JACKSON v. USA

Filing 1

ORDER denying Motion to Vacate, Set Aside or Correct Sentence (2255). No certificate of appealabiity shall issue. Signed by Judge Donetta W. Ambrose on 4/11/19. (ask)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
UNITED STATES

)
) CR 10-199
) CV 18-676

v.
DOMINIQUE JACKSON
OPINION AND ORDER
SYNOPSIS
In this action, on March 21, 2014, a jury convicted Defendant of one Count of violating
21 U.S.C. § 846. On July 7, 2014, Defendant was sentenced to a term of imprisonment of 135
months, which was later reduced to 120 months pursuant to 18 U.S.C. § 3582(c). The Court of
Appeals affirmed. Defendant filed a pro se Motion to Vacate pursuant to 28 U.S.C. § 2255, and
following notice pursuant to United States v. Miller, 197 F. 3d 644 (3d Cir. 1999), he filed an
Amended Motion to Vacate. Therein, he raises a wide variety of issues related to the effective
assistance of counsel, including the failure to seek my recusal and trial counsel’s alleged conflict
of interest. For the following reasons, Defendant’s Motion will be denied, and no certificate of
appealability shall issue.
OPINION
I.

LEGAL STANDARDS
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 of justice," 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
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,
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93 Fed. Appx. 402 (3d Cir. 2004). “To progress to an evidentiary hearing, a habeas petitioner
must do more than proffer gauzy generalities or drop self-serving hints that a constitutional
violation lurks in the wings”; as a result, vague and conclusory allegations do not justify a
hearing. David v. United States, 134 F.3d 470, 478 (1st Cir. 1998). Further, pro se pleadings
are to be liberally construed, and I have considered Defendant’s submissions accordingly. See
United States v. Otero, 502 F.3d 331, 334 (3d Cir. 2007). In this case, a hearing is unnecessary,
and the Motion will be disposed of on the record.
II.

DEFENDANT’S MOTION

A. Pertinent Background
As Defendant acknowledges, this case involved serial representation by numerous
defense attorneys. Initially, Patrick Livingston was appointed to represent Defendant at his
initial appearance. Defendant then retained James Wymard, and the Court permitted Mr.
Livingston to withdraw as counsel. At a hearing on January 3, 2012, Defendant requested the
appointment of new counsel, and the Court granted his request. James Donohue was then
appointed to represent Defendant. On January 28, 2013, Defendant filed a pro se Motion seeking
to terminate Mr. Donohue’s representation, expressing dissatisfaction for a variety of reasons.
The Court granted Defendant’s request, and appointed Christopher Capozzi as counsel. Mr.
Capozzi later sought, and received, permission to withdraw from the case due to a conflict of
interest. The Court then appointed William McCabe. Subsequently, Marcus Sidoti and Bret
Jordan were retained, and Mr. McCabe withdrew as counsel as a result.
Soon afterwards, Messrs. Sidoti and Jordan moved to withdraw as counsel, citing
irreconcilable differences and asserting that Defendant had terminated the attorney/client
relationship. The Court initially denied the request, and a conference was held on September 13,

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2013. At that time, the Court granted the attorneys’ Motion to withdraw; Defendant advised that
he did not want to proceed pro se, and the Court advised him that this would be his final
appointment of counsel.
Subsequently, James Brink was appointed to represent Defendant. At Mr. Brink’s
request, Mr. Brink and Defendant participated in a status conference held on October 22, 2013.
Mr. Brink subsequently withdrew as counsel, and Attorney Michael Cheselka was then
appointed to represent Defendant. On the eve of trial, Defendant filed a pro se Motion to
terminate Mr. Cheselka’s representation. In his Motion, Defendant cited a complete breakdown
in communication, and recited multiple avenues that he wished counsel to take, that counsel had
not taken. The Court denied the Motion, by Memorandum Opinion dated March 14, 2014
(“March 14 Opinion”). Therein, the Court stated as follows:
Mr. Jackson has cycled through nine experienced and competent attorneys,
both appointed and retained. Defendant has been dissatisfied with prior counsel for
reasons similar to those he raises now, with yet another lawyer. He cannot,
however, force his attorney to present a defense with which the attorney does not
agree, or repeatedly acquire new counsel until he finds one who agrees with him.
..The superseding indictment in this case was filed in 2010, and this matter has
been continued multiple times at the request of the defense. I have repeatedly
warned Defendant that there would be no further continuances, and that there are
limits to changes of counsel…I find that Defendant’s objections to current counsel
do not constitute good cause requiring substitution of counsel.
March 14 Opinion, pp. 2-3 (citation omitted).

