The opinion of the court was delivered by: Arthur J. Schwab United States District Judge
MEMORANDUM AND ORDER OF COURT
Before the Court is Petitioner Gregory Lynn Morris's Petition under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct a Sentence by a Person in Federal Custody (Doc. No. 70), and his Supplemental Motion (Doc. No. 77) which together raise fourteen grounds for relief. This Court reviewed his initial petition preliminarily, and pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings, ordered the government to file a response. The Government's Response (Doc. No. 78) is directed to both the initial and supplemental petitions; thereafter petitioner filed a reply (Doc. No. 79), Supplemental Appendix (Doc. No. 82), and additional Exhibits (Doc. No. 83).
II. PROCEDURAL HISTORY AND BACKGROUND
A. Pretrial and Trial Proceedings
On August 27, 2003, Morris was indicted and charged with one count of possession with the intent to distribute more than 50 grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(A)(iii), and one count of possession with intent to distribute more than 500 grams of cocaine, in violation of 21 U.S.C. §841(b)(1)(B)(ii), both in the Western District of Pennsylvania.
The indictment stemmed from a traffic stop made on December 14, 2002, in which Petitioner was pulled over for swerving three times over a divided line road. The officers conducted a sobriety test that Petitioner failed. Petitioner was subsequently arrested for a DUI and transported to Forbes Regional Hospital in Wilkinsburg, PA. The officers then conducted an inventory search of Petitioner's truck, and found several bags containing white powder and chunky substances inside a book bag in the extended cab portion of the truck.
On November 5, 2003, Petitioner made his initial appearance, arraignment and detention hearing dates were set, and Attorney Gary B. Zimmerman entered his notice of appearance. On November 24, 2003, the Arraignment and Detention hearing for Petitioner was held, at which time Petitioner pled not guilty.
On December 22, 2003, Petitioner filed pretrial motions, including a Motion to Suppress Physical Evidence which asserted that the inventory search of his truck was illegal because it violated the Wilkins Township inventory procedures in the following respects: (i) there was no need to impound the truck because Petitioner's fiancee, Ms. Roscoe, was available to remove the vehicle, suggesting the inventory search was a pretext for a search without probable cause; (ii) the search violated the Wilkins Township inventory policy in that defendant was not given an opportunity to remove the valuables from the car prior to impoundment; or (iii) to verify the completeness of the inventory by his signature.
This Court followed the reasoning in Opperman, in which an inventory of a lawfully impounded automobile, where standard police procedures are followed, is not unreasonable under the Fourth Amendment. South Dakota v. Opperman, 428 U.S. 364, 376 (1976). Unless police act in bad faith or for the sole purpose of investigation, evidence obtained during an inventory search conducted pursuant to standardized procedures is admissible. Colorado v. Bertine, 479 U.S. 367, 372 (1987). On June 16, 2004, the Court found that the inventory of defendant's truck was made pursuant to standard Wilkins Township procedures, and that there was no evidence that the search was conducted in bad faith or to investigate for evidence of crimes, and so denied the Motion to Suppress. Memorandum Opinion, June 16, 2004 (Doc. No. 30).
On November 4, 2004, counsel for Petitioner and the government filed a stipulation as to the presence and weight of the drugs found in the truck, which states that "if called, . . . a criminalist with the Allegheny County Coroner's Office . . . would testify that he examined and tested the substances recovered from the yellow backpack in this case, as submitted by the Wilkins Township Police," and determined that it contained the following substances and quantities:
Bag #1 contained 732.8 grams of off-white chunky powder, which tested positive for the presence of cocaine hydrochloride . . .
Bag #2 contained 595.2 grams of off-white chunky powder, which tested positive for the presence of cocaine hydrochloride . . . The total weight of the cocaine powder was 1,328.0 grams . . .
Bag #3 contained 123.75 grams of chunky brown solid, which tested positive for the presence of cocaine base. . . . This cocaine base was in the form commonly known as "crack," . . .
Bag #4 contained 109.29 grams of chunky brown solid, which tested positive for the presence of cocaine base . . . This cocaine base was in the form commonly known as "crack." . . . The total weight of the cocaine base was 233.04 grams.
Stipulation (Doc. No. 47).
On November 5, 2004, the government filed an information regarding a prior conviction for a drug related offense, pursuant to 21 U.S.C. § 851, for purposes of sentence enhancement (Doc. No. 49). On November 8, 2004, Petitioner's trial began, and the jury reached a verdict of guilty on both counts on November 16, 2004.
