FOOTE v. UNITED STATES OF AMERICA
OPINION. Signed by Judge Stanley R. Chesler on 3/24/14. (DD, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 12-3094 (SRC)
UNITED STATES OF AMERICA,
CHESLER, District Judge
Stanley Foote, a pro se petitioner (“Petitioner”), has moved to vacate, set aside or modify
his sentence pursuant to 28 U.S.C. § 2255. The Petition asserts that his federal charges were
prosecuted without proper jurisdiction and, in addition, raises a claim of ineffective assistance of
counsel. Through his ineffective assistance claim, he principally challenges his trial counsel’s
representation as it relates to wiretap evidence produced at trial. See ECF No. 7. Petitioner
requests an evidentiary hearing on his claims. See id.
The Government moves to dismiss the Petition on various grounds. See ECF Nos. 12 to
20. Petitioner has filed a traverse, and moves to amend his Petition to include a challenge based
on Alleyne v. United States, 133 S. Ct. 2151 (2013). This Court has considered the papers filed
by the parties and, for the reasons detailed below, denies the Petition without an evidentiary
hearing. 1 The Court also denies Petitioner’s request to amend.
Since the underlying record unambiguously establishes that Petitioner is not entitled to relief,
no evidentiary hearing is warranted. See Gov’t of V.I. v. Forte, 865 F.2d 59, 62 (3d Cir. 1989);
see also Solis v. United States, 252 F.3d 289, 295 (3d Cir. 2001) (“a defendant [is] not entitled to
a hearing if his allegations [are] contradicted conclusively by the record, or if the allegations
[are] patently frivolous”); United States v. Essig, 10 F.3d 968, 976 (3d Cir. 1993) (only when a §
The underlying criminal matter arose from a 2006 FBI investigation of a narcotics
trafficking ring led by Petitioner, known under his alias “Murder,” a ranking member of the
Nine-Three set of the Bloods gang. In light of that investigation, the FBA sought and obtained
an order allowing its agents to intercept (“wiretap”) Petitioner’s conversations conducted through
his cell phone. During the three and a half weeks of that wiretap, Petitioner had numerous
telephonic conversations with his girlfriend Barbara Manning (“Manning”) and with Waleek
Chandler (“Chandler”), Petitioner’s close associate known under the alias “Reckless.” These
conversations revealed that Petitioner, Chandler and Manning were conspiring to rob the house
of Rory Harvey (“Harvey”), a drug dealer who was living in Newark with his family. 2
On August 23, 2006, while Harvey was away but when Harvey’s mother, sister and four
children were at home, Chandler entered Harvey’s house through the first-floor window and,
upon pointing a gun at Harvey’s sister and children, directed them to get down on the floor and
open the front door to allow Petitioner inside. 3 While Chandler was holding Harvey’s sister and
children at gunpoint, Petitioner searched through Harvey’s bedroom for drugs and money. Since
Harvey had moved the drugs and money to another location shortly prior to the burglary, the
search proved fruitless, and Petitioner and Chandler eventually left Harvey’s house. Harvey’s
mother, awaken by the burglary, alerted the police after the intruders left. Meanwhile, the
2255 petition raises an issue of material fact, “the district court must hold a hearing to determine
the truth of the allegations”); accord Brown v. United States, 45 F. App’x 92, 95 (3d Cir. 2002)
(“if [the claim] is nonfrivolous [but] fails to demonstrate either deficiency of counsel’s
performance or prejudice to the defendant, then [the claim] does not merit a hearing”).
Manning knew Harvey and was aware of his habit to keep money and drugs in the bedroom at
the second floor of his house. The conspirators had numerous telephonic discussions of the
planned crime, and those conversations were recorded by the FBI.
