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United States v. Hicks

United States District Court, Third Circuit

June 19, 2013

EMORY HICKS, Defendant. Criminal Action No. 06-cr-684-01.


J. CURTIS JOYNER, District Judge.

This case is now before the Court on Defendant/Petitioner's Habeas Corpus Motion Under 28 U.S.C. § 2255 (ECF No. 109). For the reasons set forth below, the Petitioner's Motion is DENIED.


In November 2007, a jury returned a guilty verdict against the Petitioner, Emory Hicks, of all both counts of an indictment which charged him with possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g) and 18 U.S.C. § 924(e), and possession of body armor by a convicted felon, in violation of 18 U.S.C. § 931 and 18 U.S.C. § 924(a)(7). On February 12, 2008, this Court sentenced the Petitioner to 240 months imprisonment, a $200 special assessment, a $2, 000 fine, and 60 months of supervised release.

The Petitioner noticed his appeal of his conviction and sentence to the Third Circuit Court of Appeals on February 21, 2008.[1] In his appeal, the Petitioner argued that this Court improperly denied his motion to suppress physical evidence because the search warrant executed by police officers which led to his arrest lacked probable cause and because the officers did not act in good faith based on the warrant. The Third Circuit rejected the Petitioner's arguments and affirmed his conviction and sentence on January 17, 2012. See generally United States v. Hicks, 460 F.Appx. 98 (3d Cir. 2012).

On November 27, 2012, the Petitioner filed this petition for habeas corpus relief pursuant to 28 U.S.C. § 2255 with this Court. In the petition, he asserts a Sixth Amendment ineffective assistance of counsel claim based on a number of purported failings of his appellate counsel.[2] Specifically, the Petitioner asserts that his appellate counsel rendered ineffective assistance when he failed to raise certain arguments on appeal, namely: (1) the Court should have suppressed the physical evidence against him because the search warrant named another individual, not the Petitioner; (2) the dismissal of a prior criminal complaint against the Petitioner for lack of probable cause means that his subsequent indictment by a grand jury based on the same conduct but charging different crimes also should have been dismissed for lack of probable cause; (3) insufficient evidence supported his conviction because his fingerprints did not appear on the firearms or body armor which he allegedly possessed; and (4) one or more Speedy Trial Act violations.

The charges against the Petitioner stemmed from a search of a home on Windrim Street in Philadelphia. State authorities issued a search warrant to Philadelphia police officers to search the Windrim Street residence and arrest another individual; the Petitioner's name did not appear on the search warrant. When they executed the search warrant, the officers discovered several firearms and ammunition items, a bulletproof vest, and certain items suggestive of narcotics distribution and trafficking. The Petitioner was the only person present in the residence, and the officers also located several documents in the Petitioner's name or the name of one of his aliases in the residence. He also subsequently admitted to living at the residence while being "on the run."

The Government initially filed a criminal complaint on October 30, 2006, charging the Petitioner with several crimes related to narcotics distribution and trafficking. Magistrate Judge Caracappa dismissed the complaint for lack of probable cause on November 15, 2006. A grand jury subsequently indicted the Petitioner, previously convicted of several felonies, with unlawful possession of the firearms and body armor on December 5, 2006. After several unopposed continuances requested by counsel for both the Government and the Petitioner, trial commenced on November 5, 2007. The jury ultimately found the Petitioner guilty on both counts charged in the indictment.


Section 2255 of Title 28 of the United States Code provides an avenue for individuals under federal custody to challenge their sentences. To succeed in such a challenge, the petitioner must demonstrate 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). The Petitioner's constitutional claims stem from an alleged Sixth Amendment violation. The Supreme Court of the United States has long recognized that the right to counsel under the Sixth Amendment and the Due Process Clauses is crucial to protecting the fundamental constitutional guarantee of a fair trial. See Strickland v. Washington , 466 U.S. 668, 684-85 (1984). In order to establish that counsel's assistance was indeed ineffective, a petitioner must meet both elements of the two-pronged test established in Strickland. First, a petitioner must establish that counsel not only erred, but that counsel's errors were considerable enough to undermine the proceedings to such an extent that the outcome cannot be relied upon as fair and just. Id. at 687. Second, it must also be established that counsel's actions prejudiced the defendant and deprived defendant of a fair and reliable trial. Id. at 687. "Not every error by counsel, even if professionally unreasonable, ... warrant[s] setting aside the judgment of a criminal proceeding.'" Rainey v. Varner , 603 F.3d 189, 197 (3d Cir. 2010) (quoting Strickland , 466 U.S. at 691). A petitioner must demonstrate that counsel's error was prejudicial and that there is a reasonable probability that were it not for the error the outcome of the proceeding would have been different. Id. at 197-98.

Specifically as to appellate counsel, "[c]ounsel cannot be ineffective for failing to raise meritless claims." United States v. Aldea, 450 F.Appx. 151, 152 (3d Cir. 2011) (citing Sistrunk v. Vaughn , 96 F.3d 666, 670 (3d Cir. 1996)). "[T]here is no duty to raise every possible claim, " and "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" regarding any issue other than the fundamental decisions of whether to plead guilty, whether to testify, and whether to take an appeal. Sistrunk , 96 F.3d at 670 (citing, inter alia, Jones v. Barnes , 463 U.S. 745, 751 (1983)). Instead, ineffective assistance of appellate counsel requires showing: (1) that "counsel unreasonably failed to discover nonfrivolous issues and to... rais[e] them, " and (2) "a reasonable probability that, but for his counsel's unreasonable failure..., [a petitioner] would have prevailed on his appeal." Smith v. Robbins , 528 U.S. 259, 285 (2000).


The Petitioner asserts that his Sixth Amendment rights were violated through several instances of deficient performance by his appellate counsel. None of the Petitioner's claims has merit, so we deny him habeas corpus ...

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