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United States v. Vas

United States District Court, E.D. Pennsylvania

June 13, 2017

NORVEL VAS, Defendant. Civil Action No. 16-2805


          RUFE, J.

         Before the Court is Defendant Norvel Vas's Motion to Vacate, Set Aside, or Correct his Sentence Pursuant to 28 U.S.C. § 2255.[1] For reasons that follow, the Court will deny the motion without an evidentiary hearing.[2]


         In ruling on Defendant's appeal of his conviction and sentence, the Third Circuit concisely stated the background of this case as follows:

In October 2002, three law enforcement officers in plain clothes spotted Vas while patrolling a high crime area of Philadelphia in an unmarked car at approximately 8:00 p.m. Vas immediately ducked behind a parked car and peered over his sunglasses at the officers. Officer Eric Riddick then alighted from the car and Vas ran. After checking the area near the car, Riddick walked in the direction that Vas had run, and saw him in a nearby driveway, placing a gun in the wheel well of a vehicle. After Riddick was joined by another officer, they identified themselves and told Vas they wanted to talk to him. Vas ran again, the officers retrieved the gun, and Vas was arrested at a nearby residence.[3]

Vas was subsequently charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).[4]

         The procedural history of this case is lengthy, comprising two trials and numerous motions. As this Court explained in its Opinion on Vas's first § 2255 motion:

Vas's first trial began on October 25, 2005. Moments before the jury selection process was to begin, Vas informed the Court through counsel that he “wish[ed] to proceed pro se and have [Patrick Egan, Esq.] as backup counsel.” The Court denied Vas's request to proceed pro se. Moments later, Vas requested again that he be allowed to represent himself. The Court heard argument on Vas's open-court, impromptu motion to proceed pro se, but denied the motion. Vas proceeded to trial represented by Mr. Egan and, after a two-day trial, was convicted for violating 18 U.S.C. § 922(g)(1).
On November 7, 2005, Vas timely filed several pro se post-conviction motions and Mr. Egan filed a Motion for New Trial. Mr. Egan then withdrew as counsel, and Edward Meehan, Esq. was appointed. Vas, through Mr. Meehan, filed a second Motion for New Trial. In a Memorandum Opinion and Order filed on May 31, 2006, the Court granted Vas's Motion for a New Trial, holding that the Court erred by not conducting a full inquiry into Vas's request to proceed pro se, as required by Faretta v. California.[5]
Vas's second trial began on February 5, 2007. Before jury selection, Vas made a request to represent himself at trial. The Court conducted an extensive colloquy with Vas, and concluded that Vas was competent to represent himself at trial. The Court appointed Mr. Meehan as back-up counsel. Trial proceeded, and the jury rendered its guilty verdict on February 8, 2007.
Vas did not file any post-trial motions, but filed a pro se Notice of Appeal. On August 31, 2007, David Rudenstein was appointed to represent Vas on appeal. Mr. Rudenstein challenged the sufficiency of the evidence at trial, and the Court's denial of Vas's motion to suppress physical evidence. The Court of Appeals affirmed the judgment of conviction and sentence.[6]

         Vas then timely filed his first § 2255 motion, which he later amended. As amended, the motion spanned over 150 pages and raised nineteen grounds for relief. Defendant's claims mainly concerned: (1) the Government's failure to provide him access to the arresting officers' personnel files and other police documents; (2) the alleged false testimony of the arresting officers; (3) the purported violation of Defendant's right to self-representation; (4) the Court's denial of Defendant's request to provide the jury with additional evidence after closing arguments; (5) the failure of counsel to file post-trial motions; (6) alleged errors in sentencing; (7) the Court's failure to recuse itself from the case; and (8) a request to be resentenced in light of the recent reversal of his state murder conviction by the Superior Court of Pennsylvania.[7] The Court denied his motion except as to the resentencing issue, and granted Defendant a new sentencing hearing.[8] At the resentencing hearing on June 10, 2013, the Court imposed a within-guidelines sentence of 120 months. Defendant appealed the judgment and sentence, and, through appointed appellate counsel, sought a certificate of appealability on one of the rejected grounds in the § 2255 motion-whether the Court erred in refusing to provide him access to Officer Moore's disciplinary file. The Third Circuit denied a certificate of appealability and rejected the appeal, affirming the Court's sentence of June 10, 2013.[9]

         Defendant has now filed a second § 2255 motion, raising two grounds for relief: (1) the Court erred by allowing Defendant to represent himself at his resentencing, and appellate counsel was ineffective for failing to raise the Court's error on appeal; and (2) appellate counsel was ineffective for failing to raise the issues presented in Defendant's first § 2255 motion (and denied by this Court) in the Third Circuit.[10]

         II. STANDARD

         Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a prisoner serving a sentence in federal custody may petition the court which imposed the sentence to vacate, set aside, or correct the sentence by asserting 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.”[11] “Habeas corpus relief is generally available only to protect against a fundamental defect which inherently results in a complete miscarriage of justice or an omission inconsistent with the rudimentary demands of fair procedure.”[12]

         Defendant's claims concern asserted error by the Court and ineffective assistance of counsel. Where the movant's claim for relief is based on the ineffectiveness of his counsel, the court must determine whether all non-frivolous claims, if true, conclusively fail to establish that counsel was ineffective.[13] The movant must demonstrate both that his attorney's performance was deficient and that the deficiency caused him prejudice to establish that counsel was ineffective.[14] This requires showing that “counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.”[15] Such deficiency prejudices the defense only where “there is a reasonable probability that, but for the counsel's unprofessional errors, the result of the proceeding would have been different.”[16]


         A. Ground One: Self-Representation at Re-Sentencing

         Defendant first argues that the Court erred by allowing him to represent himself at his re-sentencing without first conducting an appropriate colloquy, and that appellate counsel was ...

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