OPINION

ROBERT B. KUGLER, District Judge.

I. INTRODUCTION

Petitioners Dritan Duka, Shain Duka and Eljvir Duka (collectively referred to as the "Dukas" in this Opinion), seek relief through counsel under 28 U.S.C. § 2255 from their federal convictions and sentences.1 The Dukas were convicted after a jury trial (along with their coconspirators Mohamed Shnewer and Serdar Tatar) of conspiracy to murder members of the United States military amongst other charges. The Dukas raise seven ineffective assistance of counsel claims in their motions; specifically: (1) denial of their right to testify ("Claim I"); (2) failure to request a jury instruction on the First Amendment ("Claim II"); (3) failure to object to expert testimony ("Claim III"); (4) failure to move for voir dire after a juror reaction to a video played at trial ("Claim IV"); (5) appellate counsel's failure to argue that a conversation was admissible under Federal Rule of Evidence 803(3) ("Claim V"); (6) failure to request a hearing on a missing recording ("Claim VI"); and (7) failure to introduce a video recording ("Claim VII"). The government has filed an opposition which asserts that the claims should be denied on the merits. For the following reasons, the Court will order an evidentiary hearing on Claim I, but will deny relief on the remaining claims the Dukas have raised.

II. FACTUAL AND PROCEDURAL BACKGROUND

United States v. Duka, 671 F.3d 329, 333-35 (3d Cir. 2011).

Relevant to this Opinion, the Dukas were charged with: (1) conspiracy to murder members of the United States military in violation of 18 U.S.C. §§ 1114 & 1117 ("Count I"); (2) attempt to murder members of the United States military in violation of 18 U.S.C. § 1114 ("Count II"); (3) possession or attempted possession of firearms in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A) and 924(c)(1)(B)(ii) ("Count III"); and (4) possession of firearms by an illegal alien in violation of 18 U.S.C. § 922(g)(5) ("Count VII"). Additionally, Dritan and Shain Duka were charged with possession of machineguns in violation of 18 U.S.C. § 922(o). The Dukas pled not guilty and went to trial. A jury found Dritan and Shain Duka guilty of the following: (1) conspiracy to murder members of the United States military, (2) possession or attempted possession of firearms in furtherance of a crime of violence; (3) possession of machineguns; and (4) possession of firearms by an illegal alien. Both Dritan and Shain Duka received a life sentence. Eljvir Duka was convicted by a jury of conspiracy to murder members of the United States military and possession of firearms by an illegal alien. He was also sentenced to life imprisonment. The jury found the Dukas not guilty of attempt to murder members of the United States military and found Eljvir Duka not guilty of Count III. The United States Court of Appeals for the Third Circuit affirmed the judgment and conviction as to the Dukas on December 28, 2011. See Duka, 671 F.3d 329.

The Dukas jointly filed a counseled § 2255 motion raising several claims.2 The government has filed a response in opposition and the Dukas have filed a joint reply.3

III. LEGAL STANDARD FOR § 2255 MOTION

A motion to vacate, set aside or correct a sentence of a person in federal custody pursuant to 28 U.S.C. § 2255 entitles a prisoner to relief if "the court finds . . . [t]here has been such a denial or infringement of the constitutional rights of the prisoner as to render judgment vulnerable to collateral attack." 28 U.S.C. § 2255(b). "In considering a motion to vacate a defendant's sentence, `the court must accept the truth of the movant's factual allegations unless they are clearly frivolous based on the existing record.'" United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005) (quoting Gov't of Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989)) (citing R. Governing § 2255 Cases R. 4(b)). A District Court "is required to hold an evidentiary hearing `unless the motion and files and records of the case show conclusively that the movant is not entitled to relief.'" Id. (quoting Forte, 865 F.2d at 62). The Third Circuit has stated that this standard creates a "`reasonably low threshold for habeas petitioners to meet.'" Id. (quoting United States v. McCoy, 410 F.3d 124, 134 (3d Cir. 2005) (quoting Phillips v. Woodford, 267 F.3d 966, 973 (9th Cir. 2001))). Accordingly, this Court 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." Id. (citing McCoy, 410 F.3d at 134).

IV. INEFFECTIVE ASSISTANCE OF COUNSEL STANDARD

All of the Dukas' claims implicate whether they received ineffective assistance of counsel. The Sixth Amendment guarantees effective assistance of counsel. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court articulated the two-prong test for demonstrating when counsel is deemed ineffective. First, the petitioner must show that considering all of the circumstances, counsel's performance fell below an objective standard of reasonableness. See id. at 688; see also Grant v. Lockett, 709 F.3d 224, 232 (3d Cir. 2013) (noting that it is necessary to analyze an ineffectiveness claim in light of all of the circumstances) (citation omitted). A petitioner must identify the acts or omissions that are alleged not to have been the result of reasonable professional judgment. See Strickland, 466 U.S. at 690. Under this first prong of the Strickland test, scrutiny of counsel's conduct must be "highly deferential." See id. at 689. Indeed, "[c]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690. The reviewing court must make every effort to "eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. at 689. If counsel makes "a thorough investigation of law and facts" about his plausible options, the strategic choices he makes accordingly are "virtually unchallengeable." Gov't of Virgin Islands v. Weatherwax, 77 F.3d 1425, 1432 (3d Cir. 2006) (citing Strickland, 466 U.S. at 690-91). If, on the other hand, counsel pursues a certain strategy after a less than complete investigation, his choices are considered reasonable "to the extent that reasonable professional judgments support the limitations on investigation." Rolan v. Vaughn, 445 F.3d 671, 682 (3d Cir. 2006) (citing Strickland, 466 U.S. at 690-91).

