BAILEY v. UNITED STATES OF AMERICA

Filing 71

OPINION. Signed by Judge Noel L. Hillman on 1/23/2024. (dmr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
:
:
:
Petitioner,
:
:
v.
:
:
UNITED STATES OF AMERICA,
:
:
Respondent.
:
___________________________________:
KAREEM BAILEY,

Civ. No. 17-13586 (NLH)
OPINION

APPEARANCES:
Jordan Glenn Zeitz, Esq.
Law Offices of Jordan G. Zeitz
18 West Front St
Media, PA 19063
Attorneys for Petitioner
Philip R. Sellinger, United States Attorney
Patrick C. Askin, Assistant United States Attorney
Office of the U.S. Attorney
401 Market Street
4th Floor
Camden, NJ 08101
Attorneys for Respondent

HILLMAN, District Judge
Kareem Bailey (“Petitioner”) moves to vacate, correct, or
set aside his federal sentence pursuant to 28 U.S.C. § 2255.
ECF Nos. 5 & 15; United States v. Bailey, No. 14-cr-0050-9

(D.N.J.) (“Crim. Case”).
motion.

Respondent United States opposes the

ECF Nos. 12 & 33.

For the reasons that follow, the Court will deny the
amended § 2255 motion.

No certificate of appealability shall

issue.
I.

BACKGROUND
The Court adopts and reproduces the facts of this case as

set forth by the United States Court of Appeals for the Third
Circuit in its opinion affirming Petitioner’s convictions:
Bailey, [Terry] Davis, [Lamar] Macon, and [Dominique]
Venable were associates in a violent heroin-trafficking
organization that operated out of the Stanley Holmes
Public Housing Village in Atlantic City, New Jersey.
This organization was led by Mykal Derry and known as
the Derry Drug Trafficking Organization (DDTO). Derry
purchased large quantities of heroin from three New
Jersey suppliers and distributed the heroin in “bundles”
(ten wax envelopes of heroin) and “bricks” (five
bundles) to members of the DDTO. These DDTO associates
then sold the heroin in and around the public housing
complex.
Investigators estimated that Derry received
717 bricks of heroin for distribution from October 2012
to February 2013. The DDTO maintained control of its
drug-trafficking turf by assaulting, robbing, and
killing rival drug dealers.
In July of 2010, the FBI began investigating the DDTO in
conjunction with state and local law enforcement
agencies.
At first, confidential informants and
undercover police officers made a series of controlled
buys that were captured on audio and video recordings.
By October, officers had identified Mykal Derry as the
leader of the organization.
For the next two years,
police relied on confidential informants, controlled
buys,
physical
surveillance,
phone
records,
pen
registers, and intercepted prison phone calls placed
from the Atlantic County Jail to map the scope of the
DDTO’s operations.
2

However, the investigators eventually found these
techniques inadequate to uncover the full reach of the
conspiracy. In an attempt to remedy this, the government
secured authorization for a wiretap from the United
States District Court for the District of New Jersey in
October 2012. Wiretaps on the phones of Mykal Derry and
one of his suppliers, Tyrone Ellis, revealed many DDTO
co-conspirators that police had previously been unaware
of as well as new evidence regarding the organization’s
criminal
activities.
Overall,
law
enforcement
intercepted and recorded approximately 6,700 pertinent
calls over the course of their investigation.
In addition to these wiretaps, investigators obtained
critical information from Kareem Young, a member of the
DDTO. He eventually “flipped” and became a government
informant.
Prior to cooperating with the government,
Young sold drugs for Derry, obtaining them directly from
him. Young explained the inner workings of the DDTO to
investigators, and he described the defendants’ roles in
the organization.
United States v. Bailey, 840 F.3d 99, 106-07 (3d Cir. 2016).
On March 18, 2013, Petitioner was charged in a criminal
complaint with conspiracy to distribute 1 kilogram or more of
heroin, 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A).
1.

Crim. Case No.

On February 5, 2014, Petitioner was indicted with fourteen

co-defendants by a federal grand jury on the same drug
conspiracy charge.

Id. ECF No. 45.

On June 4, 2014, Petitioner

was charged in a 125-count superseding indictment along with 16
co-defendants.

Id. ECF No. 194.

The superseding indictment

charged Petitioner with conspiracy to distribute 1 kilogram or
more of heroin (Count 1); possession of firearms and the
brandishing and discharge of firearms in furtherance of a drug

3

trafficking crime, 18 U.S.C. § 924(c)(1)(A)(i)-(iii) (Count 10);
and numerous counts of using a communications facility to
further a drug trafficking crime, 21 U.S.C. § 843(b).

