IRENAS, Senior District Judge:
Presently before the Court is the amended motion of Ahmed Judge ("Petitioner") to vacate, set aside, or correct his April 2009 conviction, brought pursuant to 28 U.S.C. § 2255. (ECF No. 8). Petitioner filed his initial motion to vacate on or about May 6, 2013. (ECF No. 1). On May 15, 2013, Petitioner filed a motion to amend his motion to add several new claims. (ECF No. 6). This Court issued a Miller notice on May 30, 2013. (ECF No. 7). Petitioner thereafter filed his amended motion on August 29, 2013. (ECF No. 8). Respondent, United States of America ("Respondent" or "the Government"), thereafter filed a Response on July 31, 2014. (ECF No. 15, 18), to which Petitioner replied on or about January 30, 2015. (ECF No. 23, 25). Also before the Court is Petitioner's motion to file his reply brief nunc pro tunc and to exceed the page limit in that brief. (ECF No. 24). As this Court has considered Petitioner's reply brief in reaching its decision, and Respondents have not opposed the motion to file nunc pro tunc, this Court grants Petitioner's motion to file his reply nunc pro tunc and to exceed the page limit for such a reply. For the following reasons, however, the Court will deny Petitioner's § 2255 motion and deny Petitioner a certificate of appealability.
The Court of Appeals, in its opinion in United States v. Judge, 447 Fed.Appx. 409 (2011), cert. denied, ___ U.S. ___, 132 S.Ct. 2376, 182 L.Ed.2d 1025 (2012), provided the following summary of the relevant background facts underlying Petitioner's conviction:
Judge, 447 Fed.Appx. at 411-12.
This Court thereafter sentenced Petitioner to concurrent life sentences on counts one and two, a one hundred and twenty month sentence on count four to run concurrent with counts one and two, and a consecutive one hundred and twenty month sentence on count three. (Document 2 attached to ECF No. 15). Petitioner appealed his conviction and sentence. The Third Circuit affirmed on October 11, 2011. Judge, 447 Fed.Appx.
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, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962)), cert. denied 444 U.S. 865, 100 S.Ct. 135, 62 L.Ed.2d 88 (1979); see also Morelli v. United States, 285 F.Supp.2d 454, 458-59 (D.N.J.2003).
Under § 2255, a motion to vacate requires an evidentiary hearing "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 that petitioner is not entitled to relief as a matter of law, no hearing is required. Government of Virgin Islands v. Nicholas, 759 F.2d 1073, 1075 (3d Cir.1985); see also United States v. Tuyen Quang Pham, 587 Fed.Appx. 6, 8 (3d Cir.2014); Booth, 432 F.3d at 546 (evidentiary hearing is necessary only where the petitioner's claims are not conclusively resolved by the record). For the reasons set out below, Petitioner's claims are without merit, and therefore the record establishes that Petitioner is not entitled to relief as a matter of law. As such, no evidentiary hearing is required on Petitioner's § 2255 motion.
In his motion, Petitioner raises numerous arguments in support of his claim that trial counsel was constitutionally ineffective. Claims of ineffective assistance are governed by the two-prong test set forth in the Supreme Court's opinion in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To make out such a claim under Strickland, a petitioner must first show that "counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed by the Sixth Amendment." Id. at 687, 104 S.Ct. 2052; see also United States v. Shedrick, 493 F.3d 292, 299 (3d Cir.2007). To succeed on an ineffective assistance claim, a petitioner must also show that counsel's allegedly deficient
In evaluating whether counsel was deficient, the "proper standard for attorney performance is that of `reasonably effective assistance.'" Jacobs v. Horn, 395 F.3d 92, 102 (3d Cir.2005). A petitioner asserting ineffective assistance must therefore show that counsel's representation "fell below an objective standard of reasonableness" under the circumstances. Id. The reasonableness of counsel's representation must be determined based on the particular facts of a petitioner's case, viewed as of the time of the challenged conduct of counsel. Id. In scrutinizing counsel's performance, courts "must be highly deferential ... a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689, 104 S.Ct. 2052.
