BROWN v. UNITED STATES OF AMERICA

Filing 12

OPINION. Signed by Judge Susan D. Wigenton on 5/2/16. (cm, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
WYDOVE BROWN,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Civil Action No. 13-2552 (SDW)

OPINION

WIGENTON, District Judge:
Presently before the Court is the motion of Wydove Brown (“Petitioner”) to vacate, set
aside, or correct his sentence brought pursuant to 28 U.S.C. § 2255. (ECF No. 1). Petitioner filed
his motion on or about March 18, 2013. (ECF No. 1). Following this Court’s order to answer, the
Government filed a response (ECF No. 9). Petitioner did not file a reply. On August 19, 2014,
the Government filed a supplemental letter (ECF No. 10), to which Petitioner responded. (ECF
No. 11). For the following reasons, this Court will deny Petitioner’s motion to vacate his sentence,
and will deny Petitioner a certificate of appealability.

I. BACKGROUND
In the court’s opinion affirming Petitioner’s conviction and sentence, the Third Circuit
provided the following summary of the facts underlying this case:
On November 12, 2008, two cars filled with police officers from the
Newark Police Department saw a group of men, including
[Petitioner], in a notorious open air drug market. After seeing the
police, the men dispersed, and Sergeant William Connolly
(“Connolly”) observed [Petitioner] cross South 15th Street in
Newark, NJ, while holding something at his waistband. Concerned
that [Petitioner] had a gun, the officers stopped their cars, and
Connolly instructed [Petitioner] to stop. According to the officers,
[Petitioner] continued walking and crouched down near a minivan,

placing the gun on the ground near a tire. Another officer heard the
gun hit the ground and the officers apprehended [Petitioner].
As part of an omnibus motion, [Petitioner] moved to
suppress the gun. In support of the motion, he submitted a
certification articulating a different set of facts leading to his arrest.
According to [Petitioner], the police confronted him on the street,
searched him for no reason, and took his keys. His keys included
the keys to a car that he had borrowed to drive to the area. He stated
that the police opened the vehicle, searched it, and found a gun
inside the glove compartment.
The District Court conducted a hearing on the various issues
raised in [Petitioner]'s omnibus motion, but it did not resolve the
suppression issue. During the hearing, the parties disclosed that
[Petitioner]'s license was suspended at the time of his arrest, and the
parties did not contest that particular fact. The District Court
accepted [Petitioner]'s articulation of the facts for the purpose of
resolving the motion to suppress and denied the motion. The Court
held that [Petitioner] did not have a legitimate expectation of privacy
in the vehicle as an unlicensed driver and, therefore, lacked standing
to challenge the search of the vehicle. [Petitioner] filed a motion for
reconsideration and requested a full evidentiary hearing on the issue
of standing. The District Court held the motion for reconsideration
in abeyance, deciding to wait until after it had heard all of the
evidence presented at trial. After hearing the evidence presented at
trial, the District Court gave [Petitioner] an opportunity to offer
additional evidence on the motion to suppress. [Petitioner] did not
offer new evidence and the Court again found that [Petitioner]
lacked standing.
[Petitioner]'s first trial ended in a mistrial. Before the start
of the second trial, [Petitioner] moved the Court to relieve his
current lawyer from representing him and to have the Court appoint
new counsel. The Court denied his request. After hearing all of the
evidence in the second trial, defense counsel asked the Court to
reopen the suppression motion and consider it on its merits in light
of the trial testimony. The Court ruled that it would not revisit its
prior determination on standing because [Petitioner] did not present
any persuasive grounds for reopening the motion. The Court further
reasoned that the weighing of the evidence on the issue of
suppression would yield the same result—the police officers'
testimony regarding recovery of the gun would stand. In the Court's
view, when comparing the officers' testimony to [Petitioner]'s
certification, [Petitioner]'s version of the facts was entirely
incredible. Hence even if the Court determined that [Petitioner] had
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standing, the Court would have allowed the gun and the
accompanying testimony into evidence.
A second jury found [Petitioner] guilty of being a felon[ 1] in
possession of a gun. [Petitioner] was sentenced to 120 months of
imprisonment.
United States v. Brown, 454 F. App’x 44, 46-47 (3d Cir. 2011).
Petitioner appealed his sentence, raising the following claims: that the trial court erred in
permitting Petitioner to be shackled at trial, that the trial court erred in denying Petitioner’s request
for substitute counsel, that the trial court erred in denying Petitioner’s request for a hearing on his
motion to suppress, that the trial court erred in denying the motion to suppress, and that the trial
court erred in allowing the Government to “vouch” for witnesses during summation. Id. at 47.
The Third Circuit affirmed Petitioner’s conviction by way of an opinion issued on December 8,
2011. Id. at 47-51. In addressing Petitioner’s claim that the court improperly denied Petitioner’s
request for substitute counsel, the Third Circuit held that the trial court engaged in the correct
inquiry and did not abuse its discretion in denying Petitioner’s motion. Id.at 48-49. In so doing,
the Third Circuit specifically noted the trial court’s finding that “defense counsel had performed
outstandingly during Brown’s first trial,” ultimately achieving a mistrial in the face of strong
evidence of guilt. Id. at 48. Following the Third Circuit’s affirming of his conviction, Petitioner
filed a petition for certiorari, which was denied by the Supreme Court on April 23, 2012. See
Brown v. United States, --- U.S ---, 132 S. Ct. 1988 (2012).
Petitioner filed his initial motion to vacate his sentence on April 18, 2013. (ECF No. 1).
On May 6, 2013, this Court entered an order advising Petitioner of his rights under United States