Trial proceeded beginning on March 17, 2014, with Mr. Cheselka as counsel. Following
the jury’s verdict, Defendant again filed a pro se Motion to have Mr. Cheselka withdrawn as
counsel. Subsequently, Blaine Jones was appointed to represent Defendant. Prior to sentencing,
citing irreconcilable differences, Mr. Jones then sought to withdraw as counsel. The Court denied
the Motion. Following sentencing proceedings, Mr. Jones sought, and was granted, leave to

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withdraw as counsel. Defendant filed a Notice of Appeal, and the Court of Appeals affirmed the
decisions in this Court.
III.

DEFENDANT’S MOTION
As a preliminary matter, I note that the entirety of Defendant’s Motion rests on his

conviction, which it is apparent he holds deeply, that this Court and all counsel interfered with
his autonomy, in terms of his ability to control trial strategy.
I.

Conduct of the Court

In support of his position that the Court so interfered, Defendant cites to the principles
enunciated in Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975), and its
progeny. Faretta “merely stands for the proposition that, after a defendant has clearly requested
the opportunity to represent himself, a district court is obligated to explain his right to selfrepresentation and to ensure that his decision to forego counsel is made knowingly and
intelligently with awareness of the attendant consequences of that decision.” United States v.
Reed, No. 06-193, 2013 U.S. Dist. LEXIS 99, at *13 (W.D. Pa. Jan. 2, 2013).
Accordingly, “[t]he Sixth Amendment right to choose one’s own counsel is
circumscribed in several important respects.” Wheat v. United States, 486 U.S. 153, 108 S. Ct.
1692, 100 L. Ed. 2d 140 (1988). Relatedly, it is clear that under the law, the concept of a right to
counsel of choice differs from the right to effective counsel. “The right of an accused to
effective assistance of counsel, … does not extend to the appointment of counsel of choice, or to
special rapport, confidence, or even a meaningful relationship with appointed counsel. … There
is no right to counsel who will blindly follow the defendant's instructions.” United States v.
Jennings, 855 F. Supp. 1427, 1441 (M.D. Pa. 1994). Indeed, "[t]he right to counsel does not
include more than the right to representation by competent counsel at trial." Siers v. Ryan, 773

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F.2d 37, 44 (3d Cir. 1985). The Sixth Amendment provides the right to “reasonably effective”
assistance. Strickland, 466 U.S. at 687. This right, it has been said, "must at times give way to
the need for the fair and efficient administration of justice." United States v. Cicale, 691 F.2d 95,
106 (2d Cir. 1982).
Such a time arose in the case at bar, in which the Court accommodated multiple attorney
changes due to Defendant’s disagreements with his counsel, until the point at which Defendant’s
dissatisfaction posed an unreasonable threat of disrupting fair and efficient administration of
justice. In these proceedings, the Court discussed with Defendant the option of proceeding pro
se, and Defendant did not express a desire to do so; instead and multiple times, he sought
different counsel, both retained and appointed. Defendant expressly and repeatedly stated that he
did not wish to represent himself, and advised that he did not intend to retain counsel; he
requested appointed counsel, and the Court repeatedly acceded to that request. The Court made
clear to Defendant that he would, as well, be permitted to retain counsel. Patently, counsel was
not forced upon Defendant in violation of Defendant’s right to act on his own behalf in court,
and Faretta is inapplicable here.
A. Ineffective Assistance of Counsel
Defendant further suggests that counsels’ conduct was ineffective because it violated his
authority to make decisions in his case, in that counsel failed to follow Defendant’s wishes
regarding strategy. In the context of an ineffective assistance 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. Washington, 466 U.S. 668, 689, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984). "It is…only the rare claim of ineffectiveness of counsel that
should succeed under the properly deferential standard to be applied in scrutinizing counsel's

