The opinion of the court was delivered by: Rufe, J.
MEMORANDUM OPINION AND ORDER
On February 9, 2007, after a four-day jury trial, Petitioner Norvel Vas was convicted of violating 18 U.S.C. § 922(g)(1), which prohibits felons from possessing firearms. On May 11, 2007, the Court sentenced Vas to 120 months' imprisonment, the statutory maximum, followed by three years of supervised release. The case is now before the Court on Vas's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. Although most grounds raised in the petition are without merit, for the reasons set forth herein Vas is entitled to a new sentencing hearing.
On October 27, 2002, Philadelphia Police Officers Eric Riddick, Richard Riddick, and Mark Moore were on patrol in the vicinity of the 5500 block of Beaumont Avenue in Philadelphia, where several robberies and gunshots had been reported over the preceding several days. The Officers were dressed in plain clothes and driving an unmarked police car. As the officers traveled westbound on Beaumont Avenue, they observed three black males standing in front of a home. As the police car approached the three men, one of them, later identified as Vas, looked at Officer Eric Riddick over his sunglasses, ducked down behind the parked car, then jumped up from his crouched position, and began running eastbound on Beaumont Avenue toward 55th Street.
Officer Eric Riddick left the vehicle, spoke briefly to the other two men, then walked around the corner to the entrance to the driveway behind Beaumont Avenue. There, he saw Vas place a large, dark-colored handgun in the left front wheel well of a silver Mitsubishi parked in the driveway. Vas did not see Officer Riddick, who had backed out of the driveway after he observed Vas place a gun on the wheel well, and began walking toward him. When Vas reached the end of the driveway at 55th Street, Officer Riddick identified himself as a police officer and asked Vas to approach. Vas stated to the officer that he had done nothing, and again ran away.
Vas ran north on 55th Street, then turned westbound onto Florence Avenue. Vas ran onto the porch of a home at 5502 Florence Avenue, and banged on the door for the occupant to give him entry, shouting: "Aunt Lucy, Aunt Lucy, it's me, let me in, let me in." Officers Richard Riddick and Moore then joined Officer Eric Riddick in front of the 5502 Florence Avenue property. The officers apprehended Vas on the porch and detained him. Once Vas was detained, Officer Eric Riddick returned to the driveway where he had seen Vas place a gun in the wheel well of the silver Mitsubishi. There, he recovered a loaded nine-millimeter handgun and a loaded forty-caliber Glock pistol with an "obliterated" serial number, as well as a baseball hat, sunglasses and white tee shirt Vas had been wearing when first spotted. Vas was then arrested.
The procedural history in this matter includes two separate trials and a substantial number of filings. Vas's first trial began on October 25, 2005. Moments before the jury selection process was to begin, Vas informed the Court through counsel that he "wish[ed] to proceed pro se and have [Patrick Egan, Esq.] as backup counsel." *fn2 The Court denied Vas's request to proceed pro se. *fn3 Moments later, Vas requested again that he be allowed to represent himself. *fn4 The Court heard argument on Vas's open-court, impromptu motion to proceed pro se , but denied the motion. *fn5 Vas proceeded to trial represented by Mr. Egan and, after a two-day trial, was convicted for violating 18 U.S.C. § 922(g)(1).
On November 7, 2005, Vas timely filed several pro se post-conviction motions and Mr. Egan filed a Motion for New Trial. Mr. Egan then withdrew as counsel, and Edward Meehan, Esq. was appointed. Vas, through Mr. Meehan, filed a second Motion for New Trial. *fn6 In a Memorandum Opinion and Order filed on May 31, 2006, the Court granted Vas's Motion for a New Trial, holding that the Court erred by not conducting a full inquiry into Vas's request to proceed pro se, as required by Faretta v. California. *fn7
Vas's second trial began on February 5, 2007. Before jury selection, Vas made a request to represent himself at trial. *fn8 The Court conducted an extensive colloquy with Vas, and concluded that Vas was competent to represent himself at trial. *fn9 The Court appointed Mr. Meehan as back-up counsel. Trial proceeded, and the jury rendered its guilty verdict on February 8, 2007. *fn10
Vas did not file any post-trial motions, but filed a pro se Notice of Appeal. *fn11 On August 31, 2007, David Rudenstein was appointed to represent Vas on appeal. Mr. Rudenstein challenged the sufficiency of the evidence at trial, and the Court's denial of Vas's motion to suppress physical evidence. The Court of Appeals affirmed the judgment of conviction and sentence. Vas timely filed pro se the present § 2255 petition. After his state court murder conviction, which was included in the Court's review of Vas's criminal history during sentencing, was vacated, Vas filed a pro se Motion for Adjustment or Reduction of Sentence in light of that state court ruling.
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." *fn12
"Section 2255 does not provide habeas petitioners with a
panacea for all alleged trial or sentencing errors." *fn13
"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." *fn14 "[T]he 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. . . ." *fn15 If the sentencing court finds "a denial or infringement of the constitutional rights of the prisoner," it may discharge or resentence a federal prisoner. *fn16
Unless some exception applies, a prisoner must raise claims on direct appeal before raising them on a petition for habeas corpus. One exception is for good cause: a prisoner may demonstrate that some external impediment, such as ineffective assistance of counsel, prevented him from raising a claim. *fn17 Another exception exists where a fundamental miscarriage of justice would result from a failure to hear the claim. *fn18
Because issues of ineffective assistance of counsel are raised throughout Vas's petition, the Court sets forth the standard of review for such claims here. Ineffective assistance of counsel claims are evaluated pursuant to the two-pronged test established by the Supreme Court in Strickland v. Washington. *fn19 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. *fn20 Counsel's performance is only deficient when it is "outside the wide range of professionally competent assistance." *fn21
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. *fn22
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. *fn23 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. *fn24
In his long and repetitive petition spanning in excess of 150 pages, Vas raises a plethora of arguments in support of his petition. The Court has divided these into pretrial, trial, and sentencing issues.
Vas notes that the Government failed to produce certain discovery he requested before trial, including a recording, transcript and/or summary of a 911 call made by Jean Hasting on the night Vas was arrested in front of her home, and the internal affairs files of the three arresting officers. Vas maintains that the 911 records would have provided valuable information about the timing of events, and he could have used this information on direct and cross-examination to challenged the veracity of the police officers' accounts of events. Vas wished to examine the arresting officers' internal ...