The opinion of the court was delivered by: Conti, District Judge
Pending before the court is a motion to vacate, set aside, or correct sentence by a person in federal custody pursuant to 28 U.S.C. § 2255 (ECF No. 958) and the supplement thereto (ECF No. 973) (collectively, "petitioner's motion") filed by pro se petitioner Larry Lewis Ferguson ("Ferguson" or "petitioner"). The challenges raised by petitioner relate to ineffective assistance of counsel. Upon reviewing petitioner's motion and the government's response to petitioner's motion (ECF No. 977), the court will deny the motion because petitioner cannot show sufficient prejudice or that his counsel's representation was deficient.
There was a joint investigation of a large scale drug conspiracy between federal and local officers. The conspiracy involved the illegal drug activities of Michael Good ("Good") on the North Side of the City of Pittsburgh, Pennsylvania. United States v. Ferguson, 394 F. App'x 873 (3d Cir. 2010). On January 23, 2003, Ferguson, who was engaged in drug transactions with Good, was observed by the police with Good and the police saw Ferguson place drugs in a Jeep. Ferguson drove the Jeep and was followed by the police. He was stopped by the Pittsburgh Police for a traffic infraction on the corner of Sixth and Penn Avenues. (ECF No. 959-1 at 7).
After discovering that Ferguson did not have a valid driver's license, the police officers conducted a search to determine if he possessed any weapons or drugs. Id. The police officers requested that they be able to search Ferguson's vehicle and Ferguson consented. Id. During the search of the vehicle, the police officers found heroin stamp bags labeled "soprano" and powder cocaine in the center console. Id. Monica Stringer ("Stringer") was a passenger in Ferguson's vehicle at the time of the traffic stop, but she was released at the scene. Id. Ferguson was arrested and charged with possessing the drugs found in the middle console of his car. Id. In August 2004, the government filed a superseding indictment charging Ferguson with conspiracy to possess with intent to distribute 100 grams or more of heroin (count one), as well as six substantive counts of possession with intent to distribute heroin based on phone calls recorded through a wiretap investigation (counts four, seven, nine, ten, twelve and twenty). Id. at 8. The government prior to trial filed an information with respect to Ferguson under 21 U.S.C. § 851. (ECF No. 455).
Count twenty was based on the January 23, 2003 arrest of Ferguson. Id. Ferguson pled not guilty to all counts, and the trial began on May 9, 2005, but ended in a mistrial on June 29, 2005. A retrial began on January 9, 2006. Id. During that retrial, Ferguson's trial attorney, Robert Stewart ("Stewart"), argued that a new government witness Arlando Crowe ("Crowe") should not be permitted to testify because Ferguson had not received any "Jencks Material" or reports from the government about that witness.*fn1 Id. Crowe testified despite Ferguson's opposition. (ECF No. 977 at 5). Ferguson moved for a judgment of acquittal, which was denied. Id. The jury found Ferguson guilty at six counts (counts one, four, seven, ten, twelve and twenty) and not guilty at count nine. Id. On June 6, 2006, Stewart was replaced as Ferguson's counsel by John Halley ("Halley"), who filed a motion for new trial on September 1, 2006, on the basis of "the prejudicial admitting of jailhouse witness Arlando Crowe's testimony during the retrial." (ECF No. 959-1 at 9). The court denied that motion on October 13, 2006, and sentenced Ferguson to 360 months' imprisonment. Id. Defendant challenged his conviction on count one and count twenty on appeal. (ECF No. 977 at 8). Despite these challenges, the Court of Appeals for the Third Circuit affirmed Ferguson's convictions on September 21, 2010. Id. at 9.