Harvey’s mother was asleep in her bedroom when Chandler entered Harvey’s house.
disappointed Petitioner renewed his cell-phone discussions with Manning, and subsequently had
an in-person conversation with her. These conversations confirmed that the burglary had taken
On September 2, 2006, Petitioner was arrested. His indictment was returned on July 27,
2007, charging him with four counts, i.e., Hobbs Act conspiracy and Hobbs Act attempted
robbery, brandishing of a firearm during a crime of violence, and carrying a second firearm. His
trial convened on February 10, 2009. At trial, the Government’s case relied, inter alia, on the
testimony of Manning, members of Harvey’s family, a neighbor who lived across the street from
Harvey’s house and who witnessed the burglary, FBI agents, wiretap recordings, and cell-site
data. During the pre-trial and post-trial stages, Petitioner raised several jurisdictional challenges
to his offenses. Numerous hearings were held to address those challenges, and all of Petitioner’s
applications were dismissed.
The jury found Petitioner guilty on the first three counts (the Hobbs Act conspiracy,
Hobbs Act attempted robbery, and brandishing charges), but acquitted him on the second firearm
charge. This Court sentenced him to two consecutive terms totaling 324 months. 4 A direct
appeal followed attacking the testimony offered by the neighbor who lived across the street from
Harvey’s house but, despite Petitioner’s challenge, his conviction was affirmed. See United
States v. Foote, 432 F. App’x 151 (3d Cir. 2011).
On May 23, 2012, Petitioner filed the initial § 2255 motion that gave rise to the instant
matter. See ECF No. 1. Petitioner was advised of his rights under United States v. Miller, 197
F.3d 644 (3d Cir. 1999). See ECF No. 3. He then withdrew his initial § 2255 motion, see ECF
Nos. 4 to 6, and filed the Petition at bar. See ECF No. 7.
Chandler pled guilty to interference with commerce by threat of violence, and this Court
sentenced him to 169 months.
Pursuant to section § 2255, “[a] prisoner in custody under sentence of a court established
by Act of Congress,” may move to vacate, set aside or correct his sentence where he claims:
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 sentence,
or that the sentence was in excess of the maximum authorized by law, or is
otherwise subject to collateral attack . . . .
28 U.S.C. § 2255; see also U.S. v. Thomas, 713 F.3d 165, 171 (3d Cir. 2013). “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.’” U.S. v. Eakman, 378 F.3d 294,
298 (3d Cir. 2004) (quoting United States v. Addonizio, 442 U.S. 178, 185 (1979)). Petitioner is
a pro se litigant. A pro se pleading is held to less stringent standards than more formal pleadings
filed by lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972). Correspondingly, this
Circuit’s jurisprudence directs that a pro se petition, such as the one at bar, should be construed
liberally and with a measure of tolerance. See Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998).
However, even applying this generous standard, the Court finds that the Petition must be denied.
As noted, Petitioner extensively litigated his jurisdictional challenges during the pre- and
post-trial stages of his criminal matter. Now, he raises the same challenge anew. While,
arguendo, he may raise a jurisdictional claim on collateral review, see United States v.
Addonizio, 442 U.S. 178, 185 (1979), this claim was and still is substantively meritless and,
being raised anew, brings Petitioner dangerously close to abusing the writ. 5
Where a habeas litigant is attempting to re-litigate the very same issue time and again, or
where the litigant raises claims already known to him as facially meritless, it is well within the
broad scope of the All Writs Act, 28 U.S.C. § 1651(a), for a district court to issue an order
restricting such frivolous filings. See e.g., In Re Oliver, 682 F.2d 443, 445 (3d Cir. 1982) (citing
Lacks v. Fahmi, 623 F.2d 254 (2d Cir. 1980) (per curiam); Harrelson v. United States, 613 F.2d
Petitioner was charged with violations of the Hobbs Act since the object of his crime
included heroin, cocaine and U.S. currency. The Hobbs Act states, in relevant part,
Whoever in any way or degree . . . affects commerce . . . by robbery . . . or conspires so
to do, or commits or threatens physical violence to any person . . . in furtherance of a plan
or purpose to do anything in violation of this section, shall be . . . imprisoned not more
than twenty years . . . . The term “commerce” means . . . commerce between any point in
a State [and] any point outside thereof; all commerce between points within the same
State through any place outside such State; and all other commerce over which the United
States has jurisdiction.
