SUSAN D. WIGENTON, District Judge.
Presently before the Court is the motion of Wydove Brown ("Petitioner") to vacate, set aside, or correct his sentence brought pursuant to 28 U.S.C. § 2255. (ECF No. 1). Petitioner filed his motion on or about March 18, 2013. (ECF No. 1). Following this Court's order to answer, the Government filed a response (ECF No. 9). Petitioner did not file a reply. On August 19, 2014, the Government filed a supplemental letter (ECF No. 10), to which Petitioner responded. (ECF No. 11). For the following reasons, this Court will deny Petitioner's motion to vacate his sentence, and will deny Petitioner a certificate of appealability.
In the court's opinion affirming Petitioner's conviction and sentence, the Third Circuit provided the following summary of the facts underlying this case:
United States v. Brown, 454 F. App'x 44, 46-47 (3d Cir. 2011).
Petitioner appealed his sentence, raising the following claims: that the trial court erred in permitting Petitioner to be shackled at trial, that the trial court erred in denying Petitioner's request for substitute counsel, that the trial court erred in denying Petitioner's request for a hearing on his motion to suppress, that the trial court erred in denying the motion to suppress, and that the trial court erred in allowing the Government to "vouch" for witnesses during summation. Id. at 47. The Third Circuit affirmed Petitioner's conviction by way of an opinion issued on December 8, 2011. Id. at 47-51. In addressing Petitioner's claim that the court improperly denied Petitioner's request for substitute counsel, the Third Circuit held that the trial court engaged in the correct inquiry and did not abuse its discretion in denying Petitioner's motion. Id. at 48-49. In so doing, the Third Circuit specifically noted the trial court's finding that "defense counsel had performed outstandingly during Brown's first trial," ultimately achieving a mistrial in the face of strong evidence of guilt. Id. at 48. Following the Third Circuit's affirming of his conviction, Petitioner filed a petition for certiorari, which was denied by the Supreme Court on April 23, 2012. See Brown v. United States, ___ U.S ___, 132 S.Ct. 1988 (2012).
Petitioner filed his initial motion to vacate his sentence on April 18, 2013. (ECF No. 1). On May 6, 2013, this Court entered an order advising Petitioner of his rights under United States v. Miller, 197 F.3d 644 (3d Cir. 1999). (ECF No. 2). In response to that order, Petitioner filed a "First Amended Supplemental Petition" in which he provided further facts and allegations in support of his claims.
A prisoner in federal custody may file a motion pursuant to 28 U.S.C. § 2255 challenging the validity of his or her sentence. Section 2255 provides, in relevant part, as follows:
28 U.S.C. § 2255. Unless the moving party claims a jurisdictional defect or a constitutional violation, to be entitled to relief the moving party must show that an error of law or fact constitutes "a fundamental defect which inherently results in a complete miscarriage of justice, [or] an omission inconsistent with the rudimentary demands of fair procedure." United States v. Horsley, 599 F.2d 1265, 1268 (3d Cir. 1979) (quoting Hill v. United States, 368 U.S. 424, 429 (1962)), cert. denied 444 U.S. 865 (1979); see also Morelli v. United States, 285 F.Supp.2d 454, 458-59 (D.N.J. 2003).
A district court need not hold an evidentary hearing on a motion to vacate where "the motion and files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b); United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005); United States v. Day, 969 F.2d 39, 41-42 (3d Cir. 1992). "Where the record, supplemented by the trial judge's personal knowledge, conclusively negates the factual predicates asserted by the petitioner or indicate[s] that petitioner is not entitled to relief as a matter of law, no hearing is required." Judge v. United States, 119 F.Supp.3d 270, 280 (D.N.J. 2015); see also Government of Virgin Islands v. Nicholas, 759 F.2d 1073, 1075 (3d Cir. 1985); see also United States v. Tuyen Quang Pham, 587 F. App'x 6, 8 (3d Cir. 2014); Booth, 432 F.3d at 546. For the reasons set forth below, Petitioner has failed to establish a prima facie case of ineffective assistance of counsel, and no hearing is required for the resolution of this matter.
Petitioner asserts that his trial counsel was constitutionally ineffective. The standards applicable to such a claim are well established:
Judge, 119 F. Supp. 3d at 280-81. In his petition and amended petition, Petitioner essentially asserts two claims: that counsel was ineffective in his investigation of Petitioner's case — specifically in investigating the histories of the arresting and testifying officers, and that counsel was ineffective in advising Petitioner in regards to a plea agreement offered after the initial mistrial. This Court will address each claim in turn.
Petitioner's chief contention is that his trial counsel was ineffective in failing to fully investigate the officers involved in Petitioner's case for evidence of past wrongdoing or a pattern of false arrests and the like which could have been used to impeach the officers' credibility.