The second prong of the Strickland test requires the petitioner to affirmatively prove prejudice. See 466 U.S at 693. Prejudice is found where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Id.; see also McBridge v. Superintendent, SCI Houtzdale, 687 F.3d 92, 102 n.11 (3d Cir. 2012). "This does not require that counsel's actions more likely than not altered the outcome, but the difference between Strickland's prejudice standard and a more-probable-thannot standard is slight and matters only in the rarest case. The likelihood of a different result must be substantial, not just conceivable." Harrington v. Richter, 562 U.S. 86, 111-12 (2011) (internal quotation marks and citations omitted).

"With respect to the sequence of the two prongs, the Strickland Court held that `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. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed.'" Rainey v. Varner, 603 F.3d 189, 201 (3d Cir. 2010) (quoting Strickland, 466 U.S. at 697). Additionally, "claims of ineffective assistance of appellate counsel are also governed by the Strickland standard." Lusick v. Palakovich, 270 F. App'x 108, 110 (3d Cir. 2008) (citing United States v. Mannino, 212 F.3d 835, 840 (3d Cir. 2000)).

V. DISCUSSION

A. Claim I — Denied Right to Testify

The Dukas collectively claim that their decision not to testify was the result of attorney coercion. A defendant has the constitutional right to testify on his own behalf at trial. See Rock v. Arkansas, 483 U.S. 44, 51-52 (1987). "The right is personal and can be waived only by the defendant, not defense counsel." Unites States v. Leggett, 162 F.3d 237, 245 (3d Cir. 1998) (citations omitted). "If a defendant does waive this right, the waiver must be knowing, voluntary and intelligent." Id. (citations omitted). Where a petitioner claims that his attorney was ineffective by denying him the right to testify, the Strickland standard is used to analyze the claim. See Palmer v. Hendricks, 592 F.3d 386, 394 (3d Cir. 2010) (citations omitted).

The Dukas did not testify at trial. However, the Dukas claim that they did not voluntarily waive the right to testify at their trial because their decision was the product of coercion. Shain Duka filed a declaration whereby he states that he told his attorney, Mr. Michael Riley, Esq., before and during his trial that he wanted to testify. However, near the end of the trial, Shain Duka recalls that the attorneys that represented him and his brothers told them that "not only should [they] not testify, they were not prepared to put any of [them] on the stand." (See Dkt. No. 14 at p. 6.)4 Shain Duka also declares that [h]ad I thought that my lawyer was prepared, I would have insisted on taking the witness stand[.]" (Id.)

Eljvir Duka's filed declaration is even more specific than Shain's as he states as follows:

(Dkt. No. 15 at p. 1.) Dritan Duka also recounts the purported coercion he felt from his counsel not to testify:

(Dkt. No. 16 at p. 9.) In addition to discussing the purported coercion each Duka brother felt, each discusses in their declarations what they would have testified to if they took the stand at their trial to varying degrees. The Dukas assert that their respective counsel's statements that they were unprepared to present their testimony at trial was coercive so as to make their decision not to testify unknowing, involuntary and unintelligent.

The government responds in opposition to this claim by initially citing to this Court's colloquy it had with the Dukas at trial regarding their right to testify. The government argues that the Dukas have now contradicted the assurances they gave the Court during trial regarding giving up their right to testify. It further claims that the Dukas provide no explanation why their attorneys would undertake such grievous professional misconduct. In support of its position, the government has attached the declarations of the Dukas' trial counsel. These three attorneys all state that they informed the Dukas of their right to testify and that they never told them that they were unprepared to place them on the witness stand.

At this stage of the proceedings, the record and files do not conclusively show that the Dukas are not entitled to federal habeas relief on this claim. Therefore, an evidentiary hearing on this claim will be ordered.

The parties dispute whether it is necessary to have the Dukas present at the evidentiary hearing. The government requests that the Court take evidence from the Dukas' three trial attorneys about their purported prevention of the brothers from testifying due to their lack of preparation. The Dukas' respective § 2255 attorneys could then cross-examine the three attorneys without the presence of the Dukas. Under the government's proposal, the Court could then presumably conclude that this claim could be decided without the need for the Dukas to testify, which would, according to the government, "avoid the costs and delay of transporting Petitioners from distant locations to Camden." (Dkt. No. 31 at p. 30.)

The Dukas argue that fundamental fairness dictate that they be produced in court for the evidentiary hearing. They claim that this Court will need to evaluate each witness' credibility. Furthermore, the Dukas assert that they should be present in court for the evidentiary hearing so that they can communicate with their respective § 2255 counsel and consult with them with respect to their cross-examination of their trial attorneys.

The Court finds that the Dukas should be made available in Court for their individual § 2255 hearings as this Court may need to judge the credibility of the Dukas compared to their respective trial counsel. Each Duka brother shall have his own separate evidentiary hearing. The Court will advise the parties on the dates and times of the evidentiary hearings in the near future.

B. Claim II — Failure to Request First Amendment Jury Instruction

In Claim II, the Dukas claim that their trial counsel was ineffective for failing to request a First Amendment jury instruction. They claim that the gravamen of their defense was that "while they may have believed that violent jihad was a religious obligation and may have even advocated that point of view to others, they never agreed to take any action." (Dkt. No. 13 at p. 47.) They claim that having embraced that defense, counsel should have requested an instruction that they could not be convicted of the conspiracy on the basis of protected speech. (See id.) The Dukas give a suggested example of an instruction that should have been requested by counsel:

(Id.)

As previously stated, a court can decide an ineffective assistance of counsel claim on prejudice grounds, if it is easier to do so. See Rainey, 603 F.3d at 201. Thus, the Dukas must show to a reasonable probability that the outcome of their trial would have been different had a First Amendment jury instruction been given.

The Dukas fail to show that the outcome of their trial would have been different to a reasonable probability as the proposed First Amendment instruction was unnecessary in light of the other jury instructions. To illustrate why the First Amendment instruction would not have changed the outcome of the trial to a reasonable probability, it is important to first reiterate the specific instructions that this Court did give for the jury's consideration in this case. On the count of conspiracy to murder United States military, this Court instructed the jury as follows:

(Trial Tr. at p. 6301-18.)

