PETERSON v. UNITED STATES OF AMERICA
OPINION. Signed by Judge Susan D. Wigenton on 10/9/15. (DD, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 14-3346 (SDW)
UNITED STATES OF AMERICA,
WIGENTON, District Judge:
Presently before the Court is the motion of Anthony Peterson (“Petitioner”) to vacate, set
aside, or correct his May 2011 judgment of conviction and sentence. (ECF No. 5). Petitioner
initially filed his motion on or about May 23, 2014. (EF No. 1). The initial motion was
administratively terminated on September 30, 2014. (ECF No. 4). On October 20, 2014,
Petitioner filed his amended motion to vacate. (ECF No. 5). Following an order to answer and
two extensions granted by this Court, the Government responded to Petitioner’s motion on
February 6, 2015. (ECF No. 11). Also before this Court are the Government’s motion to
dismiss Petitioner’s motion to vacate (ECF No. 12), and Petitioner’s motion to strike the
Government’s motion to dismiss. (ECF No. 14). For the following reasons, this Court will deny
Petitioner’s § 2255 motion, will deny Petitioner a certificate of appealability, and will deny
Petitioner’s motion to strike. In light of this Court’s denial of Petitioner’s § 2255 motion on the
merits, this Court will also deny as moot the Government’s motion to dismiss.
The Third Circuit summarized the underlying facts of Petitioner’s case in their opinion
affirming his conviction as follows:
On March 12, 2009, it was nearing closing time at a Bank of
America branch in Somerset, New Jersey, when four men drove a
stolen Jeep Cherokee into the bank's parking lot. As one man waited
in the car with the engine running, the other three entered the bank
wearing gloves and masks of different United States presidents and
carrying guns. Two of these masked men were identified at trial as
Muhammad and [Petitioner]. The men took the security guard's gun.
They then ordered the tellers and the bank's sole patron to get down
on the floor. One of the men then pointed his gun at the tellers and
demanded cash; he then emptied the tellers' cash drawers into a bag.
A second man put a gun to a bank employee's head and
ordered him to open the vault. The vault opened and the men
removed cash. The men then ordered everyone in the bank to stay
on the ground, and left the bank with, among other items, the
security guard's gun and over $93,000 in cash. The cash included
“bait bills” which contained two hidden GPS devices.
Several bystanders saw the robbers leave the bank and one
witness called 911, reporting the Jeep's license plate. The witness
also reported that the Jeep turned into an apartment complex parking
lot about 500 feet from the bank. In the lot, the robbers left the Jeep,
still running, and a shotgun, and jumped into a stolen Ford minivan.
The van left the parking lot as police officers entered to investigate.
After an eyewitness reported the vehicle swap, which the officers
reported over the police dispatch radio, another officer who was
approaching the apartment complex observed the van and began
During the ensuing chase, the robbers fired shots at the
officer on the road and in an open square in New Brunswick, New
Jersey. The officer radioed that shots had been fired. Ultimately, the
chase continued through a residential area until the van crashed into
a security gate at St. Peter's University Hospital. The robbers exited
the van, and a firefight between them and the police ensued. The
robbers ran through a residential neighborhood, some taking off
layers of clothing as they ran. Finally, a police officer trapped the
robbers in a cul-de-sac, where two of them pointed their guns at the
police. The police fired, striking three of the four robbers. Police
then arrested the four robbers.
Muhammad, [Petitioner], and another co-defendant were
charged in the U.S. District Court for the District of New Jersey with
three counts: (1) conspiracy to commit bank robbery by force and
violence, or intimidation, contrary to 18 U.S.C. § 2113(a), in
violation of 18 U.S.C. § 371; (2) armed bank robbery by force and
violence, or intimidation in violation of 18 U.S.C. § 2113(a), (d),
and § 2; and (3) use of a firearm in furtherance of a crime of violence
in violation of 18 U.S.C. § 924(c)(1)(A)(iii) and § 2. The codefendant pleaded guilty. Muhammad and [Petitioner] proceeded to
trial on November 3, 2010.
