BASKERVILLE v. UNITED STATES OF AMERICA
Filing
49
OPINION filed. Signed by Judge Peter G. Sheridan on 11/15/2018. (km)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
WILLIAM BASKERVILLE,
Petitioner,
Civ. No. 13-588 1 (PGS)
V.
U1.TITED STATES OF AMERICA,
OPINION
Respondent.
PETER C. SHERIDAN, U.S.D.J.
I.
INTRODUCTION
Petitioner, William Baskerville, has filed apro se motion to vacate, set aside or correct
his sentence pursuant to 28 U.S.C.
§
§ 2255. For the following reasons, the majority of petitioner’s
2255 claims will be denied. However, a few of petitioner’s claims will require an evidentiary
hearing. Additionally, this Court will reserve judgment on one of petitioner’s claims until after
the evidentiary hearing. Finally, this Court will order respondent to file a response to one of
petitioner’s motions to expand the record.
II.
FACTUAL AND PROCEDURAL BACKGROUND
In early 2003, petitioner became a target of the Federal Bureau of Investigation (“F.B.I.”)
for his involvement in distributing drugs. (See Crim. No. 03-836 ECF 190 Trial Tr. (“T.T.”) at
p.3473-74)’ Deshawn “Kemo” McCray was a paid informant for the F.B.I. (See T.T. at p.339697) In January, 2003, McCray began purchasing crack cocaine from Terrell Thomas. (See Id. at
p.34’75-’78) Thereafter, Thomas introduced McCray to petitioner. McCray was then advised that
Petitioner’s trial lasted several weeks. The trial transcript encompasses numerous ECF entries
at Crim. No. 03-836, but is sequential. Therefore, this Court will cite to the page numbers of the
trial transcripts (T.T.) throughout the course of this opinion without the corresponding ECF
number.
he could call petitioner directly on his cell phone if he wanted to purchase drugs. (See id. at
p.3478) Subsequently, and throughout the course of 2003, McCray made several drug ptirchases
from petitioner.
Petitioner was part of a larger drug organization at the time of McCray’s drug purchases
from him. Hakeem Curry was the “top guy” of this organization. (See T.T. at p.4355) Petitioner
was below Curry by a few levels in the organization’s hierarchy. (See Id. at p.4356) Below
petitioner was Anthony Young, Jamal McNeil and Jamal Baskerville. (See Id. at p.4357) Below
Young, McNeil and Jamal Baskerville were street-level dealers. (See id.)
Ultimately, petitioner was arrested on November 25, 2003. (See T.T. at p.376 1-62) Paul
Bergrin represented petitioner at his initial appearance on the day of his arrest. (See Id. p.3836)
While petitioner was being detained during the period following his arrest, petitioner
communicated to Richard Hosten, another person who had sold drugs to McCray. Hosten had
been arrested and had an initial appearance the same day as petitioner. Thereafter, when Hosten
and petitioner were back at the Hudson County Jail, Hosten heard petitioner mention the name
of Kemo to whomever he was speaking to on the telephone. (See Id. at p.4286) Thereafter,
petitioner again told Hosten that Kemo was probably the reason that they were in jail. (See Id. at
p.4277-78)
After petitioner’s initial appearance on November 25, 2003, Bergrin and Curry spoke by
phone. At that time, Bergrin told Curry that the name of the confidential informant against
petitioner was “K-Mo.” (See Id. at p.4352) Young, who was present with Curry at the time of
this call between Curry and Bergrin, came to the conclusion that the informant was “Kemo” and
not “K-Mo” as stated by Bergrin, because Curry had repeated the name “K-Mo” after Bergin told
him it over the phone. (See id. at p.4.352)
2
Several days after petitioner’s arrest, a meeting among various associates of the Curry
drug organization took place at Jamal Baskerville’s house. (See T.T. p.4359) Curry, Rakeem
Baskerville, Jamal Baskerville, McNeil, Young and Bergrin were present. (See Id.) At this
meeting, Bergrin told the group that petitioner would not get bail and that petitioner was facing
life imprisonment. (See id. at
p.4.360) However, Bergrin told the group that if Kemo was not
around to testify against petitioner, then there was no case, stating, “no Kemo, no case.” (See Id.
p.4361)
After Bergrin left, the group remaining then discussed how to find Kemo McCray so that
he would not testify against petitioner. (See Id. at p.4362) Curry and Rakeem Baskerville agreed
to pay $15,000 to either Young or McNeil to kill Kemo McCray. (See Id. at p.4.363)
From November, 2003 to March, 2004, Jamal McNeil visited petitioner in jail from time
to time. (See id. at p.43’76) During these meetings, petitioner told McNeil that Kemo McCray
needed to be killed quick or else he was going to spend the rest of his life in prison. (See Id. at
p.43 76)
On March 2, 2004, McCray was discovered by the Curry drug organization. (See id.
p.4.380) At that time, Curry instructed Young to kill McCray since Young had already been
given $7500 to complete the murder. (See Id. at p.4382) Curry gave Young a gun to kill McCray.
(See Id. at p.4383)
Ultimately, Young and Rakeem Baskerville found McCray in Newark, New Jersey. As
McCray was walking with his stepfather, Ronnie Davis, Young approached McCray, then shot
and killed McCray. (See id. at p.4399-4.4.00)
3
After McCray had been shot and killed, the F.B.I. visited petitioner in prison to question
him about McCray’s murder. (See Id. at p.4.753) Petitioner became upset after one of these visits.
(See id.)
Petitioner had had discussions with other inmates about McCray both before and after
McCray’s murder. Indeed, Troy Bell, another prisoner, stated that petitioner told him at one point
that, “all I know, my informant could be dead. He said, my dudes is looking for him to put a
bullet in his melon, but they can’t find him.” (See id. at p.5060) Bell also stated that petitioner
told him he knew who his informant was, that he told this information to his brother Rakeern
Baskerville, and that he told him to “handle it.” (See id. at p.506’7) Eric Dock, another prisoner,
similarly stated that petitioner told him that his brother was out there looking for his informant
and that they were “trying to put a hole in his melon.” (See id. at p.5263) Subsequent to
McCray’s murder, petitioner told one of his fellow prisoners, Eddie Williams, that he would
have been a fool to tell the F.B.I. he had the murder done, even though he did. (See id. at p.4753)
In January, 2005, Young came to the F.B.I. to explain that he was involved in the murder
of McCray. (See 1.1. at p.3871) Young knew facts about the murder such as the positioning of
McCray’s body after he was killed, and that McCray also had a cigarette and a dust mask. (See
Id. at p.3891) Ultimately, Young pled guilty to murdering a witness. Under a cooperating
agreement, Young agreed to testify truthfully for the government. (See Id. at p.4596)
On June 29, 2006, a Fourth Superseding Indictment was returned against petitioner. (See
Crim. No. 03-83 6 ECF 82) Petitioner was charged with several counts of drug offenses as well as
two counts related to the murder of McCray; namely conspiracy to murder a witness and
conspiracy to retaliate against an informant.
In 2007, petitioner went on trial before now retired District Judge Joel A. Pisano.
4
During jury selection, the District Court and parties settled on a
venire of fifty-two potential jurors. The prosecution exercised
peremptory challenges to strike four of the five African American
venirepersons. The defense objected, claiming that the prosecutors
impermissibly used peremptory challenges to prevent African
Americans from being seated on the jury. See Batson v. Kentucky,
476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) (holding
that the use of peremptory challenges on account of race violates
the Equal Protection Clause). In response, the prosecution
volunteered explanations for its use of peremptory challenges
principally focused on the stricken jurors’ attitudes toward the
death penalty and relation to convicted criminals. Defense counsel
did nothing to challenge the proffered explanations and the District
Court overruled defense counsel’s objection, finding that the
prosecution’s reasons were race-neutral, credible, and not
pretextual.
Prior to trial, the prosecution filed a motion in limine seeking to
introduce statements made by McCray while alive, pursuant to the
forfeiture-by-wrongdoing exception to the ban on hearsay set forth
in Federal Rule of Evidence (“FRE”) 804(b)(6). Rather than hold a
pretrial evidentiary hearing to determine whether the exception’s
elements were met, as defense counsel requested, the District
Court reviewed the prosecution’s extensive proffer of evidence
connecting [William] Baskerville to McCray’s murder. The District
Court then indicated that it would admit the statements subject to
the prosecution’s making of the necessary connection at trial.
Shortly before the end of trial, the District Court ruled definitively
that the prosecution had made the necessary showing to admit
McCray’s statements under FRE 804(b)(6).
The District Court so ruled based upon evidence that the
prosecution introduced in support of the charges against [William]
Baskerville related to McCray’s murder. That evidence consisted
primarily of testimony by the gunman, Anthony Young, who
testified that Baskerville had Bergrin transmit McCray’s identity as
an informant to several associates and told one associate to act
quickly in killing McCray or else [William] Baskerville would lose
the case. Young understood [William] Baskerville to have
instructed the group to kill McCray. [William] Baskerville’s
ceilmate corroborated Young’s understanding with testimony that
[William] Baskerville admitted lying to F.B.I. agents when he
denied having McCray killed.
United States v. Baskerville, 448 F. App’x 243, 245-56 (3d Cir. 2011).
5
One of the witnesses who testified at petitioner’s trial was F.B.I. Special Agent Shawn
Manson.2 Manson testified for several days at petitioner’s trial. Her testimony included her
interactions with McCray as well as evidence McCray provided the government as an informant
and purchaser of drugs from petitioner. Another witness for the government was Anthony
Young. Young’s testimony included phone calls between Bergrin and Curry on the day petitioner
was arrested, a meeting between Bergrin and members of the drug organization after petitioner
was arrested, his subsequent killing of McCray, and what he did after the killing.
After weeks of testimony, petitioner was eventually convicted by a jury on all counts.
The jury declined to impose the death penalty against petitioner. Instead, petitioner was
sentenced to nine concurrent terms of life imprisonment. (See Crim. No. 03-836 ECF 244)
Petitioner directly appealed to the United States Court of Appeals for the Third Circuit.
Petitioner raised the following claims on his initial direct appeal:
1. The prosecutor’s proffered reasons for striking four of the five black jurors on the jury
venire were pretexts for racial discrimination, in violation of Batson v. Kentucky, 476
U.S. 79 (1986).
2. The District Court erred by allowing the government to introduce out-of-court statements
made by Kemo McCray.
3. The government failed to present sufficient evidence to prove beyond a reasonable doubt
that petitioner was complicit in the murder of Kemo McCray.
Thereafter, the government filed a motion to remand the case to the District Court for further
fact-finding. This occurred as a result of the government’s appellate attorney who reviewed the
2
At some point after petitioner’s trial, Manson changed her last name to Brokos. For purposes of
this opinion, and to avoid confusion, this Court will use the last name that the Special Agent had
at petitioner’s trial, namely Manson.
6
rough notes from jury selection of the trial Assistant United States Attorneys that were not part
of the record on appeal. The Third Circuit granted this partial remand for further proceedings.
On remand, Judge Pisano determined that petitioner’s Batson objections would remain
overruled. Judge Pisano denied petitioner’s motion for a new trial. (See Crim. No. 03-83 6 ECF
287 & 288) Thereafter, the matter was again appealed to the Third Circuit. Petitioner added a
claim on this appeal that the District Court erred by denying his motion for a new trial because
the prosecution did not disclose evidence favorable to the defense.
Ultimately, the Third Circuit affirmed the District Court’s judgment of conviction.
Baskerville, 448 F. App’x 243. The Third Circuit failed to find any error, let alone, plain error,
“that would lead [them] to disturb the District Court’s ruling that the prosecutor’s race-neutral
reasons were credible.” Id. at 247. Furthermore, the Third Circuit noted that they did “not find
the points of comparison between jurors that Baskerville urges to be so blatant that the District
Court should have easily recognized that the Government’s reasons lacked credibility.” Id. at
248. With respect to the juror notes by the government, the Third Circuit determined that:
[m]erely making notes of a juror’s race, as the prosecution did, is
insufficient alone to support a finding of discriminatory intent.
Similarly, the grading system used by the prosecutors, without
more, does not lead us to conclude that the Government
intentionally discriminated.
Id. at 249.
The Third Circuit also rejected petitioner’s claim that the District Court had erred by
admitting McCray’s statements pursuant to the forfeiture-by-wrongdoing exception to hearsay
under Federal Rule of Evidence 804(b)(6). The Third Circuit determined that the government
had made a sufficient showing of petitioner’s actions and intent that procured McCray’s
unavailability at trial. See Baskerville, 448 F. App’x at 249-250.
7
Petitioner’s sufficiency of the evidence claim on the murder conspiracy convictions was
also denied. Indeed, the Third Circuit stated as follows:
There was sufficient evidence from which a jury could have found
that [William] Baskerville intended to prevent McCray from
testifying at his trial. Testimony from Anthony Young, the gunman
who shot McCray, supported the jury finding that [William]
Baskerville directed Bergrin to pass along McCray’s identity to
several associates after identifying him as the informant. Further
testimony by Young indicated that the associates to whom
McCray’s identity was passed understood the message to be an
instruction from [William] Baskerville to have McCray killed.
[William] Baskerville’s ceilmate corroborated as much when he
testified that Baskerville admitted responsibility for the murder
because without McCray the prosecution had no drug case against
him. This and other evidence, if credited by a jury, could easily
lead it to conclude, beyond a reasonable doubt, that [William]
Baskerville participated in the conspiracy to murder McCray with
intent to prevent him from testifying at trial.
Id at 250—51.
Finally, the Third Circuit denied petitioner’s claim raised pursuant to Brady v. Maryland,
373 U.S. 83 (1963), that the prosecution failed to disclose evidence that Bergrin participated in
the murders of witnesses in unrelated cases. See Baskerville, 448 F. App’x at 251-52. Indeed, the
Third Circuit determined that “[e]vidence that Bergrin helped retaliate against witnesses in other
cases would not have proved favorable to the defense.” Id. at 251. Furthermore, the Third Circuit
determined that the undisclosed evidence was not material to petitioner’s guilt. See id. at 252.
Petitioner then filed a petition for writ of certiorari to the United States Supreme Court.
The Supreme Court subsequently denied petitioner’s petition for writ of certiorari. See
Baskerville v. United States, 568 U.S. 827 (2012).
As petitioner’s trial was ongoing at the District Court and appellate level on direct appeal,
the government brought federal criminal charges against Bergrin. Among one of the charges
filed against Bergrin was witness-tampering for his role in facilitating the murder of McCray.
8
Bergrin’s criminal proceedings were initially before District Judge William J. Martini. Judge
Martini ordered the McCray murder counts to be severed and tried first and separate from the
rest of the charged crimes against Bergrin. Bergrin went to trial on the two counts related to the
McCray murder in late 201 i. Ultimately, that trial resulted in a mistrial after the jury could not
return a verdict. The government then appealed various evidentiary rulings prior to the retrial of
Bergrin. The Third Circuit then vacated one of the District Court’s evidentiary rulings and
remanded the matter, albeit to a different District Judge. See United States v. Bergrin, 682 F.3d
261 (3d Cir. 2012).
Bergrin was retried in 2013 before now retired District Judge Dennis M. Cavanaugh. At
that trial, and most relevant to petitioner’s action currently before this Court, Bergrin was
convicted on the counts related to McCray’s murder. On appeal to the Third Circuit, Bergrin
asserted that the government provided insufficient evidence to convict him on the counts related
to the McCray murder. The Third Circuit denied this claim, stating as follows:
The record is replete with evidence to support the Government’s
claim that Bergrin was “house counsel” to Hakeem Curry’s drugtrafficking organization. In that capacity, Bergrin was retained to
represent Curry’s underlings to ensure that they did not cooperate
with authorities. One such underling was William Baskerville, who
was arrested on November 25, 2003, for selling crack cocaine to a
confidential witness. [William] Baskerville deduced the identity of
the confidential witness and disclosed it to his lawyer, Bergrin,
who then called Curry to advise him that the witness was “K—Mo.”
Anthony Young, who was with Curry when he received Bergrin’s
call, recognized “K—Mo” as Kemo McCray. Soon thereafter,
Bergrin met with Curry and several of his associates. According to
Young, Bergrin told the group that [William] Baskerville “was
facing life in prison for that little bit of cocaine,” App. 3281, and
“if Kemo testify against Will, Will was never coming home. He
said don’t let Mr. McCray testify against Will, and if he don’t
testify, he’ll make sure he gets Will out ofjail,” App. 3282. Bergrin
repeated: “no Kemo, no case,” a phrase he reiterated upon leaving
...
...
Bergrin’s 2011 trial will be designated as “Bergrin I” for purposes of this opinion.
Bergrin’s 2013 trial will be referred to as “Bergrin II” for purposes of this opinion.
9
the group while pointing his finger. App. 3282, 3283. A few
months later, Young shot McCray to death.
Although the aforementioned excerpts from the record are enough
to sustain Bergrin’s convictions related to the McCray murder,
there is much more. For example, Bergrin told another client that
he would kill an informant named Junior and that “it wasn’t his
first time,” App. 6855; see also App. 6853, which a rational juror
could infer was a reference to the McCray murder. Rather than
denying culpability, Bergrin boasted to his law partner, Thomas
Moran, that the Government lacked evidence to convict him of
McCray’s murder, further supporting the same inference. Finally,
the jury was allowed to infer that Bergrin had the ultimate motive
to prevent McCray from testifying against [William] Baskerville
because, had [William] Baskerville been incentivized to cooperate
against Curry, the Government might have “climbed the ladder” to
Bergrin himself.
United States v. Bergrin, 599 F. App’x 439, 440—41 (3d Cir. 2O14).
After petitioner’s direct appeal concluded, he filed apro se
§ 2255 motion in this Court.
Petitioner raises a plethora of claims in his petition. First, he asserts numerous ineffective
assistance of trial counsel claims; they are as follows:
1. Failure to investigate audio of March 21, 2003 surveillance video (“Claim I”).
2. Failure to investigate phone system at the Hudson County Jail (“Claim II”).
3. Failure to investigate Anthony Young (“Claim III”).
4. Failure to investigate drug evidence chain of custody (“Claim IV”).
5. Failure to investigate witness Anthony Young on material facts (“Claim V”).
6. Failure to challenge jailhouse informant testimony (“Claim VI”).
7. Failure to challenge drug evidence based on faulty chain of custody (“Claim VII”).
8. Failure to object to and challenge speculative and improper testimony from Anthony
Young (“Claim VIII”).
Bergrin has a pending § 2255 motion that is currently pending before Chief Judge Jose L.
Linares. (See Civ. No. 16-3040)
10
9. Failure to object to hearsay testimony from Anthony Young (“Claim IX”).
10. Failure to object to hearsay testimony by Agent Manson (“Claim X”).
11. Failure to object to hearsay testimony from Marshal Cannon (“Claim XI”).
12. Failure to meaningfully cross-examine witnesses Manson, Young and Dock (“Claim
XII”).
13. Failure to properly preserve the Batson issue (“Claim XIII”).
14. Failure to challenge grand jury irregularities (“Claim XIV”).
15. Failure to challenge the obstructive nature of the delays and restrictions relative to
discovery (“Claim XV”).
16. Failure to object/preserve the jury instruction that relieved the government of its burden
of proof on counts 1 and 2 (“Claim XVI”).
17. Failure to object/preserve the issue of a constructive amendment of the indictment
(“Claim XVII”).
18. Failure to object/preserve the jury instruction that insufficiently defined conspiracy
(“Claim XVIII”).
19. Failure to seek a bifurcated trial (“Claim XIX”).
20. Failure to object to an illegal sentence (“Claim XX”).
In addition to these ineffective assistance claims, petitioner also alleges that appellate
counsel was ineffective for failing to advance the following issues on appeal:
1. The confrontation!hearsay issues stemming from the testimony of Marshal Cannon
(“Claim XXI”).
2. The insufficient evidence with respect to the agreement element required to sustain the
conspiracy convictions in counts 1 and 2 (“Claim XXII”).
11
3. The government’s failure to correct known perjured testimony by Anthony Young and
Agent Manson (“Claim XXIII”).
4. Prejudicial errors with respect to the jury instructions (“Claim XXIV”).
5. Sentencing errors (“Claim XXV”).
6. Additional plain errors with the trial record (“Claim XXVI”).
7. Lack of subject matter jurisdiction as to all charges (“Claim XXVII”).
8. Any issues identified with respect to trial counsel’s ineffectiveness that could have been
raised on appeal (“Claim XXVIII”).
Petitioner also claims that he is entitled to relief due to the cumulative errors associated
with his ineffective assistance of counsel claims (“Claim XXIX”).
Petitioner claims he also has newly discovered evidence which shows that his convictions
are constitutionally infirm and should be vacated (“Claim XXX”). Within this claim are
numerous sub-claims, they are as follows:
a.
Inconsistencies relative to the government’s theory as to the motive of the McCray
murder.
b. Inconsistent testimony by Manson on the issues of how, when and from whom, she
learned information relative to the McCray murder.
c. Numerous material inconsistencies and conflicts with Young’s testimony.
d. Additional inconsistencies and conflicts as to highly material matters.
e. Eyewitness information that cast doubt on the foundation of the government’s case as
related to the murder counts.
Finally, petitioner claims he is entitled to relief due to prosecutorial misconduct (“Claim
XXXI”). Again, within this claim there are several subclaims; they are:
12
a.
Withholding audio recordings.
b. Allowing perjured testimony on material matters to go uncorrected.
c.
Presenting different theories of motive on the McCray murder at petitioner’s and
Bergrin’s trial.
d. Government gaining an unfair advantage in obtaining favorable evidentiary rulings
due to its lack of disclosure of newly discovered evidence.
Respondent filed a response in opposition to petitioner’s
§ 2255 motion.
Thereafter, this
matter was reassigned to the undersigned in light of Judge Pisano’s retirement. Subsequently,
petitioner filed a reply in support of his
§
2255 motion.
After the matter was fully briefed, petitioner filed several documents seeking to expand
the record in this case. The government did not respond to many of these requests except
petitioner’s most recent motion to expand the record. With respect to petitioner’s final motion to
expand the record, the government expressly states that it does not object to that particular
motion.
III.
LEGAL STANDARD FOR
§ 2255 MOTION
A motion to vacate, set aside or correct a sentence of a person in federal custody pursuant
to 28 U.S.C.
§
2255 entitles a prisoner to relief if “the court finds.
.
.
[t]here has been such a
denial or infringement of 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 Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989))
(citing R. Governing
§
2255 Cases R. 4(b)). A District Court “is required to hold an evidentiary
13
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). The Third Circuit has stated that this
standard creates a “reasonably low threshold for habeas petitioners to meet.” Id. (quoting
United States v. McCoy, 410 F.3d 124, 134 (3d Cir. 2005) (quoting Phillips v. Woodford, 267
F.3d 966, 973 (9th Cir. 2001))). Accordingly, this Court abuses its discretion “if it fails to hold
an evidentiary hearing when the files and records of the case are inconclusive as to whether the
movant is entitled to relief.” Id. (citing McCoy, 410 F.3d at 134).
IV.
DISCUSSION
Most of petitioner’s claims assert that either trial or appellate counsel were ineffective.
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 reasonableness. See id.
at 688; see also Grant v. Lockett, 709 F.3d 224, 232 (3d Cir. 2013) (noting that it is necessary to
analyze an ineffectiveness claim in light of all of the circumstances) (citation omitted). A
petitioner must identify the acts or omissions that are alleged not to have been the result of
reasonable professional judgment. See Strickland, 466 U.S. at 690. Under this first prong of the
Strickland test, scrutiny of counsel’s conduct must be “highly deferential.” See id. at 689. Indeed,
“[c]ounsel 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”
14
about his plausible options, the strategic choices he makes accordingly are “virtually
unchallengeable.” Gov ‘t of Virgin Islands v. Weatherwax, 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
prejudice. 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 sufficient to undermine confidence in the
outcome.” Id.; see also McBridge v. Superintendent, SCI Houtzdale, 687 F.3d 92, 102 n. 11 (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 more-probable-thannot 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 citations omitted).
“With respect to the sequence of the two prongs, the Strickland Court held that ‘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.
.
.
.
ineffectiveness claim on the ground of lack of sufficient prejudice.
If it is easier to dispose of an
.
.
that course should be
followed.” Rainey v. Varner, 603 F.3d 189, 201 (3d Cir. 2010) (quoting Strickland, 466 U.S. at
697). Additionally, “claims of ineffective assistance of appellate counsel are also governed by
15
the Strickland standard.” Lusick v. Palakovich, 270 F. App’x 108, 110 (3d Cir. 2008) (citing
United States v. Mannino, 212 F.3d 835, 840 (3d Cir. 2000)).
A. Claim I
—
Failure to Investigate Audio of March 21, 2013 Surveillance Video
In Claim I, petitioner states that was told by his trial counsel that “you could not impeach
a federal agent.” (ECF 1-1 at p.3) Petitioner asserts that trial counsel’s failure to impeach a
federal agent manifested itself when trial counsel failed to investigate and impeach Manson with
the audio of a surveillance video taken on March 21, 2003. The video was taken by the F.B.I.
and shows a drug purchase by McCray. Petitioner claims that the video illustrates that Manson
was not certain of highly material matters such as the identity of the subject in the video,
specifics of the vehicle used such as the make, model, color, number of doors and license plate
number, as well as whether or not a transaction took place. Indeed, petitioner appears transfixed
on Manson’s statement during trial that “[w]e were able to get the license plate. I actually saw it
very clearly, although you can’t see it on the videotape.” (T.T. at p.35’73) Petitioner states that
the video was presented at trial without audio and that Manson filled in the gaps at trial regarding
audio that was not played. Petitioner then argues as follows:
Trial counsel failed to investigate the missing information evident
from the audio and exploit that highly material information to
demonstrate that Agent Manson gave a narration at trial that was
entirely inconsistent with her contemporaneous and unintentionally
recorded understanding of the relevant events even though
defendant-movant provided the recording and there was no
strategic reason not to use the same to cast doubt on the narration
of events provided by Agent Manson at trial... The failure of
trial counsel to investigate this highly material audio recording and
use the same to establish the reasonable doubt the recording does
give rise to was not within the bounds of reasonable competent
advocacy.