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performance." United States v. Gray, 878 F. 2d 702, 711 (3d Cir. 1989). To demonstrate
ineffective assistance, a defendant must show both that counsel’s performance was deficient, and
that the deficiency caused him prejudice. Strickland, 466 U.S. at 697.
To show deficient performance under Strickland’s first prong, a defendant must
demonstrate that his attorney's performance fell below "the wide range of professionally
competent assistance." Id. at 687. With respect to the prejudice prong, the pertinent question is
"whether there is a reasonable probability that, absent the errors," the result would have been
different. Id. at 695; see also Gray, 878 F.2d at 709-13 (3d Cir. 1989). “A reasonable probability
is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.
Therefore, 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 the inquiry 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.
Defendant takes the position that his attorneys’ failure to proceed as Defendant wished –
in his words, “failing to follow [Defendant’s] express instructions regarding issues and
objectives of his defense”—constitutes ineffective assistance of counsel. In so doing, Defendant
conflates fundamental decisions, over which the client maintains control, with the attorney’s
realm of strategic or tactical decisions. Making strategic choices about how to achieve a client’s
objective (i.e., deciding what to ask a particular witness) differs from choosing that objective
(i.e., deciding whether to maintain one’s innocence) in the first instance. “Trial management is
the lawyer’s province: Counsel provides his or her assistance by making decisions such as ‘what
arguments to pursue, what evidentiary objections to raise, and what agreements to conclude

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regarding the admission of evidence.’” McCoy v. Louisiana, __ U.S.__, 138 S. Ct. 1500, 1508,
200 L. Ed. 821 (2018), (quoting Gonzalez v. United States, 553 U. S. 242, 248, 128 S. Ct. 1765,
170 L. Ed. 2d 616 (2008)). Other decisions, such as whether to plead guilty or forego an appeal,
are reserved for the client. Id. As the Court of Appeals for the Fourth Circuit explained:
A criminal defense attorney is obligated to follow his client's wishes only with regard to
the fundamental issues that must be personally decided by the client. As to those limited
issues--pleading guilty, waiving a jury, taking the stand, and appealing a conviction or
sentence--"an attorney must both consult with the defendant and obtain consent to the
recommended course of action." If the decision is a tactical one left to the sound
judgment of counsel, the decision must be just that--left to the judgment of counsel.
Counsel need not consult with the client about the matter or obtain the client's
consent….[T]he law places certain tactical decisions solely in the hands of the criminal
defense attorney. This reallocation of rights and duties is necessary to give effect to the
constitutional rights granted to criminal defendants and to insure the effective operation
of our adversarial system, where defense attorneys must protect the interests of their
clients while also serving as officers of the court.
United States v. Chapman, 593 F.3d 365, 369-70 (4th Cir. 2010) (citations omitted).
Defendant suggests a variety of deficiencies covering a wide swath of his various
attorneys and their conduct, from trial preparation to post-trial proceedings. Defendant’s claims
of error are voluminous, and it is not necessary to recite each claim seriatim. I have, however,
considered each of his allegations, separately and in light of all of the attendant circumstances.
Whether they relate to alleged straightforward errors by counsel, or errors of failing to adopt
tactics that Defendant wished adopted, Defendant’s claims must fail.
Several of Defendant’s ineffective assistance claims must be rejected for reasons that
merit only brief mention. Some of these, such as his Title III challenges, surround contentions
rejected by our Court of Appeals, which extensively addressed Defendant’s arguments regarding
cellphone interceptions introduced at trial. United States v. Jackson, No. 14-3712 (3d Cir. Dec.
7, 2016). These claims cannot be relitigated on collateral review. United States v. Marrero, No.
9-208, 2017 U.S. Dist. LEXIS 211364, at *3 (W.D. Pa. Dec. 22, 2017). Moreover, those claims
7