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As of the time of his sentencing in this matter, Petitioner’s criminal history included
convictions for resisting arrest, theft, possession of a controlled dangerous substance with intent
to distribute within 1000 feet of a school, simple assault, aggravated assault, burglary, and
robbery. (See PSR at ¶ 32-61).
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v. Miller, 197 F.3d 644 (3d Cir. 1999). (ECF No. 2). In response to that order, Petitioner filed a
“First Amended Supplemental Petition” in which he provided further facts and allegations in
support of his claims. 2 (ECF No. 3). This Court thereafter ordered the Government to answer the
petition. (ECF No. 5). The Government filed its response on September 9, 2013. (ECF No. 9).
Petitioner did not file a reply brief. On August 19, 2014, the Government filed a supplemental
letter providing the results of a DOJ investigation into the Newark Police Department. (ECF No.
10). On September 2, 2014, Petitioner filed a letter response to the Government’s supplement.
(ECF No. 11).

II. DISCUSSION
A. Legal Standard
A prisoner in federal custody may file a motion pursuant to 28 U.S.C. § 2255 challenging
the validity of his or her sentence. Section 2255 provides, in relevant part, as follows:
A prisoner in custody under sentence of a court established by Act
of Congress claiming the right to be released upon the ground that
the sentence was imposed in violation of the Constitution or laws of
the United States, or that the court was without jurisdiction to
2

Petitioner’s intention appeared to be to file this document as a supplemental brief in support of
his original § 2255 motion. Thus, this Court construes both ECF Nos. 1 and 3 together as setting
forth the entirety of Petitioner’s claims.
This Court also notes that, in his amended supplemental petition, Petitioner reiterates the claims
he raised on direct appeal in his recitation of facts. It appears that Petitioner used the Third
Circuit’s opinion as an aid in drafting his supplement, and that Petitioner quotes that opinion not
to re-raise his direct appeal claims, but rather as a summary of the Third Circuit’s rulings. This
Court therefore does not construe Petitioner as attempting to re-raise his direct appeal claims in
his current § 2255 motion. Even if Petitioner had wished to re-raise those claims here, he would
be unable to do so as a § 2255 petitioner may not raise in his § 2255 motion those claims which
were raised and denied on the merits on direct appeal. See United States v. DeRewal, 10 F.3d
100, 105 n. 4 (3d Cir. 1993) (internal quotations omitted); see also United States v Travillion,
759 F.3d 281, 288 (3d Cir. 2014) (“issues resolved in a prior direct appeal will not be reviewed
again by way of § 2255 motion”).
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impose such a sentence, or that the sentence was in excess of the
maximum authorized by law, or is otherwise subject to collateral
attack, may move the court which imposed the sentence to vacate,
set aside or correct the sentence.
28 U.S.C. § 2255. Unless the moving party claims a jurisdictional defect or a constitutional
violation, to be entitled to relief the moving party must show that an error of law or fact constitutes
“a fundamental defect which inherently results in a complete miscarriage of justice, [or] an
omission inconsistent with the rudimentary demands of fair procedure.” United States v. Horsley,
599 F.2d 1265, 1268 (3d Cir. 1979) (quoting Hill v. United States, 368 U.S. 424, 429 (1962)), cert.
denied 444 U.S. 865 (1979); see also Morelli v. United States, 285 F. Supp. 2d 454, 458-59 (D.N.J.
2003).

