United States District Court, Eastern District of Pennsylvania
December 19, 2000
UNITED STATES OF AMERICA
The opinion of the court was delivered by: Bartle, District Judge.
Before the court is the pro se motion of Terrence Gibbs
("Gibbs") under 28 U.S.C. § 2255 to vacate, set aside, or correct
sentence. While Gibbs raises a number of issues, the significant
question presented is whether the Supreme Court's recent decision
in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147
L.Ed.2d 435 (2000), is to be given retroactive application on
Gibbs, along with 16 other defendants, was indicted for crimes
associated with a violent drug organization which sold cocaine.
At trial the Government presented evidence that he was one of the
ringleaders and organizers. On May 12, 1997 a jury found him
guilty of conspiracy to distribute cocaine, bribery of a public
official, operating a continuing criminal enterprise, use of a
telephone to facilitate a drug felony, and money laundering
conspiracy. Gibbs was subsequently sentenced to life in prison on
the conspiracy count, 15 years on the bribery count, 4 years for
each of 15 telephone counts, and 20 years for both money
laundering conspiracy counts. His conviction and sentences were
affirmed by the Court of Appeals, see United States v. Gibbs,
190 F.3d 188 (3d Cir. 1999), and the Supreme Court thereafter
denied certiorari. See Gibbs v. United States, 528 U.S. 1131,
120 S.Ct. 969, 145 L.Ed.2d 840 (January 18, 2000).*fn1
Gibbs' timely collateral attack challenges his life sentence
imposed pursuant to his conviction for conspiracy to distribute
cocaine in violation of 21 U.S.C. § 841(a)(1)*fn2 and §
846.*fn3 Gibbs relies on Apprendi v.
New Jersey, in which the Supreme Court invalidated a New Jersey
"hate crime" law. That law authorized the trial judge to enhance
a defendant's sentence for a crime if the judge found by a
preponderance of the evidence that the defendant had acted with
the purpose of intimidating an individual due to that
individual's race, gender, handicap, religion, sexual
orientation, or ethnicity. See Apprendi, 120 S.Ct. at 2351. The
Supreme Court held that "[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt." Id. at 2362-63.
Gibb was tried before Apprendi was handed down. At the close
of the evidence the court instructed the jurors that they need
not decide the actual or exact amount of drugs for which he was
responsible in order to find him guilty of conspiracy to
distribute cocaine. In accordance with the law as it then
existed, this court determined the drug quantity at the
sentencing hearing and did so by a preponderance of the evidence.
See United States v. Gibbs, 813 F.2d 596, 600 (3d Cir. 1987);
see also United States v. Angle, 230 F.3d 113 (4th Cir. 2000);
United States v. Thomas, 204 F.3d 381, 384 (2d Cir. 2000). We
found that Gibbs was responsible for more than 150 kilograms of
cocaine and more than 1.5 kilograms of crack cocaine.
Consequently, he was sentenced under § 841(b)(1)(A)*fn4 which
provides that a violation of § 841 involving 5 kilograms or more
of cocaine is punishable by a term of imprisonment ranging from
10 years to life. Without a finding of a specific drug quantity,
the court would have been obligated to impose Gibbs' sentence
under § 841(b)(1)(C).*fn5 This subsection sets forth a maximum
term of 20 years imprisonment absent death or serious bodily
injury. Gibbs argues that since the finding of drug quantity at
his sentencing resulted in a sentence greater than the 20 year
statutory maximum, both his due process rights under the Fifth
Amendment and his right to a jury trial under the Sixth Amendment
were violated and his life sentence on Count I should therefore
As a result of Apprendi it is clear that if Gibbs were being
tried today the Government would be compelled to prove the drug
quantity to a jury beyond a reasonable doubt in order for the
court to be able to impose a sentence of imprisonment greater
than the statutory maximum of 20 years set forth in §
841(b)(1)(C).*fn6 Gibbs, of course, is not being tried today. He
is before this court on collateral review after his conviction
and sentence were affirmed on direct appeal. It has long been
recognized that the purpose of collateral review is limited. "It
is not designed as a substitute for direct review." Mackey v.
