JUDGE v. UNITED STATES OF AMERICA
OPINION FILED. Signed by Judge Joseph E. Irenas on 8/11/15. (js)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
UNITED STATES OF AMERICA,
Civil Action No.
IRENAS, Senior District Judge:
Presently before the Court is the amended motion of Ahmed Judge (“Petitioner”) to vacate,
set aside, or correct his April 2009 conviction, brought pursuant to 28 U.S.C. § 2255. (ECF No.
8). Petitioner filed his initial motion to vacate on or about May 6, 2013. (ECF No. 1). On May
15, 2013, Petitioner filed a motion to amend his motion to add several new claims. (ECF No. 6).
This Court issued a Miller notice on May 30, 2013. (ECF No. 7). Petitioner thereafter filed his
amended motion on August 29, 2013. (ECF No. 8). Respondent, United States of America
(“Respondent” or “the Government”), thereafter filed a Response on July 31, 2014. (ECF No. 15,
18), to which Petitioner replied on or about January 30, 2015. (ECF No. 23, 25). Also before
the Court is Petitioner’s motion to file his reply brief nunc pro tunc and to exceed the page limit
in that brief. (ECF No. 24). As this Court has considered Petitioner’s reply brief in reaching its
decision, and Respondents have not opposed the motion to file nunc pro tunc, this Court grants
Petitioner’s motion to file his reply nunc pro tunc and to exceed the page limit for such a reply.
For the following reasons, however, the Court will deny Petitioner’s § 2255 motion and deny
Petitioner a certificate of appealability.
The Court of Appeals, in its opinion in United States v. Judge, 447 F. App’x 409 (2011),
cert. denied, 132 S. Ct. 2376 (2012), provided the following summary of the relevant background
facts underlying Petitioner’s conviction:
Raymond Morales, who served as one of the government’s
key cooperating witnesses in this case, was the leader of a largescale 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. One such sub-organization was led
by Jevon Lewis. During the early 1990s through 1995, and from
early 2001 through September 2002, Lewis bought cocaine in bulk
from Morales. Lewis sold at his own “drug sets” in Camden,
including one at 8th and Central Streets. Ahmed judge worked for
Lewis for a period of time in 2001 and 2002, functioning primarily
as an armed body-man or “enforcer” at Lewis’s sets. Mack Jones
headed a second subgroup that sourced from Morales. . . . Troy
Clark ran a third group that sourced through Morales, the “MOB
On September 8, 2001, an individual was shot and killed at
Morales’s drug set at Atlantic and Norris Streets. Morales believed
violence at his markets was bad for business, and wanted to retaliate.
Morales mistakenly believed the perpetrator was Kenneth Fussell,
and offered Jevon Lewis $10,000 to have Fussell killed. Lewis
accepted and contracted with [Petitioner] and Jamar Bacon to carry
out the murder. At 11:30 p.m. on October 4, 2001, [Petitioner] and
Bacon shot and killed Fussell on the front steps of Fussell’s
apartment in Camden.
Camden police officer Sergeant Strang was two blocks away
from the shooting when it occurred and went to the scene
immediately. An eyewitness told Strang he saw, from his second
story bathroom, an African-American male wearing a sweatshirt and
a baseball cap flee to a nearby field. Strang searched the field and
within minutes, found [Petitioner] hiding behind hay bales,
squatting on a sweatshirt and a baseball cap. Strang asked
[Petitioner] to show his hands and when [Petitioner] did not respond,
Strang directed another officer to handcuff him. [Petitioner] told
Strang he had been shot. When Strang asked by whom, [Petitioner]
did not respond. Strang asked if the clothes [Petitioner] was sitting
upon belonged to him, and [Petitioner] answered affirmatively.
Hours later, at approximately 4:00 a.m. on October 5th,
[Petitioner] was given Miranda warnings at the Camden police
station, which he waived, and was questioned by Officer Kellejan.
[Petitioner] made exculpatory statements.[ 1 ] On November 3,
2001, [Petitioner] was arrested for the Fussell murder and brought
to the Camden police station. He was again issued Miranda
warnings, which he waived, and was again questioned by Officer
Kellejan. [Petitioner] reaffirmed his statements from his session . .
. on October 5th.
A grand jury returned a four-count indictment against
[Petitioner], 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); Count Two
The Third Circuit summarized the information contained in those statements as follows:
In his October 5th session with Officer Kellejan, [Petitioner]
admitted to being in the neighborhood at the time of the shooting.
He said while on Chelton Street, individuals in a vehicle began to
shoot at him, and he ran away. [Petitioner] was unable to describe
the individuals who shot him, nor could he think of any reason
people would want to shoot him. When Officer Kellejan asked
[Petitioner] to point out where he was shot, [Petitioner] said he was
not sure he had been wounded that evening. Rather, he showed
Officer Kellejan a scar on his ankle which he said he received four
weeks earlier. [Petitioner] denied having any involvement in the
shooting of Kenneth Fussell and denied having a gun that evening.
He admitted the hoodie and baseball cap found at the scene were
his. In his session on November 3, 2001, [Petitioner] reiterated
his statements from the previous interview about the events of
October 4, 2001.
Judge, 447 F. App’x at 415 n. 11.
The indictment also charged Dennis Rodriguez, Francisco Morales, Ruben Lozada, and Mark
charged [Petitioner] and Lewis with murder in furtherance of a
continuing criminal enterprise or a drug-trafficking conspiracy,
under 21 U.S.C. § 848(e)(1)(A); Count three charged [Petitioner]
and Lewis with murder in the course of a firearms offense, under 18
U.S.C. § 924(c) and Count Four charged [Petitioner] with
possession of a firearm by a convicted felon, under 18 U.S.C. §
922(g). After a two-month trial, the jury found the defendants
guilty on all counts.
Judge, 447 F. App’x at 411-12.
This Court thereafter sentenced Petitioner to concurrent life sentences on counts one and
two, a one hundred and twenty month sentence on count four to run concurrent with counts one
and two, and a consecutive one hundred and twenty month sentence on count three. (Document
2 attached to ECF No. 15). Petitioner appealed his conviction and sentence. The Third Circuit
affirmed on October 11, 2011. Judge, 447 F. App’x at 409. Petitioner thereafter filed the instant
§ 2255 motion.
A. Legal Standard
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:
A prisoner in custody under sentence of a court established by Act
of Congress claiming the right to be released upon the ground that
the sentence was imposed in violation of the Constitution or laws of
the United States, or that the court was without jurisdiction to
impose such a sentence, or that the sentence was in excess of the
maximum authorized by law, or is otherwise subject to collateral
attack, may move the court which imposed the sentence to vacate,
set aside or correct the sentence.
Davis, all of whom pled guilty, as parts of the same conspiracy. Judge, 447 F. App’x at 412 n.
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.
1. An evidentiary hearing is not required
Under § 2255, a motion to vacate requires an evidentiary hearing “unless the motion and
files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C.
