The opinion of the court was delivered by: Judge Conner
Presently before the court is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255*fn1 filed by petitioner Valentino Henderson. Petitioner's motion collaterally challenges his federal conviction, alleging that his trial counsel, Thomas Korey Leslie, Esquire ("Attorney Leslie"), was ineffective in violation of the Sixth Amendment of the United States Constitution. Specifically, petitioner claims that Attorney Leslie (1) failed to object to testimony containing possible hearsay statements, (2) failed to move to suppress evidence found during the search of his house, and (3) failed to move to suppress statements made by petitioner when he was held in custody. The court held an evidentiary hearing on the petition on July 14, 2009. For the reasons that follow, the petition shall be denied.
On January 9, 2007, petitioner was found guilty of conspiracy to distribute and possess with intent to distribute cocaine hydrochloride in violation of 21 U.S.C. § 846, and with distribution and possession with intent to distribute cocaine hydrochloride in violation of 21 U.S.C. § 841(a)(1). Petitioner was sentenced to 160 months' imprisonment on each count, to be served concurrently, five years supervised release, and to pay aggregate fines, community restitution, and special assessments of $1200. Following his conviction, petitioner filed a direct appeal, see United States v. Henderson, 289 F. App'x 485 (3d Cir. 2008), in which he argued: (1) that the hearsay-laden testimony of two witnesses at trial should not have been admitted and (2) that his counsel's performance was constitutionally deficient. Id. at 487. The court of appeals dismissed petitioner's claims, finding no plain error on the record of the trial court's decision. In its August 14, 2008 opinion, the court of appeals observed that a habeas corpus petition, 28 U.S.C. § 2255, is the proper vehicle to raise an ineffective assistance of counsel claim. Id. at 487-88. Petitioner filed the instant petition for writ of habeas corpus on April 2, 2009.
Petitioner claims that Attorney Leslie's performance was so deficient that it deprived him of his Sixth Amendment right to counsel. Specifically, he claims that Attorney Leslie provided ineffective assistance by failing to object to the hearsay statements of a confidential informant, which were conveyed to the court by a police officer witness, and for failing to call the confidential informant as a witness during the defense case-in-chief. Additionally, petitioner asserts that Attorney Leslie was ineffective for failing to attempt to suppress evidence obtained from the search of petitioner's house. Lastly, petitioner claims his attorney was ineffective for failing to object to the testimony of police officers regarding his post-arrest statements, as he now claims the statements were illegally gathered.
A claim for ineffective assistance of counsel is governed by the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on an ineffective assistance claim, a petitioner must show that: (1) counsel's representation fell below an objective standard of reasonableness, and (2) the deficient representation was prejudicial to the petitioner. Id. at 688. In determining whether counsel has met the objective standard of reasonableness, courts must be highly deferential toward trial counsel's conduct. See id. at 686. In addition, counsel cannot be deemed ineffective for failing to raise a meritless claim. See United States v. Saunders, 165 F.3d 248, 253 (3d Cir. 1999). To satisfy the prejudice prong, a petitioner must show a reasonable probability that, but for the errors of his or her counsel, the outcome of the proceeding would have been different. Strickland, 466 U.S. at 694. In order to determine whether counsel's alleged failures led to unconstitutional ineffectiveness, the court must separately consider the merit of each of petitioner's claims.
A. The Testimony of Trooper Cotroneo
Petitioner asserts that Attorney Leslie's performance was ineffective because he failed to object to the hearsay statements of a confidential informant, entered into evidence through the testimony of Trooper Anthony Cotroneo ("Trooper Cotroneo"). Additionally, petitioner alleges that Attorney Leslie was ineffective for not calling the confidential informant as a witness.