not raised on direct appeal are procedurally defaulted, unless a defendant shows, inter alia, good
cause for failing to raise the claims on appeal. Cristin v. Brennan, 281 F.3d 404, 409 (3d Cir.
2002). Further, “it is sufficient for [appellate counsel] to have raised those claims which she
reasonably believed had the best chance of succeeding, even if other possible claims existed. …
Counsel is required to exercise professional judgment with respect to an appeal.” United States
v. Wilson, Nos. 02-39, 2006 U.S. Dist. LEXIS 32118, at *6 (W.D. Pa. May 22, 2006). I have
reviewed Defendant’s appellate proceedings, and it is apparent that Defendant cannot meet
Strickland’s standard regarding appellate counsel. Defendant has not demonstrated grounds for
concluding that he may relitigate already-decided issues, or that grounds exist for excusing any
default.
Other claims that Defendant presses, such as those relating to counsel’s conduct
regarding witness testimony, motions, discovery, and trial objections, fall squarely within the
category of trial strategy as discussed supra. Defendant asserts no ineffectiveness or interference
with respect to the sort of fundamental, personal decisions that might fall outside this category.
In that vein, “[c]ounsel's performance must be evaluated keeping in mind that an attorney's trial
strategies are a matter of professional judgment and often turn on facts not contained in the trial
record. … In this analysis, the court cannot take on the role of ‘Monday morning quarterback.’"
United States v. Tilley, No. 6-222, 2011 U.S. Dist. LEXIS 15844, at *3 (W.D. Pa. Feb. 17,
2011). Hence, “the defendant must overcome the presumption that, under the circumstances, the
challenged action ‘might be considered sound trial strategy.’" Virgin Islands v. Weatherwax, 77
F.3d 1425, 1431 (3d Cir. 1996). Importantly, "[r]easonable trial strategy does not constitute
ineffective assistance of counsel simply because it is not successful." James v. Iowa, 100 F.3d
586, 590 (8th Cir.1996).

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By way of illustration, there are many reasons that counsel might not decide to lodge
objections that, in Defendant’s words, “could be made.” The decision to make a standing or
running objection, for example, is a commonly-used approach to avoid annoying a jury or
interrupting a desired flow of proceedings; the same is true with a decision not to object to
leading questions or witness testimony. “It is well settled that a ‘conscious and informed
decision on trial tactics and strategy cannot be the basis for constitutionally ineffective assistance
of counsel unless it is so ill chosen that it permeates the entire trial with obvious unfairness.’"
Green v. Johnson, 116 F.3d 1115, 1122 (5th Cir. 1997). Having presided over these proceedings
from pretrial through sentencing, the Court is assured that each instance of conduct now
challenged by Defendant was not so ill-considered that it permeated the trial with obvious
unfairness. In contrast, the entire record reveals that each attorney acted in comportment with
Defendant’s constitutional guarantees. The alleged errors, in this case, simply do not evidence a
situation in which Defendant was essentially deprived of reasonably competent counsel.
Importantly, moreover, Defendant has not demonstrated a reasonable probability that the
outcome would have differed had counsel acted differently in any of the respects urged. At
most, Defendant’s submissions give rise to speculation in that regard. The prejudice
contemplated by Strickland is not present. Although Defendant suggests that the violation of his
autonomy itself is structural error and inherently prejudicial, as discussed supra, Defendant was
not deprived of the type of fundamental decision that might give rise to structural error.
IV.

Bias
Next, Defendant suggests that this Court appeared biased, and that counsel was

