DOBSON v. UNITED STATES OF AMERICA
OPINION. Signed by Judge Peter G. Sheridan on 9/8/2016. (km)
NOT FOR PUBLICATION
UNITEI) STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 13-1711 (PGS)
UNITED STATES OF AMERICA,
SHERIDAN, DISTRICT JUDGE
Presently before the Court is the Petition of Antoine Dobson (‘Petitioner”) brought
pursuant to 28 U.S.C.
(ECF Nos. 1, 6.)
Respondent, United States of America
(“Respondent”), filed an Answer, (ECF No. 7). and Petitioner filed a Reply, (ECF No. 10).
the following reasons, the Court denies the Petition, and declines to issue a certificate of
The Third Circuit summarized the facts of Petitioner’s case as follows:
In November 2007, I)obson—a Deputy U.S. Marshal at the time—
acquired a .40 caliber (Hock 27, for which he had received
authorization hut had not yet been trained to carry, through his
position in the United States Marshals Service. At some point prior
to January 1 8, 2008, Larry Langforddavis, Dobson’s friend and a
convicted felon. acquired Dobson’s Glock 27, perhaps multiple
times. On the evening of January 4, 2008, Dobson was celebrating
his birthday at the Jersey Girls Entertainment Club. Langforddavis
entered the club without being searched because he had been
incorrectly introduced to the club’s employees as a law enforcement
officer. I)ohson sustained injuries afler being assaulted outside the
club on the morning ol January 5. I)obson and i.angtorddavis spoke
briefly before Langforddavis got into a ear and chased after the
assailants. Langforddavis returned twenty minutes later,
proclaiming that he “got them” and had “sprayed the vehicle.”
I)obson replied that he “wanted his gun.” 1.angforddavis later went
to visit Dobson in the hospital, at which time Langforddavis showed
several officers a gun, which appeared to be a Glock, holstered to
his leg. On January 1 8, 2008, Dobson and Langforddavis became
heavily intoxicated together at Slick’s Tavern. Langforddavis drove
Dobson to a diner where he left Dobson in the care of another friend.
When Dobson got home, he called Langforddavis and told him to
bring the gun back and not to leave the gun in the car overnight.
Langforddavis, however, proceeded to Jersey Girls to pick up his
girlfriend and upon arriving strapped the gun to his leg and exited
the car. Police officers, who were already at the club for other
reasons, arrested Langforddavis and confiscated the gun, later
identified as Dobson’s Glock 27.
United Stares v. Dobson, 454 F. App’x 127, 128-29 (3d Cir. 2011)
Petitioner was indicted on one count of disposing of a firearm and ammunition to a person
convicted of a felony under 18 U.S.C.
§ 922(g)( 1), 924(a)(2), and one count of aiding and abetting
the same, as well as four counts of perjury.
The jury convicted Petitioner on one count of
disposing of a firearm and ammunition to a person convicted of a felony and one count ocperjury
for lying about his knowledge of whether Mr. Langforddavis was carrying a gun on January 5,
This Court set aside the perjury conviction, hut the Third Circuit reinstated it.
In October 2010, the Court sentenced Petitioner to forty-five months in prison.
Dobson, Crim. Action No. 08—779, ECF No. 143.)
(United Siates v.
Petitioner did not tile a petition for writ of
certiorari in the United States Supreme Court.
On March 5. 2013, Petitioner filed the instant
(ECF No. I.)
motion, he raises the following grounds for relief:
1. Ineffective assistance of counsel tbr failing to present medical records and police
2. Ineffective assistance of counsel for failing to present expert witness regarding
memory loss and intoxication
3. Ineffective assistance of counsel for failing to object to admission of evidence
regarding search of residence
4. Evidence in Mr. Langforddavis’s subsequent trial exonerates Petitioner on Count
Two of the indictment
5. Jury foreperson stated during deliberations that defendant was guilty because he
did not testify
6. Ineffective assistance of counsel on appeal’
A. Legal Standard
A prisoner in federal custody may file a motion pursuant to 28 U.S.C.
the validity of his or her sentence.