Where a Petitioner can show that counsel's failure to investigate amounts to deficient performance, he must still show prejudice. In order to do so,
United States v. Askew, 88 F.3d 1065, 1073 (D.C. Cir. 1996) (quoting Sullivan v. Fairman, 819 F.2d 1382, 1392 (7th Cir. 1987); see also United States v. Lathrop, 634 F.3d 931, 939 (7th Cir. 2011) ("[w]hen a petitioner alleges that counsel's failure to investigate resulted in ineffective assistance, the petitioner has the burden of providing the court with specific information as to what the investigation would have produced"); United States v. Green, 882 F.2d 999, 1002 (5th Cir. 1989) ("A defendant who alleges a failure to investigate on the part of his counsel must allege with specificity what the investigation would have revealed and how it would have altered the outcome" of Petitioner's case); accord Untied States v. Garvin, 270 F. App'x 141, 144 (3d Cir. 2008).
Here, Petitioner alleges that, had his counsel fully investigated the officers involved in his case, counsel would have discovered a pattern of illegal activity by the Newark Police Department, and would have found out that at least one of the officers involved had been the subject of civilian complaints. In support of this assertion, Petitioner provides a petition filed by the New Jersey ACLU in September 2010. (Document 3 attached to ECF No. 3 at 30-48). Thus, this Court must initially note that the basis for Petitioner's claim, the ACLU report, was not itself available to counsel as it was first filed some three months after Petitioner was sentenced. Clearly, then, the ACLU report itself was not discoverable during counsel's pre-trial investigation, and the question in this case is instead whether reasonably effective counsel could and should have been able to locate potential impeachment evidence based on the past conduct of the officers in this case.
Given the trial record, this Court need not guess at the answer. In his omnibus motion, counsel specifically requested that the Government turn over any and all Brady and Giglio material, and also directly moved the Court to turn over any evidence affecting the credibility of the officers involved in Petitioner's arrest. (See Omnibus Motion, Document 2 attached to ECF No. 9 at 9). Indeed, counsel explained this request as follows:
(Id. at 9-10). This request led the Government to turn over Giglio material as to one of the officers, as well as to provide the trial judge with copies of other information which the Government did not believe to be Giglio material for an in camera review. (See Motion Hearing Transcript, Document 3 attached to ECF No. 9 at 21-22). Indeed, counsel pressed the court for such a review, and continued to request that any relevant impeachment evidence be provided. (Id. at 19-30). Counsel's review of the provided material ultimately led to counsel's forceful cross examination of one of the testifying officers, Officer Bouie, at trial, on the basis of Bouie's prior disciplinary infractions for filing false statements. (See Trial Transcript, Document 1 attached to ECF No. 9 at 144).
What this record establishes is that trial counsel conducted a more than adequate investigation into the officers' histories, and more than adequately sought any Giglio or other impeachment evidence which was available as to the officers involved in Petitioner's arrest. Nothing in this record suggests that counsel was ineffective in investigating and preparing for trial, the ACLU petition notwithstanding. Counsel clearly investigated and used the history of the officers in defending Petitioner. Given the initial mistrial and counsel's able representation of Petitioner, it does not appear that counsel was deficient here, and Petitioner has failed to show otherwise.
Although Petitioner's failure to show deficient performance is sufficient to show that counsel was not ineffective in his investigations, this Court also notes that Petitioner has failed to show that he was prejudiced by counsel's alleged failure to turn up all of the information contained in the ACLU's lengthy petition. Counsel discovered useful Giglio material as to one officer, and used it to attack that officer's credibility at trial. Counsel likewise moved the court to reconsider its determination that the gun was admissible on the basis of both this testimony and the testimony of Petitioner's witnesses as to Petitioner's arrest and the state of the car in which Petitioner claims the gun was found. The trial court, after having heard both sides, rejected the testimony of Petitioner's witnesses as being completely incredible, and thus denied the motion for reconsideration. Petitioner's assertions that the testimony of the officers was "ta[i]nted [and] not credible" is insufficient to establish prejudice even without the trial court's credibility findings, and is certainly insufficient in light of those findings and the testimony of various officers that Petitioner was essentially caught red-handed trying to dispose of the firearm in question in Petitioner's case. Petitioner's blanket attempt to indicate that counsel should have found all of the allegations contained in the ACLU petition does not suggest otherwise.
Petitioner's remaining ineffective assistance of counsel claim asserts that counsel provided him with ineffective assistance in regard to a plea deal offered to Petitioner following the mistrial. As the Third Circuit has explained,
United States v. Bui, 795 F.3d 363, 366-67 (3d Cir. 2015).
Where a petitioner can show that his counsel provided inadequate assistance in advising him to reject a plea deal, the petitioner must still show that he was prejudiced in so much as "but for his counsel's advice, he would have accepted the plea and that [the] plea agreement would have result in a lesser sentence." Rickard v. United States, No. 10-4089, 2011 WL 3610413, at *8 (D.N.J. Aug. 16, 2011); accord Lafler v. Cooper, ___ U.S. ___, ___, 132 S.Ct. 1376, 1384-85 (2012) (prejudice in this context requires a petition to "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different . . . [which i]n the context of pleas [requires] a [petitioner] show the outcome of the plea process would have been different with competent advice"). Thus, a petitioner seeking to establish prejudice in this context must show not only that he would have accepted the plea absent counsel's advice, but also that the deal would not have been withdrawn by the Government, that the Court would have accepted the terms of the plea, and that the petitioner's sentence would have been less severe under the plea agreement. Lafler, 132 S. Ct. at 1385.
