The opinion of the court was delivered by: Stengel, J.
Before the Court is Enrique Iglesias's pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2255. For the reasons that follow, I will deny the motion in its entirety. Mr. Iglesias's petition is timely filed. The Third Circuit Court of Appeals denied a direct appeal of his conviction and sentence by memorandum on July 25, 2008. The Third Circuit denied his petition for rehearing of that decision on February 13, 2009. His judgment became final on that date, and he filed the instant petition for writ of habeas corpus on February 1, 2010, within the applicable one year statute of limitations. See United States v. Wall, 456 F.3d 316, 319 (3d Cir. 2006).
On August 19, 2004, federal and state law enforcement officials executed a search warrant at the home of Elliot Shisler, where they seized a small quantity of methamphetamine. When questioned by authorities, Shisler agreed to provide information about Enrique Iglesias, who he identified as his supplier. As officers were transporting Shisler from his home, he pointed out the location of Iglesias's residence on Red Lion Road in Philadelphia. He later agreed to call Iglesias to arrange a purchase of methamphetamine. With police listening to and recording the call, Shisler asked to come to Iglesias's home, and Iglesias consented. Based on that call and the information Shisler provided, police obtained a warrant to search Iglesias's home.
Officials executed the warrant on the evening of August 19, 2004. Inside Iglesias's home, they found methamphetamine in plastic bags on a bed, in a purse, concealed in a can of hair spray, and in the closet of the master bedroom. They also found various identification cards belonging to Iglesias. In an office, they found more identification belonging to Iglesias, bags of methamphetamine, an unloaded 9 millimeter Taurus semi-automatic pistol and a loaded magazine, and hundreds of empty ziploc bags. In the kitchen, they found a coffee can containing more plastic bags filled with methamphetamine. The total amount of methamphetamine discovered in the apartment was 156 grams. Police also discovered the keys to a Volvo parked behind the apartment. Upon searching the trunk of the Volvo, they found a cooler containing three bags with a total of 1146 grams of methamphetamine.
On October 6, 2004, Iglesias was indicted in the Eastern District of Pennsylvania for conspiracy to distribute more than 500 grams of a mixture or substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. § 846 (Count One); possession with intent to distribute more than 500 grams of a mixture or substance containing a detectable amount of methamphetamine in violation of 21 U.S.C. § 841(a)(1) (Count Two); possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1) (Count Three); and possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) (Count Four). See Docket No. 04-647-01, Document No. 1.
Prior to trial, Mr. Iglesias filed a motion to suppress the evidence obtained in the search of his home, arguing that police coerced Shisler into making the recorded telephone call, that they included false or misleading information in the affidavit of probable cause, that they therefore lacked probable cause to search his home, and that they entered the house without first knocking and announcing their presence. See Doc. No. 32. This court conducted a suppression hearing on August 9, 2005, and subsequently denied the motion to suppress. See Doc. No. 50. At the suppression hearing, Shisler admitted to purchasing methamphetamine from Iglesias both in Iglesias's home and in his own and testified extensively about his interactions with police on the day he was arrested.
At trial, which began on August 10, 2005, Mr. Iglesias was represented by Guy Sciolla, Esq. At trial, Shisler testified as a government witness. Although he admitted having methamphetamine and a gun when police stopped him on August 19, 2004, and being a methamphetamine dealer, he refused to identify his supplier. Over defense counsel's objection, Shisler was impeached with his testimony from the suppression hearing. On August 16, 2005, the jury found Iglesias guilty on all charges through delivery of a verdict by special interrogatory. Iglesias filed a motion for judgment of acquittal under Rule 29(c) of the Federal Rules of Criminal Procedure on August 23, 2005. See Doc. No. 56. This court denied the motion on December 29, 2005. See Doc. No. 63.
Iglesias was sentenced on October 11, 2006. This court imposed a sentence of 360 months imprisonment on Counts One and Two, to be served concurrently; 120 months on Count Four to be served concurrently with the sentence for Counts One and Two; and 60 months on Count Three, to be served consecutively to the sentences for Counts One, Two, and Four. This court also imposed concurrent supervised release terms of five years and three years, a $5,000 fine, and a $400 special assessment.
Mr. Iglesias, represented by newly obtained counsel Cheryl Sturm, appealed his conviction in the Third Circuit Court of Appeals. He made the following arguments concerning matters pertaining to trial: that insufficient evidence was presented to convict him; that this court abused its discretion in admitting Shisler's suppression hearing testimony; and that this court's jury instructions were constructively amended to conform to the proof at trial in violation of the Fifth Amendment. He also claimed that, at sentencing, this court relied on materially inaccurate information by including the amount of drugs intended for Mr. Iglesias's personal use in computing the appropriate guideline range; that it failed to employ the categorical approach in considering his prior state court offenses; and that it failed to give meaningful consideration to sentencing disparities. Finally, Mr. Iglesias claimed his trial counsel rendered ineffective assistance.