§ 2255(b); United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005); United States v. Day, 969
F.2d 39, 41-42 (3d Cir. 1992). Where the record, supplemented by the trial judge’s personal
knowledge, conclusively negates the factual predicates asserted by the petitioner or indicate that
petitioner is not entitled to relief as a matter of law, no hearing is required. Government of Virgin
Islands v. Nicholas, 759 F.2d 1073, 1075 (3d Cir. 1985); see also United States v. Tuyen Quang
Pham, 587 F. App’x 6, 8 (3d Cir. 2014); Booth, 432 F.3d at 546 (evidentiary hearing is necessary
only where the petitioner’s claims are not conclusively resolved by the record). For the reasons set
out below, Petitioner’s claims are without merit, and therefore the record establishes that Petitioner
is not entitled to relief as a matter of law. As such, no evidentiary hearing is required on
Petitioner’s § 2255 motion.
2. Petitioner’s ineffective assistance of counsel claims
In his motion, Petitioner raises numerous arguments in support of his claim that trial
counsel was constitutionally ineffective. Claims of ineffective assistance are governed by the
two-prong test set forth in the Supreme Court’s opinion in Strickland v. Washington, 466 U.S. 668
(1984). To make out such a claim under Strickland, a petitioner must first show that “counsel’s
performance was deficient. This requires showing that counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed by the Sixth Amendment.” Id. at 687;
see also United States v. Shedrick, 493 F.3d 292, 299 (3d Cir. 2007). To succeed on an ineffective
assistance claim, a petitioner must also show that counsel’s allegedly deficient performance
prejudiced his defense such that the petitioner was “deprive[d] of a fair trial . . . whose result is
reliable.” Strickland, 466 U.S. at 687; Shedrick, 493 F.3d at 299.
In evaluating whether counsel was deficient, the “proper standard for attorney performance
is that of ‘reasonably effective assistance.’” Jacobs v. Horn, 395 F.3d 92, 102 (3d Cir. 2005). A
petitioner asserting ineffective assistance must therefore show that counsel’s representation “fell
below an objective standard of reasonableness” under the circumstances.
reasonableness of counsel’s representation must be determined based on the particular facts of a
petitioner’s case, viewed as of the time of the challenged conduct of counsel. Id. In scrutinizing
counsel’s performance, courts “must be highly deferential . . . a court must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” Strickland, 466 U.S. at 689.
Even where a petitioner is able to show that counsel’s representation was deficient, he must
still affirmatively demonstrate that counsel’s deficient performance prejudiced the petitioner’s
defense. Id. at 692-93. “It is not enough for the defendant to show that the errors had some
conceivable effect on the outcome of the proceeding.”
Id. at 693.
The petitioner must
demonstrate that “there is a reasonable probability, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. at 694; see also Shedrick, 493 F.3d at
299. Where a “petition contains no factual matter regarding Strickland’s prejudice prong, and
[only provides] . . . unadorned legal conclusion[s] . . . without supporting factual allegations,” that
petition is insufficient to warrant an evidentiary hearing, and the petitioner has not shown his
entitlement to habeas relief.
See Palmer v. Hendricks, 592 F.3d 386, 395 (3d Cir. 2010).
“Because failure to satisfy either prong defeats an ineffective assistance claim, and because it is
preferable to avoid passing judgment on counsel’s performance when possible, [Strickland, 466
U.S. at 697-98],” courts should address the prejudice prong first where it is dispositive of a
petitioner’s claims. United States v. Cross, 308 F.3d 308, 315 (3d Cir. 2002).
Petitioner’s argument that counsel was ineffective in not objecting to Petitioner’s
Petitioner first argues that his counsel was ineffective in that counsel failed to object to the
Court’s sentencing of Petitioner on counts two, three, and four of the indictment. Petitioner’s
argument, essentially, is that he is being punished multiple times for a single criminal event: the
killing of Kenneth Fussell. Count two of the indictment charged Petitioner with murder in
furtherance of either a continuing criminal enterprise or drug trafficking conspiracy in violation of
21 U.S.C. § 848(e)(1)(A), count three with murder using a firearm during a drug trafficking offense
in violation of 18 U.S.C. §§ 924(c)(1) and 924(j), and count four with being a felon in possession
of a firearm in violation of 18 U.S.C. § 922(g)(1). Petitioner argues that receiving a punishment
for all three offenses violates the Double Jeopardy Clause of the United States Constitution, and
counsel was therefore ineffective in failing to object to this Court’s sentence. The Government
has also raised, and Petitioner in his reply adopted, the argument that count one, charging Petitioner
with engaging in a continuing criminal enterprise in violation of 21 U.S.C. § 846, is a lesser
included offense of count two, and that receiving a sentence as to both counts one and two violates
the Double Jeopardy Clause.
The Double Jeopardy Clause of the United States Constitution “provides that no person
shall ‘be subject for the same offence to be twice put in jeopardy of life or limb.’” United States
v. Dixon, 509 U.S. 688, 695-96 (1993) (quoting U.S. Const. amend. V). The clause protects
individuals from both successive punishments and successive prosecutions for the same criminal
offense. Id. at 696.
Although Courts generally turn to the test provided by Blockburger v.
United States, 284 U.S. 299 (1932), to evaluate claims that a petitioner has been twice sentenced
for the same offense, that test “is not controlling when the legislative intent is clear from the face
of the statute or the legislative history.” United States v. Costa, 553 F. App’x 227, 234 (3d Cir.
2014) (quoting Garrett v. United States, 471 U.S. 773, 779 (1985)). “Because ‘the Double
Jeopardy Clause does no more than prevent the sentencing court from prescribing greater
punishment than the legislature intended[,] . . . a Double Jeopardy challenge must fail if the
statutory text clearly reflects a legislative intent to impose multiple sentences on a defendant for a
single underlying transaction. Id. (quoting United States v. Berrios, 676 F.3d 118, 138 (3d Cir.
2012). “If, after inspection, Congress’s intent remains unclear, cumulative sentencing poses no
double jeopardy problem only if ‘each provision requires proof of a fact which the other does not,’
thereby satisfying Blockburger.” Berrios, 676 F.3d at 138 (quoting Blockburger, 284 U.S. 304).
As the Blockburger test is merely a means of discerning congressional intent, it does not control
where there is a clear contrary indication of legislative intent. Id. at 138-39.
“Under the concurrent sentence doctrine, a court has ‘discretion to avoid resolution of legal
issues affecting less than all counts in an indictment if at least one will survive and sentences on
all counts are concurrent.’” Parkin v. United States, 565 F. App’x 149, 152 (3d Cir. 2014)
(quoting United States v. McKie, 112 F.3d 626, 628 n. 4 (3d Cir. 1997)); see also United States v.
Am. Investors of Pittsburgh, Inc., 879 F.2d 1087, 1100 (3d Cir. 1989). The concurrent sentence
doctrine, however, is inapplicable where the challenged conviction at issue “carries continued
collateral consequences.” Id. (citing Spencer v. Kemna, 523 U.S. 1, 8-12 (1998); Kendrick v. Dist.
Attorney of Cnty. of Philadelphia, 488 F.3d 217, 220 (3d Cir. 2007). Unlike on direct review, as
habeas relief is available only to challenge custody, and not the imposition of fines or special
assessments, that a separate fine or special assessment was imposed does not qualify as a continued
collateral consequence sufficient to defeat application of the concurrent sentence doctrine in the §
2255 context. See Ryan v. United States, 688 F.3d 845, 849 (7th Cir. 2012); Ridley v. Smith, 179
F. App’x 109, 110-11 (3d Cir. 2006) (“§ 2255’s language clearly and unambiguously limits its
applicability to defendants seeking release from custody . . . [i]t is not available to those . . . who
challenge only fines or restitution orders”); cf. Ray v. United States, 481 U.S. 736 (1987) (special
assessments sufficient to make sentences not concurrent on direct review). Thus the concurrent
sentence doctrine is still applicable under § 2255 where the only consequence that is not concurrent
to both sentences is a special assessment. Ryan, 688 F.3d at 849; Parkin, 565 F. App’x at 152
(upholding application of the concurrent sentence doctrine).