On February 7, 2011, Ferguson filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal custody (ECF No. 958), as well as a motion for leave to file a brief in excess of length limitation under local rule 7 (ECF No. 959) and a memorandum of facts and law in support of his petition to vacate judgment, convictions, and sentences pursuant 28 U.S.C. § 2255. (ECF No. 959). Ferguson raised at least eleven claims, all of which challenge his conviction at count twenty under 28 U.S.C. § 2255 on the basis of ineffective assistance of counsel. On April 12, 2011, Ferguson filed a "Motion to Supplement Movant's 28 U.S.C. 2255 Writ to Vacate and Memorandum of Facts and Law Brief under Rule (7) Governing 2255 Proceedings," (ECF No. 973), as well as a "Request to Correct Issue #7 of 28 U.S.C. 2255 Petition to Vacate Memorandum of Facts and Law Brief." (ECF No. 974). On April 29, 2011, the government filed its response to Ferguson's 28 U.S.C. § 2255 motion and supplements thereto. (ECF No. 977). Ferguson filed a reply brief to the government's response on June 9, 2011. In December 2011, Ferguson made a motion "Requesting the Court to Grant Him Leave to Supplement/Amend His Previously Filed 28 U.S.C. 2255 Motion Pursuant to Fed. R. Civ. P. Rule 15(c)(1)(b)" (ECF No. 992), as well as a "Memorandum of Facts and Law in Support of Supplement/Amendment under Fed. R. Civ. P. Rule 15(c)(1)(b)." (ECF No. 993). On January 6, 2012, the government filed an "Opposition to Ferguson's Motion to Supplement/Amend his §2255 Motion." (ECF No. 994). On January 12, 2012, Ferguson filed a "Memorandum of Facts and Law in Support of Petitioner's Motion to Supplement/Amendment under Rule 15(c)(1)(b) Pertaining to Petitioner's Previously Filed 28 U.S.C. §2255 Motion to Vacate, Set Aside, or Correct Sentence." (ECF No. 996). On January 19, 2012, Ferguson filed a reply to the Government's response to his Rule 15(c)(1)(b) motion. (ECF No. 998).
A district court is required to hold an evidentiary hearing on a motion to vacate sentence filed pursuant to § 2255 unless the motion, files, and records of the case show conclusively that the movant is not entitled to relief. 28 U.S.C. § 2255 ("Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto."); United States v. Booth, 432 F.3d 542, 545-46 (3d Cir. 2005). An evidentiary hearing is not required, however, if the court determines that the motion, files, and records of the case conclusively support that the motion should be denied as a matter of law. Id.
Under § 2255, a federal prisoner in custody may move the court which imposed the sentence to vacate, set aside, or correct the sentence upon the ground 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.
28 U.S.C. § 2255(a). In Hill v. United States, 368 U.S. 424 (1962), the Supreme Court of the United States read the statute as stating four grounds upon which relief can be claimed:
(1) "that the sentence was imposed in violation of the Constitution or laws of the United States," (2) "that the court was without jurisdiction to impose such sentence," (3) "that the sentence was in excess of the maximum authorized by law," and (4) that the sentence "is otherwise subject to collateral attack."
Id.at 426-27 (quoting 28 U.S.C. § 2255(a)). The statute provides as a remedy for a sentence imposed in violation of law that "the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." 28 U.S.C. § 2255(b).
A. Ineffective Assistance of Counsel -- General Framework
Petitioner's claims are based upon ineffective assistance of counsel in violation of the Sixth Amendment, which is a proper ground for relief under 28 U.S.C. §2255. Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). The burden is on the petitioner to establish an ineffective assistance of counsel claim. United States v. Cronic, 466 U.S. 648, 658 (1984). The Supreme Court has stated that the "benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 466 U.S. at 687. The petitioner is required to prove: (1) deficient representation, meaning that counsel's representation fell below an objective standard of reasonableness, and (2) prejudice, meaning there is a reasonable probability that, but-for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 668, 687. A petitioner's failure to satisfy one of these elements negates a district court's need to consider the other; furthermore, "a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies." Id.at 697. The Court in Strickland explained that "if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Id.
When a court decides whether a counsel's performance was deficient, it must "determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Id. at 687-88. This requires "showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. With respect to the second prong of the Strickland test, a petitioner must show that the deficient performance prejudiced him and resulted in an "adverse effect on the defense." Id. at 692. The question for the reviewing court becomes "whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695.
