United States District Court, Eastern District of Pennsylvania
EDUARDO C. ROBRENO, J.
Petitioner Eric Wallace (“Petitioner”) is a federal prisoner incarcerated at United States Penitentiary-Hazleton in Bruceton Mills, West Virginia. Petitioner filed a pro se petition pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence, claiming that he received constitutionally ineffective assistance of counsel at trial and on appeal, that he was denied due process at trial due to the government’s knowing introduction of perjured testimony, and that he was incorrectly classified as a felon under 18 U.S.C. § 922(g) and as an armed career criminal under 18 U.S.C. § 924(e). See Pro-Se Mot. Vacate/Set Aside/Correct Sentence (“§ 2255 Pet.”), ECF No. 49. For the reasons set forth below, the Court will deny the motion with prejudice, without an evidentiary hearing.
On December 11, 2009, Petitioner pled guilty to a one count indictment charging him with knowingly possessing in and affecting interstate commerce a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). See Guilty Plea Agreement ¶¶ 1, 6, ECF No. 32. The indictment arose from Petitioner’s arrest, which occurred during a police investigation of a vehicle illegally parked at the intersection of Wyncote and 65th Streets in Philadelphia, Pennsylvania. See Prelim. Hr’g Tr., 5, Feb. 24, 2009, ECF No. 56-2; Tr. Hr’g Mot. Suppress Physical Evidence, Nov. 13, 2009 (“Suppression Hr’g Tr.”) at 6-7, ECF No. 56-1.
On February 18, 2009, Officers Paul Gimbel and John Leinmiller observed the illegally parked van in an area known for drug trafficking activity. See United States v. Wallace, 450 Fed.Appx. 175, 176 (3d Cir. 2011). The officers approached the van on both the driver’s and passenger’s sides, and Officer Gimbel shined his flashlight into the van. Id. Officer Gimbel found four people in the van, one in the front passenger seat and three in the rear seat. Id. Petitioner was sitting in the middle position of the rear seat. Id. As the officers approached the van, Officer Gimbel saw Petitioner reach below his waistband with both hands, as though going into or adjusting his waistband. Id. Fearing that Petitioner could be reaching for a weapon, Officer Gimbel instructed the occupants of the car to stop moving. ., at 176; Suppress’n Hr’g Tr. at 8, 37.
Officer Gimbel testified that Petitioner did not comply with his command, at which point Officer Gimbel entered the van through the driver’s side front door. See Wallace, 450 Fed.Appx. at 176-77; Suppression Hr’g Tr. at 8. After entering the van, Officer Gimbel testified that he instructed the occupants to put their hands up, and that Petitioner again did not comply. Suppression Hr’g Tr. at 9. Petitioner’s non-compliance prompted Officer Gimbel to grab Petitioner’s hands and raise them in the air away from Petitioner’s waist area. Id. at 9-10. Officer Gimbel then conducted a pat down of Petitioner and recovered a loaded revolver with six rounds of ammunition. Id. at 10-11. Officer Gimbel also confiscated 34 additional rounds of ammunition for a .357 caliber hand gun. Id. at 11; Indictment 2, ECF No. 1.
Immediately following this incident, Petitioner was arrested and charged by the Philadelphia District Attorney’s Office with state offenses. See Government’s Trial Mem. 1, ECF No. 21. On February 24, 2009, a preliminary hearing (hereinafter “Preliminary Hearing”) was held at which Officer Gimbel provided an initial description of the events preceding Petitioner’s arrest.
Following a conviction in a court of the Commonwealth of Pennsylvania for an offense stemming from the events of February 18, 2009, a federal grand jury returned a one-count indictment charging Petitioner with knowingly possessing in and affecting interstate commerce a firearm in violation of Title 18, U.S.C. §§ 922(g)(1) and (e). See Indictment 1.
After his arrest, Petitioner filed a motion to suppress physical evidence collected during the February 18, 2009 incident, arguing that the arresting officers lacked reasonable suspicion to believe that Petitioner was armed. Def.’s Mot. Suppress Physical Evidence (“Mot. Suppress”) 1-2, ECF No. 15. Additionally, Petitioner contended that the officers had no legal basis to approach the van, as Petitioner asserted that a parking violation does not constitute a traffic violation for purposes of a Terry stop. Mem. Supp. Mot. Suppress Physical Evidence (“Mem. Mot. Suppress”) 2-4, ECF No. 15. At the November 13, 2009 suppression hearing on this issue (hereinafter “Suppression Hearing, ”) Officer Gimbel again testified to the events of the February 18, 2009 stop. See Suppression Hr’g Tr at 9. Nevertheless, the Court denied Petitioner’s motion, finding that Officer Gimbel had reasonable suspicion to conduct a pat-down for weapons. Order Den. Mot. Suppress 4, ECF No. 28.
The Court cited four factors which, taken together, formed a reasonable suspicion to justify the pat-down search:
(1) the location where the [van] was parked is an area with frequent police activity; (2) it was approximately 7:30 in the evening and it was dark; (3) there were multiple unknown passengers in the [van], which was running, but the driver was not in the [van]; and (4) Defendant’s hand movement and fumbling with his waist area in contravention of Officer Gimbel’s command not to move.
Id. at 5. The Court also concluded, in line with jurisprudence arising from several other federal circuit courts, that an “attempt to distinguish between a parking violation and a traffic violation is a distinction without a difference, and therefore, the uncontested parking violation in this case constitutes a sufficient ground to initiate the Terry stop.” Id. at 4.
On December 11, 2009, Petitioner pled guilty to one count of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g) pursuant to a written plea agreement. See Guilty Plea Agreement 4. Petitioner has two prior convictions for serious drug offenses as well as a prior conviction for a crime of violence, all arising from separate and distinct criminal episodes. Accordingly, at the sentencing hearing, the Court ruled that Petitioner was an armed career criminal for the purposes of the Armed Career Criminal Act, 18 U.S.C. § 924(e), and imposed the 180 month mandatory minimum sentence required by the statute. See Judgment as to Eric Wallace, Aug. 3, 2010, ECF No. 40.
Petitioner appealed, and on November 10, 2011, the United States Court of Appeals for the Third Circuit affirmed the judgment of the Court. See Wallace, 450 Fed.Appx. At 178.
II. LEGAL STANDARD
A federal prisoner “claiming the right to be released . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255. The prisoner may challenge his sentence on any of the following grounds: (1) the sentence was imposed in violation of the Constitution or laws of the United States, (2) the court was without jurisdiction to impose such sentence, or (3) the sentence was in excess of the maximum authorized by law. Id. If it is clear from the record, viewed in a light most favorably to the petitioning prisoner, that he is not entitled to relief, then an evidentiary hearing on the merits of a prisoner’s claims is not necessary. Id. § 2255(b). The court is to construe a prisoner’s pro se pleading liberally, see Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam), but “vague and conclusory allegations contained in a § 2255 petition may be disposed of without further investigation, ” United States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000).
Petitioner raises the following five grounds for § 2255 relief: (1) trial counsel was ineffective for failing to impeach Officer Gimbel’s credibility at the suppression hearing and elicit a credibility ruling from the Court; (2) appellate counsel was ineffective for failing to raise on appeal Officer Gimbel’s inconsistency on the record; (3) the Government committed prosecutorial misconduct by proffering allegedly perjured testimony of Officer Gimbel at the November 13, 2009 suppression hearing; (4) appellate counsel was ineffective for not challenging the officers’ legal basis to approach the van because a parking violation does not constitute a traffic stop; and (5) Petitioner “is innocent of ...