GORHAM-BEY v. USA
Filing
3
ORDER denying 188 Motion to Vacate (2255) as to EDNA GORHAM-BEY. Signed by Judge Donetta W. Ambrose on 8/2/12. (hmg)
IN THE UNITED STATES DISTRIC'f COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
UNITED STATES
v.
)
) CR 7-442
) CV 12-366
EDNA GORHAM-BEY
OPINION AND ORDER
SYNOPSIS
In this action, a jury convicted Defendant of one count of conspiracy to defraud the
United States, in violation of 18 U.S.C. § 286. Defendant was sentenced to a term of
imprisonment of 15 months, followed by a term of supervised rdc:~ase. Defendant appealed on
grounds of insufficiency of evidence, and the Court of Appeals affirmed. Presently, Defendant
has filed a Motion pursuant to 28 U.S.C. § 2255, which she twke amended following notice
pursuant to United States v. Miller, 197 F.3d 644 (3d Cir. 1999}. I
The habeas petition and the
amendments thereto allege various instances of ineffective assistance of counsel, perjury by a
government witness, prosecutorial misconduct, and a sentencing calculation error. For the
following reasons, Defendant's Motion will be denied, and no certificate of appealability shall
lssue.
I It appears that Defendant has also renewed her request for counsel, citing Mru:tinez v. Ryan, 132 S. Ct. 1309,_
U.S. _, 182 L. Ed. 2d 272 (2012). Martinez, however, does not entitle her to <:ounsel. Instead, Martinez has been
found not to apply in this context.
Gabe v. United States, No. 412~145, 2012 U.S. Dist. LEXIS 82242
(S.D. Ga. June 13,2012). For the same reasons stated in my Order dated Mny 4, 2012, and those stated in the body
of today' s Opinion, I find that justice does not now require the appointment ,;,f counsel for purposes of the instant
petition.
1
OPINION
I. APPLICABLE STANDARDS
A district court need not hold an evidentiary hearing on a Section 2255 motion if the
motion, files, and records show conclusively that the defendant is not entitled to relief. United
States v.Ritter, 93 Fed. Appx. 402 (3d Cir. 2004). Under thes(! standards, a hearing is
unnecessary in this case, and the Motion will be disposed of on the record.
Relief is available under Section 2255 only under exceptional circumstances, when the
claimed errors of law are "a fundamental defect which inherently results in a complete
miscarriage ofjustice," or "an omission inconsistent with the rudimentary demands of fair
procedure." Hill v. United States, 368 U.S. 424, 428, 82 S. Ct. 468, 7 L.Ed. 2d 417 (1962). "A
person seeking to vacate his conviction bears the burden of proof upon each ground presented for
relief." United States v. Keyes, No. 93-22-2,1997 U.S. Dist. LEXIS 12109, at *2 (E. D. Pa. Aug.
11, 1997). Conclusory allegations are insufficient to support § 2255 relief. United States v.
Atkinson, No. 10-247,2010 U.S. Dist. LEXIS 54812, at *2 (W.D. Pa. June 4,2010).
Finally, a pro se pleading is held to less stringent standards than pleadings drafted by
attorneys. Estelle v. Gamble, 429 U.S. 97, 106,97,97 S. Ct. 285, 50 L. Ed. 2d 251 s. ct. 285,429
U.S. 97, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976); Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct.
594, 30 L. Ed. 2d 652 (1972). Thus, a pro se habeas petition should be construed liberally. See
Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998). I have considered Defendant's Motion
according to these standards.
II. DEFENDANT'S MOTION
A. INEFFECTIVE ASSISTANCE OF COUNSEL
2
To demonstrate that counsel was ineffective, a defendant must show that counsel's
performance fell below a "wide range of professionally competcmt assistance," and also that the
deficient conduct prejudiced defendant. Strickland, 466 U.S. at 687. Counsel's conduct must be
assessed according to the facts of the particular case, viewed as of the time of counsel's conduct.
Id. at 689.
In light ofthe wide array of circumstances faced by t::ounsel, and the range of
legitimate decisions regarding how best to represent a defendant, ,Strickland's inquiry turns on
whether counsel's assistance was reasonable considering all the circumstances. Wong v.
