ANDREW v. UNITED STATES OF AMERICA

Filing 19

OPINION. Signed by Judge William H. Walls on 04/03/2019. (ek)

N THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

RANDY ANDREW,

HONORABLE WILLIAM H. WALLS
Petitioner,
Civil Action
No. 14-6673 (WHW)

v.
UNITED STATES OF AMERICA,

OPINION

Respondent.

APPEARANCES:
RANDY ANDREW
No. 63915-050
FCI Gilmer, P.O. Box 6000
Glenville, West Virginia 2635 1-6000
Petitioner, appearing pro se
—

JUSTIN S. HERRING, Esq.
THOMAS J. EICHER, Esq.
United States Attorney’s Office
970 Broad Street, Suite 700
Newark, New Jersey 07102
Attorneys for Respondent United States of America
WALLS, Senior District Judge:
I.

INTRODUCTION
On June 28 and July 1, 2013, after a four-day trial, a jury convicted Petitioner Randy

Andrew (“Petitioner”) of various charges, detailed infra, related to his possession and trafficking
of firearms. (See, e.g., Oct. 1, 2013 Crim. J. in United States v. Andrel4’, No. 2:12-cr-768-l (the
“Criminal Docket”) at ECF No. 73.) On September 18, 2013, this Court sentenced Petitioner to
a term of imprisonment of 120 months. (See, e.g., id.) Petitioner now moves to vacate, correct,

or set aside his federal sentence pursuant to 28 U.S.C.

§ 2255. For the reasons stated herein, the

Court will deny the motion, and will not issue a certificate of appealability.
II.

BACKGROUND

On May 17, 2013, Petitioner was formally charged in a five-count superseding indictment
with: (1) one count of trafficking firearms without a license, is u.s.c.
count of conspiring to traffic firearms without a license, 18 U.S.C.

§ 922(a)(l)(A); (ii) one

§ 371; and (iii) three separate

counts of being a felon in possession of a firearm on the dates of May 11, May 19, and June 9,
2010, in violation of 1$ U.S.C.

§ 922(g)(l). (See Criminal Docket at ECF No. 57.)

Petitioner’s trial began on June 25, 2013. (See June 25, 2013 Trial Tr., Criminal Docket
at ECF No. 76.) Petitioner was initially represented by Paul J. Casteleiro, Esq. At the beginning
of the third day of trial on June 27, 2013, Petitioner made a formal request to represent himself
and act as his own attorney for the remainder of his trial, with Mr. Casteleiro serving as stand-by

counsel. (See June 27, 2013 Trial Tr. 3-10, Criminal Docket at ECF No. 7$.) Petitioner was
clear that Mr. Casteleiro had “done very well” and that this request was the result of Mr.
Casteleiro’s strategic decisions to not “bring certain things out” at trial due to the potential
adverse impact that information would have on Petitioner’s defense; Petitioner, on the other hand
“want[ed] everything to come out, not to be used as strategy.” (Id. at 7-8.) The Court
cautioning Petitioner against proceeding pro se

—

—

after

granted Petitioner’s request. (Id. at 7-14.)

Petitioner served as his own counsel for the duration of the trial, which concluded on July 1,
2013.
The evidence presented at trial inculpating Petitioner was overwhelming. That evidence
included the testimony of: (i) Sydney Trottman, who purchased upwards of fifty guns from
various individuals

—

including three from Petitioner

2

—

over a three-year period during which he

was acting as a confidential informant on behalf of the Government (see June 26, 2013 Trial Tr.
45-102, Criminal Docket at ECF No. 77; June 27, 2013 Trial Tr. 17-60); (ii) Federal Bureau of
Investigation (“FBI”) Officer Augoustis Karaminas, who served as Sydney Trottman’s point of
contact at the FBI during Mr. Trottman’s roughly three-year period of cooperation (see June 25,
2013 Trial Ir. 17-99; June 26, 2013 Trial Tr. 3-40); and (iii) one of Petitioner’s co-conspirators,
Peter Stewart, who helped facilitate the foregoing firearms sales to Mr. Trottman. (See June 27,
2013 Trial Tr. 60-106). All three witnesses provided compelling testimony demonstrating that
Petitioner, among other things, sold Mr. Trottman: (i) a Universal Enforcer .30 caliber semi
automatic assault rifle on May 11, 2010; (ii) aNorinco MAK-90 7.62 millimeter assault rifle on
May 19, 2010; and (iii) a Lorcin .38 caliber semi-automatic handgun on June 9, 2010. Michael
Puskas, a special agent with the Bureau of Alcohol, Tobacco, Firearms & Explosives, also
testified on behalf of the Government. (See June 27, 2013 Trial Tr. 106-133, Criminal Docket at
ECF No. 78.) Special Agent Puskas testified, inter alia, about Petitioner’s lack of licensure to
sell those firearms. (Id. at 117.)
The jury also viewed audio/visual recordings produced from covert surveillance
equipment worn by Mr. Trottman each time Petitioner sold him a firearm. (See, e.g., June 27,
2013 Trial Tr. 18-87.) The events depicted in those audio/visual recordings were fully consistent
with the testimony of Messrs. Karaminas, Trottman, and Stewart and otherwise convincingly
demonstrated, among other things, Petitioner’s clear and direct involvement in the sales of three
firearms to Mr. Trottman on May 11th, May 19th, and June 9th. The evidence presented at trial
further demonstrated that Petitioner thought the guns he sold to Mr. Trottrnan were purchased for
a Jamaican crime lord named Dukus “to fight [a drug] war in Jamaica.” (See, e.g., June 26, 2013
Trial Tr. 55-56.)

