The opinion of the court was delivered by: Surrick, J.
Presently before the Court is Petitioner Reginald Young's Motion To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody under 28 U.S.C. § 2255. (ECF No. 269, 05-307-3.) For the following reasons, Petitioner's Motion will be denied.
Petitioner Reginald Young was indicted on one count of conspiracy to distribute 500 grams or more of cocaine, and 100 grams or more of heroin, in violation of 21 U.S.C. § 846 (Count One); one count of possession with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) (Count Two); and one count of possession with intent to distribute 100 grams or more of heroin, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) (Count Three). (Indictment 1, ECF No. 80.) On June 8, 2006, Petitioner was found guilty by a jury on all three counts. (Trial Tr. 5-6, June 8, 2006.) Petitioner pursued several avenues for post-trial relief. He filed a Motion For Judgment of Acquittal and a Motion For New Trial pursuant to Federal Rules of Criminal Procedure 29 and 33, arguing that the evidence presented was insufficient to support the jury's findings. (Mot. for Judgment, ECF No. 151.) By Memorandum and Order dated January 2, 2008, we denied the motions observing that the evidence against Defendant was overwhelming. (Order on Mot. for New Trial, ECF No. 217.) Petitioner was sentenced to a period of incarceration of 270 months. (ECF No. 246.) Petitioner filed an appeal in the Third Circuit Court of Appeals. (ECF Nos. 250, 253). In an opinion dated June 30, 2009 the Third Circuit affirmed the judgment of the District Court. United States v. Young, 334 F. App'x 477 (3d Cir. 2009). The Supreme Court denied a writ of certiorari on November 2, 2009. Young v. United States, 130 S.Ct. 524 (2009). Petitioner now seeks relief on the following seven grounds.
1. Petitioner claims that trial counsel was ineffective for failing to articulate a specific objection to allegedly prejudicial testimony under Federal Rule of Evidence 404(b). (Pet. 4, Pet'r Mem. 5.)
2. Petitioner faults his appellate counsel for failing to challenge a perceived lack of curative instructions related to allegedly 404(b) prejudicial evidence. (Pet. 5, Pet'r Mem. 17.)
3. Petitioner contends that trial counsel was ineffective for failing to make a motion for acquittal, pursuant to Federal Rule of Criminal Procedure 29, at the close of the Government's case-in-chief and after the jury's verdict had been submitted. (Pet. 7, Pet'r Mem. 20.)
4. Petitioner argues that trial counsel failed to challenge the sufficiency of a search warrant which law enforcement executed concurrently with his arrest on August 25, 2005. (Pet. 8, Pet'r Mem. 29.)
5. Petitioner claims that trial counsel failed to properly object to a Government witness' testimony about Petitioner's handwriting. (Pet. 13, Pet'r Mem. 36.)
6. Petitioner alleges that trial counsel failed to properly object to the authentication of crime lab reports. (Pet. 14, Pet'r Mem. 38.)
7. Petitioner contends that his sentencing counsel failed to challenge an upward adjustment in the calculation of his base offense level pursuant to U.S.S.G. § 3B1.1. (Pet. 16, Pet. Mem. 55) The grounds for relief cited by Petitioner are frivolous.
Pursuant to 28 U.S.C. § 2255, a federal prisoner may move the sentencing court to vacate, set aside or correct a sentence "upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). Relief under this provision is generally available "to protect against a fundamental defect which inherently results in a complete miscarriage of justice or an omission inconsistent with the rudimentary demands of fair procedure." United States v. DeLuca, 889 F.2d 503, 506 (3d Cir. 1989).
While the court may in its discretion hold an evidentiary hearing on a Section 2255 petition, Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989), such a hearing need not be held if the "motion and the files and records conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b); see also United States v. Day, 969 F.2d 39, 41-42 (3d Cir. 1992).
In order to make out a claim of ineffective assistance of counsel, "a habeas petitioner must show that his counsel's performance was deficient and that this deficient performance caused him prejudice." Saranchak v. Beard, 616 F.3d 292, 301 (3d Cir. 2010) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). In order to show that counsel's performance was deficient, a petitioner "must show that counsel's representation fell below an objective standard of reasonableness, which means reasonableness under prevailing professional norms." United States v. Smack, 347 F.3d 533, 537 (3d Cir. 2003) (quoting Strickland, 466 U.S. at 688). Prejudice is established only when the petitioner can show that "there is a reasonable probability that, but for counsel's professional errors, the result of the proceeding would have been different." United States v. Thornton, 327 F.3d 268, 271 (3d Cir. 2003) (quoting Strickland, 466 U.S. at 694).
A strong presumption exists that counsel's conduct falls within the wide range of reasonable professional assistance. Strickland,466 U.S. at 689; see also id. ("Judicial scrutiny of counsel's performance must be highly deferential."); Kimmelman v. Morrison, 477 U.S. 365, 382 (1986) ("Strickland's standard, although not insurmountable, is highly demanding. . . . Only those habeas petitioners who can prove under Strickland that they have been denied a fair trial by the gross incompetence of their attorneys will be granted the writ.").
A. Trial Counsel's Failure to Cite Fed. R. Evid. 404(b) Petitioner claims that he was denied the effective assistance of counsel because his trial counsel failed to specifically cite Federal Rule of Evidence 404(b)*fn1 when he objected to the testimony of a government witness. (Pet'r Mem. 5.) This claim arises from an exchange between Assistant United States Peter D. Hardy and Ricardo Rodriguez. Rodriguez is a former police officer who had been discharged from the police force for obstruction of justice. Rodriguez was describing the circumstances of his firing by the Philadelphia Police Department:
Q. Okay. And have you ever been employed as a police officer?
Q. Okay. How long were you a ...