B. Analysis
1. An evidentiary hearing is not required
A district court need not hold an evidentary hearing on a motion to vacate where “the
motion and files and records of the case conclusively show that the prisoner is entitled to no relief.”
28 U.S.C. § 2255(b); United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005); United States v.
Day, 969 F.2d 39, 41-42 (3d Cir. 1992). “Where the record, supplemented by the trial judge's
personal knowledge, conclusively negates the factual predicates asserted by the petitioner or
indicate[s] that petitioner is not entitled to relief as a matter of law, no hearing is required.” Judge
v. United States, 119 F. Supp. 3d 270, 280 (D.N.J. 2015); see also Government of Virgin Islands
v. Nicholas, 759 F.2d 1073, 1075 (3d Cir. 1985); see also United States v. Tuyen Quang Pham,
587 F. App’x 6, 8 (3d Cir. 2014); Booth, 432 F.3d at 546. For the reasons set forth below, Petitioner
has failed to establish a prima facie case of ineffective assistance of counsel, and no hearing is
required for the resolution of this matter.
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2. Petitioner’s ineffective assistance of counsel claims
Petitioner asserts that his trial counsel was constitutionally ineffective. The standards
applicable to such a claim are well established:
[c]laims of ineffective assistance are governed by the two-prong test
set forth in the Supreme Court’s opinion in Strickland v.
Washington, 466 U.S. 668 (1984). To make out such a claim under
Strickland, a petitioner must first show that “counsel’s performance
was deficient. This requires [the petitioner to show] that counsel
made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed by the Sixth Amendment.” Id. at 687; see also
United States v. Shedrick, 493 F.3d 292, 299 (3d Cir. 2007). To
succeed on an ineffective assistance claim, a petitioner must also
show that counsel’s allegedly deficient performance prejudiced his
defense such that the petitioner was “deprive[d] of a fair trial . . .
whose result is reliable.” Strickland, 466 U.S. at 687; Shedrick, 493
F.3d at 299.
In evaluating whether counsel was deficient, the “proper
standard for attorney performance is that of ‘reasonably effective
assistance.’” Jacobs v. Horn, 395 F.3d 92, 102 (3d Cir. 2005). A
petitioner asserting ineffective assistance must therefore show that
counsel’s representation “fell below an objective standard of
reasonableness” under the circumstances. Id. The reasonableness
of counsel’s representation must be determined based on the
particular facts of a petitioner’s case, viewed as of the time of the
challenged conduct of counsel. Id. In scrutinizing counsel’s
performance, courts “must be highly deferential . . . a court must
indulge a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.” Strickland, 466
U.S. at 689.
Even where a petitioner is able to show that counsel’s
representation was deficient, he must still affirmatively demonstrate
that counsel’s deficient performance prejudiced the petitioner’s
defense. Id. at 692-93. “It is not enough for the defendant to show
that the errors had some conceivable effect on the outcome of the
proceeding.” Id. at 693. The petitioner must demonstrate that “there
is a reasonable probability, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the
outcome.” Id. at 694; see also Shedrick, 493 F.3d at 299. Where a
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“petition contains no factual matter regarding Strickland’s prejudice
prong, and [only provides] . . . unadorned legal conclusion[s] . . .
without supporting factual allegations,” that petition is insufficient
to warrant an evidentiary hearing, and the petitioner has not shown
his entitlement to habeas relief. See Palmer v. Hendricks, 592 F.3d
386, 395 (3d Cir. 2010). “Because failure to satisfy either prong
defeats an ineffective assistance claim, and because it is preferable
to avoid passing judgment on counsel’s performance when possible,
[Strickland, 466 U.S. at 697-98],” courts should address the
prejudice prong first where it is dispositive of a petitioner’s claims.
United States v. Cross, 308 F.3d 308, 315 (3d Cir. 2002).
Judge, 119 F. Supp. 3d at 280-81. In his petition and amended petition, Petitioner essentially
asserts two claims: that counsel was ineffective in his investigation of Petitioner’s case –
specifically in investigating the histories of the arresting and testifying officers, and that counsel
was ineffective in advising Petitioner in regards to a plea agreement offered after the initial
mistrial. This Court will address each claim in turn.

