The opinion of the court was delivered by: Eduardo C. Robreno, J.
Petitioner Bilial Shabazz ("Petitioner"), by counsel, filed a petition requesting that the Court vacate his sentence pursuant to 28 U.S.C. § 2255. Petitioner bases his claim for relief on three grounds: (1) a putative discovery violation; (2) ineffective assistance of trial counsel; and (3) ineffective appellate representation. For the reasons set forth below the Court will deny Petitioner's motion without conducting a hearing.
On December 14, 2006, a grand jury in the Eastern District of Pennsylvania returned an indictment against Petitioner and three co-conspirators--Christopher Young, Steven Patton, and Bruce Johnson. The indictment charged the parties with three Counts: (1) conspiracy to commit Hobbs Act Robbery, in violation of 18 U.S.C. § 1951(a) (Count 1); (2) aiding and abetting a Hobbs Act robbery, in violation of 18 U.S.C. §§ 1951(a) and 2 (Count 2); and (3) aiding and abetting the using and carrying of firearms during and in relation to a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1) and 2 (Count 3). Petitioner, with the representation of court-appointed counsel, Constance Mary Clarke, Esquire ("Ms. Clarke"), proceeded to trial before a jury. The jury found Petitioner guilty as to all Counts.
Thereafter, Petitioner sought new representation, Mark Greenberg ("Mr. Greenberg"), Esquire, for sentencing and appeal. On April 16, 2008, Petitioner was sentenced to 240 months imprisonment on Counts one and two and a consecutive 120-month term of imprisonment on Count three, for a total of 360 months imprisonment.
Petitioner's effort to overturn his conviction via direct review was unavailing. On April 16, 2009, the Third Circuit affirmed the judgment of this Court. Thereafter, on August 2, 2010, Petitioner, with the assistance of counsel, filed the instant motion. The Government filed its response on November 4, 2010. The instant motion is now ripe for disposition.*fn1
Petitioner's motion raises three grounds for relief. Namely, that (1) the Government failed to provide all relevant discovery; (2) trial counsel was ineffective; and (3) appellate counsel was ineffective.
As outlined below, Petitioner's first and third arguments are unavailing because they are nothing more than bald assertions unsupported by the record. Petitioner's second argument is also unavailing. Petitioner fails to demonstrate that any of the alleged errors of trial counsel establish that counsel's representation was so deficient that Petitioner was essentially denied the counsel guaranteed by the Sixth Amendment and that any alleged deficiency caused prejudice. Consequently, despite the statutory presumption in favor of holding evidentiary hearings in connection with § 2255 motions, see 28 U.S.C. § 2255(b) ("Unless 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 . . . ."), Petitioner's claim will be denied without a hearing, see United States v.
petition. Petitioner's pro se motion will be denied because any communication Petitioner has with the Court while represented by counsel shall be through counsel. See McKaskle v. Wiggins, 465 U.S. 168, 183 (1984) (stating that there is no constitutional right to hybrid representation); United States v. D'Amario, 328 McCoy, 410 F.3d 124, 134 (3d Cir. 2005) (explaining that no hearing is required if the record clearly resolves the merits of the § 2255 motion).
A. Putative Discovery Violation Petitioner's first ground for relief will be construed as a discovery violation. Petitioner alleges that the Government developed numerous photographs from disposable cameras Petitioner owned and showed these photographs to potential witnesses, but failed to produce these photographs in discovery. (Petition at ¶ 21.) Petitioner states that these "photographs were clearly exculpatory and should have been produced to the defense and could have been used to show that Mr. Shabazz is not guilty." (Id.) The record, however, establishes otherwise.
Consistent with Petitioner's allegations, the Government admits it developed photographs from disposable cameras that belonged to Petitioner. However, the Government disagrees with Petitioner's statement that these photographs were not produced during discovery. Unlike Petitioner, the Government has provided evidence to support its position. The record indicates that, on June 7, 2007, the Government wrote a letter to Ms. Clarke informing her that there was additional discovery material. (Gov. Resp. at Ex. A-2.) In particular, this letter informed Ms. Clarke that this additional discovery included photographs from disposable cameras. The letter also informed counsel that if counsel wished to review the photographs, counsel should contact the Assistant United States Attorney and schedule a time to review said photographs.*fn2 (Id.) In response, Ms. Clarke scheduled an appointment to review these photographs and reviewed them with Petitioner in the room. (Gov. Resp. at Ex. A, ¶ 5.) After reviewing the photographs, neither Petitioner nor his counsel believed the photographs provided exculpatory information, and they did not find that there was a need for such evidence at trial. (Id.)
Based on the evidence presented, nothing, other than Petitioner's bald assertions, suggests that the Government was less than forthcoming and failed to provide all photographs in its possession. Consequently, the Court finds no basis for this allegation and Petitioner's motion on this ground will be denied.
B. Ineffective Assistance of Counsel Petitioner's second ground for relief is based on Ms.
Clarke's alleged ineffective assistance. This claim, which is assessed under the two-pronged Strickland framework, is grounded in the Sixth Amendment right to "'effective assistance of counsel'-that is, representation that does not fall 'below an objective standard of reasonableness' in light of 'prevailing professional norms.'" Bobby v. Van Hook, 130 S. Ct. 13, 16 (2009) (quoting Strickland v. Washington, 466 U.S. 668, 686 (1984)).
