United States District Court, E.D. Pennsylvania
For SHERRI A. STEPHAN, ESQUIRE, Assistant United States Attorney, On behalf of the United States of America.
RICHARD BAEZ, Defendant, Pro se.
James Knoll Gardner, United States District Judge.
This matter is before the court on the Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody filed March 6, 2012 by Richard Baez pro se (" § 2255 Motion"). On June 4, 2013 the Government's Response in Opposition to Defendant's Motion Under 28 U.S.C. § 2255 was filed (" Government's Response").
For the following reasons, I deny defendant's § 2255 Motion without a hearing, and I deny a certificate of appealability.
On December 11, 2007 a federal grand jury in the Eastern District of Pennsylvania returned a three-count Indictment against movant Richard Baez and co-defendant Miguel Dominguez for their actions relating to the armed robbery of an Econolodge hotel office located at 2115 Downyflake Lane in Allentown, Lehigh County, Pennsylvania, which occurred on April 17, 2007. Defendant was charged with Conspiracy to interfere with interstate commerce by robbery, in violation of 18 U.S.C. § 1951(a); Interference with interstate commerce by robbery and aiding and abetting that offense in violation of 18 U.S.C. § § 1951(a) and 2; and Using and carrying a firearm during a crime of violence and aiding and abetting, in violation of 18 U.S.C. § § 924(c) and 2.
A jury trial was held before me from June 23 to 27, 2008. Defendant Baez was represented throughout the proceedings by former Assistant Federal Defender Benjamin B. Cooper.
On June 27, 2008 the jury returned a verdict of guilty on all counts of the Indictment. On May 1, 2009 I imposed a sentence of 153 months imprisonment (consisting of a term of 33 months incarceration on Counts 1 and 2 to be served concurrently and a term of 120 months incarceration on Count 3 to be served consecutively to Counts 1 and 2); a five year term of supervised release; a $1, 500 fine; restitution in the amount of $896; and a special assessment of $300.
On May 5, 2009 defendant filed a Notice of Appeal. On May 15, 2009, Robert Epstein, Esquire, of the Defender Association of Philadelphia, was appointed to represent defendant on direct appeal. Brett G. Sweitzer,  Esquire, entered an appearance on behalf of defendant on June 24, 2009.
On May 26, 2011 United States Court of Appeals for the Third Circuit affirmed defendant's conviction and sentence.
As described above, on March 6, 2012, defendant filed his Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. The government responded on June 4, 2013.
CONTENTIONS OF THE PARTIES
In his motion, defendant raises three claims of ineffective assistance of counsel. Initially, defendant contends that Attorney Cooper was ineffective because he failed to call important witnesses. Next, defendant avers that Attorney Cooper failed to move for a mistrial when one of the jurors took anxiety medication after encountering a family member of defendant, who was a character witness, in the neighborhood in which both the juror and the witness lived. Finally, defendant claims that Attorney Cooper was ineffective because he failed to object to the sentencing enhancement for the gun charge, even though the gun was not " used or discharged." 
Contentions of the Government
The government contends that defendant's claims fail because defendant cannot sustain an ineffective assistance of counsel claim on any of the three grounds raised.
Initially, regarding the failure to call important witnesses, the government argues that defendant fails to " demonstrate a prima facie showing or even any indicia of an ineffective counsel claim" because defendant has not identified who should have been called, what testimony would have been offered, or how the outcome would have ...