GUSTAVE DIAMOND, District Judge.
Presently before the court is a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 filed by Anthony Johnson, Jr. ("petitioner For the following reasons, petitioner's motion will be denied.
On May 13, 2009, a grand jury returned a three-count superseding indictment charging petitioner with: possession with intent to distribute 5 grams or more of cocaine base (crack) on August 23, 2007, (count one); possession with intent to distribute 5 grams or more of cocaine base (crack) on March 5, 2008, (count two); and, carrying a firearm during and in relation to, and possessing a firearm in furtherance of, the drug trafficking crime charged in count two on March 5, 2008. (count three).
Following petitioner's arraignment on the charges set forth in the superseding indictment the court appointed Thomas Brown, Esq., to represent petitioner.
At the conclusion of a four-day trial, petitioner was found guilty by jury verdict of all three counts charged in the superseding indictment and subsequently he was sentenced to a term of imprisonment of 120 months, consisting of 60 months at each of counts one and two, to be served concurrently, and 60 months at count three, to be served consecutively to the terms imposed at counts one and two. Petitioner filed a direct appeal to the United States Court of Appeals for the Third Circuit, which affirmed petitioner's judgment of conviction and sentence.
Petitioner filed the pending §2255 motion essentially asserting three grounds for relief: (1) that his trial counsel was ineffective in failing to file a pre-trial motion to sever count one from counts two and three; (2) that the court's jury instructions were erroneous; and, (3) that his appellate counsel was ineffective both for failing to raise a severance argument and for not challenging the court's jury instructions.
Upon due consideration of petitioner's motion, the government's response, and petitioner's reply, as well as the record as a whole, the court finds that petitioner is not entitled to relief under §2255.
The charge at count one of the superseding indictment arose from a traffic stop conducted by the Aliquippa Police around 2:00 a.m. on August 23, 2007. Aliquippa Police Sergeant Robert Sealock was on routine patrol with another officer when he observed a Buick Sedan pull in front of the patrol vehicle. Loud music was emanating from the vehicle, which also had dark-tinted windows. Sealock initiated a traffic stop because the tinted windows constituted a violation of the Pennsylvania Motor Vehicle Code,
As Sealock approached the car, he observed petitioner leaning from the driver's seat toward the passenger side. When Sealock addressed him, petitioner appeared nervous, and was sweating and stuttering. Sealock recognized petitioner based upon prior encounters with him and was aware that he had been involved in several incidents involving firearms and that he associated with drug traffickers. Sealock noticed an open box of plastic sandwich baggies inside the car, which, based on his training and experience, he knew are sometimes used to package narcotics.
Sergeant Sealock asked petitioner to step out of the car. Upon conducting a patdown of petitioner's outer clothing, Sealock felt a large bulge in petitioner's right pocket, which, based on his experience, felt like crack cocaine. He retrieved a sandwich baggie from petitioner's right pocket and placed him under arrest. Sealock opened the baggie and counted eighty-seven individually wrapped rocks, which were weighed at 8.2 grams and confirmed to be crack cocaine by the Pennsylvania Police Crime Lab. Also found on petitioner were a cell phone and $160. The Buick was inventoried and no drug use items, such as crack pipes, were found in the car or on petitioner's person.
The charges at counts two and three of the superseding indictment arose from another traffic stop conducted by Sergeant Sealock on March 5, 2008. While responding to a call for back-up on an unrelated traffic stop, Sealock and another officer observed an Oldsmobile Alero pass a vehicle in a no-passing zone. Sealock activated the patrol car's lights. The Alero did not move over but instead accelerated, traveling approximately 50 miles per hour in a 25 mile per hour speed zone and speeding through a stop sign. The Alero eventually pulled over and Sealock nudged it with his police car. Petitioner was driving the Alero and was the lone occupant of the vehicle.
Petitioner jumped out of the Alero and proceeded toward the middle of the road with Sealock in pursuit. Sealock caught petitioner and placed him under arrest. A pat-down search of petitioner found three cell phones. Officer Eric McPhilomy arrived on the scene and informed Sealock that he had seen crack cocaine inside the Alero. Sealock then looked inside the Alero with a flashlight and observed a piece of suspected crack cocaine inside a plastic baggie on the floor in front of the driver's seat. Sealock and McPhilomy took photographs of the scene and then had the Alero towed to a garage.
