TERRENCE F. McVERRY, Senior District Judge.
Pending before the Court is the MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY (ECF No. 977), filed by Franco Badini. Badini also filed a MOTION FOR COUNSEL AND DISCOVERY (ECF No. 978). The government has filed a response in opposition to the motions (ECF No. 982). Accordingly, they are ripe for disposition. For the reasons that follow, the motions will be denied, and no certificate of appealability will be issued.
On March 30, 2010, a grand jury returned a nine-count superseding indictment against Badini and 15 co-defendants alleging that they were involved in a wide-ranging cocaine conspiracy in the Pittsburgh area. Badini was charged in Count One with conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 846. Approximately one week before trial, the government filed a § 851 information, in which it was alleged that Badini was convicted of possession with intent to deliver a controlled substance on or about April 18, 1994, in the Allegheny County Court of Common Pleas. The § 851 enhancement subjected Badini to a mandatory minimum sentence of 20 years. Following a week-long jury trial in August 2011, Badini was found guilty as to Count One.
Prior to sentencing, Badini filed a motion, arguing that the government's plea bargaining tactics — specifically its decision to file the § 851 information after unsuccessful plea negotiations — violated the Sixth Amendment and the due process guarantee of the United States Constitution. As relief, Badini asked this Court to vacate his conviction or, alternatively, to strike the § 851 Information. The Court denied Badini's motion, finding that his attempts to attack the § 851 information and the government's use of it as a bargaining chip in negotiations were without merit. The Court, therefore, proceeded to sentence Badini to the 20-year mandatory minimum sentence.
Badini took a direct appeal to the Third Circuit Court of Appeals. On May 23, 2013, the Court of Appeals issued a non-precedential opinion affirming his conviction and sentence. See United States v. Badini, 525 F. App'x 190 (3d Cir. 2013) cert. denied, 134 S.Ct. 703 (2013). After Badini's petition for a writ of certiorari was denied by the Supreme Court, he timely filed this motion.
Badini raises several grounds for relief in his motion. First, he alleges that, for a litany of reasons, he received ineffective assistance of counsel. Second, he alleges that the Assistant United States Attorney ("AUSA") assigned to this case engaged in prosecutorial misconduct. Third, he alleges that the § 851 information is unconstitutional as applied to him. Fourth, he claims that this Court erred in admitting evidence under Rule 404(b) without performing the required balancing test under Rule 403.
To establish a claim for ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), a defendant "must show that (1) his or her attorney's performance was, under all the circumstances, unreasonable under prevailing professional norms, and, unless prejudice is presumed, that (2) there is a `reasonable probability that, but for counsel's unprofessional errors, the result would have been different[.]'" United States v. Day, 969 F.2d 39, 43 (3d Cir. 1992) (quoting Strickland, 466 U.S. at 694). In other words, "a defendant must show both unprofessional conduct and, in most cases, prejudice as a result." Id.
Badini argues that his trial counsel, Lee Rothman, was ineffective for (1) failing to suppress inadmissible wiretap evidence, (2) failing to request a Starks hearing to contest the authenticity and accuracy of the wiretap recordings and transcripts, (3) failing to properly object to the government's use of the § 851 enhancement, (4) failing to object to alleged witness vouching during the AUSA's closing argument, (5) performing under a conflict of interest, and (6) failing to request a buyer-seller instruction. These allegations will be addressed seriatim.
First, Badini alleges that certain wiretap recordings were not properly sealed as required by 18 U.S.C. § 2518(8)(a)
Badini's second claim dovetails with his first. More specifically, he alleges that he "repeatedly asked" his counsel "to contest that authenticity of the wiretaps" through a Starks hearing, but his counsel refused to do so. In support of his claim that the recordings were not authentic, Badini points to what he perceives as a discrepancy between the "[t]rial transcripts of a conversation between [him] and Curran" on September 30, 2009, and "the transcripts from the discovery." Def.'s Mot. at 4, ECF No. 977. As the government argues, however, there was no basis to seek a Starks hearing and challenge the authenticity of the recordings, and Badini's after-the-fact attempt to muster such a basis is totally misguided. Contrary to his argument, there is no actual discrepancy between the "trial transcripts" and the "transcripts from the discovery." The transcripts Badini relies on relate to two entirely separate calls; whoever was transcribing the calls simply failed to change the header and call number. This minor error in transcription hardly suggests that the recordings that were admitted into evidence at trial were not authentic. This claim is, therefore, rejected.
