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June 6, 2002


The opinion of the court was delivered by: Eduardo C. Robreno, Judge.


Presently before the court is petitioner William Michael Strube's Petition to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255 (doc. no. 80) ("Petition"). For the reasons set forth below, the petition will be denied and the case dismissed.

I. Factual Background

On or about August 19, 1996, United States Magistrate Judge Arnold Rappaport authorized the issuance of a search warrant authorizing a search of William Michael Strube's (hereafter "Strube" or "petitioner") residence at 4578 Klinesville Road, Columbia, PA. The request for the search warrant was supported by an affidavit of probable cause sworn by DEA Special Agent Scott Dimmick and FBI Special Agent Dan Harrelson. The affidavit described several years of historical information, and also contained recent information obtained from an active confidential informant, George Morales, who was present at the Strube's residence shortly before the warrant application was presented to the magistrate judge.

On August 20, 1996, the government agents executed the warrant.*fn2 According to the government, the search of the residence disclosed several firearms in the master bedroom. Early on the morning of August 21, 1996, Agent Harrelson obtained from U.S. Magistrate Judge Rappaport a second warrant, authorizing the seizure of these firearms. This second warrant was challenged separately by defense counsel in the underlying proceedings in this court before the Honorable Chief Judge Edward Cahn, but is challenged in the instant petition for habeas corpus relief only to the extent that if the court finds the first warrant invalid, the second warrant, which was based on the evidence plainly viewed during the first search, is invalid as well.

In or about November, 1997, Strube and his then wife, Star Nada Strube (hereafter "Star Strube"),*fn3 were indicted in this court for possession of firearms by a convicted felon (Strube) and aiding and abetting the possession of firearms by a convicted felon (Star Strube). Strube hired the Miami law firm of Robbins, Tunkey, Ross, Amsel, Raben & Waxman, and specifically William Tunkey and Benjamin Waxman, to represent him in the Philadelphia proceedings.*fn4 Defense counsel filed motions to suppress the two search warrants obtained by the government in August, 1996, and specifically moved for a Franks hearing. Defense counsel also filed several motions to dismiss the indictment on various grounds, and several motions for additional discovery.

The following day, after several hours of negotiations over a plea agreement between the petitioner and the government and additional time for defense counsel to go over the terms of the agreement with the petitioner, Strube pled guilty to Counts I, II, and III of the Superceding Indictment. During the plea colloquy, petitioner admitted that he understood the terms of the plea agreement, and stated that he was pleading guilty with full knowledge of the rights he was waiving and because he was guilty of the crimes with which he had been charged. The court accepted his guilty plea and dismissed the jury.

Petitioner makes the following arguments in support of his application for habeas corpus relief. First, he was deprived effective assistance of counsel because his defense counsel (1) failed to effectively argue that the government did not meet its obligations to comply with Federal Rule of Criminal Procedure 41 and the Fourth Amendment to the United States Constitution, (2) failed to obtain a Franks hearing, and (3) failed to argue unconstitutional selective prosecution of petitioner. Second, petitioner maintains that he was prejudiced by three violations by the government of its disclosure requirements under Brady v. Maryland, 373 U.S. 83 (1963).

For the following reasons, the court finds that the petitioner's arguments are without merit and his petition will be denied in its entirety.

II. Ineffective Assistance of Counsel

A. Standard

A defendant's claim that his Fourth Amendment right against unreasonable searches and seizures was violated is not cognizable on collateral review if a defendant had a full and fair opportunity to litigate the claim. Stone v. Powell, 428 U.S. 465 (1976). However, a claim of ineffective assistance of counsel may be raised on collateral review, even when the claimed ineffectiveness relates to a Fourth Amendment issue, if the claim would otherwise be barred. Kimmelman v. Morrison, 477 U.S. 365 (1986).

In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court established a two-prong test that a petitioner must satisfy to sustain a claim of ineffective counsel:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial whose result is reliable.

Id. at 687. To meet the second criterion, the petitioner must show that there is "[a] reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. A reasonable probability is probability sufficient to undermine confidence in the outcome." Id. at 694.*fn5 "There is a strong presumption that counsel's performance falls within the `wide range of professional assistance'; the defendant bears the burden of proving that counsel's representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy." Kimmelman, 477 U.S. at 381 (citing Strickland, 466 U.S. at 688-89).

A petitioner claiming that he was denied effective assistance of counsel with regard to a Fourth Amendment claim must prove far more than the mere existence of a meritorious Fourth Amendment claim. The Supreme Court has explained that Strickland's standard:

differs significantly from the elements of proof applicable to a straightforward Fourth Amendment claim. Although a meritorious Fourth Amendment issue is necessary to the success of a Sixth Amendment claim like respondent's, a good Fourth Amendment claim alone will not earn a prisoner federal habeas relief. Only those habeas petitioners who can prove under Strickland that they have been denied a fair trial by the gross incompetence of their attorneys will be granted the writ and be entitled to retrial without the challenged evidence.

Kimmelman, 477 U.S. 382.

B. Was defense counsel's performance deficient under Strickland?

After a review of the record in this case, it is clear that the efforts of petitioner's counsel in the proceedings before Judge Cahn were well within the boundaries of effective representation as delineated by the Supreme Court.

1. Motion to Suppress

Defense counsel filed an extensive motion to suppress the two August 1996 search warrants supported by a memorandum of law. In these filings, defense counsel specifically describes the alleged infirmities of each section of the probable cause affidavit and argues that if the infirmities were redacted from the text, the content of the affidavit would not support a finding of probable cause. Furthermore, defense counsel detailed a long and complicated plot alleged by petitioner involving reckless and/or knowingly false representations made by the government to Magistrate Judge Rappaport in order to secure the August 19, 1996 warrant. Although Judge Cahn did not hold a Franks hearing, per se, he took testimony from two law enforcement officers involved with the case and heard oral argument on these issues. During argument, defense counsel specifically contended that the warrant was invalid because the evidence showed that the averments in the affidavit of probable cause were recklessly and knowingly false and based on the government's entrapment of the petitioner. Judge Cahn denied the motion.

In the instant petition for federal habeas relief, petitioner asserts the very same arguments raised by defense counsel in the suppression motion: namely the bad faith shown by the agents. Petitioner maintains that counsel was ineffective by only pointing out instances of mistakes in the facts contained in the affidavit and argues that counsel's presentation completely failed to show the calculated nature of the agents' misrepresentations. The court disagrees. To the contrary, based on a detailed reading of the motion to suppress and a transcript of the suppression hearing, it is clear that defense counsel asserted before Judge Cahn the exact same arguments which petitioner reasserts in the instant petition regarding deliberate indifference, knowing misrepresentations, and entrapment by the government. Simply because Judge Cahn was not persuaded by these arguments, it cannot be said that defense counsel was ineffective. While there are some facts asserted by petitioner in the instant petition which were not specifically cited by defense counsel in the motion to suppress,*fn6 the breadth and depth of defense counsel's efforts to suppress the fruits of the August 1996 search clearly shows that counsel's performance was based upon "sound strategy" and falls within the "wide range of professional assistance," Strickland, 466 U.S. at 688-689, and did not infringe upon petitioner's Sixth Amendment rights.

2. Franks Hearing

In Franks v. Delaware, 438 U.S. 154 (1978), the Supreme Court held that an affidavit of probable cause in support of a request for a search warrant allegedly valid on its face may be challenged by the accused if it can be shown that 1) the affidavit contains intentionally or recklessly false statements, and 2) the affidavit purged of its falsities would not be sufficient to support a finding of probable cause. Id. at 171-72. A defendant is entitled to a hearing only after he "makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, ...

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