United States, 401 U.S. 667, 682, 91 S.Ct. 1160, 28 L.Ed.2d 404
(1971) (Harlan, J., concurring in judgments in part and
dissenting in part). The narrowness of the habeas remedy is based
on the importance of finality in our criminal justice system. As
of the Supreme Court explained in Teague v. Lane,
"[a]pplication of constitutional rules not in existence at the
time a conviction became final seriously undermines the principle
of finality which is essential to the operation of our criminal
justice system. Without finality, the criminal law is deprived of
much of its deterrent effect." 489 U.S. 288, 309, 109 S.Ct. 1060,
103 L.Ed.2d 334 (1989) (plurality opinion). In keeping with the
limited purpose of the writ of habeas corpus, the Supreme Court
has established a very strict test for determining whether a
recently announced change in the law is to be applied
retroactively to cases on collateral review.
The test was first articulated by a plurality of the Court in
Teague, but it has now been adopted by a majority of the
justices. See O'Dell v. Netherland, 521 U.S. 151, 156-57, 117
S.Ct. 1969, 138 L.Ed.2d 351 (1997); Caspari v. Bohlen,
510 U.S. 383, 389-90, 114 S.Ct. 948, 127 L.Ed.2d 236 (1994). A new rule is
not applicable to cases which have become final before the
announcement of the new rule unless it falls within one of two
First, a new rule should be applied retroactively if
it places "certain kinds of primary, private
individual conduct beyond the power of the criminal
lawmaking authority to proscribe." Second, a new rule
should be applied retroactively if it requires the
observance of "those procedures that . . . are
implicit in the concept of ordered liberty."
Teague, 489 U.S. at 307, 109 S.Ct. 1060 (quoting Mackey, 401
U.S. at 692-93, 91 S.Ct. 1160) (some internal quotations
omitted). In subsequent cases the Court enunciated a three-step
analysis under the Teague test. See O'Dell, 521 U.S. at 156,
117 S.Ct. 1969; Caspari, 510 U.S. at 390, 114 S.Ct. 948. First,
the date on which the defendant's conviction became final must be
ascertained. Second, the habeas court must decide whether the
holding in question constitutes a new rule. Finally, if the rule
is new, we must determine whether it falls "within one of the two
narrow exceptions to the Teague doctrine." O'Dell, 521 U.S.
at 156-57, 117 S.Ct. 1969.
Gibbs conviction became final on January 18, 2000, the day the
Supreme Court denied certiorari. This was prior to the issuance
of the Apprendi decision on June 26, 2000. Thus, we must decide
if it announces a new rule. A rule is new if it "breaks new
ground or imposes a new obligation on the States or the Federal
Government," or if the result of the rule "was not dictated by
precedent existing at the time the defendant's conviction became
final." Teague, 489 U.S. at 301, 109 S.Ct. 1060. The holding in
Apprendi was not dictated by precedent and clearly imposes a
new obligation on the Government. It requires it to prove certain
facts to a jury beyond a reasonable doubt when previously it
needed only to prove such facts to a judge at sentencing by a
preponderance of the evidence. We conclude that Apprendi
announces a new rule as defined under Teague. Other courts
addressing the issue are in accord. See Jones v. Smith,
231 F.3d 1227 (9th Cir. 2000); United States v. Pittman,
120 F. Supp.2d 1263 (D.Or. 2000).
Our inquiry now turns to the question whether the new rule
announced in Apprendi falls within one of the two Teague
exceptions so as to be applied retroactively. The first exception
relates to a situation rendering certain acts non-criminal and is
not relevant here. Apprendi therefore cannot affect Gibbs' case
unless its holding is a "watershed rule of criminal procedure"
that is "implicit in the concept of ordered liberty." Teague,
489 U.S. at 311, 109 S.Ct. 1060 (internal quotations omitted).
The "precise contours of this exception . . . [are] difficult to
discern." Saffle v. Parks, 494 U.S. 484, 495, 110 S.Ct. 1257,
108 L.Ed.2d 415 (1990). For a rule to qualify under the second
exception "the procedure at issue must implicate the fundamental
fairness of the trial," and be such that without it "the
likelihood of an accurate conviction is seriously diminished."
Teague, 489 U.S. at 312, 313, 109 S.Ct. 1060. However, "[a]
rule that qualifies under this exception must not only improve
accuracy, but also alter our understanding of the bedrock
procedural elements essential to the fairness of a proceeding."
Sawyer v. Smith, 497 U.S. 227, 242, 110 S.Ct. 2822, 111 L.Ed.2d
193 (1990) (internal quotations omitted). The Supreme Court has
repeatedly pointed to Gideon v. Wainwright, 372 U.S. 335, 83
S.Ct. 792, 9 L.Ed.2d 799 (1963), as illustrative. There the Court
held that "a defendant has the right to be represented by counsel
in all criminal trials for serious offenses." Saffle, 494 U.S.
at 495, 110 S.Ct. 1257.