Id.

On July 16, 2014, AUSA Justin Danilewitz sent John
Holliday, Petitioner’s trial counsel, an email stating that the
United States was prepared to extend a plea offer in which it
would drop the § 924(c) charge and allow Petitioner to plead
guilty to a single count of conspiring to distribute and possess
with intent to distribute 100 grams or more of heroin in a
protected zone (“July 2014 Offer”).

ECF No. 60-1.

This would

have “lowered the mandatory minimum on Count One from 10 years
to 5 years.”

ECF No. 60 at 2.

“The suggested guideline

calculations would result in a total offense level of 27.

With

Bailey’s criminal history of Category III, the advisory
guideline range on a plea agreement based on these terms would
be 87-108 months.”

Id.

Danilewitz asked Holliday to present

the terms to Petitioner as soon as possible as he needed to seek
supervisory approval for the deal before the pre-trial motions
deadline.

ECF No. 60-1 at 1.

Holliday met with Petitioner on July 20, 2014 promptly and
in person at the Federal Detention Center (“FDC”) in
Philadelphia.

Certification of John M. Holliday, ECF No. 60-8

(“Holliday Cert.”) ¶ 7.
offer[.]”

Id.

Petitioner “unequivocally rejected the

Holliday diligently sent an email to Danilewitz
4

on July 22, 2014 (“July 22 Email”) confirming he had met with
Bailey and conveyed the plea offer, stating: “After recently
meeting with Kareem Bailey he had indicated that he will not
enter a plea agreement pursuant to the terms outlined in your
7/16/14 email.”

ECF No. 60-2.

Despite the earlier rejected plea offer, Danilewitz emailed
Holliday again on October 1, 2014 this time with a proposed
written agreement dated September 29, 2014 offering a plea
pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C) (“CPlea”).1

ECF No. 60-3.

In exchange for a guilty plea to a one-

count superseding information to conspiracy to distribute 100
grams or more of a mixture containing heroin, the United States
would agree to an 84-month sentence followed by 8 years of
supervised release.

Id. at 3.

Holliday visited Petitioner on

October 2 and 7, 2014 at the FDC to discuss the C-Plea.
Holliday Cert. ¶ 8.

See also ECF No. 60-8 at 11.

Holliday gave

Petitioner a copy of the C-Plea to review on his own.
2022 Tr., ECF No. 49, 26:9-12.
the C-Plea.

May 25,

Petitioner ultimately rejected

ECF No. 60-8 at 11.

Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure
permits the parties to “agree that a specific sentence or
sentencing range is the appropriate disposition of the case, or
that a particular provision of the Sentencing Guidelines, or
policy statement, or sentencing factor does or does not apply
(such a recommendation or request binds the court once the court
accepts the plea agreement).”
1

5

Petitioner proceeded to trial before a jury and the
Honorable Joseph E. Irenas, D.N.J., beginning on November 17,
2014.

Crim. Case No. 480.

On January 16, 2015, the jury

returned a guilty verdict against Petitioner as to Counts 1 and
10, and as to all but one of the phone counts.

Id. ECF No. 553.

At the sentencing hearing on May 1, 2015, Judge Irenas sentenced
Petitioner to 121 months for Count 1, one month greater than the
mandatory minimum for that offense, as well as 120 months for
Count 10 to run consecutively.

Id. ECF No. 652.

Petitioner

received a 48-month sentence for the phone counts, to run
concurrently with each other and Count 1.

Id. at 2.

Accordingly, Petitioner was sentenced to a total of 241 months.
Id.

Petitioner also received a total of 10 years on supervised

release.

Id. at 3.

Petitioner appealed to the Third Circuit.
650.

Crim. Case No.

The Third Circuit affirmed his conviction and sentence on

October 18, 2016.2

United States v. Bailey, 840 F.3d 99 (2016).

Petitioner then filed a petition for a writ of certiorari in the
United States Supreme Court, which was denied on February 21,
2017.

Bailey v. United States, 580 U.S. 1137 (2017).

On December 27, 2017, Petitioner filed a motion to vacate,
set aside, or correct his sentence under § 2255.

ECF No. 1.

Holliday continued to represent Petitioner before the Third
Circuit.
2

6

On

February 13, 2018, he filed an amended motion at the Court’s
direction.

ECF No. 5.

