BERRIOS v. UNITED STATES OF AMERICA
OPINION filed. Signed by Judge Anne E. Thompson on 12/9/2015. (kas, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civ. No. 12-2471
United States of America,
Michael J. O'Donnell, Esq.
Markowitz O'Donnell, LLP
3131 Princeton Pike
Bldg. 3D, Suite 200
Lawrenceville, NJ 08648
D~C 09 2015
Jacob T. Elberg
Assistant U.S. Attorney
United States Attorney's Office
970 Broad Street
Newark, NJ 07102
WILLIAM T. WALSH
Petitioner, Wilfredo Berrios, a federal prisoner, filed this motion to vacate, correct, or set
aside his sentence pursuant to 28 U.S.C. § 2255. (ECF No. 1.) Respondent United States of
America opposes the petition. (ECF No. 4.) The Court issues the Opinion below based on the
parties' written submissions and the testimony and evidence presented during the July 30, 2015
1. Procedural History
On April 26, 2012, Berrios filed a motion pursuant to 28 U.S.C. § 2255 seeking to vacate
his sentence. (ECF No. 1.) On May 21, 2012, the Court advised Petitioner of his rights under
US. v. Miller, 197 FJd 44 (3d Cir. 1999). (ECF No. 3.) On July 30, 2015, the Court held an
evidentiary hearing addressing Berrios' claim that he received ineffective assistance of counsel
during plea negotiations. (ECF No. 26.) The following Opinion results from a consideration of
the facts developed at that hearing.
From February to March, 2007, Petitioner and two co-defendants were involved in a
series of four "violent armed bank robberies" in New Jersey. See US. v. Herrera-Genao et al.,
419 F. App'x. 288, 290 (3d Cir. 2011). Petitioner met with his co-defendants, Herrera-Genao and
Lynn, wore a ski mask, and entered bank branches carrying either handguns or automatic
weapons. Once inside, one of the men would fire his weapon while another "jumped over the
counter, pointed his gun at the head of an employee, and demanded that money be put in a
laundry bag." Id.
After conducting surveillance, the FBI intercepted Petitioner after he arrived at a bank
branch to commit a fifth robbery. Petitioner was then arrested in the bank branch's parking lot.
Inside Petitioner's car were found "multiple loaded weapons, a ski mask, and a laundry bag." Id.
On October 13, 2008, the United States filed a Second Superseding Indictment against
Petitioner, charging him with the following:
Count One: Conspiracy to commit robbery in violation of 18 U.S.C. § 1951;
Count Two: Armed robbery on February 8, 2007, in violation of 18 U.S.C. §
Count Three: Possession of a firearm in furtherance of a crime of violence in
violation of 18 U.S.C. § 924(c)(l )(A).
Count Four: Armed robbery on February 16, 2007, in violation of 18 U.S.C. §
Count Five: Possession of a firearm in furtherance of a crime of violence in
violation of 18 U.S.C. § 924(c)(l)(A).
Count Six: Armed robbery on March 2, 2007, in violation of 18 U.S.C. § 2113(a),
Count Seven: Possession of a firearm in furtherance of a crime of violence in
violation of 18 U.S.C. § 924(c )(1 )(A).
Count Eight: Armed robbery on March 16, 2007, in violation of 18 U.S.C. §
Count Nine: Possession of a firearm in furtherance of a crime of violence in
violation of 18 U.S.C. § 924(c)(1 )(A).
Count Ten: Attempting to commit armed robbery on April 5, 2007, in violation
of 18 U.S.C. § 2113(a), (d).
Count Eleven: Possession of a firearm in furtherance of a crime of violence in
violation of 18 U.S.C. § 924(c)(l)(A).
See U.S.A. v. Berrios, Cr. No. 07-454 (D.N.J. Oct. 3, 2008) (ECF. No. 41).
Petitioner's family retained William Harth and F. Kevin Lynch to represent him as
counsel in this matter. Mr. Harth and Mr. Lynch represented Petitioner during the plea
negotiation process. On March 3, 2008, Petitioner terminated Mr. Harth and Mr. Lynch and the
Court appointed John S. Furlong to represent Petitioner during trial. (Crim. Dkt. 07-454, ECF
No. 33.) At some point between December 2007 and December 2008, Harth, Lynch, and
Furlong all discussed the possibility of a plea offer with Assistant U.S. Attorney Charles
McKenna and Assistant U.S. Attorney Jacob Elberg. Both Mr. Harth and Mr. Furlong testified at
the hearing that there was never any firm plea offer made, but a 45-year plea deal was discussed.
