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United States v. Krauss


May 11, 2009


The opinion of the court was delivered by: Kauffman, J.


Now before the Court is Petitioner's pro se Motion Pursuant to 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (the "Motion"). For the reasons discussed below, the Motion will be denied.


On April 30, 2002, Petitioner Mark Krauss ("Petitioner") was charged by indictment with one count of possession of a loaded firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). On October 20, 2003, Petitioner entered a plea of guilty. On February 9, 2004, Petitioner filed a motion to withdraw his guilty plea. After an evidentiary hearing, the Court granted his motion on March 18, 2004. On May 4, 2004, Petitioner was charged by superseding indictment with one count of possession of a loaded firearm by an armed career criminal, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). On July 9, 2004, he was convicted after a jury trial. On September 8, 2005, the Court sentenced him to 84 months of imprisonment, three years of supervised release, a fine of $1,000, and a special assessment of $100. Petitioner did not file a direct appeal.

On September 8, 2006, Petitioner filed a pro se motion for an extension of time to file a motion pursuant to 28 U.S.C. § 2255. On September 19, 2006, the Honorable John R. Padova, sitting as the emergency judge, denied the motion for an extension without prejudice. On September 22, 2006, the Clerk of the Court docketed Petitioner's original Motion. On October 5, 2006, because the original Motion was submitted on the incorrect form, the Court ordered the Clerk to furnish Petitioner with a copy of the current Section 2255 form and required Petitioner to file the Motion on the correct form within 30 days. On November 20, 2006, the Clerk of the Court docketed the corrected Motion, and the Government filed its response on January 12, 2007.


In his Motion, Petitioner raises two main grounds for relief: (1) he was denied his right to a fair trial and to due process because of prosecutorial misconduct before the grand jury; (2) his trial counsel provided ineffective assistance by (a) failing to seek dismissal of the indictment based on the prosecutorial misconduct before the grand jury; (b) failing to investigate the background of the primary Government witness; (c) "prejudicing" Petitioner's case before it became a federal court matter; and (d) failing to object to the Government's evidence about his prior conviction for witness intimidation.

A. Petitioner's Motion Was Timely

1. The Original Motion

The Government first contends that the Motion is barred by the one-year statute of limitations for filing a motion pursuant to 28 U.S.C. § 2255. The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") provides that the one-year period of limitation begins to run from the latest of:

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;

(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2255(f); Lloyd v. United States, 407 F.3d 608, 611 (3d Cir. 2005). In the instant case, Petitioner did not file a direct appeal; therefore, his conviction became final ten days after his judgment of conviction when the deadline for filing an appeal expired. See, e.g., Kapral v. United States, 166 F.3d 565, 577 (3d Cir. 1999) ("If a defendant does not pursue a timely direct appeal to the court of appeals, his or her conviction and sentence become final, and the statute of limitation[s] begins to run, on the date on which the time for filing such an appeal expired."); Evans v. United States, 2006 U.S. Dist. LEXIS 21391, at *7 (W.D. Pa. Apr. 20, 2006) ("Because petitioner did not directly appeal his judgment of conviction to the court of appeals, his judgment of conviction became final when the time for filing a notice of appeal expired-i.e., ten days after his judgment of conviction."). The judgment of conviction was entered on September 13, 2005 and became final on September 23, 2005 after the deadline for filing a notice of appeal expired. Accordingly, Petitioner had until September 23, 2006 to file his original Motion.*fn1

Although not received by the Clerk of the Court until September 22, 2006, Petitioner's original Motion was "filed" on September 18, 2006 when he delivered the document to the prison mailroom. See Burns v. Morton, 134 F.3d 109, 113 (3d Cir. 1998) ("[A] pro se prisoner's habeas petition is deemed filed at the moment he delivers it to prison officials for mailing to the district court. And because we see no reason why federal prisoners should not benefit from such a rule, and for the purposes of clarity and uniformity, we extend this holding to the filing of motions under § 2255."); see also Certified Mail Receipt, attached as Ex. 1 to Pet'rs Reply (reflecting that the original Motion was left with the prison mailroom on September 18, 2006, received by the post office on September 19, 2006, and delivered to the Clerk of Court on September 22, 2006). Therefore, Petitioner's original Motion was filed several days before the September 23, 2006 deadline.

