United States District Court, E.D. Pennsylvania
June 9, 2004.
DEVON A. FELLOWS.
The opinion of the court was delivered by: JOHN PADOVA, District Judge
Before the Court is Defendant Devon A. Fellows' Motion to
Vacate, Set Aside or Correct Sentence pursuant to
28 U.S.C. § 2255. For the reasons which follow, the Court denies the Motion
in all respects.
Devon Anthony Fellows is a native and citizen of Jamaica who
entered the United States as an immigrant in 1974. On February 5,
1997, the INS commenced removal proceedings against Fellows based
on his 1993 conviction in a New York state court for criminal
sale of a controlled substance. On June 30, 1997, the Immigration
Judge ordered Fellows to be deported. Fellows thereafter filed an
appeal with the Board of Immigration Appeal ("BIA"), which was
dismissed on February 27, 1998. On May 8, 1998, Fellows was
On May 24, 2001, a federal grand jury sitting in the Eastern
District of Pennsylvania returned a two count indictment charging
Fellows with one count of reentry after deportation, in violation
of 8 U.S.C. § 1326(a) and (b)(2), and one count of fraud in
connection with identification documents, in violation of 18 U.S.C. § 1028(a)(4). After a bench trial on September 10, 2001, this
Court convicted Fellows of both counts of the Indictment. On
October 29, 2002, the United States Court of Appeals for the
Third Circuit ("Third Circuit") affirmed the conviction on
appeal. On May 19, 2003, the United States Supreme Court denied
Fellows' petition for writ of certiorari. The instant Motion was
filed on April 5, 2004.
II. LEGAL STANDARD
Defendant Fellows has moved for relief pursuant to
18 U.S.C. § 2255, which statute provides as follows:
A prisoner in custody under sentence of a court
established by Act of Congress claiming the right to
be released upon the ground that the sentence was
imposed in violation of the Constitution or laws of
the United States, or that the court was without
jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack,
may move the court which imposed the sentence to
vacate, set aside or correct the sentence.
28 U.S.C.A. § 2255 (West Supp. 2001).
"Section 2255 does not provide habeas petitioners with a
panacea for all alleged trial or sentencing errors." United
States v. Rishell, Civ.A. Nos. Nos. 97-294-1 and 01-486, 2002 WL
4638, at *1 (E.D. Pa. Dec. 21, 2001) (citation omitted). In order
to prevail on Section 2255 motion, the movant's claimed errors of
law must be constitutional, jurisdictional, "a fundamental defect
which inherently results in a complete miscarriage of justice,"
or "an omission inconsistent with the rudimentary demands of fair
procedure." Hill v. United States, 368 U.S. 424, 428 (1962).
Even an error that may justify a reversal on direct appeal will
not necessarily sustain a collateral attack. See United States
v. Addonizio, 442 U.S. 178, 184-85 (1979). A Section 2255 motion
simply is not a substitute for a direct appeal. See United
States v. Frady, 456 U.S. 152, 165 (1982). A district court has
the discretion to summarily dismiss a motion brought under
Section 2255 in cases where the motion, files, and records "show
conclusively that the movant is not entitled to relief." United
States v. Nahodil, 36 F.3d 323, 325 (3d Cir. 1994) (citing
United States v. Day, 969 F.2d 39, 41-42 (3d Cir. 1992)).
Fellows has asserted three grounds for relief pursuant to
28 U.S.C. § 2255:
1. He was provided ineffective assistance of counsel
in that his trial attorney failed to file a motion to
dismiss Count One of the Indictment based on the
fundamental unfairness of his deportation
2. He was provided ineffective assistance of counsel
in that his trial attorney did not object to the
sufficiency of the waiver of jury trial colloquy
conducted by this Court before trial.
3. He was provided ineffective assistance of counsel
in that his trial attorney did not object to the
prosecution's introduction of his criminal history at trial, and
his appellate counsel failed to raise the issue on
A. Ineffective Assistance of Counsel
Claims of ineffective assistance of counsel are governed by the
two-part test articulated in Strickland v. Washington,
466 U.S. 668
(1984). In order to obtain a reversal of a conviction on the
ground that counsel was ineffective, the movant must establish:
(1) that counsel's performance fell well below an objective
standard of reasonableness; and (2) that counsel's deficient
performance prejudiced the defendant, resulting in an unreliable
or fundamentally unfair outcome of the proceeding. Id. at 687.
Counsel is presumed effective, and the movant must "overcome the
presumption that, under the circumstances, the challenged action
might be considered sound trial strategy." Id. at 686-89.
