The opinion of the court was delivered by: Yohn, J.
Defendant Keiya Mershon has filed a pro se Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 ("§ 2255 motion"). Defendant presents seven claims alleging due process violations, Sixth Amendment violations, judicial misconduct, actual innocence, ineffective assistance of trial counsel, and ineffective assistance of appellate counsel. For the reasons set forth below, I will deny the motion without an evidentiary hearing.
I. Factual and Procedural History
This case arises from defendant's attempted carjacking of a Circuit City delivery truck containing electronics from a parking lot of the Spirit Delivery and Distribution ("Spirit") warehouse on June 16, 2006. Defendant was at one time a Spirit employee and therefore likely familiar with delivery times, schedules, and locations. In June 2006, the FBI received information from a reliable confidential informant about a potential hijacking of a delivery truck. On June 8, FBI Special Agent Albert Channell, posing as an undercover buyer, met with defendant, who was planning the carjacking. In a taped conversation, they agreed that on Friday June 9, defendant would seize the truck, which defendant guaranteed would be full of televisions because it was the weekend delivery, and sell the goods to Special Agent Channell for $50,000.
The FBI surveilled defendant on June 9 and observed him leaving his house around 4:00 a.m. He drove to the Spirit warehouse, after a coupe of stops, with two passengers in the car. He circled around the warehouse but left soon after. That afternoon, he called Special Agent Channell and explained that his plan was foiled because things looked out of place and he did not want anyone else, presumably his passengers, to get in trouble. They agreed that defendant would try again on Friday, June 16.
The defendant returned to the Spirit warehouse on June 16 as planned. The FBI again surveilled him that morning as he left his house in a minivan at 2:52 a.m. and drove to the warehouse with only one passenger. The Circuit City truck had not yet arrived at the warehouse. After defendant parked the minivan, officers approached the van and ordered the defendant and passenger, who was later identified as Lawrence Mershon, defendant's father, out of the vehicle. Officers searching the van found gloves, a blue bag, a roll of gray duct tape, and a sock with a claw hammer inside. The officers also observed that the minivan's license plate was covered with duct tape.
On June 29, 2006, a grand jury indicted defendant on two counts: (1) conspiracy to commit Hobbs Act robbery in violation of U.S.C. § 1951(a), and (2) attempted carjacking in violation of 18 U.S.C. § 2119.*fn1 Defendant had a three-day jury trial in April 2007. Lawrence Mershon testified for the government at trial. He testified that defendant offered him $10,000 to drive the truck from the warehouse to a predetermined location while the defendant "was going to grab the driver and take the driver out somewhere." Lawrence testified that defendant told him that the June 9 job was an inside job and that they drove away that morning because there were two different trucks with two different drivers in the area at that time. He also testified that defendant requested he bring a hammer on June 16 for the "shock effect." Lawrence admitted that he assumed the defendant would use the hammer to hurt the driver but testified that he told the defendant not to harm the driver and that he would not remain on the scene if any violence occurred. Lawrence also testified that he knew from his experience as a truck driver for fifteen years that some semitrailers were sealed or locked; he hoped that the hammer was needed to break open the lock, rather than hurt the driver.
At the close of the government's case, defendant moved for a judgment of acquittal under Federal Rule of Criminal Procedure 29(a), and I denied the motion. On April 5, 2007, the jury found defendant guilty of both counts charged in the indictment. Defendant then filed a motion for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29(c) ("Rule 29 motion"on September 24, 2007, arguing that there was insufficient evidence for a reasonable jury to conclude beyond a reasonable doubt that he conspired with co-defendant Lawrence Mershon to take the delivery truck by force, violence, or fear of injury, or that he intended to cause death or serious bodily harm to the truck driver. I denied the defendant's motion, concluding that there was sufficient evidence for a reasonable jury to conclude beyond a reasonable doubt that defendant was guilty of conspiracy to commit robbery and attempted carjacking.
