SELLERS v. UNITED STATES OF AMERICA

Filing 23

OPINION. Signed by Judge Renee Marie Bumb on 1/31/2017. (dmr)(n.m.)

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
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Frederick Sellers,
Petitioner,
v.
United States of America,
Respondent.

Civ. Action No. 14-388(RMB)
OPINION

BUMB, District Judge:
This matter is before the Court upon Petitioner’s amended
motion under 28 U.S.C. § 2255 to vacate, set aside, or correct
sentence

(Am.

Pet.,

ECF

No.

15),

Respondent’s

Answer

and

opposition to the motion (Answer, ECF No. 21), and Petitioner’s
Response.

(Petr’s

Response,

ECF

No.

22).

For

the

reasons

discussed below, the § 2255 motion is denied.
I. BACKGROUND
A.

The Criminal Proceeding

A Complaint was issued against Petitioner in the District
of New Jersey on December 8, 2009, in Case No. 09-mj-1082-AMD,
charging him with violating 21 U.S.C. §§ 846, 841(a)(1) and
841(b)(1)(A),

conspiracy

to

distribute

and

possession

with

intent to distribute more than five kilograms of cocaine in
1

Camden County, New Jersey.

U.S. v. Sellers, Crim. Action No.

10-434(RMB) (D.N.J.) (ECF No. 1.) Petitioner was arrested the
following day.
2010.

(Id., ECF No. 2.)

He was indicted on June 30,

(Id., ECF No. 21.)
Petitioner’s jury trial began on November 8, 2010, and he

was found guilty four days later.
Judgment

was

entered

on

April

6,

(Id., ECF Nos. 45, 49.)
2011,

and

Petitioner

was

sentenced to a term of imprisonment for 188 months, and a fiveyear term of supervised release.

(Id., ECF No. 53.) Petitioner

appealed to the Third Circuit Court of Appeals. (Id., ECF No.
54.)
Upon Petitioner’s direct appeal, the Third Circuit Court of
Appeals made the following findings:
After
being
charged
with
drug-related
offenses, Mario Estrada–Espinosa and Jose
Luis Grimaldo–Valencia cooperated with the
government by identifying Sellers as a drug
trafficker who purchased large amounts of
cocaine
from
them.
Their
cooperation
resulted in Sellers's arrest.
Shortly thereafter, Sellers participated in
a proffer session with the government,
agreeing in advance that “[t]he government
[could]
use
[his]
statements
and
any
information provided by [him] to crossexamine [him] and to rebut any evidence or
arguments offered on [his] behalf” in any
subsequent trial. (Supp.App. at 109.) During
that meeting, the government and Sellers's
counsel were aware that Espinosa had fled
the
country
and
would
therefore
be
unavailable to testify at Sellers's trial.
Sellers,
however,
claims
to
have
been
2

unaware of that fact. Indeed, although his
lawyer had sent him a letter before the
session
informing
him
of
Espinosa's
unavailability, Sellers testified that he
did not receive the letter until after the
session had concluded. Sellers testified
that he would not have participated in the
proffer session had he received that letter
in time, as knowing that Espinosa would be
unavailable to testify against him would
have made him think that he could “buil[d] a
defense.” (Joint App. at 94.)
Even
after
learning
that
Espinosa
had
absconded, however, Sellers chose to meet
with the government for a second time. At
that meeting, the government indicated its
intent to file a complaint requiring Sellers
to forfeit a truck that he had used to
commit the crime for which he was charged,
leading Sellers's counsel to believe that
the “forfeiture of the truck” was “one
aspect in addition to other aspects that
were being discussed in connection with [a]
cooperating plea agreement.” (Id. at 30.)
Subsequently, with the deadline to file the
forfeiture
complaint
approaching,
the
government requested Sellers's assent to an
extension of the time to file the complaint
seeking that relief. Although Sellers's
counsel communicated to Sellers that his
refusal to consent to the extension could
“be a deal breaker in light of other issues
that were ongoing with cooperation” (id. at
37),
Sellers
ultimately
rejected
the
government's request.
The government then ceased plea negotiations
and indicted Sellers. Sellers, in turn,
filed a motion to dismiss the indictment for
prosecutorial vindictiveness, asserting that
his refusal to consent to the extension of
time to file the forfeiture complaint was
the sole reason the government decided to
cease negotiations and indict him. Although
he “concede[d] that there[ ] [was] no
presumption of vindictiveness” under the
3