3

In addition to this highly incriminating evidence, during his pro se cross-examination of
Messrs. Trottrnan and Stewart, Petitioner readily and repeatedly acknowledged that he sold guns
to Mr. Trottman on multiple occasions. (See. e.g., June 27, 2013 Trial Tr. 3$ (Petitioner asking
Mr. Trottman “How much money were you supposed to give me on May 19th for [the MAK-90]
assault weapon?”); id. at 102 (Petitioner, during his cross-examination of Mr. Stewart, indicating
that he himself “received five hundred dollars” for the May 11th assault rifle sale); see also Id. at
103-04 (Court cautioning Petitioner that “in the course of serving as [his] own attorney.

..

[y]ou

are incriminating yourself and you’re doing it willingly...
In that regard, Petitioner’s defense strategy appeared to be based on the legally incorrect
premise that although Petitioner undisputedly sold guns to Mr. Trottman on three occasions
without any license to do so, he was not guilty of the gun trafficking and felon in possession of
firearm charges for which he stood trial because he only sold those firearms in response to the
requests of Mr. Trottman, who, in turn, purchased those weapons at the behest of the FBI solely
for the purpose of securing criminal convictions of third-parties. In other words, it appears that
Petitioner mistakenly believed
continues to believe
Trottman

—

—

—

and, as evidenced by the claims raised in this habeas matter,

that because he sold those guns only after being implored to do so by Mr.

who himself was attempting to purchase those weapons for the purpose of securing

criminal convictions and not for use in “real” crimes

—

Petitioner should have been acquitted at

trial of the crimes charged against him in the May 17, 2013 superseding indictment. In that
respect, the jury was instructed on

—

and allowed to consider whether

—

the defense of

entrapment applied to Petitioner’s case. The Court explained, inter alia, that:
A defendant may not be convicted of a crime if he was entrapped by the
Government to do the acts charged. The Government is permitted to use
undercover agents, deception, and other means of providing opportunities for
unwary criminally minded persons to commit a crime. But the law does not permit

4

the Government to induce an unwary, innocent person in committing a criminal
offense.
(June 28, 2013 Trial Tr. 76.)
Ultimately the jury found Petitioner guilty on all five counts charged in the superseding
indictment. (See June 28, 2013 Trial Tr. 86-100; July 1, 2013 Trial Tr. 6-9.) This was wholly
unsurprising in light of the abundant evidence and testimony presented at trial inculpating
Petitioner. On October 1, 2013, this Court sentenced Petitioner to 120 months’ imprisonment.
(See Oct. 1, 2013 Crim. J., Criminal Docket at ECF No. 73.)
Petitioner never filed a direct appeal. Instead, on or about October 10, 2014, Petitioner
initiated the current

(ECF No. 1.) Petitioner thereafter submitted several

§ 2255 action pro Se.

supplemental filings containing the relevant habeas claims that are presently before the Court.
(See Pet’r’s July 13, 2016 Am.

§ 2255

Mot., ECF No. 7; Pet’r’s Jan. 4, 2017 Mot. to Supp.

Pleading, ECF No. 10) (collectively, the

“

2255 Motion”). Petitioner’s

§

2255 Motion advances

the following arguments:
[withheld] information, and impeachment
Ground One: The prosecution team.
by not disclosing impeachment evidence of audio visual DVD
evidence
recording of debriefing at Stuyvesant Avenue and Mountain View Place, in
Irvington New Jersey...
.

.

.

.

.