Here, Petitioner was sentenced to concurrent life sentences on counts one and two, one
hundred and twenty months’ imprisonment for count four to be served concurrently with the life
sentences on counts one and two, and a term of one hundred and twenty months on count three to
run consecutive to the other sentences. (Document 2 attached to ECF No. 15 at 2). Even
assuming arguendo that count one is a lesser included offense of count two, and it would be
improper to impose a sentence on both count four and count two simultaneously, this Court need
not address any such argument as Petitioner received sentences on counts one and four which ran
concurrently with the natural life sentence on count two which would remain. As Petitioner
would still be subject to a life sentence on count two even given those assumptions, the concurrent
sentence doctrine applies, and this Court need not consider Petitioner’s arguments as to the alleged
double jeopardy concerns arising from the imposition of concurrent sentences on counts one, two,
and four. Parkin, 565 F. App’x at 152.
The only remaining claim as to Petitioner’s sentence, then, is his claim that the sentence
on count three was multiplicious of the concurrent sentence rendered on the remaining counts, and
that counsel was therefore ineffective for failing to challenge that sentence. Petitioner’s argument
as to count three is without merit, however. The clear and unambiguous text of 18 U.S.C. § 924(c)
clearly establishes that Congress intended punishment under § 924(c) and § 924(j) to be subject to
separate punishment in addition to any punishment imposed on the underlying crime. See 18
U.S.C. § 924(c)(1)(A) (“any person who [violates § 924] shall, in addition to the punishment
provided for [the underlying] crime of violence or drug trafficking crime . . . be sentenced [under
§ 924]”); § 924(c)(1)(D)(ii) (“no term of imprisonment imposed on a person under this subsection
shall run concurrently with any other term of imprisonment imposed on the person, including any
term of imprisonment imposed for the crime of violence or drug trafficking during which the
firearm was used, carried, or possessed”). Congress clearly intended criminals to receive an
additional punishment for violations of § 924 over and above that received for the underlying
criminal conduct, and that such punishment should run consecutively to the sentence for the
underlying crime. As Congress’s intent is clear and dispositive of Petitioner’s double jeopardy
claims as to count three, this Court need not refer to the Blockburger test. Because Petitioner is
not entitled to habeas relief as to the sentences on counts one, two, and four pursuant to the
concurrent sentence doctrine, and because the plain text of § 924 clearly establishes a
congressional intent to impose an additional sentence, Petitioner has failed to show that he has a
viable double jeopardy claim, and as such has failed to show that he is entitled to relief under §
2255 on this claim as counsel was not deficient in failing to challenge the additional sentence
imposed on count three.
b. Petitioner’s argument that counsel was ineffective for failing to call certain witnesses at
Petitioner next argues that counsel was ineffective in that he did not call certain witnesses
at trial, did call Ruben Lozada, and as a result of these decisions failed “to put on a reasonable
defense.”3 In his amended petition, Petitioner specifically challenges counsel’s decisions not to
The Court considers in this section both Petitioner’s points two and six. In his reply brief,
Petitioner made clear that his argument as to failure to put on a defense was based on his
assertions as to Lozada and counsel’s “failure” to call the other witnesses discussed here. As
call Dr. Bogacki, a psychologist who interviewed Petitioner prior to trial, and one of his codefendants, Jevon Lewis, and counsel’s decision to call Lozada as a witness following only a brief
interview. In his reply brief, Petitioner attempts to add a claim that counsel was also ineffective
for failing to call two additional witnesses, one of whom allegedly saw Petitioner on the night of
As to the two witnesses whose purported testimony was first raised in Petitioner’s reply
brief, this Court notes that a “moving party may not raise new issues and present new factual
materials in a reply brief that it should have raised in its initial brief.” D’Allessandro v. Bugler
Tobacco Co., Civil Action No. , 2007 WL 130798, at *2 (D.N.J. Jan. 12, 2007) (quoting Int’l Raw
Materials, Ltd. V. Stauffer Chem. Co., 978 F.2d 1318, 1327 n. 11 (3d Cir. 1992)).
extends to the habeas context as “[b]asic fairness requires that an opposing party have a fair notice
of his adversary’s claims, as well as an opportunity to address those claims.” Soto v. United
States, Civil Action No. 04-2108, 2005 WL 3078177, at *6 (D.N.J. Nov. 16, 2005); see also
Thompson v. United States, Civil Action No. 12-1312, 2015 WL 1344793, at *6 n. 9 (D.N.J. Mar.
The prohibition against raising new facts and arguments in reply is especially
applicable where, as here, a Petitioner was provided a Miller notice advising him that all claims
must be presented in one § 2255 motion and Petitioner responded to that notice by the filing of an
amended petition in which Petitioner could easily have raised the points he now seeks to raise in
reply. See, e.g., Rodriguez v. United States, Civil Action No. 04-158, 2005 WL 2007033, at *9
n. 7 (D.N.J. Aug. 22, 2005). This Court therefore need not, and will not, consider Petitioner’s
such, these two claims both concern counsel’s decision to call or not call certain witnesses, and
this Court will therefore discuss those two claims together.
arguments regarding counsel’s failure to call Tralanna Redd or Shanel Nelson as Petitioner was
provided ample opportunity to include those claims in his amended motion, but chose not to do
so, instead waiting to raise these claims for the first time in his reply brief to which the United
States does not have an opportunity to respond.4 This Court will therefore evaluate Plaintiff’s
claim only as to counsel’s failure to call Dr. Bogacki and Jevon Lewis, and alleged deficiency in
choosing to call Ruben Lozada.
Petitioner challenges counsel’s decision as to which witnesses to call at trial. Where a
petitioner challenges his counsel’s decision as to which witnesses to call, courts “are ‘required not
simply to give [the] attorney the benefit of the doubt, but to affirmatively entertain the range of
possible reasons [petitioner’s] counsel may have had for proceeding as he did.’” Branch v.
Sweeney, 758 F.3d 226, 235 (3d Cir. 2014). “Strickland requires that a defendant ‘overcome the
presumption that, under the circumstances, the challenged action might be considered sound trial
strategy.’ 466 U.S. at 689 (internal quotation marks omitted). If the Government ‘can show that
counsel actually pursued an informed strategy (one decided upon after a thorough investigation of
the relevant law and facts),’ the effectiveness of counsel’s assistance is ‘virtually unchallengable.’
Thomas v. Varner, 428 F.3d 491, 500 (3d Cir. 2005).” United States v. Graves, --- F. App’x ---,
---, 2015 WL 3406548, at *2 (3d Cir. May 28, 2015).
