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U.S. v. JANSEN

November 1, 2002

UNITED STATES OF AMERICA,
V.
ROBERT JOHN JANSEN, DEFENDANT.



The opinion of the court was delivered by: James F. McCLURE, Jr., United States District Judge

M E M O R A N D U M

This opinion discusses the sole remaining claim in Robert John Jansen's motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. After making a roadside confession to police that he was en route to delivering drugs, Jansen was convicted after trial of possession with intent to distribute a controlled substance. The only issue now before the court is whether trial counsel was ineffective for failing to elicit trial testimony that Jansen, at the time of his arrest, invoked his right to counsel.

The inquiry is straightforward: if Jansen proves that trial counsel unreasonably failed to elicit this testimony and that he, Jansen, suffered prejudice as a result, the ineffectiveness claim is colorable; if Jansen fails either to prove that counsel's performance was deficient or to prove that he suffered prejudice, then counsel was not ineffective. The court held a hearing in which it heard the testimony of Jansen, two police officers, and trial counsel. Each person testified to the events regarding Jansen's claim that he invoked his right to counsel. Based on our evaluation of the witnesses' testimony at the hearing, we find that Jansen has failed to prove that trial counsel acted unreasonably. For this reason, counsel was not ineffective, and Jansen's § 2255 motion, most of which was denied in a prior memorandum, will be denied in its entirety.

BACKGROUND:

While in police custody outside the car, Jansen told the police that he was returning from New York City and bringing the cocaine in the VCR to Richard Willow, who was located in Middleburg, Pennsylvania. He stated that twice a month for the previous five months, he had traveled to New York in order to pick up a large amount of cocaine powder. During these trips, Jansen said, he would purchase a certain amount of cocaine for himself, pick up a VCR containing cocaine powder for delivery to Richard Willow, and receive some cocaine as payment for his services. He stated that the drugs on his person, consisting of both cocaine powder and cocaine base, were for his personal use.

On October 13, 1998, a grand jury sitting in the Middle District of Pennsylvania returned an indictment against Jansen. According to the indictment, Jansen "did knowingly and intentionally distribute, and possess with intent to distribute, cocaine and cocaine base, also known as crack cocaine," in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. (Indictment, Rec. Doc. No. 1.)

A two-day jury trial was held January 11 and 12, 1999. While testifying, Jansen recanted many of the statements that he made to the police. He was convicted and sentenced to a term of imprisonment of 121 months.

Jansen filed an appeal with the Third Circuit. The appeal focused on the suppression of evidence obtained in accordance with his arrest. The Third Circuit affirmed this court's admission of the evidence, and Jansen's conviction and sentence remained.

Jansen subsequently filed with this court a § 2255 motion that contained six claims. By Memorandum and Order dated August 22, 2002, we denied the motion in part, finding meritless five out of the six claims. We ordered an in camera hearing focusing on the sole remaining issue, i.e., whether trial counsel was ineffective for failing to elicit testimony that Jansen, at the time of his arrest, invoked his right to counsel.

On October 10, 2002, we held the hearing. Testifying at the hearing were Jansen, trial counsel Thomas C. Egan, and two of Jansen's arresting officers, Trooper Dominick Picerno and Corporal Scott L. Heatley.

DISCUSSION:

To succeed on a claim of ineffective assistance of counsel, a defendant must show that (1) the performance of counsel fell below an objective standard of reasonableness; and (2) the errors of counsel prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-688, 691-692 (1984). "Both Strickland prongs must be satisfied." George v. Sively, 254 F.3d 438, 443 (3d Cir. 2001) (citing United States v. Nino, 878 F.2d 101, 104 (3d Cir. 1989)). The defendant bears the burden of establishing ineffective assistance of counsel. Whitney v. Horn, 280 F.3d 240, 258 (3d Cir. 2002).

The first prong requires the defendant to "establish . . . that counsel's performance was deficient." Jermyn v. Horn, 266 F.3d 257, 282 (3d Cir. 2001). "This requires showing that counsel was not functioning as the `counsel' guaranteed defendant by the Sixth Amendment." Id. (quoting Strickland, 466 U.S. at 687) (internal quotation marks omitted). "In assessing counsel's performance, `every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.'" Id. (quoting Strickland, 466 U.S. at 689). "There is a `strong presumption' that counsel's performance was reasonable." Id. "That is to say, the defendant must overcome the presumption that, ...


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