The opinion of the court was delivered by: McVerry, J.
MEMORANDUM OPINION AND ORDER
Presently before the Court for disposition is the MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY, with MEMORANDUM OF LAW AND AMENDED MEMORANDUM OF LAW in support filed pro se by Petitioner / Defendant Jelani Solomon ("Solomon") (ECF Nos. 839, 840, and 848), the RESPONSE in opposition filed by the government (ECF No. 883), and the REPLY TO GOVERNMENT'S RESPONSE filed by Solomon (ECF No. 888).
For the reasons discussed below, the Court will deny the § 2255 motion without holding an evidentiary hearing.
The relief sought under 28 U.S.C. § 2255 is reserved for extraordinary circumstances. See Brecht v. Abrahamson, 507 U.S. 619 (1993). Section 2255 provides, in relevant part:
A prisoner in custody under sentence of a [federal] court . . . claiming the right to be released 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, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
Although § 2255 includes a provision for a prompt evidentiary hearing, a federal court may deny a § 2255 motion without holding an evidentiary hearing if the "motion and the files and records of the case conclusively show" that the petitioner is not entitled to relief. 28 U.S.C. § 2255; see also United States v. Booth, 432 F.3d 542, 545-46 (3d Cir. 2005); United States v. McCoy, 410 F.3d 124, 131 (3d Cir. 2005); Rule 8(a), 28 U.S.C. foll. § 2255.
PROCEDURAL AND FACTUAL BACKGROUND
The parties and the Court are familiar with the extensive background facts of Solomon's criminal prosecution, conviction, sentence, and appeal. Therefore, the Court will not detail the facts again. However, the following is a brief recitation of the procedural facts salient to the issues presently pending before the Court.
On March 28, 2006, a federal grand jury sitting in the Western District of Pennsylvania returned a nine-count Superseding Indictment against Solomon, Wanda Solomon (his mother) ("W. Solomon"), and Claron Hanner (his sister's boyfriend) ("Hanner"), which also contained forfeiture allegations against Solomon and W. Solomon. Solomon was charged in seven (7) counts, as follows:
Count One - Conspiracy to Distribute and Possess with Intent to Distribute 5 Kilograms or More of Cocaine, in violation of Title 21, United States Code, § 846 and Title 18, United States Code, § 2;
Count Two - Receipt of a Firearm by a Person Under Indictment in violation of Title 18, United States Code, Section 922(n);
Count Three - Carrying and Using a Firearm During and In Relation To a Drug Trafficking Crime, in violation of Title 18, United States Code, § 922(g)(1);
Count Four - Possession of a Firearm by a Convicted Felon, in violation of Title 18, United States Code, section 922(g)(1);
Count Six - Using a Firearm During and In Relation to a Drug Trafficking Crime and Causing the Death of a Person Through the Use of Said Firearm, in violation of Title 18, United States Code, §§ 924(c)(1)(A), 924(j)(1), and 2;
Count Seven - Possession with Intent to Distribute and Distribute Less Than 500 Grams of Cocaine, in violation of Title 21, United States Code, §§ 841(a)(1) and 841(b)(1)(C); and
Count Eight - Possession with Intent to Distribute and Distribute 500 Grams or More of Cocaine, in violation of Title 21, United States Code, §§ 841(a)(1) and 841(b)(1)(B)(ii).
On December 29, 2006, the government filed a Notice to Seek Death Penalty against both Solomon and Hanner.
On August 2, 2006, W. Solomon appeared before the Court and entered a
plea of guilty to Count One of the Superseding Indictment.*fn1
On March 20, 2007, a sentencing hearing was conducted at
which time W. Solomon was sentenced by the Court and committed to the
custody of the United States Bureau of Prisons to be imprisoned for a
term of 240 months, to be followed by five (5) years of Supervised
Release. W. Solomon appealed her conviction and sentence, which were
affirmed by the United States Court of Appeals for the Third Circuit
on May 22, 2009. On March 24, 2011, W. Solomon filed a Motion to
Vacate Under 28 U.S.C. § 2255, which the Court denied as untimely by
Memorandum Order on April 26, 2011.
W. Solomon appealed that decision, which was affirmed by the United States Court of Appeals on July 29, 2011.
On June 26, 2007, Hanner appeared before the Court and entered a plea
of guilty to Count Six of the Superseding Indictment.*fn2
On June 11, 2008, a sentencing hearing was conducted at which
time Hanner was sentenced by the Court and committed to the custody of
the United States Bureau of Prisons to be imprisoned for a term of 300
months, to be followed by five (5) years of Supervised Release.