As the above instructions indicate, the jury was instructed that to find the Dukas guilty, they had to find that the government had proven that the defendant knew of the objective goal of the conspiracy. The jury was further instructed that the government had to prove that the defendant joined the conspiracy intending to achieve that goal or objective and that he shared a unity of purpose towards that goal with another conspirator. Furthermore, the jury was instructed that the government had to prove that each defendant was consciously aware of the nature of his actions and the surrounding facts and circumstances as specified in the offense charged. The jury also had to find that the government had proven that the defendant knew his conduct was unlawful and intended to do something that the law forbids; that is he acted with a purpose to disobey or disregard the law. It is also worth reiterating that the jury was instructed that the government had to prove that the defendant had entered into a conspiracy to commit premeditated murder.

The jury is deemed to have followed the instructions stated above.5 See Weeks v. Angelone, 528 U.S. 225, 234 (2000). In light of the requirements that the jury was given with respect to a potential guilty finding of conspiracy to commit premeditated murder, there is no reasonable probability that the outcome would have been different had counsel requested a First Amendment jury instruction. As the instructions cited above make clear, the jury had to find that the defendants were not engaged merely in speech that encouraged others to commit violence and were not merely expressing their ideas regardless of their popularity. A guilty finding also would require the jury to reject any notion that defendants were merely associating with others to advance collective beliefs and to pursue a wide variety of objectives, including, but not limited to political, social, economic, educational, religious, and cultural goals. The in depth jury instructions adequately addressed petitioners' First Amendment concerns raised in their § 2255 motions because of what the jury was required to find in reaching a guilty verdict.

The Court finds the Ninth Circuit's decision in United States v. Giese, 597 F.2d 1170 (9th Cir. 1979) instructive on this issue. In Giese, the defendant and his co-conspirators were vehemently opposed to the Vietnam War and were charged with conspiracy to bomb an Army recruiting station amongst other charges. See id. at 1175-76. One of the issues that Giese raised on appeal was that:

Id. at 1198. Ultimately, the Ninth Circuit found that the court's instructions sufficiently warned the jury that it could not convict Giese on the basis of legal conduct, such as peaceful opposition to the Vietnam War that was protected by the First Amendment. See id. The Ninth Circuit noted that the jury was instructed on the four material elements that were required to find that Giese had participated in the conspiracy; they were: (1) that the conspiracy existed; (2) that Giese willfully and knowingly became a member of the conspiracy with intent to further its objectives;

(3) that the conspiracy formed by at least two persons was for the purpose alleged, "namely, to commit and cause to be committed, certain offenses against the United States and other persons and institutions by means of or acts of violence, terrorism and destruction. . ."; and (4) that during the conspiracy that one of the members willfully and knowingly committed at least one of the overt acts alleged. See id. It was based on these conspiracy instructions that the Ninth Circuit found no error. Indeed, that Court stated as follows:

Id. (emphasis added).

As illustrated above, like the conspiracy instructions in Giese, this Court laid out the four elements that the government needed to prove for the jurors to find that the Dukas were guilty of conspiracy to murder members of the United States military. The jury was instructed that to find the Dukas guilty they had to find that they willfully and knowingly entered the conspiracy to murder members of the United States military.

Rather than being convicted simply for their speech, the government provided several acts that the Dukas undertook such that a First Amendment instruction would not have changed the outcome of their trial to a reasonable probability. Certainly, the Dukas words were important in placing their actions into context, but the evidence produced by the government included specific actions that the Dukas undertook to support a finding of a conspiracy. By way of example only, and with respect to the Dukas, this included paintball activities which the Dukas themselves classified as "training." It further included the purchase and collection of weapons. This included Dritan and Shain Duka purchasing AK-47s and M-16s from Omar. These acts could be considered in furtherance of the conspiracy.

Accordingly, in light of this Court's jury instructions that negated the possibility that the Dukas could be convicted based on their protected speech as well as the evidence produced at trial, this Court finds that the Dukas are not entitled to relief on Claim II.

C. Claim III — Failure to Object to Expert Testimony

In Claim III, the Dukas assert that their trial counsel was ineffective when they failed to object to the expert testimony of Evan Kohlmann and that appellate counsel was ineffective for failing to raise this issue on appeal. Mr. Kohlmann was qualified as an expert in the fields of Islamic terrorism and the use of digital media to promote terrorism without objection. He testified with respect to videos that were found on Shnewer's computer as well as some videos that were found on Eljvir's computer. He also reviewed the recordings of the Dukas associated with the viewings of some of those videos. The Dukas' main challenge to Kohlmann's testimony is from his answer to a hypothetical posed to him by the Assistant United States Attorney during direct:

(Trial Tr. at p. 5888-89.)

The Dukas assert that Kohlmann "testified that a conspiracy in this case existed and that the group in fact intended to commit a terrorist act." (Dkt. No. 13 at p. 58.) They claim that admission of Kohlmann's opinion was prejudicial to them because the primary issue for the jury to determine was intent, "i.e. whether they actually agreed to murder United States military personnel or whether they only engaged in militant talk." (Dkt. No. 13 at p. 62.)

It is true that "[i]n a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense." FED. R. EVID. 704(b). However, under Federal Rule of Evidence 704(b), "`expert testimony is admissible if it merely supports an inference or conclusion that the defendant did or did not have the requisite mens rea, so long as the expert does not draw the ultimate inference or conclusion for the jury and the ultimate inference or conclusion does not necessarily follow from the testimony.'" United States v. Hayward, 359 F.3d 631, 636 (3d Cir. 2004) (citing United States v. Bennett, 161 F.3d 171, 185 (3d Cir. 1998) (quoting United States v. Morales, 108 F.3d 1031, 1038 (9th Cir. 1997))).