18 U.S.C. §1951.
Reflecting on the scope of the Hobbs Act, the Court of Appeals has observed:
The Hobbs Act defines commerce broadly . . . . [See United States v.] Walker, 657 F.3d
[160,] 179 [(3d Cir. 2011)]; see also Stirone v. United States, 361 U.S. 212, 215 (1960)
(“[The Hobbs Act] speaks in broad language, manifesting a purpose to use all the
constitutional power Congress has to punish interference with interstate commerce by
extortion, robbery or physical violence”). This Court has held that “proof of a de
minimis effect on interstate commerce is all that is required” in a Hobbs Act prosecution.
United States v. Urban, 404 F.3d 754, 766 (3d Cir. 2005). Further, such a de minimis
effect need only be “slight, subtle or even potential.” United States v. Haywood, 363
F.3d 200, 210 (3d Cir. 2004).
United States v. Gassew, 519 F. App’x 764, 766 (3d Cir. 2013).
A defendant’s attempt to rob a drug dealer provides a “realistic possibility of interstate
effects because ‘the robbery of cocaine dealers has an effect on interstate commerce.’” United
States v. Muratovic, 719 F.3d 809, 814 (7th Cir. 2013) (citing United States v. Bailey, 227 F.3d
792, 799 (7th Cir. 2000), and United States v. Thomas, 159 F.3d 296, 297-98 (7th Cir. 1998), for
the discussion of an aggregated interstate effect of drug trafficking); accord Mason v.
Zickefoose, 525 F. App’x 81, 83 (3d Cir. 2013) (“attempting to rob a drug dealer who traveled to
114, 115 (5th Cir. 1980) (per curiam); Clinton v. United States, 297 F.2d 899, 901 (9th Cir.
1961), cert. denied, 369 U.S. 856, 82 S. Ct. 944, 8 L. Ed. 2d 14 (1962)). This is so because if a
petitioner continues to raise – or paraphrase – his already dismissed challenges, he risks abusing
the equitable nature of the habeas writ. See Sanders v. United States, 373 U.S. 1, 17-19 (1963);
Furnari v. United States Parole Comm’n, 531 F.3d 241, 250 (3d Cir. 2008). Perhaps the
extensive trial-level litigation was the reason for Respondent’s election to wholly omit the
jurisdictional issue in Respondent’s answer to the Petition.
[one state] from [another] to buy drugs . . . affected interstate commerce”). Here, the
Government based its case on the fact that cocaine and heroin are not indigenous to the State of
New Jersey and, thus, must have traveled in interstate commerce (and the U.S. currency, being
fungible, is presumed to travel in interstate commerce). 6 Nothing in Petitioner’s submissions
disputes or could dispute these facts. Thus, his renewed jurisdictional challenge warrants no
Ineffective Assistance of Counsel
The Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668 (1984), sets
forth the standard for establishing a claim that a defendant’s Sixth Amendment right to effective
assistance of counsel has been violated. The Strickland Court held:
A convicted defendant’s claim that counsel’s assistance was so defective as to require
reversal of a conviction . . . 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. Unless a defendant
makes both showings, it cannot be said that the conviction or death sentence resulted
from a breakdown in the adversary process that renders the result unreliable.
Id. at 687; see also Buehl v. Vaughn, 166 F.3d 163, 169 (3d Cir. 1999). The defendant bears the
burden of demonstrating ineffective assistance of counsel. See United States v. Baynes, 622
F.2d 66, 69 (3d Cir. 1980).
Under the first prong, the defendant must show “that counsel’s performance fell below an
objective standard of reasonableness under prevailing professional norms.” United States v.
Sanders, 165 F.3d 248, 250 (3d Cir. 1999). Under the prejudice prong, the defendant must
“It is of no moment . . . that the commodity traveling in interstate commerce [e.g., a controlled
substance,] is illegal under federal law [since] the Hobbs Act is not confined either by its
language or its legislative history to require some effect on goods traveling legally in interstate
commerce.” United States v. Jones, 30 F.3d 276, 286 (2d Cir. 1994).
demonstrate that “there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceedings would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.