A subsequent search of the Alero pursuant to a warrant resulted in the discovery of crack cocaine in a sandwich baggie arid a handgun. The weapon was found under the driver's seat, with the handle facing towards the front of the car, in close proximity to the baggie of crack cocaine.
A federal prisoner may move the sentencing court to vacate, set aside or correct a 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(a). In general, §2255 is a vehicle to cure only jurisdictional errors, constitutional violations, proceedings that resulted in a "complete miscarriage of justice" or events that were "inconsistent with the rudimentary demands of fair procedure."
Petitioner's first ground for §2255 relief is that his trial counsel, Attorney Brown, was ineffective in failing to file a pre-trial motion to sever. Petitioner avers that count one of the superseding indictment was improperly joined with counts two and three because there was no transactional nexus between those counts. He further argues that, at a minimum, he was prejudiced by Attorney Brown's failure to file a motion for relief from prejudicial joinder under Fed.R.Crim.P. 14(a). The court finds no merit to this claim.
In order to prevail on a claim that counsel rendered constitutionally ineffective assistance a petitioner must demonstrate; (1) that counsel's performance fell below an objective standard of reasonableness;
The first prong requires the petitioner to demonstrate that counsel's performance was deficient. The assessment begins with a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance" and the court's scrutiny of counsel's performance is to be highly deferential.
If deficient performance is established, the second prong of the
"[T]here is no reason for a court deciding an ineffective assistance claim ... to address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies ... [i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed."
As already noted, to satisfy the second prong of the
First, petitioner cannot show prejudice arising from the failure to file a severance motion because he is unlikely to have prevailed on such a motion. Under Fed.R.Crim.P. 8(a), offenses may be joined if they "are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan." (emphasis added). "`Although the standards of Rule 8(a) and 8(b) [governing joinder of defendants] both require a `transactional nexus' between the offenses or defendants to be joined, Rule 8(a) is more permissive than Rule 8(b) because Rule 8(a) allows joinder on an additional ground, i.e., when the offenses are of the same or similar character.'"
Here, count one properly was joined with count two because they are offenses of the same or similar character. Count one and count two both are based on similar conduct, petitioner's possession of crack cocaine in a vehicle, and implicate the same criminal statute, i.e., 21 U.S.C. §§841(a)(1) and (b)(1)(B)(iii). Because counts one and two are similar but for the fact they involve controlled substances found in different vehicles on different dates, they properly were joined under Rule 8(a). See
Nor can petitioner show that the outcome of the trial would have been different had Attorney Brown filed, and had the court granted,
To prevail on a severance claim, a defendant must "pinpoint clear and substantial prejudice resulting in an unfair trial."
Here, petitioner summarily states that the joinder for trial of the offense charged at count one with the offense charged at count two led to his conviction of the offense charged at count three. Even assuming that was true, however, "the potential for the type of prejudice ... of which [petitioner] complains is the same potential for prejudice that every criminal defendant faces when multiple counts are tried together."
Moreover, petitioner has advanced nothing beyond mere conjecture to show that the jury was unable to compartmentalize the evidence as to each count. Here, the evidence as to each count was quite discrete, as the incident underlying count one occurred on a separate date than the incident underlying counts two and three, and the jury explicitly was instructed that they were to consider each count separately and return a separate verdict of guilty or not guilty for each count.
"There is generally no basis for finding a Sixth Amendment violation unless the accused can show how specific errors of counsel undermined the reliability of the finding of guilt."
Petitioner's second ground for §2255 relief is that the court's jury charge was "fatally flawed" because it "improperly commingled" counts one and two of the superseding indictment, thereby confusing the jury as to which of those two drug trafficking crimes count three referred. In essence, he contends that this confusion may have led the jury to conclude that he carried a firearm during and in relation to, or possessed a firearm in furtherance of, the drug trafficking crime charged at count one, rather than the drug trafficking crime charged at count two. Because petitioner did not object to the court's jury charge on this ground at trial, nor raise this claim on direct review, he is procedurally barred from raising it for the first time in a §2255 motion.
The United States Supreme Court has held that "[w]here a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either `cause' and actual `prejudice', or that he is `actually innocent.'"
It is well-settled that "[j]ury instructions `may not be evaluated in artificial isolation,' but rather `must be evaluated in the context of the overall charge.'"
