PERRY v. UNITED STATES OF AMERICA
Filing
23
OPINION. Signed by Judge Kevin McNulty on 11/28/2018. (JB, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
GREGORY PERRY,
:
v.
Civ. No. 16-186 (KM)
:
Petitioner,
OPINION
UNITED STATES OF AMERICA,
Respondent.
KEVIN MCNULTY, U.S.D.J.
I.
INTRODUCTION
The petitioner, Gregory Perry, is a federal prisoner proceeding pro se with a motion to
vacate, set aside, or correct his sentence under 28 U.S.C.
§
2255. Mr. Perry has also filed a
motion for an evidentiary hearing and a motion for pro bono counsel. For the following reasons,
Mr. Perry’s
§ 2255 motion will be denied, as will his motion for an evidentiary hearing and his
motion for pro bono counsel.
II.
BACKGROUND
A. The Underlying Criminal Proceeding
The Court of Appeals for the Third Circuit succinctly described the underlying
circumstances as follows:
In May 2008 law enforcement officers determined that Perry was a
suspect in a string of burglaries. On June 10, 2008, officers observed
Perry make furtive movements as he entered a vehicle. The officers
stopped him and he informed them that there was marijuana in the
vehicle. A search of Perryts vehicle revealed, among other things, a
loaded 9 mm handgun, heroin, marijuana, and burglars tools.
United States
i’.
Perry. 460 F, App’x 149, 151 (3d Cir. 2012).
More specifically, on June 10, 2008, Detective James McMorrow and Detective Sergeant
Chris Stefanacci of the Bergen County Prosecutor’s Office were conducting surveillance of Mr.
Perry as part of an ongoing investigation into numerous burglaries that had been committed in
the Englewood, New Jersey area. (DE 7-5, Ex. D, at 1.)1 The detectives saw Mr. Perry approach
a vehicle where he “remove[d] an item from his waistband area and place[d] it in the rear of the
vehicle.” (Id. at 2.) Mr. Perry drove away, and the detectives followed. (Id.) The detectives
later effectuated a traffic stop of Mr. Perry based on the knowledge that he was driving on a
suspended license, and the suspicion that he possessed a handgun. (Id.) Approaching the vehicle,
the detectives identified themselves as law enforcement, instructed Mr. Perry to get out of the
vehicle, and performed a pat down. (Id.) The detectives read Mr. Perry his Miranda rights,
explained that he was stopped due to his suspended license and informed him that he was a
suspect in a burglary investigation. (Id.)
The detectives then asked Mr. Perry what he had placed in the rear of his vehicle, to
which he responded that “the only thing in that car is a bag of dope in the front.” (Id.) Detective
McMorrow understood “dope” to refer to heroin and asked if he could enter the vehicle to
retrieve the substance. (Id.) Mr. Perry first consented to a search of the vehicle, but then refused
to sign the consent to search form. (Id,) Mr. Perry was then placed under arrest for possession of
narcotics and taken to the Paramus office of the Bergen County Prosecutor’s Office. (Id.)
Following the arrest, a warrant was obtained to search Mr. Perry’s vehicle. (DE 7-3 & 74, Exs. B, C). The search of Mr. Perry’s vehicle revealed, imer alia, substances suspected to be
marijuana and heroin and a loaded handgun inside a backpack in the rear of the vehicle. (DE 7-6,
unless otherwise specified, refers to docket entries in this § 2255 matter. Entries in the
DE
underlying criminal case are designated Crim. No. 09-80, DE
—,
—
2
Ex. B, at 2.)
In February 2009, Mr. Perry was charged in a one-count indictment of felony possession
of a firearm, in violation of 18 U.S.C.
§
922(g)(1). United States
i
Peny,
Crim. No. 09-80, DE
1. On May 25, 2010, Mr. Perry pled guilty pursuant to a plea agreement. Crim. No. 09-80, DE
19. On November 23, 2010, Judge Dennis M. Cavanaugh sentenced Mr. Perry to a ninety-month
term of imprisonment. Crim. No. 09-80, DE 24.
