GILBERT v. UNITED STATES OF AMERICA
Filing
22
OPINION FILED. Signed by Judge Noel L. Hillman on 4/28/16. (js)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JEFFREY KEARNS GILBERT,
Civil Action No. 14-243 (NLH)
Petitioner,
v.
OPINION
UNITED STATES OF AMERICA,
Respondent.
APPEARANCES:
JEFFREY KEARNS GILBERT
4-L-A Arbor Green
275 Green Street
Edgewater Park, NJ 08010
Petitioner, Pro Se
HOWARD JOSHUA WIENER, Assistant U.S. Attorney
PAUL J. FISHMAN, United States Attorney
401 Market Street
4th Floor
Camden, NJ 08101
Attorneys for the United States of America
Hillman, District Judge:
Currently before the Court is the motion of Petitioner,
Jeffrey Kearns Gilbert, to vacate his sentence pursuant to 28
U.S.C. § 2255.
(ECF No. 1).
Following several extensions, the
Government has filed a response to the motion.
(ECF No. 13).
Despite several extensions and ample opportunity, Petitioner has
not filed a reply brief.
For the following reasons, this Court
1
will deny Petitioner’s motion and will deny Petitioner a
certificate of appealability.
I.
BACKGROUND
Because many of Petitioner’s claims are procedurally
barred, and because Petitioner has failed to establish even a
prima facie case of ineffective assistance of counsel in his
remaining claims, only a brief recitation of the facts
underlying Petitioner’s criminal prosecution is necessary for
the purposes of this opinion.
In December 2001, Petitioner,
Jeffrey Kearns Gilbert, was indicted for the following charges:
three counts of bank fraud in violation of 18 U.S.C. § 1344, two
counts of trafficking in unauthorized access devices in
violation of 18 U.S.C. § 1029(a)(2), and two counts of
possession of at least 15 unauthorized access devices in
violation of 18 U.S.C. § 1029(a)(3).
(Indictment, Criminal
Docket No. 01-789 at ECF No. 33; see also Judgment, Criminal
Docket No. 01-789 at ECF No. 272).
Although Petitioner was initially represented by appointed
counsel (see Orders, Criminal Docket No. 01-789 at ECF Nos. 4,
40), Petitioner ultimately elected to proceed pro se for most of
his pre-trial litigation, albeit with the aid of standby
counsel.
(See Order Relieving Counsel, Criminal Docket No. 01-
789 at ECF No. 60).
During his period of self-representation,
Petitioner filed numerous pre-trial motions in which he sought
2
to suppress evidence, dismiss the indictment, and seek various
forms of discovery.
(See, e.g., Motions, Criminal Docket No.
01-789 at ECF Nos. 96-102).
Prior to trial, however, Petitioner
ultimately elected to have standby counsel appointed as his
counsel of record.
(Order Appointing Counsel, Criminal Docket
No. 01-789 at ECF No. 134).
Petitioner’s case proceeded to trial, and Petitioner was
found guilty of all counts of the indictment by a jury on April
20, 2005.
214).
(Jury Verdict, Criminal Docket No. 01-789 at ECF No.
Following the verdict, Petitioner again elected to
proceed pro se throughout his sentencing.
Docket No. 01-789 at ECF No. 234).
(See Order, Criminal
Although the trial court
permitted Petitioner to resume his self-representation, the
trial court denied Petitioner’s request for the appointment of
new standby counsel.
(Id.).
Petitioner was sentenced on April
13, 2006, to an aggregate prison term of 132 months.
Criminal Docket No. 01-789 at ECF No. 272).
(Judgment,
After the trial
judge denied several of Petitioner’s pre-trial motions,
Petitioner filed notice of his intention to appeal his
conviction on April 20, 2006.
(Notice of Appeal, Criminal
Docket No. 01-789 at ECF No. 273).
Although Petitioner initially filed a financial affidavit
for the purposes of the appointment of counsel on appeal with
the Third Circuit, he ultimately elected to proceed pro se and
3
waive counsel in May of 2006.
(Waiver of Counsel filed May 4,
2006, Third Circuit Docket No. 06-2398 Docket Sheet; see also
Clerk’s Order Permitting Petitioner to Proceed Pro Se on Appeal,
filed June 16, 2006, Third Circuit Docket No. 06-2398 Docket
Sheet).
