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U.S. v. FELLOWS

June 9, 2004.

U.S.
v.
DEVON A. FELLOWS.



The opinion of the court was delivered by: JOHN PADOVA, District Judge

MEMORANDUM

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.

I. BACKGROUND

  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 deported.

  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)).

  III. DISCUSSION

  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 proceedings.
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 appeal.
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, don't you?
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 ...

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