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September 13, 2001


The opinion of the court was delivered by: Franklin S. Van Antwerpen, United States District Judge.


• Introduction

This habeas corpus matter began with a letter we received from the defendant dated March 17, 1999 and by Order of March 31, 1999, we deemed the letter to be an application for habeas corpus relief and appointed Mark S. Refowich, Esquire, as CJA counsel to represent the defendant. On June 21, 1999, we granted the motion of Mr. Refowich to withdraw and appointed Robert J. Levant, Esquire, as CJA counsel to represent the Defendant in his habeas corpus proceeding. On July 9, 1999, we granted Mr. Levant's motion for a continuance and issued an order giving him until December 6, 1999 to supersede defendant's initial habeas corpus motion with a new habeas corpus motion. We expressly noted on said order that "no further extensions will be permitted." This deadline was further extended to March 10, 2000 by Order of Court dated November 20, 1999. On March 1, 2000, the defense again sought an extension of time to file a habeas corpus motion, and we denied this motion with an order dated March 3, 2000. On the deadline, March 10, 2000, the defense filed a new habeas corpus motion. That same day, the Defendant filed a last minute motion to remove Mr. Levant as CJA counsel and proceed pro se. On April 5, 2000 we partially granted Mr. Levant's request to withdraw as counsel and the Defendant's request to proceed pro se. Finding Defendant to pose a high security risk, we ordered that he not be given free movement in the courtroom or be allowed to have a pen or pencil in open court. Furthermore, we ordered that he not be given records which could disclose the whereabouts of key witnesses. We also ordered that the Defendant would be permitted to supplement the motion filed March 10, 2000 by filing a list of issues with Mr. Levant who would then present the issues in appropriate form to this Court. The Defendant was allowed an extension to prepare for his April 2000 murder trial in Lehigh County, Pennsylvania and we gave him sixty days after the conclusion of the trial but in no event later than August 1, 2000 to file these supplemental issues. We saw to it that the Defendant was sent a copy of our order fixing this deadline. The Defendant filed nothing with the Court by this deadline and for an entire year thereafter filed nothing in his habeas corpus matter.

We received a letter from the defendant dated August 7, 2001 and by Order of August 9, 2001 we deemed the letter from Mr. Williams to be a Motion to Reopen the August 1, 2000 deadline. We noted that defendant had been convicted of murder*fn1 and that the deadline for raising supplemental issues had long since passed and deemed the right to raise supplemental issues pro se to have been waived. It is not possible to raise new issues at this point. United States v. Duffuss, 174 F.3d 333, 337 (3d Cir. 1999). On August 30, 2001 we received another letter from defendant, postmarked August 27, 2001. Defendant dated this letter December 16, 1999, but attached prison forms that were filled out on August 13, 2001 and August 21, 2001. Since this letter was obviously a ruse which was written and sent over a year after the August 1, 2000 deadline, we will not consider its contents and stand by our August 1, 2000 deadline.

As we noted in the footnote to our Order of January 24, 1997, which denied the defendant's request for a continuance of his sentencing date, the defendant has a "long history of dilatory and harassing conduct aimed at delaying court proceedings." This history is detailed at length in prior memorandums dated April 8, 1996 and September 12, 1996. The Defendant is a member of a terrorist organization called the "Five Percent Muslems," who believe they have the right to murder anyone they choose. See Order of March 22, 1996

The record at sentencing was supplemented by a Bench Memorandum in which we noted that the Defendant had obstructed justice for three reasons. The first reason was he had claimed that he was feeling paranoid and testified untruthfully about conversations with his CJA lawyer claiming that the lawyer called him nasty racial names. The second reason we found the Defendant obstructed justice was that he told a witness, Ralph Logan, to falsely claim that he had given untruthful testimony in court. The Defendant told Logan he could kill him if he wanted to and he and his cellmate jumped on Logan and beat him physically. The third reason we found the Defendant had obstructed justice was because he had contacted witnesses to get them to refuse to testify and destroy evidence concerning the case against him. See, also United States v. Williams, 1997 WL 66174 (E.D.Pa., February 7, 1997). The Third Circuit upheld the enhancement for obstruction of justice. United States v. Williams, 151 F.3d 1027, No. 97-1099 at *13-14.