Restitution in the amount of $103,748.25 was ordered. No appeal was
taken from this sentence.
Solomon elected to proceed to trial and on October 9, 2007, a jury trial commenced on the merits phase of the charges which concluded on October 23, 2007, with the jury having found him guilty beyond a reasonable doubt on Counts One, Two, Three, Four, Six, and Seven of the Superseding Indictment.*fn3 On November 5, 2007, at the conclusion of the penalty phase of the trial, the jury determined that Solomon should be sentenced to life imprisonment without the possibility of release at Count Six of the Superseding Indictment.
On June 17, 2008, a sentencing hearing was conducted by the Court at which time Solomon was sentenced and committed to the custody of the United States Bureau of Prisons as follows: at Count One for life; at Count Two for a term of sixty (60) months; at Count Three for a term of 120 months; at Count Four for a term of 120 months; at Count Six, for a term of life without the possibility of release, and at Count Seven for a term of 240 months. The terms at Counts One, Two, Four, and Seven are to be served concurrently with the Life term imposed at Count Six. The term at Count Three is to be served consecutively to the Life Term at Count Six.
Additionally, restitution in the amount of $103,748.25 was ordered.
On June 26, 2008, Solomon filed a Notice of Appeal of his conviction. On appeal, through counsel, Solomon raised three issues: (i) whether the District Court, pursuant to 18 U.S.C. § 3432, properly exercised its discretion to empanel a partially innominate jury; (ii) whether sufficient evidence supported his conviction at Count One; and (iii) whether sufficient evidence supported his conviction at Count Six. On July 23, 2010, our appellate court affirmed Solomon's conviction and sentence finding that (i) the use of a partially innominate jury was proper and (ii) "the evidence introduced at trial was undoubtedly sufficient to support convictions on Counts One and Six." United States v. Solomon, 387 Fed. App'x 258, 262 (3d Cir. 2010), cert. denied, 131 S. Ct. 1622 (March 7, 2011), pet. for rehearing denied, 131 S. Ct. 2484 (May 16, 2011).
On March 6, 2012, Solomon, pro se, filed the instant motion in which he claims prosecutorial misconduct, raises a number of ineffective assistance of counsel claims against his trial and appellate attorneys, and argues that the Court committed a number of "trial errors" and lacked jurisdiction to sentence him on Count 3. Each of Solomon's claims have several subclaims, which will be hereinafter addressed.
Under 28 U.S.C. § 2255, a judge must determine whether to summarily dismiss the petition under Rule 4(b) of the Rules Governing § 2255 Proceedings ("If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party."), or to order an evidentiary hearing under Rule 8 of the Rules Governing § 2255 Proceedings.
A district court should hold an evidentiary hearing in section 2255 cases unless "the motion, files and records show conclusively that the movant is not entitled to relief." United States v. Nahodil, 36 F.3d 323 (3d Cir. 1994). In deciding whether to hold a hearing, the trial court judge may draw upon his own personal knowledge and recollection of the trial when considering the factual allegations of a § 2255 motion that relate to events that occurred in the judge's presence. See Government of Virgin Islands v. Nicholas, 759 F.2d 1073, 1077 (3d Cir. 1985).
After reviewing the filings in this case, the complete record, and drawing upon the Court's personal knowledge and recollection of the events that occurred in its presence, the Court finds that an evidentiary hearing is not required because the allegations made by Solomon "cannot be accepted as true because they are: contradicted by the record, inherently incredible, and/or conclusions rather than statements of fact." United States v. McCoy, 410 F.3d 124, 134 (3d Cir. 2005) Additionally, the files and records of the case conclusively establish that Solomon is not entitled to relief. United States v. Booth, 432 F.3d 542, 545-46 (3d Cir. 2005); United States v. McCoy, 410 F.3d 124, 131 (3d Cir. 2005). Therefore, the Court will proceed to the merits of the § 2255 motion.*fn4
The Sixth Amendment guarantees criminal defendants the right to effective assistance of counsel and exists "in order to protect the fundamental right to a fair trial." Lockhart v. Fretwall, 506 U.S. 364, 368 (1993) (quoting Strickland v. Washington, 466 U.S. 668, 684 (1984)).