a. Petitioner’s investigation based claim
Petitioner’s chief contention is that his trial counsel was ineffective in failing to fully
investigate the officers involved in Petitioner’s case for evidence of past wrongdoing or a pattern
of false arrests and the like which could have been used to impeach the officers’ credibility. 3 In
Strickland, the Supreme Court held that trial counsel “has a duty to make reasonable
investigations or to make a reasonable decision that makes particular investigations unnecessary.

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Petitioner at least partially suggests that this claim amounts to counsel’s failure to seek Brady
material. Because the history of the officers would have provided impeachment, rather than
direct, evidence, Petitioner’s claim would more properly be that counsel failed to request and
discern Giglio material. See Giglio v. United States, 405 U.S. 150, 154 (1972) (holding that the
Brady rule applies to impeachment evidence where the reliability of the witness to be impeached
is determinative of guilt or innocence). In any event as this Court explains below, Petitioner’s
counsel clearly sought, and obtained, the available material, and Petitioner fails to show that
counsel’s performance was deficient.
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In any ineffectiveness case, a particular decision not to investigate must be directly assessed for
reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s
judgments.” 466 U.S. at 691. “The failure to investigate a critical source of potentially
exculpatory evidence may present a case of constitutionally defective representation,” and “the
failure to conduct any pretrial investigation generally constitutes a clear instance of
ineffectiveness.” United States v. Travillion, 759 F.3d 281, 293 n. 23 (3d Cir. 2014) (internal
quotations omitted); see also United States v Gray, 878 F.2d 702, 711 (3d Cir. 1989) (noting that
a complete absence of investigation usually amounts to ineffective assistance because a counsel
cannot be said to have made an informed, strategic decision not to investigate); United States v.
Baynes, 622 F.2d 66, 69 (3d Cir. 1980).
Where a Petitioner can show that counsel’s failure to investigate amounts to deficient
performance, he must still show prejudice. In order to do so,
a defendant basing an inadequate assistance claim on his or her
counsel’s failure to investigate must make “a comprehensive
showing as to what the investigation would have produced. The
focus of the inquiry must be on what information would have been
obtained from such an investigation and whether such information,
assuming admissibility in court, would have produce a different
result.”
United States v. Askew, 88 F.3d 1065, 1073 (D.C. Cir. 1996) (quoting Sullivan v. Fairman, 819
F.2d 1382, 1392 (7th Cir. 1987); see also United States v. Lathrop, 634 F.3d 931, 939 (7th Cir.
2011) (“[w]hen a petitioner alleges that counsel’s failure to investigate resulted in ineffective
assistance, the petitioner has the burden of providing the court with specific information as to what
the investigation would have produced”); United States v. Green, 882 F.2d 999, 1002 (5th Cir.
1989) (“A defendant who alleges a failure to investigate on the part of his counsel must allege with

