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United States of America v. andre Henry

August 3, 2011

UNITED STATES OF AMERICA
v.
ANDRE HENRY



The opinion of the court was delivered by: DuBOIS, J.

MEMORANDUM

I. INTRODUCTION

Andre Henry was convicted in 2007 of charges stemming from false statements made to a federal firearms licensee; being a felon in possession of a firearm and ammunition; eight counts of Hobbs Act robbery; attempted carjacking; three counts of carrying and using a firearm during and in relation to a crime of violence; charges arising out of a pair of armed bank robberies and a conspiracy to commit a third armed bank robbery; and solicitation to commit murder. He is serving a 982-month sentence in federal prison. Currently before the Court is Henry's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. For the reasons that follow, the motion is denied without an evidentiary hearing.

II. BACKGROUND

The background of this case is set forth in detail in the Court's previous opinions. See United States v. Henry, 472 F. Supp. 2d 649 (E.D. Pa. 2007) (denying motions to suppress); United States v. Henry, No. 06-33-01, 2007 WL 419191 (E.D. Pa. Feb. 2, 2007) (granting Motion for an Order Declaring the Defendant in Contempt of Court for Failure to Provide Palm Prints Pursuant to Court Order); United States v. Henry, No. 06-33-01, 2007 WL 419197 (E.D. Pa. Feb. 2, 2007) (denying pro se motion to suppress); United States v. Henry, No. 06-33-01, 2007 WL 656877 (E.D. Pa. Jan. 30, 2007) (denying pro se motion for reconsideration of order denying motion to dismiss Superseding Indictment); United States v. Henry, No. 06-33-01, 2007 WL 219885 (E.D. Pa. Jan. 26, 2007) (denying motions for subpoenas). Accordingly, the Court recites in this Memorandum only those facts necessary to explain the Court's rulings on the instant motion.

On April 25, 2003, Henry was released on parole after serving a prison sentence on a state-court robbery conviction. In September 2003, agents from the Bureau of Alcohol, Tobacco and Firearms ("ATF") conducted a compliance inspection of Abington Gun Sports in Willow Grove, Montgomery County, Pennsylvania. That inspection and subsequent investigation uncovered evidence that Henry had driven a woman named Nakita McQuay to the store for the purpose of purchasing five guns for him, including an AK-47 semiautomatic assault weapon. Henry was prohibited from purchasing the guns himself because he was a convicted felon.

On October 20, 2003, ATF Special Agent Gerard Gallagher contacted Donna Henry, supervisor of the parole office to which Henry's case was assigned, and notified her of Henry's participation in the straw purchases. Gallagher informed Donna Henry that the sales took place at Abington Gun Sports and that Henry had traveled there twice. Donna Henry testified that she knew Abington Gun Sports was located outside Philadelphia.

The next day, October 21, 2003, Henry unexpectedly arrived at the parole office and requested that a tracking bracelet be removed from his ankle. Based on the information from Agent Gallagher, parole agents detained defendant, searched the defendant and searched his car. In the car, they found a bumper sticker from Abington Gun Sports, a Pennsylvania turnpike toll receipt and what appeared to be three pipe bombs. Authorities did not find explosives in the pipes.

Henry subsequently admitted to Agent Gallagher that he had bought six or seven firearms through a straw purchaser and that several of the guns were stored at his residence. Based on that information, parole agents conducted a search of Henry's residence. The agents seized a large quantity of evidence and contraband during the search, including various firearms and ammunition and more than $14,000 in dye-stained U.S. currency.

In January 2006, a grand jury sitting in this district returned a 28-count Indictment against Henry and six co-defendants. Nine months later, in October 2006, a grand jury returned a 28-count Superseding Indictment against Henry and five co-defendants. The Superseding Indictment charged Henry with crimes relating to false statements made to a federal firearms licensee, in violation of 18 U.S.C. §§ 924(a)(1)(A) and 371 (Counts 1, 2, 3, 5, 7, 9); five counts of being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1) (Counts 4, 6, 8, 10, 26); eight counts of Hobbs Act robbery, in violation of 18 U.S.C. § 1951 (Counts 11, 12, 13, 14, 15, 18, 19, 20); attempted carjacking, in violation of 18 U.S.C. § 2119 (Count 16); three counts of carrying and using a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c) (Counts 17, 22, 24); two counts of armed bank robbery and a count of conspiracy to commit armed bank robbery, in violation of 18 U.S.C. §§ 2113(d) and 371 (Counts 21, 23, 25); possession of body armor, in violation of 18 U.S.C. §§ 931 and 921(a)(35) (Count 27); solicitation to commit murder, in violation of 18 U.S.C. § 373 (Count 28); and aiding and abetting the above offenses, in violation of 18 U.S.C. § 2.

Before trial, Henry filed both counseled and pro se motions to suppress, challenging the searches of his person, car and residence. The Court held a suppression hearing over two days and then denied both motions. Henry, 472 F. Supp. 2d at 658. At trial, the Court bifurcated Count 27 of the Superseding Indictment, the count charging possession of body armor. Trial on Counts 1 through 26 and Count 28 commenced on February 5, 2007. On February 22, 2007, a jury found defendant guilty on all 27 counts before it. Thereafter, the government withdrew the charge in Count 27. On September 3, 2008, defendant was sentenced to 982 months -- 81 years, 10 months -- imprisonment, followed by 5 years of supervised release. The Third Circuit affirmed. United States v. Henry, 360 F. App'x 395, 399 (3d Cir. 2010).

In the instant § 2255 motion, Henry raises three claims. First, he argues that counsel rendered ineffective assistance in litigating his suppression motions. Second, he alleges a claim of ineffective assistance of counsel for failure to move to dismiss the Indictment prior to the filing of the Superseding Indictment. Third, he contends that the Court erred in not allowing him to select his own psychologist or psychiatrist to evaluate his competency to stand trial, and that his appellate counsel was ineffective for failing to pursue the issue before the Third Circuit. The motion is fully briefed and ripe for review.

III. DISCUSSION

Each of Henry's claims includes an allegation that he was denied his Sixth Amendment right to effective assistance of counsel. The standard for assessing a claim of ineffective assistance of counsel requires a familiar two-part inquiry. "First, the defendant must show that counsel's performance was deficient," that is, "that counsel's representation fell below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 687-88 (1984). "Second, the defendant must show that [counsel's] deficient performance prejudiced the defense." Id. at 687. With respect to the second part of the inquiry, the defendant must demonstrate that "there is a reasonable probability that, but for ...


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