Petitioner received several extensions of time within
which to file his brief on appeal, and he eventually requested
the appointment of standby counsel, a request which was denied
by the Court of Appeals in May 2007 as the Third Circuit does
not permit “hybrid” representation on appeal.
(See Order
Denying Appointment of Standby Counsel filed on May 1, 2007,
Third Circuit Docket No. 06-2398 Docket Sheet).
Following that denial, Petitioner continued to request
numerous extensions of time without filing an appellate brief
until, on September 10, 2009, the Third Circuit ordered
Petitioner to show cause for his failure to file a brief despite
the fact that his appeal had been pending for over three years.
(See Order filed September 10, 2009, Third Circuit Docket No.
06-2398 at Document No. 00319806538).
In response to that
Order, Petitioner indicated that he was preparing to file his
final brief, and requested that he be permitted to file a
greatly over-length brief of approximately 340 pages.
(See
Motion to Relax Page Limit filed September 24, 2009, Third
Circuit Docket No. 06-2398 at Document No. 00319853510).
On
October 28, 2009, the Third Circuit entered an order denying in
4
part and granting in part Petitioner’s request, and requiring
him to file a brief, the substance of which was not to exceed
fifty pages, on or before December 23, 2009.
(See Order dated
October 28, 2009, Third Circuit Docket No. 06-2398 at Document
No. 00319876615).
Although Petitioner requested, and was granted, numerous
additional extensions, Petitioner failed to ever file a
compliant brief.
(See Order Requiring Petitioner to File a
Compliant Brief Within Forty Days dated November 29, 2010, Third
Circuit Docket No. 06-2398 at Document No. 003110361654).
Based
on his continued failure to file a compliant brief, the Third
Circuit dismissed Petitioner’s appeal for failure to timely
prosecute on September 29, 2011.
(Order Dismissing Appeal dated
September 29, 2011, Third Circuit Docket No. 06-2398 at Document
No. 003110670471).
Petitioner thereafter filed a motion for
reconsideration and for the appointment of counsel to help him
perfect his dismissed appeal, which the Government opposed, but
the Third Circuit denied Petitioner’s requests and terminated
Petitioner’s appeal on April 24, 2012.
(Order dated April 24,
2016, Third Circuit Docket No. 06-2398 at Document No.
003110878453).
Petitioner thereafter filed a petition for
certiorari, which the Supreme Court denied on January 14, 2013.
(See Third Circuit Docket No. 06-2398 Docket Sheet).
5
Petitioner
thus lost his right to appeal because of his own failure to file
a compliant brief.
Petitioner thereafter filed his motion to vacate his
sentence on or about January 14, 2014.
(ECF No. 1).
Judge
Irenas, who was originally assigned to this matter, entered an
order advising Petitioner of his rights under United States v.
Miller, 197 F.3d 644 (3d Cir. 1999), on April 16, 2014.
No. 3).
(ECF
In his response, Petitioner stated that his original
petition set forth all of his claims, but noted that Petitioner
intended to incrementally file various briefs in support of his
motion, starting with an affidavit and appendix of exhibits to
be filed on or before June 30, 2014.
(ECF No. 4).
After the
Government opposed Petitioner’s intention to incrementally file
his supporting brief, Judge Irenas entered an Order on June 27,
2014, requiring the Government to file an answer to the motion
within forty-five days, permitting Petitioner to file a single
reply brief, and limiting all briefs in this matter to “40
ordinary typed or printed pages.”
(ECF No. 7).
In a letter
accompanying that order, Judge Irenas explained to both
Petitioner and the Government that the rules applicable to §
2255 motions would not permit Petitioner to incrementally file
his supporting documents, and that Petitioner’s request to do so
was “specifically denied.”
(ECF No. 6).
6
Following numerous extensions and a request to file a brief
not to exceed 47 pages which Judge Irenas granted, the
Government filed its answer on August 31, 2015.
(ECF No. 13).
Petitioner thereafter filed a motion requesting additional time
to file his reply brief, which this Court granted, permitting
Plaintiff to file his brief on or before December 31, 2015.
(See ECF Nos. 14-15).
On January 4, 2016, Petitioner filed a
letter requesting that this Court relax Judge Irenas’s
restrictions as to the page limit of Petitioner’s reply brief
and requesting another extension of time.
