The opinion of the court was delivered by: Conti, District Judge.
Pending before the court is a motion to vacate or set aside judgment of conviction by a person in federal custody pursuant to 28 U.S.C. § 2255 ("motion to vacate") (Doc. No. 257 at Criminal No. 02-186) filed by petitioner James Semme Frazier ("petitioner"). On January 22, 2009, the court issued a memorandum opinion (Doc. No. 268) denying a motion to vacate with respect to the issue whether Federal Public Defender Thomas Livingston ("Livingston") was ineffective for failing to use police reports to impeach a witness for the government. In that same memorandum opinion, however, the court granted petitioner's motion to amend the motion to vacate. The amendment added the additional issue whether Livingston was ineffective for failing to request a continuance to take photographs of the scene where a police officer alleged that he observed a hand-to-hand drug transaction (Doc. No. 264). The court afforded the government the opportunity to respond to the added issue. Upon reviewing petitioner's amended motion to vacate and the government's response to petitioner's amended motion to vacate (Doc. No. 277), the court will deny petitioner's motion to vacate with respect to the amended claim, for the reasons set forth herein. Since the court previously denied the motion to vacate with respect to his other issue, the motion to vacate is denied in its entirety.
On the night of June 8, 2002, Officer Philip Mercurio ("Officer Mercurio" or "Mercurio") and Officer Robert Kavals, while working plain-clothes patrol in a neighborhood known for drug-trafficking, alleged they observed two men engage in a discussion and a hand-to-hand exchange. The officers, thinking the exchange was a possible drug transaction, drove their car toward the men and approached the individual they believed to be the seller. This individual was later identified as petitioner. Mercurio asked to speak with petitioner, and petitioner fled. While fleeing, Mercurio observed petitioner remove a bag of cocaine from his right pocket, which petitioner discarded. Mercurio recovered the bag of cocaine. The officers called for backup, and law enforcement officials were able to surround petitioner and eventually place him under arrest. After petitioner's arrest, Mercurio identified petitioner, a convicted felon, as the person who had a firearm on May 31, 2002 and fled from the police on that date.
On September 10, 2002, a federal grand jury returned an indictment charging petitioner with possession of a firearm by a convicted felon on or about May 31, 2002, in violation of 18 U.S.C. § 922(g)(1) ("Count One") and with possession with intent to distribute five (5) grams or more of a mixture and substance containing a detectable amount of cocaine base, in the form commonly known as crack, a Schedule II controlled substance, on or about June 8, 2002, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii) ("Count Two"). (Doc. No. 1.)
Petitioner filed a motion to suppress (Doc. No. 18) and a motion to sever the two counts (Doc. No. 17). After a suppression hearing, which was held over two days, May 9 and May 23, 2003, the court denied the motion to suppress and granted the motion to sever (Doc. Nos. 27, 32, 33). Petitioner was represented by Livingston during the suppression hearing and the trial of Count One. Count One was tried before a jury, which on October 2, 2003, returned a verdict of guilty. (Doc. No. 67.) Petitioner was represented by Attorney Thomas Farrell during the trial of Count Two. Count Two was tried before a jury, and concluded in a mistrial on November 19, 2004. (Doc. No. 127.) After a retrial, a jury on March 18, 2005 returned a verdict of guilty at Count Two. (Doc. No. 153.)
On December 2, 2004, petitioner filed a motion to vacate pursuant to 28 U.S.C. § 2255 with respect to Count One ("Count One § 2255 Motion"). (Doc. No. 129.) Counsel was appointed to represent petitioner and on April 27, May 4, and May 25, 2007, a hearing was held on that motion. After the parties submitted proposed findings of fact and conclusion of law, the court denied the motion. The issues raised in the Count One § 2255 Motion related to alleged ineffective assistance of counsel during the suppression hearing. Petitioner's currently-pending motion to vacate pursuant to 28 U.S.C. § 2255 with respect to Count Two was filed on March 17, 2008, and his motion to amend was filed on August 13, 2008, raising issues of ineffective assistance of counsel, based upon counsel's conduct during the suppression hearing (the motion as amended, "Count Two § 2255 Motion").
On May 9, 2003 and May 23, 2003, this court held the suppression hearing on petitioner's motion seeking to suppress evidence at each count returned in the indictment. (Doc. Nos. 27, 29.) At the hearing, petitioner was represented by Livingston. (Petitioner's proposed findings of fact (Doc. No. 254) ("Pet'r's Facts") ¶ 1; Respondent's proposed findings of fact (Doc. No. 255) ("Resp't's Facts") ¶ II.B.1; Evid. Hr'g Tr. 5/4/2007 at 15-16.)*fn2
Prior to the suppression hearing, Livingston frequently contacted petitioner concerning the strategy to be employed at the suppression hearing. (Evid. Hr'g Tr. 5/4/2007 at 36, 58.)*fn3 In preparation for the suppression hearing, Livingston visited the scene where Officer Mercurio alleged he observed petitioner engage in a hand-to-hand exchange. Livingston testified as follows:
Q: And you testified that you and perhaps your investigator went to the site on Susquehanna Street to examine the distance and the lighting in order to potentially attack Officer Mercurio's credibility during the hearing.