Here, petitioner contends that it was error for this court, after reading count one of the superseding indictment verbatim, to instruct the jury that "Count two of the indictment is identical to Count one, except that it charges defendant with possession with intent to distribute 5 grams or more or cocaine base in the form commonly known as crack on March 5, 2008." (Doc. No. 160 at 135). Petitioner does not argue that this charge incorrectly states the law, but instead argues that it is confusing because it instructs that counts one and two are "identical" when in fact they charge crimes committed on different dates.
There is nothing erroneous about the charge as given as the challenged language clearly states that count two is identical to count one "except" that it charges possession with intent to distribute on March 5, 2008, rather than on August 23, 2007. This statement is accurate — but for the dates of possession, every single word of count one is the same as every single word of count two, and both counts charge violations of the same provision of the United States Code. Although for the sake of brevity the court did not read count two verbatim, a copy of the indictment nevertheless was provided to the jurors for use in their deliberations, to which they could have referred if they had any question as to the charge set forth at count two.
The challenged language also must be read in the context of the entire charge, as the elements that the government had to prove at both counts one and two were the same. Thus, in order to prevent any confusion in this regard, the court repeatedly made clear that each element had to be shown "as to
Curiously, despite his accusation that the court's charge "commingled" counts one and two, petitioner does not argue here that the challenged language caused the jury to confuse the offenses charged in those two counts. Instead, he suggests that the court's instruction somehow confused the jurors as to which of the two drug trafficking offenses charged at count one and two that count
The jury initially was advised that they were to consider each count separately and return a separate verdict of guilty or not guilty for each count. (Doc. No. 160 at 134). Specifically, they were instructed that "[w]hether you find the defendant guilty or not guilty as to a count should not necessarily affect your verdict as to any other count. Except if you find the defendant not guilty at Count Two, he must also be found not guilty at Count Three." (
The jury also was advised that if they found petitioner not guilty at count two they also were required to find him not guilty at count three. (
Reading the charge as a whole, the court is satisfied that there is no possibility that the charge engendered so much confusion on the part of the jurors that they inadvertently found petitioner carried a firearm during and in relation to, or possessed a firearm in furtherance of, the charge set forth at count one rather than the charge set forth at count two, and petitioner has offered nothing more than unsupported conjecture to the contrary. Because the charge was proper, petitioner cannot show prejudice from the failure of either of his attorneys to raise this meritless challenge, nor the prejudice that would be necessary to overcome his procedural default of this claim under
Petitioner's final ground for §2255 relief is that his appellate counsel, Attorney Markovitz, was ineffective in failing to raise on direct appeal a severance argument and for failing to challenge the court's jury instruction. This argument likewise has no merit.
Due process entitles a criminal defendant to the effective assistance of appellate counsel on direct appeal,
However, the right to appellate counsel "is limited to the first appeal as of right ... and the attorney need not advance every argument, regardless of merit, urged by the appellant."
Here, Attorney Markovitz obviously made a tactical decision to pursue on appeal the arguments which, in his professional judgment, he deemed to have the greatest chance for success, and this court will not second-guess that decision. In any event, petitioner cannot show prejudice from the decision of Attorney Markovitz to raise either a severance issue or a challenge to the court's jury instruction because, as just explained, neither of these issues has merit and there is little likelihood that the appellate court would have reversed and ordered a new trial had either been raised on direct appeal.
Because petitioner can establish neither deficient performance of his appellate counsel nor prejudice, his third claim for §2255 relief also must be denied as a matter of law.
Local Appellate Rule 22.2 of the United States Court of Appeals for the Third Circuit directs that when a final order denying a motion under §2255 is entered a determination of whether a certificate of appealability should issue also shall be made. The issuance of a certificate of appealability is "[t]he primary means of separating meritorious from frivolous appeals."
Congress has mandated that "[a] certificate of appealability may issue ... only if the applicant has made a substantial showing of a denial of the constitutional right." 28 U.S.C. §2253(c)(2). As this court's foregoing discussion makes clear, petitioner has failed to make a substantial showing of a denial of a constitutional right. Accordingly, this court determines that a certificate of appealability should not issue in this case.
For the reasons set forth above, petitioner's motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. §2255 fails to raise a meritorious claim and must be denied as a matter of law.
An appropriate order will follow.
