CYNTHIA M. RUFE, J.
Before the Court is Edward Basley’s Motion to Vacate, Set Aside or Correct a Sentence pursuant to 28 U.S.C. §2255. For the reasons discussed below, the motion will be denied.
On December 7, 2005, a superseding indictment charged Defendant Edward Basley with two counts of distribution of cocaine (Counts Two and Four), possession with intent to distribute cocaine base (Count Five), possession with intent to distribute cocaine (Count Six), possession of a firearm in furtherance of a drug trafficking crime (Count Seven), and two counts of being a felon in possession of a firearm (Counts Eight and Twenty). Basley pleaded not guilty, and was tried by jury before this Court from February 12 through February 20, 2007.
The evidence at trial consisted primarily of the testimony of a confidential informant (“CI”); testimony of police officers and drug enforcement agents with whom CI cooperated; recorded conversations between CI and Basley; and physical evidence recovered from a house at 5343 Darrah Street in Philadelphia. CI’s cooperation began in September 2004, when police executed a search warrant at his house and discovered drugs and weapons there. CI told law enforcement officials that Basley had provided him with drugs (this information led to Count Two). CI also told the police that he owed Basley a drug debt of $6, 250 and that he owed Robert Wright, a codefendant, $11, 000, also for drugs.
Law enforcement secured the cooperation of CI by agreeing that a Drug Enforcement Agency (“DEA”) task force would provide him with funds to present to Basley and Wright in apparent repayment of his debts if he assisted their investigation of Wright and Basley, in part by wearing a wire to his meetings with Wright and Basley and by allowing law enforcement to listen to his phone conversations. CI consented to this arrangement and agreed to cooperate fully with the government’s investigation and prosecution of Basley and Wright. On May 2, 2005, Basley fronted CI $3, 000 worth of cocaine; CI wore a wire to record his conversations with Basley when repaying him. This fronting of the cocaine was charged in Count Four.
Much of the physical evidence in this case was uncovered on July 8, 2005. On that date, Basley called CI, who was in in a car with a police officer detailed to a DEA Task Force, and CI put the phone on speaker. Basley said he had cocaine to sell. A meeting was arranged, and Basley showed CI five kilograms of cocaine. CI reported this to law enforcement officials, who set up surveillance over the Darrah Street house, where Basley had previously been seen. During the surveillance, Basley, carrying a black duffle bag in one hand, used a key to gain entry to the house. Over the next two hours, four people knocked at the door and were admitted to the house. After Basley left the house, several officers executed a search warrant on the premises.
The Darrah Street house has three floors: a basement, a one-room main floor, and a second floor with two bedrooms. On the ground floor, officers found several items that demonstrated Basley’s close connection to the house, including “(1) a photograph of Basley and Wright, (2) a letter addressed to Basley with tally work on the back, (3) a receipt with Basley’s name on it, (4) an envelope addressed to Basley, (5) a personal card addressed to Basley, (6) an auto-insurance policy for Basley addressed to 5343 Darrah Street, and (7) an envelope from the Pennsylvania Department of Transportation addressed to Edward Basley.” The search was videotaped, and there was a young girl in the house at the time of the search who appears on the tape.
Police also found drug paraphernalia on the ground floor, including baking powder, digital scales with drug residue, and two bags of crack cocaine (this formed the basis of Count Five). Also on the ground floor was a 9mm Beretta handgun, loaded and with one round in the chamber, stored underneath a baby’s clothes in a basket on the floor (the Beretta formed part of the basis for Counts Seven and Eight). In the basement, police found Basley’s black duffle bag, containing about 1.6 kilograms of cocaine (this contraband was charged in Count Six).
Upstairs in the front bedroom, police found further evidence linking Basley to the Darrah Street house, including: “(1) a Pennsylvania identification card with Basley’s name and address on it, (2) two men’s watches, (3) a chain with a large diamond-encrusted ‘B’ on it, (4) a Comcast bill for 5343 Darrah Street in Basley’s name, (5) a Visa card in Basley’s name, (6) Basley’s social security card, (7) an application for a Visa card in Basley’s name, (8) a letter regarding a Mastercard addressed to Basley at Clapier Street [a different house that may have been Basley’s primary residence], and (9) a handwritten note addressed to ‘B.’” Inside the dresser in that bedroom, police found a Glock pistol, loaded with a round chambered (the Glock is the rest of the basis for Counts Seven and Eight). Basley was arrested on November 7, 2005, while driving his car. A search of the car disclosed a loaded Taurus pistol, forming the basis for Count Twenty.
After a week of testimony and argument, the jury acquitted Basley of Count Two and convicted him on all other counts by a special verdict. He appealed to the Third Circuit which affirmed, except that it held that there was insufficient evidence for a reasonable juror to reach the conclusion that this jury did on its verdict form that Basley possessed the Beretta. Nevertheless, because the evidence supported his possession of the Glock as a felon and in furtherance of a drug trafficking crime, the Third Circuit affirmed his conviction on Counts Seven and Eight and affirmed the conviction and sentence in all other respects.
Basley raises four claims. He argues first, his counsel on direct appeal was ineffective in failing to appeal the trial court’s decision to overrule Defendant’s timely objection to a statement made in the prosecution’s closing argument; second, the United States District Court was without jurisdiction to issue the warrant to search the Darrah Street house; third, a prior conviction was wrongly used to enhance Defendant’s sentence; and fourth, he should not have been sentenced to five years of incarceration pursuant to 18 U.S.C. § 924(c) consecutively to the rest of his sentence.
Basley’s arguments may be reviewed on the merits. Claims of ineffective assistance of trial and appellate counsel are properly raised in a § 2255 motion. And although Basley’s other claims were not pressed on direct appeal, the Government has not raised the affirmative defense of procedural default. In the absence of briefing on this issue, the Court declines to rule on it sua sponte.
Ineffective Assistance of Appellate Counsel
The Sixth Amendment guarantees to each criminal defendant the effective assistance of counsel. Whether counsel was ineffective is evaluated under the familiar guidelines of Stricklandv. Washington. To ...