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United States of America v. Kareem H. Millhouse

August 16, 2012

UNITED STATES OF AMERICA
v.
KAREEM H. MILLHOUSE



The opinion of the court was delivered by: Rufe, J.

MEMORANDUM AND ORDER

After a non-jury trial at which he represented himself, Petitioner Kareem H. Millhouse was convicted of attempted aggravated sexual abuse, attempted sexual abuse, attempted escape, assault, and possession of a dangerous weapon in a federal facility. Petitioner now seeks relief pursuant to 28 U.S.C. § 2255.

I. FACTUAL AND PROCEDURAL HISTORY

While facing charges in a criminal case pending in this District before the Honorable Juan R. Sanchez, *fn1 Petitioner met with his court-appointed attorney in a conference room in the William J. Green Federal Building in Philadelphia. Petitioner threatened the attorney with a razor blade he had smuggled out of the Federal Detention Center ("FDC"), assaulted the attorney, and tried to break a window in an attempt to escape. Petitioner was charged with the crimes of which he was eventually convicted and the case was assigned to this Court.

Until shortly before trial, Petitioner was represented by Criminal Justice Act Panel counsel Rocco C. Cipparone, Esquire, an experienced and competent attorney, who also represented Petitioner in the case before Judge Sanchez. Petitioner, through counsel, requested a psychological evaluation, *fn2 which was conducted by the Bureau of Prisons at Metropolitan Correctional Center in New York City. The Court held a competency hearing on September 17, 2007, and found Petitioner competent to stand trial. *fn3 After this ruling, Petitioner sought to represent himself at trial, and following a lengthy colloquy, the Court granted Petitioner's Motion to proceed pro se , and appointed Mr. Cipparone to act as stand-by counsel for the trial. The next day, during voir dire , Petitioner decided to proceed to trial without a jury. *fn4 After a full colloquy, the Court granted Petitioner's motion, and dismissed the jury panel. *fn5

The case was tried on September 18 and 19, 2007, and after an opportunity for the prosecution and defense to submit briefing, the Court announced findings of fact and conclusions of law and found Petitioner guilty of all charges at a hearing on November 14, 2007. After his conviction, counsel was again appointed to represent Petitioner in connection with his sentencing, and a new attorney was appointed to represent Petitioner on appeal. On direct appeal, Petitioner, through counsel, argued that the evidence was insufficient to convict him because Petitioner's intention was not to assault his attorney and escape, but to commit "suicide by cop," in other words, acting in the hope that the officers responding to the conference room would be forced to shoot Petitioner. This argument, which was not raised before this Court (although Petitioner at times implied he may have been trying to commit suicide by jumping from the window), was rejected by the Court of Appeals, which affirmed the judgment of conviction and sentence.

II. STANDARD OF REVIEW

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a prisoner serving a sentence in federal custody may petition the court which imposed the sentence to vacate, set aside, or correct the sentence by asserting that "the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." *fn6 "Habeas corpus relief is generally available only to protect against a fundamental defect which inherently results in a complete miscarriage of justice or an omission inconsistent with the rudimentary demands of fair procedure." *fn7 "The question of whether to order a hearing is committed to the sound discretion of the district court. In exercising that discretion the court must accept the truth of the movant's factual allegations unless they are clearly frivolous on the basis of the existing record. Further, the court must order an evidentiary hearing to determine the facts unless the motion and files and records of the case show conclusively that the movant is not entitled to relief. . . ." *fn8

III. DISCUSSION

In his petition and later submissions, Petitioner alleges the following grounds for relief:

1) ineffective assistance of counsel; 2) judicial misconduct; 3) denial of the right to confront an accuser; 4) trial being held in this venue when the charged crime occurred in the Federal Building next to the Courthouse; 5) inadequate psychological evaluation; 6) denial of the right to present all evidence during the competency hearing; 7) denial of speedy trial; 8) denial of counsel; 9) insufficient evidence; 10) denial of polygraph test; and 11) lack of jurisdiction to prosecute.

A. Ineffective Assistance of Counsel

Ineffective assistance of counsel claims are evaluated pursuant to the two-pronged test established by the Supreme Court in Strickland v. Washington. *fn9 Under Strickland, counsel is presumed to have acted reasonably and to have been effective unless a petitioner can demonstrate (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced petitioner. *fn10 Counsel's performance is only deficient when it is "outside the wide range of professionally competent assistance." *fn11 Prejudice occurs upon a showing that there is a reasonable possibility that but for counsel's deficient performance the outcome of the underlying proceeding would have been different. *fn12 For example, "[a]n attorney cannot be ineffective for failing to raise a claim that lacks merit," because in such cases, the attorney's performance is not deficient, and would not have affected the outcome of the proceeding. *fn13 Similarly, an ineffective assistance of counsel claim is not established upon the showing that an error had an effect on the proceedings; rather, a defendant must show that there is a reasonable probability that the outcome would have been different in the absence of such errors. *fn14

Petitioner argues that he decided to represent himself because Mr. Cipparone was ineffective for not communicating with him. The record, however, belies this contention. At a hearing on May 10, 2007, after a request by Petitioner to disqualify his counsel, Petitioner was given the opportunity to state reasons for his dissatisfaction with Mr. Cipparone's representation. Petitioner did not believe counsel was communicating with him, and expressed his unhappiness with counsel's decision to seek a continuance of the trial. During the hearing, counsel for the ...


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