NOEL L. HILLMAN, District Judge.
Petitioner Jose Octavio Perez, a prisoner currently confined at the United States Penitentiary Big Sandy in Inez, Kentucky, has filed this Motion [1], pursuant to 28 U.S.C. § 2255, challenging the sentence imposed upon his conviction, on grounds of ineffective assistance of counsel in connection with the sentencing proceeding.
Petitioner was charged in a one-count indictment with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g).
Much of Petitioner's sentencing hearing was devoted to the question whether the § 2K2.1(b)(6) enhancement should apply. (Answer, Ex. B, Transcript of Sentencing Hearing on March 30, 2009, and Ex. C, Tr. of Sent. Hrg. on April 9, 2009.) New Jersey State Trooper Christopher Provenzano testified that on the night of January 23-24, 2008, he was assigned to the Strategic Investigation Unit patrolling the Abblett Village housing complex, performing a follow-up investigation regarding a shooting in that area. Trooper Provenzano described the area as a high-crime area, including crimes related to drug trafficking. When Trooper Provenzano's vehicle approached a group of young men, at approximately midnight, Trooper Provenzano observed that Petitioner had a handgun in his waistband, which he took out, brandished, and replaced. Petitioner began to ran, and the Trooper followed him, first in the vehicle, and then, when he reached a barricade, on foot. While Trooper Provenzano and his partner New Jersey State Trooper Carlos Rodriguez chased Petitioner on foot, Trooper Provenzano saw Petitioner reach into his pants pocket and discard a small object, approximately the size of a deck of cards. Trooper Provenzano made a mental note of the location and continued the chase, catching Petitioner less than a minute later, and arresting him. After securing Petitioner in a trooper car, Troopers Provenzano and Rodriguez backtracked the route of the chase and almost immediately found a small package of crack cocaine, approximately 5 inches square, in the location where Petitioner had discarded a small object. (Answer, Ex. B at 15-22, 32, 45-46, 51.) During his testimony, Trooper Provenzano utilized an aerial photograph of Abblett Village to mark the locations where he first saw Petitioner, the route of his vehicle in following Petitioner, the route of the foot chase, the location where he saw Petitioner discard the small object and the point where he arrested Petitioner. (Ans., Ex. B at 23-24.) Trooper Provenzano also marked on two photographs depicting paths travelled in the foot chase the location near a building where he saw Petitioner discard the small object. (Ans., Ex. B at 28-30.) On cross-examination, Trooper Provenzano testified that the building near where the package of drugs was found was approximately 20 feet tall and that he was aware that drug dealers sometimes "roof" their drugs when police are nearby. (Ans., Ex. B at 38-39.)
Trooper Rodriguez also testified as to the events of the night of January 23-24, 2008, with regard to the chase and arrest of Petitioner and the recovery of a small package of cocaine near the location where Petitioner was arrested. Trooper Rodriguez also marked an aerial photograph with the locations where he first saw Petitioner, where he followed Petitioner in a vehicle then chased him on foot, and where he and Trooper Provenzano arrested Petitioner. Trooper Rodriguez testified that, while chasing Petitioner, he saw Petitioner discard a small plastic bag, like a sandwich bag, which was smaller than a fist. He testified that he retraced the route of his foot chase of Petitioner with other troopers and that they recovered the bag of drugs within five minutes after arresting Petitioner. Petitioner Rodriguez also testified that the area where Petitioner was arrested is a high drug crime area and that it is a common practice for drug dealers to throw their drugs onto the roofs in that complex to avoid being found with drugs when police are in the area. (Ans., Ex. C at 7-18, 23-25.)
Finally, Terrell Allen testified that he was a resident of Abblett Village in January 2008 and that, on the night of Petitioner's arrest, around midnight, he was in the area selling drugs when Petitioner ran past him followed by two vehicles. Allen testified further that he was opening up a new pack of drugs to sell and that, when he saw Petitioner running, followed by two vehicles, he tried to throw the drugs on the roof of a nearby building, but they hit the tip of the roof and fell down. Allen testified that he ran after trying to throw the drugs on the roof. Allen testified that he was standing one street over from the building in the photograph where the troopers found the packet of drugs. Finally, Allen testified that the packet of drugs the police found was the packet of drugs that he had tried to throw on the roof, as he determined because the drugs he had thrown were missing when he went back later to look for them. (Ans., Ex. C at 36-41.)
After hearing this testimony, and argument from counsel, this Court found that the enhancement should apply. (Ans., Ex. C at 68, 71-72.) In brief, this Court found that all of the witnesses appeared to be testifying truthfully, and that their testimony was not inconsistent, but that it appeared, nevertheless, that Mr. Allen was approximately a block away from the location where the packet of drugs was recovered, so that the drugs could not have been his, but must have been Petitioner's. (Ans., Ex. C at 69-71.)
This Court found that the statutory maximum for the offense was 120 months, and the Guidelines yielded an advisory range of 100 to 120 months. (Ans., Ex. C at 73.) Counsel for Petitioner then argued several factors in mitigation, (Ans., Ex. C at 73-75), and Petitioner addressed the Court directly, (Ans., Ex. C at 76). Ultimately, this Court imposed a sentence of 96 months, slightly below the Guidelines advisory minimum. (Ans., Ex. C at 82);
(Ans., Ex. C at 79-80.)
Petitioner appealed the imposition of the four-point offense-level enhancement and the U.S. Court of Appeals for the Third Circuit affirmed.
Petitioner timely filed this § 2255 motion. Here, Petitioner challenges his sentence on the grounds that his counsel failed to provide constitutionally adequate representation during sentencing, because (a) she failed to argue (unspecified) facts that would have shown that the sentencing enhancement did not apply, (b) she failed to call to the stand an unnamed second witness on Petitioner's behalf, allegedly because she forgot about the witness, and (c) she failed to present to the Court a map of the area where the crime occurred, drawn by Petitioner, that allegedly would have shown "the consistency in Mr. Allen's testimony." (Petition, ¶ 11.) The government has answered and this matter is now ready for decision.
Title 28 U.S.C. § 2255 provides, in pertinent part:
28 U.S.C. § 2255(a).
A criminal defendant bears the burden of establishing his entitlement to § 2255 relief.
This Court is required to construe pro se pleadings liberally.
A district court may summarily deny a § 2255 motion, without an evidentiary hearing, where the "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b).
The Counsel Clause of the Sixth Amendment provides that a criminal defendant "shall enjoy the right ... to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. The right to counsel is "the right to
To prevail on a claim of ineffective assistance of counsel, a habeas petitioner must show both that his counsel's performance fell below an objective standard of reasonable professional assistance and that there is a reasonable probability that, but for counsel's unprofessional errors, the outcome would have been different.
Here, all of Petitioner's claims of error rest on the theory that counsel failed to adequately put forth evidence and argument to establish that the packet of drugs found at the scene was not his, which he contends would have precluded application of the four-point offense-level enhancement for use or possession of the firearm "in connection with another felony offense." However, at sentencing, this Court expressly stated that it would have imposed the same sentence whether or not the packet of drugs found at the scene belonged to Petitioner. Accordingly, Petitioner cannot establish the "prejudice" prong of the
Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken from a final order in a proceeding under 28 U.S.C. § 2255. A certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). "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 the issues presented are adequate to deserve encouragement to proceed further."
Here, Petitioner has failed to make a substantial showing of the denial of a constitutional right. No certificate of appealability shall issue.
For the reasons set forth above, the Petition shall be denied. An appropriate order follows.