Mr. Harth and Mr. Furlong also testified that Petitioner was unwilling to entertain any offer of
more than 25 years. Plea negotiations stalled when the lawyers concluded that Petitioner would
not agree to any offer the U.S. Attorney would likely propose.
Beginning December 2, 2008, Petitioner was tried before a jury. On December 10, 2008,
Petitioner was found guilty of Count One and Counts Four through Eleven of the indictment. On
May 22, 2009, Petitioner was sentenced to the statutory minimum term of 1,020 months
imprisonment, comprised of 120 months on the first§ 924(c) count (Count Five), and 300
months for each additional§ 924(c) count (Counts Seven, Nine, and Eleven), all to run
consecutively. Petitioner was given no additional term of imprisonment for his convictions of
conspiracy, bank robbery, or attempted bank robbery (Counts One, Four, Six, Eight and Ten,
Petitioner appealed to the Third Circuit Court of Appeals on a number of grounds not
before this Court, and the Third Circuit affirmed both the convictions and sentences. Herrera-
Genao, 419 F. App'x at 301. Petitioner filed the present motion to vacate, set aside, or correct his
sentence pursuant to 18 U;S.C. § 2255 on May I, 2012. (See ECF No. 1.)
Petitioner raises the following issues for Section 2255 review, none of which were raised
either at trial or on direct appeal. His claims are stated as follows:
I. Trial counsel was ineffective for failing to advise Petitioner of the
statutory mandatory minimum sentences on the § 924(c) counts.
2. Trial counsel was ineffective for failing to challenge "the constructive
amendment of the indictment.''
3. Trial counsel was ineffective for failing to challenge the jury
instructions regarding the elements of 18 U .S.C. § 924(c)(1 )(A)(iii).
4. Trial counsel was ineffective for stipulating that the bank branches at
issue were insured by the FDIC.
5. Trial counsel was ineffective for failing to challenge both "the
sufficiency of the evidence" and an alleged omission from the jury
instructions regarding the FDIC.
6. Appellate counsel was ineffective for failing to challenge "the
constructive amendment of the indictment" on appeal.
7. Appellate counsel was ineffective for failing to challenge the jury
instructions regarding the elements of 18 U.S.C. § 924(c)(l)(A)(iii).
8. Appellate counsel was ineffective for failing to challenge the
stipulation that the bank branches at issue were insured by the FDIC.
9. Appellate counsel was ineffective for failing to challenge "the
sufficiency of the evidence" and an alleged omission from the jury
instructions regarding the FDIC.
(See id. at 4-14.)
1. Standards Governing Petitioner's Claims
Section 2255 of Title 28, United States Code, provides in relevant part that
[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 ... may move the court
which imposed the sentence to vacate, set aside or correct the sentence.
u.s.c. § 2255
The Sixth Amendment to the United States Constitution guarantees criminal defendants
the right to effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n.14
(1970). In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court articulated the test
for demonstrating an ineffective 'assistance of counsel claim. First, the petitioner must show that,
considering all of the circumstances, counsel's performance fell below an objective standard of
reasonableness. Id. at 688; see also Ross v. Varano, 712 F.3d 784, 798 (3d Cir. 2013). This
means that Petitioner must identify acts or omissions that are alleged not to have been the result
of reasonable professional judgment. Strickland, 466 U.S. at 690. Second, Petitioner must
affirmatively show prejudice, which is found where "there is a reasonable probability that, 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. Additionally, the Third Circuit has "reasoned that 'there can be no Sixth Amendment
deprivation of effective counsel based on an attorney's failure to raise a meritless argument."'
US. v. Bui, 769 F.3d 831, 835 (3d Cir. 2014) (citing United States v. Sanders, 165 F.3d 248, 253
(3d Cir. 1999)).
2. Petitioner's Claims
A. Ineffective Assistance of Trial Counsel
i. Failure to Advise Petitioner on Statutory Mandatory Minimums
Petitioner argues that his trial and pre-trial counsel failed to advise him of the statutory
mandatory minimum sentences that attach to 18 U.S.C. § 924(c)(l)(A), which prohibits
possession of a firearm during or in furtherance of a crime of violence. (See ECF No. 1-1at5.)
Petitioner alleges that his pre-trial counsel, William T. Harth, Jr. and F. Kevin Lynch, failed to
advise him that a first conviction under§ 924(c) carries a ten-year mandatory minimum
sentence, and that each subsequent conviction would carry a 25-year mandatory minimum
sentence, all to run consecutively. (Id.) Petitioner then alleges that he rejected the government's
plea offer, which would have carried a prison term of 45 years, because he was uninformed
regarding the sentencing exposure he faced if he elected to go to trial. (Id. at 5-6.)