.
(ECF 1 at p.4.)
16
The government asserts that counsel had a specific trial strategy for not introducing the
audio portion of the drug transaction video. Relying on affidavits from petitioner’s trial counsel,
the government claims that the audio would have served to make the event more real in the
jury’s mind and the audio would not have contradicted Manson’s trial testimony on any material
aspect of the drug case. (See ECF 16-1 at p.7 & 16-2 at p.8)
This Court ordered the government to provide it with a copy of the video after it failed to
do so within its initial filings in this case. (See ECF 35) Respondent then complied with that
order. This Court has now had the opportunity to review that surveillance video along with its
corresponding audio, as well as Manson’s testimony at petitioner’s trial. For the following
reasons, this Court finds petitioner is not entitled to relief on this claim.
The video makes clear that Manson was part of a larger F.B.I. surveillance team on the
day it was made, March 21, 2003. While it is true at one point on the video Manson states that
she cannot view the license plate of the vehicle in question, a review of the video clearly reveals
the license plate of the vehicle. Thus, it was not necessarily inconsistent when she testified that
“we were able to get the license plate.” (T.T. at p.35’73) While it is true that she then testified
with respect to the license plate that she “saw it very clearly,” presumably meaning when the
video was taken, this Court does not see how impeaching her using the audio would have
changed the result of the proceeding to a reasonable probability given that the license plate was
clearly visible from the video itself. Accordingly, petitioner is not entitled to federal habeas relief
on Claim I.
B. Claim II
—
Failure to Investigate Phone System at Hudson County Jail
In Claim II, petitioner asserts that trial counsel failed to investigate the issue of telephone
monitoring/recording capabilities at the Hudson County Jail. He claims that:
17
[t]he reason that issue was very important was because it was the
government’s position that defendant/movant made incriminating
calls with regard to the alleged plot/conspiracy to kill Kemo
Deshawn McCray (“McCray”), a government informant/witness, at
issue in Counts 1 and 2 of this case, but that the reason the
government could not present any recordings to establish that
premise was because the Hudson County jail did not have the
capability of recording calls during the time period
defendant/movant was there.. Had trial counsel conducted the
investigation defendant-movant requested in this regard, it would
have been learned that the Hudson County jail did in fact have the
recording capabilities the government claimed it did not have[.]
.
.
(ECF I at p.5) According to petitioner, had trial counsel investigated the recording capability
issue further, it would have created a basis for the jury to have reasonable doubt to convict him.
Petitioner claims further investigation by counsel would have exposed the jury to the
government’s attempt to mislead them on whether the Hudson County Jail had recording
capabilities of inmate phone calls.
At trial, Deputy Marshal William Cannon testified for the government. He testified that
the Hudson County Jail is a facility that the United States Marshals Service detains federal
prisoners. (T.T. at p.5466) He further testified that the Hudson County Jail did not have the
capability of recording prisoners’ telephone calls prior to November, 2006. (See id.)
With respect to determining whether counsel can be deemed ineffective for failing to
investigate, one court in this District has explained:
In Strickland, the Supreme Court held that trial counsel “has a duty
to make reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary. In any
ineffectiveness case, a particular decision not to investigate must
be directly assessed for reasonableness in all the circumstances,
applying a heavy measure of deference to counsel’s judgments.”
466 U.S. at 691. “The failure to investigate a critical source of
potentially exculpatory evidence may present a case of
constitutionally defective representation,” and “the failure to
conduct any pretrial investigation generally constitutes a clear
instance of ineffectiveness.” United States v. Travillion, 759 F.3d
281, 293 n.23 (3d Cir. 2014) (internal quotations omitted); see also
United States v Gray, 878 F.2d 702, 711 (3d Cir. 1989) (noting that
a complete absence of investigation usually amounts to ineffective
assistance because a counsel cannot be said to have made an
informed, strategic decision not to investigate); United States v.
Baynes, 622 F.2d 66, 69 (3d Cir. 1980).
Where a Petitioner can show that counsel’s failure to investigate
amounts to deficient performance, he must still show prejudice. In
order to do so,
a defendant basing an inadequate assistance claim
on his or her counsel’s failure to investigate must
make “a comprehensive showing as to what the
investigation would have produced. The focus of
the inquiry must be on what information would
have been obtained from such an investigation and
whether such information, assuming admissibility in
court, would have produce a different result.”
United States v. Askew, 88 F.3d 1065, 1073 (D.C. Cir. 1996)
(quoting Sullivan v. Fairman, 819 F.2d 1382, 1392 (7th Cir.
1987)); see also United States v. Lathrop, 634 F.3d 931, 939 (7th
Cir. 2011) (“[wlhen a petitioner alleges that counsel’s failure to
investigate resulted in ineffective assistance, the petitioner has the
burden of providing the court with specific information as to what
the investigation would have produced”); United States v. Green,
882 F.2d 999, 1002 (5th Cir. 1989) (“A defendant who alleges a
failure to investigate on the part of his counsel must allege with
specificity what the investigation would have revealed and how it
would have altered the outcome” of Petitioner’s case); accord
Untied States v. Garvin, 270 F. App’x 141, 144 (3d Cir. 2008).
Brown v. United States, No. 13-2552, 2016 WL 1732377, at *4_5 (D.N.J. May 2, 2016).
Petitioner fails to show that he is entitled to relief on this ineffective assistance of counsel
claim. He has come forward with nothing to indicate that further investigation by his trial
counsel would have revealed that the Hudson County Jail had the capacity and capability to tape
his phone calls during the period at issue. Accordingly, he fails to show prejudice even if counsel
had investigated this issue because he has not come forward with any evidence to show that the
facility did have the capability to record prisoners’ phone calls at that time. See, e.g., United
19
States v. Williams, 166 F. Supp. 2d 286, 306-07 (E.D. Pa. 2001) (denying ineffective assistance
of counsel claim where defendant made no showing as to what type of evidence would have been
revealed with more investigation as “[b]ald assertions and conclusory allegations do not afford a
sufficient ground for an evidentiary hearing in habeas corpus matters.”) (quoting Mayberry v.
Petsock, 821 F.2d 179, 185 (3d Cir. 1987)); see also Lewis v. Mazurkiewicz, 915 F.2d 106, 115
(3d Cir. 1990) (“With respect to trial counsel’s decision not to interview Miller, petitioner has
failed to show a reasonable likelihood that such an interview would have produced any useful
information not already known to trial counsel[.]”) Therefore, petitioner is not entitled to relief
on Claim II.
C. Claim III
-
Failure to Investigate Anthony Young
In Claim III, petitioner claims that trial counsel should have investigated and challenged
Young regarding his trial testimony with respect to who was present in Curry’s vehicle when
Curry received a call from Bergrin at around 4:00 p.m. on November 25, 2003. During this call,
Bergrin told Curry that the confidential informant was K-Mo.
At petitioner’s trial, Young testified that himself, Curry and Rakeem Baskerville were
present in Curry’s vehicle when Curry received this call from Bergrin. (T.T. at p.43 50-51)
However, petitioner states that Curry then called Rakeem Baskerville immediately after
Bergrin’s 4:00 p.m. call, indicating that Rakeem Baskerville was not in Curry’s vehicle at the
time of the Bergrin phone call. During this subsequent call, Curry asked Rakeem Baskerville
who was K-Mo. Petitioner claims trial counsel had these audio recordings in their possession and
that they were ineffective by not impeaching Young on his testimony that Rakeem Baskerville
was physically present in Curry’s vehicle at the time of the Curry/Bergrin phone call. In his
reply, petitioner claims this is important because it relates to when, how and by whom the
20
confidential informant was identified. Indeed, during petitioner’s trial, Young testified that he
and Rakeem Baskerville came to the conclusion that the informant was Kemo, not K-Mo as
stated by Bergrin during the 4:00 p.m. call to Curry. (See T.T. at p.4352)
Even if counsel had investigated and impeached Young on this point of Rakeem
Baskerville’s presence in the vehicle, it would not have changed the outcome of the proceeding
to a reasonable probability. First, whether Rakeem Baskerville was in this vehicle or not at the
precise time of the Bergrin call would not have made much difference at trial. Indeed, what was
important at trial was what was said on the call. Immediately after the call, Curry called Rakeem
Baskerville asking who was K-Mo. Thus, Young’s testimony at trial corroborated what was said
on the call, namely Bergrin naming the confidential informant as K-Mo. (See T.T. at p.4.352)
Furthermore, the audio recordings indicate that Curry then called Rakeem Baskerville. Young
then testified that he and Rakeem came to the conclusion that the informant was Kemo. This is
not incredible given Rakeem Baskerville’s knowledge immediately after the Bergrin 4:00 p.m.
phone call. Accordingly, petitioner fails to show that he is entitled to relief on this claim as he
has not shown prejudice.6
D. Claim IV
—
Failure to Investigate Chain-of-Custody Drug Evidence
In Claim IV, petitioner alleges that trial counsel should have fully explored the chain-ofcustody drug evidence that McCray purchased from petitioner. Indeed, he states that he asked
trial counsel to move to suppress the DEA Form-7 exhibits pertaining to the drugs since there
was a break in the chain-of-custody. In his reply, petitioner bases his chain-of-custody argument
as follows:
6
To the extent that petitioner also asserts in this claim that the prosecutor’s knowingly permitted
perjured testimony by allowing Young to testify Rakeem Baskerville was present, that argument
will be discussed infra.
21
Petitioner asserts that the Government failed to establish a
sufficient chain of custody showing that the cocaine described in
DEA Form-7 report was the same substance seized on the
occasions described in the indictment. Where the DEA Form-7
reports describe alleged seizures from the “Crips Street Gang,” the
indictment alleged controlled purchases from Petitioner.
(ECF 29 at p.25)
Petitioner is not entitled to relief on this claim. Manson explained at trial why some of the
DEA Forms listed the drug evidence as coming from the “Crips Street Gang.” Petitioner is
correct as a factual matter that some of the forms do indeed state that the evidence came from the
“Crips Street Gang” while others state the evidence came from William Baskerville. However,
Manson explained that they did not convert the paperwork until April, 2003, because that is
when the investigation shifted to specifically target William Baskerville. (T.T. at p.4001) Thus,
this difference does not show a break in the chain-of-custody necessarily.
Furthermore, it is worth noting that trial counsel did elicit from Manson at trial that there
were errors in the forms. More specifically, counsel elicited from Manson that some of the forms
indicated that the drugs were “seized” when in actuality they should have been marked as
“purchased.” (See T.T. at p.4.00 1-02) The Supreme Court has explained that chain of custody
gaps go to the weight of the evidence, not their admissibility in the ordinary case. See Melendez
Diaz v. Massachusetts, 557 U.S. 311 n. 1 (2009); United States v. Rawlins, 606 F.3d 73, 82-83
(3d Cir. 2010) (noting while serious gaps may render a chain of custody so deficient that
exclusion is required, “in the ordinary case gaps in the chain go to the weight of the evidence, not
its admissibility.”) (internal quotation marks and citations omitted). Trial counsel noticed and
brought forth at trial the errors in the forms for the jury to consider. Accordingly, and for these
reasons, petitioner fails to show that he is entitled to relief on this ineffective assistance of
counsel claim.
22
E. Claim V
—
Failure to Investigate Anthony Young on Material Facts by Calling Other
Witnesses
In Claim V, petitioner argues that certain witnesses who were not called by his trial
counsel would have established that Young’s testimony on material matters was false. According
to petitioner, these witnesses would have challenged Young’s credibility on several points, such
that their testimony would have created reasonable doubt as to his two convictions arising out of
the murder of McCray.
i.
Jamal Baskerville & Jamal McNeil
Petitioner argues that trial counsel should have investigated and called as witnesses Jamal
Baskerville and Jamal McNeil. Petitioner submitted his own declaration regarding what their
testimony would have been if counsel had investigated and called them at trial. With respect to
Jamal Baskerville, petitioner asserts in his declaration that Jamal Baskerville would have
testified at trial as follows: (1) that there was no meeting in front of his house on November 25,
2003 between Diedra Baskerville, Rakeem Baskerville, Jamal McNeil, Hamid Baskerville,
Hakeem Curry and Anthony Young; (2) that there was no second meeting 4-10 days after
petitioner’s arrest between Paul Bergrin, Hakeem Curry, Rakeem Baskerville, Jamal McNeil and
Anthony Young where Bergrin said “No Kemo, no case”; (3) that he never told Young where he
could find McCray so he could kill him; and (4) that petitioner never communicated to him that
he wanted him or anyone else to harm McCray. (ECF 1-1 at p.6)
With respect to Jamal McNeil, petitioner asserts in his declaration that McNeil would
have testified as follows: (1) that he did not attend any meeting on November 25, 2003 at Jamal
Baskerville’s house among Diedra Baskerville, Rakeem Baskerville, Hamid Baskerville, Jamal
Baskerville, Hakeem Curry and Anthony Young; (2) that petitioner never implied that he wanted
23
anyone to kill McCray; (3) that he never communicated to anyone that petitioner wanted anyone
to kill McCray; and (4) that petitioner had no knowledge of the conspiracy to kill McCray.
Petitioner is not entitled to relief on his claim that his attorney failed to investigate and
call Jamal Baskerville7 and Jamal McNeil as witnesses. In the ineffective assistance of counsel
context, “[p]rejudice ‘requires more than just a ‘conceivable’ likelihood of a different result.” All
v. Nogan, No. 13-7364, 2016 WL 8678443, at *7 (D.N.J. Apr. 1, 2016) (quoting Grant v.
Lockett, 709 F.3d 224, 235 (3d Cir. 2013) (quoting Harrington v. Richter, 131 S. Ct. 770, 792
(2011))) (other citations omitted). In Duncan v. Morton, 256 F.3d 189, 202, (3d Cir. 2001), the
Third Circuit found that a habeas petitioner’s failure to present any sworn testimony by the
witnesses the habeas petitioner claimed counsel should have investigated and called as a witness
amounted to a failure to establish Strickland prejudice. See id. (“In light of Duncan’s failure to
present any sworn testimony by Sherman, he has failed to establish prejudice as a result of
[counsel’s] failure to interview Sherman.”) (emphasis added). In the
§ 2255
context, other courts
have similarly found that a petitioner needs to provide a sworn statement of fact from the
proposed witness regarding what they would have testified to if a
§ 2255 petitioner is to establish
Strickland prejudice. See Huggins v. United States, 69 F. Supp. 3d 430, 446 (D. Del. 2014)
(noting that movant did not provide an affidavit from the witness stating that he would have been
available to testify and or describing his potential testimony); Karamos v. United States, No. 040 171, 2005 WL 2777552, at *4 (D.N.J. Oct. 24, 2005) (“[T]he Court cannot conclude that
Petitioner was prejudiced by counsel’s failure to investigate or call these individuals as witnesses
It is worth noting that Bergrin attempted to call Jamal Baskerville as a witness in Bergrin I.
After Jamal Baskerville met with an attorney, it was represented by counsel that Jamal
Baskerville would plead his Fifth Amendment rights. (See 09-cr-369 ECF 317 at p.117) Jamal
Baskerville thus never testified during Bergrin’s criminal proceedings.
24
because Petitioner has failed to provide a sworn statement of facts from any of the seventeen
detailing their proposed testimony.”)
In this case, petitioner failed to provide any type of sworn statements from Jamal
Baskerville and Jamal McNeil that they would have been willing or able to testify. Given this
omission, petitioner’s declaration as to what these witnesses would have testified to amounts to
speculation that is insufficient to grant him relief, or at a minimum, conduct an evidentiary
hearing on this claim with respect to these two witnesses.
ii.
Paul Feinberg, Esq.
Petitioner also claims that he requested that counsel contact Paul Feinberg, Esq., as a
potential witness. Feinberg was Young’s original lawyer. According to petitioner, he requested
that counsel investigate Feinberg to determine: (1) whether he represented Young when he
contacted the F.B.I. on January 14, 2005 as he claimed; (2) whether he had ever advised Young
to not implicate himself and lie to the F.B.I. while meeting them; and (3) whether he gave
Manson consent for the F.B.I. to speak to Young outside of his presence when he was Young’s
attorney.
Like Jamal Baskerville and Jamal McNeil, petitioner fails to include an affidavit from
Feinberg with his filings in this case. However, unlike Jamal Baskerville and Jamal McNeil, this
Court does have sworn testimony from Feinberg as he testified for the defense in both Bergrin I
and Bergrin II.
Petitioner was not prejudiced by counsel’s failure to call Feinberg as a witness at
petitioner’s trial. In Bergrin I, Feinberg testified that he represented Young for a short period of
time in late 2004 and early 2005, but that when Young stopped paying him, he told him that he
could no longer represent him and that he should go to the Federal Defender’s Office and ask for
25
representation. (See 09-cr-369 ECF 317 at p.30-31) Feinberg also testified that he told Young
that if he was going to go to the F.B.I. that he had to tell the truth. (See id. at p.31) Feinberg
further told Young that he should not implicate himself if he talked to the F.B.I. (See Id.)
Feinberg testified similarly in Bergin II. (See 09-cr-369 ECF 524 at p.34-3’7)
This Court fails to see how, if Feinberg testified similarly at petitioner’s trial as he had in
Bergrin I and II, that the outcome of petitioner’s trial would have been different to a reasonable
probability. Therefore, petitioner has failed to show prejudice with respect to counsel’s failure to
investigate/call Feinberg as a witness.
iii.
Paul Bergrin
Petitioner provided a certification from Paul Bergrin in this action. (See ECF 29 at p.7681) In his certification, Bergrin states that he represented petitioner in his federal criminal case
from November 25, 2003 until 2005. (See id. at p.76) Bergrin states that trial counsel interviewed
him and that he agreed to truthfully testify on petitioner’s behalf. (See Id. at p.’T7) Bergrin
explains that petitioner never expressed any intent to kill or cause harm to McCray. (See Id.) He
states that from early on, the plan was for petitioner to plead guilty. (See Id at p.79) Bergrin
denies “attending, setting up, being present at any meeting with anyone and ever uttering the
words, ‘No Kemo, No Case.” (Id. at p.80) He further states that there:
was never a meeting on Avon Avenue, Newark, New Jersey, nor at
any other location between [Bergrin], Rakeem Baskerville,
Hakeem Curry, Jamal McNeil, Jamal Baskerville and Anthony
Young, wherein [Bergrinj ever informed any of these individual’s
that if Kemo was killed or even unavailable as a witness, that I
would win William Baskerville’s case and he would go free; that if
Kemo testifies that William Baskerville would be convicted and
get life in prison. This was never stated by me to any person, never
even entered my thought process and no meeting ever held wherein
I ever stated this.
(Id.)
26
As one court in this District has noted:
Where a petitioner challenges his counsel’s decision as to which
witnesses to call, courts “are ‘required not simply to give [the]
attorney[] the benefit of the doubt, but to affirmatively entertain
the range of possible reasons [petitioner’s] counsel may have had
for proceeding as he did.” Branch v. Sweeney, 758 F.3d 226, 235
(3d Cir. 2014). “Strickland requires that a defendant ‘overcome the
presumption that, under the circumstances, the challenged action
might be considered sound trial strategy.’ 466 U.S. at 689, 104 5.
Ct. 2052 (internal quotation marks omitted). If the Government
‘can show that counsel actually pursued an informed strategy (one
decided upon after a thorough investigation of the relevant law and
facts),’ the effectiveness of counsel’s assistance is ‘virtually
unchallengable.’ Thomas v. Varner, 428 F.3d 491, 500 (3d
Cir.2005).” United States v. Graves, 613 F. App’x 157, 159—60,
2015 WL 3406548, at *2 (3d Cir. May 28, 2015).
Judge v. United States, 119 F. Supp. 3d 270, 284—85 (D.N.J. 2015).
In this case, Bergrin’s own certification indicates that petitioner’s trial counsel
interviewed him. Thus, this does not appear to be a situation where petitioner’s trial counsel
failed to investigate Bergrin. Both of petitioner’s trial counsel provided affidavits setting forth
their reasons for not calling Bergrin as a witness. For example, Kenneth W. Keyser, Esq. states
that he:
would have never called Mr. Bergrin as a defense witness. First, he
was Mr. Baskerville’s original attorney who was conflicted out of
the case. Issues may have arisen as to the attorney-client privilege,
and the Government may have been entitled to elicit otherwise
privileged communications of Mr. Baskerville on crossexamination. Additionally, Mr. Bergrin was, according to the
Government, “house counsel” for the Curry organization. Any
such evidence elicited in front of the jury would have damaged Mr.
Baskerville, as the Government claimed Mr. Baskerville was a part
of this organization. Mr. Bergrin’ s bias to protect the organization
may have been brought out, and, coupled with the allegation that
Bergrin was an unindicted co-conspirator in the McCray murder,
his testimony may have been seen as self-serving and lacking
credibility. Additionally, I emphasized during the summation in the
guilt phase that Bergrin, as “house counsel,’ was principally
responsible for McCray’s death. This theme was also brought up in
27
the opening of the penalty phase to point out that Bergrin was not
facing any charges, let alone the death penalty.
(ECF 16-2 at p.14-15) Carl Herman, Esq. also submitted a declaration. In it, he stated similar
reasons as did Mr. Keyser for why Bergrin was not called as a witness. (See ECF 16-1 at p.13)
This Court finds that petitioner’s trial counsel’s decision not to call Bergrin as a witness
was based on an informed trial strategy that petitioner fails to overcome. Therefore, petitioner is
not entitled to relief on counsel’s failure to call Bergrin as a witness at his trial.
iv.
Diedra Baskerville
Petitioner next asserts that counsel should have investigated and called Diedra
Baskerville, petitioner’s now ex-wife, as a witness at his trial. Petitioner does include a
declaration from his ex-wife in which she states that she would have testified that she “did not
attend any meeting on November 25, 2003 at the residence of Jamal Baskerville.” (See ECF 29 at
p.84) She further states in her declaration that she would have testified that she had no
transportation on that day because the F.B.I. had taken her vehicle when they had arrested her
husband at the time, and that she had never met Young prior to his appearance in Court at
petitioner’s 2007 trial. (See id.)
Petitioner claims that Diedra’s testimony would have refuted Young’s testimony that she
was present when Young arrived at Jamal Baskerville’s house the morning petitioner got
arrested. This Court fails to see how her testimony would have changed the outcome of the
proceedings to a reasonable probability as her presence at this November 25, 2003 meeting was a
minor point. Furthermore, as petitioner’s trial counsel notes in their declarations, her bias was
obvious. Therefore, petitioner is not entitled to federal habeas relief on this claim.
28
v.
Hakeem Curry & Rakeem Baskerville
Petitioner next argues that trial counsel was ineffective for failing to investigate and call
as witnesses Hakeem Curry and Rakeem Baskerville. Both of these individuals provided
declarations in this matter. Hakeem Curry states as follows in his declaration:
Had Mr. Baskerville’s attorney called me as a defense witness I
would have testified under oath that I had no role in any sort of
conspiracy to kill Deshawn McCray because of his status as an
informant/witness against Mr. Baskerville.
I would have further testified that Mr. Baskerville never
communicated any desire to me that he wanted any harm to befall
Deshawn McCray.
I also would have testified that I never suggested in any way that
anyone should harm Desahwn McCray, nor would I have
condoned or entertained anyone else’s desire to harm Deshawn
McCray because of his status as an informant/witness against Mr.
Baskerville.
(ECF 29 at p.82-83)
Rakeem Baskerville stated as follows in his affidavit:
I would have testified that I had no involvement in, nor knowledge
of, any plot, scheme, or conspiracy to kill McCray as alleged in the
above-entitled cause and action.
I would have testified that I did not attend, and have never
attended, any meeting at Jamal Baskerville’s home on 25
November 2003 with Diedra Baskerville, Jamal Baskerville,
Hamid Baskerville, Jabmal McNeil, Hakim Currie, Anthony
Young and Paul Bergrin as alleged in the above-entitled cause and
action.
I would have testified that I was not in Hakim Currie’s vehicle on
25 November 2003 with Anthony Young and Hakim Currie when
it is alleged that Paul Bergrin called Hakim Currie and gave him
the name “K-Mo.”
I would have testified that I did not attend any meeting 4-10 days
after William Baskerville’s arrest where it is alleged that a meeting
occurred between myself, Paul Bergrin, Hakim Currie, Anthony
29
Young, Jahmal McNeil and Jamal Baskerville where it is further
alleged that Paul Bergrin stated “no K-Mo, no case.”
I would have testified and refuted the allegation that I was
involved in any aspect of the McCray murder and that any such
testimony to that effect was false.
I would have testified William Baskerville never communicated to
me in any way that he wanted any act of violence carried out
against McCray as alleged in the above-entitled cause and action.