On March 4, 2005, Petitioner was sentenced to 240 months imprisonment on Count One, Possession with Intent to Distribute 50 grams or more of cocaine base, and 240 months imprisonment on Count Two, Possession with the Intent to Distribute 500 grams or more of cocaine, to be served concurrently. The Court further ordered that the term of imprisonment be followed by 10 years of supervised release on both counts, to be served concurrent, and that Petitioner pay a special assessment of $200.
Petitioner appealed the judgment on March 4, 2005, challenging this Court's denial of his motion to suppress the physical evidence from the search of the truck and seizure of his book bag and drugs contained therein. On May 5, 2006, the United States Circuit Court of Appeals for the Third Circuit, in a 2-1 panel decision, affirmed the conviction and upheld the search of the truck. United States v. Morris, 179 Fed.Appx. 825, 826 (3d Cir. 2006) (Becker, J., dissenting). The Court held that the warrantless search of the Petitioner's truck was permissible under the inventory search exception to the warrant requirement. Id. Further, the Court held that the drugs found within the book bag were subject to the inevitable discovery exception to the exclusionary rule. Id. Petitioner's timely petition for rehearing was denied on June 29, 2006. Petitioner filed a pro se petition for writ of certiorari on August 14, 2006, which was denied on November 27, 2006.
C. The Motion to Vacate (Doc. No. 70)
On January 18, 2007, Petitioner filed a pro se Motion to Vacate under 28 U.S.C. § 2255 (Doc. No. 70), listing the following thirteen grounds in support of the motion, mostly all in the context of ineffective assistance of trial and/or appellate counsel: (I) Sixth Amendment violation of constitutional right to effective assistance of counsel; (II) Fifth Amendment violation of protection against self-incrimination; (III) use of a coerced confession; (IV) Violation of Due Process because of prosecutorial vouching for Government witnesses and improper closing arguments; (V) Conviction or sentence obtained in violation of the protection against double jeopardy; (VI) Counsel failed to raise at sentencing and on appeal that a Booker violation occurred and that Petitioner's sentencing enhancement should not have applied; (VII) Counsel was ineffective for not arguing or appealing that the sentencing court had viewed the crack/power cocaine differential as mandatory; (VIII) Counsel failed to argue that the district court should have stricken the word "cocaine base," commonly known as crack, from the indictment; (IX) The prior 1986 state drug conviction used to enhance Petitioner's federal sentence was constitutionally defective; (X) Counsel was ineffective for failing to properly challenge or appeal erroneous jury instructions; (XI) Counsel's multiplicity of errors prejudiced Petitioner and thereby denied him his Sixth Amendment constitutional rights to effective assistance of counsel and a fair trial; (XII) Counsel was ineffective in failing to call an important witness, Neil Chandler, to testify at trial; and (XIII) Petitioner's criminal history points were improperly calculated, affecting his placement in the sentencing guidelines, and his eventual sentence.
In his supplemental motion, Petitioner added a fourteenth ground for relief, namely: (XIV) federal courts have no jurisdiction over criminal offenses because when 18 U.S.C. § 3231 (original jurisdiction of district courts over offenses against the laws of the United States) was enacted, Congress had adjourned on June 20, 1948 and ceased to exist, and Representative Martin and Senator White exercised "unlawful" Concurrent Resolution authority when they "sign[ed] H.R. 3190 into law without having a vote on it and having such vote entered on the Journal." Petitioner's Supplemental Motion ("Supplemental Motion"), at 10-12.
On March 30, 2007, the government filed its response to Petitioner's motion and supplemental motion and on April 24, 2007, Petitioner replied to the government's response.
On May 30, 2007, this Court filed a Memorandum Opinion and Order (doc. no. 81) stating that an evidentiary hearing may be required as to one issue raised in Petitioner's Ground XII: whether Petitioner's trial counsel was ineffective in failing to call a witness, Neil Chandler, whom Petitioner asserts would have corroborated his trial testimony and defense. Specifically, this Court stated:
After careful consideration of the initial and supplemental petitions, the government's response and petitioner's reply, the Court is of the opinion that an evidentiary hearing may be required under Rule 8 as to one issue*fn1 designated Ground XII: whether petitioner's trial counsel was ineffective in failing to call a witness, Neil Chandler, who, petitioner asserts, would have corroborated his trial testimony and defense that the crack cocaine found in his vehicle belonged to and was placed there (unbeknownst to him) by a man named Joey Lewis, a/k/a "Joey Crack," to whom petitioner had lent his vehicle earlier that evening. If proven, this issue could, conceivably, present a viable ground for relief. See Berryman v. Morton, 100 F.3d 1089 (3d Cir. 1996)(failure to investigate potential material defense witnesses fell below professional standards of competence, and prejudiced petitioner under Strickland).
