The opinion of the court was delivered by: DuBOIS, J.
Domingo Mercado is serving a five-year sentence in federal custody for his conviction of possession of heroin with intent to distribute. Presently before the Court is Mercado's Amended Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody.*fn1 The motion includes three claims of ineffective assistance of counsel. The Court conducted an evidentiary hearing on those claims on April 10, 2012. For the reasons that follow, the motion is granted in part and denied in part.
The background of this case is set forth in detail in United States v. Mercado, 610 F.3d 841 (3d Cir. 2010), and will be repeated in this Memorandum only to the extent necessary to explain the Court's rulings.
A federal grand jury returned an Indictment on September 10, 2008, charging Mercado and his co-defendants, Hiram Coira-Soto and Dinoel Rodriguez-Nunez, with possession of heroin with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B); possession of heroin within 1,000 feet of a school with intent to distribute, in violation of 21 U.S.C. § 860(a); and aiding and abetting both offenses, in violation of 18 U.S.C. § 2. Rodriguez-Nunez pled guilty to both counts charged, Coira-Soto absconded, and Mercado proceeded to trial. Mercado was found guilty and sentenced to five years' imprisonment, the mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(B).
A. Evidence Presented at Trial
The government called six witnesses at trial: Rodriguez-Nunez, four DEA agents, and a Philadelphia police officer who assisted with the arrest. The primary evidence against Mercado was Rodriguez-Nunez's testimony that Mercado was present at three meetings that took place on August 14, 2008, the day of their arrest. At the meetings, Coira-Soto and Rodriguez-Nunez discussed and then completed a heroin transaction. See Mercado, 610 F.3d at 843. Rodriguez-Nunez testified at trial that Mercado did not speak or otherwise participate in the meetings. Id. at 844. Drug Enforcement Administration ("DEA") agents conducting surveillance witnessed the third meeting but did not see Mercado.*fn2 Id. at 843.
After the third meeting, DEA agents arrested Rodriguez-Nunez and recovered a package of heroin from the right rear pocket of his pants. Id. at 844. Rodriguez-Nunez immediately agreed to cooperate with the agents and, at their direction, placed a recorded call to the seller of the drugs. (2/18/09 Trial Tr. 34, 37.) Rodriguez-Nunez told the seller that he was ready to pay him, and shortly thereafter, Mercado and Coira-Soto returned to the scene in a maroon GMC Envoy. (Id. at 37-38.) Coira-Soto was in the driver's seat, and Mercado was in the passenger seat. (Id. at 38.) DEA agents arrested both Coira-Soto and Mercado at that time. (Id.)
The jury first heard about Mercado's presence at the August 14, 2008, meetings through the testimony of the government's first witness, DEA Special Agent David Pedrini. Agent Pedrini participated in the investigation and surveillance that preceded Mercado's arrest. (See 2/18/09 Trial Tr. 16-38.) He did not see Mercado until he arrested him. (Id. at 44.) However, he testified that, immediately after Rodriguez-Nunez was arrested and agreed to cooperate, Rodriguez-Nunez told him about Mercado's involvement.
The first such testimony occurred on direct examination:
Q: Okay. And what does Mr. Rodriguez do once you get him back inside the house?
A: He agreed to cooperate with us immediately.
Q: Okay. And how does he cooperate?
A: He told us that what was in his back pocket was heroin, and it was 230 grams of heroin, and he told us that he had received it from the people who were in the black Ford Taurus.
A: The people in the black Ford Taurus had instructed him, that once he had done the deal and he got the money for the drug transaction, Mr. Rodriguez-Nunez was instructed to contact them by telephone so they could come back and get the money. (Id. at 34 (emphasis added).) Mercado's trial counsel did not object to this testimony.
Shortly thereafter, Agent Pedrini testified regarding additional statements by which Rodriguez-Nunez implicated Mercado, again without objection from Mercado's trial counsel:
Q: Okay. Now, back at D.E.A. Headquarters, did Mr. Rodriguez continue to cooperate with you?
Q: And was he asked about, any questions about who it was that had delivered the drugs to him in front of his house from the black car? A: Yes.
A: He told us that the two other people we arrested with him were the individuals who were in the black Taurus that delivered the heroin. Q: Did he identify either of those individuals?
A: He identified both of them in the D.E.A. office building.
Q: And who did he identify as being the driver of the vehicle?
A: Hiram [Coira-]Soto was the driver and Mr. Mercado was the passenger. (Id. at 38-39 (emphasis added).)
On cross-examination, defense counsel questioned Agent Pedrini regarding the statements Rodriguez-Nunez made after his arrest. The testimony elicited on cross-examination established that Rodriguez-Nunez had not told Agent Pedrini who handed him the heroin, (id. at
39), and that Rodriguez-Nunez told Agent Pedrini he had never spoken with Mercado, (id. at 41). However, this line of questioning led the government to inquire on redirect ...