Regardless of the difficulty of defining the boundaries of the
second exception, there are not "many such components of basic
due process . . . yet to emerge" that would fall within it.
Teague, 489 U.S. at 313, 109 S.Ct. 1060. Supreme Court
decisions since Teague have borne this out. It has yet to
invoke the second exception. The Court has repeatedly held that
the new rules before it do not fit within the second exception
for watershed rules of criminal procedure.*fn7 For example, in
O'Dell the Court declined to apply to actions already final the
new rule announced in Simmons v. South Carolina, 512 U.S. 154,
114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), that "a capital defendant
must be permitted to inform his sentencing jury that he is parole
ineligible if the prosecution argues that he presents a future
danger." O'Dell, 521 U.S. at 153, 117 S.Ct. 1969. The Court
rejected the argument that the rule was "on par" with Gideon,
holding that "the narrow right of rebuttal that Simmons affords
to defendants in a limited class of capital cases has hardly
`alter[ed] our understanding of the bedrock procedural elements
essential to the fairness of a proceeding.'" Id. at 167, 114
S.Ct. 2187 (quoting Sawyer, 497 U.S. at 242, 110 S.Ct. 2822)
(some internal quotations omitted). Similarly, in Sawyer the
Court held that another new rule was not retroactive. There the
new rule, announced in Caldwell v. Mississippi, 472 U.S. 320,
105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), prohibited the imposition
of a death sentence by a jury that "has been led to the false
belief that the responsibility for determining the
appropriateness of the defendant's capital sentence rests
elsewhere." Sawyer, 497 U.S. at 233, 110 S.Ct. 2822. The Court
reasoned that while the Caldwell holding did enhance the
accuracy of a capital sentencing, it did not come within
Teague's second exception since it was simply "added to an
existing guarantee of due process protection against fundamental
unfairness." Id. at 244, 110 S.Ct. 2822.
Despite the narrowness of the second Teague exception,
courts, other than the Supreme Court, have found it to apply on
occasion. Most notably, several circuits have retroactively
applied the rule of Cage v. Louisiana, 498 U.S. 39, 111 S.Ct.
328, 112 L.Ed.2d 339 (1990) (per curiam), which held that a jury
charge that incorrectly lowered the reasonable doubt standard
violated the Due Process Clause of the Fourteenth Amendment.
See, e.g., Humphrey v. Cain, 138 F.3d 552, 552 (5th Cir. 1998)
(en banc); Adams v. Aiken, 41 F.3d 175, 178-79 (4th Cir. 1994);
Nutter v. White, 39 F.3d 1154, 1158 (11th Cir. 1994). Our Court
of Appeals recently reached the same conclusion in West v.
Vaughn, 204 F.3d 53 (3d Cir. 2000).
Applying the Teague test, the Court of Appeals first
acknowledged that Cage announced a new rule. See id. at 60 n.
6. It then concentrated its analysis on whether the rule fit
within the second Teague exception. It relied on Sullivan v.
Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993),
which decided that a defective reasonable doubt instruction such
as the one in Cage constituted a structural error to which
harmless-error analysis was inapplicable. West, 204 F.3d at 55;
Sullivan, 508 U.S. at 280, 113 S.Ct. 2078. Since the incorrect
reasonable doubt instruction at issue "vitiate[d] all the jury's
findings," there was no jury verdict upon which to conduct
harmless-error review. Sullivan, 508 U.S. at 281, 113 S.Ct.
2078. Applying Sullivan to the habeas petition before it, our
Court of Appeals in West reasoned that "[a] `structural' error
so severe that it resists harmless error analysis because it
effectively nullifies the guilty verdict, as Sullivan described
a Cage error to be . . . must necessarily implicate the
fundamental fairness of the proceeding in a manner that calls the
accuracy of its outcome into doubt." West, 204 F.3d at 61
(internal citation omitted). West thus held that the new rule
announced in Cage applied retroactively to cases on collateral
Following the analysis in West, the new rule announced in
Apprendi does not represent a watershed rule of criminal
procedure that should be applied retroactively on collateral
review unless it corrects a previous structural error in the
trial process. If it is the type of constitutional error amenable
to harmless-error analysis, retroactive application is not
The Supreme Court's decision in Neder v. United States,
527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), in our view is
dispositive. The high Court accepted the case after affirmance of
Neder's conviction by the Eleventh Circuit. Neder had been tried
and convicted for violating various federal tax, mail, and wire
fraud statutes. At his trial the element of materiality was not
submitted to the jury. Rather, the judge made a finding that the
evidence established materiality. After Neder's trial and before
his appeal to the Eleventh Circuit, the Supreme Court held in
United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132
L.Ed.2d 444 (1995), that it was error not to submit the issue of
materiality to the jury and affirmed the reversal of Gaudin's
conviction. Neder argued that his conviction should likewise be
reversed. The Supreme Court disagreed. It did acknowledge that
the jury had not rendered a "complete verdict" because the error
in the jury instruction prevented it from making a finding of
materiality. Neder, 527 U.S. at 11, 119 S.Ct. 1827.