Petitioner also asserts that his trial counsel, John S. Furlong 1, failed to explain the
statutory mandatory minimums to him before trial. Petitioner also alleges, by way of affidavit,
As noted above, Mr. Furlong was appointed after Mr. Harth and Mr. Lynch were relieved as
counsel. (See Crim. Dkt. 07-454, ECF No. 34.)
that he is not a native English language speaker and was not given an interpreter during the plea
negotiations. According to him, this hampered his understanding of the consequences attached to
rejecting the government's plea offer and prompted his proceeding to trial. (See ECF No. 18-1.)
Respondents, in their submissions, rely on the affidavits submitted by Petitioner's
counsel. (See ECF No. 13 at 5-6.) Counselors Harth, Lynch, and Furlong all submitted affidavits
explicitly rejecting the contention that Petitioner was unaware of his sentencing exposure. (See,
e.g., ECF Nos. 9, 10, 11.) Mr. Furlong also noted in his affidavit that Petitioner speaks "fluent
English." (ECF No. 11
if 4.) Petitioner's affidavit swears that he does not speak fluent English
and that he was never told, by anyone, of the statutory mandatory minimums contained within 18
U.S.C. § 924(c)(l)(A). (See ECF No. 18-1.)
The two-pronged test announced by the Supreme Court in Strickland governs ineffective
assistance of counsel claims both at trial and pre-trial phases. See Hill v. Lockhart, 474 U.S. 52
( 1985). The Court turns first to the prejudice prong of Strickland, because "[i]f it is easier to
dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course
should be followed." 466 U.S. at 670. In terms of prejudice, Petitioner must show that, "but for
counsel's unprofessional errors," he would have a received a lesser sentence. Id. at 669; see also
US. v. Booth, 432 F.3d 542, 547 (3d Cir. 2005). Accepting Petitioner's allegations as true, as the
Court must, 2 Petitioner was prejudiced by proceeding to trial because "he was exposed to an
additional [40 years] imprisonment." Booth, 432 F.3d at 548-549.
Here, it is likely that Berrios would have received a lower sentence had he been offered a
plea agreement and elected not to go to trial. On appeal, the issue before the Court is how
In considering a motion to vacate a sentence, a court must "accept the truth of the movant' s
factual allegations unless they are clearly frivolous on the basis of the existing record." Gov 't of
the Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989).
knowing and voluntary Berrios' election to go to trial was. Indeed, because "[k]nowledge of the
comparative sentence exposure between standing trial and accepting a plea offer will often be
crucial to the decision whether to plead guilty," the defendant has the right to make an informed
decision on such an offer. United States v. Day, 285 F.3d 1167, 1172 (3d Cir. 1992); see also
Bui, 769 F.3d at 831 (holding that counsel's incorrect advice regarding sentencing exposure
constituted ineffective assistance).
In order to resolve these factual disputes, the Court conducted an evidentiary hearing on
July 30, 2015. William Hart and Petitioner's trial counsel, John Furlong, as well as Petitioner
testified. (See ECF No. 26.) Both of Petitioner's attorneys testified that they repeatedly advised
Petitioner of his sentencing exposure if he elected to go to trial. Also, Mr. Harth testified, and
Mr. Furlong confirmed, that there was no official plea offer to either accept or reject. Indeed, Mr.
Harth admitted to making an error in his certification to the Court stating that a plea offer of 45
years was made by the Government. (See ECF No. 9.) In fact, there were mere discussions of a
potential plea offer in Petitioner's criminal case, and no discrete offer was ever made. Both Mr.
Harth and Mr. Furlong also testified that Petitioner was offered an English language interpreter
on numerous occasions, and he repeatedly waived his right to have an interpreter. Mr. Harth and
Mr. Furlong also testified that they communicated with Petitioner exclusively in English, and
that they were never under the impression that anything was misunderstood in their
The government also presented, as its Exhibit 1to its opposition, the transcript of a pretrial hearing before the Honorable Garrett E. Brown, U.S.D.J. During this hearing, Petitioner
explicitly waived his right to an interpreter when asked if one was necessary. See United States v.