Strickland imposes a "highly demanding" standard upon a movant to
prove the "gross incompetence" of his counsel. Kimmelman v.
Morrison, 477 U.S. 365
, 382 (1986); Buehl v. Vaughn,
166 F.3d 163
, 169 (3d Cir. 1999) ("Because counsel is afforded a wide
range within which to make decisions without fear of judicial
secondguessing, we have cautioned that it is `only the rare claim
of ineffectiveness that should succeed under the properly
deferential standard to be applied in scrutinizing counsel's
performance.'"). Prejudice requires proof "that there is a
reasonable probability that, but for the counsel's unprofessional
errors, the result of the proceedings would have been different.
A reasonable probability is a probability sufficient to undermine confidence
in the outcome." Strickland, 466 U.S. at 694.
1. Fundamental fairness of deportation proceedings
Fellows contends that his trial attorney provided ineffective
assistance of counsel by failing to file a motion to dismiss
Count One of the Indictment (reentry after deportation) based on
the fundamental unfairness of his deportation proceedings.
Specifically, Fellows contends that both the Immigration Judge at
his deportation hearing and the BIA violated his due process
rights by refusing to consider his request for a Section 212(c)
waiver of deportation pursuant to the Immigration and Nationality
Act, 8 U.S.C. § 1182(c). Fellows previously raised this due
process challenge on direct appeal of his conviction. In an
unpublished decision, the Third Circuit rejected Fellows' due
process claim on the merits. "There can be no Sixth Amendment
deprivation of effective counsel based on an attorney's failure
to raise a meritless argument." United States v. Sanders,
165 F.3d 248, 253 (3d Cir. 1999); see also United States v.
Orejuela, 639 F.2d 1055, 1057 (3d Cir. 1981) ("Once a legal
argument has been litigated and decided adversely to a criminal
defendant . . . [on] direct appeal, it is within the discretion
of the district court to decline to reconsider those arguments if
raised again in collateral proceedings under 28 U.S.C. § 2255.").
Accordingly, the Court denies the instant Motion with respect to
Fellows' claim that trial counsel was ineffective for failing to
file a motion to dismiss Count One of the Indictment based on the fundamental unfairness
of his deportation proceedings.
2. Waiver of jury trial
Fellows argues that his trial attorney provided ineffective
assistance of counsel by failing to challenge the sufficiency of
the oral colloquy conducted by this Court in connection with
Fellows' waiver of his right to jury trial. Prior to accepting
Fellows' written waiver of jury trial form, this Court conducted
the following colloquy:
THE COURT: I see that we have a waiver of jury trial
and why don't we enter into a colloquy with Mr.
Fellows with respect to this waiver. Mr. Ortiz
[Fellow's trial counsel], you may proceed. We have a
waiver of jury trial here?
MR. ORTIZ: Yes, your Honor. We are ready to proceed
by waiver of jury trial. I've signed my client and
I have gone over the waiver, we've reviewed it. I've
explained obviously the difference between a waiver
of trial and a jury trial and he's fully aware of
those differences and is ready to proceed today by
way of waiver of trial bench trial.
THE COURT: Mr. Fellows, you are entitled to a trial
by jury on these charges, you do understand that,
THE DEFENDANT: Yes, I do, your Honor.
THE COURT: And of course you may waive your right to
a jury trial, and unless you waive your right to a
jury trial, one would be held. Have you discussed
fully with your counsel your entitlement to a jury
trial and your privilege of waiving that jury trial?
THE DEFENDANT: Yes, I have, your Honor.
THE COURT: Do you have any questions with respect to your entitlement to a jury trial?
THE DEFENDANT: No, your Honor.
THE COURT: Is this your signature on the written
waiver of jury trial?
THE DEFENDANT: Yes, it is.
THE COURT: And it is your desire freely and
voluntarily to waive the jury trial in this case; is
THE DEFENDANT: Yes, it is.
THE COURT: Is the government ready to waive the jury
trial in this case?
MR. WRIGHT: Yes, sir.
THE COURT: Okay. We'll hand down to the Government,
for the Government's signature, and we'll accept the
(9/10/01 N.T. at 2-3.)
Federal Rule of Criminal Procedure 23(a) ("Rule 23(a)")
provides as follows:
(a) Jury Trial. If the defendant is entitled to a
jury trial, the trial must be by jury unless:
(1) the defendant waives a jury trial in writing;
(2) the government consents; and
(3) the court approves.
