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United States v. Sherman

November 30, 2009


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


Qouirtese Sherman, a federal prisoner, has filed a motion under 28 U.S.C. § 2255, challenging his conviction arising out of an armed robbery during which the victim was shot. He asserts that the "federal court lacks subject matter jurisdiction" and his trial counsel was ineffective for failing to request a mental competency examination and misinforming him regarding his sentencing guidelines which resulted in him not pleading guilty. Because his claims are without merit, his motion will be denied.

Factual and Procedural History

On the morning of January 8, 2006, Sherman and two accomplices entered the Exxon Mobil convenience store at 3101 North Broad Street, Philadelphia, Pennsylvania. The store clerk, Asim Shazad, recognized Sherman and his cohorts as regular customers. One of the accomplices, Maurice Felder, took a position near the front window of the store after purchasing a cigar. Sherman's other accomplice, Brandon Kellam, distracted Shazad while Sherman forcibly entered the cashier's booth. Brandishing a hand gun, Sherman struck Shazad several times. After unsuccessfully attempting to open the cash register, Sherman then shot Shazad three times. The episode was captured on a surveillance video tape.

Sherman was charged with conspiracy to commit Hobbs Act robbery*fn1 , Hobbs Act robbery*fn2 , and using and carrying a firearm during and in relation to a crime of violence.*fn3 On March 28, 2007, following a jury trial, Sherman was found guilty of all charges. On July 10, 2007, he was sentenced to a prison term of 88 months on each of the conspiracy and robbery counts to be served concurrently, and a consecutive 120 months on the gun count.

Sherman appealed his conviction and sentence to the Third Circuit Court of Appeals. On September 8, 2008, the Third Circuit affirmed the conviction and sentence. Sherman timely filed this petition under 28 U.S.C. § 2255.


Sherman's challenge to the court's subject matter jurisdiction is meritless. He was charged in an indictment with violations of federal criminal law over which the district court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231. Therefore, the District Court had jurisdiction.

Sherman's claim that his counsel was ineffective is two-fold. First, he claims that counsel failed to request a mental health evaluation under 18 U.S.C. §§ 4241 and 4242 which would have revealed that he was "suffering from a mental disease and did not understand the nature and consequences of the proceedings against him nor was he able to assist properly in his own defense." Second, his attorney "mislead" [sic] him regarding his sentencing guideline range which resulted in his foregoing the opportunity to enter an open plea.

Ineffective assistance of counsel claims are evaluated under the familiar two-part standard established in Strickland v. Washington, 466 U.S. 668 (1984). See Williams v. Taylor, 529 U.S. 362, 391 (2000). First, the petitioner must demonstrate that his attorney's performance was deficient, that is, "counsel's representation fell below an objective standard of reasonableness," considering all of the surrounding circumstances of the particular case and the facts viewed at the time of counsel's conduct. Strickland, 466 U.S. at 687-89. Second, he must show that the deficiency prejudiced his defense. Id. at 692. The prejudice prong requires a showing that as a result of the deficient representation, a reasonable probability exists that the result of the proceedings would have been different. Id. at 694. A reasonable probability is one that is "sufficient to undermine confidence in the outcome." Id. at 694. In other words, the prejudice component focuses on whether counsel's deficient performance renders the result of the proceedings unreliable or fundamentally unfair. Williams, 529 U.S. at 393 n.17.

Mental Health Evaluation

Although he claims to be suffering from a mental disease, Sherman does not identify what his mental illness is. He claims that he has "mental disabilities and is illiterate." He asserts that the undefined mental disease rendered him incompetent to stand trial and should have been presented in mitigation of sentencing.

Sherman's conduct at the trial and his colloquy with the court demonstrate that he was neither incompetent nor impaired. He displayed an understanding of the proceedings and an ability to communicate with his attorney. In short, there was no reasonable cause to believe that he was unable to assist properly in his defense or understand the consequences or nature of the trial. See United States v. Leggett, 162 F.3d 237 (3d Cir. 1998).

As noted on the record, Sherman was observed consulting with his attorney throughout the trial, a fact that Sherman himself acknowledged. As the following colloquy shows, Sherman rationally and intelligently considered and ...

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