The burden on the defendant challenging his conviction on the basis of ineffective
assistance is a heavy one. See id. at 689-90. This Court must “indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 698;
see also George v. Sively, 254 F.3d 438, 443 (3d Cir. 2001). “[I]t is ‘only the rare claim of
ineffectiveness of counsel that should succeed.’” Buehl, 166 F.3d at169 (quoting United States
v. Gray, 878 F.2d 702, 711 (3d Cir.1989)).
Petitioner raises vague claims based on the wiretap of his cell phone. On the one hand,
he alleges that his counsel failed to “investigate” the legality of the wiretap; on the other hand, he
suggests that the fruits of the wiretap were wholly unrelated to the subject matter of his
prosecution. From that, Petitioner deduces that his counsel should have sought dismissal of his
indictment and/or suppression of the wiretap’s fruit. Petitioner errs.
The wiretap was performed pursuant to a properly obtained order authorizing the
interception of Petitioner’s communications for the purposes of certain offenses. 7 Each count
upon which Petitioner was convicted directly related to Petitioner’s objective to obtain Harvey’s
controlled substances and funds, and Petitioner’s illicit activities that caused the FBI to institute
its investigation ab initio. While it is conceivable that the FBI obtained the wiretap order without
I.e., the wiretap was based on the statutes prohibiting the use of a communication facility, such
as a cell phone, in committing or in causing or facilitating the commission of a controlled
substance felony, conspiracy to distribute controlled substances or possess them with intent to
distribute, distribution of controlled substances or possession with intent to distribute,
racketeering, money laundering, conspiracy to do the same, fraud, etc.
an expectation that Petitioner would be sourcing his narcotics operations through such
unorthodox means as burglarizing the houses of other drug dealers, nothing in the statutes
invoked in the wiretap order could render such “sourcing” irrelevant to the narcotics operations
investigated by the FBI. Since there was a clear nexus between the statutory mandates
underlying the wiretap order and Petitioner’s Hobbs Act conspiracy and attempted robbery
prosecution, as well as the use of a firearm in connection with the latter, it would have been futile
for Petitioner’s counsel to seek dismissal of the indictment or suppression of evidence obtained
as a result of the wiretap on the basis of a lack of nexus. Hence, this claim fails to meet both
Petitioner’s other contention, i.e., that his counsel failed to “investigate the illegality” of
the wiretap order, is also misguided. Since the Petition asserted that the wiretap was “illegal” but
did not specify the nature of the alleged “illegality,” Respondent construed this claim as asserting
that Petitioner’s counsel should have sought a hearing pursuant to Franks v. Delaware, 438 U.S.
154 (1986). At a Franks hearing, a defendant may assert that the warrant authorizing a wiretap
was based on a false affidavit and otherwise lacks sufficient probable cause. 8
To the extent that Petitioner is, in fact, bringing a Franks claim, Respondent’s answer
correctly argues that Petitioner’s claim is devoid of any factual predicate. See ECF No. 12, at 23
(noting that the wiretap order was issued by a district judge on the basis of ample probable cause
that was established by materials free from misrepresentations that could call into question the
More specifically, “[u]nder Franks, if a defendant makes a substantial preliminary showing
that 1) a false statement was included by the affiant in an affidavit supporting a search warrant,
either knowingly and intentionally or with reckless disregard for the truth and 2) the allegedly
false statement is necessary to a finding of probable cause, then the false material in the affidavit
is to be set aside and the sufficiency of the affidavit to establish probable cause is to be judged by
the remaining material.” United States v. Calisto, 838 F.2d 711, 713 (3d Cir. 1988).
validity of the procured order). Perplexingly, Petitioner states in his response to Respondent’s
motion to dismiss:
Because [Petitioner] does not argue that there was a deliberate or reckless
misrepresentation in the wiretap or related materials, and because there was am[p]le
probable cause for the wiretap, [the Petition intentionally omitted to detail the nature of
the alleged “illegality” since] any challenge or frank claim [by Petitioner] would have
ECF No. 27, at 22-23.
By making this statement, Petitioner effectively concedes that his “illegality” claim lacks
merit, and that it amounts to a mere expression of his displeasure with the fact that the wiretap
order was procured. “Habeas corpus petitions must meet heightened pleading requirements.”