Belmontes, 130 S. Ct. 383,385,
U.S. _, 175 L. Ed. 2d 328 (2009).
Under the prejudice prong, the pertinent question is "whether there is a reasonable
probability that, absent the errors," the result would have been different. Strickland, 466 U.S. at
695; see also Gray, 878 F.2d at 709-13. A "reasonable probability" is one that is "sufficient to
undermine confidence in the outcome." Strickland, 466 U.S. at 694. Speculation as to "whether
a different ... strategy might have been more successful" is not enough. Lockhart v. Fretwell,
506 U.S. 364,113 S. Ct. 838, 843-44, 122 L. Ed. 2d 180 (1993). The prejudice prong of
Strickland rests on "whether counsel's deficient performance renders the result of the ...
proceeding fundamentally unfair," or strips the defendant of a "substantive or procedural right to
which the law entitles him." Id. at 844. A court need not consider both components of
Strickland, ifthere is an insufficient showing on one or the othelr. Strickland, 466 U.S. at 697.
If a claim fails either prong, it cannot succeed. Id. at 697.
In the context of an ineffective assistance of counsel claim, a court should be "highly
deferential" when evaluating an attorney's conduct; there is a "strong presumption" that the
attorney's performance was reasonable. Strickland v. Washingtc;m, 466 U.S. 668, 689 (1984). "It
is ... only the rare claim of ineffectiveness of counsel that should succeed under the properly
3
deferential standard to be applied in scrutinizing counsel's performance." United States v. Gray,
878 F. 2d 702, 711 (3d Cir. 1989).
In order to fairly assess att()mey performance, a court must
make "every effort ... to eliminate the distorting effects of hindsight...." Douglas v. Cathel, 456
F. 3d 403,420 (3d Cir. 2006). Both trial and appellate counsel ,arc govemed by the same
standards. See Smith v. Robbins, 528 U.S. 259, 285-86, 120 S. Ct. 746, 145 L. Ed. 2d 756
(2000).
1. Trial Preparation
First, Defendant asserts that counsel was inadequately p::-epared for trial, because he
failed to subpoena certain notary records from the prison. Defendant proffers that inmates who
were involved in the tax scheme had notarized statements that authorized her to negotiate what
they represented to be payment from a reparations settlement? Presumably, Defendant believes
that this evidence would tend to prove that she did not know that she was participating in a tax
scheme.
A court "should allow a wide range of latitude for counsel's tactical and strategic
decisions." Dejesus v. United States, No. 05-939, 2005 U.S. Di:;t. LEXIS 34220, at *8 (D.N.J.
July 15, 2005). Thus, a court generally will not second-guess counsel's discretionary decisions
that are well within the range of reasonable judgments. United Stgttes v. Gordon, 335 Fed. Appx.
236,240 (3d Cir. 2009).
Here, Defendant has not demonstrated prejudice due to the lack of the
described documents. As the Court of Appeals suggested, the record was "replete" with
evidence of Defendant's involvement in the conspiracy, the sum of which permitted the
inference that Defendant "knew of, intended to join, and voluntarily participated in" the
conspiracy charged. United States v. Gorham-Bey, 419 Fed. Appx. 185, 188 (3d Cir. 2011)
2 Notably, it appears that Defendant previously asserted, in her Motion to Dismiss due to Pre-Indictment Delay, that
these documents had been lost. I denied the Motion by Order dated October 16, 2008, finding that "defendant has
failed to demonstrate actual, substantial prejudice ...."
4
(recounting evidence at trial). Moreover, Defendant does not suggest that counsel's failure to
seek records from the prison was not part of any strategy, or was part of an unsound strategy.
Under the circumstances, I simply cannot find a reasonable probability that the documents, if
sought and proffered as evidence, would have altered the outcome at trial. To conclude
otherwise would call for a wholly impermissible level of speCUlation. Even assuming that
counsel's failure to obtain the records was deficient, that failure: did not result in a fundamentally
unfair trial.