Petitioner provides little information about his plea claim. In his original motion, Petitioner asserted only the following: "[o]n January 28, 2010[,] trial counsel . . . received a signed plea offer from the U.S. Attorney . . . pertaining to [Petitioner] entering a guilty plea. [Petitioner] submits that trial counsel . . . was ineffective for not proprly advising [Petitioner] of the benefit of accepting a plea offer versus the likely range of punishment he would receive if convicted after trial." (ECF No. 1 at 12). In his amended supplemental petition, Petitioner adds only that "[t]rial [c]ounsel was [i]neffective for failing to properly advise [Petitioner] of accepting [a] guilty plea." (ECF No. 3 at 3). Petitioner has provided no information as to what advice he was given, what advice he believes he was not but should have been given, nor any further elaboration. Petitioner has thus provided little more than a conclusory allegation that counsel was ineffective in advising him as to the January 2010 plea deal.
The evidence which is present in the record clearly indicates that Petitioner was provided with at least some advice regarding the January 2010 plea offer. Specifically, trial counsel specifically made the following statements to the trial court on January 29, 2010:
(Document 5 attached to ECF No. 9 at 2-3). The record therefore establishes that counsel informed Petitioner of the plea offer, explained the sentencing exposure under the deal to Petitioner, including an approximate estimate of sentence, and discussed with Petitioner the possible enhancements the Government could seek under the agreement. The record also establishes that Petitioner chose to reject that deal. In the face of these facts, Petitioner's bald allegation that counsel did not provide him with effective assistance is insufficient to establish even a prima facie case of deficient performance. See Palmer, 592 F.3d at 395 (a Petitioner fails to establish a prima facie entitlement to habeas relief where he provides "unadorned legal conclusions" without providing sufficient factual support for those conclusions); see also United States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000) ("vague and conclusory allegations contained in a § 2255 [motion] may be disposed of without further investigation by the District Court").
Petitioner has likewise failed to allege sufficient facts to establish a prima facie claim of prejudice. Although it is implied by his claim, Petitioner does not allege that he would have accepted the plea deal had he received "competent" advice. Indeed, in light of the fact that Petitioner continues to contend that his conviction was the result of some sort of police corruption and the fact that Petitioner maintained his innocence through the second trial, it is by no means clear that Petitioner would have accepted the offered deal. This is especially true in light of the fact that Petitioner openly and directly rejected an earlier plea agreement because it did not permit him to appeal the trial court's denial of his suppression motion. (See Document 14 attached to ECF No. 9 at 13-14; Document 15 attached to ECF No. 9). As Petitioner has not alleged, let alone provided factual support sufficient to show, that he would have accepted the January 2010 plea agreement, he cannot establish that he was prejudiced by counsel's allegedly deficient performance. See Lafler, 132 S. Ct. at 1385. As Petitioner has not provided allegations as to the prejudice arising from counsel's alleged failure to properly advise him, Petitioner's plea agreement claim fails to establish even a prima facie case of ineffective assistance of counsel, and must be denied without an evidentiary hearing as a result. See Id.; Palmer, 592 F.3d at 395; Thomas, 221 F.3d at 437.
Pursuant to 28 U.S.C. § 2253(c) the petitioner in a § 2255 proceeding may not appeal from the final order in that proceeding unless he makes "a substantial showing of the denial of a constitutional right." "A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude that the issues presented here are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Because Petitioner has failed to establish even a prima facie case of ineffective assistance of counsel, Petitioner has failed to make a substantial showing of the denial of a constitutional right. As such, jurists of reason would not disagree with this Court's denial of Petitioner's motion, and Petitioner's claims are not adequate to deserve encouragement to proceed further. This Court therefore denies Petitioner a certificate of appealability. Id.
For the reasons set forth above, Petitioner's motion to vacate his sentence (ECF No. 1) is DENIED, and Petitioner is DENIED a certificate of appealability. An appropriate order follows.
This Court also notes that, in his amended supplemental petition, Petitioner reiterates the claims he raised on direct appeal in his recitation of facts. It appears that Petitioner used the Third Circuit's opinion as an aid in drafting his supplement, and that Petitioner quotes that opinion not to re-raise his direct appeal claims, but rather as a summary of the Third Circuit's rulings. This Court therefore does not construe Petitioner as attempting to re-raise his direct appeal claims in his current § 2255 motion. Even if Petitioner had wished to re-raise those claims here, he would be unable to do so as a § 2255 petitioner may not raise in his § 2255 motion those claims which were raised and denied on the merits on direct appeal. See United States v. DeRewal, 10 F.3d 100, 105 n. 4 (3d Cir. 1993) (internal quotations omitted); see also United States v Travillion, 759 F.3d 281, 288 (3d Cir. 2014) ("issues resolved in a prior direct appeal will not be reviewed again by way of § 2255 motion").