§ 2255 challenging
Section 2255 provides, in relevant part, as follows:
A prisoner in custody under sentence of a court established by Act of Congress
claiming the right to be released upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United States, or that the court was
without jurisdiction to impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to collateral attack, may
move the court which imposed the sentence to vacate, set aside or correct the
“In considering a motion to vacate a defendants sentence. ‘the court must accept the truth
In his supporting memorandum of law. Petitioner withdrew this ground.
Memorandum 22. ECF No. 6.)
of the movani’s factual allegations unless (hey are clearly frivolous based
the existing record.
United States v. Booth, 432 F.3d 542. 545 (3d Cir. 2005) (quoting Gov’i oJ Virgin Islands v. Forte,
865 F.2d 59,62 (3d Cir. 1989)) (also citing R. Governing
2255 Cases R. 4(h)).
§ 2255(b) requires an evidentiary hearing lbr all motions brought pursuant to the
statute “unless the motion and the files and records of the case conclusively show that the prisoner
is entitled to no relief.”
2255(b); United States v. Booth, 432 F.3d 542, 545 (3d Cir.
2005); United States v. Day, 969 F.2d 39, 4 1-42 (3d Cir. 1992).
“Where the record, supplemented
by the trial judge’s personal knowledge, conclusively negates the factual predicates asserted by the
petitioner or indicate[sj that petitioner is not entitled to relief as a matter of law, no hearing is
Judge v. United States, 119 F. Supp. 3d 270, 280 (D.N.J. 2015); see also Government
of Virgin Islands v. Nicholas, 759 F.2d 1073, 1075 (3d Cir. 1985); see also (!ni,’ed States v. Ttiyen
Quang Pham, 587 F. App’x 6, 8 (3d Cir. 2014); Booth, 432 F.3d at 546.2
1. Ineffective Assistance of Counsel
The Sixth Amendment guarantees effective assistance of counsel. In Strickland v.
Washington, 466 U.S. 668 (1984), the Supreme Court articulated the two-prong test for
demonstrating when counsel is deemed ineffective.
First, the petitioner must show that
considering all of the circumstances, counsel’s performance fell below an objective standard of
See Id. at 688; see also Grant
Locketi, 709 F.3d 224, 232 (3d Cir. 2013)
An evidentiary hearing was not necessary in this case because the record conclusielv
establishes that Petitioner is not entitled to relief’.
(noting that it is necessary to analyze an ineffectiveness claim in light of all of the circumstances)
A petitioner must identify the acts or omissions that are alleged not to have
been the result of reasonable professional judgment.
See Strickland, 466 US. at 690.
this first prong of the Strickland test, scrutiny of counsel’s conduct must be “highly deferential.”
See id at 689.
Indeed, “[clounsel is strongly presumed to have rendered adequate assistance and
made all significant decisions in the exercise of reasonable professional judgment.”
Id. 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.
If counsel makes “a thorough investigation of
law and facts” about his plausible options, the strategic choices he makes accordingly are “virtually
Gov’t of Virgin islands v. Weatheni’ax, 77 F.3d 1425, 1432 (3d Cir. 2006)
(citing Strickland, 466 U.S. at 690—91).
If, on the other hand, counsel pursues a certain strategy
after a less than complete investigation, his choices are considered reasonable “to the extent that
reasonable professional judgments support the limitations on investigation.”
Rolan v. Vaughn.
445 F.3d 671, 682 (3d Cir. 2006) (citing Strickland, 466 U.S. at 690—91).
The second prong of the Strickland test requires the petitioner to affirmatively prove
See 466 U.S at 693.
Prejudice is found where “there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Id. at 694.
A reasonable probability is “a probability suflicient to undermine confidence in the
id.; see also McBridge v. Superintendent, SC! Houtzdale, 687 F’.3d 92, 102 n.l I (3d
“This does not require that counsel’s actions more likely than not altered the outcome,
hut the difference between Strickland’s prejudice standard and a more—probable—than—not standard
is slight and matters only in the rarest case.
substantial, not just eoncei able.”
The likelihood of a different result must he
Harringion v. Richter. 562 U.S. 86, 111 1 2 (20 1 1) (internal
quotation marks and citations omitted).