Government opposed that motion.
(ECF No. 17).
(ECF No. 18).
The
On January 13,
2016, this Court entered an Order denying Petitioner’s request
to relax the page limit restrictions, and granting Petitioner
permission to file his reply brief within thirty days.
19).
(ECF No.
In that Order, this Court also specifically advised
Petitioner that he was to file a reply brief and that Petitioner
would be provided with no further extensions.
(Id.).
Despite
that order, Petitioner filed two further letters requesting
extensions on January 29 and February 18, 2016.
21).
(ECF Nos. 20-
Petitioner has filed neither a brief in support of his
motion to vacate his sentence nor a reply brief despite being
provided considerable time in which to file his reply.
7
II.
A.
DISCUSSION
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.
28 U.S.C. § 2255.
Unless the moving party claims a
jurisdictional defect or a constitutional violation, to be
entitled to relief the moving party must show that an error of
law or fact constitutes “a fundamental defect which inherently
results in a complete miscarriage of justice, [or] an omission
inconsistent with the rudimentary demands of fair procedure.”
United States v. Horsley, 599 F.2d 1265, 1268 (3d Cir. 1979)
(quoting Hill v. United States, 368 U.S. 424, 429 (1962)), cert.
denied, 444 U.S. 865 (1979); see also Morelli v. United States,
285 F. Supp. 2d 454, 458-59 (D.N.J. 2003).
8
B.
Analysis
1.
A hearing is not necessary in this matter
A district court need not hold an evidentiary hearing on a
motion to vacate where “the motion and files and records of the
case conclusively show that the prisoner is entitled to no
relief.”
28 U.S.C. § 2255(b); United States v. Booth, 432 F.3d
542, 545 (3d Cir. 2005); United States v. Day, 969 F.2d 39, 4142 (3d Cir. 1992).
“Where the record, supplemented by the trial
judge's personal knowledge, conclusively negates the factual
predicates asserted by the petitioner or indicate[s] that
petitioner is not entitled to relief as a matter of law, no
hearing is required.”
Judge v. United States, 119 F. Supp. 3d
270, 280 (D.N.J. 2015); see also Government of Virgin Islands v.
Nicholas, 759 F.2d 1073, 1075 (3d Cir. 1985); see also United
States v. Tuyen Quang Pham, 587 F. App’x 6, 8 (3d Cir. 2014);
Booth, 432 F.3d at 546.
For the reasons expressed below,
Petitioner’s claims are all clearly either procedurally
defaulted or without merit on the basis of the record before
this Court, and no evidentiary hearing is thus required to
resolve Petitioner’s motion.
2.
Petitioner’s non-ineffective assistance claims are
procedurally defaulted
9
Petitioner’s motion contains numerous claims.
Because
Petitioner failed to perfect his direct appeal, and thus never
raised his various claims on the merits before the Third Circuit
on direct appeal, all of those claims other than Petitioner’s
ineffective assistance claims are procedurally defaulted. 1
“Habeas review is an extraordinary remedy and ‘will not be
allowed to do service for an appeal.’”
Bousley v. United
States, 523 U.S. 614, 621 (1998) (quoting Reed v. Farley, 512
U.S. 339, 354 (1994); Sunal v. Large, 332 U.S. 174, 178 (1947)).
As a result, with the exception of those ineffective assistance
1
Petitioner attempts in his motion to suggest that his claims
that the trial court denied him his right to selfrepresentation, that he was denied due process by prosecutorial
misconduct, and the trial court erred in its rulings on
Petitioner’s various motions to relieve counsel required the
development of facts outside of the record and thus could only
be raised in a collateral proceeding rather than on direct
appeal. Petitioner provides no facts to support these
assertions, and because Petitioner is complaining about rulings
made by the trial court and actions taken by the prosecutor and
counsel on the record, it appears that Petitioner is incorrect.
These claims, too, thus appear to be procedurally defaulted as
Petitioner has not shown that they could not have been raised on
direct appeal. See Massaro, 538 U.S. at 504; Frady, 456 U.S. at
167-68; DeRewal, 10 F.3d at 105 n. 4; Parkin, 565 F. App’x at
151-52. In any event, Petitioner has provided no factual
assertions in support of his allegations, and these three claims
would be subject to denial on that basis as well. See Palmer v.
