The opinion of the court was delivered by: Arthur J. Schwab United States District Judge
MEMORANDUM OPINION REGARDING PETITIONER'S MOTION TO VACATE (DOC. NO. 95)
Before the Court is Maurice Askew's (hereafter Petitioner) Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct a Sentence by a Person in Federal Custody ("Motion to Vacate")(doc. no. 95 ). After careful consideration of the Motion to Vacate, the government's response thereto, and the files and entire record in the case, this Court finds that one of Petitioner's allegations entitles him to relief, and that his other allegations are contradicted by the record. Accordingly, there is no need to conduct an evidentiary hearing, and the Court will Grant in part and Deny in part the Motion to Vacate.
On February 26, 2004, a grand jury sitting in the United States District Court for the Western District of Pennsylvania returned a three count Indictment charging Petitioner with bank robbery, in violation of 18 U.S.C. § 2113(a), Armed Bank Robbery, in violation of 18 U.S.C. § 2113(d) and using a firearm during and in relation to a bank robbery, in violation of 18 U.S.C. § 924(c). (Counts 1-3). Following a jury trial, Petitioner was convicted of all three Counts.
On March 17, 2005, Petitioner was sentenced to a term of imprisonment of 92 months at Counts I and II, and a 300 month consecutive term at Count III, to be followed by a term of five years supervised release. (Docket Entry 71).*fn1 Petitioner appealed his conviction and sentence to the United States Court of Appeals for the Third Circuit. On October 26, 2006, the Court of Appeals for the Third Circuit entered an order affirming the Petitioner's conviction and sentence. See United States v. Askew, 201 Fed. Appx. 858, 2006 WL 3038116 (3d Cir. 2006).
On February 20, 2008, Petitioner filed a petition to vacate his conviction and sentence. On February 25, 2008, this Court entered an "Order Regarding Miller Notice and Election as to Maurice Askew." On May 5, 2008, Petitioner elected to withdraw his original motion and to file one comprehensive motion. On May 15, 2008, this Court entered an order dismissing the motion to vacate and giving the defendant until August 30, 2008 to file a comprehensive motion. On November 11, 2008, Petitioner filed a motion for equitable tolling with respect to the filing date for the One-All-Inclusive Motion. The government filed a response indicating that it had no objection to the granting of Petitioner's motion with respect to the extension of the filing date for an all inclusive petition, but retaining its right to argue that the original motion to vacate sentence was not timely filed.
Based on the government's response, this Court entered an Order on December 15, 2008 granting Petitioner's motion and giving the defendant until March 31, 2009 to file a revised Motion to Vacate. On March 19, 2009, the defendant filed a "Motion to Submit Supplemental Issue For Previously Filed Motion to Vacate, Set Aside, or Correct Sentence Section 2255 Motion." (doc. no. 111). This motion was docketed on March 25, 2009, the government filed its response and petitioner filed two responses thereto. The Motion to Vacate is now ripe.
On October 3, 2003, at approximately 10:00 a.m., two individuals dressed in dark clothing and masks entered the First National Bank of Pennsylvania in the Moxham section of Johnstown, Pennsylvania. The individuals were armed with handguns and wore masks. They directed employees and customers in the bank to lie on the floor and gave them instructions not to hit any alarms. Notes of Testimony ("N.T."), Trial, December 15, 2004 (doc. no. 85), at 20-26. After entering the bank, one of the armed robbers, an African-American male, jumped onto the counter in front of the teller area and pointed his gun at the tellers. The robber then jumped down on the teller's side of the counter area and began removing money from the teller drawers, placing it in a purple backpack that he was carrying.
The same robber also ordered one teller at gunpoint to direct him to the vault so that he could remove money from there as well. While this occurred, the other robber remained in the customer area, controlling the area at gunpoint and watching the door. Id. at 20-36, 39-49. A total of $120,172.00 was stolen during the robbery, including bait money consisting of $20.00 bills from the tellers' drawers. Id. at 34-36, 48-49.