Next, Badini alleges that his counsel was ineffective for failing to raise certain objections to the § 851 enhancement. To wit, he argues that the § 851 information failed to establish that he was convicted of a felony, that the information contained clerical errors, and that the conviction was obtained in violation of his right to counsel. None of these contentions withstand scrutiny.
As to his first contention, the information states that Badini was convicted "on or about April 18, 1994, at Criminal Case Number 93-15625" of Possession with Intent to Deliver a Controlled Substance in violation of 35 P.S. § 780-113(a)(30). This is a "felony drug offense" within the meaning of the Controlled Substances Act, 21 U.S.C. § 802(44), as it is punishable by imprisonment for more than one year. See 35 P.S. § 780-113(f) (detailing the possible sentences for violations of 35 P.S. § 780-113(a)(30) that involve cocaine, all of which authorize imprisonment for more than one year). It is immaterial that Badini was actually sentenced to probation. See United States v. Garcia, No. CRIM.A. 04-662-1, 2012 WL 72756, at *2 (E.D. Pa. Jan. 10, 2012) ("Under § 851, Garcia's prior state conviction was properly considered a prior felony drug offense. It is irrelevant that he only served a sentence of five years' probation."). Moreover, contrary to Badini's suggestion that the "information itself was insufficient to prove a felony conviction," it is clear that the government was not required to introduce anything more than the certified copy of the judgment of conviction in order to meet its burden. United States v. Kaplan, 526 F. App'x 208, 217 (3d Cir. 2013) (citing United States v. Howard, 599 F.3d 269, 271 (3d Cir. 2010)).
Badini fares no better with his second argument. He claims that he was not convicted on or about April 18, 1994, as is alleged in the § 851 information. Instead, he claims, he was originally scheduled to plead guilty on April 18, but the hearing did not actually occur until May 18, 1994. This is factually incorrect, though. The judgment of conviction indicates that Badini entered a guilty plea on April 18, but his sentencing was postponed until May 18. Consequently, there was no error in the § 851 information, and any challenge raised by Badini's counsel in this regard would have been futile.
The Court is similarly unconvinced by Badini's claim that his right to counsel was violated in the state-court preliminary hearing related to his 1994 conviction. At the outset, the Court notes that there is some doubt as to whether Badini's challenge to his prior conviction is even cognizable at this point, seeing as the conviction occurred more than 20 years ago. Under 21 U.S.C. § 851(e), a defendant is given a five-year window within which to collaterally challenge a prior conviction that the government seeks to use for a sentencing enhancement. Courts have reached different conclusions as to whether this statutory bar applies whenever a defendant attempts to attack his prior conviction on the basis that his right to counsel was violated. Compare United States v. Mason, 628 F.3d 123, 133 (4th Cir. 2010) (explaining that the defendant's challenge to use of prior convictions based on allegations that they were uncounseled was "likely barred by the statute of limitations in 21 U.S.C. § 851(e)," because those convictions "occurred more than five years before the government submitted its § 851 information in this case") with United States v. Ramon-Rodriguez, 492 F.3d 930, 939 (8th Cir. 2007) (citing Custis v. United States, 511 U.S. 485, 494-96 (1994)) ("This five-year limitation, however, does not apply to claims that a defendant's predicate conviction occurred in violation of the defendant's right to counsel.").
At any rate, assuming that the challenge can be raised in this venue, the Court concludes that it has no merit. As documents Badini, himself has attached to his motion reveal, Badini waived his right to counsel at the state-court preliminary hearing. See Def.'s Ex. 1 at 19, ECF No. 977-1; Gov't Ex. 2 at 2, ECF No. 982-2. Final criminal judgments are afforded a presumption of regularity, so the burden of proof to establish the unconstitutionality of the prior conviction rests with the defendant. Parke v. Raley, 506 U.S. 20, 31 (1992) (citing Johnson v. Zerbst, 304 U.S. 458, 468-69 (1938)). Here, there are no facts alleged that could possibly support Badini's claim that his waiver was not knowing and voluntary. As a result, counsel was not ineffective for declining to raise this issue prior to Badini's sentencing.