This Court notes, however, that Shanel Nelson would purportedly only testified that Redd
approached her after the shooting of Fussell. (ECF No. 25). Trelana Redd in turn avers that
she would have testified to seeing Petitioner on the night of the shooting and saw him run off
after hearing shots fired. (Id.). Redd’s purported testimony, however, does not appear to match
the statement Petitioner gave to police as she makes no mention of the vehicle from which
Petitioner told police someone fired upon him. (Id.). Thus, the Court notes that even were it to
consider Petitioner’s untimely allegations as to these witnesses, they would be of dubious merit
Petitioner first challenges counsel’s refusal to call Dr. Bogacki to the stand. Petitioner
argues that Bogacki could have provided Petitioner’s version of the events which occurred on the
night of the Fussell murder and could have given explanations for Petitioner’s behavior.
Petitioner fails to provide an affidavit or other supporting documentation in support of his claims
that Bogacki would have so testified. Preliminarily, this Court notes that Petitioner’s failure to
provide a sworn statement as to the testimony Bogacki, and, for that matter, Jevon Lewis,
purportedly would have given at trial prevents Petitioner from being able to show that he suffered
any prejudice by counsel’s failure to call them as witnesses. See, e.g., Tolentino v. United States,
Civil Action No. 13-4168, 2014 WL 3844807, at *3 (D.N.J. July 31, 2014) (“[a petitioner’s] failure
to include a sworn statement regarding the nature of [a witness’s] proposed testimony is fatal to
his making a prima facie showing of prejudice”); see also Duncan v. Morton, 256 F.3d 189, 20102 (3d Cir. 2001).
Putting aside the fact that the failure to provide such a sworn statement prevents Petitioner
from being able to show any prejudice as a result of counsel’s failure to call Bogacki or Lewis, the
record before this Court clearly establishes that the choice not to call Bogacki was based on sound
trial strategy. As the memorandum submitted by Petitioner’s former counsel clearly shows (see
Document 1 attached to ECF No. 18), counsel interviewed Dr. Bogacki in advance of making a
decision whether to call him. Counsel found that the statements that Petitioner made to Bogacki
contradicted credible statements made by Sergeant Strang during his testimony, and that counsel
had used the cross examination of Strang to show that Petitioner’s failure to give himself up to
police would have been a natural and non-suspect action under the circumstances. (Id. at 1).
Thus, Bogacki’s testimony as to Petitioner’s version of events would have run counter to counsel’s
assertion during the Strang cross that Petitioner acted naturally when confronted by police the
night of the shooting and Petitioner’s behavior did not suggest guilt. (Id.). Counsel also notes
in his memo that Bogacki’s recollection of Petitioner’s claims included information that ran
directly afoul of the physical evidence recovered when Petitioner was arrested. (Id.). Counsel
therefore felt that Bogacki’s testimony would have either confused the jury or would have outright
harmed the credibility of Petitioner’s statements to police that he had not shot Fussell. (Id. at 12). Counsel also noted that Bogacki would be subject to cross examination which could result in
the revelation of Petitioner’s previous conviction for manslaughter. (Id. at 2). Based on the
information collected from Bogacki, counsel therefore felt that calling the doctor would hurt, rather
than aid Petitioner’s case, and made an informed and strategic decision not to call Bogacki. (Id.
at 2-3). Indeed, counsel’s memo indicates that both Dr. Bogacki and Petitioner himself came to
the same conclusion. (Id. at 3-4). As counsel’s decision was informed and based on sound trial
strategy (reducing contradiction and not hurting Petitioner’s defense), this Court concludes that
his decision not to call Bogacki was not deficient. Graves, --- F. App’x at ---, 2015 WL 3406548,
As to Jevon Lewis, Petitioner has also failed to provide any sworn statement as to what
testimony Lewis would have given. Indeed, as Lewis was a co-defendant in Petitioner’s case,
counsel could not have compelled Lewis to testify even had counsel desired to do so. Another
flaw in Petitioner’s argument as to Lewis is that Lewis, during a proffer session with the
Government following his conviction admitted his role in the conspiracy at issue. As Petitioner
himself states, Lewis admitted that
Morales agreed to pay Lewis $10,000 to [kill Fussell].
Lewis further stated that he subcontracted the murder out to Jamar
Bacon. He said he chose Bacon because he knew Bacon was
aggressive and therefore likely to agree to kill Fussell. Lewis said
that he could not remember if [Petitioner] was present when Lewis
offered the murder contract to Bacon, but Lewis acknowledge that
Bacon and [Petitioner] were always together and did everything
together. Lewis stated that he dealt with Bacon and not [Petitioner]
regarding the murder, and that after the murder, Bacon told Lewis
that both Bacon and [Petitioner] committed the murder[.]
(Petitioner’s reply brief, ECF No. 23 at 7). Petitioner has therefore essentially admitted that
Lewis’s testimony could only have harmed him. While Petitioner seems to believe that these
purported statements would indicate his innocence, they would clearly have harmed Petitioner had
they been made at trial, and counsel would therefore have acted correctly in deciding not to call
Lewis. In any event, as Petitioner has failed to provide any sworn testimony as to what Lewis
would have testified, he cannot demonstrate prejudice and therefore cannot show that counsel was
ineffective for failing to call Lewis. Duncan, 256 F.3d at 201-02; Tolentino, 2014 WL 3844807
Petitioner’s final claim as to counsel’s alleged deficiency in choosing which witnesses to
call is his assertion that counsel was ineffective in that he chose to call Ruben Lozada as a defense
witness. Petitioner bases this assertion on his argument that Lozada was not a credible witness
and thus suffered on cross examination, something he alleges counsel would have realized had he
spoken with Lozada for more than a few minutes. As to Petitioner’s assertion that counsel met
only briefly with Lozada, records provided by counsel show that he and co-counsel met and spoke
with Lozada for half an hour before choosing to call him to the stand. (Document 2 attached to
ECF No. 18). Petitioner’s assertion that counsel did not take more than a few minutes to speak
with Lozada before calling him appears to be meritless.
More importantly, the decision to call Lozada was a perfectly sound strategic choice.
Although Lozada’s credibility may have been questionable, counsel chose to call him based at
least in part on a Brady disclosure provided by the government indicating that Lozada had told the
Government that Raymond Morales had told Lozada that Morales had killed Fussell himself. (See
Document 6 attached to ECF No. 15). Lozada testified that to this same information at trial. (See
Document 3 attached to ECF No. 15 at 3-5). Although Lozada’s credibility was challenged on
cross examination, no information elicited from Lozada in any way harmed Petitioner or would
suggest that Petitioner was responsible for the Fussell murder.
Thus, Lozada’s testimony
provided counsel with a means to suggest an alternative killer for Fussell without any risk of
inculpating Petitioner. As such, it was sound trial strategy to call him, regardless of the attacks
his credibility would suffer on cross examination. Counsel made an informed, strategic choice to
call Lozada after a half hour interview and review of the Government’s Brady disclosure, and that
choice resulted in no negative information regarding Petitioner coming to light.
Petitioner has failed to show that counsel was deficient in calling Lozada, and Petitioner has
therefore failed to show that counsel was ineffective. Graves, --- F. App’x at ---, 2015 WL
3406548, at *2.
c. Petitioner’s argument that counsel was ineffective for failing to move to dismiss count
three of the indictment as time barred
Petitioner also argues that counsel was ineffective for failing to move to dismiss count three
of the indictment as time barred as the superseding indictment in which Petitioner was first charged
with murder with a firearm in the course of a drug trafficking offense was returned more than five
years after the events in question occurred. Movant bases his argument on the assertion that 18
U.S.C. § 924(c) is subject to a five year statute of limitations, and his assertion that §924(j) is
merely a sentencing enhancement that cannot increase the statute of limitations. Petitioner is
Petitioner bases his argument on 18 U.S.C. § 3282(a). That statute provides that “[e]xcept
as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any
offense, not capital, unless the indictment is found or the information is instituted within five
years next after such offense shall have been committed.” 18 U.S.C. § 3282(a) (emphasis added).
