United States District Court, E.D. Pennsylvania
On January 18, 2007, a jury found defendant Louis Stillis guilty of conspiracy to distribute more than five kilograms of cocaine and other substantive cocaine distribution offenses. Additionally, after a separate bench trial on January 19, 2007, the Court found Stillis guilty of possession of a firearm by a convicted felon. On October 5, 2007, the Court sentenced Stillis, inter alia, to a total sentence of 235 months’ imprisonment. Presently before the Court are: (1) Stillis’ pro se Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (“original § 2255 Motion”); (2) Stillis’ pro se Motion to Amend Pursuant to Fed.R.Civ.P. 15(c) (“Motion to Amend”); and (3) Stillis’ pro se Amended Motion Under 28 U.S.C. § 2255 (“Amended § 2255 Motion”). For the reasons set forth below, Stillis’ Motion to Amend is granted, his original § 2255 Motion is dismissed, and his Amended § 2255 Motion is dismissed and denied without an evidentiary hearing.
A. Facts and Procedural History
On April 13, 2005, a Grand Jury in the Eastern District of Pennsylvania returned a Fifty-Three Count Superseding Indictment against defendant Stillis and eight other co-defendants. In Count One, the Superseding Indictment charged that the defendants participated in a conspiracy to distribute more than five (5) kilograms of cocaine in Philadelphia and Delaware Counties from in or about July 2003 through in or about October 2004, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). Each defendant was also charged in separate counts with distribution of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C), and distribution of cocaine within 1, 000 feet of a school in violation of 21 U.S.C. §§ 841(b)(1)(C) and 860(a).
Additionally, Count Fifty-Three of the Superseding Indictment charged that on or about April 22, 2004, defendant Stillis, having previously been convicted of a crime punishable by imprisonment for a term exceeding one year, knowingly possessed, in or affecting interstate commerce, a firearm, that is a loaded Lorcin 9mm semiautomatic pistol, serial number 133831, in violation of 18 U.S.C. § 922(g)(1).
The Superseding Indictment described the drug conspiracy as a pyramid structure with defendant Tyrone Smith at the top. Smith was alleged to be “a supplier of large quantities of cocaine, ranging from approximately 250 grams to approximately one kilogram, which he distributed to defendant William Green . . . and others for redistribution in Delaware County, Pennsylvania.” (Superseding Indict., at 3.) At the next level, the Superseding Indictment charged that defendant Green distributed the cocaine he received from defendant Smith to defendant Stillis and others for further distribution. At the bottom, the Government averred that defendant Stillis “distributed cocaine to numerous buyers in Delaware County, Pennsylvania, and used other members of the conspiracy, ” including defendants Kenneth Wilson, Sherron Moore, Tyrone Trader, Jamal Rideout, Richard Robinson, and Larry Davis, “to distribute cocaine to numerous street-level buyers, and to transport cocaine and to collect money from the sales of cocaine.” (Id. at 3–4.) The activities of defendant Stillis and those members of the conspiracy who purchased cocaine from him for resale centered in the Toby Farms neighborhood of Chester Township in Delaware County, Pennsylvania.
On January 3, 2007, defendants Stillis, Trader, Davis, and Rideout proceeded to trial before a jury. By agreement of the parties, Count Fifty-Three against defendant Stillis was severed from the remainder of the charges. On January 18, 2007, the jury found Stillis and his three co-defendants guilty of all charges against them. The following day, January 19, 2007, defendant Stillis waived his right to a jury trial on Count Fifty-Three, the government accepted his waiver, and the Court approved the waiver. The Court then tried the severed gun charge and found defendant Stillis guilty of that charge.
B. Stillis’ Motion for Judgment of Acquittal or, in the Alternative, New Trial
At the close of evidence on January 16, 2007, Stillis presented an oral motion for judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29, contending that the evidence was insufficient to support the jury’s verdict with respect to Count One of the Superseding Indictment (charging all defendants with conspiracy to distribute more than five kilograms of cocaine). The Court denied Stillis’ oral motion the same day.
Thereafter, on February 14, 2007, Stillis filed a Motion for Judgment of Acquittal Pursuant to Federal Rule of Criminal Procedure 29, or, in the Alternative, for a New Trial Pursuant to Federal Rule of Criminal Procedure 33. In that Motion, Stillis renewed his oral motion for judgment of acquittal with respect to Count One, and sought a new trial under Rule 33 with respect to his conviction on Count Fifty-Three (charging Stillis with possession of a firearm by a convicted felon). Specifically, with respect to Count One, Stillis challenged the sufficiency of the evidence as it related to: (1) the charged dates of the conspiracy, and (2) the charged drug quantities. With respect to Count Fifty-Three, Stillis argued that there was newly discovered evidence in the form of testimony from a witness named John Mumford, which entitled him to the granting of a new trial.
