United States District Court, W.D. Pennsylvania
MEMORANDUM OPINION ON MOTION TO VACATE
J. SCHWAB UNITED STATES DISTRICT JUDGE.
this Court is the counseled Motion to Vacate, Set Aside or
Correct Sentence under Title 28 United States Code Section
2255, by Petitioner, David Best (hereinafter
“Petitioner” or “Best”). Doc. 480.
Best was the leader of a large-scale prescription pain pill
ring centered in Beaver and Allegheny Counties. Following a
lengthy jury trial, Best was convicted on all but one count
of the 11 count superseding indictment. Doc. 96. After
careful consideration of Petitioner's Motion and Brief in
Support (doc. 480), the Government's Response, (doc.
489), the Petitioner's Reply (doc. 490), and the entire
extensive record in the case, including the trial transcript
of this matter and the sentencing proceedings over which this
Court presided, the Court will DENY Petitioner's Motion
to Vacate, Set Aside or Correct Sentence without a hearing
and without discovery.
Factual Background/Procedural History
was charged, along with several others, with a 16-count
superseding indictment charging a drug conspiracy involving
possession with intent to distribute oxycodone and Opana,
burglary of a pharmacy, and brandishment of a firearm in
furtherance of a drug trafficking crime, among other serious
crimes. The trial testimony established that Best was the
leader of this drug conspiracy network, and all of the other
co-defendants eventually pled guilty and many testified
against him in the trial of this matter.
graduated from Ambridge High School in 2004, with high
academic rankings as well as leadership positions, and he
received a Bachelor of Science degree from Waynesburg
University in 2009. From 2010 to 2011, Best was a graduate
student at Palmer School of Chiropractic in Iowa and left the
school for “health reasons, ” after being placed
on “warning probation.” Doc. 430 at 23. During
his time in Iowa, he had a history of theft and possession of
moved back to the Sewickley area in 2011 at approximately 24
years of age and lived with his parents (his father is an
airline pilot and mother also has a professional career).
Shortly thereafter, he became the leader of a conspiracy to
sell Oxycodone, Opana and other drugs. As part of that
conspiracy, he sought out Jade Gagianas, a woman he had known
in high school. Once he determined that she worked at a
pharmacy, he promised to marry her and have children with
her. The trial testimony established that Best used her as a
pawn in his scheme to steal prescriptions, which he both
consumed and sold, and in all she provided Best more than 40
prescriptions all written for large quantities of Opana and
Oxycodone. Best also brazenly burglarized the MedFast
pharmacy where Gagianas worked on three occasions, and stole
large quantities of drugs during these burglaries. He had
others who worked as “runners, ” passing forged
prescriptions, and he bought pills for sale and use from Tony
addition to all of this conduct, the testimony at trial
established that Best further set up a “sting”
operation after he determined that Ricky Dlubak, a
friend/acquaintance, had broken into the Best residence and
stolen between $9, 000.00 and $10, 000.00 in drug proceeds,
as well as Opana pills. Best obtained a revolver and lured
Dlubak back to his home, while he and a neighbor, who was
also a drug customer of Best's, laid in wait. Chris
Cerny, who knew nothing of Dlubak's plan to again steal
from Best, drove Dlubak to Best's home and waited in the
car, while Dlubak went inside the Best home. Best came out to
Cerny's car, and pointed the gun in his face and ordered
him into the house. Best found Dlubak hiding in a closet and
threatened to shoot him. Cerny escaped and called 9-1-1, and
when the police arrived at Best's home, they found Dlubak
trial testimony further established that the DEA made
controlled purchases of three 40-milligram Opana pills from
Best on April 18, 2013, and seven 30-milligram oxycodone
pills from Best on April 30, 2013.
was then charged with a federal indictment and later a
11-count superseding indictment, including causing the
overdose death of Christopher Radford, a charge for which he
was acquitted at trial.
further recount the procedural history of this case, on
September 6, 2013, Best plead not guilty to each count of the
superseding indictment. Best was represented by retained
counsel - - the well respected and prominent criminal defense
attorney, Stanton D. Levenson. The jury trial of this matter
lasted from March 31, 2014 to April 10, 2014, total of 8
trial days and 2 days of deliberation). Doc 299, and Doc.