In this case, Kohlmann's testimony was admissible as it did not draw the ultimate inference or conclusion for the jury and therefore did not run afoul of Rule 704(b). The questioning of an expert using a hypothetical drawn from facts in the case does not run afoul of Rule 704(b). For example, in United States v. Davis, 397 F.3d 173, 179 (3d Cir. 2005), the Third Circuit analyzed a claim of whether an expert's testimony violated Rule 704(b). In finding that the District Court did not abuse its discretion in admitting the expert's testimony, the Third Circuit stated as follows:

Davis, 397 F.3d at 179. As in Davis, Kohlmann's testimony was in response to a hypothetical and there was no evidence that he had any direct relationship with the Dukas, Shnewer or Tatar, or the investigation that would have given him special insight into their thoughts or intent. Therefore, Kohlmann's testimony did not run afoul of Rule 704(b).

Recently, panels of the Third Circuit have reiterated the holding in Davis (albeit in nonprecedential decisions). For example, in United States v. Coles, 558 F. App'x 173, 183-84 (3d Cir. 2014), a panel of the Third Circuit analyzed whether the admission of the expert testimony's constituted plain error in a drug case. More specifically, the panel in Coles found that such testimony did not constitute plain error. In Coles, the Third Circuit panel explained its reasoning as follows:

Coles, 558 F. App'x at 184 (quoting Davis, 397 F.3d at 179) (other citation omitted).

A different panel of the Third Circuit was presented with a similar issue in United States v. Ramirez, 249 F. App'x 277 (3d Cir. 2007), which involved a conviction for possessing a firearm in furtherance of a drug trafficking crime. That panel cited to the Third Circuit's precedential opinion in Davis to find that the District Court did not err in admitting an expert's testimony. More specifically, the panel stated in Ramirez that:

Ramirez, 249 F. App'x at 281 (footnote omitted).

The Court also finds that United States v. Romero, 189 F.3d 576 (7th Cir. 1999) is instructive and persuasive on this issue. In Romero, Lanning, an expert on child molesters testified. On redirect, "[t]he prosecution posed a series of hypothetical actions to Lanning and asked him if these actions would indicate someone who would act on his sexual fantasies about children. Not surprisingly, the hypotheticals described actions taken by Romero that had already been produced in evidence[.]" Id. at 584. Ultimately, the Seventh Circuit held that while Lanning's redirect testimony addressed some of Romero's actions in the form of hypotheticals, Lanning never opined as to the defendant's mental state such that his testimony did not amount to a statement of his belief about what specifically was going through the defendant's mind. See id. at 586.

The hypothetical answered by Kohlmann did not opine on the Dukas' mental state and did not run afoul of Rule 704(b) because it did not involve the government's repeated reference to the Dukas' state of mind. Instead, Kohlmann responded to a hypothetical that closely mirrored the facts presented in the case. This is permissible based on the cases cited above. Furthermore, Kohlmann was not involved in the investigation of the Dukas nor did he have any direct relationship with them. Therefore, trial counsel's failure to object at trial and appellate counsel's failure to raise this issue on appeal does not warrant granting the Duka's relief. Their trial counsel were not ineffective in not objecting to his testimony because it was properly admitted.

The Dukas also argue that their counsel should have objected to Kohlmann's testimony because there was no opportunity for this Court to analyze whether his theories had been tested, subjected to peer review, had achieved general acceptance in the social science community or was based upon a reliable methodology. The Dukas argue that counsel's failure to object runs afoul of Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). Rule 702 states as follows:

FED. R. EVID. 702.

Pineda v. Ford Motor Co., 520 F.3d 237, 247-48 (3d Cir. 2008).

This Court heard testimony from Kohlmann himself before it permitted Kohlmann to testify as an expert in the field of Islamic terrorism and the use of digital media to promote terrorism. Kohlmann's testimony included his credentials which included: (1) his graduate studies at Georgetown University; (2) his employment as an international terrorism consultant where he specializes in the use of on-line technology by Al-Qaeda and Al-Qaeda affiliate programs; (3) his operation of globalterroralert.com, which is a clearing house for academics, policy makers and law enforcement to provide raw materials that go into investigations of terrorism and terrorist related acts along with analysis; (4) authoring a book entitled Al-Qaeda's Jihad in 2004 which has been used as a graduate level textbook at the Harvard School of Government and at the Johns Hopkins School of Advanced International Studies; and (5) researching Al-Qaeda and Al-Qaeda affiliates since 1997 which includes primary and secondary research.6

Kohlmann also testified that he has become familiar with the role of computers and digital media in spreading terrorist propaganda; more specifically, he testified that:

(Trial Tr. at p. 5827.) Finally, Mr. Kohlmann testified that he previously testified eleven times in federal court in the general field of Islamic terrorism and the use of digital media to promote terrorism eleven times, as well as in U.S. military and foreign courts. (See id. at p. 5927-28.)

