United States District Court, W.D. Pennsylvania
Joy Flowers Conti, Chief United States District Judge.
Pending before the court is a motion to vacate, set aside, or correct sentence by a person in federal custody pursuant to 28 U.S.C. § 2255 (the “§ 2255 motion”) (ECF No. 288) filed by petitioner Dewayne Crews (“Crews” or “petitioner”). Upon reviewing the submissions of the parties, including petitioner’s § 2255 motion (ECF No. 288), the government’s response (ECF No. 289), and the petitioner’s reply (ECF No. 291), the court will deny petitioner’s § 2255 motion for the reasons set forth herein.
On December 5, 2006, petitioner was charged in a one-count indictment with intent to distribute 50 grams or more of cocaine base in violation of 21 U.S.C. § 841(a)(1). (ECF No. 1.) On February 17, 2010, a jury trial commenced against petitioner with respect to the charges contained in the indictment. The Court of Appeals for the Third Circuit summarized the evidence presented at the trial as follows:
Local police in Washington County, Pennsylvania arrested William Baugh in July 2006 for narcotics offenses and endangering the welfare of a child. Baugh agreed to cooperate with the police in a narcotics investigation by making controlled drug purchases from local dealers, including Crews, from whom Baugh had previously purchased crack.
On August 30, 2006, Baugh, under police supervision, called Crews to order $50 worth of crack. Police provided Baugh with the necessary cash, the serial numbers of which had been recorded. Baugh drove to Crews's residence and, when he arrived, Crews briefly emerged to tell him that someone would come out to meet with him. Duane Price later came out and handed Baugh some crack in exchange for the $50. Baugh then returned to the police and surrendered the crack that he had purchased.
The next day, Crews arrived at a local police station for a scheduled meeting with his probation officer. Crews confirmed that he was unemployed and that his address was 456 Third Street, the same location where Baugh had purchased crack the previous day. The probation officer administered a drug test and Crews tested positive for cocaine, marijuana, and opiates. Crews admitted that he had “been around cocaine, ” that he had taken prescription painkillers to alleviate back pain, and that he had recently smoked marijuana. (Supp.App. at 494.) The probation officer then searched Crews and discovered over $400 in cash and two cell phones. Based on the interview, drug test, cash, and phones, the probation officer decided to search Crews's residence. The probation officer brought Crews with him to be present for the search. Upon arriving, they found Jody Hill, Crews's ex-girlfriend, removing her belongings from the home. Hill was present during the search of the home. The probation officer began his search in the master bedroom and discovered a bulletproof vest, a digital scale, and crack. Following those discoveries, the officers obtained written consent from Crews to search the remainder of the home. During the search, they located plastic baggies, a handgun, and an “owe sheet.” After the search, officers compared the serial numbers of the controlled purchase funds with the money confiscated from Crews by the probation officer and found that several bills matched.
At his trial in the United States District Court for the Western District of Pennsylvania, several police officers, along with Baugh and Hill, testified against Crews. Evidence of the controlled purchase, probation interview, drug test, crack, and drug paraphernalia found in his home on August 31 were introduced, as were several letters Crews had sent to Hill admitting that the illicit items seized from the home belonged to him.
United States v. Crews, 494 F.App'x 240, 241 (3d Cir. 2012), cert. denied, 133 S.Ct. 960 (2013) (ECF No. 286) (footnotes omitted).
On February 22, 2010, a jury found petitioner guilty as charged in the indictment. (ECF No. 194.) On December 14, 2010, the court imposed upon petitioner a sentence of a term of imprisonment of 188 months, a term of supervised release of five years, with all terms and conditions listed and outlined, and a special assessment of $100. (ECF No. 273.) On December 16, 2010, petitioner filed a notice of appeal with the United States Court of Appeal for the Third Circuit. (ECF No. 274.) On September 5, 2012, the Court of Appeals for the Third Circuit affirmed the sentence imposed upon petitioner by this court. Crews, 494 F.App'x at 241.
On May 7, 2013, the clerk of court received and filed petitioner’s § 2255 motion. (ECF No. 288.) Petitioner in his § 2255 motion argues that his representation by trial counsel, James Donohue (“Donohue”), fell below the standards of effectiveness required under the Sixth Amendment to the United States Constitution because his counsel did not impeach one of the government’s witnesses, William “Bert” Baugh (“Baugh”), with a prior inconsistent statement given by Baugh. (ECF No. 291 at 5.)
