United States District Court, E.D. Pennsylvania
For USA, Plaintiff: JENNIFER CHUN BARRY, MELANIE BABB WILMOTH, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, PHILADELPHIA, PA.
JAN E. DUBOIS, J.
On July 21, 2005, petitioner Jake Kelly was convicted of possession of a weapon by a convicted felon in violation of 18 U.S.C. § 922(g)(1) and § 924(e). On August 1, 2005, Kelly filed a Motion for New Trial and Leave to Supplement pursuant to Federal Rule of Criminal Procedure 33(a). By Order dated August 3, 2005, this Court granted Kelly leave to supplement his Rule 33 Motion. On October 6, 2005, Kelly filed " Supplemental Post-Verdict Motions" (hereinafter Kelly's Supplemental Motion for New Trial), which included new grounds for Kelly's Motion for New Trial under Federal Rule of Criminal Procedure 33(a) and a motion for new trial under Federal Rule of Criminal Procedure 33(b) based on newly discovered evidence. The Court held an evidentiary hearing on the Motion for New Trial on June 8, 2006, and, by Order dated August 29, 2006, granted in part, denied in part, and dismissed in part Kelly's Motion for New Trial and Supplemental Motion for New Trial. The government appealed that ruling to the U.S. Court of Appeals for the Third Circuit, which, on August 14, 2008, reversed and remanded to this Court for entry of judgment of conviction and for sentencing. On June 22, 2009, this Court sentenced Kelly to the mandatory minimum sentence of 180 months of imprisonment, a $1, 000 fine, five years of supervised release, and a $100 special assessment. Kelly appealed to the Third Circuit, which affirmed the judgment of conviction on January 20, 2011.
Kelly filed the pending Motion to Vacate, Set Aside or Correct a Sentence pursuant to 28 U.S.C. § 2255 on April 16, 2012. The government filed a response on October 15, 2012, and Kelly filed a reply on November 21, 2012. In his Motion, Kelly argues that trial counsel was ineffective in failing to: (1) interview prospective defense witnesses, which " would have led trial counsel to learn" of Victor Jones's testimony and to present Jones as a witness at trial; (2) present evidence of petitioner's excited utterance that " someone threw the gun at [him]"; (3) conduct a reasonable investigation which " would have led trial counsel to learn" that Victor Jones threw the gun toward Kelly; and (4) request the District Court to instruct the jury concerning mere proximity to a firearm. The Court held an evidentiary hearing on Kelly's § 2255 Motion on August 8, 2014.
For the reasons set forth below, the Motion to Vacate, Set Aside or Correct a Sentence is denied as to all claims.
The background of this case is set forth in detail in previous opinions. See United States v. Kelly, 406 Fed.App'x 676 (3d Cir. 2011) (affirming the District Court's judgment of conviction); United States v. Kelly, 539 F.3d 172 (3d Cir. 2008) (reversing the Order of the District Court granting Kelly's motion for a new trial and remanding for entry of judgment of conviction and for sentencing); United States v. Kelly, No. 04-605, 2006 WL 2506353 (E.D. Pa. Aug. 29, 2006) (granting in part, denying in part, and dismissing in part Kelly's Motion for New Trial). Accordingly, the Court recites in this Memorandum only those facts necessary to explain its ruling on the pending motion.
A. Kelly's Jury Trial
Kelly's jury trial began on July 19, 2005. Before trial, the government moved in limine to exclude Kelly's exculpatory statement that " someone threw the gun at [him]." (Mot. Limine Exclude Def.'s Self-Serving Decl. as Hearsay, 2.) Following argument in open court on July 19, 2005, the Court instructed defense counsel Jack McMahon that at trial he could not introduce evidence of the statement either as an excited utterance or present sense impression unless he laid a proper foundation. (Trial Tr., July 19, 2005, 8-17.) Among other things, the Court told defense counsel that, before introducing the statement, he would have to present evidence of the time lapse between the alleged throwing of the gun and Kelly's statement. Id. at 12-15. At trial, defense counsel neither attempted to develop evidence concerning the time lapse, nor attempted to introduce the statement into evidence. The Court thus denied the government's Motion in Limine as moot by Order dated July 20, 2005.
