VALLIER v. UNITED STATES OF AMERICA
Filing
44
OPINION. Signed by Judge Susan D. Wigenton on 10/31/2016. (seb)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
TYSHAUN ST. VALLIER,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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Civil Action No. 13-6118 (SDW)
OPINION
WIGENTON, District Judge:
Presently before the Court is the amended motion of Tyshaun St. Vallier (“Petitioner”) to
vacate, set aside, or correct his sentence brought pursuant to 28 U.S.C. § 2255. (ECF No. 6).
Petitioner initially filed his motion to vacate sentence in late September 2013. (ECF No. 1).
Following an order (ECF No. 4) advising Petitioner of his rights pursuant to United States v. Miller,
197 F.3d 644 (3d Cir. 1999), Petitioner filed his amended motion to vacate sentence on or about
February 18, 2014 (ECF No. 6). Petitioner thereafter filed a supplemental brief raising new claims
on or about March 11, 2015 (ECF No. 22). Following several extensions, the Government
responded to Petitioner’s amended motion and supplemental brief by way of an answer filed on
September 11, 2015. Petitioner filed a reply brief on or about November 30, 2015. (ECF No. 38).
Also before the Court is Petitioner’s motion for discovery (ECF No. 38). The Government filed a
response to that motion (ECF No. 41), to which Petitioner has replied (ECF No. 42). For the
following reasons, this Court will deny Petitioner’s motion for discovery, will deny Petitioner’s
motion to vacate his sentence, and will deny Petitioner a certificate of appealability.
I. BACKGROUND
In its decisions affirming Petitioner’s conviction, the Third Circuit provided the following
basic summary of the facts which led to Petitioner’s arrest in this matter:
[Petitioner] and Ezra McCombs (“McCombs”) were involved in a
conspiracy to import cocaine into the United States from Trinidad.
As part of the conspiracy, [Petitioner] recruited a family friend
named Charisse LaRoche (“LaRoche”) to assist in the smuggling of
the drugs, helping her to get a passport and paying for her flight to
Trinidad.
In early May 2007, [Petitioner], McCombs, and LaRoche traveled
to Trinidad, where they met an individual named “Trini” who
provided them with the drugs they would thereafter import into the
United States. [Petitioner] and McCombs gave LaRoche a tubular
bottle of cocaine, together with some lubricant, and instructed her to
hide the tube in her vaginal cavity. LaRoche complied. The
remaining cocaine was hidden in the railings of suitcases, and in
toiletry bottles and containers packed amongst their personal
belongings. The group then traveled to the airport and returned to
the United States.
United States v. St. Vallier, 488 F. App’x 628, 630 (3d Cir.), cert. denied, --- U.S. ---, 133 S. Ct.
368 (2012).
On May 6, 2007, [Petitioner, McCombs, and LaRoche returned] to
Newark, New Jersey. Upon arrival at Liberty International Airport
in Newark, each individual proceeded to separate customs lines.
Unbeknownst to them, officers working for United States Customs
and Border Protection had flagged them for secondary inspection.
Accordingly, customs officers escorted all three individuals to a
secondary inspection area of the airport. On the way, [Petitioner]
was taken to the baggage claim to retrieve his single checked item
of luggage.
Following arrival in the secondary inspection area, Customs
Officer Jorje Erraez questioned [Petitioner]. In response to Officer
Erraez's questions, [Petitioner] indicated that he had travelled to
Trinidad for vacation. He additionally stated that he knew
McCombs, but denied knowing LaRoche. Officer Erraez thereafter
confronted [Petitioner] with a copy of LaRoche's travel itinerary,
which he had located in [Petitioner]'s single checked luggage bag.
[Petitioner] then acknowledged knowing LaRoche, and stated that
2
she was McCombs' girlfriend. No Miranda warnings were provided
prior to questioning [Petitioner].
Upon discussion, Officer Erraez and other customs officers
who had separately interviewed LaRoche and McCombs discovered
inconsistencies in each individual's responses. Notably, McCombs
stated that LaRoche was [Petitioner]'s girlfriend, directly
contradicting [Petitioner]. Based on this and other inconsistencies,
Officer Erraez obtained permission from his supervisor to conduct a
personal search of [Petitioner]. Although no contraband was found,
Officer Erraez located a credit card used to acquire LaRoche's plane
ticket and several thousand dollars in cash.
Meanwhile, based on inconsistent statements made by LaRoche,
customs officers obtained permission to search three suitcases
checked in her name. Customs officers discovered within a large
amount of powder and liquid cocaine. LaRoche was then escorted
to a personal search room where she admitted to concealing cocaine
inside her body as well. In addition, LaRoche made statements
implicating [Petitioner] in the smuggling plan. In total, 3,280 grams
of liquid and powder cocaine were seized from LaRoche's three
suitcases and body.
Upon learning that customs officials had discovered cocaine,
Officer Erraez ceased questioning and searching [Petitioner].
Shortly thereafter, agents from Immigration and Customs
Enforcement (“ICE”) arrested both [Petitioner] and McCombs. ICE
provided [Petitioner] a written statement of rights including Miranda
warnings. [Petitioner] chose to exercise his Miranda rights.
On July 24, 2007, a grand jury sitting in Newark, New Jersey,
returned a two-count indictment against [Petitioner] charging him
with one count of knowingly and intentionally importing 500 grams
or more of cocaine into the United States in violation of 21 U.S.C.
§§ 952(a) and 960(b)(2)(B), and one count of conspiracy to import
500 grams or more of cocaine into the United States contrary to 21
U.S.C. §§ 952(a) and 960(b)(2)(B), in violation of 21 U.S.C. § 963.
United States v. St. Vallier, 404 F. App’x 651, 653-54 (3d Cir. 2010), cert. denied, 563 U.S. 1000
(2011).
Following his arrest, Petitioner was released on $ 250,000 bail and retained Paul Bergrin,
Esq., to represent him at trial. On July 27, 2007, before Petitioner’s arraignment, however, the
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Government submitted a letter to the Court informing the Court that Bergrin was currently subject
to criminal charges in New York based on his participation in an escort agency involved in
prostitution and having “perpetuated a fraud” on the New Jersey Parole Board and New York
courts. (Document 1 attached to ECF No. 34). The letter further informed Petitioner and the Court
that Bergrin was also being investigated by the United States Attorney for the District of New
Jersey for other offenses. (Id. at 3). The Government therefore requested that the Court hold a
conflict hearing to provide Petitioner with ample opportunity to consider the potential conflicts of
interest arising out of these facts and to decide whether to waive his right to conflict-free counsel
or to acquire different representation. (Id. at 3-5).
Based on this letter, the Court held a conflict hearing on August 15, 2007. At that hearing,
the Government reiterated the potential for a conflict of interest, which Bergrin acknowledged,
and the Court conducted a colloquy with Petitioner to determine whether he understood the
potential conflict and wished to waive his right to conflict free counsel. (Document 2 attached to
ECF No. 34). In that colloquy, the Court first established that Petitioner understood English, had
graduated from high school, and was free from any conditions or medications which would impugn
his ability to understand. (Id. at 3-5). During this colloquy, Bergrin informed the Court that he
had previously represented Petitioner in a prior criminal matter, and Petitioner stated that he had
had other attorneys in both civil and criminal matters. (Id. at 5). The following then occurred:
THE COURT: Okay. Are you aware that Mr. Bergrin has been
indicted on criminal charges by a grand jury in New York county?
[Petitioner]: Yes.
THE COURT: And are you aware that allegations have been made
that he is also under investigation by the United States Attorney's
Office for this district of New Jersey?
[Petitioner]: Yes.
4
THE COURT: Are you aware that the United States Attorney's
Office is the same office responsible for prosecuting your case?
[Petitioner]: Yes.
THE COURT: Do you understand that there are bar disciplinary
committees -- when I talk about bar, I mean for attorneys, that have
power to discipline, suspend or disbar an attorney. You understand
that?
[Petitioner]: Yes.
THE COURT: And do you understand that Mr. Bergrin might have
concerns that such disciplinary entities could investigate his conduct
and take disciplinary action against him?
[Petitioner]: Yes.
THE COURT: Do you understand that Mr. Bergrin knows that he
has been indicted on criminal charges in New York and that he may
be the subject of an investigation by the United States Attorney's
Office, and that these facts might conceivably create a conflict of
interest from your perspective? Do you understand that Mr. Bergrin
might conceivably be tempted to curry favor with the Court or the
Government, or take other actions that might not be to your benefit,
in order to assist himself or otherwise defend himself from the
pending prosecution against him?
[Petitioner]: Yes.
THE COURT: Do you understand, in other words, that it is
hypothetically possible that your attorney feels a loyalty to his own
interests rather than to your interests?
[Petitioner]: Yes.
THE COURT: Do you understand that this could conceivably affect
the way in which you -- the way in which he represents you in your
case?
[Petitioner]: Yes.
THE COURT: Are you dissatisfied in any way with Mr. Bergrin's
representation of you in this case up to this point?
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[Petitioner]: No.
THE COURT: Do you understand that the greatest danger is the
inability to foresee all the conflicts that may arise? You understand
that?
[Petitioner]: Yes.