Ground Two: The government withheld evidence [of the audio visual DVD
recording of agents debriefing informant at Stuyvesant Avenue And Mountain
View Place in Irvington New Jersey and] the prosecution team suppressed [this]
evidence that was favorable to the [Petitioner] after multiple request[s] for
evidence.
Ground Three: The prosecution withheld information and location [related to a]
government informant moving on same street location as [P]etitioner.
Ground Four: The prosecution team withheld audio visual footage [from July 15,
2010 through July 17, 2010] that coincided with [text messages introduced into
evidence at trial and] were exculpatory and material
.

5

.

.

[Trial counsel] was ineffective for not requesting [] audio visual
Ground five:
[DVD] debriefing of agents and informant on Stuyvesant Avenue and Mountain
View Place in Irvington New Jersey. [Counsel] failed to investigate audio visual
debriefing of informant which was part of the overall discovery evidence in his
possession which would have helped him develop a strategy for trial.
.

.

.

[because counsel] did not call
Ground Six: Ineffective assistance of counsel
testify
to the information of [Petitioner] after [P]etitioner
Mark McCargo to
clearly stated that informant had been exposed in front of another coconspirator by
[Petitioner] where [Petitioner] told Mark McCargo that informant was an agent of
the government.
.

.

.

.

.

.

asked
[where Petitioner]
Ground Seven: Ineffective assistance of counsel
[trial counsel] what was meant by the term reversible error and [trial counsel] said
it didn’t mean anything of significance.
.

.

.

.

.

.

Ground Eight: The prosecution team withheld information of Mark McCargo’s
arrest after multiple request{s] concerning co-conspirator’s involvement with him.
(See Pet’r’s July 13, 2016 Am.

§

2255 Mot., ECF No. 7.)’

Ground Nine: Petitioner’s base offense level was [improperly] enhanced for a
semiautomatic firearm that is [capable] of accepting a large capacity magazine and
having two controlled substance offenses in 2k2.l(a)(1)
.

.

Ground Ten: The definition of the federal and state drug statutes, alternative means
doesn’t apply to New Jersey controlled substance statutes, and violate federal law
to use [unidentical] language to enhance [P]etitioner with 2k2.l(a)(l) enhancements
violates due process.
Ground Eleven: [Petitioner] was enhanced for conduct that is not included in the
guidelines definition of a [‘jcontrolled substance offense” under New Jersey [law]
(See Pet’r’s Jan. 4, 2017 Mot. to Supp. Pleading, ECF No. 10.)

While Petitioner’s July 13, 2016 amended § 2255 motion also includes a ninth ground for
“prosecutorial misconduct and (a] speedy trial violation” (see ECF No. 7 at PagelD: 77),
Petitioner’s March 22, 2018 Memorandum of Law makes clear that he has abandoned pursuit of
that claim. (See ECF No. 17 at PagelD: 131 (“The government has also added a Ninth Claim [],
stating that [Petitioner’s] rights were violated during his original calendar set for a speedy trial.
The government is trying to use a claim that is NOT on [Petitioner’s] revised § 2255
application[.]”) (emphasis in original).)
6

The Government filed its answer to the foregoing claims on February 26, 2018. (ECF
No. 16.) Petitioner filed a reply on or about March 22, 2018. (ECF No. 17.)
III. DISCUSSION
A. Legal Standard
A prisoner in federal custody under sentence of a federal court “may move the court
which imposed the sentence to vacate, set aside or correct the sentence” upon three grounds: (1)
“that the sentence was imposed in violation of the Constitution or laws of the United States[;]”
(2) “that the court was without jurisdiction to impose such sentence[;j” or (3) “that the sentence
was in excess of the maximum authorized by law.” 28 U.S.C.

§ 2255(a).

A criminal defendant bears the burden of establishing entitlement to
United States v. Davies, 394 F.3d 182, 189 (3d Cir. 2005). Because a

§

§ 2255

2255 relief. See
motion to vacate is

a collateral attack on a sentence, a criminal defendant “must clear a significantly higher hurdle
than would exist on direct appeal.” United States v. frady, 456 U.S. 152, 166 (1982); United
States v. Travillion, 759 F.3d 281, 228 (3d Cir. 2014). In considering a motion to vacate a
defendant’s sentence, “the court must accept the truth of the movant’s factual allegations unless
they are clearly frivolous on the basis of the existing record.” United States v. Booth, 432 F.3d
542, 545 (3d Cir. 2005) (internal quotation marks and citation omitted).
The habeas statute requires an evidentiary hearing “unless the motion and files and
records of the case conclusively show that the prisoner is entitled to no reliefi.]” See 28 U.S.C.
2255(b); Booth, 432 F.3d at 545-46. Where the record, as supplemented by the trial judge’s
personal knowledge, conclusively negates the factual predicates asserted by a petitioner or
indicates that petitioner is not entitled to relief as a matter of law, no hearing is required.
Government of Virgin Islands v. Nicholas, 759 F.2d 1073, 1075 (3d Cir. 1925); see also United

