United States District Court, Eastern District of Pennsylvania
Juan R. Sánchez, J.
Defendant Charles Dukes, a prisoner in federal custody, has filed a pro se motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255, raising a host of claims regarding the validity of his conviction and sentence on federal drug and gun possession charges. Dukes asserts he is actually innocent of the offenses of which he was convicted, arguing he was convicted on the basis of perjured testimony and planted and fabricated evidence, in violation of his right to due process, and the evidence at trial was insufficient to prove he constructively possessed the gun recovered from the garage where he was arrested. Dukes also seeks relief based on alleged Fourth Amendment violations by the police, due process violations by this Court and the prosecutor, and ineffective assistance of counsel both at trial and on direct appeal. Because the record conclusively shows Dukes is not entitled to relief on any of the grounds asserted in his § 2255 motion or the numerous amendments thereto, the motion will be denied without an evidentiary hearing.
In March 2007, Dukes was indicted on charges of possessing with intent to distribute 5 grams of more of cocaine base, in violation of 21 U.S.C. § 841(a)(1) (Count 1); possessing with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1) (Count 2); possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (Count 3); and possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g) (Count 4). Following his indictment, Dukes, who was already in state custody, was represented by Attorney Elizabeth L. Toplin of the Federal Community Defender Office for the Eastern District of Pennsylvania (Federal Defender Office) in connection with the federal charges. In July 2007, the Federal Defender Office filed motions to suppress physical evidence Philadelphia police officers had seized from the garage and residence where Dukes was arrested, and statements Dukes made to the police the day after his arrest. Dukes thereafter sought to dismiss the Federal Defender Office as counsel. Although this Court initially denied Dukes’s request, in August 2007, this Court granted the Federal Defender Office’s motion to withdraw as Dukes’s counsel and appointed Attorney William Brennan to represent him pursuant to the Criminal Justice Act (CJA), 18 U.S.C. § 3006A. In June 2008, Attorney Brennan filed a further motion to suppress all physical evidence seized from Dukes’s residence at 7705 Temple Road. The motion also requested a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), to challenge the accuracy of the allegations in support of the search warrant.
On June 19, 2008, this Court held a hearing on Dukes’s suppression motions, at which Philadelphia Police Officers Frank Bonett, Charles Kapusniak, and Perry Betts testified.According to Officer Bonett’s testimony, on the night of August 16, 2006, acting on information he received from a reliable confidential source that a father and son were selling drugs out of the rear garage at 7705 Temple Road, Bonett and two colleagues (Officers Thomas LaCorte and Fred Wiley) set up surveillance in the alley where the garage was located, three houses away. The officers were in full uniform in an unmarked police car. At around 10:30 p.m., Officer Bonett observed Dukes walk through the alley and open the door to the garage of the residence at 7705 Temple Road. Approximately five minutes after Dukes’s arrival, Officer Bonett saw a black Ford Taurus station wagon pull into the area in front of the garage, and observed Dukes approach the passenger side of the car and talk briefly with the driver, who handed Dukes money. Dukes re-entered the garage for about ten seconds, then returned to the car and handed the driver unidentified small objects. About ten minutes later, Officer Bonett saw a white Honda Accord pull into the area in front of the garage at 7705 Temple Road and observed the same pattern of activity, with Dukes taking money from the driver, re-entering the garage, and then returning to the car and handing the driver unidentified small objects.
At approximately 10:50 p.m., after observing Dukes engage in what Officer Bonett believed, based on his experience and training as a police officer, were narcotics transactions, he and the other officers exited their vehicle and approached Dukes. Upon seeing the officers, Dukes attempted to close the garage door, but Officer LaCorte prevented him from doing so. Officers Bonett and Wiley then stopped Dukes, and, looking through the open garage door, Officer Bonett saw in plain view a clear plastic baggie containing small green-tinted packets of what he believed was crack cocaine. The officers then placed Dukes under arrest and searched his person, seizing $470 in cash, a Nextel cell phone, and a large wallet containing numerous credit cards and a social security card. After making the arrest, Officer Bonett reported the incident to Narcotics Strike Force Officer Kapusniak so that a search warrant could be obtained for 7705 Temple Road.