After the robbery, police were able to obtain shoe impressions that one of the armed robbers had left on the counter in front of the teller area. In addition, partial shoe impressions were taken from two pieces of paper on which the robber collecting the money had stood. Id. at 53-55. On the morning of the robbery, the police located a car with its engine running on a street within a few hundred yards from the bank. The car had been reported stolen from a parking lot in Monroeville, Pennsylvania, 3/10 of a mile from the apartment of one of Askew's girlfriends, Denise O'Neal. Id. at 60-62, 64-67, 159-160.
On the day of the bank robbery, Xondra Nolden, another of Askew's girlfriends, received a call from Askew. Askew met with Ms. Nolden later that day and told her that he had gone to Johnstown, Pennsylvania and he had robbed a bank. Ms. Nolden also saw significant sums of money in a safe that Askew kept at her apartment. Id. at 106-115.
On October 14, 2003, a search warrant was executed at the residence of Xondra Nolden, 660 Princeton Boulevard in Wilkinsburg, Pennsylvania. During the search, a safe that belonged to Askew was recovered. The safe contained $36,235.00 in cash, including one of the bait bills that had been taken during the course of the robbery. In addition, officers recovered a plastic bag containing $720.00 from the residence. Id. at 120-121, 138-141, 144-149.
On January 9, 2004, Askew was arrested in connection with the robbery outside of the Cambridge Square Apartments where Askew was residing with Denise O'Neal. At this time a .40 caliber Ruger handgun, along with live ammunition was recovered.*fn2 Subsequently, an additional search warrant was obtained for a further search of Ms. Nolden's residence and a purple backpack, similar to the one used by the armed robber collecting the money from the bank robbery, was found. Id. at 157-158.
The Motion to Vacate, as supplemented, raises four grounds for relief alleging ineffective assistance of counsel in violation of Petitioner's Sixth Amendment right to counsel.
Petitioner claims: (i) that his trial counsel was ineffective in failing to move to suppress evidence taken from his apartment pursuant to an unsigned search warrant; (ii) that trial counsel was ineffective for failing to object at sentencing to violation of his Sixth Amendment right to notice and a beyond reasonable doubt finding by a jury of facts that drastically enhanced his sentence for his second offense of brandishing a firearm in furtherance of a crime of violence; (iii) that trial counsel was ineffective for not properly entering into evidence a conversation between Witness Xondra Nolden and former Trial Attorney David Chontos, which Petitioner alleges was contradictory to her sworn testimony; and (iv) that trial and appellate counsel were ineffective in failing to raise a double jeopardy issue at sentencing.
V. Standards for Reviewing Section 2255 Petitions
A. 28 U.S.C. § 2255: Petition to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody
Section 2255 of Title 28 of the United States Code provides that:
(a) A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
Further, section 2255 provides that unless the motion to vacate, files and records "conclusively show" that Petitioner not entitled to relief, the court shall: cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.
When a defendant brings a motion to vacate sentence pursuant to section 2255, the district court has discretion whether to conduct an evidentiary hearing. United States v. Lilly, 536 F.3d 190, 195 (3d Cir. 2008) (citing United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005)). Exercise of that discretion is constrained by section 2255, however, which requires the district court to hold an evidentiary hearing "'unless the motion and files and records of the case show conclusively that the movant is not entitled to relief.'" Id. (quoting Gov't of Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989)). This is not a high bar for a movant to meet, especially since the district court, in considering a section 2255 claim, "'must accept the truth of the movant's factual allegations unless they are clearly frivolous on the basis of the existing record.'" Id. (quoting Forte, 865 F.2d at 62).
Thus, a section 2255 motion can be dismissed without a hearing only if (1) its allegations, accepted as true, would not entitle the Petitioner relief, or (2) the allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact. United States v. McCoy, 410 F.3d 124, 134 (3d Cir. 2005) (quoting Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995)). A district court's decision not to hold an evidentiary hearing may be reversed for abuse of discretion if "the files and records of the case are ...