The statute’s clear language states that it does not apply in capital cases, i.e. those where the
potential maximum sentence is death. Offenses punishable by death are instead subject to 18
U.S.C. § 3281, which provides that an “indictment for any offense punishable by death may be
found at any time without limitation.” 18 U.S.C. § 924(j) clearly states that, where a person
violates § 924(c) by committing a murder, the Petitioner “shall . . . be punished by death or by
imprisonment for any term of years or for life.” By the statute’s plain language, a violation of §
924(j) is punishable by death, and as such there is no statute of limitations applicable to count three
of Petitioner’s superseding indictment. Accord United States v. Korey, 614 F. Supp. 2d 573, 582
(W.D. Pa. 2009) (even where death penalty is not applicable to a given defendant due to his minor
status, a violation of 18 U.S.C. § 924(j) is not subject to any statute of limitations as it is still
“punishable by death”). Petitioner’s assertion that count three was subject to a five year statute
of limitations is therefore clearly without merit and any objection on that basis by counsel would
have been denied. As such, counsel was not deficient for failing to make such an objection and
Petitioner has therefore failed to show counsel was ineffective on this ground. See United States
v. Aldea, 450 F. App’x 151, 152 (3d Cir. 2011) (“[c]ounsel cannot be ineffective for failing to raise
meritless claims”); United States v. Berry, 314 F. App’x 486, 489 (3d Cir. 2008); Wets v. Vaughn,
228 F.3d 178, 203 (3d Cir. 2000); Parrish v. Fulcomer, 150 F.3d 326, 328-29 (3d Cir. 1998).
d. Petitioner’s argument that counsel was ineffective for failing to object to the indictment’s
failure to allege the elements of aiding and abetting
Petitioner next argues that counsel was deficient for failing to object to the indictment as
the indictment did not contain language properly alleging aiding and abetting liability.
Petitioner’s argument is utterly without merit. First, this Court notes that the indictment contained
statutory references to the aiding and abetting statute, 18 U.S.C. § 2, in relation to counts two,
three, and four, and Petitioner’s assertion is thus entirely incorrect. (See Superseding Indictment,
Criminal Action No. 06-76 at ECF No. 99 at 13, 15, 16). Even were Petitioner’s assertion that
there was no reference to the aiding and abetting statute accurate, however, Petitioner’s argument
would still fail. As the Third Circuit has explained, “every ‘indictment must be read as if 18
U.S.C. §2 were embodied in each count.’” United States v. Wasserson, 418 F.3d 225, 232 (3d
Cir. 2005) (quoting United States v. Forsythe, 560 F.2d 1127, 1136 n. 15 (3d Cir. 1977)).
“Accordingly, the indictment need not specifically charge aiding and abetting in order to support
a conviction for aiding and abetting.” Id. An objection to the indictment for failure to allege
aiding and abetting would therefore have been denied as meritless and counsel was thus not
deficient for failing to make such a motion. Aldea, 450 F. App’x at 152; Wets, 228 F.3d at 203;
Parrish, 150 F.3d at 328-29.
Petitioner’s argument that counsel was ineffective for failing to challenge the
government’s “vouching” for witnesses during summation
Petitioner next contends that counsel was ineffective for failing to object to the
Government’s “vouching” for the credibility of various witnesses during summation. As the
Third Circuit has explained:
[v]ouching 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. A prosecutor’s vouching for the credibility of a
government witness raises two concerns: (1) such comments can
convey the impression that evidence not presented to the jury, but
known to the prosecutor, supports the charges against the defendant
and can thus jeopardize the defendant’s right to be tried solely on
the basis of the evidence presented to the jury; and (2) the
prosecutor’s opinion carries with it the imprimatur of the
Government and may induce the jury to trust the Government’s
judgment rather than its own view of the evidence.
Our case law indicates that to find vouching two criteria
must be met: (1) the prosecutor must assure the jury that the
testimony of a Government witness is credible; and (2) this
assurance is based on either the prosecutor’s personal knowledge or
other information not contained in the record. Thus, it is not
enough for a defendant on appeal to assert that the prosecutor
assured the jury that a witness’ testimony was credible. The
defendant must be able to identify as the basis for that comment an
explicit or implicit reference to either the personal knowledge of the
prosecuting attorney or information not contained in the record. It
follows that where a prosecutor argues that a witness is being
truthful based on the testimony given at trial, and does not assure
the jury that the credibility of the witness based on his own personal
knowledge, the prosecutor is engaging in proper argument and is not
vouching. Likewise, prosecutorial comment that points to a lack of
evidence in the record which supports a defendant’s argument that
the witness is not credible is proper so long as the comment does not
constitute an assurance by the prosecutor that the witness is credible.
United States v. Walker, 155 F.3d 180, 184, 187 (3d Cir. 1998); see also United States v. Lore,
430 F.3d 190, 211-12 (3d Cir. 2005).
Here, Petitioner challenges the following exchanges from the Government’s summation:
But please consider each witness separately. Do not let the
defense attorneys lump them all together. Every witness is
different. You scrutinize every witness; I saw you doing this, I saw
you looking at the witnesses.
And now we move to a closely related topic. Let’s ask
whether any of the testimony of – at this trial was enhanced. What
do I mean by enhanced testimony[?]
Well, once again the defense would have you believe that the
cooperating witnesses were desperate to get the benefit of their plea
So, wouldn’t you expect such witnesses[,] if they decided to
lie on the witness stand[,] to make their testimony better so that the
chances for conviction of these defendants would improve? Many
cooperating witnesses had ample opportunities if they wanted to
improve the impact of their testimony.
Let’s take a critical example from this case. Jermaine
Coleman and the Ahmed Judge confession; Jermaine Coleman
testified that at one point during his conversation with [Petitioner],
he asked [Petitioner] essentially were you actually the guy who shot
. . . the victim.
Jermaine Coleman could have said yeah, [Petitioner] told me
yes. Instead Jermaine stood up to you and he showed you what
[Petitioner] did (indicating), but he said that [Petitioner] did not give
a verbal response.
You know that Jermaine talked to [Petitioner] for a while
before Trevor Smith joined that conversation, so all Jermaine
Coleman had to say was [Petitioner] told me he did it before Trevor
Smith joined in. It’s a freebee, there is nobody there to contradict
And then Jermaine would have had no fear that Trev would
contradict him. This was an easy opportunity for Jermaine to
improve the evidence against [Petitioner], yet he did not do so.
What does that tell you about whether he was lying during
his testimony[?] Such a simple way to enhance his testimony, yet
he chose not to do so. Yet supposedly facing so much time in
prison, Jermaine Coleman would do anything to help the
Government and thereby himself.
How many times during this trial did [the Government] ask
a witness a question, and an affirmative answer would have
provided additional evidence, and the answer was no, or I do not
know. Or on occasion we said something wrong or inaccurate and
the witness corrected us.