THE COURT: Describe in your own words what your
understanding of potential conflicts of interest arising in this
situation might be. Can you give me an idea of what your
understanding, your perspective is?
[Petitioner]: I understand that if some event was to happen whereas
though his situation is not looking well, that something could change
and he'll be able to, well, I can't -- what I'm trying to say, that
basically I understand, for his own good, he can -- there is a
possibility that he can, but I don't believe that he will, do anything
to jeopardize my case. I believe -- I'm informed completely and I
got a lot of trust in my attorney to represent me to the fullest power.
THE COURT: Okay. Alright. Do you understand that in every
criminal case, including yours, that you are entitled to the assistance
of counsel whose loyalty is to -- whose loyalty to you is undivided
and who is not subject to any force or consideration that might in
any way intrude upon the attorney's loyalty to his or her client's
interest?
[Petitioner]: Yes.
THE COURT: Have you received any inducements, promises or
threats with regard to the choice of counsel in this case?
[Petitioner]: No.
THE COURT: Have you discussed with Mr. Bergrin the potential
conflict of interest?
[Petitioner]: Yes.
THE COURT: Have you consulted with counsel, other than Mr.
Bergrin, about the hazards of the potential conflicts of interest?
[Petitioner]: No.
6
THE COURT: Do you understand that you do have a right to consult
with a lawyer, other than Mr. Bergrin, to determine whether you
wish Mr. Bergrin to represent you?
[Petitioner]: Yes.
THE COURT: Do you also understand that the Court will give you
an opportunity to do so and that the Court encourage you to do so?
[Petitioner]: Yes.
THE COURT: Do you understand that if you cannot afford other
counsel, the Court will appoint counsel to consult with you about
these specific conflicts of interest issues and/or to represent you?
[Petitioner]: Yes.
THE COURT: And at this time, what is your understanding of your
right to effective assistance of counsel.
[Petitioner]: I understand, you explained to me, I just want to go
along with Mr. Bergrin being my attorney for the remainder of the
case.
THE COURT: Okay. Is there anything that you would want me to
explain any further?
[Petitioner]: No.
THE COURT: And I will give you an opportunity, as I indicate, to
think about what you've been told and to talk it over with counsel,
other than Mr. Bergrin. Although you indicated that you are
satisfied with Mr. Bergrin, after you have in fact thought it over, I'm
going to ask that you -- whether you've considered the matters that
the Court has talked to you about here today, and whether you've
done that with or without an attorney. At that time as well I will ask
whether you wish to continue with Mr. Bergrin as your attorney. I
won't ask you that today, but we do have Mr. McMahon, who is here
from the Federal Public Defender, who I'm going to appoint to speak
to you directly about this potential conflict of interest and we will
return[.]
(Document 2 attached to ECF No. 34 at 5-9).
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Petitioner returned to Court on September 4, 2007, for a second conflict hearing after
having had an opportunity to speak with the appointed conflicts counsel. At that hearing, the
following colloquy occurred:
[THE COURT]: This is the date that we set down, it's a second
proceeding with regard to the conflict hearing which was conducted
on August the 15th. And at this time I'm just going to inquire of
you, Mr. McMahon, whether you've had the opportunity to speak
with Mr. [Petitioner] and what those conversations consisted of.
MR. McMAHON: Your Honor, I spoke with [Petitioner] actually
after the last court date and I reviewed with him much of the context
-- much of the questions which are contained in the second
proceeding heading. And I reviewed also what your Honor had
previously gone through with him in court. The results of those
questions were that [Petitioner] did wish to remain with Mr. Bergrin
as his attorney, did not feel that there would be a conflict, although
I did explain to him that one does -- one could exist because of the
predicament.
THE COURT: Okay. Alright. We'll place you under oath, again,
[Petitioner].
[Petitioner was then placed under oath.]
THE COURT: Alright, [Petitioner], you're under oath and I'm going
to ask you a series of questions. This is to be taken in conjunction
with the questions that were posed to you on August the 15th. At
this time have you had enough time to consider the matters we
discussed on August the 15th?
[Petitioner]: Yes.
THE COURT: And have you taken the time to discuss with Mr.
McMahon the matters the Court discussed with you at that time?
[Petitioner]: Yes.
THE COURT: And what -- Mr. McMahon obviously is present in
court and has placed on the record the fact that he did in fact speak
with you. Was that time sufficient?
[Petitioner]: Yes.
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THE COURT: Do you have any questions about the issues the Court
raised regarding a conflict of interest at this time?
[Petitioner]: No.
THE COURT: And have you considered the way in which Mr.
Bergrin's personal legal situation may affect his representation of
you?
[Petitioner]: Yes.
THE COURT: Alright. And do you still wish to proceed in this case
with Mr. Bergrin as your attorney?
[Petitioner]: Yes.
THE COURT: What do you understand your waiver to date to
mean?
[Petitioner]: Sorry.
THE COURT: What do you understand your waiver of any conflict
of interest to mean?
[Petitioner]: I understand that I waive -- basically I'm waiving my
rights on grounds of -- on appeal, that were raised and the fact that
Mr. Bergrin, you know, there's a conflict in that type of scenario.
He explained to me in complete detail everything that I'm waiving.
I still want Mr. Bergrin to be my attorney.
THE COURT: Okay. Alright. And you do understand that you're
waiving your right to legal representation that is free from any
conflict of interest? You are waiving that right, you understand that?
[Petitioner]: Yes.
THE COURT: And is anyone promising you anything or threatening
to you make this waiver?
[Petitioner]: No.
THE COURT: Alright. And you are doing this voluntarily?
[Petitioner]: Yes.
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THE COURT: And you understand obviously the ramifications of
your decision?
[Petitioner]: Yes.
THE COURT: Okay. [Attorney for the Government,] anything you
want to add to that?
[The Government]: No, your Honor, satisfactory.
THE COURT: Okay. Alright. In light of what you've placed on the
record, [Petitioner], the Court will permit Mr. Bergrin to continue in
your -- in his representation of you.
(Document 3 attached to ECF No. 34 at 2-6). This Court thus concluded that Petitioner had made
a knowing and voluntary waiver of his right to conflict-free counsel, and permitted Petitioner to
proceed with Bergrin as his attorney.1
On July 11, 2008, Petitioner’s attorney received a proposed plea agreement from the
Government. (Document 6 attached to ECF No. 34). Pursuant to this agreement, Petitioner would
have pled guilty to both charges of the original indictment in return for no further charges and a
proposed Guidelines level of 25. (Id.). No agreement was ever reached, however.
On July 21, 2008, Petitioner failed to show up for a hearing on all of his pre-trial motions,
with his trial scheduled to begin the following week, dates that had been set and known since April
2008. (See Docket Sheet for Docket No. 07-613). The court then entered a bench warrant for
Petitioner’s arrest as a result. (See Document 8 attached to ECF No. 34 at 6-7). Petitioner
thereafter cut his electronic monitoring bracelet, placed it in a dumpster in Harlem, and fled
1
Petitioner returned for a third conflict hearing in November 13, 2007. That hearing, however,
concerned a potential conflict between McCombs and his attorney based on the misconception
that McCombs’ counsel at one point represented Bergrin in his criminal matter, which apparently
was not the case. (See Document 5 attached to ECF No. 34). In any event, during that third
hearing, Petitioner once again reiterated that he understood the situation and continued to be
satisfied with Bergrin’s representations and wished to proceed with Bergrin as his attorney. (Id.
at 14-15).
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prosecution. (Id.). Petitioner remained at large, missing his original jury selection date, until he
was captured by the United States Marshals on October 2, 2008, in Maryland. (Id. at 7-8).
Petitioner was thereafter brought back before this Court on October 10, 2008. (Document
9 attached to ECF No. 34). At that hearing, Petitioner’s counsel stipulated to the revocation of his
bail and his continued incarceration pending trial. (Id. at 1-4). Following that stipulation, this
Court again inquired into Petitioner’s satisfaction with Bergrin’s representation:
THE COURT: All right. We're back on the record. Mr. St. Vallier,
I just want to inquire of you with respect to counsel that you are still
going to remain under the representation of Mr. Bergrin. Is that
correct?
[Petitioner]: Yes.
THE COURT: And you're satisfied with his services?
[Petitioner]: Yes.
THE COURT: Okay. The Court is also satisfied, based on counsel's
representations as well, that your continuation regarding
representation will go forward.
(Id. at 4).
Petitioner was offered a second plea agreement in October 2008. (Document 10 attached
to ECF No. 34). Under the agreement, Petitioner would have pled guilty to both counts of the
original indictment in exchange for no further charges, including for failure to appear, and a
recommended guidelines level of 28. (Id.). Although Bergrin and the U.S. Attorney’s Office
apparently discussed it on several occasions, no plea agreement resulted. The Government
thereafter sought and acquired a superseding indictment on November 20, 2008, which included
the two original offenses and a new charge for failure to appear in violation of 18 U.S.C. §
3146(a)(1). (Docket No. 07-613 at ECF No. 60).
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On December 18, 2008, Bergrin filed a motion to withdraw as Petitioner’s attorney.