(ECF 29 at p.85)
Mr. Kayser and Mr. Herman state in their declarations that they chose not to call Rakeem
Baskerville because he had already been convicted and sentenced along with Hakeem Curry to
life in prison for participating in a drug conspiracy in a separate criminal proceeding. (See ECF
16-1 at p.14; ECF 16-2 at p.16) According to them, Rakeem Baskerville would not have aided
petitioner at his trial even if he would have waived his Fifth Amendment rights. According to
petitioner’s trial counsel, Rakeem Baskerville would have caused serious damage to the
defense’s ability to maintain credibility with the jury. (See id.) Mr. Kayser and Mr. Herman’s
declarations though are relatively silent about why they chose not to call Hakeem Curry as a
witness, except for mentioning in passing that Curry had already been convicted and sentenced
to life imprisonment for participating in a drug conspiracy in a previous trial.
It is a true that both Rakeem Baskerville and Hakeem Curry had already been tried,
convicted and sentenced to life imprisonment on various federal drug charges in a separate
criminal proceeding at the time of petitioner’s trial in 2007. (See Crim. No. 04-280) However,
neither was tried and convicted on charges arising from the murder of McCray. Both Rakeem
Baskerville and Hakeem Curry state in their declarations that they had no part in the conspiracy
to murder McCray. This is despite Young’s testimony at petitioner’s trial to the contrary.
30
At the present time, and out of the abundance of caution, this Court will conduct an
evidentiary hearing as it relates to trial counsel’s purported ineffectiveness for failing to call
these two purported unindicted co-conspirators for McCray’s murder as witnesses at petitioner’s
trial. See, e.g., United States v. Seilner, 773 F.3d 927, 929 (8th Cir. 2014) (“The district court is
not permitted to make a credibility determination on the affidavits alone.”) (internal quotation
marks and citation omitted).
This Court expects to hear testimony from Mr. Herman and Mr. Kayser at this hearing
regarding their investigation into these two witnesses, and their reasons for choosing not to call
either witness at trial. This will give this Court a better understanding of whether their decision
not to call these two witnesses could be considered sound trial strategy.
Additionally, this Court will also expect to hear testimony from Rakeem Baskerville and
Hakeem Curry at the evidentiary hearing. Among the items that this Court will seek to hear
testimony about is whether these two witnesses were ready, willing and able to testify at
petitioner’s trial, whether defense counsel or anyone on the defense team met with them to
discuss what their possible testimony would be as well as what they would have testified to at
trial. Finally, petitioner may also wish to testify at the evidentiary hearing. Among the items this
Court is interested in hearing from petitioner would be what, if anything, he told his counsel
about Hakeem Curry and Rakeem Baskerville’s willingness to testify, as well as what, if
anything petitioner told his counsel regarding the nature of what these two witnesses would
testify to if called as witnesses.
31
vi.
Rashidah Tarver
The next witness that petitioner asserts that trial counsel should have investigated and
called as a witness is Rashidah Tarver. Petitioner attached Ms. Tarver’s declaration to his reply
brief where she states as follows:
I am aware that I was falsely accused by Anthony Young in which
he had testified that I had driven him and Rakeem Baskerville back
in March of 2004 to an auto boby [sic] shop to dispose of a gun.
I had given testimony in the matter of United States v. Paul
Bergrin, and my testimony was consistent in both of Mr. Bergrin’s
2011 and 2013 trials to which I denied all of these false claims of
Anthony Young of my involvement or having knowledge of those
things which he has alleged.
Had I been called as a witness at the time of William Baskerville’s
trial, at which time I was available and willing to testify, I would
have given testimony denying Anthony Young’s false allegations
that, I had driven him and Rakeem to a body shop to dispose of a
gun in March of 2004 or at any other time.
I would had also testified that I have never driven Anthony Young
and Rakeem Baskerville anywhere ever.
Also I have never been contacted or interviewed by any
investigator or the attorneys’ of William Baskerville in relations to
the matter of Mr. Baskerville.
(ECF 29 at p.86)
Petitioner’s trial counsel’s declarations each state that Ms. Tarver was interviewed by a
defense team investigator, but that it was determined she was of no value and would not make a
good witness. (See ECF 16-1 at p.15; ECF 16-2 at p.16-17)
This Court will not decide this claim under the first prong of Strickland. Indeed, there is a
factual dispute between Ms. Tarver and petitioner’s trial counsel whether she was ever
interviewed. Accordingly, the claim will be analyzed to determine whether there was any
prejudice.
32
This Court finds that there was no prejudice to petitioner. Ms. Tarver’s testimony related
to a tangential and relatively minor issue of whether she drove Young after the murder to an auto
body shop where the gun was destroyed after McCray was murdered. This testimony would not
have changed the outcome of the proceedings to a reasonable probability. Thus, petitioner is not
entitled to relief on this claim.8
F. Claim VI
—
Failure to Challenge Jailhouse Testimony
In Claim VI, petitioner alleges that trial counsel failed to challenge the testimony of Eric
Dock, ajailhouse informant. According to petitioner, trial counsel should have called Bergrin
during a pre-trial hearing to advance an argument that Dock had obtained information about the
murder not from petitioner’s admissions, but from pre-trial discovery that was in Baskerville’s
cell that Dock had supposedly accessed.
Petitioner is not entitled to relief on this claim. He comes forward with nothing to
indicate that Bergrin could or would have testified as to what was the actual source of Dock’s
information. Thus, petitioner fails to show prejudice.
G. Claim VII— Failure to Challenge Drug Evidence based on Faulty Chain-of-Custody
In Claim VII, petitioner reiterates his claim that trial counsel was ineffective in failing to
challenge the drug evidence based on faulty chain-of-custody. As detailed in supra Part IV.C,
petitioner is not entitled to relief on this claim. Therefore, it will be denied.
H. Claim VIII
—
Failure to Object/Challenge Speculative/Improper Testimony
In Claim VIII, petitioner argues that trial counsel failed to object to improper testimony
from Anthony Young. More specifically, petitioner asserts counsel should have objected when
Young testified relative to McCray’s name being passed along to him and what it meant when
8
It is worth noting that Ms. Tarver did testify during Bergrin II, but the jury convicted Bergrin
nevertheless of conspiracy to murder McCray.
33
Young said that the name being passed along meant “if you cross the Baskerville’s and
somebody give you the name who did it, get rid of ‘em,” as well as to information from
petitioner whereby Young said it was a “demand.” (See Dkt. No. 1-1 at p.8)
Trial counsel state in their declarations that there was no strategic value in challenging
either of these claims. This Court agrees. Petitioner fails to state what the legal significance of a
request as opposed to demand to kill McCray. Furthermore, there was no strategic reason to
object to Young’s testimony about how he interpreted the communication from Baskerville
regarding McCray since it was relevant to explain Young’s subsequent actions. Accordingly,
petitioner is not entitled to relief on this claim.
I.
Claim IX— Failure to object to hearsay testimony of Young
In Claim IX, petitioner argues that his trial counsel failed to object to hearsay testimony
by Anthony Young. Petitioner’s objection relates to Young’s testimony that petitioner told Jamal
McNeil that they had to hurry up and get rid of the confidential informant. (See ECF 1-1 at p.8)
Rule 801 of the Federal Rules of Evidence explains that a
statement is not hearsay if “the statement is offered against an
opposing party and was made by the party’s coconspirator
during and in furtherance of the conspiracy.” The Rule thus
imposes two predicate inquiries before a statement will be
admitted: (1) the statement must be made by a coconspirator, and
(2) the statement must be made during the course of and in
furtherance of the conspiracy. Both requirements must be satisfied
by a preponderance of the evidence.
...
United Slates v. Stimler, 864 F.3d 253, 273 (3d Cir. 2017) (footnotes and citations omitted).
Petitioner’s statement to McNeil falls within the co-conspirator exception to hearsay. Counsel
was not ineffective for failing to object to the introduction of this testimony because the
objection would have been overruled.
34
J.
Claim X
-
Failure to object to hearsay testimony by Agent Manson about statements
made by McCray prior to his death
In Claim X, petitioner argues that “[t]rial counsel failed to object to hearsay testimony
based on statements McCray allegedly made to Agent Manson prior to his death and counsel also
failed to object to certain audio recordings being admitted.” (ECF 1-1 at p.9)
Federal Rule of Evidence 804(b)(6) provides an exception to the hearsay rule when the
“statement is offered against a party that wrongfully caused
causing
—
—
or acquiesced in wrongfully
the declarant’s unavailability as a witness, and did so intending that result.” Fed. R.
Evid. 804(b)(6).
This issue was the subject of a motion in limine filed by the government at petitioner’s
trial. (See Crim. No. 03-836 ECF 102) Petitioner’s counsel filed a response to that motion in
which they requested an evidentiary hearing to determine if the government had met its burden.
(See Id. ECF 106) Ultimately, the Court stated as follows with respect to the motion in limine:
I suppose we have to take it as it comes. I don’t know what more to
tell you, other than to suggest to the Government that I would hope
that you would present the proofs on these threshold issues in such
a way that it makes orderly sense and I would suggest, I don’t
know that it is determinative, but I would suggest that this sort of
issue not, to the extent it can be avoided, not be the kind of thing
that comes in subject to connection later on.
(Id. ECF 123 at p.14)
An issue on petitioner’s direct appeal was whether the trial court erred by admitting
McCray’ s statements pursuant to Federal Rule of Evidence 804(b)(6). See Baskerville, 448 F.
App’x at 249. Ultimately, the Third Circuit explained that, “[tjhe District Court’s admissionof
McCray’s statements did not constitute error because the Government’s proffer made a sufficient
showing of Baskerville’s actions, and intent, to procure McCray’s unavailability.” See Id. Thus,
35
as the Third Circuit noted, the government made a sufficient enough showing to permit the
introduction of McCray’s statements at trial. See id. at 249-50.
With respect to petitioner’s argument as to trial counsel’s purported ineffectiveness for
failing to raise an objection to this testimony, he fails to show that he would be entitled to relief
as any objection by petitioner’s trial counsel on hearsay grounds to the admission of these
statements would have been denied. See United States v. Nguyen, 379 F. App’x 177, 181-82 (3d
Cir. 2010) (denying claim in part that argued counsel was ineffective for failing to object to
hearsay when if the objections were made they would have been rejected). Accordingly,
petitioner is not entitled to relief on this claim.
K. Claim Xl
—
Failure to object to hearsay testimony by Marshal Cannon
In Claim XI, petitioner states that Marshal Cannon testified that the Hudson County Jail
lacked capabilities of recording prisoner phone calls while petitioner was detained there. With
respect to his claim for relief, petitioner asserts that “[t]rial counsel failed to object to the
hearsay-within-hearsay testimony of Marshal Cannon when they learned during crossexamination that the information that formed the basis of his testimony at issue came from an
unknown and unidentified source.” (ECF 1-1 at p.9)
For context, during cross-examination, the following colloquy took place between
petitioner’s trial counsel and Cannon:
Q: You say that Hudson didn’t have the capability of recording
phone calls?
A: No, they did not.
Q: And how were you aware of that?
A: I was told by the Hudson County Jail, our point of contact
there.
Q: You have been to the Hudson County Jail?
A: Yes.
Q: Do you have anything to do with their phone system?
A: Do I? No, I don’t have anything to do with their phone system.
36
Q: They told you it didn’t work, they couldn’t record calls?
A: Yeah. I inquired and they advised me they couldn’t do that.
Q: Who was that?
A: It was a sergeant. I don’t recall his name.
(T.T. at p.5471-72)
Petitioner fails to show that he is entitled to relief on this claim. He has not shown to a
reasonable probability that the outcome of his trial would have been different had counsel
objected. Petitioner has come forward with no evidence to suggest that the Hudson County Jail
had the capabilities to record phone calls while he was there. This Court fails to see how if
counsel had objected to this testimony, it would have changed the outcome of petitioner’s trial to
a reasonable probability.
L. Claim XII
—
Failure to meaningfully cross-examine important witnesses
In Claim XII, petitioner argues as follows:
Trial counsel failed to use known and available documentary
evidence to meaningfully cross-examine important fact witnesses
on material matters relevant to all counts. Those witnesses include
Agent Manson, Young, and Dock, and the documentary evidence
that was known and available is certain grand jury transcripts,
audio recordings, video recordings, and reports. Had counsel used
the information that was known and available the jury would have
had a fair basis to find a reasonable doubt with respect to Counts 1
and 2, and the drug charges as well.
(ECF 1 at p.8)
“[A]
§ 2255
movant cannot meet his burden of proving ineffective assistance of counsel
based on vague and conclusory allegations[.j” Stallworth v. United States, No. 14-4005, 2018
WL 505073, at *4 n.4 (D.N.J. Jan. 19, 2018) (quoting United States v. McClellan, No. 16-2943,
2017 WL 2822315, at *1 (3d Cir. Jan. 3,2017)). In this case, and specifically within Claim XII
only, petitioner does not cite to anything specific with respect to the documentary evidence,
grand jury transcripts, audio recordings, video records, and/or reports that trial counsel should
37
S
have specifically cross-examined these three witnesses on. Thus, this Court will not grant
petitioner relief on this particular vague and conclusory claim.
M. Claim XIII
-
Failure to properly preserve Batson issue
In Claim XIII, petitioner argues that trial counsel was ineffective when they failed to
preserve Batson objections during jury voir dire.
The Equal Protection Clause forbids the use of peremptory strikes
against potential jurors on the basis of race. Batson [v. Kentucky],
476 U.S. [79,] at 88—89, 106 S.Ct. 1712. Batson established a
three-step process for determining the constitutionality of a
peremptory strike. First, the defendant makes a prima facie case
that the prosecutor exercised a peremptory challenge on the basis
of race. Coombs [v. Diguglielmo], 616 F.3d [255,] 261 [(3d Cir.
2010)]. “Second, if the showing is made, the burden shifts to the
prosecutor to present a race-neutral explanation for striking the
juror in question.” Id. (citing Rice v. Collins, 546 U.S. 333, 338,
126 5. Ct. 969, 163 L. Ed. 2d 824 (2006)). “Third, the court must
then determine whether the defendant has carried his burden of
proving purposeful discrimination.” Id. (quoting Rice, 546 U.S. at
338, 126 S. Ct. 969).
Coombs v. DiGuglielmo, 581 F. App’x 129, 132 (3d Cir. 2014). Within the Strickland
framework, petitioner “must show that his counsel’s conduct during the Batson challenge fell
below the ‘objective standard of reasonableness’ by failing to live up to ‘prevailing professional
norms.” Juniper v. Zook, 117 F. Supp. 3d 780, 792 (E.D. Va. 2015) (citing Padilla v. Kentucky,
559 U.S. 356, 366 (2010) (quoting Strickland, 466 U.S. at 688)). In the context of the second
prong of Strickland, prejudice, a petitioner must show that the result of the Batson challenge
would have been different to a reasonable probability but for trial counsel’s ineffectiveness. See
id.; see also Pirela v. Horn, 710 F. App’x 66, 82 n.16 (3d Cir. 2017) (noting that under Weaver
v. Massachusetts, 137 5. Ct. 1899, 1911(2017), even if a petitioner’s counsel’s conduct led to a
structural error, “that term ‘carries with it no talismanic significance’ because Pirela cannot show
38
either a reasonable probability of a different outcome in his case, or that the error was ‘so serious
as to render his
.
.
.
.
trial fundamentally unfair.”).
At the outset, this Court notes that trial counsel did raise the issue of whether the
prosecution was impermissibly striking jurors based on their race. Indeed, the following colloquy
took place during voir dire:
MR. HERMAN: We wanted to express a concern, Judge. By our
count, there are five African American jurors in the first 52. The
Government has struck three of them, juror number 31, juror
number 108, juror number 72. Out of
THE COURT: What are those numbers?
MR. HERMAN: 31.
THE COURT: What juror number?
THE COURT: 35.
MR. FRAZER: That’s old 35?
THE COURT: New 35.
MR. HERMAN: Old 108.
THE COURT: What’s the new number? 56.
MR. HERMAN: And 72.
THE COURT: 47.
MR. HERMAN: We’re making a challenge under Batson, Judge,
that of all the challenges, 12 challenges, they used three against
African Americans with only five African Americans in the entire
pooi, Judge.
MR. FRAZER: First, Judge, I don’t think they made out a pattern
under Batson, which is the threshold.
THE COURT: I’m sorry?
MR. FRAZER: They haven’t made out a pattern under Batson, but
regardless of that, Judge, for purposes of the record, we have
exercised those challenges in a race-neutral fashion and I’ll be
happy to expound on that.
THE COURT: Go ahead.
MR. FRAZER: Number 31 clearly said she leans towards life
imprisonment. That was the question the defense put, how do you
lean one way or the other, even though you say you can be fair.
She leans toward life imprisonment. We thought that she should
have been challenged anyway. [] She also said first of all, her
child’s father is in jail, so that’s another reason that she may not be
appropriate, she may harbor feelings about the criminal justice
system. For those reasons, Judge, and she said it would be really
hard to impose the death penalty. For those reasons, we challenged
juror number 31. [] I’ll need a minute to get to my notes.
—
--
39
MR. KAYSER: Can we have the old number?
MR. FRAZER: That was the old number, 31. [J] Judge, by doing
this we’re not conceding in any way we’ve made a pattern under
Batson, but for the record, we’re just making these reasons known.
[] The next one is it may take a minute. This juror
THE COURT: Who?
MR. FRAZER: 108, wrote on her questionnaire, “thou shalt not
kill” is her religion and she agreed it. She “hates the idea of the
death penalty.” This is a quote. That’s what she said both on the
questionnaire and when I questioned her, she said that was the
correct words. [Jj Her husband’s brothers are both in jail for drugrelated offenses and has been in jail off and on at various times for
five years, one of them and one recently went in for a drug offense.
[] She said as to that one, he was at the wrong place at the wrong
time, so obviously that’s questionable about whether she can
what her attitudes toward law enforcement might be. Those are the
reasons for juror number 108, which I think are fairly obvious. [J1
Finally, 72, if I may just have a moment.
THE COURT: Which is new number 47.
MR. FRAZER: Oh, she was the Jamaican woman who was just all
over the place and she had concerns over the death penalty that it
may not what happens if it’s not the right person? She was easily
confused, she went back and forth on numerous questions. []
Other than that, I’d have to pull my questionnaire, but I believe she
also had a family member, husband’s cousin in jail, but I would
have to actually get the questionnaire, Judge. I have numerous
notations that her questions on the questionnaire were, to say the
least, questionable. I have seven of them listed. I’m just going to
pull that for a moment. [] First, on the questionnaire, she failed to
fill out her county and town of residence. She did not fill out the
portions of the questionnaire which made it it was unusual
actually in relation to the rest of the pool. She, for instances, did
not fill out her education in the questionnaire. She did not fill out
anybody who influences her in her life and again, based upon I
remember her clearly, Judge. Her answers were equally kind of
back and forth throughout the entire process. [] She also didn’t fill
out question 67, 68 regarding the defendant testifying and
presumption of innocence. [] Overall, those were the reasons that
the Government struck this juror. She also put a question mark
under her religion, what her religion or spiritual affiliation was and
what the teachings were. [Jj Those concerns caused us and those
are all race-neutral reasons and legitimate reasons to challenge
those jurors. [] Frankly, Judge, as we’re doing this, Mr. Minish
and I had no idea the race of the jurors. That’s not written down on
anything that we do, for the record.
—
—
—
—
—
—
40
THE COURT: All right. [11] Well, the burdens involved in this
issue require the opponent of the peremptory challenge to make out
a prima facie case of discrimination. The burden then shifts to the
proponent of the strike to come forward with a non-discriminatory
explanation for the strike and then the Court determines whether or
not the opponent of the strike has demonstrated purposeful
discrimination as the intent for the exercise of the challenges. [J]
Having listened to the explanation put forth by Mr. Frazer, it does
appear to me that the exercise of the challenges is based on non
racial reasons. He has articulated non-racial concerns as to each of
the jurors who have been challenged and I have, therefore,
concluded that the challenges will stand. [J] I accept I make the
finding without the representation made by Mr. Frazer that they
don’t know the race of the jurors from the notes that they’ve kept
and I certainly have no difficulty accepting the representation, but
the Court’s ruling on it doesn’t require that representation because
there has been a non-racial justification set forth for each of those
challenges.
—
(T.T. at
p.3203-08) After this discussion and decision by Judge Pisano, the use of peremptory
strikes continued until petitioner’s trial counsel made another Batson challenge after another
prospective African-American juror was struck by the prosecution. Indeed, at that time, the
following discussion took place:
MR. M1NISH: Judge, the next two strikes from the Government
are new number 33, which is old number 36; and new number 48,
which is old number 74.
MR. HERMAN: Well, Judge, all I can do is keep count here. [JJ
Old juror number 36.
THE COURT: 33 is already excused.
MR. HERMAN: I’m sorry, Judge. I’m making another Batson
challenge. [J] The Government has now struck the fourth black
person.
THE COURT: 36?
MR. FRAZER: What number is that?
MR. HERMAN: Old number 36 is a black female, 43-year-old.
MR. FRAZER: That’s old 347?
MR. HERMAN: No. The old number is 36.
MR. FRAZER: I’m sorry. Old 36, okay. [J One moment, Judge.
[Jj Judge, I’m not sure counsel even is checking the notes, but
again
MR. HERMAN: Ijust want to make my record. I’m not looking
I’m simply reinforcing or remaking the Batson challenge that out
—
—
41
of five black people in the panel, the Government has now struck
four.
MR. FRAZER: Very good. [J] Her sister is in jail for a federal
drug distribution. She first said it was state and then I questioned
her because she mentioned the institution, which was a federal
institution and so it was in New jersey, I believe, although I could
be wrong on that. [] Right away, Judge, immediately that gave us
cause because it’s possibly our office or at least a United States
Attorney’s Office that put her sister in jail for a drug offense, the
same as what’s on trial here. It should be obvious, but I guess it’s
not. [J1 So, therefore, we immediately, when we heard that, though
she said she could be fair, that’s why we have peremptory
challenges. We thought we would exercise one based upon that,
which clearly could show a reason to harbor ill feelings toward
both prosecutions and specifically federal prosecution and law
enforcement in general. [] That was the main reason that we
struck her. [J] Judge, I mean, if— I can go back to the
questionnaire and look at other reasons that we may have had. I
don’t know if the Court will permit me a minute, but since counsel
is making the challenge, because despite her views on the death
penalty, which I’m not clear what they are, but let me just go back
to my notes. [] I don’t think I have anything further to add as to
her views on the death penalty at this time, Judge. That was the
reason that we challenged that juror, which seems to be a very
legitimate cause for concern for the prosecution.
THE COURT: All right. [J] There’s been a race-neutral
explanation made for the challenge, which stands.
(T.T. at p.3209-1 1)
Petitioner’s argument within this claim is not that his trial counsel failed to bring up the
Batson issue at trial. Indeed, as illustrated above, petitioner’s trial counsel did in fact object to
assert that the government’s peremptory strikes against four prospective African-American jurors
was unconstitutional. Instead, petitioner’s argument is more nuanced. Petitioner asserts as
follows:
Trial counsel failed to effectively preserve the Batson objections.
Specifically, counsel failed to challenge the pretextual nature of the
government’s race neutral explanations by making a comparison of
the challenged black jurors vs. white jurors with similar traits as
those claims by the prosecutor as the basis for the striking of black
jurors.
42
(ECF 1-1 at p.9) According to petitioner, by not preserving the issue of the pretextual nature of
the prosecutor’s use of peremptory strikes against African-American prospective jurors, this
caused the issue to be considered by the Third Circuit on appeal under a higher “plain error”
standard than if trial counsel had challenged government’s reasons for striking these four jurors
as pretextual. (See ECF 29 at p.26-29).
The Third Circuit initially remanded the Batson issue back to the District Court after the
government discovered voir dire notes it considered pertinent to the Batson issue. On remand,
the District Court stated that “[b]ecause the prosecutor’s voir dire notes were not available to the
defense at the time of the Batson hearing, the Court shall consider the parties arguments that
relate to the notes. However, the Court shall not reopen the Batson hearing in its entirety and
shall not consider arguments that could have been raised originally but were not.” (Crim. No. 03836 ECF 287 at p. 9-10) In denying the Batson claim on remand, Judge Pisano held as follows:
The defense offered no response to these reasons offered by the
Government. The Court, moving to step three of the Batson
analysis, found that the Government’s “exercise of the challenges
[was] based upon non-racial reasons” and allowed the strikes. By
way of this Opinion, the Court now makes explicit what was
implicit in the Court’s ruling at that time. In overruling
Baskerville’s Batson objections, the Court found that the reasons
offered by the Government for striking each of the black
prospective jurors were credible and not pretexts for racial
discrimination. The proffered reasons were the actual reasons for
the Government’s exercise of each of the challenged strikes. As
was its burden, the defense simply did not show that the
Government’s exercise of any of the challenged strikes was
racially-motivated.
These findings of the Court were based upon several factors. At
step three, “the critical question in determining whether a prisoner
has proved purposeful discrimination is the persuasiveness of
the prosecutor’s justification for his peremptory strike.” Miller—El
v. Cockrell, 537 U.S. 322, 338—39, 123 S.Ct. 1029, 154 L.Ed.2d
931(2003). The Supreme Court has noted that generally “the issue
...
43
comes down to whether the trial court finds the prosecutor’s raceneutral explanations to be credible.” Id. at 339. “Credibility can be
measured by, among other factors, the prosecutor’s demeanor; by
how reasonable, or how improbable, the explanations are; and by
whether the proffered rationale has some basis in accepted trial
strategy.” Id. Here, the reasons proffered by the Government were
credible—they were reasonable, believable, probable and grounded
in accepted trial strategy. The Court also found counsel for the
Government to be credible and found no evidence of purposeful
discrimination in counsel’s demeanor. See Snyder v. Louisiana, 552
U.S. 472, 477, 128 S.Ct. 1203, 1208, 170 L.Ed.2d 175 (2008)
(“Step three of the Batson inquiry involves an evaluation of the
prosecutor’s credibility, and the best evidence [of discriminatory
intent] often will be the demeanor of the attorney who exercises
the challenge.”) (internal quotations and citations omitted;
alteration in original).
