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United States v. Terry

United States District Court, W.D. Pennsylvania

July 14, 2015

ANDREW TERRY Criminal Action No. 2:10-cr-29


MARK R. HORNAK, District Judge.

Now before the Court is Petitioner Andrew Terry's pro se [1] Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. ECF No. 127. Upon consideration of the Motion and its Memorandum in Support, ECF No. 128, the United States's Response, ECF No. 140, Petitioner's Reply, ECF No. 145, the entire record, the applicable law, and for the reasons set forth below, the Motion will be denied without a hearing[2] and no certificate of appealability will issue.


Petitioner Andrew Terry ("Mr. Terry" or "Petitioner") was arrested by Pittsburgh police officers on March 11, 2009, and later charged federally with Possession of a Firearm by a Convicted Felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Just before midnight that evening, Detective Love, along with other plainclothes police officers, were driving in an unmarked police car and saw Mr. Terry standing outside of a Subaru on a public street. United States v. Terry, No. 10-0029, 2010 WL 4639068, at *1 (W.D. Pa. Nov. 8, 2010), aff'd, 518 F.Appx. 125 (3d Cir. 2013). According to Detective Love, they stopped to investigate because the Subaru and a woman near the driver's side door were blocking them from passing, and the Detective also saw Mr. Terry holding an open alcohol container. Id. at *1-2. Detective Love also testified that after the unmarked police vehicle stopped, Mr. Terry made several suspicious movements, including bending inside the passenger's side door of the Subaru and making a shoving motion into his waistband, which Detective Love believed were done to conceal a weapon in his waistband. Id. at *2. Mr. Terry denied making any such movements. Id. As a result of these movements, Detective Love ordered Mr. Terry to the rear of the vehicle (Mr. Terry complied with that and other commands), performed a pat down of Mr. Terry, and found a gun. Id. Mr. Terry then attempted to flee, but Detective Love tackled him, and the other officers assisted in placing Mr. Terry under arrest. Id. at *3. At the time of the incident, Mr. Terry was on state parole. ECF No. 38, at 71:23-24. He was later indicted by a federal grand jury for Possession of a Firearm by a Convicted Felon. ECF No. 94, at 4.

At the pre-trial stage, Mr. Terry moved to suppress the firearm, arguing that police obtained it after an unlawful stop and an unlawful search. ECF No. 24. The Court[3] held an evidentiary hearing at which it heard testimony from Detective Love, the arresting officer, as well as three defense witnesses including Mr. Terry himself. ECF No. 38. After hearing all the testimony, the Court denied Mr. Terry's Motion to Suppress, making the requisite findings of fact and conclusions of law. Terry, 2010 WL 4639068, at *5. Finding Detective Love's testimony more credible on disputed issues, the Court held that both the initial stop and the subsequent pat down were lawful. Id. at *4.

Among the evidence presented at trial was testimony by the arresting officers, notably Detective Love, and most importantly, the firearm seized from Mr. Terry. On December 14, 2011, a jury convicted Mr. Terry of the offense. ECF No. 89. At sentencing, Chief Judge Lancaster found that Mr. Terry was an armed career criminal under the Armed Career Criminal Act ("ACCA"). 18 U.S.C. § 924(e); ECF No. 116, at 4:13-18. Under the Sentencing Guidelines, Mr. Terry's Total Offense Level was 33, and his Criminal History Category was VI.[4] ECF No. 116, at 4:23-25. The advisory Sentencing Guidelines ("Guidelines") recommended a sentence of 235 to 293 months, but the court sentenced Mr. Terry to 180 months in prison, the mandatory minimum statutory sentence after application of the ACCA. Id. at 5: 4-7; id. at 6:24-7:4; id. at 13:18-21; ECF No. 107, at 2.

Mr. Terry appealed his conviction, arguing the district court erred by (1) declining to suppress the firearm as fruit of an unlawful search, and (2) overruling Mr. Terry's objection to a jury instruction on evidence of flight as consciousness of guilt, which the United States requested. United States v. Terry, 518 F.Appx. 125, 127-29 (3d Cir. 2013). The Third Circuit affirmed Mr. Terry's conviction, id. at 129, and Mr. Terry did not petition for rehearing en banc, nor did he file a petition for certiorari in the Supreme Court, ECF No. 127, at 2.

On July 28, 2014, Mr. Terry filed this timely pro se Motion to Vacate, Set Aside, or Correct a Sentence pursuant to 28 U.S.C. § 2255.[5] ECF No. 127. Specifically, Petitioner argues that his Sixth Amendment right to counsel was violated because his attorney (1) failed to argue the application of Alleyne v. United States, 133 S.Ct. 2151 (2013), ECF No. 127 at 4, (2) failed to effectively plea bargain for Mr. Terry, ECF No. 127 at 5, and (3) failed to adequately cross-examine or argue inconsistencies in the arresting officer's testimony, id. at 6-7. Mr. Terry also argues that the Supreme Court's opinion in Descamps v. United States, 133 S.Ct. 2276, reh'g denied, 134 S.Ct. 41 (2013), created a "new rule of law" that justifies vacating his ACCA sentence because two of the underlying crimes do not qualify as "serious drug offenses." ECF No. 127 at 8. The United States opposes Mr. Terry's Motion in its entirety on substantive grounds. See generally ECF No. 140.[6]


A federal prisoner may collaterally attack an otherwise final sentence if (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court lacked jurisdiction to impose the sentence; (3) the sentence was imposed in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). A petitioner bears the burden of demonstrating his right to relief under § 2255. Randle v. United States, 954 F.Supp.2d 339, 349 (E.D. Pa. 2013). A district court may deny a § 2255 motion without an evidentiary hearing when "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b); United States v. Booth, 432 F.3d 542, 545-46 (3d Cir. 2005).


A. Ineffective Assistance of Counsel Claims

Petitioners claiming ineffective assistance of counsel "must prove both incompetence and prejudice." Kimmelman v. Morrison, 477 U.S. 365, 381 (1986). Specifically, they must demonstrate that (1) "counsel's representation fell below an objective standard of reasonableness" under prevailing professional norms and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). A court's evaluation of the attorney's actions "must be highly deferential, " and those actions must be assessed under the circumstances at the time of representation without the benefit of hindsight. Id. at 689. Moreover, the prejudice analysis requires a petitioner to show a "reasonable probability" that the result of the proceeding would have been different, or one that is "sufficient to undermine confidence in the outcome." Id. at 694. This requires a court to conclude there is "a substantial, not just conceivable, likelihood of a different result." Cullen v. Pinholster, 131 S.Ct. 1388, 1403 (2011) (internal quotation marks and alterations omitted). Counsel's failure to raise a meritless argument cannot constitute ineffective assistance of counsel. United States v. Bui, 769 F.3d 831, 835 (3d Cir. 2014). An ineffective assistance of counsel claim fails if a petitioner cannot demonstrate either prong of the test, Strickland, 466 U.S. at 700, meaning that the Court does not need to address both deficiency and prejudice-if either element is not satisfied, the analysis may end there, Booth, 432 F.3d at 546.

Mr. Terry's claims that his counsel rendered ineffective assistance fail because he has not adequately averred or demonstrated that his counsel's actions fell below an objective standard of reasonableness and that, but for counsel's alleged errors, the result of the proceedings would have been different. Strickland, 466 U.S. at 687. The ...

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