(Docket No. 07-613 at ECF Nos. 66, 67, 72). In a letter submitted in support of that motion,
Bergrin stated that Petitioner “has made numerous misrepresentations as to his acceptance of the
plea as offered by the U.S. Attorney’s Office and he has stated that he has no confidence in
[Bergrin’s] ability to defend him” and that communications between the two had broken down.
(Docket No. 07-613 at ECF No. 66). In another submission, Bergrin clarified that Petitioner
insisted he wanted new counsel, had “totally misrepresented to counsel . . . his firm intent to accept
the plea as offered” despite multiple visits to discuss the plea, and that Petitioner had essentially
fired him and refused to deal with him further. (Docket No. 07-612 at ECF No. 67).
This Court held a hearing on the motion to withdraw on December 22, 2008. (Document
11 attached to ECF No. 34). At that hearing, Bergrin stated that he and Petitioner had disagreed
about the merits of Petitioner’s case, and that their ability to communicate had broken down. (Id.
at 3). Petitioner in return stated for the first time that Bergrin “seemed dishonest” to him and that
he “wasn’t trusting anything that was being said, or done” by Bergrin. (Id.). Petitioner also stated
that he could no longer afford a private attorney. (Id. at 4). This Court thus granted the motion to
withdraw, and ultimately appointed Ruth Liebesman to represent Petitioner going forward on
January 7, 2009. (Docket No. 07-613 at ECF No. 75).
Following an apparent breakdown of plea discussions, Petitioner ultimately chose to
openly plead guilty to the failure to appear charge prior to his trial on the remaining charges. This
Court thus held a plea hearing as to that charge on March 30, 2009. (Document 12 attached to
ECF No. 34). At that hearing, this Court first questioned Petitioner and ascertained that he
understood the maximum penalties associated with the offense, understood the advisory nature of
the guidelines and that he would not be able to withdraw his plea on the basis of his disagreement
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with his sentence, and that Petitioner had discussed the matter with his new attorney to his
satisfaction. (Id. at 3-5). This Court then conducted a colloquy on the factual basis for Petitioner’s
guilty plea. During that colloquy, Petitioner admitted that he had been arrested in May 2007, had
been released on $ 250,000 bail and placed under electronic monitoring, was scheduled to appear
on July 21, 2008, for a pretrial hearing and on July 23, 2008, for jury selection, had failed to appear
on either date, had cut off his electronic monitoring bracelet on July 21, 2008, had specifically
written to the Court in August 2008 stating that he knew he was required to attend those hearings
and chose not to, and that he had ultimately been captured by the Marshals in October 2008. (Id.
at 5-8). Based on these admissions, the Court accepted Petitioner’s guilty plea. (Id. at 9-10).
The parties returned to court for a pre-trial hearing on April 20, 2009. (Document attached
to ECF No. 34). Due to a mix-up in the U.S. Attorney’s Office, Petitioner had not been brought
to the court by the time the hearing began. (Id. at 3-4). Agents were dispatched to retrieve
Petitioner. (Id. at 4-5). While waiting for his retrieval, Liebesman agreed to waive Petitioner’s
presence “to the extent [that she could] do so without speaking to him first.” (Id. at 5). Liebesman
recognized that she wouldn’t normally waive his presence at an important hearing without his prior
agreement, but agreed that the parties could discuss certain issues – voir dire questions, jury
selection issues, and argument on pending motions – while awaiting Petitioner’s arrival. (Id. at 6).
The parties then entered a stipulation that the Government would not bring up Plaintiff’s flight at
trial unless the defense first questioned McCombs’s flight and opened the door. (Id. at 7-9). The
parties then discussed voir dire and several defense motions prior to holding a suppression hearing,
with Petitioner arriving prior to the onset of the suppression hearing. (Id. at 9-43). The Court then
conducted the suppression hearing with Petitioner being present, with the Court ultimately ruling
that his statement to customs officials was admissible. (Id. at 43-69). After the hearing, counsel
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discussed with Petitioner the decision to waive his presence for the non-testimonial portion of the
day’s proceedings, and Petitioner agreed to retroactively waive his presence for those discussions.
(Id. at 70-71).
Petitioner’s trial thereafter occurred on April 23 and 24, 2009. At trial, both LaRoche and
McCombs testified at length as to their involvement in the conspiracy outlined in the Third
Circuit’s factual summary presented above, as well as to Petitioner’s role as the lynchpin of that
conspiracy to bring cocaine into the United States from Trinidad. As part of his testimony,
McCombs testified that Petitioner’s cocaine supplier in Trinidad was named Trini. (Document 15
attached to ECF No. 34 at 59-60). McCombs testified that Petitioner called Trini by telephone in
his presence. (Id. at 67). McCombs also testified that Petitioner had multiple cell phones, some
he used for personal activity and others for his drug importation operations. (Id. at 71). McCombs
also had several phones, one of which contained a phone number associated with Trini. (Id. at 7172). McCombs then identified one of Petitioner’s phones, and, using the call log, saw that
Petitioner received two calls from the number associated with Trini. (Id. at 75). Petitioner’s phone
also contained an outgoing call Petitioner apparently made to Trini’s number on the day McCombs
and LaRoche travelled to Trinidad. (Id. at 76). McCombs also testified that he and Petitioner met
with Trini and his associates in Trinidad after Petitioner arrived, and again when Trini brought the
cocaine to their hotel room. (Id. at 99-103).
On cross-examination, Liebesman confronted McCombs regarding the phone testimony.
McCombs reiterated that Petitioner had several phones. (Id. at 138-39). Liebesman thereafter
cross-examined him as to what he told federal agents regarding the phone. McCombs responded,
telling her that he never told agents Petitioner’s cell phone number, nor gave them the number to
a certain prepaid phone Petitioner apparently used to call Trinidad. (Id. at 153-54). McCombs
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admitted, however, that he had had frequent phone contact with Trinidad prior to the drugsmuggling trip. (Id. at 154-55). McCombs further testified that Petitioner also made numerous
calls to Trinidad, albeit on a cellphone other than his main cell phone. (Id. at 159).
Prior to summations, Petitioner called as a rebuttal witness Agent Thomas Sharpe of
Immigrations and Customs Enforcement. (Document 18 attached to ECF No. 34 at 46). Agent
Sharpe testified that although one of the phones in the Government’s possession was a phone
McCombs had purchased in Trinidad, the Government had been unable to identify the phone
number for that phone. (Id.). Agent Sharpe further testified on cross examination that the
Government did not have the power to subpoena phone records from abroad, and that the phone
in question was a prepaid phone from Trinidad. (Id. at 54). Finally, Agent Sharpe testified that
Petitioner had not made calls to Trinidad from his mother’s phone, and from at least some of his
cell phones. (Id. at 51). Following this testimony, the trial entered its final phase including both
summations and the jury instructions.
During her summation, Ms. Liebesman directly attacked McCombs’s testimony regarding
the cell phones at issue in the case, arguing that Trini was in fact McCombs, with the name
referring to a phone McCombs purchased for use in Trinidad. Specifically, counsel argued as
follows:
Now, Ezra tells you this great story about how [Petitioner]'s
telephone was used to call Trinidad. Not the one that he had, the
404 number he had during the time of the events. Not the one he
used to call Charisse LaRoche. Not the one he used as a contact.
No, it must have been a different phone, one that the government,
you know, didn't introduce into evidence.
....
[]The government knows -- knew all about those other
phones. All about them. Agent Sharpe got on the witness stand and
he told you, yes, they were aware of all four phone numbers that
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were associated with [Petitioner]. And what was Agent Sharpe's
job? To interview witnesses, to follow up, to obtain records. And
on direct he said: Yeah, I believe I got those records for all the
phones. And he didn't remember seeing anything about a
connection to Trinidad on any of those phones. On cross: oh, I don't
think I got those. Okay. You check the records, you check the
transcripts. What did he say on direct? What did he say on direct?
There was no evidence that he remembered that [Petitioner]'s other
phones were in service at the time or -- except for his mother's
landline, of course, or they had any records that connected them to
Trinidad.
Now, the government has neglected to get any of these
records. Any of these records. And don't believe for one second
that these capable, dedicated people ignored three phone numbers
and the possibility of additional evidence. They didn't. There just
wasn't any evidence there so it's not here. It wasn't there, so it's not
here. It's not: if it doesn't fit, you must acquit; but I'm trying. Okay.
Now, you have Ezra's cell phone records. Ezra's cell phone
records show that he couldn't stop calling Trinidad. And, yeah, most
of those calls were to one number, but not all of them. Not all of
them. What records did you get? You got the ones for the cell phone
that [Petitioner] had when he was arrested. The one with the two
phone calls from someone called Trini on May 3rd, 2007. And Trini
is T-R-I-N-I, according to Mr. McCombs, it's not T-R-I-N-N-Y.
Now, you can't speculate -- let me take this back. Let's talk
about Trini. What are the phone records for -- why do the phone
records for Ezra McCombs and [Petitioner] begin on April 15th, and
Charisse's cell phone records begin on April 30th? Perhaps between
the 15th and the 30th you would have seen those calls between Ezra
and Charisse.
