United States District Court, W.D. Pennsylvania
GUSTAVE DIAMOND, District Judge.
Presently before the court is a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 filed by Anthony Johnson, Jr. ("petitioner For the following reasons, petitioner's motion will be denied.
On May 13, 2009, a grand jury returned a three-count superseding indictment charging petitioner with: possession with intent to distribute 5 grams or more of cocaine base (crack) on August 23, 2007, (count one); possession with intent to distribute 5 grams or more of cocaine base (crack) on March 5, 2008, (count two); and, carrying a firearm during and in relation to, and possessing a firearm in furtherance of, the drug trafficking crime charged in count two on March 5, 2008. (count three).
Following petitioner's arraignment on the charges set forth in the superseding indictment the court appointed Thomas Brown, Esq., to represent petitioner. Attorney Brown subsequently filed 15 pretrial motions on petitioner's behalf including, inter alia, a motion to dismiss,  arguing that count three of the superseding indictment was duplicitous and that the filing of the superseding indictment was "vindictive, " a motion to suppress and numerous discovery motions. Following a motions hearing, the court issued an opinion ruling on petitioner's pretrial motions, which, in particular, denied both the motion to dismiss and the motion to suppress.
At the conclusion of a four-day trial, petitioner was found guilty by jury verdict of all three counts charged in the superseding indictment and subsequently he was sentenced to a term of imprisonment of 120 months, consisting of 60 months at each of counts one and two, to be served concurrently, and 60 months at count three, to be served consecutively to the terms imposed at counts one and two. Petitioner filed a direct appeal to the United States Court of Appeals for the Third Circuit, which affirmed petitioner's judgment of conviction and sentence.
Petitioner filed the pending §2255 motion essentially asserting three grounds for relief: (1) that his trial counsel was ineffective in failing to file a pre-trial motion to sever count one from counts two and three; (2) that the court's jury instructions were erroneous; and, (3) that his appellate counsel was ineffective both for failing to raise a severance argument and for not challenging the court's jury instructions.
Upon due consideration of petitioner's motion, the government's response, and petitioner's reply, as well as the record as a whole, the court finds that petitioner is not entitled to relief under §2255.
The charge at count one of the superseding indictment arose from a traffic stop conducted by the Aliquippa Police around 2:00 a.m. on August 23, 2007. Aliquippa Police Sergeant Robert Sealock was on routine patrol with another officer when he observed a Buick Sedan pull in front of the patrol vehicle. Loud music was emanating from the vehicle, which also had dark-tinted windows. Sealock initiated a traffic stop because the tinted windows constituted a violation of the Pennsylvania Motor Vehicle Code, 
As Sealock approached the car, he observed petitioner leaning from the driver's seat toward the passenger side. When Sealock addressed him, petitioner appeared nervous, and was sweating and stuttering. Sealock recognized petitioner based upon prior encounters with him and was aware that he had been involved in several incidents involving firearms and that he associated with drug traffickers. Sealock noticed an open box of plastic sandwich baggies inside the car, which, based on his training and experience, he knew are sometimes used to package narcotics.
Sergeant Sealock asked petitioner to step out of the car. Upon conducting a patdown of petitioner's outer clothing, Sealock felt a large bulge in petitioner's right pocket, which, based on his experience, felt like crack cocaine. He retrieved a sandwich baggie from petitioner's right pocket and placed him under arrest. Sealock opened the baggie and counted eighty-seven individually wrapped rocks, which were weighed at 8.2 grams and confirmed to be crack cocaine by the Pennsylvania Police Crime Lab. Also found on petitioner were a cell phone and $160. The Buick was inventoried and no drug use items, such as crack pipes, were found in the car or on petitioner's person.
The charges at counts two and three of the superseding indictment arose from another traffic stop conducted by Sergeant Sealock on March 5, 2008. While responding to a call for back-up on an unrelated traffic stop, Sealock and another officer observed an Oldsmobile Alero pass a vehicle in a no-passing zone. Sealock activated the patrol car's lights. The Alero did not move over but instead accelerated, traveling approximately 50 miles per hour in a 25 mile per hour speed zone and speeding through a stop sign. The Alero eventually pulled over and Sealock nudged it with his police car. Petitioner was driving the Alero and was the lone occupant of the vehicle.
Petitioner jumped out of the Alero and proceeded toward the middle of the road with Sealock in pursuit. Sealock caught petitioner and placed him under arrest. A pat-down search of petitioner found three cell phones. Officer Eric McPhilomy arrived on the scene and informed Sealock that he had seen crack cocaine inside the Alero. Sealock then looked inside the Alero with a flashlight and observed a piece of suspected crack cocaine inside a plastic baggie on the floor in front of the driver's seat. Sealock and McPhilomy took photographs of the scene and then had the Alero towed to a garage.
A subsequent search of the Alero pursuant to a warrant resulted in the discovery of crack cocaine in a sandwich baggie arid a handgun. The weapon was found under the driver's seat, with the handle facing towards the front of the car, in close proximity to the baggie of crack cocaine. The handgun had been reported as stolen from a private residence, and is a firearm as defined by 18 U.S.C. § 921(a). A live magazine was inside the firearm with one round inside the chamber, operable and ...