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February 12, 1993


The opinion of the court was delivered by: POLLAK


 At issue today is defendant Alexander Moskovits' motion to vacate the judgment of his conviction and sentence pursuant to 28 U.S.C. § 2255. For the reasons that follow, I conclude that there has been no abuse of the writ and that an evidentiary hearing is required to resolve issues of material fact pertaining to the merits of defendant's petition.


 Procedural History

 In June of 1988, a jury found Moskovits guilty of conspiracy to distribute in excess of one kilogram of cocaine; four counts of possession with intent to distribute cocaine; five counts of causing interstate and foreign travel with intent to promote unlawful activity; and eight counts of unlawful use of a telephone to facilitate a drug conspiracy. On September 7, 1988, I sentenced Moskovits to a period of incarceration of seventeen years (divided between a mandatory minimum of ten years without parole on Count Eight, a possession count, and seven years on Count One, the conspiracy count). Moskovits appealed from the judgment of sentence, and, on April 13, 1989. The Third Circuit affirmed his conviction in an opinion not for publication. The Supreme Court denied certiorari on October 2, 1989.

 Approximately two weeks after the Supreme Court denied certiorari, Moskovits filed a pro se "Motion for Correction of Sentence Pursuant to Federal Rule of Criminal Procedure 35(a)." Therein, Moskovits argued, among other things, that his sentence on Count Eight had been improperly enhanced on the basis of a prior conviction in Mexico obtained without the assistance of defense counsel at critical stages of the proceedings. *fn1" Subsequently, James D. Crawford, Esq., entered his appearance for defendant and consideration of that motion was held in abeyance at Mr. Crawford's request. Thereafter, on November 28, 1990, William M. Kunstler, Esq., entered his appearance for defendant and filed a new motion styled as a "Motion Under 28 U.S.C. § 2255 and FRCRP 35(a) & (b)." That motion, which expressly incorporated the previous pro se Rule 35(a) motion, argued that defendant's trial counsel, Robert Simone, Esq., rendered constitutionally ineffective assistance of counsel by failing to argue to the court at sentencing that the Mexican conviction was obtained in violation of due process and therefore should not enhance Moskovits' sentence. The combined § 2255/Rule 35 motion requested a de novo sentencing hearing to evaluate what effect the Mexican conviction and ineffective assistance of counsel might have had upon the sentence.

 In a September 9, 1991 order, *fn2" I granted defendant's motion to vacate his sentence. *fn3" (The government's motion to reconsider that decision was denied on January 13, 1992.) A resentencing hearing was held on March 3, 1992, after which I imposed a five-year mandatory minimum on Count Eight, to be followed by ten further years of imprisonment (seven years on Count One and three years on Count Twenty) for an aggregate of fifteen years. On March 9, 1992, defendant filed a notice of appeal from the sentence, and, in an August 26, 1992 memorandum opinion, the March 3, 1992 sentence was affirmed. *fn4"

 Prior to the disposition of his appeal from the new sentence, defendant, now represented by Scott Srebnick, Esq., filed the instant § 2255 motion with this court. This motion seeks to vacate Moskovits' conviction on two related grounds: that (1) he was deprived of his constitutional right to testify when his trial counsel, Mr. Simone, wrongly assumed that the Mexican conviction was valid and advised Moskovits that if he chose to testify that conviction would more than likely be used for impeachment purposes, and (2) this advice constituted constitutionally deficient assistance of counsel. *fn5" In its response to the § 2255 motion, the government argues that the petition should be dismissed either as an abuse of the writ, or, on the merits, on the theory that Moskovits exercised a free choice in not testifying.


 Abuse of the Writ

 A determination as to whether the writ has been abused is "preliminary as well as collateral to a decision as to the sufficiency or merits of the allegation [of the petition] itself." Price v. Johnston, 334 U.S. 266, 287, 92 L. Ed. 1356, 68 S. Ct. 1049 (1948). In McCleskey v. Zant, U.S. ; 111 S. Ct. 1454 (1991), the Court decided that it may constitute abuse of the writ to raise in a second or subsequent federal petition a claim that the petitioner could have raised in a previous petition, regardless of whether the failure to raise it earlier stemmed from a deliberate choice. Relying on McCleskey, the government argues that defendant has abused the writ by including claims in the instant § 2255 motion that were not raised in Moskovits' previous § 2255/Rule 35 motion. Because in my view the prior motion should be regarded as a motion under former Rule 35, *fn6" and because there can be no abuse of the writ based on a failure to include in a Rule 35 motion claims that go to the validity of the conviction itself, there has been no abuse of the writ and it will be necessary to resolve defendant's claims on their merits.

