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