DEES v. USA
Filing
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MEMORANDUM OPINION on Motion to Vacate Sentence. Signed by Judge Arthur J. Schwab on 6-8-15. (nam)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA,
Plaintiff,
Criminal No. 11-0110
Civil No. 15-00493
ELECTRONICALLY FILED
v.
JOSEPH DEES a/k/a JOSEPH LEE,
Defendant.
MEMORANDUM OPINION
I.
Introduction
Before the Court is Petitioner Joseph Dees’ pro se Motion Under 28 U.S.C. ' 2255
to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody (doc. no. 173), his
Motion to Appoint Counsel (doc. no. 175), and his Motion to Amend his Original Motion to
Include “Argument #7” (doc. no. 181). After careful consideration of Petitioner’s Motions and
Brief in Support, the Government=s Responses thereto, and Petitioner’s Reply, and the entire
record in the case, including the trial transcript of this matter and the sentencing/re-sentencing
hearings, the Court will grant Petitioner’s Motion to Amend (doc. no. 181), will deny his
Motion to Appoint Counsel, (doc. no. 175) and will deny Petitioner’s All-Inclusive Motion for
Relief pursuant to 28 U.S.C. ' 2255 (doc. nos. 173 and 182).
II.
Procedural Background
On May 17, 2011, Petitioner was indicted and charged with Possession with Intent to
Distribute Less Than 500 Grams of a Mixture and Substance Containing a Detectable Amount
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of Cocaine, a Schedule II Controlled Substance, in the Western District of Pennsylvania, in
violation of 21 U.S.C. ' 841(a)(1) and 841(b)(1)(C).
Petitioner pled not guilty, and the well-respected defense counsel Stephen Stallings
was appointed to represent him. Doc. No. 15. Attorney Stallings filed several pretrial motions
on behalf of Defendant (doc. nos. 30, 32, and 34). After the trial date was set, and ultimately
re-set for November 13, 2012, defense counsel filed numerous motions in limine, and he
vigorously represented his client during all pretrial proceedings before this Court, including oral
argument/conferences thereon.
After review of the docket, the transcripts, and from the independent recollection of
this Court, defense counsel represented the interests of defendant in a professional and highly
competent manner, and his motions practice was both copious and well-reasoned. At the trial of
this matter, which occurred on November 13 and 14, 2012, the Government presented seven
witnesses for trial, and defense counsel effectively, although ultimately not successfully,
advocated for his client and pursued a skilled cross-examination of the Government witnesses.
Defense counsel did not present any evidence in his case in chief. The jury returned a verdict of
guilty on the one-count Indictment.
Defense counsel continued to vigorously represent Defendant through the sentencing
of this matter, which occurred on July 16, 2013, and on appeal. The Court originally sentenced
Defendant to a 105-month term of imprisonment (the high end of the reduced Sentencing
Guideline Range) to run consecutive to a sentence imposed by this Court at 11-cr-233, after this
Court found in favor of Defendant and against the Government on the issue of whether
Defendant was entitled an enhancement on the basis that he was a career offender. Both parties
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appealed, and the United States Court of Appeals for the Third Circuit affirmed the trial of this
matter, and reversed/vacated and remanded for re-sentencing after the Court of Appeals found
that Defendant qualified as a career offender. Doc. Nos. 155 and 156. Pursuant to the mandate
of the Court of Appeals, the Court was required to re-sentence Defendant with the application of
the enhancement under U.S.S.G § 4B1.1(a) for being a career offender, thereby setting the
applicable Sentencing Guideline Range at 210 to 240 months.
On October 22, 2014, Attorney Stallings withdrew his representation of Defendant,
and attorney David Berardinelli was appointed to represent Defendant. After hearing again
from the parties in the form of re-sentencing Memoranda (doc. nos. 167 and 168), on February
20, 2015, the Court re-sentenced Defendant to 210 months incarceration to run concurrent (in
part) to the 75 months sentence at Criminal No. 11-233. Defendant did not pursue an appeal of
this sentence. Instead, on April 14, 2015, he filed his Petition to Vacate Sentence (doc. no.