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specificity what the investigation would have revealed and how it would have altered the outcome”
of Petitioner’s case); accord Untied States v. Garvin, 270 F. App’x 141, 144 (3d Cir. 2008).
Here, Petitioner alleges that, had his counsel fully investigated the officers involved in his
case, counsel would have discovered a pattern of illegal activity by the Newark Police Department,
and would have found out that at least one of the officers involved had been the subject of civilian
complaints. In support of this assertion, Petitioner provides a petition filed by the New Jersey
ACLU in September 2010. (Document 3 attached to ECF No. 3 at 30-48). Thus, this Court must
initially note that the basis for Petitioner’s claim, the ACLU report, was not itself available to
counsel as it was first filed some three months after Petitioner was sentenced. Clearly, then, the
ACLU report itself was not discoverable during counsel’s pre-trial investigation, and the question
in this case is instead whether reasonably effective counsel could and should have been able to
locate potential impeachment evidence based on the past conduct of the officers in this case.
Given the trial record, this Court need not guess at the answer. In his omnibus motion,
counsel specifically requested that the Government turn over any and all Brady and Giglio
material, and also directly moved the Court to turn over any evidence affecting the credibility of
the officers involved in Petitioner’s arrest. (See Omnibus Motion, Document 2 attached to ECF
No. 9 at 9). Indeed, counsel explained this request as follows:
[i]n this case, the credibility of the officers is critical. [Petitioner]
has certified to this court that the officers have not told the truth
about the circumstances of the recovery of the firearm. Thus, the
central issue at this trial is the credibility of the officers.
It is my understanding, based upon a previous case I handled
involving these officers, that at least one citizen complaint has been
filed against these officers.
Accordingly, the Court should conduct an in camera review
of any such material. If such exists, it should be provided to the

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defense so the defense may conduct an investigation that may well
lead to relevant evidence in this trial.
(Id. at 9-10). This request led the Government to turn over Giglio material as to one of the
officers, as well as to provide the trial judge with copies of other information which the
Government did not believe to be Giglio material for an in camera review. (See Motion Hearing
Transcript, Document 3 attached to ECF No. 9 at 21-22). Indeed, counsel pressed the court for
such a review, and continued to request that any relevant impeachment evidence be provided.
(Id. at 19-30). Counsel’s review of the provided material ultimately led to counsel’s forceful
cross examination of one of the testifying officers, Officer Bouie, at trial, on the basis of Bouie’s
prior disciplinary infractions for filing false statements. (See Trial Transcript, Document 1
attached to ECF No. 9 at 144).
What this record establishes is that trial counsel conducted a more than adequate
investigation into the officers’ histories, and more than adequately sought any Giglio or other
impeachment evidence which was available as to the officers involved in Petitioner’s arrest.
Nothing in this record suggests that counsel was ineffective in investigating and preparing for
trial, the ACLU petition notwithstanding. Counsel clearly investigated and used the history of
the officers in defending Petitioner. Given the initial mistrial and counsel’s able representation
of Petitioner, it does not appear that counsel was deficient here, and Petitioner has failed to show
otherwise.
Although Petitioner’s failure to show deficient performance is sufficient to show that
counsel was not ineffective in his investigations, this Court also notes that Petitioner has failed to
show that he was prejudiced by counsel’s alleged failure to turn up all of the information
contained in the ACLU’s lengthy petition. Counsel discovered useful Giglio material as to one
officer, and used it to attack that officer’s credibility at trial. Counsel likewise moved the court
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to reconsider its determination that the gun was admissible on the basis of both this testimony
and the testimony of Petitioner’s witnesses as to Petitioner’s arrest and the state of the car in
which Petitioner claims the gun was found. The trial court, after having heard both sides,
rejected the testimony of Petitioner’s witnesses as being completely incredible, and thus denied
the motion for reconsideration. Petitioner’s assertions that the testimony of the officers was
“ta[i]nted [and] not credible” is insufficient to establish prejudice even without the trial court’s
credibility findings, and is certainly insufficient in light of those findings and the testimony of
various officers that Petitioner was essentially caught red-handed trying to dispose of the firearm
in question in Petitioner’s case. Petitioner’s blanket attempt to indicate that counsel should have
found all of the allegations contained in the ACLU petition does not suggest otherwise. 4
Petitioner has thus failed to show that, had counsel conducted further investigation, the outcome
of Petitioner’s suppression motion or trial likely would have been different. Petitioner has
therefore failed to show that he suffered prejudice as a result of counsel’s more than adequate
investigation, and Petitioner’s first ineffective assistance claim therefore must fail. Judge, 119 F.
Supp. 3d at 280-81.

