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United States v. Potts

January 27, 2010

UNITED STATES OF AMERICA
v.
RICHARD POTTS



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

MEMORANDUM

I. INTRODUCTION

A jury found Richard Potts guilty of murdering Rodney Trusty and of conspiring to distribute cocaine base ("crack"). Presently before the Court is Potts's Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, filed pursuant to 28 U.S.C. § 2255, in which Potts asserts an array of arguments directed at the competence of his trial counsel, the selection of his jury, and the evidence presented at his trial. For the reasons discussed below, the Court denies the motion.

II. BACKGROUND

On August 1, 2002, a grand jury returned a Superseding Indictment charging Potts with conspiracy to distribute cocaine base ("crack") within 1,000 feet of a school, in violation of 21 U.S.C. § 846 (Count 1), and murder in furtherance of a continuing criminal enterprise and while engaged in a drug trafficking crime, in violation of 21 U.S.C. § 848(e)(1)(A) (Count 7). He was convicted on both counts by a jury on March 27, 2003, and, on July 16, 2003, was sentenced to concurrent terms of life imprisonment on each count.

Potts appealed his conviction. The Third Circuit affirmed the verdict, but vacated the sentence and remanded the case to the District Court by Order dated July 7, 2005. On remand, the District Court resentenced Potts to life imprisonment, a 20-year term of supervised release, a $3,500 fine, and a $200 special assessment.

Potts appealed this new sentence. The Third Circuit affirmed in a September 26, 2007 Order. Thereafter, Potts moved the Third Circuit for rehearing en banc. That motion was denied on January 7, 2008.

On April 3, 2009, Potts mailed his Motion to Vacate, Set Aside or Correct Sentence By a Person in Federal Custody from prison to the Clerk of Court. ("April 3 Habeas Motion"). Because an inmate's § 2255 motion is deemed to be filed when it is mailed from prison, the motion is deemed filed on April 3, 2009. See Houston v. Lack, 487 U.S. 266, 271 (1988).

The April 3 Habeas Motion contains eleven separate grounds for relief, nine of which assert the various ways in which Pott's counsel was constitutionally ineffective:

1. Ground One -- Ineffective Assistance of Counsel for Failure to Challenge the District Court's Ineffective Voir Dire of Juror Number 373;

2. Ground Two -- Ineffective Assistance of Counsel for Failure to Peremptorily Strike Juror Number 373;

3. Ground Three -- Ineffective Assistance of Counsel for Failure to Challenge an Ambiguous Jury Instruction;

4. Ground Four -- Ineffective Assistance of Counsel for Failure to Challenge the Admission of Witness Wakee Wright's Testimony;

5. Ground Five -- Ineffective Assistance of Counsel for Failure to Call Maurice Lewis as a Witness;

6. Ground Six -- Ineffective Assistance of Counsel for Failure to Challenge Potts's Sentence for Possession of "Crack" Cocaine, When Potts Stipulated Only to Possession of "Cocaine Base";

7. Ground Seven -- Ineffective Assistance of Counsel for Failure to Challenge a Two-Point Sentencing Enhancement for Possessing a Firearm During a Drug Conspiracy;

8. Ground Eight -- Ineffective Assistance of Counsel for Failure to Challenge the District Court's Jurisdiction to Hear the Charge in Count Seven of the Superseding Indictment; and

9. Ground Nine -- Ineffective Assistance of Counsel for Failure to Challenge the Discriminatory Use of Peremptory Challenges to Strike Jurors Number 1 and 230.

Ground Ten seeks relief on the basis of "newly discovered evidence" in the form of a newspaper article describing flaws in bullet lead analysis;*fn1 Ground Eleven asserts that Potts's prosecutor introduced false testimony to his grand jury.

On April 27, 2009, this Court ordered Potts to re-file his motion using the standard form required for motions brought pursuant to 28 U.S.C. § 2255. Potts complied with this order by refiling the motion, using this Court's standard form, on June 1, 2009 ("June 1 Habeas Motion").*fn2 The June 1 Habeas Motion assigns different numbers to each of Potts's grounds for relief. For purposes of clarification, this Court will refer to the numbers used in the April 3 Habeas Motion.

The June 1 Habeas Motion dropped Grounds One, Two, Four, and Eleven. The Court will treat these grounds as withdrawn. (Pet'r's Reply to Government's Resp. to Section 2255 Motion 1, 4, 12.) The June 1 Habeas Motion also added two grounds, which will be referred to as Grounds Twelve and Thirteen, respectively. Ground Twelve asserts that Potts's counsel was constitutionally ineffective for failing to object to a four-level sentencing enhancement imposed because of Potts's leadership role in the conspiracy for ...


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