Even where a petitioner is able to show that counsel's representation was deficient, he must still affirmatively demonstrate that counsel's deficient performance prejudiced the petitioner's defense. Id. at 692-93, 104 S.Ct. 2052. "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693, 104 S.Ct. 2052. The petitioner must demonstrate that "there is a reasonable probability, 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." Id. at 694, 104 S.Ct. 2052; see also Shedrick, 493 F.3d at 299. Where a "petition contains no factual matter regarding Strickland's prejudice prong, and [only provides] ... unadorned legal conclusion[s] ... without supporting factual allegations," that petition is insufficient to warrant an evidentiary hearing, and the petitioner has not shown his entitlement to habeas relief. See Palmer v. Hendricks, 592 F.3d 386, 395 (3d Cir.2010). "Because failure to satisfy either prong defeats an ineffective assistance claim, and because it is preferable to avoid passing judgment on counsel's performance when possible, [Strickland, 466 U.S. at 697-98, 104 S.Ct. 2052]," courts should address the prejudice prong first where it is dispositive of a petitioner's claims. United States v. Cross, 308 F.3d 308, 315 (3d Cir.2002).
Petitioner first argues that his counsel was ineffective in that counsel failed to object to the Court's sentencing of Petitioner on counts two, three, and four of the indictment. Petitioner's argument, essentially, is that he is being punished multiple times for a single criminal event: the killing of Kenneth Fussell. Count two of the indictment charged Petitioner with murder in furtherance of either a continuing criminal enterprise or drug trafficking conspiracy in violation of 21 U.S.C. § 848(e)(1)(A), count three with murder using a firearm during a drug trafficking offense in violation of 18 U.S.C. §§ 924(c)(1) and 924(j), and count four with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Petitioner argues that receiving a punishment for all three offenses violates the Double Jeopardy Clause of the United States Constitution, and counsel was therefore ineffective in failing to object to this Court's sentence. The Government has also raised, and Petitioner in his reply adopted, the argument that count one, charging Petitioner with
The Double Jeopardy Clause of the United States Constitution "provides that no person shall `be subject for the same offence to be twice put in jeopardy of life or limb.'" United States v. Dixon, 509 U.S. 688, 695-96, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993) (quoting U.S. Const. amend. V). The clause protects individuals from both successive punishments and successive prosecutions for the same criminal offense. Id. at 696, 113 S.Ct. 2849. Although Courts generally turn to the test provided by Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), to evaluate claims that a petitioner has been twice sentenced for the same offense, that test "is not controlling when the legislative intent is clear from the face of the statute or the legislative history." United States v. Costa, 553 Fed. Appx. 227, 234 (3d Cir.2014) (quoting Garrett v. United States, 471 U.S. 773, 779, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985)). "Because `the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended[,] ... a Double Jeopardy challenge must fail if the statutory text clearly reflects a legislative intent to impose multiple sentences on a defendant for a single underlying transaction.'" Id. (quoting United States v. Berrios, 676 F.3d 118, 138 (3d Cir.2012)). "If, after inspection, Congress's intent remains unclear, cumulative sentencing poses no double jeopardy problem only if `each provision requires proof of a fact which the other does not, thereby satisfying Blockburger.'" Berrios, 676 F.3d at 138 (quoting Blockburger, 284 U.S. at 304, 52 S.Ct. 180). As the Blockburger test is merely a means of discerning congressional intent, it does not control where there is a clear contrary indication of legislative intent. Id. at 138-39.