The court finds that Attorney Leslie's performance did not fall below an objective standard of reasonableness in the execution of his trial strategy. The defense's theory was that the confidential informant was not a credible source of evidence, and lied in order to set petitioner up. (Tr. 102). Attorney Leslie presented evidence at trial that the police began mail surveillance of petitioner's home as a result of a tip from the confidential informant. (Id. at 101). The substance of the alleged tip was that one to two kilograms of cocaine was being sent to petitioner from California every week to every other week. Id. Attorney Leslie presented evidence that during the first nine months of the surveillance period, no drugs were intercepted. (Id. at 102). The defense argued that the informant's "information was not reliable,... [and]... it would be [easy] to set someone up if you really wanted to." (Id.) In order to pursue this defense, Attorney Leslie was required to permit Trooper Cotroneo to explain what he had been told by the informant, and compare that information to the evidence that developed following the tip. Tactically, Attorney Leslie believed that the best defense was to demonstrate the informant's tendency to exaggerate or to provide inaccurate information. If Attorney Leslie could establish either of these traits, the jury would be more likely to conclude that petitioner was ultimately the victim of a set-up by police officers who were frustrated that a tip had not borne fruit.
During trial, Attorney Leslie did not object to the testimony of Trooper Cotroneo. Instead, he questioned Trooper Cotroneo on the information obtained from the informant. As the Third Circuit recognized on petitioner's direct appeal, "[h]ad [the defense objected and] the District Court stricken the trooper's statement as hearsay... it would have gutted the defense's theory of [petitioner's] innocence." Henderson, 289 F. App'x at 488. Without the testimony of Trooper Cotroneo there would have been no evidence of a set-up presented during trial. This trial tactic was reasonable, if ultimately unsuccessful. See Buehl v. Vaughn, 166 F.3d 163, 169 (3d Cir. 1999) (explaining that courts must be "'highly deferential' and 'indulge a strong presumption' that, under the circumstances, counsel's challenged actions 'might be considered sound... strategy'" (quoting Strickland, 466 U.S. at 689)). Therefore, Attorney Leslie's performance was not ineffective.
Petitioner also contends that Attorney Leslie's failure to investigate the confidential informant and call him as a witness deprived him of his right to confront his accuser. While counsel has a constitutional duty to investigate evidentiary leads, the decision to restrict or limit an investigation flows from strategic choices which are permitted to the extent that reasonable professional judgments support the attorney's course of conduct. Wiggins v. Smith, 539 U.S. 510, 521 (2003) (citing Strickland, 466 U.S. at 690-91). "[T]he [petitioner] is most likely to establish incompetency where counsel's alleged errors of omission or commission are attributable to a lack of diligence rather than an exercise of judgment." Thomas v. Varner, 428 F.3d 491, 501 (3d Cir. 2005) (citing 3 WAYNE LAFAVE ET AL., CRIMINAL PROCEDURE 11.10(c ), at 714 (2d ed. 1999)). Attorney Leslie's decision not to call the confidential informant was a strategic decision which may be considered sound trial strategy and not ineffective assistance. See Thomas, 428 F.3d at 501. Attorney Leslie believed that calling the confidential informant to the stand would be a waste of time, and possibly damaging to petitioner's case because the confidential informant was a government-friendly witness. (Tr. 100). Furthermore, Attorney Leslie believed that as the government's confidential informant, the witness would advocate for the government and be difficult to control on the stand. (Id.) Attorney Leslie reasonably concluded that the law enforcement officials would serve as the best witnesses to put on the stand, and that evidence of the alleged set-up would be fully conveyed through their testimony. (Tr. 123). In addition, Attorney Leslie believed that if he met with the confidential informant, it might "tip [his] hand" to the government, resulting in negative ramifications for his client's case. (Tr. at 100-01). The court finds that Attorney Leslie's actions were motivated by reasonable tactical choices rather than a lack of diligence. Attorney Leslie's actions do not constitute ineffectiveness, and his actions were reasonably necessary to the petitioner's trial strategy.*fn2
B. Suppression of Physical Evidence Found in Petitioner's Home
Petitioner argues that his attorney was ineffective for failing to file a motion to suppress evidence allegedly seized from an illegal search of his home in violation of his Fourth Amendment rights. Petitioner claims that Roberta Henderson ("Henderson"), his wife, consented to the search only after unlawful influence was applied upon her by law enforcement officers. Petitioner alleges that Attorney Leslie's failure to move to suppress the ...