Nonetheless, the Court "recognized that `most constitutional
errors can be harmless'" and proceeded to apply a harmless-error
analysis. Id. at 8, 119 S.Ct. 1827 (quoting Arizona v.
Fulminante, 499 U.S. 279, 306, 111 S.Ct. 1246, 113 L.Ed.2d 302
(1991)). Although the Court noted that "[i]t would not be
illogical to extend the reasoning of Sullivan from a defective
`reasonable doubt' instruction to a failure to instruct on an
element of the crime," it instead followed prior precedent. Id.
at 15, 119 S.Ct. 1827. It explained it "often applied
harmless-error analysis to cases involving improper instructions
on a single element of the offense." Id. at 9, 119 S.Ct. 1827.
Since the error at issue in Neder "did not `vitiat[e] all of
the jury's findings'" as the faulty reasonable doubt instruction
in Cage and Sullivan had done, the Court concluded that a
structural error had not occurred, and it affirmed Neder's
conviction. Id. at 11, 119 S.Ct. 1827 (quoting Sullivan, 508
U.S. at 282, 113 S.Ct. 2078 (Rehnquist, C.J., concurring)). The
The error at issue here — a jury instruction that
omits an element of the offense — differs markedly
from the constitutional violations we have found to
defy harmless-error review. Those cases, we have
explained, contain a `defect affecting the framework
within which the trial proceeds, rather than simply
an error in the trial process itself. . . .' Unlike
such defects as the complete deprivation of counsel
or trial before a biased judge, an instruction that
omits an element of the offense does not necessarily
render a criminal trial fundamentally unfair or an
unreliable vehicle for determining guilt or
Id. at 8-9, 119 S.Ct. 1827 (quoting Fulminante, 499 U.S. at
310, 111 S.Ct. 1246).
Thus, under Neder, the lack of a jury instruction on a single
element of a crime that results in a judge rather than a jury
determining that element is amenable to harmless-error analysis
because such an error is not structural.*fn8
Apprendi, like Neder and unlike Sullivan, involves a
judicial determination of only a single element of a crime.
Gibbs' case is similar to Apprendi and Neder. The jury found
beyond a reasonable doubt that he was guilty of conspiracy to
distribute cocaine. The only element the court found was drug
quantity, after the jury had rendered its guilty verdict. One
circuit court has even stated that "[t]he error in Neder is in
material respects indistinguishable from error under Apprendi."
United States v. Swatzie, 228 F.3d 1278, 1283 (11th Cir. 2000).
We concur. The lack of a jury finding as to drug quantity and the
lack of such a finding made beyond a reasonable doubt does not
call into question the validity of a verdict in the way a faulty
reasonable doubt instruction does. What happened here did not
infect the entire result. The role of the court in determining
drug quantity did not render Gibbs' trial "fundamentally unfair
or an unreliable vehicle for determining guilt or innocence."
Neder, 527 U.S. at 9, 119 S.Ct. 1827. The evidence presented
against Gibbs, a leader of a violent drug conspiracy, was
overwhelming. There is simply no basis to believe that the
"likelihood of an accurate conviction is seriously diminished" by
not applying Apprendi retroactively. Teague, 489 U.S. at 313,
109 S.Ct. 1060.
Any constitutional defect in this case, which was not a
recognized defect at the time of the trial or the direct appeal,
is not structural. It clearly does not rise, for example, to the
level of error created by lack of counsel or a biased judge. See
Neder, 527 U.S. at 9, 119 S.Ct. 1827. Gibbs is before us on
collateral review. The hurdle he must overcome is high. In
Wright v. West, 505 U.S. 277, 112 S.Ct. 2482, 120 L.Ed.2d 225
(1992), the Supreme Court explained that "habeas corpus `is not
intended . . . as a device for reviewing the merits of guilt
determinations at criminal trials,' but only `to guard against
extreme malfunctions in the . . . criminal justice systems.'"
