant must establish that an actual conflict of interest was present. Id. “Until . . . a 

defendant shows that his counsel actively represented conflicting interests, he has not established 

the constitutional predicate for his claim of ineffective assistance.” Mickens v. Taylor, 535 U.S. 

162, 175 (2002) (quoting Sullivan, 446 U.S. at 350). 

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B. Actual Conflict of Interest 

In attempting to prove that an actual conflict of interest was present during the pendency 

of Mr. Lucas’s representation of Mr. Scalise, Mr. Scalise contends that Mr. Lucas “had an 

interest in seeking the goodwill of the prosecuting agency, the United States Attorney’s Office 

for the Western District of the Pennsylvania.” ECF No. 105 at 25. Mr. Scalise cites United 

States v. Levy, 25 F.3d 146 (2d Cir. 1994), in which the Court found that defense counsel “may 

have believed that he had an interest in tempering his defense of [defendant] in order to curry 

favor with the prosecution, perhaps fearing that a spirited defense . . . would prompt the 

government to pursue the case against [defense counsel] with greater vigor.” Levy, 25 F.3d at 

156. In his Reply, Mr. Scalise appears to contend that Mr. Lucas’s concurrent investigation by 

the IRS, combined with the likelihood of his imminent prosecution by the Western District of 

Pennsylvania, affected the adequacy of Mr. Scalise’s representation. ECF No. 105 at 45 

(“despite his awareness of Mr. Scalise’s significant mental health issues, trial counsel failed to 

investigate or present them to the prosecutor, for purposes of obtaining a favorable plea 

agreement, and to the sentencing court, for purposes of obtaining a downward departure of 

variance”). Mr. Scalise appears to be arguing that Mr. Lucas made strategic decisions with his 

own prosecution in mind, rather than the best interests of Mr. Scalise. 

The government argues that because Mr. Lucas’s case was not referred to the United 

States Attorney’s Office in the Western District until after Mr. Scalise was sentenced, there was 

no conflict of interest. ECF No. 89 at 21. The thrust of the government’s claim is that because 

the same body prosecuting Mr. Scalise was not concurrently prosecuting Mr. Lucas, there is no 

fear of divided loyalties on the part of the defense attorney. The government states that the 

record “clearly establishes that Lucas did not pull his punches in Scalise’s case in an attempt to 

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better his own situation” because “Lucas sought and received a significant downward variance of 

42 months for Scalise.” ECF No. 89 at 29. 

Further, the government argues that because the charges against Mr. Lucas were not 

related to the charges against Mr. Scalise, there was no conflict. ECF No. 89 at 26. In support 

of this claim, the government contends that several Courts have rejected conflict arguments when 

the charges against Defendant and trial counsel are unrelated. ECF No. 89 at 26 (citing United 

States v. Aiello, 900 F.2d 528, 531-32 (2d Cir. 1990); see also United States v. Eisen, 974 F.2d 

246 (2d Cir. 1992). 

We granted discovery so the parties could more fully investigate whether there was a 

conflict of interest, particularly whether “Mr. Lucas had a personal interest that was ‘inconsistent 

. . . with [that] of his client.’” Opinion and Order on Discovery Motion, ECF No. 100 at 6. In 

addition discovery was granted so that Mr. Scalise could determine whether “Mr. Lucas was 

sufficiently aware of the likelihood of an imminent referral to the United States Attorney such 

that a conflict existed just as if the United States Attorney already controlled the investigation.” 

Id. 

Mr. Scalise, through his new counsel, claims that discovery revealed “trial counsel was 

aware, if not painfully aware, that his own prosecution for criminal tax offenses was both likely 

and imminent during the time that he represented Mr. Scalise.” ECF No. 105 at 25. Mr. Scalise 

claims that Mr. Lucas’s retention of a lawyer, his statements made during an interview with IRS 

agents, and the volume of unpaid taxes combined with the duration of delinquency individually 

and collectively support the assertion that Mr. Lucas was sufficiently aware of the imminency of 

his prosecution. ECF No. 105 at 43-45. 