Badini alleges that his counsel should have objected when the AUSA allegedly vouched for government witnesses Omer Dugalic, Shane Hennan, and Michael Lucerne. "Vouching constitutes an assurance by the prosecuting attorney of the credibility of a Government witness through personal knowledge or by other information outside of the testimony before the jury." United States v. Walker, 155 F.3d 180, 184 (3d Cir. 1998) (citations omitted). Conversely, "where a prosecutor argues that a witness is being truthful based on the testimony given at trial, and does not assure the jury [of] the credibility of the witness based on his own personal knowledge, the prosecution is engaging in proper argument and is not vouching." Id. at 187 (citing United States v. Pungitore, 910 F.2d 1084, 1125 (3d Cir. 1980)). Judged against that standard, the portions of the AUSA's closing argument that Badini cites did not cross the line into improper vouching. See, e.g., id. at 188 ("The comment by the AUSA consists first of the rhetorical question, `What motivation [would these witnesses have to lie]?' This question is not vouching.") (emphasis added); United States v. Bernal-Benitez, 594 F.3d 1303, 1314 (11th Cir. 2010) ("Merely acknowledging that adverse legal consequences would flow from lying under oath is a far cry from placing the prestige of the government behind a witness."). Thus, this claim must be rejected.
Badini's fifth claim is that his counsel acted under a conflict of interest because he represented an "un-indicted co-conspirator," Donald Amman, who was a friend of several co-defendants, including David Curran and Michael Luzerne, in a state-court marijuana case pending at the time of trial in this case. This alleged conflict, Badini alleges, precluded his counsel from being "able to cross examine Michael Lucerne thoroughly about Lucerne's, Curran's and Amman's relationship with each other and others" since "[a]ny questions regarding Lucerne, Curran, and Amman would have had potential incriminating consequences for Mr. Rothman's client." Def.'s Mot. at 10, ECF No. 977.
"The Sixth Amendment guarantee of effective assistance of counsel includes two correlative rights, the right to adequate representation by an attorney of reasonable competence and the right to the attorney's undivided loyalty free of conflict of interest." United States v. Gambino, 864 F.2d 1064, 1069 (3d Cir. 1988) (citing Gov't of Virgin Islands v. Zepp, 748 F.2d 125, 131 (3d Cir. 1984)). To establish a conflict of interest in violation of the Sixth Amendment, a defendant must prove (1) multiple representation (2) caused "an actual conflict of interest" (3) that "adversely affected" counsel's performance. Id. (citations omitted). If this showing is made, a defendant need not establish prejudice within the meaning of Strickland. See id. (citations omitted).
"[A]n actual conflict is more likely to occur in cases of joint representation-representation of more than one defendant at the same trial — rather than simply multiple representation-representation of defendants in different trials — as occurred here." United States v. Morelli, 169 F.3d 798, 810 (3d Cir. 1999). "In cases involving multiple but not joint representation, and when an attorney has in some way failed to act," a defendant must establish "`two elements.'" Id. (quoting Gambino, 864 F.2d at 1070). "`First, he must demonstrate that some plausible alternative defense strategy or tactic might have been pursued.'" Id. (quoting Gambino, 864 F.2d at 1070). "`Second, he must establish that the alternative defense was inherently in conflict with or not undertaken due to the attorney's other loyalties or interests.'" Id. (quoting Gambino, 864 F.2d at 1070).
Applying these principles here, the Court finds that Badini has not established establish that his counsel was laboring under an "actual conflict" of interest. It is not enough for Badini to baldly allege that counsel could not "thoroughly" cross-examine Lucerne because of his relationship with Amman. Rather, he had to allege facts tending to show that counsel failed to pursue a plausible strategy or tactic because his loyalties were divided. That he has not done. Nor, would it seem, could he. At trial, Badini's counsel cross-examined Lucerne at length about, among other things, his relationship with Curran, his cooperation with the government and hope for a lessened sentence, his criminal history, and his relationship with Badini to attempt to show bias and motive to lie. It is not clear what questioning Lucerne regarding Amman would have accomplished or what Lucerne — or anyone else — would have said about Amman that could have incriminated Amman in his state-court case. In view of this, Badini's conflict of interest claim must be rejected.
