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Austin v. United States

March 10, 2010


The opinion of the court was delivered by: Eduardo C. Robreno, J.


Before the Court is George Austin's ("Petitioner") petition, pursuant to 28 U.S.C. § 2255 (the "Motion"), alleging five grounds of ineffective assistance of his trial and appellate counsel, in violation of his Sixth Amendment rights. For the reasons that follow, the Motion will be denied and the petition will be dismissed.


On December 8, 2005, Petitioner was convicted by a jury of the following twenty-nine (29) criminal charges:*fn1

Count 1:

Conspiracy to interfere with interstate commerce by robbery, in violation of 18 U.S.C. § 1951(a);

Counts 2, 4, 6, 8, 12, 14, 16, 18, 20, 22, 24, 28, 30 & 32 (14 Counts):

Aiding and abetting and interference with interstate commerce by robbery, in violation of 18 U.S.C. §§ 1951 & 1952;

Counts 3, 5, 7, 9, 13, 15, 17, 19, 21, 23, 25, 29, 31 & 33 (14 Counts):

Carrying and using, and aiding and abetting the carrying and using, of a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1).

The facts supporting the indictment were that, from January 10, 2005 through February 9, 2005, Petitioner and three co-conspirators committed a series of armed robberies at corner stores and convenient stores in and around Philadelphia's 25th Police Precinct. During these robberies, the robbers wore masks, were armed with a shotgun and a handgun,*fn2 and would threaten and sometimes hit their victims.

On February 9, 2005, the gunmen robbed one convenience store at 9:33 p.m. and another convenience store at 11:45 p.m. Shortly thereafter, at approximately midnight on February 10, 2005, Philadelphia Police stopped a car and apprehended Petitioner George Austin and co-conspirators Eric Andrews, Dujuan Anderson, and Kareem Stansbury.*fn3 The Police recovered evidence of the robberies, which included money, guns, and certain clothing.

On March 7, 2006, this Court sentenced Petitioner on the following twenty-five (25) criminal charges:

Counts 1, 12, 13, 16, 2, 20, 22, 28, 30, 32, 4, 6:

57 months imprisonment; 3 years supervised release; $8,881 restitution; and a $2,500 special assessment;

Counts 13, 15, 17, 21, 23, 29, 31, 33, 5, 7, 9:

25 years imprisonment (to run consecutive to Counts 1, 2, 3, 4, 6, 8, 12, 14, 16, 20, 22, 28, 30, 32);

Count 3:

7 years imprisonment (to run consecutive to Counts 1, 2, 3, 4, 6, 8, 12, 14, 16, 20, 22, 28, 30, 32));

Counts 18, 19, 24, 25:


See Sent. J., doc. nos. 132-33 (total prison sentence of 286 years and 9 months imprisonment, of which 282 years comprised statutory mandatory sentences; 5 years supervised release, $8,881 restitution, a $2,500 special assessment); see also Govt Resp. 2, doc. no. 162.


On March 15, 2006 Petitioner filed a timely appeal of his sentence to the Third Circuit, which on June 7, 2007, affirmed this Court's judgment. See Govt Resp 2.

On April 15, 2008, Petitioner filed the instant habeas corpus motion, pursuant to 28 U.S.C. § 2255, challenging this Court's sentence and requesting that the Court vacate, set aside, or correct his sentence for ineffective assistance of counsel. See Pet'r's Mot., doc. no. 156.*fn4

In his habeas motion, Petitioner alleges ineffective assistance of counsel of trial and appellate counsel, R. Kerry Kalmbach, Esq., on the following five grounds:

1. Whether trial counsel failed to object to the indictment before trial, in violation of the Sixth Amendment;*fn5

2. Whether trial counsel failed to object to the Indictment 18 U.S.C. § 924(c)(1) counts on multiplicity grounds prior to trial;

3. Whether trial counsel failed to object to jury instructions at trial, which merged 18 U.S.C. § 371 with 18 U.S.C. 1951, Hobbs Act conspiracy;

4. Whether trial/appellate counsel failed to file a timely petition for certiorari with the U.S. Supreme Court on Petitioner's request; and

5. Whether trial counsel failed to suppress a coerced confession prior to trial.

See Pet'r's Mot. 6-7.

On December 10, 2008, the Government filed a response in opposition to Petitioner's Motion, to which Petitioner replied on January 12, 2009. See Govt Resp; Pet'r's Traverse, respectively. Petitioner's Motion is now ripe for adjudication.