The amended motion put forth two central

claims: that Petitioner suffered ineffective assistance of
counsel due to Holliday’s alleged failure to (1) properly and
sufficiently counsel Petitioner as to the possible sentence he
faced if he went to trial instead of accepting the C-Plea, and
(2) put forth an argument that under United States v. Collado,
975 F.2d 985 (3d Cir. 1992), “the drugs attributed to Petitioner
were not reasonably foreseeable to him or within the scope of
his agreement,” and therefore should not have been considered in
calculating the proper guidelines range under the Sentencing
Guidelines.

Id. at 4-5, 33.

The United States filed a letter response on November 1,
2018, ECF No. 9, and then at the Court’s direction filed a
memorandum of law in opposition to the motion to vacate on
January 7, 2019.

ECF No. 12.

Petitioner moved to amend his §

2255 a second time on January 17, 2020 to add six new claims.
ECF No. 15.

The Court granted the motion to amend as to his

ineffective assistance of counsel claim regarding a possible
downward departure under U.S.S.G. § 3B1.2 but denied it as to
the other five claims.

ECF No. 29.

The United States submitted

a supplemental brief responding to the new claim on April 19,
2021.

ECF No. 33.

7

On July 7, 2021, the Court granted Petitioner’s motion for
the appointment of counsel under the Criminal Justice Act
(“CJA”) because it agreed with the parties that an evidentiary
hearing was necessary to resolve Ground One of the amended
motion.

ECF No. 37 (citing 28 U.S.C. § 2255 Rule 8(c); 18

U.S.C. § 3006A).

A hearing was held on May 25, 2022 at which

Petitioner and Holliday testified.

See generally May 25, 2022

Tr.
Petitioner testified he did not know that the United States
would be able to present evidence of his juvenile record, a
September 2010 New Jersey state conviction for possession of
cocaine and a handgun, before he rejected the C-Plea.
27:15-23.

He testified that Holliday had told him that the

United States would not be able to use it at trial.
to 28:4.

Id.

Id. 27:25

Petitioner also testified that he had not known that

the United States would call Kareem Young as a cooperating
witness before he rejected the C-Plea.

Id. 32:20-24.

According

to Petitioner, Holliday said trial would be “a piece of cake.”
Id. 36:2.
During cross-examination, Petitioner conceded that he knew
that he was facing a total of 240 months of mandatory sentences
if he were convicted of Counts 1 and 10 prior to rejecting the
C-Plea.

Id. 44:7-15.

Petitioner testified that he had not

known about the July 2014 Offer at all.
8

Id. 118:7-19, 123:8-16.

Holliday testified he had reviewed the “voluminous”
discovery with Petitioner and considered the Government’s case
to be “[c]ompelling” and “overwhelming.”

Id. 143:3.

He stated

he told Petitioner that there was “a substantial likelihood of
conviction.”

Id. 143:4-5.

Holliday further testified that he

had discussed both the July 2014 Offer and the C-Plea in detail
with Petitioner as well as the potential sentencing exposure if
Petitioner was convicted at trial.
164:10 to 165:19.

Id. 145:13-18, 160:3-24,

According to Holliday, Petitioner “was never

interested in me engaging in plea negotiations.

That’s not

something that he was really interested in me doing.”
151:6-8.

Id.

He denied ever telling Petitioner that trial would be

a piece of cake.

Id. 153:6-9.

At the end of the hearing, the

parties agreed to keep the record open to allow Holliday to
review his file for any further relevant documents.

Id. 223:10

to 224:6.
The matter was continued but was unfortunately delayed when
Petitioner’s CJA counsel became indisposed.

ECF No. 46.

The

Court appointed new CJA counsel, ECF No. 53, and permitted
counsel to file a supplemental brief, ECF No. 55.

The

supplemental brief argued Holliday provided ineffective
assistance of counsel by failing to provide Petitioner with a
written copy of the July 2014 Offer.

ECF No. 55 at 12.

Petitioner also asserted that Holliday failed to provide him
9

with necessary information before Petitioner rejected the CPlea, specifically that the trial court allowed Petitioner’s
juvenile record to be used as evidence and that Young would be
testifying on the Government’s behalf.

Id. at 13-14.

United States filed a supplemental response.

The

ECF No. 60.

The Court conducted oral argument on September 25, 2023.
Sept. 25, 2023 Tr., ECF No. 67.

The parties had agreed that no

further testimony was necessary and that the file review had
produced a few notes, which were submitted with Petitioner’s
supplemental brief.

Id. 3:5-8, 4:21-25.

The Court kept the

record open after oral argument to allow the parties to review
the voluminous transcripts and proceedings to see if Judge
Irenas had conducted a Frye3 colloquy regarding the plea offers
and when Jencks Act4 materials were produced.

Id. 70:12-20.

