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United States of America v. andre Coleman

April 11, 2012


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


Presently before the Court is Petitioner Andre Coleman's pro se Motion To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody under 28 U.S.C. § 2255. (Pet'r's Mem., ECF No. 141; Mot. to Permit, ECF No. 148.)*fn1 For the following reasons, Petitioner's Motion will be denied.


On November 10, 2006, a jury found Petitioner guilty of four counts related to a series of bank robberies in the Eastern District of Pennsylvania. The jury found Petitioner guilty of (i) conspiracy to commit bank robbery, in violation of 18 U.S.C. § 371 (Count One); (ii) attempted bank robbery or aiding and abetting attempted bank robbery, in violation of 18 U.S.C. §§ 2113(a) and 2, related to the attempted November 22, 2004 robbery of a PNC Bank branch at 1770 Market Street, Norristown, Pennsylvania (Count Four); (iii) bank robbery or aiding and abetting bank robbery, in violation of 18 U.S.C. §§ 2113(a) and 2, related to the November 22, 2004 robbery of a Univest Bank branch, 40 East Street Road, Feasterville, Pennsylvania (Count Five); and (iv) carrying a firearm during or in relation to a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1) and 2, during the Univest Bank robbery (Count Six).*fn2
Petitioner moved for a judgment of acquittal and a new trial pursuant to Federal Rules of Criminal Procedure 29 and 33. (ECF No. 121.) Petitioner's motions were denied. (ECF No. 124.) On June 7, 2007, Petitioner was sentenced to 360 months in prison, to be followed by five years of supervised release. (Judgment, ECF No. 130.)*fn3 Petitioner appealed to the Third Circuit. (ECF No. 132). On December 11, 2008, the Third Circuit affirmed the judgment of sentence. United States v. Coleman, 300 F. App'x 164 (3d Cir. 2008). Petitioner now seeks collateral relief pursuant to 28 U.S.C. § 2255.

Petitioner raises eleven claims in his original and supplemental petitions. Those claims are as follows:

1. His trial counsel was ineffective for failing to seek dismissal of Petitioner's indictment under the Speedy Trial Act, 18 U.S.C. § 3161. (Pet'r's Mem. 1.)

2. The Court erred in failing to explain its reasoning for continuances granted pursuant to the requirements of § 3161(h)(7)(A).*fn4 (Id. at 3.)

3. Trial counsel was ineffective for failing to object to written communications with the jury, which the Court issued during deliberations. (Id. at 6.)

4. Trial counsel was ineffective for failing to move for dismissal of the indictment on the grounds that a witness during grand jury proceedings committed perjury, and the Government committed misconduct in presenting said witness to the grand jury. (Id. at 8.)

5. The Government committed misconduct by striking jurors based on race, in violation of the principle articulated in Batson v. Kentucky, 476 U.S. 79 (1986), and that Petitioner's counsel was ineffective for failing to challenge such strikes. (Id. at 14.)

6. Counsel was ineffective for failing to investigate the level of tint on the windows of his vehicle prior to the Court's resolution of Petitioner's motion to suppress the contents of that vehicle. (Id. at 17.)

7. Counsel was ineffective for failing to demand that the Court read jury instructions that Petitioner himself had composed. (Id. at 19.)

8. Counsel was ineffective for failing to attack a search warrant executed by the Government, and the underlying affidavit which justified that search warrant. (Id. at 20.)

9. Counsel was ineffective for failing to appeal Petitioner's conviction for firearm possession pursuant to 18 U.S.C. § 924(c). (Id. at 23.)

10. Counsel was ineffective for failing to respond to the Government's brief on appeal. (Id. at 27.)

11. Petitioner's bank robbery conviction was invalid because the Government did not meet a requisite element of the federal bank robbery statute, 18 U.S.C. § 2113. (Mot. to Permit 5.)


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). We review a prisoner's pro se petition liberally and with a measure of tolerance. United States ex rel. Montgomery v. Brierley, 414 F.2d 552, 555 (3d Cir. 1999).

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). That is the case here.


In order to succeed on 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. Failure to Seek Dismissal Under Speedy Trial Act

Petitioner first claims that his trial counsel was ineffective for failing to seek dismissal of the indictment. (Pet'r's Mem. 1.) Petitioner asserts that his constitutional and statutory rights to a speedy trial were violated, and that these violations justified dismissal of the indictment.

The Sixth Amendment to the United States Constitution guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." U.S. Const. amend.

VI. In determining whether a defendant's speedy trial rights have been violated, a court considers four factors. Initially, the Court must examine the length of the delay between arrest or indictment--whichever is earlier--and the beginning of the trial. Barker v. Wingo, 407 U.S. 514, 530 (1972); see also Hakeem v. Beyer, 990 F.2d 750, 760 (3d Cir. 1993). A delay that is too long triggers an inquiry into the remaining three factors. Barker, 407 U.S. at 530. Absent a problematic delay, a court is not obligated to inquire further. Id. Where the delay is found to be presumptively prejudicial, a court must evaluate the claim in light of three additional factors:

(1) the reasons for the delay; (2) whether and how the defendant asserted his right to a speedy trial; and (3) whether the delay prejudiced an interest which the right was designed to protect. Id.*fn5

The delay in bringing Petitioner to trial, which exceeded fourteen months, requires further inquiry. See, e.g., Hakeem, 990 F.2d at 760 ("a fourteen and one-half month detention before trial merits further inquiry"); Wells v. Petsock, 941 F.2d 253, 258 (3d Cir. 1991) (seven-month pretrial incarceration triggers plenary inquiry into remaining Barker factors). Such delay does not necessarily indicate that prejudice exists; however, it requires that we evaluate Petitioner's claim in light of the Barker factors. Doggett v. United States, 505 U.S. 647, 652 n.1 (1992).*fn6

Delays in the Petitioner's trial were largely the product of "ends of justice" continuances granted by the Court at Petitioner's request. The Speedy Trial Act provides for a seventy-day window between indictment and trial. 18 U.S.C. § 3161(c)(1). When a trial does not begin within that time, the indictment "shall be dismissed on motion of the defendant." 18 U.S.C. § 3162(a)(2). However, the statute permits a court to grant continuances if doing so would serve the "ends of justice." 18 U.S.C. § 3161(h)(7). The periods of time covered by such continuances are excluded from the calculation of the seventy-day window. 18 U.S.C. § 3161(h)(7)(A).

A court may consider a number of factors in determining whether an "ends of justice" continuance is appropriate. The statute itself notes that one such factor is "whether the failure to grant such a continuance . . . would deny counsel for the defendant or the attorney for the Government the reasonable time necessary for effective preparation, taking into account the exercise of due diligence." 18 U.S.C. ยง 3161(h)(7)(B)(iv). The same sub-paragraph notes that a ...

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