United States District Court, D. New Jersey
August 19, 2005.
CHARLES RODRIGUEZ, Petitioner,
UNITED STATES OF AMERICA, Respondent.
The opinion of the court was delivered by: JOSEPH GREENAWAY, District Judge
[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] OPINION
Petitioner Charles Rodriguez ("Petitioner") has filed the
instant pro se motion to vacate his sentence, pursuant to
28 U.S.C § 2255 ("§ 2255"). Petitioner contends that his sentence
should be vacated for four reasons. First, Petitioner claims that
this Court erred by sentencing him under a statute that was not
charged in the indictment. Second, Petitioner claims that
Respondent (or "the Government") violated his due process rights
by conducting a sting operation targeted at Petitioner. Third,
Petitioner claims that his counsel's ineffective assistance
violated his Sixth Amendment right to counsel. Finally,
Petitioner claims that Blakely v. Washington, 542 U.S. 296
(2004), should apply to the instant case, and that based upon
Blakely, his sentence should be vacated. For the reasons set
forth below, Petitioner's motion is denied. FACTS*fn1
On July 19, 1997, a bank robbery took place at the Corestates
Bank in Woodlynne, New Jersey. This robbery was videotaped on the
bank's surveillance cameras. The tape shows Petitioner, his
brother (Joseph Rodriguez), and one or two other males entering
the bank with guns resembling assault rifles. After stealing over
$64,000, they escaped in a stolen car.
On May 23, 1998, Petitioner, his brother, and another male
entered the Commerce Bank in Moorestown, New Jersey. This robbery
also was recorded by the bank's surveillance cameras.
In August of 1998, the Federal Bureau of Investigation ("FBI")
sought to apprehend Petitioner, and solicited the assistance of
Petitioner's cousin, Fernando Flores. Flores previously had been
a police officer but had resigned from the force.*fn2 He
agreed to work with law enforcement authorities and worked
closely with them to capture Petitioner. Apparently upon Flores'
initial contact with Joseph Rodriguez, the FBI learned that the
Rodriguez brothers were interested in "doing a six figure job."
At the instruction of the FBI, Flores told Joseph about a
fictional friend who worked as a guard of an armored car. Flores
told Joseph that the armored car was scheduled to service an ATM
machine at the Walt Whitman rest stop of the New Jersey Turnpike
in Cherry Hill, and that the guard had agreed to allow them to
stage a robbery of the armored car in exchange for a portion of
The robbery was scheduled to take place on September 1, 1998.
Roughly one week before the robbery was scheduled to take place, Flores, at the
FBI's direction, instructed Joseph, and another participant, Jose
Soto, to bring their weapons to Flores' apartment to plan the
robbery. On August 29, 1998, Joseph and Soto showed up at Flores'
apartment with bags containing weapons, clothing, and other gear.
On the day of the robbery, the group (Petitioner, Joseph, Soto,
and Flores) drove two cars one was a stolen Buick and the other
was the getaway car to a neighborhood near the rest stop, where
they parked the getaway car. The four then drove in the stolen
Buick to the rest stop. Everyone except Flores was armed.
At about 9:00 a.m, the group arrived in the stolen Buick at the
rest stop. Law enforcement authorities were present in various
locations at the rest stop. As the Buick drove around the parking
lot, law enforcement apparently observed Soto grabbing a weapon
and pointing it in the direction of the FBI SWAT team, which then
opened fire. The driver (not identified in Petitioner's motion
papers) continued to drive, despite the gunfire, until a tow
truck operated by the FBI struck the car. Petitioner was inside
the Buick when he was arrested.