"Under the concurrent sentence doctrine, a court has `discretion to avoid resolution of legal issues affecting less than all counts in an indictment if at least one will survive and sentences on all counts are concurrent.'" Parkin v. United States, 565 Fed.Appx. 149, 152 (3d Cir. 2014) (quoting United States v. McKie, 112 F.3d 626, 628 n. 4 (3d Cir.1997)); see also United States v. Am. Investors of Pittsburgh, Inc., 879 F.2d 1087, 1100 (3d Cir. 1989). The concurrent sentence doctrine, however, is inapplicable where the challenged conviction at issue "carries continued collateral consequences." Id. (citing Spencer v. Kemna, 523 U.S. 1, 8-12, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998); Kendrick v. Dist. Attorney of Cnty. of Philadelphia, 488 F.3d 217, 220 (3d Cir.2007)). Unlike on direct review, as habeas relief is available only to challenge custody, and not the imposition of fines or special assessments, that a separate fine or special assessment was imposed does not qualify as a continued collateral consequence sufficient to defeat application of the concurrent sentence doctrine in the § 2255 context. See Ryan v. United States, 688 F.3d 845, 849 (7th Cir.2012); Ridley v. Smith, 179 Fed.Appx. 109, 110-11 (3d Cir.2006) ("§ 2255's language clearly and unambiguously limits its applicability to defendants seeking release from custody ... [i]t is not available to those ... who challenge only fines or restitution orders"); cf. Ray v. United States, 481 U.S. 736, 107 S.Ct. 2093, 95 L.Ed.2d 693 (1987) (special assessments sufficient to make sentences not concurrent on direct review). Thus the concurrent sentence doctrine is still applicable under § 2255 where the only consequence that is not
Here, Petitioner was sentenced to concurrent life sentences on counts one and two, one hundred and twenty months' imprisonment for count four to be served concurrently with the life sentences on counts one and two, and a term of one hundred and twenty months on count three to run consecutive to the other sentences. (Document 2 attached to ECF No. 15 at 2). Even assuming arguendo that count one is a lesser included offense of count two, and it would be improper to impose a sentence on both count four and count two simultaneously, this Court need not address any such argument as Petitioner received sentences on counts one and four which ran concurrently with the natural life sentence on count two which would remain. As Petitioner would still be subject to a life sentence on count two even given those assumptions, the concurrent sentence doctrine applies, and this Court need not consider Petitioner's arguments as to the alleged double jeopardy concerns arising from the imposition of concurrent sentences on counts one, two, and four. Parkin, 565 Fed.Appx. at 152.
The only remaining claim as to Petitioner's sentence, then, is his claim that the sentence on count three was multiplicious of the concurrent sentence rendered on the remaining counts, and that counsel was therefore ineffective for failing to challenge that sentence. Petitioner's argument as to count three is without merit, however. The clear and unambiguous text of 18 U.S.C. § 924(c) clearly establishes that Congress intended punishment under § 924(c) and § 924(j) to be subject to separate punishment in addition to any punishment imposed on the underlying crime. See 18 U.S.C. § 924(c)(1)(A) ("any person who [violates § 924] shall, in addition to the punishment provided for [the underlying] crime of violence or drug trafficking crime ... be sentenced [under § 924]"); § 924(c)(1)(D)(ii) ("no term of imprisonment imposed on a person under this subsection shall run concurrently with any other term of imprisonment imposed on the person, including any term of imprisonment imposed for the crime of violence or drug trafficking during which the firearm was used, carried, or possessed"). Congress clearly intended criminals to receive an additional punishment for violations of § 924 over and above that received for the underlying criminal conduct, and that such punishment should run consecutively to the sentence for the underlying crime. As Congress's intent is clear and dispositive of Petitioner's double jeopardy claims as to count three, this Court need not refer to the Blockburger test. Because Petitioner is not entitled to habeas relief as to the sentences on counts one, two, and four pursuant to the concurrent sentence doctrine, and because the plain text of § 924 clearly establishes a congressional intent to impose an additional sentence, Petitioner has failed to show that he has a viable double jeopardy claim, and as such has failed to show that he is entitled to relief under § 2255 on this claim as counsel was not deficient in failing to challenge the additional sentence imposed on count three.
Petitioner next argues that counsel was ineffective in that he did not call certain witnesses at trial, did call Ruben Lozada, and as a result of these decisions failed "to
As to the two witnesses whose purported testimony was first raised in Petitioner's reply brief, this Court notes that a "moving party may not raise new issues and present new factual materials in a reply brief that it should have raised in its initial brief." D'Allessandro v. Bugler Tobacco Co., Civil Action No. 05-5051, 2007 WL 130798, at *2 (D.N.J. Jan. 12, 2007) (quoting Int'l Raw Materials, Ltd. v. Stauffer Chem. Co., 978 F.2d 1318, 1327 n. 11 (3d Cir.1992)). This doctrine extends to the habeas context as "[b]asic fairness requires that an opposing party have a fair notice of his adversary's claims, as well as an opportunity to address those claims." Soto v. United States, Civil Action No. 04-2108, 2005 WL 3078177, at *6 (D.N.J. Nov. 16, 2005); see also Thompson v. United States, Civil Action No. 12-1312, 2015 WL 1344793, at *6 n. 9 (D.N.J. Mar. 23, 2015). The prohibition against raising new facts and arguments in reply is especially applicable where, as here, a Petitioner was provided a Miller notice advising him that all claims must be presented in one § 2255 motion and Petitioner responded to that notice by the filing of an amended petition in which Petitioner could easily have raised the points he now seeks to raise in reply. See, e.g., Rodriguez v. United States, Civil Action No. 04-158, 2005 WL 2007033, at *9 n. 7 (D.N.J. Aug. 22, 2005). This Court therefore need not, and will not, consider Petitioner's arguments regarding counsel's failure to call Tralanna Redd or Shanel Nelson as Petitioner was provided ample opportunity to include those claims in his amended motion, but chose not to do so, instead waiting to raise these claims for the first time in his reply brief to which the United States does not have an opportunity to respond.
