The opinion of the court was delivered by: Stengel, J.
Denroy Gayle filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255 asserting his attorney provided ineffective assistance of counsel in four aspects of his representation. Gayle alleges that his attorney was ineffective for (1) failing to properly preserve his right to confrontation by declining to object to the introduction of statements made by the confidential informant, (2) failing to move to suppress the prerecorded buy money that was recovered from his person at the time of his arrest, (3) failing to pursue or negotiate a plea agreement, and (4) failing to object to two of the Court's jury instructions. For the reasons set forth below, I will deny Gayle's petition in its entirety and refrain from issuing a certificate of appealability.
Sergeant Matthew Lohenitz of the Easton Police Department learned that crack cocaine was being sold out of a residence located at 30 South 15th Street in Easton, Pennsylvania. A confidential informant told Sergeant Lohenitz about the crack cocaine distribution in September of 2004. At Sergeant Lohenitz's direction and in his presence, the confidential informant placed a call to arrange to purchase crack cocaine from the residence. (Motion Tr. 37-40, May 31, 2006.)
At 11:40 a.m. on September 8, 2004, Sergeant Lohenitz drove the informant to a location near the house. The sergeant searched the informant to make sure he had no money, no contraband, no controlled substances, and no weapons. He gave the informant prerecorded money to make a purchase of crack cocaine. The informant left the vehicle and walked to the house. Sergeant Lohenitz drove to a parking lot directly across the street from the residence. (Trial Tr. 10-13, August 21, 2006.)
Sergeant Lohenitz observed the residence as the informant knocked on the front door. A black male answered the door and had a brief verbal and physical exchange with the informant on the front porch of the house. The black male went back inside the home and the informant walked to a pre-arranged meeting location where he got into the car with Sergeant Lohenitz and turned over a baggie. The informant told Sergeant Lohenitz that Denroy Gayle had sold him the drugs. Sergeant Lohenitz drove with the informant to another location and performed a field test on the substance in the baggie, which tested positive for crack cocaine. Sergeant Lohenitz obtained a police photo of Gayle. The informant confirmed that the person in the photograph was the person he saw and met with on the porch of the residence. (Motion Tr. 144, 45-48, May 31, 2006.)
On September 9, 2004, Sergeant Lohenitz set up a similar controlled purchase at the same residence. At approximately 7:30 p.m., Sergeant Lohenitz met with and searched the informant. He provided the informant with some prerecorded buy money. The informant approached the home while the Sergeant watched from the nearby CVS parking lot. When the informant arrived at the residence, Gayle came out the front door and walked into the front yard toward an alleyway. He and the informant briefly talked in the alleyway, exchanged something, and then parted ways. The informant gave Sergeant Lohenitz what proved to be more crack cocaine, packaged in a "corner tie" baggie just like the previous day. Sergeant Lohenitz maintained constant visual contact with the informant throughout the entirety of this transaction. (Trial Tr. 33-37, 44, 17, August 22, 2006.)
Sergeant Lohenitz applied for and obtained a search warrant for the residence based on the information he learned from the controlled purchases on the two previous days. On the morning of September 10, 2004, members of the Easton Police Department executed the search warrant at the residence. Gayle and members of his family, including his mother, younger brother and sister, were present when the police entered the house. Gayle was carrying $670 in cash, in small denominations, including the prerecorded buy money that had been used by the informant to purchase the crack cocaine on September 9. No other occupant of the house was found in possession of a significant amount of cash. (Trial Tr. 47-48, 51, 56, 72, 90-94.)
The police found a digital scale in the kitchen. This digital scale was the type commonly used by drug dealers to break down drugs into smaller quantities for street sales. Subsequent testing confirmed that Gayle's fingerprints were on the scale. The police also found plastic baggies in the kitchen, the type that are commonly used to package crack cocaine. Inside the front door was a safe that contained a total of 36.2 grams of crack cocaine and an unloaded gun. The contents of the safe included a baggie with a large piece of crack cocaine and another baggie with 29 smaller "corner tie" bags of crack cocaine. The packaging and appearance of the crack found in the safe was consistent with that of the crack Gayle sold to the informant on September 8 and September 9. The officers also found a loaded gun near the safe. (Trial Tr. 49-52, 61-65, 71-81, 99, 103, 144-45.)
On June 28, 2005, a grand jury in the Eastern District of Pennsylvania returned an indictment charging Gayle with one count of possession with intent to distribute five grams or more of cocaine base ("crack"), in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B); one count of possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c); and one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g).
Gayle was initially represented by Benjamin Cooper, Esq. and Dina Chavar, Esq., both members of the Federal Defender Association. Gayle's attorneys filed a motion for bail, various motions seeking discovery, a motion to suppress or exclude evidence, and a motion for a writ of habeas corpus ad testificandum to secure the present of a witness in support of Gayle's pretrial motions. On December 28, 2005, I granted the Defender Association's motion to withdraw as counsel due to a conflict of interest and appointed Michael J. Engle, Esq. to represent Gayle. Attorney Engle filed additional and supplemental motions and memoranda on discovery, suppression, and evidentiary issues. Attorney Engle also responded to the government's pretrial motions, obtained the court's permission to retain a defense fingerprint expert, and submitted proposed jury instructions. On May 31, 2006, I held a hearing on the motions. Following the hearing, I denied Gayle's motion to suppress physical evidence and statements but granted other defense motions in whole or in part.
A jury-trial began on August 21, 2006. During the trial, Gayle's stepfather testified on his behalf and stated that he had given Gayle a large amount of cash on the morning of September 10 to pay a water bill. A defense investigator testified about his interview of an individual known as Malcolm Freeman. The investigator introduced a written question and answer statement of his interview with Freeman, as well as an earlier letter authored by Freeman. In these statements, Freeman claimed that he found the drugs at issue on the street near Gayle's home, and out of curiosity about what it would be like to be a drug dealer, began selling the drugs in that same area. He stated that on the evening of September 9, he left the drugs in the safe at Gayle's home and went home to sleep, intending to retrieve the drugs in the morning. Freeman claimed that he overslept, and when he finally arrived at Gayle's home on September 10, he learned that the police had been there and arrested Gayle. The defense attempted to call Freeman at trial, however, I appointed counsel for Freeman and Freeman invoked his Fifth Amendment privilege not to testify. (Trial Tr. 2-23, August 24, 2006.)
In rebuttal, the government called Sergeant Lohenitz, who testified about the different physical appearances of both Freeman and Gayle, and that he was sure it was Gayle who met with the informant on September 8 and 9. (Trial Tr. 5.) Following a sixday jury ...