The opinion of the court was delivered by: Sylvia H. Rambo United States District Judge
Before the court is Defendant Anthony Jerome White's motion and supporting brief for relief pursuant to 28 U.S.C. § 2255. On November 15, 2010, this court issued an Administrative Order and Notice of Limitations on Filing Motions Under 28 U.S.C. § 2255 (doc. 116). On December 21, 2010, this court directed the Government to show cause why White should not be granted relief. On January 20, 2011, the Government filed its response to the § 2255 motion. After being granted an extension of time, Petitioner filed a traverse to the government's response on March 31, 2011. The matter is ripe for consideration.
On August 2, 2006, the grand jury returned a four-count Indictment charging White with (1) possession of a firearm by a previously convicted felon; (2) possession of a firearm in furtherance of drug trafficking; (3) conspiracy to distribute and possess with intent to distribute marijuana and five grams and more of crack cocaine; and (4) distribution and possession with intent to distribute marijuana and five grams and more of crack cocaine. On March 28, 2007, the grand jury returned a Superseding Indictment which increased the quantity of cocaine referenced in Counts 3 and 4 from 5 grams to 50 grams; expanded the time period of the criminal conduct, and added a fifth count -- a charge of illegal alien in possession of a firearm.
After an initial substitution of counsel and six continuances, a non-jury trial was held on July 10-11, 2007. This court announced a verdict of guilty on all counts on July 16, 2007. White was sentenced on October 17, 2007. White filed a direct appeal and, on November 17, 2008, the Third Circuit Court of Appeals filed an opinion and order affirming the Judgment and Conviction.
In his 28 U.S.C. § 2255 motion, White presents claims that fall into two categories. The first category is alleged errors by the court. White claims that the court erred (1) in accepting his waiver of his right to a jury trial; (2) in refusing to disqualify counsel; and (3) that the court's determination of drug weights was not supported by the evidence.
The second category are claims of ineffective assistance of counsel. White claims that counsel was ineffective for (1) failing to file a motion to suppress; (2) permitting White to waive a jury trial; (3) failing to challenge drug weights, drug purchases, and prior bad acts; and (4) failing to challenge the evidence regarding possession of a firearm in furtherance of drug trafficking.
On May 23, 2007, a colloquy was held concerning White's request for a bench trial. This court advised White that in a jury trial he would assist his counsel in selecting 12 jurors and alternate jurors and that in order for him to be convicted, all 12 jurors would have to unanimously agree upon his guilt. (Hearing of May 23, 2007, doc. 118, at pp. 2-3.) The court further explained that an important difference between a jury trial and a non-jury trial "is that [in a jury trial], you have 12 people who have to agree whereas in a trial before a judge alone, I decide all of the legal and factual issues and also make a decision on your guilt or innocence." (Id. at p. 3.) In addition, the court advised White that in either proceeding, the burden of proof beyond a reasonable doubt was on the government and that he was presumed innocent. (Id. at p. 3.) In response to the court's queries, White stated he understood each right and concept explained and had no questions. (Id. at pp. 2-4.) He told the court, "I don't feel the need to have a jury trial." (Id. at p. 3.)
White also signed a written jury trial waiver. In that signed waiver, he acknowledged he had been "advised of the various rights and protections inherent in a jury trial, including that a jury decision finding my guilt must be unanimous, but I choose a bench trial." (Doc. 38.)
White now claims in his traverse that his waiver was not knowingly, voluntarily, and intelligently made because he was mentally ill at the time, suffering from schizophrenia. There is nothing to support this assertion. The presentence report, under the heading "Mental and Emotional Health," does not cite to any emotional condition. It does state that White received ...