2. Continuances
Second, Defendant asserts that counsel failed to acknowledge her plea for a speedy trial,
and that she did not consent to continuances of the trial. There is 110 factual dispute regarding
Defendant's disagreement with some of counsel's choices; indeed, counsel presented
Defendant's objections, written in her own hand, to the Court. Therein, Defendant objected to
the granted continuances due to her continuing health issues. Moreover, counsel and Defendant
presented these issues to the Court at the time of the pretrial motions hearing on October 16,
2008. 3 In particular, Defendant expressed disagreement with the eighteen-day continuance
sought on July 7, 2008, and the sixty-day continuance sought by her co-defendant on July 23,
2008.
The Speedy Trial Act expressly allows a continuance "at the request of defendant or his
counsel," 18 U.S.C. § 3161(h)(&)(A); thus, a continuance that is not approved by a defendant is
not grounds for a violation. United States v. Mayfield, 361 Fed. Appx. 425, 428 (3d Cir. 2010).
Instead, "[r]eadiness for trial is a matter as to which the involved professionals' considered
judgment is properly given expression within the confines ofth.e Act." United States v. Russell,
At that hearing, Defendant referred to a sixty-day extension granted her co-·defendant, the motion for which
mentioned his counsel's scheduled vacation and stated counsel's need for additional time to confer with his client
prior to filing pretrial motions.
3
5
No. 10·186,2011 U.S. Dist. LEXIS 110470, at *13 (E.D. Pa. S(!PL 27, 2011). Accordingly, a
defendant's consent "is not a prerequisite to an efficacious continuance under the statute." Id.
*12. Indeed, "the defendant's consent, or lack thereof, to a continuance requested by defense
counsel is irrelevant for Speedy Trial Act purposes." United Stat{:s v. Tulu, 535 F. Supp. 2d 492,
500 (D.N.J. 2008). Moreover, delays resulting from continuan<::es may be excluded from the
speedy trial clock if the judge finds, and records, that the ends ofjustice served by the
continuance outweigh the best interest of the public and the defl!ndant in a speedy trial. See
Bloate v. United States, 130 S. Ct. 1345, 1355, 176 L. Ed. 2d 54 (2010).
In addition to the Speedy Trial Act, it is possible that De:fendant claims that counsel's
ineffectiveness resulted in a Sixth Amendment violation. Sixth Amendment standards require
that I balance the length of the delay, the reason for the delay, the defendant's assertion of the
right, and prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 33 L. Ed. 2d 101,92 S. Ct.
2182 (1972). Delays attributable to continuances sought by co-defendants weigh against finding
a speedy trial violation. See United States v. Steele, 2011 U.S. Dist. LEXIS 30560, at *8 (W.D.
Pa. Mar. 24, 2011).
A brief timeline is in order. Here, an indictment was filt!d against Defendant in
December, 2007, her initial appearance before a Magistrate Judge occurred at the end of May,
2008, counsel was appointed in June, 2008, and trial commenced in October, 2008. Her counsel
filed two motions for continuances, in order to prepare pretrial motions. Previously, Defendant
suggested that she did not oppose the first continuance, which
ft~sulted
in an extension of one
month. The latter continuance, which was unauthorized by Defendant, sought an extension of
eighteen days. In both cases, I found that the ends ofjustice WI!n: served by the granting of the
continuances; the reasons for the extensions were not deemed fIivolous. The remaining delay
6
was attributable to a continuance sought by her co-defendant, to extend the time for filing pretrial
motions by sixty days, and not to the conduct of Defendant's own counsel. Again, this extension
was granted in a so-called "ends ofjustice" Order. Later reque~ts for continuances, made by her
co-defendant and by Defendant, were denied. Additionally, De:fendant joined in her co
defendant's motions. Thus, the total unconsented-to
continuanc:e~"
which were excludable under
the Speedy Trial Act, accounted for less than three months of dday; the total time between
indictment and trial was less than one year.
Seeking or failing to object to the relatively brief continuances at issue, both for
Defendant's own pretrial preparation and to join in any benefits that might be afforded by a co
defendant's pretrial efforts, cannot be deemed ineffective under tree circumstances. "[I]t is
within counsel's purview to determine whether a continuance is in the best interest of his client."
United States v. Young, 2011 U.S. Dist. LEXIS 104278, at *17 (E.D. Pa. Sept. 12,2011).