With respect to credibility, the Court finds it appropriate to address
AUSA’s Frazer’s statement in which he told the Court in response
to the Batson challenge that “as we’re doing this, Mr. Minish and I
have no idea the race of the jurors” and “[t]hat’s not written down
on anything that we do, for the record.” Tr. 3207:11—13. In light of
the newly-produced voir dire notes, the defense now argues that
here the Government attempted to mislead the Court. Baskerville
alleges that AUSA Frazer’s statement was “false” and
“disingenuous,” Def. Brf. at 1, 26, because the Government’s jury
selection notes show that the prosecutors did, in fact, have the race
of prospective jurors written down.
Looking at the circumstances at the time the statement was made,
the Court finds that AUSA Frazer’s statement was not a deliberate
attempt to mislead the Court. This conclusion rests not only on the
Court’s own observations of Mr. Frazer’s demeanor at the time, but
also on the context in which the statement was made. Indeed, at the
time Mr. Frazer made that statement the Court and both of the
parties were well aware that the prospective juror’s race was, in
fact, “written down” on at least some of the voir dire materials
(e.g., the questionnaires) and, therefore, AUSA Frazer’s
statement—as reflected in a cold transcript—was facially
inaccurate and an apparent misstatement. Yet at that time it was
made there was no argument from the defense that AUSA Frazer
was attempting to mislead the Court, nor did the Court construe his
statement in such a way.
To the extent that counsel’s statement appears to be inconsistent
with his or AUSA Minish’s notes, the Court finds that counsel
44
simply misspoke, or, at worst, inarticulately stumbled in his
attempt to convey his argument. Given its context, the Court
recognized at the time Mr. Frazer made the statement that there
was a possibility that he may have misspoken; therefore, the Court
expressly noted that it did not rely upon counsel’s representation in
ruling on the Batson challenge. See Tr. 3208: 4—10 (“I make that
finding without the representation by Mr. Frazer that they don’t
know the race of the jurors from the notes they’ve kept ...“).
Nothing presented to the Court since that ruling in any way leads
the Court to believe that any misstatement on the part of AUSA
Frazer was deliberate.
At the Batson hearing, the Court found further support for its
conclusion that the Government’s stated reasons for exercising its
strikes were credible and not pretexts for racial discrimination in
the response—or lack thereof—of the defense. Defense counsel’s
silence5 after the Government explained its reasons for the
challenged strikes supported inferences that defense counsel was
unaware of anything in the record that contradicted the reasons
given, had no basis to challenge the prosecutor’s justifications, and
even that the defense may have conceded the objections. Indeed,
Baskerville was represented by extremely capable counsel,
experienced in death penalty cases, who certainly would have been
well aware that Baskerville bore the burden to establish that the
Government’s strikes were racially motivated. See Purkett v. Elem,
514 U.S. 765, 768, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834 (1995) (
“[T]he ultimate burden of persuasion regarding racial motivation
rests with, and never shifts from, the opponent of the strike.”); Rice
v. Collins, 546 U.S. 333, 338, 126 S.Ct. 969, 163 L.Ed.2d 824
(2006) (same); Johnson v. California, 545 U.S. 162, 170—7 1, 125
S.Ct. 2410, 162 L.Ed.2d 129 (2005) (“Batson ... explicitly stated
that the defendant ultimately carries the burden of persuasion to
prove the existence of purposeful discrimination.”) (quotations
omitted); Bond v. Beard, 539 F.3d 256, 264 (3d Cir.2008) (“The
burden at this step three is to show that it is more likely than not
that the prosecutor struck at least one juror because of race.”)
(citing Wilson v. Beard, 426 F.3d 653, 670 (3d Cir.2005). If
counsel had reason to believe the reasons offered by the
Government were pretextual, surely the defense would have
spoken up. Notably, Baskerville does not assert that he was in any
way denied the opportunity to present further argument and
evidence regarding pretext.
Lastly, the Court turns to the parties remaining arguments
regarding the prosecutor’s voir dire notes. Baskerville argues that
evidence of purposeful racial discrimination is found in the fact
45
that these notes contained references to “constitutionally-protected
characteristics, including race and gender,” Def. Br. at 5, and that
the prosecutors ranked and/or graded the desirability of the
potential jurors “based upon characteristics and comments
recorded in their notes, which included the jurors’ race and
gender,” Def. Br. at 26. Having reviewed the prosecutor’s notes in
their entirety, the Court finds in them no basis to disturb the
Court’s conclusion that there was no Batson violation here.
First, the Court finds nothing improper, as a general matter, about
the fact that the prosecution’s notes contained notations regarding
race in this case. The fact that the Government’s lawyers made
notations regarding identifying characteristics such as race is
hardly surprising in a post -Batson matter and, particularly, in light
of the large number of potential jurors in this case as well as the
extended period of time it took to select a jury. Indeed, both
parties, not just the Government, believed race was relevant
enough to the jury selection process to include it on the juror
questionnaire.
Further, as the notes show and the Government has explained, the
prosecution used a grading system for the final selection ofjurors.
Prospective jurors were ultimately assigned “E” for excellent;
“VG” for very good; “G” for good; and “S” for strike. In
exercising their strikes, the record shows that the Government first
struck those prospective jurors with the lowest grades, then moved
up to the higher graded prospective jurors. Contrary to the
assertion of the defendant, there is no evidence race played any
part in the determination of a potential juror’s grade. Nor does the
Court find that the grades assigned to the jurors were in some way
a proxy for race. Indeed, black prospective jurors in the pool were
given grades across the entire spectrum. Prior to the final
reshuffling of the approximately 80 prospective jurors (and, thus,
not knowing the order in which the jurors would end up), the
Government graded each of the jurors. Of the six black prospective
jurors (only five of which ended up in the pool of 52), three were
graded “strike”, one was graded “good”, one was graded “very
good” and one was graded “excellent.”
The manner in which the strikes were exercised-in particular, the
fact that the prosecution consistently struck jurors within a given
grade before striking jurors with a higher grade—further supports
the conclusion that race was not the basis for any of the
Government’s challenged strikes. Indeed, when exercising their
strikes, the government first struck jurors that were graded
“strike,” then the jurors graded “good.” Moving then to those rated
“very good,” for its final two strikes, the Court takes particular
46
note of the fact that the Government struck two white prospective
jurors (Jurors 14/331 and 45/120) while a black prospective juror
(17/342) with the same “very good” rating was not stricken.
In sum, having considered the parties arguments with respect to the
prosecution’s voir dire notes, the Court finds that the defense has
not carried its burden to show purposeful racial discrimination on
the part of the Government.
United States v. Baskerville, Crim. No. 03-836, 2011 WL 159782, at *6_9 (D.N.J. Jan. 18,
2011), affd, 448 F. App’x 243.
On appeal, the Third Circuit reviewed petitioner’s Batson claim for plain error because
petitioner’s defense counsel “sat silent after the Government stated its reasons for exercising
peremptory challenges to which defense counsel objected.” Id. at 247. Under this standard, the
Third Circuit examined the claim to determine whether: (1) there was error; (2) that was plain or
obvious; and (3) that affects a defendant’s substantial rights. See United States v. Ferguson, 876
F.3d 512, 514 (3d Cir. 2017) (citing United States v. Goodson, 544 F.3d 529, 539 (3d Cir. 2008)
(citing Johnson v. United States, 520 U.S. 461, 467 (1997)). The Third Circuit began its analysis
on petitioner’s Batson claim as follows:
We fail to find any error, let alone plain error, that would lead us to
disturb the District Court’s ruling that the prosecutor’s race-neutral
reasons were credible. To start, the District Court did not plainly
err by failing to compare jurors sua sponte before deeming the
prosecution’s race-neutral explanations credible. The third step in
the Batson analysis calls upon the District Court to determine
“whether the opponent of the strike has proved purposeful racial
discrimination.” Purkett, 514 U.S. at 767, 115 S.Ct. 1769
(emphasis added). The Batson framework, then, squarely places
the ultimate burden of persuasion on the challenger, not the
District Court. See Hardcastle, 368 F.3d at 258. This is not to
suggest that the challenger necessarily must rebut the prosecution’s
race-neutral reasons to succeed on a Batson claim. Rather, it is an
acknowledgement that the challenger risks not satisfying his
burden of proving discriminatory intent if the court reasonably
concludes that the reasons, in and of themselves, are credible and
not pretextual. See, e.g., United States v. Rodriguez, 178 F. App’x
152, 156—57 (3d Cir. 2006) (finding no error in the denial of
47
defendant’s Batson objection where she failed to challenge the
Government’s race-neutral reasons and therefore could not satisfy
her burden).
Here, the District Court did find the reasons proffered to be
credible and not pretextual. Had the defense raised a challenge
based on comparisons to similar white jurors whom the
Government did not challenge and lack ofsupport in the recordfor
the explanations offered by the Government, perhaps the District
Court would have inquired and investigatedfurther, and made a
different ruling. But the defense made no such argument.
Accordingly, the District Court’s failure to scour the record of over
six weeks’ worth ofjury selection on its own for evidence of
discriminatory intent unassisted by Baskerville did not constitute
plain error. [FN 3] The error about which Baskerville complains
with respect to the District Court’s analysis is, instead, attributable
to his own failure to point out weaknesses in the proffered reasons
when the opportunity arose.
V
[FN 3] “Comparative analysis is one of many tools
that a court may employ to determine whether the
government exercised its peremptory challenges for
discriminatory purpose. Trial courts, however, are
not required to conduct such an analysis.” United
States v. You, 382 F.3d 958, 969 (9th Cir. 2004).
Baskerville, 448 F. App’x at 247—48 (emphasis added). Petitioner seizes upon the emphasized
language from the Third Circuit cited above to support his ineffective assistance of counsel claim
for failing to argue that the government’s reasons were pretextual. However, the Third Circuit
did not stop its analysis on petitioner’s Batson claim there. Instead, the Third Circuit also
considered petitioner’s argument of comparing the stricken African-American potential jurors to
similar potential white jurors who were not struck by the government. Indeed, the Third Circuit
stated as follows on petitioner’s direct appeal:
Moreover, we do not find the points of comparison between jurors
that Baskerville urges to be so blatant that the District Court should
have easily recognized that the Government’s reasons lacked
credibility. There are signcant dj,ferences, aside from their race,
between the white jurors with whom Baskerville would have us
compare the challenged blackjurors thatjust their differential
48
treatment. For example, the prosecution struck Juror 47/72 not
solely because of her attitudes toward the death penalty, which
Baskerville argues were similar to those of several white jurors.
Rather, the prosecution also explained that Juror 47/72 failed to
answer critical parts of the juror questionnaire, a non-issue with
respect to the purportedly similar white jurors. Furthermore, the
prosecution struck Juror 33/36 because his sister was serving a
federal drug sentence not unlike that which Baskerville himself
faced. The white juror to whom Baskerville compares Juror 33/36,
however, had relatives who only served state sentences for crimes
less like Baskerville’s in their nature and severity. The record is
replete with examples like these, which satisJj’ us that the
prosecution ‘s reasons were not obviously pretextual and that, in
any event, the District Court did not plainly err in concluding that
Baskerville had not proven discriminatory intent.
Baskerville’s portrayal of the prosecution’s race-neutral reasons as
either mischaracterizations of the record or simply untrue does not
lead us to reconsider. First, the misstatements which Baskerville
believes show the prosecution’s insincerity were immaterial to the
overriding reasons offered in support of its peremptory strikes.
Second, and more importantly, the relevant question at the third
step of the Batson inquiry is the “honesty—not the accuracy—of a
proffered race-neutral explanation.” United States v. Yarrington,
640 F.3d 772, 779 (7th Cir.201 1) (internal quotation marks
omitted). As a result, the District Court’s findings are generally
afforded considerable deference. See Batson, 476 U.S. at 98 n. 21,
106 5. Ct. 1712 (“Since the trial judge’s findings in the context
under consideration here largely will turn on evaluation of
credibility, a reviewing court ordinarily should give those findings
great deference.”). Here, the District Court explicitly deemed the
explanations credible after observing first-hand the prosecutor’s
demeanor and other relevant factors. We fail to see how a few
minor inaccuracies in those explanations render its finding
somehow plainly erroneous.
The voir dire notes produced by the Government do not
demonstrate otherwise. We agree with the District Court’s
consideration of the notes’ effect, or lack thereof, on the Batson
analysis. Merely making notes of a juror’s race, as the prosecution
did, is insufficient alone to support a finding of discriminatory
intent. Similarly, the grading system used by the prosecutors,
without more, does not lead us to conclude that the Government
intentionally discriminated.
Baskerville, 448 F. App’x at 248—49 (emphasis added).
49
As stated above, the Third Circuit expressly stated that there were significant differences
aside from race with respect to the jurors that petitioner seeks to have compared to the AfricanAmerican jurors who were struck. Petitioner comes forward with nothing new in this
§ 2255
proceeding to contest or challenge that finding by the Third Circuit on his direct appeal. Thus,
applying Strickland to this Batson claim as this Court must, this Court finds that petitioner has
failed to show to a reasonable probability that the outcome of his Batson challenges would have
been different had trial counsel argued pretext at trial. Given the Third Circuit’s express
statements that there were significant differences in the juror comparisons, coupled only with
petitioner’s bald and conclusory statement that the result of his proceeding would have been
different, this Court finds that petitioner fails to show that he is entitled to an evidentiary hearing
and/or relief on this claim. Accordingly, it will be denied.
N. Claim XIV
—
Failure to challenge grand jury irregularities
In Claim XIV, petitioner asserts that:
There was information of false/misrepresented manner put before
the grand jury via Dock’s testimony. That irregularity was not
cured by the verdicts at trial since the irregularity in the grand jury
process was not aired at trial. Trial counsel failed to seek any
redress with regard to the compromised integrity of the grand jury
process based on Dock’s false testimony before that body.
(ECF 1 at p.8)
Petitioner does not indicate in his petition or reply what part of Dock’s grand jury
testimony he is challenging that is false. As such, this claim is conclusory and does not warrant
granting petitioner relief.
0. Claim XV
—
Failure to challenge ex parte application and order re: discovery
In Claim XV, petitioner argues that:
50
Trial counsel was aware that discovery was being delayed and that
other restrictions were placed on defendant-movant’ s access to
information relevant to this case. The delays and restrictions with
respect to discovery made it impossible for defendant-movant to
defend himself in a fair and meaningful manner as he was entitled.
Nevertheless, trial counsel failed to make any challenge with
regard to the obstructive nature of the delays and restrictions
[D]efendant-movant was stripped of
relevant to discovery.
any ability to offer timely insight on relevant matters. Thus, trial
counsel’s failure to challenge the discovery delays/restrictions was
plainly unreasonable.
..
.
(ECF 1 at p.8)
Petitioner does not allege with any specificity what discovery was delayed and restricted
within this particular and specific claim. As such, this claim is conclusory and does not warrant
granting him relief.9
P. Claim XVI
—
Failure to Object to Court’s Jury Instruction that Relieved Government of
Burden of Proof on Counts 1 and 2
In Claim XVI, petitioner states that the trial court instructed the jury on the charge of
conspiracy to murder a witness with premeditation. However, according to petitioner, the
indictment charged him with conspiracy and agreeing with others to kill McCray with malice
aforethought. Petitioner claims that by trial counsel failing to object to the jury instructions
because they did not discuss malice aforethought, it relieved the government of its burden to
prove the offense elements of the indictment, i.e. malice aforethought. (ECF I at p.9)
Contrary to petitioner’s argument, the trial court did instruct the jury on malice
aforethought. Indeed, the jury was instructed in part as follows;
The indictment charges that the unlawful killing was a
“premeditated murder” as defined in another section of the
criminal code, Section 1111, which states in relevant part,
“premeditated murder is the unlawful killing of a human being
In other claims, petitioner is specific. For those claims, this court will address them individually
in this Opinion.
5]
with malice aforethought. Every murder perpetrated by poison,
lying in wait or any other kind of willful, deliberate, malicious and
premeditated killing is murder in the first degree.”
As used in these instructions, the term “malice aforethought,”
means an intent at the time of a killing, willfully to take the life of
a human being or an intent to willfully act in callous and wanton
disregard of the consequences to human life, but malice
aforethought does not necessarily imply any ill will, spite or hatred
toward the individual killed.
In determining whether Mr. McCray was unlawfully killed with
malice aforethought, you should consider all of the evidence
concerning the facts and circumstances preceding, surrounding and
following the killing which tend to shed light upon the question of
intent.
A killing is premeditated when it is intentional and the result of
planning or deliberation. The amount of time needed for
premeditation of a killing depends on the person and the
circumstances. It must be long enough for the killer, after forming
the intent to kill, to be fully conscious of his intent and to have
thought about the killing. For there to be premeditation, the killer
must think about the taking of human life before acting.
The amount of time required for premeditation cannot be
arbitrarily fixed. The time required varies as the minds and
temperament of people differ and according to the surrounding
circumstances in which they may be placed. Any interval of time
between forming the intent to kill and acting on that intent which is
long enough for the killer to be fully conscious and mindful of
what he intended and willfully set about to do is sufficient to
justify the finding of premeditation.
(T.T. at p.5634-35 (emphasis added)) As the above cited portion of the instructions to the jury
indicates, the trial court did instruct the jury on malice aforethought. Thus, Petitioner is factually
incorrect that the jury was not so instructed. Accordingly, he is not entitled to relief on this claim.
Q. Claim XVII Failure to Object/Preserve Constructive Amendment of Indictment
—
In Claim XVII, petitioner asserts that the trial court constructively amended the
indictment on Count 1 by instructing the jury in a manner that permitted it to convict him on
52
non-applicable offenses not applicable. The fourth superseding indictment charged petitioner as
follows with respect to count one;
William Baskerville, alkla “Cheeb,” did knowingly and willfully
conspire and agree with others to kill another person, namely,
KDM, with malice aforethought and with intent to prevent the
attendance and testimony of KDM in an official proceeding, which
killing is a murder as defined in Title 18, United States Code,
Section 1111(a), in that in furtherance of the conspiracy a co
conspirator did unlawfully kill KDM willfully, deliberately,
maliciously, and with premeditation, contrary to Title 18, United
States Code, Sections 151 2(a)( 1 )(A) and (a)(3)(A).
(Crim. No. 03-836 ECF 82 at p.3) It appears as if petitioner is asserting an argument in this claim
based on similar arguments he made in Claim XVI, namely a failure to instruct the jury on
malice aforethought.
As explained by the Third Circuit:
An indictment is constructively amended when evidence,
arguments, or the district court’s jury instructions effectively
“amend[s] the indictment by broadening the possible bases for
conviction from that which appeared in the indictment.” United
States v. Lee, 359 F.3d 194, 208 (3d Cir. 2004). We have held that
a constructive amendment is an exceptional category of error
because it violates a basic right of criminal defendants, the grand
jury guarantee of the Fifth Amendment. United States v. Syme, 276
F.3d 131, 154 (3d Cir. 2002) (applying United States v. Adams,
252 F.3d 276 (3d Cir. 2001)). “A constructive amendment to the
indictment constitutes ‘a per se violation of the fifth amendment’s
grand jury clause.” Id. at 148 (quoting United States v. Castro,
776 F.2d 1118, 1121-22 (3d Cir. 1985)). A constructive
amendment of the charges against a defendant deprives the
defendant of his/her “substantial right to be tried only on charges
presented in an indictment returned by a grand jury.” United States
v. Syme, 276 F.3d 131, 149 (3d Cir. 2002) (citation omitted). Thus,
where a trial court constructively amends a jury instruction, our
plain error analysis presumes prejudice. Id.
United States v. McKee, 506 F.3d 225, 229 (3d Cir. 2007) (footnote omitted).
53
Contrary to petitioner’s arguments, the jury instructions did not constructively amend the
indictment. Indeed, as explained above, the jury was instructed on malice aforethought.
Therefore, petitioner is not entitled to relief on this claim.
R. Claim XVIII
—
Failure to Object/Preserve Issue of Insufficient Definition of Conspiracy
In Claim XVIII, petitioner argues that the jury instructions did not sufficiently define
what was required to be convicted beyond a reasonable doubt on Counts 1 and 2. Accordingly,
he asserts that trial counsel was ineffective for failing to object and preserve this issue. Judge
Pisano instructed the jury as follows with respect to Count 1 and 2 at trial:
Count one of the indictment charges the defendant with a
conspiracy to murder a witness with premeditation. You will see in
reading the indictment, I won’t read it in its entirety because it’s
four pages long, but you will see that the charge set forth in the
indictment is conspiracy to murder a witness with premeditation.
Now, you’ve heard about statutes and federal and federal laws of
criminal violations and things. Going back to your civics in high
school, you remember that laws are passed and Congress passes
bills, the president signs legislation and it becomes federal law.
There’s a Criminal Code of federal law which constitutes all of the
crimes that have been determined to be illegal conduct and has the
force of federal law.
There are a lot of them, but as relevant to this case, one of them is
alleged in what we call Section 1512 of Title 18 of the United
States Code. “Whoever conspires to commit any offense is guilty
of a crime against the United States.” That’s why I say that a
conspiracy is, in and of itself, a crime.
With respect to this particular charge, conspiracy to murder a
witness or tamper with a witness, the Government has to establish
two elements. They must be established beyond reasonable doubt.
First, the Government must establish that there was a conspiracy to
murder Kemo DeShawn McCray with premeditation and with the
intent to prevent Kemo DeShawn McCray’s attendance or
testimony at an official proceeding; that there was a conspiracy to
murder him with premeditation and with the intent to prohibit and
prevent him from attending or testifying at an official proceeding.
It is alleged and must be proven that the conspiracy was formed,
reached, entered into by two or more persons.
54
The second element is that at sometime during the existence or life
of the conspiracy, the defendant knew the purpose of the
agreement and then willfully joined the conspiracy.
If you find from the evidence in the case that the conspiracy
charged in count one of the indictment existed, and during its
lifetime the defendant became a member, then proof of the
conspiracy is complete and you may find him guilty of that
conspiracy that is charged.
Now, I have instructed you on the general standards for use in
determining whether a conspiracy to pursue a common, unlawful
object existed. I’m now going to discuss the alleged objective of
the conspiracy charged in count one in this indictment.
The Government must prove beyond a reasonable doubt that the
object of the conspiracy charged in count one was to murder Kemo
DeShawn McCray with premeditation, with the intent to prevent
the testimony of Mr. McCray at an official proceeding. The object
crime of the conspiracy charged in count one, tampering with a
witness, is defined in Section 151 2A( 1 )(a) of Title 18 of the United
States Code and that statute provides, “Whoever kills another
person with the intent to prevent the attendance or testimony of
any person in and official proceeding is guilty of the crime against
the United States.”
The elements of the object crime of the conspiracy charged in
count one are these: First, that the defendant murdered Kemo
DeShawn McCray with premeditation; second, that the murder of
Kemo DeShawn McCray was perpetrated with the intent to prevent
the attendance or testimony of Kemo DeShawn McCray at an
official proceeding.
Let me rephrase that. The first element, I told you that it must be
prove that the defendant murdered Kemo DeShawn McCray.
That’s actually not correct. It must be demonstrated, the object
crime is that there was a premeditated murder of Kemo DeShawn
McCray.
The second element, that the murder was perpetrated with the
intent to prevent the attendance at an official proceeding.
Remember, this is the object crime, the conspiracy is the crime
charged against the defendant.
55
Now, you need not find that the conspirators committed the object
crime, tampering with a witness, or that the elements of tampering
with a witness have been proven. In determining whether the
defendant is guilty of the conspiracy charged in count one, keep in
mind that the conspiracy to tamper with a witness is separate and
distinct from the crime of actually tampering with the witness.
Accordingly, it is not necessary that the defendant actually
succeeded in tampering with a witness or put differently, the
evidence need not show that the members of the alleged conspiracy
were successful in achieving any or all of the objects or goals of
the agreement.
All you need to find is that there was an agreement, understanding
or plan to tamper with a witness. Some of these terms require
definitions and these definitions will apply throughout this charge,
so I’m not going to repeat these definitions, mercifully.
The indictment charges that the unlawful killing was a
“premeditated murder” as defined in another section of the
criminal code, Section 1111, which states in relevant part,
“premeditated murder is the unlawful killing of a human being
with malice qforethought. Every murder perpetrated by poison,
lying in wait or any other kind of willful, deliberate, malicious and
premeditated killing is murder in the first degree.”
As used in these instructions, the term “malice aforethought,”
means an intent at the time of a killing, willfully to take the life of
a human being or an intent to willfully act in callous and wanton
disregard of the consequences to human life, but malice
aforethought does not necessarily imply any ill will, spite or hatred
toward the individual killed.
In determining whether Mr. McCray was unlawfully killed with
malice aforethought, you should consider all of the evidence
concerning the facts and circumstances preceding, surrounding and
following the killing which tend to shed light upon the question of
intent.
A killing is premeditated when it is intentional and the result of
planning or deliberation. The amount of time needed for
premeditation of a killing depends on the person and the
circumstances. It must be long enough for the killer, after forming
the intent to kill, to be fully conscious of his intent and to have
thought about the killing. For there to be premeditation, the killer
must think about the taking of human life before acting.