The Third Circuit denied his appeal in its entirety, affirming Iglesias's conviction and sentence. It considered at length his claim that the evidence offered at trial was insufficient to convict him; his claim that this court erred in admitting the suppression hearing testimony of Mr. Shisler to impeach him; and his argument that this court should have excluded the drugs intended for personal use in computing his sentencing guidelines. See Iglesias, 535 F.3d 150. It dismissed all other arguments as "neither meritorious nor worthy of extended discussion." Id. at 161.
Mr. Iglesias has filed this motion pro se. Pro se pleadings are traditionally construed quite liberally. However, a pro se petitioner is not excused from the duty to prove a "set of facts in support of his claim which would entitle him to relief." Haines v. Kerner, 404 U.S. 519, 521, 92 S.Ct. 594 (1972). A prisoner in custody may move the sentencing Court to "vacate, set aside, or correct" a sentence imposed "in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255. Section 2255 permits habeas relief for an error of law or fact constituting a "fundamental defect which inherently results in a complete miscarriage of justice." United States v. Eakman, 378 F.3d 294, 298 (3d Cir. 2004) (citing United States v. Addonizio, 442 U.S. 178, 184, 99 S.Ct. 2235 (1979)).
Section 2255 provides that "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto." 28 U.S.C. § 2255(b). Conversely, a court may dismiss a Section 2255 motion where the records and files show conclusively that the movant is not entitled to relief. United States v. Nahodil, 36 F.3d 323, 326 (3d Cir. 1994).
"Habeas review is an extraordinary remedy and will not be allowed to do service for an appeal." Bousley v. United States, 523 U.S. 614, 621, 118 S.Ct. 1604 (1998). Therefore, a habeas petitioner is procedurally barred from asserting a claim in a § 2255 petition that he could have, but failed to raise in his direct appeal. See United States v. Frady, 456 U.S. 152, 165, 102 S.Ct. 1584 (1982). Once claims have been procedurally defaulted, the petitioner can only overcome the procedural bar by showing "cause" for the default and "actual prejudice" from the alleged error or that he is "actually innocent." Id. at 167. "In this context, 'cause' consists of 'something external to the petitioner, something that cannot be fairly attributable to him,' and 'prejudice' means that the alleged error 'worked to [the petitioner's] actual and substantial disadvantage.'" United States v. Rodriguez, 153 F. Supp. 2d 590, 594 (E.D.Pa. 2001) (citing Coleman v. Thompson, 501 U.S. 722, 753, 111 S.Ct. 2546 (1991) and Frady, 456 U.S. at 170, 102 S.Ct. 1584).
Importantly, however, a defendant need not demonstrate cause and prejudice when he raises a claim of ineffective assistance of counsel. See United States v. DeRewal, 10 F.3d 100, 104 (3d Cir.1993). Ineffective assistance of counsel claims are generally not considered on direct appeal and are best brought by the defendant in a collateral attack such as this. United States v. Thornton, 327 F.3d 268, 272 (3d Cir. 2003). Therefore, claims properly dismissed as procedurally defaulted because they were not raised on direct appeal are appropriately considered in connection with an ineffective assistance of counsel claim. See DeRewal, 10 F.3d at 104-05. A defendant seeking relief under § 2255 on an ineffective assistance of counsel claim must show that: (1) counsel's representation fell below an objective standard of reasonableness under prevailing professional norms; and (2) the defendant suffered prejudice as a result - meaning, but for counsel's deficient performance, the result of the proceeding would have been different, i.e. the deficiency deprived the defendant of "a trial whose result is reliable." Id.; Sistrunk v. Vaughn, 96 F.3d 666, 670 (3d Cir. 1996) (citing Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).
A habeas petitioner is also barred from asserting, in a section 2255 petition, "questions which were raised and considered on direct appeal." DeRewal, 10 F.3d at 105 n.4; see also United States v. Palumbo, 608 F.2d 529, 533 (3d Cir. 1979). Moreover, "[o]nce a legal argument has been litigated and decided adversely to a criminal defendant at his trial and on direct appeal, it is within the discretion of the district court to decline to reconsider those arguments if raised again in collateral proceedings under 28 U.S.C. § 2255." United States v. Orejuela, 639 F.2d 1055, 1057 (3d Cir. 1981); see also United States v. Parker, Civ.A. No. 03-6926, Crim.A. No. 00-315, 2006 WL 759689 at *2
A. Claims Raised and Considered on Direct Appeal Will Not Be Reconsidered
A number of claims Mr. Iglesias raises in the instant petition were raised in his direct appeal and ruled upon by the Third Circuit. Because § 2255 "may not be employed to relitigate questions which were raised and considered on direct appeal," this Court may decline to revisit all issues raised in Mr. Iglesias's appeal of his conviction and sentencing. DeRewal, 10 F.3d at 105 n. 4; Orejuela, 639 F.2d at 1057. Therefore, the following grounds for his motion will not be considered here:
* Ground Three: Violation of Federal Rule of Evidence 801 to Impeach Eliott Shisler;*fn2
* Ground Four, Part Two: Violation of the Sixth Amendment right to confront witnesses and reliance on inaccurate information at sentencing;*fn3
* Ground Nine: Constructive Amendment of the Indictment;*fn4
* Ground Eleven, Ground Twelve Part Two: Insufficient Evidence to Convict;*fn5
* Ground Fourteen, Part One: Failure to Consider Sentencing Disparity;*fn6
* Ground Fifteen: Use of Materially Inaccurate Facts at Sentencing*fn7
B. Actual Innocence Claim and Motion For New Trial
In Ground One of his petition, Mr. Iglesias presents what he characterizes as newly discovered evidence proving that Eliott Shisler lied when he testified at Iglesias's suppression hearing and trial. Pet'r's Mem., 29. In support of this claim, Mr. Iglesias attaches Shisler's obituary notice and a copy of a note from Andrea Black*fn8 to him, which states that "I can get documentation that Elliot confessed to God others - that he put an innocent man to jail because he was [unreadable] and words put in his statement that were not his but rather what the agents told him to say." This ground is largely styled as a motion for a new trial, however, because Mr. Iglesias also claims it "goes to actual innocence," I will address it both as a motion for a new trial and as an actual innocence claim under § 2255. See Pet'r's Mem., 30.