Berrios et al., No. 07-454 at 4 (D.N.J. July 19, 2007). Both Mr. Harth and Mr. Furlong also
testified at the evidentiary hearing that they communicated with Petitioner only in English, and
that there was never an issue with communication. Lastly, the government presented, as its
exhibit 3, a letter to trial counsel from Petitioner that Petitioner admitted was in his own
handwriting. Not only is the letter in English, but it expresses Petitioner's intent to reject a plea
offer in the range of "42 years," and his refusal to take an offer of "25 years," even though such a
number was never reportedly discussed. See Letter to F. Kevin Lynch, Berrios v. United States,
No. 12-2471 (D.N.J. July 30, 2015).
Charles McKenna, counsel for the government, testified that no definite plea offer was
ever made to defense counsel for Petitioner. Petitioner then testified at the evidentiary hearing. 3
Petitioner testified that no counsel ever fully explained his sentencing exposure to him artd that
he was never offered an interpreter. Petitioner's testimony regarding the absence of an interpreter
during plea negotiations is directly contradicted by the hearing transcript before Judge Brown
presented by Respondents at the evidentiary hearing. Regarding the letter presented by
Respondents at the hearing, Petitioner testified first that, though it is his handwriting, he copied
the letter into his handwriting after another inmate wrote out Petitioner's intentions into English
for him. After the Court noted that Petitioner stated his intentions in the letter, Petitioner
responded that the letter conveyed the thoughts of another inmate, not those of Petitioner, and
that Petitioner copied the words and thoughts of another inmate into his own handwriting.
Petitioner testified that he would have accepted a plea offer of 45 years if his attorney had
presented it and that he indicated this to counsel.
Petitioner testified with the assistance of an interpreter. Based on Petitioner's assertions in his
motion to vacate Petition that he did not speak English, the Court appointed an interpreter in an
abundance of caution.
In general, Petitioner's testimony lacked credibility. Not only did Petitioner's testimony
about his knowledge of his sentencing exposure contradict the testimony of his attorneys, it also
contradicted the contents of his letter to his attorneys. Furthermore, it seemed unlikely that, at no
point during the pre-trial, trial, or sentencing process, no one (including the Court) noticed that
Petitioner did not understand English well enough to know what was going on around him. This
is especially pointed with regard to the government, which conducted a proffer interview with
Petitioner. The proffer report produced by the government as its Exhibit 2, written up from
verbal responses given by Petitioner in English, belies a notion that Petitioner either did not
speak English or did not understand how his prosecution was progressing.
The Court finds the testimony of Mr. Harth and Mr. Furlong to be credible regarding
their communications with Petitioner, including his ability to speak English. Petitioner did not
present any credible evidence that he did not understand English well enough to meaningfully
participate in his defense. Furthermore, he did not demonstrate that there existed a plea offer that
he would have accepted, which offer would have resulted in a lower sentence for him. Therefore,
Petitioner has not been able to demonstrate prejudice and habeas relief on this ground would
have to be denied.
ii. Failure to Challenge the "Constructive Amendment of the Indictment"
Petitioner next contends that his trial counsel was ineffective for failing to challenge what
amounted to a constructive amendment of his indictment. Petitioner contends, specifically, that
"[t]he district court's instruction to the jury and the evidence introduced by the government on
the §2113 counts amounted to a constructive amendment of the indictment." (See ECF No. 1 at
12.) Petitioner goes on to allege that, because the indictment specifies that Petitioner used "a .380
caliber handgun and two rifles," the prosecution constructively amended the indictment by
offering five weapons into evidence and not specifying which weapons were used during which
robbery in the jury instructions. Id.
A constructive amendment occurs where a defendant is deprived of his right to be tried
only on charges presented in an indictment returned by a grand jury. United States v. Abuarquob,
294 F. App'x 722, 725 (3d Cir. 2008) (internal citations omitted). It is true that it is the exclusive
prerogative of the grand jury to determine the charges facing a defendant, and that once charges
have been brought "an indictment may not be amended except by resubmission to the grand .
jury." Russell v. United States, 369 U.S. 749, 770 (1962). To wit, "any broadening of the
possible bases for conviction from that which appeared in the indictment" is reversible error.
United States v. Miller, 471 U.S. 130, 140 (1985) (quoting Stirone v. United States, 361 U.S.
212, 213 (1960)).
