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.
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.
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 ...