While the record was clear that the Government had proposed a
Frye hearing and that all parties to the proceeding - the
Government attorney, Holliday, and even Petitioner himself recalled one had occurred, a searching inquiry of the record
failed to confirm such a hearing was ever held.

The Supreme Court’s opinion in Missouri v. Frye, 566 U.S. 134
(2012), holding that defense counsel has the duty to communicate
formal offers from the prosecution, was relatively new at the
time of the plea negotiations in Petitioner’s criminal
proceedings. See Sept. 25, 2023 Tr. 16:22-25.
3

See 18 U.S.C. § 3500; Jencks v. United States, 353 U.S. 657
(1957).
4

10

The parties appeared again on November 7, 2023, ECF No. 66,
and after reporting to the Court that they had been unable to
locate a Frye colloquy in the trial record, Nov. 7, 2023 Draft
Tr. 5:2-3, the Court closed the evidentiary record but permitted
the parties to submit closing briefs.
II.

ECF Nos. 68-69.

STANDARD OF REVIEW
Section 2255 provides in relevant part that
[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 ... may move the court which imposed the sentence
to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a).

However, section 2255 does not provide a

remedy for all trial or sentencing errors.
Addonizio, 442 U.S. 178, 184-85 (1979).

See United States v.

“Section 2255 permits

relief for an error of law or fact only where the error
constitutes a ‘fundamental defect which inherently results in a
complete miscarriage of justice.’”

United States v. Eakman, 378

F.3d 294, 298 (3d Cir. 2004) (quoting Hill v. United States, 368
U.S. 424, 428 (1962)).
III. DISCUSSION
At the outset, it is necessary to clarify the claims before
the Court.

Petitioner’s pro se amended motion argued that he

suffered ineffective assistance of counsel because Holliday
failed to properly and sufficiently inform Petitioner of the

11

possible sentence he faced if he went to trial rather than
accepting the C-Plea and failed to argue that the drugs
attributed to Petitioner were not reasonably foreseeable to him
or within the scope of his agreement.

ECF No. 5 at 4-5, 33.

The Court later permitted Petitioner to add a claim of
ineffective assistance of counsel claim regarding a possible
downward departure under U.S.S.G. § 3B1.2.

ECF No. 29.

At oral argument, CJA counsel represented to the Court that
Petitioner’s arguments about the C-Plea were limited to arguing
that Holliday was ineffective in fully discussing the plea with
Petitioner due to the absence of a full discussion about
cooperators and the admission of the juvenile record.
2023 Tr. 45:17-25.

Sept. 25,

Based on counsel’s representation and

Petitioner’s evidentiary hearing testimony that he knew about
the mandatory 240-month sentence if he were convicted at trial,
May 25, 2022 Tr. 44:7-15, the Court considers Petitioner’s
argument that he was not aware of his sentencing exposure to be
waived.
Arguably, counsel should have filed a motion to amend to
include the claims that Holliday failed to advise Petitioner on
the admission of his juvenile record, Young’s testimony, and the
July 2014 Offer.

However, the United States did not oppose the

addition of the new claims.

See generally ECF No. 60.

12

Therefore, the Court will consider these arguments as part of
Petitioner’s amended motion.
Under Strickland v. Washington, a claim of ineffective
assistance of counsel requires a petitioner to show that (1)
defense counsel’s performance was deficient and (2) the
deficiency actually prejudiced the petitioner.
687 (1984).

466 U.S. 668,

The first Strickland prong is satisfied if defense

counsel made errors that were serious enough such that counsel
was not functioning as the “counsel” that the Sixth Amendment
guarantees.

Id.

This is a high standard, especially given the

strong presumption that “counsel’s conduct falls within the wide
range of reasonable professional assistance.”

Id. at 689;

United States v. Gray, 878 F.2d 702, 710 (3d Cir. 1989).

A

court must be “highly deferential” to a defense counsel’s
decisions and should not “second-guess counsel’s assistance
after conviction.”

Strickland, 466 U.S. at 689; Berryman v.

Morton, 100 F.3d 1089, 1094 (3d Cir. 1996).
For the second Strickland prong, Petitioner must show “a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to
undermine confidence in the outcome.”
694.

Strickland, 466 U.S. at

“The likelihood of a different result must be substantial,

13

not just conceivable.”

Harrington v. Richter, 562 U.S. 86, 112

(2011).
A.

Failure to Communicate July 2014 Offer
The Court first considers Petitioner’s assertion that

Holliday failed to inform him of the July 2014 Offer in
violation of Missouri v. Frye, 566 U.S. 134 (2012).