Mr. Perry timely filed an appeal of his sentence, arguing that Judge Cavanaugh abused
his discretion in granting the Government’s request for a significant upward departure based on
Mr. Perry’s criminal history. Crim. No. 09-80, DE 25. On February 1, 2012, the Third Circuit
affirmed the judgment of the District Court. Perry, 460 F. App’x 149.
B. The
§ 2255 Motion
On January 6, 2016, Mr. Perry, acting pro Se, filed a
§ 2255
motion to vacate, set aside,
or correct his sentence (the “petition”). (DE I.) Judge Cavanaugh having retired, the matter was
assigned to me. Mr. Perry contends that his counsel provided ineffective assistance by not filing
a motion to suppress the evidence seized from his car. (Id. at 5.) The handgun found in his
vehicle, he says, was “fruit of the poisonous tree” because there was no probable cause to arrest
him. (Id) Mr. Perry acknowledges that the petition was filed more than one year after his
judgment of conviction became final but asserts that the one-year deadline to file his motion, see
28 U.S.C.
§ 2255(0(1),
should be relaxed because he was not timely informed of the Third
Circuit’s decision affirming his conviction on direct appeal (a key event in starting the running of
the one-year limitations period). (DE 1-1,
¶ 9—10.)
In opposition to the petition, the United States argues that Mr. Perry’s motion is barred by
the limitations period for
§ 2255
motions and that he has failed to demonstrate any reason why
3
that deadline should be equitably tolled. (DE 7, at 6—9.) Even if his motion were to be deemed
timely, the United States argues, he has failed to show that counsel’s performance was deficient
or that Mr. Perry suffered any prejudice as a result. (Id. at 10—15.) Specifically, the government
contends that there was no legal or factual basis on which to argue that the evidence should be
suppressed, (Id. at 13—14.) Relatedly, there was no prejudice because a motion, if it had been
filed, surely would have been denied on the merits. (Id. at 15.)
In addition to the
2255 petition, Mr. Perry has also filed a motion to appoint pro bono
counsel (DE 6), and a motion to conduct an evidentiary hearing, (DE 8). In his motion for an
evidentiary hearing, Mr. Perry responds to Respondent’s assertion that the petition is untimely.
(DE 8-1,
fl 2—5.)
Mr. Perry argues that the Clerk of the Third Circuit’s failure to timely alert
him of the affirmance of his conviction is an extraordinary circumstance that warrants equitable
tolling of the time limitation for the filing of a
§ 2255
motion. (Id.; DE 12, at 2—3.)
Mr. Perry further argues that an evidentiary hearing should be conducted because his
petition presents a mixed question of fact and law. (DE 8-1. ¶‘1 7—8.) In that motion, Mr. Perry
asserts a supplemental ground for relief: from the inception of the traffic stop, he says, the
officers brandished their weapons, placing him under a defacto arrest. (DE 12, at 3—4).
Respondent replies that this additional claim is both untimely and procedurally improper because
it was not raised in the initial petition. (DE 11, at 6.) Respondent asserts that Mr. Perry is not
entitled to an evidentiary hearing because his claims lack merit and do not meet the Strickland
standard for ineffective assistance of counsel. (DE 11, at 9—12.)
III.
LEGAL STANDARD
To grant relief on a federal prisoner’s motion to vacate, set aside or correct a sentence
under 28 U.S.C.
§
2255, the Court must find that “there has been such a denial or infringement of
4
the constitutional rights of the prisoner as to render judgment vulnerable to collateral attack,” 28
U.S.C.
§ 2255(b). “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 based on the
existing record.” United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005) (quoting Gov’t of VI.
v. Forte, 865 F.2d 59, 62 (3d Cir. 1989)). A district court “is required to hold an evidentiary
hearing ‘unless the motion and files and records of the case show conclusively that the movant is
not entitled to relief.” Id. (quoting Forte, 865 F.2d at 62).
