The opinion of the court was delivered by: Chief Judge Kane
Before the Court is Defendant's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255, as subsequently amended on July 15, 2005 ("Motion"). The Motion has been fully briefed and is ripe for disposition. For the reasons that follow, the Motion will be denied.
On the afternoon of March 1, 2002, Harrisburg Police Officers, with the assistance of a confidential informant, arranged a controlled purchase of crack cocaine from within the residence at 1929 Park Street, Harrisburg, Pennsylvania. In connection with this controlled buy, Lieutenant John Goshert, a former Harrisburg Police Officer,*fn1 met with the confidential informant, searched her, provided her with $20 in serialized currency, delivered her to the area of 1929 Park Street, watched her knock on the front door of the residence and enter the home, and waited for her to return. When the confidential informant returned, she no longer had the serialized currency, but did have two plastic baggies containing what was determined to be crack cocaine. (Tr. 67-68.)
Lieutenant Goshert provided information regarding the controlled buy to John Evans, who was at that time an investigator with the Harrisburg Police Department. On March 4, 2002, Evans prepared an affidavit in support of a search warrant application for authority to search 1929 Park Street. Among other representations, Evans's affidavit provided as follows: within the past 72 hours a controlled buy was made from Lamar Brown inside of 1929 Park St. This was made by a reliable confidential informant under police supervision. The informant was searched before and after the purchase. The purchase was made using serialized currency. This controlled buy was conducted by Lt Goshert, who did field test this cocaine which did test positive. This reliable informant also informed Lt Goshert that they have bought both crack and powder cocaine from LA [an alias used by Brown] on numerous past occasions and that the informant has also observed a handgun in the possession of LA. This informant also stated to Lt. Goshert that the informant has purchased crack cocaine and powder cocaine from LA while he was inside a Plymouth van Pa. Reg. #CHOOPTY. This informant has provided information to Lt. Goshert and other law enforcement officers in the past which proved to be true and correct and resulted in the arrest and conviction of numerous persons for drug law violations. (Aff. of Probable Cause, Attached as Exhibit to Doc. No. 66.) The search warrant application was subsequently granted.
On March 6, 2002, police officers executed the search warrant on 1929 Park Street. This search yielded a large quantity of crack cocaine along with marijuana and cash located in Petitioner's bedroom. On April 10, 2002, Petitioner was indicted and charged with possession with intent to distribute in excess of 50 grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1). Defendant pleaded not guilty to the charges.
Prior to trial, Petitioner, through his counsel, filed a motion to suppress the drug evidence seized during the search, arguing that Investigator Evans's warrant application and affidavit contained false statements without which there would have been no probable cause to issue the search warrant. In connection therewith, Petitioner moved for a hearing under Franks v. Delaware, 438 U.S. 154 (1978) ("Franks hearing") to establish whether the warrant was defective for containing false information. Also in that motion, Petitioner asked the Court to direct the Government to disclose the name of the confidential informant whose information was used to support the warrant application. Petitioner appended his own affidavit to the motion, attesting to the truth of the representations contained in the motion that no drug transaction took place within 1929 Park Street. By memorandum and order dated October 2, 2002, the Court denied the motion and Petitioner's request for a Franks hearing, and denied Petitioner's request for an in camera disclosure of the confidential informant's identity.
Following a jury trial, Petitioner was convicted on October 8, 2002, of possessing with intent to distribute in excess of 50 grams of crack cocaine and less than 100 grams of marijuana, in violation of 21 U.S.C. § 841(a)(1). Petitioner was subsequently sentenced to life imprisonment. He is currently incarcerated at the United States Penitentiary in Lewisburg, Pennsylvania.
On June 26, 2003, Petitioner filed a notice of appeal with the United States Court of Appeals for the Third Circuit. (Doc. No. 55.) On December 17, 2003, the Third Circuit dismissed the appeal upon Petitioner's request. (Doc. No. 60.) According to Petitioner's counsel, he and Petitioner determined strategically that Petitioner's challenges to the Court's denial of the motion to suppress and his conviction and sentence had a greater chance of success if brought through a habeas proceeding pursuant to 28 U.S.C. § 2255.
On July 9, 2004, Petitioner filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 that is currently pending before the Court, as subsequently amended. By this motion, Petitioner seeks habeas relief on the grounds that his trial counsel, Assistant Federal Public Defender Lori Ulrich, Esq., provided constitutionally ineffective representation by, inter alia, failing "to adequately support the [previous] request for a Franks hearing." (Doc. No. 66.) In this regard, Petitioner contends that his trial attorney did not adequately "challenge the quantum of information supplied in the search warrant affidavit." (Id.) Petitioner maintains that if his trial counsel had "sufficiently challenged the veracity of all pertinent participants in the alleged drug transaction that preceded [Petitioner's] arrest, it is believed that this court would have granted a Franks hearing." (Id.) On September 9, 2004, the Government filed a timely brief in opposition to Petitioner's motion, arguing, inter alia, that Petitioner's motion is an improper attempt to re-litigate an issue that the Court previously addressed. (Doc. No. 67.) In its initial response, the Government also discounted the motion as yet another improper attempt by Petitioner to learn the identity of the confidential informant whose information led, in part, to the issuance of the warrant authorizing the search of 1929 Park Street.