On June 6, 2013, the court directed the government to file its response to petitioner’s § 2255 motion on or before July 19, 2013. On July 17, 2013, the government filed a response in opposition to petitioner’s § 2255 motion. (ECF No. 289.) In its response, the government acknowledged the timely filing of petitioner’s § 2255 motion. (ECF No. 289, at 2) On August 15, 2013, the clerk of court received and filed petitioner’s reply to the response filed by the government. (ECF No. 291.)
On August 26, 2013, petitioner filed a motion to expand the record. (ECF No. 293.) On June 2, 2014, the government filed a response to petitioner’s motion to expand the record. (ECF No. 300.) On June 27, 2014, petitioner filed a notice withdrawing his motion to expand the record. (ECF No. 302.)
Petitioner’s § 2255 motion having been fully briefed is now ripe to be decided by the court.
III. Standard for Deciding a Motion to Vacate, Set Aside, or Correct the Sentence Pursuant to 28 U.S.C. § 2255
A district court is required to hold an evidentiary hearing on a motion to vacate sentence filed pursuant to 28 U.S.C. § 2255 unless the motion, files and records of the case show conclusively that the movant is not entitled to relief. 28 U.S.C. § 2255 (“Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.”); United States v. Booth, 432 F.3d 542, 545-46 (3d Cir. 2005). The threshold the petitioner must meet to obtain an evidentiary hearing is considered to be “reasonably low.” Id. at 546. With this in mind, in considering a motion to vacate a defendant’s sentence, the “district court must ‘accept the truth of the movant's factual allegations unless they are clearly frivolous on the basis of the existing record.’” Johnson v. United States, 294 F.App'x 709, 710 (3d Cir. 2008) (quoting Booth, 432 F.3d at 545-46). The district court, however, without further investigation may dispose of “vague and conclusory allegations contained in a § 2255 petition.” Johnson, 294 F.App'x at 710 (quoting United States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000)).
Under 28 U.S.C. § 2255, a federal prisoner in custody may move the court which imposed the sentence to vacate, set aside or correct the sentence
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 sentence, or that 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 Hill v. United States, 368 U.S. 424 (1962), the Supreme Court of the United States read the statute as stating four grounds upon which relief can be granted:
(1) “that the sentence was imposed in violation of the Constitution or laws of the United States;” (2) “that the court was without jurisdiction to impose such sentence;” (3) “that the sentence was in excess of the maximum authorized by law;” or (4) that the sentence “is otherwise subject to collateral attack.”
Id. at 426-27 (quoting 28 U.S.C. § 2255(a)).
The statute provides as a remedy for a sentence imposed in violation of law that “the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.” 28 U.S.C. § 2255(b). For this remedy to be appropriate for a claim of ineffective assistance of counsel, there must be a “showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland v. Washington, 466 U.S. 668, 687 (1984).
The burden is on the petitioner to establish such a claim and requires a petitioner to prove: (1) deficient representation, meaning that counsel’s representation fell below an objective standard of reasonableness, and (2) prejudice, meaning there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Id. at 687-88, 694. As both of these components must be demonstrated to support a claim of ineffective assistance of counsel, the absence of one negates the need to address the other. The United States Court of Appeals for the Third Circuit has directed district courts to address the prejudice prong of the analysis first. See McAleese v. Mazurkiewicz, 1 F.3d 159, 170 (3d Cir. 1993), cert. denied, 510 U.S. 1028 (1993) (“Indeed, this Court has read Strickland as requiring the courts to decide first whether the assumed deficient conduct of counsel prejudiced the defendant.”) (internal quotations and citations omitted). The court of appeals in McAleese quoted the Court in Strickland as follows:
“[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.”
McAleese, 1 F.3d at 171 (quoting Strickland, 466 U.S. at 697). The court, therefore, will examine the prejudice prong of the Strickland analysis before considering the deficient representation prong in analyzing petitioner’s claim for ineffective assistance of counsel.
Petitioner in his § 2255 motion argues that Donohue’s performance was deficient because Donohue did not impeach Baugh with a prior inconsistent statement Baugh gave to petitioner’s private investigator, Ronald Getner (“Getner”). Baugh testified during petitioner’s trial on direct examination by the government that when he arrived at 456 Third Street to perform the controlled buy from petitioner, petitioner “st[u]ck [his] head out of the residence[, ]” and said “somebody will be down” to see you. (T.T. 2/17/10 (ECF No. 228) at 123-24.) Baugh testified that an individual named Duane Price “brought [crack] down” from the house, and Baugh in exchange gave him $50. (Id. at 124-25.)
The following questioning took place when Donohue cross-examined Baugh:
Q. …And when you looked at the face in the window, are you sure that was Dewayne Crews or do you ...