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U.S. v. PEREZ

July 31, 2001

UNITED STATES OF AMERICA,
V.
MIKE PEREZ.



The opinion of the court was delivered by: Hutton, District Judge.

  MEMORANDUM AND ORDER

Currently before the Court is the Movant Mike Perez's Supplement to His Previously Filed § 2255 Petition (Docket No. 502), the Government's Response to Movant's Petition for Relief Under 28 U.S.C. § 2255 (Docket No. 506), and the Defendant's Reply to Government's Response to Movant's Petition for Relief Under 28 U.S.C. § 2255 (Docket No. 516).

I. FACTUAL BACKGROUND

On May 3, 1994, Mike Perez (Petitioner) was indicted for conspiracy to distribute cocaine (Count 1), distribution of cocaine (Counts 2, 3, and 4), unlawful use of a telephone (Counts 7-21), conducting financial transactions involving proceeds of unlawful activity (Count 23), and criminal forfeiture (Count 24). Ultimately, the Petitioner was tried on Counts 1, 3, 10, 11, 14, 15, and 23 of the indictment in a jury trial commencing on May 6, 1996. On November 20, 1997, following a guilty verdict, a sentencing hearing was held. As a result, the Court sentenced the Petitioner to a term of imprisonment of 360 months, a five year term of supervised release, a fine of $5,000, and a special assessment of $350.

Following the imposition of sentence, the Petitioner filed an appeal of his conviction and sentence to the United States Court of Appeals for the Third Circuit. On October 26, 1998, the Judgment of the Court was affirmed. On October 4, 1999, Petitioner's Writ of Certiorari to the United States Supreme Court was denied. On January 10, 2000, the Supreme Court denied the Petitioner's request for a rehearing. As a result, the Petitioner filed a motion pursuant to 28 U.S.C. § 2255 raising thirteen grounds for relief.

II. DISCUSSION

A prisoner who is in custody pursuant to a sentence imposed by a federal court who believes "that the sentence was imposed in violation of the Constitution or laws of the United States, . . . or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255 (West 2001). The district court is given discretion in determining whether to hold an evidentiary hearing on a prisoner's motion under section 2255. See Government of the Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989). In exercising that discretion, the court must determine whether the petitioner's claims, if proven, would entitle him to relief and then consider whether an evidentiary hearing is needed to determine the truth of the allegations. See Government of the Virgin Islands v. Weatherwax, 20 F.3d 572, 574 (3d Cir. 1994).

Prior to addressing the merits of the petitioner's claims, the court should consider if they are procedurally barred. See United States v. Essig, 10 F.3d 968, 976 (3d Cir. 1993). A petitioner under section 2255 is procedurally barred from bringing any claims on collateral review which could have been, but were not, raised on direct review. See Bousley v. United States, 523 U.S. 614, 621, 118 S.Ct. 1604, 1610, 140 L.Ed.2d 828 (1998) (exception to procedural default rule for claims that could not be presented without further factual development); United States v. Biberfeld, 957 F.2d 98, 104 (3d Cir. 1992). Once claims have been procedurally defaulted, the petitioner can only overcome the procedural bar by showing "cause" for the default and "prejudice" from the alleged error. See Biberfeld, 957 F.2d at 104 (stating "cause and prejudice" standard). In this context, "cause" consists of "something external to the petitioner, something that cannot be fairly attributable to him," and "prejudice" means that the alleged error "worked to [the petitioner's] actual and substantial disadvantage." See Coleman v. Thompson, 501 U.S. 722, 753, 111 S.Ct. 2546, 2566, 115 L.Ed.2d 640 (1991) (defining "cause"); United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 1595, 71 L.Ed.2d 816 (1982) (defining "prejudice").

The Petitioner's first claim asserts that his counsel was ineffective for failing to raise the remaining twelve claims at trial or on appeal in violation of his sixth amendment right to reasonably effective assistance of counsel. See U.S. Const. amend. VI. Normally, claims that were never raised on direct appeal are considered barred from collateral review. However, because an ineffective assistance of counsel claim often relies on matters outside of the factual record on appeal and the defendant is often represented on appeal by the same counsel as at trial, courts have held that "an ineffective assistance claim which was not raised on direct appeal is not deemed procedurally defaulted for purposes of habeas review." United States v. Garth, 188 F.3d 99, 107 n. 11 (3d Cir. 1999) (citing United States v. DeRewal, 10 F.3d 100, 103 (3d Cir. 1993)). In addition, the Petitioner raises twelve independent grounds for relief. See Pet'r Supp. to § 2255 Mot. at 1.

Other than the claims of ineffective assistance of counsel, the Petitioner does not argue that cause and prejudice exists to excuse any procedural default. A claim of ineffective assistance of counsel is governed by the standard set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).

In Strickland, the Supreme Court stated that an ineffective assistance of counsel claim requires the defendant to show that their counsel's performance was defective and that the deficient performance prejudiced the defense. See id., 104 S.Ct. at 2064. Counsel's performance will be measured against a standard of reasonableness. In analyzing that performance, the court should make "every effort . . . to eliminate the distorting effects of hindsight," and determine whether "in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." See id. at 690, 104 S.Ct. at 2066. Once it is determined that counsel's performance was deficient, the court must determine if "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Id. at 694, 104 S.Ct. at 2068. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. at 2068. Only after both prongs of the analysis have been, met will the petitioner have asserted a successful ineffective assistance of counsel claim. Because the Petitioner has asserted ineffective assistance for failure to raise the grounds for relief presented in his motion, every ground can avoid the procedural bar that accompanies a failure to argue an issue on direct appeal if the Strickland test is satisfied. See Pet'r Supp. to § 2255 Mot. at 1.

A. Duty to Investigate (Grounds 2 and 3)*fn1

"[A]n attorney must investigate a case, when he has cause to do so, in order to provide minimally competent professional representation." United States v. Kauffman, 109 F.3d 186, 190 (3d Cir. 1997). In the instant case, there is no evidence as to the extent of the investigation conducted by trial counsel. In addition, it is uncertain whether there was any cause to conduct an investigation into the propriety of the wiretaps. However, there is extensive evidence in the record of Petitioner's counsel's knowledge of the process the authorities went through in obtaining a warrant on the Petitioner's cellular phone.

FBI Special Agent O'Neill testified at the trial and discussed the obtaining of authorizations for wiretaps. On cross-examination, Special Agent O'Neill testified that the FBI obtained authorization for a wiretap on the phone of Felix Perez based upon information that Felix Perez was a drug dealer as well as pen register information and possibly surveillances. See May 8, 1996 Tr. Transcript at 75:2-77:1. Special Agent O'Neill then went on to testify that in the course of monitoring the wiretap on Felix Perez's phone, the authorities intercepted a drug-related conversation involving the Petitioner. See May 8, 1996 Tr. Transcript at 77:3-78:4. After the interception of the conversation, a confidential informant, Roberto Gonzalez, identified the voice in the phone conversation as that of Mike Perez. See May 8, 1996 Tr. Transcript at 77:3-78:4. Armed with the taped conversation and the voice identification, the FBI received authorization to place a pen register on the telephone of the Petitioner. See May 8, 1996 Tr. Transcript at 81:8-82-7. An examination of the pen register revealed that three of the prior intercepted drug-related phone conversations were actually made from the cellular phone which belonged to the Petitioner. See May 8, 1996 Tr. Transcript at 86:1-7. After receiving information from two cooperating witnesses that the cellular phone was that of the Petitioner, the FBI received authorization from a judge to place a wiretap on the Petitioner's cellular phone. See May 8, ...


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