During the five-day jury trial, the Government presented the
testimony of bank employees, a bank security manager, and
eyewitnesses to different stages of the escape, chase, apprehension,
and subsequent investigation, including various police officers and
detectives. One of the detectives testified as an expert in latent
fingerprint processing, and another detective testified as an expert
in firearms operation. An FBI forensic examiner also testified as an
expert in DNA profiling and statistics. The Government also called
the owners of the stolen vehicles as witnesses. Additional trial
evidence included bank security camera footage, GPS devices,
physical evidence found in the abandoned van (including the masks
worn by the perpetrators), and audio recordings of police radio
dispatches. The Government also introduced certain articles of
clothing (e.g., pants, sweatshirts, gloves, and shoes) that the police
recovered from the defendants at the time of their arrest or shortly
On November 9, 2010, the jury convicted Muhammad and
[Petitioner] of all three counts against them.[ 1] The District Court
sentenced Muhammad to a within-guidelines imprisonment term of
225 months. The District Court calculated Muhammad's guideline
range for imprisonment as 87 to 108 months based upon a total
offense level of 27 and a criminal history category of III.
Additionally, he received a mandatory consecutive sentence of 120
months on Count Three for use of a firearm during a violent crime
under § 924(c).
The jury also unanimously determined beyond a reasonable doubt that a firearm utilized in the
robbery had been discharged in the course of the offense. (Docket No. 09-265 at ECF No. 94).
[Petitioner] also received a within-guidelines imprisonment
term, totaling 562 months.[ 2] Having previously been convicted of
a crime under 18 U.S.C. § 924(c), [Petitioner]'s mandatory
minimum consecutive sentence on Count Three was 25 years. The
District Court also entered a revocation judgment against
[Petitioner], who was on supervised release at the time of the
robbery. For the revocation, the District Court sentenced him to an
additional 81 months to be served consecutively with his sentence
on the robbery charges.
United States v. Muhammad, 512 F. App’x 154, 156-58 (3d Cir.), cert. denied sub nom.,
Peterson v. United States, 133 S. Ct. 2783 (2013).
Following their sentencing, Petitioner and Muhammad appealed, and their appeals were
consolidated for the purposes of the Third Circuit’s opinion. Id. On appeal, Petitioner and his
co-defendant raised numerous claims of error at trial, all of which were rejected by the Third
Circuit, which affirmed both Petitioner’s conviction and sentence. Id. at 158-70. One specific
claim raised on direct appeal has a direct bearing on the ineffective assistance of counsel
arguments Petitioner raises here. Petitioner’s first claim on appeal was that his “right to crossexamination under the Confrontation Clause was violated when the District Court allowed [the]
FBI forensic expert, Nicole Nicklow, to testify about the results of, and procedures used to
perform, certain DNA tests” which she did not, herself, perform. Id. at 158. The Third Circuit
rejected that argument for the following reasons:
[e]ven assuming, arguendo, the District Court erred in admitting
Nicklow's testimony, we conclude such error is harmless. An
evidentiary error that runs afoul of the Confrontation Clause is
harmless only if we conclude beyond a reasonable doubt that the
error did not contribute to the jury's judgment of conviction. See
United States v. Lore, 430 F.3d 190, 209 (3d Cir.2005). Our Court
“consider[s] numerous factors in assessing whether the erroneous
admission of testimonial evidence in violation of the Confrontation
Clause was harmless to the defendant, including the importance of
The length of Petitioner’s sentence was the result of his status as an armed career criminal.
Muhammad, 512 F. App’x at 157 n. 2.
the testimony to the Government's case, the cumulative nature of the
evidence, the existence of corroborating evidence, the extent of
cross-examination allowed in the case, and the strength of the
Government's case as a whole.” United States v. Jimenez, 513 F.3d
62, 78 (3d Cir.2008) (citing Delaware v. Van Arsdall, 475 U.S. 673,
684, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986)).
Considering all of these factors—particularly the breadth and nature
of the other overwhelming and cumulative evidence that the
Government offered at trial—it appears beyond a reasonable doubt
that the guilty verdicts rendered on all three counts were not
attributable to any constraint on Muhammad and [Petitioner’s]
rights to confrontation that may have resulted from Nicklow's
testimony. The Government's case-in-chief rendered any evidence
concerning DNA testing cumulative, if not superfluous. 3 The
Government's case against Muhammad and [Petitioner] was
formidable. The evidentiary record connecting Muhammad and
[Petitioner] to the crimes was overwhelming and convincing,
particularly including the testimony of numerous witnesses who
were present at virtually every stage of the robbery, chase, and
apprehension, as well as bank surveillance footage in which the
robbers could be seen wearing apparel that was confiscated from the
defendants at the time of their arrest, and a wide array of physical
evidence recovered from the getaway vehicles and the defendants
themselves, including the stolen cash and security guard's gun, as
well as the perpetrators' own weapons, apparel, and masks.
Accordingly, to the extent that allowing Nicklow's testimony
constituted error, it was harmless.
