The opinion of the court was delivered by: Sylvia H. Rambo United States District Judge
Before the court is a motion filed by Defendant Tyrone Smith pursuant to 28 U.S.C. § 2255 in which he raises issues of the competency of trial and appellate counsel. Those issues will be addressed after a brief summary of the procedural history of this case.
Smith was convicted by a jury of distributing and possessing with the intent to distribute 50 grams or more of crack cocaine, and 500 grams or more of cocaine hydrochloride in violation of 21 U.S.C. § 841(a)(1); using a communication facility in furtherance of drug trafficking in violation of 21 U.S.C. § 843(b); and conspiracy to distribute and possess with the intent to distribute 50 grams or more of crack cocaine, and 500 grams or more of cocaine hydrochloride in violation of 21 U.S.C. § 846.
Smith was sentenced by this court to 360 months imprisonment. On April 14, 2005, the Third Circuit Court of Appeals affirmed the judgment of conviction but vacated the sentence and remanded the case for resentencing.*fn1 On remand, this court imposed a sentence of 240 months imprisonment. Smith again appealed. The court of appeals affirmed the sentence. Smith filed a petition for writ of certiorari which was denied.
In April 2009, Smith filed the instant motion pursuant to 28 U.S.C. § 2255. Following service of the petition, counsel was appointed to represent Smith at a hearing. After a lengthy continuance, a hearing was held on December 2, 2009. Post hearing briefing concluded on March 28, 2010, and the matter is now ripe for disposition.
A claim for ineffective assistance of counsel is evaluated under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). The standard has two prongs. Petitioner must show (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defense. Id. at 687. The first prong requires petitioner to show that counsel made errors "so serious that counsel was not functioning as 'counsel' guaranteed by the Sixth Amendment." Id. This showing can be made by demonstrating that the attorney's performance was unreasonable under prevailing norms. United States v. Day, 969 F.2d 39, 42 (3d Cir. 1993). The second prong requires petitioner to show that the errors were "sufficiently serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687. To establish prejudice, the petitioner must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." United States v. Mannino, 212 F.3d 835, 840 (3d Cir. 2000).
B. Ineffective Assistance of Counsel Claims
Smith alleges ineffective assistance of counsel claims against both trial and appellate counsel. The claims are as follows: (1) trial counsel failed to object to the admission of evidence of other crimes and failed to request notice of the Government's intent to offer such evidence; (2) trial counsel failed to object to the Government asking one of its witnesses to give an opinion about the credibility of any defense witness who would testify in a certain way; (3) trial counsel failed to request a curative or limiting instruction with respect to the jury learning that Smith was incarcerated; (4) trial counsel failed to call various witnesses at trial; (5) trial counsel failed to request various jury instructions; and (6) appellate counsel failed to raise the aforesaid issues on appeal.
1. Evidence of Other Crimes
Smith's claims regarding the admission of evidence of other crimes fall into two categories: (a) testimony concerning threats to witnesses; and (b) Chapman's testimony concerning sales by Smith of marijuana and ecstasy.
a. Testimony of Threats by Smith
Smith claims that on a number of occasions witnesses testified to threats by Smith through others that his counsel should have objected to and should have sought the court to exclude. Specifically, Smith mentions the testimony of Tamica Tolbert, Eric Chapman and Omar Dykes, all of whom testified that they were threatened by others allegedly on Smith's behalf, as well as Wayne Scott who testified that Smith had threatened anyone who testifies against him. (See Trial Tr. ("TT") Vol. 3 at 421-422 (Tolbert); Vol. 3 at 473-75 (Chapman); Vol. 2 at 208-09 (Dykes); Vol. 1 at 77 (Scott).) Additionally, Smith points to the testimony of Aaron Pitts who testified at trial that Smith told him that he was trying to get Chapman to "not show up or pay him off." (TT at 124.)
Smith claims that all of this testimony violates Federal Rule of Evidence 404(b). In United States v. Krauss, 2009 WL 1313296*5 (E.D. Pa.), the court held that "a defendant's attempts to threaten or intimidate a witness may be introduced without running afoul of rule 404(b) because such attempts reflect consciousness of guilt." (Citing United States v. Gatto, 995 F.2d 449, 454 (3d Cir.1993).)
It is clear from the briefs and the transcript that the threats testified to by Trina Smith, Chapman, Dykes and Scott constitute hearsay and, therefore, were objectionable. Defense counsel Joshua Lock's memory of the trial was very vague, which is understandable in light of the fact that the trial was in April 2003 and the habeas hearing was in December 2009. Moreover, Mr. Lock had no file ...