So we ask you to consider whether the refusal of the
Government’s witnesses to enhance their testimony is relevant to the
credibility of those witnesses.
What was Donte Pettit’s motive to lie? Did he receive or will
he receive a benefit from the Government? He testified that the
only reason he was here in this courtroom was because [he] had been
subpoenaed to testify. Do you think he knew why Jevon Lewis
came to him and asked him to bail out [Petitioner]?
. . . Karah Moore said that he saw Ray Morales and Jevon Lewis
together just once. Karah Moore could easily have enhanced and
said, A, he saw them together a number of times; and B, that Lewis
told him that he was buying from Ray, or vice versa that Ray was
selling to Lewis.
But Karah Moore did not do so. Why?
Government submits that he told you the truth.
Karah Moore also testified that in 2001 he saw Lewis and
[Petitioner] and Jaymar together quite a few times. He told you that
on a couple of those occasions he saw Jaymar and [Petitioner] exit
Lewis’ car, and they would look around and they would act like they
were protecting someone with their hands inside their shirts as if
they were carrying a gun.
He didn’t see a gun; why not enhance[ his testimony?]
[discussing the interview of Petitioner by Kevin Kellejan]
Another example of something strange [said by Petitioner in the
interview], [Petitioner] was running and his clothing [including a
hooded sweatshirt, hat, and dog tags] “just came off.” It just came
off? Ask yourselves[,] is it so suprising that Kevin Kellejan
remembered that specific answer[?] And is it surprising that when
he heard it he wrote it down in quotes in his report?
By the way, if Sergeant Strang really wanted to strengthen
the case against [Petitioner], if he really wanted to help convict
[Petitioner], why doesn’t he simply say “oh yeah, [Petitioner] told
me he did it.” Why not enhance? Same thing is true for Kevin
Kellejan, who interviewed him for hours. So what does that tell
you about their credibility as witnesses[?]
Murray would also testify that he would see Jaymar at
Lewis’ drug set, that Jaymar would go to Cool V as he called Jevon
Lewis, and Jaymar and Lewis would go off to the side; Murray
would not hear what they were talking about, and Murray would
leave the set.
Ask yourself, why didn’t Murray enhance that testimony, tell
you what they were talking; tell you what they talked about[?] It’s
a freebee, one man’s dead, the other guy’s on trial. Once again, the
Government submits that Murray did not enhance his testimony
because he is telling the truth.
And I submit[,] ladies and gentlemen, if Ray Morales is that
smart and all of these things [Defendants argue] are true, you believe
all these things [Defendants claim], that maybe he did dupe the
Government [into believing Petitioner and his codefendants were
guilty], maybe we are just plain stupid.
. . . and here is the problem . . . the defense has with Fillmore Davis’
testimony; they know how much his testimony hurt [Petitioner].
But the problem is that if he has a motive to lie it’s a motive
to help [Petitioner] because he said he is my lifelong friend, of
course I would do nothing to hurt him. That puts the defense in a
very difficult position [in attacking his credibility].
And the reason it is much easier [for the defense] to attack
Raymond Morales’ credibility because he’s a very bad person than
it is to attack the MOB Boys’ credibility. Because try as they
might[,] the defense attorneys could not show you that the MOB
Boys were violent people.
They were relatively smart businessm[e]n who weren’t too
greedy and they ran a drug set, they didn’t sell weight, they allied
themselves with some bad people because they were smart.
[A defense attorney] pointed out to you that Victor
Rodriguez already received a benefit of his cooperation, he already
got a huge break when he was sentenced before.
But has he had any opporuntity to coordinate his testimony
with Ray Morales? And if not why – if they’re both lying[,] why
is so much of his testimony similar to Ray Morales’ testimony?
And more significantly[,] has he enhanced his testimony
against [counsel’s] client? Essentially what he told you was yeah,
I saw Ray come up to him once and tell him I’m trying to get him
on the team, and then – but he doesn’t know anything about Mack
Jones according to him [talking] about Ray selling him stuff. It’s
so easy to enhance.
. . . I’ll talk about this more later, but [counsel] talked about
easy lies, here’s an easy lie; Ray told me one day he sold to Mack
Very easy lie. Victor Rodriguez didn’t choose that path.
Why not ask yourselves whether that affects your assumption of his
I want to finish with one thought and that is the following.
I told you in the beginning of this case, I mean in the beginning of
my closing, when I went through all of these issues about witness
credibility, I raised an issue that I submit to you you never thought
And that is this notion of enhancing your testimony and this
notion if you’re a cooperating witness and you want your sentence
reduction to be as great as you can, that you will try to enhance your
And I asked you to consider if people, cooperating witnesses
have not enhanced their testimony at certain junctures you should
find great significance in that.
And then I listened to all of the defense closings, the hours
of defense closings because I always listen to see whether defense
attorneys have a persuasive response to that.
And it is the Government’s position that the first two defense
attorney’s did not. And the reason is it’s almost impossible to form
a persuasive response to that argument in my opinion.
But [one defense counsel] embraced it. He talked about the
notion of an easy lie, and he’s right, when you can give an easy lie
and you don’t give it, then that is exactly my point.
And he’s right, sometimes it’s not an easy lie, you have to
make up too many details and you can get caught in your details.
But I gave you example after example after example in my
closing argument of points in the testimony of the cooperating
witnesses where the easy lie was available, they did not take it.
I told you about Jermaine Coleman saying that [Petitioner]
went like this (indicating), and you know what an easy lie was in
And as you sit and deliberate and you talk about what the
witnesses said and what they didn’t say. Ask yourselves how easy
it would have been for them to give the easy lie.
And if they did not, does that belie the defense theory that
these people would do anything to get their 5K letter to the judge at
time of sentencing.
But if they would do anything, they should grasp, they
should grab hold of the easy lie. And if they do not, what does that
tell you about credibility. So never forget great caution and care.
Never forget it.
We understand our burden. It’s one of our burdens. We
present witnesses, cooperating witnesses, you have to scrutinize the
testimony. I invite you to scrutinize the testimony.
(Excerpts of the Government’s closing and rebuttal, Document 7 attached to ECF No. 15 at 1-20).
Having reviewed these statements which Petitioner challenges and the totality of the
Government’s closing and rebuttal, it is clear that the Government did not engage in improper
vouching. It is clear from the above excerpts that the Government made a fair argument regarding
the credibility of its witnesses not based on its own opinion or evidence outside of the record, but
rather based on what was testified to by each witness as opposed to what they could have said had
they been possessed of a motive to fabricate information. That these arguments were made in
response or as a preface to defense counsel’s arguments attacking the credibility of these witnesses
makes these arguments entirely proper.
As the Government’s statements in support of the
witness’s credibility were based neither on the Government’s personal knowledge nor on
information outside of the record of trial, these were fair comments and do not run afoul of the
prohibition on vouching during summation. Lore, 430 F.3d at 211-12, Walker 155 F.3d at 187.