The Dukas have not shown that they are entitled to relief on this issue because an objection to Kohlmann being classified as an expert on Islamic terrorism would have been denied. Indeed, Kohlmann has testified as an expert in federal cases several times and his methodology has been approved by several courts. See United States v. Hassan, 742 F.3d 104, 131 (4th Cir. 2014) (finding that the district court did not abuse its discretion in deciding Kohlmann's evidence satisfied Rule 702 because the court heard testimony on his credentials and techniques and was convinced that he possessed the knowledge, skill, experience, training and education to testify on various aspects of decentralized terrorism and homegrown terrorism); United States v. Farhane, 634 F.3d 127, 159 n.32 (2d Cir. 2011) (noting that Kohlmann has been qualified as an expert on terrorism in a number of federal prosecutions) (citing United States v. Benkahla, 530 F.3d 300, 309 n.2 (4th Cir. 2008); United States v. Aref, 285 F. App'x 784, 792 (2d Cir. 2008); Strauss v. Credit Lyonnais, S.A., 925 F.Supp.2d 414, 446 (E.D.N.Y. 2013) ("[T]he court finds Kohlmann is qualified as a terrorism expert and that his methodology is sufficiently reliable. Among other things, he is the author of a textbook on terrorism that is used in graduate level courses at Harvard University's Kennedy School of Government and Princeton University, and oversees one of the largest digital collections of terrorist multimedia and propaganda in the world. Notably, Kohlmann has testified as an expert in sixteen cases in federal courts and before the Guantanamo Bay military commissions. Moreover, his research and archival methodology appear to be consistent with those in the terrorist field, as other courts have recognized.") (internal citations and other citations omitted); United States v. Abu-Jihaad, 600 F.Supp.2d 362, 366 (D. Conn. 2009); United States v. Kassir, Crim. No. 04-356, 2009 WL 910767, at *7 (S.D.N.Y. Apr. 2, 2009)); United States v. Paracha, Crim. No. 03-1197, 2006 WL 12768, at *20 (S.D.N.Y. Jan. 3, 2006) ("Whatever the general pitfalls of the `vetting process' that is employed by Kohlmann and others in his field, it is a sufficiently reliable methodology to meet the requirements of Fed. R. Evid. 702.") (citation omitted).

Finally, the Dukas argue that "Kohlmann accepted evidence provided by the Government as true, without any scrutiny, analysis, or comparison with other independent sources." (Dkt. No. 13 at p. 61.) The problem with this argument is that the Dukas do not identify any facts presented in the hypothetical posted to Kohlmann that were unsupported by trial evidence. As previously stated, such a hypothetical did not run afoul of the Federal Rules of Evidence.

Accordingly, the Dukas fail to show that they are entitled to relief on Claim III.

D. Claim IV — Failure to Request Juror Voir Dire after Juror Reaction

In Claim IV, the Dukas assert that their trial counsel were ineffective in failing to request that the Court conduct voir dire on a juror during trial based on the reaction of one of the jurors to evidence produced at trial. According to the Dukas:

(Dkt. No. 13 at p. 63.)

Dritan Duka's trial attorney, Mr. Huff, does not recall a particular incident where a juror had a visible emotional reaction to the playing of a particular video at trial. (See Dkt. No. 31-1 at p. 11.) Mr. Huff states that he knew the jurors would likely have a strong reaction to the videos, but that those reactions were inevitable because this Court did not exclude them at trial. (See id.) Mr. Huff further states that he has no reason to believe that in response to any questioning from that Court, that any jurors would have stated that they could not remain fair and impartial. (See id. at p. 12.) Mr. Huff states that it has been his experience that most people who have been subjected to voir dire and selected for jury service believe they are fair and impartial and capable of following the judge's instructions. (See id.)

Eljvir Duka's trial attorney, Mr. Archie, recalls that when the videos were played during the trial that virtually all of the jurors appeared to be upset and shaken by violent images on the videos. (See Dkt. No. 31-1 at p. 21.) Like Mr. Huff, Mr. Archie states that it was inevitable that the jurors would be upset by the videos. (See id.) However, he does not recall any of the defendants bringing to his or any of the other attorneys attention of any reaction by a particular juror to the playing of the videos at trial. (See id.) Mr. Archie states that he does not believe that the defense would have benefited had the jurors been questioned about their emotional reactions to the videos and about whether they would continue to be fair and impartial towards the defendants after viewing the videos. (See id. at p. 22.)

Shain Duka's trial attorney, Mr. Riley, has a more specific recollection of juror reaction to the videos. Indeed, Mr. Riley states as follows in his declaration:

(Dkt. No. 31-1 at p. 30.)

"Under Strickland, a federal habeas court `must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Jacobs v. Horn, 395 F.3d 92, 118 (3d Cir. 2005) (citing Strickland, 466 U.S. at 689). "The [petitioner] bears the burden of overcoming the presumption that `the challenged action might be considered sound trial strategy.'" Id. (citing Strickland, 395 F.3d at 118).

The Dukas have not made a showing necessary to show that the actions of their trial counsel fell below an objective standard of reasonableness. As Mr. Riley's declaration makes clear, a sound trial strategy existed for not requesting that this Court conduct voir dire of the jury in light of their reaction to viewing the videos. Mr. Riley explained that he had specific tactical reasons for not requesting that this Court take any action with respect to a juror's reaction to viewing the videos. Specifically, Mr. Riley was concerned that any questioning would place additional emphasis and weight on the video and perhaps have caused that juror (and potentially others) to react negatively towards the defense.

While not directly analogous to the circumstances giving rise to Claim IV, in Jacobs, the Third Circuit had to analyze whether counsel's failure to inquire during voir dire of prospective jurors about racial bias amounted to ineffective assistance of counsel. The Third Circuit noted that had counsel requested voir dire with respect to racial prejudice that the trial court would have been constitutionally bound to grant his request. See Jacobs, 395 F.3d at 118. Nevertheless, the Third Circuit explained that the petitioner failed to show that he was entitled to federal habeas relief because;

Id.

In this case, Mr. Riley felt that asking about the jurors' reaction to the videos would do more harm than good as it would have placed additional emphasis on the videos. This Court finds that Shain Duka has failed to overcome the presumption that Mr. Riley's decision was anything but sound trial strategy. Thus, Shian Duka has failed to show that he is entitled to federal habeas relief on this claim as he has not shown that he satisfies the first prong of the Strickland test.

The analysis with respect to Dritan and Eljvir Duka in Claim IV produces the same result. Mr. Archie specifically recalled that the jurors were upset and shaken by the images of the videos played at trial. Mr. Archie states that it was inevitable that the jurors would have been upset by the videos and he was not surprised to see that many of them were after the defense unsuccessfully moved to exclude them. Nevertheless, he also stated that he thought the defense would not benefit from having this Court question the jurors about their emotional reactions to the videos and about whether they would continue to be fair and impartial towards the defedants. This Court finds that Eljvir Duka fails to show that Mr. Archie's performance in failing to seek voir dire fell below an objective standard of reasonableness. Mr. Archie admits that it was inevitable that the jurors would be upset and that he was aware of the jurors' reactions to the videos. Thus, the purported reaction by one juror was something that was expected by the attorneys after the videos were not excluded by this Court.7 Therefore, Eljvir Duka is also not entitled to relief on this claim.