Muhammad, 512 F. App’x at 158-59.
Following the affirmance on direct appeal, Petitioner petitioned for certiorari, which was
denied on June 3, 2013. Peterson v. United States, 133 S. Ct. 2783 (2013). Nearly a year later,
on May 23, 2014, Petitioner filed his initial motion to vacate his sentence pursuant to 28 U.S.C. §
2255. (ECF No. 1). Following an administrative termination, Petitioner filed an amended
“Although the Government frequently referenced the DNA evidence during its closing
statement, it also commented that the DNA evidence was a ‘throw-in.’ The Government further
discussed evidence, including documents and physical evidence, which demonstrated that the
suspects were wearing the same articles of clothing, such as gloves, shoes, and pants, both at the
bank and the time of their apprehension, noting that this ‘evidence is almost stronger than the
DNA evidence.’” Muhammad, 512 F. App’x at 158 n. 3.
motion to vacate on October 20, 2014. (ECF No. 5). On October 23, 2014, this Court ordered
the Government to respond to the motion within forty-five days, or by December 8, 2014. (ECF
No. 7). Within that forty-five days, the Government requested a sixty day extension, which this
Court granted on December 4, 2014, extending the deadline to February 6, 2015. (ECF No. 9).
On February 5, 2015, the Government requested a further two week extension, which this Court
granted on February 6, 2015. (ECF No. 10). Ultimately, the Government filed their response, in
the form of a brief in support of dismissal of the motion to vacate, on February 6, 2015. (ECF
No. 11). After this Court terminated the motion to dismiss for failure to include a motion and
proposed order in addition to a brief in opposition to the motion to vacate, the Government filed
a formal motion to dismiss on March 4, 2015. (ECF No. 12). Petitioner filed neither a reply
brief nor responded to the motion to dismiss. Six months later, on or about September 22, 2015,
Petitioner filed a motion to strike the motion to dismiss. (ECF No. 14).
RESPONSE/MOTION TO DISMISS
Petitioner moves this Court to strike the Government’s response, including the
Government’s motion to dismiss based on the argument that these documents were filed beyond
the time period permitted by this Court. Pursuant to Rule 12(f) of the Federal Rules of Civil
Procedure, the “court may strike from a pleading an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.” Motions to strike, however, “are disfavored and
usually will be denied ‘unless the allegations have no possible relation to the controversy and may
cause prejudice to one of the parties, or if the allegations confuse the issues in the case.’” Jones v.
United States, No. 10-3502, 2012 WL 2340096, at *2 (D.N.J. June 18, 2012) (quoting River Road
Dev. Corp. v. Carlson Corp., No. 89-7037, 1990 WL 69085, at *3 (E.D. Pa. May 23, 1990).
District Courts possess “considerable discretion” in deciding motions to strike. Id.
Petitioner asks this Court to strike the Government’s motion to dismiss and direct the
Government to file a response in accord with this Court’s order to answer. However, Petitioner’s
motion is based on a false premise: that the Government never responded to the Petition within the
time allotted by the Court. Based on the extensions granted by this Court, the Government’s
answer was due by February 20, 2015. The Government filed its brief in support of the motion to
dismiss, which also serves as its answer (responsive pleading) to Petitioner’s motion to vacate, on
February 6, 2015, well within the time permitted by this Court. That the Government thereafter
also filed a distinct motion to dismiss the petition has no bearing on the fact that the Government
did respond to the § 2255 motion within the time permitted by this Court, and as such Petitioner’s
motion to strike shall be denied.
III. PETITIONER’S MOTION TO VACATE
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
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.
1. An evidentiary hearing is not required
Under 28 U.S.C. § 2255, an evidentiary hearing is required for a motion to vacate “unless
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, --- F. Supp. 3d ---, ---, No. 13-2896, 2015 WL 4742380, at *3 (D.N.J.
Aug. 11, 2015); see also Government of Virgin Islands v. Nicholas, 759 F.2d 1073, 1075 (3d Cir.
1985); see also United States v. Tuyen Quang Pham, 587 F. App’x 6, 8 (3d Cir. 2014); Booth,
432 F.3d at 546. For the reasons set forth below, Petitioner’s claims are without merit and as
such the record establishes that Petitioner is not entitled to relief as a matter of law. No
evidentiary hearing is therefore required for the disposition of petitioner’s motion.
2. Petitioner’s ineffective assistance of counsel claims
In his motion, Petitioner asserts that his counsel was constitutionally ineffective. The
standard for evaluating 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
“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, --- F. Supp. 3d at ---, 2015 WL 4742380 at *3-4.
