SUSAN D. WIGENTON, District Judge.
Presently before the Court is the motion of Anthony Peterson ("Petitioner") to vacate, set aside, or correct his May 2011 judgment of conviction and sentence. (ECF No. 5). Petitioner initially filed his motion on or about May 23, 2014. (EF No. 1). The initial motion was administratively terminated on September 30, 2014. (ECF No. 4). On October 20, 2014, Petitioner filed his amended motion to vacate. (ECF No. 5). Following an order to answer and two extensions granted by this Court, the Government responded to Petitioner's motion on February 6, 2015. (ECF No. 11). Also before this Court are the Government's motion to dismiss Petitioner's motion to vacate (ECF No. 12), and Petitioner's motion to strike the Government's motion to dismiss. (ECF No. 14). For the following reasons, this Court will deny Petitioner's § 2255 motion, will deny Petitioner a certificate of appealability, and will deny Petitioner's motion to strike. In light of this Court's denial of Petitioner's § 2255 motion on the merits, this Court will also deny as moot the Government's motion to dismiss.
The Third Circuit summarized the underlying facts of Petitioner's case in their opinion affirming his conviction as follows:
United States v. Muhammad, 512 F. App'x 154, 156-58 (3d Cir.), cert. denied sub nom., Peterson v. United States, 133 S.Ct. 2783 (2013).
Following their sentencing, Petitioner and Muhammad appealed, and their appeals were consolidated for the purposes of the Third Circuit's opinion. Id. On appeal, Petitioner and his co-defendant raised numerous claims of error at trial, all of which were rejected by the Third Circuit, which affirmed both Petitioner's conviction and sentence. Id. at 158-70. One specific claim raised on direct appeal has a direct bearing on the ineffective assistance of counsel arguments Petitioner raises here. Petitioner's first claim on appeal was that his "right to crossexamination under the Confrontation Clause was violated when the District Court allowed [the] FBI forensic expert, Nicole Nicklow, to testify about the results of, and procedures used to perform, certain DNA tests" which she did not, herself, perform. Id. at 158. The Third Circuit rejected that argument for the following reasons:
Muhammad, 512 F. App'x at 158-59.
Following the affirmance on direct appeal, Petitioner petitioned for certiorari, which was denied on June 3, 2013. Peterson v. United States, 133 S.Ct. 2783 (2013). Nearly a year later, on May 23, 2014, Petitioner filed his initial motion to vacate his sentence pursuant to 28 U.S.C. § 2255. (ECF No. 1). Following an administrative termination, Petitioner filed an amended motion to vacate on October 20, 2014. (ECF No. 5). On October 23, 2014, this Court ordered the Government to respond to the motion within forty-five days, or by December 8, 2014. (ECF No. 7). Within that forty-five days, the Government requested a sixty day extension, which this Court granted on December 4, 2014, extending the deadline to February 6, 2015. (ECF No. 9). On February 5, 2015, the Government requested a further two week extension, which this Court granted on February 6, 2015. (ECF No. 10). Ultimately, the Government filed their response, in the form of a brief in support of dismissal of the motion to vacate, on February 6, 2015. (ECF No. 11). After this Court terminated the motion to dismiss for failure to include a motion and proposed order in addition to a brief in opposition to the motion to vacate, the Government filed a formal motion to dismiss on March 4, 2015. (ECF No. 12). Petitioner filed neither a reply brief nor responded to the motion to dismiss. Six months later, on or about September 22, 2015, Petitioner filed a motion to strike the motion to dismiss. (ECF No. 14).
Petitioner moves this Court to strike the Government's response, including the Government's motion to dismiss based on the argument that these documents were filed beyond the time period permitted by this Court. Pursuant to Rule 12(f) of the Federal Rules of Civil Procedure, the "court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Motions to strike, however, "are disfavored and usually will be denied `unless the allegations have no possible relation to the controversy and may cause prejudice to one of the parties, or if the allegations confuse the issues in the case.'" Jones v. United States, No. 10-3502, 2012 WL 2340096, at *2 (D.N.J. June 18, 2012) (quoting River Road Dev. Corp. v. Carlson Corp., No. 89-7037, 1990 WL 69085, at *3 (E.D. Pa. May 23, 1990). District Courts possess "considerable discretion" in deciding motions to strike. Id. Petitioner asks this Court to strike the Government's motion to dismiss and direct the Government to file a response in accord with this Court's order to answer. However, Petitioner's motion is based on a false premise: that the Government never responded to the Petition within the time allotted by the Court. Based on the extensions granted by this Court, the Government's answer was due by February 20, 2015. The Government filed its brief in support of the motion to dismiss, which also serves as its answer (responsive pleading) to Petitioner's motion to vacate, on February 6, 2015, well within the time permitted by this Court. That the Government thereafter also filed a distinct motion to dismiss the petition has no bearing on the fact that the Government did respond to the § 2255 motion within the time permitted by this Court, and as such Petitioner's motion to strike shall be denied.
A prisoner in federal custody may file a motion pursuant to 28 U.S.C. § 2255 challenging the validity of his or her sentence. Section 2255 provides, in relevant part, as follows:
28 U.S.C. § 2255. Unless the moving party claims a jurisdictional defect or a constitutional violation, to be entitled to relief the moving party must show that an error of law or fact constitutes "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. Horsley, 599 F.2d 1265, 1268 (3d Cir. 1979) (quoting Hill v. United States, 368 U.S. 424, 429 (1962)), cert. denied 444 U.S. 865 (1979); see also Morelli v. United States, 285 F.Supp.2d 454, 458-59 (D.N.J. 2003).