I interpret Mr. Perry’s contentions as components of an overall claim of ineffective
assistance of trial counsel. The Sixth Amendment guarantees defendants effective assistance of
counsel during critical portions of a criminal proceeding. See Lafler v. Cooper, 566 U.S. 156,
165 (2012). The Supreme Court, inStricklandv. Washington, 466 U.S. 668 (1984), articulated a
two-prong burden for demonstrating the ineffectiveness of counsel: (1) that, considering all
relevant circumstances, counsel’s performance fell below an objective standard of
reasonableness and (2) that the petitioner suffered prejudice as a result. Id. at 687—96; see also
Grant v. Locket!, 709 F.3d 224, 232 (3d Cir. 2013).
In addressing the first prong, the petitioner “must identify the acts or omissions of
counsel that are alleged not to have been the result of reasonable professional judgment.”
Strickland, 466 U.S. at 690. Judicial scrutiny of counsel’s conduct must be “highly deferential.”
See
it!.
at 689. “[Cjounsel is strongly presumed to have rendered adequate assistance and made
all significant decisions in the exercise of reasonable professional judgment.” It!. at 690. The
reviewing court must make every effort to “eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time.” Id. at 689. Counsel’s strategic choices made after thorough
)
investigation of the relevant law and facts are “virtually unchallengeable,” while choices made
with less than entirely thorough investigation “are reasonable precisely to the extent that
reasonable professional judgments support the limitations on investigation.” Id, at 690—91; see
Vaughn, 445 F.3d 671, 682 (3d Cir. 2006); Gov’t of V.1 v. Weathenvax, 77 F.3d
also Rolan
1425, 1432 (3d Cir. 1996). Whether counsel acted in a manner that was deficient is measured by
a standard of “reasonableness under prevailing professional norms.” Strickland, 466 U.S. at
687—88; see also Wiggins v. Smith, 539 U.S. 510, 521 (2003).
The second prong of the Strickland test requires the petitioner to affirmatively prove
resulting prejudice. See 466 U.S at 693. Prejudice is generally found where “there is a reasonable
probability that, but for counsels unprofessional errors, the result of the proceeding would have
been different.” Id. at 694. A reasonable probability is “a probability sufficient to undermine
confidence in the outcome.” Id.; see also McBride v. Superintendent, Sd Houtzdale, 687 F.3d
92, 102 n.1 I (3d Cir. 2012). “This does not require that counsel’s actions more likely than not
altered the outcome, but the difference between Strickland’s prejudice standard and a moreprobable-than-not standard is slight and matters only in the rarest case. The likelihood of a
different result must be substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86,
111—12 (2011) (internaL quotation marks and citation omitted).
Strickland made it clear that a court may apply the two prongs in whichever order it sees
fit. 466 U.S. at 697 (“[A] court need not determine whether counsel’s performance was deficient
before examining the prejudice suffered by the defendant as a result of the alleged deficiencies
If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice.
.
.
that course should be followed.”); see also Rainey v. Varner, 603 F.3d 189, 201 (3d
Cir. 2010).
6
DISCUSSION
IV.
A. Timclincss
Under 2$ U.S.C.
§ 2255W(l), a §
2255 motion must be filed within one year after the
judgment of conviction becomes final. A judgment of conviction becomes final on the later of
“0) the date on which the Supreme Court affirms the conviction and sentence on the merits or
denies the defendant’s timely filed petition for certiorari, or (2) the date on which the defendant’s
time for filing a timely petition for certiorari review expires.” Kapral v. Unitecl&ares, 166 F.3d
565, 577 (3d Cir. 1999). The Third Circuit entered its decision affirming the judgment of
conviction on February 1,2012. Peny. 460 F. App’x 149. Because Mr. Perry did not petition the
Supreme Court for certiorari, the judgment of conviction became final on May 1,2012, ninety
days after the Third Circuit issued its ruling. Kapral, 166 F.3d at 577; U.S. Supreme Court Rule
13. Mr. Perry did not file this petition until January 6,2016. Accordingly, unless the limitations
period is tolled, his petition is time-bared.
The limitations period for the filing of a
§ 2255
motion may be equitably tolled in
extraordinary cases. Ross v. Varano, 712 F.3d 784, 798—99 (3d Cir. 2013); see also Miller v. N.J
State Dep? of Corrs., 145 F.3d 616, 619 n. I (3d Cir. 1998). The Supreme Court has explained
that “[g]enerally. a litigant seeking equitable tolling [of the AEDPA’s one-year statute of
limitations] bears the burden of establishing two elements: (1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circumstance stood in his way.” Ross, 712 F.3d
at 798 (alterations in original) (quoting Pace
i’.