By Memorandum and Order dated July 16, 2007, the Court denied that part of Stillis’ Motion which challenged his conviction on Count One and reserved ruling on that part of Stillis’ Motion in which he sought a new trial on Count Fifty-Three based on alleged newly discovered evidence. In rejecting Stillis’ challenge to his conviction on Count One, the Court ruled that the evidence was sufficient to “support the jury’s finding that [Stillis] conspired to distribute at least five kilograms of cocaine” on the dates charged in the Indictment. United States v. Stillis, No. 04-680-03, 2007 WL 2071899, at *6 (E.D. Pa. July 16, 2007), aff’d, 437 F. App’x 78 (3d Cir. 2011). Following a hearing, the Court denied Stillis’ Motion for New Trial on Count Fifty-Three by Order dated July 25, 2007, on the ground that the alleged newly discovered evidence upon which he relied was merely impeaching and was unlikely to produce an acquittal at a new trial.
C. Sentencing and Direct Appeal
Sentencing was conducted on October 5, 2007. At sentencing, Stillis’ trial counsel, Steven G. Laver, argued, inter alia, that the Court should not apply any aggravating role enhancements under § 3B1.1 of the U.S. Sentencing Guidelines (“Sentencing Guidelines”). After hearing argument, the Court rejected trial counsel’s contention, finding that “Stillis’ role in the offense warrant[ed] . . . a three-level enhancement under 3B1.1(b) as a manager or supervisor but not an organizer or leader” of five people (Kenneth Wilson, Sherron Moore, Tyrone Trader, Jamal Rideout, and Richard Robinson) in the drug conspiracy. (Sentencing Tr., October 5, 2007, at 29.) Trial counsel also argued for a two-level reduction for acceptance of responsibility pursuant to § 3E1.1 of the Sentencing Guidelines, but the Court denied that request. (Id. at 47– 48.) The Court sentenced Stillis, inter alia, to concurrent sentences of 235 months’ imprisonment on Counts One, Sixteen, Twenty, and Twenty-Three, and a concurrent sentence of 120 months’ imprisonment on Count Fifty-Three.
On October 11, 2007, through his appellate counsel, Steven G. Laver, Stillis timely appealed his conviction and sentence to the U.S. Court of Appeals for the Third Circuit. Stillis raised three issues on direct appeal: “(1) that the evidence was insufficient to prove beyond a reasonable doubt that the conspiracy involved five or more kilograms of cocaine; (2) that a new trial on Count 53 was required due to newly discovered evidence; and (3) that the District Court clearly erred by denying his motion for a downward departure for acceptance of responsibility [at sentencing].” United States v. Stillis, 437 F. App’x 78, 80 (3d Cir. 2011). The Third Circuit affirmed this Court’s decision in all respects.
Stillis filed a petition for a writ of certiorari to the Supreme Court of the United States. Stillis v. United States, 132 S.Ct. 343 (2011). His petition was denied on October 3, 2011.
D. Motions Under 28 U.S.C. § 2255
Stillis timely filed his original § 2255 Motion on October 3, 2012. Thereafter, Stillis requested a temporary stay in the proceedings and, there being no objection from the Government, the Court granted that request “so as to give [Stillis] sufficient time to file an amended motion under 28 U.S.C. § 2255.” Order dated June 27, 2013; see also Order dated August 12, 2013 (extending the temporary stay). Stillis filed a Motion to Amend and an Amended § 2255 Motion on September 3, 2013.
In Stillis’ Amended § 2255 Motion, he raises four grounds for relief: (1) trial counsel was ineffective in failing to object to the Court’s handling of an allegation of juror misconduct; (2) the Government committed prosecutorial misconduct in the rebuttal portion of its closing argument, and trial counsel was ineffective in failing to object to that misconduct; (3) the evidence was insufficient to establish that Stillis was a member of the drug conspiracy, and trial and appellate counsel were ineffective in failing to argue that Stillis was not a manager/supervisor in the drug conspiracy; and (4) the Government violated Stillis’ Sixth Amendment rights by failing to call as witnesses at trial the laboratory technicians who weighed and tested the drug evidence, and trial counsel was ineffective in failing to object to the testimony of police officers which discussed the results of the laboratory reports. Additionally, Stillis moves to “preserve his right to challenge his sentence in future proceedings under 28 U.S.C. § 2255(f)(4) in the event [he] is successful in challenging predicate offenses used to enhance [his] Criminal History Category (“CHC”).” Stillis has also requested an evidentiary hearing. For the reasons that follow, the Court dismisses and denies all of Stillis’ claims without an evidentiary hearing.
A. Legal Standard
1. Ineffective Assistance of Counsel