facts of his case, he claimed “that the
prosecutor's decision and the facts [of his
case] support[ed] actual vindictiveness.”
(Id. at 117.) The District Court rejected
that contention, concluding that “Sellers
... failed to provide [the] Court with
evidence of actual vindictiveness on the
part of the government.” (Id.) To the
contrary,
as
the
Court
pointed
out,
Sellers's “failure ... to merely agree to
extend the time to file a forfeiture
complaint demonstrated [that he] ... was not
willing to cooperate” with the government at
all. (Id. at 118.)
After denying Sellers's motion to dismiss,
the Court turned to address the government's
request for “a ruling on the admissibility
of
[Sellers's]
statements
for
rebuttal
purposes
at
trial
should
[Sellers's]
testimony or ... arguments ... contradict
any statements [Sellers] made during the[ ]
two
proffer
sessions.”
(Id.
at
121.)
Recognizing that Sellers had waived his
right to preclude such statements from being
used against him, the Court considered
whether
the
waiver
was
knowing
and
voluntary. Although Sellers had testified
that
“he
felt
intimidated,”
“did
not
understand the risks” of the agreement, and
“would not have proffered” if he knew
Espinosa was not available to testify at his
trial, the Court found Sellers's testimony
was not credible and concluded that his
waiver was, in fact, knowing and voluntary.
(Id. at 123–24.)
Sellers's case went to trial,
found him guilty on the sole
indictment. The District Court
to 188 months' imprisonment
supervised release.

and the jury
count in the
sentenced him
and 5 years'

U.S. v. Sellers, 501 F. Appx 194, 195-97 (3d Cir. 2012).

4

Petitioner raised three issues on direct appeal, only one
of

which

is

Petitioner’s

relevant

objections

here.
to

The

use

of

Third
his

Circuit

proffer

statements

follows:
Sellers next argues that the District Court
errantly granted the government's motion to
use Sellers's proffer session statements
against him “to cross-examine [him] and to
rebut any evidence or arguments offered on
[his] behalf.” (Supp.App. at 109.) He claims
that his agreement to allow the government
to offer such statements at trial was not
knowing and voluntary because he did not
know that Espinosa had absconded when he
agreed to it.
A criminal defendant's statements during
plea discussions are generally inadmissible
at trial, see Fed.R.Evid. 410(a)(4) (stating
that
“a
statement
made
during
plea
discussions
with
an
attorney
for
the
prosecuting authority” that “did not result
in a guilty plea” is “not admissible against
the defendant who ... participated in the
plea discussions”), but a defendant's right
to not have such statements used against him
at trial can be waived, at least for
impeachment purposes, “as long as there is
no affirmative indication that the agreement
[to waive] was entered into unknowingly or
involuntarily,” United States v. Hardwick,
544
F.3d
565,
569–70
(3d
Cir.2008)
(alteration in original) (internal quotation
marks omitted). A waiver is “knowing” so
long as it is “made with a full awareness
both of the nature of the right being
abandoned
and
the
consequences
of
the
decision to abandon it,” and it is voluntary
so long as it is “the product of a free and
deliberate choice rather than intimidation,
coercion or deception.” United States v.
Velasquez, 885 F.2d 1076, 1084 (3d Cir.1989)
(citation
and
internal
quotation
marks
5