After

reviewing the submissions of the parties and assessing the
credibility of the testimony at the evidentiary hearing, the
Court will deny relief on this claim.
The Court first finds that the July 2014 Offer was a plea
offer that was required to be presented to Petitioner for his
consideration despite its informal presentation to Holliday.
The detailed nature of Danilewitz’s email to Holliday and
Holliday’s admission that he viewed the July 2014 Offer as “a
plea offer that the government was making to Mr. Bailey”
indicate that both sides perceived the July 2014 Offer to be an
offer even though it was not put into a formal plea agreement
letter.

See May 25, 2022 Tr. 155:22-23.

The Court next concludes that Holliday credibly testified
that he reviewed the July 2014 Offer with Petitioner in person
and that Petitioner rejected the terms of the agreement.
Holliday’s July 22 e-mail memorializes his meeting with
Petitioner and provides convincing contemporaneous evidence
corroborative of his testimony.

ECF No. 60-2.
14

Furthermore,

Petitioner admitted that Holliday visited him “multiple times”
in July 2014.

May 25, 2022 Tr. 123:2.

The Court also finds that Petitioner was not a credible
witness at the hearing.

Petitioner testified that Holliday told

him that trial would be “a piece of cake,” that they would
“easily win this case on count 1 and count 10,” and that
Holliday thought Petitioner would be acquitted.

Id. 46:9-21.

Holliday started his career as a Deputy Attorney General in the
New Jersey Division of Criminal Justice in 1987.

Id. 135:22-23.

He was then an Assistant Prosecutor in Mercer County, id.
135:23-24, and entered private practice in 1991, id. 136:3.

He

started practicing criminal law and joined the District of New
Jersey’s CJA panel at that time.

Id. 136:4-19.

Before being

appointed to represent Petitioner at his trial, Holliday had
tried around eight criminal trials in federal court, including
at least one drug trafficking conspiracy case.
138:11.

Id. 137:23 to

It is not credible that a criminal defense attorney

with this level of experience would claim to a client that trial
would be “a piece of cake” or easily winnable.5

Petitioner also

Petitioner argues the “piece of cake” phrase should be
interpreted as “a reference to trial counsel’s experience in
handling federal and state jury trial.” ECF No. 55 at 6 n.4.
The Court is not persuaded. The first reference to a “piece of
cake” was by Petitioner in discussing a conversation with
Holliday: “I had asked him what you think about trial? He said,
man, it’s a piece of cake. I said how so? He said from what I
understand and what I’m going through, they can’t charge you for
5

15

admitted that he had no problem lying to people, although he
claimed that was limited to “on the street.”

Id. 69:19-24.

All

in all, the Court finds Holliday to be a more credible witness
than Petitioner.

From there, the Court concludes that Holliday

discussed the July 2014 Offer with Petitioner in July 2014 and
that Petitioner rejected the offer.
The Court concludes that Holliday’s representation did not
fall below an objective standard of reasonableness by not
providing Petitioner with a copy of Danilewitz’s email.

Frye

requires counsel “to communicate formal offers from the
prosecution to accept a plea on terms and conditions that may be
favorable to the accused.”

566 U.S. at 145.

Holliday satisfied

this requirement when he discussed the email’s proposed plea in
depth with Petitioner in person on July 20, 2014.
2022 Tr. 160:7-24, 161:3-11.

See May 25,

Frye’s reference to the “best

practice” of memorializing the agreement in writing is dictum
and is not the holding of the case.

See Frye, 566 U.S. at 146-

47.

count 1 to count 10.” May 25, 2022 Tr. 36:1-4. The Court
interprets this testimony as stating that Holliday claimed
winning would be easy because there was not enough evidence to
convict Petitioner. This is supported by Petitioner’s statement
on cross-examination that the “piece of cake” phrase was a
direct quote from Holliday in relation to “assessing or
evaluating the evidence in this case . . . .” Id. 46:9-14.
16

The fact that Holliday did not provide a copy of the email
itself does not rise to the level of ineffectiveness because
Holliday provided Petitioner all the information that Petitioner
needed to make an informed decision whether to plead guilty.
Petitioner had the chance to speak with Holliday directly and
ask Holliday any questions he may have had about the offer.
Even assuming Petitioner has the hearing difficulties he claims,
there was no requirement that Holliday present the offer in
writing if it was otherwise conveyed with the requisite detail
and clarity.

Holliday’s credible testimony establishes that he

effectively and clearly communicated the government’s offer to
Petitioner.
The Court finds that Petitioner has not satisfied the first
Strickland element.

