The opinion of the court was delivered by: Sylvia H. Rambo United States District Judge
Before the court is Ahmed Walker's motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. For the reasons that follow, the motion will be granted in part and denied in part.
On May 16, 2001, a grand jury issued a seven-count superseding indictment charging Ahmed Walker, Christopher Ames, and Eric Sanchez. (Doc. 48.) Walker was charged in Count 1 with conspiracy to possess, use, carry, brandish, and discharge firearms in furtherance of drug trafficking in violation of 18 U.S.C. §924(c) and (o); in Count 2 with possessing, brandishing and discharging a firearm in furtherance of drug trafficking on March 13, 2000, in violation of 18 U.S.C. §924(c); in Count 3 with possession of firearms in furtherance of drug trafficking on July 12, 2000, in violation of 18 U.S.C. §924(c); in Count 4 with possessing, brandishing and discharging firearms in furtherance of drug trafficking between July 18, 2000, and July 21, 2000, in violation of 18 U.S.C. §924(c); in Count 5 with criminal conspiracy to distribute and possess with intent to distribute 50 grams or more of crack cocaine, cocaine hydrochloride and heroin, in violation of 21 U.S.C. §846; and in Count 6 with distribution and possession with intent to distribute 50 grams or more of crack cocaine, cocaine hydrochloride, heroin, and marijuana, in violation of 21 U.S.C. §841(a). (Id.)
On August 8, 2001, a seven-count second superseding indictment was filed, which added Angel Sanchez as a co-defendant in several counts, but made no substantive changes to the charges against Walker. (See Doc. 116.) Walker entered pleas of not guilty subsequent to each of these charging documents being filed. At trial and at all times through his sentencing, Walker was represented by Terrence McGowan, Esquire ("trial counsel"). A jury was selected on January 14, 2002, and trial was to begin that day. However, the court granted a continuance of the trial to allow Walker to file certain pre-trial motions within fourteen days of that date. On January 23, 2002, trial counsel filed several pre-trial motions (with supporting briefs), including a motion to suppress physical evidence, a motion to suppress statements, and a motion to suppress identification. (See Docs. 214-223.) The next day, the court denied the motion to suppress physical evidence. (Doc. 225.) The court held a hearing on the motion to suppress statements, and motion to suppress identification on February 1, 2002. On February 7, 2002, the Court denied the latter motion and granted the motion to suppress certain statements made by Walker while he was in the hospital. (Docs. 237-241.)
Trial commenced on February 20, 2002, and the Court granted the government's motion to dismiss Count 2 of the indictment that same day. (Trial Transcript at 18 ("TT").) In the middle of trial, on February 25, 2002, Walker's three co-defendants entered into guilty plea agreements with the government and entered guilty pleas in court. (Id. at 807-13.) Immediately after the guilty pleas were taken, trial counsel moved for a mistrial, arguing that no curative instruction would adequately address the prejudice to Walker from the fact that he was the lone defendant left in the courtroom after three days of testimony. (Id. at 808-9.) Trial counsel also argued that a mistrial was warranted because there was testimony of two witnesses-Dechert and Radwanski-which would not have been admissible in a trial against Walker had he been tried alone. (Id.) The court denied the motion for a mistrial. (Id. at 813.) Instead, the trial continued against Walker alone, and the court gave the following instruction to the jury:
Ladies and gentlemen of the jury, three of the defendants have been separated from this trial. The reasons are not a matter for your concern.
However, I do need to instruct you that there was testimony from a Mr. Dechert and Officer Radwanski that must be entirely disregarded by you because it had nothing to do with Mr. Walker. (Id. at 814.)
At the conclusion of the evidence, on February 26, 2002, Walker moved for a judgment of acquittal of all counts. The court denied this motion. (Id. at 1024-32.) After deliberation, on February 28, 2002, the jury returned a verdict finding Walker guilty of all counts. Walker filed a motion for a new trial and arrest of judgment, which was denied by the court by memorandum and order dated December 10, 2002. (Doc. 344.)