addressed
as

omitted). “We have plenary review over
[Sellers's] contention that the [D]istrict
[C]ourt erred in finding that [his] waiver
... was knowing and voluntary.” Riddick v.
Edmiston, 894 F.2d 586, 589 (3d Cir.1990).
Here, even accepting Sellers's account that
he was not apprised of the fact that
Espinosa had fled the country until after
the first proffer session concluded, there
is no basis for rejecting the District
Court's determination that Sellers's waiver
was knowing and voluntary. Sellers's counsel
testified before the District Court that he
advised Sellers of the risks and rewards
attendant to entering into the proffer
agreement, that he confirmed that Sellers
understood the fact that his statements
could be used to rebut claims made at trial
based on the waiver, and that Sellers did
not appear to have been intimidated or
coerced into agreeing to it. That Sellers
did not know Espinosa had absconded is of no
moment. Although Sellers's waiver may have
been better informed if, when he decided to
make a proffer to the government, he had
known that Espinosa had left the country,
“complete
knowledge
of
the
relevant
circumstances” is not generally necessary to
effectuate a valid waiver. United States v.
Ruiz, 536 U.S. 622, 630, 122 S.Ct. 2450, 153
L.Ed.2d 586 (2002). What he knew was
sufficient. Indeed, as Sellers's counsel at
the time of the proffer session candidly
explained to the District Court, Espinosa's
unavailability did not have “a large impact
on the strength of the government's case.”
(Joint App. at 86.) That observation was
borne out, as Valencia's testimony and other
evidence of Sellers's guilt was enough for a
jury to convict him. We conclude, therefore,
that the District Court committed no error
in finding Sellers's waiver to be knowing
and voluntary.
Sellers, 501 F. Appx at 198-99 (3d Cir. 2012).

6

B.

Motion to Vacate, Set Aside, or Correct Sentence

On August 10, 2015, Petitioner filed the present amended
motion to vacate, set aside, or correct sentence under 28 U.S.C.
§ 2255. Sellers v. United States, Civ. Action No. 14-388(RMB),
(D.N.J.) (Am. Pet., ECF No. 15.) Petitioner alleged ineffective
assistance of trial counsel on several bases:
(1) Counsel’s negotiation of waiver rights
was a crucial stage therefore, counse[l]’s
advice
violated
movant[‘s]
right
to
effective assistance [] during the plea
negotiation stage;
(2) Counsel was ineffective during the
liability phase of the movant’s request to
locate
his
co-conspirator
who[]
made
statements against him. And in view of
counsel’s ineffectiveness movant was denied
the right under the Confrontation Clause, to
confront this wi[tness].
(3) Failure to challenge the drug amount,
failure
to
challenge
right
under
the
confrontation clause, failure to challenge
the jury instruction.
(Am. Pet., ECF No. 15 at 4-7.)
For his fourth ground for relief, Petitioner alleged his
appellate counsel was ineffective for failing to raise trial
counsel’s

ineffectiveness

for

the

above-described

failures.

(Id. at 8-9.)
Respondent filed an Answer and opposition to Petitioner’s
motion.

(Answer,

ECF

No.

21.)

In

his

response,

Petitioner

admitted he did not fully explain his claims in the § 2255

7

motion. (Pet’r Response, ECF No. 22 at 2.) Petitioner attempted
to address the deficiencies in his claims.
II. STANDARD OF REVIEW
A prisoner in custody pursuant to a federal court judgment
and conviction may move the court that imposed the sentence to
vacate, set aside or correct the sentence, if the sentence was
imposed in violation of the Constitution or laws of the United
States; or if the court was without jurisdiction to impose such
sentence;

or

if

the

sentence

was

in

excess

of

the

maximum

authorized by law, or is otherwise subject to collateral attack.
28

U.S.C.

§

2255(a).

In

considering

a

motion

to

vacate

a

defendant's sentence, “the court must accept the truth of the
movant's factual allegations unless they are clearly frivolous
on the basis of the existing record.” U.S. v. Booth, 432 F.3d
542,

545

(3d

Cir.