Indeed, the only reference to the Government’s opinion in these excerpts Petitioner challenges was
a statement by the Government as to the abstract rhetorical effectiveness of arguments as to why
lack of enhancement does not support credibility, and was made without any accompanying
statement that any given witness was credible. Likewise, the use of the phrase “the Government
submits” in no way transforms the proper argument recounted above into improper vouching as it
is no more than a statement that the prosecutor’s statements represent the Government’s
arguments. Walker, 155 F.3d at 188-89. Petitioner has thus failed to show that the Government
engaged in improper vouching. As the Government did not engage in improper vouching, any
motion to strike on that basis would have been denied, and counsel’s failure to make such a motion
does not constitute ineffective assistance of counsel. Aldea, 450 F. App’x at 152; Wets, 228 F.3d
at 203; Parrish, 150 F.3d at 328-29.
f. Petitioner’s argument that counsel’s errors cumulatively resulted in ineffective assistance
Petitioner argues that, even if individually counsel’s errors are not sufficient to establish
ineffective assistance, those errors cumulatively violate his Sixth Amendment rights. “[E]rrors
that individually do not warrant habeas relief may do so when combined.” Albrecht v. Horn, 485
F.3d 103, 139 (3d Cir. 2007); see also Marshall v. Hendricks, 307 F.3d 36, 94 (3d Cir. 2002).
Cumulative error only warrants habeas relief, however, where a petitioner can show that he was
actually prejudiced. Albrecht, 485 F.3d at 139. A petitioner seeking to make out a cumulative
error claim must therefore show that the errors committed at trial together “had a substantial and
injurious effect or influence in determining the jury’s verdict.” Fahy v. Horn, 516 F.3d 169, 205
(3d Cir. 2008). Essentially, Petitioner must demonstrate that the errors in combination would be
sufficient to show Strickland prejudice. Albrecht, 485 F.3d at 139. As this Court has expressed
above, Petitioner has failed to demonstrate that counsel was deficient, and certainly has not
demonstrated that any of counsels alleged failures resulted in actual prejudice to his case. In light
of the significant evidence presented at trial, Petitioner’s assertions fair no better cumulatively.
Petitioner has failed to establish that counsel was deficient, and has likewise failed to show that he
suffered any prejudice as a result of any alleged errors.
As such, Petitioner has failed to
demonstrate that the alleged cumulative errors warrant habeas relief.
g. Petitioner’s argument that counsel was ineffective for failing to make a speedy trial
Petitioner also argues that counsel was ineffective in that he failed to object to an alleged
violation of Petitioner’s constitutional right to a speedy trial which occurred when he was held first
by the State and later by the Government prior to trial.5 A claim that a petitioner’s constitutional
right to a speedy trial has been violated is evaluated under the four part test announced in Barker
v. Wingo, 407 U.S. 514 (1972). United States v. Claxton, 766 F.3d 280, 293 (3d Cir. 2014);
United States v. Battis, 589 F.3d 673, 678 (3d Cir. 2009). The four Barker factors are as follows:
“the length of the delay, reason for the delay, extent to which the defendant asserted his speedy
trial right, and the prejudice suffered by the defendant.” Battis, 589 F.3d at 678. “None of these
In his amended petition, Petitioner alleged only a constitutional violation of his speedy trial
rights. (ECF no. 8 at 23). In his reply brief, Petitioner argues at length that his constitutional
speedy trial rights were violated, but also states that, to the contrary of the Government’s
assertion in its response, he “does contend that his statutory right to a speedy trial was violated in
this case.” (ECF No. 23 at 24). Petitioner, however, does not argue how his statutory right to a
speedy trial, which is applicable only to federal detention, was violated in this case. As
Petitioner does not make such an argument, he has provided no more than a vague and
conclusory allegation that his statutory right to a speedy trial was violated, and this Court need
not address that argument. See, e.g., United States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000)
(“vague and conclusory allegations in a § 2255 petition may be disposed of without further
investigation by the District Court”). As the statutory speedy trial argument was raised for the
first time in Petitioner’s reply brief, this Court need not consider it for that reason as well.
Thompson, 2015 WL 1344793 at *6 n. 9.
factors is ‘either a necessary or sufficient condition,’ and the factors ‘must be considered together
with such other circumstances as may be relevant.’” Id. (quoting Barker, 407 U.S. at 533). In
evaluating the factors, the court must first examine the length of delay. Id. Where the delay is
relatively brief, no consideration should be given to the other factors, but where the delay is
sufficiently long, the court should review the remaining factors. Id. A delay of fourteen months
is generally sufficiently long to warrant further consideration. Id. “When an arrest on state
charges is followed by a federal indictment, the right to a speedy trial in the federal case is triggered
by the [federal] indictment, and the time period under consideration commences on that date.” Id.
Although Petitioner argues as to both his state and federal periods of detention, Battis
makes clear that the period to be considered for his speedy trial claim would have begun when he
was indicted on federal charges. Petitioner’s claim therefore only concerns the delay starting on
February 1, 2006, when he was indicted, through January 7, 2008, the first day of Petitioner’s trial.
(Criminal Action No. 06-76, ECF No. 1, 193). As the delay between the initial indictment and
the beginning of trial is nearly two years, and certainly more than fourteen months, this Court must
consider the remaining Barker factors.
The next factor this Court must consider is the reason for the delay between Petitioner’s
indictment and trial. Delays attributable to the Government fall into one of three categories:
intentional delay intended to hamper the defense which weighs heavily against the Government,
more neutral delay including delay attributable to negligence and crowded court dockets which
weighs less heavily against the Government, and justifiable delay by the Government, such as to
procure a missing witness. Battis, 589 F.3d at 679. Delay caused by the defense in turn weighs
against the defendant.
Id. at 679-80.
Although the burden to justify the delay is on the
Government, the amount of delay caused by the defendant is subtracted from the period of delay
caused by the Government. Id. at 680. Delay caused by the defense includes delay caused by
the petitioner, his counsel, his co-defendants, or their counsel. Id. at 680; Claxton, 766 F.3d a
Petitioner’s case involved the prosecution of a complex drug conspiracy case involving
numerous defendants and significant amounts of discovery. Petitioner’s matter was therefore
continued between February 15, 2006, a mere two weeks after the indictment and immediately
following the arraignment of the final defendant, and April of 2007 pursuant to orders to continue
requested by all parties, including Petitioner through his counsel. (Criminal Action No. 06-76 at
ECF No. 56, 68, 74, 79, 82). Petitioner’s trial was further delayed between April of 2007 and
September 10, 2007 by various omnibus motions and motions to relieve counsel filed by Petitioner
and his co-defendants. (See, e.g., Criminal Action No. 06-76 at ECF No. 92, 125, 127). While
the period between September 10 and October 9, 2007 can be attributed to the Government’s
motions in limine, and thus falls into the second category of Government delay, the period between
October 9, 2010 and the onset of trial on January 7, 2008, can be fairly attributed to various
requests for delay and motions filed by Petitioner and his co-defendants. (See Criminal Action
No. 06-76 at ECF No. 133, 143, 150, 177, 180, 183). As such, it appears that only approximately
a month and a half of the delay can be attributed to the Government, whereas several months of
delay can be attributed to Petitioner and his co-defendants. As such, when one subtracts delay
attributable to Petitioner and the defense from that attributable to the Government, no delay
remains to prejudice Petitioner’s rights. The reason for the delays of Petitioner’s trial therefore
weigh against any claim that his speedy trial rights were violated.