DiGugliehno, 544 U.S. 408, 418 (2005)). In
considering these factors, the Court must “exercise judgment in light of prior precedent, but with
awareness of the fact that specific circumstances, often hard to predict in advance, could warrant
special treatment in an appropriate case.” Id. at 799 (quoting Holland v. Florida, 560 U.S. 631,
7
650 (2010)). That said, the doctrine is to be sparingly applied. Id.
Mr. Perry argues that the limitations period should be equitably tolled because he did not
learn of the Third Circuit’s decision affirming his conviction on direct appeal until December 23,
2015, nearly four years after it was rendered. This delay would not support equitable tolling, both
because Mr. Perry has not demonstrated that he exercised reasonable diligence, and because it
does not constitute an extraordinary circumstance.
First, Mr. Perry has not demonstrated that he exercised reasonable diligence in pursuing
his rights. See id. (“The diligence required for equitable tolling purposes is reasonable diligence,
not maximum, extreme, or exceptional diligence.”). As noted, Mr. Perry acknowledges that some
three years and ten months elapsed before he learned of the Third Circuit affirmance.
Before the Third Circuit, Mr. Perry was initially represented by counsel, but Perry sought
and was granted leave to proceed pro se. (DE 7-16) Mr. Perry’s address of record on appeal, as
he acknowledges. was the Morris County Correctional Facility. The Third Circuit Opinion was
mailed to him there, at the Morris facility, on February 1, 2012, the date it was rendered. (DE 1-1
¶ 8;
DE 1-2 at 15.) Perry states that he was transferred between institutions, however, and that
by the time the panel issued its opinion, he was housed at the Essex County Correctional Facility.
(Id.) Mr. Perry blames the transfers for his failure to receive notification of the Third Circuit’s
decision. Indeed, there was a further transfer; at the time he received a copy of the Third
Circuit’s decision on December 23, 2015, he was confined at the Northern State Correctional
facility. He does not slate precisely how he received the documents, however, or explain why he
could not have received them by the same means at some earlier time. (DE 1-I
¶ 9)2
2
It appears from the envelope, however, that the Clerk for the Court of Appeals mailed the
documents to Northern State Prison on December 1 8, 201 5. (DE 1-2 at 13—14) The mailing of a four8
Mr. Perry does not contend that he ever provided the Clerk of the Court with an updated
address. (Id.) Rather, he cites Fed. R, App. P. 36(b), which requires the Clerk to serve on all
parties a copy of the court’s opinion on the date it is entered. Contrary to Mr. Perry’s argument,
that Rule does not obligate the clerk to perform independent research in each case to ascertain
whether the address of record supplied by a party is accurate. Indeed, no such rule would be
practicable.3 Having elected to proceed pro Se, Mr. Perry took on the burden of informing the
Court of his current contact information. His failure to update his mailing address upon being
transferred to a different facility demonstrates that he did not exercise reasonable diligence to
ensure that he received notice of the Third Circuit’s decision by mail.
Mr. Perry alleges that he sent numerous letters to the Third Circuit requesting a status
update on his appeal, but that those letters vent unanswered. The appellate docket does not
indicate that any such letters were received by the Court. (See DE 7, Ex. L.) Nor does Mr. Perry
explain why, if his letters were not received or answered, he reasonably “presumed” (DE 1-1
¶ 9)
for nearly four years that no decision had been rendered.
I note, by the way, that the Clerk is also obligated to post all opinions on the court’s
internet web site. (3d Cir. Local R. 36.1.) I located the opinion easily on the web site, without
using legal research tools. http://www2.ca3.uscourtsazov/opinarch!l 04598np.pdL Mr. Perry does
not aJiege that he pursued this alternative avenue when his Jetters allegedly went unanswered.
year-old decision to a particular prison surely must have occurred in response to a request by the
defendant or someone acting on his behalf. The record, however, is silent.
