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United States of America v. Rashi Ushery

July 12, 2012

UNITED STATES OF AMERICA
v.
RASHI USHERY



The opinion of the court was delivered by: Judge Conner

MEMORANDUM

Presently before the court is petitioner Rashi Ushery's ("Ushery") motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.*fn1 Ushery claims his conviction should be vacated because he was denied effective assistance of counsel in violation of the Sixth Amendment to the United States Constitution. Specifically, he contends that defense counsel was ineffective in 1) failing to introduce certain evidence; and 2) failing to contest the sufficiency of evidence on appeal.*fn2 (Id.) For the reasons that follow, Ushery's motion (Doc. 88) will be denied.

I. Statement of Facts & Procedural History

On June 24, 2007, at approximately 3:23 a.m., Officer Brant Maley ("Maley") observed Ushery driving a white Cadillac with what the officer suspected were illegally tinted windows. (Doc. 84 at 5). Maley initiated a traffic stop, and observed Ushery and passenger Chanika Brown ("Brown") in the front seats. (Id. at 6).

While obtaining Ushery's license and registration, Maley detected the odor of burnt marijuana emanating from the vehicle. (Id. at 9). Maley searched Ushery's name for past criminal offenses, and discovered that Ushery had a history of firearms violations. (Doc. 18--2 at 15). Based on the odor of marijuana and Ushery's history, Maley called for backup. (Id.; Doc. 84 at 9). He was joined first by Officer Ryan Lindsley ("Lindsley"), who confirmed that Ushery's windows were too dark.*fn3 (Doc. 84 at 10, 62). Lindsley also smelled the odor of marijuana. (Id. at 62). Officer Brooke Anthony arrived soon after Lindsley. (Id. at 9).

Ushery exited the car upon Maley's instruction. (Id. at 12). Maley then asked Ushery if he could search the car, a request that Ushery denied. (Id.) Noticing that Ushery's father, Ronald Ushery, was listed along with his son on the vehicle's insurance card, Maley called Ronald, who consented to a search of the vehicle. (Id.) During the search, Maley found seven bags of chalky white material -- shown later to be crack cocaine -- hidden in the cup holder compartment of the car. (Id. at 14). Maley attempted to place Ushery under arrest, at which point Ushery fled the scene on foot. (Id. at 14-15). While the officers pursued Ushery, Brown also fled the scene, but was found a little more than an hour later. (Id. at 96). Ushery was not found until September 20, 2007. (Id. at 24).

On October 3, 2007, a grand jury returned a one-count indictment for possession with intent to distribute 50 or more grams of crack cocaine in violation of 21 U.S.C. § 841(a)(1). (Doc. 1). On September 17, 2008, a jury found Ushery guilty of that charge (Doc. 64), and the court sentenced him to a prison term of 135 months. (Doc. 72). Ushery timely appealed the judgment to the Court of Appeals for the Third Circuit, which affirmed. See U.S. v. Ushery, 400 Fed. Appx. 674, 674 (3rd Cir. 2010). On November 28, 2011, Ushery filed a timely motion (Doc. 88) to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.*fn4 The motion has been fully briefed and is now ripe for disposition.

II. Discussion

Ushery alleges that he was denied effective assistance of counsel in violation of the Sixth Amendment.*fn5 Specifically, he claims that counsel was ineffective for 1) failing to introduce evidence concerning the names on Ronald Ushery's automobile insurance policies; and 2) failing to contest the sufficiency of the evidence on appeal. (Doc. 88 at 3, 6).

A claim of ineffective assistance of counsel is governed by the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on such a motion, a petitioner must demonstrate that: (1) counsel's representation fell below an objective standard of reasonableness; and (2) the deficient representation was prejudicial. See id. at 687-88. In determining whether counsel has satisfied the objective standard of reasonableness in accordance with the first prong, courts must be highly deferential toward counsel's conduct. See id. at 689 (noting "[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight. . . and to evaluate the conduct from the counsel's perspective at the time"). There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. See United States v. Gray, 878 F.2d 702, 710 (3d Cir. 1989) (finding that "[t]he defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" (citing Strickland, 466 U.S. at 689)). Only a "rare claim" of ineffectiveness of counsel should succeed "under the properly deferential standard to be applied in scrutinizing counsel's performance." Id. at 711(citing Strickland, 466 U.S. at 689-90).

To satisfy the prejudice prong, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the results of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." See Strickland, 466 U.S. at 694. The district court need not carry out its analysis of the two prongs in any particular order, or even address both prongs of the inquiry if the defendant makes an insufficient showing on one. Id. at 697. The court will address each of Ushery's claims in turn.

A. Failure to Introduce Insurance Evidence

Ushery's first claim is that counsel rendered ineffective assistance by failing to introduce certain evidence regarding Ronald Ushery's insurance policies. (Doc. 88 at 3). In particular, Ushery finds fault in counsel's failure to explain to the jury that, while both Ushery's and Ronald's names were on the white Cadillac's insurance policy, this was true of "numerous" cars owned by Ronald. (Id. at 3, 6). Ushery also claims that counsel was further ineffective in deciding not to call Ronald as a witness in order to establish this fact. (Id. at 6). Ushery's main contention is that such evidence would have "negate[d] any prejudicial inference drawn from the testimony of Rashi Ushery's name being on the insurance policy [of the white Cadillac]." (Id. at 6).

The government presented evidence showing that both Ushery's name and that of his father were listed on the insurance policy, in order to establish that Ronald Ushery was able to consent to a search of the white Cadillac that his son had been operating.*fn6 Even if the fact that Ronald Ushery put his son's name on the insurance policies of all his cars, and not just that of the white Cadillac, was elicited during trial, it is unclear how that would serve as a "defense," as Ushery suggests it could have. (Id. at 6). Ushery appears to be claiming that the evidence would have further distanced himself from the car and weakened his connection to it. (See Doc. 94 at 7). Malay had already testified, however, that Ronald Ushery, and not the defendant, ...


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