The opinion of the court was delivered by: Bruce W. Kauffman, J.
On April 20, 2005, Shamsud-Din Ali ("Petitioner") pled guilty to four counts of tax evasion, in violation of 26 U.S.C. § 7201. Subsequently, on June 14, 2005, following a trial by jury, he was found guilty of twenty-two counts of the Superseding Indictment, including one count of racketeering, in violation of 18 U.S.C. § 1962(c); one count of racketeering conspiracy, in violation of 18 U.S.C. § 1962(d); two counts of conspiracy to commit mail fraud, in violation of 18 U.S.C. § 371; three counts of mail fraud, in violation of 18 U.S.C. § 1341; eleven counts of interstate travel in aid of racketeering, in violation of 18 U.S.C. § 1952; one count of bank fraud, in violation of 18 U.S.C. § 1344; and three counts of extortion, attempted extortion, and conspiracy to commit extortion, in violation of 18 U.S.C. § 1952.
On September 21, 2005, the Court sentenced Petitioner to a total of 87 months imprisonment, five years of supervised release, $365,440.34 in restitution, and a $2,600 special assessment. Petitioner appealed his conviction and the Third Circuit affirmed. See United States v. Ali, 493 F.3d 387 (3d Cir. 2007). Now before the Court is Petitioner's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (the "Motion"). He argues that he is entitled to relief on five grounds, all based on the premise that his attorney throughout the proceedings ("Counsel") provided him with ineffective assistance. For the reasons that follow, the Motion will be denied.
The Sixth Amendment of the United States Constitution establishes the right to effective assistance of counsel. To demonstrate a Sixth Amendment violation, Petitioner must prove: (1) that his "counsel's performance was deficient" and (2) that the deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 687 (1984). Petitioner's burden under the first prong of Strickland is to show that his counsel's representation fell below an "objective standard of reasonableness." Id. at 688. The 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.'" Id. at 689. Under the second prong of the Strickland test, "[i]t is not enough for the [petitioner] to show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693. The question, instead, is whether "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.
A. Failure to Object to the Expunged Conviction in the Wiretap Affidavit
Petitioner claims that Counsel should have objected to evidence obtained via a wiretap because the affidavit used by the Government to obtain permission to conduct the wiretap contained a reference to Petitioner's expunged conviction. The affidavit stated in relevant part as follows:
In October 1973, [Shamsud-Din Ali] was convicted of the murder of Reverend Clarence M. Smith, a rival religious leader who was allegedly murdered because he preached against criminal activity in the Muslim community. ALI was sentenced to life imprisonment and spent approximately five years in state prison. ALI was released from prison after his conviction was overturned by the Pennsylvania Supreme Court. ALI was granted a new trial, but the charges were eventually dropped because the only eyewitness in the case, the daughter of Reverend Smith, was threatened and refused to testify. Thereafter, Pennsylvania State Legislator K. Leroy [I]rvis proposed a bill, which later passed, which allowed the record of ALI's conviction to be expunged and granted ALI approximately $100,000 in reparations to compensate him for the time he spent in prison. Affidavit of Jesse L. Coleman ¶ 16c, at 16--17. Petitioner argues that, based upon the above paragraph, Counsel should have sought the exclusion of evidence obtained via the wiretap at trial.*fn1
Petitioner fails to meet the first prong of Strickland. Pursuant to Franks v. Delaware, 438 U.S. 154 (1978), evidence may be excluded when it is obtained via a warrant supported by an affidavit that contains intentional or reckless misrepresentations of fact that were material to the probable cause finding. However, Petitioner has not alleged that the above-quoted affidavit contained any misrepresentation of fact. Instead, he acknowledges the truth of much of its contents in his Petition, stating "[t]he Pennsylvania Supreme Court had overturned the conviction, and the [C]court of [C]ommon [P]leas of Philadelphia County . . . ordered that all arrest, conviction and criminal records, [including] incarceration in Graterford State Prison[,] be expunged." Pet. 5. Nor can Petitioner show that the statement was material to the probable cause finding, as is required by Franks; the statement constituted only a small part of the 116-page affidavit, which contained information from eight cooperating witnesses and six informants.
See Resp. 8. With so much other supporting information in the affidavit, it is unlikely that the judge reviewing the wiretap application would have placed much weight on the paragraph concerning the expunged conviction.
Petitioner has not provided, nor can the Court find, authority pursuant to which a single true paragraph in a long and detailed affidavit can justify the exclusion of evidence. Accordingly, Counsel did not fall below an objective standard of reasonableness by failing to argue for exclusion on such a basis. See United States v. Briceno-Rodriguez, 47 F. App'x 167, 170 (3d Cir. 2002) ("[C]counsel could not be deficient in failing to raise a frivolous argument."); Chapman v. United States, 74 F. App'x 590, 593 (6th Cir. 2003) ("Counsel is not required by the Constitution to raise ...