173), with supporting documents, including a Motion to Appoint Counsel (doc. no. 175), and a
Motion to Amend his Motion to Vacate (doc. no. 181). In Petitioner’s Pleadings (doc. nos. 173,
and 181), he raises seven (7) grounds in support of his Petition.
III.
Standard of Review
28 U.S.C. ' 2255 provides, in relevant part:
Unless the motion and the files and records of the case conclusively show that
the prisoner is entitled to no relief, the court shall cause notice thereof to be
served upon the United States attorney, grant a prompt hearing thereon,
determine the issues and make findings of fact and conclusions of law with
respect thereto. If the court finds that the judgment was rendered without
jurisdiction, or that the sentence imposed was not authorized by law or
otherwise open to collateral attack, or that there has been such a denial or
infringement of the constitutional rights of the prisoner as to render the
judgment vulnerable to collateral attack, the court shall vacate and set the
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judgment aside and shall discharge the prisoner or resentence him or grant a
new trial or correct the sentence as may appear appropriate.
Whether to conduct a hearing is within the sound discretion of the District Court. United
States v. Lilly, 536 F.3d 190, 195 (3d Cir. 2008); United States v. Day, 969 F.2d 39, 41 (3d Cir.
1992)(quoting Government of the Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir.1989), cert.
denied 500 U.S. 954 (1991)). In exercising that discretion, “the [C]ourt must accept the truth of
the movant’s factual allegations unless they are clearly frivolous on the basis of the existing
record. Further, the court must order an evidentiary hearing to determine the facts unless the
motion and files and records of the case show conclusively that the movant is not entitled to
relief.” Day, 969 F.2d at 41-42 (citation omitted). See also Rules Governing Section 2255
Proceedings, Rules 4 and 8. The Court must view the factual allegations in the light most
favorable to the Petitioner. Government of the Virgin Islands v. Weatherwax, 20 F.3d 572, 574
(3d Cir. 1994) (district court erred in failing to conduct evidentiary hearing on petitioner’s nonfrivolous allegations of ineffective assistance of counsel) (subsequent history omitted).
However, a Section 2255 Motion may be dismissed without a hearing if: (1) its allegations,
accepted as true, would not entitle Petitioner to relief, or (2) the allegations cannot be accepted
as true because they are contradicted by the record, inherently incredible, or conclusions rather
than statements of fact. United States v. McCoy, 410 F.3d 124, 134 (3d Cir. 2005)(citations
omitted).
In order for Petitioner to establish counsel was ineffective, he has the burden to show
counsel’s performance (i) was in fact deficient and (ii) that the deficient performance so
prejudiced the defense as to raise doubt to the accuracy of the outcome of the trial [or the
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sentence]; i.e., Petitioner must demonstrate a reasonable probability that, but for counsel=s
deficiency, the outcome of the trial [or sentence] would have been different. Strickland v.
Washington, 466 U.S. 668, 687, 692 (1984). Counsel's conduct presumptively “falls within the
wide range of reasonable professional assistance,” and the Petitioner “must overcome the
presumption that, under the circumstances, the challenged action >might be considered sound
trial strategy.’” Id. at 689-90 (citation omitted). On the other hand, the mere fact that counsel’s
challenged performance or tactic can be called “strategic” in the sense it was deliberate, does
not answer the dispositive question of whether that decision or tactic fell within the wide range
of “reasonable professional assistance.” Davidson v. United States, 951 F.Supp. 555, 558
(W.D.Pa. 1996), quoting Government of the Virgin Islands v. Weatherwax, 77 F.3d 1425, 143132 (3d Cir.), cert. denied 117 S.Ct. 538 (1996). “Reasonable trial strategy must, by definition,
be reasonable.” Davidson, 951 F.Supp. at 558.
Counsel=s strategy must be judged by a standard of reasonableness based on the
prevailing norms of the legal profession. Berryman v. Morton, 100 F.3d 1089, 1094 (3d Cir.
