The opinion of the court was delivered by: Robert F. Kelly, Sr. J.
Presently before this Court is Petitioner, Christopher Denmark's ("Denmark"), pro se Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 ("Def's. § 2255 Mot.").*fn1 For the reasons set forth below, this Motion is denied.
On September 29, 2005, a federal grand jury for the Eastern District of Pennsylvania returned a three-count indictment charging Denmark with conspiracy to commit arson in violation of 18 U.S.C. § 844(n), committing and aiding and abetting an arson in violation of 18 U.S.C. § 844(i), and making false statements in bankruptcy in violation of 18 U.S.C. § 152(3). These charges stem from Denmark's plan to burn down his North Philadelphia nightclub, his participation in the arson, and his false statements in bankruptcy related to that arson.
On February 23, 2004, Denmark and his co-defendant Samuel Dawkins,*fn2 set fire to a North Philadelphia building which consisted of Denmark's first-floor nightclub, Club Passion ("the Club"), and two second floor apartments. At the time, Denmark was heavily in debt and had just defaulted on his mortgage. He filed for bankruptcy, in which he filed false affidavits and testified falsely under oath as to his liabilities related to the Club.
Denmark proceeded to trial before this Court on May 8, 2006.*fn3 On May 11, 2006, Denmark was convicted by a jury on all counts, and he was sentenced on September 5, 2006 to 93 months imprisonment, and 3 years supervised release.*fn4 On May 6, 2008, the Third Circuit Court of Appeals affirmed Denmark's conviction and sentence. See United States v. Denmark, 277 Fed. Appx. 142 (3d. Cir. 2008).*fn5
Denmark filed the instant Motion on February 18, 2009, and his Supplemental Motion on April 13, 2009. He contends that, at sentencing, this Court wrongfully retroactively applied the law handed down in Untied States v. Booker, 543 U.S. 220 (2005) with regards to the Sentencing Guidelines. Denmark also raises the following ineffective assistance of counsel claims:
(1) sentencing counsel were ineffective for failing to bring to this Court's attention at sentencing "newly discover evidence" that a witness recanted his testimony;
(2) trial counsel failed to effectively cross-examine witness, Tarez Smith;
(3) trial counsel was ineffective for failing to object to witness, Tarez Smith's, testimony concerning Smith's father;
(4) trial counsel was ineffective for failing to call prior counsel as witnesses at trial;
(5) trial counsel was ineffective for failing to investigate information that Denmark gave him concerning his accountant, Kenneth Booth; and
(6) trial counsel was ineffective for failing to disqualify a biased juror.
Denmark is entitled to relief only if his custody or sentence violate federal law or the Constitution. Section 2255 provides, in pertinent part:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
28 U.S.C. § 2255 (West 2008). A district court is given discretion in determining whether to hold an evidentiary hearing on a habeas petition under § 2255. See Gov't of the V. I. v. Forte, 865 F.2d 59, 62 (3d Cir. 1989). In exercising that discretion, the court must first determine whether the Petitioner's claims, if proven, would entitle him to relief, and then consider whether an evidentiary hearing is needed to determine the truth of the allegations. See Gov't of the V.I. v. Weatherwax, 20 F.3d 572, 574 (3d Cir. 1994). Accordingly, a district court may summarily dismiss a motion brought under § 2255 without a hearing where the "motion, files, and records, 'show conclusively that the movant is not entitled to relief.'" United States v. Nahodil, 36 F.3d 323, 326 (3d Cir. 1994) (quoting U.S. v. Day, 969 F.2d 39, 41-42 (3d Cir. 1992)).
Denmark first argues that the "application of Booker was impermissible [sic] retroactively to pre-Booker conduct." (Mot. to Supp. § 2255 at 1). In United States v. Booker, supra, the United States Supreme Court rendered the Sentencing Guidelines advisory, as opposed to mandatory. At sentencing in this case, counsel for Denmark argued that "we wish to preserve in a general sense . . . our objection to finding enhancements and upward adjustments without proof beyond a reasonable doubt with respect to pre-Booker conduct on the ground that that is a violation of the ex post facto clause." (Sentencing Hr'g., Sept. 5, 2006 at 5.)*fn6
This claim, however, is without merit. It is first noted that Denmark acknowledged at the sentencing hearing that the Third Circuit has already rejected this claim. See United States v. Pennavaria, 445 F.3d 720, 723 (3d Cir. 2006). He, nonetheless, argued that "in the event the Supreme Court should reach a different conclusion, or in the event the state of the law changes, we expressly preserve the ex post facto claim here." (Def.'s Sentencing Mem. at n. 3.) In Pennavaria, the Third Circuit rejected the defendant's argument that remand for re-sentencing post-Booker for sentencing under an advisory guideline would constitute an ex post facto violation of the Due Process Clause. The court pointed out that in Booker, the Supreme Court "clearly instructed that both of its holdings should be applied to all cases on direct review." Id. at 723. Since Pennavariais still the law in this Circuit, this claim must be dismissed.
2. Ineffective Assistance of Counsel Claims
In Strickland v. Washington, the Supreme Court of the United States set forth a two-prong test for evaluating a claim of ineffective assistance of counsel. 466 U.S. 668 (1984). A finding against the Petitioner under either prong is sufficient to find for the government. United States v. Ciancaglini, 945 F. Supp. 813, 816 (E.D. Pa. 1996).
First, Petitioner must show that counsel's performance was deficient, meaning that counsel made errors so serious as to deprive Petitioner of the "counsel" guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687. This evaluation must be based upon the facts of the case at the time of counsel's conduct. Id. at 690. "[T]he right to effective assistance of counsel does not guarantee that an attorney will never err." Diggs v. Owens, 833 F.2d 439, 446 (3d Cir. 1987). Therefore, to satisfy this prong, Petitioner must show that counsel's performance fell below an objective standard of reasonableness under the prevailing professional norms. Id. at 688. However, "[a]n attorney is presumed to possess skill and knowledge in sufficient degree to preserve the reliability of the adversarial process and afford his client the benefit of a fair trial." Diggs, 833 F.2d at 444-45. Consequently, great deference is given in evaluating counsel's performance, and there is a strong presumption that counsel's challenged actions constitute sound trial strategy. Strickland, 466 U.S. at 689.
Second, even if the Court finds counsel's conduct to have been deficient, Petitioner must nevertheless show that his defense was prejudiced by the deficient performance in order to justify setting aside the verdict. United States v. Griffin, No. 91-612, 1993 WL 34927, at *5 (E.D. Pa. Feb. 9, 1993). To establish the requisite prejudice under this second prong, Petitioner must show that counsel's errors were so serious as to deprive him of a fair trial, i.e., one having a reliable result. Strickland, 466 U.S. at 694. In order to do so, Petitioner must establish a reasonable probability that but for counsel's errors, the result of the trial would have been different. Id. A reasonable probability is one which is sufficient to undermine confidence in the outcome of the trial. Id. This second prong must be evaluated by a totality of the circumstances existing at the time of the trial since "a verdict or conclusion only weakly supported by the record is ...