The opinion of the court was delivered by: Savage, J.
The defendant, Odell Cannon, who was convicted of possession of a firearm by a convicted felon*fn1 and possession of body armor by a violent felon,*fn2 has filed pro se motions under 28 U.S.C. § 2255 and Fed. R. Crim. P. 53. In his § 2255 motion, he raises claims of ineffectiveness of counsel and the government's violation of Brady v. Maryland, 373 U.S. 83 (1963), by withholding information that would have supported his justification defense. He asserts that his trial counsel was ineffective in failing to object to: his designation as an "armed career criminal" at sentencing; an erroneous jury instruction on the justification defense; the prosecutor's reference to the nature of his prior conviction forming the predicate offense; and, a violation of his right to a public trial. He also seeks resentencing in light of the amendments to the United States Sentencing Guidelines covering the calculation of recency points.
Cannon had filed an earlier motion under Fed. R. Crim. P. 33
requesting a new trial on the ground of newly discovered evidence. In
his Rule 33 motion, he contends that the government withheld evidence
that would have shown that he was not the aggressor, and was acting
in self-defense when he was shot. This purported evidence
is the same evidence he cites in his § 2255 motions as having been
withheld by the prosecutor at his trial. Because the Brady claims in
both petitions overlap, we shall address them together.
Because his claims are without merit, his motions will be denied.
Factual and Procedural History
On May 22, 2006, at approximately 1:45 a.m., Coatesville Police Officer Jaworski responded to the sounds of gunshots coming from the 700 block of Diamond Alley in Coatesville. Upon reaching that location, he found Cannon, who was wearing a bulletproof vest, laying on the ground with a gunshot wound. Another man, Omega Peoples, was laying under a minivan. Peoples also had been shot. There were two handguns on the street, one was ten feet from Cannon and the other was two feet from Peoples.
At trial, Cannon's girlfriend testified that many times prior to the shooting incident, she had seen Cannon with the bulletproof vest and the same .357 gun found near him. Pursuant to a search warrant, police recovered fourteen rounds of .357 ammunition from Cannon's car.
Cannon presented a justification defense. He did not challenge his possession of the gun and the bulletproof vest. Instead, he claimed that he had acted with justification based on a threat to his life. He also stipulated that he had a qualifying prior felony conviction.
The jury found Cannon guilty of both charges. He was later sentenced to a mandatory minimum prison sentence of 180 months.
Cannon appealed to the Third Circuit Court of Appeals, which affirmed the judgment of conviction. United States v. Cannon, 340 Fed. App'x 826, 827 (3d Cir. 2009). His petition for certiorari was denied by the United States Supreme Court on May 24, 2010. On January 11, 2011, Cannon filed his timely petition under 28 U.S.C. § 2255.
On August 18, 2010, Cannon filed a petition under Rule 33 of the Federal Rules of Criminal Procedure, contending that the government had allegedly failed to produce evidence in accordance with Brady v. Maryland. He had attempted to file the motion on September 3, 2009. Apparently, because it was in letter form, it was not docketed by the Clerk's office. We shall treat the Rule 33 motion as having been filed on the earlier date and consider his claims on the merits.
Ineffectiveness of Counsel Claims
Ineffective assistance of counsel claims are evaluated under the familiar two-part standard established in Strickland v. Washington, 466 U.S. 668 (1984). See Williams v. Taylor, 529 U.S. 362, 390-91 (2000). First, the petitioner must demonstrate that his attorney's performance was deficient, that is, "counsel's representation fell below an objective standard of reasonableness," considering all of the surrounding circumstances of the particular case and the facts viewed at the time of counsel's conduct. Strickland, 466 U.S. at 687-89. Second, if there was a deficiency, he must show that it prejudiced his defense. Id. at 691-92. The prejudice prong requires a showing that as a result of the deficient representation, a reasonable probability exists that the result of the proceedings would have been different. Id. at 694. A reasonable probability is one that is "sufficient to undermine confidence in the outcome." Id. In other words, the prejudice component focuses on whether counsel's deficient performance renders the result of the proceedings unreliable or fundamentally unfair. Williams, 529 U.S. at 393 n.17.
Counsel's performance is deficient only where the defendant can show that counsel's representation fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688. Where counsel's conduct falls within the wide range of reasonable professional assistance under the circumstances, it is presumed to be sound strategy. Id. at 689.
The performance analysis starts with the presumption that counsel's conduct was part of a sound strategy. This "weak" presumption can be rebutted by showing either that the conduct was not part of a strategy or was part of an unsound strategy. Thomas v. Varner, 428 F.3d 491, 499-500 (3d Cir. 2005). Where the record does not explicitly reveal trial counsel's actual strategy or the lack of one, the presumption may be rebutted only by a showing that no sound strategy could have supported the conduct. Id. at 500. Where counsel's conduct was part of a strategy devised after an investigation of the law and the facts, "the 'weak' presumption becomes a 'strong' presumption, which is 'virtually unchallengeable.'" Id. (quoting Strickland, 466 U.S. at 690).
"[O]vercoming the strategic presumption does not, in itself, entitle [the defendant] to relief. It merely gives him the opportunity to show that counsel's conduct fell below objective standards of attorney conduct." Id. at 501. In other words, the petitioner still must establish that counsel's performance was objectively unreasonable.
To satisfy the prejudice component, the defendant must establish "'that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been ...