Ezra testified that he called [Petitioner] when he arrived in
Trinidad. Now, why would he call [Petitioner] from Trinidad? He
wanted to let them know they arrived on time. It doesn't really matter
why he called. The fact is that he called. He called with his cell
phone, if I may, his international cell phone, the one he got because
he couldn't call the United States on his other cell phone, so he got
this cell phone, the one with the 868 number, and he called
[Petitioner] from Trinidad to let him know they'd arrived. And
you'll have those records and [Petitioner]'s records showing calls
from Trinidad at 4:10 and 6:09 eastern standard time, the calls Ezra
says were from Trini, the ones that he says were made while he was
in the air.
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Look at the flight records. Ezra's flight landed at 2 p.m.
Please don't tell me that he wasn't the one making those calls at 4:10
and 6:09, and those are the only calls to [Petitioner]. Those are the
only ones. The government says [Petitioner]'s phone says calls to
Dean and Trini during the time period of Ezra's two trips to Trinidad.
You will not find a single call to Trinidad on [Petitioner]'s phone
records, except for the two from Trini.
Ladies and gentlemen, I'd like you to meet Trini, the phone
that called [Petitioner] from Trinidad after Ezra McCombs landed.
And by the way, there's no calls to Trini or from Trini on this. You
know why? What is he going to do, call himself? Hi, how are you?
I'm fine. This is Trini.
In fact, what it comes right down to is there is no Trini. Trini
is the notation in [Petitioner]'s phone directory for Trinidad. Ezra
McCombs's Trinidad phone. Trini, the whole story, is a fabrication.
There is no Trini. There's no big guy with dreads. Trini, right here,
a phone that called [Petitioner] on the 3rd.
Now, only the last 10 outgoing calls are shown on this phone
and the last, the most, the furthest in time, I'm stumbling on here,
folks, was on 5/5/07. So that was after [Petitioner]'s -- the calls to
[Petitioner] were made. So, I'm sorry, we can't prove it from this.
And of course the incoming calls they don't show because, as you
saw from [Petitioner]'s records, it was a zero-minute call and zerominute calls don't show on the receiving end. But we know, without
any shadow of a doubt, that this was the phone that called
[Petitioner]. And that, ladies and gentlemen, is more reasonable
doubt than you will ever need in this case to acquit this man who has
been, he's been somebody's scapegoat for two years he's been
fighting this case. He didn't plead guilty because he's not guilty.
They pled guilty because they are. Ladies and gentlemen, this is
Trini, the guy with the dreadlocks. The phone call to [Petitioner]
was made by Ezra McCombs.
Once you realize that Trini was Ezra's cell phone, you have
to realize that everything Ezra told you is a lie. There are no
meetings with the drug dealer named Trini, T-R-I-N-I, like it's in the
phone, unless Ezra was talking to himself. This whole thing is a lie.
It's a lie. And you cannot convict this man on the basis of these liars.
(Document 18 attached to ECF No. 14 at 113-17).
17
Despite counsel’s arguments, the jury ultimately convicted Petitioner of both of the
remaining drug charges after a short period of deliberations. See St. Vallier, 404 F. App’x at 654.
Following the verdict, Petitioner filed a motion for a new trial arguing, inter alia, that McCombs
had perjured himself in stating that he had not provided the Government with Petitioner’s phone
number which Petitioner contends was contrary to Agent Sharpe’s warrant application, and that
the phone referred to as belonging to Trini at trial actually belonged to McCombs and that the
Government knew or should have known about this fact. (See Docket No. 07-613 at ECF Nos.
109-11). This Court rejected those and all of Petitioner’s arguments during a hearing held on July
8, 2009. (Docket No. 07-613 at ECF No. 116).2
Following the denial of Petitioner’s first motion for a new trial, this Court sentenced
Petitioner to a total of 204 months incarceration. St. Vallier, 404 F. App’x at 654. Petitioner
appealed, and the Third Circuit affirmed his conviction, but remanded the matter for a resentencing
based on a procedural error in calculating Petitioner’s criminal history category. Id. at 665.
Petitioner also petitioned for certiorari, but certiorari was denied on May 16, 2011. St. Vallier,
563 U.S. at 1000. This Court thereafter resentenced Petitioner, ultimately departing upward to
once again sentence Petitioner to 204 months imprisonment. Petitioner appealed once again, and
the Third Circuit affirmed his resentencing. St. Vallier, 488 F. App’x at 632-34. Petitioner again
filed a petition for certiorari, which the Supreme Court denied. St. Vallier, 133 S. Ct. at 368.
Petitioner also tried to raise his perjury claim on direct appeal. See St. Vallier, 404 F. App’x at
659-60. The Third Circuit found that claim to be without merit, noting that McCombs’s
response to counsel’s question did not necessarily conflict with the warrant application as that
application never stated that McCombs gave investigators Petitioner’s phone number, and that in
any event the inexact nature of the question in the face of the fact that there were multiple cell
phones attributed to Petitioner in this matter likely caused any confusion or disparity between the
warrant and McCombs’s response. Id.
2
18
On July 6, 2011, the Government disclosed to Petitioner and his appellate counsel
information that they had received regarding a proffer session in the prosecution of an individual
named Shawn Hudson. See United States v. St. Vallier, No. 07-613, 2013 WL 5937006, at *1-3
(D.N.J. Oct. 31, 2013). According to the letter, during a July 27, 2010, proffer session with the
United States Attorney’s Office for the Eastern District of New York, Hudson made statements
asserting that he and McCombs had previously smuggled drugs into the United States from abroad.
Id. at *2. The Government further stated in the letter that they had become aware of this proffer
on June 29, 2011, when their lead investigator had discovered it. Id. The letter further stated that
Hudson had been known to the Government prior to trial only in so much as his name had come
up both as someone with whom McCombs had traveled to Jamaica and as an individual whom
McCombs tried to contact while he was a fugitive. Id. at *3. Based on this information, Petitioner
filed a second motion for a new trial in May 2012 in which he argued, inter alia, that he had been
denied Brady material in the form of the Hudson information during and prior to trial. Id. at *1.
This Court ultimately denied that motion on October 31, 2013, finding that the challenged material
did not constitute Brady or Giglio material as the Government had not possessed the information
during trial, and the information was at any rate not material. Id. at *4-5. Petitioner failed to
timely appeal the denial of that motion, but eventually filed a motion to re-open the time to appeal
in February 2014, which this Court denied. United States v. St. Vallier, No. 07-613, 2014 WL
5308150 (D.N.J. Oct. 15, 2014), aff’d, 607 F. App’x 129 (3d Cir. 2015).
Petitioner filed his initial motion to vacate sentence in this matter on or about September
26, 2013. (ECF No. 1 at 13). Following this Court’s Miller order (ECF No. 4), Petitioner filed an
amended motion to vacate sentence containing more developed versions of the claims presented
in his initial motion to vacate sentence in February 2014. (ECF No. 6). The Government was
19
thereafter ordered to answer the motion, with the time for an answer being extended until after
Petitioner’s motion to reopen his time to appeal his Rule 33 motion had been decided. (ECF No.
7, 9, ECF Docket Sheet). Prior to the filing of the answer, Petitioner filed a motion for leave to
file a supplemental motion to vacate sentence raising two additional claims in January 2015. (ECF
No. 21). Petitioner filed his proposed supplemental motion on or about March 11, 2015. (ECF
No. 22). Because the Government did not oppose the motion, this Court granted Petitioner’s
motion for leave to file a supplemental motion, and permitted the Government an extension of
time to file a response to both the amended motion to vacate and the supplemental motion on
March 25, 2015. (ECF No. 24). In that Order, however, this Court made no ruling on the
timeliness or propriety of Petitioner’s supplemental motion or the claims contained within the
supplement. (Id.). The Government ultimately filed its response on September 11, 2015. (ECF
No. 34). Petitioner thereafter filed his reply brief on or about November 30, 2015. (ECF No. 38).
Alongside his reply, Petitioner also filed in November 2015 a motion for discovery. (Id.). The
Government opposed that motion (ECF No. 41), and Petitioner has filed a reply to that opposition.
(ECF No. 42).
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
impose such a sentence, or that the sentence was in excess of the
maximum authorized by law, or is otherwise subject to collateral
20
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, all of
Petitioner’s claims are either time barred or are clearly without merit based on the record before
this Court, and no evidentiary hearing is therefore required to dispose of his motion to vacate.
21
2. Petitioner’s Motion for Discovery
Before reaching the merits of Petitioner’s claims, this Court must first address Petitioner’s
motion for discovery. In his motion, Petitioner seeks to have this Court order the Government to
provide him with significant information regarding the prosecution of Petitioner’s first defense
counsel, Paul Bergrin, including wiretaps and surveillance videos, records of visits Bergrin made
to another client named “Esteves,” and the charging documents in the Government’s case against
Bergrin. In support of this request, Petitioner asserts that he “believes that if the facts are fully
developed” he “will be entitled to relief.” (ECF No. 38 at 112). Specifically, Petitioner contends
that if he is permitted to engage in discovery, he can more fully make out his claim that Bergrin
was fatally conflicted and that that conflict of interest denied him effective assistance of counsel.
Under the habeas rules, the Court in a § 2255 motion may “for good cause” authorize a
party to conduct discovery. Rule 6 of the Rules Governing Section 2255 Proceedings. Thus, in
order to be entitled to discovery, a habeas petitioner must make a “showing of good cause.”