56
The amount of time required for premeditation cannot be
arbitrarily fixed. The time required varies as the minds and
temperament of people differ and according to the surrounding
circumstances in which they may be placed. Any interval of time
between forming the intent to kill and acting on that intent which is
long enough for the killer to be fully conscious and mindful of
what he intended and willfully set about to do is sufficient to
justify the finding of premeditation.
“Intent” was previously defined. You may find such intent from all
the facts and circumstances surrounding the case. “Willfully” has
also been previously been defined and you may consider all the
facts and circumstances surrounding the case to determine whether
conduct was willful.
The term “official proceeding” means a proceeding before a Judge
or Court of the United States, United States Magistrate Judge or a
federal Grand Jury.
Conspirators need not know that the proceeding was a federal
proceeding. Further, it is not necessary that a proceeding actually
depending on testimony was about to be instituted. It is not
necessary that the victim be under subpoena or a scheduled witness
in a case.
The statute purposefully use the term “person” instead of witness. I
instruct you that a federal criminal trial such as this, is an official
proceeding under the meaning of the statute.
Count two of the indictment alleges a conspiracy to retaliate
against an informant. Again, remember that the crime charged
against the defendant is a conspiracy to retaliate against Mr.
McCray, who was a federal informant.
This also has certain elements that I’m going to instruct you about.
In order to prove defendant guilty of count two ofthe indictment,
the Government must prove each ofthe following elements beyond
a reasonable doubt: First, that a conspiracy to murder Kemo
DeShawn McCray with premeditation and intent to retaliate
against Mr. McCray for providing to law enforcement officers any
information relating to the commission of a possible or possible
commission of a federal offense was formed, reached or entered
into by two or more persons. The first element is the Government
must establish the existence of a conspiracy to murder Mr. McCray
with premeditation in order to retaliate against him for providing
information to law enforcement.
57
The second element is that at sometime during the existence of the
life of the conspiracy, the defendant knew the purpose of the
agreement or conspiracy and then willfully joined it.
If you find from the evidence in this case that the conspiracy
charged in count two of the indictment existed, and that during its
lifetime the defendant became a member of it, then proof of the
conspiracy is complete and you may find him guilty of that crime
charged.
Object of that conspiracy. I previously instructed you on general
standards for use in determining whether a conspiracy to pursue a
common, unlawful object existed and I’m going to discuss the
alleged objective crime as to the conspiracy charged in count two
of the indictment. Again, the government must prove beyond
reasonable doubt that the object ofthe conspiracy charged in
count two was to murder Kemo DeShawn McCray with
premeditation, with the intent to retaliate against him for providing
to a law enforcement officer information relating to the
commission or possible commission ofa federal crime.
The object crime in the count two conspiracy, retaliating against an
informant, is defined in another section of the code, Section
151 3A( 1 )(b), which provides, “whoever kills another person with
intent to retaliate against any person for providing to a law
enforcement officer any information relating to the commission or
possible commission of a federal offense is guilty of a crime
against the United States.”
The elements of the object crime in the count two conspiracy are
these: First, that the killing of Kemo DeShawn McCray was done
with premeditation; and second, that the killing was done with the
intent to retaliate against Kemo DeShawn McCray for providing to
a law enforcement officer any information relating to the
commission or possible commission of a federal offense.
You need not find the conspirators committed the object crime or
that the elements of retaliating against an informant have bene
proven in determining whether the defendant is guilty. Keep in
mind that the crime of conspiracy to retaliate against an informant
is separate and distinct from the crime of actually retaliating
against an informant and accordingly, it is not necessary that the
defendant actually succeeded in retaliating against an informant.
Put differently, the evidence need not show that the members of
the conspiracy were successful in achieving any or all of the
58
objects or goals. All that you need to find is that there was an
agreement, understanding or plan to retaliate against an informant.
I have previously defined premeditated murder. I’ve previously
defined malice aforethought, premeditation, intent, willfully and
you should apply the definitions to those phrases that I’ve given
you.
The term “law enforcement officer” means an officer or employee
of the federal Government authorized to prevent, investigate or
prosecute offenses or serving as a probation officer and I instruct
you that a special agent of the Federal Bureau of Investigation is a
law enforcement officer.
(T.T. at p.5631-39 (emphasis added))
A faulty jury instruction rises to the level of a due process violation where the ailing
instruction so infected the entire trial that the resulting conviction violates due process. See
Middleton v. McNeil, 541 U.S. 433, 437 (2004); Estelle, 502 U.S. at 71—72. The instruction must
be more than merely erroneous as petitioner must show that there was a “reasonable likelihood
that the jury has applied the challenged instruction in a way that violates the Constitution.”
Middleton, 541 U.S. at 437. The instruction must not be judged in artificial isolation, “but must
be considered in the context of the instructions as a whole and the trial record.” Estelle, 502 U.S.
at 72.
In this case, petitioner is proceeding on this claim as an ineffective assistance of counsel
claim. Thus, petitioner must also show that counsel’s performance was deficient and that he was
prejudiced by counsel’s failure to object to the jury instruction. See Lusick v. Palakovich, 270 F.
App’x 108, 110 (3d Cir. 2008).
Petitioner fails to show that he was prejudiced by counsel’s failure to object to the trial
court’s instructions with respect to count one and two. Contrary to petitioner’s assertions in this
claim, and as the emphasized portion of the jury instructions quoted above indicates, the jury was
specifically instructed that the Government needed to prove the elements of counts one and two
59
beyond a reasonable doubt. Earlier on in the jury instructions, Judge Pisano explained to the jury
the reasonable doubt standard as follows:
Although the Government is required to prove the defendant
beyond a reasonable doubt, the Government is not require to
present all possible evidence related to the case or to produce all
possible witnesses who might have some knowledge about the
facts of this case.
In addition, as I have explained, and will explain again, the
defendant is not required to present any evidence or to produce any
witnesses at all.
Now, we’ll talk about the burden of proof and the presumption of
innocence. As I have explained to you a couple of times, the
defendant, William Baskerville, has pled not guilty to all of the
charges in this case. Mr. Baskerville is presumed to be innocent.
He started the trial with a clean slate, with no evidence against
him. The presumption of innocence stays with a defendant unless
and until the Government has presented evidence that overcomes
that presumption by convincing you that the defendant is guilty
beyond a reasonable doubt.
The presumption of innocence requires that you find the defendant
not guilty unless you are satisfied that the Government has proved
his guilty beyond a reasonable doubt. The presumption of
innocence means that the defendant has no burden or obligation to
present any evidence at all or to prove that he is not guilty. The
burden or obligation of proof is on the Government to prove that
the defendant is guilty and this burden stays with the Government
throughout the trial.
In order for you to find the defendant guilty of the offenses charged
or any of them, the Government must convince you that the
defendant is guilty beyond a reasonable doubt. That means that the
Government must prove each and every element of the offenses
charged beyond a reasonable doubt.
(T.T. at p.5606-07 (emphasis added))
As these instructions make clear, the jury was instructed on the reasonable doubt
standard, and that the government had to prove all of the elements of an offense beyond a
reasonable doubt. The jury is presumed to have followed these instructions. See Weeks v.
60
Angelone, 528 U.S. 225, 234 (2000). Accordingly, petitioner fails to show that counsel was
ineffective for failing to object these instructions. Therefore, he is not entitled to relief on this
claim.
S. Claim XIX
—
Failure to Seek Bifurcated Trial
In Claim XIX, petitioner argues that trial counsel was ineffective when he failed to seek
bifurcated trials. Petitioner asserts that the murder related counts (count one and two) should
have been separated from the remaining drug counts.
Federal Rule of Criminal Procedure 8(a) states that:
The indictment or information may charge a defendant in separate
counts with 2 or more offenses if the offenses charged whether
felonies or misdemeanors or both are of the same or similar
character, or are based on the same act or transaction, or are
connected with or constitute parts of a common scheme or plan.
—
—
Fed. R. Crim. p. 8(a). As one court has explained:
a variety of courts have sanctioned joinder of underlying
substantive charges with additional charges arising out of postcharge or post-investigation conduct calculated to hinder
prosecution or escape liability on the original charges. See United
States v. Carnes, 309 F.3d 950, 957-58 (6th Cir. 2002) (holding
joinder of witness tampering count with underlying felon in
possession charge was proper); United States v. Baizano, 916 F.2d
1273, 1280 (7th Cir. 1990) (holding joinder of witness intimidation
count with conspiracy and extortion counts was proper because
intimidation amounted to attempt to cover-up or escape liability for
underlying offenses and, thus, “was clearly part and parcel of the
same criminal scheme”); United States v. Chagra, 754 F.2d 1186,
1188 (5th Cir. 1985) (holding counts alleging obstruction ofjustice
and possession with intent to distribute marijuana were properly
joined with conspiracy and murder counts where former acts were
committed for purpose of avoiding punishment for latter); United
States v. Davis, 752 F.2d 963, 972 (5th Cir. 1985) (joinder of
obstruction ofjustice count with underlying mail fraud and false
statements counts proper where evidence of fraud tended to
establish motive for obstruction ofjustice and, similarly, evidence
of obstruction (i.e., failure to produce subpoenaed documents,
alleged interference with witness) tends to establish defendant’s
61
guilty consciousness of underlying substantive offenses); see also
United States v. Kaler, 2001 WL 303349, at *2 (6th Cir. March 20,
2001) (unpublished opinion) (holding escape or failure to appear
charge and underlying offense are “connected together” and
properly joined under Rule 8(a) if charges are related in time,
motive for flight was avoidance of prosecution of the underlying
offense, and custody derived directly from the underlying offense).
United States v. Cartwright, No. 1 :04-CR-33, 2005 WL 1118039, at *2 (E.D. Tenn. Apr. 28,
2005).
In this case, the conspiracy to murder a witness (count one) and the conspiracy to retaliate
against a witness (count two), were charges arising out of post-charged conduct calculated to
hinder prosecution of or escape liability on the drug charges against petitioner. As such, the.
charges were part of the same “common scheme.” See Chagra, 754 F.2d at 188 (“An indictment
states a common scheme under Rule 8(a) when it alleges that a defendant has attempted to
escape liability for one criminal offense through the commission of others.”) (footnote omitted).
Additionally, Federal Rule of Criminal Procedure 14(a) permits severance “if the joinder
of offenses.
.
.
in an indictment, an information or a consolidation for trial appears or prejudice a
defendant[.]” Fed. R. Crim. P. 14(a).
To prevail on a severance claim, a defendant must “pinpoint clear
and substantial prejudice resulting in an unfair trial.” Id. (quoting
United States v. McGlory, 968 F.2d 309, 340 (3d Cir.1992)). This
requires more than showing “severance would have increased the
defendant’s chances of acquittal.” McGlory, 968 F.2d at 340.
Rather, “the question of prejudice hinges upon ‘whether the jury
will be able to compartmentalize the evidence as it relates to
separate defendants in view of its volume and limited
admissibility.’” Walker, 657 F.3d at 170 (quoting United States v.
Davis, 397 F.3d 173, 182 (3d Cir.2005)). Because juries are
presumed to follow instructions, jury instructions are “persuasive
evidence that refusals to sever did not prejudice the defendant[ 1.”
Id. at 171 (citing United States v. Lore, 430 F.3d 190, 206 (3d
Cir.2005)).
United States v. Green, 563 F. App’x 913, 917 (3d Cir. 2014).
62
Petitioner has come forward with nothing more than conjecture to show that the jury was
unable to compartmentalize the evidence with respect to the different counts. The jury was
specifically instructed that they were to consider each count separately and return a separate
verdict of guilty or not guilty for each count. Indeed, Judge Pisano instructed the jury as follows:
Now, in this case, the defendant is charged with several offenses.
Each offense is charged in what we call a separate count of the
indictment. The number of offenses charged is not evidence of his
guilt and this should not influence your decision in any way. You
must separately consider the evidence that relates to each of the
offenses. For each offense charged, you must decide whether the
Government has proved beyond reasonable doubt that the
defendant is guilty of that particular offense.
Your decision on one offense or one count, whether guilty or not
guilty should not influence your decision on any of the other
counts charged. Each offense or count must be considered
separately.
(T.T. at
p.5609). The jury is presumed to have followed these instructions. See
Weeks, 528 U.S.
at 234.
Given that there was no indication that the jury was unable to compartmentalize the
evidence, coupled with the fact that the jury was given a proper limiting instruction, petitioner
fails to show that he was prejudiced by counsel not seeking to sever the murder and drug counts
at trial. Accordingly, petitioner fails to show that he is entitled to relief on this claim. Counsel’s
conduct is not considered to be ineffective for failing to raise a meritless issue.
Furthermore, even if counsel should have raised the severance issue, petitioner has not
shown to a reasonable probability that the outcome of his proceeding would have been different,
particularly where counts one and two arose out of petitioner’s conduct to escape liability on his
drug charges. Thus, any motion to sever presumably would have been denied. See United States
v. Johnson, Crim. No. 08-285, 2014 WL 3953153, at *4 (W.D. Pa. Aug. 12, 2014) (petitioner
63
fails to show prejudice arising from failure to file sever motion because he is unlikely to have
prevailed under such a motion). Therefore, petitioner is not entitled to relief on this claim.
T. Claim XX
—
Failure to Object to Illegal Sentence
In Claim XX, petitioner claims that the government sought enhanced penalties with
respect to the drug counts pursuant to an information filed under 21 U.S.C.
§
851. However,
petitioner states that the sentencing court did not address him personally to determine whether or
not he affirmed or denied that he had previously been convicted for two prior drug felonies as
alleged by the government. Additionally, petitioner challenges the mandatory life sentences with
respect to counts 4-9 (the drug counts) as lacking any justification. He claims counsel failed to
challenge these errors by the sentencing court.
Prior to trial, the government filed an enhanced penalty information that listed
petitioner’s two prior felony drug convictions. (See Crim. No. 03-836 ECF 112) The jury had
already found in the penalty phase that the government had established beyond a reasonable
doubt that petitioner had previously been convicted of”2 or more State or Federal offenses
punishable by a term of imprisonment of more than one year, committed on different occasions,
involving the distribution of a controlled substance.” (Crim. No. 03-836 ECF 224 & 225)
Given this as a background, trial counsel stated that they did not want to object to the
validity of these findings at the sentencing hearing. Counsel’s actions in failing to object did not
fall below an objective standard of reasonableness.
Additionally, as stated above, petitioner also challenges counsel’s failure to object to his
mandatory life terms on counts 4-9 (distribution of cocaine base). However, petitioner’s murder
convictions carried a mandatory life term. His drug convictions were ordered to run concurrently
to his murder convictions.
64
As a panel of the Third Circuit has explained:
Under the concurrent sentence doctrine, a court has “discretion to
avoid resolution of legal issues affecting less than all counts in an
indictment if at least one will survive and sentences on all counts
are concurrent.” United States v. McKie, 112 F.3d 626, 628 n. 4
(3d Cir. 1997); United States v. American Investors ofPittsburgh,
Inc., 879 F.2d 1087, 1100 (3d Cir.1989) (citing United States v.
Lampley, 573 F.2d 783 (3d Cir.1978)). Since “the defendant
remains sentenced in any event, reviewing the concurrently
sentenced counts is of no utility. The practice is eminently
practical and preserves judicial resources for more pressing needs.”
Jones v. Zimmerman, 805 F.2d 1125, 1128 (3d Cir.1986) (citations
omitted).
Parkin v. United States, 565 F. App’x 149, 152 (3d Cir. 2014). Petitioner’s convictions on the
drug counts were ordered to run concurrent to his life sentence convictions on the conspiracy to
murder counts. Accordingly, because petitioner’s life sentence on the conspiracy to murder
convictions would remain unchanged in the event this Court agreed with his argument as to his
sentence on the drug counts, “review [of] the concurrently sentenced counts [would be] of no
utility.” See id. (citing Jones v. Zimmerman, 805 F.2d 1125, 1128 (3d Cir. 1986)). Thus, this
Court finds that petitioner is not entitled to relief on this claim.
U. Claim XXI Ineffective Assistance of Appellate Counsel for Failing to Object to
-
Hearsay-within-Hearsay Testimony of Marshal Cannon
In Claim XXI, petitioner asserts that appellate counsel was ineffective by failing to raise
a confrontation clause claim with respect to the purported hearsay-within-hearsay testimony of
Marshal Cannon. According to petitioner, he wrote to his appellate counsel, Mark Berman, Esq.,
on March 10, 2009, explaining that he needed to raise a confrontation clause claim on the
hearsay-within-hearsay testimony of Cannon.
The government counters this claim by citing to petitioner’s appellate counsel’s
affirmation. In his affirmation, Mr. Berman states that he discussed with petitioner his concern
65
regarding Cannon’s testimony, but that any error was not preserved for appeal and would be
subject to the high “plain error” standard. (See ECF 16-3 at
p.9-10) According to Mr. Berman, as
an unpreserved issue, he believed that it had a low likelihood of success and would have
detracted from the strength of other issues on appeal. (See Id.)
This Court finds that petitioner is not entitled to relief on this claim, particularly in light
of the fact that petitioner has come forward with no evidence to indicate that Hudson County Jail
did in fact have the ability to record phone calls at the time in question. At a minimum, petitioner
fails to show that the outcome of his appeal would have been different had counsel raised this
objection on appeal. Accordingly, petitioner is not entitled to federal habeas relief on this claim.
V. Claim XXII- Ineffective Assistance of Appellate Counsel for Failing to Raise
Insufficiency of the Evidence on Conspiracy Counts 1 and 2
In Claim XXII, petitioner argues that appellate counsel was ineffective for failing to raise
an insufficiency of the evidence claim on appeal with respect to his convictions for conspiracy
on Counts 1 and 2. However, this claim was in fact raised and denied on appeal. See Baskerville,
448 F. App’x at 250 (“There was sufficient evidence from which a jury could have found that
Baskerville intended to prevent McCray form testifying at his trial.”). Accordingly, this claim is
denied.
W. Claim XXIII
—
Ineffective Assistance of Appellate Counsel for Failing to Correct Known
Perjured Testimony from Young and Manson
In Claim XXIII, petitioner argues that appellate counsel should have objected to the
government’s failure to correct known perjured testimony of Young and Manson. Mr. Berman
recalls discussing with petitioner his claim that Young and Manson testified falsely. (See ECF
16-3 at p.1 1) However, he saw nothing in the trial record that would have supported raising this
66
claim on direct appeal. (See id.) This Court agrees such that appellate counsel’s decision not to
raise this claim did not fall below an objective standard of reasonableness.
Furthermore, to the extent that petitioner is raising this claim based on Young and
Manson’ s testimony at Bergrin’ s first trial in 2011, the Third Circuit had already decided
petitioner’s appeal on October 13, 2011. This date was before testimony in the Bergrin I trial
began. Accordingly, petitioner is not entitled to relief on this claim.
X. Claim XXIV
—
Failure to Raise Prejudicial Errors with Jury Instructions
In Claim XXIV, petitioner argues that appellate counsel should have advanced prejudicial
errors with respect to the trial court’s jury instructions. Petitioner is not specific with respect to
what part ofjury instructions appellate counsel should have challenged on appeal. Nevertheless,
this Court will presume that they are the same arguments that petitioner raised with respect to the
jury instructions as were his ineffective assistance of trial counsel claims. For the reasons stated
supra, those claims lacked merit. Accordingly, appellate counsel was not ineffective for failing
to raise these meritless issues.
Y. Claim XXV
—
Failure to Raise Sentencing Errors on Appeal
Next, petitioner asserts that appellate counsel was ineffective for not raising sentencing
errors on appeal. Once again, petitioner is not altogether clear what “sentencing errors” he is
claiming. However, to the extent that these “errors” are similar to the sentencing errors he
claimed with respect to trial counsel, he would not be entitled to relief on this claim as his
sentencing error claims based on ineffective assistance of trial counsel also failed.
67
Z. Claims XXVI, XXVII and XVIII
—
Failure to Raise Additional Plain Errors within the
Trial Record; Failure to Raise a Lack of Subject Matter Jurisdiction with Respect to all
Charges; and Failure to Raise any of the Ineffective Assistance of Trial Counsel Claims
to the Extent they Could have been Raised on Appeal
In Claim XXVI, petitioner asserts that appellate counsel was ineffective for failing to
advance on appeal “additional plain errors within the trial record.” In Claim XXVII, petitioner
claims that appellate counsel was ineffective for failing to advance on appeal “the lack of
subject-matter jurisdiction as to all charges.” Finally, in Claim XXVIII, petitioner claims that
appellate counsel was ineffective on appeal by failing to raise any of the issues with respect to
trial counsel’s ineffectiveness that could have been raised on appeal.
Petitioner is not entitled to relief on Claim XXVI and XXVII because they rest upon
vague and conclusory allegations. Such allegations “may be disposed of without further
investigation by the District Court.” United States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000).
Thus, these claims will be denied.
With respect to Claim XXVIII, petitioner is also not entitled to relief. The Third Circuit
has stated that “rarely, if ever, should an ineffectiveness of counsel claim be decide
.
.
.
on direct
appeal. ‘[T]his Court has expressed a preference that ineffective assistance of trial counsel claims
be brought as collateral challenges under 28 U.S.C.
§ 2255, rather than.
.
.
on direct appeal.”
United States v. Kennedy, 354 F. App’x 632, 637 (3d Cir. 2009) (citing United States v. Chorin,
322 F.3d 274, 282 n.4 (3d Cir. 2003)) (other citations omitted); see also United States v. Brooks,
480 F. App’x 675, 678 (3d Cir. 2012) (noting “strong preference” for reviewing ineffective
assistance of counsel claims in collateral proceedings under
Accordingly, Claim XXVIII, will also be denied.
68
§
2255 rather than on direct appeal).
AA.
Claim XXIX
—
Cumulative Effect of Counsel’s Errors
In Claim XXIX, petitioner asserts that he is entitled to relief due to the cumulative effect
of counsel’s errors. Errors that do not individually warrant federal habeas relief may sometimes
do so when combined. See Albrecht v. Horn, 485 F.3d 103, 139 (3d Cir. 2007) (citing Marshall
v. Hendricks, 307 F.3d 36, 94 (3d Cir. 2002)) (footnote omitted). In this case, this Court will
reserve judgment on this claim because this Court will be conducting an evidentiary hearing to
determine whether trial counsel was ineffective for failing to investigate/call Hakeem Curry
and/or Rakeem Baskerville as witnesses at petitioner’s trial.
BB.
Claim XXX
—
Newly Discovered Evidence
In Claim XXX, petitioner asserts that “[t]here is newly discovered evidence which
establishes that defendant/movant’s convictions in this case are constitutionally infirm and
should thus be vacated.” (ECF 1 at p.1 1) Among the sub-claims that petitioner makes within
Claim XXX are the following:
1. Inconsistencies relative to the government’s theory as to the motive for McCray’ s
murder.
2. Inconsistent testimony from Manson on the issues of how, when and from whom she
learned of information relative to the McCray murder.
3. Inconsistencies/conflicts in Young’s testimony.
4. Inconsistencies/conflicts as to highly material matters.
5. Eyewitness information that casts doubt on foundation for petitioner’s convictions on
Counts 1 and 2.
69
The main area of focus on petitioner’s “newly discovered evidence” arguments within
Claim XXX arise from petitioner’s comparison of the testimony from his trial as compared to the
testimony in the 2011 and 2013 Bergrin trials.
Respondent asserts that all of petitioner’s arguments within Claim XXX are time-barred.
Respondent states that petitioner was required to bring these claims in a Federal Rule of
Criminall Procedure 33 motion. Accordingly, respondent argues this claim (including all subclaims) are untimely because they were not filed within the three-year period set out in Rule 33
of the Federal Rules of Criminal Procedure. See Fed. R. Crim. P. 33(b)(1) (“Any motion for a
new trial grounded on newly discovered evidence must be filed within 3 years after the verdict or
finding of guilty. If an appeal is pending, the court may not grant a motion for a new trial until
the appellate court remands the case.”).
This Court disagrees with the government’s argument that petitioner can only proceed
with his arguments within Claim XXX under a Rule 33 motion. Indeed, as some courts have
noted, “a defendant whose argument is not that newly discovered evidence supports a claim of
innocence, but instead that he has new evidence of a constitutional violation or other ground of
collateral attack, is making a motion under
§ 2255
(or
§ 2254)[.j” United States v. Evans, 224
F.3d 670, 674 (7th Cir. 2000); United States v. White, No. 12-4464, 2013 WL 12221280, at *7
n.13 (E.D. Pa. Apr. 26, 2013). Petitioner’s arguments within Claim XXX fall within claims
asserting that he has new evidence of a constitutional violation. Accordingly, this Court finds
that petitioner has properly brought these arguments within Claim XXX in this
§ 2255
proceeding as opposed to a Rule 33 motion in his criminal action. Each of petitioner’s arguments
within Claim XXX will therefore be analyzed on their merits.
70
Inconsistencies relative to the government ‘s theory as to the motive for McCray s
murder
In his first argument within Claim XXX, petitioner asserts that the government posited
inconsistent theories relative to the motive to murder McCray at petitioner’s and Bergrin’s trials.
In support of this claim, petitioner cites to the following portions of the government’s opening
statements from his trial in 2007:
On March 2’, 2004, Kemo DeShawn McCray got up early. He
was going to work that day with his step-father, Johnnie Davis on a
construction job up in Newark. The two men, along with a couple
other guys, spent the morning doing rehabilitation work in this
house.
Sometime after 1:00 that day, step-father and son decided to go get
some cigarettes. They went out of their house, made a right turn,
took a short walk down South Orange Avenue, got their cigarettes
and began to walk back to the job site, walked back to work.
