JONES v. UNITED STATES OF AMERICA

Filing 13

OPINION. Signed by Judge Joseph E. Irenas on 5/20/2014. (drw)n.m.

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

MACK JONES,
Petitioner,
v.
UNITED STATES,
Respondent.

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Civil No. 12-4673 (JEI)

OPINION

APPEARANCES:
Mack Jones, Pro Se
41157-050
USP Canaan
P.O. Box 300
Waymart, PA 18472
Diana V. Carrig, Esq.
Office of the US Attorney, District of New Jersey
401 Market Street, 4th Floor
Camden, NJ 08101
Attorney for Respondent
IRENAS, Senior District Judge:
Pro se movant Mack Jones seeks to vacate, set aside, or correct
his sentence pursuant to 28 U.S.C. § 2255. For the following reasons,
his § 2255 motion will be denied without an evidentiary hearing.
BACKGROUND
These facts are taken from the companion case, United States
v. Judge, 447 F. App’x 409, 411-12 (3d Cir. 2011) (internal footnotes

omitted):
Raymond Morales, who served as one of the
government's key cooperating witnesses in this case, was
the leader of a large-scale drug-trafficking organization
based in Camden, New Jersey. Between 1993 and 2004,
Morales's organization sold hundreds of kilograms of
cocaine and cocaine base. Morales distributed both through
“drug sets,” areas known for drug sales he operated in
Camden, and through sub-organizations headed by
individuals with whom Morales was friendly. . . . Mack
Jones headed a [] subgroup that sourced from Morales. Jones
purchased cocaine from Morales from 1994 through 2003,
including during periods when Morales was in jail. Troy
Clark ran a third group that sourced through Morales, the
“MOB Boys.”

A grand jury returned a four-count superceding
indictment against Ahmed Judge, Jevon Lewis, and Mack
Jones. Count One charged defendants with conspiracy to
distribute and to possess with intent to distribute
cocaine and cocaine base, under 21 U.S.C. § 846
(conspiracy) and § 841(b)(1)(A) (drug trafficking) . . .
After a two-month trial, the jury found the defendants
guilty on all counts. . . . [The court] sentenced Jones
to a term of life imprisonment.
In 2008, Jones was convicted of drug-trafficking conspiracy
after a jury trial. On June 26, 2009, he was sentenced to life
imprisonment due to his lengthy list of prior offenses and the
operation of drug laws, specifically, 21 U.S.C. §§ 841(b)(1)(A) and
851. The Court of Appeals for the Third Circuit affirmed the
conviction and sentence on October 11, 2011. See United States v.
Jones, 477 F. App’x 319 (3d Cir. 2011) (Answer, Ex. 2). Jones now
asserts in this § 2255 motion that his trial counsel was ineffective.

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DISCUSSION

1.

STANDARD FOR SECTION 2255 MOTIONS
Section 2255 provides relief to a federal prisoner on the

following grounds: (1) the judgment was rendered without
jurisdiction; (2) the sentence imposed was not authorized by law or
otherwise open to collateral attack; or (3) there has been such a
denial or infringement of the constitutional rights of the prisoner
as to render the judgment vulnerable to collateral attack. See 28
U.S.C. § 2255(a). A § 2255 motion is liberally construed when a
prisoner proceeds pro se. See United States v. Otero, 502 F.3d 331,
334 (3d Cir. 2007). The Court may dismiss the motion without holding
an evidentiary hearing if the motion and the files and records of
the case conclusively show that the prisoner is entitled to no relief.
See 28 U.S.C. § 2255(b); Liu v. United States, No. 11–4646, ––– F.
Supp.2d ––––, 2013 WL 4538293, at *9 (D.N.J. Aug. 26, 2013) (Simandle,
J.) (citing United States v. Booth, 432 F.3d 542, 545–46 (3d Cir.
2005)).
2.

MOVANT’S CLAIMS
Jones raises five claims of ineffective assistance of counsel

in his § 2255 motion: (1) counsel acceded to a jury instruction that
led the jury to convict him on a theory of guilt different from that
charged in the indictment; (2) counsel failed to properly investigate

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various people who Petitioner claims would have testified for him
and helped him at trial, thus, he accuses counsel of failing to
interview two witnesses and failing to call three witnesses at trial;
(3) counsel failed to call Jones to the stand in his own defense;
(4) counsel failed to object to the life sentence; and (5) counsel
failed to file a petition for rehearing of the appeal on the correct
basis. (ECF No. 1).
3.