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Mr. Scalise argues that Mr. Lucas’s awareness of the investigation, and resulting conflict 

“‘affected the adequacy of [Mr. Lucas’s] representation.’” ECF No. 105 at 45 (quoting Cuyler, 

446 U.S. at 335). The thrust of this claim centers on Mr. Lucas’s alleged “failure to investigate 

or present [Mr. Scalise’s significant mental health issues] to the prosecutor . . . and to the 

sentencing court,” his failure to “file objections to the presentence report,” and his failure to “file 

a sentencing memorandum with the court.” ECF No. 105 at 45. Mr. Scalise claims that, because 

there was an actual conflict, and that it affected the adequacy of his representation, he is entitled 

to the relief sought. 

In response, the government argues that Mr. Lucas chose a trial strategy that was not 

unreasonable when he decided to pursue a challenge based on the §3553 factors for sentencing, 

rather than the potential for mental illness. The government cites a Supreme Court ruling stating, 

“there comes a point where a defense attorney will reasonably decide that another strategy is in 

order, thus ‘mak[ing] particular investigations unnecessary.’” Cullen v. Pinholster, 131 S.Ct. 

1388, 1407 (2011); see also Harrington v. Richter, 131 S.Ct. 770, 788 (2011). The government 

appears to be arguing that because the strategy was not unreasonable, it cannot be said that Mr. 

Lucas’s alleged conflict adversely affected Mr. Scalise. 

In determining whether the record conclusively shows that the prisoner is entitled to no 

relief we are guided by the Third Circuit Court of Appeals, which stated “that a district court’s 

failure to grant an evidentiary hearing when the files and records of the case are inconclusive on 

the issue of whether movant is entitled to relief constitutes an abuse of discretion.” Solis v. 

United States , 252 F.3d 289, 294-95 (3d Cir. 2001). 

The Supreme Court in Wood v. Georgia, in remanding a case for an evidentiary hearing 

stated, “[o]n the record before us, we cannot be sure whether counsel was influenced in his basic 

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strategic decisions by the interests of the employer who hired him. If this was the case, the due 

process rights of petitioners were not respected at the revocation hearing, or at earlier stages of 

the proceedings below.” 450 U.S. 261, 272 (1981). The present case presents a similar situation 

in that if his own interests in currying favor with the prosecutors influenced Mr. Lucas’s strategic 

decisions, Mr. Scalise’s interests would be affected. 

Similarly, the Third Circuit Court of Appeals held in Briguglio v. United States that 

“[t]he showing made by Briguglio raises a clear possibility of actual conflict, actual effect on the 

adequacy of representation, and prejudice. However, the record in this case is not sufficient for 

us adequately to address any of those questions because Briguglio was not afforded the 

evidentiary hearing he sought.” 675 F.2d 81, 83 (3d Cir. 1982). 

The Second Circuit Court of Appeals in Armienti v. United States outlined the 

requirement for a showing of actual conflict, and how a Court should review such a claim. 234 

F.3d 820 (2d Cir. 2000). The Armienti Court stated, “[t]here is an actual conflict between lawyer 

and client when, during the course of the representation, the attorney’s and defendant’s interests 

‘diverge with respect to a material factual or legal issue or to a course of action.’” Armienti, 234 

F.3d at 824 (quoting Cuyler, 446 U.S. at 356 n.3). “To prove the adverse effect, the defendant 

must demonstrate that some ‘plausible alternative defense strategy or tactic might have been 

pursued’ and that the ‘alternative defense was inherently in conflict with or not undertaken due 

to the attorney’s other loyalties or interests.’” Id. (quoting Winkler v. Keane, 7 F.3d 304, 307 

(2d Cir. 1993)). In Armienti, the defense lawyer “was being criminally investigated by the same 

United States Attorney’s office that was prosecuting Armienti.” Id. The Court stated that “[t]he 

interests of the lawyer and client may therefore have diverged with respect to their dealings with 

that office.” Id. at 824-25. 