"[A] habeas petitioner claiming a deprivation of his or her Sixth Amendment right to effective assistance of counsel must show that: (1) counsel's performance was deficient; and (2) (ii) counsel's deficient performance caused the petitioner prejudice." Ross v. District Attorney of the County of Allegheny, 672 F.3d 198, 209-10 (3d Cir. 2012) (citing Strickland, 466 U.S. at 687). A defendant faces a high bar in bringing an ineffective assistance of counsel claim. Padilla v. Kentucky, --- U.S. ---, 103 S. Ct. 1473, 1485 (2010).
To prove deficient performance, a defendant " 'must show that counsel's representation fell below an objective standard of reasonableness. . . . The challenger's burden is to show that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment.' "Ross, 672 F.3d at 210 (quoting Harrington v. Richter, ------ U.S. --------, --------, 131 S. Ct. 770, 787 (2011)). In analyzing whether counsel comported with professional standards, a court should be "highly deferential," " 'indulg[ing] a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.' " Booth, 432 F.3d at 546 (quoting Strickland, 466 U.S. at 688--89)).
To prove prejudice, a defendant must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."
Lafler v. Cooper, -- U.S. ----, ----, 132 S. Ct. 1376, 1384 (2012) (quotation and citation omitted).
A "reasonable probability" is one that is sufficient to undermine confidence in the outcome. Gooding v. Wynder, 459 Fed. App'x 83, 86 (3d Cir. 2012) (quoting Strickland, 466 U.S. at 694).
As noted, to prevail on an ineffective assistance of counsel claim, a defendant must demonstrate both deficient performance and prejudice. Strickland, 466 U.S. at 687. "Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable." Id.
The Court of Appeals for the Third Circuit has endorsed the practical suggestion in Strickland to consider the prejudice prong before examining the performance prong "because this course of action is less burdensome to defense counsel." United States v. McCoy, 410 F.3d 124, 132 n.6 (3d Cir. 2005); see Strickland, 466 U.S. at 694 (stating that, "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so," the prejudice prong should be examined before the performance prong "to ensure that ineffectiveness claims do not become so burdensome to defense counsel that the entire criminal justice system suffers as a result").
Furthermore, the United States Supreme Court has determined that under the Strickland test, a reviewing court must "assess counsel's overall performance throughout the case to determine whether the 'identified acts or omissions' overcome the presumption that counsel rendered reasonable professional performance." Kimmelman v. Morrison, 477 U.S. 365, 375 (1986).
Prior to addressing the merits of each of Solomon's claims, the Court should consider if such claims are procedurally barred. See United States v. Essig, 10 F.3d 968, 976 (3d Cir. 1993). A petitioner under § 2255 is procedurally barred from bringing any claims on collateral review which could have been, but were not, raised on direct review. See Bousley v. United States, 523 U.S. 614, 621 (1998) (exception to procedural default rule for claims that could not be presented without further factual development); United States v. Biberfeld, 957 F.2d 98, 104 (3d Cir. 1992). Once claims have been procedurally defaulted, the petitioner can only overcome the procedural bar "if he can prove either that he is actually innocent of the crime for which he was convicted, or that there is a valid `cause' for the default, as well as prejudice resulting from the default." Hodge v. United States, 554 F.3d 373, 379 (3d Cir. 2009) (citing Bousley, 523 U.S. at 622). See Biberfeld, 957 F.2d at 104 (stating "cause and prejudice" standard).
In this context, "cause" consists of "something external to the petitioner, something that cannot be fairly attributable to him," and "prejudice" requires a showing that the alleged error "worked to his actual and substantial disadvantage infecting his entire trial with error of constitutional dimensions." United States v. Frady, 45 U.S. 152, 170 (1982). To establish "actual innocence," as an alternative way to resuscitate a procedurally defaulted claim, "petitioner must demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him." Bousley, 523 U.S. at 623.
As stated above, Solomon raises a number of grounds for ineffective assistance of both his trial and appellate counsel, but he also raises a number of new claims, which he did not raise at trial, sentencing, or on direct appeal. Specifically, Solomon contends that the Assistant U.S. Attorney ("AUSA") committed prosecutorial misconduct in a myriad of ways, that the Court committed a number of "trial errors," and that the Court lacked jurisdiction to sentence him on Count 3.
The Court finds that the facts underpinning Solomon's "new claims" were or should have been known to him at the time of his trial and sentencing. Thus, Solomon could have litigated this aspect of his prosecutorial misconduct and Court "trial errors" claims in a direct appeal, but failed to do so. Further, Solomon has not shown that any factor external to the defense prevented him from litigating this issue in a direct appeal nor has he demonstrated prejudice. More significantly, Solomon has not asserted that he is innocent of any of the crimes for which he was convicted.*fn5
For these reasons, the Court concludes that all of Solomon's "new claims" are procedurally barred. However, rather than reject these claims on a waiver basis, the Court prefers to address the claims on their merits. Accordingly, the Court will analyze seriatim each of the claims Solomon has raised in the instant § 2255 motion.