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This Court likewise notes that it is doubtful that the collection of allegations and civilian
complaints contained in the ACLU report would have been admissible as impeachment evidence
in any event. See, e.g., United States v. Dabney, 498 F.3d 455, 459 (7th Cir. 2007)
(unsubstantiated complaints against an officer not admissible as impeachment evidence). Thus,
it is unlikely that counsel could have used that information at trial even if he had possessed it
several months before the ACLU produced the petition.
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b. Petitioner’s plea-related claim
Petitioner’s remaining ineffective assistance of counsel claim asserts that counsel
provided him with ineffective assistance in regard to a plea deal offered to Petitioner following
the mistrial. As the Third Circuit has explained,
“[d]efendants have a Sixth Amendment right to counsel, a
right that extends to the plea-bargaining process.” Lafler v. Cooper,
--- U.S. ---, 132 S.Ct. 1376, 1384[] (2012).
When addressing a guilty plea, counsel is required to give a
defendant enough information “ ‘to make a reasonably informed
decision whether to accept a plea offer.’” Shotts v. Wetzel, 724 F.3d
364, 376 (3d Cir. 2013) (quoting United States v. Day, 969 F.2d 39,
43 (3d Cir. 1992)), cert. denied, --- U.S. ---, 134 S.Ct. 1340[] (2014).
We have identified potential sentencing exposure as an important
factor in the decisionmaking process, stating that “[k]nowledge of
the comparative sentence exposure between standing trial and
accepting a plea offer will often be crucial to the decision whether
to plead guilty.” Day, 969 F.2d at 43. In order to provide this
necessary advice, counsel is required “to know the Guidelines and
the relevant Circuit precedent....” United States v. Smack, 347 F.3d
533, 538 (3d Cir. 2003).
United States v. Bui, 795 F.3d 363, 366-67 (3d Cir. 2015). 5
Where a petitioner can show that his counsel provided inadequate assistance in advising
him to reject a plea deal, the petitioner must still show that he was prejudiced in so much as “but
for his counsel’s advice, he would have accepted the plea and that [the] plea agreement would
have result in a lesser sentence.” Rickard v. United States, No. 10-4089, 2011 WL 3610413, at
*8 (D.N.J. Aug. 16, 2011); accord Lafler v. Cooper, --- U.S. ---, ---, 132 S. Ct. 1376, 1384-85
(2012) (prejudice in this context requires a petition to “show that there is a reasonable probability

5

To the extent that Petitioner’s claims rely on case law, such as Lafler, which developed after his
conviction, the Government “has made a considered decision not to raise a Teague [retroactivity]
defense, and such argument is therefore waived.” (ECF No. 9 at 29 n. 5). This Court therefore
need not address any retroactivity questions which would have arisen had the Government not
waived such a defense.
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that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different . . . [which i]n the context of pleas [requires] a [petitioner] show the outcome of the plea
process would have been different with competent advice”). Thus, a petitioner seeking to
establish prejudice in this context must show not only that he would have accepted the plea
absent counsel’s advice, but also that the deal would not have been withdrawn by the
Government, that the Court would have accepted the terms of the plea, and that the petitioner’s
sentence would have been less severe under the plea agreement. Lafler, 132 S. Ct. at 1385.
Petitioner provides little information about his plea claim. In his original motion,
Petitioner asserted only the following: “[o]n January 28, 2010[,] trial counsel . . . received a
signed plea offer from the U.S. Attorney . . . pertaining to [Petitioner] entering a guilty plea.
[Petitioner] submits that trial counsel . . . was ineffective for not proprly advising [Petitioner] of
the benefit of accepting a plea offer versus the likely range of punishment he would receive if
convicted after trial.” (ECF No. 1 at 12). In his amended supplemental petition, Petitioner adds
only that “[t]rial [c]ounsel was [i]neffective for failing to properly advise [Petitioner] of
accepting [a] guilty plea.” (ECF No. 3 at 3). Petitioner has provided no information as to what
advice he was given, what advice he believes he was not but should have been given, nor any
further elaboration. Petitioner has thus provided little more than a conclusory allegation that
counsel was ineffective in advising him as to the January 2010 plea deal.
The evidence which is present in the record clearly indicates that Petitioner was provided
with at least some advice regarding the January 2010 plea offer. Specifically, trial counsel
specifically made the following statements to the trial court on January 29, 2010:
[Trial Counsel:] . . . last night I received from the Government a plea
offer contained in a letter dated January 28th, signed by [the
prosecutor].