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The government challenges Mr. Scalise’s reliance on Armienti as unavailing, arguing 

“[a]fter the Second Circuit remanded the case for an evidentiary hearing, the district court, at the 

conclusion of the hearing, found no actual conflict of interest.” ECF No. 89 at 24. This 

argument does not counter Mr. Scalise’s request for an evidentiary hearing. Simply because an 

evidentiary hearing in this case may lead to a finding of no actual conflict, it does not mean that 

Mr. Scalise is not entitled to such a hearing. 

The issue is sufficiently uncertain such that we deem that an evidentiary hearing is 

required to conclusively establish whether Mr. Lucas’s choices were a product of legal strategy, 

or if his actions were motivated by an attempt to serve two masters. The record is not developed 

enough for this Court to determine what led Mr. Lucas to choose his legal strategy, and whether 

it amounts to ineffectiveness that affected Mr. Scalise’s representation and thus we are “obliged 

to follow the statutory mandate to hold an evidentiary hearing.” McCoy, 410 F.3d at 134. 

C. Failure to Investigate and Present Mitigating Evidence 

As noted, Mr. Scalise also argues that he was denied effective assistance of counsel under 

the Sixth Amendment of the Constitution and denied his right to due process under the Fifth 

Amendment to the Constitution based on Mr. Lucas’s failure to properly investigate and present 

mitigating evidence to either the government or the Court. Mr. Scalise argues that separate and 

apart from any alleged conflict of interest, his counsel’s performance fell below an objective 

standard of reasonableness in investigating and presenting evidence on his behalf. 

“Under Strickland, ‘strategic choices made after thorough investigation of law 

and facts relevant to plausible options are virtually unchallengeable; and strategic 

choices made after less than complete investigation are reasonable precisely to the 

extent that reasonable professional judgments support the limitations on 

investigation. In other words, counsel has a duty to make reasonable 

investigations or to make a reasonable decision that makes particular 

investigations unnecessary.’” 

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Hinton, –– U.S. –––, ––––, 134 S.Ct. at 1088 (quoting Strickland, 466 U.S. at 690–691, 104 

S.Ct. 2052). 

1. Whether Counsel’s Performance was Deficient 

 Defense counsel argues that Mr. Lucas failed to introduce potentially mitigating evidence 

regarding Mr. Scalises’s mental health issues, and in particular, Asperger’s Syndrome. It is 

undisputed that Mr. Lucas neither investigated the issue of Asperger’s Syndrome, nor argued for 

mitigation on that basis. 

The government argues that Mr. Lucas had no reason to investigate the possibility of 

Asperger’s Syndrome, as neither of the doctors who evaluated or treated Mr. Scalise prior to his 

sentence indicated that he had Asperger’s Syndrome. After Mr. Scalise had pleaded guilty, his 

mother allegedly informed Mr. Lucas that her son has Asperger’s Syndrome. The government 

discounts this information as lacking any basis, and is also unsupported by the doctors who had 

examined Mr. Scalise. Thus, as a strategic choice, the government argues that Mr. Lucas’s 

decision not to investigate was reasonable. 

We cannot know if it was unreasonable for Mr. Lucas to fail to investigate because we do 

not have sufficient evidence to determine what he knew and when. More significantly, we are 

without sufficient information to determine if Mr. Lucas’s choice not to investigate (or not to 

investigate further) was based on a mistaken belief that the information was not true or would not 

matter at sentencing, or whether it was based on some other strategic decision. 

Additionally, we agree with counsel for Mr. Scalise that the argument cannot be decided 

based narrowly on the issue of Mr. Scalise’s Asperger’s Syndrome. Mr. Scalise’s argument 

encompasses a much broader ineffectiveness allegation based on (i) the failure to investigate and 

present all of Mr. Scalise’s mental health issues; (ii) an inadequate presentation at sentencing 

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itself, that relied solely on a two-page summary of treatment; (iii) inadequate argument regarding 

the guidelines and failure to request a significant variance; (iv) failure to file a sentencing 

memorandum at all; (v) failure to object to specific enhancements; and (v) failure to seek a 

downward departure. It appears based on the evidence provided by counsel that significant 

information was available (apart from the Asperger’s Syndrome question) concerning Mr. 

