For the reasons stated above, the court finds that the arguments put
forth in petitioner's Petition to Vacate, Set Aside, or Correct Sentence
Pursuant to 28 U.S.C. § 2255 are without merit. Therefore, the
petition will be denied and the case will be dismissed.*fn14
AND NOW, this 6th day of June, 2002, upon consideration of Petitioner's
Petition to Vacate, Set Aside or Correct Sentence Pursuant to
28 U.S.C. § 2255 (doc. no. 80), the Government's Response to
Petitioner's Petition for Relief under 28 U.S.C. § 2255 (doc. no.
98), and Petitioner's Traverse to the Government's Response to
Petitioner's Petition for Relief under 28 U.S.C. § 2255 (doc. no.
100), it is hereby ORDERED that:
1. Petitioner's Petition to Vacate, Set Aside or Correct Sentence
Pursuant to 28 U.S.C. § 2255 is DENIED and the case is DISMISSED.
2. It is FURTHER ORDERED that there is no probable cause to issue
a certificate of appealability.
AND IT IS SO ORDERED.
*fn2 An investigation in Harrisburg, Pennsylvania continued until April
1997, when an indictment was returned against Michael Strube and Richard
Pitt, for conspiracy to possess with the intent to distribute 486
kilograms of cocaine (the "Harrisburg proceedings"). Strube and Pitt went
to trial in the Harrisburg proceedings in August, 1997 and both were
convicted. Michael Strube was represented by Mark Lancaster, Esq., at
that trial. A suppression hearing before Judge Sylvia Rambo prior to
trial resulted in a denial of Michael Strube's motion to suppress the
August 19, 1996 warrant, and various documents and receipts recovered
during the August 1996 search were introduced as evidence during the
Harrisburg trial. Strube was sentenced to 30 years in prison for his role
in the drug conspiracy.
On appeal, Strube did not challenge the denial of his motion to
suppress the August 19, 1996 warrant; rather both defendants argued that
Judge Rambo erred by failing to give a jury instruction on the defense of
public authority, based on their assertion at trial that they obtained,
transported and sold the 486 kilograms of cocaine on behalf of the U.S.
Customs Service, who they claimed to be working for at the time. The
Third Circuit upheld the convictions of both Strube and Pitt,
specifically citing the testimony of Customs Agents Roger Bower and Chuck
Mohle that, although they were aware of Strube and Pitt's acquisition of
a large boating vessel, they never approved, either explicitly or
tacitly, Strube and Pitt obtaining and transporting the cocaine.
*fn3 This petition was originally filed on May 18, 1999 on behalf of
William Michael Strube and Star Strube. However, in a letter to the
court, dated December 27, 2000 and filed with the clerk's office on
January 30, 2001, Star Nada Strube withdrew from Civil Action 99-3800 as
well as "all or any cases which is [sic] pending involving any civil
action alone or with William Michael Strube." See doc. no. 103 and doc.
no. 104. Their marital status, while currently unknown, is not relevant
to these proceedings.
Star Strube was represented in the Philadelphia proceedings by Greg
Magarity, Esq. However, because she has withdrawn her petition, the
conduct of her counsel is not currently in controversy.
*fn4 This is the same firm which represented Michael Strube in his
appeal of the Harrisburg proceedings.
*fn5 In the context of this motion petition where petitioner is seeking
collateral relief, the burden on the petitioner is particularly heavy
because petitioner seeks to challenge a guilty plea. See United States
v. Timmreck, 441 U.S. 780, 784 (1979) ("the concern with finality served
by the limitation on collateral attack . . . has special force with
respect to convictions based on guilty pleas.").
*fn6 For example, as to informant T-4, the affidavit states that T-4
provided details of petitioner's efforts from November 1997 until June
1980 to help organize the establishment of a laboratory in Tennessee to
manufacture methamphetamine. In the suppression motion, defense counsel
argued that the affiants deliberately omitted the fact that the United
States Attorney's Office in Tennessee declined to seek an indictment
against Strube in the case because the case lacked "jury appeal." Motion
to Suppress, at 23-24. In the instant petition, petitioner provides
additional details as to why T-4's information is untrustworthy and why
the case against petitioner never came to fruition. Petition, at 29-31.
Additionally, regarding informant T-5, the instant petition includes the
fact, which was absent from the suppression motion, that a grand jury in
the Eastern District of Pennsylvania did not return an indictment based
on the same information provided by T-5. Id. at 31. Furthermore,
regarding T-7 George Morales, the informant who provided the most recent
information, the instant petition adds additional information regarding
the distant association petitioner had with Morales and the failure of
the Lancaster County Drug Enforcement Task Force to "buy or sell a single
grain from Strube" based on T-7's uncorroborated information. Id. at
34-37. The motion also does not contain the fact that petitioner believes
T-7 to be the same individual as T-10, although he does not provide any
corroborating support for this assertion. As to T-8, petitioner provides
somewhat more elaborate details in support of the general assertions made
by defense counsel in the motion to dismiss. Id. at 40-41. As to T-12,
petitioner adds assertions that the affidavit misled the magistrate judge
to believe that T-12 had purchased quantities of drugs from petitioner,
when in actuality it was petitioner's brother, by identifying him as
"Mr. Strube." Id. at 47.
However, the court finds that the inclusion of these facts in the
motion to suppress before Judge Cahn would not have changed Judge Cahn's
decision on the motion or the outcome of this case because the
petitioner's additional proffer does not invalidate the portion of the
warrant affidavit Judge Cahn relied upon in denying the motion to
*fn7 Such proof included the testimony of law enforcement officials
involved in the investigation of petitioner who also worked with the
confidential informants in this case, the information provided by the
informants, as well as compelling arguments as to why petitioner's
allegation of government misrepresentations, deceit and entrapment are
illogical and without merit. See Supp. Hrg. Trans., 5/18/98; Govt's
Resp. to Defendants' Mot. for Franks hearing (Govt's Resp. to
Petitioner's § 2255 Petition, Ex. 5).
*fn8 See note 1.
*fn9 Since the court finds that counsel's performance concerning the
issues raised in the instant petition was not deficient under
Strickland, it is not necessary to turn to the second prong of
Strickland which asks whether the petitioner suffered any prejudice as a
result of an alleged defect in counsel's performance.
*fn10 For example, at the hearing, defense counsel argued that any facts
regarding misrepresentations between law enforcement official's
evidencing the alleged entrapment should be excised from the affidavit of
probable cause and that after the removal of these facts, the affidavit no
longer contained probable cause to search. Judge Cahn rejected this
assertion. Supp. Hrg. Trans., 5/18/98, at 205 ("You can't make [this
argument], if the rest of the affidavit is sufficient. And it is."). In
addition, in response to the defense's arguments regarding other
inconsistencies and misrepresentations in the affidavit, Judge Cahn
continually replied that such alleged inconsistencies and
misrepresentations "did not taint the warrant." See id. at 206-08.
Furthermore, the judge stated that the averment in the affidavit that an
informant saw methamphetamine at defendant's residence alone "suggests
the search is okay." Id. at 213.
*fn11 The transcript of the plea colloquy on this issue reads as
THE COURT: Both of you should understand that by
pleading guilty it's the same as admitting that the
Government can prove the charges against you and there
won't be any trial.
You also will give up all the rights that your
attorneys raised with me yesterday in your presence.
You give up the right to challenge the search warrants.
. . . in this case only, because I think you're
reserving all of your rights under the warrants, Mr.
Tunkey, in the Harrisburg case, you're reserving your
right to challenge the warrants there?
MR. TUNKEY [Petitioner's counsel]: Absolutely, your Honor.