The opinion of the court was delivered by: McLaughlin, J.
Rasan Townsend was convicted by a jury on July 27, 2005, of possession of a firearm after having been convicted of a crime punishable by imprisonment for more than one year in violation of 18 U.S.C. § 922 (g)(1) and 924 (e). He was sentenced on July 4, 2006, to 235 months of imprisonment (180 months was a statutory mandatory sentence), five years supervised release, a fine of $1,500 and $100 special assessment. Mr. Townsend appealed to the United States Court of Appeals for the Third Circuit. The Court of Appeals affirmed his conviction and the United States Supreme Court denied certiorari.
Mr. Townsend has filed a pro se Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255. He claims that his trial counsel was ineffective for failing to investigate and call a witness Mr. Townsend contends was material to his defense, and for failing to cross-examine effectively key government witnesses.
On September 26, 2004, during the midnight to 8 a.m. shift, Philadelphia Police Officers Davis and Blackwell were working together in plainclothes in an unmarked police car. At approximately 1:12 a.m., the officers were traveling north on 65th Street when they heard gunshots coming from the area of Greenway Avenue. The officers saw Mr. Townsend running from the corner of 65th Street and Greenway Avenue with a gun in his right hand. They pulled up next to him and identified themselves. Mr. Townsend continued to run across 65th Street with the gun in his hand. With the officers in pursuit, he then ran toward the 6400 block of Upland Street, threw the gun into an alley between 65th and Simpson Streets, and continued to run. Mr. Townsend turned and ran south on 65th Street. Officer Blackwell caught him in the rear of 2000 65th Street.
The officers recovered Mr. Townsend's abandoned gun from the alley. It was a Glock 9mm black pistol, serial number DCP022, loaded with one round in the chamber and one round in the magazine. The officers returned to 65th Street and Greenway Avenue where they saw and recovered 9mm cartridge casings on the ground outside 6501 Greenway Avenue. Testing revealed that these casings were fired from the gun abandoned by Mr. Townsend and recovered by the police. The gun was test-fired and found to be operable. The firearm was made in Austria and imported into this country by Glock, Inc., to Smyrna, Georgia. At the time of his arrest, Mr. Townsend had been previously convicted of a crime punishable by imprisonment for a term exceeding one year.
Whether or not counsel will be considered "ineffective" for habeas purposes is governed by the two-part test articulated by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, the defendant must prove that (1) counsel's representation fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsel's error, the result would have been different. Id. at 687-96; see also United States v. Nino, 878 F.2d 101 (3d Cir. 1989).
In evaluating the first prong, a Court must be "highly deferential" to counsel's decision and there is a "strong presumption" that counsel's performance was reasonable. United States v. Kauffman, 109 F.3d 186 (3d Cir. 1997)(citing Strickland). Counsel must have wide latitude in making tactical decisions. Strickland, 466 U.S. at 689. The defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. United States v. Gray, 878 F.2d 702 (3d Cir. 1989).
The conduct of counsel should be evaluated on the facts of the particular case, viewed as of the time of the conduct. Strickland, 466 U.S. at 690. The Third Circuit, quoting Strickland, has cautioned that: the range of reasonable professional judgments is wide and courts must take care to avoid illegitimate second-guessing of counsel's strategic decisions from the superior vantage point of hindsight. Gray, 878 F.2d at 711.
For the second prong, the courts have defined a "reasonable probability" as one which is sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694. Put another way, whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt. The effect of counsel's inadequate performance must be evaluated in light of the totality of the evidence at trial.
The defendant's showing that there was a reasonable probability that the verdict would have been different cannot be based on mere speculation about what a potential witness would have said. In the usual case, the defendant should present the testimony of the potential witness so that the Court can determine what information and testimony would have been revealed had the witness testified. Id. The Court must then decide whether this evidence, when considered along with the rest of the evidence, would have led a conscientious and impartial jury to have a reasonable doubt about the defendant's guilt. Id.
The petitioner advances two bases in support of a contention that his trial counsel was ineffective: (1) trial counsel failed to investigate and call a witness, Jermaine Lee, who would have said that the defendant did not have the firearm at issue that night, that another unnamed person possessed it; and (2) trial counsel failed effectively to impeach key government witnesses for failure to process evidence for latent fingerprints or gunpowder residue, and failed to impeach them for bias.
With respect to the first claim --- failure to call a witness --- the Court finds that the defendant's failure to establish that there is a reasonable probability that the result would have been different had counsel called Jermaine Lee as a witness renders ...