Officer Kapusniak testified at the suppression hearing regarding his role in obtaining and executing a search warrant for 7705 Temple Road. Based on the information provided by Officer Bonett, Officer Kapusniak prepared an affidavit of probable cause and faxed it to the District Attorney’s Charging Unit, which approved the warrant. At approximately 6:01 a.m. on August 17, 2006, Officer Kapusniak executed the warrant, recovering several clear baggies containing chunks of an off-white substance, 150 green-tinted packets containing smaller chunks of an off-white substance, a black grinder, a glass plate with white residue on it, two bottles of inositol, $2, 670 in cash, a silver gun box containing a loaded Smith & Wesson handgun,  and a bill and Pennsylvania driver’s license in the name of Charles Dukes. After returning to police headquarters, Officer Kapusniak performed a field test on the chunky white substance and determined the substance was cocaine base. Given the large quantity of drugs recovered, Officer Kapusniak notified Narcotics Field Unit Officers Michael Spicer and Perry Betts of the seizure, suggesting Dukes might someone with whom Spicer and Betts would be interested in speaking in connection with the investigations handled by their Unit.
According to Betts, who also testified at the suppression hearing, he and Officer Spicer met with Dukes on August 17, 2006, at the police district where Dukes was being held. After Spicer read Dukes Miranda warnings, Dukes waived his Miranda rights and proceeded to talk to the officers, providing them with information regarding other local criminal activity, some of which the officers later corroborated.
Dukes also testified at the suppression hearing, offering a dramatically different account of the events in question. According to Dukes, he left a local Shop Rite store at 10:06 p.m. on August 15, 2006, and drove to his mother’s home at 7705 Temple Road to drop off some laundry detergent he had purchased for her. At 10:19 p.m., Dukes got out of his car, put the two boxes of detergent in the garage, and closed the garage door, whereupon he encountered Officer Bonett, in plain clothes, outside the garage. Officer Bonett hit Dukes, knocking his cell phone to the ground. Dukes retrieved his phone and in trying to activate the video feature saw the time was 10:21 p.m. Dukes claimed Officer Bonett hit him again and handcuffed him while the other officers rummaged through the contents of the garage. Dukes denied that the drug transactions Officer Bonett described ever occurred, noting the officers had already arrested him when the transactions allegedly took place. To support his account, Dukes offered a cell phone video a neighbor had recorded, which he contended showed the officers running in and out of the garage between 10:30 and 10:36 p.m., when Dukes was supposedly engaging in drug transactions. The video, however, was not authenticated, did not bear any indication of date or time, and depicted only what this Court characterized as “gray and random flashes of light.” Mem. 4, June 30, 2008, ECF No. 91. Dukes also denied ever meeting or speaking with Officers Betts and Spicer, and denied giving them any information about other criminal activity, though he admitted certain information in the officers’ notes of the meeting was correct (e.g., his date of birth and nickname (“Dog”)).
On June 30, 2008, this Court issued a Memorandum and Order denying Dukes’s suppression motions. Based on the Court’s observation of the witnesses at the suppression hearing and the evidence introduced at the hearing, the Court found the testimony of Officers Bonett, Kapusniak, and Betts credible, and found Dukes’s testimony not credible, given the lack of evidentiary support for Dukes’s version of events and the contradictions between Dukes’s account and other record evidence. The Court also noted Dukes’s prior crimen falsi convictions for wire and bank fraud cast doubt on his veracity. The Court concluded, based on the totality of the circumstances, that Officer Bonett had probable cause to arrest Dukes and the search warrant obtained following the arrest was also supported by probable cause. The Court therefore concluded the items seized during the search of Dukes’s person incident to arrest and in executing the search warrant were admissible. The Court also held Dukes’s statements to Officers Betts and Spicer would not be suppressed, as the statements were made pursuant to a valid waiver of his Miranda rights. Finding Dukes’s testimony regarding the events in question was not credible, the Court denied Dukes’s request for a Franks hearing.