ANALYSIS
The Sixth Amendment guarantees criminal defendants the right

to effective assistance of counsel. In Strickland v. Washington, 466
U.S. 668 (1984), the Supreme Court set out the familiar test for
demonstrating ineffective assistance. First, the defendant must show
that considering all the circumstances, counsel's performance fell
below an objective standard of reasonableness. See Id. at 688–91.
Second, a defendant must affirmatively show prejudice, which is found
where “there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to
undermine the confidence in the outcome.” Id. at 694. “The likelihood
of a different result must be substantial, not just conceivable.”
Harrington v. Richter, ––– U.S. ––––, ––––, 131 S.Ct. 770, 792, 178
L.Ed.2d 624 (2011).

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A.

Jury Instruction

Jones argues that he was convicted of a conspiracy that was
different from the one charged in the indictment, which constituted
a fatal variance. Jones raised this argument on direct appeal.

The

Court of Appeals found that “the evidence was sufficient to prove
Jones’s involvement in a single drug-trafficking conspiracy headed
by Raymond Morales,” and noted that “[i]f there is sufficient
evidence of a single conspiracy, there is no variance . . . .” (Answer,
Ex. 2, Third Circuit, Court of Appeals decision, at p. 3). In this
motion, Jones now couches the same argument in terms of ineffective
assistance of counsel, arguing that counsel was ineffective for
“acceding” to the charge. (Movant’s Brief, at p. 29).
First, this Court notes that a claim decided on direct review
ordinarily cannot be relitigated in a Section 2255 proceeding.

See

Withrow v. Wiliams, 507 U.S. 680, 720-21 (1993)(Scalia, J.,
concurring)(collecting cases); United States v. DeRewal, 10 F.3d
100, 105 n.4 (3d Cir. 1993).
Additionally, however, the claim lacks merit, as the jury was
charged with finding Jones guilty of the conspiracy actually charged,
and not simply guilty of being a member of some conspiracy. (Answer,
Ex. 3, at p. 41 (Instruction on Single or Multiple Conspiracies)).
This Court charged the jury:

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In order to find a particular defendant guilty of the
conspiracy charged in the indictment, you must find that
the Government proved beyond a reasonable doubt that the
defendant was a member of that conspiracy.
(Answer, Ex. 3, Jury Instruction § 42). The sentence makes clear that
the jury had to find Jones guilty of the conspiracy actually charged
(“that conspiracy”). The instructions by this Court were virtually
identical to the Third Circuit Model Instructions, and it is presumed
that the jury adhered to the instructions. It follows that the jury
found Jones guilty because it found that the evidence proved beyond
a reasonable doubt that Jones joined the conspiracy charged in the
indictment. There was no error. Therefore Jones’s counsel was not
ineffective for failing to object to the charge.
Petitioner has not satisfied Strickland on this claim in order
to warrant § 2255 relief based on ineffective assistance of counsel.
This claim will be denied.
B.

Failure to Investigate and Call Witnesses

Jones argues that three witnesses, Hector Rivera, Francisco
Morales, and Rashad Smith, would have testified on his behalf to
impeach the testimony of Raymond Morales and the three MOB Boys at
trial. Of these three witnesses, Jones only had one witness, Rashad
Smith, provide an affidavit. See Lewis v. Horn, 581 F.3d 92, 107 (3d
Cir. 2009) (in federal habeas case, court faulted petitioner for not
presenting any affidavits describing what his alleged alibi

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witnesses would have testified about); United States v. Ashimi, 932
F.2d 643, 650 (7th Cir. 1991)(“evidence about the testimony of a
putative witness must generally be presented in the form of actual
testimony by the witness or on affidavit.”) (citations omitted). The
other two witnesses proposed by Jones provided letters to Jones;
however, the Government “has grave concerns about the authenticity
of one of the letters, the one supposedly by and from Francisco
Morales,” and notes that the other letter from Hector Rivera “was
drafted and typed by the same person who prepared the Francisco
Morales letter.” The Government contends this is an “earmark[] of
a fabricated defense.” (Answer, pp. 14-15 at n. 11).
In addition to there being no proper affidavits submitted about
the testimony of the proposed witnesses, as stated, in order to prove
ineffective assistance of counsel, Jones must satisfy both prongs
of Strickland: deficient performance and prejudice. Here, a review
of the record provided demonstrates that these three proposed
witnesses’ testimony would have been impeachable. Thus, counsel’s
decision not to present these witnesses can be attributed to trial
strategy.
First, Jones argues that Hector Rivera would have testified that
he was a cellmate of government witness Morales, and that when Morales
became a government witness, he would name people who owed him money
and with whom he had “beefs.” (Motion, p. 41). As to Francisco
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Morales, Jones argues that Francisco Morales would have testified
that he and his cousin, corroborating witness Raymond Morales, worked
closely together, and that he would have known if Jones was involved
in the drug business with his cousin. (Motion, p. 40).