As Defendant did not make a speedy trial claim during the pendency of his federal
prosecution,6 the third factor weighs against his claim. Battis, 589 F.3d at 680-81. As to the
final factor, prejudice to Petitioner’s defense, Petitioner has failed to show that he suffered any
such prejudice. The only prejudice Petitioner has even attempted to argue resulted from the delay
is his argument in his reply brief that “[a] principal eyewitness to the crime, Ms. Tralanna Redd,
became difficult to persuade to come forward.” (ECF No. 23 at 24). Even putting aside that this
argument was raised in reply, Ms. Redd states in the affidavit Petitioner has provided that she
attempted to come forward and contact Petitioner’s counsel in 2007 during the pendency of
Petitioner’s case in an attempt to testify on his behalf. (ECF No. 25). Thus, even if the Court
did consider Petitioner’s eleventh hour argument, it serves as its own refutation. If Redd sought
to testify during the pendency of the federal prosecution as averred in her affidavit, then the
Government’s alleged delay appears not to have prejudiced Petitioner as Petitioner argues. As
Petitioner has not presented any further argument for prejudice, and this Court perceives no other
basis for such an argument, Petitioner has failed to demonstrate that any delay on the Government’s
part prejudiced his defense. The Barker factors therefore would not have supported any motion
made by counsel asserting Petitioner’s speedy trial rights, and any such motion would therefore
have been denied. Claxton, 766 F.3d a 293-97. As such, counsel’s failure to make such a motion
was therefore not deficient, and provides no basis for a finding of ineffective assistance. Aldea,
Petitioner claims that he made several speedy trial claims before the state courts prior to the
onset of his criminal trial. As those motions, assuming arguendo that Petitioner filed them
predate the start of his federal speedy trial clock, they have no bearing on this claim. Battis, 589
F.3d at 679.
450 F. App’x at 152; Wets, 228 F.3d at 203; Parrish, 150 F.3d at 328-29.
h. Petitioner’s argument that counsel was ineffective for failing to challenge the sufficiency
of the evidence as to count two in post-trial motions
Finally, Petitioner argues that counsel was ineffective in that counsel failed to challenge
the sufficiency of the evidence presented against him in regards of count two, murder in
furtherance of a continuing criminal enterprise or drug trafficking conspiracy, through post-trial
motions. The inherent flaw in Petitioner’s argument, however, is that counsel did raise an
argument as to the sufficiency of the evidence presented as to count two on appeal, and the Third
Circuit rejected that claim on the merits:
[Petitioner] contends he should be acquitted of three of his
convictions – for conspiracy, murder in furtherance of a drugtrafficking conspiracy, and murder in the course of a firearms
offense – for lack of sufficient evidence. . . .
[Petitioner] argues the government did not prove his
participation in a conspiracy to traffic drugs, nor his sharing a unity
of purpose with any co-conspirator. The evidence, [Petitioner]
claims, “at worst placed [him] in the company of drug dealers.” We
Several government witnesses testified about
[Petitioner’s] active participation in Jevon Lewis's cocaine
distribution operations throughout 2001 and 2002. One witness,
Bernard Murray, testified to regularly visiting Lewis's drug set at 8th
and Central Streets, where he would see [Petitioner] onsite, armed
with a gun. Three MOB Boys testified about conversations they
had with [Petitioner] in 2001, during which he complained about the
quality of Lewis's crack cocaine, asked for advice about running a
drug operation, and strategized about opening a new drug set with
Lewis at 10th and Van Hook Streets. Additionally, the government
introduced records showing 135 phone calls between [Petitioner]
and Lewis over a five week period in May and June of 2001. Taken
as a whole, this evidence provided a sufficient basis upon which a
rational jury “could have found the essential elements” of Lewis's
conspiring to traffic cocaine and cocaine base beyond a reasonable
Furthermore, there was sufficient evidence to convict for
murder in furtherance of a drug-trafficking conspiracy. The statute
provides: “[A]ny person engaging in any offense punishable under
section 841(b)(1)(A) of this title . . . who intentionally kills or
counsels, commands, induces, procures, or causes the intentional
killing of an individual and such killing results shall be [subject to
punishment].” Accordingly, the elements of a murder charge under
§ 848 are: an “intentiona[l]” killing; by a defendant “engaging” in
an act punishable under § 841(b)(1)(A) (e.g., drug-trafficking
conspiracy); and a nexus between the killing and the § 841(b)
Viewed in the light most favorable to the government, ample
evidence demonstrated [Petitioner’s] guilt on all three elements of
murder in furtherance of a drug-trafficking conspiracy. As for an
“intentional killing,” an eyewitness saw [Petitioner] fleeing from the
shooting, Sergeant Strang found [Petitioner] hiding in a field thirty
yards away from the murder weapon (subsequently recovered by
two other officers), and two MOB Boys testified that [Petitioner]
confessed to them he had killed Kenneth Fussell. As for
[Petitioner’s] “engaging” in an act punishable under § 841(b)(1)(A),
in his case, conspiracy to traffic drugs, several government
witnesses described [Petitioner] as a regular “muscle” at Lewis's
drug sets, and the government's phone records showed a pattern of
correspondence between [Petitioner] and Lewis consistent with
conspiracy to sell drugs. As for a nexus between the killing and the
drug-trafficking conspiracy, Raymond Morales testified in detail
about arranging for Fussell's death as well as his retaliatory motive.
There was also sufficient evidence with respect to murder in the
course of a firearms offense. [Petitioner’s] arguments on this
charge are derivative of those he makes for the conspiracy charge—
contending that because the government failed to prove his
participation in a drug-trafficking conspiracy, it also failed to prove
his responsibility for murder in the course of firearm offense,
undertaken to carry out the conspiracy. Because we reject
[Petitioner’s] argument on the conspiracy charge, we reject this
argument as well.
Judge, 447 F. App’x at 412-14 (internal citations and footnotes omitted).
As the Third Circuit made clear on direct appeal, the government presented more than
sufficient evidence to convict Petitioner of murder in furtherance of a drug-trafficking conspiracy.
Had counsel moved to dismiss count two of the indictment for insufficient evidence, such a motion
most certainly would have failed. Counsel was therefore not deficient for failing to move to
dismiss count two on that basis, and Petitioner has therefore failed to show that counsel was
ineffective in failing to make that motion. Aldea, 450 F. App’x at 152; Wets, 228 F.3d at 203;
Parrish, 150 F.3d at 328-29.
III. CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 2253(c), a petitioner may not appeal from the final order in a
proceeding under § 2255 unless he has “made a substantial showing of the denial of a constitutional
right.” “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree
with the district court’s resolution of his constitutional claims or that jurists could conclude that
the issues presented here are adequate to deserve encouragement to proceed further.” Miller-El
v. Cockrell, 537 U.S. 322, 327 (2003). As Petitioner’s claims are clearly without merit, he has
failed to make a substantial showing that he was denied a constitutional right, and jurists of reason
could not conclude that his claims are adequate to deserve encouragement to proceed. As such,
no certificate of appealability shall issue.
For the reasons stated above, Petitioner’s motion to file his reply nunc pro tunc and to
exceed the page limit for such a reply is GRANTED, Petitioner’s motion to vacate is DENIED,
and Petitioner is DENIED a certificate of appealability. An appropriate order follows.
Dated: August 11, 2015
s/ Joseph E. Irenas
Hon. Joseph E. Irenas,
Senior United States District Judge
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