Therefore, the Court will deny relief under

§ 2255 for this claim.
B.

Ineffective Assistance in Connection with C-Plea
Petitioner further argues Holliday was ineffective in

connection with Petitioner’s consideration of the C-Plea because
Holliday did not advise Petitioner of Judge Irenas’ pre-trial
ruling regarding his juvenile record and did not discuss Young’s
testimony with Petitioner.

ECF No. 69 at 1-2.

Petitioner

asserts he would have accepted the C-Plea if Holliday had fully
discussed these issues with him.
These arguments are without merit.
17

May 25, 2022 Tr. 45:17-25.

The United States offered the C-Plea on October 1, 2014,
ECF No. 60-3, and Petitioner rejected the plea on October 7,
2014, ECF No. 12-2 at 11.

Judge Irenas issued his ruling on the

admissibility of Petitioner’s juvenile record on October 15,
2014, after Petitioner rejected the plea.
5.

Crim. Case No. 426 at

Holliday could not have discussed the ruling to allow the

evidence before Judge Irenas issued it, and Petitioner admits
that he did not ask Holliday to go back to the United States and
try to renegotiate a plea after the ruling was issued, see May
25, 2022 Tr. 77:15 to 78:2.
Moreover, Petitioner has not cited any support for the idea
that Strickland requires an attorney to attempt to reopen plea
negotiations after every unfavorable pre-trial ruling.
Petitioner has not shown that Holliday acted objectively
unreasonable regarding the ruling.
Petitioner’s argument regarding Young’s testimony is
likewise meritless.

Despite being given the opportunity to

supplement the record after the May 2022 evidentiary hearing,
Petitioner has not presented the Court with evidence that
Holliday knew Young would be cooperating at trial prior to
October 7, 2014.

It is not clear when the United States

identified Young as a witness, but it represented to Judge
Irenas on October 10, 2014 that Jencks material for cooperating

18

witnesses had not yet been produced.

Oct. 10, 2014 Tr., Crim.

Case No. 439, 86:22-25.
The Court finds credible Holliday’s testimony that he
discussed the possibility of cooperating witness testimony with
Petitioner at some point in time, May 25, 2022 Tr. 216:2-12, and
the Court cannot fault Holliday for not conveying to Petitioner
the fact that Young would be a government witness when the
disclosure of Young’s identity did not happen until after
Petitioner rejected the C-Plea.

There is no legal obligation

for the government to disclose such information, nor is there a
legal mechanism for the defense to compel it.
The Court concludes Petitioner received effective
assistance of counsel in connection with his consideration of
the C-Plea agreement.

Petitioner admits Holliday visited him to

go over the C-Plea in person.

Id. 28:7-21.

Petitioner had a

copy of the plea agreement to review on his own.

Id. 26:9-12.

He testified at the evidentiary hearing that he was aware he was
facing a 20-year mandatory minimum if he was convicted at trial.
Id. 44:7-15.

The Court credits Holliday’s testimony that he

attempted to convey that taking one of the plea offers would be
in Petitioner’s best interests.

Id. 152:15-21, 164:18 to

165:24.

19

Therefore, the Court finds no merit to Petitioner’s
ineffective assistance of counsel claim and will deny relief
under § 2255.
C.

Failure to Challenge Drug Amount
Petitioner further asserts that Holliday provided

ineffective assistance of counsel when Holliday did not argue at
sentencing and on appeal that the amount of drugs calculated in
the Pre-Sentence Report (“PSR”) was reasonably foreseeable to
Petitioner based on Petitioner’s minimal role in the conspiracy.
ECF No. 5 at 4-5, 33-36.

The Court did not take evidence

regarding this claim at the evidentiary hearing as it is clear
from the record that Petitioner is not entitled to relief.
At the time of Petitioner’s sentencing, U.S.S.G. § 1B1.3
Application Note 1 “instruct[ed] courts to assess accomplice
attribution by determining whether the co-conspirator’s conduct
was ‘in furtherance of the . . . jointly-undertaken . . .
activity’ (as opposed to the conspiracy as described in the
count of conviction), ‘within the scope of the defendant’s
agreement,’ and ‘reasonably foreseeable in connection with the
criminal activity the defendant agreed to undertake.’”

United

States v. Collado, 975 F.2d 985, 991-22 (3d Cir. 1992)
(omissions in original) (emphasis omitted) (quoting U.S.S.G. §
1B1.3 app. note 1).

“[W]hether a particular defendant may be

held accountable for amounts of drugs involved in transactions
20

conducted by a co-conspirator depends upon the degree of the
defendant’s involvement in the conspiracy and, of course,
reasonable foreseeability with respect to the conduct of others
within the conspiracy.”