‘With respect to the sequence of the two prongs, the Strickland Court held that a
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
Rainey v. Varner, 603 F.3d 189, 201 (3d Cir. 2010) (quoting Strickland, 466 U.S. at
a. Medical Records
Petitioner argues that counsel was ineffective when he failed to present the January 5. 2008
medical records from the hospital which would have shown that he was extremely intoxicated and
consequently would have been unable to remember, more than nine months later. whether he saw
Mr. Langforddavis at the hospital that night.
(Pet’r’s Memorandum 15, ECF No. 6.)
Specifically, Petitioner alleges that because he answered several questions incorrectly (i.e. stating
that he has diabetes when he does not; that he is married even though he is not; that he smokes two
packs a day even though he does not smoke). introduction of those medical records would have
far outweighed the testimony of any number of individuals presented by the Government” who
testified that he was lucid.
(Pet’r’s Memorandum 16.)
While hospital records that Petitioner attaches to his Petition do
that Petitioner alleges is incorrect and a note by the physician stating that Petitioner was
intoxicated, there is also information in said records which is highly beneficial to the Government.
Specifically, in several different locations on the forms, medical professionals indicated that
Petitioner was “alert and oriented” and had normal “appearance, activity, orientation, behavior,
affect, mood, speech. thought content. cognition, judgment and insight.”
Lx. 2, Hospital Records 2; 5, ECF No. 6-1.)
The introduction of the incorrect answers regarding
Petitioner’s medical history and the one note stating that he was intoxicated would come at the
expense of also admitting evidence of medical professionals stating that he was lucid.
fact, Petitioner’s counsel can hardly be deemed ineffective for failing to introduce said records at
b. Expert Testimony
Petitioner attaches an article to his Memorandum of Law from the National institute ri
Alcohol Abuse and Alcoholism entitled “What Happened? Alcohol, Memory Blackouts, and the
(Pet’r’s Memorandum. Ex. 3, ECF No. 6-1.)
this article, Petitioner alleges
that counsel was deficient for failing to call an expert witness to testify about how alcohol impairs
(Pet’r’s Memorandum 18, ECF No. 6.)
It is well-settled that prejudice caused by ineffective assistance of counsel cannot he based
on mere speculation about the possibility of finding an expert witness, nor can it he based
Even if the Court were assume arguendo that the medical records should have been introduced
into evidence, there is certainly no indication, let alone a reasonable probability, that the records
would have had an effect on the outcome. The lack of effect on the proceedings is even more
likely considering the fact that the records contained observations both favorable and unfavorable
to Petitioner’s position.
speculation about the possible testimony
Here, that is precisely PetitionerTh argument.
256 F.3d 1 89. 201—02 (3d Cir.
He attaches an article about intoxication
and its effects on the brain from a medical institute and, based on that article, concludes that
counsel should have called an expert to testify about that topic in his defense.
possibility of obtaining such an expert and the conjecture as to how such a witness would testify
about Petitioner’s case is without a doubt speculative.
Petitioner has based his entire argument
on an internet medical article which provides no specifics as to his particular circumstances.
Petitioner’s vague and unsupported argument that counsel should have obtained an expert who
could testify onì the topic of intoxication and memory loss is insufficient to meet the requirements
Petitioner’s claim on this ground is denied.
c. Testimony about Search
Petitioner’s final ineffective assistance of counsel claim relates to the introduction of
testimony at trial about a search warrant executed on Petitioner’s home.
Loin two occasions during trial, counsel allowed the prosecution to
question a witness regarding the fruitless search of his residence.
The questions were not necessary to prove Mr. Dobson’s guilt on
any ot the charges and was urmecessarily, prejudicial whereas it
allowed the jury to believe he was being investigated for more than
perjury or providing a weapon to a convicted felon when neither
allegation necessitated the search of Petitioner’s home.
(Pet’r’s Memorandum 19, ECF No. 6.)
‘Ihe occasions described by Petitioner seemingly refers to testimony from Officer Dietz. a
witness ftr the Government.
On direct and cross-examination. Officer l)ietz discussed a search
of Petitioner’s residence that was conducted by the police.
Trial Tr. 5.20:1-5.21:10; 5.29:24-5.46:14, July 6.2009. ECF No. 64.)
Crirn. Action No. 08-779.
