SELLERS v. UNITED STATES OF AMERICA
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NOT FOR PUBLICATION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
United States of America,
Civ. Action No. 14-388(RMB)
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
opposition to the motion (Answer, ECF No. 21), and Petitioner’s
discussed below, the § 2255 motion is denied.
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
intent to distribute more than five kilograms of cocaine in
Camden County, New Jersey.
U.S. v. Sellers, Crim. Action No.
10-434(RMB) (D.N.J.) (ECF No. 1.) Petitioner was arrested the
(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.
(Id., ECF Nos. 45, 49.)
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.
Upon Petitioner’s direct appeal, the Third Circuit Court of
Appeals made the following findings:
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
resulted in Sellers's arrest.
Shortly thereafter, Sellers participated in
a proffer session with the government,
agreeing in advance that “[t]he government
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
unavailable to testify at Sellers's trial.
unaware of that fact. Indeed, although his
lawyer had sent him a letter before the
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.)
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
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
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
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
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
testimony or ... arguments ... contradict
any statements [Sellers] made during the[ ]
Recognizing that Sellers had waived his
right to preclude such statements from being
used against him, the Court considered
voluntary. Although Sellers had testified
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
and the jury
count in the
and 5 years'
U.S. v. Sellers, 501 F. Appx 194, 195-97 (3d Cir. 2012).
Petitioner raised three issues on direct appeal, only one
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
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,
(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
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)
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,
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
Sellers, 501 F. Appx at 198-99 (3d Cir. 2012).
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
effective assistance  during the plea
(2) Counsel was ineffective during the
liability phase of the movant’s request to
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,
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
(Id. at 8-9.)
Respondent filed an Answer and opposition to Petitioner’s
admitted he did not fully explain his claims in the § 2255
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
authorized by law, or is otherwise subject to collateral attack.
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
Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989)).
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.
Standard of Review: Ineffective Assistance of Counsel
An ineffective assistance of counsel claim has two
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.
serious as to deprive the defendant of a
Strickland v. Washington, 466 U.S. 668, 687 (1984).
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
circumstances, the challenged action ‘might be considered sound
trial strategy.’” Strickland, 466 U.S. at 689 (quoting Michel v.
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);
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)).
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
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
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,
prejudice . . . that course should be followed.” Id.
Petitioner asserted his counsel failed to explain the difference
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
knowing and voluntary, noting that defense counsel explained the
waiver and confirmed that Petitioner understood.
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
omitted). Therefore, Ground One of the motion will be denied.
counsel should have known that Espinosa’s release on bail was
object to his release.
(Pet’r Response, ECF No. 22 at 10-11.)
differently, knowing Espinosa was not available to testify. (Id.
Strickland, 466 U.S. at 680.
There was no way for
counsel to know Espinosa would jump bail and that he would not
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.
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.
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
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:
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
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.
It is not clear what evidence related to the cell phone
“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
denied because it is vague and ambiguous. See U.S. v. Thomas,
221 F.3d 430, 437 (“vague and conclusory allegations contained
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
instruction. (Pet’r Response, ECF No. 22 at 14.)
At trial, this Court instructed the jury that although it
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.
This claim lacks merit. The purpose of the jury instruction
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
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.
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
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.,
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.
In Ground Four, Petitioner asserted his appellate counsel
was ineffective for failing to raise the ineffective assistance
ineffective assistance of appellate counsel, a petitioner must
show that the issues appellate counsel chose not to present were
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
Therefore, the Court will deny Ground Four of the motion.
C. Certificate of Appealability
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 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
wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
Based on the discussion above, reasonable jurists would not
assistance of counsel that prejudiced the defense.
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
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