Defendant's counsel made use of the time allotted him. He filed six pretrial motions, including
the aforementioned Motion to Dismiss on speedy trial grounds, which incorporated Defendant's
pro se objections to the continuances. He advised the Court that he held Defendant's pro se
motions until the time that pretrial motions were due. Moreover, the pretrial motion hearing
transcript reflects that counsel was involved in discussions with the Government at that time.
Accordingly, the reasons for the continuances were legitimate. The mere fact of Defendant's
disagreement therewith is not dispositive, and she offers nothing dse to suggest that counsel's
conduct fell below applicable standards. Similarly, because counsel's conduct with respect to
the continuances was not unreasonable, he was not ineffective for waiting until pretrial motions
were due to bring Defendant's disagreement therewith to the COUli's attention.
7
Moreover, Defendant does not assert that the continuances caused her any type of
prejudice within the meaning of Strickland. Defendant does not now contend that any
consequence of the delay affected the outcome of her trial, prejudiced her defense, or prejudiced
her in any other cognizable way.4 "[A] certain amount of anxiety and other forms of personal
prejudice to the accused is inevitable in a criminal case," and D.eft:ndant has not demonstrated
that her continuing ill-health was unusually or unacceptably affected by the brief delay that she
now challenges. Cf. United States v. Dreyer, 533 F.2d 112, 116 (3d Cir. 1976). For all of these
reasons, Defendant's objections are not dispositive of either the speedy trial or ineffective
counsel issue. Instead, under the circumstances here presented, Defendant's claim must fail.
3. Failure to Call Co-Defendant as Witness
Next, Defendant contends that counsel was ineffective D:>r refusing to call her co
defendant to testify at her trial, although she requested that he do so. According to Defendant,
counsel met with the co-defendant, and then decided not to call him as a witness. She asserts
that her co-defendant "admitted to being a part of the scheme, [and his] testimony could have
exonerated her." Indeed, her co-defendant pleaded guilty to conspiring with Defendant; she does
not explain the substance of the testimony that she believes he would have proffered, or how it
would have affected the outcome of the trial. Defendant's condusory speculation regarding the
benefits of a co-defendant's possible, undefined testimony, when that co-defendant specifically
admitted to conspiring with her, simply does not meet Stricklang's requirements. Indeed, it is
self-evident that the testimony of an admitted co-conspirator has the potential to damage one's
case. In any event, "[c ]ounsel's failure to call a witness is precisely the sort of strategic trial
decision that Strickland protects from second-guessing." Hende~)fl v. DiGuglielmo, 138 Fed.
4 Neither party requested a severance. Both Defendant's counsel and the Court agreed, at the pretrial motions
hearing, that there was no "real basis" for severance. Moreover, as I apprisep Defendant at her pretrial motions
hearing, in all likelihood, a request for severance would have been denied.
8
Appx. 463, 469 (3d Cir. 2005). Under the circumstances, there are no grounds for concluding
that counsel's decision in this regard fell below an objective standard of reasonableness, or
prejudiced Defendant as required by applicable standards. She is not entitled to habeas relief on
those grounds.
4.
Prosecutorial Misconduct
Next, I reach Defendant's argument that Government counsel, during closing arguments,
improperly mentioned that she was injail. She suggests that he:r mtorney should have objected,
and that the failure to do so prejudiced her. The objected-to sta1ement reads as follows: "The
fact of the matter is that those persons in jail, Brooks, Lloyd EI, Edna Gorham-Bey, had any right
to do anything with that money." In the first instance, the statetnent is arguably ambiguous; one
would not necessarily interpret this as a statement that Defendant was incarcerated. In any event,
"[t]he standard of review for assessing prosecutorial comments Is a narrow one in which 'the
relevant question is whether the prosecutors' comments 'so infected the trial with unfairness as to
make the resulting conviction a denial of due process.'" Darden v.,Wainwright, 477 U.S. 168,
181,91 L. Ed. 2d 144,106 S. Ct. 2464 (1986) (citation omitted). In considering this standard, I
view the comment in light of the evidence at trial. See White v. Ij,eard, No. 10-547,2011 U.S.
Dist. LEXIS 57864, at *79 (E.D. Pa. Mar. 22, 2011).