On January 29, 2008, I sentenced defendant to ninety months' imprisonment, three years of supervised release, a special assessment of $200, and a fine of $1000. I applied two Sentencing Guidelines enhancements: (1) a two-level enhancement under U.S.S.G. § 2B3.1(b)(7)(C) based on my determination that a loss from $50,000 to $250,000 would have occurred if defendant had completed the robbery, and (2) a three-level enhancement under U.S.S.G. § 2B3.1(b)(2)(E) for possessing a dangerous weapon, which in this case was the hammer. Defendant filed a timely notice of appeal on January 30, 2008. The only issue raised in defendant's appeal was whether I erred in applying an enhancement under U.S.S.G. § 2B3.1(b)(7)(C) based on my determination of loss. United States v. Mershon, 322 F.App'x. 232, 233 (3d Cir. 2009). The Third Circuit affirmed the sentence concluding that no clear error was committed in calculating the intended loss or applying the enhancement in defendant's sentencing. Id. at 240. Defendant timely filed this § 2255 motion on April 28, 2010.
"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.'" United States v. Williams, No. 09-5154, 2010 U.S. Dist. LEXIS 40912, at *5 (E.D. Pa. Apr. 26, 2010) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). When a prisoner files a § 2255 motion, the district court may dismiss the motion without an evidentiary hearing if "the motion and files and records of the case show conclusively that the movant is not entitled to relief." Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989) (citation omitted). In making this determination, "the court must accept the truth of the movant's factual allegations unless they are clearly frivolous on the basis of the existing record." Id.
Defendant is procedurally barred under § 2255 from raising claims that have been previously litigated and decided adversely to the petitioner on trial and on direct appeal. United States v. Karimi, No. 34-369-1, 1997 U.S. Dist. LEXIS 5008, at *4 (E.D. Pa. April 11, 1997) (citing United States v. Orujuela, 639 F. 2d 1055, 1057 (3d Cir. 1981)). A petitioner is also barred "from bringing any claims on collateral review which could have been, but were not, raised on direct review." Irrizari v. United States, 153 F. Supp. 2d 722, 726 (E.D. Pa. 2001) (citing Bousley v. United States, 523 U.S. 614, 621 (1998), and United States v. Biberfeld, 957 F.2d 98, 104 (3d Cir. 1992)). "Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either 'cause' and actual 'prejudice' or that he is 'actually innocent.'" Bousley, 523 U.S. at 622 (internal citations omitted).To show cause, petitioner must demonstrate "something external to the petitioner, something that cannot fairly be attributed to him." Coleman v. Thompson, 501 U.S. 722, 753 (1991). While constitutionally ineffective assistance of counsel is cause, attorney error that does not rise to the level of constitutional ineffectiveness is not. McCleskey v. Zant, 499 U.S. 467, 493 (1991). A petitioner may show prejudice if the alleged error "worked to his actual and substantial disadvantage." Murray v. Carrier, 477 U.S. 478, 494 (1986). There is no procedural default for failure to raise ineffective-assistance claims on direct appeal. United States v. Sanchez-Mercedes, No. 06-CR-115-1, 2009 U.S. Dist. LEXIS 110493 (E.D. Pa. Nov. 24, 2009) (citing Massaro v. United States, 538 U.S. 500, 503-04 (2003)).
Defendant asserts seven claims: (1) he is actually innocent of both crimes; (2) this court engaged in judicial misconduct; (3) his sentencing was improperly enhanced based on the determination of loss; (4) his sentencing was improperly enhanced for possession of a dangerous weapon; (5) he was denied due process because the prosecutor made improper comments in his closing argument at trial and presented alleged perjured testimony to the grand jury; (6) trial counsel was ineffective; and (7) appellate counsel was ineffective. Defendant seeks an evidentiary hearing in order to advance these claims.
Defendant brings two claims of actual innocence: (1) he is innocent of attempted carjacking because he was arrested immediately after arriving at an empty warehouse parking lot, where no delivery truck was present; and (2) he is innocent of conspiracy to commit Hobbs Act robbery because there was no agreement to take the truck by threat of force or violence as his co-defendant, Lawrence Mershon, testified that it was an "inside job" and that he, Lawrence, did not want to harm the driver. (Def.'s Mot. 9, 16-17.) These claims of actual innocence reflect arguments that were sufficiently addressed and denied in his Rule 29 motion. United States v. Mershon, No. 06-329-1, 2007 U.S. Dist. LEXIS 91534 (E.D. Pa. Dec. 13, 2007). Defendant could have also litigated these claims on direct appeal, but did not. Defendant does not argue that there was cause for failing to do so and cannot establish actual prejudice as a result. Therefore, these claims are procedurally defaulted. In addition, defendant fails to establish that a collateral attack on the ...