Williams v. Beard, 637 F.3d 195, 209 (3d Cir. 2011) (interpreting analogue rule for habeas petitions
challenging state court convictions). A habeas petitioner satisfies this standard “by setting forth
specific factual allegations which, if fully developed, would entitle him or her” to habeas relief.
Id. “The burden rests upon the petitioner to demonstrate that the sought-after information is
pertinent and that there is good cause for its production.” Id. The rule does not permit habeas
petitioners to engage in fishing expeditions, and discovery requests providing no more than
speculation should be rejected. Id. at 210-11.
Here, Petitioner requests various documents related to his representation by Paul Bergrin
in order to show that there was a conflict of interest between Bergrin and himself. Petitioner does
little to explain how the documents in question will aid him in making his claim as the documents
22
he requests essentially boil down to the factual basis for Bergrin’s eventual conviction for various
federal charges after he had already withdrawn as Petitioner’s counsel.
Ultimately, the
Government in this matter essentially concedes that Bergrin possessed a conflict of interest. The
point in contention here, as is discussed below, is instead whether Petitioner waived that conflict
of interest. As such, even if the documents Petitioner requests, many of which are available via
Bergrin’s criminal docket sheet, would show the conflict that all parties concede existed, they
would not themselves entitle Petitioner to relief given the waiver of the conflict of interest
Petitioner made in this matter. As such, Petitioner has not shown that the documents in question
would entitle him to relief. As this Court will explain below, Petitioner’s knowing and intelligent
waiver of the conflict of interest arising out of Bergrin’s criminal charges prevents him from
raising his claim that this conflict denied him effective assistance of counsel in this matter, and as
such, Petitioner is not entitled to relief on this claim. Because Petitioner’s conflict claim is the
only one for which he requests discovery, and because discovery will not aid Petitioner in showing
his entitlement to relief on that claim, Petitioner has failed to show good cause for permitting him
to engage in discovery. Petitioner’s discovery request shall therefore be denied. Beard, 637 F.3d
at 209-11.
3. Petitioner’s Supplemental Claims are time barred
More than a year after Petitioner filed his amended motion to vacate, which Petitioner
stated was his “all-inclusive” § 2255 motion, Petitioner sought to file in this matter a supplemental
brief raising additional claims. (ECF Nos. 6, 22). Because the Government did not oppose the
motion and instead stated its intention to respond to the claims contained therein, this Court
permitted Petitioner to file that brief. (See ECF No. 30). Although Petitioner was granted
23
permission to file his brief, this Court never ruled on the timeliness or propriety of Petitioner’s
supplement. The Government therefore now argues that the claims contained therein should be
dismissed with prejudice as time barred because Petitioner could have, but did not, raise the claims
contained therein sooner, specifically in either his initial motion to vacate or his amended motion.
Collateral attacks brought via motions to vacate sentence under § 2255 are subject to a one
year statute of limitations. See 28 U.S.C. § 2255(f). That limitations period runs from the latest
of the following: the date on which the conviction in question became final, the date when an
impediment to bringing the claim was removed, the date on which the right was first recognized
by the Supreme Court where the claim is based on a new theory recently made retroactive on
collateral review by the Supreme Court, or the date on which the facts supporting the claim could
first have been discovered through reasonable diligence. 28 U.S.C. § 2255(f)(1)-(4). Where the
statute runs from the date on which a conviction became final, the conviction is considered final
when either the Petitioner’s final appeal is denied by the Supreme Court or when the time for filing
an appeal, including a petition for certiorari, runs without such a petition being filed. See, e.g.,
Kapral v. United States, 166 F. 3d 565, 577 (3d Cir. 1999).
In this case, Petitioner was sentenced in August 2009. He appealed, and the Third Circuit
remanded his case for resentencing only in 2010. St. Vallier, 404 F. App’x at 665. This Court
resentenced Petitioner in April 2011, and Petitioner appealed once again, with the Third Circuit
affirming his resentencing on July 17, 2012. St. Vallier, 488 F. App’x at 634. Petitioner filed a
petition for certiorari, which was denied on October 1, 2012. St. Vallier, 133 S. Ct. at 368.
Petitioner’s conviction thus became final on October 1, 2012, when his petition for certiorari was
denied. Petitioner’s one year statute of limitations, then, would have run as of October 1, 2013,
absent some form of equitable tolling.
24
To the extent that the claims in Petitioner’s supplemental motion are based on allegedly
“newly discovered” evidence, those claims would not provide Petitioner with a later start date for
the statute of limitations. The allegedly new evidence on which his claims are based is the alleged
Brady violation and related ineffective assistance arising out of the revelation that a third party had
identified one of the Government’s witnesses as a drug dealer, which was revealed to Petitioner in
2011 and was the subject of his June 2012 motion for a new trial. Thus, Petitioner clearly knew
about the factual basis for those claims when he filed his June 2012 motion at the latest. Because
the facts underlying those claims were discoverable through reasonable diligence prior to the
October 2012 date on which his conviction became final, Petitioner’s limitations period runs from
the date on which his conviction became final. 28 U.S.C. § 2255(f)(1)-(4).
Given this background, and absent any equitable tolling, Petitioner’s one year statute of
limitations would have run by October 1, 2013. Based on the date he signed his initial § 2255
motion, Petitioner filed his original motion to vacate on September 26, 2013. (ECF No. 1 at 13).
Because all of the claims raised in Plaintiff’s first amended motion to vacate were raised in that
initial motion to vacate sentence, it is clear that Petitioner’s four claims contained in his amended
motion to vacate sentence were timely raised, and his amendments thereto merely refined, rather
than changed those claims. Petitioner’s claims that Bergrin and Liebesman were ineffective were
thus timely raised, and will be addressed on the merits below.
Petitioner’s Brady and ineffective assistance claims raised in his March 2015 supplemental
motion, however, do not fare as well. Those claims were not included in Petitioner’s original
motion, nor his amended motion to vacate which Petitioner specifically stated was his one, allinclusive § 2255 motion. Those claims were raised before this Court for the first time when
Petitioner filed his supplemental motion on March 11, 2015, more than seventeen months after the
25
statute of limitations had run. Because those claims were not raised until after the running of the
statute of limitations, they would only be timely filed if either those claims related back to
Petitioner’s original motion to vacate under Federal Rule of Civil Procedure 15(c), see Mayle v.
Felix, 545 U.S. 644 (2005), or Petitioner presented a valid basis for tolling those seventeen
intervening months.
Pursuant to Federal Rule of Civil Procedure 15(c)(2), claims raised in an amended or
supplemental habeas petition will only relate back to the original filing where the newly raised
claims “ar[i]se out of the [same] conduct, transaction, or occurrence” as those raised in the original
pleading. Mayle, 545 U.S. at 655-64. Thus, a newly raised claim will relate back only when it
and at least one of the claims raised in the original pleading are “tied to a common core of operative
facts.” Id. at 664. The newly raised claims must therefore not be “separate in both time and type”
from the originally raised claims in order for relation back to be in order. Id. at 657. It is therefore
not enough that the claims in question raise the same type of claim, such as ineffective assistance
of counsel, they must actually arise out of the same set of facts or occurrences. See, e.g., United
States v. Duffus, 174 F.3d 333, 337 (3d Cir. 1999).
In this case, Petitioner’s supplemental claims do not relate back to his original pleading.
In his supplemental motion, Petitioner attempts to raise two new claims – that the Government
failed to provide him with Brady or Giglio material by failing to disclose that a witness known to
another United States Attorney’s office had identified McCombs as a drug dealer with whom he
had travelled, and that Petitioner’s appellate counsel was constitutionally ineffective for failing to
investigate the lead presented in this alleged Brady violation. Neither claim in any way deals with
the alleged ineffectiveness of Petitioner’s other prior attorneys, Bergrin and Liebesman. Neither
claim concerns the time during which those attorneys represented Petitioner, through his 2009
26
sentencing. Instead, Petitioner’s supplemental claims arose years after Bergrin and Liebesman had
left this case –following the 2011 disclosure of the alleged Brady/Giglio material. Thus, regardless
of the fact that one of the two new claims raises the same kind of claim as Petitioner’s originally
pled claims – ineffective assistance of counsel – it is clear that Petitioner’s new claims are separate
in time from his original claims, and clearly do not arise out of a common core of operative facts.
As such, those claims do not relate back to Petitioner’s original claims, and are not timely filed on
that basis. Duffus, 174 F.3d at 337; see also Mayle, 545 U.S. at 655-64.
Because his new claims do not relate back, those claims are untimely absent some basis for
equitable tolling. The § 2255 statute of limitations is subject to equitable tolling where appropriate.
Equitable tolling “is a remedy which should be invoked ‘only sparingly.’” United States v. Bass,
268 F. App’x 196, 199 (3d Cir. 2008) (quoting United States v. Midgley, 142 F.3d 174, 179 (3d
Cir. 1998)). In order to receive the benefit of tolling, a petitioner must “show (1) that he faced
‘extraordinary circumstances that stood in the way of timely filing,’ and (2) that he exercised
reasonable diligence.” Johnson, 590 F. App’x at 179 (quoting Pabon v. Mahanoy, 654 F.3d 385,
399 (3d Cir. 2011)). Mere excusable neglect is insufficient to warrant tolling of the limitations
period. United States v. Thomas, 713 F.3d 165, 174 (3d Cir. 2013).