Id. at 292, 112 S.Ct. 2482 (quoting Jackson v. Virginia,
443 U.S. 307, 332 n. 5, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)
(Stevens, J., concurring in judgment)). What occurred here was
not an "extreme malfunction" of the criminal justice system.*fn9
In sum, Apprendi, while announcing a new rule, does not
involve a structural error or a "watershed rule of criminal
procedure" that "implicate[s] the fundamental fairness of the
trial." Teague, 489
U.S. at 311, 312, 109 S.Ct. 1060. Because "Apprendi did not
recognize or create a structural error," Nealy, 232 F.3d 825,
829, Apprendi does not apply retroactively to cases on
collateral review under the precedents of Neder, Sullivan, and
West.*fn10 Accordingly, we will not overturn Gibbs' life
sentence for conspiracy to distribute cocaine.
Gibbs also contends that his trial and appellate counsel were
ineffective under Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to establish a claim
of ineffective assistance of counsel that rises to the level of
constitutional error, Gibbs must prove: (1) counsel's performance
"fell below an objective standard of reasonableness," that is,
that he "made errors so serious that counsel was not functioning
as the `counsel' guaranteed the defendant by the Sixth
Amendment;" and (2) the deficient representation prejudiced
movant, that is, that "counsel's errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is
reliable." Id. at 687-88, 104 S.Ct. 2052. In order to make out
prejudice under Strickland, Gibbs must show that there is "a
reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine
confidence in the outcome." Id. at 694, 104 S.Ct. 2052.
Gibbs claims that his trial counsel was ineffective for failing
to move to strike several jurors for cause. His claim first
centers on Juror No. 298 and her response to a voir dire question
regarding firearms and the possession of firearms. She revealed
that she had been shot in 1956 and lost her right leg as a result
and that her son had been killed in a drive-by shooting three
years prior to the trial. See Tr., Apr. 29, 1997 at 7-9,
United States v. Coleman (E.D.Pa. 1996) (No. 96-539). Based on
these experiences, Juror No. 298 admitted that she had strong
feelings against firearms. Id. The court then inquired if she
could fairly and impartially try the case based on the evidence
produced and the law that the court would outline. She responded
unequivocally that she could. Id. None of the six defense
attorneys present moved to strike her for cause or exercised a
peremptory challenge, and she was subsequently seated on the
jury. Id. at 41. Gibbs asserts that since evidence of his
involvement in a drive-by shooting was presented at trial Juror
No. 298 should have been removed by his trial counsel. See Tr.,
May 6, 1997 at 118-23, 127-30.
Gibbs also argues that his trial counsel should have moved to
strike Juror Nos. 199, 308, 58, and 153 for the following
reasons: Juror No. 199 was robbed a year prior to the trial and
has a cousin who is an FBI agent; Juror No. 308's son is a police
officer in Lancaster County, Pennsylvania; Juror No. 58 has a
cousin who was arrested for drugs; Juror No. 153's mother was
jumped and assaulted a year before trial and her car was
during the trial.*fn11 See Tr., Apr. 28, 1997 at 31, 34, 52,
68; Tr., May 12, 1997 at 10-12.
Counsel's failure to seek to remove a prospective juror during
voir dire can only amount to ineffective assistance of counsel if
the decision to do so falls "below an objective standard of
reasonableness." Strickland, 466 U.S. at 687, 104 S.Ct. 2052.
There are no strict guidelines for establishing this objective
standard, but the Court directed in Strickland that
"[p]revailing norms of practice as reflected in American Bar
Association standards and the like, e.g., ABA Standards for
Criminal Justice . . . are guides to determining what is
reasonable. . . ." Id. at 688, 104 S.Ct. 2052. As our Court of
Appeals has pointed out, "[t]he ABA Standards for Criminal
Justice recognize as being among the nonfundamental issues
reserved for counsel's judgment `whether and how to conduct
cross-examinations, what jurors to accept or strike, [and] what
trial motions should be made. . . .'" Government of the Virgin
Islands v. Weatherwax, 77 F.3d 1425, 1434 (3d Cir. 1996)
(emphasis added) (quoting ABA Standards § 4-5.2(b)); see
United States v. Dent, No. Civ. A. 99-2878, 1999 WL 717114, at
*6 (E.D.Pa. Sept. 10, 1999). Thus, the decision whether to move
to strike a potential juror for cause belongs to trial counsel.