320. Upon conclusion of the trial, Best was convicted by
a jury of the following crimes:
count (1s) of conspiracy to distribute and possession with
intent to distribute oxycodone and Opana in violation of
Title 21 U.S.C. Section 846.
counts (Counts 2s, 3s, 9s, 10s, 11s and 16s) for possession
with intent to distribute and/or distribution of Opana and
oxycodone, in violation of Title 21 U.S.C. Section 841(a)(1)
count (Count 5s) for possession and brandishment of a firearm
in furtherance of a drug trafficking crime, in violation of
Title 18 U.S.C. Section 924(c)(1)(A)(i) and (ii).
counts (Counts 6s, 7s and 8s) for burglary of a pharmacy, in
violation of Title 18 U.S.C. Section 2118(b) and 2.
however, was acquitted of one count (Count 4s) of possession
with intent to distribute and distribution of Opana and
oxycodone, schedule II controlled substances under Title 21
U.S.C. Section 841(a)(1) and (b)(1)(C).
testified at the trial of this matter, as well as numerous
other co-defendants. During Best's testimony, he admitted
to selling drugs and conspiring with others to do so,
starting in 2011; further, he admitted that he had Gagianas
steal blank prescriptions.
the sentencing proceedings, Best was sentenced to 288 months
imprisonment, which represented a downward variance of the
Sentencing Guideline Range of 346 to 411 months imprisonment,
and he filed a timely notice of appeal from the judgment of
conviction on December 18, 2014. Doc. 441.
December 23, 2014, the United States Court of Appeals
docketed Best's appeal, and on February 12, 2016,
Best's judgment of conviction was affirmed by the United
States Court of Appeals for the Third Circuit, in an
unpublished opinion. United States v. Best, 639
Fed.Appx. 848 (3d Cir. 2016).
February 26, 2016, Best filed a Petition for Rehearing and
Rehearing En Banc, which was denied. Then, on June
21, 2016, Best filed a Petition for Writ of Certiorari with
the Supreme Court of the United States, which was denied on
October 3, 2016. Therefore, the judgment of conviction became
final less than one year before the instant Motion was filed
(on August 22, 2017).
than the instant motion, no other petition or appeal is now
pending in any court. Regardless, the claims, which are
primarily in the nature of ineffective assistance of counsel,
may be brought in a collateral proceeding pursuant to Title
28 U.S.C. Section 2255, whether or not the petitioner could
have raised the claims on direct appeal. Massaro v.
United States, 123 S.Ct. 1690, 1694 (2003).
Grounds for Relief
who is now represented by Laurel Brandstetter, Esquire,
is in custody under a federal sentence of 288 months
imprisonment on the judgment of conviction, presents the
following seven (7) grounds for relief. His claims may be
best grouped into two categories: (1) allegations that his
constitutional right under the Sixth Amendment to effective
assistance of counsel (Grounds One, Two, Three, Five, Six and
Seven) was violated; and, (2) allegations that his Fourteenth
Amendment right to due process was violated (Ground Four).
seeks numerous avenues of relief. He argues for discovery,
for a hearing, for this Court to vacate his sentence, and for
a new trial. The Court finds that the record conclusively
shows that he is entitled to none of the relief requested,
and addresses the following arguments by Best.
One: Best was deprived of trial counsel and trial counsel
rendered ineffective assistance by engaging in an actual
conflict of interest by contemporaneously representing co-
defendant, Ryan Raithel.