The only potential basis Petitioner provides for equitable tolling in this matter is his
assertion that he could not have brought the claims presented in his supplemental motion prior to
the conclusion of his Rule 33 motion proceedings. This statement, however, is inaccurate.
Nothing prevented Petitioner from raising those claims in his initial motion, and, as discussed
above, the fact that Petitioner raised those claims via Rule 33 in June 2012 clearly indicates that
he was aware of his claims by that date at the absolute latest. Thus, Petitioner was aware of the
basis for his claims prior to filing his initial petition and chose not to raise them there. That
27
Petitioner chose to raise his claim only via his rule 33 motion and not in his § 2255 motion was a
choice Petitioner himself made. That choice is insufficient to show that he faced any extraordinary
circumstances that prevented him from earlier filing his Brady claim. Thus, Petitioner has failed
to present any valid basis for equitable tolling, and the claims raised in his supplemental motion
will be dismissed with prejudice as time-barred.
In any event, even if Petitioner had raised these claims in a timely fashion, his claims would
be without merit for the reasons discussed in this Court’s opinion denying his Rule 33 motion. See
St. Vallier, 2013 WL 5937006, at *3-*5. As explained in that opinion, the material in question
was not Brady or Giglio material because it was not in the Government’s possession prior to the
conclusion of Petitioner’s trial nor was it material. As such, Petitioner’s Brady claim would be
without merit, even if it were not time barred. Petitioner’s claim that appellate counsel was
ineffective in failing to pursue further investigation as to that alleged Brady material likewise is
insufficient to state a claim for relief as Petitioner has provided no allegations as to what additional
information would have been uncovered by any additional investigation, which is fatal to his
ability to show Strickland prejudice. See Brown v. United States, No. 13-2552, 2016 WL 1732377,
at *4-5 (D.N.J. May 2, 2016). That the material in question was clearly not Brady or Giglio
material for the reasons expressed in this Court’s denial of the Rule 33 motion likewise indicates
that Petitioner could not have shown prejudice in any event as the outcome of the Rule 33 motion,
and in turn Petitioner’s prosecution, would not have been different had counsel investigated
Petitioner’s Brady/Giglio claim to Petitioner’s satisfaction. Thus, even if Petitioner’s claims were
not time-barred, they would afford him no basis for habeas relief.
28
4. Petitioner’s Ineffective Assistance of Counsel Claims
All of Petitioner’s remaining claims assert that his pre-trial counsel, Paul Bergrin, and trial
counsel, Ruth Liebesman, were constitutionally ineffective. The standard governing such claims
is 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
29
“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 amended habeas petition, Petitioner presents four claims,
each of which this Court will address in turn: that Paul Bergrin was constitutionally ineffective
because of the conflict of interest created by the criminal charges against him, that Bergrin was
ineffective in advising Petitioner regarding a proposed plea agreement, that trial Counsel Ruth
Liebesman was ineffective in failing to investigate telephone evidence presented at trial, and that
Liebesman was ineffective in failing to fully investigate his prior convictions prior to sentencing.
a. Petitioner’s Conflict of Interest Claim as to Bergrin
In his first claim, Petitioner asserts that his first attorney, Paul Bergrin, was constitutionally
ineffective as counsel because he had an actual conflict of interest with Petitioner as he was subject
to extensive criminal charges at the time of his representation.
The central problem with
Petitioner’s argument, however, is that Petitioner himself waived any such conflict of interest
claim during the pre-trial stage of his criminal prosecution. While the “Sixth Amendment
guarantees a criminal defendant counsel’s ‘undivided loyalty free of conflict of interest,’” see Hess
v. Mazurkiewicz, 135 F.3d 905, 910 (3d Cir. 1998) (quoting Government of V.I. v. Zepp, 748 F.2d
125 (3d Cir 1984)), a criminal defendant is free to voluntarily waive his right to “assistance of an
attorney unhindered by a conflict of interests.” Holloway v. Arkansas, 435 U.S. 475, 483 n. 5
30
(1978). Thus, where a criminal defendant has “made a knowing and intelligent waiver” of his
right to conflict-free counsel, he “cannot subsequently attack his conviction premised on the
assertion of a conflict.” Rutherford v. Hendricks, No. 02-3131, 2005 WL 1541063, at *14-15
(D.N.J. June 30, 2005); see also United States v. Dolan, 570 F.2d 1177, 1181 (3d Cir. 1978) ;
United States v. Krebs, 788 F.2d 1166, 1173 (6th Cir. 1986); United States v Sims, 143 F. App’x
210, 217 (11th Cir. 2005); Darby v. United States, No. 10-1437, 2010 WL 4387511, at *8 (D.N.J.
Oct. 28, 2010) (by “waiving his right to conflict-free representation, Petitioner also waived any
ineffective assistance claims stemming from his attorney’s conflict of interest [including any
claim] that his attorney may [have been] too preoccupied with his own legal troubles to make
himself available to Petitioner”).
In this case, Petitioner made a knowing and intelligent waiver of his right to conflict free
counsel. When Bergrin’s New York state criminal charges and potential for federal charges was
brought to the Court’s attention by the Government, a conflict hearing was held in this matter at
which Petitioner acknowledged the conflict, and chose to continue with Bergrin as his lawyer.
Petitioner was thereafter appointed a conflicts counsel, who further advised Petitioner as to the
nature of the conflict. At the follow-up conflict hearing, Petitioner once again reiterated his desire
to keep Bergrin as his lawyer, and acknowledged that he had been fully advised as to the nature of
the potential conflicts, including that Bergrin could be distracted by his own charges or may wish
to curry favor with the government, and that he wished to waive his right to conflict-free counsel
after a full discussion of the matter with his conflicts counsel. It is thus clear from the record that,
after having discussed the matter fully and to his complete satisfaction with conflicts counsel,
Petitioner knowingly and voluntarily chose to continue on with Bergrin despite the potential
conflict of interest brewing in the form of known state and potential federal criminal charges
31
against Bergrin. Indeed, after Petitioner’s flight and bail jumping, another hearing was held at
which Petitioner reiterated his satisfaction with and desire to continue to retain Bergrin. Given
these facts, it is clear that Petitioner made a knowing and voluntary waiver of his right to conflict
free counsel, and as such cannot raise the challenge he seeks to make here.
Petitioner attempts in his papers to argue that his waiver was not knowing because he was
unaware of the extent of Bergrin’s criminal activities. The problem with that argument, of course,
is that Petitioner need not know the extent of his attorney’s criminal actions to waive his rights, he
need only know of and choose to waive the conflict of interest. Regardless of the severity of
Bergrin’s crimes, Petitioner was made aware of the conflicts of interest at stake here – Bergrin’s
potential distraction and possible desire to curry favor with the Government – and chose to waive
those after consultation with conflicts counsel. As such, that Petitioner did not know the extent of
Bergrin’s criminal actions is immaterial. Petitioner knowingly and voluntarily waived his right to
conflict free counsel, and as such cannot now raise an ineffective assistance claim based on counsel
having been conflicted. Rutherford, 2005 WL 1541063 at *14-15; see also Dolan, 570 F.2d at
1181; Krebs, 788 F.2d at 1173; Sims, 143 F. App’x at 217; Darby, 2010 WL 4387511 at *8.
b. Petitioner’s Plea Claim as to Bergrin
Petitioner next asserts that Paul Bergrin was ineffective in advising him regarding a plea
offer made by the Government in July 2008. Specifically, Petitioner alleges that Bergrin gave him
insufficient information about the strengths of the Government’s case to enable him to properly
weigh his options, and that he ultimately rejected the plea because he felt that Bergrin’s advice to
take the plea was “incoherent” in light of Petitioner’s perceptions regarding the evidence. When
advising his client as to a plea deal, counsel is required to provide a criminal defendant with
32
sufficient information “to make a reasonable informed decision whether to accept a plea offer.”
United State v. Bui, 795 F.3d 363, 366-67 (3d Cir. 2015) (quoting Shotts v. Wetzel, 724 F.3d 364,
376 (3d Cir. 2013)). Even where a petitioner can show that his attorney failed to do so, he must
still show that he was prejudiced by counsel’s failure by showing that “but for his counsel’s advice,
he would have accepted the plea and that [the plea] agreement would have result[ed] 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 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, to establish prejudice based on counsel’s failure to
properly advise Petitioner as to a plea, Petitioner must show that he would have accepted the deal
had he been given proper advice, that the deal would not have been withdrawn, that the Court
would have accepted the deal, and that a lesser sentence would have resulted from the accepted
plea. Lafler, 132 S. Ct. at 1385.
Even assuming that Bergrin was deficient in advising Petitioner regarding the offered plea
deal, Petitioner cannot show that he was prejudiced by the advice he was given in this matter
because he has not shown that, had he received adequate advice, he would have accepted the plea
in question. In his amended motion to vacate, Petitioner states only that he “romanced the
possibility of taking a plea” at the time the plea was offered. (ECF No. 6 at 49). In his attached
affidavit,3 Petitioner in turn states that he “considered pleading guilty.” (Id. at 66). Petitioner
3
The Court notes that Petitioner did not sign this affidavit, and therefore did not attest to its
truthfulness. (See ECF No. 6 at 69).