A § 2255 petition is limited to claims of unlawful imprisonment. In other words, "'federal habeas courts sit to ensure that individuals are not imprisoned in violation of the Constitution,' and not to review questions of guilt or innocence." United States v. Garth, 188 F.3d 99, 108 (3d Cir. 1999) (citing Herrera v. Collins, 506 U.S. 390, 404, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993)). However, a habeas court does not abuse its discretion in treating an actual innocence claim asserted in a § 2255 petition as a motion for a new trial under Federal Rule of Criminal Procedure 33. See United States v. McArthur, Cr. A. No. 94-402-1, Civ. A. No. 01-3943, 2003 WL 1420252 at *4 (E.D.Pa. Mar. 18, 2003) ("This court has the discretion to treat McArthur's motion under § 2255 as a Rule 33 motion, and will do so because McArthur's petition, insofar as it is based on newly discovered evidence, presents no constitutional question for which § 2255 provides a remedy." (internal citations omitted)) aff'd 107 Fed.Appx. 275 (3rd Cir. 2004).
Rule 33 requires that a defendant's motion for a new trial based on newly discovered evidence must be filed "within 3 years after the verdict of finding of guilty." FED. R. CRIM. P. 33. In determining whether a motion for a new trial should be granted, courts must apply the following five part test:
(a) the evidence must be[,] in fact, newly discovered, i.e., discovered since trial; (b) facts must be alleged from which the court may infer diligence on the part of the movant; (c) evidence relied on[ ] must not be merely cumulative or impeaching; (d) it must be material to the issues involved; and (e) it must be such, and of such nature, as that, on a new trial, the newly discovered evidence would probably produce an acquittal.
United States v. Jasin, 280 F.3d 355, 361 (3d Cir. 2002) (citing United States v. Iannelli, 528 F.2d 1290, 1292 (3d Cir.1976)).
Mr. Iglesias's motion for a new trial therefore fails on two grounds. First, it is untimely. The jury delivered its verdict convicting Mr. Iglesias on August 16, 2005. The time in which he could file a motion for a new trial therefore expired on August 16, 2008, well before he filed his § 2255 motion on February 2, 2010. In addition, Mr. Iglesias has failed entirely to show that this newly discovered evidence would probably produce an acquittal at trial. Though he claims the jury "relied exclusively"on Elliot Shisler's testimony in convicting him, the record here shows otherwise. As noted by the Third Circuit, "overwhelming direct and circumstantial evidence tied Iglesias to Apartment A," where "virtually every room contained damning evidence that Iglesias exercised dominion and control" over it. Iglesias, 535 F.3d at 156-57. Large amounts of methamphetamine and the gun were found in that apartment. Even if Mr. Iglesias could produce actual evidence, apart from the unsubstantiated letter from Ms. Black, that Mr. Shisler was lying, this would be unlikely to produce an acquittal at trial since substantial evidence apart from Shisler's testimony supported Mr. Iglesias's conviction.
Even if this ground were to be liberally construed as an actual innocence claim, it would fail. "To advance a claim under the 'actual innocence' exception to the procedural default rule, a movant must 'persuade[ ] the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.'" United States v. Dill, 555 F. Supp. 2d 514, 520 (E.D.Pa. 2008) (citing Schlup v. Delo, 513 U.S. 298, 329, 115 S.Ct. 851 (1995)). Mr. Iglesias's actual innocence claim is based on the affidavit from Andrea Black which, even if accepted as true, would not cast doubt on whether Shisler was telling the truth at the time he identified Iglesias as his supplier. Even if Shisler were lying, the evidence in Iglesias's home linking him to drug trafficking was overwhelming, and would have given any juror reason to find him guilty.
Therefore, whether construed as a motion for a new trial or as an actual innocence claim, this ground for relief lacks merit.
C. Ineffective Assistance of Trial Counsel Claims
In Ground Six of his petition, Mr. Iglesias sets forth eight distinct grounds forming the basis for his assertion that his trial counsel, Guy Sciolla, Esq., ...