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United States v. Bellinger

August 24, 2010

UNITED STATES OF AMERICA, RESPONDENT,
v.
EDWARD BELLINGER, A/K/A MATTHEW BELLINGER, A/K/A CARLOS KEY, PETITIONER



The opinion of the court was delivered by: Baylson, J.

MEMORANDUM RE: MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE

Petitioner Edward Bellinger is currently serving a 102-month term of imprisonment after being convicted of possession of a firearm by a convicted felon. After the Third Circuit affirmed his conviction, Bellinger filed the pending Habeas Corpus Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct his Sentence, which asserts several ineffective assistance of counsel claims. For the reasons detailed below, Bellinger's motion will be denied.

I. Procedural and Factual History

On July 20, 2004, a federal grand jury indicted Bellinger on one count of possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Prior to trial, Bellinger filed a motion to suppress physical evidence (Doc. No. 19), and the district court held a hearing on the motion on August 23, 2004. The district court subsequently denied Bellinger's motion (Doc. No. 42) on November 3, 2004.

On March 10, 2005, following a two-day trial during in which Bellinger was represented by Elliot M. Cohen, Esq., a jury found Bellinger guilty of one count of possession of a firearm by a convicted felon (Doc. No. 52). At the December 20, 2005 sentencing hearing, Bellinger requested new counsel, and subsequently, Ellen C. Brotman, Esq., was appointed as Bellinger's counsel going forward (Doc. Nos. 67, 68). Following the appointment of new counsel, Bellinger filed a motion for judgment of acquittal under Federal Rule of Criminal Procedure 29, or, in the alternative, for new trial under Federal Rule of Criminal Procedure 33 (Doc. No. 80). Judge Brody held hearings on Bellinger's motion on August 14, 2006, and on October 23, 2006. After finding excusable neglect pursuant to Federal Rule of Criminal Procedure 45(b)(1)(B), Judge Brody granted Bellinger's motion for an extension of time to raise post-trial motions (Doc. No. 93). On November 8, 2006, the district court denied Bellinger's motion for acquittal or new trial (Doc. No. 95).

On November 28, 2006, Bellinger was sentenced to 102 months of imprisonment, a five-year term of supervised release, a $1,500 fine, and a $100 special assessment (Doc. Nos. 99, 100). Bellinger timely filed a notice of appeal on December 11, 2006 (Doc. No. 102), and on July 9, 2008, the Third Circuit Court of Appeals affirmed the judgment and district court's sentencing order (United States v. Bellinger, 284 Fed. Appx. 966 (3d Cir. 2008) (nonprecedential)).

On October 1, 2009, Bellinger filed his § 2255 motion (Doc. No. 108), to which the government responded on February 16, 2010 (Doc. No. 114). Bellinger filed his reply on March 30, 2010 (Doc. No. 118).

II. Legal Standards

A. 28 U.S.C. § 2255

Bellinger brings his motion under 28 U.S.C. § 2255(a), which provides that: 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.

A district court may grant relief under this statute if the court finds that "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 a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack." 28 U.S.C. § 2255(b).

B. Ineffective Assistance of Counsel

Bellinger argues that counsel was ineffective for several reasons, each of which will be detailed below. Claims for ineffective assistance of counsel are controlled by Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a petitioner "must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy'" in order to prevail on an ineffectiveness claim. Id. at 689. In order to do so, a petitioner must show (1) deficient performance by counsel, and (2) that the petitioner suffered prejudice as a result of that performance. Id. at 687; see also Berghuis v. Thompkins, --- S.Ct. ---, 2010 WL 2160784 (2010) (reciting Strickland standard).

First, to establish deficient performance, Strickland requires that a petitioner demonstrate that "counsel's conduct was so unreasonable that no competent lawyer would have followed it, and that counsel has 'made errors so serious that counsel was not functioning as the "counsel" guaranteed . . . by the Sixth Amendment.'" United States v. Jackson, 2010 WL 1688543, at *2 (E.D. Pa. Apr. 27, 2010) (quoting Strickland, 466 U.S. at 687). Second, to establish prejudice, "the petitioner must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. "In assessing prejudice, courts 'must consider the totality of the evidence before the judge or jury.'" Id. at 695. "A court need not determine whether counsel's performance was deficient ...


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