The opinion of the court was delivered by: VAN ANTWERPEN
We have before us Mr. Blount's Motion Under § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. Petitioner, a former prison guard at the Lehigh County Prison in Allentown, was indicted by a grand jury for Conspiracy to Distribute Cocaine and Marijuana, Distribution of Marijuana Within 1000 Feet of a School Zone, and Distribution of Marijuana, in violation of 21 U.S.C. §§ 846, 860(a)(1), and 841(b)(1)(D) respectively. The government accused Mr. Blount of being part of a conspiracy headed by Charles Riddick Sr. aimed at smuggling drugs into the Lehigh County Prison.
On May 8, 1995, Petitioner pled guilty to Conspiracy to Distribute Cocaine and Marijuana, Distribution of Marijuana and Aiding and Abetting, and Distribution of Marijuana Within 1000 Feet of a School Zone, Aiding and Abetting.
we accepted the testimony of [co-defendants] Shannon Sicher and Nigel McFarlane which, in addition to the testimony at trial, detailed Officer Blount's extensive involvement in the conspiracy headed by the Riddicks. Both witnesses state that Officer Blount was known among the inmates for bringing drugs into the prison. Ms. Sicher testified that Officer Blount was the officer on duty when she had screen room visits with Mr. Riddick. Ms. Sicher also testified she slipped drugs under the door to the utility closet during those visits where other inmates would be waiting to receive them. Also at the November 30 hearing, Mr. McFarlane detailed Officer Blount's specific efforts to deliver drugs to him from outside the prison.
United States v. Blount, 940 F. Supp. 720, 725, aff'd United States v. Riddick, 100 F.3d 949 (3d Cir. 1996), cert. denied, U.S. , 117 S. Ct. 751 (1997).
At a final sentencing hearing on January 12, 1996, this court sentenced Mr. Blount to 121 months imprisonment.
Petitioner argues that he is entitled to either a new trial or, at the very least a resentencing hearing, for four reasons. Mr. Blount asserts that: (1) new evidence is available to prove that he was not a part of the Riddicks' conspiracy; (2) his counsel provided ineffective assistance at sentencing; (3) the court should grant the Petitioner a downward departure for acceptance of responsibility; and (4) the court should grant the Petitioner a downward departure under United States v. Koon, 518 U.S. 81, 135 L. Ed. 2d 392, 116 S. Ct. 2035 (1996)(approving district court's downward departure because defendant police officers were susceptible to violence in prison because of their profession and the intense media scrutiny of their case), and find that Petitioner's counsel was ineffective for not asking for this downward departure at sentencing. Unfortunately for Mr. Blount, none of his arguments survive close scrutiny of the facts of this case and the governing law.
Though Mr. Blount admits that he was involved with smuggling drugs into the Lehigh County prison, he denies ever being a part of the Riddicks' conspiracy. Mr. Blount claims that he instructed his attorney to subpoena the Riddicks to his sentencing hearing. Petitioner "was confident that their testimony would reflect that there was no connection between the drugs [Petitioner] brought into the prison and the drugs smuggled by the 'Riddicks'." Petitioner's Brief at 5. The former prison guard asserts that this testimony could have been given without the Riddicks jeopardizing themselves since "they would not be asked to testify as to their own involvement with smuggling, only that they never had any connection with Daniel Blount concerning smuggling drugs into the prison." Id. Petitioner argues that
testimony from the "Riddicks" would have been persuasive in that together they knew all that went on in their conspiracy; hence, [they] could with certainty attest that Blount was unconnected with them in any way. By virtue of the conspiracy he formed and directed for many years, it is plain that Riddick Senior is a persuasive man. They would have been even more so persuasive based on testimony possibly being against their penal interests.
According to Petitioner, his counsel refused to subpoena the Riddicks without interviewing them first. Since the Riddicks' attorneys would not permit such an interview, Mr. Blount's attorney refused to subpoena the Riddicks-- despite the wishes of the Petitioner. Id. at 6.
Mr. Blount's argument that he is entitled to either a new trial or resentencing based on new evidence must fail because he has not presented any evidence that this court may consider as new. The Third Circuit has held that five requirements must be met before a trial court may order a new trial due to newly discovered evidence:
(a) the evidence must be in fact newly discovered, i.e., discovered since trial;
(b) facts must be alleged from which the court may infer diligence on the part of the movant;
(c) the evidence relied on must not be merely cumulative or impeaching;
(d) it must be material to the issues involved; and
(e) it must be such, and of such nature, as that, on a new trial, the newly discovered evidence would probably produce an acquittal.
Government of the Virgin Islands v. Lima, 774 F.2d 1245, 1250 (3d Cir. 1985).
The majority of circuits have conclusively held that the requirement that evidence be discovered since trial is not met "simply by offering the post-trial testimony of a co-conspirator who refused to testify at trial." United States v. Dale, 301 U.S. App. D.C. 110, 991 F.2d 819, 839 (D.C. Cir.), cert. denied 510 U.S. 1030, 126 L. Ed. 2d 607, 114 S. Ct. 650 (1993); see also United States v. Freeman, 77 F.3d 812, 817 (5th Cir. 1996) ("When a defendant is aware of a codefendant's proposed testimony prior to trial, it cannot be deemed newly discovered"); United States v. Theodosopoulos, 48 F.3d 1438, 1448-50 (7th Cir.), cert. denied Ghanayem v. United States, 516 U.S. 871, 133 L. Ed. 2d 128, 116 S. Ct. 191 (1995) (unavailable evidence not newly discovered); United States v. Muldrow, 19 F.3d 1332, 1339 (10th Cir.), cert. denied, 513 U.S. 862, 130 L. Ed. 2d 110, 115 S. Ct. 175 (1994)(unavailable evidence not newly discovered); United States v. Reyes-Alvarado, 963 F.2d 1184, 1188 (9th Cir.), cert. denied Gonzalez-Ramirez v. United States, 506 U.S. 890 (1992)("The Ninth Circuit has adopted the view that when a defendant who has chosen not to testify subsequently comes forward to offer testimony exculpating a codefendant, the evidence is not 'newly discovered'")(internal quotation ...