On February 13, 2003, the court sentenced Walker to an aggregate term of imprisonment of 681 months. The term consisted of 240 months for conspiracy to possess, brandish, and discharge firearms in furtherance of drug trafficking (Count 1); 321 months on both his conviction for criminal conspiracy to distribute and possess with intent to distribute 50 grams or more of crack cocaine and a quantity of cocaine hydrochloride, heroin, and marijuana, and the underlying substantive offense (Counts 5 and 6); 60 months for possession of firearms in furtherance of drug trafficking on July 12, 2000 (Count 3); and 300 months for possessing, brandishing and discharging firearms in furtherance of drug trafficking between July 18, 2000, and July 21, 2000 (Count 4). The sentences on Counts 5 and 6 were ordered to be served concurrently; all other sentences were to be served consecutively. (See Doc. 348.) That same day, the court granted trial counsel's motion for leave to withdraw, and appointed Damien Schorr, Esquire ("appeal counsel") to represent Walker on direct appeal. (Doc. 349.) Attorney Schorr also represented Defendant during the Booker re-sentencing proceeding, and through the appeal of the Booker re-sentencing.
An appeal was filed with the assistance of appeal counsel. On appeal, Walker argued four bases for overturning his conviction and the court's sentence:
(1) that the court's sentencing determinations made use of acts not charged in the indictment and not found by the jury; (2) that the evidence was insufficient to support his conviction on Count 4; (3) that in applying the sentencing guidelines, that court mistakenly included a juvenile conviction in his criminal history, which added two criminal history points to his guideline calculations; and, (4) that the court erred in its denial of his motion in limine to preclude government witnesses from referring to him by his nickname "Ammo," because the use of this nickname was sufficiently prejudicial to warrant reversal of his convictions on Counts 1, 3, and 4 of the second superseding indictment. See United States v. Walker, 136 Fed. Appx. 524, 526 (3d Cir. 2005).
On August 22, 2005, the Third Circuit affirmed Walker's conviction on all counts, but vacated his sentence on Counts 1, 5, and 6, and remanded the case for re-sentencing consistent with United States v. Booker, 543 U.S. 220 (2005). See Walker, 136 Fed. Appx. at 525 (3d Cir. 2005). Following a re-sentencing hearing on October 28, 2005, the court reduced Walker's aggregate term of imprisonment from 681 months to 622 months. (Doc. 389.)
On November 3, 2005, Walker filed his second direct appeal to the Third Circuit. (Doc. 390.) In that appeal, Walker raised two issues. First, he asserted that his sentence was unreasonable because the court failed to give meaningful consideration to the factors enumerated in 18 U.S.C. § 3553(a). United States v. Walker, 251 Fed. Appx. 735, 735 (3d Cir. 2006). Second, he challenged his sentence on Counts 1, 5, and 6, contending that his guideline range was incorrectly based on quantities of drugs that were not found by a jury, as well as a leadership enhancement that was not found by the jury. Id. On December 15, 2006, the Third Circuit affirmed this court's sentence. See id. at 737.
Walker filed a petition for rehearing, which petition was denied by Third Circuit on February 1, 2007. He then filed a petition for writ of certiorari, which petition was denied by the Supreme Court on June 18, 2007. See Walker v. United States, 557 U.S. 1137 (2007).
On June 17, 2008, Walker filed a pro se motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody ("pro se § 2255 Motion"). (Doc. 433.) In that motion, Walker alleged fourteen different grounds of error by either this court or trial and/or appellate counsel. After receiving an extension of time, on February 17, 2009, the Government filed its Brief in Opposition to Walker's pro se § 2255 Motion. (Doc. 452.) After an extension, on March 25, 2009, Walker filed his response to the Government's brief. (Doc. 455.)