7

§

States v. Tuyen Quang Pham, 587 F. App’x 6, $ (3d Cir. 2014); Booth, 432 f.3d at 546
(evidentiary hearing only necessary where the petitioner’s claims are not conclusively resolved
by the record). For the reasons explained below, the record establishes that Petitioner is not
entitled to relief as a matter of law. An evidentiary hearing is therefore not required.
B. Petitioner’s Substantive Habeas Claims
1. Petitioner’s Mat!, is Claims

In Grounds Nine, Ten, and Eleven, Petitioner challenges the propriety of the purported
sentencing enhancements he believes the Court imposed in light of his two prior state felony
drug convictions. (See ECF No. 10.) Petitioner makes clear that all three of these Grounds are
premised on the Supreme Court’s decision in United States v. Mathis, 136 5. Ct. 2243 (2016).
(See Pet’r’s Mar. 22, 2018 Memo. of Law, ECF No. 17 at PagelD: 132.) These claims appear to
be rooted in Petitioner’s mistaken belief that he was designated as a career offender under United
States Sentencing Guideline (“USSG”)

§ 4B1.1

based on those two prior offenses. While the

Court did of course account for Petitioner’s criminal history in imposing an appropriate sentence,
the record makes clear that the 120-month sentence imposed by this Court was in no way based
on the career offender provision, USSG §4B1.1, implicated by Mathis. (See, generally, Aug. 28,
2013 Presentence Investigation Report; Sept. 18, 2013 Sentencing Tr., Criminal Docket at ECF
No. 81.) Moreover, the 120-month sentence Petitioner received fell well below the 188-month to
235-month range recommended under the USSG. (See Id.) As such, Grounds Nine, Ten, and
Eleven do not entitle Petitioner to habeas relief.
2. Petitioner’s Withholding of Evidence Claims

Grounds One, Two, Three, Four, and Eight all arise out of Petitioner’s ongoing belief that
the Government impermissibly withheld evidence and information from him. More specifically,

8

Petitioner claims that the Governnent was in possession of, and refused to produce: (1)
audio/visual recordings it obtained from the covert surveillance equipment worn by Mr.
Trottman (see

2255 Mot. at Grounds One, Two and Four); (ii) information pertaining to the

§

relocation of Mr. Trottman to Petitioner’s street of residence (Id. at Ground Three); and (iii)
infoniiation about the arrest of Mark McCargo. (Id. at Ground Eight.) Mr. McCargo is a
criminal defendant who admitted to this Court that on July 1, 2010, he
co-conspirators, but not Petitioner

—

—

along with Petitioner’s

participated in the sale of a 12 gauge Mossberg Maverick 8$

shotgun and a .22 caliber Remington 550-1 semi-automatic rifle to Sydney Trottman. (See Apr.
24, 2012 Plea Tr. 11-12, ECF No. 12 in United States v. McCargo, Docket No. 12-cr-277.)
Notably, Mr. McCargo disavowed knowing Petitioner during that plea colloquy. (Id. at 10-11.)
a. Petitioner’s Withholding of Evidence Claims Are Procedurally Defaulted
Initially, the Court notes that Grounds One, Two, Three, F our, and Eight all appear to be
procedurally defaulted because none of them were asserted on direct appeal. See Nicholas, 759
f.2d at 1074 (3d Cir. 1985) (as a general matter, a motion under 28 U.S.C.

§ 2255 cannot be

used as a substitute for a direct appeal). Indeed, with the exception of ineffective assistance of
counsel claims, a petitioner is typically barred from collaterally attacking his conviction or
sentence using issues that could have been, but were not, brought on direct appeal. See frady,
456 U.S. at 162-63. To overcome that bar, “a convicted defendant must show both (1) cause
excusing his

.

.

.

default, and (2) actual prejudice resulting from the errors of which he

complains.” Id. at 167-68 (internal quotations omitted). If a petitioner falls to show either cause
or prejudice, the claims at issue will be considered defaulted and thus denied. See, e.g., United
States v. Calhoun, 600 F. App’x $42, $45 n.2 (3d Cir. 2015) (petitioner who failed to raise a
claim on direct appeal “defaulted it”); United States v. Thomas, 286 F. App’x 779, 781 n.2 (3d

9

Cir. 200$) (“This issue could have been and should have been raised on direct appeal, but was
not, and is waived.”); Thomas v. United States, No. 09-5339, 2016 WL 3129614, at *3 (D.N.J.
June 1, 2016) (enforcing procedural default in a