 It is true that Moskovits, through Mr. Kunstler, has already filed a motion denominated, in part, as a § 2555 motion, and that the motion failed to include the claims raised in the instant motion challenging the validity of his underlying conviction. However, the motion submitted by Mr. Kunstler has to be viewed in context. Before Mr. Kunstler's motion, Moskovits had filed his own pro se motion to correct his sentence under former Rule 35(a)-- a motion that challenged the terms of his sentence by providing new information to the district court about the validity of the Mexican conviction. This is precisely what former Rule 35 was designed to do. See Fed. R. Crim. P. 35, advisory committee note (1983) (citation omitted) (describing the "underlying objective of rule 35" as "'giving every convicted defendant a second round before the sentencing judge, and [affording] the judge an opportunity to reconsider the sentence in the light of any further information about the defendant or the case which may have been presented to him in the interim'"). Similarly, the § 2255/Rule 35 motion submitted by Mr. Kunstler was itself confined to seeking a de novo sentencing hearing, not a new trial. Where a person in Moskovits' shoes (i.e., a person in custody for an offense committed prior to November 1, 1987) *fn7" desires to challenge the validity of his sentence on constitutional grounds, the remedies afforded by former Rule 35 and § 2255 overlap, see, e.g., Scarponi v. United States, 313 F.2d 950, 952 (10th Cir. 1963), and the petitioner would generally be indifferent as between reliance on the rule or the statute. *fn8"

  With an evident commitment to construing the title of documents liberally in the interest of justice, *fn9" the Court has viewed a petition brought under § 2255 as a Rule 35 motion in order to allow consideration of the merits of the claims. See Hill v. United States, 368 U.S. 424, 430, 7 L. Ed. 2d 417, 82 S. Ct. 468 (1962) (footnote omitted) ("It is suggested that although the petitioner denominated his motion as one brought under 28 U.S.C. § 2255 . . . we may consider it as a motion to correct an illegal sentence under Rule 35 of the Federal Rules of Criminal Procedure. This is correct."); see also Heflin v. United States, 358 U.S. 415, 3 L. Ed. 2d 407, 79 S. Ct. 451 (1959) (concurring opinion of Stewart, J., joined by four other Justices, treats a petition filed under § 2255 as a motion under former Rule 35, where relief was not available under § 2255, id. at 422; and cf. opinion of the Court, id. at 418); *fn10" see generally Andrews v. United States, 373 U.S. 334, 338, 10 L. Ed. 2d 383, 83 S. Ct. 1236 (1963) (citation omitted) ("'Adjudication upon the underlying merits of claims is not hampered by reliance upon the titles petitioners put upon their documents.'"); 3 Charles A. Wright, Federal Practice and Procedure § 583, at 392 (1982) (footnote omitted) ("The general principle in all [post-conviction matters] ought to be, and largely is, that errors in naming the rule or statute under which a defendant is proceeding should not be held against him and that if relief is available under any of these procedures it ought to be given."). Because the abuse-of-the-writ doctrine addresses only successive habeas petitions, a defendant is allowed to file a motion under former Rule 35 challenging the terms of his sentence and, thereafter, file a § 2255 petition. See, e.g., United States v. Grana, 864 F.2d 312, 313 (3d Cir. 1989); United States v. Gibbs, 813 F.2d 596, 603 (3d Cir.), cert. denied, 484 U.S. 822, 98 L. Ed. 2d 45, 108 S. Ct. 83 (1987). Further, because a former Rule 35 motion is not intended to attack the validity of the underlying conviction, the filing of such a motion does not result in a waiver or forfeiture of claims going to the validity of the conviction. See, e.g., United States v. Hamilton, 553 F.2d 63, 65 (10th Cir.), cert. denied, 434 U.S. 834, 54 L. Ed. 2d 96, 98 S. Ct. 122 (1977). *fn11" It would-- to echo the sentiments of former Chief Judge Gibbons, articulated in an analogous context-- "elevate form over substance" to preclude Moskovits from asserting the instant claims simply due to the label his attorney decided to attach to that motion, especially where there is reason to believe that defendant himself intended to file a former Rule 35 motion. *fn12" United States v. Flenory, 876 F.2d 10, 11 (3d Cir. 1989) (Gibbons, C.J.,) (deciding that where a motion brought under former Rule 35 might not bring relief under that rule, petitioner's motion should not be denied simply because he cited former Rule 35 rather than § 2255). Therefore, I regard the motion filed by Mr. Kunstler as brought under former Rule 35 and find that Moskovits has not abused the writ by raising the instant claims in his first petition that collaterally challenges the validity of his conviction. *fn13"


 The Petition's Allegations

 If the allegations of a habeas petition raise material issues of fact, the district court is required to hold an evidentiary hearing. United States v. Biberfeld, 957 F.2d 98, 102 (3d Cir. 1992). In my view, Moskovits' submissions raise sufficient doubts about the constitutional adequacy of his representation at trial as to warrant such a hearing.

