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Walker v. United States

United States District Court, M.D. Pennsylvania

October 31, 2019

BARRY WALKER, Petitioner
v.
UNITED STATES OF AMERICA, Respondent

          Kane, Judge

          Carlson, Magistrate Judge

          MEMORANDUM

         Presently before the Court is Petitioner Barry Walker (“Petitioner”)'s motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. Nos. 376, 383, 386), Magistrate Judge Carlson's May 6, 2019 Report and Recommendation (Doc. No. 418), recommending that Petitioner's § 2255 motion be denied, Petitioner's objections thereto (Doc. No. 419), Petitioner's amended § 2255 motion (Doc. No. 420), and Petitioner's motion requesting that his § 2255 proceedings be held in abeyance (Doc. No. 421). For the following reasons, the Court will adopt Magistrate Judge Carlson's Report and Recommendation, overrule Petitioner's objections, deny his § 2255 motion and amended § 2255 motions, and deny as moot his motion to hold § 2255 proceedings in abeyance.

         I. BACKGROUND

         On February 13, 2008, a grand jury returned a third superseding indictment charging Petitioner with: aiding and abetting possession with the intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a) and 18 U.S.C. § 2; conspiracy to possess with the intent to distribute cocaine base and possess a firearm in furtherance of a crime of violence or drug trafficking, in violation of 21 U.S.C. § 846; aiding and abetting the possession, carrying, and use of a firearm during, in relation to, and in furtherance of a drug trafficking offense, in violation of 18 U.S.C. §§ 924(c) and 2; possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1); aiding and abetting the possession, carrying, and use of a firearm during, in relation to, and in furtherance of a drug trafficking offense and attempted robbery, in violation of 18 U.S.C. §§ 924(c) and 2; attempted robbery affecting interstate commerce (Hobbs Act robbery), in violation of 18 U.S.C. § 1915(a); escape, in violation of 18 U.S.C. § 751(a); and possession with the intent to distribute five (5) grams and more of cocaine base, in violation of 21 U.S.C. § 841(a)(1). (Doc. No. 74.) On August 14, 2008, following a jury trial, Petitioner was convicted of all counts with the exception of possession of a firearm by a convicted felon. (Doc. No. 213.) On July 8, 2010, the Court sentenced Petitioner to 570 months' incarceration. (Doc. No. 329.) The United States Court of Appeals for the Third Circuit affirmed Petitioner's judgment of conviction and sentence on September 13, 2011. See United States v. Walker, 657 F.3d 160, 188 (3d Cir. 2011). The Supreme Court denied Petitioner's petition for a writ of certiorari on October 7, 2013. See Walker v. United States, 571 U.S. 850 (2013).

         On October 8, 2014, Petitioner, proceeding pro se, filed his initial § 2255 motion. (Doc. No. 376.) In that § 2255 motion, Petitioner raises the following claims for relief:

Ground One: The Court erred by upholding his escape conviction because he only absconded from a parole officer;
Ground Two: Trial counsel rendered ineffective assistance by: (1) failing to object to or investigate the facts of Petitioner's escape charge; (2) failing to request DNA and fingerprint testing of the drugs found in the glove compartment of the car in which Petitioner was arrested; (3) failing to object to the laboratory testing on the drugs and failing to call the technician as a witness; (4) failing to object to prosecutorial misconduct; and (5) failing to object to the Government's presentation of Officer Goshert as an expert in interstate commerce violations;
Ground Three: Appellate counsel rendered ineffective assistance by failing to challenge: (1) prosecutorial misconduct; (2) the Government's presentation of Officer Gosher as an expert; and (3) the fact that the Government did not stipulate to the amount of drugs involved;
Ground Four: Petitioner's rights under the Confrontation Clause of the Sixth Amendment were violated when the laboratory technician did not testify; and
Ground Five: The Government committed prosecutorial misconduct by presenting perjured testimony from witness Skylar Rhoades.

(Doc. No. 376 at 4-14.) In an Order dated February 18, 2015, the Court directed service of Petitioner's § 2255 motion upon the Government and directed the Government to file a response. (Doc. No. 379.) The Government filed its brief in opposition on March 10, 2015. (Doc. No. 381.)

         On March 15, 2016, attorney Melinda Ghilardi (“attorney Ghilardi”) filed a motion for leave to file a counseled supplemental § 2255 motion based on the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015)[1], on Petitioner's behalf. (Doc. No. 382.) Two (2) days later, Petitioner filed a pro se supplement to his § 2255 motion, asserting the following claims:

Ground Five: The Court gave erroneous jury instructions regarding Petitioner's charges under 18 U.S.C. § 924(c) pursuant to the Supreme Court's decision in Rosemond v. ...

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