The opinion of the court was delivered by: Surrick, J.
Presently before the Court is Petitioner Evgueni Pojilenko's Motion To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody under 28 U.S.C. § 2255. (ECF No. 475, 02-254-02.) For the following reasons, Petitioner's Motion will be denied.
On April 24, 2002, a grand jury returned a forty-eight count indictment charging Petitioner Evgueni Pojilenko and nine other defendants with a series of crimes, including Racketeer Influenced and Corrupt Organizations Act (RICO) conspiracy, in violation of 18 U.S.C. § 1962(d), substantive RICO offenses, in violation of 18 U.S.C. § 1962(c) and other related offenses. The indictment alleged that over a period of years in the late 1990s and early 2000s, Petitioner played a continuing role in an enterprise, which was comprised predominantly of immigrants from the former Soviet Union and was known by its northeast Philadelphia community as the "KGB." Petitioner was known as the "muscle" of the enterprise and participated in KGB-related crimes under the influence of the KGB leader, Leonid Chernyak.
On June 26, 2003, after a trial by jury, Petitioner was found guilty of RICO conspiracy (Count 1), substantive RICO offenses (Count 2), extortion, in violation of 18 U.S.C. § 894 (Count 4), possession with intent to distribute ecstasy, in violation of 21 U.S.C. § 841 (Count 9), and conspiracy to distribute methamphetamine, in violation of 21 U.S.C. § 846 (Count 12).
With respect to the substantive RICO count, the jury found that the Government proved all six of the racketeering acts charged. The racketeering acts comprising the substantive RICO count included extortion, in violation of 18 U.S.C. § 894 and 18 Pa. Cons. Stat. Ann. § 3923, robbery, in violation of 18 Pa. Cons. Stat. Ann. § 3701, conspiracy to rob and robbery, in violation of 18 Pa. Cons. Stat. Ann. §§ 903 and 3701, possession with intent to deliver ecstasy, in violation of 21 U.S.C. § 841, and conspiracy to distribute methamphetamine, in violation of 21 U.S.C. § 846. The evidence of Petitioner's guilt on all counts was overwhelming.
At the sentencing hearing held on November 6, 2006, Petitioner was sentenced to 168 months in prison followed by four years of supervised release.*fn1 On November 13, 2003, Petitioner appealed both his conviction and sentence, arguing that 1) admission of certain testimony from law enforcement officers identifying themselves as members of organized crime squads was prejudicial and in error, 2) his sentence must be vacated in light of United States v. Booker, 543 U.S. 220 (2005), a case decided after Petitioner had been sentenced, 3) application of the two-level enhancement for use of a minor pursuant to U.S.S.G. § 3B1.4 was improper, and 4) application of the "post-Feeney Amendment guidelines" in sentencing violated separation of powers.
On July 27, 2006, the Third Circuit affirmed Petitioner's conviction
and remanded the case for resentencing in light of Booker.*fn2
United States v. Pojilenko, 416 F.3d 243, 247 (3d Cir. 2006).
Petitioner was resentenced on January 18, 2006.*fn3
Considering the factors set forth in 18 U.S.C. § 3553(e), we reimposed
the sentence of 168 months imprisonment and four years of supervised
release. On January 25, 2006, Petitioner appealed this resentencing.
On April 17, 2007, the Third Circuit affirmed the judgment of
sentence, concluding that the sentence was reasonable. United States
v. Pojilenko, 222 F. App'x 232, 234 (3d Cir. 2007). None of the
grounds stated in the instant Motion were raised by Petitioner in
either of his appeals. On January 7, 2008, the Supreme Court denied
Petitioner's petition for writ of certiorari. Pojilenko
v. United States, 552 U.S. 1097 (2008).
On January 7, 2009, Petitioner filed the instant Motion pursuant to 28 U.S.C. § 2255.
Petitioner raises four grounds on which he seeks relief, all of which are based on the alleged ineffective assistance of his trial counsel and appellate counsel. Specifically, Petitioner contends that his appellate counsel was ineffective for failing to appeal the convictions for RICO conspiracy, RICO substantive, possession with intent to distribute ecstacy, and conspiracy to distribute methamphetamine, based upon the sufficiency of the evidence. In addition, Petitioner contends that his trial counsel was ineffective for failing to challenge 1) admission of evidence discovered during a legal traffic stop, 2) the jury instructions and 3) the judicial district where Petitioner was processed immediately after arrest.
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. ...