Mr. Perry’s argues that Federal Rule of Appellate Procedure 36(b) requires the Clerk to “pursue
available avenues to properly noti& [litigantsJ of the Court’sjudgment.” (DE 8-I, ¶ 4.) That additional
duty’ is not supported by the text of the Rule, which states that “On the date when judgment is entered, the
clerk must serve on all parties a copy of the opinion—or the judgment, if no opinion was written—and a
notice of the date when the judgment was entered.” Fed. R. App. P.36(b). That duty’ is exhausted by
service of the opinion on a party at its address of record.
9
Second, Mr. Perry’s late receipt of the Third Circuit’s decision does not constitute an
extraordinary circumstance. Extraordinary circumstances may be found where (1) the respondent
has actively misled the petitioner, (2) if the petitioner “has in some extraordinary way been
prevented from asserting his rights,” or (3) where the petitioner has timely asserted his right in
the wrong forum. See Fahy
i’.
Horn, 240 F.3d 239, 244 (3d Cir. 2001) (quoting Jones v Morton.
195 F.3d 153, 159 (3d Cir. 1999)). “In non-capital cases, attorney error, miscalculation,
inadequate research, or other mistakes have not been found to rise to the ‘extraordinary’
circumstances required for equitable tolling.” Id. The alleged delay here did not result from any
extraordinary circumstance. Mr. Perry would not be entitled to the extraordinary remedy of
equitable tolling.
B. Ineffective Assistance of Counsel
In the alternative, however, I will briefly address the merits of Mr. Perry’s
§
2255
petition. Mr. Perry contends that his counsel was ineffective because he failed to file a motion to
suppress the handgun that was found during the search of his vehicle. In his
§
2255 petition, Mr.
Perry asserts that his counsel should have moved to suppress the handgun because there was no
probable cause to arrest him. In his motion for an evidentiary hearing, Mr. Perry contends that
his counsel should have also flied a motion to suppress the handgun because officers brandished
their weapons at him during the traffic stop, rendering it a defacro arrest.
Mr. Perry’s ineffective assistance claims, if entertained here. would fail under either the
deficient-performance or prejudice prong of Strickland. “Where a defense counsel’s failure to
litigate a Fourth Amendment claim competently is the principal allegation of ineffectiveness, the
defendant must also prove that his Fourth Amendment claim is meritorious and that there is a
reasonable probability that the verdict would have been different absent the excludable evidence
10
in order to demonstrate actual prejudice.” Kimnielman v. Morrison, 477 U.S. 365, 375 (1986).
Mr. Perry has not demonstrated that his Fourth Amendment claims are meritorious.
First, the record demonstrates that there was probable cause to arrest Mr. Perry. Under
federal law,4 “probable cause to arrest exists when the facts and circumstances within the
arresting officer’s knowledge are sufficient in themselves to warrant a reasonable person to
believe that an offense has been or is being committed by the person to be arrested.” Dempsey
V.
Bucknell University, 834 F.3d 457, 467 (3d Cir. 2016) (quoting Orsatti v. N.J State Police, 71
F.3d 480, 483 (3d Cir. 1995)). Here, probable cause arose, at the latest, when Mr. Perry admitted
(following Miranda warnings) that there was a “bag of dope” in his vehicle, and possibly before.
Detective McMorrow vaLidly arrested Mr. Perry for possession of a controlled substance.
At any rate, the contention that the seizure of the handgun was a fruit of the illegal arrest
is not logical. The arrest was based on the officers’ observations, culminating in Perry’s
statement that there was dope in the car. The officers did not search the car incident to the arrest,
and the search did not depend on the arrest as such. When Perry refused consent, the officers
Mr. Perry argues that because he was arrested by state law enforcement officers, New Jersey law
must govern my analysis of his Fourth Amendment claims. (DE 12, at 4.) A state officer’s authority to
arrest is, of course, confined by state law, see United States v. Di Re, 332 U.S. 582, 68 S. Ct. 222 (1948),
but that is not the end of the Fourth Amendment analysis. The issue typically comes up in relation to
evidence seized incident to arrest, where the arrest per se, is the justification for the search. Even there,
however, the Fourth Amendment governs suppression issues. See Virginia i’. Moore, 553 U.S. 164, 128 S.