What Kemo didn’t know was that morning the defendant also had
men working in the area. What Kemo didn’t know was that
morning there were men organized waiting to kill him. Because
what Kemo didn’t know was back in November, three months
earlier, when defendant was arrested, he hatched a plan to have
Kemo killed.
Second page of the complaint you’ll see lays out some basic facts
that are alleged at the time the complaint was issued. What you see
in this complaint in that the Government chose four of the
transactions to charge the defendant at that time. What you’ll
notice is missing is the name Kemo DeShawn McCray. What
you’ll see in paragraph one is “handed a confidential witness,
herein after the CW.” Then throughout the balance of the report,
CW is used. Kemo or any derivation of his name is not used.
That, members of the jury, and leaving out a couple of the
transactions between Kemo and the defendant were an attempt,
you’ll learn by the Government, to keep his identity secret for as
long as possible.
However, what you’ll come to learn is based on the amounts, 26
grams, 26 grams, 28 grams, 28 grams, all approximations at the
time, indicated to the defendant that it must have been Kemo.
What you’ll come to learn is that the defendant did not normally
71
sell quantities that small. He was able to figure out from this
complaint that it must have been Kemo.
So before that day is up, before he left federal court on November
2003, again, the defendant knew he was facing a lot of time;
that the Government was seeking to keep him in jail and who
Kemo was. Armed with that information, he made a decision and
that decision was to pass information through his lawyer, again,
neither of the gentlemen here today, to his brothers and friends
outside, that Kemo’s the guy.
25th,
By doing so, demanded that Kemo be killed.
Now, for the two murder-related counts, what you have is this:
One related to a conspiracy to murder Kemo for what he had all
ready done and one related to a conspiracy for what Kemo could
do to the defendant in the future.
To what had been done already, it’s the retaliation against an
informant, for having him locked up, for having him put in jail.
Number two, for what he would do in the future, for acting as a
witness in a proceeding such as this and that is why there are two
separate conspiracies, although they involve the same people and
although they involve the same victim, there’s two different
reasons why the defendant acted as he did.
Members of the jury, this is a very important case, but’s also a very
straightforward case. What this case boils down to is the defendant
getting caught dealing drugs, the defendant being arrested by the
F.B.I., the defendant being told that he faced a large jail sentence,
the defendant being told that he would not be released on bail and
the defendant figuring out that it was Kemo McCray who was the
F.B.I. informant, who was responsible in his eyes for his situation.
(T.T. at p.3265, 3274-76, 3290-9 1) Comparatively, petitioner relies on the following statements
during the government’s October 17, 2011 opening statement in Bergrin I to assert that the
government maintained inconsistent theories at the two trials:
Now, Kemo was not killed in a random act of violence, Kemo was
killed in a targeted execution. And you’ll hear that Kemo was
killed because he had provided information to the Government
about a drug-trafficking organization that the Defendant [Bergrin]
was associated with. You’ll hear that because Kemo had infiltrated
this organization, he posed a threat not only to the organization but
72
to Paul Bergrin himself, because you’ll see, you will learn that
Paul Bergrin had, in fact, gotten involved in supplying that drugtrafficking organization with kilograms of cocaine. So it was not
only the drug-trafficking organization that was on the line, it was
Paul Bergrin himself, and because of that, in Paul Bergrin’s world,
Kemo had to die.
Now, in order to understand the motive behind this murder I’m
going to have to explain a little bit more and the testimony will
explain a little bit more about the background of Paul Bergrin.
Paul Bergrin is a criminal defense attorney. He specializes in
representing people who are accused of committing crimes. And
you’ll hear that he wasn’t the ordinary attorney but that, in fact, he
was what’s called “house counsel” for a large-scale retail drugtrafficking operation that operated in Newark. That drugtrafficking operation was headed by Hakeem Curry.
And you’ll see that second person is a picture of Hakeem Curry.
Now, you’ll hear that for a while Paul Bergrin provided these
house counsel services to Hakeem Curry’s organization, and that
as a part of providing those services as house counsel, he
represented a number of Hakeem Curry’s underlings who were
arrested in selling drugs for Hakeem Curry, and you’ll hear that
Hakeem Curry was one of Paul Bergrin’s most important clients,
and that he represented a good number of arrested underlings in the
organization.
You’ll also hear that after a while, in addition to providing house
counsel services, Paul Bergrin, in fact, became involved in
supplying Hakeem Curry’s organization with kilograms of cocaine.
Now, Hakeem Curry ran a large-scale retail distribution operation,
and as such he needed wholesale suppliers of cocaine. He would
obtain the wholesale cocaine from his suppliers and distribute that
on the streets of Newark. And what Paul Bergrin did, ladies and
gentlemen, is that he connected Hakeem Curry with a wholesale
supplier; a wholesale supplier named Jose Claudio, also known as
“Changa.”
You’ll hear that after Paul Bergrin made this connection, Changa
began to supply Hakeem Curry with kilograms of cocaine. And so
Paul Bergrin went from house counsel representing a criminal
organization to being a participant in that very criminal
organization.
And why is that important, ladies and gentlemen?
73
This is important because that provides the motive for this crime.
That is the reason why Paul Bergrin got involved in murdering
Kemo DeShawn McCray.
Because again, he had a personal motive at this point; he was not
simply representing Hakeem Curry, he was selling drugs to
Hakeem Curry. And if Hakeem Curry’s organization were
infiltrated by law enforcement, by Kemo DeShawn McCray, his
neck was personally on the line.
While they were unsuccessfully searching for Kemo, Paul Bergrin
took matters into his own hands. And you’ll hear about a meeting
Paul Bergrin had with another drug dealer named Alberto Castro.
Castro was a client of Paul Bergrin’s law practice, he was also a
large drug dealer in Newark but he was a drug dealer that had
nothing to do with Hakeem Curry.
And you’ll hear that at that meeting and, by the way, you’re
going to hear this directly from Alberto Castro’s mouth that what
happened was Paul Bergrin offered Alberto Castro $10,000 if
Alberto Castro would kill Kemo DeShawn McCray. You’ll hear
that he explained to Castro that he wanted Kemo killed because
Kemo had informed against a member of Curry’s organization and
therefore he had to be killed.
—
—
Now, you’ll hear that Castro turned down Paul Bergrin’s offer and
left. But you’ll also hear that that was an important meeting. And
again, the reason why it was important, ladies and gentlemen, is
because it’s additional evidence that Paul Bergrin wanted Kemo
DeShawn McCray dead. It’s additional evidence that when he
passed the name of the informant from Will Baskerville to Hakeem
Curry, that he did it because he wanted Kemo DeShawn McCray
dead. That when he went with Hakeem Curry and Hakeem Curry’s
group a couple of days later and instructed them to kill Kemo and
said, “No Kemo, no case,” that he wanted Kemo DeShawn
McCray dead. And it’s also important because it corroborates what
Anthony Young will testify to; that Paul Bergrin was, in fact,
involved in this conspiracy to kill Kemo DeShawn McCray.
And you’ll hear that after that there was another meeting between
Paul Bergrin and Hakeem Curry. And you’re going to hear that
Ramon Jimenez the same Ramon Jimenez who earlier tried to
broker a drug deal between Curry and Changa was present for a
meeting, and at that meeting they were discussing Paul Bergrin
and Hakeem Curry, that is were discussing Will Baskerville’s
—
—
—
—
74
case. And that during that meeting Paul Bergrin told Hakeem
Curry that if there was no witness, there was no case.
And you’ll hear that when he said that, Hakeem Curry looked over
at Ramon Jimenez appearing to be upset that Paul Bergrin was
discussing this openly in front of Ramon Jimenez, and in response,
Paul Bergrin seeing what Curry the look he gave to Ramon
Jimenez, told Hakeem Curry, “Don’t worry about it. You can trust
him.”
—
Now, why would Paul Bergrin say that?
There’s only one reason ladies and gentlemen: That’s because “No
witness, no case” was not legitimate legal advice. It was an order
to kill Kemo DeShawn McCray.
That meeting was important, ladies and gentlemen, also because
not only did it demonstrate further Paul Bergrin’s involvement in
the conspiracy to kill Kemo, but it also corroborated what Anthony
Young had testified to earlier, about the earlier meeting in which
Paul Bergrin instructed the group to kill Kemo and used the phrase,
“No Kemo, no case.”
Now, you’ll hear that after this meeting they continued to look for
Kemo to kill him. And you’ll hear that Paul Bergrin continued to
practice law, and you’ll hear about another meeting between Paul
Bergrin and a different client of Paul Bergrin, a client named
Richard Pozo.
Richard Pozo was another large-scale drug dealer who operated
primarily in Elizabeth. You’ll hear that Richard Pozo was arrested
in February on federal drug charges and that Paul Bergrin
represented him on those federal drug charges. You’ll hear that in
cormection with his representation, Paul Bergrin met with Richard
Pozo. You’ll hear that part of the reason Richard Pozo was arrested
was because an individual named Pedro Ramos had cooperated
and provided information to the Government about Richard Pozo’s
drug-trafficking activities. And you’ll hear that when Richard Pozo
and Paul Bergrin met in an attorney/client visit while Richard Pozo
was in jail, Paul Bergrin informed Richard Pozo that Pedro Ramos
was cooperating against him.
You’ll also hear that Paul Bergrin asked Richard Pozo if he knew
where Pedro Ramos lived. And when Richard Pozo asked why
Paul Bergrin wanted that information, Paul Bergrin said, because if
we can take care of Pedro Ramos, your federal case will go away.
75
Richard Pozo told Paul Bergrin he was not interested in killing
anyone. Richard Pozo also did something else, he fired Paul
Bergrin and got a new lawyer. And Richard Pozo ultimately came
in and cooperated with the Government, and you’ll learn about this
meeting because Richard Pozo is going to tell you about it.
Now, what is the importance of this meeting?
Ladies and gentlemen, the importance of this meeting is that it
shows that Paul Bergrin’s intent when he performed acts in
representing William Baskerville, when he passed the information
of the identity of Kemo from William Baskerville to Hakeem
Curry, when he instructed the Curry group to kill Kemo, that his
intention was, in fact, to kill Kemo. That he was counseling
another client to kill a cooperator against him at the same time
they’re plotting to kill Kemo demonstrates his intent and it
demonstrates it very powerfully.
.
He [Bergrin] was not acting as a legitimate lawyer when he
solicited Albert Castro and offered to pay him $10,000 to kill
Kemo. Instead, ladies and gentlemen, what the evidence will show
was that he was acting as a member of the Curry organization,
because that’s exactly what he was. He had supplied the Curry
organization with drugs, and therefore, since Kemo had infiltrated
that group, he had the same incentive as every single other member
of that group to kill Kemo, because he knew that infiltrating the
organization could ultimately lead to him being prosecuted for
serious federal crimes; crimes he knew he had committed with
Hakeem Curry. And that motive dictated and directed every act he
took after that. He passed the name, the identity of the informant
from Will Baskerville to Hakeem Curry because he wanted Kemo
dead; he instructed, not once, but twice, members of the Curry
organization to kill Kemo because he wanted Kemo dead; and he
solicited Albert Castro for $10,000 to kill Kemo because he
wanted Kemo dead.
Ladies and gentlemen, the evidence will prove overwhelmingly
that Paul Bergrin conspired to kill Kemo DeShawn McCray to
prevent him from testifying at trial and that he aided the killing of
Kemo DeShawn McCray to prevent him from testifying at trial.
Back in November of 2003, Paul Bergrin made a choice; he made
a choice that protecting himself and the drug organization was
more important that the life of Kemo DeShawn McCray.
(Crim. No. 09-369 ECF 287 at p.4.-7, 15-19, 29-30)
76
At the outset, it is worth noting that the Supreme Court has not held that the issue of
inconsistent theories rises to the level of a due process constitutional violation. See Bradshaw v.
Stumpf 545 U.S. 175, 190 (2005) (Thomas, J., concurring) (“This Court has never hinted, much
less held, that the Due Process Clause prevents a State from prosecuting defendants based on
inconsistent theories.”); Koehier v. Wetzel, No. 12-291, 2015 WL 2344932, at *31 (M.D. Pa.
May 14, 2015) ([T]he Bradshaw Court did not hold that the use of inconsistent theories in the
separate prosecutions of two defendants violates the right to due process.”) (emphasis in
original). Nevertheless, even if pursuing inconsistent theories rises to the level of a due process
violation in the abstract, this Court agrees with the government that in this specific instance, the
proffered motives for killing McCray were not inconsistent between petitioner’s and Bergrin’s
trials.
Baskerville was charged with both conspiracies to murder a witness as well as to retaliate
against an informant. Bergrin was charged with conspiracy to murder a witness. The overarching
motive for both was to disrupt the government’s investigation into the Curry drug organization.
That the government stressed the personal motives of Baskerville as compared to Bergrin at their
separate trials is not surprising. However, both related to the overarching motive to get rid of
McCray because of the involvement with the Curry organization and what he could or had
already supplied to the government to support its investigation. Accordingly, petitioner is not
entitled to relief on this argument.
ii.
Inconsistent testimony by Manson as to how, when andfrom whom she learned of
information about the McCray murder
Petitioner next argues that Manson gave inconsistent testimony regarding how she
learned of information about the McCray murder. Petitioner states as follows in his declaration;
77
(1) At my trial in 2007 she [Manson] claimed to have had no leads
regarding the McCray murder until Anthony Young came forward,
(TR, at 3887), but at the Bergrin trial in 2011 she said informants
provided information to the effect that a “Fat Ant” or “Anthony
Rodgers” was the person who killed McCray, (Bergrin 10/18/11
TR., at 160-63); (2) those informants were identified as Shelton
Leveret and Curtis Jordon and based on their information she
began an investigation of “Fat Ant” and “Anthony Young” before
Young came forward in 2005 and she eventually learned that “Fat
Ant” and Anthony Young are the same person, (Bergrin 10/18/11
TR., at 160-63); and (3) ajailhouse informant, Roderick Boyd,
who was housed at the Passaic County jail with William (Malik)
Lattimore, provided her with information to the effect that
Lattimore told him that he was responsible for McCray’s murder,
which information was put in an FBI 302 report and provided to
Bergrin in a Jencks disclosure, (Bergrin 10/19/11 TR., at 2 15-221).
None of the above referenced information presented through Agent
Manson.. at the Bergrin trial was provided to me in any form
prior to or during my trial in 2007.
.
(ECF 1-1 at p.11)
This Court construes petitioner’s first two arguments quoted above as an attempt to bring
a claim that the government knowingly presented or failed to correct false testimony in his
criminal proceeding because petitioner is essentially asserting that Manson testified falsely at his
trial. Construed as such, petitioner appears to be claiming that the prosecutor knowingly
permitted the perjured testimony of Manson regarding having no leads in the McCray murder.
The relevant portion of Manson’s testimony at petitioner’s trial was as follows:
Q:
Let’s move on, then, to a person by the name of Anthony
Young.
A: Yes.
Q: Was he known by any other nickname?
A: Fat Ant.
Q: By January of 2005, did you have some of these cooperators
that we just talked about providing information on the William
Baskerville case?
A: Yes we did.
Q: But prior to January of 2005, did you have any lead as to who
the shooter was in the case?
78
A: No, we did not.
Q: Let me just go back. In July of 2004, did you have any
communication with Detective Sabur, lead homicide detective,
regarding a possible suspect
A: Yes.
Q: for the shooting?
A: I had spoken with Detective Sabur and passed onto Detective
Sabur the name of Maleek Lattimore, who is an individual who is
part of the William Baskerville/Hakim Curry crew and is also
known to be a hit man. [] I passed on his name to Detective Sabur
and Detective Sabur then did a photo array with one of the
witnesses from the homicide.
Q: Okay. And why did you give William Lattimore’s name to
Detective Sabur?
A: I gave him the name for two reasons. His physical description
fit that of one we had received from one of the witnesses and also I
had known William Lattimore to be a hit man for the Curry
organization.
Q: But other than that, there was no other information?
A: No, there was no other information. It was a best guess on our
part.
Q: All right. So it was a guess to see what, if anybody
A: Can get an identification, yes.
Q: I’ll just show you Government Exhibit 206.
A: Yes, 206 is a photograph of William Lattimore.
Q: Agent, what was the result by the way, the witness who was
shown the photo of William Lattimore
A: Yes.
Q: what was his name?
A: Mr. Johnnie Davis.
Q: Okay. What was the result of that name?
A: He was not able to make an identification.
Q: Did you go out and interview Mr. Lattimore after July of ‘04?
A: No, we did not.
Q: Did you arrest him?
A: No. We this was not an issue at this stage, after he could not
identify Lattimore.
Q: Okay. So let’s turn to a Friday, January l4, 2005.
A: Yes.
Q: Can you tell the jury what happened that afternoon?
A: that afternoon, we have what we call complaint duty, meaning
an agent staffs the telephone, F.B.I. telephone 24 hours a day,
seven days a week. [] What had happened that afternoon is an
agent by the name of William Gale had complaint duty and was
manning the phones when Anthony Young made a call into the
F.B.I. office. [] He spoke to Agent Gale, explaining to Agent Gale
—
--
—
.
—
—
--
—
79
that he had specific information regarding the death of a federal
witness and as well as who was involved in the conspiracy to kill
this witness. {J] Agent Gale took down the facts as Anthony
Young provided them. In do so, he checks we have an internal
computer system where if you check various names, for example,
William Baskerville, my case number is going to pop up. [J] Once
William Agent Gale checked and saw that we did, in fact, have
an investigation into the death of Kemo McCray, he then contacted
me on the telephone. I was in the office just a couple floors down.
[] He contacted me and said that Anthony Young had just called
in and he would like to provide information on the death of Kemo
McCray.3 88
Q: Before that phone call to the switchboard at the F.B.I.
A: Switchboard, the main number, yes.
Q: Before that phone call, do you have any information or any
knowledge of Anthony Young, also known as Fat Ant?
A: I had heard the name and knew that Fat Ant was a member of
William Baskerville’s crew and also Hakim Curry’s crew and that
he went by Fat Ant. [J] We had been trying to determine his
identity, but had not yet been able to do so, but we did not know of
Fat Ant to be involved in Kemo’s murder.
—
—
—
(T.T. at
p.3887-90) During Bergrin I, however, Manson testified as follows:
Q: Agent, when we broke we were discussing the various
informants that you discussed obtaining information regarding
Kemo’s murder. Is that correct?
A: Yes.
Q: Now, one of those informants well, let me ask you: How
many informants ultimately provided information relating to the
investigation?
A: During what stage? Initially there was a handful, and then
eventually there was
Q: Initially.
A: Initially? At least three different informants.
Q: Now, one of them is named Shelton Leveret?
A: Yes.
Q: And did he provide you with information regarding what he had
learned about the murder of Kemo.
A: Yes.
Q: Based on that information, did you continue to investigate
members of the Hakeem Curry organization?
A: Yes, I did.
Q: And based on that information did you attempt to identify an
individual known as Fat Ant?
A: Yes, I did.
—
—
.
.
80
Q:
Was there a second individual who came and provided you with
information?
A: Yes, there was.
Q: And was that individual named Curtis Jordan?
A: Yes.
Q: And did he provide you with information specific to the
murder?
A: Yes, he did.
Q: Again Agent, based on what he told you, who did you go and
investigate?
A: An individual by the name of Anthony Rogers?
Q: And did Anthony Rogers also have a nickname?
A: He is also known as Fat Ant.
Q: Let me Curtis Jordan
A: Yes.
Q: is the second individual who provided information?
A: Yes.
Q: Based on that information, who did you attempt to investigate?
A: Fat Ant.
Q: And did he go by another name, the individual that you were
trying to investigate, based solely on Curtis Jordan’s information?
A: Anthony Rogers.
Q: Now, moving to a third individual. Did you start an
investigation or look during the course of this investigation to
another individual?
A: Yes.
Q: Okay. And who did you look towards?
A: Hakeem Curry.
Q: A fourth sources, did you speak to a fourth source with
information on the Kemo murder?
A: Yes.
Q: And that source, did he provide information?
A: Yes.
Q: And based on that information, who did you begin to look at?
A: William Baskerville.
—
—
--
(Crim. No. 09-369 ECF 288 at
p.160-63)
“A State violates the Fourteenth Amendment’s due process guarantee when it knowingly
presents or fails to correct false testimony in a criminal proceeding.” See Haskell v.
Superintendent Greene SCI, 866 F.3d 139, 145-46 (3d Cir. 2017) (citing Napue v. Illinois, 360
U.S. 264, 269 (1959); Giglio v. United States, 405 U.S. 150, 153 (1972); Lambert v. Blackwell,
81
387 F.3d 210, 242 (3d Cir. 2004)). “[T]he [Supreme] Court has consistently held that a
conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must
be set aside if there is any reasonable likelihood that the false testimony could have affected the
judgment of the jury.” United States v. Agurs, 427 U.S. 97, 103 (1976), holding modffied by
United States v. Bagley, 473 U.S. 667 (1985). Accordingly, in order to state a claim, petitioner
must show that the witness: (1) committed perjury; (2) the government knew or should have
known of this perjury; (3) the testimony went uncorrected; and (4) there is any reasonable
likelihood that the false testimony could have affected the verdict. See Lambert, 387 F.3d at 24243. It is important to note, however, that “[d]iscrepancy is not enough to prove perjury. There are
many reasons testimony may be inconsistent; perjury is only one possible reason.” Id. at 249.
“That some testimony may be inconsistent with that given in the first trial does not by itself
constitute perjury.” See United States v. Mangiardi, 173 F. Supp. 2d 292, 307 (M.D. Pa. 2001)
(citing United States v. Thompson, 117 F.3d 1033, 1035 (7th Cir. 1997); United States v. Arnold,
Nos. 99-cv-5564, Crim. 95-153-01, 2000 WL 288242, at *4 (E.D. Pa. Mar. 2000)); see also
Tapia
V.
Tansey, 926 F.2d 1554, 1563 (10th Cir. 1991) (“Contradictions and changes in witness’s
testimony alone do not constitute perjury and do not create an inference, let alone prove, that the
prosecution knowingly presented perjured testimony.”) (cited approvingly in United States v.
Stadmauer, 620 F.3d 238, 269 (3d Cir. 2010)).
Petitioner fails to show that there is a reasonable probability that the purported false
testimony by Manson at his trial could have affected the verdict. Indeed, petitioner fails to show
how the method Manson discovered that Young was a suspect in the murder would have
changed the outcome of the proceeding to a reasonable probability. Young, the person with
whom petitioner claims Manson should have testified to at his trial she had discovered was a
82
possible suspect, testified at great length during petitioner’s trial. The jury had ample opportunity
to determine his credibility regarding his admission that he killed McCray. This Court fails to see
how the fact that Manson did not testify during petitioner’s trial how she initially discovered
Young as a suspect could have affected the verdict to any reasonable probability. Rather than the
aspect of discovering Young as a suspect in the murder as being necessarily important at trial,
the key fact was that Young testified to murdering McCray. To reiterate, Young testified at
length during petitioner’s trial. The jury was completely free to weigh his credibility.
Accordingly, petitioner is not entitled to relief on this argument.
Next, petitioner argues that Manson was provided with information from a j ailhouse
informant, Roderick Boyd, that someone else was responsible for McCray’s murder. Manson
interviewed Boyd on June 17, 2004. However, petitioner asserts that he was never provided with
an F.B.I. 302 report prepared by Manson related to this interview. The record is not entirely clear
at this time whether petitioner was in fact provided with a copy of this F.B.I. 302 report prior to
trial. Indeed, petitioner’s trial attorneys state in their declarations that they do not recall whether
they knew about Boyd’s statements. (See ECF 16-1 at p.13 n.6; ECF 16-2 at p.15 n.6) The
government’s supplemental response also does expressly not address whether the report was
disclosed to petitioner’s defense. (See ECF 34 at p.7-8)
The relevant portion of the F.B.I. report stated that Boyd was incarcerated with Norman
Sanders and Malik Latimore. (See ECF 34 Ex.4) According to Boyd’s interview with Manson at
the time, Laitmore and Sanders talked openly about killing a snitch on S. Orange and
19th
Street,
Newark. (See id.) Boyd told Manson that Latimore killed him and was still waiting on getting
paid by “Currie” for the job. (See id.)
83
Petitioner argues that Boyd’s F.B.I. 302 report “points to someone other than Young
admitting to being McCray’s murderer. Had Petitioner been provided with the suppressed F.B.I.
302 report, it could have undoubtedly led to investigation that could have proved vital to the
defense, and could have undermined aspects of the Government’s case[.}” (ECF 29 at p.57)
Petitioner also asserts that the report could have been used to undermine the testimony of
Manson and Young.
Petitioner is making a Brady v. Maryland, 373 U.S. 83 (1963) claim in light of the
government’s purported failure to provide him with a copy of the F.B.I. 302 report regarding
Boyd’s interview in 2004. A due process violation under Brady “occurs if: (1) the evidence at
issue is favorable to the accused, because either it is exculpatory or impeaching; (2) the
prosecution withheld it; and (3) the defendant was prejudiced because the evidence was
‘material.” Breakiron v. Horn, 642 F.3d 126, 133 (3d Cir. 2011) (citations omitted). Materiality
requires “a reasonable probability that, if the evidence had been disclosed, the result of the
proceeding would have been different.” Id. (citing Giglio v. United States, 405 U.S. 150, 154
(1972)).
