The opinion of the court was delivered by: DuBOIS, J.
On June 6, 2005, following a jury trial, petitioner Edward M. Gilliard was convicted of conspiring with others to interfere with interstate commerce by robbery, aiding and abetting an attempt to interfere with interstate commerce by robbery, and aiding and abetting the use and carrying of a firearm during and in relation to a crime of violence. For these crimes, petitioner was sentenced on February 22, 2006, to a term of imprisonment of 117 months.
Presently before the Court is petitioner's Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody ("the Motion") pursuant to 28 U.S.C. § 2255, which petitioner filed on May 26, 2009. For the reasons set forth below, the Court denies the Motion.
Petitioner was charged in a four-count Superseding Indictment with conspiring to interfere with interstate commerce by robbery and conspiring to commit carjacking, in violation of 18 U.S.C. §§ 371, 1951(a), and 2119 (Count One); carjacking, and aiding and abetting, in violation of 18 U.S.C. §§ 2119 and 2 (Count Two); attempting to interfere with interstate commerce by robbery, and aiding and abetting, in violation 18 U.S.C. §§ 1951(a) and 2 (Count Three); and knowingly using and carrying a firearm during and in relation to a crime of violence, and aiding and abetting, in violation of 18 U.S.C. §§ 924(c) and 2 (Count Four).*fn1
The charges in the Superseding Indictment were based on the robbery of a business, Craig Electric, during business hours on July 3, 2001. On that day, petitioner drove two individuals to Craig Electric, Harold Stanley ("Stanley") and John Harris ("Harris"), who were armed. Petitioner waited in the vehicle while Stanley, Harris, and a third participant, Ernest Juriel ("Juriel"), robbed the business and committed related crimes. Thereafter, on November 18, 2002, petitioner voluntarily participated in an interview by Detective Christopher Lee about the incident. A warrant for petitioner's arrest was issued on June 17, 2004; petitioner surrendered to police on September 14, 2004.
Petitioner's trial counsel was Thomas Egan, Esq. ("Egan"), who was appointed by the Court to represent petitioner before the Grand Jury and in petitioner's criminal trial. On September 27, 2004, petitioner and his counsel met with the government for a proffer interview. Petitioner signed a standard proffer letter, which stated, among other things, that while "no statements made by [petitioner]... will be used directly against [him] in any criminal case," "the government may make derivative use of, and may pursue investigative leads suggested by, statements made or information provided [by petitioner]." (Proffer Letter, Sept. 27, 2004, Govt.'s Resp. Ex. A.) The proffer letter further advised that petitioner "waives any right to challenge such derivative use of [information provided during the interview]; and that "the government may cross-examine [petitioner], introduce rebuttal evidence and make representations based on statements made or information provided during the 'off-the-record' proffer." (Id.)
Petitioner's trial commenced on May 31, 2005. At trial, the government called law enforcement officers, the two victims of the robbery, and two participants in the robbery, Juriel and Stanley, who had both pled guilty and had agreed to cooperate with the government. Petitioner did not testify on his own behalf.
The case was submitted to the jury on the conspiracy charge in Count One; the charge in Count Two that petitioner aided and abetted carjacking; the charge in Count Three that petitioner aided and abetted a Hobbs Act robbery; and the charge in Count Four that petitioner aided and abetted the using and carrying of a firearm during and in relation to a crime of violence. On June 6, 2005, the jury found petitioner guilty on all of these charges except conspiracy to commit carjacking in Count One. On June 13, 2005, by agreement, the Court granted petitioner's oral Motion for Judgment of Acquittal Under Federal Rule of Criminal Procedure 29 as to Count Two, aiding and abetting carjacking.
Petitioner was sentenced on February 22, 2006. Prior to the hearing, the government filed, and then withdrew, a motion for an upward departure from the sentencing guideline range. The Court sentenced petitioner to, inter alia, 117 months incarceration-a sentence in the middle of the guideline range of 111 to 123 months.
Petitioner appealed his conviction and sentence to the United States Court of Appeals for the Third Circuit. In a non-precedential opinion dated September 28, 2007, the Third Circuit affirmed this Court's rulings. United States v. Gilliard, 248 Fed. Appx. 462, 465 (3d Cir. 2007). Petitioner filed the instant Motion on May 26, 2009.
In his Motion, petitioner sets forth five claims. The first three claims allege ineffective assistance of counsel on the ground that counsel: 1) advised petitioner to participate in a proffer interview even though he maintained his innocence, and despite the fact that information obtained at the proffer could be used to cross-examine him if he chose to testify at trial; 2) stipulated to the interstate commerce element of the Hobbs Act offenses; and 3) failed to object to the Court's instruction to the jury that "conspiring to interfere with interstate commerce by robbery and conspiring to commit carjacking is a crime of violence." In his final two claims, petitioner asserts violations of his due process rights under the Fifth Amendment of the United States Constitution based on: 1) the government's misleading statement during closing argument that "[t]here's no sweetheart deals here, ladies and gentlemen"; and 2) the government's inaccurate representation during petitioner's Sentencing Hearing of the sentences imposed against Harris and Stanley. The Court held a hearing on the first two ineffective assistance of counsel claims on September 29, 2009. Below, the Court addresses each of petitioner's claims in turn.
A. Ineffective Assistance of ...