§ 2255 habeas matter when petitioner failed to

raise claims on direct appeal); Massaro v. United States, 538 U.S. 500, 504 (2003) (ineffective
assistance of counsel claims “may be brought in a collateral proceeding under

§ 2255, whether or

not the petitioner could have raised the claim on direct appeal.”); Davies, 394 f.3d at 18$ (same).
Here, Petitioner has failed to demonstrate cause and prejudice in a manner sufficient to overcome
this procedural bar, and the Court therefore finds that Grounds One, Two, Three, four, and Eight
are procedurally defaulted. Moreover, as discussed infra, these claims are also substantively
without merit.
b. The Record Fails to Show That the Government Improperly Withheld Evidence

In Grounds One, Two and four, Petitioner claims that the Government refused to provide
him with copies of certain audio/visual recordings produced using the covert surveillance
recording equipment worn by confidential informant Sydney Trottman. (See Am. Pet. at
Grounds One, Two and four). Petitioner avers that the Government created DVD recordings
from that equipment for the dates of July 15, 16, and 17, 2013, as well as and during certain
additional debriefing sessions between Mr. Trottman and unspecified Government agents on
unspecified dates. The record fails to in any way provide factual support for these assertions.
Prior to trial, on January 7, 2013, Paul J. Casteleiro
serving as Petitioner’s counsel

—

—

who at that time was still formally

filed an omnibus motion requesting, inter a/ia, “copies of all

videos or DVDs made by the confidential informant [Sidney Trottman] during the course of the
investigation of the alleged conspiracy involving [Petitioner] and his co-conspirators[.]” (See
Criminal Docket at ECF No. 42, PagelD: 67.) At the Court’s March 12, 2013 pre-trial hearing

10

on Petitioner’s omnibus motion, the parties informed the Court of the existence of thirteen DVDs
produced from the covert surveillance equipment worn by Mr. Trottman. (Mar. 12, 2013 Hr’g
Tr. 11-12, Criminal Docket at ECF No. $2.) That there were only thirteen DVDs produced is
supported by Agent Kararninas’s trial testimony that the Government produced DVDs only when
Mr. Trottman actually purchased illegal firearms. (June 26, 2013 Trial Tr. 11.)
During the March 12th pre-trial hearing, Mr. Casteleiro indicated that Petitioner
nonetheless believed “that there may be other DVDs outside of the nine of the thirteen that the
Government’s disclosed.” (Mar. 12, 2013 Hr’g Tr. 12.) In response, the Government
represented to the Court that it had “provided [Petitioner] with each of the DVDs that [Petitioner]
is on, as well as the DVDs that any of his co-conspirators are on” and that it would also make the
remainder of those thirteen DVDs available for Petitioner to view. (Id. at 32.) Based on the
Government’s representations at the March 12th hearing, the Court was

—

and remains

—

satisfied

that the Government gave “[Petitioner] all the DVDs [in its possession].” (Id. at 24.) During
sentencing, Petitioner appeared to himself acknowledge that no other DVDs existed. (See Sept.
18, 2013 Sentencing Tr. 10 (Petitioner noting that he “really had a thought that [there] was more
evidence, which [there] obviously wasn’t.”).) As such, the underlying factual allegations upon
which Grounds One, Two, and Four are premised, i.e., that there are additional audio/visual
recordings which the Government never produced, is controverted by the evidence of record.
The factual assertions underlying Petitioner’s Ground Three and Ground Eight claims
likewise appear to lack any record support. Indeed, Petitioner fails to point to any record
evidence

—

and the Court is not independently aware of any

—

which supports his otherwise

unsubstantiated factual assertions that the Government improperly withheld information about:

11

(i) the arrest of Mark McCargo (see

§ 2255 Mot. at Ground Eight); and (ii) the relocation of Mr.

Trottman to the same street Petitioner lived on. ($ee Id. at Ground Three.)
c. Even if the Record Provided Support for the Factual Assertions Underlying
Petitioner’s Ground One, Two, Three, Four, and Eight Arguments, Those
Claims Would Still Fail to Provide a Basis to Grant Habeas Relief