Here, Petitioner first argues that, because the indictment labels "rifles" and a ".380
caliber handgun" as the weapons used, the submission of a total of five (5) weapons into
evidence amounted to a constructive amendment of the indictment. Specifically, Petitioner states
that the government offered into evidence the following weapons: "A .380 caliber pistol; an SKS
assault weapon; an MDL assault weapon; a .22 caliber rifle; and a Ruger Mini .30 caliber." (ECF
No. 1-1 at 12.) Petitioner also alleges that the instructions to the jury on counts four, six, and
eight (bank robbery), as well as counts five, seven, nine, and eleven (carrying a firearm in
furtherance of a crime of violence) were improper because they, too, did not specify the weapons
listed in the indictment as the weapons used by Petitioner. (See Crim. Dkt. 07A54, ECF. No. 99
Though the indictment does label the .380 caliber handgun and "rifles" as the weapons
used, it did not need to specify the caliber of the weapons because the type of weapon is not an
element of the offense charged. The contested counts of bank robbery (counts four, six, and
eight) were brought under 18 U.S.C. § 2113(a) and (d). According to § 21l3(a), guilt attaches to
one who Hby force and violence, or by intimidation, takes, or attempts to take, from the person or
presence of another ... any property or money or any other thing of value belonging to, or in the
care, custody, control, management, or possession of, any bank .... " This section does not name
specific weapons as an element of the offense.§ 2113(d) attaches to one who attempts to take
money from a bank "by the use of a dangerous weapon or device." Petitioner does not allege that
handguns and rifles cannot, as a matter of law, be treated as dangerous weapons or devices. See
McLaughlin v. United States, 476 U.S. 16, 16-17 (1986) (finding even an unloaded gun to be a
"dangerous weapon"). Thus, the additional language in the indictment specifying the use of rifles
and a .380 caliber handgun can be considered "mere surplusage," and therefore does not
invalidate Petitioner's conviction. Miller, 471 U.S. at 141; Compare Abuarquob, 294 F.App'x. at
725 (noting additional facts in an indictment are irrelevant so long as elements of crime charged
are proved), and Ford v. U.S., 273 U.S. 593 (1927) (holding that a part of an indictment
unnecessary to the offense proved may be ignored), with US. v. Centeno,_ F.3d _, 2015 WL
4231582, at *8 (3d Cir. 2015) (finding a constructive amendment of an indictment when
prosecutor argued in his summation that the jury could find defendant guilty of assault if he acted
as a "getaway driver," despite the indictment not charging defendant with accessory after the
Because the naming of "rifles" and the ".380 caliber handgun" in the indictment was
unnecessary to§ 2113(a) or (d), meaning they are not elements of the crime charged, the fact that
the government offered five weapons into evidence is not error, nor is the absence of the specific
weapons from the jury instructions 'error.
Petitioner also alleged that the indictment was constructively amended as to 18 U.S.C. §
924(c)(l)(A), the statute under which Petitioner was convicted of carrying a firearm in
furtherance of a crime of violence (counts 5, 7, 9, and 11). The statute at issue merely specifies
that a person who uses, carries, or possesses a "firearm" is subject to the penalties under§
924(c)(l)(A). The same reasoning as that used to analyze§ 2113 applies here. Because using a
specific firearm is not an element of § 924( c)( 1)(A), the naming of the .3 80 caliber pistol and
"two rifles" in the indictment was surplusage and unnecessary to the indictment. See Miller, 4 71
U.S. at 141; Abuarquob, 294 F. App'x. at 725; Ford, 273 U.S. at 595. Additionally, the jury was
properly instructed that they must be unanimous with respect to which firearms in evidence were
used during which bank robberies, thus satisfying all necessary requirements. (See Crim. Dkt.
07-454, ECF No. 99 at 59); see also Johnson v. Louisiana, 406 U.S. 356 (1972) (requiring
unanimity on each delineated offense of which a defendant is culpable); US. v. Beros, 833 F.2d
455, 461 (3d Cir. 1987) (requiring unanimity on the specific act or acts constituting an offense).
Here, Petitioner is arguing that his trial counsel was constitutionally ineffective for not
challenging the alleged constructive amendment of the indictment. However, as explained above,
there was no constructive amendment of the indictment. Furthermore, even if there were a
meritorious issue that trial counsel failed to raise, Petitioner would still fail the prejudice prong
of Strickland. The so-called prejudice prong requires that a petitioner must show that there is a
"reasonable probability that, but for counsel's deficient performance," the outcome of the trial
would have been different. Strickland, 466 U.S. at 669. Petitioner adduces no evidence of a
"reasonable probability" that a different jury instruction or fewer weapons in evidence would
have produced a different result. Similarly, in addressing prejudice, "[i]t is firmly established that
a court must consider the strength of the evidence in deciding whether the Strickland prejudice
prong has been satisfied." Buehl v. Vaughn, 166 F.3d 163, 172 (3d Cir. 1999). Here, the weight
of the evidence against Petitioner was substantial, and he offers no new evidence to support his
Because there was no constructive amendment to challenge, Petitioner's claim that trial
counsel was ineffective for failing to challenge a constructive amendment of the indictment is
Trial counsel was ineffective for failing to challenge the jury instructions
regarding the elements of 18 U.S.C. § 924(c)(l)(A).
