Route 80, was stopped by the police. Upon stopping the car,
the police discovered in the trunk a VCR containing cocaine powder. In
addition, Jansen was carrying on his person 34.2 grams of cocaine powder
and 16.3 grams of cocaine base.
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
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.
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, under the circumstances, the
challenged action might be considered sound trial strategy." Id. (quoting
Berryman v. Morton, 100 F.3d 1089, 1094 (3d Cir. 1996) (in turn quoting
Strickland, 466 U.S. at 689)).
The second prong requires the defendant to "demonstrate that he was
prejudiced by counsel's errors." Id. (citing Strickland, 466 U.S. at
693). "The [movant] must show that `there is a reasonable probability
that, but for counsel's errors, the result of the proceeding would have
been different.'" Id. (quoting Strickland, 466 U.S. at 694). "A
`reasonable probability' is `a probability sufficient to undermine
confidence in the outcome.'" Id. (quoting Strickland, 466 U.S. at 694).
"This standard `is not a stringent one;' it is less demanding than the
preponderance standard." Id. (quoting Baker v. Barbo, 177 F.3d 149, 154
(3d Cir. 1999)). "[A] court must consider the strength of the evidence in
deciding whether the Strickland prejudice prong has been satisfied."
Buehl v. Vaughn, 166 F.3d 163, 172 (3d Cir. 1999). "`[A] verdict or
conclusion only weakly supported by the record is more likely to have
been affected by errors than one with overwhelming record support.'" Id.
(quoting Strickland, 466 U.S. at 696).
Specifically, Jansen claims that counsel failed to elicit trial
testimony that Jansen, at the time of his arrest, invoked his Fifth
Amendment right to counsel. It is well-established that "law enforcement
officers must immediately cease questioning a suspect who has clearly
asserted his right to have counsel present during custodial
interrogation." Davis v. United States, 512 U.S. 452, 454 (1994) (citing
Edwards v. Arizona, 451 U.S. 477 (1981)). Much of the government's
evidence against Jansen came in the form of his statements to the
police; had the police been required to cease questioning, it is possible
that the evidence against him would not have been as strong. According to
Jansen, this possibility should lead to a finding of ineffective
assistance of counsel.
Jansen requests that the court find certain facts leading to the
conclusion that counsel failed to bring out at trial the fact that he
requested his right to counsel. According to Jansen, the following events
took place in order:
(1) Jansen was stopped by the police;
(2) Picerno told Jansen that he was under arrest;
(3) Jansen said that "he [wouldn't say] anything until [he] called his
(4) Picerno searched Jansen's person, and Jansen stated that the search
(5) Picerno discovered drugs on Jansen's person;
(6) Heatley asked Jansen questions about the drugs on his person, and
Jansen responded by saying that the drugs were for his personal use;
(7) Heatley read Jansen his Miranda rights;
(8) Heatley said that he had more questions for Jansen, and Jansen stated
that he wanted to speak with his attorney;
(9) After a break, Havens read Jansen another set of Miranda warnings
and began asking him more questions; and
(10) Another police officer, Trooper Bletz, informed Jansen of the
discovery of the VCR. Bletz stated that Jansen was facing life in
prison, and at that point Jansen made statements about delivering the VCR
to Willow in Williamsport. (Transcript of § 2255 Hearing, Rec. Doc.
No. 86, at 7-17.)
According to Jansen, then, at two separate times before his confession
he asked to speak with his attorney. If this is in fact true, the
officers were to cease questioning until Jansen's attorney was present.
Jansen's testimony was contradicted by both Picerno and Heatley.
Picerno, the officer who initially placed Jansen under arrest, stated
that Jansen never asked to speak to his attorney. (Id. at 53.) Heatley
testified that Jansen at no time used the word "attorney" or "lawyer."
(Id. at 61.)