McFarland v. Scott, 512 U.S. 849, 856 (1994). This means that a habeas application must set
forth “facts supporting each of the grounds.” See 28 U.S.C. § 2254 Rule 2(c) (am. Dec. 1, 2004,
applicable to § 2255 through Habeas Rule 1(b)). Since Petitioner’s response effectively
concedes that he has no relevant facts or legal bases, and the record verifies that counsel properly
elected not to raise such frivolous challenge, the “illegality” claim also fails to meet either
Strickland prong. 9
Petitioner’s remaining contention is that the evidence derived from the wiretap was
unlawfully disclosed to a grand jury in violation of 18 U.S.C. § 2517(5), and thus Petitioner’s
counsel was ineffective for failing to move to suppress it. See ECF No. 27, at 10-17. This
argument is meritless. The Third Circuit law on this subject is clear – “Title III [of the Omnibus
Moreover, Petitioner failed to raise any “illegality” claim on direct appeal. He cannot
overcome this failure by “stitching” his unraised appellate claim to an ineffective assistance
claim on collateral review. Sellers v. United States, No. 14-0388, 2014 U.S. Dist. LEXIS 11419,
at *5 (D.N.J. Jan. 30, 2014). Neither can Petitioner now speculate that “something was rotten in
the state of Denmark.” Kaplan v. United States Office of Thrift Supervision, 104 F.3d 417, 423
(D.C. Cir. 1997). Finally, this Court is not obligated, or even allowed, to instruct Petitioner on
how to properly raise and frame his claim. See Toolasprashad v. Wright, 2008 U.S. Dist. LEXIS
90220 (D.N.J. Nov. 3, 2008) (observing that “[d]istrict judges have no obligation to act as
counsel or paralegal to pro se litigants” (quoting Pliler v. Ford, 542 U.S. 225, 231-32 (2004))).
Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520] does not prescribe
suppression as a remedy for a disclosure violation.” United States v. Williams, 124 F.3d 411,
426 (3d Cir. 1997). The two cases that form the basis of Petitioner’s argument – United States v.
Marion, 535 F.2d 697 (2d Cir. 1976), and United States v. Brodson, 528 F.2d 214 (7th Cir. 1975)
– have been explicitly rejected by the Third Circuit. See Williams, 124 F.3d at 427 n.11 (“these
decisions [Marion and Brodson] are contrary to controlling precedents of our Court”). Thus,
even if this Court assumes that the wiretap evidence was in fact improperly disclosed,
Petitioner’s counsel could not have been ineffective within Strickland’s ambit for failing to argue
that such evidence should be suppressed.
Petitioner’s Multiplicity Argument
Two other claims raised by Petitioner maintain that the charges against him were
“duplicitous.” These claims are stated with less than exemplar clarity. Respondent construes,
and not unreasonably, that Petitioner aims to assert that: (a) he was charged, under two different
counts (one “conspiracy” and another “attempt”) for the very same actions associated with the
robbery of Harvey’s house; and (b) he was also charged twice, albeit in a single count, with
brandishing of a firearm, since his indictment as to that charge utilized a dual-verb phrase “use
and brandish.” Respondent construes these claims as an assertion of multiplicity, or the
“charging of the same offense in two or more counts of an indictment or information.” See
United States v. Stanfa, 685 F.2d 85, 86-87 (3d Cir. 1982). Respondent argues that Petitioner’s
position evinces nothing but his confusion as to the workings of law and meaning of legal
This Court agrees with Respondent’s construction and concludes that Petitioner’s
argument is meritless. While conspiracy and attempt are inchoate offenses,
[law] does not proscribe convictions for both conspiracy and an attempt. In fact it is
well-settled that conspiracy can be separately charged and punished along with any
crime, which may be the object of the conspiracy. The offenses of attempt . . . and
conspiracy have different elements. Conspiracy requires an agreement to commit an
offense and an overt act, while attempt lacks the agreement element and requires an overt
act beyond mere preparation.