If "that decision has a rational basis, a court is without
authority to second-guess counsel's judgment call." Weatherwax,
77 F.3d at 1436.
The affidavit of Gibbs' attorney states:
The Court's voir dire of Juror No. 298 disclosed no
factual basis to support a motion to strike Juror No.
298 for cause on the ground that she was biased or
would not be impartial, under existing law.
Similarly, the Court's voir dire of Jurors Nos. 199,
158[sic], 153, 58, 308 disclosed no factual basis to
support a motion to strike for cause on the grounds
that these jurors were biased or would not be
impartial, under existing law.
Caglia Aff. ¶ 4. Given the "highly deferential" scrutiny required
by Strickland we do not see how a decision not to seek the
removal of Jurors Nos. 298, 199, 308, 58, and 153 falls below an
objective standard of reasonableness.
Gibbs contends that the jurors at issue, particularly Juror No.
298, should have been viewed as presumptively biased under the
implied bias doctrine based upon their life experiences. He
relies on the concurrence by Justice O'Connor in Smith v.
Phillips, 455 U.S. 209, 221, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982)
to make this argument. His reliance is misplaced. The majority in
Phillips refused to apply the implied bias doctrine, holding
that the proper remedy for an allegation of juror partiality is a
hearing at which the defendant can attempt to prove actual bias.
See id. at 215, 102 S.Ct. 940. In her concurrence, Justice
O'Connor noted that the Court "[did] not foreclose the use of
`implied bias' in appropriate circumstances." Id. at 221, 102
S.Ct. 940 (O'Connor, J., concurring). She went on to explain,
however, that it would apply only in "extreme situations," such
as where the juror at issue is employed by the prosecutor or a
close relative of one of the participants in the trial. Id. at
222, 102 S.Ct. 940.
The situation in Gibbs' case is clearly not "extreme."
Unfortunately, it is not uncommon for members of our jury panels
to have been victims of crime or have relatives and close friends
who have been victims. We refuse to apply the implied bias
doctrine simply because a juror has faced such adversities, or is
of a law enforcement agent or someone arrested for drug
possession. Being the victim of a crime is not alone grounds to
remove a juror. See Jacobs v. Redman, 616 F.2d 1251, 1256-57
(3d Cir. 1980). Neither is having a relative employed by a law
enforcement agency or involved in illegal drugs. See United
States v. Morales, 185 F.3d 74, 83-83 (2d Cir. 1999), cert.
denied, ___ U.S. ___, 120 S.Ct. 1282, 146 L.Ed.2d 229 (2000);
United States v. Polan, 970 F.2d 1280, 1284 (3d Cir. 1992). If
a juror is questioned regarding potential bias and the court is
convinced, as it was here, that he or she will be fair and
impartial there is no need for removal.
We find no merit in Gibbs' implied bias argument. His counsel's
conduct in failing to move to strike certain jurors did not fall
below an objective standard of reasonableness, and his
ineffective assistance of counsel claim on this ground must
Gibbs also claims his trial counsel was ineffective because he
failed to request that an alternate juror replace a juror who was
allegedly excused prior to deliberations. He contends that the
trial transcript reveals that only 11 members of the jury were
polled after the verdict and therefore that only 11 jurors
deliberated. He maintains that Juror No. 51 was somehow absent.
A simple explanation exists. Juror No. 51 was the foreperson.
She read the verdict aloud and signed the verdict sheet. Since
she had already announced her vote, polling her again would have
been redundant. Court records also demonstrate that she was
present and reimbursed for her service on May 12, 1997, the day
of the verdict. Furthermore, this court takes judicial notice of
the fact that 12 jurors were in the courtroom at all times during
the trial and specifically that 12 jurors returned a guilty
verdict. See, e.g., Tanner v. United States, 483 U.S. 107,
125-26, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987); Government of the
Virgin Islands v. Nicholas, 759 F.2d 1073, 1077 (3d Cir. 1985).
Gibbs trial counsel concurs, stating under oath that "[t]he jury
that retired to deliberate was composed of twelve jurors, and
twelve jurors returned the verdict in open court." Caglia Aff. ¶
5. In short, Gibbs is plainly wrong about the number of jurors
present and polled. Consequently, his counsel was not ineffective
in failing to seek the replacement of a non-absent juror.
Gibbs raises several other ineffective assistance of counsel
claims that are completely meritless and require no discussion.
He has failed to show that the performance of his trial or
appellate counsel was ineffective under Strickland.
In conclusion, the motion of Terrence Gibbs under
28 U.S.C. § 2255 to vacate, set aside, or correct sentence will be denied.