Scalise’s mental health and social, emotional, and academic difficulties. Thus, it is possible that 

Mr. Lucas’s failure to do more than present Dr. Troncone’s report at sentencing amounts to 

ineffectiveness. 

There is also Mr. Scalise’s related claim of ineffectiveness based on the failure of trial 

counsel to initially seek a favorable plea agreement. Mr. Scalise points out that in Mr. Lucas’s 

own criminal case, he hired a forensic psychiatrist to evaluate him. This psychiatrist prepared a 

comprehensive report, which was then used in negotiations and actually resulted in a favorable 

plea to an Information of only one count, rather than an Indictment charging multiple counts. 

Counsel for Mr. Scalise argues that this course of action demonstrates that Mr. Lucas knew what 

was required in Mr. Scalise’s case, especially considering that he appeared on behalf of Mr. 

Scalise before the Indictment was filed, but failed to do so. 

We are mindful that we must presume that counsel performed in a professionally 

reasonable manner and that his “conduct falls within the wide range of reasonable professional 

assistance.” Strickland, 466 U.S. at 689. “The presumption can be rebutted by showing ‘that the 

conduct was not, in fact, part of a strategy or by showing that the strategy employed was 

unsound.’” Lewis v. Horn, 581 F.3d 92, 113 (3d Cir. 2009), quoting Thomas v. Varner, 428 .3d 

491, 499-500 (3d Cir. 2005). Here, we are faced with the question of whether Mr. Lucas 

conducted a “thorough investigation of law and facts.” Strickland, 466 U.S. at 690. In addition 

Case 1:07-cr-00052-MBC Document 110 Filed 05/05/15 Page 16 of 20
17 

we must determine whether Mr. Lucas’s choices were actually informed decisions based on 

professional judgment. This case also raises the question of whether Mr. Lucas’s choices were 

part of a deliberate strategy, and whether the strategy chosen was sound. Based on the record 

before us we conclude that an evidentiary hearing is necessary before we can determine these 

questions. 

2. Prejudice 

It is not sufficient to show only that trial counsel’s performance was deficient. The 

second prong of Strickland also requires that “[t]he defendant must show that there is a 

reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding 

would have been different. A reasonable probability is a probability sufficient to undermine 

confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. 

The outcome in this case is the ultimate sentence Mr. Scalise received. “The reasonable 

probability of any decrease in [defendant’s] sentence is sufficient to establish prejudice.” 

Smack, 347 F.3d at 540; see also Glover, 531 U.S. at 203 (“Authority does not suggest that a 

minimal amount of additional time in prison cannot constitute prejudice. Quite to the contrary, 

our jurisprudence suggests that any amount of actual jail time has Sixth Amendment 

significance.”) 

The government argues that we are able to determine that Mr. Scalise was not prejudiced 

as his trial counsel was able to obtain a sentence that varied 42 months below the low end of the 

advisory guideline range he faced. Although we did vary, we did so based on our own practice 

of always discounting the use of a computer and not because of trial counsel’s’ arguments. The 

fact that Mr. Scalise received a variance does not, in and of itself, mean that he could not have 

been prejudiced and thus may have been received a greater variance. See Smack, 347 F.3d at 

Case 1:07-cr-00052-MBC Document 110 Filed 05/05/15 Page 17 of 20
18 

540) and Glover, 531 U.S. 198 (2001) (any reduction in sentence constitutes substantial 

prejudice for purposes of Strickland analysis). Depending on the evidence to be presented at an 

evidentiary hearing, it is possible that had trial counsel presented compelling evidence in 

mitigation and additional arguments in favor of a variance, there would be a reasonable 

probability that Mr. Scalise would have received a greater variance and thus a lower sentence. 