Ct. 159% (2008) (evidence seized incident to arrest not suppressed, although the traffic offense was not an
arrestable one under state law). At any rate, as for the defacto arrest, Perry points to no relevant
distinction between state and federal law, and he cites both.
Generally, suppression issues in federal criminal cases hinge on “federal, rather than state law.
[citations omittedi. Thus evidence obtained in accordance with federal law is admissible in federal
court—even though it was obtained by state officers in violation of state law.” United States Rickus,
737 F.2d 360, 363—64 (3d Cir. 1984). See also United States v. Williams, 570 F. App’x 137, 141—42 (3d
Cir. 2014) (“We have held that evidence obtained in accordance with federal law is admissible in federal
court even though it was obtained by state officers in violation of state law. [citing Rickus, supra).
Accordingly, the validity of the search warrant will be tested under federal law—the Fourth
Amendment.”). Mr. Perry’s counsel would reasonably have understood that to succeed, a motion to
suppress would have needed to demonstrate a violation of federal standards.
11
applied for and obtained a search warrant for the car. (DE 7-3, 7-4) That search warrant was not
based on the arrest, or facts developed as a result of the arrest. Rather, the underlying affidavit
recites the background investigation of residential burglaries; an informant’s tip that Perry was
responsible for them; Perry’s criminal record of convictions for burglary and violent crimes
involving firearms; the officers’ observations on surveillance, described above; the traffic stop
based on, inter alia, driving with a revoked license; and Perry’s admission, in response to
questioning about the item removed from his waistband, that he had placed a “bag of dope” in
the car. (DE 7-3) The application for the search warrant which yielded the gun rested on those
facts. In no way did it depend on any facts developed as a result of, or even after, the arrest. For
example, Mr. Perry declined to give any statement when interrogated at headquarters. (DE 7-5)
Mr. Perry’s second. “defacto arrest” argument also fails. In his reply papers on his
motion for an evidentiary hearing, Mr. Perry alleges for the first time that earLy in the traffic stop,
officers brandished their weapons, turning the stop into a defacto arrest.
An investigative stop may constitute (or ripen into) a defacto arrest where the
“circumstances
.
.
.
amount to a show of official authority such that ‘a reasonable person would
have believed he was not free to leave.” Florida
United States
1’.
i&
Royer, 460 U.S. 491, 502 (1985); see also
Dc Castro, 905 F.3d 676, 678—80 (3d Cir. 2018). “Factors tending to indicate a
seizure include ‘the threatening presence of several officers, the display of a weapon by an
officer, some physical touching of the person of the citizen, or the use of language or tone of
voice indicating that compliance with the officer’s request might be compelled.” Dc Castro,
905 F.3d at 679 (quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980)).
The brandishing of weapons, without more, is not sufficient to transform a stop into a de
facto arrest. “There is no per se rule that pointing guns at people.
12
.
.
constitutes an arrest.” Baker
v. Monroe Twp., 50 F.3d 1186, 1193 (3d Cir. 1995); see also United States v. Edwards, 53 F.3d
616, 619 (3d Cir. 1995) (collecting cases). Still, the “use of guns.
.
.
must be justified by the
circumstances.” Baker, 50 F.3d at 1193.
I will assume the correctness of Mr. Perry’s allegation that officers brandished their
weapons during the traffic stop. I nevertheless decline to find that his counsel was deficient in
not raising this argument at a suppression hearing. When the officers made the traffic stop, Mr.
Perry was a suspect in a string of robberies, and was currently on bail for charges of caijacking,
escape, and assault on a police officer. (DE 7_5)5 They had seen him remove something from his
waistband and place it in the car, an object which they could reasonably have feared to be a
handgun. Assuming the officers did unholster their guns, they behaved reasonably to ensure their
own safety during the traffic stop. Accord United States v. Wilson, Cnn. No. 15-94, 2016 WL
2930509, at *4 (D.N.J. May 19, 2016) (finding officer acted reasonably where he approached
defendant with his weapon drawn based on knowledge that defendant was armed with a
handgun); Canales
i
Twp. of Toms River, Civ. No. 11-3159, 2014 WL 683991, at *24 (D.N.J.