Judicial scrutiny of a trial counsel's performance must be highly deferential and a court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." United States v. Hankerson, 496 F.3d 303, 310 (3d Cir. 2007) (quoting Strickland, 466 U.S. at 689). A court's "review of ineffective assistance of counsel claims does not permit [it], with the benefit of hindsight, to engage in speculation about how the case might best have been tried." Hess v. Mazurkiewicz, 135 F.3d 905, 908 (3d Cir. 1998).
To rebut the presumption that the trial counsel's performance fell within the range of reasonable professional assistance, the petitioner "must show either that (1) the suggested strategy (even if sound) was not in fact motivating counsel, or (2) that the actions could never be considered part of a sound strategy." Thomas v. Varner, 428 F.3d 491, 499 (3d Cir. 2005). Yet, "strategic choices made [by trial counsel] after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." Strickland, 466 U.S. at 690-91.
To satisfy the prejudice requirement under Strickland for ineffective assistance of appellate counsel, the petitioner must show that "there is a reasonable probability that the result of the appeal would have been different had counsel's stewardship not fallen below the required standard." United States v. Mannino, 212 F.3d 835, 845 (3d Cir. 2000). The test under Strickland for a claim of ineffective of appellate counsel is "not whether petitioners would likely prevail upon remand, but whether [the Court of Appeals] would have likely reversed and ordered a remand." Id. at 844.
The Strickland standard is more stringent when applied to a petitioner's appellate counsel. An appellate counsel who files a merits brief "need not (and should not) raise every non-frivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal." Smith v. Robbins, 528 U.S. 259, 288 (2000). "[I]t is difficult to demonstrate that counsel was incompetent" because "[g]enerally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance be overcome." Id. at 288 (citing Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986)); see Jones v. Barnes, 463 U.S. 745, 750-54 (1983) ("For judges to second-guess reasonable professional judgments and impose on appointed counsel a duty to raise every 'colorable' claim suggested by a client would disserve the very goal of vigorous and effective advocacy that underlies [prior precedents]."); Sistrunk v. Vaughn, 96 F.3d 666, 670 (3d Cir. 1996) ("It is a well-established principle that counsel decides which issues to pursue on appeal."). It follows, therefore, that "[as] a general matter, it is not inappropriate for counsel, after consultation with the client, to override the wishes of the client when exercising professional judgment." Id.
As noted, petitioner makes at least eleven arguments based upon ineffective assistance of counsel. Each argument will be separately addressed. The court, however, will not repeat discussion when the issues overlap.
B. First Issue -- Stewart and Halley Failed to Argue there was "Egregious Prosecutorial Misconduct" after the Assistant United States Attorney Committed "Fraud on the Court" by Using a "Jencks Act Material Ruse"
In Ferguson's first issue, he contends that Stewart and Halley rendered ineffective assistance of counsel by failing to argue that Assistant United States Attorney Troy Rivetti ("Rivetti") committed egregious prosecutorial misconduct based on a "Jencks Act Material Ruse." That argument is unavailing. When evaluating claims under § 2255, the Court of Appeals for the Third Circuit has held that "vague and conclusory allegations . . . may be disposed of without further investigation by the District Court." United States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000). Consequently, Ferguson's claims that the government "fabricated" Crowe's testimony, as well as the report containing the jailhouse interview of Crowe and the "unnamed letters," are insufficient to prevail on a § 2255 motion. Ferguson proffers no facts or evidence that this material was "fabricated" and merely states the claim, multiple times, without any explanation concerning the alleged fabrication of the material.
Ferguson's argument that Crowe's letter and the report about Crowe's interview do not qualify as Jencks material under 18 U.S.C. § 3500 is likewise unavailing. Section 3500 states:
(a) no statement or report in possession of the United States which was made by a Government witness (other than the defendant) shall be subject of subpoena, discovery, or inspection until said witness has ...