The search of Petitioner’s
home resulted in the seizure of three cell phones, none of which were Petitioners.
based on the lengthy and extensive cross-examination of Officer 1)ietz. Petitioner’s counsel
strategically used the method of the search and the multiple phones found during the search to
attempt to undercut the Government’s claim that Petitioner never actually called Mr.
The search itself was lawful and there was no implication that the search was
conducted for any reason other than to seek evidence related to this incident.
As such, it is
without a doubt that Petitioner’s counsels failure to object to said testimony did not fall below an
objective standard of reasonableness and he is not entitled to relief on this ground.
Strickland, 466 U.S. at 689 (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”).
In his second ground fi)r reliel Petitioner claims to have “new evidence” which would
According to Petitioner, during his trial, the officers testified that they were “an
arm’s length” away from Petitioner when Mr. Langlorddavis claimed to he a correctional officer
An unidentified male and female were present at Petitioner’s residence when the search
warrant was executed.
Count six of the superseding indictment charged Petitioner with perjury based on his grand
jury testimony that he called Mr. Langforddavis from his personal cell phone when he realized
that he had left his gun in Mr. Langforddavis’s car.
and displayed a gun.
(Pet’r’s Memorandum 20, ECF No. 6.)
However, in Mr. Langflirddavis’s
subsequent trial, Officer Benenati testified that he was standing five feet away from Petitioner
when he was approached by Mr. Langthrddavis, that the “subsequent events took place within
relative seconds of each other’’; and Officer Periera was speaking to Petitioner when Mr.
(Id. at 21
Petitioner argues that if that information had been
presented to the jury, he would not have been convicted.
Respondent argues that Petitioner is procedurally barred from raising this claim of Thew
evidence’ in his
2255 petition and any such argument needed to be raised in a Rule 33 motion.
See FED. R. CRIM. P. 33(b)(1).
In response, Petitioner argues that the Court should consider this
ground for relief because even though it may be procedurally barred, the evidence itself is
important enough that it warrants an exception.
(Petitioner’s Reply 8-9, ECF No. 10.)
Petitioner’s claim is not procedurally barred, he is not entitled to relief.
In Petitioner’s trial, Officer Benenati testified as follows:
Q Was the defendant questioned about what happened to him that
Q By whom?
A Initially Officer Pereira. Through the investigation all three of us
had spoken to Mr. Dobson.
Q And when Mr. Dobson was giving his account of what happened
to him that night, about where were you?
A Approximately three to five feet from him.
Q While there were you approached by anyone?
A Yes. sir.
Q Who were you approached by’?
A Tall black gentleman, very muscular. Later I learned his name to
be Mr. Larry Langforddavis.
(Dubson. Crim Action No. 08-779, Trial Yr. 2.115:1-14, June 30, 2009, ECF No. 58.)
At another time during direct examination. Officer Benenati again testified on this matter:
Q Sir, would you show the jurors how it was shown to you on the
night of January 5, 2008 by Mr. Langforddavis.
A Yes. He approached me, put his arm around me at the same time.
He lifted up his leg, pulled up his pant leg, exposing the firearm like
so, saying, “1 have my brace right here.”
Q What about the defendant where was he when Langford indicated
the gun to you’?
A Between three and five feet away, right in front of him.
(id. at 2.119:25-2.120:24.)
In Mr. Langforddavis’s trial, Officer Benenati testified as ibllows:
Q What about Dobson, where was he when the defendant displayed
the gun to you’?
A Prior to my attention being thrown to Mr. Langforddavis when he
put his arm around me, Mr. Dobson was sitting on the emergency
room stretcher sitting up less than five feet away I would say.
(United States v. Lang,fórddavis, Crim. Action No. 08-779, Trial ‘Fr. 2.38:15-2.39:6, I)ec.
Clearly, a review of this testimony shows that the oflicer was consistent in his statement
regarding the distance between the Petitioner and himself when Mr. Langforddavis stated that he
was a corrections officer and displayed his gun.
Relief is denied on this ground.
In his final ground for relie1 Petitioner argues that
Juror Number One, while accompanied by the only female black
juror who sat in the trial, informed the Petitioner and two other
individuals that the jury’s foreperson persuaded a finding of guilt
from the other jurors solely on the basis that Mr. Dobson did not
testify in his own defense. This is a clear violation of the
Constitutional guarantee of due process and prohibition against
forcibly obtaining the testimony of the delèndant.