Finally, Dritan Duka's attorney, Mr. Huff did not recall a particular incident where a juror had a visible emotional reaction to the playing of the videos. However, like Mr. Archie, after having unsuccessfully moving to exclude the videos, Mr. Huff recognized that the jurors would likely have an inevitable emotional reaction to those videos. Mr. Huff states that he did not consider asking the trial judge to voir dire the jurors during the trial because it was his belief that he thought the jurors would be fair and impartial and able to follow the court's instructions. Mr. Huff was clearly aware of the potential impact that the videos could have on the jury yet decided, as a matter of trial strategy not to have the Court inquire further. This Court finds that Dritan Duka has also failed to show that Mr. Huff's failure to object fell below an objective standard of reasonableness.

The Dukas have also failed to show the level of prejudice necessary to warrant granting them relief on this claim. First, this Court cautioned the jury during its instructions as to their use of the videos in arriving at a verdict by stating:

(Trial Tr. at p. 6283-84.) The jury is presumed to have followed these instructions, see Weeks, 528 U.S. at 234, such that any potential bias or prejudice produced by the videos was alleviated by this Court's cautionary instruction. Furthermore, any potential bias or prejudice on the part of the juror in question is completely speculative. This Court cannot say that had counsel requested voir dire, that the result of their trial would have been different to a reasonable probability. See Palmer v. United States, 46 F. App'x 5, 8 (1st Cir. 2002) (unpublished) (where claim of juror bias is highly speculative, it is unlikely that failure to raise the issue affected the outcome of the trial); Evans v. Luoma, No. 05-72726, 2007 WL 128925, at *4 (E.D. Mich. Jan. 12, 2007) (counsel's failure to raise issue of juror bias did not prejudice petitioner where it is highly speculative). As this Court noted in supra note 5, the jury acquitted all of the Dukas of Count II and Eljvir Duka of Count III thereby illustrating that they were able to compartmentalize the evidence against the defendants as it related to each specific count.

Accordingly, for these reasons, the Dukas are not entitled to relief on Claim IV.

E. Claim V — Failure to Argue that Conversation was Admissible Under Federal Rule of Civil Procedure 803(3)

Dritan Duka argues that appellate counsel was ineffective for failing to argue on appeal that conversations he had with Besnik Bakalli in April, 2007 should have been admitted under Federal Rule of Evidence 803(3). That rule states as follows:

FED. R. EVID. 803(3). "The rule is now firmly established that `[t]here are times when a state of mind, if relevant, may be proved by contemporaneous declarations of feeling or intent.'" United States v. Hernandez, 176 F.3d 719, 726-27 (3d Cir. 1999) (quoting Shepard v. United States, 290 U.S. 96 (1933)). "However, the scope of this exception must be limited to prevent it from devouring the rule. Thus, `[s]tatements that are considered under . . . the `state of mind' exception, cannot be offered to prove the truth of the underlying facts asserted.'" Id. at 727 (quoting Stelwagon Mfg. Co. v. Tarmac Roofing Sys., Inc., 63 F.3d 1267, 1274 (3d Cir. 1995)) (other citation omitted). "In determining whether statements relative to the declarant's state of mind are admissible under Fed. R. Evid. 803(3), three requirements must be satisfied: (1) the statements must be contemporaneous with the . . . event sought to be proven; (2) it must be shown that the declarant had no chance to reflect — that is, no time to fabricate or misrepresent his thoughts; and (3) the statements must be shown to be relevant to an issue in the case." United States v. Jackson, 780 F.2d 1305, 1315 (7th Cir. 1986) (internal quotation marks and citations omitted); see also Reppert v. Marino, 259 F. App'x 481, 490 (3d Cir. 2007) (stating to be admissible under 803(3) hearsay exception, declaration must "contemporaneously evidence the declarant's mental state, and declarant's state of mind must be relevant to the case") (citing Hernandez, 176 F.3d 719; Prather v. Prather, 650 F.2d 88 (5th Cir. 1981)); 5 JACK B. WEINSTEIN & MARGARET A. BERGER, WEINSTEIN'S FEDERAL EVIDENCE, § 803.05[2][a] (to be admissible under state of mind exception to hearsay, "[t]here must be no suspicious circumstances suggesting a motive for the declarant to fabricate or misrepresent his or her thoughts.").

Dritan Duka argues that his statements to Bakalli in April, 2007 evidenced intent not to engage in acts of violence. Dritan Duka points to the following statements he made to Bakalli in April, 2007 to support his argument:

(Dkt. No. 17-2 at p. 91-93 & 102.) Dritan asserts that his "stated belief that violent jihad was impractical if not impossible within the United States and that his duty was to spread Islam and raise his family was made at the very time the government maintain[s] he was a member of a conspiracy whose stated aim was the murder of U.S. soldiers. Thus, it was admissible to show that he lacked the intent to commit the crime." (Dkt. No. 13 at p. 70.)

