United States District Court, E.D. Pennsylvania
November 17, 2014
UNITED STATES OF AMERICA,
RICHARD BAEZ, Defendant Criminal Action Nos. 2007-cr-00762-2
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 been different based upon any testimony of these unidentified witnesses.
Next, the government argues that defendant's claim that trial counsel was ineffective (for failing to move for a mistrial based on the dismissal of a juror) fails because of the number of precautions taken by the court to avoid any potential prejudice to defendant, all of which were approved by defendant's trial counsel.
Finally, the government contends that defendant's claim that his counsel " failed to object to the enhancement for the Gun Charge" fails on its face. The government interprets defendant's claim as either challenging the sufficiency of the evidence or objecting to counsel's failure to challenge the gun charge during the trial or sentencing.
The government argues that if defendant is challenging the sufficiency of the evidence, a Section 2255 motion is not the appropriate procedural vehicle to bring such a claim and that the claim itself is without merit.
In the alternative, the government contends that if defendant is alleging that Attorney Cooper failed to challenge the gun charge during the trial or at sentencing, trial counsel nevertheless exhausted his options in challenging the charges after moving for defendant's acquittal regarding the gun charge.
STANDARD OF REVIEW
Section 2255 of Title 28 of the United States Code provides federal prisoners with a vehicle for challenging an unlawfully imposed sentence. Section 2255 provides, in relevant part:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such a sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
28 U.S.C. § 2255(a).
A motion to vacate sentence under section 2255 " is addressed to the sound discretion of the district court." United States v. Williams, 615 F.2d 585, 591 (3d Cir. 1980). Defendant may prevail on a Section 2255 habeas claim only by demonstrating that an error of law was constitutional, jurisdictional, " a fundamental defect which inherently results in a complete miscarriage of justice, " or an " omission inconsistent with the rudimentary demands of fair procedure." Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417, 421 (1962).
Here, defendant brings three claims of ineffective assistance of counsel. A claim of ineffective assistance of counsel involves two elements which must be established by defendant: (1) counsel's performance must have been deficient, meaning that counsel made errors so serious that he was not functioning as " the counsel" guaranteed by the Sixth Amendment; and (2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984).
To establish a deficiency in counsel's performance, a convicted defendant must demonstrate that the representation fell below an " objective standard of reasonableness" based on the particular facts of the case and viewed at the time of counsel's conduct.
Strickland, 466 U.S. at 688, 104 S.Ct. at 2064-2065, 80 L.Ed.2d at 693-694; Senk v. Zimmerman, 886 F.2d 611, 615 (3d Cir. 1989). There is a " strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy."
Strickland, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694-695 (internal quotations omitted).
To establish the second Strickland prong, " defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."
Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. Counsel's errors must have been so serious that they deprived defendant of a " fair trial" with a " reliable" result.
Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693.
Here, defendant is unable to establish that his attorney, former Assistant Federal Defender Benjamin B. Cooper, was ineffective on the three grounds he alleges.
First, petitioner alleges that counsel failed to call important witnesses. " Trial counsel has a duty to investigate potential witnesses." United States v. Martin, 262 Fed.Appx. 392, 400 (3d Cir. 2008 )(citing United States v. Kauffman, 109 F.3d 186, 190 (3d Cir. 1997).
Specific to counsel's duty to investigate, the United States Supreme Court has explained that:
[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.
The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant.
. . .
For example, when the facts that support a certain potential line of defense are generally known to counsel because of what the defendant has said, the need for further investigation may be considerably diminished or eliminated altogether. And when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable.
Strickland, 466 U.S. at 690-691, 104 S.Ct. at 2066, 80 L.Ed.2d at 695-696 (1984).
Here, defendant has not identified the potential witnesses he alleges his counsel should have called or what testimony those unidentified witnesses would have presented on his behalf. Furthermore, defendant has not averred that Attorney Cooper failed to investigate these alleged potential witnesses. Defendant did not lack for witnesses at trial; counsel called seven witnesses, in addition to the defendant, all of whom testified concerning defendant's character.
Defendant does not allege how he was prejudiced by the failure to call these unidentified witnesses, nor does he allege any factual or legal reasons supporting his assertion that trial counsel should have done so. Because defendant has neither identified any deficient performance by Attorney Cooper nor identified any prejudice which resulted, neither prong of Strickland is met. Accordingly, defendant is not entitled to relief on this ground.
Next, defendant claims that he is entitled to relief because Attorney Cooper failed to move for a mistrial when one of the jurors encountered defendant's relative who was a character witness outside of court, and the juror was made anxious by the encounter.
On June 23, 2008 defendant's trial began with the selection of twelve jurors and four alternate jurors. On the third day of the trial, June 25, 2008, defendant called his seven character witnesses, one of whom was a distant cousin.