On February 8, 2005, the Court convened an evidentiary hearing on Petitioner's motion. During this hearing, Petitioner called six witnesses to testify, including: (1) his mother, Carol Totton; (2) his daughter, Latasha Thompson; (3) his former girlfriend, Jacqueline Hernandez; (4) his trial counsel, Lori Ulrich, Esq.; (5) Lieutenant Goshert; and (6) William Jackson, a detective with the Harrisburg Police Department. In addition to these witnesses, Petitioner testified on his own behalf, steadfastly maintaining that he never sold drugs out of the house.
Carol Totton offered an affidavit in which she attested to who was living in the home in early March 2002, and further attested that only a limited number of friends and relatives came into the home between March 1, 2002, and March 6, 2002. Nevertheless, Ms. Totton acknowledged that she worked on March 1, 2002, during the afternoon and evening and was not home during that period of time. (Tr. 35.) Petitioner's daughter, Latasha Thompson, testified that she was home all day on March 1, 2002, and "did [not] allow anyone into the house on that particular date to meet with Lamar Brown." (Tr. 40.) Jacqueline Hernandez testified that she lived with Petitioner at 1929 Park Street, and was typically home when she was not working or out of the house with Petitioner. (Tr. 46.) Ms. Hernandez testified that she did not recall March 1, 2002, and testified further that it would have been a day that she was at work. (Id.)
Petitioner next called his trial counsel, Lori Ulrich. Attorney Ulrich testified that throughout her representation of him, Petitioner adamantly denied that a drug transaction took place within 1929 Park Street. (Tr. 47.) Although Attorney Ulrich was aware that Petitioner lived in a home together with his mother, daughter, and girlfriend, she acknowledged that she did not approach any of these people to provide affidavits to support Petitioner's contention that no drug transaction took place on March 1, 2002, and did not believe that she had a good reason to do so. Attorney Ulrich testified that she filed a motion to suppress the evidence seized during the search of Petitioner's home, and that the motion was denied without a hearing shortly before trial commenced. Attorney Ulrich testified further that prior to trial, she had no additional information that she believed would have bolstered the motion to suppress, and that her client did not express dissatisfaction with the motion and supporting brief that were submitted in support of the motion to suppress, nor did he urge her to interview any other individuals to support his assertion that no drug transaction took place out of 1929 Park Street. (Tr. 61-62.)
Following Attorney Ulrich's testimony, Petitioner called Lieutenant Goshert to testify. Lieutenant Goshert testified that he was the officer in charge of arranging the controlled purchase from 1929 Park Street on March 1, 2002, and he testified unequivocally that a controlled buy did, in fact, take place on that date. (Tr. 65-66.) Lieutenant Goshert testified further that he met with the confidential informant, searched her, provided her with serialized currency, dropped her off in the area of 1929 Park Street, and waited for her to return. (Tr. 66.) After the confidential informant returned, she advised Lieutenant Goshert that Petitioner had sold her crack cocaine, and she produced two plastic baggies containing what Lieutenant Goshert field-tested as crack cocaine. (Id.) Lieutenant Goshert next testified that the confidential informant had died during the summer of 2004, and revealed that her name was Bonnie Wieser and that she also used several aliases. (Tr. 67.) Lieutenant Goshert testified that he did not videotape the controlled buy, nor did he make an audiotape of his conversations with Ms. Wieser, and he did not photocopy the serialized currency that Ms. Wieser used to purchase the drugs from within the residence. (Id. 69-70.) Upon questioning from the Government, Lieutenant Goshert testified that the controlled buy took place around 2:00 p.m., and that Ms. Wieser was used as a confidential informant because she indicated that she had purchased from Petitioner in the past, and could purchase from him out of his residence. (Tr. 73.)
At this point of the evidentiary hearing, Petitioner's counsel advised the Court that he had subpoenaed a number of additional law enforcement officers, one of whom was Investigator Evans, the officer who prepared the affidavit in support of the search warrant to search Petitioner's home. Investigator Evans did not appear for the hearing, and may not have received a subpoena. Petitioner's counsel then advised the Court that Investigator Evans had recently been charged with 69 counts of tampering with evidence, possession of cocaine, and theft of drugs and evidence. (Tr. 76.) Petitioner's counsel offered his belief that Evans and his criminal charges were relevant to the immediate habeas proceedings. (Id.)
The Government challenged the relevance of Evans and his criminal charges to the current proceedings, and requested an offer of proof. (Tr. 77.) Additionally, the Government emphasized that Lieutenant Goshert -- who actually arranged and managed the controlled buy from Petitioner's home on March 1, 2002 -- testified about the controlled buy and identified the deceased confidential informant, thereby confirming the truth of the information contained in Evans's affidavit. The Government also reminded Petitioner's counsel that the sole basis for the pending motion under § 2255 was Petitioner's contention that his trial counsel had been ineffective with respect to supporting ...