Feb. 20, 2014) (finding use of guns by officers was reasonable where vehicle stop was conducted
as part of an investigation for an armed suspect). In the course of that stop, after Miranda
warnings, Perry made the “bag of dope” statement that was the final link in the probable cause
showing that resulted in the issuance of the search warrant. The traffic stop was clearly valid, and
would not have been rendered invalid by the detectives’ justified caution. Because Mr. Perry
cannot show that he would have succeeded in suppressing the handgun under this theory, he
camiot show that his counsel was deficient by not raising it at a suppression motion.
The officers were aware that Mr. Perry had a history of convictions for violent offenses when
they applied for the search warrant. While it is likely that they also knew this at the time they performed
the traffic stop, that is not explicitly stated in the arrest report. (DE 7-5)
13
Failure to raise these weak Fourth Amendment arguments (assuming they could have
been raised in advance of accepting an offer to plead guilty) did not fall outside the wide
boundaries of reasonable professional representation. And because it cannot be shown that they
would have succeeded, prejudice has not been established. So Mr. Perry’s ineffective assistance
claims, even if timely, would not succeed here.
C. Motion for Evidentiary Hearing
Mr. Perry moves separately for an evidentiary hearing because his ineffective assistance
of counsel claim presents “a mixed question of law and fact.” (DE 8-1,
hearing is required on
§
¶7 7-8).
An evidentiary
2255 motion where “the files and records of the care are inconclusive as
to whether the movant is entitled to relief” Booth, 432 F.3d at 546. When determining whether
an evidentiary hearing is required, “the court must accept the truth of the movant’s factual
allegations unless they are clearly frivolous on the basis of the existing record.” Forte, 865 F.2d
at 62. 1 have done so. Here, as discussed in detail above, it is clear from the existing record that
Mr. Perry is not entitled to relief under
§
2255. Regardless of the evidence adduced at such a
proceeding, Mr. Perry would not be entitled to any relief based on the facts and law recited in his
motion. See Booth, 432 F.3d at 545—46. Accordingly, Mr. Perry’s motion for an evidentiary
hearing is denied.
D. Motion for Pro Bono Counsel
Mr. Perry has additionally moved for appointment of pro bono counsel. (DE 6.) He
stresses that the equitable tolling issue in his case is novel and complex, and that he is illequipped to navigate the litigation process. Mr. Perry does not have a right to counsel in habeas
proceedings. See Reese v. Fulcorner, 946 F.2d 247, 263 (3d Cir. 1991), superseded on other
grounds by statute, 28 U.S.C.
§ 2254.
However, 18 U.S.C.
14
§
3006A(a)(2)(B) provides that the
court has discretion to appoint counsel where “the court determines that the interests ofjustice so
require.” In Reese, the Third Circuit explained that in determining whether counsel should be
appointed, a court “must first decide if petitioner has presented a nonfrivolous claim and if the
appointment of counsel will benefit the petitioner and the court. 946 F.2d at 263—64. “Facts
influencing a court’s decision include the complexity of the factual and legal issues in the case,
as well as the pro se petitioner’s ability to investigate the facts and present claims.” Id.
As described above, Mr. Perry has failed to show that he has a meritorious claim under
§
2255. I would add that he has been a reasonably effective advocate on his own behalf. The
appointment of counsel is not warranted in this case.
E. Certificate of Appealability
A certificate of appealability may issue “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2).
“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 the issues presented are
adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327
(2003). Applying this standard, the Court finds that a certificate of appealability shall not issue in
this case.
V.
For the foregoing reasons, Mr. Perry’s
CONCLUSION
§
2255 motion will be denied on the merits, The
Court also denies Mr. Perry’s motions for an evidentiary hearing and pro bono counsel. The
Court declines to grant a certificate of appealability. An appropriate order will be entered.
DATED: November 28, 2018
K yIN MCNULTY
United States District Judge
15
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