ineffective for failing to seek my recusal pursuant to 28 U.S.C. § 455.
The test for recusal under § 455(a) is an objective and requires recusal where a
"reasonable person, with knowledge of all the facts, would conclude that the judge's
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impartiality might reasonably be questioned." In re Kensington Int'l Ltd., 368 F.3d 289,
301 (3d Cir. 2004). The bias required before recusal is warranted under either subsection
(a) or (b)(1), "must stem from a source outside of the official proceedings." Moreover, the
Court of Appeals for the Third Circuit has made it clear that "a party's displeasure with
legal rulings does not form an adequate basis for recusal."
Yunik v. McVey, No. 08-1706, 2011 U.S. Dist. LEXIS 32629, at *2-3 (W.D. Pa. Mar. 29, 2011)
(citations omitted).
Defendant does not aver any grounds that would support a finding of extrajudicial bias, or
identify any other grounds that would support recusal under Section 455. Defendant locates an
appearance of bias in the allegation that I advised him, incorrectly, on several aspects of his case,
and that I displayed hostility towards him. This conduct during the proceedings does not supply
grounds for recusal. Further, he notes that I officiated at Government counsel’s wedding
ceremony. As was stated on the record during an October 22, 2013 conference, I officiated at a
marriage ceremony at the Courthouse during regular business hours. “Recusal is required only
when the stated facts establish a personal relationship of such magnitude that the judge cannot be
impartial.” United States v. Olis, 571 F. Supp. 2d 777, 786 (S.D. Tex. 2008). Judges commonly
perform wedding ceremonies for members of the community, including the legal community,
and recusal on such grounds alone is not warranted. Cf. Carter v. Chappell, No. 06-1343, 2013
U.S. Dist. LEXIS 37480, at *480-82 (S.D. Cal. Mar. 18, 2013).
Defendant has not stated any facts that would suggest that such a personal relationship is
at issue here, and indeed it is not. Had counsel sought my recusal at any juncture on the grounds
that Defendant now suggests, the request would have been denied. "[T]here is as much
obligation upon a judge not to recuse herself when there is no occasion to do so as there is for her
to recuse when there is." Svindland v. Nemours Found., No. 5-417, 5-441, 2009 U.S. Dist.
LEXIS 74944, at *7 (E.D. Pa. Aug. 21, 2009). Defendant’s claim of ineffective assistance
regarding my recusal fails both prongs of Strickland.
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B. Attorney Cheselka
Finally, Defendant contends that his trial counsel, Mr. Cheselka, had an actual conflict of
interest. Mr. Cheselka expressed concern regarding the source of funds used to pay his fees, after
being questioned or “threatened” by the Government; Defendant states, however, that the funds
were not from an illegal source. The crux of the argument is that counsel must have been
conflicted, due to concerns about liability or forfeiture relating to his fee.
Conflict of interest questions, in this context, are analyzed under the Strickland standard,
under which prejudice is presumed if an “actual conflict” exists. United States v. Livingston,
425 F. Supp. 2d 554, 558 (D. Del. 2006). “To establish an ‘actual conflict of interest,’ a
defendant must show that his counsel advanced his own (or another client's) interest to the
detriment of the defendant.” United States v. Zhadanov, No. 93-240, 1998 U.S. Dist. LEXIS
13048, at *5 (E.D. Pa. Aug. 7, 1998). In other words, a defendant must show a specific and
legitimate strategy was available to defense counsel, and the strategy was not pursued because it
conflicted with counsel’s personal interest. Karamanos v. United States, No. 04-171, 2005 U.S.
Dist. LEXIS 25151, at *18 (D.N.J. Oct. 24, 2005). “[D]isputes regarding the choice of defense
strategy, while unfortunate, are not conflicts of interest.” Id. at *19.
In the first instance, the facts asserted by Defendant -- that Mr. Cheselka made an inquiry
or expressed concern to Defendant and Defendant’s family about the source of his fee -- does not
give rise to any inference that Mr. Cheselka’s self-interests were at odds with Defendant’s
interests. Moreover, a review of the trial transcripts reveals no suggestion that Mr. Cheselka, at
an point or with any of the decisions that Defendant dislikes, advanced his own interests to
Defendant’s detriment. Defendant suggests, for example, that perhaps fear affected Mr.
Cheselka’s objections at trial. Such speculation is insufficient to meet applicable standards,

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pertinent either to conflict of interest or Strickland. Defendant’s contentions regarding Mr.
Cheselka must be rejected.
V.

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 constitutional right." For the reasons
stated supra, Defendant has not made the required showing. Therefore, a certificate of
appealability will not issue.
CONCLUSION
In conclusion, Defendant’s Motion will be denied, and no certificate of appealability shall
issue. The crux of his Motion is his palpable frustration that, in his words, “[t]hroughout it all
[his] trial strategy was never followed….” However upsetting the course of events for
Defendant, he has not demonstrated a fundamental defect or omission constituting a miscarriage
of justice, or that was inconsistent with the rudimentary demands of fair procedure. To the
contrary, in a difficult and lengthy proceeding, Defendant’s constitutional rights were effectively
observed and preserved by counsel and this Court. An appropriate Order follows.
BY THE COURT:

___________________________
Donetta W. Ambrose
Senior Judge, U.S. District Court
Dated: April 11, 2019

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
UNITED STATES

)
) CR 10-199
) CV 18-676

v.
DOMINIQUE JACKSON
ORDER
AND NOW, this 11th day of April, 2019, it is hereby ORDERED, ADJUDGED, and
DECREED that Defendant’s Motions to Vacate [739][741] are DENIED. No certificate of
appealability shall issue.

BY THE COURT:

___________________________
Donetta W. Ambrose
Senior Judge, U.S. District Court

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