Petitioner next contends that trial counsel was ineffective for failing to challenge the jury
instructions pursuant to 18 U.S.C. § 924(c)(l)(A), referenced in the indictment as counts 5, 7, 9,
and 11. Petitioner argues that the jury should have been instructed that they needed to find that
Petitioner carried a specific firearm both during and in relation to a crime of violence. (ECF No.
1-1 at 27.) Petitioner misunderstands the law on this point.
Section 924 reads, in pertinent part, " ... any person who, during and in relation to any
crime of violence ... uses or carries a firearm, or who, in furtherance of any such crime,
possesses a firearm ... " 18 U.S.C. § 924(c)(l)(A) (emphasis added). Petitioner argues that the
jury charge on this statute was deficient because it instructed the jury that they were to read the
word "and" as an "or." (Cr. Dkt. 07-454, ECF No. 99 at 26-27.) Regarding this tum of phrase,
the jury instructions stated that, "[a]lthough the Indictment is written that way, you're specifically
instructed that it is sufficient for the Government to prove that the defendants [committed] one of
the acts charged in a particular count." (Id.)
The general rule in construing an indictment written in this manner is that "when a jury
returns a guilty verdict on an indictment charging several acts in the conjunctive ... the verdict
stands ifthe evidence is sufficient with respect of any of the acts charged." Turner v. US., 396
U.S. 398, 420 (1970); see also United States v. Tykarsky, 446 F.3d 458, 474 (3d Cir. 2006)
(noting that charging the jury in the disjunctive, rather than the conjunctive, amounted to a
narrowing of the charged offense that is permissible). Here, the Court correctly instructed the
jury to read the indictment in the disjunctive, i.e., reading in an "or," and the jury found
sufficient evidence to convict Petitioner of counts 5, 7, 9, and 11.
Because the jury instructions pertaining to the elements of 18 U.S.C. § 924(c)(l)(A) were
proper, Petitioner's claim for relief on this ground is denied.
Trial counsel was ineffective for stipulating that the bank branches at issue
were insured by the FDIC.
Petitioner next contends that his trial counsel was ineffective for stipulating that the
banks at issue were insured by the Federal Deposit Insurance Corporation ("FDIC"). Petitioner
argues that his counsel should have required the government to prove, through both testimonial
and documentary evidence, that the banks at issue were FDIC insured. (See ECF No. 1-1 at 27.)
Rule 2(b)(2) of the rules governing§ 2255 proceedings states that a petitioner's motion
must "state the facts supporting each ground" for relief. Therefore, a district court may dispose
of allegations that lack supporting facts without further investigation. Thomas, 221 F Jd at 4 37.
Here, Petitioner cannot show that counsel's stipulation was unreasonable as he neither offers
evidence to support, nor does he even allege, that the banks at issue were not FDIC insured as
stipulated by counsel. Petitioner appears to merely wish that his counsel had forced the
government to prove this fact. The decision not to force the government to spend time proving
something the veracity of which Petitioner does not question can be labeled a strategic decision
sanctioned by Strickland. Id at 690 ("the defendant must overcome the presumption that, under
the circumstances, the challenged action might be considered sound trial strategy") (internal
quotations omitted); see also Hanson v. Dragovich, 426 F. App'x 50, 58 (3d Cir. 2011) (noting
that stipulations can be strategic). Because Petitioner offers nothing to overcome the presumption
· that trial counsel's decision was strategically sound, the first prong of Strickland is not met.
Because Petitioner has failed to prove the reasonableness prong of Strickland, the Court need not
reach the prejudice prong. See Werts v. Vaughn, 228 FJd 178, 224 n.24 (3d Cir. 2000).
Because Petitioner offers no evidence to overcome the presumption that counsel's
stipulation was sound strategy, Petitioner's claim that counsel was ineffective for stipulating that
the banks at issue were FDIC-insured is denied.
Trial counsel was ineffective for failing to challenge both "the sufficiency of the
evidence" on Count Ten, and for failing to challenge an alleged omission from
the jury instructions regarding the FDIC element of 18 U.S.C § 2113.