Two: Trial counsel was ineffective by failing to investigate,
cross examine and by agreeing to stipulate to the value and
amount of controlled substances associated with the diversion
of controlled substances and burglaries of MedFast pharmacy.
Three: Trial counsel was ineffective by failing to
cross-examine and impeach government witnesses called to
testify in connection with the charge of brandishment of a
firearm in furtherance of a drug trafficking crime.
Four (stated as Ground Five in brief): Best was denied due
process because the prosecution failed to fully and
accurately disclose the nature of the cooperation and benefit
received by Dean Ciccone and Matthew Moody.
Five (stated as Ground Six in brief): Trial counsel was
ineffective by sleeping during “significant
portions” of Best's trial.
Six (stated as Ground Seven in brief): Trial counsel was
ineffective by failing to respond or object to the
introduction of other-acts evidence under Federal Rule of
Seven (stated as Ground Eight in brief): Appellate counsel
was ineffective by failing to raise several claims during the
direct appeal and trial counsel rendered ineffective
assistance by not securing acceptance of responsibility
credit for Best.
Standard of Review
U.S.C. Section 2255 provides, in relevant part:
Unless the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief,
the court shall cause notice thereof to be served upon the
United States attorney, grant a prompt hearing thereon,
determine the issues and make findings of fact and
conclusions of law with respect thereto. If the court finds
that the judgment was rendered without jurisdiction, or that
the sentence imposed was not authorized by law or otherwise
open to collateral attack, or that there has been such a
denial or infringement of the constitutional rights of the
prisoner as to render the judgment vulnerable to collateral
attack, 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.
to conduct a hearing is within the sound discretion of the
District Court. United States v. Lilly, 536
F.3d 190, 195 (3d Cir. 2008); United States v. Day,
969 F.2d 39, 41 (3d Cir. 1992)(quoting Government of the
Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir.1989),
cert. denied 500 U.S. 954 (1991)). In exercising
that discretion, “the [C]ourt must accept the truth of
the movant's factual allegations unless they are clearly
frivolous on the basis of the existing record. Further, the
court must order an evidentiary hearing to determine the
facts unless the motion and files and records of the case
show conclusively that the movant is not entitled to
relief.” Day, 969 F.2d at 41-42 (citation
omitted). See also Rules Governing Section 2255
Proceedings, Rules 4 and 8. The Court must view the factual
allegations in the light most favorable to the Petitioner.
Government of the Virgin Islands v. Weatherwax, 20
F.3d 572, 574 (3d Cir. 1994) (district court erred in failing
to conduct evidentiary hearing on petitioner's non-
frivolous allegations of ineffective assistance of counsel)
(subsequent history omitted). However, a Section 2255 Motion
may be dismissed without a hearing if: (1) its allegations,
accepted as true, would not entitle Petitioner to relief, or
(2) the allegations cannot be accepted as true because they
are contradicted by the record, inherently incredible, or
conclusions rather than statements of fact. United States
v. McCoy, 410 F.3d 124, 134 (3d Cir. 2005)(citations
order for Petitioner to establish counsel was ineffective, he
has the burden to show counsel's performance (i) was in
fact deficient and (ii) that the deficient performance so
prejudiced the defense as to raise doubt to the accuracy of
the outcome of the trial [or the sentence]; i.e., Petitioner
must demonstrate a reasonable probability that, but for
counsel's deficiency, the outcome of the trial [or
sentence] would have been different. Strickland v.
Washington, 466 U.S. 668, 687, 692 (1984). Counsel's
conduct presumptively “falls within the wide range of
reasonable professional assistance, ” and the
Petitioner “must overcome the presumption that, under
the circumstances, the challenged action might be considered
sound trial strategy.'” Id. at 689-90
(citation omitted). On the other hand, the mere fact that
counsel's challenged performance or tactic can be called
“strategic” in the sense it was deliberate, does
not answer the dispositive question of whether that decision
or tactic fell within the wide range of “reasonable
professional assistance.” ...