Petitioner challenges counsel's decision as to which witnesses to call at trial. Where a petitioner challenges his counsel's decision as to which witnesses to call, courts "are `required not simply to give [the] attorney[ ] the benefit of the doubt, but to affirmatively entertain the range of possible reasons [petitioner's]
Petitioner first challenges counsel's refusal to call Dr. Bogacki to the stand. Petitioner argues that Bogacki could have provided Petitioner's version of the events which occurred on the night of the Fussell murder and could have given explanations for Petitioner's behavior. Petitioner fails to provide an affidavit or other supporting documentation in support of his claims that Bogacki would have so testified. Preliminarily, this Court notes that Petitioner's failure to provide a sworn statement as to the testimony Bogacki, and, for that matter, Jevon Lewis, purportedly would have given at trial prevents Petitioner from being able to show that he suffered any prejudice by counsel's failure to call them as witnesses. See, e.g., Tolentino v. United States, Civil Action No. 13-4168, 2014 WL 3844807, at *3 (D.N.J. July 31, 2014) ("[a petitioner's] failure to include a sworn statement regarding the nature of [a witness's] proposed testimony is fatal to his making a prima facie showing of prejudice"); see also Duncan v. Morton, 256 F.3d 189, 201-02 (3d Cir.2001).
Putting aside the fact that the failure to provide such a sworn statement prevents Petitioner from being able to show any prejudice as a result of counsel's failure to call Bogacki or Lewis, the record before this Court clearly establishes that the choice not to call Bogacki was based on sound trial strategy. As the memorandum submitted by Petitioner's former counsel clearly shows (see Document 1 attached to ECF No. 18), counsel interviewed Dr. Bogacki in advance of making a decision whether to call him. Counsel found that the statements that Petitioner made to Bogacki contradicted credible statements made by Sergeant Strang during his testimony, and that counsel had used the cross examination of Strang to show that Petitioner's failure to give himself up to police would have been a natural and non-suspect action under the circumstances. (Id. at 1). Thus, Bogacki's testimony as to Petitioner's version of events would have run counter to counsel's assertion during the Strang cross that Petitioner acted naturally when confronted by police the night of the shooting and Petitioner's behavior did not suggest guilt. (Id.). Counsel also notes in his memo that Bogacki's recollection of Petitioner's claims included information that ran directly afoul of the physical evidence recovered when Petitioner was arrested. (Id.). Counsel therefore felt that Bogacki's testimony would have either confused the jury or would have outright harmed the credibility of Petitioner's statements to police that he had not shot Fussell. (Id. at 12). Counsel also noted that Bogacki would be subject to cross examination which could result in the revelation of Petitioner's previous conviction for manslaughter. (Id. at 2). Based on the information collected from Bogacki, counsel therefore felt that calling the doctor would hurt, rather than aid Petitioner's case, and made an informed and strategic decision not to call Bogacki. (Id. at 2-3). Indeed, counsel's memo indicates that both
As to Jevon Lewis, Petitioner has also failed to provide any sworn statement as to what testimony Lewis would have given. Indeed, as Lewis was a co-defendant in Petitioner's case, counsel could not have compelled Lewis to testify even had counsel desired to do so. Another flaw in Petitioner's argument as to Lewis is that Lewis, during a proffer session with the Government following his conviction admitted his role in the conspiracy at issue. As Petitioner himself states, Lewis admitted that
(Petitioner's reply brief, ECF No. 23 at 7). Petitioner has therefore essentially admitted that Lewis's testimony could only have harmed him. While Petitioner seems to believe that these purported statements would indicate his innocence, they would clearly have harmed Petitioner had they been made at trial, and counsel would therefore have acted correctly in deciding not to call Lewis. In any event, as Petitioner has failed to provide any sworn testimony as to what Lewis would have testified, he cannot demonstrate prejudice and therefore cannot show that counsel was ineffective for failing to call Lewis. Duncan, 256 F.3d at 201-02; Tolentino, 2014 WL 3844807 at *3.