Respondent argues that petitioner is not entitled to relief because the information
contained in Boyd’s F.B.I. 302 report is entirely cumulative of information addressed during
Baskerville’s trial. Respondent argues as follows:
The FBI 302 Report describes that Boyd provided information to
the FBI regarding a murder possibly committed by Malik
Lattimore, about which Agent Brokos [Manson] testified.
Baskerville’s claim that the FBI 302 Report somehow would
provide more details or an explanation to this testimony is
incorrect. Baskerville’s claim that FBI 302 report would have
provided impeachment of Brokos [Manson] is also incorrect since
Brokos’s [Manson’s] testimony matches the contents of the FBI
302 Report.
84
(ECF 34 at p.7) This argument by respondent requires further inquiry.
Manson testified as follows during petitioner’s trial:
Q:
Let’s move on then, to a person by the name of Anthony
Young.
A: Yes.
Q: Was he known by any other nickname?
A: Fat Ant.
Q: By January of 2005, did you have some of these cooperators
that we just talked about providing information on the William
Baskerville case?
A: Yes, we did.
Q: But prior to January of 2005, did you have any lead as to who
the shooter was in the case?
A: No, we did not.
Q: Let me just go back. In July of 2004, did you have any
communication with Detective Sabur, lead homicide detective,
regarding a possible suspect
A: Yes.
Q: for the shooting?
A: I had spoken with Detective Sabur and passed onto Detective
Sabur the name of Maleek Lattimore, who is an individual who is
part of the William Baskerville/Hakim Curry crew and is also
known to be a hit man. I passed on his name to Detective Sabur
and Detective Sabur then did a photo array with one of the
witnesses from the homicide.
Q: Okay. And why did you give William Lattimore’s name to
Detective Sabur?
A: I gave him the name for two reasons. His physical description
fit that of one we had received from one of the witnesses and also I
had known William Lattimore to be a hit man for the Curry
organization.
Q: But other than that, there was no other information?
A: No, there was no other information. It was a best guess on our
part.
Q: All right. So it was a guess to see what, if anybody
A: Can get an identification, yes.
Q: I’ll just show you Government Exhibit 206.
A: Yes, 206 is a photograph of William Lattimore.
MR. FRAZER: I would enter 206 into evidence if there is no
objection.
MR. HERMAN: No.
(G-206, photo of William Lattimore, is marked in evidence.)
Q: Agent, what was the result by the way, the witness who was
shown the photo of William Lattimore
—
--
—
—
—
85
A: Yes.
Q: what was his name?
A: Mr. Johnnie Davis.
Q: Okay. What was the result of that name?
A: He was not able to make an identification.
Q: Did you go out and interview Mr. Lattimore after July of ‘04?
A: No, we did not.
Q: Did you arrest him?
A: No. We this was not an issue at this stage, after he could not
identify Lattimore.
Q: Okay.
--
—
(T.T. at p.33 87-89) Comparatively, Manson testified as follows in Bergrin I:
Q: Did there come a time when you began to look at an individual
named Malik Lattimore?
A: Yes.
Q: And was that based on information that you received from a
source?
A: Yes.
Q: And ultimately does that information get passed as well as this
other information, get passed along to the Newark Police
Department?
A: Yes it does.
Q: And, to your knowledge, did the Newark Police Department do
any further investigation with the information you provided?
A: Yes, they did.
Q: And can you tell use what that was?
A: We had I had provided Detective Sabur with the name of
Malik Lattimore as a possible shooter in the homicide, and I
provided Detective Sabur with a photograph of Malik Lattimore.
Detective Sabur brought in a witness and showed that witness a
photograph of Malik Lattimore.
Q: And when you say “a witness,” you mean a witness in the
murder?
A: Yes.
Q: And what were the results of that photograph array?
A: It was non conclusive.
Q: Meaning?
A: He was not able to identify the witness was not able to
identify Malik Lattimore as the shooter.
—
—
(Crim. No. 09-369 ECF 288 at p.164-65) In Bergrin II, Manson testified as follows:
86
Q: Now, did there come a time when you focused the attention of
your investigation at trying to identify a shooter amongst the Curry
group?
A: Yes.
Q: And did an individual named Malik Lattimore come to your
attention?
A: Yes, he did.
Q: And why did he come to your attention?
A: Through another source that we had developed at the time.
Q: And who was that?
A: His name was Roderick Boyd.
Q: And what did you learn from Mr. Boyd?
A: I learned from Mr. Boyd two things. One, he was incarcerated
with several members of the Curry and Baskerville organization,
and that he had found a photo that said KOS, meaning kill on site,
of Lachoy Walker, I believe his name is. And the second thing is,
he said that Malik Lattimore is one of the enforcers for the Curry
Organization, and that Lattimore killed the snitch at South Orange
Avenue and South I 9111 Street.
Q: Now, you said Malik Lattimore is now on the radar of the
F.B.I.?
A: Yes, he is.
Q: And what, if anything, did you do with that information?
A: I passed that information on to Investigator Sabur and
Investigator Susan Bzik, Investigator Bzik is Sabur’s counterpart at
the Essex County Prosecutor’s Office, and I had asked that they
show that they put together a photo array containing Malik
Lattimore’s photograph for Johnny Davis to look at.
Q: And do you know whether or not that happened?
A: Yes, it did happen.
Q: And do you know whether or not he was able to identify Mr.
Lattimore?
A: There was no positive ID of Mr. Lattimore.
Q: As a result of that, what did you do next?
A: We continued to develop information as best as possible
through different sources. We were trying to obtain more
information on Malik Lattimore, but we kept focusing on just
trying to get as much information as possible.
—
(Crim. No. 09-369 ECF 464 at p.237-38)
The testimony by Manson with respect to this issue at petitioner’s trial when compared to
that given particularly at Bergrin II does not precisely track the information in the F.B.I. 302
report. Indeed, Manson’s testimony at petitioner’s trial does not mention Boyd’s role at all.
87
Given that it appears, or at best is unclear whether petitioner was even provided with a copy of
the F.B.I. 302 report from the June 17, 2004 interview with Boyd, and the fact that respondent’s
cumulative argument is questionable based on the record, this Court will hear argument as well
as any other further evidence by both parties at the evidentiary hearing on this claim. At the
hearing, the parties may wish to address whether this Court is properly considering this claim as
a Brady claim. If so, the parties will be free to argue whether petitioner can properly bring this
Brady claim at this time in this
§
2255 proceeding. Additionally, if petitioner can properly bring
this Brady claim in this proceeding, the parties shall also be prepared to address whether or not
petitioner has established the elements of a successfulBrady claim with respect to Boyd’s F.B.I.
302 report. Thus, this Court will reserve judgment on this claim at the present time.
iii.
Inconsistencies/Conflicts with Anthony Young ‘s Testimony
Petitioner next argues that there were material inconsistencies and conflicts in Young’s
testimony as compared to Young’s testimony at Bergrin I. For these claims, it is important to
specifically examine Young’s entire testimony at both trials as it relates to each issue raised by
petitioner.
a. Diedra Baskerville’s presence at November 25, 2003 meeting
Petitioner states that Young testified at his trial that Deidra Baskerville was present at a
meeting on November 25, 2003 (See T.T. at p.4343), but excluded her presence at this same
meeting during Bergrin I. (Crim. No. 09-269 ECF 295 at 122-29) Petitioner fails to recognize
that Young testified on cross-examination during Bergrin I trial that Diedra was there at least for
part of the time. (See Id. ECF 296 at p.153, 160) Thus, petitioner fails to show that Young’s
statement at his trial constituted perjured testimony as opposed to just an inconsistency or being
more specific during Bergrin I. See Ellis v. City ofPittsburgh, 656 F. App’x 606, 610 (3d Cir.
88
2016); Graham v. Wingard, No. 16-839, 2017 WL 4550987, at *7 (M.D. Pa. Oct. 12, 2017)
(“[M]ere inconsistencies in testimony fall short of establishing perjury and most certainly do not
establish that the [prosecutor] knowingly utilized perjured testimony.”) (internal quotation marks
and citations omitted). Accordingly, petitioner is not entitled to relief on this argument.
b. How Young learned of petitioner’s federal arrest
Next, petitioner claims that Young testified at his trial that he learned of petitioner’s
arrest through Diedra Baskerville, but, during Bergrin I, Young testified that he learned about it
through Rakeem Baskerville, petitioner’s brother. (See ECF 1-1 at p.1 1). A review of the
testimony from these two proceedings show that petitioner is not entitled to relief on this
argument.
During petitioner’s trial, Young testified that he learned that petitioner had been arrested
from petitioner’s wife and his brothers. (See T.T. at p.4341) More specifically, Young testified
that he found out when he got a call from Rakeem Baskerville. (See id. at p.4342) Thereafter,
Young testified that Deidra told him it was the F.B.I. who arrested petitioner. (See id. at p.4344)
Comparatively, during Bergrin I, Young testified that he learned petitioner had got arrested by
“the feds” through Rakeem Baskerville. (See Crim. No. 09-269 Dkt. No. 295 at p.1 22)
The differences that petitioner notes in this claim stem from a level of detail and context,
not perjury. In both trials, petitioner notes that he found out petitioner had been arrested from
Rakeem Baskerville. Additionally, petitioner fails to show how this testimony is necessarily
material even if this Court were to construe it as perjured testimony that the prosecution knew
about. Accordingly, he is not entitled to relief on this argument.
89
c. People present in vehicle on November 25, 2003
Petitioner next argues that he is entitled to relief due to Young’s inconsistent testimony
regarding who was present in the vehicle on November 25, 2003, when Curry received a call
from Bergrin. To support this claim, he cites to testimony from his trial whereby Young testified
that himself, Rakeem Baskerville and Hakeem Curry were present in Hakeem’s truck when he
spoke to Bergrin on the phone. (See T.T. at p.4.350) However, during Bergrin I, petitioner states
that Young testified that Hakeem Curry, himself and Jamal Baskerville were in the truck during
this call. (See Crim. No. 09-369 ECF 295 at p.230)
Petitioner fails to show that he is entitled to relief on this claim. First, petitioner has failed
to show that this inconsistency regarding whether it was Jamal or Rakeem Baskerville in the
vehicle rises to the level of perjury committed at his trial. Second, petitioner fails to show how
this purported testimony of whether it was Rakeem or Jamal in the truck was material to his case.
The importance of the testimony was the substance of the phone call between Curry and Bergrin,
not who necessarily sat in the front passenger seat of Curry’s vehicle when Bergrin spoke to
Curry over the phone.
d. What Young was told about petitioner’s sentencing exposure
Petitioner next claims that Young was inconsistent in his testimony regarding when he
learned that Baskerville was facing life imprisonment. In support of this claim, petitioner relies
on Young’s testimony at his trial whereby Young stated that he learned that day petitioner was
arrested that petitioner was facing life imprisonment. (See T.T. at p.4359) Later on during his
testimony at petitioner’s trial, however, Young testified that Bergrin also told him four of five
days later that petitioner was facing life imprisonment. (See id. at p.4.360)
90
During Bergrin I, Young testified that it was Bergrin who told him that petitioner was
facing life imprisonment, as Young as well as others were surprised at that sentencing exposure
given the charges. (See Crim. No. 09-369 ECF 295 at p.141) Subsequently during Bergrin 1,
when presented with his former testimony at petitioner’s trial, Young testified that he did not
remember Curry saying that petitioner was facing life imprisonment on the day he was arrested,
“but at the time I said it, I must have remembered, yes, I did say that.” (Id. ECF 316 at p.14.7)
Young’s lack of memory regarding whether Curry told him on the night petitioner was
arrested that he was facing life imprisonment does not establish that Young’s testimony at
petitioner’s trial constituted perjury. Indeed, as expounded upon during Bergrin I, Young simply
could not remember that fact. Accordingly, petitioner fails to show that he is entitled to relief on
this claim.
Additionally, petitioner also fails to establish how this purported testimony regarding
when he found out petitioner’s sentencing exposure is material. Therefore, he is not entitled to
relief on this claim.
e.
Determination of who would kill McCray
Next, petitioner asserts that Young was inconsistent in his testimony regarding whether it
had been determined who would kill McCray. In support of this argument, petitioner first relies
on the following testimony from Young at petitioner’s trial:
Q: And at that point on that day, now, whatever it is, four, five
days after the defendant was arrested, had it been determined if
Kemo was found who would actually shoot him [McCray]?
A: No.
Q: Why not?
A: Because either Jamal McNeil was going to do it or I was going
to do it.
Q: Why wasn’t it decided? Like why wasn’t it decided absolutely
you or absolutely him?
91
A: Because if he was seen and one of use wasn’t around, the other
one had to do it.
(T.T. at p.4364) Comparatively, petitioner then cites to part of Young’s testimony in Bergrin Ito
support this claim. In Bergrin I, Young was asked whether any decisions were made that day
regarding whether Young would shoot Kemo if the opportunity presented itself. Young stated
that he “told Hakeem, I said, if I could get him first I’m going to get him, I said, because I could
use that $15,000.” (Crim. No. 09-369 ECF 295 at p.147)
As the government notes, the two statements from the two trials are not inconsistent.
Rather, Young’s answers related to somewhat different questions. In Bergrin I, Young was asked
if he would kill Kemo if the opportunity presented itself. This is not inconsistent with his
testimony during petitioner’s trial as he noted that if one of them between himself and Jamal
McNeil were not around, the other would kill Kemo. Accordingly, petitioner fails to show that he
is entitled to relief on this claim.
f.
Gloves
Petitioner next asserts that Young stated in Bergrin I for the first time that he put on
gloves in picking up the gun and that he removed the bullets and wiped or cleaned them off.
However, the fact that Young was more specific in his testimony during Bergrin I that he put on
gloves and wiped or cleaned the bullets off does not entitle him to relief as it does not show that
Young perjured himself. Instead, Young being more specific during Bergrin I does not amount to
perjured testimony. Furthermore, petitioner fails to show how Young not telling the jury in his
case that he put on gloves was material to his case. Thus, petitioner is not entitled to relief on this
claim.
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g. Fully automatic gun
Petitioner next claims that Young testified during Bergrin I for the first time that the gun
he used to kill McCray was fully automatic. Petitioner is not entitled to relief on this claim.
Young testified at petitioner’s trial that he fired “three or four times.” (See T.T. at p.4399)
During Bergrin I, Young testified that he pulled the trigger once and three or four shots came out
really fast. (See Crim. No. 09-369 ECF 295 at p.192) Unlike in Bergrin I, Young was not
questioned at petitioner’s trial though about the type of gun he used. This Court fails to see how
petitioner can show that Young’s testimony in this instance at his trial amounted to perjury, that
the government was aware that this was perjury, or how this affected petitioner’s trial. Rather,
Young was merely asked more specific questions during Bergin I as compared to petitioner’s
trial on this topic. Accordingly, petitioner is not entitled to relief on this claim.
h. Stipulation in Bergrin I that Young never said gun was fully automatic at petitioner’s
trial.
Petitioner also appears to challenge a stipulation between the parties in Bergin I that
Young never testified that the gun was fully automatic at petitioner’s trial. Like the previous
claim, however, merely because Young was asked more specific questions during Bergrin I does
not amount to perjury committed at his trial, let alone entitle petitioner to relief by showing that
the government permitted perjured testimony at his trial. Petitioner does not show that Young
testified at his trial that the gun he used was not automatic, which then would be in direct conflict
with the testimony during Bergin I. As such, this Court does not find this claim entitles petitioner
to relief in this
i.
§ 2255 proceeding.
Driving past McCray after he was shot and getting out of the vehicle
Petitioner next claims that there were inconsistencies in Young’s testimony regarding
whether Curry got out of his car to check that McCray was dead when he drove past. During
93
petitioner’s trial, Young testified that Curry did not get out of his car when he drove past McCray
to see if he was dead. (See T.T. at
p.4409) However, in Bergrin I, Young testified that Curry got
out of his truck when he looked at McCray. (See Crim. No. 09-369 ECF 295 at p.204)
This Court finds that this slight inconsistency from Young about whether Curry got out of
his truck or not after McCray was shot to view McCray does not amount to perjury, let alone
testimony that the government knew was false. Furthermore, petitioner fails to show how the
testimony in Bergrin I as opposed to his trial would have changed the outcome of his trial.
Accordingly, petitioner is not entitled to relief on this claim.
j.
Young’s failure to mention during his trial that he took his fleece jacket and gloves
off.
Petitioner’s next inconsistent testimony claim as it relates to Young’s testimony is as
follows:
For the first time, at the 2011 Bergrin trial, Young said there was
blood on his jacket and gloves and that when Curry arrived at a
garage to pick up Young and Rakeem Baskerville that he took his
fleece jacket off and balled up the gloves inside of it.
(ECF 1-1 at p.13) That Young was more specific during Bergrin I then he was than at his trial on
this point does not rise to the level of perjury. Accordingly, petitioner is not entitled to relief on
this claim.
k. Firing gun 3-4 times versus pulling the trigger once and letting out three shots
Similar to one of petitioner’s prior claims of Young’s purported inconsistent testimony,
petitioner appears to reiterate his claim that he is entitled to relief because Young testified at his
trial that he fired the gun 3-4 times at McCray, but during Bergrin I, Young testified that he
pulled the trigger once and three or four shots came out. Once again, this difference amounts to a
level of specificity as opposed to testimony amounting to perjury, let alone that the government
94
knowingly permitted perjured testimony. At neither trial did Young testify that he pulled the
trigger more than once. Instead, he was asked this specific question during Bergrin I, but not
during petitioner’s trial. This purported inconsistency as alleged by petitioner does not entitle
him to relief that the government permitted Young to commit perjury at petitioner’s trial.
1.
Running around the car after McCray was shot
Petitioner next states that at his trial Young testified that when McCray fell petitioner
jumped over the body and then jumped into the passenger seat. During Bergrin’s trial, petitioner
notes that Young testified that he jumped over McCray, ran around the back of the car and
jumped into the passenger seat. That Young provided more detail that he ran around the back of
the car after he jumped over McCray during Bergrin I does not amount to perjury nor does
petitioner show how this difference was material to his conviction. Accordingly, petitioner is not
entitled to relief on this claim.
m. Trips to Ben’s Auto Shop, who took the bullets out of gun before melting it, and who
melted the gun
Next, petitioner asserts several inconsistencies in Young’s testimony between his trial
and Bergrin I on the following issues: (1) how many times did Young visit Ben’s Auto Body
Shop; (2) who took the bullets out of the gun before it was melted; and (3) who melted the gun.
More specifically, petitioner claims that at his trial, Young testified that he and Rakeem only
visited the body shop on the night of the murder, but during Bergrin I, that they went there twice.
Furthermore, petitioner states that Young testified at his trial that Rakeem took the bullets out
before it was melted, but during Bergrin I, Young testified that he took the bullets out. Finally,
petitioner states that Young testified at his trial that Ben’s nephew and then another worker
melted the gun, whereas during Bergrin I, Young testified that Ben started melting the gun and
95
then Ben’s nephew took over. These inconsistencies aside, petitioner fails to show how these
differences affected his verdict in a material way.
n. Throwing clothes away
Petitioner’s next inconsistency with Young’s testimony at the two trials is as follows:
For the first time, at Bergrin’s 2011 trial, Young said he had a bag
of clothes (including the fleece jacket and gloves that he claimed
had blood on them) and threw them in the dumpster near the IYO
center when he got out of the car before going to Ben’s Auto Body
shop, which is the same dumpster where Young claimed he threw
the melted gun in.
(ECFNo. 1-1 at p.16)
The fact that Young may not have mentioned that he threw away his clothes during
petitioner’s trial, but did in Bergrin I, does not amount to perjury. It simply reflects the greater
level of detail Young testified to regarding the planning and execution and aftermath of the
murder of McCray in Bergrin I. Furthermore, petitioner fails to show how this testimony would
have changed the outcome of his trial in a material way. Accordingly, he is not entitled to relief
on this claim.
o. Petitioner’s demand to kill McCray
Next, petitioner alleges that Young testified for the first time in Bergrin I that petitioner
never demanded that he kill McCray and that he had no contact with him from November 25,
2003 (the date of petitioner’s arrest), until March 2, 2004 (the date McCray was murdered).
Petitioner mischaracterizes Young’s testimony. Indeed, during petitioner’s trial, the
following colloquy took place when Young was on the witness stand:
Q: In your mind, when you got that information, was that a
request?
A: More like a request demand.
Q: There’s a difference between a request and demand. Which did
you think is was?
96
A: Demand.
Q: And why do you think it was a demand?
A: Cause if this guy still around, then one of the Baskerville’s go
to prison.
(T.T at p.4355) Comparatively, the testimony during Bergrin I was as follows:
Q: Now, did Will Baskerville ever give you any orders?
A: No. He didn’t give me a order.
Q: Did Will Baskerville ever give you a demand or a request?
A: He gave me a he gave us a request, but he never gave me a
demand.
Q: NowA: Excuse me.
Q: he never gave you a demand, correct?
A: No, not a demand.
Q: And as a matter of fact, you never even had any conversations
with Will Baskerville from November 25 even until today, as you
sit here today.
A: Yes, I did.
Q: You had a conversation with Will Baskerville?
A: Yes, sir.
Q: From November the 25, the date of his arrest, until March of
2004, did you have any conversations with Will Baskerville?
A: No.
Q: Did you have any letters or communications with Will
Baskerville, Anthony Young?
A: No, just him sending us messages, that’s it.
Q: Just him sending you messages. You didn’t have any direct
contact with Will Baskerville; right?
A: Wasn’t trying to be around him.
Q: And like you said, he would never ever give you a demand;
right?
A: No, he didn’t demand me to do nothing.
Q: Okay. Look at page 4354, line 17 and 18. Do you see the
question: “How would you characterize the message from
defendant,” meaning Will Baskerville? Then look at your answer
on page 4354.
A: I’d say it was more like a demand, but it was a request.
Q: Well, you said it was a request.
A: It say it right there. “There’s a difference between a request and
demand.”
Q: Okay. Excellent. Flip the page now. Turn to page 4355, line
two.
A: Yes.
—
--
97
Q:
Isn’t it a fact that you used the word that it was a demand, not a
request?
A: No, it was a request. I used “demand,” yes.
Q: Isn’t it a fact that you were asked a specific question, was it a
request for a demand from Will Baskerville, and you just told this
jury that it wasn’t a demand before you flipped the page?
A: I’m telling them again, it was a request.
Q: You told this jury in April 13t1 of 2007 it was a demand, d-e-m
a-n-d. Isn’t that the word that came out of the mouth of Anthony
Young.
A: He say he wanted Kemo dead.
(Crim. No. 09-369 ECF 316 at p.1 13-15)
This Court does not find that such testimony at petitioner’s trial amounts to perjured
testimony. Indeed, in both trials, Young seemed to testify that it was between a request and a
demand. At petitioner’s trial, Young was specifically asked what he thought. Comparatively, at
Bergrin I, Young was asked what petitioner did. Such a difference does not amount to perjured
testimony that warrants petitioner relief on this claim. Accordingly, this claim will be denied.
p. Whether Bergrin used term “If Kemo was dead”
Next, petitioner states that Young testified at his trial that Bergrin told a group of people
at a meeting that “if Kemo was dead, that Will Baskerville would definitely come home from
jail.” (ECF 1-1 at p.14) However, he claims that in Bergrin I, Young admitted that Bergrin did
not use the term “dead.” (See Id.)
The testimony from the two trials provide context to this claim. During petitioner’s trial
the following testimony occurred when Young testified on direct:
Q: Did Paul Bergrin say anything to you or make any promises if
Kemo was taken care of?
A: He said if there was no Kemo to testify against Will, there
would be no case.
Q: Did he say whether or not he would be able to get William
Baskerville out ofjail?
A: He said for sure.
Q: Did Mr. Bergrin ask about any payment?
98
A: He didn’t ask about the payment.
Q: Tell the jury what he did, I guess?
A: He just said, if Kemo was dead, that Will Baskerville would
definitely come home from jail.
(T.T. at
p.4360-61) During Bergrin I, however, the following colloquy took place while Young
testified:
A: Your words [Bergrin] was at the meeting was, y’all need to get
rid of him and not let this guy testify against Mr. Baskerville.
Q: Did you ever hear me say the words to the effect of it Kemo
was dead, then Will will come home from jail? Did you ever hear
me say those words?
A: You said, If Kemo wasn’t around, I will get Will Baskerville
out ofjail.
Q: But you never heard me say the words listen to my question
specifically if Kemo was dead, Will Baskerville would definitely
come home from jail?
A: No, you never said that.
Q: I never said anything like that; right?
A: No, you never said that.
(Off the record discussion)
Q: And you knew how important each and every word was;
—
—
correct?
Q:
Q:
Well, I knew exactly what you was talking about.
You knew how important each and every word was; correct?
A: I wouldn’t say each and every word, no, sir, not at all of them.
But I know they’re important....
Q: I turn you now to page 4360 of the transcript dated October 1 3th
of 2007. I ask you to look specifically at lines nine and 10. 4361,
lines nine and 10.
A: What date you say this was?
Q: That’s the date of April the 13th of 2007, the transcript. Didn’t
you testify under oath on that day that Paul Bergrin said, Paul
Bergrin said lines nine and 10.
A: Yes.
Q: That “if Kemo was dead,” right? Is that the words that came out
of your mouth that I supposedly said?
A: Yes, I said that, but that mean get rid of him.
Q: And that wasn’t true, Mr. Young, correct?
A: No, you didn’t say “dead.” You just said get rid of him.
Q: That wasn’t true; correct, Mr. Young?
A: No, it wasn’t. You didn’t say “dead.”
Q: But you told a jury that those words came out of my mouth,
that’s what
—
—
99
THE COURT: Mr. Bergin, you’re going to have to let him answer
the question.