Hendricks, 592 F.3d 386, 395 (3d Cir. 2010) (a Petitioner fails
to establish his entitlement to habeas relief where he provides
“unadorned legal conclusions” without providing factual support
for those conclusions); United States v. Thomas, 221 F.3d 430,
437 (3d Cir. 2000) (“vague and conclusory allegations contained
in a § 2255 [motion] may be disposed of without further
investigation by the District Court”).
10
of counsel claims which require information outside of the trial
court record, petitioners may not raise in a motion pursuant to
§ 2255 those claims which petitioner could have, but did not,
raise on direct appeal as those claims are considered to have
been procedurally defaulted.
See Massaro v. United States, 538
U.S. 500, 504 (2003); United States v. Frady, 456 U.S. 152, 16768 (1982); see also United States v. DeRewal, 10 F.3d 100, 105
n. 4 (3d Cir. 1993); Parkin v. United States, 565 F. App’x 149,
151-52 (3d Cir. 2014).
A reviewing court will only consider
procedurally defaulted claims in a § 2255 motion on the merits
where the petitioner can either show cause and actual prejudice
or actual innocence.
Massaro, 538 U.S. at 504; Frady, 456 U.S.
at 167-68; Parkin, 565 F. App’x at 151.
Here, Petitioner failed
to perfect his appeal by filing a procedurally proper appellate
brief, and Petitioner has therefore failed to raise any of his
claims before the Third Circuit on the merits, and thus all of
Petitioner’s non-ineffective assistance claims are procedurally
defaulted and would only be cognizable here if Petitioner were
to show cause and actual prejudice or that he is actually
innocent.
Turning first to cause and actual prejudice, a petitioner,
to show cause, must demonstrate that “‘some objective factor
external to the defense impeded counsel’s efforts’ to raise the
claim.”
Parkin, 565 F. App’x at 151 (quoting United States v.
11
Pelullo, 399 F.3d 197, 223 (3d Cir. 2005)).
“Examples of
external impediments which have been found to constitute cause
in the procedural default context include interference by
officials, a showing that the factual or legal basis for a claim
was not reasonably available to counsel, and ineffective
assistance of counsel.”
Pelullo, 399 F.3d at 223.
Counsel’s tactical decisions, ignorance of law or
applicable acts, or failures that are insufficient to establish
constitutional ineffectiveness, however, are insufficient to
establish cause for a procedural default.
See Stradford v.
United States, No. 11-4522, 2013 WL 5972177, at *3 (D.N.J. Nov.
8, 2013); see also Murray v. Carrier, 477 U.S. 478, 485-87
(1986); Engle v. Isaac, 456 U.S. 107, 134 (1982).
Thus, a
petitioner who asserts that counsel’s failings establish cause
for a default must substantially show that counsel was
constitutionally ineffective by establishing both prongs of the
Strickland v. Washington, 466 U.S. 668 (1984), test.
Stradford,
2013 WL 5972177 at *4; see also Trevino v. Thaler, --- U.S. ---,
---, 133 S. Ct. 1911, 1917 (2013); Martinez v. Ryan, --- U.S. --, ---, 132 S. Ct. 1309, 1316-17 (2012); Coleman v. Thompson,
501 U.S. 722, 753-54 (1991) (petitioner generally bears the risk
of his lawyer’s negligence).
Where a petitioner establishes
cause for his default, he must still show that he suffered
actual prejudice by showing that the alleged errors he
12
challenges “worked to his actual and substantial disadvantage
infecting his entire trial with error of constitutional
dimensions.”
Frady, 456 U.S. at 170.
In his petition, Petitioner provides only two arguments as
to the cause of his procedural default: ineffective assistance
of counsel and that the Government deprived him due process by
making “material misstatements” in its brief opposing
Petitioner’s motion to reinstate his appeal before the Third
Circuit.
As this Court will explain below, Petitioner has
failed to establish ineffective assistance of counsel under
Strickland in his motion, and as such, his claims of deficiency
of counsel are insufficient to establish cause and actual
prejudice.
See Stradford, 2013 WL 5972177 at *4; see also
Trevino, 133 S. Ct. at 1917; Martinez, 132 S. Ct. at 1316-17;
Coleman, 501 U.S. at 753-54.
