United States District Court, E.D. Pennsylvania
LAWRENCE F. STENGEL, District Judge.
Raymond Mainor, a previously convicted felon, was convicted on October 24, 2007, on charges of distribution of, and possession with intent to distribute, cocaine and crack-cocaine, in violation of 21 U.S.C. § 841(a)(1); distribution of, and possession with intent to distribute, within 1, 000 feet of a school, cocaine and crack-cocaine, in violation of 21 U.S.C. § 860(a); possession of a firearm in furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c); and possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). On April 24, 2008, he was sentenced to total term of imprisonment of 300 months. Following an unsuccessful appeal, Mainor timely filed on January 9, 2012, a pro se § 2255 Motion (" Pro se Mot."), along with an Addendum explaining his claims (" Pro se Add."). Thereafter, we appointed counsel for Mainor, and counsel filed a Supplemental Motion ("Supp. Mot."). For the reasons that follow, I find that none of the issues presented have merit, and that the Motion should be denied in its entirety without an evidentiary hearing, and with no certificate of appealability issued.
On February 8, 2006, Judge Baylson authorized a warrant for electronic surveillance of Mainor's cell phone in furtherance of an investigation into his suspected drug trafficking. Over the course of the following month, law enforcement personnel obtained substantial evidence corroborating their belief that Mainor was heavily involved in an organization engaged in trafficking cocaine and crack cocaine, and which operated out of his Philadelphia residence. Mainor's residence was located within 1, 000 feet of a school.
On March 4, 2006, Mainor sold from his house 390 grams of cocaine to Abdul Rasheed, whose vehicle was subsequently stopped and searched by police. Rasheed testified at trial that he purchased the cocaine from Mainor. On March 8, 2006, Mainor's car was stopped by a local police officer shortly after he purchased fifteen kilograms of cocaine from Mark Walker at an intersection within 1, 000 feet of a school. The officer who pulled Mainor over detected a strong odor of cocaine from the car, and therefore asked Mainor to step out and be seated in his patrol car. Fifteen or twenty minutes thereafter, a trained narcotics canine signaled the presence of drugs in the trunk of Mainor's car. Mainor was arrested and his car towed. Upon issuance of a search warrant, police officers found the fifteen kilograms of cocaine inside the trunk.
Meanwhile, though authorities were in the process of obtaining a search warrant for Mainor's residence, surveillance officers stationed there approached the house upon suspicion that material evidence would soon be destroyed. The officers knocked on the front door and announced their presence; a man inside the house opened the door for a moment, but quickly slammed it shut. Two men ran up the stairs in the house and, after breaking an upstairs window, fled to another house via rooftop. After entering and securing the house, the officers waited until the search warrant was authorized. Upon issuance of the warrant, the officers searched the house and found a safe containing $28, 375 in an upstairs bedroom, and an emptied safe cemented into the basement floor. They found in the kitchen a bag containing 1.006 kilograms of cocaine, a bag containing 33.7 grams of cocaine, a bag containing 6.4 grams of crack-cocaine, various paraphernalia containing cocaine and crack-cocaine residue, various substances (e.g., baking soda, boric acid, Insotol, and Procaine) and appliances used for cutting cocaine and converting it into crack-cocaine, and documents demonstrating that the house was Mainor's residence. In a second-floor bedroom closet, officers found a fully loaded and operable Bryco Arms 9 millimeter semiautomatic handgun, with one round loaded in the chamber; an electronic money counter; an organizer containing telephone numbers and "tally sheets"; and a laptop computer containing telephone numbers, tally sheets, and an image of piles of United States currency. On the nightstand next to the bed, they found documents (including a bank statement and a municipal court notice) containing Mainor's name.
On March 9, 2006, the Government filed a complaint against Mainor charging him with numerous drug and firearms offenses. A grand jury returned an initial indictment on March 29, 2006, and a ten-count superseding indictment on December 6, 2006. The superseding indictment charged Mainor with: distribution of, and possession with intent to distribute, cocaine and crack-cocaine, in violation of 21 U.S.C. § 841(a)(1); distribution of, and possession with intent to distribute, within 1, 000 feet of a school, cocaine and crack-cocaine, in violation of 21 U.S.C. § 860(a); possession of a firearm in furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c); and possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). On December 12, 2006, the Government filed, pursuant to 21 U.S.C. § 851(a)(1), an information stating that Mainor previously had been convicted of a felony controlled substance offense in the Court of Common Pleas of Philadelphia County.
Before trial, Mainor filed several motions, including: a motion to suppress evidence obtained from the search of his car; a motion and two supplemental motions to suppress evidence obtained from electronic and video surveillance; and two motions to dismiss the indictment for violations of the Speedy Trial Act. These motions were denied and trial commenced on October 17, 2007. The jury returned a guilty verdict on all counts, and Mainor was thereafter sentenced to 300 months of imprisonment, which represented the minimum statutory sentence available. He timely appealed his conviction and sentence.