On May 18, 2009, the court appointed Dennis Boyle, Esq. as counsel for Walker and ordered an evidentiary hearing for July 21, 2009. (Doc. 457.) On May 21, 2009, Walker filed a Motion to Amend his pro se § 2255 Motion and supporting brief. (Docs. 459-60.) On that same date, the court entered an order construing Walker's motion and brief as a supplemental motion and brief and further ordered the Government to file its response to the supplemental motion by June 22, 2009. (Doc. 462.) On June 8, 2009, the court appointed Edward Rymsza, Esquire as substitute counsel for Walker because of Attorney Boyle's conflict of interest representing a Government trial witness. (Doc. 464.) On June 22, 2009, the Government filed a Motion for Extension to respond to Mr. Walker's Motion to Supplement his pro-se § 2255 Motion, which motion was granted on June 24, 2009. (Docs. 465-66.) Despite the granting of an extension, no objection or response to the supplemental pro-se motion was ever filed by the Government.
The evidentiary hearing on Walker's § 2255 motion was continued several times at the request of Walker. On January 19, 2010, a Motion for Leave to Amend Walker's pro se § 2255 Motion was filed along with a supporting brief. (Docs. 479-80.) On February 16, 2010, the Government filed a letter-brief in response. (Doc. 483.) By order dated March 17, 2010, the court granted Walker's motion to supplement. (Doc. 488.) On April 2, 2010, a supplemental motion to vacate under 28 U.S.C. § 2255 was filed along with a supporting brief. (Docs. 489-90.)
On April 20, 2010, the court held an evidentiary hearing. After that hearing, Walker sought leave to file a supplemental brief, which was granted by order dated April 21, 2010. (Doc. 493.) Walker filed his supplemental brief on April 30, 2010. (Doc. 494.) Despite being permitted to do so, the Government chose not to file a supplemental response.
To obtain collateral relief based on alleged trial errors to which no contemporaneous objection was made, or appellate errors not preserved on direct appeal, a convicted defendant must demonstrate both (1) "cause" excusing his procedural default (and in the instance of unpreserved trial errors his double procedural default) and (2) "actual prejudice" resulting from the errors, or must demonstrate his "actual innocence." United States v. Frady, 456 U.S. 152, 167-68 (1982); United States v. Jenkins, 333 F.3d 151, 154-55 (3d Cir. 2003); United States v. Garth, 188 F.3d 99, 107 (3d Cir. 1999). A convicted defendant may show "cause" for his procedural default by demonstrating that the reason for such default was his counsel's ineffectiveness. United States v. Mannino, 212 F.3d 835, 840 (3d Cir. 2000); Garth, 188 F.3d at 107. The benchmark for judging any claim of ineffectiveness of counsel, however, is "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686 (1984).
Under Strickland's two-prong test for ineffective assistance, a defendant must first show that counsel's performance was deficient, meaning that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. Id. at 687. A court considering an ineffective counsel claim "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. Moreover, even where at first blush one might question the efficacy of a particular action by trial counsel, "the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). "Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." Id. at 690.
Under the second prong of the Strickland test, a defendant must show that counsel's deficient performance prejudiced the defense, meaning that as a result of counsel's errors the proceedings were rendered unfair or unreliable. United States v. Nahodil, 36 F.3d 323, 326 (3d Cir. 1994). "Because failure to satisfy either prong defeats an ineffective assistance claim, and because it is preferable to avoid passing judgment on counsel's performance when possible," it is sometimes appropriate to begin the ineffective assistance analysis with the prejudice prong. United States v. Cross, 308 F.3d 308, 315 (3d Cir. 2002) (citing Strickland, 466 U.S. at 697-98).
Furthermore, "[w]hen a defendant has raised a claim and has been given a full and fair opportunity to litigate it on direct appeal, that claim may not be used as basis for a subsequent § 2255 petition." United States v. Hayes, 231 F.3d 1132, 1139 (9th Cir. 2000). Stated differently, "a person who has raised an issue, and had it resolved by a federal court, cannot start from scratch on collateral review and ask the judiciary to proceed as if the first resolution had not occurred." Peoples v. United States, 403 F.3d 844, 847 (7th Cir. 2005) (citing Sanders v. United States, 373 U.S. 1 (1963), and Davis v. United States, 417 U.S. 333 (1974)).