Id. at 992.

At the time of Petitioner’s sentencing and appeal, the
Third Circuit did not require “a defendant-specific
determination of drug quantity for purposes of triggering a
mandatory minimum . . . .”

United States v. Whitted, 436 F.

App’x 102, 105 (3d Cir. 2011).6

See also Lewis v. United States,

No. 13-1453, 2015 WL 3651721, at *9 (D.N.J. June 11, 2015) (“The
jury in this case specifically found the type and quantity of
drags involved in the conspiracy . . . establishing that the
conspiracy involved more than five kilograms of cocaine.

As

such, the statutory sentencing range applicable to all members
of that conspiracy . . . was therefore ten years to life.”
(emphasis omitted)).

The Third Circuit recently decided as a matter of first
impression that “a jury, in determining drug quantity for
purposes of the mandatory minimum term of imprisonment, may
attribute to a defendant only those quantities involved in
violations of § 841(a) that were within the scope of the
conspiracy, or in furtherance of it, and were reasonably
foreseeable to the defendant as a natural consequence of his
unlawful agreement.” United States v. Williams, 974 F.3d 320,
362–63 (3d Cir. 2020). “[I]n making litigation decisions,
‘there is no general duty on the part of defense counsel to
anticipate changes in the law.’” Sistrunk v. Vaughn, 96 F.3d
666, 670–71(3d Cir. 1996) (quoting Government of the Virgin
Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989)).
6

21

In Count 1, the jury found that the United States had
proved beyond a reasonable doubt that Petitioner was a part of a
conspiracy involving more than 1 kilogram of heroin.
No. 553 at 1-2.

Crim. Case

As a result, Judge Irenas was required to

impose a minimum sentence of 120 months on Count 1.
841(b)(1)(A)(i).

21 U.S.C. §

Given the state of Third Circuit law at the

time, it was reasonable for Holliday to not raise this argument
either at sentencing or on appeal.
Moreover, Petitioner has not shown that there is a
reasonable probability that his sentence would have been
different if Holliday made this argument at sentencing or on
appeal.

“In determining the drugs attributable to a defendant

at sentencing, a court may consider ‘all acts and omissions
committed, aided, abetted, counseled, commanded, induced,
procured, or willfully caused by the defendant[.]’”

United

States v. Womack, No. 19-1900, 2022 WL 4376073, at *3 (3d Cir.
Sept. 22, 2022) (quoting U.S.S.G. § 1B1.3(a)(1)(A) (alteration
in original)).

“For conspiracies, a court may also look to ‘all

acts and omissions of others’ within the scope of the joint
undertaking, in furtherance of the crime, and which are
reasonably foreseeable.”
1B1.3(a)(1)(B)).

Id. (quoting U.S.S.G. §

There is more than enough evidence in the

record from which Judge Irenas could have concluded by a

22

preponderance that the entire amount of heroin alleged in the
indictment was reasonably foreseeable to Petitioner.
For example, Young testified that Petitioner sold crack and
heroin for Derry “every day” in Atlantic City in 2012 and early
2013.

Dec. 11, 2014 Tr., Crim. Case No. 548, 3716:16-20.

“[V]ideotaped surveillance from December 17, 2012, showed
[Petitioner] leaving the organization’s trap house at 236
Rosemont Place in the first village of Stanley Holmes Village,
along with uncharged coconspirator Jermaine Reynolds.”
Case No. 642 at 15.7

Crim.

This is significant because McNamara

testified that drug organizations limit access to trap houses to
trusted individuals who are involved with the organization.
Jan. 8, 2015 Tr. 5413:13 to 5414:18.
McNamara also testified that trap houses would have to
contain enough supply “to service the customers.”
25.

Id. 5414:23-

Additionally, “[r]ecorded calls revealed Bailey setting up

sales for Derry.”
Cir. 2016).

United States v. Bailey, 840 F.3d 99, 111 (3d

See, e.g., Nov. 19, 2014 Tr., Crim. Case No. 490,

1898:13 to 1900:7 (Testimony of Special Agent Christopher Kopp

DEA Special Agent David McNamara, the Government’s drug
trafficking expert, testified that “[a] trap house or a flow
house is essentially . . . [is] an inside location in which the
users actually go into the house or up to the house, maybe to
the front door, to a window, or they actually go inside the
residence or the dwelling to make the drug transaction and then
they leave.” Jan. 8, 2015 Tr., Crim. Case No. 535, 5412:9-15.
7

23

regarding phone calls).