2005)

(quoting

Government

of

the

Virgin

an

evidentiary

Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989)).
“The

district

court

is

required

to

hold

hearing ‘unless the motion and files and records of the case
show conclusively that the movant is not entitled to relief.’”
Id. For the reasons discussed below, the records of the case
conclusively show that Petitioner is not entitled to relief, and
the Court will not hold in evidentiary hearing in this matter.
III. DISCUSSION
A.

Standard of Review: Ineffective Assistance of Counsel
8

An ineffective assistance of counsel claim has two
components:
First,
the
defendant
must
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 the defendant by
the Sixth Amendment. Second, the defendant
must show that the deficient performance
prejudiced the defense.
This requires
showing
that
counsel’s
errors
were
so
serious as to deprive the defendant of a
fair
trial,
a
trial
whose
result
is
reliable.
Strickland v. Washington, 466 U.S. 668, 687 (1984).
Furthermore,

the

first

prong

of

the

test

“requires

a

defendant to show ‘that counsel’s representation fell below an
objective standard of reasonableness.’" Lafler v. Cooper, 132
S.Ct. 1376, 1384 (2012) (quoting Hill v. Lockhart, 474 U.S. 52,
57 (1985) (quoting Strickland, 466 U.S. at 688)). There is “a
strong presumption that counsel's conduct falls within the wide
range

of

defendant

reasonable
must

professional

overcome

the

assistance;

presumption

that

that,

is,

the

under

the

circumstances, the challenged action ‘might be considered sound
trial strategy.’” Strickland, 466 U.S. at 689 (quoting Michel v.
Louisiana,

350

U.S.

91,

101

(1955)).

“The

Sixth

Amendment

guarantees reasonable competence, not perfect advocacy judged
with the benefit of hindsight.” Yarborough v. Gentry, 540 U.S.
1, 8 (2003) (citing Bell v. Cone, 535 U.S. 685, 702 (2002);

9

Kimmelman v. Morrison, 477 U.S. 365, 382 (1986); Strickland, 466
U.S. at 689; United States v. Cronic, 466 U.S. 648, 656 (1984)).
The

second

requires

a

prong

defendant

of
to

the
“show

Strickland

test,

prejudice,

that

is

reasonable

there

a

probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different.” Strickland,
466 U.S. at 694. “A reasonable probability is one ‘sufficient to
undermine

confidence

in

the

outcome.’”

Collins

v.

Sec.

of

Pennsylvania Dept. of Corr., 742 F.3d 528, 547 (3d Cir. 2014)
(quoting Strickland, 466 U.S. at 694).
The “ultimate focus” of the prejudice inquiry is on the
fundamental fairness of the proceeding. Strickland, 466 U.S. at
696.

“Prejudice

is

viewed

in

light

of

the

totality

of

the

evidence at trial and the testimony at the collateral review
hearing.” Collins, 742 F.3d at 547 (citing Rolan v. Vaughn, 445
F.3d 671, 682 (3d. Cir. 2006)). A court need not address both
components of the ineffective assistance inquiry. Strickland,
466

U.S.

at

ineffectiveness

697.
claim

“If
on

it
the

is

easier

ground

of

to
lack

dispose
of

of

an

sufficient

prejudice . . . that course should be followed.” Id.
B.

Analysis
1.

In

Ground

Ground One
One,

with

respect

to

his

proffer

statements,

Petitioner asserted his counsel failed to explain the difference
10

between impeachment waivers and general waivers. (ECF No. 22 at
5.) Therefore, Petitioner concluded that he did not enter into
the proffer agreement knowingly and voluntarily. (Id.)
On direct appeal, the Third Circuit held that Petitioner’s
waiver

of

rights

with

respect

to

his

proffer

agreement

was

knowing and voluntary, noting that defense counsel explained the
waiver and confirmed that Petitioner understood.

Sellers, 504

F. Appx at 199 (3d Cir. 2012). “A section 2255 petition is not a
substitute for an appeal ... nor may it be used to relitigate
matters decided adversely on appeal....” Gov't of Virgin Islands
v.