Analysis of this ineffective assistance of appellate counsel claim begins with a presumption that counsel's actions are reasonable. See Strickland, 466 U.S. at 689. If a claim is not meritorious, then failure to raise the issue on appeal does not constitute ineffective assistance of counsel. See United States v. Mannino, 212 F.3d 835, 840 (3d Cir. 2000). Furthermore, appellate counsel "need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal. See Smith v. Robbins, 528 U.S. 259, 288 (2000). Within these constraints, the Supreme Court has held that it is difficult to prove that a lawyer's failure to raise a particular claim on appeal constitutes ineffective assistance of counsel. See id.; see also Jones v. Barnes, 463 U.S. 745, 751 (1983) (rejecting per se rule that appellate counsel must raise every nonfrivolous issue); Sistrunk v. Vaughn, 96 F.3d 666, 670 (3d Cir. 1996) ("[A]s a general matter, it is not inappropriate for counsel, after consultation with the client, to override the wishes of the client when exercising professional judgment regarding [appealing] `non-fundamental' issues.") Indeed, an exercise of professional judgment is required because appealing losing issues `"runs the risk of burying good arguments . . . in a verbal mound made up of strong and weak contentions.'" Id. (citing Jones, 463 U.S. at 753).

The government submitted a declaration from Dritan Duka's counsel, Mr. Huff. Mr. Huff states in his declaration that he decided in his professional judgment on appeal that the best chance for the Third Circuit to overrule this Court's exclusion of the recording and grant a new trial was by presenting only that the evidence should be admitted under the rule of completeness. He also states that he used his professional judgment to decide to file a joint appellate brief with the other defendants because it would more likely focus the attention of the appellate judges on the strongest defense claims of the defendants rather than individual briefs. (See Dkt. No. 31-1 at p. 10.) Mr. Huff states that he believed that the rule of completeness was a stronger basis for the admission of the recording as opposed to the existing mental condition exception to the hearsay rule. (See id. at p. 11.)

This Court finds that Dritan Duka has failed to overcome the presumption that Mr. Huff's actions were reasonable. As Mr. Huff explains in his declaration, he used his professional judgment in determining that a joint appellate brief would be better for Dritan Duka. Furthermore, he used his professional judgment to focus on the rule of completeness argument as opposed to the state of mind exception to argue that the statements should have been admitted at trial. Accordingly, Mr. Huff's tactical decision to omit the state of mind argument on appeal did not fall below an objective standard of reasonableness and this Court will not second-guess that decision.

Nevertheless, even if Dritan Duka could somehow show that Mr. Huff's decision to not appeal whether the statements should have been admitted under the state of mind exception to hearsay fell below an objective standard of reasonableness, he still would have to show that there would have been a different outcome (to a reasonable probability) had Mr. Huff raised this issue on appeal.

As described above, to satisfy Rule 803(3) for admission, a party must show that the statements are contemporaneous with the event sought to be proven and that the declarant had no time to reflect so that he could fabricate his thoughts. See Jackson, 780 F.2d at 1315. As the government notes in its brief, Dritan Duka expressed concern about "being careful" to Bakalli in March, 2007 for fear that he was potentially an FBI agent. (See Government's Trial Exhibit ("GX") 856-B at p. 8 (But you got to be careful. Cause maybe you're an FBI, how can I know?).) Thus, by April 27, 2007, there were potential circumstances in play to suggest a motive for Dritan to misrepresent his state of mind. See United States v. Naiden, 424 F.3d 718, 722-23 (11th Cir. 2005) ("[T]he passage of time may prompt someone to make a deliberate misrepresentation of a former state of mind."); United States v. Macey, 8 F.3d 462, 567-68 (7th Cir. 1993) (statement made by defendant to employee four hours after directing her to prepare alleged false invoices was inadmissible under Rule 803(3) because "the district court could have concluded that Macey had time to fabricate a story in the four hours between his fraud and his statement to [the employee]."). Indeed, as this Court properly determined in denying the April 27, 2007 statements of Dritan Duka into evidence under Rule 803(3):

(Trial Tr. at p. 5556.) Therefore, Dritan Duka cannot show he was prejudiced by appellate counsel's failure to raise this issue on appeal as the evidence was properly excluded by this Court under Rule 803(3).

Dritan Duka has also failed to show prejudice for another reason. "In determining prejudice, `a court hearing an ineffective assistance of counsel claim must consider the totality of the evidence before the judge and jury.'" United States v. Travillion, 759 F.3d 281, 290 (3d Cir. 2014) (quoting Strickland, 466 U.S. at 695)); see also Gooding v. Wynder, 459 F. App'x 83, 86 (3d Cir. 2012) (finding that court must consider strength of the evidence of a petitioner's guilt in determining whether he was prejudiced due to counsel's purported ineffectiveness) (citing Buehl v. Vaughn, 166 F.3d 163, 172 (3d Cir. 1999)). The case against Dritan Duka was not a weak case such that even if Mr. Huff should have made a Rule 803(3) argument on appeal, Dritan Duka was not prejudiced.

Indeed, the record is replete with instances of recorded conversations illustrating Dritan's intent such that the introduction of his April 27, 2007 statements would not have changed the result of the proceedings to a reasonable probability. By way of example only:

Subsequently, in May 7, 2007, after Dritan Duka's April 27, 2007 statements showing that he purportedly had no intent to kill, Dritan Duka, along with his brother, Shain Duka, met Omar at his resident to purchase four fully automatic M-16 machine guns and three semi-automatic AK-47 assault rifles. In light of the other evidence produced against Dritan Duka at trial, this Court finds that even if his April 27, 2007 statements should have been admitted under Rule 803(3), Dritan Duka has failed to show prejudiced based upon the additional evidence implicating him in the conspiracy.

Accordingly, for these reasons, Dritan Duka has failed to show that he is entitled to relief under Claim V.

F. Claim VI — Failure to Request a Hearing on a Missing Recording

In Claim VI, the Dukas argue that their respective trial counsel was ineffective for failing to request a hearing on a missing recording. More specifically, the Dukas claim that FBI 302 #349 states that on April 21, 2007, Bakalli joined the Dukas for paintball. Bakalli was equipped with a body recorder that day. (See Dkt. No. 17-1.) The Dukas explain they told their counsel during that paintball game that Bakalli referred to paintball as good military training but that they laughed at him and referred to it as a game. The Dukas state that this conversation does not appear on the recordings produced by the government. (See Dkt. No. 14 at p. 64.)