33
further alleges in his affidavit that Bergrin told him that there was significant evidence of his guilt,
including that there was evidence that Petitioner had checked luggage containing drugs, that he
paid for the trips of both of his co-conspirators, and that Petitioner had made multiple trips to
Trinidad. (Id.). Petitioner then states that Bergrin told him that he should plead guilty because,
based on the Government’s evidence, Petitioner had “zero chance of winning. Not one percent,
not two percent. Zero percent.” (Id. at 67). Even given such a grim estimate of his chances,
however, Petitioner states that he rejected the plea deal and wished to proceed to trial. Petitioner
places the blame for this decision on Bergrin, stating that Bergrin inadequately advised him as to
the strength of the Government’s case. (Id. at 49-50).
In his reply brief, Petitioner reiterates that he “considered pleading guilty” and “romanced
the possibility of taking a plea” but was unwilling absent more information on the strength of the
Government’s case. Although Petitioner states that he was open to a potential plea, he does not
state in any certain terms that he was willing to take the plea offered to him in July 2008. The only
evidence for any willingness to accept that plea Petitioner offers is a statement made by Bergrin
during the July 21, 2008 hearing that he had convinced Petitioner that pleading was in his best
interest. (ECF No. 38 at 9). Of course, that same hearing is the one from which Petitioner fled,
resulting in a warrant for his arrest and Petitioner’s eventual conviction for fleeing prosecution,
and Petitioner in his amended motion specifically states that Bergrin’s “incoherence” at that time
prevented him from being willing to accept that plea.
Ultimately, Petitioner’s motion states that Petitioner was not wholly opposed to the idea of
a plea, but contains no information suggesting that Petitioner had any interest in accepting the one
plea offer to which he points, the July 2008 proposed plea. As to that proposal, Petitioner
specifically states that, even after his attorney told him that the Government possessed damning
34
evidence, including the checked baggage and the fact that Petitioner had paid for his codefendants’ trip to Trinidad to purchase drugs, and after counsel told Petitioner that he had “zero
chance” of winning at trial, Petitioner rejected the offered plea, desiring more information about
the strength of the Government’s case. Thus, this is not a case where counsel suggested rejecting
a plea, resulting in his client losing the benefit of an offered deal, but rather a case where counsel
strongly implored his client to take the beneficial plea deal in light of strong evidence of guilt, and
Petitioner rejected it because he did not like counsel’s entirely accurate estimation of his chances
at trial. Given that Petitioner insisted on his innocence throughout his original sentencing and
appeal and only attempted to accept his guilt prior to his resentencing, these facts are not surprising.
Petitioner has not stated that he had any interest in taking the deal that was offered in July 2008,
and has effectively told the court that he rejected that deal even after being told that it was his best
option because he felt he had not had enough information on the strength of the Government’s
case. Thus, Petitioner has negated his ability to show that he suffered any prejudice as a result of
Bergrin’s alleged deficient performance. Petitioner’s theoretical openness to the concept of
pleading is insufficient, to show prejudice Petitioner must show that, but for counsel’s actions, he
would have pled guilty. Petitioner’s pleadings show exactly the opposite – even in the face of
strong evidence of guilt and counsel’s advice that Petitioner had no chance at trial, Petitioner
rejected the deal for lack of information about the strength of the Government’s case. Petitioner
has failed to establish Strickland prejudice as a result, and his ineffective assistance claim must
fail. Lafler, 132 S. Ct. at 1385.
c. Petitioner’s Pre-trial Investigation Claim as to Liebesman
35
Petitioner’s central claim as to his actual trial counsel, Ruth Liebesman, is that she
inadequately investigated the factual background of his case, and thus failed to challenge phone
records submitted during his trial. As this Court has recently explained,
[i]n 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. 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 produced 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 specificity
36
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).
Brown, 2016 WL 1732377at *4-5.
In this claim, Petitioner essentially argues that had Ms. Liebesman more thoroughly
investigated the cellular telephone evidence used at trial she could have more capably advised him
as to whether or not to plead guilty, and she could have more ably attacked the credibility of
McCombs. As to the first part of this claim, that counsel could have more ably advised Petitioner
as to pleading guilty, that claim would fail for similar reasons to those discussed in reference to
Paul Bergrin above, Petitioner has not identified a specific plea agreement to which he would have
agreed to plead guilty, nor does he state in reference to Liebesman that he would have pled guilty
during her period of representation, both of which are fatal to any attempt to show prejudice as to
his decision to proceed to trial. See Lafler, 132 S. Ct. at 1385. Indeed, because Petitioner presents
little more than a bare allegation as to any alleged advice regarding guilty pleas on the drug charges
during Liebesman’s representation, Petitioner’s assertion is utterly incapable of establishing a
basis for relief. See Palmer, 592 F.3d at 395.
Turning to Petitioner’s central investigation claim, Petitioner asserts that Liebesman was
ineffective insomuch as she did not fully investigate the cellular telephone evidence presented at
trial to his satisfaction. Initially, this Court notes that Liebesman’s performance throughout her
representation at trial was indicative of her preparation and familiarity with the case at hand, and
that performance clearly shows that Petitioner’s is not a case in which his counsel performed no
investigation at all.
Thus, the question here is whether Petitioner can show that further
investigation would have resulted in evidence which was capable of producing a different result at
trial. Brown, 2016 WL 1732377, at *4-5.
37
Even if this Court were to assume for the sake of argument that counsel’s alleged failure
to investigate rendered her performance deficient, Petitioner cannot show that he was prejudiced
by counsel’s decision not to further investigate the cellular telephones discussed at trial.
Essentially, Petitioner argues that, had counsel more thoroughly investigated the phones, she
would have discovered that the phone number McCombs attributed to Trini was, in fact, his own
Trinidadian cell phone, and that not only was Trini actually McCombs, but also that McCombs
had perjured himself. Nothing in the record supports these assertions,4 and there is nothing
presented which clearly indicates that the number associated with Trini can definitively be
attributed to McCombs. These same points were raised, argued, and rejected in the first of
Petitioner’s motions for a new trial prior to his direct appeal, and to the extent Petitioner alleges
McCombs perjured himself, the Third Circuit found that the record does not establish any perjury
on the part of McCombs. Putting the perjury issue aside, counsel could and in fact did argue
extensively during her summation that McCombs was, in fact, Trini, and that the number attributed
to Trini was actually McCombs’s international phone. Counsel likewise extensively crossexamined McCombs on the cell phone issues and his part in identifying the various phones. Thus,
Petitioner to a great extent received from counsel the very service he now argues should have been
provided – that she raise the argument to the jury that McCombs was Trini and that she use the
4
Petitioner, in his post-trial motions, and counsel during her summation have contended that
Trini’s phone number was actually the number of one of McCombs phones, without ever
supplying any actual evidence to show that this was, indeed, the case. During his testimony,
Agent Sharpe testified that the Government had been unable to determine the actual phone
number for McCombs’s prepaid Trinidadian cellular phone, which was in the Government’s
possession. (See Document No. 18 attached to ECF No. 34 at 45-46). Thus, the record does not
support the assertion that the Trini phone number was in fact the number for McCombs’s
Trinidadian cell phone. The only evidence in the record on this issue is McCombs’s own
testimony, which states that the number in question was Trini’s phone number, and not the
number of McCombs’s Trinidadian phone.
38
cell phone testimony McCombs provided to do so. Ultimately, the jury, in convicting Petitioner,
found that argument unimportant to a determination of Petitioner’s guilt. Petitioner was thus not
prejudiced by the lack of further telephone record investigation by counsel.
Moving beyond the phone issue, the evidence of Petitioner’s guilt established at trial can
safely be categorized as overwhelming. During trial, both of Petitioner’s co-conspirators testified
as to Petitioner’s guilt, including his part in aiding and in part paying for their travel arrangements.
Documentary evidence submitted at trial further substantiated Petitioner’s part in facilitating
LaRoche’s travel to and from Trinidad. The evidence at trial clearly established Petitioner’s guilt
insomuch as the documents and co-conspirator testimony show that Petitioner conspired with
LaRoche and McCombs to bring the drugs into this country from Trinidad, and that the three were
caught doing so upon arrival in the United States. Given the strength of the evidence presented at
trial, it is doubtful Petitioner could show that he was in any way prejudiced by counsel’s failure to
more fully investigate the telephone evidence. See, e.g., Saranchak v. Beard, 616 F.3d 292, 311
(3d Cir. 2010); see also Copenhafer v. Horn, 696 F.3d 377, 390 (3d Cir. 2012) (“[i]n light of the
overwhelming evidence . . . we agree . . . that [the petitioner] cannot show he was prejudiced”).
Here, Petitioner has not shown that, had counsel more fully investigated, the result of his trial
would likely have been different, and, given the strong evidence of his guilt, has in turn failed to
show that he was prejudiced by that alleged failing.
