The opinion of the court was delivered by: Bloch, District J.
On March 31, 2004, Petitioner filed a Motion and Brief to Vacate Conviction and Sentence under 28 U.S.C. § 2255 (doc. no. 54) ("Motion"), and an unsigned Supplemental Motion to Vacate Conviction and Sentence under 28 U.S.C. § 2255 (doc. no. 55), in the above-captioned matter. On April 29, 2004, he filed a new signed version of his Supplemental Motion to Vacate Conviction and Sentence under 28 U.S.C. § 2255 (doc. no. 58) ("Supplemental Motion"). On February 15, 2005, he filed a Motion to file another Supplemental Motion to Vacate Conviction or Correct Sentence under 28 U.S.C. § 2255 (doc. no. 62) ("Second Supplemental Motion"). Upon consideration of these motions, and upon further consideration of the Government's responses thereto (doc. nos. 60, 63) and Petitioner's Return Response to Government's Response to Petitioner's § 2255 Motion (doc. no. 61), Petitioner's Return Response to the Government's Response to Supplement[al] § 2255 Motion to Vacate, Set Aside or Correct Sentence (doc. no. 65), and Memorandum of Law in Opposition to Government's Request that Pro Se Supplements to Clayton Lilly's Timely Filed Motion to Vacate be Treated as Successive Motions (doc. no. 68), the Court denies Petitioner's Motion, Supplemental Motion, and Second Supplemental Motion for the reasons set forth below.*fn1
In July of 2001, a grand jury returned an Indictment charging Petitioner with possession with intent to distribute in excess of 50 grams of a mixture and substance containing a detectable amount of cocaine base, in the form commonly known as crack, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii).
Petitioner pled not guilty to these charges and filed a Motion to Suppress Evidence (doc. no. 22). On November 13, 2001, the Court held a suppression hearing and commenced a non-jury trial after indicating that both the Petitioner and the Government had requested a non-jury trial (doc. no. 30). On December 27, 2001, Petitioner filed a written Waiver of Jury Trial signed and dated by Petitioner on December 21, 2001 (doc. no. 33). On January 3, 2002, the Court issued its Findings of Fact and Conclusions of Law, finding Petitioner guilty as charged in the Indictment (doc. no. 34).
The Probation Officer, in the Presentence Investigation Report ("PIR"), concluded that Petitioner was a career offender under the United States Sentencing Guidelines subject to a sentencing range of 360 months to life imprisonment. After objections filed by the parties, the Court issued its Tentative Findings and Rulings Concerning Disputed Facts and Factors (doc. no. 39)("Tentative Findings"). In the Tentative Findings, the Court, on the basis of Petitioner's counsel's motion for a downward departure, found that the career offender designation significantly overstated the seriousness of Petitioner's criminal history and, therefore, applied the guideline range to which Petitioner would have been subjected absent application of the career offender enhancement. Accordingly, the Court found that Petitioner's total offense level was 34, and that Petitioner's sentencing range was 188 to 235 months rather than 360 months to life. On April 4, 2002, the Court sentenced Petitioner to the bottom of this range, 188 months, to be followed by a five-year term of supervised release. See Transcript of Sentence Proceedings (doc. no. 49).
On April 5, 2002, Petitioner appealed, challenging his conviction. After the filing of Petitioner's notice of appeal, his trial counsel, William E. Stockey, withdrew as counsel. See doc. nos. 44, 50. Peter A. Levin represented Petitioner on appeal. On March 27, 2003, the Third Circuit rejected Petitioner's appeal and affirmed his conviction.
On March 31, 2004, Petitioner, acting pro se, filed a motion to vacate his conviction and sentence pursuant to 28 U.S.C. § 2255 (doc. no. 54), and an unsigned supplemental motion to vacate his conviction and sentence (doc. no. 55). As discussed above, on April 1, 2004, the Court ordered Petitioner to advise the Court as to whether he wished to have his motions ruled upon as filed and lose the ability to file successive petitions absent Third Circuit certification, or whether he wished to withdraw the motions and file one all-inclusive Section 2255 petition within the one-year statutory period of the AEDPA. As discussed above, Petitioner elected to have the Court rule on his initial Motion and a new version of his Supplemental Motion filed that same day.*fn2 As noted, the Court is treating the Motion and the Supplemental Motion as an all-inclusive Section 2255 motion. On February 15, 2005, he filed his Second Supplemental Motion (doc. no. 62). The Court will address the claims raised in each of these motions below.