Petitioner's final claim as to counsel's alleged deficiency in choosing which witnesses to call is his assertion that counsel was ineffective in that he chose to call Ruben Lozada as a defense witness. Petitioner bases this assertion on his argument that Lozada was not a credible witness and thus suffered on cross examination, something he alleges counsel would have realized had he spoken with Lozada for more than a few minutes. As to Petitioner's assertion that counsel met only briefly with Lozada, records provided by counsel show that he and co-counsel met and spoke with Lozada for half an hour before choosing to call him to the stand. (Document 2 attached to ECF No. 18). Petitioner's assertion that counsel did not take more than a few minutes to speak with Lozada before calling him appears to be meritless.
More importantly, the decision to call Lozada was a perfectly sound strategic choice. Although Lozada's credibility may have been questionable, counsel chose to call him based at least in part on a Brady disclosure provided by the government indicating that Lozada had told the Government that Raymond Morales had told Lozada that Morales had killed Fussell himself. (See Document 6 attached to ECF No. 15). Lozada testified that to this same information at trial. (See Document 3 attached to ECF No. 15 at 3-5). Although Lozada's credibility was challenged on cross examination, no information elicited from Lozada in any way harmed Petitioner or would suggest
Petitioner also argues that counsel was ineffective for failing to move to dismiss count three of the indictment as time barred as the superseding indictment in which Petitioner was first charged with murder with a firearm in the course of a drug trafficking offense was returned more than five years after the events in question occurred. Movant bases his argument on the assertion that 18 U.S.C. § 924(c) is subject to a five year statute of limitations, and his assertion that § 924(j) is merely a sentencing enhancement that cannot increase the statute of limitations. Petitioner is incorrect.
Petitioner bases his argument on 18 U.S.C. § 3282(a). That statute provides that "[e]xcept as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense,
Petitioner next argues that counsel was deficient for failing to object to the
Petitioner next contends that counsel was ineffective for failing to object to the Government's "vouching" for the credibility of various witnesses during summation. As the Third Circuit has explained:
Here, Petitioner challenges the following exchanges from the Government's summation:
(Excerpts of the Government's closing and rebuttal, Document 7 attached to ECF No. 15 at 1-20).
Having reviewed these statements which Petitioner challenges and the totality of the Government's closing and rebuttal, it is clear that the Government did not engage in improper vouching. It is clear from the above excerpts that the Government made a fair argument regarding the credibility of its witnesses not based on its own opinion or evidence outside of the record, but rather based on what was testified to by each witness as opposed to what they could have said had they been possessed of a motive to fabricate information. That these arguments were made in response or as a preface to defense counsel's arguments attacking the credibility of these witnesses makes these arguments entirely proper. As the Government's statements in support of the witness's credibility were based neither on the Government's personal knowledge nor on information outside of the record of trial, these were fair comments and do not run afoul of the prohibition on vouching during summation. Lore, 430 F.3d at 211-12, Walker, 155 F.3d at 187. Indeed, the only reference to the Government's opinion in these excerpts Petitioner challenges was a statement by the Government as to the abstract rhetorical effectiveness of arguments as to why lack of enhancement does not support credibility, and was made without any accompanying statement that any given witness was credible. Likewise, the use of the phrase "the Government submits" in no way transforms the proper argument recounted above into improper vouching as it is no more than a statement that the prosecutor's statements represent the Government's arguments. Walker, 155 F.3d at 188-89. Petitioner has thus failed to show that the Government engaged in improper vouching. As the Government did not engage in improper vouching, any motion to strike on that basis would have been denied, and counsel's failure to make such a motion does not constitute ineffective assistance of counsel. Aldea, 450 Fed.Appx. at 152; Werts, 228 F.3d at 203; Parrish, 150 F.3d at 328-29.