Badini argues that his counsel should have asked the Court to instruct the jury that buyer/seller relationship is not sufficient to establish involvement in a conspiracy. By way of background, at the end of the trial, the AUSA suggested at side bar that a buyer-seller instruction should be given to the jury, in light of certain arguments raised in defense counsel's closing argument. Trial Tr. at 108:18-22, ECF No. 808. Badini's counsel responded that he did not "believe that it's necessary for any further instructions to be read [to the jury]." Id. at 109:4-8. The Court agreed and denied the government's request. Id. at 109:9. Badini now faults his counsel for concurring in that decision.
Badini's argument lacks merit. The Court adequately instructed the jury on the law of conspiracy. Its instructions made clear that a finding of a mere buyer-seller relationship would not have been enough to convict, and a buyer-seller instruction would have been superfluous. United States v. Lewis, 447 F. App'x 310, 315 (3d Cir. 2011) (quoting United States v. Mata, 491 F.3d 237, 241 (5th Cir. 2007)) ("`[A]n adequate instruction on the law of conspiracy precludes the necessity of giving a buyer-seller instruction . . .'"). Therefore, Badini cannot establish that he suffered any prejudice prejudice from his counsel's failure to request — or concur in the government's request for — this instruction. See United States v. Cale, 107 F.3d 22 (10th Cir. 1997) (finding that defendant "was not prejudiced by his counsel's failure to request a buyer-seller instruction because the instructions given by the court addressed the substance of such an instruction").
Badini's last ineffective assistance claim is that counsel failed to object to the drug quantity attributed to him in the presentence investigation report. Because of the filing of the § 851 enhancement, however, Badini's sentence was not driven by the drug quantity finding. Rather, it was dictated by the statutory mandatory minimum. Therefore, even assuming that counsel could have raised a meritorious objection, Badini cannot establish that he suffered any prejudice from that failure, and this claim must be rejected.
As his second asserted ground for relief, Badini alleges that the government violated its obligations under Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972) by withholding "favorable or exculpatory evidence" — namely, passport and/or flight records from Halil Batlak.
Because Badini did not raise his Brady and Giglio claims on direct appeal, they have been procedurally defaulted.
In Brady, the Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment." 373 U.S. at 87. In Giglio, Brady's holding was extended to include impeachment evidence. United States v. Risha, 445 F.3d 298, 299 (3d Cir. 2006). Moreover, the Supreme Court has firmly established that "the prosecution has an affirmative `duty to disclose such evidence . . . even though there has been no request [for the evidence] by the accused.'" Johnson v. Folino, 705 F.3d 117, 128 (3d Cir. 2013) (quoting Strickler v. Greene, 527 U.S. 263, 280 (1999)). "However, even when the prosecution has failed to disclose favorable evidence to the defense, a constitutional violation is not inevitable." Id. A new trial is only warranted if the defendant proves that (1) the evidence is favorable, either because it was exculpatory or has impeachment value, (2) the evidence was suppressed and (3) the evidence is material. Id. (citing Strickler v. Greene, 527 U.S. 263, 281-82 (1999)). As noted, "`cause and prejudice,' which excuse procedural default, mirror the last two elements of a Brady violation." Johnson, 705 F.3d at 128. "This is because in the specific context of a Brady claim, `a petitioner shows "cause" when the reason for his [default] . . . was the State's suppression of the relevant evidence.'" Id. (quoting Banks, 540 U.S. at 691). Furthermore, prejudice for purposes of excusing procedural default "`exists when the suppressed evidence is "material" for Brady purposes.'" Id. (quoting Banks, 540 U.S. at 691).
In this case, the allegedly withheld evidence — Batlak's passport and/or flight records — presumably would be favorable to Badini, as the records might be able to bolster — or at least clarify — Batlak's testimony about when he made his last trip to Pittsburgh and when he was in Bosnia in 2009.
Badini has not alleged that the AUSA either actually or constructively possessed Batlak's passport and/or flight records. And indeed, as the afore-cited cases make clear, the government was under no affirmative duty to discover these records and then disclose them to Badini. Accordingly, since Badini cannot establish an underlying Brady violation, he also cannot establish "cause and prejudice" for the purposes of excusing his procedural default of this claim. It must be dismissed on that basis.