On the evening after the fourth day of trial, June 26, 2008, Juror Number 12 attempted to reach my deputy clerks by telephone. Unable to reach them, she left a voice message for my criminal deputy clerk. The criminal deputy clerk received the message but was not able to reach Juror Number 12 again that evening, but spoke to her before court reconvened the next morning.
Juror Number 12 informed the criminal deputy clerk that, while driving home from dinner the night before, she had encountered defendant's relative and character witness on his bicycle near her home and she was now concerned for her safety.
After being advised of this situation by my criminal deputy clerk, after discussion with counsel, and with the consent of both parties, I privately interviewed Juror Number 12 off the record before the trial resumed for the day. Juror Number 12 explained that she had realized that the witness lived close to her and this made her " nervous and upset and worried."  While returning from dinner with her family, Juror Number 12 saw the witness and a friend bicycle past their car. The juror was wearing sunglasses, but the car windows were down and she said the witness had looked right at her and the juror was unsure whether the witness had recognized her or not.
This encounter added to Juror Number 12's anxiety, and she took anti-anxiety medication that evening and again in the morning before arriving at the court house. Juror Number 12 further stated that she had not shared the facts of the incident or any details about her anxiety with the other jurors. I instructed her not to do so. Juror Number appeared calm and 12 collected and it seemed unlikely that her demeanor would alarm or concern the other jurors.
By agreement of counsel for both parties, Juror Number 12 was excused and replaced with an alternate juror. The jury was told that they should not speculate on why she was excused, but that it had been for good reason. Throughout the trial, the jury was repeatedly instructed not to discuss the case among themselves until deliberations. In the jury charge on June 27, 2008, the jury was instructed to only consider the evidence presented during the trial in arriving at a decision. After deliberation, defendant Baez was convicted on all counts.
On May 1, 2009 Mr. Baez was sentenced as indicated above. Mr. Baez appealed, arguing that I erred in interviewing Juror Number 12 off the record and in failing to question the remaining jurors for possible prejudice. The United States Court of Appeals for the Third Circuit found no error and affirmed both the conviction and the sentence.
Defendant now argues that Attorney Cooper should have moved for a mistrial because Juror Number 12 had taken mind-altering medication for anxiety and that Attorney Cooper's failure to do so amounts to ineffective assistance of counsel.
However, defendant's assertion does not overcome the presumption that Attorney Cooper's conduct was in keeping with a sound trial strategy under the circumstances. Nor has defendant established that the alleged error was so serious that it deprived him of a " fair trial" with a " reliable" result.
Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693.
Defense counsel's conduct was not unreasonable nor did it deprive defendant of a fair trial. Attorney Cooper agreed to the replacement of Juror Number 12 in light of her encounter with defendant's witness. As a result, Juror Number 12 did not have contact with other jury members or participate in jury deliberations.
By agreeing to her exclusion, Attorney Cooper acted to prevent the juror's encounter with defendant's witness and her altered state of mind from affecting the jury or the outcome of the case. Again, because defendant has neither established that defense counsel's performance was in any way deficient, nor shown that he was prejudiced, neither prong of Strickland is met and defendant is not entitled to relief on this ground.
Finally, defendant alleges that Attorney Cooper " failed to object to the enhancement for the Gun Charge, when said gun was never used or discharged."  However, contrary to defendant's contention, the record establishes that there was no enhancement for the gun charge. No upward adjustments to defendant's guideline calculation were made, in part, because of the lack of physical harm to the victim, the relatively small amount of money stolen, and the fact that defendant Baez was not the one brandishing the weapon. Because there was no enhancement to which Attorney Cooper could object, it is not possible that a failure to do so satisfies either prong of the Strickland test.
Finally, the Third Circuit Local Appellate Rules require that " [a]t the time a final order denying a petition under 28 U.S.C. § 2244 or § 2255 is issued, the district judge will make a determination as to whether a certificate of appealability should issue." 3d Cir. L.A.R. 22.2 (2011). A certificate of appealability shall issue " only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2).
Here, I conclude that jurists of reason would not debate the conclusion that defendant's motion fails to state a valid claim of the denial of a constitutional right. See Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1603, 146 L.Ed.2d 542, 555 (2000). Accordingly a certificate of appealability is denied.
For all the foregoing reasons, I dismiss defendant's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. Moreover, a certificate of appealability is denied.
NOW, this 17 day of November, 2014, upon the consideration of the following documents:
(1) Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, which motion was filed by defendant Richard Baez pro se on March 6, 2012 (Document 104); and
(2) Government's Response in Opposition to Defendant's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, which response was filed on June 4, 2013 (Document 108);
upon consideration of the pleadings, exhibits, and record papers; and for the reasons articulated in the accompanying Opinion,
IT IS ORDERED that the Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody is denied without a hearing.
IT IS FURTHER ORDERED that a certificate of appealability is denied.