Finally, as

to Rashad Smith, Jones states that the government had MOB boy Troy
Clark testify that he learned how to manufacture crack from powder
cocaine from Jones; however, Rashid Smith would have testified that
he and Clark gained this knowledge elsewhere (Motion, p. 43).
Nevertheless, as the Government argues, Hector Rivera was
serving a 130-month federal sentence for drug offenses at the time
of Jones’s trial. Also, as noted, there were concerns that Rivera’s
possible testimony may have been fabricated. Also, Francisco
Morales’s testimony would have been impeached due to an earlier plea
to conspiracy with Raymond Morales in the 90’s, and a 2007 guilty
plea where he provided a factual basis for the same conspiracy that
he and Jones were charged with in the instant case. As to Smith, his
testimony could have been impeached because he had incentive to hurt
the MOB boys, and because he had an extensive criminal record. Jones’s
argument that these witnesses could have changed the outcome of trial
is meritless and conclusory, given the overwhelming evidence
presented by the Government at trial.
Numerous witnesses testified against Jones at trial, including
Raymond Morales, the MOB Boys, Dennis Rodriguez and Victor Rodriguez.
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The jury would need to disbelieve the testimony of all of these
prosecution witnesses to credit the testimony of the three proposed
witnesses that Jones names in this § 2255 motion.
Additionally, as the Government points out, the corroborating
witnesses (Morales and the three “MOB Boys”) themselves, were
impeachable on their own accord. Defense counsel used a variety of
impeachment material in the cross-examination.

Any testimony by

these three proposed witnesses would have been superfluous and
cumulative. See, e.g., United States v. Smith, 104 F. App’x 266, 271
(3d Cir. 2004)(finding defense counsel was not ineffective “in
failing to call another witness to testify about the same thing.”);
United States v. Salem, 643 F.3d 221, 227 (7th Cir. 2011) (“The
district court's conclusion that adding more icing to the impeachment
cake would not improve the likelihood that the jury would swallow
it was reasonable.”); United States v. Ervin, 540 F.3d 623, 631-32
(7th Cir. 2008) (information not material as it was cumulative given
the extensive and more serious impeachment on other points and the
witness was not the sole witness.).
Jones has not shown that testimony by these three witnesses
would have changed the outcome of his trial. Therefore, he has not
demonstrated prejudice. See Strickland, supra. He is not entitled
to § 2255 relief on this claim.

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C.

Failure to Call Jones to Testify

Jones claims that had he been called to testify, “[t]he jury
would have been hardpressed to not entertain a reasonable doubt about
Jones’s guilt once presented with the context necessary to properly
evaluate the testimony of the 2 cooperators who were facing life
sentences unless they did just what they were doing on the stand:
testifying autonomously and without any ability to be corroborated
as to anything that would paint Mack Jones as a drug dealer, even
if not the one that was charged in the indictment.” (Movant’s Brief,
at p. 49).
Jones notes that there was a lack of discovery about his
involvement in the crime, and that counsel had “general reservations”
about putting him on the stand, given his criminal record would open
him to scrutiny in front of the jury. (Movant’s Brief, at p. 8).
Counsel discussed that taking the stand would be too risky, since
information would come out at trial rather than in discovery. (Id.).
When a petitioner collaterally attacks his sentence “‘[a]
barebones assertion by a defendant, albeit made under oath ... is
insufficient to require a hearing or other action on his claim that
his right to testify in his own defense was denied him ... Some greater
particularity is necessary, ... such as an affidavit from the lawyer
who allegedly forbade his client to testify.’” Lloyd v. United
States, No. 03-0813, 2005 WL 2009890 at *13 (D.N.J. Aug. 16, 2005)
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(quoting Underwood v. Clark, 939 F.2d 473, 475–76 (7th Cir. 1991)
(Posner, J.)); accord United States v. Aikens, 358 F. Supp.2d 433,
436 (E.D. Pa. 2005) (quoting Underwood, supra); United States v.
Smith, 235 F. Supp.2d 418, 425 (E.D. Pa. 2002) (quoting Underwood,
supra).
Jones asserts that he told his attorney on more than one occasion
that he wanted to testify (Movant’s Brief, at p. 8). Jones provides
no documentation nor does the Court find any evidence in the record
that Petitioner was actually prevented from testifying at his trial.
There is no evidence to suggest that counsel did anything more than
advise Jones not to testify. Such advice was a reasonable strategic
decision. See Frederick v. Kyler, 100 F. App’x 872, 874 (3d Cir.
2004)(“If [Petitioner's] attorney merely advised him not to testify,
that tactical decision certainly would not have fallen below
Strickland's standard of objective reasonableness.”); Smith, 235 F.
Supp.2d at 426 (“[Petitioner] has failed to overcome the presumption
that counsel's advice that [Petitioner] not take the stand was ‘sound
trial strategy.’”) (quoting Strickland, supra). This alone is
sufficient to deny relief.
However, even accepting, arguendo, Petitioner was prevented
from testifying, Petitioner has not demonstrated that he was
prejudiced by trial counsel's error. See Matylinsky v. Bridge, 577
F.3d 1083, 1098 (9th Cir. 2009) (counsel, in making a “sound tactical
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decision” in “not allowing Matylinsky to testify”, to the extent it
infringed on Matylinsky’s right to testify, did not constitute
“prejudice.”); see alson Aikens, 358 F. Supp.2d at 436–37
(“Petitioner's assertion that his testimony would have contradicted
the testimony of the cooperating witnesses is insufficient to satisfy
Strickland's prejudice element.”). Thus, Petitioner has not
demonstrated that his counsel’s performance was deficient under
Strickland as to this claim, and relief must be denied.
D.