Following the denial of his suppression motions, Dukes filed several pro se motions seeking to have a new attorney from the Federal Defender Office represent him, to have his existing attorney removed from the case, and/or to exercise his Sixth Amendment right to represent himself at trial. The Court conducted a lengthy colloquy with Dukes regarding these motions on August 8, 2008, and, at the conclusion of the hearing, advised Dukes the Court would not appoint another new lawyer, but would permit him to represent himself, with Attorney Brennan as standby counsel. Dukes thereafter filed a motion to continue the August 18, 2008, trial date, which the Court initially denied. On August 14, 2008, four days before trial was to commence, Attorney Arnold C. Joseph entered his appearance as Dukes’s counsel. Attorney Joseph sought reconsideration of the Court’s denial of Dukes’s pro se continuance request, and, after a further colloquy with Dukes on August 18, 2008, the Court granted the motion.
The case proceeded to trial in October 2008. At trial, the Government’s witnesses included Officer Bonett, who testified about his surveillance of Dukes on August 16, 2006, the events leading to Dukes’s arrest, and the items seized from Dukes’s person, and Officer Kapusniak, who testified about obtaining and executing a search warrant based on information provided by Officer Bonett. Neither Officer Betts nor Officer Spicer testified for the Government, and Dukes did not testify in his own defense. On October 23, 2008, the jury returned a guilty verdict on all counts.
In January 2009, prior to sentencing, Attorney Joseph filed a motion requesting the Court either permit him to withdraw due to Dukes’s failure to pay him or appoint him to represent Dukes as CJA counsel. The Court held a hearing on the motion on January 20, 2009, at which Attorney Joseph explained that he came to represent Dukes after another inmate at the Federal Detention Center contacted him on Dukes’s behalf and promised to pay for the representation. The other inmate did not pay Joseph, however, and after the trial, Dukes accused Joseph of failing to zealously represent him because Joseph had not been paid. Joseph explained that in light of Dukes’s allegations and in an abundance of caution, he filed the motion to withdraw or for appointment so as to ensure there would be no impediment to his continued representation because of financial considerations. After consulting with Joseph during the hearing, Dukes indicated he wanted Joseph to continue to represent him at sentencing and on direct appeal. By Order of January 22, 2009, the Court appointed Joseph as CJA counsel prospectively, but reserved ruling on the issue of whether the appointment would be retroactive pending further briefing.
The case proceeded to sentencing on February 3, 2009, but the Court did not impose sentence that day. Rather, after hearing from the Government and from Dukes himself—who used his allocution to repeat his attacks on the police officer who arrested him, his lawyer, the Assistant United States Attorney (AUSA) who prosecuted the case, and the Court—the Court advised the parties it had reservations whether a sentence within the applicable range under the federal Sentencing Guidelines was adequate, and was contemplating varying or departing upward from the otherwise applicable sentencing range. The Court adjourned the hearing to permit further briefing and consideration of the propriety of an above-Guidelines sentence. On March 11, 2009, the Court sentenced Dukes to a total of 300 months of incarceration, which included a 65-month upward variance from the applicable Guidelines range. The Court found an upward variance was justified due to Dukes’s “substantial criminal history, his inability to conform his conduct to the law during Court supervision, likelihood to re-offend, contempt for the law and legal system, and lack of remorse for his conduct.” Sentencing Hr’g Tr. 23, Mar. 11, 2009.
Dukes thereafter appealed, represented by new, retained counsel, Attorney Mark Greenberg, who challenged this Court’s denial of Dukes’s motions to suppress physical evidence and imposition of an above-Guidelines sentence. In an opinion filed on July 21, 2010, the Third Circuit affirmed, finding this Court “properly denied all of Dukes’s motions to suppress physical evidence” and did not impose a substantively unreasonable sentence. United States v. Dukes, 387 F. App’x 196, 200-01 (3d Cir. 2010). After the appeal was decided, Attorney Greenberg moved to withdraw as Dukes’s counsel, at Dukes’s request. The Third Circuit granted the motion on September 16, 2010.