In his reply brief, Petitioner conflates the telephone records with another argument that
counsel raised at the end of trial regarding McCombs allegedly perjuring himself, this time
regarding McCombs having stated that the three had separated LaRoche’s clothing into the three
drug suitcases, rather than LaRoche’s into one suitcase and men’s clothing into the others which
customs records suggest occurred. Following McCombs’s testimony, counsel for Petitioner
39
argued that she had arguably been ineffective in failing to challenge McCombs regarding this
alleged “perjury.” (See Document 18 attached to ECF No. 34 at 8-15). This Court, however,
rejected counsel’s assertion at that time that she had been ineffective in pointing out this “perjury,”
observing that McCombs statement could well have been a misstatement, and that the difference
between putting LaRoche’s clothes in all three suitcases versus putting her clothing in one and
McCombs’s or another man’s clothing in the other two was not significant and was certainly not
so stark that it could be accurately called perjury, nor could counsel’s failure to challenge him on
the point be accurately characterized as ineffective assistance. (See Id. at 15-17). Counsel’s failure
to pursue this non-issue can hardly be said to be deficient performance, and counsel’s statement
that she felt it constituted ineffective performance was, at best, a combination of hindsight and
overt hyperbole, as this Court stated at the time. (Id.). In any event, given the strength of the
evidence of Petitioner’s guilt, and the utter lack of importance that can be attributed to the clothing
distinction, it can safely be said that this issue does not amount to a case of ineffective assistance,
even were this point not raised in Petitioner’s reply brief. Petitioner has thus failed to show that
counsel’s alleged lack of investigation prejudiced his defense, and has therefore failed to establish
ineffective assistance of counsel.
As a final note in regard to Petitioner’s assertion that counsel was ineffective pre-trial,
Petitioner’s complaints regarding counsel waiving his presence during a pre-trial hearing when he
was inadvertently not brought to court for a hearing date are without merit as Petitioner cannot
show how he was prejudiced by the waiver of his presence. Indeed, the record clearly indicates
that, after speaking with counsel, Petitioner himself agreed to retroactively waive his presence. At
any rate, even without that waiver, the portion of the hearing in question held prior to Petitioner’s
arrival, which is discussed above, dealt specifically with questions and legal issues raised by
40
counsel rather than any testimony, and thus avoided crossing into areas where Petitioner’s presence
would have been helpful, let alone vital. In the end, Petitioner has provided no basis for concluding
that he was prejudiced by the waiver of his presence, let alone more than a conclusory allegation
of prejudice, and this claim, too, fails to establish ineffective assistance of counsel. See Palmer,
592 F.3d at 395.
d. Petitioner’s Sentencing Claims as to Liebesman
In his final series of ineffective assistance of counsel claims, Petitioner alleges that
Liebesman was ineffective during his sentencing proceedings. First, Petitioner alleges that, had
Liebesman more thoroughly investigated his criminal history, she could have presented the Court
with physical documentation as to the sentence he received for one of his prior convictions, which
would have resulted in the Court finding him to have a lesser criminal history category. The
inherent problem with this claim, however, is that any prejudice Petitioner may have suffered as a
result of counsel being unable to produce documentation regarding his sentence on that prior
conviction was essentially eliminated when the Third Circuit vacated his sentence and remanded
his case for resentencing in light of the facts Petitioner contends counsel should have raised. See
St. Vallier, 404 F. App’x at 664-65. On remand, Petitioner’s criminal history category was
recalculated and Petitioner received the full benefit of the argument that he now argues counsel
should have made at his initial sentencing hearing.5 That he ultimately received the same sentence
is immaterial, as he received the benefit of the argument of which he claims he was deprived by
It should be noted that Petitioner’s counsel did, in fact, raise the argument Petitioner now
suggests she should have during his initial sentence, but was at that time unable to produce
documentation to prove the assertion that Petitioner had been given a suspended sentence on his
prior state court conviction because of a procedural issue in the state courts.
5
41
counsel’s failure to provide documentation at his initial sentencing. Because Petitioner has
received the benefit of the argument he now claims should have been made at his initial sentencing,
he suffered no prejudice as a result of counsel’s failure to provide the necessary documentation at
his initial sentencing. As Petitioner cannot show that he suffered any prejudice in light of his
resentencing, this claim of ineffective assistance of counsel is without merit and must be denied.6
Cross, 308 F.3d at 315.
Petitioner also alleges that Liebesman was ineffective at sentencing in failing to dispute the
factual basis of his prior conviction regarding whether Petitioner fired at an ex-girlfriend’s tires
while she was in the car, to his satisfaction. As to this claim Petitioner cannot show that he was
prejudiced. During his initial sentence, the parties disputed the factual basis for the conviction in
question. This Court, however, refused to take into account either side’s recounting of the alleged
factual basis for the conviction, and considered it only to the extent that it contributed to
Petitioner’s criminal history category. (See Document 16 attached to ECF No. 34 at 60-61). This
Court did not base either of the sentences issued, at the first or second sentencing, on any
conclusion as to the factual basis for that prior conviction or any aspect of that prior conviction
other than its existence and the effect that existence had upon Petitioner’s criminal history
category. Because this Court did not consider the disputed factual basis for the prior conviction at
6
In his reply brief, Petitioner also attempts to argue that Liebesman was ineffective because she
stated during sentencing that the mandatory minimum applicable sentence was 120 months,
rather than 60 months. (ECF No. 38 at 21). As with the other argument, any misstatement
Liebesman may have made about the mandatory minimums at sentencing is immaterial because
Petitioner was resentenced and his resentencing counsel was more than capable of addressing
any such issues. At any rate, because Petitioner would not have received a sentence below 120
months regardless, Petitioner was clearly not prejudiced by this statement. Thus, even if this
Court were not to consider this argument an improper point raised on reply, see Judge, 119 F.
Supp. 3d at 284 (a moving party may not raise new issues or new facts in his reply brief, and any
point so raised may be disregarded), Petitioner’s claim fails to show any resulting prejudice, and
is thus without merit.
42
either sentencing for the purposes of the sentence issued, Petitioner was not prejudiced by
counsel’s alleged failure to dispute those facts to Petitioner’s liking. Petitioner’s sentence was not
increased because of the nature of that prior offense, and had counsel more thoroughly challenged
the factual basis for that offense contained in the presentence report, no benefit would have accrued
to Petitioner in his sentence. As such, Petitioner cannot show that he was prejudiced by counsel’s
alleged failings, and Petitioner’s ineffective assistance claim must fail. Judge, 119 F. Supp. 3d at
280-81.
Petitioner also contends that counsel was ineffective when she was unable to procure for
him a second interview prior to the production of the presentence report after Petitioner refused to
speak with probation when offered an initial PSR interview. Initially, the Court must note that
Petitioner again fails to demonstrate what prejudice he suffered from his lack of a second chance
at an interview after he refused the initial interview. In support of his claim, he simply reiterates
his argument that the factual basis for one of his prior state convictions, involving his exgirlfriend’s car, could have more readily been disputed had he been given the opportunity to speak
with probation. As discussed above, this Court did not consider that factual basis in arriving at his
sentence, and Petitioner suffered no prejudice as a result. As to prejudice, Petitioner otherwise
suggests that, had he been interviewed, probation would have developed more facts that might
have changed his sentence. Petitioner does not specify what additional information would have
been discovered beyond his contentions regarding his prior conviction nor how that information
would have benefitted him. Petitioner has thus failed to provide any basis for a finding of
prejudice, and his claim must fail for that reason. See Palmer, 592 F.3d at 395.
In any event, it was Petitioner who refused the initial interview. (See PSR at ¶ 78). Counsel
thereafter requested a second interview, but was denied that chance by Probation following
43
Petitioner’s refusal to be interviewed. (See Document 16 attached to ECF No. 34 at 64). Thus,
the blame for Petitioner’s inability to be interviewed by Probation falls not on counsel, who did
attempt to acquire a second chance for Petitioner to be interviewed, but on Petitioner himself for
refusing his initial interview. Thus, Petitioner cannot show that it was counsel’s deficient
performance, rather than his own obstinance, that robbed him of the opportunity to be interviewed.
Petitioner’s claim must fail for that reason as well.7
IV. 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 the claims raised in Petitioner’s amended
motion to vacate are without merit and Petitioner’s supplemental claims are time-barred and
otherwise without merit for the reasons expressed above, jurists of reason would not disagree with
this Court’s denial of Petitioner’s motion to vacate sentence, and Petitioner’s claims are inadequate
to deserve encouragement to proceed further. This Court therefore denies Petitioner a certificate
of appealability. Id.
Even were this not the case, it is doubtful that Petitioner’s claim as to the PSR interview would
be sufficient to make out ineffective assistance of counsel. See, e.g., United States v. Benlian, 63
F.3d 824, 826-28 (collecting cases holding that PSR interview is not a critical stage and that
criminal defendants therefore cannot make out an ineffective assistance claim based on counsel’s
alleged failings in regard to a PSR interview).
7
44
V. CONCLUSION
For the reasons set forth above, Petitioner’s motion for discovery (ECF No. 38) is
DENIED, Petitioner’s amended motion to vacate his sentence (ECF Nos. 6, 22) is DENIED, and
Petitioner is DENIED a certificate of appealability. An appropriate order follows.
Dated: October 31, 2016
s/Susan D. Wigenton
Hon. Susan D. Wigenton,
United States District Judge
45
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