As noted above, pro se pleadings are held to less stringent standards than formal pleadings drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972); Holley v. Department of Veterans Affairs, 165 F.3d 244, 247 (3d Cir. 1999). However, even a pro se plaintiff must be able to prove a "set of facts in support of his claim which would entitle him to relief." Haines, 404 U.S. at 520-21 (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
Title 28 U.S.C. § 2255 permits 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 . . . [to] move the court which imposed the sentence to vacate, set aside or correct the sentence." An evidentiary hearing is not required on a Section 2255 motion if "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255. As discussed below, the record in this case demonstrates that Petitioner is not entitled to relief under Section 2255, and therefore, no evidentiary hearing is necessary.
A. Petitioner's Initial Motion
Almost all of the claims contained in the Motion are claims that Petitioner was denied his Sixth Amendment right to effective assistance of counsel. For the reasons that follow, this Court rejects Petitioner's contentions.*fn3
A petitioner seeking relief under Section 2255 on the grounds of ineffective assistance of counsel "must show both that:
(1) counsel's representation fell below an objective standard of 'reasonableness under prevailing professional norms;' and (2) the defendant suffered prejudice as a result -- that is, there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different." Sistrunk v. Vaughn, 96 F.3d 666, 670 (3d Cir. 1996) (citing Strickland v. Washington, 466 U.S. 668, 694 (1984)). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.
In reviewing counsel's performance, [a court] must be highly deferential. [A court] must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct. Moreover, [a court] must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.
Sistrunk, 96 F.3d at 670 (citing Strickland, 466 U.S. at 689-90) (internal quotation marks and citations omitted). "It is only the rare claim of ineffective assistance of counsel that should succeed under the properly deferential standard to be applied in scrutinizing counsel's performance." United States v. Kauffman, 109 F.3d 186, 190 (3d Cir. 1997).
1. Claim One: Failure to Challenge Search Warrant
Petitioner argues that he was denied effective assistance of counsel because his counsel failed to properly challenge the fact that "the 5:00 p.m. search warrant" was executed without a probable cause affidavit attached to it. The record conclusively shows that this claim does not present a colorable basis for relief under Section 2255.
Contrary to Petitioner's assertions, the record evidence demonstrates that the search warrant at issue did indeed have an affidavit of probable cause attached. On the first page of the warrant, a box is checked indicating that a probable cause affidavit is attached, and it is noted that the total number of pages constituting the warrant is four. See Government's Response to Motion to Vacate and Supplemental Motion to Vacate under 28 U.S.C. § 2255 ("Government's Response" or "Govt. Resp."), Ex. A. The pages of the warrant are numbered beginning on page two, and the pages are designated "Page 2 of 4," "Page 3 of 4," and "Page 4 of 4" respectively. Pages three and four consist of an affidavit of probable cause signed by Officer Holland. Each of the four pages was signed by the issuing district justice on the same date, June 30, 2001. This indisputably shows that the probable cause affidavit was attached to and part of the warrant at issue. As such, it can hardly be said that Petitioner's counsel was unconstitutionally deficient in failing to argue otherwise.
2. Claim Two: Failure to Advise of Right to a Jury Trial
Petitioner next argues that he was prejudiced by his counsel's objectively unreasonable failure to advise him of his right to a trial by jury and to have him sign a waiver of his right to a jury trial prior to or at the time of trial. This argument has no merit.