MR. BERGRIN: I’m sorry, Judge.
THE COURT: All right? You’re going to have to slow down. You
just can’t ask another question and another question. Okay?
Q: Those are the words that came out of your mouth that I said;
right?
A: Yes, sir.
Q: And that was not the truth, isn’t that a fact?
A: You didn’t say “dead.” You just said get rid of him.
Q: But you said and told this jury that I used the words “dead” and
you heard those words come out of my mouth; correct?
A: Yes.
(Crim. No. 09-369 ECF 316 at p.l77-’79)
Petitioner fails to show that the fact that Young testified that Bergrin used the word
“dead” at his trial was material. Indeed, as Young explained, he took Bergrin’s words that they
should get rid of Kemo. Petitioner fails to show how this difference in Young’s testimony at his
trial would have changed the outcome of his proceeding, even if petitioner could somehow show
the other elements of satisfying this claim. Accordingly, this claim will be denied.
q. Presence of Diedra and Rakeem in vehicle
Petitioner next argues as follows:
Bergrin was provided, via discovery in his case, with a call
chronology prepared by Agent MansonlBrokos relative to calls
made on the day (11/23/03) [sic] I was arrested between Bergrin
and Diedra Baskerville, Bergrin and Hakeem Curry, and Curry and
Rakeem. Bergrin used those call records to establish that Young’s
testimony at my trial was false on the matters of the presence of
Diedra at the meeting on the day of my arrest, and the presence of
Rakeem in Curry’s vehicle on that same day when Curry received
a call from Bergrin because the information Bergrin was provided
with in discovery showed that Bergrin called Diedra at home (and
she thus could not have been at the meeting Young said she was at)
and showed that Curry called Rakeem within two minutes of the
call with Bergrin (showing that Rakeem was not present in the
vehicle with Curry when he got the call from Bergrin).
(ECF 1-1 at p.14-15)
100
The variation of Young’s testimony regarding who got into the passenger side of the car
is not material. Indeed, as the government notes, the importance of this testimony is not who was
sitting in the passenger seat, but the substance of the phone call between Bergrin and Curry is
what was material. Furthermore, during cross-examination in Bergrin I, Young attempted to
explain his testimony by stating that Diedra was only at the meeting for part of the time and that
she would have had time to get home prior to Bergrin’s phone call to her. (See Crim. No. 09-369
ECF 296 at
p.160) The inconsistency of Young’s testimony on this point raised by petitioner
does not rise to the level to warrant granting federal habeas relief because it was not material.
r.
Inconsistencies between Young’s testimony and two other witnesses
Petitioner next claims that he is entitled to relief because Young’s testimony contradicted
the testimony of two other witnesses, Paul Feinberg, Esq. and Rashidah Tarver. To reiterate,
Feinberg was Young’s attorney for a short time period between 2004 and 2005. He testified
during Bergrin I that Young should tell the truth if hew to speak to the F.B.I. (See Crim. No. 09369 ECF 317 at p.31) However, Feinberg also testified during Bergrin I that he told Young that
he should not implicate himself and that he should “take the Fifth” if he was about to. (See id.)
Young testified during Bergrin I that Feinberg never told him to tell the truth, only that he told
him not to incriminate himself. (See Id. ECF 315 at p.164)
With respect to Tarver, petitioner argues as follows:
At his 2011 trial, Bergrin called Rasheeda [sic] Tarver as a defense
witness. She testified that she was the girlfriend of Anthony Young
for a-year-and-a-half (May of 2003 through January of 2005) and
that Young had threatened her and burned her house down. Young
called her in late January of 2005 and told her he was standing in a
crowd when he witnessed someone named Malsey kill McCray. In
a subsequent version of the same event Young told her Hak killed
McCray, and in a third version Young said he killed McCray.
Young told her that he could not say that someone else did it and
101
that he had to tell “them” that he did it. Ms. Tarver believed that
Young was just throwing out stories so that she would be on the
same page as him. Young would call Ms. Tarver 10 times a day
but she would only accept about 6 and that each time Young would
tell her a new version of the events and try to convince her to go
with him into witness protection. Young told her that he was not
going back to jail for anything and that he was going to tell the FBI
whatever they wanted to know. Ms. Tarver also testified (contrary
to what Young said at my trial) that she has never taken Young and
Rakeem to an auto body shop on 2’ Street in Newark or
anywhere else, and that she has never seen Rakeem with a gun.
Ms. Tarver told that same information to Agent MansonlBrokos.
Ms. Tarver also said that Young had never discussed with her
anything about a murder of a young girl in Irvington, nor did she
discuss that topic with Jamal Baskerville or her best friend whom
is Jamal’s wife.
(ECF 1-1 atp.16-17)
Petitioner fails to show that he is entitled to relief on this claim. With respect to Feinberg,
petitioner does not point to any inconsistency with respect to what occurred at his trial. Instead,
he appears to note inconsistencies between Young and Feinberg in Bergrin I. Furthermore, this
inconsistency, even if applicable during petitioner’s trial, falls short of showing Young perjured
himself and does not establish that the government knowingly utilized perjured testimony. See
Boydv. United States, No. 13-2587, 2016 WL 8692850, at *3 (D.N.J. Apr. 8,2016) (citing
United States v. Thompson, 117 F.3d 1033, 1035 (7th Cir. 1997)).
With respect to Tarver, petitioner merely shows inconsistencies between her testimony
and Young, not that such amounted to perjury on the part of Young during his trial. Furthermore,
he fails to show how the prosecution knowingly purportedly used such false testimony. As one
court in this District has noted, “unwitting use of perjured testimony does not establish
prosecutorial misconduct.” Boyd, 2016 WL 8692850 at *3 (citing United States v. Connolly, 504
F.3d 206, 2 12-12 (1st Cir. 2007)). Accordingly, petitioner is not entitled to relief on this claim.
102
iv.
Additional Inconsistencies/Conflicts as to Highly Material Matters
Petitioner next relies on a filing by Bergrin in his criminal matter to support further
purported inconsistencies at his trial regarding what petitioner claims are highly material matters.
More specifically, petitioner cites to a post-trial July 15, 2013 filing by Bergrin after he was tried
and convicted at his second trial in 2013. Petitioner states as follows in his declaration to support
this claim:
(1) Via a supplemental filing by Bergrin in his case dated July 15,
2013, Bergrin notes that he was provided with some audio
recordings from United States v. Hakim Curry, that were
inadmissible due to improper sealing. In footnote 1 Bergrin wrote
the following about those recordings: “Despite the inadmissibility
of the recordings, the government was fully cognizant of their
substance; yet they knowingly and intentionally admitted evidence
diametrically opposed and inconsistent with their contents.
Furthermore, they permitted false testimony to be presented to the
jury and argued that wrongful and improper inferences be adduced
and drawn from this inadmissible evidence..
.
.“
(2) On page 2 of that same supplemental filing Bergrin explained
that the government knew and had evidence that Young was being
deceptive when he alleged and swore that on the date of November
25, 2003 Rakeem was in Curry’s vehicle at 10:30 a.m. when Curry
spoke with Bergrin about my case and that Rakeem and Curry,
while together in Curry’s vehicle, determined that the name
mentioned by Bergrin was “Kemo” not “Kamo”, and that Curry,
Young, Hamid, and Rakeem met during the morning hours of
November 25, 2003, and discussed my being arrested and that
based on the charges, they had no knowledge that I was facing life
in prison. The Curry intercepts clearly and unequivocally prove the
false nature of Young’s testimony at my trial on these material
matters.
(3) On page 3 of the supplemental filing Bergrin explained that the
government wrongfully misrepresented to the court and the trial
jury in the Bergrin case that December 4, 2003 was the date of the
meeting that Young claimed Bergrin had with a group of people
about my case. The recordings conclusively demonstrate that
Young committed perjury, and that the government knew of and
failed to correct the same, on that matter.
103
(4) On pages 3-4 Bergrin wrote that AUSA Minish, during his
summation, informed the jury that the event of significance that
happened after Thanksgiving is my detention hearing on December
4, 2003 because that was the first time Bergrin and I were told I
was facing life. However, three of the inadmissible recordings
show chronologically: (a) that Bergrin informed Curry that the
evidence independent of McCray was no less than overwhelming,
and that I would likely get a bail; (b) that Bergrin had to end a call
and told him he would call back later because he was too busy to
talk; and (c) that Bergrin could get a me 13 year plea deal and will
call Curry tomorrow. That all clearly shows that Bergrin did not
himself believe (much less convey to anyone) that I was truly
going to receive a life sentence on the non-violent drug charges I
was facing and that the evidence against me was very strong even
without McCray as a witness (so there was thus no reason to harm
him or try to procure his absence). But, and most importantly, it all
conclusively proves that no meeting between Bergrin and a group
of people that included Curry, Young and others, ever happened,
and especially not on December 4, 2003.
(5) On page 4 Bergrin wrote that AUSA Minish relied on the
December 4, 2003 date in his argument to the jury.
(6) Also on page 4 Bergrin wrote that the recorded calls from
December 4, 2003 and an intercepted calls between Curry and
Jarvis Webb on November 26, 2003, of which the government was
fully and indisputably aware of, establish that Bergrin made it
abundantly clear to Curry that the evidence against me on the drug
charges was overwhelming totally independent of any testimony
by McCray.
(7) In footnote 3 Bergrin wrote that in a November 26, 2003
intercept Curry and Webb have a discussion just after Curry left
Bergrin’s law office and that Bergrin informed Curry that I was
only facing 12 years and would only serve about 10 years (cited as
call 995, 926, 5:38 p.m. dated 26 November 2003). Further, on
December 4, 2003 at approximately 5:30 p.m. (cited as recording
number 135, 475), proves the government knew Curry was
heading into New York City for dinner and was thus unavailable
for any meetings.
(8) On page 5 Bergrin wrote that the irony is that AUSA Minish
told the jury during summations: “No one is going to kill Kemo
McCray if Will Baskerville was doing ten years. It wasn’t going to
happen. But, the November 26 and December 4 recordings that the
government was indisputably aware of prove that Bergrin made it
104
abundantly clear to Curry that it is what I was realistically and
practically facing for the non-violent sales of relatively small
amounts of crack cocaine I was charged with. Those same
recordings also prove that the government knew or should have
known that Young’s testimony on the question of how much time
everyone thought I was facing was false.
(9) I was not provided with any of these calls Bergrin discusses in
his supplemental filing in his case dated July 15, 2013.
(ECF 1-1 at p.17-19)
As petitioner appears to make clear in (9), this Court will construe this claim as a Brady
claim.
Petitioner and his trial counsel dispute whether he received the wiretaps from the Curry case.
Petitioner’s trial counsel, Mr. Herman, states that they in fact received the Curry wiretaps from
two sources; namely: (1) from individuals associated with the Curry case; and (2) from the
government during the course of petitioner’s criminal trial discovery. (See Suppl. Deci. Herman,
ECF 34 Ex.
6)10
Indeed, the issue of the tapes was discussed at trial, whereby Mr. Herman stated
in open court that the government had made the Curry wiretap tapes available. (See T.T. at
p.4780-8 1) Thus, this does not appear to be a situation where the government failed to turn over
the Curry wiretap tapes to petitioner. Nevertheless, even if this Court were to assume that
petitioner was not provided with the Curry wiretap recordings to the extent that such a decision
would require a credibility determination between petitioner and his trial counsel, petitioner fails
to show how they were material to his case such that they would have changed the outcome to a
reasonable probability. Accordingly, this claim is denied.
‘°
It does not appear that respondent electronically filed the exhibits attached to ECF 34, but
provided this Court with a hard copy of the exhibits attached to that filing.
105
v.
Eyewitness information that casts doubt on the foundation of the government ‘s case
relative to Counts 1 and 2
In petitioner’s next claim, he asserts that the testimony of Johnnie Davis (McCray’s
stepfather) in Bergrin I and Bergrin II provides new evidence to show that Young was not the
shooter in the McCray murder. More specifically, he states as follows:
(1) Johnnie Davis was McCray’s stepfather and he was with
McCray when he was murdered. Davis testified at my trial in 2007
and at Bergrin’ s trials in 2011 and 2013. There was new
information aired at both of the Bergrin trials relative to this
eyewitness that was not aired at my trial.
(2) At my trial Davis testified that he and McCray were walking
from a store on 20th Street and South Orange Avenue in Newark,
and that when they reached 19th Street “shots rang out” and he
“felt powder bums on [his] neck.” (TR., at 4468-69). When he
tumed around McCray “was laying on the ground and a young
man was tucking his gun back in his side.” (TR., at 4469). The
man “then tumed to the car, got in the car and they sped off.” (TR.,
at 4470-7 1). On the same day of McCray’ s murder the description
Davis gave police of the shooter was that “he was dark skinned and
he had dreadlocks in his hair [that were] about neck high. He was
stocky build.” (TR., at 4470-75). Over four months later, on July
23, 2004, Davis was called back down to the police department
and was shown six photographs. He said “that the young man in
the picture five matched the description of the shooter who shot
[his]son.” (TR., at 4475-79). It was not a positive identification but
“that individual was stocky built, he matched the weight and
matched the dreads that was on him.” (TR. at 4477, 4479). On
cross my counsel kept it minimal and did not ask the three most
crucial questions left open by Davis’ direct testimony, i.e.: (a)
whether the shooter had a Yankee baseball cap on (Young said he
had one on when he shot McCray); (b) whether he was shown a
picture of Young (who was bald at the time of the McCray
murder); and (3) whether he believed that Young was the person
he saw shoot and kill McCray.
(3) At Bergrin’s 2011 trial Mr. Davis’ testimony was consistent
with his testimony at my trial on the issues of the shooter tucking
his gun in the side of his pants before walking to the car, and that
the man had dreads and brown skin. (Bergrin 10/25/11 TR., at 2324). However, for the first time, at Bergrin’s trial, Davis added that
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the reason he was able to pick out the picture of the man he said fit
the description of the shooter, on July 23, 2004, was because he
saw the man on the day of McCray’s murder in East Orange on
Oakwood Avenue where the man asked Davis, “do you remember
me?” (Bergrin 10/25/11 TR., at 32-33, 45, 55-57). On March 7,
2011 Mr. Davis met with two of Bergrin’s investigators and was
shown two pictures. One of the pictures closely fit the description
of who he saw shoot McCray. The other picture was of Young and
Davis was “sure that this man is not the shooter of Kemo.”
(Bergrin 10/25/11 TR., at 44-45). Davis added that Young “don’t
even fit the description.” (Bergrin 10/25/11 TR., at 46). Davis also
again said that the shooter had dreadlocks and that he did not see
anyone wearing a Yankee hat. (Bergrin 10/25/11 TR. at 50, 56).
Davis also verified that he signed the picture of Young twice and
wrote that Young was not the shooter. (Bergrin 10/25/11 TR., at
6970).
(4) At Bergrin’s 2013 trial Davis testified consistent with his prior
testimony on the issues of the shooter of McCray not having a
Yankees hat on and that the shooter had “shoulder-length
dreadlocks.” (Bergrin 2013 Tr., at 1469-71). Davis made it
abundantly clear that Young was not the shooter of McCray and in
doing so noted that Young was “light-skinned.” (Bergrin 2013 Tr.,
at 1477). The man Davis identified, on July 23, 2004, as the
shooter of McCray was Malik Lattimore and he believed Lattimore
was the person who killed McCray because when he saw Lattimore
after McCray was murdered when Lattimore asked Davis if he
remembered him, he was “dark-skinned, broad shoulders, had
dreadlocks, shoulder-length[,]” (Bergrin 2013 TR. at 1477-81),
which was the very same description Davis gave at my trial and the
police on the day of the McCray murder. (TR., at 4470-75).
(5) Mr. Davis did not testify at my trial that he was face-to-face
with Malik Lattimore (whom Davis believed was the shooter) just
days after the McCray murder. He was also not shown a photo of
Young and asked if he was the shooter (which he would have said
Young was not as demonstrated via his testimony at the Bergrin
trials), and he was not asked whether the shooter had on a Yankees
hat (which he would have answered no to as demonstrated via his
answer in the Bergrin trials). All of this information squarely
undermines Young’s claim at my trial that he was the person that
killed McCray. Ms. Tarver’s testimony is corroborative of that
point as well in conjunction with the testimony of Davis at the
Bergrin trials.
(ECF 1-1 at p.19-22)
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Petitioner fails to show that he is entitled to relief on this claim. Indeed, as the
government notes, Bergrin was convicted of conspiracy to murder McCray in 2013. This was
despite Bergrin’s purported reliance on Davis’s testimony in an effort to show that Young was
not the shooter. It is then reasonable to assume that petitioner fails to show to a reasonable
probability that his trial would have been different had petitioner pursued this further at his trial.
Respondent concedes that Davis provided a description of the shooter different than how
Young described his appearance at the time of the shooting in petitioner’s trial as well as in both
of Bergrin’s trials. During petitioner’s trial, Davis testified that he did not actually see who shot
McCray, but he assumed it was the person whom he saw put the gun in his side after the shots
were fired. (See T.T. at p. 4472) He then described this man as dark-skinned with dreadlocks in
his hair and a stocky build. (See id.) However, the contrast of Davis’s description of the shooter
having dreadlocks compared to Young’s appearance at his trial was noted to petitioner’s jury.
Accordingly, petitioner fails to show how he is entitled to relief on this claim.
CC.
Claim XXXI Prosecutorial Misconduct
-
In petitioner’s final claim, he raises several prosecutorial misconduct arguments. A
criminal defendant’s due process rights are violated if prosecutorial misconduct renders a trial
fundamentally unfair. See Darden v. Wainwright, 477 U.S. 168, 182-83 (1986). A habeas
petition will be granted for prosecutorial misconduct only when the misconduct “so infected the
trial with unfairness as to make the resulting conviction a denial of due process.” Id. at 181
(internal quotation marks and citation omitted). A prosecutorial misconduct claim is examined in
“light of the record as a whole” in order to determine whether the conduct “had a substantial and
injurious effect or influence” on the jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 638
(1993). A “reviewing court must examine the prosecutor’s offensive actions in context and in
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light of the entire trial, assessing the severity of the conduct, the effect of the curative
instructions, and the quantum of evidence against the defendant.” Moore v. Morton, 255 F.3d 95,
107 (3d Cir. 2001).
Each of petitioner’s prosecutorial misconduct arguments will be considered in turn.
I.
Failure to disclose evidence
Petitioner first argues that the government withheld audio recordings from petitioner
during his case. Petitioner alludes to the audio recordings from Hakeem Curry’s criminal case,
Crim. No. 04-280.
As previously noted, petitioner’s trial counsel state that they received the Curry wiretap
recordings, and this is supported by counsel’s statements at petitioner’s trial. However,
petitioner’s counsel was concerned that they would have corroborated large portions of Young’s
testimony that would have been detrimental to the defense. While petitioner and his counsel
dispute whether the recordings were received, even if they were not, petitioner fails to establish
how these recordings would have had a substantial influence on the jury’s verdict against him.
Furthermore, to the extent this claim could be construed as a Brady claim, petitioner fails to
show materiality of the audio recordings. Accordingly, he is not entitled to relief on this claim.
ii.
Government allowing perjured testimony on material matters to go uncorrected:
Next, petitioner again attempts to assert that the government allowed perjured testimony on
material matters to go uncorrected. This Court has already analyzed and denied this claim in this
Opinion and need not do so again here.
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Government presented different theories ofmotive for McCray murder at
petitioner and Bergrin ‘s trials
iii.
Petitioner’s argument within Claim XXXI that the government presented different motive
theories at his and Bergrin’s trials also has been previously analyzed and denied. See supra Part
IV.BB.i. Thus, it need not be analyzed again here.
iv.
Government gaining unfair advantage and able to obtain favorable evidentiary
rulings due to lack ofdisclosure ofnewly discovered evidence
Petitioner next argues that the government engaged in misconduct by gaining an unfair
advantage being able to obtain favorable evidentiary rulings due to its lack of disclosure of
newly discovered evidence. Beyond this conclusory statement, petitioner does not provide
sufficient facts for which could potentially entitle him to relief. Accordingly, this claim is denied.
V.
MOTIONS TO EXPAND THE RECORD
After this matter was fully briefed by the parties, petitioner made several filings seeking
to expand the record in this case. (See ECF 36, 40, 43) In ECF 36, petitioner seeks to expand the
record because the government submitted a wrong DEA -7 form. Petitioner seeks to include the
correct DEA
—
7 form along with a copy of fingerprint analysis that corresponds to those forms.
The government did not file a response in opposition to this request. This Court does not see a
reason to deny petitioner’s request. Accordingly, it will be granted.
In ECF 40, petitioner also seeks to expand the record. Petitioner seeks to expand the
record in this filing with the following:
1. A letter from Charles Madison addressed to Lawrence Lustberg, Esq., dated January 17,
2014. (See ECF 40 at p.10-12)
2. A transcript of an interview of Hassan Miller. (See ECF 40 at p.14-50)
3. A certification from Michael McMahon. (See id. at pS2-53)
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4. A file preparation checklist regarding the murder of Kemo McCray (See id. at p.59-63)
5. Various police reports (See id. at p.65-’73)
Mr. Madison states in January 17, 2014 letter to Mr. Lustberg that he has known Anthony
Young since they were adolescents. (See Id. at p.1 0) He states that he received a phone call from
Young in September 2005 while Young was incarcerated. Young apparently was calling
Madison from a cell phone. According to Madison, Young told him as follows:
[Young] firmly stated that he was tired of doing time. I asked him
if he had thought this thru and his response was “yes.” I asked him
what he had to do and he said he had to tell these people some
information about who they were interested in (Hak, Rakeem
Baskerville, Paul Bergrin) and the murder of some guy named
Kimo. He said he didn’t do the shooting but would confess to it as
long as he got a lighter sentence in return. He spoke about Paul,
but said he didn’t do shit and he had to make up some bulishit
about a meeting that supposedly took place because they kept
pressuring him about Paul (he actually laughed like it was funny
after he made the statement. He said he lied and told them that Paul
held a meeting and told them to kill this kid Kimo. I asked him if
there was ever a meeting and he said “hell no, Paul didn’t do
anything but if I don’t say that my deal is off the table.
(Id. at p.11)
Mr. Miller’s statement is from a transcribed interview he did with Bergrin’s investigators
on December 3, 2013. In that interview, Mr. Miller states that while incarcerated with Young,
Young told him that he was going to lie and say that Hakeem Curry and Bergrin had something
to do with the murder on South Orange Avenue (presumably McCray). (See id. at p.22)
Given the nature and substance of the material that petitioner seeks to expand the record
with in ECF 40, along with the fact that respondent has not filed any response to this specific
request by petitioner, this Court will order respondent to file a response to petitioner’s motion to
expand the record in ECF 40. The response should specifically and expressly address each piece
of evidence within ECF 40 that petitioner seeks to expand the record with and what impact each
111
piece of evidence within this motion to expand has on petitioner’s motion to vacate, set aside or
correct his sentence. Most particularly, the government shall address whether the documents
petitioner seeks to expand the record with in ECF 40 relate to previously raised claims, or if they
constitute new claims. Furthermore, the government’s response to the motion to expand the
record shall specifically address whether, if this Court considers these documents as “new
claims,” whether they are timely and/or whether there are any other procedural hurdles petitioner
needs to satisfy for this Court to consider the “new claims” on their merits (and if so, whether
petitioner has satisfied those procedural hurdles).
In ECF 43, petitioner filed yet another motion to expand the record. Among the items that
petitioner seeks to expand the record on in this filing are as follows:
1. Handwritten cover page of Bergrin’s reply to the Government’s opposition to Bergrin’s
§
2255 motion. (See ECF 43 at p.9)
2. Call log from November 25, 2003. (See Id. at p.10)
3. FBI Case Update Report
—
Hassan Miller Background dated June 10, 2005 (See Ed. at
p. 12-18)
The government expressly states that it does not oppose this specific motion by petitioner
to expand the record. (See ECF47) Accordingly, this motion will be granted.
VI.
CERTIFICATE OF APPEALABILITY ON DENIED CLAIMS
Pursuant to 28 U.S.C.
§ 2253(c), unless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken from a final order in a proceeding under 28 U.S.C.
§
2255. 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
112
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
on the claims denied in this opinion. This Court reserves judgment on whether a certificate of
appealability should issue on the remaining claims until after a hearing is completed and this
Court issues its opinion on the merits on the remaining claims.
VII.
CONCLUSION
For the following reasons, respondent will be ordered to file a response to petitioner’s
motion to expand the record. (See ECF 40) This Court will conduct an evidentiary hearing on the
following claims:
1. Claim V Part v Whether trial counsel was ineffective for failing to investigate/call
-
Hakeem Curry and Rakeem Baskerville as witnesses.
2. Claim XXX Part ii
—
Failure to provide petitioner with a copy of Roderick Boyd’s F.B.I.
302 report.
Counsel will be appointed to represent petitioner at an evidentiary hearing on these
issues. Appointed counsel will also be given the opportunity to file a reply brief to respondent’s
response to petitioner’s motion to expand the record. (See ECF 40)
The Court will reserve judgment on Claim XXIX
—
petitioner’s cumulative ineffective
assistance of counsel claim considering the evidentiary hearing that will take place with respect
to trial counsel’s purported failure to investigate/call Hakeem Curry and Rakeem Baskerville.
113
The remainder of petitioner’s claims are denied. A certificate of appealability will not
issue on these denied claims. An appropriate order will be entered.
DATED: November8
PETER G. SHERIDAN
United States District Judge
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