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DIETSCH v. UNITED STATES

April 14, 1998

RAFAEL DIETSCH, Petitioner,
v.
UNITED STATES, Respondent.



The opinion of the court was delivered by: LECHNER

OPINION

 LECHNER, District Judge

 This matter is currently before the court on the motion (the "Rule 60(b) Motion") by the petitioner, Rafael Dietsch ("Dietsch"), for relief from a final judgment, pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. *fn1" Specifically, Dietsch seeks relief from a 25 October 1995 opinion and order that denied his 28 U.S.C. § 2255 petition for a writ of habeas corpus (the "Habeas Petition"). *fn2"

 In the Rule 60(b) Motion, Dietsch argues he is entitled to relief because he asserts this court failed to address one of the issues raised in the Habeas Petition, namely, whether the failure of his trial counsel to object to the Jewell instruction constituted ineffective assistance of counsel. See Motion at 1-2. Dietsch also argues that this court erred by failing to grant a judgment of acquittal. See id. at 2.

 For the reasons set forth below, the Rule 60(b) Motion is denied.

 Background

 A. Procedural History of the Rule 60(b) Motion

 On 12 November 1997, Dietsch filed the Rule 60(b) Motion. An order (the "First Order") was issued on 8 December 1997 directing Dietsch to file an appropriate brief explaining why the Rule 60(b) Motion should not be denied as untimely; the First Order also sought an explanation for the delay in filing the Rule 60(b) Motion. See First Order. On 22 December 1997, an order (the "Second Order") was issued denying the Rule 60(b) Motion as untimely because Dietsch failed to submit a brief as directed by the First Order. See Second Order.

 On 7 January 1998, Dietsch filed a motion for relief (the "Motion for Relief") from the Second Order on the ground that counsel for Dietsch never received the First Order. On 7 January 1998, an order (the "Third Order") was issued granting the Motion for Relief and providing Dietsch with additional time to comply with the First Order. See Third Order. On 8 January 1998, an order was issued vacating the Second Order. The Supplemental Brief was received in chambers on 29 January 1998. The Opposition Brief was received in chambers on 19 February 1998. To date, Dietsch has not submitted a reply brief. This opinion was held in abeyance anticipating a reply brief. Because more than a sufficient opportunity has been afforded Dietsch to submit a reply brief, the Rule 60(b) Motion is decided on the submissions received to date.

 B. Facts3

 On 28 August 1992, Dietsch and two co-defendants were indicted for conspiring to distribute and to possess with intent to distribute at least five kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1) *fn4" ("Section 841") and 846 *fn5" ("Section 846"). On 12 November 1992, both Dietsch and the co-defendants were found guilty by a jury of violating Section 846.

 On 22 February 1993, Dietsch was sentenced to 121 months imprisonment and five years supervised release. On 24 February 1993, a judgment of conviction and sentence (the "Judgment of Conviction") was entered on the docket.

 Dietsch filed a timely Notice of Appeal of the Judgment of Conviction on 22 February 1993. On appeal, Dietsch argued that the evidence introduced at trial was insufficient to support his conviction for participation in the conspiracy. Dietsch also contended he was denied effective assistance of counsel at trial as a result of the failure of his counsel to file various motions. On 21 December 1993, the Circuit affirmed the Judgment of Conviction in all respects. See United States v. Bautista, 16 F.3d 405 (3d Cir. 1993). The Circuit declined, however, to address the ineffective assistance of counsel claim, stating that it was more appropriately raised in a habeas corpus petition. Dietsch does not appear to have filed a petition for a writ of certiorari with the Supreme Court in connection with the Judgment of Conviction.

 On 14 November 1994, Dietsch filed the Habeas Petition, pursuant to 28 U.S.C. § 2255 ("Section 2255"). In the Habeas Petition, Dietsch asserted (1) the Judgment of Conviction was imposed in violation of the Due Process Clause of the Fifth Amendment because the jury verdict was not unanimous; (2) the jury instructions were flawed because the Jewell instruction should not have been given; and (3) he did not receive effective assistance of counsel because his counsel failed (a) to object to the alleged negative reaction to the jury's repeated requests for readbacks of trial testimony and (b) to argue for a downward departure from the sentencing guidelines. See Memorandum of Law in Support of the Habeas Petition at 9-15. Dietsch did not argue in the Habeas Petition that the failure of his attorney to object to the Jewell instruction constituted ineffective assistance of counsel. See id. Notably, the attorney who represents Dietsch in connection with the Rule 60(b) Motion also represented Dietsch in connection with the Habeas Petition.

 On 28 December 1994, the Government filed an answer (the "Answer") to the Habeas Petition. On 13 January 1995, Dietsch filed a "traverse" *fn6" (the "Traverse") to the Answer. In the Traverse, Dietsch asserted for the first time, among other things, that "defense counsel rendered ineffective assistance in not objecting to a Jewell instruction." Traverse at 7-8.

 By Opinion and Order, dated 25 October 1995, (the "25 October 1995 Opinion") the Habeas Petition was denied in all respects. In connection with the ineffective assistance of counsel claims, the court stated:

 
There is no evidence in the record to support Dietsch's contentions that the court reacted negatively to the jury's requests for readbacks of the trial testimony. Accordingly, there was no reason for Dietsch's trial counsel to object.
 
* * *
 
Dietsch has provided no evidence to justify a finding that but for counsel's alleged errors, the outcome of the [sentencing] proceedings would have been different. As evidenced by the record, Dietsch's trial counsel made timely objections to this sentencing and provided adequate effective assistance.

 25 October 1995 Opinion at 19, 24. Although the 25 October 1995 Opinion did not specifically address the claim by Dietsch, first raised in the Traverse, that his counsel rendered ineffective assistance by not objecting to a Jewell instruction, it did state:

 
Dietsch has not satisfied his claim of ineffective assistance of counsel. Dietsch has failed to provide a reasonable probability that his counsel's alleged deficient performance deprived Dietsch of any substantive or procedural right to which he was entitled, thereby rending his trial unfair.
 
The alleged omissions of counsel were not outside the wide range of professionally competent assistance. Accordingly, due to counsel's sound professional judgement, Dietsch is not entitled to relief for ineffective assistance of counsel. The issues raised within do not constitute a defect resulting in a complete miscarriage of justice. Dietsch is not entitled to habeas corpus relief.

 25 October 1995 Opinion at 24. These statements were intended to apply to all ineffective assistance of counsel claims asserted by Dietsch in the Habeas Petition and the Traverse, including the claim that counsel for Dietsch was ineffective for failing to object to the Jewell instruction.

 Dietsch appealed (the "Habeas Appeal") the 25 October 1995 Opinion. On 19 June 1996, the Circuit issued an Opinion (the "19 June 1996 Circuit Opinion") affirming the 25 October 1995 Opinion. See Moving Brief at 2. The 19 June 1996 Circuit Opinion stated that one of the issues raised by Dietsch on appeal was:

 
3. Whether the district court abused its discretion in denying the motion without holding an evidentiary hearing on the ineffective assistance of counsel claim.

 19 June 1996 Circuit Opinion at 2. *fn7"

 On 25 July 1996, the Circuit granted a motion by Dietsch for a rehearing on the Habeas Appeal and issued an Opinion (the "25 July 1996 Circuit Opinion") that amended the 19 June 1996 Circuit Opinion by means of a footnote that stated:

 
No ineffective assistance of counsel claim was properly before the district court. We express no view as to whether such a claim may now be ...

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