The opinion of the court was delivered by: Tucker, J.
Presently before this Court is Petitioner Frank Berryman's ("Berryman") Habeas Corpus Petition to Vacate/Set Aside/Correct Sentence Pursuant to U.S.C. § 2255 (Doc. 149) , and the Government's Memorandum in Opposition (Doc. 157). Petitioner claims: 1) ineffective assistance of trial counsel, and 2) ineffective assistance of post-trial and appellate counsel. Petitioner also requests an evidentiary hearing.
This Court will deny Petitioner's Habeas Corpus Motion because Petitioner's ineffective assistance of counsel argument does not satisfy the standard of Strickland v. Washington, 466 U.S. 668, 687 (1984). Additionally, this court will deny Petitioner's request for an evidentiary hearing as his claims lack merit. Government of the Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1988), cert. denied, 500 U.S. 954 (1991).
On July 23, 2004, a federal grand jury in the Eastern District of Pennsylvania indicted Berryman on the following three counts: (1) possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1); (2) possession of a stolen firearm in violation of 18 U.S.C. § 922(j); and (3) possession of cocaine base ("crack") in violation of 21 U.S.C. § 844(a).
On December 21, 2004, the grand jury returned a superseding indictment which included the following eight counts: (1) conspiracy to interfere with commerce by robbery in violation of 18 U.S.C. § 1951(a); (2) interference with commerce by robbery in violation of 18 U.S.C. § 1951(a); (3) using and carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii); (4) two counts of possession of a stolen firearm in violation of 18 U.S.C. § 922(j); (5) possession of cocaine base ("crack") in violation of 21 U.S.C. § 844(a); and (6) two counts of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1).
After a six-day trial, a jury verdict was returned on November 7, 2006. The jury found Berryman guilty on all charges, with the exception of the possession of drug charge, which was not pursued by the Government at trial, and was dismissed at sentencing. The Court denied Berryman's motions for acquittal or a new trial.
On March 24, 2008, the Court sentenced Berryman to 294 months of imprisonment, 5 years of supervised release, restitution totaling $15,986.40, and a $700 special assessment fee. Berryman filed a timely appeal. The Third Circuit affirmed both the conviction and sentence. United States v. Berryman, 322 Fed. Appx. 216 (3d Cir. Apr. 17, 2009). On October 23, 2009, the Supreme Court denied certiorari. Berryman v. United States, 130 S. Ct. 262 (U.S. 2009).
Presently before this Court is Berryman's timely Habeas Corpus Motion under 28 U.S.C. § 2255, filed on October 6, 2010.
This Court will deny Petitioner's Habeas Corpus Motion. Petitioner has failed to prove ineffective assistance of counsel under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). The Court will also deny Petitioner's request for an evidentiary hearing, as Petitioner's allegations are meritless and fail to necessitate such a proceeding. United States v. Dawson, 857 F.2d 927, 927-28 (3d Cir. 1988). The Court sets forth below solely the facts that are relevant to Petitioner's claims.
A. Effective Trial Counsel
Mr. Berryman alleges that he received ineffective assistance of trial counsel from Thomas Ivory, Esq., his trial attorney, due to the following: (1) failure to investigate likely participants in the robbery in which Mr. Berryman was allegedly involved; (2) alleged failure to investigate a particular witness; (3) failure to seek suppression of Mr. Berryman's statements; (4) failure to investigate Mr. Berryman's alibi; (5) failure to present favorable witnesses; (6) failure to preserve claim of improperly restricted cross-examination; (7) failure to present Mr. Berryman's testimony; (8) failure to object to improper argument by the prosecutor; and (9) failure to preserve a claim contesting the sufficiency of evidence. However, the Government maintains, and this Court agrees, that Mr. Berryman has failed to satisfy the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), making it appropriate for the Court to dismiss Berryman's motion without a hearing, and deny a certificate of appealability. The Court discusses each allegation in turn below.
In Strickland, the Supreme Court of the United States held that, in order for a defendant to prove ineffective assistance of counsel, he must satisfy a two-part test. Id. at 687. First, the defendant must show that his counsel's performance was deficient such that the attorney was not functioning as is required by the Sixth Amendment right to counsel. Id. Second, the deficient performance must prejudice the defense and as a result, the defendant must have been deprived of a fair trial. Id. Petitioner fails the first ...