A: Correct. (Evid. Hr'g Tr. 5/25/2007 (Doc. No. 249) at 28.) Livingston photographed the area during the light of day in an effort to discover bases upon which he could impeach Officer Mercurio. Livingston stated:
[O]ne of the questions in terms of us investigating and going out to that neighborhood, preparing for that hearing and taking pictures by light of day, is trying to figure out with that report, which we received before May 9th, where precisely Mercurio was as another possible basis for impeachment as either lighting conditions or distance or physical obstacles that would disable him from being able to see this alleged hand-to-hand exchange. (Evid. Hr'g Tr. 5/25/2007 at 22.)
The strategy developed by petitioner and Livingston for the suppression hearing consisted of challenging the credibility of Officer Mercurio. Officer Mercurio was the arresting officer who testified at the suppression hearing. The strategy involved using credible evidence to contradict the officer's testimony and establish a factual basis for suppression. The strategy could also be useful to elicit inconsistent statements to impeach the officer at trial. (Evid. Hr'g Tr. 5/4/2007 at 38.) A collateral aspect of that strategy was to elicit a credibility determination from the court. (Pet'r's Facts ¶ 6; Resp't's Facts ¶¶ II.D.4, 6, 14, II.E.6, 9, 17, 18; Evid. Hr'g Tr. 5/4/2007 at 64-65.)
On May 9, 2003, immediately prior to the commencement of the suppression hearing, the government provided Livingston Jencks*fn4 material consisting of police reports written by Officer Mercurio regarding the May 31, 2002 (Count One) and June 8, 2002 (Count Two) incidents. (Pet'r's Facts ¶ 2; Resp't's Facts ¶¶ 14, 15.) Livingston did not request a continuance or recess to review the police reports. (Pet'r's Facts ¶ 4.) Mr. Livingston reviewed the police reports before the hearing and reviewed those reports with petitioner in court. (Evid. Hr'g Tr. 5/25/2007 at 21.)
After the Jencks material was received, the defense strategy at the suppression hearing expanded to include an argument that the identification of petitioner by Officer Mercurio for purposes of Count One was fruit of the poisonous tree of the alleged illegal stop being challenged with respect to Count Two. (Evid. Hr'g. Tr. 5/4/2007 at 62.)
At the suppression hearing, Livingston cross-examined Officer Mercurio regarding the duration and quality of his observation of petitioner during the May 31, 2002 encounter. (Supp. Tr. (Doc. No. 28) 5/9/2003 at 29-36.) Livingston also cross-examined Officer Mercurio regarding the factual circumstances regarding the entire May 31, 2002 event, including the recovery of a cell phone dropped by the actor during the May 31, 2002 event, and that the actor involved in the May 31, 2002 event had his hair braided in corn rows. (Id. at 27-36, 52-53.)
Livingston questioned Officer Mercurio during cross-examination with respect to the identification procedures giving rise to the June 14, 2002 police report identifying petitioner as the actor from the May 31, 2002 event. (Id. at 44-54.)
The facts surrounding the June 8, 2002 encounter were likewise the subject of cross-examination of Officer Mercurio by Livingston, with particular focus upon whether a hand-to-hand transaction took place between petitioner and an unknown individual and whether there was physical contact between Officer Mercurio and petitioner prior to petitioner's flight from police on the night in question. (Id. at 36-42.)
During cross-examination of Officer Mercurio, Livingston attempted to impeach the witness by eliciting testimony that would be contradicted by the testimony of the witnesses Livingston would call, consistent with the strategy for the suppression hearing developed by petitioner and Livingston. (Evid. Hr'g Tr. 5/4/2007 at 63; Evid. Hr'g Tr. 5/25/07 at 27-28.
14.) Livingston made use of the police reports he received that morning as Jencks material during his cross-examination of Officer Mercurio at the suppression hearing. (Id. ¶¶ II.E.4, 6, 9, 14; Supp. Tr. 5/9/2003 at 44-52.)
Livingston's cross-examination of Officer Mercurio did not focus on other occasions when Officer Mercurio allegedly lied about individuals dropping contraband because Livingston knew that petitioner would testify -- as he did -- at the suppression hearing that he actually dropped the contraband. (Evid. Hr'g Tr. 5/25/2007 at 26-27.)
Officer Mercurio testified at the suppression hearing about using binoculars to observe petitioner on June 8, 2002. (Supp. Tr. 5/9/2003 at 23.) Livingston did not question Officer Mercurio during the suppression hearing about the police report not referring to his using binoculars. (Evid. Hr'g Tr. 5/25/2007 at 25-26.) The police report, however, referred to surveillance being conducted which is not inconsistent with the use of binoculars. (Id.) At the suppression hearing, Livingston also questioned Mercurio about his vantage point from which he allegedly observed the drug transaction:
Q: What you are saying is that on that day, your first sighting of James Frazier occurs when he's standing about a third of the way down the 7500 block - - a third of the way from the 7400 block of Susquehanna Street, correct?
A: He was about a third of the way up the 7500 block.
Q: So, if the intersection that separates 74 and 7500 is alley, a reference we call that - - A Yes.
Q: - - Your car, which is, again, the same Chevy Lumina, is parked on the 7400 block?
Q: Is it on the side of the street where you saw James Frazier or is it on the opposite side?
A: I believe it was on the same side that Mr. Frazier was on.
Q: Can we agree that Susquehanna Street, for this stretch from 7400 heading to Braddock Avenue, is a one way street?
Q: And you were parked facing the direction of traffic, as opposed to parked facing opposing traffic?
A: Correct. (Supp. Tr. 5/9/2003 at 36-37.)
At the suppression hearing, Livingston called Aschlea Leviege ("Leviege"), who resided at 7526 Susquehanna Street. During his questioning of Leviege, Livingston made use of Government Exhibit No. ...