2. The Corrected Motion

On October 5, 2006, because the original Motion was filed on the incorrect form, the Court ordered the Clerk of the Court to provide Petitioner with a correct form and ordered him to submit the corrected Motion within thirty days. The Government argues that because the corrected Motion was not docketed until November 20, 2006, the Motion should be dismissed for failure to comply with the Court's October 5, 2006 Order. However, as noted above, the date the Clerk of the Court receives or dockets a Section 2255 Motion is not the date the Motion is "filed" for statute of limitations purposes. See Burns, 134 F.3d at 113. Rather, the operative "filing" date is October 30, 2006, the date Petitioner delivered the corrected Motion to the prison mailroom. See Certificate of Service to Pet'rs Corrected Mot. (certifying that the corrected Motion was placed in the prison's internal mail system on October 30, 2006); see also Certified Mail Receipt, attached as Ex. 2 to Pet'rs Reply (reflecting that the corrected Motion was sent from the prison on November 1, 2006 and received by the Clerk of the Court on November 2, 2006). Accordingly, Petitioner complied with the Court's October 5, 2006 Order.

B. Merits Analysis

1. Prosecutorial Misconduct in the Grand Jury

Petitioner first claims that the Government violated his constitutional rights by responding to a question from Joanne Riley, a witness appearing before the grand jury who later testified at trial. Specifically, Petitioner objects to the following exchange occurring as Ms. Riley described her normal morning routine:

Q: Now, I want to start by asking you whether or not on that day you were-at, approximately-you know, early in the morning, did you have-were you going forward to conduct your own business?

A: Yes.

Q: Was that sometime after 9:00?

A: Yeah. Should I?

Q: Yeah. What is your normal routine in the morning?

A: I usually get up, do what I have to do, send the children to school. This particular day I was getting my transpass because I work as a security guard, Roxborough Memorial, so I could go to work the next day. I was standing on the corner.

Grand Jury N.T. 3, attached to Mot. at Ex. 8. According to Petitioner, the question "Should I?" proves that the Government "coached" the witness in order to suborn perjury because the witness was asking whether she should provide a coached, false answer about her normal routine, and the Government responded in the affirmative. Petitioner argues that because the Government instructed the witness to provide a false story, the superseding indictment should have been dismissed due to prosecutorial misconduct.

As noted above, Petitioner failed to raise this (or any) claim on direct appeal. The claim, therefore, is procedurally defaulted because "[a] section 2255 petition is not a substitute for an appeal." Gov't of V.I. v. Nicholas, 759 F.2d 1073, 1074 (3d Cir. 1985). Because Petitioner failed to raise this defaulted claim on direct appeal, he may raise it only if he demonstrates cause and resulting prejudice. See, e.g., Massaro v. United States, 538 U.S. 500, 504 (2003) ("[C]laims not raised on direct appeal may not be raised on collateral review unless the petitioner shows cause and prejudice."); United States v. Essig, 10 F.3d 968, 979 (3d Cir. 1993) ("We hold [that the] cause and prejudice standard applies to § 2255 proceedings in which a petitioner seeks relief from alleged errors in connection with his sentence that he has not directly appealed.").

In an attempt to demonstrate cause for his failure to raise the claim on appeal, Petitioner for the first time alleges that he asked his counsel to file a notice of appeal and that his counsel refused to do so.*fn2 This ineffective assistance of counsel, Petitioner asserts, constitutes "cause" sufficient to overcome his procedural default. See Murray v. Carrier, 477 U.S. 478, 488 (1986). Even assuming that Petitioner has demonstrated cause, however, he cannot establish that the alleged misconduct "worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170 (1982). Petitioner cites no authority to support the proposition that a prosecutor may not confer with a witness prior to the witness' testifying before the grand jury, and he points to no evidence to support his conclusory assertion that Ms. Riley "lied" when she answered the question about her normal morning routine. Notably, Petitioner has not attempted to demonstrate how Ms. Riley's "coached" answer was false. He simply states that it was a lie and concludes without explanation that this lie caused him to be indicted. Petitioner offers nothing more than speculation that he was prejudiced by the Government's conduct before the grand jury. Accordingly, the Court will deny relief on this claim.

2. Ineffective Assistance of Counsel

Petitioner also brings several claims related to his trial counsel's allegedly deficient performance both before and during the trial.*fn3 In order to establish a claim of ineffective assistance of counsel, Petitioner must prove (a) deficient performance by counsel and (b) actual prejudice as a result of the deficient performance. Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Buehl v. Vaughn, 166 F.3d 163, 173-74 (3d Cir. 1999). To satisfy the first prong of Strickland, Petitioner must show that his counsel's representation fell below an "objective standard of reasonableness." 466 U.S. at 688. The Court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, [Petitioner] 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 [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.*fn4

a. Failure to Seek Dismissal of the Indictment

Petitioner first argues that his trial counsel was ineffective for failing to seek dismissal of the indictment based on the aforementioned "misconduct" by the Government in preparing the grand jury witness. As explained above, this claim is without merit, and his trial counsel cannot be ineffective for failing to raise a frivolous argument. See, e.g., 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.").

