The opinion of the court was delivered by: Savage, J.
In his motion under 28 U.S.C. § 2255, Maurice Felder claims his trial counsel was ineffective in his "lack of trial preparation and deficient trial performance," and for failing to file an appeal. Because his trial counsel's performance was not deficient and he was not prejudiced by any failure on counsel's part, the motion will be denied.
Factual and Procedural History
In the morning of January 8, 2006, Felder and two accomplices entered the Exxon Mobil convenience store at 3101 North Broad Street in Philadelphia, Pennsylvania. The store clerk, Asim Shazad, recognized Felder and his cohorts as regular customers. Felder asked Shazad for a cigar, received one, and then went outside by the front window. While Felder paced at the entrance of the store, one of his accomplices, Brandon Kellam, distracted Shazad while the other, Qouirtese Sherman, brandished a handgun and forcibly entered the cashier's booth. Sherman struck Shazad several times. Frustrated by his inability to open the cash register, Sherman then shot Shazad three times. When shots rang out, Felder ran from the area. The incident was captured on a surveillance videotape.
Felder 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, Felder was acquitted of the gun charge and found guilty of the conspiracy and robbery charges. On July 31, 2007, facing a custodial guidelines range of 210 to 262 months, he was sentenced to 162 months imprisonment.
Felder did not file a direct appeal. On December 24, 2007, he filed his first motion under 28 U.S.C. § 2255, claiming his counsel was ineffective. He withdrew that motion. He later filed a new § 2255 motion on July 25, 2008. In his renewed motion, Felder contends that prior to trial, his counsel failed to: (1) review the videotape with him; (2) file a "pretrial motion on defense issues"; (3) subpoena witnesses; and (4) request forensic and scientific reports. He also claims counsel was deficient because he prevented him from testifying, failed to request a psychological evaluation and failed to file a notice of appeal.
At the hearing on April 28, 2009, at which he was represented by court appointed counsel, Felder withdrew his contentions that his trial counsel was ineffective for failing to subpoena forensic reports and for failing to seek a psychological opinion to support a downward departure from the sentencing guidelines on the ground that he suffers from bipolar disorder. Both Felder and his trial attorney testified at the hearing.
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. 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.
Felder contends that his trial counsel was ineffective because he failed to review the surveillance videotape with him prior to trial. He does not contend that counsel himself did not view the videotape in preparing for trial.
Felder presented no evidence as to how counsel's alleged failure to review the videotape with him before trial prejudiced his case or affected counsel's performance at trial. Contrary to Felder's implication, counsel's trial strategy relied heavily on the videotape. The defense theory was that Felder was an innocent bystander and the tape supported that position. Counsel argued this point during his opening and closing arguments. He also aggressively cross-examined Shazad on the issue and emphasized perceived inconsistencies between the tape and Shazad's testimony. Counsel also noted that the tape did not show Felder communicating with Sherman or Kellam prior to the robbery or that he had any connection to the robbery:
Where is anything [Felder] did out of the ordinary that suggests that he was in league with these two other fellows? He comes in like he always does, buys a cigarette or coke like he always does, goes outside. He hears a shot, he runs . . . . Is this man guilty because he runs away when he hears gunshots? Of course not. [The government] is asking you to speculate. And I suggest to you, ladies and gentlemen, that you cannot. (Tr. day 3, p. 47, line 5-15)
Counsel's arguments reflected Felder's defense. During deliberations, the jury twice requested that the tape be replayed. Eventually at their request, the jurors were permitted to replay the video for themselves. As directed by defense counsel, the jury placed significant importance on the videotape and carefully weighed the evidence.
There is nothing more that counsel could have learned from viewing the videotape with Felder prior to trial. Counsel viewed the tape on his own while he prepared for trial, and Felder admitted to having discussed the tape's contents with him. Indeed, at the hearing, Felder testified that he did not need to see the videotape for his own benefit in advance of trial because he "was there" and "knew what was on the tape." Rather, Felder wanted to review the tape with counsel solely for counsel's benefit. Counsel's performance at trial demonstrated a complete grasp of the contents of the tape, its ...