In Brady v. Maryland, 373 U.S. 83 (1963), the United States Supreme Court held “that
suppression by the prosecution of evidence favorable to an accused upon request violates due
process where the evidence is material either to guilt or to punishment, irrespective of the good
faith or bad faith of the prosecution.” Id. at $6. Under Brady, the Government bears an
“affirmative duty to disclose [material] evidence favorable to a defendant.” Kyles v. Whitley,
514 US. 419, 432 (1995) (citing Brady, 373 U.S. $3). “[E]vidence is material only if there is a
reasonable probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682 (1985). In
Strickler v. Greene, 527 U.S. 263, 2$ 1-82 (1999), the Supreme Court clarified that “[t]here are
three components of a true Brady violation: The evidence at issue must be favorable to the
accused, either because it is exculpatory, or because it is impeaching; that evidence must have
been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.”
Id. at 281-82; see also Fry v. Filler, 551 U.S. 112, 116 (2007) (errors of even a constitutional
dimension will be considered harmless and thus will not warrant habeas relief “unless [the
alleged constitutional error] had a substantial and injurious effect or influence in determining the
jury’s verdict.”).
In this case, the evidence introduced at trial inculpating Petitioner of the crimes for which
he was tried was overwhelming. Even if the record provided support for Petitioner’s otherwise
unfounded assertion that the Government withheld audio/visual recordings which are relevant to

12

his case

—

and it does not

—

Grounds One, Two, and Four of Petitioner’s

which are based on this factually unsupported premise

—

§ 2255 Motion each of
—

would fail to provide a basis for the

Court to grant Petitioner habeas relief because it is clear that the existence of such evidence
would not have impacted the outcome of Petitioner’s trial to a reasonable probability. Bagley,
473 U.S. at 682.
The same can be said of Petitioner’s claims that the Government improperly withheld
information about: (i) the arrest of Mark McCargo (see

§ 2255 Mot. at Ground Eight) and; (ii)

the relocation of Sydney Trottman to Petitioner’s street. (Id. at Ground Three.) Petitioner fails
to cite to any persuasive legal authority which suggests that the Government was required to
disclose this seemingly non-material information to him or that his constitutional rights were
violated by the Government’s failure to divulge that information. Instead, Grounds Three and
Eight

—

like many of the other claims raised in his

§ 2255 Motion appear to be rooted in
—

Petitioner’s legally incorrect understanding that because he sold guns to Sydney Trottman on
three separate occasions only after being implored to do so by Mr. Trottman

—

who himself was

attempting to purchase those weapons for the purpose of securing criminal convictions

—

Petitioner should have been acquitted of the specific gun trafficking and felon in possession
charges for which he stood trial. Petitioner’s be1ief however, ignores the reality that regardless
of Mr. Trottman’s motives for purchasing those weapons, the evidence at trial demonstrated that
Petitioner sold three guns to Mr. Trottman believing that those guns were being sold for use in a
Jamaican drug war. Indeed, the evidence presented at trial demonstrating Petitioner’s guilt with
respect to the specific criminal charges set forth in the May 17, 2013 superseding indictment was
overwhelming. Moreover, the jury declined to find that Petitioner was entitled to an entrapment
defense based on the actions taken by Mr. Trottman to foster those sales. Against this backdrop,

13

the Court is unable to understand how the Government’s failure to disclose seemingly immaterial
information about Mr. Trottman’s relocation to Petitioner’s street and about Mr. McCargo’s
arrest for selling firearms to Mr. Trottman after Petitioner himself sold three guns to Mr.
Trottman could have altered the outcome of Petitioner’s trial. Bagley, 473 U.S. at 682. For the
reasons detailed above, Grounds One, Two, Three, Four, and Eight fail to provide a basis for the
Court to grant Petitioner habeas relief
3. Petitioner’s Ineffective Assistance of Counsel Claims

Petitioner asserts that Paul J. Casteleiro, Esq. was ineffective because he: (i) failed to
investigate and request audio/visual footage of debriefings between Mr. Trottman and
unidentified Government agents

( 2255 Mot. at Ground five); (ii) failed to call Mark McCargo

to testify (Id. at Ground Six); and (iii) told Petitioner that the term reversible error “didn’t mean
anything of significance.” (Id. at Ground Seven.)
a. Standard Governing Petitioner’s Ineffective Assistance of Counsel Claims

Claims of ineffective assistance of counsel are governed by the two-prong test set forth in
Strickland v. Washington, 466 U.S. 66$ (1984). To make out such a claim under Strickland, a
petitioner first “must 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). Second, a petitioner must additionally demonstrate 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.

14

With respect to evaluating whether counsel’s performance was deficient under
Strickland, the “proper standard.

.