United States v. Hester, 2005 CCA LEXIS 85, at *3 (N-M.C.C.A. Mar. 15, 2005) (citing, inter
alia, Iannelli v. United States, 420 U.S. 770, 777 (1975)); see also United States v. Caulfield, 72
M.J. 690, 694 (C.G.C.C.A. 2013) (“[While] both attempt and conspiracy include as elements the
accused’s intent to commit the target offense[, i]t is apparent that conspiracy requires an
agreement among two or more individuals, which is not required for attempt. It is also apparent
that, while both offenses require an overt act, the overt act for an attempt must amount to more
than mere preparation and must tend to effect the commission of the intended offense – elements
that are not required for conspiracy. Clearly, the two offenses are not multiplicious under the
elements test”). Since, here, the goal of Petitioner’s conspiracy was reaching an agreement with
Manning and Chandler, while the goal of his and Chandler’s invasion of Harvey’s house was
attempting a robbery, his conspiracy and attempt charges were not multiplicious.
As for Petitioner’s challenge to the firearm count, Petitioner fails to respond, in his
opposition papers, to Respondent’s argument regarding the count’s utilization of “use and
brandish.” This Court finds no legal basis for concluding that the dual-verb phrase “use and
brandish” employed in the indictment somehow subjected Petitioner to two distinct and different
charges for the same offense. Accordingly, this claim will be dismissed without further
For the aforesaid reasons, Petitioner’s counsel’s election to avoid raising a frivolous
challenge based on the separate charges of conspiracy and assault could not have violated either
prong of Strickland. Neither could counsel’s election to avoid challenging the indictment on the
ground that one charge employed the dual-verb phrase “use and brandish” violate Strickland.
Hence, Petitioner’s challenges on these grounds warrant no relief.
Finally, throughout his submissions, Petitioner “hints” that there are other instances of
ineffective assistance; however, the Court has discerned that no other viable claims exist. 10
More to the point, the evidence against Petitioner adduced at trial was overwhelming. Thus,
even if this Court were to assume, for the sake of argument, that counsel’s choices could be
questioned under the first Strickland prong, and they cannot be, Petitioner suffered no prejudice
within the meaning of the second prong of Strickland. Hence, his Petition is denied in its
The Court denies Petitioner’s motion to amend his Petition and add a claim pursuant to
Alleyne. See ECF No. 25. This claim presents a second/successive § 2255 motion filed without
leave. Accord Boretsky v. Ricci, 2012 U.S. Dist. LEXIS 37239, at *12-14 (D.N.J. Mar. 20,
2012). As noted above, Petitioner raises his Alleyne claim after (1) being advised of his Miller
rights; (2) submitting his all-inclusive Petition; and (3) after Respondent answered the Petition.
Hence, the Alleyne claim must be dismissed for lack of jurisdiction. Moreover, even if
Petitioner’s Alleyne claim been raised in the Petition ab initio, it would still be dismissed since
Alleyne does not apply retroactively to cases on collateral review. See United States v.
Galindez, 2014 U.S. App. LEXIS 2887, at *5 (3d Cir. Feb. 18, 2014) (“Alleyne . . . has not been
Although Petitioner once referred to his defense counsel who represented him during the trial
and on appeal as “my trial and appellate counsel,” the claims Petitioner raised do not relate to the
appellate process and, thus, cannot implicate his Sixth Amendment rights on appeal.
made retroactively applicable by the Supreme Court” (citing Simpson v. United States, 721 F.3d
875, 876 (7th Cir. 2013))). 11
CERTIFICATE OF APPEALABILITY
An appeal may not be taken 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). Here, this Court denies
a certificate of appealability since jurists of reason would not find it debatable that Petitioner
failed to make the requisite showing.
For the foregoing reasons, Respondent’s motion to dismiss will be granted, and the
Petition will be denied. The Court also denies Petitioner’s request to amend his petition. No
certificate of appealability will issue.
An appropriate Order follows.
STANLEY R. CHESLER
United States District Judge
Dated: March 24th, 2014
In addition, since Petitioner’s jurors were polled as to the brandishing-of-firearm issue in a
special verdict form, his Alleyne challenges are meritless because they lack a factual predicate,
and the challenges would be dismissed even had they been raised in a post-trial application.
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