IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
June 1, 2010
UNITED STATES OF AMERICA
The opinion of the court was delivered by: Padova, J.
Before the Court is Defendant Anthony Gagliardi's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255. For the following reasons, we deny the Motion.
On May 27, 2005, Defendant was found guilty of conspiracy to distribute cocaine, (Count One) and attempted possession with intent to distribute between 500 grams and two kilograms of cocaine on October 29, 2002 (Count Three). The jury returned not guilty verdicts on additional counts of possession with the intent to distribute more than five kilograms of cocaine on October 8 or 9, 2002 (Count Two) and attempted possession with intent to distribute between 500 grams and two kilograms of cocaine on December 8, 2002 (Count IV). Although he originally retained counsel, Defendant filed a pre-trial motion seeking to represent himself. Following the required colloquy, we permitted Defendant to represent himself, with his prior attorney, Donald Manno, serving as standby counsel.
On July 5, 2005, we denied Defendant's post-trial motion.*fn1 He was sentenced on August 17, 2006, to 180 months imprisonment, to be followed by eight years of supervised release. By memorandum dated July 3, 2008, the United States Court of Appeals for the Third Circuit thoroughly analyzed each argument made by Defendant and affirmed the convictions. United States v. Gagliardi, 285 Fed. Appx. 11 (3d Cir. 2008).*fn2 The United States Supreme Court denied Defendant's petition for certiorari on March 29, 2009. Defendant's § 2255 motion was timely filed on February 2, 2010.
In the current motion, Defendant raises the following issues:
1. The juror misconduct issue raised on direct appeal arising from an allegedly improper discussion during deliberation between a deliberating juror and an alternate juror.
2. Ineffective assistance of counsel arising from Attorney Manno's failure to raise the prejudice resulting from the juror misconduct.
3. The two Brady violations raised on direct appeal.
4. The Rule 404(b) violations raised on direct appeal arising from the references to marijuana and loan sharking activities.
5. The bill of particulars issue raised on direct appeal.
6. The prosecutorial misconduct issues raised on direct appeal.
7. Improper jury instruction on the definition of reasonable doubt.
8. Structural error arising from egregious activity on the part of the Government causing Defendant to change his mind and not call Antonio Nieves as a witness.
II. LEGAL STANDARD
Gagliardi has moved for relief pursuant to 28 U.S.C. § 2255, which provides as follows:
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.
28 U.S.C. § 2255(a). In order to prevail on a Section 2255 motion, the movant's claimed errors of law must be constitutional, jurisdictional, "a fundamental defect which inherently results in a complete miscarriage of justice," or "an omission inconsistent with the rudimentary demands of fair procedure." Hill v. United States, 368 U.S. 424, 428 (1962).
A. Claims Raised on Direct Appeal
Several of the claims included by Defendant in his § 2255 motion were the subject of his direct appeal. Specifically, the following claims duplicate arguments that were raised and rejected on direct appeal:
1. The juror misconduct issue arising from an allegedly improper discussion during deliberation between a deliberating juror and an alternate juror (Ground 1).
2. The two Brady violations (Ground 3).
3. The Rule 404(b) violations arising from the references to marijuana and loan sharking activities (Ground 4).
4. The bill of particulars issue raised on direct appeal (Ground 5).
5. The prosecutorial misconduct issues involving the grand jury testimony about "South Philly mob guys," extortion, loan sharking, and other illegal activities (Ground 6).
None of these claims may be reasserted in a motion pursuant to § 2255.
Absent an intervening change in the governing substantive law or other exceptional circumstances, Section 2255 generally "may not be employed to relitigate questions which were raised and considered on direct appeal." United States v. DeRewal, 10 F.3d 100, 105 n.4 (3d Cir. 1993) (citations omitted); see also Davis v. United States, 417 U.S. 333, 342 (1974) (intervening change in governing substantive law that makes petitioner's conviction and punishment unlawful constitutes exceptional circumstances that justify collateral relief under § 2255 after unsuccessful litigation of the issue on direct appeal). If a defendant attempts to raise such errors in a section 2255 motion, the motion will be "procedurally barred." United States v. Jenkins, 333 F.3d 151, 155 (3d Cir. 2003). Because Defendant makes no assertion that an intervening change in the law, or some other exceptional circumstance has occurred since he litigated these issues on direct appeal, we must summarily reject these claims because he is procedurally barred from re-asserting them.