.

is that of ‘reasonably effective assistance.” Jacobs v. Horn,

395 F.3d 92, 102 (3d Cir. 2005) (quoting Strickland, 466 U.S. at 687-88). A petitioner asserting
ineffective assistance must therefore show that counsel’s representation “fell below an objective
standard of reasonableness” 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 [and] must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689.
Again, the habeas petitioner “bears the burden of proving that counsel’s representation was
unreasonable under prevailing professional norms and that the challenged action was not sound
at
strategy.” Kimmelman v. Morrison, 477 U.S. 365, 381 (1986) (citing Strickland, 466 U.S.
688-89).
Under Strickland, a habeas petitioner must also affirmatively demonstrate that counsel’s
deficient performance prejudiced his defense. Strickland, 466 U.S. at 692-93. “It is not enough
for the [petitioner] to show that the errors had some conceivable effect on the outcome of the
proceeding.” Id. at 693. A petitioner must instead demonstrate that “there is a reasonable
have
probability that, but for counsel’s unprofessional errors, the result of the proceeding would
in
been different. A reasonable probability is a probability sufficient to undermine confidence
the outcome.” Id. at 694; see also Shedrick, 493 F.3d at 299. “It is firmly established that a
court must consider the strength of the evidence in deciding whether the Strickland prejudice
Buehl
prong has been satisfied.” Saranchak v. Beard, 616 f.3d 292, 311 (3d Cir. 2010) (quoting
was
v. Vaughn, 166 f.3d 163, 172 (3d Cir. 1999)). When the evidence ofa petitioner’s guilt
established by overwhelming evidence

—

as was the case at Petitioner’s trial

15

—

a petitioner usually

caimot show that he was prejudiced by counsel’s mistakes unless he can provide “a considerable
amount of new, strong evidence to undermine” his conviction. Id.; 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] caimot show he was prejudiced”). furthermore, when a “petition contains no
factual matter regarding Strickland’s prejudice prong, and [only provides]
conclusion[s]

..

.

.

.

.

unadorned legal

without supporting factual allegations,” the petition is insufficient to warrant

even an evidentiary hearing, let alone habeas relief. See Palmer v. Hendricks, 592 F.3d 386, 395
(3d Cir. 2010). for the reasons detailed below, Petitioner’s ineffective assistance of counsel
claims fail to provide a basis for the Court to award habeas relief to Petitioner.
b. Counsel’s Purported Failure to Call Mark McCargo to Testify

In Ground Six, Petitioner claims that Mr. Casteleiro was ineffective because he failed to
call Mark McCargo to testify at trial. This assertion ignores several key facts of record. First,
Petitioner was acting as his own attorney during the portion of the trial where the defense would
call its own witnesses. Petitioner, then proceeding pro Se, declined to call any witnesses. (See
June 27, 2013 Trial Tr. 134 (“THE COURT: You’re resting, okay. So you what that means,
that’s the end of the case as far as the taking of testimony. You understand that? THE
DEFENDANT: Okay. Yes your Honor.”).) The record makes clear that Petitioner, who was then
representing himself at trial, made the decision to not call any defense witnesses. The Court
therefore takes exception to Petitioner’s efforts to incorrectly attribute Mr. McCargo’s failure to
testify to Mr. Casteleiro.
Second, as noted above, Mark McCargo disavowed knowing Petitioner during his plea
colloquy to this Court in Mr. McCargo’s separate criminal matter. It is therefore entirely unclear
to the Court what testimony could have been elicited from Mr. McCargo during Petitioner’s trial

16

that would have been relevant

—

much less favorable

—

to Petitioner’s defense. This is

particularly true because Petitioner has not submitted an affidavit from Mr. McCargo or any
similar compelling evidence demonstrating the information and facts Mark McCargo would have
testified to had he been called as a witness. See Lewis v. Horn, 581 F.3d 92, 107 (3d Cir.2009)
(faulting habeas petitioner for not presenting any affidavits describing what his alleged alibi
witnesses would have testified about); United States v. Ashimi, 932 F.2d 643, 650 (7th Cir.1991)
(“evidence about the testimony of a putative witness must generally be presented in the form of
actual testimony by the witness or on affidavit.”) (citations omitted). Ultimately, Petitioner has
failed to “make a specific, affirmative showing as to what the missing evidence would have been
and prove that this witness’s testimony would have produced a different result.” Mayfield v.
United States, No. 11-2950, 2012 WL 664806, at *5 (D.N.J. Feb. 29, 2012) (quoting Pate/v.
United States, 19 F.3d 1231 (7th Cir. 1994). In light of the foregoing, the factually inaccurate
and otherwise unsubstantiated claims presented in Ground Six of Petitioner’s

§

2255 Motion do

not entitle Petitioner to habeas relief.
c.