Turning to Petitioner’s second claim, that the Government
somehow denied him Due Process on appeal by making material
misstatements in the Government’s opposition to Petitioner’s
attempts to reinstate his appeal, Petitioner has provided no
factual support for this claim.
Petitioner provides no
explanation of what these “material misstatements” were, or what
effect these alleged misstatements had upon the Third Circuit’s
decision to reject Petitioner’s request and to ultimately
dismiss Petitioner’s appeal.
Indeed, given the fact that the
13
Third Circuit provided numerous opportunities for Petitioner to
correct the deficiencies in his appellate briefs, and given the
fact that Petitioner failed to file or even attempt to file a
conforming brief, it is doubtful that any “misstatement” or
other interference by the Government was necessary for the Third
Circuit to reject Petitioner’s motion.
Moreover, having reviewed the brief about which Petitioner
complains, this Court perceives no clear factual misstatements,
and sees no way in which the Government can be said to have
deprived Petitioner of his right to appeal based on that motion.
(See Gov’t’s Brief in Opposition, Document 1 attached to ECF No.
13 at 1-5).
It was Petitioner’s own failure to file a
conforming brief, and not the Government’s opposition to
Petitioner’s motion, which resulted in Petitioner’s inability to
pursue his direct appeal.
As Petitioner’s own failings are
insufficient to establish cause and actual prejudice, see
Pelullo, 399 F.3d at 223, Petitioner has thus failed to show
cause, let alone actual prejudice, sufficient to overcome his
procedural default.
As Petitioner has failed to show cause and actual
prejudice, his claims may only be heard by this Court if he can
show that he is actually innocent.
In order to make out a claim
of actual innocence sufficient to overcome his procedural
default, a petitioner “must show that it is more likely than not
14
that no reasonable juror would have convicted him in the light
of” newly raised evidence viewed alongside all of the remaining
evidence produced at trial.”
McQuiggan v. Perkins, --- U.S. ---
, ---, 133 S. Ct. 1924, 1935 (2013); Albrecht v. Horn, 485 F.3d
103, 126 (3d Cir. 2007).
It is not sufficient for a petitioner
to assert that he is actually innocent of the charged offenses,
he must instead show his innocence by providing “new reliable
evidence – whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical evidence –
that was not presented at trial.”
Hubbard v. Pinchak, 378 F.3d
333, 339-40 (3d Cir. 2004) (quoting Schlup v. Delo, 513 U.S.
298, 324 (1995)).
The Supreme Court has observed that gateway claims of
actual innocence are very rarely successful, and such a claim
should be entertained by a court only where the “evidence of
innocence [is] so strong that a court cannot have confidence in
the outcome of the trial” as “no reasonable juror” could have
convicted the petitioner.
McQuiggin, 133 S. Ct. at 1936; see
also Calderon v. Thompson, 523 U.S. 538, 558-59 (1998); Hubbard,
378 F.3d at 341 (observing that, given the strong showing
required to make out a gateway claim of actual innocence, courts
have “summarily rejected” such claims “in virtually every
case”).
15
Although Petitioner professes that he is actually innocent
in his motion, Petitioner provides no information in support of
that assertion.
(See ECF No. 1 at 12).
Petitioner has thus
stated, but has not shown, that he is actually innocent, and
certainly has failed to provide evidence of his innocence
sufficient to show that no reasonable jury would have convicted
him under the circumstances.
As such, Petitioner has not made
out a gateway claim of actual innocence, and has thus provided
no basis for this Court to review his claims despite his
procedural default. 2
Hubbard, 378 F.3d at 339-341.
As such, all
of Petitioner’s non-ineffective assistance of counsel claims are
barred by Petitioner’s procedural default, and this Court
cannot, and will not, address the merits of those claims.
Frady, 456 U.S. at 167-68; Parkin, 565 F. App’x at 151-52.