In June 2011, Dukes filed the instant pro se motion pursuant to § 2255, which has been the subject of numerous revisions and amendments. In his wide-ranging motion, Dukes raises five categories of claims: (1) actual innocence of the offenses charged, (2) Fourth Amendment violations based on the allegedly unlawful seizure of Dukes’s person and search of the residence where he was arrested, (3) Fifth Amendment due process violations by the Court, (4) prosecutorial misconduct, and (5) ineffective assistance of trial and appellate counsel.
In January 2012, while his § 2255 motion was pending and before the Government’s response was filed, Dukes filed a motion to reduce sentence pursuant to 18 U.S.C. § 3582(c)(2) based on Amendment 750 to the Sentencing Guidelines. Amendment 750 implemented the Fair Sentencing Act of 2010 by “reduc[ing] the crack-related offense levels in § 2D1.1 of the Guidelines, ” and was made retroactive effective November 1, 2011. United States v. Berberena, 694 F.3d 514, 517-18 (3d Cir. 2012). The Amendment had the effect of reducing Dukes’s offense level by two levels, from 28 to 26, resulting in a reduced effective advisory Guidelines range of 180 to 210 months. Following a hearing on July 12, 2012, the Court granted Dukes’s sentence reduction motion and reduced his overall sentence by a total of 104 months. The reduced 196-month sentence imposed was within the new effective advisory Guidelines range of 180 to 210 months, and eliminated the 65-month upward variance the Court had originally imposed.
Beginning in January 2013, Dukes filed a series of amendments to his pending § 2255 motion based on media articles reporting on serious allegations of misconduct by a group of Philadelphia Narcotics Field Unit officers, including Officers Betts and Spicer, the two officers who this Court found interviewed Dukes the day after his arrest. In particular, Dukes alerted this Court to Philadelphia Daily News articles reporting that in December 2012, the Philadelphia District Attorney’s Office had dropped the charges in 41 drug cases based on concerns about the credibility of certain narcotics officers whose testimony was necessary for the prosecutions. See ECF No. 242. The articles also reported that Philadelphia Police Commissioner Charles Ramsey had transferred six Narcotics Field Unit officers, including Betts and Spicer, out of narcotics after District Attorney Seth Williams advised Ramsey his office would no longer call the officers to testify in drug cases, see id., and that the U.S. Attorney’s Office had declined to use five of the officers, including Betts and Spicer, as witnesses in federal drug cases for at least two years, see ECF No. 243. Dukes also provided the Court with articles reporting on civil suits filed against the discredited Narcotics Field Unit officers and others, including one suit in which Officer Kapusniak was named as a defendant. See ECF Nos. 246, 248.
By Order of July 24, 2013, this Court directed the Government to respond to Dukes’s amendments pertaining to the discredited narcotics officers and to address the impact of the revelations regarding the officers’ misconduct on Dukes’s § 2255 motion and any further proceedings that might be warranted in light of the revelations. The Government filed its response in November 2013. According to a later Philadelphia Daily News article provided by Dukes, Commissioner Ramsey relieved Officers Betts and Spicer and three other discredited narcotics officers of their police powers in January 2014, due to a pending federal grand jury investigation. In August 2014, the grand jury indicted Betts, Spicer, and four other former Narcotics Field Unit Officers on various federal offenses. The indictment charges the officers with being part of a racketeering conspiracy from February 2006 to November 2012, and charges Betts and Spicer with separate counts of conspiracy to deprive suspects of civil rights, deprivation of civil rights, robbery which interferes with interstate commerce, extortion which interferes with interstate commerce, using and carrying a firearm during and in relation to a crime of violence, and/or falsification of records in a federal investigation. See United States v. Liciardello, Crim. No. 14-412, Indictment (E.D. Pa. filed July 29, 2014).
Pursuant to 28 U.S.C. § 2255, a prisoner in federal custody may move the sentencing court to vacate, set aside, or correct his sentence if “the sentence was imposed in violation of the Constitution or laws of the United States, . . . the court was without jurisdiction to impose such sentence, or . . . the sentence was in excess of the maximum authorized by law[ ] or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). In evaluating a § 2255 motion, the court “must accept the truth of the movant’s factual allegations unless they are clearly frivolous on the basis of the existing record” and “must order an evidentiary hearing to determine the facts unless the motion and files and records of the case show conclusively that the movant is not entitled to relief.” Gov’t of the V.I. v. Forte, 865 F.2d 59, 62 (3d Cir. 1989).