B. Claims of Prosecutorial Misconduct
Solomon alleges that a wide array of actions by Assistant United States Attorney Tina O. Miller amounted to prosecutorial misconduct which resulted in the denial of his constitutional right to a fair trial. In order to prevail on a claim of prosecutorial misconduct, a petitioner must demonstrate that the prosecutor's conduct "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden v. Wainwright, 477 U.S. 68, 181 (1986).
1. Defendant's first claim of prosecutorial misconduct surrounds statements made, and later recanted, by David Robinson ("Robinson").*fn6 Robinson provided information to investigating authorities about a drug deal with Solomon. He also told investigating authorities that Solomon had paid him to be the lookout during the murder of Frank Helisek, Jr.
On September 8, 2007, though, Robinson notified authorities that he had not been truthful with regard to his professed role as the paid lookout for the murder. On September 22, 2007, the government informed defense counsel that Robinson would not be a witness at trial and that he had "recently informed us that his statements concerning being a lookout for the Helisek homicide were untrue and that he had no role in the homicide, . . . ." Govt's Br., Exh. 1.
Solomon argues that the prosecutor committed prosecutorial misconduct because "versions of [David Robinson's] testimony were used by the government and its agents, presented to the grand jury as facts, and found reliable by the grand jury for indictment." Br. at 12. Specifically, Solomon maintains that Robinson's change of story rendered infirm the testimony given to the grand jury by Pennsylvania State Trooper Michael C. Warfield and Detective Robert R. Heberle, Jr.
According to Solomon "[a]bsent David Robinson's testimony and the government's false information the grand jury would not have found cause to indict the petitioner and charge a violation of Title 18 U.S.C. 924(c) and (j)." Br. at 7. However, this contention completely overlooks the fact that the grand jury heard testimony that Solomon had paid Claron Hanner to murder Frank Helisek, Jr. The issue of whether or not Robinson had acted as a lookout would not have changed the probable cause which supported the indictment. Rose v. Bartle, 871 F.2d 331, 353 (3d Cir. 1989) ("a grand jury indictment or presentation constitutes prima facie evidence of probable cause to prosecute . . . .).
Moreover, at the time Trooper Michael C. Warfield and Detective Robert R. Heberle, Jr., testified before the grand jury they had no reason to believe that the information previously provided to them by David Robinson was not correct. Robinson did not change his story until September 8, 2007, well after the time Trooper Warfield and Detective Heberle testified before the Grand Jury.*fn7
Finally, assuming arguendo that Trooper Warfield and/or Detective Heberle had presented false and misleading testimony to the grand jury, the petit jury's guilty verdict "cured any defect in the grand jury proceeding and rendered any misconduct harmless." United States v. Muhammad, 336 Fed. App'x 188, 193 (3d Cir. 2009) (citing United States v. Console, 13 F.3d 641, 672 (3d Cir. 1993). As the United States Supreme Court explained in United States v. Merchanik, 475 U.S. 66 (1986), even where prosecutorial misconduct may have affected the grand jury's decision to indict certain defendants: the petit jury's subsequent guilty verdict means not only that there was probable cause to believe that the defendants were guilty as charged, but also that they are in fact guilty as charged beyond a reasonable doubt. Measured by the petit jury's verdict, then, any error in the grand jury proceeding connected with the charging decision was harmless beyond a reasonable doubt.
The Court finds that there was ample and well-documented evidence supporting the grand jury's finding of probable cause to indict Solomon and that "the evidence introduced at trial was undoubtedly sufficient to support convictions on Counts One and Six . . . ." United States v. Solomon, 387 Fed. App'x. 258 (3d Cir. 2010), cert. denied, -- U.S. --, 131 S. Ct. 1622; pet. for rehearing denied, -- U.S. --, 131 S. Ct. 2482 (2011).
Accordingly, the Court finds Solomon's claim to be without merit.