 In deciding an ineffective assistance of counsel claim, *fn14" the appropriate questions are whether "counsel's representation fell below an objective standard of reasonableness," and, if so, whether there is a reasonable probability that "the deficient performance prejudiced the defense." *fn15" Strickland v. Washington, 466 U.S. 668, 687, 688, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). In ruling on defendant's prior challenge to his sentence, I took note of Mr. Simone's acknowledgement that he probably did not make any efforts to determine whether the Mexican conviction was valid and that he should have filed some type of motion to contest the validity of the Mexican conviction. I concluded that


Mr. Simone's failure to pursue [the issue of the validity of the Mexican conviction] by appropriate inquiry into the facts and research in the law, and translation of that inquiry and research into an appropriate motion . . . is a failure which is not compatible with minimal professional standards.

 784 F. Supp. at 186. This conclusion would seem to make it arguable that Mr. Simone may also have been ineffective within the meaning of the first Strickland prong in failing to pursue the issue of whether a Mexican conviction obtained without the assistance of counsel at critical phases could be used for impeachment purposes and, accordingly, advising Moskovits that, if he chose to testify, his Mexican conviction would more than likely be used for impeachment purposes. *fn16" Cf. United States v. Nino, 878 F.2d 101, 105 (3d Cir. 1989) (posing the question whether a counsel's failure to apprise defendant of the deportation consequences of a guilty plea constituted ineffective assistance of counsel). At the hearing, the government will have the opportunity to demonstrate why Mr. Simone's failure to give proper advice to Moskovits about the use of his Mexican conviction for impeachment purposes was more reasonable than Mr. Simone's failure to assess the validity of that conviction at the sentencing stage.

 To demonstrate a "reasonable probability" of prejudice, Moskovits, it would seem, must provide evidence sufficient to support two propositions: (1) that if Moskovits had known that he could not be impeached with a prior conviction obtained without the assistance of counsel at critical phases of the proceeding, it is reasonably probable that he would have chosen to testify; and (2) that without his trial testimony, his trial was rendered unfair and the verdict rendered suspect. As to the first proposition, Moskovits has submitted an affidavit from Mr. Simone stating that


I advised Mr. Moskovits that if he testified on his own behalf, that [the Mexican] conviction would more than likely be used for impeachment purposes.


I advised Mr. Moskovits that such evidence would have a great deal of affect [sic] on his credibility in front of the jury, and Mr. Moskovits took my advice and did not in fact testify in his own behalf.

 Defendant's Mem. in Sup., Exh. B, Affid. of Robert F. Simone. Moreover, defendant emphasized at both his original sentencing and his resentencing-- and reiterates in this petition-- that the decision not to testify was based on fear that his Mexican conviction would be revealed to the jury. See Defendant's Mem. in Sup. at 11. At the hearing, the government will have the opportunity to flesh out its counterargument that Moskovits did not testify for reasons other than fear of his Mexican conviction being disclosed to the jury.

 As for whether the result of the trial was fundamentally unfair or unreliable, Moskovits contends that various witnesses perjured themselves at trial and that his testimony could have belied their false statements. It seems to me a rare case in which a court can comfortably say that even though errors prevented defendant from testifying, the outcome of his trial was still fundamentally fair and the verdict not rendered suspect. See Luce v. United States, 469 U.S. 38, 42, 83 L. Ed. 2d 443, 105 S. Ct. 460 (1984) ("[An] appellate court [cannot] logically term 'harmless' an error that presumptively kept the defendant from testifying.") Still, a verdict with overwhelming record support is less likely to have been affected by errors, Strickland, 466 U.S. at 696, and the government will be expected to defend its proposition that the evidence of Moskovits' guilt was so overwhelming, and his proffered testimony so blatantly false, that the result of the case would surely have been no different had Moskovits testified.


 For the above reasons, I will order an evidentiary hearing on Moskovits' § 2255 petition with an eye toward deciding the unresolved issues noted above.

 An appropriate order follows.

 EDITOR'S NOTE: The following court-provided text does not appear at this cite in 815 F. Supp. 147.


 For the reasons given in the accompanying memorandum filed today, it is hereby ORDERED and DIRECTED that an evidentiary hearing on defendant Alexander Moskovits' § 2255 petition will take place on Friday, March 5, 1993 at 9:30 A.M. in Courtroom 16-B.

 Pollak, J.

 February 12, 1993

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