b. Failure to Investigate the Background of the Government Witness

Next, Petitioner argues that his trial counsel failed to investigate Ms. Riley's background and therefore was unable to cross-examine her effectively. In support of his argument that a thorough investigation of Ms. Riley would have been valuable to proper cross-examination, Petitioner has attached as exhibits to his Motion various documents taken from Ms. Riley's garbage.*fn5 From these various documents, Petitioner draws a series of patently frivolous conclusions. For example, he concludes that: (1) Because Ms. Riley received a mass mailing from an eyeglass store, "she wore glasses, or had an eye problem" that would have been pertinent during cross-examination, Mot. 10; and (2) Because Ms. Riley's personal mail and other documents reflected various spellings of her name-e.g., "Joyann Riley, "Johanna Riley," and "Joanne Drasher"-Petitioner's trial counsel "would of [sic] found out that she uses more than one name" if he had conducted a proper investigation. Id.*fn6 Petitioner argues further that various documents-including a single piece of correspondence from the Pennsylvania Department of Public Welfare and her son's 2006 application for summer employment-prove that Ms. Riley lied when she stated that she was employed.*fn7 The remainder of evidence Petitioner submits is used as a foundation for inappropriate attacks on Ms. Riley's character*fn8 or irrelevant speculation about her children.*fn9

Even assuming, however, that any of the evidence Petitioner has submitted (a) could have been discovered by his trial counsel in 2004, (b) would have, in any meaningful sense, undermined Ms. Riley's credibility, and (c) would have been admissible under the Federal Rules of Evidence, the Court cannot find that trial counsel was constitutionally ineffective for failing to delve into these issues on cross-examination. During the trial, evidence was introduced that Petitioner pled guilty in state court to intimidating Ms. Riley in an effort to dissuade her from testifying against him. Any attacks on Ms. Riley's credibility might have drawn greater attention to the witness intimidation conviction, highlighting Petitioner's attempt to spoil evidence and further damaging his defense in this case. Petitioner has not overcome the strong presumption that his counsel utilized a sound trial strategy and performed adequately under the circumstances. Strickland, 466 U.S. at 689. Accordingly, the Court rejects Petitioner's claim that trial counsel was constitutionally ineffective for "failing to investigate" Ms. Riley for cross-examination purposes.

c. Prejudicing Petitioner's State Court Proceeding

Petitioner next argues that trial counsel, who also represented him while this case was pending in state court, was ineffective for persuading him to plead guilty to the state witness intimidation charge. Petitioner argues that he was unaware the conviction would be used against him in his federal criminal trial and that if he had known, he would not have entered a guilty plea in state court. Whatever the merits of Petitioner's argument, he may not challenge any aspect of his state court proceedings in this 2255 Motion.*fn10 Accordingly, the Court will deny this claim.

d. Failure to Challenge the Admissibility of the Witness Intimidation Conviction

Finally, Petitioner challenges his trial counsel's failure to challenge the admission of witness intimidation evidence under Fed. R. Evid. 404(b). However, the law is clear that a defendant's attempts to threaten or intimidate a witness may be introduced without running afoul of Rule 404(b) because such attempts reflect consciousness of guilt. See United States v. Gatto, 995 F.2d 449, 454 (3d Cir. 1993) ("It is well-established that evidence of threats or intimidation is admissible under Rule 404(b) to show a defendant's consciousness of guilt . . . ."); see also United States v. Hayden, 85 F.3d 153, 159 (4th Cir. 1996) ("Evidence of witness intimidation is admissible to prove consciousness of guilt and criminal intent under Rule 404(b), if the evidence (1) is related to the offense charged and (2) is reliable."); United States v. Mendez-Ortiz, 810 F.2d 76, 79 (6th Cir. 1986) ("Though not listed in Rule 404(b), spoliation evidence, including evidence that defendant attempted to bribe and threatened a witness, is admissible to show consciousness of guilt."). In light of the case law finding this evidence admissible and the fact that this testimony did not present the risk of "unfair" prejudice to Petitioner, any objection to its admission-whether based on Fed. R. Evid. 404(b) or 403-would have failed. As discussed above, Petitioner personally threatened the primary witness not to testify about the facts of this case, and trial counsel's failure to object to the admissibility of this probative evidence was not ineffective assistance of counsel.*fn11


For the reasons discussed above, the Court concludes that Petitioner is not entitled to relief on any of his claims.*fn12 Because Petitioner has not made the requisite showing of the denial of a constitutional right, a certificate of appealability should not issue. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). An appropriate Order follows.

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