1996) (Strickland standards for claims of ineffective assistance of counsel unchanged under
Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. 104-132, 110 Stat. 1214).
Ineffective assistance of counsel will not be found simply because, with the assistance of
hindsight, the reviewing court disagrees with counsel=s strategy. Green v. Johnson, 116 F.3d
1115, 1122 (5th Cir. 1997).
In the context of a Section 2255 petition for collateral relief, the United States Court
of Appeals for the Third Circuit has offered the following guidance:
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The . . . test for determining whether a hearing should be held on an
ineffectiveness claim is slightly altered by the Strickland holding. Our analysis
of allegations of ineffectiveness of counsel breaks down into two parts. First,
we must determine whether the district court considered as true all of
appellant's nonfrivolous factual claims. This step requires that we review
whether the district court properly found certain allegations frivolous. Second,
we must determine whether, on the existing record, those claims that are
nonfrivolous conclusively fail to show ineffective assistance of counsel. To
evaluate claims under this second step, we must turn to both prongs of the
Strickland test. If a nonfrivolous claim clearly fails to demonstrate either
deficiency of counsel's performance or prejudice to the defendant, then the
claim does not merit a hearing. If, on the other hand, a claim, when taken as
true and evaluated in light of the existing record, states a colorable claim for
relief under Strickland, then further factual development in the form of a
hearing is required. That is, if a nonfrivolous claim does not conclusively fail
either prong of the Strickland test, then a hearing must be held. Thus, the
district court must employ the Strickland analysis at least once, and may have
to employ it twice--first, as a threshold analysis of all claims on a limited
record, and then again only on colorable claims after full factual development
of those claims.
United States v. Dawson, 857 F.2d 923, 927-28 (3d Cir. 1988).
Under the first prong of the Strickland test, “an attorney renders ineffective
assistance when his performance ‘f[alls] below an objection standard of reasonableness,’ given
the particular circumstances of the case at hand.” Hodge v. U.S., 554 F.3d 372, 379 (3d Cir.
2009)(quoting Strickland, 466 U.S. at 688). As in any other ineffective assistance of counsel
context, “[a] reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694.
The Court must employ a highly deferential standard, which entails “a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” United States v. Hankerson, 496 F.3d 303, 310 (3d Cir. 2007)(quoting Strickland,
466 U.S. at 689). To rebut this presumption, a Petitioner “must show either that: (1) the
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suggested strategy (even if sound) was not in fact motivating counsel, or (2) that the actions
could never be considered part of a sound strategy.” Thomas v. Varner, 428 F.3d 491, 499 (3d
Cir. 2005).
Under the second prong (i.e., the prejudice prong), Petitioner must show that there is
a “reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694. “A reasonable probability
is a ‘probability sufficient to undermine confidence in the outcome.’” Hankerson, 496 F.3d at
310 (quoting Strickland, 466 U.S. at 694).
IV.
Discussion
A.
Ground I of Ineffectiveness
Construing the Original Petition and the Motion to Amend as an All-Inclusive
Petition (doc. nos. 173 and 181), Petitioner’s first ground for relief is that his trial counsel was
ineffective in failing to make a timely objection and move for a mistrial at a critical stage. In
support thereof, he alleges that counsel failed to make an objection to the fact that he was
dressed in his orange jumpsuit (“prison garb”) during the trial of this matter, and that witnesses
referred to him as wearing an orange jump suit and defense counsel failed to object. However,
the record in this case reveals that prior to empaneling the jury, on the first morning of the trial,
the Court questioned both Petitioner and defense counsel regarding Petitioner’s decision to wear
his prison uniform, made with the participation and agreement of Defendant. The transcript of
that exchange makes clear that this decision was a deliberate and strategic one. See doc. no.
180. The portion of the transcript relating to the dress of Petitioner is as follows:
THE COURT: I notice the Defendant is dressed in his prison
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uniform. Is there any reason why he's not dressed in some
other garb like civilian garb?
MR. STALLINGS: Your Honor, we have no objection
to the jury seeing Mr. Dees in the state he is in.