Fed.R.Crim.P. 23(a). Although Rule 23(a) does not require an
oral colloquy, the Third Circuit has stated that "a colloquy
between the district judge and the defendant is preferable to the
mere acceptance by the court of the written waiver and the filing
of it in the record of the case." United States v. Anderson, 704 F.2d 117
, 119 (3d Cir. 1983). Oral colloquies are not, however,
required procedure in this Circuit. Id. Instead, district
courts remain free "to employ the means most appropriate to a
particular case in order to insure that a defendant's waiver of
the right to a trial by jury is knowingly and intelligently
It is undisputed that the three prerequisites to waiver of the
right to jury trial, as set forth in Rule 23(a), were satisfied
in this case. Moreover, although an oral colloquy was not
required, the Court inquired into Fellows' knowledge of his right
to jury trial and the voluntariness of his waiver of that right.
Fellows' affirmative responses to the Court's inquiries confirmed
his express and intelligent consent to waiver of a jury trial.
Nevertheless, Fellows maintains that the Court's colloquy was
deficient because it failed to specifically advise him that
twelve members of the community compose a jury, that he may take
part in jury selection, that a jury verdict must be unanimous,
and that the court alone decides guilt or innocence in a non-jury
trial. In United States v. Duarte-Higareda, 113 F.3d 1000 (9th
Cir. 1997), a case cited by Fellows, the United States Court of
Appeals for the Ninth Circuit held that a district court "should"
provide this information in a waiver of jury trial colloquy.
Id. at 1002. However, the Duarte-Higareda court further noted
that district courts are not required to question the defendant
about his understanding of the jury waiver where, as here, the
defendant had signed a written waiver in accordance with
Rule 23(a). Id. at 1003 (citing United States v. Cochran, 770 F.2d 850, 853 (9th Cir.
1985)). In any event, the Third Circuit has elected to vest the
district courts with full discretion to determine the means most
appropriate to insure that a particular defendant has knowingly
and intelligently waived the right to jury trial. Anderson, 704
F.2d at 119. As Fellows' knowingly and intelligently waived his
right to jury trial in this case, his trial counsel cannot be
found ineffective for failing to make a meritless argument.
Sanders, 165 F.3d at 253. Accordingly, the Court denies the
instant Motion with respect to Fellows' claim that trial counsel
was ineffective for failing to object to the sufficiency of the
Court's waiver of jury trial colloquy.
3. Introduction of criminal history record
Fellows contends that his trial counsel was ineffective for
failing to object to the prosecution's introduction of his
criminal history at trial, and that his appellate counsel was
ineffective for failing to raise the issue on appeal. At trial,
the Government introduced a stipulation of facts that had been
signed by the prosecutor, defense counsel, and Fellows. Among
other things, the parties stipulated that "[p]rior to his May 8,
1998 deportation from the United States, Fellows was convicted in
New York [s]tate court of aggravated felonies including several
robberies, assault and at least one drug trafficking crime."
(Trial Stip. at 4.) During his opening statement, the prosecutor
also advised the Court that "[b]etween April 7, 1974 and May 8,
1998, Mr. Fellows was convicted in New York [s]tate [c]ourt of numerous crimes,
including at least one aggravated felony. He was convicted . . .
of drug trafficking crimes; he was convicted of robberies; he was
convicted of assault; he was convicted of larceny." (9/10/01 N.T.
Fellows correctly notes that the Government need not prove that
a defendant was previously convicted of an aggravated felony to
establish a violation of 8 U.S.C. § 1326 for reentry after
deportation. United States v. DeLeon-Rodriguez, 70 F.3d 764,
766-67 (3d Cir. 1995). As the Government points out, however,
there were no disputed factual issues in this case and Fellows'
sole legal defense was that the Indictment was defective for
failing to charge attempted reentry after deportation. This
Court's determination that the Indictment sufficiently charged
attempted reentry after deportation was affirmed by the Third
Circuit on direct appeal. As Fellows was not prejudiced by the
Court's knowledge of his criminal history, his ineffectiveness
claim must fail. Accordingly, the Court denies the instant Motion
with respect to Fellows' claim that trial counsel was ineffective
for failing to object to the prosecution's introduction of his
criminal history at trial and that appellate counsel was
ineffective for failing to raise the issue on appeal.
An appropriate order follows. ORDER
AND NOW, this 9th day of June, 2004, upon consideration of
Defendant Devon A. Fellows' Motion to Vacate, Set Aside or
Correct Sentence pursuant to 28 U.S.C. § 2255 (Docket No. 27),
and all attendant and responsive briefing thereto, and the record
of this case, IT IS HEREBY ORDERED that said Motion is DENIED
in all respects. As Defendant has failed to make a substantial
showing of the denial of a constitutional right, there is no
basis for the issuance of a certificate of appealability.
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