Under 28 U.S.C. § 2255, an evidentiary hearing is required for a motion to vacate "unless the motion and files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b); United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005); United States v. Day, 969 F.2d 39, 41-42 (3d Cir. 1992). "Where the record, supplemented by the trial judge's personal knowledge, conclusively negates the factual predicates asserted by the petitioner or indicate[s] that petitioner is not entitled to relief as a matter of law, no hearing is required." Judge v. United States, ___ F. Supp. 3d ___, ___, No. 13-2896, 2015 WL 4742380, at *3 (D.N.J. Aug. 11, 2015); see also Government of Virgin Islands v. Nicholas, 759 F.2d 1073, 1075 (3d Cir. 1985); see also United States v. Tuyen Quang Pham, 587 F. App'x 6, 8 (3d Cir. 2014); Booth, 432 F.3d at 546. For the reasons set forth below, Petitioner's claims are without merit and as such the record establishes that Petitioner is not entitled to relief as a matter of law. No evidentiary hearing is therefore required for the disposition of petitioner's motion.
In his motion, Petitioner asserts that his counsel was constitutionally ineffective. The standard for evaluating such claims is well established:
Judge, ___ F. Supp. 3d at ___, 2015 WL 4742380 at *3-4.
Petitioner argues that his trial counsel was ineffective for failing to challenge the testimony of the Government's DNA expert at trial by hiring his own DNA expert, subpoenaing the technicians who performed the DNA testing in this case, and failing to request a curative instruction informing the jurors that "the underlying test for admitting the Government's DNA expert opinion should be for the purposes of assisting the jury in evaluating the expert's opinion and [that opinion is not admitted] for substantive purposes." As to prejudice, Petitioner offers no more than hypothetical suggestions that a DNA expert "could have refuted the possible defects in the DNA testing," that counsel "could have cross examined [the technicians] . . . to reveal possible defects in the procedure and analysis that might serve to create reasonable doubt," and that with a curative instruction "the outcome could have been different by casting reasonable doubt in the minds of the jurors as to the possible flaws and errors in the DNA testing which could have been inconclusive." (Document 5 at 16-19). Petitioner offers no concrete argument or concrete factual support for the prejudice prong of the Strickland test. Such bare allegations, without supporting factual allegations, are patently insufficient to warrant an evidentiary hearing, let alone a finding of ineffective assistance of counsel. Palmer, 592 F.3d at 395.
In any event, it is doubtful that Petitioner could have shown prejudice in this case even if he had provided further allegations. Where a petitioner's guilt is established at trial by overwhelming evidence, that petitioner cannot show that he was prejudiced by counsel's errors unless he can provide "a considerable amount of new, strong evidence to undermine" his conviction. Saranchak v. Beard, 616 F.3d 292, 311 (3d Cir. 2010); see also Copenhafer v. Horn, 696 F.3d 377, 390 (3d Cir. 2012) ("[i]n light of the overwhelming evidence . . . we agree . . . that [the petitioner] cannot show he was prejudiced"). Here, all three of Petitioner's assertions of counsel's ineffectiveness rely on his belief that the DNA evidence produced at his trial was responsible for his conviction, and had counsel done more to fight that evidence, the result may have been different. These arguments, however, ignore the staggering amount of physical and eye-witness evidence produced at trial.
On direct appeal, the Third Circuit held that the admission of the DNA testimony was harmless even if one assumes that that testimony ran afoul of the Confrontation Clause. Muhammad, 512 F. App'x at 158-59. To make such a finding, the Third Circuit was required to conclude that "beyond a reasonable doubt . . . the error did not contribute to the jury's judgment of conviction." Id. at 158. The Third Circuit was able to conclude the DNA testimony and evidence did not contribute to the jury's judgment of conviction because the Government produced a truly overwhelming quantity of other evidence which clearly established Petitioner's guilt. Id. at 158-59. As the Third Circuit stated, this overwhelming evidence rendered the DNA testing "cumulative, if not superfluous." Id. at 158. Petitioner therefore cannot show that he was prejudiced by counsel's alleged errors because the Government's case against Petitioner
Id. at 158-59. Given the overwhelming evidence presented at trial, and the Third Circuit's ruling that the testimony of the DNA expert at trial did not contribute to the jury's verdict, this Court must conclude that the alleged errors of counsel raised by Petitioner did not, in any way, prejudice Petitioner. Saranchak, 616 F.3d at 311; Copenhafer, 696 F.3d at 390. As such, Petitioner's claims of ineffective assistance of counsel must fail, and Petitioner's § 2255 motion must be denied. Because this Court will deny Petitioner's § 2255 motion, the Government's motion to dismiss that motion is moot and will be denied as well.
Pursuant to 28 U.S.C. § 2253(c) the petitioner in a § 2255 proceeding may not appeal from the final order in that proceeding unless he makes "a substantial showing of the denial of a constitutional right." "A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude that the issues presented here are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). As Petitioner has failed to show that he received ineffective assistance of counsel, he has failed to make a substantial showing that he was denied a constitutional right, and jurists of reason could not conclude that his claims are sufficient to warrant encouragement to proceed. As such, this Court denies Petitioner a certificate of appealability.
For the reasons set forth above, Petitioner's motion to strike is DENIED; Petitioner's motion to vacate is DENIED; Petitioner is DENIED a certificate of appealability, and the Government's Motion to Dismiss is DENIED as moot. An appropriate order follows.