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I have reviewed that offer with [Petitioner], and that offer
calls for a Base Offense level of 24, a recognition of acceptance of
responsibility for two levels down, and a warning that the
Government may seek to raise the offense level two levels for
obstruction of justice.
That could, if we prevailed in opposing the obstruction of
justice, that could leave us [with a sentence] as low as a Level
[resulting in a] 77 [month sentence].
THE COURT: All right.
[Trial Counsel:] I’ve explained these options to [Petitioner]. I’ve
also explained to him that that offer is open today. And he has
instructed me that he wishes to reject that offer.
(Document 5 attached to ECF No. 9 at 2-3). The record therefore establishes that counsel
informed Petitioner of the plea offer, explained the sentencing exposure under the deal to
Petitioner, including an approximate estimate of sentence, and discussed with Petitioner the
possible enhancements the Government could seek under the agreement. The record also
establishes that Petitioner chose to reject that deal. In the face of these facts, Petitioner’s bald
allegation that counsel did not provide him with effective assistance is insufficient to establish
even a prima facie case of deficient performance. See Palmer, 592 F.3d at 395 (a Petitioner fails
to establish a prima facie entitlement to habeas relief where he provides “unadorned legal
conclusions” without providing sufficient factual support for those conclusions); see also United
States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000) (“vague and conclusory allegations contained
in a § 2255 [motion] may be disposed of without further investigation by the District Court”).
Petitioner has likewise failed to allege sufficient facts to establish a prima facie claim of
prejudice. Although it is implied by his claim, Petitioner does not allege that he would have
accepted the plea deal had he received “competent” advice. Indeed, in light of the fact that
Petitioner continues to contend that his conviction was the result of some sort of police

14

corruption and the fact that Petitioner maintained his innocence through the second trial, it is by
no means clear that Petitioner would have accepted the offered deal. This is especially true in
light of the fact that Petitioner openly and directly rejected an earlier plea agreement because it
did not permit him to appeal the trial court’s denial of his suppression motion. (See Document
14 attached to ECF No. 9 at 13-14; Document 15 attached to ECF No. 9). As Petitioner has not
alleged, let alone provided factual support sufficient to show, that he would have accepted the
January 2010 plea agreement, he cannot establish that he was prejudiced by counsel’s allegedly
deficient performance. See Lafler, 132 S. Ct. at 1385. As Petitioner has not provided allegations
as to the prejudice arising from counsel’s alleged failure to properly advise him, Petitioner’s plea
agreement claim fails to establish even a prima facie case of ineffective assistance of counsel,
and must be denied without an evidentiary hearing as a result. See Id.; Palmer, 592 F.3d at 395;
Thomas, 221 F.3d at 437.

III. CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 2253(c) the petitioner in a § 2255 proceeding may not appeal from
the final order in that proceeding unless he makes “a substantial showing of the denial of a
constitutional right.” “A petitioner satisfies this standard by demonstrating that jurists of reason
could disagree with the district court’s resolution of his constitutional claims or that jurists could
conclude that the issues presented here are adequate to deserve encouragement to proceed further.”
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Because Petitioner has failed to establish even a
prima facie case of ineffective assistance of counsel, Petitioner has failed to make a substantial
showing of the denial of a constitutional right. As such, jurists of reason would not disagree with
this Court’s denial of Petitioner’s motion, and Petitioner’s claims are not adequate to deserve

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encouragement to proceed further.

This Court therefore denies Petitioner a certificate of

appealability. Id.

IV. CONCLUSION
For the reasons set forth above, Petitioner’s motion to vacate his sentence (ECF No. 1) is
DENIED, and Petitioner is DENIED a certificate of appealability. An appropriate order follows.

May 2, 2016
s/ Susan D. Wigenton
Hon. Susan D. Wigenton,
United States District Judge

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