B. Claims that Defendant Could Have Raised on Drirect Appeal
Two of Defendant's other claims are procedurally defaulted because he could have raised them on direct appeal, but neglected to do so. Specifically, Gagliardi's claims that our supplemental instruction on the definition of reasonable doubt was erroneous (Ground 7), and that the Government committed structural error by causing Defendant to change his mind and not call Antonio Nieves as a witness (Ground 8), are based on issues that arose during the trial and could have been raised on direct appeal.
A defendant cannot raise in a § 2255 motion a constitutional issue that he could have raised on direct appeal, but did not, unless he shows good cause for, and actual prejudice from, his failure to raise the claim on appeal, or demonstrates that he is "actually innocent" of a crime charged. Massaro v. United States, 538 U.S. 500, 504 (2003); Jenkins, 333 F.3d at 155; see also Hodge v. United States, 554 F.3d 372, 379 (3d Cir. 2009) ("Put differently, a movant has procedurally defaulted all claims that he neglected to raise on direct appeal.") "The procedural-default rule is neither a statutory nor a constitutional requirement, but it is a doctrine adhered to by the courts to conserve judicial resources and to respect the law's important interest in the finality of judgments."
Massaro, 538 U.S. at 504. Cause necessary to excuse a procedural default must be an occurrence beyond a defendant's control that cannot be fairly attributed to him. See McCleskey v. Zant, 499 U.S. 467, 493 (1991) ("In procedural default cases, the cause standard requires petitioner to show . . . 'some objective factor external to the defense. . . .'"). Prejudice necessary to excuse a procedural default means that the alleged error worked to a defendant's "actual and substantial disadvantage." United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis omitted).
Defendant makes no showing of cause and prejudice or a claim of actual innocence.*fn3
Therefore, we reject the two claims that could have been raised on direct appeal.
C. Ineffective Assistance of Counsel
The sole claim raised in the § 2255 motion that can be addressed on its merits is Defendant's claim that Attorney Manno -- acting as standby counsel -- rendered constitutionally ineffective assistance when he failed to raise the issue of jury misconduct. We reject this claim as well.
A claim for ineffective assistance of counsel is based on the Sixth Amendment right to counsel, which exists "'in order to protect the fundamental right to a fair trial.'" Lockhart v. Fretwell, 506 U.S. 364, 368 (1993) (quoting Strickland v. Washington, 466 U.S. 668, 684 (1984)). A claim for ineffective assistance of counsel must meet the two-part test advanced by the Strickland court. First, petitioner must show that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, [petitioner] must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable."
Strickland, 466 U.S. at 687. More precisely, a petitioner must show that (1) his attorney's performance was unreasonable under prevailing professional norms, and, unless prejudice is presumed, (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result would have been different. United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992).
Defendant cannot meet Strickland's prejudice prong. Defendant raised the substantive issue of the alleged juror misconduct in his direct appeal, and the Third Circuit rejected that claim as meritless. Gagliardi, 285 F. Appx at 20. This finding is dispositive on the ineffective assistance claim. Because any objection to the manner in which the Court dealt with the alleged juror misconduct would have been rejected as meritless, counsel cannot be deemed to have acted ineffectively in failing to raise one. See United States v. Sanders, 165 F.3d 248, 253 (3d Cir. 1999) (stating that there can be no Sixth Amendment deprivation of effective counsel based on an attorney's failure to raise a meritless argument) (citations omitted).
Moreover, Gagliardi was representing himself at the trial and Attorney Manno was appointed as standby counsel.*fn4 Several Courts of Appeal have held that there is no constitutional right to hybrid representation and because there is no constitutional right to standby counsel, a defendant generally cannot prove standby counsel was ineffective. See United States v. Tilley, 326 F. App'x 96, 96-97 (3d Cir. 2009) (noting no constitutional right to standby counsel); United States v. Schmidt, 105 F.3d 82, 90 (2d Cir. 1997) ("Absent a constitutional right to standby counsel, a defendant generally cannot prove standby counsel was ineffective.") (citing United States v. Cochrane, 985 F.2d 1027, 1029 & n.1 (9th Cir. 1993) (per curiam) (rejecting ineffective assistance of standby counsel argument in this context without foreclosing argument in future); and United States v. Windsor, 981 F.2d 943, 947 (7th Cir. 1992) (holding that there is no constitutional right to effective assistance of standby counsel)). Accordingly, we reject Defendant's claim of constitutionally ineffective assistance of counsel.
For the foregoing reasons, we conclude that Defendant is not entitled to the relief he seeks. We therefore deny Defendant's § 2255 Motion in its entirety. An appropriate Order follows.
John R. Padova, J.