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United States v. Cannon

August 12, 2009

UNITED STATES OF AMERICA,
v.
HAROLD CANNON



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

MEMORANDUM RE: PETITION FOR HABEAS CORPUS RELIEF

Defendant / Petitioner Harold Cannon was convicted by a jury of possession of cocaine base with intent to distribute and related offenses. (Doc. No. 75). After the Third Circuit denied his appeal, Defendant filed the current Motion to Vacate/Set Aside/Correct Sentence under 28 U.S.C. § 2255 asserting several grounds of error. (Doc. Nos. 98, 100). For the following reasons, Defendant's Motion will be denied.

I. Background and Procedural History

Defendant's conviction arose out of an incident that occurred on March 5, 2004. (Indictment 1.) Prior to this, on December 15, 2003, a confidential informant ("informant") known to Federal Bureau of Investigation ("FBI") Special Agent Robert Parks told Agent Parks that Defendant was a crack and cocaine dealer. (Govt's Resp. Def.'s Mot. 2.) The informant identified a picture of Defendant and provided Defendant's telephone numbers and address, which Agent Parks verified as having come up in to previous FBI drug investigations. (Id.) On March 3, 2004, the informant told Agent Parks that Defendant had asked the informant to distribute cocaine for Defendant. (Id.) The informant also told Agent Parks Defendant's address and that Defendant drove a purple Chrysler, which Agent Parks again verified. (Id. at 2-3.)

On March 5, 2004, the informant told Agent Parks that Defendant would be leaving his house to deliver cocaine to the informant. (Id. at 3.) The FBI then asked the Philadelphia police to assist in surveillance of Defendant. (Id.) At about 11:55 a.m. on March 5, Philadelphia police officers made a traffic stop of the car Defendant was driving based on the information received from the informant. (Id.; Def.'s Mot. Identification Produc. Informant ¶¶ 2,4.) Defendant did not have a driver's license, and the officers asked Defendant to step out of the car. (Govt's Resp. 3.) The officers conducted a pat-down frisk and retrieved a .38 Smith and Wesson caliber revolver loaded with live rounds. (Id. at 4; Indictment 1.) The officers conducted a further search of Defendant's person, incident to his arrest, and discovered capsules and zip-lock packets containing 12.2 grams of crack cocaine and $215 in cash. (Govt's Resp. 4.) The officers also saw 56.4 grams of marijuana in plain view in Defendant's car. (Id.) Later at the police station, officers discovered an additional $1,700 on Defendant's person. (Id.)

A federal grand jury indicted Defendant on January 25, 2005, charging him on four counts: (1) possession of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1); (2) possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c); (3) possession of more than five grams of cocaine base ("crack") with intent to distribute, in violation of 21 U.S.C. § 841(a); and (4) possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a).

Prior to trial, the government discovered that the firearm recovered from Defendant was considered an "antique firearm" that was excluded under Sections 922(g) and 924(c). (Def.'s Mot. In Limine ¶¶ 2,3). Thus, the government did not go forward at trial on Count II, possession of a firearm in furtherance of a drug trafficking crime, and, as to Count I, went forward based solely on Defendant's possession of ammunition. (Def.'s Mot. In Limine ¶ 5; Govt's Resp. 5).

On May 5, 2006, the jury returned a verdict of guilty on all remaining counts in a bifurcated proceeding. (Doc. No. 75). This Court then held a sentencing hearing for Defendant on September 13, 2006, and imposed a sentence of 137 months imprisonment, eight years of supervised release, a $300 special assessment, and a $5,000 fine. (Doc. Nos. 85, 86). Defendant appealed his conviction and sentence. (Doc. No. 87). On June 12, 2008, the Third Circuit denied Defendant's appeal. (Doc. No. 97).

On May 14, 2009, Defendant filed the current pro se Motion to Vacate/Set Aside/Correct Sentence under 28 U.S.C. § 2255 (Doc. No. 98) and filed an Extension to the Motion on June 19, 2009 (Doc. No. 100). The government filed its Response to Defendant's § 2255 petition on June 25, 2009. (Doc. No. 101).

II. Standard for § 2255 Petitions

Defendant brings this Motion under 28 U.S.C. § 2255(a), which provides that: 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(a). A district court may grant relief under this statute if the court finds that "the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack." 28 U.S.C. § 2255(b).

III. Points of Alleged Error

In his Motion, Defendant raises the following points ...


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