The Dukas claim that counsel should have made a specific request for the recording, and that if it was not produced by the government, the Dukas assert that counsel should have requested a hearing on the issue. They claim that, "[g]iven how much the government emphasized paintball as `training' for jihad, counsel's failure to pursue this potentially exculpatory evidence was conduct falling below professional norms and prejudiced the petitioners." (Id. at p. 65.)

The government states in its answer that it has copies of the audiotapes between Bakalli and the Dukas on April 21, 2007, but that none of the recordings have been transcribed. The government explains that the recordings are largely in another language. While the government states that it has been unable to confirm that the Dukas' statements took place on April 21, 2007, it does not matter because even if such a statement was made, the Dukas have failed to show prejudice, i.e. that counsel's failure to request a hearing on this issue would have changed the result of their trial to a reasonable probability.

As the government notes, this was not a case where all of the Dukas' recorded statements to the cooperating witnesses over the course of the several months of taped recordings supported the charged crimes. This was made clear to the jury during the government's summation when the Assistant United States Attorney stated the following:

(Trial Tr. at p. 6418.) Indeed, the Dukas did speak about paintball as training in the record and transcribed statements. By way of example only:

Furthermore, the Dukas' statements that paintball was training was but one part of a larger case against them brought forth by the government. One statement by the Dukas that paintball was a game admitted into evidence would not have changed the result of the proceedings to a reasonable probability. Instead, there were other incriminating actions and statements of the Dukas such as (by way of example only) the wish to bring jihad to the United States, other statements that indicated that paintball was training and the purchase of firearms. Accordingly, the Dukas fail to show that they are entitled to relief on this claim.

G. Claim VII — Failure to Introduce Video Recording

In Claim VII, Eljvir Duka claims that his trial counsel, Mr. Archie, was ineffective when he failed to present a conversation Eljvir had with Bakalli on February 5, 2007 that they could not harm American soldiers on United States soil because they had done nothing wrong. Eljvir states that Mr. Archie mentioned this statement during his opening statement, but did not follow through with presenting it at trial. According to Eljvir, this statement went to the heart of the government's case against him and showed his lack of intent to harm United States soldiers within the United States. Eljvir states that Mr. Archie never sought to have it admitted during Bakallli's cross-examination or his own case, and that the statements were admissible under Federal Rule of Evidence 803(3) as the statements reflected his existing state of mind and intent.

During his opening statement, Mr. Archie did discuss a conversation the Dukas had in February, 2007, while in the Poconos. More specifically, Mr. Archie told the jury as follows:

(Trial Tr. at p. 1620.) When Mr. Archie pressed this issue on Bakalli during cross-examination, he could not recall Eljvir's supposed statement to him that it was "haram" or forbidden. (See id. at p. 5693.) Eljvir argues that having failed to get his statements to Bakalli admitted on crossexamination, Mr. Archie should have attempted to admit them under Federal Rule of Evidence 803(3).

Eljvir's trial counsel "cannot be deemed ineffective for failing to raise a meritless claim." Se Werts v. Vaughn, 228 F.3d 178, 203 (3d Cir. 2000) (citations omitted). As previously described, Rule 803(3) permits a person to testify as to his then existing state of mind (such as motive, intent or plan), or emotional, sensory, or physical condition, but does not permit a statement of belief to prove the fact believed. See FED. R. EVID. 803(3); see also Wagner v. Cnty. of Maricopa, 747 F.3d 1048, 1052-53 (9th Cir. 2013) (Rule 803(3) bars statements as to what declarant might have believed that would have induced the state of mind and applies when the statements are offered to prove the truth of the fact of the underlying belief) (citations omitted); T. Harris Young & Assoc., Inc. v. Marquette Electronics, Inc., 931 F.3d 816, 828 (11th Cir. 1991) (stating that Rule 803(3) cannot be used to prove the fact believed because to hold otherwise would amount to the virtual destruction of the hearsay rule); New York v. Microsoft Corp., No. 98-1233, 2002 WL 649951, at *3 (D.D.C. Apr. 12, 2002) (Rule 803(3) does not permit evidence which is attempting to prove the truth of a belief).

The government states that no transcript of the February 5, 2007 recording has been made since neither side offered it into evidence at trial. The government asserts that it has listened to the recording and that it could not hear whether or not the statement was made. (See Dkt. No. 31 at p. 89.) Despite this lack of clarity as to whether in fact Eljvir made this statement to Bakalli, he is still not entitled to relief on this claim for the following reasons.

This Court will assume arguendo that Eljvir did in fact make a statement to Bakalli that they could not harm United States soldiers on American soil. However, Eljvir fails to show this statement would have been admissible under Rule 803(3). Indeed, it appears as if he is attempting to use Rule 803(3) to prove the truth of the underlying stated belief, specifically that he could not have conspired to commit murder of American soldiers in the United States because he had this belief. This amounts to Eljvir's attempt at an implied assertion which constitutes inadmissible hearsay. See Hernandez, 176 F.3d at 727 ("[S]tatements offered to support an implied assertion are inadmissdible hearsay.") (internal quotation marks and citations omitted). Accordingly, Eljvir Duka is not entitled to relief on this claim because counsel was not ineffective when he failed to seek to admit this evidence under Rule 803(3).

VI. CERTIFICATE OF APPEALABILTIY

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." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Applying this standard, the Court finds that a certificate of appealability shall not issue in this case on Claims II-VII. This Court reserves judgment on whether a certificate of appealability should issue on Claim I until after the evidentiary hearings on Claim I are completed and this Court issues its opinion on the merits on that claim.

VII. CONCLUSION

For the following reasons, Claims II-VII will be denied. The Court will conduct three separate evidentiary hearings (one for each of the Duka brothers) on Claim I. Appropriate Orders will be entered consistent with this Opinion.