Counsel’s Alleged Response to Petitioner’s Reversible Error Inquiry

In Ground Seven, Petitioner claims that Mr. Casteleiro rendered ineffective assistance
because he informed Petitioner

—

at an unspecified date during unspecified proceedings

that the term reversible error “didn’t mean anything of significance.” This assertion
true

—

—

—

that

even if

fails to provide a basis to award habeas relief under Strickland. There is nothing about this

statement that allows the Court to conclude that Mr. Casteleiro “was not functioning as the
‘counsel’ guaranteed by the Sixth Amendment.” Strickland, 466 U.S. at 687. Such a remark
similarly fails to in any plausible way suggest that Petitioner was “deprive{dj of a fair trial

.

.

whose result is reliable.” Id. Petitioner is therefore not entitled to habeas relief on this claim.

17

d. Counsel’s Purported Failure to Request Audio/Visual Recordings

In Ground Five. Petitioner claims that Mr. Casteleiro was ineffective because he did not
request audio/visual recordings of— and otherwise failed to investigate

—

debriefing sessions

between Mr. Trottman and other unspecified Government agents. Under Strickland, defense
counsel “has a duty to make reasonable investigations or to make a reasonable decision that
makes particular investigations unnecessary.” Strickland, 466 U.S. at 691. “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.” Id. “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.” Travillion, 759
F.3d at 293 n.23 (internal quotations omitted); see also United States v. Gray, $78 F.2d 702, 711
(3d Cir. 1989) (a complete absence of investigation is not a strategic choice made by counsel).
To show prejudice that counsel conducted an incomplete investigation, a habeas petitioner:
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, $8 F.3d 1065, 1073 (D.C. Cir. 1996) (quoting Sullivan v. Fairman, $19
F.2d 1382, 1392 (7th Cir. 1987)); see also United States v. Lathrop, 634 F.3d 931, 939 (7th Cir.
2011) (“the petitioner has the burden of providing the court with specific information as to what
the investigation would have produced.”); accord United States v. Garvin, 270 F. App’x 141,
144 (3d Cir. 2008).
Initially, the Court notes that the facts underlying Petitioner’s Ground Five claims are
wholly contradicted by the evidence of record. Indeed, and as noted above, the record of

18

Petitioner’s criminal proceedings makes clear that Mr. Casteleiro made significant efforts to
obtain copies of all relevant audio/visual recordings produced from the covert surveillance
equipment worn by Mr. Trottman. Mr. Casteleiro requested this evidence in the omnibus motion
he filed with the Court on January 7, 2013. (Criminal Docket at ECF No. 42.) On March 12,
2013, the Court held a hearing during which it devoted significant attention to counsel’s request
for that specific evidence. (See Mar. 12, 2013 Hr’g Tr., Criminal Docket at ECF No. 82.) The
transcript of that hearing makes clear that Mr. Casteleiro, through those efforts, did in fact obtain
all such audio/visual recordings in the Government’s possession. (Id.)
Moreover, the record makes clear that Mr. Casteleiro continued in his pursuit to obtain a
plethora of other information and evidence from the Government that may have been useful to
Petitioner’s defense. (See Pet’r’s May 6, 2013 Mot., Criminal Docket at ECF No. 53; May 27,
2013 Hr’g Tr., Criminal Docket at ECF No. 75.) Tellingly, in spite of the broad scope of
information and documents sought in counsel’s subsequent evidentiary requests, Mr. Casteleiro
never again claimed that the Government failed to disclose additional audio/visual recordings in
the Government’s possession. (Id.) The record therefore clearly demonstrates: (i) that the
Government produced all audio/visual recordings of Mr. Trottman’s debriefings that it had in its
possession; and (ii) that Mr. Casteleiro undertook significant efforts to obtain any and all
evidence

—

including those audio/visual recordings

—

that may have been useful to Petitioner’s

defense.
In light of these undisputed facts, it is unsurprising that Petitioner has in no way
convincingly shown that his defense would have benefitted in ary tangible way through
counsel’s further investigation into additional audio/visual recordings in the Government’s
possession, to the extent any exist at all. Petitioner has similarly presented no reason for this

19

Court to conclude that further investigation would have produced a different result at Petitioner’s
trial. In light of these considerations, Petitioner is not entitled to habeas relief based on the
claims raised in Ground Five.
C. Certificate of Appealability
Pursuant to 2$ U.S.C.

§ 2253(c), a petitioner may not appeal from a final order denying

habeas relief unless he has “made 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). For the reasons expressed above, Petitioner has failed to
make a substantial showing that he was denied a constitutional right. As jurists of reason could
not disagree with this Court’s resolution of Petitioner’s habeas claims, the Court denies
Petitioner a certificate of appealability.
IV.

CONCLUSION

Petitioner’s Motion to Vacate, Correct, or Set Aside his sentence is denied. No certificate
of appealability shall issue. An accompanying Order will b ent ed.

LIAM H.ALLS
U S District Judge

Ite

20