The government presented four witnesses at trial: Philadelphia Police Corporal Raymond Drummond, Police Officer Donna Stewart, Police Officer Brant Miles, and Police Officer Ernest Bottomer. Officers Drummond, Stewart, and Miles testified that during the early hours of May 1, 2004, they participated in an open inspection to determine whether there was any illegal activity at Café Breezes, a bar located at 5131 Columbia Avenue, Philadelphia, Pennsylvania. Officer Stewart testified that, sometime after she entered Café Breezes, she observed Kelly sitting at the bar, " leaned over, crunched over in his seat with his hands below the bar where I couldn't see them...." (Trial Tr., July 20, 2005, 76.) Officer Stewart testified that, shortly thereafter, she saw Kelly " reach quickly towards his back." Id. at 77. She continued:
At that point, I stopped him, I put my hands on him, I had him put his hands on the bar. I walked around behind the defendant so I was standing between the defendant and the female to his left and at that point I had him stand up. As he stood up the gun fell from his lap, it was about mid-thigh. It fell down along his left leg, it hit the brass chair rail at the base of the bar with a loud metal clang and then it landed on the floor.
Id. at 77-78. Officer Stewart then yelled " gun, " and other officers rushed over and handcuffed Kelly while Officer Stewart recovered the weapon from the floor. Id. at 78. Officer Bottomer testified that the gun at issue was a firearm as defined by federal law and that the serial number on the gun was obliterated. Id. at 169-71.
Only Officer Stewart's testimony connected Kelly with the gun at issue. No other officer or patron at Café Breezes testified to seeing Kelly with a gun. Kelly did not testify at trial.
At trial, the parties entered into two stipulations: (1) prior to May 1, 2004, Kelly had been convicted of a crime punishable by imprisonment for more than one year within the meaning of 18 U.S.C. § 922(g), and (2) the firearm in question was manufactured outside Pennsylvania. On July 21, 2005, the jury found Kelly guilty of possession of a weapon by a convicted felon.
B. Post-Trial Proceedings
On August 1, 2005, newly-retained counsel Mark E. Cedrone entered an appearance for Kelly. On the same date, Kelly filed a counseled Motion for New Trial and Leave to Supplement pursuant to Federal Rule of Criminal Procedure 33(a). By Order dated August 3, 2005, this Court granted Kelly leave to supplement his Rule 33 Motion. On October 6, 2005, Kelly filed a Supplemental Motion for New Trial, which included new grounds for Kelly's Motion for New Trial under Federal Rule of Criminal Procedure 33(a) and a motion for new trial under Federal Rule of Criminal Procedure 33(b) based on newly discovered evidence. In support of his motion, Kelly attached a statement by Kemahsiah Gant -- a friend of Kelly's girlfriend, Jacqueline Cephas -- recounting her conversation with her friend, a man named Victor Jones, about the gun that Kelly was convicted of possessing. According to Gant, Jones admitted that, during the early hours of May 1, 2004 at Café Breezes, he " had the gun" at issue and that he, not Kelly, threw it on the floor when the police entered. (Def.'s Supplemental Post-Verdict Mots., Ex. A.) The Court held an evidentiary hearing on Kelly's claim of newly discovered evidence on June 8, 2006.
(a) Evidentiary Hearing of June 8, 2006
At the evidentiary hearing, Jones testified, along with Kemahsiah Gant; Kelly's girlfriend, Jacqueline Cephas; and Philadelphia Police Officer Clarence Clark. As the credibility of Jones's testimony is central to the determination of Kelly's Motion, the Court discusses Jones's testimony in some detail below along with the relevant portions of Gant's and Officer Clark's testimony.
(i) Testimony of Kemahsiah Gant
Gant testified that sometime in late July 2005, after Kelly was convicted, Gant and Jones had a conversation in which Jones admitted to Gant that the gun the police seized in Café Breezes did not belong to Kelly. Gant testified that, during this conversation she told Jones that Kelly had been convicted and sentenced for possession of a gun, after which Jones paused and said, " I have something to tell you." (Hearing Tr., June 8, 2006, 27.) According to Gant, Jones's " exact words" were that " it wasn't Jake's gun, " and that " he [Jones] had the gun and threw it on the floor" of the bar when the police entered because he was nervous. Id. at 29, 52. Gant further testified that Jones " didn't get into details of the incident, period." Id. at 52-53.
About three weeks later, Gant told Jake Kelly's girlfriend, Jacqueline Cephas, about her conversation with Jones. Id. at 31-34. Cephas asked Gant to speak to Kelly's attorney, but Gant refused because she did not want to get involved with the case. Id. at 33, 34-35. Gant later changed her mind and spoke with an investigator from defense counsel's office. Id. at 35. Gant provided the investigator with a written statement in which she said that Jones told her the gun the police found did not belong to Jake, that Jones " had the gun, " and that when the police came into Café Breezes he " got nervous and threw it down on the floor." (Def.'s Supplemental Post-Verdict Mots., Ex. A.)
(ii) Testimony of Victor Jones
Jones testified that he was a close friend of Cephas and Gant, and that he became friends with Kelly as a result of his friendship with Cephas. (Hearing Tr., June 8, 2006, 95-96.) He explained that Café Breezes was the " hang-out spot" for the four of them ...