On direct appeal, Mainor asserted error in the denying of his motion to suppress the evidence obtained from the wiretap, as well as his motion to suppress the evidence obtained from the search of his car. He also argued that the evidence presented at trial was insufficient to support the charges that (1) he personally possessed the drugs found in his house, and (2) the firearm was possessed in furtherance of a drug-trafficking crime. Finally, he argued: (1) that the superseding indictment should have been dismissed due to a violation of the Speedy Trial Act; and (2) that that there was plain error in the imposition of a mandatory 20 year sentence for his conviction under 21 U.S.C. § 841(a)(1)(A), because the Special Information filed under 21 U.S.C. § 851 (regarding Mainor's prior felony drug conviction) was not signed by a Government attorney. On the wiretap issue, he argued (1) that the affidavit of Special Agent Gregory Yensan, which accompanied the warrant application submitted by an Assistant United States Attorney ("AUSA"), did not adequately demonstrate that an electronic wiretap was necessary, given the success of alternative investigative techniques; (2) that the warrant authorizing electronic surveillance of his cell phone was invalid because the AUSA's application seeking the warrant inadvertently referenced an Authorization Order issued by the Attorney General ("AG") that had expired a year earlier; and (3) that the Government's interception of his electronic communications violated the "notice and inventory" provision of 18 U.S.C. § 2518(8)(d) because he did not receive the required notice within the time provided. On the vehicle search issue, Mainor argued that the stop and subsequent search of his car, as well as his arrest, occurred without probable cause. The United States Court of Appeals for the Third Circuit rejected all of these arguments, affirming the conviction and sentence.
In his pro se Motion pursuant to 28 U.S.C. § 2255, Mainor raises sixteen issues of trial counsel ineffectiveness:
1. failure to object to the admission of two recorded phone calls between Mainor and Abdul Rasheed.
2. failure to request jury instructions on certain lesser included offenses.
3. failure to compel the Government to turn over material provided to the Attorney General.
4. failure to compel the Government to turn over phone records used to support its wiretap application.
5. failure to object to the verdict sheet.
6. failure to object to the removal of Mark Walker's name in the superseding indictment.
7. failure to challenge Counts 3, 4, and 6 of the superseding indictment charging "aiding and abetting" offenses because the Government failed to prove who Mainor was aiding and abetting.
8. failure to object to the absence of the language "possession with intent to distribute" in Counts 9 and 10.
9. failure to request the arrest report.
10. failure to call the arresting officer at the suppression hearing to show that Mainor was illegally arrested.
11. failure to challenge the order authorizing the wiretap.
12. failure to object to the jury instruction given for Counts 1, 2, 3, 4, 5, and 6 because they did not instruct that five kilograms or more was an element of the offense charged.
13. failure to inform Mainor that his co-defendant cooperated with the Government.
14. failure to object to that portion of the jury instruction where the Court read the superseding indictment to the jury, because (1) the Court "never read the offense aided and abetted to the jury that was in Counts 1, 2, 3, 4, and 6"; (2) used the word "deliver" that was not contained in the superseding indictment; (3) used the word "heroin" even though there was no heroin involved in the case; and (4) did not mention the mention the weight element of each charge contained therein.
15. failure to challenge false information contained in the wiretap affidavit.
16. failure to challenge the Government's basis for seeking to postpone the notification requirement of 18 U.S.C. § 2518(d).
III. LEGAL STANDARD
"Motions pursuant to 28 U.S.C. § 2255 are the presumptive means by which federal prisoners can challenge their convictions or sentences that are allegedly in violation of the Constitution." Okereke v. United States , 307 F.3d 117, 120 (3d Cir. 2002). Section 2255 permits a prisoner sentenced by a federal court to move the court that imposed the sentence to "vacate, set aside, or correct the sentence" where: (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; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. See 28 U.S.C. § 2255(a).
Section 2255(b) provides the procedure for reviewing the motion:
Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.
28 U.S.C. § 2255(b).
The district court is given discretion in determining whether to hold an evidentiary hearing on a prisoner's motion under § 2255. See Gov't of the Virgin Islands v. Forte , 865 F.2d 59, 62 (3d Cir. 1989); see also, 28 U.S.C. § 2255, R. 8(a). In exercising that discretion, the Court must decide whether the prisoner's claims, if proven, would entitle him to relief and then consider whether an evidentiary hearing is needed to determine the truth of the allegations. See Gov't of the Virgin Islands v. Weatherwax , 20 F.3d 572, 574 (3d. Cir. 1994). Accordingly, a district court may summarily dismiss a motion brought under § 2255 without a hearing where the "motion, files, and records, show conclusively that the movant is ...