Defendant makes several arguments with regard to the government's filing of the § 851 information. His principal arguments on this point — namely, that his prior conviction was the product of a Gideon violation and that it was not a felony offense — have been addressed supra and determined to be without merit. The Court reaches that same conclusion as to his remaining contentions.
Badini first contends that under Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151 (2013), a jury, and not the Court, was required to find that he had a prior felony drug conviction, as alleged in the § 851 information, in order to subject him to an increased mandatory minimum sentence. The Third Circuit Court of Appeals has twice made clear, however, that the Alleyne Court did not announce a new rule of law that applies retroactively to cases on collateral review, such as Badini's. See United States v. Reyes, 755 F.3d 210, 212 (3d Cir. 2014); United States v. Winkelman, 746 F.3d 134, 136 (3d Cir. 2014). Even if Alleyne were applicable in this setting, the result here would be the same. "Stated simply, Alleyne does nothing to alter the rule that, for sentencing enhancement purposes, the fact of a prior conviction need not be submitted to a jury." Shaw v. United States, No. 10-204, 2014 WL 2719661, at *3 (M.D. Pa. June 13, 2014) (citing United States v. Cooper, 739 F.3d 873, 884 (6th Cir. 2014); United States v. Wright, No. 05-619-1, 2013 WL 5707876, at *4 n.22 (E.D. Pa. Oct. 18, 2013)); see also Almendarez-Torres v. United States, 523 U.S. 224, 226-27 (1998).
Badini also contends that the Supreme Court's decision in Descamps v. United States, ___ U.S. ___, 133 S.Ct. 2267 (2013) limited the Court's authority to look beyond the fact of a prior conviction when applying the § 851 enhancement. In Descamps, the Supreme Court addressed how to evaluate certain prior convictions under the Armed Career Criminal Act. It is an open question whether Descamps is retroactively applicable to cases on collateral review. See United States v. Wilson, No. 06-0097, 2014 WL 3339632, at *2 (W.D. Pa. July 8, 2014) (citations omitted). Assuming, arguendo, that Descamps' holding is retroactive, it would still provide no comfort for Badini. It cannot be argued that Badini's prior conviction was not a "felony drug offense," and thus the holding in Descamps is entirely inapplicable in this case.
Finally, Badini argues that this Court erred in admitting evidence under Rule 404(b) without first conducting a Rule 403 balancing test. Badini raised this same argument on direct appeal, and it was soundly rejected. Badini, 525 F. App'x at 194 ("Badini's principal argument on appeal [was] that the District Court never performed the Rule 403 balancing as required by the third prong of our Rule 404(b) test."). He is, thus, precluded from relitigating this issue in his § 2255 motion, United States v. DeRewal, 10 F.3d 100, 105 n.4 (3d Cir. 1993), unless there has been an "intervening change in law" affecting the claim previously decided against him, Sonneberg v. United States, No. 01-2067, 2003 WL 1798982 (3d Cir. Apr. 4, 2003) (citing Davis v. United States, 417 U.S. 333 (1974)). Seeking to come within that exception, Badini asks the Court to "reconsider this issue" in light of the Third Circuit's decision in United States v. Smith, 725 F.3d 340 (3d Cir. 2013), which was decided some three months after his appeal. According to Badini, the Smith Court "reversed and remanded the case citing the same issue and caselaw as Petitioner did on direct appeal." Def.'s Mot. at 15, ECF No. 977.
True enough — but that does not mean that Smith marks a change in the law, thereby opening the door for Badini's challenge. In Smith, the Court of Appeals held that the district court's decision warranted reversal because its Rule 403 finding was not "apparent from the record." 725 F.3d at 348. The Court of Appeals did not, however, purport to overturn its prior cases establishing that the district court's failure to conduct a Rule 403 balancing on the record is not necessarily fatal, including the case upon which it relied in affirming Badini's conviction, as the Court of Appeals can, if it so chooses, review the record and conduct the weighing itself. See, e.g., Badini, 525 F. App'x at 194 (discussing United States v. Sriyuth, 98 F.3d 739 (3d Cir. 1996)). Accordingly, this claim is rejected.
For the reasons hereinabove stated, Badini's MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY (ECF No. 977) and his MOTION FOR COUNSEL AND DISCOVERY (ECF No. 978) will be