At issue here is a single comment, made during relatively lengthy closing arguments and
following the presentation of substantial evidence against Defendant. Moreover, as the
Government points out, the trial involved evidence that Defendant was assisting prisoners from
outside of prison. Finally, had counsel objected, and that objection been sustained, the result
would have been a curative instruction to the jury. This was ac()omplished in any event, as this
Court clearly instructed the jury that counsel's statements and aeguments are not evidence to be
9
considered in reaching a verdict. In context, the comment is cl¢arly not sufficiently egregious to
have deprived Defendant of a fair trial, and counsel's failure neither fell below applicable
standards ofperfonnance nor caused Defendant any prejudice.
5. Appellate Counsel
Defendant suggests that appellate counsel was ineffective, because she communicated
with Defendant only in writing, and those communications wen: "shallow at best." Defendant
further contends that counsel failed to consider the arguments
presumably those set forth in the
present habeas petition -- which Defendant raised with her. As regards appellate counsel
specifically, it is sufficient for her to have raised those claims which she reasonably believed had
the best chance of succeeding, even if other possible claims exi!lted. See Sistrunk v. Vaughn, 96
F. 3d 666, 670 (3d Cir. 1996). Counsel is required to exercise professional judgment with
respect to an appeal. Id.
Accordingly, in order to be effective, appellate counsel need not raise
every possible claim on appeal. Sistrunk v. Vaughn, 96 F. 3d 666, 670 (3d Cir. 1996); Kane v.
Kyler, 201 F. Supp. 2d 392, 399-400 (E.D. Pa. 2001).
Moreover, the question is not whether
Defendant would prevail on remand, but whether the Court of Appeals would likely have
reversed and remanded had the issue been raised on appeal.
UI1jit(~d
States v. Mannino, 212 F. 3d
835, 844-45 (3d Cir. 2000).
Limited or shallow communications from counsel are m)t the equivalent of ineffective
representation, and Defendant does not explain how any deficienc:y in communication prejudiced
the appeal. Due to the enumerated weaknesses in Defendant's
J~r(!sent
claims of error, it was not
unreasonable for appellate counsel to decline to press those claims. Moreover, ineffective
assistance of counsel claims are properly raised in a habeas
10
pro¢e,;~ding,
rather than on direct
appeal. Accordingly, appellate counsel cannot have been ineffe~t:lve for failing to raise those
claims. Moreover, also for those reasons, any such failure did not work the required prejudice.
B. REMAINING CLAIMS
Next, Defendant alleges perjury by a Government witness, and a sentencing
miscalculation. It is not entirely clear whether she intends to claim that counsel was ineffective
in these respects, or whether she intends to mount direct
challengf~s
to the alleged errors.
Accordingly, in the interest of thoroughness, I will separately address each potential avenue as to
both challenges.
1. Ineffective Assistance
a. Witness Perjury
With regard to her perjury argument, Defendant contends that a Government witness
claimed that he could identify Defendant based on a prior encounter at which Defendant claims
she was not present.
Even accepting the accuracy of her contention, Defendant cannot
demonstrate a reasonable probability that the outcome of the trilJ.I would have been different had
the witness testified differently. Again, as the Court of Appeals;wcounted, trial evidence other
than this testimony permitted the inference that Defendant knowingly participated in the
conspiracy charged. Indeed, Defendant claims primarily that the
h;~stimony
prejudiced her
because it mentioned a raid on her home five years prior to trial; the import of that prejudice is
not apparent. In sum, there is no basis for concluding that the Wstimony caused her prejudice,
within the meaning of Strickland. Moreover, Defendant does nc,t (;ontend that her counsel acted
improperly with regard to this witness. Indeed, she does not cOI~t(md that he knew of any alleged
perjury, and inconsistency between two witnesses' testimony is iinsufficient to establish perjury.
,
11
See United States v. Mangiardi, 173 F. Supp. 2d 292, 307
(M.D~
Pa 2001).
Accordingly, this
claim fails at both prongs of Strickland.
b. Sentencing Error
Next, Defendant contends that this Court improperly rej¢c1:ed her contention, at
sentencing, that a three-point enhancement should not be added 'to her criminal history score.