Petitioner argues that his trial counsel was ineffective for failing to challenge the
testimony of the Government’s DNA expert at trial by hiring his own DNA expert, subpoenaing
the technicians who performed the DNA testing in this case, and failing to request a curative
instruction informing the jurors that “the underlying test for admitting the Government’s DNA
expert opinion should be for the purposes of assisting the jury in evaluating the expert’s opinion
and [that opinion is not admitted] for substantive purposes.” As to prejudice, Petitioner offers no
more than hypothetical suggestions that a DNA expert “could have refuted the possible defects in
the DNA testing,” that counsel “could have cross examined [the technicians] . . . to reveal
possible defects in the procedure and analysis that might serve to create reasonable doubt,” and
that with a curative instruction “the outcome could have been different by casting reasonable
doubt in the minds of the jurors as to the possible flaws and errors in the DNA testing which
could have been inconclusive.” (Document 5 at 16-19). Petitioner offers no concrete argument
or concrete factual support for the prejudice prong of the Strickland test. Such bare allegations,
without supporting factual allegations, are patently insufficient to warrant an evidentiary hearing,
let alone a finding of ineffective assistance of counsel. Palmer, 592 F.3d at 395.
In any event, it is doubtful that Petitioner could have shown prejudice in this case even if
he had provided further allegations. Where a petitioner’s guilt is established at trial by
overwhelming evidence, that petitioner cannot show that he was prejudiced by counsel’s errors
unless he can provide “a considerable amount of new, strong evidence to undermine” his
conviction. 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, all three of Petitioner’s assertions of
counsel’s ineffectiveness rely on his belief that the DNA evidence produced at his trial was
responsible for his conviction, and had counsel done more to fight that evidence, the result may
have been different. These arguments, however, ignore the staggering amount of physical and
eye-witness evidence produced at trial.
On direct appeal, the Third Circuit held that the admission of the DNA testimony was
harmless even if one assumes that that testimony ran afoul of the Confrontation Clause.
Muhammad, 512 F. App’x at 158-59. To make such a finding, the Third Circuit was required to
conclude that “beyond a reasonable doubt . . . the error did not contribute to the jury’s judgment
of conviction.” Id. at 158. The Third Circuit was able to conclude the DNA testimony and
evidence did not contribute to the jury’s judgment of conviction because the Government
produced a truly overwhelming quantity of other evidence which clearly established Petitioner’s
guilt. Id. at 158-59. As the Third Circuit stated, this overwhelming evidence rendered the DNA
testing “cumulative, if not superfluous.” Id. at 158. Petitioner therefore cannot show that he was
prejudiced by counsel’s alleged errors because the Government’s case against Petitioner
was formidable. The evidentiary record connecting [Petitioner] to
the crimes was overwhelming and convincing, particularly
including the testimony of numerous witnesses who were present
at virtually every stage of the robbery, chase, and apprehension, as
well as bank surveillance footage in which the robbers could be
seen wearing apparel that was confiscated from the defendants at
the time of their arrest, and a wide array of physical evidence
recovered from the getaway vehicles and the defendants
themselves, including the stolen case and security guard’s gun, as
well as the perpetrators own weapons, apparel, and masks.
Id. at 158-59. Given the overwhelming evidence presented at trial, and the Third Circuit’s ruling
that the testimony of the DNA expert at trial did not contribute to the jury’s verdict, this Court
must conclude that the alleged errors of counsel raised by Petitioner did not, in any way,
prejudice Petitioner. Saranchak, 616 F.3d at 311; Copenhafer, 696 F.3d at 390. As such,
Petitioner’s claims of ineffective assistance of counsel must fail, and Petitioner’s § 2255 motion
must be denied. Because this Court will deny Petitioner’s § 2255 motion, the Government’s
motion to dismiss that motion is moot and will be denied as well.
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). As Petitioner has failed to show that
he received ineffective assistance of counsel, he has failed to make a substantial showing that he
was denied a constitutional right, and jurists of reason could not conclude that his claims are
sufficient to warrant encouragement to proceed. As such, this Court denies Petitioner a
certificate of appealability.
For the reasons set forth above, Petitioner’s motion to strike is DENIED; Petitioner’s
motion to vacate is DENIED; Petitioner is DENIED a certificate of appealability, and the
Government’s Motion to Dismiss is DENIED as moot. An appropriate order follows.
Dated: October 9, 2015
s/ Susan D. Wigenton
Hon. Susan D. Wigenton
United States District Judge
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