The opinion of the court was delivered by: Stengel, J.
On July 24, 2006, following a trial by jury, Roderick Sutton was convicted of one count of armed bank robbery in violation of 18 U.S.C. § 2113(d); one count of using and carrying a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1); one count of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g); and one count of possession of five grams or more of cocaine base with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Mr. Sutton now seeks to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The grounds for Mr. Sutton's § 2255 claim are that: (1) his grand jury indictment was invalid because a grand juror who was recognized by a witness in the case was not recused; (2) police recording of telephone calls he made while in the Northampton County Jail violatedhis Sixth Amendment right to counsel; (3) there was insufficient probable cause for his arrest; and (4) his trial and appellate counsel rendered ineffective assistance.
Mr. Sutton was charged in a four-count superseding indictment with armed bank robbery, use of a firearm during a crime of violence, possession of a firearm by a convicted felon, and possession with intent to distribute five or more grams of cocaine base, on May 11, 2006. These charges stemmed from his involvement in the armed robbery of the First Commonwealth Federal Credit Union ("Credit Union") in Easton, Pennsylvania.
On January 24, 2005, two men wearing black ski masks entered the Credit Union. One robber, later identified as Mr. Sutton, pointed two handguns at the female tellers and ordered them against the wall, while the other stuffed money into a bag. The tellers were the only two witnesses to the robbery. The robbers left with $15,502 in cash.
Six days later, Mr. Sutton's girlfriend, Jacqueline Olsen, who was living with him at the time, called police to report Mr. Sutton's unauthorized use of her Jeep. At approximately 2:00 a.m., a police officer arrived at the apartment in which they lived, but Mr. Sutton was not home. While talking to the police about Mr. Sutton's use of her car, Ms. Olsen also told officers that she had been told by a friend that Mr. Sutton left a gun in their apartment, and she wanted it to be removed. Ms. Olsen told police that she searched for the gun but had been unable to find it; she did, however, produce three clips of .22 caliber bullets. She then pointed the officers to a hidden compartment in the couch where the gun could be. When they opened the drawer to the compartment, the officer found a .357 caliber revolver inside. Ms. Olsen said the gun did not belong to her.
Ms. Olsen then told police that she had overheard Mr. Sutton on the phone planning his participation in the robbery and that after it occurred, she saw him with a large amount of cash. The officer then left the apartment. Police returned to the apartment around 5:00 a.m. that morning, after they had determined that Mr. Sutton was on probation for a prior felony conviction. They arrested him for unlawful gun possession as he attempted to drive away in Ms. Olsen's vehicle. Police then searched him incident to the arrest, and found $109 in cash in his pocket with serial numbers sequential to the serial numbers of the uncirculated bills taken from the Credit Union during the robbery. Police also searched the Jeep, finding a .22 caliber pistol, a pellet gun, a black ski mask, and a money wrapper from the credit union.
After arresting Mr. Sutton, the officers obtained consent from Ms. Olsen to perform a search of her and Mr. Sutton's apartment. There, they found $4,800 in sequentially numbered, uncirculated bills, a cell phone box and cell phone, three more clips of ammunition, a loaded .22 caliber pistol, and several copies of a newspaper story about the robbery.
Following his arrest, Mr. Sutton waived his Miranda rights and participated in an interview with FBI agents. He denied knowledge of the robbery and claimed that he lacked the motive to commit it. At the end of this interrogation, police strip-searched Mr. Sutton and discovered a bag containing 5.8 grams of crack cocaine between his buttocks. After his arraignment, Mr. Sutton was detained at the Northampton County Jail.
Ms. Olsen testified against Mr. Sutton at a jury trial held in this Court from July 18 to July 24, 2006. She explained that, after the robbery, she saw Mr. Sutton with thousands of dollars in cash "sprawled" across their couch and that later that night, she heard Mr. Sutton on the phone with a friend discussing his participation in the robbery. She testified that Mr. Sutton told her he had participated in the robbery. Olsen stated that she recognized the sweat suit worn by one of the robbers on the surveillance tape as belonging to Mr. Sutton. In his recorded calls to Ms. Olsen from prison, Mr. Sutton made a number of incriminating comments, asking her why she had not warned him before his arrest so he could have fled, telling her that she should have kept the money instead of telling the police about the robbery, and confirming his knowledge of the guns found by police.
The jury found Mr. Sutton guilty on all counts. On October 24, 2006, this Court sentenced Mr. Sutton to 252 months' imprisonment, 8 years of supervised release, $15,502 in restitution, and a $400 special assessment. The order of judgment and commitment was entered on November 1, 2006. Mr. Sutton filed a notice of appeal on November 6, 2006, and submitted his Appellate Brief on May 7, 2007. The Third Circuit affirmed Mr. Sutton's conviction in an order issued on March 28, 2008.
Mr. Sutton has filed this motion pro se. Although pro se pleadings must be construed liberally, a pro se petitioner must be able to prove a "set of facts in support of his claim which would entitle him to relief." Haines v. Kerner, 404 U.S. 519, 520--21, 92 S.Ct. 594 (1972). A prisoner in custody may move the sentencing Court to "vacate, set aside, or correct" a sentence imposed "in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255. Section 2255 permits habeas relief for an error of law or fact constituting a "fundamental defect which inherently results in a complete miscarriage of justice." United States v. Eakman, 378 F.3d 294, 297 (3d Cir. 2004) (citing Hill v. United States, 368 U.S. 424, 428 (1962)).
Section 2255 provides that "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto." 28 U.S.C. § 2255. Conversely, a court may dismiss a Section 2255 motion where the records and files show ...