She argues that she was not incarcerated for the entire sentence imposed for the prior conviction
giving rise to those points. The sentencing guidelines direct tht! Court to add three points for
each prior sentence of imprisonment exceeding a year and a mOhb. U.S.S.G. §4Al.l(a).
Additionally, such points are based on the sentence pronounced, and not the length of time
served. U.S.S.G. § 4A1.2 cmt., app. note 2 (1997). This applies to any sentence that was
imposed within fifteen years of the defendant's commencementof the offense at bar, or which,
whenever imposed, resulted in the defendant being incarceratediduring any part of that fifteenyear period. §4A 1.1 (e). Here, Defendant was convicted in 198~, and received a sentence of ten
years imprisonment for the prior conviction. She was released from prison in 1988. The
conspiracy for which Defendant was charged and convicted ran from 2002 to April of2003.
Counsel and Defendant raised this issue during her sentencing hearing on February 13,2009, and
I determined that the three points were applicable. Counsel was not ineffective with respect to
the point calculation, and Defendant is not entitled to relief on t~at basis.
2. Direct Challenge
Finally, I address Defendant's sentencing and other claims to the extent that they are not
grounded in ineffective assistance of counsel. 5 "A section 2255!p';:tition is not a substitute for an
Even absent procedural default and ineffective assistance of counsel, her cl~irn regarding perjury would fail.
PeIjured testimony, standing alone, is insufficient to create a Section 2255 is~w~. United States v. Derosier, 141 F.
Supp. 397,401 (W.D. Pa. 1956). Instead, if the Government uses perjured t~stlmony, knew or should have known it
was peIjured, and the testimony creates a fundamental defect in the entire tritl, habeas relief may be appropriate.
5
12
appeal." Government ofV.1. v. Nicholas, 759 F.2d 1073, 1074 (i3d Cir. 1985). Ifa defendant
failed to raise a claim on appeal, she may raise it collaterally only if she demonstrates cause and
i
prejudice. See, M., Massaro v. United States, 538 U.S. 500,
sot,
l23 S. Ct. 1690, 155 L. Ed. 2d
714 (2003). "Cause" for the default must be "an occurrence be)~ond a petitioner's control that
cannot be fairly attributed to him." United States v. Rishell, No. 97-294-1, 2001 U.S. Dist.
LEXIS 21536, at *29 (E.D. Pa. Dec. 21, 2001). "Additionally, prejudice must be substantial,
such that the integrity of the entire proceeding is infected." Id. at *30. In this case, Defendant
did not raise her non-ineffective-assistance claims on direct appeal. She has not demonstrated
any cause for failing to do so, and, as discussed supra, inadequate performance by counsel does
not excuse the default. Moreover, for the reasons also discussed §!lpra, she has not demonstrated
the required prejudice. Thus, to the extent that the claims rest 011 grounds other than ineffective
assistance, they are procedurally defaulted.
II. CERTIFICATE OF APPEALABILITY
Under 28 U.S.C. § 2253(c)(2), a "certificate of appealability may issue only if the
applicant has made a substantial showing of the denial of a comititutional right." For the reasons
!
stated above, Defendant has not made such a showing. Therefc\re:, a certificate of appealability
i
will not issue.
CONCLUSION
In sum, Defendant has procedurally defaulted her claim~, or has failed to meet both
prongs of Strickland, under standards applicable in this context.! Thus, after careful
consideration, her Motion will be denied, and no certificate of a~pealability shall issue.
An appropriate Order follows.
United Slate' v. Jone,. 832 F. Stipp. 2d 5 19. 534 (E.n. Pa. 20 II). In
thi"a.t~efendanl
doe, nol allege thaI the
Government knew or should have known of the witness' alleged perjury, an4 alleges no facts or circumstances that
would make it likely that the Government possessed that knowledge.
I
,
13
ORDER
AND NOW, this Uayof August, 2012, it is
hereb~ ORDERED, ADJUDGED, and
DECREED that Defendant's Motion to Vacate [188] is DENIEJt), and no certificate of
appealability shall issue.
BY THE COURT:
iIw&)Jt:'~
Donetta W. Ambrose
Senior Judge, U.S. District Court
14
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