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United States v. Mercer

January 9, 2009

UNITED STATES OF AMERICA
v.
AKIBA A. MERCER, DEFENDANT



The opinion of the court was delivered by: Judge McClure

MEMORANDUM

BACKGROUND

On October 21, 2005, Mercer was sentenced to 52 months imprisonment based on a conviction for conspiracy to distribute cocaine. On September 20, 2006, the Third Circuit Court of Appeals denied his appeal. He did not file a petition for writ of certiorari in the United States Supreme Court. Thus, his conviction became final when the time for filing such a petition passed, which was December 19, 2006. On November 15, 2007, Mercer, pro se, filed a motion under 28 U.S.C. § 2255 to vacate, set aside or correct his sentence. This motion was filed within the time prescribed by the statute of limitations. We ordered Mercer to complete a Notice of Election if he so desired, which he did not do. Thus this action is proceeding as filed pursuant to 28 U.S.C. § 2255.

On January 14, 2008, this court summarily dismissed Mercer's § 2255 motion for failure to plead sufficient facts. Mercer appealed to the Third Circuit Court of Appeals, and the case was remanded to this court for service on the government. On November 13, 2008, we directed service on the government and ordered the government to respond to Mercer's motion. The government filed a responsive brief on December 8, 2008. The time for filing a reply has passed, and thus the matter is ripe for disposition.

Now, for the following reasons, we will dismiss Mercer's § 2255 motion.

DISCUSSION

A motion under 28 U.S.C. § 2255 is the presumptive means by which a federal prisoner can challenge his conviction or sentence. See Davis v. United States, 417 U.S. 333, 343 (1974).

In his motion, Mercer makes numerous arguments attacking his conviction. First, he argues ineffective assistance of counsel. (Rec. Doc. No. 144 at 5). Second, he argues that there was prosecutorial misconduct. (Id. at 6). Finally, he argues there was structural error in the framework of the trial. (Id. at 7).

Summary of the Facts

The government set forth the facts, as summarized in the Presentence Report as follows:

On December 3, 2003, FBI agents executed a search warrant issued by [the district] court at Akiba Mercer's apartment in State College for evidence of counterfeited checks and bank fraud. During the search of Mercer's bedroom, the FBI agents observed significant quantities of what appeared to be cocaine packaged for distribution. The agents advised State College Borough Police investigators, who obtained a second search warrant for Mercer's bedroom consistent with state procedures. Notably, Mercer had identified the room where the drugs were discovered under the dresser as his bedroom, and investigators observed a wallet on the dresser containing Mercer's Pennsylvania drivers' license and other forms of identification with his name on them.

During the execution of the state search warrant, the investigators seized a total of 213 bags of cocaine under a dresser in the closet of Mercer's bedroom. When discovered, the cocaine was inside a black plastic shopping bag. The investigators opened the black bag and saw a second blue plastic Wal-Mart shopping bag containing small, one-inch by one-inch, red and green plastic bags, most of which were grouped in 20-bag increments within approximately eight sandwich-sized plastic bags.

An interview of another occupant of the three bedroom residence revealed that she and another male occupant of the apartment had sold drugs supplied by Mercer. The occupant also identified two women who also sold drugs for Mercer. When interviewed, the other two women and the male occupant told investigators that they had received cocaine from Mercer to sell. The male occupant also described how he had been threatened and harassed by Mercer over drug debts. During the interviews, the women provided investigators with 21 red and green bags of cocaine that they had received from Mercer. The bags were packaged in bags similar to the ones recovered from Mercer's bedroom dresser. Investigators also identified an additional female witness, who had received cocaine from Mercer and also had been harassed and threatened by him in connection with drug debts owed to him.

In addition to the cocaine, during the search of Mercer's bedroom investigators also recovered a notebook containing what appeared to be calculations of drug weights and sales. Inside a trash can within Mercer's bedroom, they also found an Avis car rental receipt with Mercer's name, numerous ripped plastic bag ends, a lid to a box of zip-lock sandwich bags, and more papers containing what appeared to be drug calculations. They also recovered a razor blade and a plastic sandwich [sic] on top of the dresser located in the closet where the drugs had been found. In another dresser the ...


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