THE COURT: All right. And you agree with that,
sir?
THE DEFENDANT: Yes.
Doc. No. 180 at 5-6.
The theory of the defense was that Petitioner participated in a credit card scheme to
support his drug addiction, and that he was an addict who used drugs and shared them with
friends, but who was not a drug distributor. Defense counsel used the credit card fraud case to
help explain why Petitioner, an unemployed cocaine addict, had more than $3,500.00 in his
possession at the time of his arrest. While it was not a successful defense, the Court cannot
second guess that this was a sound or appropriate trial strategy under the circumstances of this
case.
Having concluded that it was a reasonable trial strategy to present Petitioner in his
prison uniform, Petitioner has failed to meet the first prong of the Strickland test. Moreover, as
to the second prong of Strickland, there is no reasonable probability that had defense counsel
objected to statements by witnesses regarding Petitioner’s orange jump suit, or had Petitioner
decided not to wear the jump suit after the Court questioned him thereon (doc. no. 180), that the
result of the trial would have been any different. The record is unequivocal that he was
questioned on his decision to wear his orange jump suit, and it was discussed before the jury
entered the Courtroom. The evidence of guilt in this case was substantial and the verdict was a
reliable one.
For these reasons, the Court concludes that, taking Petitioner’s non-frivolous
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allegations as true for purposes of this Motion regarding his and defense counsel’s strategic
decision to wear the “prison garb,” he cannot establish the prejudice prong of the Strickland
standard (i.e., he cannot demonstrate a reasonable probability that counsel was constitutionally
ineffective or that there is a “reasonable probability that, but for counsel's [alleged] errors,” Hill
v. Lockhart, 474 U.S. 52, 59 (U.S. 1985), that he can “affirmatively establish[] the likelihood of
an unreliable verdict.” McAleese v. Mazurkiewicz, 1 F.3d 159, 166 (3d Cir. 1993).
B.
Ground II – Court Erred in Admitting 404(b) Evidence
Petitioner next contends that the Court erred in admitting evidence of his prior fraud
offenses under Fed. R. Evid. 404(b), and other bad acts (including prior cocaine distribution and
sexual encounters in which he allegedly paid for sex with cocaine). Petitioner has raised this
issue at several points in his Petition. These issues were previously raised before the United
States Court of Appeals for the Third Circuit, in his direct appeal. The Court of Appeals,
however, denied that claimed basis for relief and he cannot now relitigate that issue. United
States v. DeRewal, 10 F.3d 100, 105, n. 4 (3d Cir. 1993). To the extent, Petitioner is alleging
that counsel was ineffective in failing to raise any issues related to the 404(b) evidence on direct
appeal, counsel cannot be ineffective for raising meritless claims as this Court finds that there
was no error in admitting evidence of his prior sexual encounters to prove intent.
Moreover, Petitioner has not identified what, if anything, trial counsel could or
should have done differently, and critically, he has not identified how the result would have
changed. His allegations are not grounded with proper factual support and are merely
conclusory allegations, which are not sufficient for this Court to possibly grant Petitioner any
relief. Furthermore, Petitioner has not demonstrated a reasonable likelihood that had counsel
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done something differently, the result would have been altered. While not recounting the
specific facts of this case, the Court recalls that the Government presented competent evidence
of Petitioner’s guilt, and the verdict was amply supported by the evidence in this case which
included evidence from various independent sources. Petitioner’s second ground for relief thus
necessarily fails.
C.
Ground III of Ineffectiveness – Failure to Request Limiting Instruction
Petitioner next claims that defense counsel was ineffective for failing to request a
limiting instruction after the introduction of Rule 404(b) evidence. This Court inquired of
defense counsel whether he was requesting a limiting instruction and defense counsel declined
(doc. no. 151 at 111). There are differing approaches to the inclusion of a limiting instruction
after the introduction of Rule 404(b) evidence - - while some practitioners prefer the limiting
instruction, others believe it draws more attention to or overly-emphasizes the evidence. In any
event, whether to request a limiting instruction is a strategic decision and trial counsel is
afforded wide latitude in decisions such as this, so long as the strategy is a reasonable one.