Petitioner argues that, even if individually counsel's errors are not sufficient to establish ineffective assistance, those errors cumulatively violate his Sixth Amendment rights. "[E]rrors that individually do not warrant habeas relief may do so when combined." Albrecht v. Horn, 485 F.3d 103, 139 (3d Cir.2007); see also Marshall v. Hendricks, 307 F.3d 36, 94 (3d Cir.2002). Cumulative error only warrants habeas relief, however, where a petitioner can show that he was actually prejudiced. Albrecht, 485 F.3d at 139. A petitioner seeking to make out a cumulative error claim must therefore show that the errors committed at trial together "had a substantial and injurious effect or influence in determining the jury's verdict." Fahy v. Horn, 516 F.3d 169, 205 (3d Cir.2008). Essentially, Petitioner must demonstrate that the errors in combination would be sufficient to show Strickland prejudice. Albrecht, 485 F.3d at 139. As this Court has expressed above, Petitioner has failed to demonstrate that counsel was deficient, and certainly has not demonstrated that any of counsels alleged failures resulted in actual prejudice to his case. In light of
Petitioner also argues that counsel was ineffective in that he failed to object to an alleged violation of Petitioner's constitutional right to a speedy trial which occurred when he was held first by the State and later by the Government prior to trial.
Although Petitioner argues as to both his state and federal periods of detention, Battis makes clear that the period to be considered for his speedy trial claim would have begun when he was indicted on federal charges. Petitioner's claim therefore only concerns the delay starting on February 1, 2006, when he was indicted, through January 7, 2008, the first day of Petitioner's trial. (Criminal Action No. 06-76, ECF No. 1, 193). As the delay between the initial indictment and the beginning of trial is nearly two years, and certainly more than fourteen months, this Court must consider the remaining Barker factors.
Petitioner's case involved the prosecution of a complex drug conspiracy case involving numerous defendants and significant amounts of discovery. Petitioner's matter was therefore continued between February 15, 2006, a mere two weeks after the indictment and immediately following the arraignment of the final defendant, and April of 2007 pursuant to orders to continue requested by all parties, including Petitioner through his counsel. (Criminal Action No. 06-76 at ECF No. 56, 68, 74, 79, 82). Petitioner's trial was further delayed between April of 2007 and September 10, 2007 by various omnibus motions and motions to relieve counsel filed by Petitioner and his co-defendants. (See, e.g., Criminal Action No. 06-76 at ECF No. 92, 125, 127). While the period between September 10 and October 9, 2007 can be attributed to the Government's motions in limine, and thus falls into the second category of Government delay, the period between October 9, 2010 and the onset of trial on January 7, 2008, can be fairly attributed to various requests for delay and motions filed by Petitioner and his co-defendants. (See Criminal Action No. 06-76 at ECF No. 133, 143, 150, 177, 180, 183). As such, it appears that only approximately a month and a half of the delay can be attributed to the Government, whereas several months of delay can be attributed to Petitioner and his co-defendants. As such, when one subtracts delay attributable to Petitioner and the defense from that attributable to the Government, no delay remains to prejudice Petitioner's rights. The reason for the delays of Petitioner's trial therefore weigh against any claim that his speedy trial rights were violated.
As Defendant did not make a speedy trial claim during the pendency of his federal prosecution,
Finally, Petitioner argues that counsel was ineffective in that counsel failed to challenge the sufficiency of the evidence presented against him in regards of count two, murder in furtherance of a continuing criminal enterprise or drug trafficking conspiracy, through post-trial motions. The inherent flaw in Petitioner's argument, however, is that counsel did raise an argument as to the sufficiency of the evidence presented as to count two on appeal, and the Third Circuit rejected that claim on the merits:
Judge, 447 Fed.Appx. at 412-14 (internal citations and footnotes omitted).
As the Third Circuit made clear on direct appeal, the government presented more than sufficient evidence to convict Petitioner of murder in furtherance of a drug-trafficking conspiracy. Had counsel moved to dismiss count two of the indictment for insufficient evidence, such a motion most certainly would have failed. Counsel was therefore not deficient for failing to move to dismiss count two on that basis, and Petitioner has therefore failed to show that counsel was ineffective in failing to make that motion. Aldea, 450 Fed.Appx. at 152; Werts, 228 F.3d at 203; Parrish, 150 F.3d at 328-29.
Pursuant to 28 U.S.C. § 2253(c), a petitioner may not appeal from the final order in a proceeding under § 2255 unless he has "made 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, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). As Petitioner's claims are clearly without merit, 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 adequate to deserve encouragement to proceed. As such, no certificate of appealability shall issue.
For the reasons stated above, Petitioner's motion to file his reply nunc pro tunc
Judge, 447 Fed.Appx. at 415 n. 11.