Petitioner next contends that his trial counsel was ineffective for failing to challenge the
sufficiency of the evidence on Count Ten of the indictment, attempted bank. robbery, and that
trial counsel was ineffective for failing to challenge the instruction to the jury on Count Ten,
which allegedly omitted an element of the crime regarding the FDIC.
a. Trial counsel was ineffective for failing to challenge the Court's
interpretation of§ 21l3(a) as applied to Count Ten (attempted bank
Petitioner argues that the evidence presented to the jury was insufficient to convict him
on Count Ten of the indictment (attempted bank robbery), because the evidence did not
demonstrate that Petitioner actually used "force and violence" or "intimidation" during his
attempt to rob the bank in question. 18 U.S.C. § 2113(a) reads, in relevant part, "[w]hoever, by
force and violence, or by intimidation, takes, ot attempts to take ... any property or money .... "
Petitioner reads this phrase as requiting a completed act of force and violence or intimidation in
order to be convicted of attempt. Neither the Third Circuit nor the Supreme Court has addressed
this question directly, therefore, it is an open question in this Circuit.
The general rule in the Third Circuit is that "ineffective assistance [of counsel] cannot be
established by failure to argue a point supported only by authority outside this jurisdiction."
United States v. Jiminez, 54 F. App'x 369, 371 (3d Cir. 2002); see also United States v. Sanders,
3 F.Supp.2d 554 (M.D.Pa. 1998) (finding that an attorney's decision not to pursue fill issue of
statutory interpretation on an open question in the circuit did not constitute ineffective
assistance); McNeil v. United States, 2013 WL 4045412, at *13 (D.N.J. 2013) ("Because the law
in this circuit ... is unsettled, [defendant] cannot state a claim for ineffective assistance of
counsel."). As noted above, the question of how to interpret the language of§ 2113(a) is
unsettled in the Third Circuit. Therefore, Petitioner's suggested reading of the statute is, in effect,
"only supported by authority outside this jurisdiction." Jiminez, 54 F. App'x at 371.
Here, because ineffective assistance of counsel cannot be premised on an unsettled area
of law in the Third Circuit, counsel's failure to argue Petitioner's point was not objectively
unreasonable. Thus, the first prong of Strickland is not met. See 466 U.S. at 670. Because the
first prong of Strickland is not satisfied, the Court need not reach the second prong. Id. at 690.
Therefore, because Petitioner cannot show that counsel's performance here was objectively
unreasonable, Petitioner's claim for relief on this ground is denied. 4
It is also worth noting that, based on the current state of the law in the Third Circuit, it was
reasonable for Petitioner's counsel to conclude that the Court would continue to interpret § 2113
as it did in United States v. Sawyer, 39 F. App'x. 785, 787 (3d Cir. 2002). There, the Court
concluded, in a non-precedential opinion, that "[a]n attempt conviction ... requires that [the
defendants] acted with intent to commit armed bank robbery and took a substantial step towards
carrying out that intent." This reading of§ 2113(a) is at odds with Petitioner's suggested reading
and is generally followed throughout the Third Circuit. See also United States v. McLaughlin, 82
F. App'x 741, 744 (3d Cit. 2003) ("An attempt occurs when the defendant has the intent to
commit a crime and performs an act amounting to a substantial step toward the commission of
that crime."). Awareness of the Third Circuit's non-precedential opinions on the topic could have
lead counsel to conclude that raising the issue would be a poor strategic choice, a decision
sanctioned by Strickand. See 466 U.S. at 690.
b. Omission during FDIC Jury Instruction
Petitioner also contends that trial counsel was ineffective for failing to challenge an
alleged omission from the jury instructions regarding the elements of 18 U.S.C. § 2113(a) on
Count Ten (attempted bank robbery). (See ECF No. 1-1 at 39.) Petitioner seems to suggest that
the government was still required to prove that the banks at issue were insured by the FDIC,
despite counsels' stipulation conceding that the banks were insured. Petitioner misunderstands
the law on this point.
18 U.S.C. § 2113(f) reads, in pertinent part, "[a]s used in this section the term "bank"
means any member bank of the Federal Reserve System ... and any institution the deposits of
which are insured by the Federal Deposit Insurance Corporation." This definition makes clear
that the term "bank," used in the statute under which Petitioner was charged, refers only to banks
that are part of the federal system. Petitioner argues, in effect, that although his counsel
stipulated to the fact that the bank at issue was FDIC insured, the jury should have nevertheless
been instructed that they must so find beyond a reasonable doubt.