Nicholas,

759

F.2d

1073,

1074

(3d

Cir.

1985)

(citations

omitted). Therefore, Ground One of the motion will be denied.
2.
his

For

Ground Two
second

ground

for

relief,

Petitioner

asserted

counsel should have known that Espinosa’s release on bail was
critical

to

Petitioner’s

object to his release.
Petitioner

argued

defense,

and

yet

counsel

failed

to

(Pet’r Response, ECF No. 22 at 10-11.)

that

counsel

should

have

advised

him

differently, knowing Espinosa was not available to testify. (Id.
at 11.)
Counsel’s
information
hindsight.

decisions

known

at

must

the

be

time

assessed
of

the

Strickland, 466 U.S. at 680.

in

light

decisions,

of
not

the
in

There was no way for

counsel to know Espinosa would jump bail and that he would not
11

be located before trial.

Even if Espinosa were available to

testify, given the totality of the evidence against Petitioner,
it would have been within the realm of reasonable professional
judgment for counsel to advise Petitioner to enter into the
proffer agreement in plea negotiations.

This claim lacks merit

and will be denied.
3.

Ground Three

For Ground Three, Petitioner explained in his Response that
he believed counsel should have produced forensic evidence to
dispute the drug amount, which was supported only by hearsay
evidence from the Government. (ECF No. 22 at 12.) Petitioner did
not describe what forensic evidence was available that could
have called into question the drug amount.
In

any

event,

Petitioner

cannot

show

prejudice.

The

Government could have impeached any inconsistent evidence with
the statements Petitioner made in his proffer statement, that he
received far more cocaine than he was held responsible for at
sentencing.

(Answer,

Ex.

D.)

This

claim

of

ineffective

assistance of counsel will be denied for failure to meet either
prong of the Strickland test.
For the second part of Ground Three, Petitioner asserted:
Because
the
government's
key
witness
Espinosa was unavailable to testify, use of
the cell phone removed from the truck during
a search now increased denial of the right
to confront via the Sixth Amendment right to
12

challenge
the
cell
phone
evidence
as
consummerating drug crimes, See Williams v.
Illinois, 567 US , 132 S. Ct. 183 L. Ed. 2d
89 (2012), counsel has a duty to challenge
this evidence as hearsay.
(Pet’r Response,
verbatim).

ECF

No.

22

at

12-13)

(quoted

It is not clear what evidence related to the cell phone
Petitioner
impossible

is
to

Confrontation

challenging
determine
Clause

as

hearsay.

whether

claim,

Therefore,

Petitioner

which

has

requires

a

it

is

established
finding

a

that

“testimonial” statements were admitted despite the declarant’s
unavailability to testify at trial.

See Crawford v. Washington,

541 U.S. 36, 51-52 (2004) (defining testimonial statements that
may

violate

the

Confrontation

Clause).

This

claim

will

be

denied because it is vague and ambiguous. See U.S. v. Thomas,
221 F.3d 430, 437 (“vague and conclusory allegations contained
in

a

§

2255

petition

may

be

disposed

of

without

further

investigation by the District Court”) (citing United States v.
Dawson, 857 F.2d 923, 928 (3d Cir. 1988).
For the third part of Ground Three, Petitioner alleged his
counsel should have objected to a jury instruction but he did
not

identify

Answer.

In

the
his

instruction,
Response,

and

Respondent

Petitioner

described

instruction. (Pet’r Response, ECF No. 22 at 14.)

13

was

unable
the

to

jury

At trial, this Court instructed the jury that although it
had

earlier

been

instructed

not

to

consider

certain

issues

raised in the prosecutor’s opening statement, the jury could now
consider that Espinosa pled guilty, that he was cooperating with
the government, and that he was a fugitive. (Id.) Petitioner
alleged the jury instruction stripped jurors of their duty to
judge a witnesses’ credibility and motives by instructing them
not to consider such things.

(Id.)