All of the issues raised in Walker's pro se motion to amend, (Doc. 459), his counseled motion to amend, (Doc. 489), and his supplemental brief, (Doc. 494), relate back to Walker's original pro se § 2255 motion, (Doc. 433), and are cumulative. Combined, these documents assert eighteen grounds of error by either this court or trial and/or appeal counsel. Roughly, these claims can be broken down into three categories: (1) errors committed by the court and/or the government that were not raised by either counsel; (2) errors committed by trial counsel; and, (3) errors committed by appeal counsel. The court will address them in turn.
A. Alleged Errors Committed by the Court and/or the Government that Were not Raised by Either Counsel
Walker contends that the court and/or the Government committed six errors: (1) that the court's jury instructions regarding Count 3 constructively amended the second superseding indictment; (2) that charging Walker with two counts under 18 U.S.C. § 924(c) (Counts 3 & 4) based on a single unit of prosecution was impermissible; (3) that the use of alternative bases for conviction on Count 4 was either unconstitutional or legally invalid; (4) that Count 4 failed to charge the movant with any codified federal crime; (5) that Count 4 is duplicitous, and both counsel failed to object; and, (6) that the court erred in assessing a five year mandatory minimum consecutive sentence and a ten year sentence on Count 4 because Walker was already subject to a ten year mandatory minimum sentence in Counts 5 and 6.
1. Jury Instructions Regarding Count 3
Walker asserts that the court erred in giving jury instructions which constructively amended Count 3 of the second superseding indictment. The second superseding indictment charges Walker, as follows:
On or about July 12, 2000, in Lebanon County,
Pennsylvania, within the Middle District of Pennsylvania, and elsewhere, the defendants . . . [Ahmed Walker], aided and abetted by each other, did possess firearms in furtherance of drug trafficking crimes for which they may be prosecuted in a court of the United States; that is, conspiracy to distribute and possess with intent to distribute and distribution and possession with intent to distribute a controlled substance.
All in violation of Title 18, United States Code, Section 924(c)(1)(A) and (C)(I), and Section 2.
(Doc. 116, Second Superseding Indictment at Count 3 (emphasis added).)
Title 18 U.S.C. § 924(c)(1)(A), the section charged in Count 3, makes it a crime, and enhances the penalties for "any person who, during and in relation to any crime of violence or drug trafficking crime . . . uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm. . . ." In its charge, the court stated the following:
Now Count 3 of the second superseding indictment charges Ahmed Walker with carrying or using a firearm during and in relation to a drug trafficking crime or possessing a firearm in the furtherance of drug trafficking on July 12, 2000.
The charge in Count 3 stems from the alleged straw purchase of firearms for those defendants by Dennis Rittle on July 12, 2000 in exchange for drugs. (TT at 1156.) Walker argues that the court improperly expanded the scope of the second superseding indictment through its charge by adding the words "carrying or using a firearm during and in relation to a drug trafficking crime," which, although found in the statute, varies from the words of the charging document, which simply states that Walker "possess[ed] firearms in furtherance of drug trafficking crimes." (Compare TT at 1156 with Second Superseding Indictment at Count 3.)
This claim was not preserved during trial, thus, Walker is required to allege and establish both cause and prejudice for this procedural default. See United States v. Frady, 456 U.S. 152, 167-68 (1982). The fact that Walker frames this issue not only as court error, but also as ineffectiveness of trial and appellate counsel satisfies the cause requirement. However, the court finds that Walker cannot meet Strickland's prejudice requirement.
First, although the language used in the second superseding indictment does not include the "carrying or using a firearm during and in relation to a drug trafficking crime" contained in the statute and used by the court in its instruction, the charging document unequivocally states the crimes charged were all done "in violation of [18 U.S.C. § 924(c)(1)(A)]." (See Second Superseding Indictment at Count 3.) Thus, the court's recitation of the statutory language contained in its charge can hardly be said to have constructively amended the charging document, as that document referenced the statute quoted by the court. An indictment is considered sufficient "if, when considered in its entirety, it adequately informs the defendant of the charges against [him] such that [he] may prepare a defense and invoke the double jeopardy clause when appropriate," United States v. Whited, 311 F.3d 259, 262 (3d Cir. 2002). Accordingly, the ...