The Defendant has changed attorneys many times. Defendant's initial CJA attorney, Eric L. Leinbach, asked to be relieved from further representation on November 8, 1995 because he found the Defendant uncooperative and could not work with him. Even though this was a last minute request on the eve of Defendant's jury trial, we granted this request and appointed new CJA counsel, Thomas A. Bergstrom, Esquire. We set a new trial date of January 22, 1996. There followed a series of continuances and, as we noted in our Bench Memorandum of April 8, 1996, we attributed four of these continuances to the Defense and one of the continuances to the Government. See, also United States v. Williams, 1996 WL 539593 at *7-8 (E.D.Pa., September 17, 1996). We had a trial date of April 8, 1996 and received a letter from Defendant dated March 20, 1996, but not notarized until April 2, 1996, in which he claimed that his new CJA attorney had not communicated with him and had made racist remarks to him on or about March 7, 1996. On April 8, 1996, just before jury selection, we held a hearing and found that Attorney Bergstrom did not make racist remarks to the defendant. The Defendant claimed he was "feeling paranoid" and we reluctantly again continued the jury trial and sent the defendant for a psychiatric analysis to determine his competency to stand trial and waive counsel. After a stay at F.C.I. Butner, the Defendant was found to be fully competent. On June 24, 1996, we appointed another new lawyer, Jeffrey M. Lindy, Esquire, as CJA trial counsel in place of Thomas Bergstrom, Esquire. Although the Defendant expressed some dissatisfaction with Mr. Lindy, he did allow him to continue to represent him at trial. See, also United States v. Williams, 1996 WL 539593 at *1-2.

Defendant raises numerous issues through his habeas corpus petition. He claims that: (1) trial counsel was ineffective for failing to request certain jury instructions; (2) trial counsel was ineffective for failing to timely object during trial and raise on appeal errors contained in this Court's instructions to the jury; (3) trial counsel was ineffective for failing to conduct critical pretrial investigations and failing to obtain "scribes and diaries" taken from a cooperating witness; (4) Defendant was denied the effective assistance of counsel where trial counsel's cross examination of one of the witnesses was limited and where trial counsel did not seek appellate remedy of this error; and (5) Defendant should be granted a new trial based on newly discovered evidence. Though Defendant raises numerous allegations of error, none of them have any merit. Consequently, his § 2255 motion will be denied and dismissed.

• Discussion

For the sake of simplicity, we will divide our discussion of Defendant's claims into those that are based on ineffective assistance of counsel and the one claim that is not.

? Ineffective Assistance of Counsel Claims

1. Standard

The right to assistance of counsel is guaranteed by the Sixth Amendment of the United States Constitution. This right has been deemed fundamental by the Supreme Court; it cannot be denied to a defendant absent intentional and actual waiver. Johnson v. Zerbst, 304 U.S. 458, 462 (1938). The Supreme Court has set out a two-prong test to establish a claim of ineffectiveness of counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984). A defendant must show both that: (1) his counsel's conduct was deficient and "fell outside the wide range of professionally competent assistance" and (2) the defendant was prejudiced as a result of that deficient conduct. Strickland, 466 U.S. at 687; United States v. DeRewal, 10 F.3d 100, 104 (3d Cir. 1993), cert. denied, 511 U.S. 1033 (1994).

To satisfy the first prong, deficiency, a defendant must show that his lawyer's conduct fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688. In evaluating such a claim, we "must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. We may not use the benefit of hindsight to second-guess tactical decisions made by an attorney unless they are unreasonable. See Id. at 690; Diggs v. Owens, 833 F.2d 439, 444-445 (3d Cir. 1987), cert. denied, 485 U.S. 979 (1988) ("An attorney is presumed to possess skill and knowledge in sufficient degree to preserve the reliability of the adversarial process and afford his client the benefit of a fair trial. Consequently, judicial scrutiny of an attorney's competence is highly deferential").

The Strickland test for ineffective assistance of counsel applies with equal force to analysis of the performance of appellate counsel. United States v. Mannino, 212 F.3d 835, 840 n. 4 (3d Cir. 2000), citing, Diggs, 833 F.2d at 444-445. However, in the context of appellate representation it is difficult to demonstrate that counsel was incompetent, given the strong presumption that counsel's representation was professionally reasonable. Smith v. Robbins, 528 U.S. 259, 288 (2000). The test for prejudice under Strickland in the context of appellate representation is not whether defendant would likely prevail upon a remand but whether there is a "reasonable probability that the appeal would have been different had counsel's stewardship not fallen below the required standard." Mannino, 212 F.3d at 845 (emphasis in original).