This claim lacks merit. The purpose of the jury instruction
was

to

allow

credibility.

the

jurors

to

consider

Espinosa’s

motives

and

Insofar as Petitioner may be complaining of the

first instruction, in response to the opening statement, it was
obviously rectified by the later instruction. The Court will
deny this claim.
For the final part of Ground Three, Petitioner maintained
counsel

was

Valencia’s

ineffective

inaccurate

for

proffer

failing

to

statement

challenge
regarding

Witness
the

drug

quantity. (Id. at 15.) As discussed above, Petitioner cannot
show prejudice for failing to challenge the drug amount because
the Government could have impeached any inconsistent evidence
with the statements Petitioner made in his proffer statement,
which established a significantly higher drug amount than he was
held responsible for at sentencing. This claim will be denied
for failure to meet the prejudice prong of the Strickland test.
14

Petitioner also appears to add a new claim to his § 2255
motion. (ECF No. 22 at 16.)

He claimed counsel was ineffective

for failing to object to the applicable guideline range. (Id.)
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

(D.N.J.

brief.’”

2015)

Judge

(quoting

v.

U.S.,

D'Allessandro

119
v.

F.Supp.3d
Bugler

270,

Tobacco

284
Co.,

Civil Action No. 05–5051, 2007 WL 130798, at *2 (D.N.J. Jan. 12,
2007) (quoting Int'l Raw Materials, Ltd. v. Stauffer Chem. Co.,
978

F.2d

context,

1318,

1327

fairness

n.

11

requires

(3d
that

Cir.
the

1992)).
opposing

In

the

party

habeas

have

an

opportunity to address those claims. Id. (citing Soto v. United
States, Civil Action No. 04–2108, 2005 WL 3078177, at *6 (D.N.J.
Nov. 16, 2005)). The prohibition against raising new arguments
in a reply is not unfair to the petitioner, who was provided a
Miller notice advising him that all claims must be presented in
one § 2255 motion, and Petitioner filed an amended motion in
which he purported to raise all of his claims.

(ECF Nos. 3, 14,

15.) This Court will not address Petitioner’s sentencing claim
first raised in his reply brief.
4.

Ground Four

In Ground Four, Petitioner asserted his appellate counsel
was ineffective for failing to raise the ineffective assistance
of

trial

counsel

claims

discussed
15

above.

To

establish

ineffective assistance of appellate counsel, a petitioner must
show that the issues appellate counsel chose not to present were
clearly

stronger

than

the

issues

counsel

presented;

and

Petitioner must show prejudice from the failure to raise the
claims. Smith v. Robbins, 528 U.S. 259, 288 (2000). Because this
Court has not found any instance of ineffective assistance of
trial counsel, Petitioner’s claims that appellate counsel was
ineffective

for

failing

to

raise

these

claims

must

fail.

Therefore, the Court will deny Ground Four of the motion.
C. Certificate of Appealability
The

Court

must

assess

whether

a

certificate

of

appealability should issue. A litigant may not appeal from a
final order in a proceeding under 28 U.S.C. § 2255 without a
certificate

of

appealability.

28

U.S.C.

§

2253(c)(1)(B).

A

certificate of appealability shall not issue unless there is a
“substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). “Where a district court has rejected the
constitutional claims on the merits, the showing required to
satisfy

§

demonstrate
court's

2253(c)
that

assessment

is

straightforward:

reasonable
of

the

jurists

The

would

constitutional

petitioner

find
claims

the

district

debatable

wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

16

must

or

Based on the discussion above, reasonable jurists would not
find

it

debatable

that

defense

counsel

provided

ineffective

assistance of counsel that prejudiced the defense.
IV. CONCLUSION
For the foregoing reasons, the amended motion to vacate,
set aside, or correct the sentence (ECF No. 15) is DENIED, and
the Court SHALL NOT ISSUE a certificate of appealability. An
appropriate Order shall follow.

Dated: January 31, 2017
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge

17