Jansen asserted at the hearing that he relayed to trial counsel each
instance that he asked to speak with his attorney. According to Jansen,
trial counsel informed him that the request for the attorney was
irrelevant. Specifically, according to Jansen, trial counsel told him
that because he voluntarily spoke with the police, he waived any
constitutional right regarding the cessation of questioning. (Id. at
At the hearing, trial counsel disputed Jansen's assertions. He
testified that the first time he heard Jansen speak about requesting an
attorney was during the instant § 2255 hearing. He stated that had he
been informed that Jansen requested an attorney, he would have attempted
to have the statements suppressed under the Fifth Amendment. He asserted
that Jansen never spoke to him about the invocation of his right to
counsel. (Id. at 39, 48-49.)
Undoubtedly, the witnesses at the hearing gave differing versions of
the events. Evaluating the witnesses' testimony, we credit the testimony
of the police officers and trial counsel, and we give no value to the
testimony provided by Jansen. Based on an observation of his demeanor in
the witness chair, we find Jansen to be totally without credibility.
Conversely, we find both the police officers and trial counsel to be
quite credible, and we believe the statements which they made at the
More specifically, we disbelieve Jansen's testimony on two levels.
First, we find that at no point during the arrest did Jansen ask to speak
with an attorney. As a result, any claim based on the invocation of the
right to counsel is baseless. Second, we find that at no point did Jansen
represent to trial counsel that he invoked his right to counsel. In
discussing the standard for judging the objective reasonableness of
counsel's actions, the Supreme Court has stated that the attorney is
often permitted to rely on what his client tells him:
The reasonableness of counsel's actions may be
determined or substantially influenced by the
defendant's own statements or actions. Counsel's
actions are usually based, quite properly, on informed
strategic choices made by the defendant and on
information supplied by the defendant. In particular,
what investigation decisions are reasonable depends
critically on such information. For example, when the
facts that support a certain potential line of defense
are generally known to counsel because of what the
defendant has said, the need for further investigation
may be considerably diminished or eliminated
altogether. And when a defendant has given counsel
reason to believe that
pursuing certain investigations
would be fruitless or even harmful, counsel's failure
to pursue those investigations may not later be
challenged as unreasonable. In short, inquiry into
counsel's conversations with the defendant may be
critical to a proper assessment of counsel's
investigation decisions, just as it may be critical to
a proper assessment of counsel's other litigation
Strickland, 466 U.S. at 691 (citing United States v. Decoster,
624 F.2d 196, 209-210 (D.C. Cir. 1979)). As the above paragraph
dictates, without any basis to believe that he should pursue a line of
questioning based on Jansen's invocation of his right to counsel, trial
counsel's failure to advance this theory was not unreasonable.
We find that because he did not invoke his right to counsel and did not
inform his trial attorney that he invoked his right to counsel, Jansen
has failed to prove that trial counsel's performance was deficient.
Because we conclude that Jansen has not met his burden to show that
counsel's performance was deficient, we need not reach the issue of
whether he suffered prejudice as a result of counsel's representation.
United States v. Roberson, 194 F.3d 408, 418-19 (3d Cir. 1999) (citations
We note that the case was closed by order of court on October 22,
2001, but not formally reopened when the court granted Jansen's motion
for reconsideration on November 8, 2001 and vacated the order of October
22, 2001. For clarity of the record, the clerk will, therefore, be
directed to reopen the file.
Jansen's ineffectiveness claim based on the invocation of his right to
counsel is meritless. He lacks credibility, and defense counsel and two
police officers credibly contradicted his testimony. Therefore, Jansen's
claim will be denied. Because the instant claim is the final remaining
claim contained in Jansen's § 2255 motion, and because all other
claims are denied for the reasons set forth in the court's memorandum of
August 22, 2002, the motion will be denied in its entirety. An
appropriate order follows.
O R D E R
For all the reasons set forth in both the accompanying memorandum and the
memorandum filed August 22, 2002,
IT IS ORDERED THAT:
1. The clerk is directed to reopen the case file (as of November 8,
2. Defendant Robert John Jansen's motion under 28 U.S.C. § 2255 to
vacate, set aside or correct his sentence (Rec. Doc. No. 67), including all
accompanying amendments, is denied.
3. There is no basis for the issuance of a certificate of appealability.
4. The clerk is directed to close this case.
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