A. Legal Standard

Section 2255 allows a prisoner in federal custody to attack his sentence if it was imposed in violation of the Constitution or statute, the court lacked jurisdiction to impose it, it exceeds the maximum allowed by law, or it is otherwise subject to collateral attack. See 28 U.S.C. § 2255. The petitioner is entitled to an evidentiary hearing as to the merits of his claim unless it is clear from the record that he is not entitled to relief. See United States v. Victor, 878 F.2d 101, 103 (3d Cir. 1989).*fn6

Further, § 2255 "is expressly limited to challenges to the validity of the petitioner's sentence." United States v. Eakman, 378 F.3d 294, 297 (3d Cir. 2004) (internal citations omitted). "Section 2255 permits relief for an error of law or fact only where the error constitutes a 'fundamental defect which inherently results in a complete miscarriage of justice.'" Id. at 298 (citations omitted). To prove successful, a petitioner is required to allege "(1) that the district court received 'misinformation of a constitutional magnitude' and (2) that the district judge relied at least in part on that misinformation." Id.

B. Applicable Law

Under the Sixth Amendment, criminal defendants are entitled to the "'effective assistance of counsel' -- that is, representation that does not fall 'below an objective standard of reasonableness' in light of 'prevailing professional norms.'" Bobby v. Van Hook, 130 S.Ct. 13, 16 (2009) (citing Strickland v. Washington, 466 U.S. 668, 686 (1984)). The Strickland Court developed a two-pronged standard governing ineffective assistance of counsel claims. 466 U.S. at 668; see also Williams v. Taylor, 529 U.S. 362, 363 (2000) (stating that the "Strickland test qualifies as 'clearly established Federal law, as determined by the Supreme Court'").

First, a petitioner must show that his counsel's performance was deficient. Id. at 687. To demonstrate deficiency, Petitioner must show that his trial counsel's performance "fell below an objective standard of reasonableness," a performance which the court judges based on the case-specific facts and "as of the time of counsel's conduct." Id. at 688, 690 (establishing that failure to raise a meritless claim does not warrant ineffectiveness as counsel). Further, Petitioner here "must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Id. at 689.

Second, a petitioner must show that the deficient performance prejudiced his defense. Id. To establish prejudice by a deficient performance, Petitioner must demonstrate that "counsel's errors were so serious as to deprive the defendant of a fair trial or a trial whose result is reliable." Strickland, 466 U.S. at 687. Here, Petitioner must show that "there is a reasonable probability*fn7 that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.


The Court denies Petitioner's ineffective assistance of counsel claims because Petitioner fails to meet both prongs of Strickland. Even assuming that any of the examples of ineffective assistance of counsel proffered by Petitioner do constitute deficient performance to satisfy prong one of Strickland, Petitioner is unable to show that these actions were prejudicial to his defense.

The Strickland court found that the Petitioner bears the burden of demonstrating that his trial counsel's errors were prejudicial. Id. at 697 (finding that the court need not address the quality of counsel's performance where a defendant failed to establish prejudice). To demonstrate prejudice, Petitioner must establish a "reasonable probability" that but for counsel's unprofessional errors, the result of the proceedings would have been different. Id. at 692.

Specifically, Petitioner contends that his counsel at trial was ineffective on the following five grounds.

A. Failure of Trial Counsel to Object to the Indictment, Convictions, and Sentence

First, Petitioner argues that trial counsel failed to object to the Indictment, convictions, and sentence for the multiple counts brought under 18 U.S.C. § 924(c) as they were linked to a single count of conspiracy to commit Hobbs Act robbery, in violation of Petitioner's Sixth Amendment rights. See Pet'r's Mot. 6. The Government, in interpreting Petitioner's claim as one of duplicity, opposes this argument as each § 924(c) count was linked both to the conspiracy charge and to matching Hobbs Act robbery counts. See Govt Resp. 17.

"Duplicity is the improper joining of distinct and separate offenses in a single count." United States v. Haddy, 134 F.3d 542, 548 (3d Cir. 1998) (citing United States v. Starks, 515 F.2d 112, 116 (3d Cir. 1975)). "Duplicitous counts may conceal the specific charges, prevent the jury from deciding guilt or innocence with respect to a particular offense, exploit the risk ...

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