2. Next, Solomon contends that the AUSA committed prosecutorial misconduct because she (i) failed to disclose, as required by Brady, David Robinson's grand jury testimony and (ii) failed to inform defense counsel of the change in Robinson's story. Solomon's argument fails for two simple reasons. Initially, according to the government, David Robinson never testified before the grand jury; therefore, there was no failure to disclose. Additionally, according to the record evidence, the government learned of Robinson's change in his story on September 8, 2007. Approximately two (2) weeks later, on September 22, 2007, the AUSA wrote defense counsel and stated, inter alia:
Mr. Robinson recently informed us that his statements concerning being a lookout for the Helisek homicide were untrue and that he had no role in the homicide, other than that Jelani Solomon called him around 12:00 a.m. (after the Helisek homicide) and asked him to come to the barbershop, which he did. . . .
After Mr. Robinson recanted his story, I reviewed his trial testimony during the case of United States of America v. Cynthia Walker and Curtis Carter. Mr.
Robinson was asked during his testimony if he was the lookout for a homicide and he indicated that he was. I will forward a copy of that testimony, along with all relevant reports, to you.
Govt's Response, Exhibit 1 (ECF No. 883-1). The Court finds that the government promptly informed Solomon's defense counsel of the change in Robinson's story and thus, this claim fails as being without merit.
3. Solomon's third claim of prosecutorial misconduct is that "the prosecutor misled the court when she told the court that Count 8 of the superseding indictment was not relevant to their case in chief and should not go out to the jury for it is irrelevant to their deliberation." Br. at 14. The trial transcript demonstrates that Solomon has grossly mischaracterized the comments made by the AUSA.
Count Eight of the Superseding Indictment was dismissed on October 6, 2007, when the Court granted the government's Motion to Dismiss Count Eight (ECF No. 639). No reasons for seeking the dismissal of Count Eight were given by the government. Count Eight was dismissed before the trial in this case commenced and thus the jury never heard any description, testimony or argument regarding Count Eight.
During the Charge Conference, the AUSA requested that the Court not instruct the jury that Count Eight had been dismissed and requested that the Court "send out only those portions of the superseding indictment that are relevant to their deliberations. So it would exclude Mr. Hanner's charges and it would exclude Count 8, which was the drug distribution count. . . . " Transcript of Jury Trial Proceedings at 24, ECF No. 859. Without objection from defense counsel, the Court granted the government's request. A review of the transcript in its entirety confirms that the AUSA never misled the Court as to why Count Eight was dismissed.
4.In his fourth claim of prosecutorial misconduct, Solomon claims that the AUSA "suppressed testimony provided by Anthony Moore, Rodley Akins, Cadee Akins, George Mali, Louis Richardson, and Paul Gettlemen" because parts of their grand jury testimony was redacted. Solomon argues that "[t]his evidence could have been exculpatory in nature and [the government's] suppression deprived the defendant of an opportunity to investigate a possible line of defense. That prosecution clearly violated the ruling in Brady,*fn8 the evidence was material to the petitioner's defense." Br. at 16.
To establish a Brady due process violation, a defendant must show that "(1) evidence was suppressed; (2) the suppressed evidence was favorable to the defendant; and, (3) the suppressed evidence was either material to guilt or to punishment." United States v. Pelullo, 399 F.3d 197, 209 (3d Cir. 2005). However, "the government is not obliged under Brady to furnish a defendant with information which he already has or, with any reasonable diligence, he can obtain himself." United States v. Starusko, 729 F.2d 256 (3d Cir. 1984).
Under Brady and its progeny, prosecutors have an affirmative duty to disclose evidence that would "tend to exculpate" the defendant or "reduce the penalty" to be imposed upon him. Brady, 373 U.S. at 87--88. Brady held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Id. at 87.
"There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Strickler v. Greene, 527 U.S. 263, 281--82 (1999). See also United States v. Pelullo, 399 F.3d 197, 209 (3d Cir. 2005). "Evidence is material 'only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.' " United States v. Friedman, 65 F.3d 342, 357 (3d Cir. 2011) (citing United States v. Bagley, 473 U.S. 667, 682 (1985)).
Application of these principles to the instant case is not difficult. Solomon's assertions that the redacted transcripts "could have been exculpatory in nature" amount to nothing more than bald assertions and conclusory allegations. Additionally, Solomon cannot show that the government suppressed any exculpatory evidence. The government produced to defense counsel the grand jury transcripts before trial, and defense counsel had a full opportunity to challenge the redactions, if warranted. See United States v. Montgomery, 210 F.3d 446, 452 (5th Cir. 2000) (noting that an in-camera review is available when defendant seeks such review to confirm that redactions were proper).
Thus, the Court finds that the redaction of the grand jury testimony by the government is not a Brady violation and ...