The opinion of the court was delivered by: Judge Conner
Presently before the court is a motion (Doc. 435) filed by pro se petitioner Christopher Jones ("Jones") to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.*fn1 Jones claims his conviction should be vacated because he was denied effective assistance of counsel in violation of his Sixth Amendment rights under the United States Constitution. Specifically, he contends that initial defense counsel was ineffective in failing to obtain in a timely fashion police communication tapes containing possible exculpatory evidence. (See id. at 3-4). For the reasons that follow, Jones' motion (Doc. 435) will be denied.
I. Statement of Facts & Procedural History
On July 12, 2003, at approximately 8:40 a.m., Pennsylvania State Police Trooper John J. Latin ("Latin") observed Jones travel past his position on Interstate 80 at a speed of 84 miles per hour, well in excess of the posted speed limit of 65 miles per hour. (Doc. 437, at 41-42). Latin pursued Jones in his marked police cruiser with lights flashing and signaled him to pull over, but Jones did not stop.
(Id. at 42-43). During the pursuit, Latin observed Jones throw a white powdery substance and brown bag out the driver-side window on multiple occasions. (Id. at 43-44).
Latin followed Jones for approximately 14 miles, at which point Jones stopped the vehicle. (Id. at 43). When Latin, now accompanied by State Troopers William Waltman and John McGeary, ordered Jones to exit his vehicle, he observed a cell phone and a white powdery substance fall from Jones' lap. (Id. at 45-46). The troopers also observed white powdery material on the driver's seat. (Id. at 46). At this point, the troopers placed Jones under arrest. (Id. at 47-48). Subsequent to the arrest, the troopers recovered the items thrown from Jones' car during the pursuit. (Doc. 445, at 5). After obtaining a search warrant for the vehicle, the troopers found additional white powdery material. (Id.). Lab tests determined the powdery substance to be cocaine. (Id.). In total, the troopers recovered 104.5 grams of cocaine. (Id.).
On July 24, 2003, a grand jury in Williamsport, Pennsylvania, returned a one-count indictment charging Jones with distribution and possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1). (See Doc. 1). On September 3, 2003, in preparation for trial, Jones wrote then-counsel Stephen C. Smith, Esquire ("Attorney Smith"). (Doc. 437, at 37). Jones requested that Attorney Smith obtain state police radio tapes or transcripts in connection with Jones' vehicle stop, believing that they contained exculpatory evidence. (Id.) In a letter dated September 16, 2003, Attorney Smith responded to Jones that he planned on traveling to Bloomsburg, Pennsylvania, to meet with the state police regarding the police communication tapes in question. (Id. at 38).
On November 16, 2003, Jones sent a letter to the court, requesting copies of the state police radio tapes or transcripts. (Id. at 2-3). In this correspondence, Jones acknowledged that Attorney Smith "has tried on several occasions to obtain the files, information and documents" but had been unsuccessful. (Id. at 2). On December 24, 2003, Jones wrote the court seeking appointment of new defense counsel. (Id. at 5-8). Jones alleged ineffective assistance of counsel on the basis that Attorney Smith did not file motions that he agreed should be filed. (Id. at 7). At a hearing before the court on January 8, 2004, Jones withdrew his motion for new counsel and retained Attorney Smith's services. (Doc. 18).
On February 5, 2004, Attorney Smith requested from the United States Attorney copies of the police radio transmissions related to Jones' vehicle stop. (Doc. 437, at 9). The U.S. Attorney advised counsel that the communication tapes were no longer available; such tapes were retained for 64 days before being recycled and re-used, pursuant to Pennsylvania State Police policy. (Id. at 10-11). Thereafter, Jones filed a motion (Doc. 37) for appointment of new defense counsel, again alleging ineffective assistance of counsel. On March 29, 2004, the court granted the motion, and Edward J. Rymsza, Esquire, was appointed as counsel. (Doc. 45). Attorney Rymsza withdrew as counsel on August 16, 2004, and Jones elected to proceed pro se with stand-by counsel. (Doc. 101).
On December 8, 2004, after a trial in which Jones represented himself, a jury convicted Jones on the above charge. (Doc. 210).On June 10, 2005, the court sentenced Jones to a 264-month term of imprisonment, a six-year term of supervised release, and a special assessment of $100. (Doc. 232).
Following the imposition of sentence, on June 11, 2005, Jones timely appealed his sentence to the Third Circuit Court of Appeals. (Doc. 233). The Third Circuit determined that the district court failed to adequately apprise Jones concerning the consequences of appearing pro se and the rights he waived in proceeding without counsel. See United States v. Jones, 452 F.3d 223 (3d Cir. 2006). Accordingly, on July 20, 2006, the Third Circuit vacated the judgment of conviction and sentence and remanded the matter for a new trial. (Docs. 256, 257).
On remand, following a thorough colloquy at a hearing held on July 28, 2006, Jones initially indicated his intent to be represented by appointed counsel. (Doc. 259). However, on September 11, 2006, Jones again elected to proceed pro se with stand-by counsel. (See Docs. 263, 270). On December 14, 2006, a grand jury in Williamsport returned a superseding indictment, charging Jones with a single count of distribution and possession with intent to distribute at least 500 grams of cocaine, in violation of 21 U.S.C. § 841(a)(1). (Doc. 282). After a second trial, on November 13, 2007, the jury found Jones guilty of distribution and possession with intent to distribute less than 500 grams of cocaine. (Doc. 400).
On May 14, 2008, the court sentenced Jones to 262 months imprisonment, a six-year term of supervised release, and a special assessment of $100. (Doc. 412).
Jones filed a timely notice of appeal on May 15, 2008. (Doc. 413). In light of a clerical error, the court entered an amended judgment and commitment order on May 19, 2008. (Doc. 416).The Third Circuit affirmed the judgment of conviction and sentence on June 2, 2009. See United States v. Jones, 332 Fed. App'x 767 (3d Cir. 2009). Jones' petition for writ of ...