Applying this jurisprudence to the case sub judice, it is clear that each of Defendant's ineffective assistance of counsel claims must fail.

2. Failure to Request Jury Instructions

Defendant contends that he was denied the effective assistance of counsel because trial counsel failed to request certain jury instructions, namely an instruction cautioning the jury about the reliability and circumstances of eyewitness identification, a specific unanimity charge, and a charge that the number of witnesses called is not controlling.

?The Identification Charge

At trial, the Government called Allentown police officer Edward Zucal, Jr. to testify that on the evening of July 19, 1995 he was jogging when he saw a suspicious vehicle circling the parking lot of one of the banks in question. Trial Transcript, Oct. 22, 1996 at 225. He testified on direct examination that he was jogging when he saw a vehicle with three black males, one driver and two passengers in the back, driving the wrong way around the bank parking lot. Officer Zucal testified that the three occupants met the description of suspects in an earlier bank robbery, and so he made a report of the vehicle and license plate. Id. at 226. On direct examination, Officer Zucal made no identification, nor was he asked to make an identification by the prosecutor.

On cross examination, defense counsel began by asking "By the way, you don't recognize Mr. Williams, do you, on the counsel table?" Id at 227. Officer Zucal, despite never having been asked to pick defendant Williams out of a lineup or photo spread, testified that he did, in fact, recognize him as the "gentleman that was seated on the passenger side of the rear of the vehicle." Id.

Defendant claims that this identification was very damaging to the defense and that trial counsel should have at least requested the standard identification charge to caution jurors to carefully scrutinize the circumstances surrounding the identification. Memorandum in Support of Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2255, filed March 10, 2000, at 13-14. Defendant contends that this failure by trial counsel amounts to ineffective assistance of counsel under Strickland.

This failure to request an identification jury instruction meets neither the deficiency nor the prejudice prong of Strickland. Trial counsel was not deficient in failing to request this charge for several reasons. First, the surprise identification by Officer Zucal was only a minor part of the case. The identification only placed Defendant at the scene of the crime the night before the robbery and not during the actual commission of the offence. In fact, in discussing the testimony of Officer Zucal in her closing argument, the prosecutor never even mentioned the identification, but instead merely highlighted the fact that he saw a suspicious vehicle and made a report. Trial Tr., Oct. 29, 1996 at 86. The Court did instruct the jury that they should ask themselves if the witnesses had "the opportunity and the ability to observe the things they testified about." Trial Tr., Oct. 29, 1996 at 190. By requesting a further more special instruction, trial counsel might well have drawn the jury's attention to this identification and thus given it too much emphasis. Since trial counsel twice moved for a mistrial based upon Officer Zucal's identification (Trial Tr., Oct. 22, 1996 at 231, Oct. 23, 1996 at 2-4), he obviously felt that the testimony would unfairly prejudice the jury against his client*fn2. Downplaying the importance of this identification would have been a wise trial strategy which would be undermined by asking the court to give a specific instruction and thereby force the jury to focus on testimony which a reasonable trial lawyer would want them to forget about. Thus, under the circumstances, we cannot say that trial counsel was deficient in failing to request a specific identification charge.

Furthermore, even if this failure were deficient, Defendant fails to meet the prejudice prong of the Strickland test. On rejecting Mr. Williams' direct appeal of his conviction, the Third Circuit Court of Appeals stated that "We agree with the government that the evidence against Williams on each of the counts charged was `overwhelming'" Untied States v. Williams, No. 97-1099, at 7. In light of the overwhelming evidence supporting each of the counts charged there can be no doubt that there was no likelihood of a different outcome had such an instruction been requested.

? The Specific Unanimity Charge

Defendant next makes the claim that trial counsel was ineffective for failing to request a "specific unanimity charge" pursuant to United States v. Beros, 833 F.2d 455, 461 (3d Cir. 1987). Since the instant case presents a drastically different situation than that in Beros and there was no need for a specific unanimity instruction, Defendant's claim that trial counsel was ineffective for failing to request the instruction must fail.

