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United States v. Little

United States District Court, Third Circuit

June 17, 2013

BARRY LITTLE. Civil Action No. 12-2005.


JOHN R. PADOVA, District Judge.

Defendant Barry Little has filed a Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255, seeking to have his sentence vacated on the ground that his trial counsel was ineffective in failing to investigate an alibi defense. We held evidentiary hearings on the Motion on April 2, April 11 and April 25, 2013. For the following reasons, we now deny Defendant's Motion.


The Superseding Indictment in this case charged Defendant and two co-conspirators with one count of conspiracy to interfere with interstate commerce by robbery, in violation of the Hobbs Act, 18 U.S.C. § 1951(a), (b)(1) and (b)(3), one count of interference with interstate commerce by robbery and aiding and abetting, in violation of the Hobbs Act, 18 U.S.C. § 1951(a), and 18 U.S.C. § 2; and one count of using or carrying a firearm during and in relation to a crime of violence and aiding and abetting, in violation of 18 U.S.C. § 924(c)(1)(A) and 18 U.S.C. § 2. The charges arose out of a July 4, 2006 armed robbery of a Radio Shack on City Line Avenue in Bala Cynwyd, Pennsylvania. Defendant entered a plea of not guilty and proceeded to trial, where his sole defense was that he was not the third participant in the robbery. On April 16, 2008, a jury convicted Defendant of the robbery and conspiracy counts, but acquitted him on the firearm count.

Following trial, Defendant filed a post-trial motion in which he argued, as he had at trial, that the Government had not proven that he was one of the robbers present in the store at the time of the robbery. We denied that motion, relying on the substantial trial evidence from which a rational juror could have concluded that Defendant was the third robber, including the testimony of the two co-conspirators and evidence that Defendant's cell phone was in Bala Cynwyd at the time of the robbery. United States v. Little, Crim. A. No. 07-207-3, slip op. (E.D. Pa. Jan. 8, 2009). We held Defendant's sentencing hearing on March 4, 2009 and March 26, 2009, and imposed a sentence of 180 months' imprisonment on each count of conviction, to be served concurrently. Defendant filed a timely appeal, and the Third Circuit affirmed Defendant's conviction on March 29, 2012. United States v. Little, 472 F.Appx. 129, 130 (3d Cir. 2012).

Defendant filed the instant § 2255 Motion on April 16, 2012.[1] The Motion asserts just one ground for relief, which is that Defendant's trial counsel was constitutionally ineffective in failing to adequately investigate an alibi defense that Defendant was at a cookout at the time of the robbery. Defendant attached to his Motion an affidavit from the host of the cookout, J.F., who stated that she held the cookout at her home on July 4, 2006, the night of the robbery; that she recalled "seeing [Defendant] in attendance at the cookout;" and that she "believe[d] that it was around 4 pm" that she saw him. (Def. Mem. Attachment.) In a response to Defendant's Motion, the Government stated that it believed that an evidentiary hearing was necessary in order to resolve certain factual issues that Defendant's Motion raised.[2]

We therefore appointed counsel for Defendant on July 19, 2012, and we held hearings on the § 2255 Motion on April 2, April 11, and April 25, 2013. At the April 25, 2013 hearing, we heard testimony from J.F., Defendant, and an FBI agent who investigated the Radio Shack robbery. Thereafter, the Government filed a supplemental response in opposition to Defendant's Motion.


Defendant has moved for relief pursuant to 28 U.S.C. § 2255, which provides as follows:

A prisoner in custody under sentence of a court established by Act of Congress 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.

28 U.S.C. § 2255(a). "Section 2255 does not provide habeas petitioners with a panacea for all alleged trial or sentencing errors." United States v. Rishell, Crim. A. No. 97-294-1, Civ. A. No. 01-486, 2002 WL 4638, at *1 (E.D. Pa. Dec. 21, 2001) (citation omitted). In order to prevail on a § 2255 motion, the movant's claimed errors of law must be constitutional, jurisdictional, "a fundamental defect which inherently results in a complete miscarriage of justice, " or "an omission inconsistent with the rudimentary demands of fair procedure." Hill v. United States , 368 U.S. 424, 428 (1962).

To succeed on an ineffective assistance of counsel claim in a § 2255 motion, a defendant must satisfy the strict test for such claims that is set forth in Strickland v. Washington , 466 U.S. 668 (1984). The United States Supreme Court held in Strickland that, in order to prove constitutionally inadequate representation, a criminal defendant must demonstrate both that (1) his attorney's performance was deficient, i.e., that the performance was unreasonable under prevailing professional standards, and (2) that he was prejudiced by the attorney's performance. Id. at 687, 694.

In order to show that counsel's performance is so deficient as to fall below an objective standard of "reasonableness under prevailing professional norms, " a defendant must show "that counsel made errors so serious that [he] was not functioning as the counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 688. "Judicial scrutiny of counsel's performance must be highly deferential." Id. at 689. "A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id . In evaluating counsel's performance, we "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id.

Prejudice is proven if "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. "A reasonable probability is a probability ...

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