A stipulation is "[a] voluntary agreement between opposing parties concerning the same
relevant point." US. v. Gillette, 738 F.3d 63, 75 (3d Cir. 2013) (quoting BLACK'S LA w
DICTIONARY 1550 (9 ed. 2009)). Stipulations are tools frequently used by attorneys to avoid the
expense, in both time and money, of "proving" through testimonial and documentary evidence
an element of a crime that is not in dispute. Here, Petitioner's counsel and the prosecutor
stipulated to the fact that the banks at issue were all FDIC-insured, a trial strategy the Court
already characterized as sound. See supra, A.IV.
A stipulation is proper unless it removes the role of ultimate finder of fact from the jury
and places it with the judge. See Sullivan v. Louisiana, 508 U.S. 275, 277 (1993). This happens
when a judge refuses to inform the jury of stipulations made between attorneys regarding
elements of a crime. See US. v. Higdon, 638 F.3d 233, 236 (3d Cir. 2011); see also US. v.
Williams, 612 F.2d 735 (3d Cir. 1979). Here, the trial judge informed the jury as to the
stipulation regarding the FDIC, and explained what is meant by the word "stipulation." 5 (See
Crim. Dkt. 07-454, ECF No. 99 at 72, 22 (respectively).) Both because the stipulation regarding
the FDIC was proper and because it was properly reported to the jury during jury instructions,
there is no meritorious argument Petitioner has made regarding ineffective assistance of counsel
on this point. Petitioner's claim for relief on this ground is denied.
B. Ineffective Assistance ofAppellate Counsel
In claims Six through Nine of the petition, Petitioner contends that his counsel on direct
appeal was similarly ineffective for failing to raise a number of the same points trial counsel
failed to raise. (See ECF No. 1-1 at 27.) Petitioner raises four claims that appellate counsel was
1. Appellate counsel was ineffective for failing to challenge "the
constructive amendment of the indictment" on appeal;
2. Appellate counsel was ineffective for failing to challenge the jury
instructions regarding the elements of 18 U.S.C. § 924(c)(l)(A)(iii);
3. Appellate counsel was ineffective for failing to challenge the
stipulation that the bank branches at issue were insured by the FDIC;
4. Appellate counsel was ineffective for failing to challenge "the
sufficiency of the evidence" and an alleged omission from the jury
instructions regarding the FDIC.
"When both sides stipulate or agree as to the existence of a fact, then we don't need to bring in
a witness, they don't need to bring in a witness, and the jury should accept that stipulation as
evidence and regard that fact as proved." (Crim. Dkt. 07-454, ECF No. 99 at 22.)
Petitioner's claims 6-9 are reprinted here as 1-4 for ease of understanding and readability.
Counsel is not ineffective "for failing to raise every conceivable argument ... regardless
oflack of merit.'' Amponsah v. US., No. 08-114, 2009 WL 900732, at *6 (D.N.J. Apr. 2, 2009);
see also Sistrunk v. Vaughn, 96 F.3d 666, 670 (3d Cir. 1996). It is also generally true that
"counsel cannot be deemed ineffective for failing to raise a meritless claim." Ross v. District
Attorney of the County ofAllegheny, 672 F.3d 198, 211 n.9 (3d Cit. 2012)) (quoting Werts v.
Vaughn, 228 F.3d 178, 202 (3d Cir. 2000)).
Taking Petitioner's claims in tum: Because this Court has already found that there was no
constructive amendment of the indictment (claim one), the jury instructions on 18 U.S.C. §
924(c)(l)(A) were adequate (claim two), the stipulation regarding the FDIC was sound trial
strategy (claim thtee ), and that Petitioner's claims regarding the sufficiency of the evidence on
Count Ten of the indictment and the alleged omission from the jury instructions on same are
meritless (claim four), all four of Petitioner's ineffective assistance of appellate counsel claims
CERTIFICATE OF APPEALABILITY IS DENIED
This Court must determine whether Petitioner is entitled to a certificate of appealability
in this matter. See Third Circuit Local Appellate Rule 22.2. The Court will issue a certificate of
appealability only if the petitioner "has made a substantial showing of the denial of a
constitutional right." 28 U.S.C. § 2253(c)(2). The Court finds that Petitioner has not
demonstrated that "jurists ofreason could disagree with the [Court's] resolution of his
constitutional claims," therefore the Court will not issue a certification of appealability. See
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
For the reasons set forth above, Petitioner's motion pursuant to 18 U.S.C. § 2255 is
denied, and no certificate of appealability shall issue.
United States District Judge
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