2
To the extent that Petitioner also intended to raise actual
innocence as a stand-alone basis for relief under § 2255, this
Court notes that while it is unclear whether a stand-alone
actual innocence claim is cognizable under § 2255, what is clear
is that to the extent such a claim could be raised, it would
require proofs even greater than those required to bring a
gateway claim of actual innocence. See Herrera v. Collins, 506
U.S. 390, 400-404, 417 (1993); District Attorney’s Office for
the Third Judicial District v. Osborne, --- U.S. ---, ---, 129
S. Ct. 2308, 2321 (2009); House v. Bell, 547 U.S. 518, 554-55
(2006); Albrecht v. Horn, 485 F.3d 103, 121-22, 124 (3d Cir.
2007); Fielder v. Varner, 379 F.3d 113, 122 (3d Cir. 2004).
Thus, because Petitioner has failed to establish even a gateway
claim of innocence, he has certainly failed to show that he is
entitled to relief on a stand-alone actual innocence claim, and
he is not entitled to relief on that basis. Albrecht, 485 F.3d
at 122-22, 124.
16
3.
Petitioner’s ineffective assistance of counsel claims
The remainder of Petitioner’s claims, and the only claims
which Petitioner has not procedurally defaulted, are claims of
ineffective assistance of counsel at various stages of
Petitioner’s prosecution.
The standard governing ineffective
assistance of counsel claims is well established:
[c]laims
of
ineffective
assistance
are
governed by the two-prong test set forth in
the Supreme Court’s opinion in [Strickland].
To make out such a claim under Strickland, a
petitioner must first show that “counsel’s
performance was deficient. This requires [the
petitioner to show] 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. Id. The 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
17
“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).
Judge v. United States, 119 F. Supp. 3d at 280-81.
Petitioner’s assertions of ineffective assistance of
counsel all suffer from the same fundamental flaw: Petitioner
has utterly failed to provide any factual matter regarding
18
Strickland’s prejudice prong, and has instead provided no more
than vague conclusions without context or explanation.
Specifically, Petitioner presents only the following regarding
his ineffective assistance of counsel claims 3:
1.) Trial counsel failed to move for a
mistrial; seek a new trial; and seek the
recusal of the actually biased judge who
presided over the case;
2.) Trial counsel failed to seek to withdraw
from representation before trial after it
became apparent that the attorney-client
relationship had irrevocably collapsed;
3.) Trial counsel did not prepare a trail
defense and/or trial strategy to defend
Petitioner;
4.) Trial counsel failed to conduct adequate
pretrial
investigation;
or,
in
the
alternative,
did
not
conduct
meaningful
pretrial investigation in a timely and
effective manner;
5.) After having numerous consultations and
after communicating with [Petitioner], trial
counsel
disregarded
[Petitioner]’s
information and contributions, which resulted
in professionally deficient and unreasonable
conduct which prejudiced [Petitioner] at
trial;
6.) Trial counsel failed to interview and call
specific
lay
witnesses
to
testify
for
[Petitioner] at trial and/or to rebut the
testimony of Government witnesses;
7.) Trial counsel failed to interview and call
specific expert witnesses to testify for
3
This quotation has been reformatted for ease of reading. With
the exception of those bracketed words or phrases, however, no
alterations have been made to the content of the quotation.
19
[Petitioner] at trial and/or to
testimony of Government witnesses
rebut
the
8.) Trial counsel failed to conduct adequate
. . . impeachment and/or cross-examination of
Government witnesses at trial;
9.) Trial counsel failed to file a motion for
a bill of particulars[, and] to file a motion
challenging
[Petitioner]’s
defective
indictment; to file an interlocutory appeal to
the U.S. Court of Appeals based on Double
Jeopardy issues emanating from the indictment
and/or to seek a pretrial or post-trial
hearing on issues relating to the indictment
even after the Government elected not to
supersede the indictment before trial;
10.) Trial counsel acted in a professionally
deficient and unreasonable manner at trial by
deferring [Petitioner]’s opening statement
and giving an ineffectual opening statement;
11.) Trial counsel acted in a professionally
deficient and unreasonable manner at trial by
giving
an
ineffectual
summation
on
[Petitioner]’s behalf;
12.) Trial counsel acted in a professionally
deficient and unreasonable manner in failing
to file various motions in limine – including
a proffer to admit “reverse 404(b)” evidence
– on [Petitioner]’s behalf and/or to preclude
the admission of certain evidence by the
Government
13.)