This court has imposed sentences in over 20 cases where the defendant was convicted a 

child pornography offense. In nearly every case we varied from the applicable advisory 

guideline range. In three of the cases in which we did not vary the defendant was convicted of 

at least one count of inducing a minor to engage in illegal sexual activity or sexual exploitation 

of a minor. In one case where the defendant was convicted of possession of material depicting 

the sexual exploitation of a minor, and faced an advisory guideline range of 135 to 168 months, 

we imposed the 120 month statutory maximum sentence. In addition, we declined to vary in one 

case where the defendant was convicted of possession of material depicting the sexual 

exploitation of a minor. In every other case we have imposed a sentence below the advisory 

guideline range. 

In twenty other cases in which we varied below the advisory guideline range defense 

counsel filed a Memorandum in Aid of Sentencing in which a specific argument for a variance 

was made in all but two of the cases. In the cases where a Memorandum on behalf of the 

defendant was filed, all but four of the cases included some form of a mental health evaluation 

submitted to the court in mitigation. In the four cases that did not include a mental health 

evaluation, two of the cases included extensive arguments in mitigation based on the defendant’s 

specific social and emotional difficulties. In the remaining two cases in which a Memorandum 

Case 1:07-cr-00052-MBC Document 110 Filed 05/05/15 Page 18 of 20
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was filed but no mental health evaluation was provided, there appears not to have been any basis 

for counsel to seek a mental health evaluation. 

Of the two cases where no Memorandum at all was filed, one case was Mr. Scalise’s. In 

the other case the defendant was charged in a two-count indictment, but his counsel was able to 

negotiate a written plea agreement whereby the defendant agreed to plead guilty to one count in 

exchange for the government agreeing to dismiss the second count. 

A survey of our own cases shows that Mr. Scalise’s trial counsel provided significantly 

less information to the Court prior to sentencing than was afforded to nearly every other 

similarly situated defendant. Presuming that trial counsel was ineffective solely for purposes of 

our prejudice prong analysis, this makes it difficult to definitively state that had we been 

presented with similar mitigating information and argument at sentencing that we would not 

have imposed a lesser sentence than we did. As a result, we find that an evidentiary hearing is 

necessary. 

IV. Conclusion 

 We find that Mr. Scalise has made a sufficient showing that his counsel may have 

represented him under an actual conflict of interest during the pendency of his prosecution that 

potentially affected his representation, such that we must grant an evidentiary hearing. At this 

hearing, Mr. Scalise must conclusively show that Mr. Lucas “actively represented conflicting 

interests” in order to establish the “constitutional predicate for his claim of ineffective 

assistance.” See Mickens, 446 U.S. at 350. We further find that an evidentiary hearing is 

necessary to address the alternative argument that Mr. Lucas’s performance was deficient and 

that this deficient performance prejudiced Mr. Scalise. 

Case 1:07-cr-00052-MBC Document 110 Filed 05/05/15 Page 19 of 20
We note that both avenues for relief present a high bar for a petitioner to overcome. "The 

benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so 

undermined the proper functioning of the adversarial process that the [outcome] cannot be relied 

on as having produced a just result." Strickland. 466 U.S. at 686. 

Accordingly, we will grant Mr. Scalise's motion for an evidentiary hearing. 

Date: ~ ::;; t..D 1 .J li~«f M ~ 6_ Qp tkLt ~ \r~ Maurice B. Cohill, Jr. 

Senior United States District Court Judge 

ORDER 

_u;_ 

AND NOW, to-wit, this \) day of~ , 2015, it is hereby ORDERED, 

ADJUDGED, and DECREED that Petitioner's Motion for an Evidentiary Hearing on Motion 

to Vacate Pursuant to 28 U.S.C. § 2255 (ECF No. 109) is GRANTED. 

An Evidentiary Hearing on the motion is hereby set for Thursday, July 23, 2015 at 

10:00 a.m. in Courtroom 8A, 8th Floor, United States Courthouse, 700 Grant Street, 

Pittsburgh, Pennsylvania. 

lt(~ 6. Cb~ \~ . Maurice B. Cohill, Jr. 

Senior United States District Judge 

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