(Pet’r’s Memorandum 21, LCF No. 6.)
Respondent argues that as with the “new evidence” claim,
Petitioner is also procedurally barred from raising this claim in his
Even if the Court were to assume that Petitioner is not barred from raising a claim
regarding juror misconduct in his
§ 2255 petition, he is nevertheless not entitled to relief
Rule 606 of the Federal Rules of Evidence states that:
During an inquiry into the validity of a verdict or indictment, a juror
may not testify about any statement made or incident that occurred
during the jury’s deliberations; the effect of anything on that juror’s
or another juror’s vote; or any juror’s mental processes concerning
the verdict or indictment. The court may not receive a juror’s
affidavit or evidence ofa juror’s statement on these matters.
FED. R. EvID. 606(b)(l).
This rule is intended to preserve the privacy ofjury deliberations as
Exceptions to this rule are testimony about whether: (I ) extraneous prejudicial infbrrnation as
improperly brought to the jury’s attention; (2) an outside influence was improperly brought to bear
on any juror; or (3) a mistake was made in entering the verdict on the verdict lorm. FED. R. Fv!D.
well as the integrity and finality of their verdicts.
Tanner v. (Jailed Stales. 483 U.S. 107. 1 1 8—20
When reviewing a situation factually similar to Petitioner’s, the ihird Circuit
606 to exclude testimony about jury deliberations.
(3d Cir. 1981).
See (Infled Slates
Fried/and, 660 F.2d 919
In that case, after the verdict was announced, a newspaper published an interview
with ajuror indicating that the jury had improperly considered and discussed
the appellants’ failure
Id. at 27.
The trial court refused to conduct an examination of the jurors to verify the
appellants’ claim because any inquiry into the jury’s deliberations would
necessarily have violated
FED. R. EvID. 606(b).
The Third Circuit affirmed, finding that ‘[tjhe inquiry requested by
appellants falls squarely within the prohibition of Rule 606(b). Becaus
e ‘extraneous prejudicial
information’ or ‘outside influence’ were not alleged by appellants,
the inquiry would not have
fallen within the exceptions to the rule.”
id. at 928.
Here, Petitioner is seeking precisely the type of information protected
by Rule 606.
Court were to accept an affidavit or permit testimony from Juror
Number One, according to
Petitioner, he or she would discuss the internal deliberations of the
jury and how he or she felt that
the foreperson improperly influenced other members about Petitio
ner’s failure to testify.
606 forbids this type of inquiry and none of the exceptions apply
because there was no extraneous
prejudicial information and no outside influence.
See Fried/and, 660 F.2d
at 927; see also United
Slates v. Rodriquez, 116 F.3d 1225. 1227 (8th Cir.
1997) (the fact that a defendant did not testify
is not a fact the jurors learned through outside contact, communicatio
n, or publicity and therefore
was not “extraneous information” and did not meet a Rule 606
exception); ( v. Torres
Chavez, 744 F.3d 988. 998 (7th Cir. 2014) (“[t]he juror statements in this case concern only
intrajurv influences on the verdict during the deliberative process, and therefore fall squarely
within the Rule 606(b)( 1) prohibition”) (internal citations and quotation marks omitted): Unileci
States v. Solorzano-Salazar, 904 F.2d 42 (9th Cir. 1990) (“[tlhe fact that [the defendantj did
testify is hardly ‘extraneous’ information or an ‘outside influence.’ To the contrary, any statements
concerning appellant’s failure to testify fall squarely within the rule prohibiting testimony about
juror conduct and statements during deliberations”).
As a result, Petitioner is not entitled to relief
CERTIFICATE OF APPEALABILITY
This Court declines to issue a certificate of appealability because Petitioner has not
demonstrated “a substantial showing of the denial of a constitutional right,” as required under 28
See Miller-El v. C’ockrell, 537 U.S. 322. 327 (2003) (internal quotation marks
For the reasons stated above, Petitioner’s motion is I)ENIED, and no certificate of
appealability shall issue.
An appropriate order fbllows.
Peter G. Sheridan. U.S.l).J,
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