Furthermore, again, this claim of ineffectiveness necessarily falters because Petition has failed
to demonstrate that he was prejudiced by trial counsel’s decision not to request a limiting
instruction. Judging the facts in the light most favorable to Petitioner, this claim of
ineffectiveness does not meet either prong of the Strickland standard, and must be rejected.
D.
Ground IV – Court Erred in Permitting Prosecution to Change Theory
Petitioner next alleges, as defense counsel previously raised numerous times before
this Court, that the Government impermissibly changes its theory of prosecution between the
time of the Grand Jury presentment and trial. The Court previously considered and rejected
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these same arguments by defense counsel in pretrial motions and in post-trial motions. Doc.
Nos. 95 and 97. Additionally, Petitioner failed to raise the argument on direct appeal.
Accordingly, this argument is procedurally barred, and in any event, has no merit.
E.
Grounds V and VI – Ineffectiveness for Failing to Challenge
Indictment/Challenge Exculpatory Evidence
Petitioner also claims that his trial counsel was ineffective for failing to “request the
District Court to strike all surplusage from the Indictment and suppress the evidence.” Doc. No.
173 at 10. In support, Petitioner states that the grand jury should not have been presented with
evidence related to the $3,550.00 found in Petitioner’s possession, and his history of fraud
offenses. Counsel cannot be deemed ineffective, where, as here, he failed to make a meritless
claim on behalf of Petitioner. A district court generally lacks supervisory authority over Grand
Jury proceedings, and a defendant bears a heavy burden when he or she attempts to set aside an
Indictment. United States v. Fenton, 1998 WL356891, *4 (W.D. Pa. June 29, 1998)(Brooks, J.)
Here, there is no violation of the law as the Government is not required to present exculpatory
evidence to the Grand Jury, United States v. Williams, 504 U.S. 36, 52-54 (1992), and the
Federal Rules of Evidence do not apply before the grand jury. Again, as trial counsel cannot be
faulted for failing to file a meritless motion, and no prejudice can be established, this claim of
ineffectiveness is without merit.
F.
Ground VII – Court Erred in Sentencing Defendant as a Career
Offender
In Petitioner’s Motion to Amend to Add “Argument Number 7,” and attached
Memorandum, he alleges that the Court abused its discretion in “permitting the [G]overnment a
second bite at the apple to prove him to be a Career Offender.” Doc. No. 182. As the
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Government notes, and this Court agrees, Petitioner could have appealed the rulings of this
Court at re-sentencing, but failed to do so. Therefore, his claim in this regard is procedurally
barred. Moreover, his argument regarding career offender status is meritless as the Court of
Appeals previously held that Petitioner was a career offender and this Court was bound the
ruling. Accordingly, this claim of abuse of discretion necessarily fails.
VI.
Conclusion
As rehearsed, in order for Petitioner to establish counsel was ineffective, he has the
burden to show counsel’s performance: (i) was in fact deficient, and (ii) that the deficient
performance so prejudiced the defense as to raise doubt to the accuracy of the outcome of the
trial [or the sentence]; i.e., Petitioner must demonstrate a reasonable probability that, but for
counsel=s deficiency, the outcome of the trial [or sentence] would have been different.
Strickland, 466 U.S. 668, 687, 692 (1984). Petitioner has failed to meet his burden in both
regards with regard to his claims of ineffectiveness. Similarly, Petitioner has failed to set forth
any error by this Court that is not procedurally barred and/or that has not previously been raised
and rejected.
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For all of the foregoing reasons, this Court will deny Petitioner’s motion for relief
under 28 U.S.C. ' 2255, without a hearing, and a Certificate of Appealability will be denied. An
appropriate order follows.
s/Arthur J. Schwab
Arthur J. Schwab
United States District Judge
cc: All Registered ECF Counsel and Parties
Joseph Dees
#4570-066
Box 6000
Blenville, WV 26351
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