This is only some of the evidence

presented at trial that supports a conclusion that the full
amount of drugs was reasonably foreseeable to Petitioner due to
his extensive involvement with Derry and access to locations
where supplies for customers would have to be stored.
Because the trial record supports a finding that the amount
of heroin alleged in the indictment was reasonably foreseeable
to Petitioner, he has not shown a reasonable likelihood that his
sentence would have been different.

He also has not shown a

reasonable likelihood that his appeal would have turned out
differently.

Therefore, Petitioner has not satisfied the

Strickland prejudice element and is not entitled to relief under
§ 2255.
D.

Downward Departure Under U.S.S.G. § 3B1.2
The Court permitted Petitioner to add a claim that Holliday

was ineffective for failing to argue for a downward departure
under U.S.S.G. § 3B1.2.

ECF No. 29.

The Court did not take

evidence regarding this claim at the evidentiary hearing as it
is clear from the record that Petitioner is not entitled to
relief.
Sentencing Guideline 3B1.2 permits a court to decrease the
offense level when the defendant was a minor or mitigating
participant in the offense, or somewhere in between.

“This

section provides a range of adjustments for a defendant who
24

plays a part in committing the offense that makes him
substantially less culpable than the average participant.”
Sent’g Guidelines Manual § 3B1.2 app. note 3(A)
Comm’n 2014).

U.S.

(U.S. Sent’g

The reduction for a “minimal participant” is

“intended to cover defendants who are plainly among the least
culpable of those involved in the conduct of a group.”
note 4.

Id. app.

A “minor participant” applies to defendants “who [are]

less culpable than most other participants in the criminal
activity, but whose role[s] could not be described as minimal.”
Id. app. note 5.
“In determining whether a role adjustment is warranted,
courts should consider, among other factors: ‘(1) the
defendant’s awareness of the nature and scope of the criminal
enterprise; (2) the nature of the defendant’s relationship to
the other participants; and (3) the importance of the
defendant’s actions to the success of the venture.’”

United

States v. Womack, 55 F.4th 219, 244 (3d Cir. 2022) (quoting
United States v. Brown, 250 F.3d 811, 819 (3d Cir. 2001)).
Petitioner has not shown that there is a reasonable
likelihood that his sentence would have been different if
Holliday had argued for a departure at sentencing or on appeal.
As discussed supra, the trial record is replete with evidence
that Petitioner had more than a minor or mitigating role in the
conspiracy.

According to the evidence presented at trial,
25

Petitioner interacted directly with Derry in distributing
heroin, acted as a lookout, and participated in attempting to
raise funds to bail out DDTO members.

See United States v.

Bailey, 840 F.3d 99, 111 (3d Cir. 2016).

This is not the

behavior of a minor or mitigating participant.

See United

States v. Berry, 314 F. App’x 486, 488–89 (3d Cir. 2008).
Holliday successfully argued for a downward variance as
part of Judge Irenas’ consideration of the 18 U.S.C. § 3553(a)
factors.

See ECF No. 12-3 at 8-15; Sent’g Tr., Crim. Case No.

730, 32:19 to 34:3.

Judge Irenas agreed that Petitioner’s

character and history warranted lowering the guideline range
from 151-188 months to 121-151 months.

Id. 33:1-4.

He

sentenced Petitioner to 121 months on Count 1, the bottom of the
adjusted range and only one month over the 120-month mandatory
minimum.

Id. 33:19-24.

He then sentenced Petitioner to the

120-month mandatory minimum for Count 10, which was required to
be consecutive to Count 1.

Id. 33:25 to 34:2.

There is not a reasonable likelihood that this result would
have been different had Holliday tried to argue for a departure
under U.S.S.G. § 3B1.2, nor is there a reasonable likelihood
that Petitioner’s appeal would have turned out differently if
Holliday raised this argument.
The Court will deny relief under § 2255.

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IV.

CERTIFICATE OF APPEALABILITY
An appeal may not be taken to the court of appeals from a

final order in a § 2255 proceeding unless a judge issues a
certificate of appealability on the ground that “the applicant
has made a substantial showing of the denial of a constitutional
right.”

28 U.S.C. § 2253(c)(2).

This Court denies a

certificate of appealability because jurists of reason would not
find it debatable that Petitioner has not made a substantial
showing of the denial of a constitutional right.
V. CONCLUSION
For the foregoing reasons, the amended motion to correct,
vacate, or set aside Petitioner’s federal conviction will be
denied.

No certificate of appealability shall issue.

An appropriate order will be entered.

Dated: January 23, 2024
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

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