Petitioner alleges that counsel was ineffective for twelve reasons: (1) stipulating to the admission of wire transfer documents; (2) failing to request and demand copies of certain photographs from disposable cameras; (3) failing to investigate certain witnesses or present a defense regarding Petitioner shaving his beard before the robbery; (4) failing to call co-conspirator Christopher Young; (5) failing to file a motion to suppress or object to certain handwritten letters by Petitioner; (6) failing to adequately cross-examine co-conspirator Bruce Johnson and failing to object to his identification of individuals from still photographs; (7) failing to adequately argue the motion to suppress Petitioner's statement to law enforcement; (8) failing to object to: bullets introduced as evidence, the Government's opening statement, the introduction of certain cellphone records, Ms. Ronneka Rankin's testimony regarding an abortion, and FBI Majarowitz' lay opinion regarding the resemblance of co-conspirator Christopher Young and Philadelphia Police Department Suspect Nikia Rigney; (9) withdrawing a motion to disclose a confidential informant; (10) failing to request proffer notes of Shelly Young; (11) failing to question certain witnesses regarding the amount of time they were incarcerated together; and (12) failing to object to co-conspirator Steve Patton's testimony regarding video surveillance
1. Legal Standard Under Strickland, Petitioner must make two showings to obtain relief for ineffective assistance of counsel. First, Petitioner must show that his lawyer's performance was deficient by identifying counsel's "acts or omissions" that were outside the bounds of "reasonable professional judgment." Strickland, 466 U.S. at 688, 690. The Court must decide whether the acts or omissions "were outside the wide range of professionally competent assistance." Id. at 690. The Court judges counsel's performance based on the case-specific facts, viewed as of "the time of counsel's conduct." Id. Under this first prong, a petitioner "must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
Second, Petitioner must show "that the deficient performance prejudiced the defense," meaning that "counsel's errors were so serious as to deprive the defendant of a fair trial" with a reliable result. Id. at 687. Petitioner must therefore show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is defined as "a probability sufficient to undermine confidence in the outcome." Id. at 669. "Stated differently, there will be no award of relief unless the defendant affirmatively establishes the likelihood of an unreliable verdict." McAleese v. Mazurkiewicz, 1 F.3d 159, 166 (3d Cir. 1993).
The Strickland test is conjunctive and a habeas petitioner must establish both the deficiency in performance prong and the prejudice prong. See Strickland, 466 U.S. at 687; Rainey v. Varner, 603 F.3d 189, 197 (3d Cir. 2010). As a result, if a petitioner fails on either prong, he loses. Rolan v. Vaughn, 445 F.3d 671 (3d Cir. 2006).
2. Counsel Was Not Ineffective For Stipulating To The Admission Of Wire Transfer Documents and This Stipulation Did Not Result In Prejudice
Petitioner argues that trial counsel was ineffective for stipulating to the admission of wire transfer documents because these documents were not self-authenticating. Petitioner states that if trial counsel did not stipulate to the admission of these documents, then live witnesses would have had to provide testimony to establish their authenticity. Petitioner states that this stipulation denied him his rights under the Confrontation Clause of the Sixth Amendment because the documents, themselves, could not be cross-examined. (Petition at ¶ 28(a).)
The Court must decide whether the making of this stipulation was outside the bounds of "reasonable professional judgment." Strickland, 466 U.S. at 690. Petitioner "must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). Petitioner has not met this burden.
Petitioner's trial counsel, Ms. Clarke, provided an affidavit. (Gov. Resp. at Ex. A.) Ms. Clarke stated, and provided documentation to establish, that Petitioner "agreed to enter into the stipulations" and signed the stipulations. (Gov. Resp. at Ex. A, A-1.) Petitioner does not refute the fact that he agreed to the stipulations. Rather, Petitioner argues that the decision to enter into the stipulations was not sound trial strategy. Stipulations are often used to avoid senselessly lengthening a trial or drawing attention to issues harmful to a party. Here, the use of a stipulation as to the wire transfers was sound trial strategy because it prevented the Government from drawing unnecessary attention to the wire transfers. The Government has stated that if this stipulation was not made, the Government was prepared to call a custodian of records to introduce the wire transfer evidence. (Gov. Resp. at 14.) This would have only served to highlight the existence of this damaging evidence. As such, trial Counsel's recommendation to Petitioner that he agree to this stipulation was sound trial strategy.
Moreover, even if this decision was outside the bounds of reasonable competent assistance, Petitioner has failed to establish that such error prejudiced the outcome of the trial. Entering into this limited stipulation did not prejudice the case given the large amount of evidence against Defendant. See United States v. Shabazz, 564 F.3d 280, 286 (3d Cir. 2009) ("The heart of the Government's case was the testimony of Patton, Johnson and Tate, the footage from the surveillance video, and the cell phone records linking Shabazz's phone to Johnson's (including one call from the area of the Roosevelt Boulevard Wal-Mart just prior to the robbery). That evidence overwhelmingly pointed to Shabazz's guilt."). Consequently, this claim of ineffective assistance of counsel will be denied.
3. Counsel Was Not Ineffective For Failing To Request Copies Of Photographs From Disposable Cameras
Petitioner next argues that trial counsel was ineffective for failing to request copies of the photographs the Government developed from Petitioner's cameras and showed to witnesses in the case. Petitioner states that some photographs were selectively provided to his trial counsel, but that others ...