The Court based this decision on the fact that the allegations contained in the indictment, the complex, disjunctive wording of the statutes, and the evidence presented to support the conviction created a "significant potential" for the jury inappropriately to find that the defendant was guilty despite not agreeing on the facts or theories forming the basis of that guilty verdict. Id. For example, the § 501(c) charge accused Beros of embezzling, stealing, abstracting, and converting to his own use approximately $1,000 which was used to buy a first class plane ticket and pay for lodging for Beros and his wife. Id. In support of the accusation, the government presented evidence that he used a Joint Council credit card to pay for airfare for himself and his wife, paid for the most expensive hotel suite as opposed to a regular room, and stayed in Florida on Joint Council funds even after his official duties had been completed. Id. Thus, the Third Circuit reversed the conviction because (1) the counts of the indictment alleged several transactions, any one of which could support a guilty verdict, and (2) the Government offered proof of several transactions, any one of which could support a guilty verdict. Id., 833 F.2d at 458, 460.

There is no such likelihood of confusion in the case sub judice. "The Beros rule comes into play only when the circumstances are such that the jury is likely to be confused as to whether it is required to be unanimous on an essential element." United States v. Cusumano, 943 F.2d 305, 312 (3d Cir. 1991). Here, like in Cusumano, the Government did not allege different sets of facts or transactions supporting Defendant's guilt, and thus the only possible confusion could come from the wording of the statute. "There is insufficient risk of confusion in such circumstances and the need for a specific unanimity instruction was not triggered." Id.*fn4

Similarly, there is no merit to the argument that Defendant was prejudiced by this failure. First, since Beros does not apply in this case, even if trial counsel had requested the instruction it would not have been given and thus any deficiency would have absolutely no effect on the outcome of the trial. See United States v. Keller, 251 F.3d 408, 419 (3d Cir. 2001) (holding that where expert testimony would have been admitted even over an objection, there could be no prejudice resulting from counsel's failure to object). Furthermore, even if the jury were given the instruction, in light of the "overwhelming" evidence supporting the Government's theory of the case, there can be no doubt that the result of the trial would have been exactly the same. At trial, the Government put forth a straight-forward case against the Defendant, namely that he joined a conspiracy to commit bank robberies, committed bank robberies, and used and carried a firearm during and in relation to these bank robberies. There was no indication of any juror confusion nor any chance that Defendant could have been convicted on alternative theories of guilt. As such, his claim that trial counsel was ineffective for failing to request a specific unanimity instruction must fail.

c. Number of Witnesses Is Not Controlling Charge

Defendant's final argument concerning jury instructions is that trial counsel was ineffective for failing to request a charge to the jury that the number of witnesses called is not controlling. Memorandum in Support of Petition For Writ of Habeas Corpus Pursuant to § 2255 at 15-16. This argument is wholly without merit and therefore must be denied.

Defendant neglects to mention that in instructing the jury prior to trial, we issued a very specific instruction that the number of witnesses called does not control. Jury Selection, Oct. 21, 1996 at 79-80. In fact, our comments to the jury went beyond any standard charge and, in addition to the standard warning that the number of witnesses is not controlling, we gave the jury a story and example to illustrate how absurd it would be to find for one side based solely on the fact that they called more witnesses. Id.*fn5

Such a claim fails to meet either prong of the Strickland test. First, we cannot say that trial counsel's performance was deficient and not professionally reasonable for failure to request that the jury receive a charge for the second time. Such a request might have, to the defense's detriment, highlighted the great disparity in the weight of the evidence. Second, there can be no doubt that trial counsel's failure to request the charge does not satisfy the prejudice prong of the Strickland test. This Court, during its charge to the jury, repeatedly instructed that the Government had the burden of proving the defendants guilty beyond a reasonable doubt. Trial Tr., Oct. 29, 1996 at 184, 185, 186-187, 222. In addition we instructed the jury that, under our system of justice, defendants were presumed innocent. Id. at 184, 222. Most importantly, we made clear to the jury that defendants bore no burden to put on any evidence or to call any witnesses. Id. at 186-187. These instructions, combined with the earlier instruction and the overwhelming evidence ...

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