However, before deciding whether to conduct a Rule 8 evidentiary hearing, this Court must first determine whether petitioner's Ground XII presents a viable claim, and will therefore require petitioner, pursuant to Rule 7 of the Rules Governing Section 2255 Proceedings, to submit a sworn Affidavit by Neil Chandler to the Court setting forth the following: (i) the nature and substance of his proposed testimony; (ii) whether he is available and willing to testify on petitioner's behalf; (iii) whether he was available and willing to testify on petitioner's behalf at his trial in November, 2004; and (iv) whether he was interviewed by trial counsel or anyone assisting trial counsel prior to the trial and, if so, the nature and substance of the information he gave to trial counsel.
After receiving said Affidavit, the Court will then determine whether to conduct a Rule 8 evidentiary hearing on this or any other issues raised by petitioner as grounds for relief under Section 2255, and whether to appoint counsel. Accordingly,
AND NOW, this 30th day of May 2007,IT IS HEREBY ORDEREDthat on or before July 31, 2007, petitioner shall file with the Court a sworn Affidavit by Mr. Neil Chandler as set forth above. The Court will thereafter determine the viability of this ground for relief, and whether to schedule an evidentiary hearing. Memorandum Opinion (doc. no. 81), at 1-2.
Petitioner has not submitted an Affidavit by Chandler or any other supporting witnesses, nor has he submitted any explanation for his failure to file such an Affidavit.
A. 28 U.S.C. § 2255: Petition to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody
28 U.S.C. § 2255 provides: A prisoner in custody under sentence of a court established by Act of Congress . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence. Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.
Whether to conduct a hearing is within the sound discretion of the district court. United States v. Day, 969 F.2d 39, 41 (3d Cir. 1992), quoting Government of the Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989), cert denied 500 U.S. 954 (1991). In exercising that discretion, "the court must accept the truth of the movant's factual allegations unless they are clearly frivolous on the basis of the existing record. Further, the court must order an evidentiary hearing to determine the facts unless the motion and files and records of the case show conclusively that the movant is not entitled to relief." Day, 969 F.2d at 41-42 (citation omitted). See also,Rules Governing 2255 Proceedings, Rules 4 and 8.
A section 2255 motion "can be dismissed without a hearing [only] if (1) the petitioner's allegations, accepted as true would not entitled the petitioner to relief, or (2) the allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact." United States v. McCoy, 410 F.3d 124, 134 (3d Cir. 2005) citing Engelen v. United States, 68 F.3d 238, 240 (8th Cir.1995). The court should view the factual allegations in the light most favorable to the petitioner. Government of the Virgin Islands v. Weatherwax, 20 F.3d 572, 574 (3d Cir.1994) (district court erred in failing to conduct evidentiary hearing on petitioner's non-frivolous allegations of ineffective assistance of counsel) (subsequent history omitted). The district court abuses its discretion when it fails to grant an evidentiary hearing "when the files and records of the case are inconclusive on the issue of whether [the] movant is entitled to relief." McCoy, 410 F.3d at 133,quoting Solis v. United States, 252 F.3d 289, 293 (3d Cir. 2001). In reviewing a pro se motion, the court must "construe . . . pleadings, and . . . 'apply the applicable law, irrespective of whether a pro se litigant has mentioned it by name.'" Higgins v. Beyer, 293 F.3d 683 (3d Cir. 2002) quoting Holley v. Dep't of Veteran Affairs, 165 F.3d 244, 247-48 (3d Cir. 1993)
The standard of review for a section 2255 motion raising issues that were available but not previously presented is the "cause and actual prejudice" standard. United States v. Frady, 456 U.S. 152 (1982). "Under this standard, to obtain collateral relief based on trial errors to which no contemporaneous objection was made, a convicted defendant must show both (1) 'cause' excusing his double procedural default, and (2) 'actual prejudice' resulting from the errors of which he complains." Frady, 456 U.S. at 167-68. The United States Court of Appeals for the Third Circuit has stated that "[t]he proper device for challenging assistance of counsel is a motion under 28 U.S.C. § 2255." United States v. Mustafa, 238 F.3d 485, 497 (3d Cir. 2001). "In Massaro v. United States, 538 U.S. 500 (2003), the Supreme Court held that 'an ineffective-assistance-of-counsel claim may ...