The opinion of the court was delivered by: Rufe,j.
By Opinion and Order dated June 28, 2012, the Court denied in part Defendant David Calhoun's Motion to Vacate, Set Aside or Correct his Sentence*fn1 and ordered a hearing to establish a factual record on one of Defendant's claims. Having established such a record, the Court now addresses the single issue that remains pending.
The Court hereby incorporates the factual and procedural background contained in its June 28, 2012 Opinion in this case and recounts herein only those facts which have been established since that time and those necessary to provide context for its decision.
On April 20, 2006, a jury found Calhoun guilty of conspiracy to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. § 846 (Count One); and possession with intent to distribute more than 500 grams of cocaine, in violation of 21 U.S.C. § 841(a)(1) (Count Thirteen). On August 11, 2006, Calhoun was sentenced to 20 years of imprisonment, followed by 10 years of supervised release, and was ordered to pay a special assessment of $200.*fn2
Calhoun's timely filed August 17, 2006 appeal was denied by the Third Circuit on May 1, 2008.*fn3
The Third Circuit thereafter denied Calhoun's petition for rehearing en banc on October 22, 2008.*fn4 On March 9, 2009, the United States Supreme Court denied Calhoun's petition for writ of certiorari.
On April 20, 2009, Calhoun filed a pro se Motion for a New Trial
pursuant to Federal Rule of Criminal Procedure 33 in this Court, based
on what he asserted was newly discovered evidence.*fn5
On March 8, 2010, he filed a Motion to Vacate, Set Aside or Correct
Sentence Pursuant to 28 U.S.C. § 2255.*fn6 By Opinion
and Order dated June 28, 2012, the Court denied Defendant Calhoun's
Motion for a New Trial in whole and his Motion to Vacate, Set Aside or
Correct his Sentence pursuant to 28 U.S.C. § 2255 in part.*fn7
The Court reserved ruling on the § 2255 Motion with respect
to Calhoun's argument that trial counsel was ineffective for failing
to object to his being shackled during the preliminary stage of jury
selection. Because the trial record was silent on the issue, the Court
held that before it could determine whether counsel was ineffective
for failing to object to the use of shackles, it was necessary to
determine whether shackles were used and, if so, in what manner and
for what reason, and whether trial counsel objected to the use of
shackles or otherwise expressed his concern to the trial
Accordingly, the Court deferred ruling on the § 2255 Motion on this issue only and appointed counsel to represented Calhoun at an evidentiary hearing. After providing appointed counsel time to prepare, the Court scheduled the hearing. Before the hearing, appointed counsel briefed the shackling issue and filed a Motion for Partial Reconsideration of the June 28, 2012 Opinion.*fn9 On October 3, 2012, the Court held an evidentiary hearing at which evidence regarding the use of shackles was presented and the Court received limited evidence as to the issues raised in the Motion for Partial Reconsideration. Following the hearing, the Court permitted the parties to file supplemental briefing. The Government's supplemental brief having been filed on February 11, 2013, this matter is now ripe for disposition.
Based on the evidence presented at the hearing, the Court finds the following facts. The preliminary stage of jury selection involves a process of randomly selecting prospective jurors from the jury pool to produce a jury panel from which the jury is then selected. Unlike voir dire, the preliminary stage of jury selection does not occur in the courtroom in the presence of the trial judge. Instead, the jury panel is randomly selected by clerical staff from the jury pool in the jury assembly room located on the second floor of the courthouse. Because the jury assembly room is a large public area with several exits, bringing a criminal defendant who is in custody to this area poses a potential security risk. For this reason, it is the United States Marshall Service's policy that prisoners who wish to be present for the preliminary selection process be "restrained with leg irons, a waist chain and handcuffs," and that they be accompanied by several U.S. Marshalls.*fn10
The trial in this case began on April 17, 2006, at which time Calhoun was in custody.*fn11
At the hearing, though Calhoun's trial counsel, William T. Cannon, did
not have a clear recollection of the jury selection process, he
recalled that Calhoun requested to be present during the preliminary
stage of jury selection, that he advised his client not to do so, and
that, in the end, Calhoun "chose to attend the calling of the panel in
shackles . . . in the company of United States Marshals."*fn12
There is no dispute that the jury was selected from among the
individuals who were present as part of the jury pool in the jury
assembly room where Calhoun was brought in shackles.*fn13
Trial counsel failed to object to Calhoun's being shackled in front of
the jury pool. At the October 3 hearing, Cannon stated that he "would
not have" raised an objection to Calhoun's being shackled because the
trial judge would have denied any request to allow Calhoun to attend