Failure to Object to Sentence

Jones argues that counsel should have objected to his enhanced
sentence, based on the fact that he was convicted under a certain
New Jersey statute that did not qualify to trigger his mandatory life
sentence under 21 U.S.C. §§ 841(b)(1)(A) and 851. However, Jones
shows no proof that he was convicted under such a statute.
This Court based the sentence on certified copies of judgments
of conviction provided by the Government in the Enhanced Penalty
Information (“EPI”) filed against Jones (see Answer, Ex. 4), and sees
no reason to vacate the sentence. The sentence was also reviewed by
the Court of Appeals, who affirmed (see Answer, Ex. 2). Jones has
not shown that counsel was ineffective in any aspect of his sentencing
proceedings. As such, Jones is not entitled to relief on this claim.
E.

Failure to File Proper Petition on Appeal

Jones argues that his attorney filed a petition for rehearing
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in the Court of Appeals on the wrong basis; that counsel should have
filed a rehearing petition on the basis that the Court of Appeals
relied on factual fallacies that could not have supported the
verdict. Jones concludes that had the petition been filed
“correctly,” “the panel . . . would have realized that there was,
in fact an evidentiary void on the connectedness element necessary
to establish a united scheme with Morales at the center.” (Movant’s
brief at p. 54). The Government argues that such a petition would
not have been successful.
In United States v. Coney, the Third Circuit stated that
appellate counsel, “having appropriately briefed ... an appeal, is
not under an obligation to file a petition for rehearing or rehearing
en banc ... The determination whether to file rests with sound
professional judgment of the attorney in light of all the
circumstances ...” 120 F.3d 26, 27 (3d Cir. 1997). Likewise, Local
Appellate Rule 35(b) provides that counsel should only file a
petition if he or she believes that the panel decision is contrary
to decisions of the United States Court of Appeals for the Third
Circuit or the Supreme Court of the United States, and that
“consideration by the full court is necessary to secure and maintain
uniformity of the court’s decisions”; or “the proceeding involves
one or more questions of exceptional importance.” Fed. R. App. P.
35(b).
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Here, the denial of Petitioner's appeal by the Court of Appeals
was not contrary to any decision by the Third Circuit or the Supreme
Court of the United States, nor did it raise any questions of
exceptional legal importance. Nonetheless, counsel did file a
petition for rehearing, and therefore, Petitioner incurred no
prejudice. A decision by Petitioner's counsel as to the claims
presented in the petition for rehearing is within counsel's sound
professional judgment, especially when the standard for filing is
so high. As pointed out by the Government in the Answer, Jones’s
claims were already made to the Third Circuit on appeal, and were
considered and rejected by this Court, the jury, and the Third
Circuit. Counsel’s decision not to reargue the points in the petition
for rehearing is consistent with the rules:

the arguments presented

by Jones were not of “exceptional importance.”
Sufficient evidence was presented by the Government at trial
of Jones’s activities, and this Court finds no reason to upset the
jury’s conviction or this Court’s sentence. Jones has demonstrated
neither ineffective assistance of counsel, nor that he is entitled
to § 2255 relief.
CONCLUSION
The Court is satisfied that Jones has failed to show that
counsel's performance fell below an objective standard of
reasonableness. His § 2255 motion is denied. It follows that movant’s
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request for an evidentiary hearing is denied, as the record
conclusively shows that he is not entitled to relief under § 2255.
United States v. Kenley, 440 F. App'x 78, 80 (3d Cir. 2011)
(nonprecedential); see also United States v. Lilly, 536 F.3d 190,
195 (3d Cir. 2008). Because Jones fails to make “a substantial showing
of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2),
a certificate of appealability shall not issue.
An appropriate order follows.

May 20, 2014

s/ Joseph E. Irenas
JOSEPH E. IRENAS
Senior United States District Judge

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