Trial
counsel
failed
to
seek
a
reconsideration of the District Court’s ruling
of March 3, 2004[,] denying suppression of
evidence seized on January 30, 1999[,] despite
legal errors and an abuse of discretion by the
District Court;
14.) Trial counsel failed to conduct adequate
cross-examination: or move to reopen the
January 2004 suppression hearing based on
facts which were adduced at that hearing;
20
15.)
Trial
counsel
failed
to
create
demonstrative evidence (e.g., charges as
permitted under Federal Rule of Evidence 1006)
to defend Petitioner and/or to impeach the
Government’s witnesses and/or to rebut its
arguments;
16.) Trial counsel’s post-trial motions on
behalf of [Petitioner] were perfunctory and
ineffectual;
17.) Trial counsel acted in a professionally
deficient and unreasonable manner in failing
to obtain crucial Jencks material, to wit, the
case agent’s grand jury transcript;
18.) Trial counsel acted in a professionally
deficient and unreasonable manner in failing
to propose specific jury charges during the
charge conference at trial;
19.) Trial counsel acted in a professionally
deficient and unreasonable manner by failing
to object to the admission of assorted
evidence and/or testimony and/or argument at
trial[;]
20.) Trial counsel acted in a professionally
deficient and unreasonable manner by failing
to
employ
various
documents,
videos,
transcripts and other potential physical
evidence which had impeachment value for
Petitioner’s defense which had been furnished
to him by [Petitioner] for use at trial[.]
(ECF No. 1 at 8-9).
This recitation of Petitioner’s purported ineffective
assistance of counsel claims shows that while Petitioner has
repeatedly and in many ways asserted claims that his counsel was
defective during trial, Petitioner has in every case failed to
provide the Court with adequate context or factual allegations
21
to evaluate the claims presented.
Specifically, Petitioner has
failed to provide anything but unsupported conclusions of
ineffective assistance, and has provide no information
whatsoever as to how counsel’s alleged failures prejudiced his
defense.
Petitioner has thus presented this Court with exactly the
sort of unsupported ineffective assistance claims which the
Third Circuit has held are insufficient to warrant even an
evidentiary hearing, let alone habeas relief.
See Palmer, 592
F.3d at 395; see also Thomas, 221 F.3d at 437 (§ 2255 motions
containing conclusory allegations without supporting factual
assertions “may be disposed of without further investigation by
the District Court”).
Petitioner has failed to provide any
facts to even suggest Strickland prejudice, and as such cannot
show that he has suffered ineffective assistance of counsel.
Palmer, 592 F.3d at 395; Cross, 308 F.3d at 315 (failure to show
Strickland prejudice fatal to ineffective assistance of counsel
claim).
Petitioner is therefore not entitled to relief in his §
2255 motion on the basis of his conclusory ineffective
assistance of counsel allegations, and his motion must be
denied.
22
III.
CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 2253(c), a petitioner may not
appeal from a 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.”
El v. Cockrell, 537 U.S. 322, 327 (2003).
Miller-
“When the district
court denies a habeas petition on procedural grounds without
reaching the prisoner's underlying constitutional claim, a COA
should issue when the prisoner shows, at least, that jurists of
reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right and that
jurists of reason would find it debatable whether the district
court was correct in its procedural ruling.”
Slack v. McDaniel,
529 U.S. 473, 484 (2000).
As Petitioner’s non-ineffective assistance claims are
barred by the doctrine of procedural default, and because
Petitioner has failed to establish ineffective assistance of
counsel, Petitioner has not made a substantial showing that he
was denied a constitutional right, and jurists of reason could
not conclude that the claims presented are adequate to deserve
23
encouragement to proceed further on appeal.
Likewise, jurists
of reason would not debate that this Court’s conclusion that
Petitioner’s non-ineffective assistance of counsel claims are
procedurally barred was correct, nor this Court’s determination
that Petitioner has failed to show cause and actual prejudice or
actual innocence.
As such, this Court will deny Petitioner a
certificate of appealability.
Miller-El, 537 U.S at 327; Slack,
529 U.S. at 484.
IV.
CONCLUSION
For the reasons set forth above, this Court will deny
Petitioner’s § 2255 motion and will deny Petitioner a
certificate of appealability.
An appropriate order follows.
Date: April 28, 2016
s/ Noel L. Hillman
Hon. Noel L. Hillman,
United States District Judge
At Camden, New Jersey
24
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