A. Due Process Violations Based on “Actual Innocence”
As part of his claim invoking “actual innocence, ” Dukes asserts he was convicted on the basis of perjured testimony and planted and fabricated evidence, in violation of his right to due process. Dukes argues (1) Officer Bonett’s account of having arrested him shortly after 10:50 p.m. on August 16, 2006, and only after observing him engage in what appeared to be two narcotics transactions and seeing what appeared to be crack cocaine in plain view on a table inside the garage, was a lie; (2) Officer Kapusniak testified falsely regarding the search of 7705 Temple Road and planted at least some of the crack cocaine in the garage; and (3) Officer Betts’s suppression hearing testimony about a meeting with Dukes in which Dukes provided Betts and Spicer with information about other local criminal activity was entirely fabricated.
“[A] conviction obtained through use of false evidence, known to be such by representatives of the State, ” violates due process. Sistrunk v. Rozum, 674 F.3d 181, 187 (3d Cir. 2012) (quoting Napue v. Illinois, 360 U.S. 264, 269 (1959)). The provision of false testimony by a government witness without the government’s knowledge may also violate due process “if the testimony was material and the court [is left] with a firm belief that but for the perjured testimony, the defendant would most likely not have been convicted.” Ortega v. Duncan, 333 F.3d 102, 108 (2d Cir. 2003) (alteration in original) (citation and internal quotation marks omitted); see also Killian v. Poole, 282 F.3d 1204, 1208 (9th Cir. 2002) (holding a prosecutor’s unknowing use of perjured testimony requires a conviction to be set aside if “there is a reasonable probability that [without all the perjury] the result of the proceeding would have been different” (alteration in original) (citation omitted)). The Court need not decide which standard applies here, as Dukes has not shown any of the officers who testified against him at trial perjured themselves or that any of the physical evidence against him was fabricated.
The linchpin of Dukes’s claim that Officer Bonett lied is the cell phone video allegedly taken by Dukes’s neighbor on August 16, 2006, which Dukes contends depicts a marked police car in the alley behind 7705 Temple Road and police officers ransacking the garage at that address between 10:30 and 10:36 p.m., when Dukes was purportedly engaging in the drug transactions that led Officer Bonett to approach him. Dukes argues police records regarding his arrest—including the “75-48” incident report, the computer aided dispatch (or “CAD”) printout, and the “application for search and/or extract of police incident or offense report”—corroborate the video in that the records reflect a 10:25 p.m. “time of occurrence” or “dispatch” time, which Dukes contends means he was already in custody at 10:25 p.m.
This Court reviewed the cell phone video at the suppression hearing and found that, contrary to Dukes’s description, the video did “not indicate either the date, or time” and depicted only “gray and random flashes of light, ” Mem. 4, June 30, 2008, ECF No. 91, a characterization the Third Circuit described as “apt, ” Dukes, 387 F. App’x at 200. Although Dukes has produced some evidence suggesting that the video clips were associated with the 10:30– 10:36 p.m. time frame on August 16, 2006, see Dukes Ex. R, the video was never authenticated and does not corroborate Dukes’s version of the circumstances surrounding his arrest in any event. Dukes’s contentions regarding the meaning of the 10:25 p.m. reference in the various police reports and records concerning the incident were also explored both at the suppression hearing and at trial. Contrary to Dukes’s interpretation, Officer Bonnet testified the occurrence time reflected in the paperwork corresponded not to the time Dukes was arrested but to the time the investigation was recorded in the police dispatch system, which occurred when Bonnet told the dispatcher, in response to her attempt to give his unit an assignment, to hold the unit out for investigation at 7705 Temple Road. See Hr’g Tr. 34-41, June 19, 2008; Trial Tr. 138-41, 178-80, Oct. 21, 2008. The entry of the investigation into the system is what triggered the obligation to complete paperwork regarding the occurrence; therefore, the time the entry was made is the time of occurrence ...