The opinion of the court was delivered by: Chief Judge Kane
Currently pending before the Court is Petitioner's motion to vacate his sentence filed pursuant to 28 U.S.C. § 2255. (Doc. No. 521.) The motion has been fully briefed and is now ripe for disposition. For the reasons stated more fully herein, the Court will deny Petitioner's motion.
On February 1, 2010, Petitioner pleaded guilty to two counts of possession with the intent to distribute fifty or more grams of heroin and cocaine base. (Doc. No. 364.) The Court sentenced Petitioner to serve a term of imprisonment to last 292 months and dismissed all remaining charges against Petitioner. (Doc. No. 465.) The United States Court of Appeals for the Third Circuit affirmed both the conviction and sentence imposed by this Court on May 11, 2011. (Doc. No. 493.) Petitioner filed the instant motion to vacate his sentence pursuant to 28 U.S.C. § 2255 on November 17, 2011. (Doc. No. 521.)
Each of the arguments raised by Petitioner in his motion to vacate are based on claims of ineffective assistance of counsel. In order to succeed, a collateral attack of a sentence based upon a claim of ineffective assistance of counsel must satisfy the two-part test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). See George v. Sively, 254 F.3d 438, 443 (3d Cir. 2001). The first Strickland prong requires Petitioner to establish that his attorney's performance was deficient. Jermyn v. Horn, 266 F.3d 257, 282 (3d Cir. 2001). This prong requires Petitioner to show that counsel made errors "so serious" that counsel was not functioning as guaranteed under the Sixth Amendment. Id. To meet this burden, Petitioner must demonstrate that counsel's representation fell below an objective standard of reasonableness under the prevailing professional norms. Id. (citing Strickland, 466 U.S. at 688). However, "[t]here is a 'strong presumption' that counsel's performance was reasonable." Id. Under the second Strickland prong, Petitioner "must demonstrate that he was prejudiced by counsel's errors." Id. This prong requires Petitioner to show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. (quoting Strickland, 466 U.S. at 694.) "Reasonable probability" is defined as "a probability sufficient to undermine confidence in the outcome." Id. (quoting Strickland, 466 U.S. at 694).
In his motion to vacate, Petitioner raises eight claims of ineffective assistance of counsel, namely: (1) failure to file a motion to sever; (2) failure to challenge the second superceding indictment; (3) failure to challenge the quantity of drugs alleged in the indictment; (4) failure to challenge the admissibility of co-conspirator hearsay evidence used in the grand jury investigation; (5) failure to challenge the legality of the February 5, 2008 stop leading to Petitioner's arrest; (6) failure to challenge the legality of the February 27, 2009 stop and search leading to Petitioner's indictment; (7) failure to challenge the prosecution as a violation of due process and double jeopardy; and (8) failure to challenge Petitioner's designation as a career offender. The Court will address Petitioner's claims seriatim.
A. Failure to File a Motion to Sever
Rule 8(b) of the Federal Rules of Criminal Procedure permits defendants to be charged together "if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses." Fed. R. Crim. P. 8(b). In the present matter, the appropriateness of joinder pursuant to Rule 8(b) is not in dispute. Rule 14 of the Rules of Criminal Procedure, in turn, permits a district court to sever the defendants' trials in those cases where joinder would prejudice a defendant. Fed. R. Crim. P. 14(a). Recognizing the "vital role" joint trials play in the criminal justice system, however, the Supreme Court has stated a "preference" for joint trials of defendants who are indicted together. See Zafiro v. United States, 506 U.S. 534, 537 (1993) (citing Richardson v. Marsh, 481 U.S. 200, 209 (1987)). As explained by the United States Court of Appeals for the Seventh Circuit:
Joint trials reduce the expenditure of judicial and prosecutorial time; they reduce the claims the criminal justice system makes on witnesses, who need not return to court for additional trials; they reduce the chance that each defendant will try to create a reasonable doubt by blaming an absent colleague, even though one or the other (or both) undoubtedly committed a crime. The joint trial gives the jury the best perspective on all the evidence and therefore increases the likelihood of a correct outcome.
United States v. Buljubasic, 808 F.2d 1260, 1263 (7th Cir. 1987); see also Buchanan v. Kentucky, 483 U.S. 402, 418 (1987) (noting that in joint trials juries are better able to arrive at a reliable conclusion regarding guilt or innocence and fairly assign blame during sentencing).
Given the policy favoring joint trials, a motion to sever trials is not to be freely granted. See United States v. Quintero, 38 F.3d 1317, 1343 (3d Cir. 1994) (recognizing that a defendant has "a heavy burden in gaining severance"). "[D]efendants are not entitled to severance merely because they may have a better chance of acquittal in separate trials." Zafiro, 506 U.S. at 540. Rather, where a matter has been properly joined, a court may only grant a motion to sever where "there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence." Id. at 539.
Petitioner argues that severance was warranted in this case and that Attorney Abom provided ineffective representation by failing to move for severance on Petitioner's behalf. (Doc. No. 523 at 12.) Specifically, Petitioner argues that Counts I, II, and III of the second superseding indictment, which arose out of an arrest in 2008, should have been severed from Counts V, VI, and VII of the second superseding indictment, which arose out of incidents in 2009 that were presented to the grand jury. (Id. at 12-13.) These counts were all part of a common drug trafficking scheme in which Petitioner, along with varying subordinates, was the primary actor. Petitioner argues that the joinder of these charges would prevent a jury from making a reliable determination of Petitioner's guilt or innocence, because evidence used to substantiate the former group of charges could be improperly used by the jury to convict Petitioner of the latter group of charges. (Id.)
The Third Circuit has noted that "under Federal Rule of Evidence 404(b), evidence of other crimes, wrongs, or acts may be used to show motive, preparation, or plan." United States v. Gorecki, 813 F.2d 40, 43 (3d Cir. 1987). Because of this, even when charges are severed from one another, evidence of one severed charge may still "be relevant evidence at a separate trial" for the other severed charge. Id. In this case, severance of one group of charges from the other would not have eliminated a jury's exposure to the evidence used to substantiate each set of charges. Under Rule 404(b), evidence of the first set of charges could have been introduced at a trial for the second set of charges to show motive or plan. Fed. R. Evid. 404(b). Thus, because the evidence of each set of charges could have been introduced before a jury regardless of whether the ...