As to Petitioner's claim that he was never advised that he had the right to a jury trial, the record conclusively demonstrates that this is not true. Petitioner signed a Waiver of Jury Trial on December 21, 2001 (doc. no. 33).*fn4 His counsel stated in a May 19, 2004 affidavit that he did inform Petitioner that he had a right to trial by jury and that, upon his advice, Petitioner knowingly and willfully waived that right. See Govt. Resp., Ex. C at ¶¶ 4-5. Further, the Court, at the beginning of the non-jury trial on November 13, 2001, stated that "the record should show that both the government and the [Petitioner] have requested a non-jury trial." Transcript of Suppression Hearing/Non-Jury Trial Commencing on Tuesday, November 13, 2001 ("Trial Transcript" or "Trial Tr.") at 3. The fact that Petitioner did not object when the Court indicated that he had agreed to a non-jury trial demonstrates that this was consistent with what he wanted at the time. Finally, Petitioner, in his appellate brief, again confirmed that he had waived his right to a jury trial. See Govt. Resp., Ex. F at 5.
These facts demonstrate indisputably that Petitioner was well-aware of his right to a jury trial. Petitioner simply cannot get a second chance with a jury after taking his chances with the Court based on a self-serving claim, wholly refuted by the record, that he was not advised of his right to a jury trial.*fn5
As to Petitioner's argument that his counsel was unconstitutionally deficient in failing to have him sign a waiver of his right to a jury trial prior to or at the time of trial, this claim fails as a matter of law. Federal Rule of Criminal Procedure 23 provides that if a 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). Here, all three of these conditions were met. As stated, Petitioner did waive his right to a jury trial in writing, and the Government consented and the Court approved of the non-jury trial.*fn6 See Trial Tr. at 3.
Petitioner's argument is that there is an additional requirement that all of these conditions be met prior to the commencement of the trial. The Court disagrees. Rule 23 sets no time limit on when a defendant can waive his right to a jury trial, and there is no reason to believe that due process would require a signed waiver prior to trial, especially where, as here, there had been a verbal manifestation of the defendant's waiver prior to the commencement of trial. Indeed, courts have held that a written waiver of the right to a jury trial is effective when filed while a case is still pending, even if not filed prior to the commencement of trial. See United States v. Wagner, 12 Fed. Appx. 219 (6th Cir. 2001). See also United States v. Prichard, 875 F.2d 789 (10th Cir. 1989).*fn7 Here, Petitioner's waiver was signed and filed before the Court rendered a decision in his case, and therefore, while the case was still pending. Hence, there is no merit to the argument that Petitioner's waiver was ineffective, and Petitioner's counsel was not deficient in failing to make this argument.
Moreover, Petitioner cannot establish that he was prejudiced by the fact that his waiver was signed after the commencement of the non-jury trial. Regardless of when the waiver was filed, as discussed above, the Court stated for the record prior to the trial that Petitioner had agreed to a non-jury trial. See Trial Tr. at 3. As long as his waiver was knowing and voluntary, and this Court has found that it was, the mere timing of the filing of the written waiver has no impact on the proceedings. See Prichard, 875 F.2d at 790 ("Collateral relief is not available when all that is shown is a failure to comply with the formal requirements of a rule of criminal procedure in the absence of any indication that the defendant was prejudiced by the technical error."). Accordingly, the record conclusively establishes that Petitioner is not entitled to relief as to Claim Two.
3. Claim 3: Failure to Challenge Court's Ruling as to a Franks Hearing
Petitioner next argues that his counsel was ineffective because he failed to properly challenge the Court when it erred in not allowing Petitioner a Franks hearing. He claims that counsel should have filed a post-conviction motion regarding this matter. The Court finds no merit in Petitioner's claim.
Petitioner's counsel requested a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), and the Court, at the non-jury trial, denied this request. See Trial Tr. at 5-8. After this denial, counsel for Petitioner restated Petitioner's position with respect to this issue. See id. at 8-9. Petitioner's appellate counsel, in his brief to the Third Circuit, again raised the issue of the Court's denial of Petitioner's request for a Franks hearing. See Govt. Resp., Ex. F at 10-14.
The record, therefore, makes it clear that Petitioner's trial counsel and his appellate counsel both set forward the position that Petitioner was entitled to a Franks hearing to no avail. While no post conviction motion regarding this issue was filed with this Court, given that the Court had already denied Petitioner's request for a Franks hearing and that the issue was raised on appeal, it cannot be said that Petitioner's trial counsel was deficient in failing to file such a motion. In any event, Petitioner cannot show that there is a reasonable probability that the Court's determination would have changed had such a motion been ...