On March 16, 1999, the grand jury in the District of New Jersey
returned an eleven-count indictment charging Petitioner with: (1)
conspiracy to commit bank robberies and the robbery of an armored
car, in violation of 18 U.S.C. § 371 (Count 1); (2) robbery of
the Corestates Bank on July 19, 1997, in violation of
18 U.S.C. § 2113(a) (Count 2); (3) use of a firearm during the commission of
the Corestates Bank robbery, in violation of U.S.C. § 924(c)(i)
(Count 3); (4) robbery of the Commerce Bank on May 23, 1998, in
violation of 18 U.S.C. § 2113(a) (Count 4); (5) use of a firearm
during the commission of the Commerce Bank robbery, in violation
of 18 U.S.C. § 924(c)(i) (Count 5); (6) carjacking, in violation of
18 U.S.C. § 2119 (Count 6); (7) obstruction of commerce by the
attempted robbery of the Loomis armored car, in violation of
18 U.S.C § 1951(a) (Count 7); (8) use of an automatic weapon during
the attempted robbery of the Loomis armored car, in violation of
18 U.S.C. 924(c)(i) (Count 8); and (9) possession of a firearm by
a felon, in violation of 18 U.S.C. 922(g)(1) (Count 9). (Ex. A to
Resp. Br.) On March 23, 1999, Petitioner pled not guilty to all
counts, and proceeded to trial. (Docket No. 33 [Cr. No. 98-547].)
On July 9, 1999, the jury returned a verdict convicting
Petitioner on all counts. (Docket No. 85 [Cr. No. 98-547].)
On April 6, 2000, this Court sentenced Petitioner to a term of
life imprisonment. (Docket No. 123 [Cr. No. 98-547].) On April 7,
2000, Petitioner filed a pro se Notice of Appeal with the
United States District Court in the District of New Jersey.
(Docket No. 128 [Cr. No. 98-547].) On January 21, 2003, the Third
Circuit Court of Appeals affirmed Petitioner's sentence. (Docket
No. 142 [Cr. No. 98-547].) On March 24, 2003, the Supreme Court
of the United States denied Petitioner's petition for a writ of
certiorari. (Cr. No. 02-9058.)
On January 14, 2004, Petitioner filed a petition ("Petition")
to vacate, set aside, or correct his sentence, pursuant to
28 U.S.C. § 2255, and on August 26, 2004, Respondent filed its
answer. On September 28, 2004, Petitioner filed his reply.
I. 28 U.S.C. § 2255
Section 2255 allows a prisoner in custody to file a petition
for a writ of habeas corpus with the sentencing court on the
grounds that: (1) the imposed sentence violated the United States
Constitution or laws; (2) the court did not have jurisdiction;
(3) the sentence exceeded the maximum allowed by law; or (4) the sentence is subject to
collateral attack on other grounds. See 28 U.S.C. § 2255. "[A]
motion to vacate [a] sentence under 28 U.S.C. § 2255 is addressed
to the sound discretion of the district court." United States v.
Williams, 615 F.2d 585, 591 (3d Cir. 1980).
II. Collateral Review
Habeas corpus does not encompass all sentencing errors because
it is not a substitute for direct appeal. See Reed v. Farley,
512 U.S. 339, 354 (1994); United States v. Addonizio,
442 U.S. 178, 184 (1979). Errors that justify reversal on direct appeal
may not necessarily be sufficient to support collateral relief.
See Addonizio, 442 U.S. at 184.
Where a prisoner fails to "raise his claim on direct review,
the writ [of habeas corpus] is available only if the [prisoner]
establishes `cause' for the waiver and shows `actual prejudice
resulting from the alleged violation.'" Reed, 512 U.S. at 354.
"To show cause, a petitioner must establish that `some external
impediment' prevented him from raising the claim," such as
interference by officials, the unavailability of evidence at the
time, or the ineffective assistance of counsel. See Wise v.
Fulcomer, 958 F.2d 30, 34 (3d Cir. 1992) (quoting McCleskey v.
Zant, 499 U.S. 467, 497 (1991)). "Prejudice exists where `errors
at trial . . . worked to [petitioner's] actual and substantial
disadvantage, infecting his entire trial with error of
constitutional dimensions.'" Wise, 958 F.2d at 34 (quoting
Murray v. Carrier, 477 U.S. 478, 494 (1986)).
Alternatively, where a prisoner has raised, but lost, his claim
on direct review, collateral relief is available under § 2255
when the claimed error of law constitutes "a fundamental defect
which inherently results in a complete miscarriage of justice."
Addonizio, 442 U.S. at 185. As such, the error must be
fundamental and present "exceptional circumstances where the need
for the remedy afforded by the writ of habeas corpus is apparent."
Davis v. United States, 417 U.S. 333, 346 (1974).
This Court, in its discretion, may decline to address issues in
a petitioner's collateral attack that previously were addressed
to the Third Circuit Court of Appeals on direct appeal. See
United States v. Orejuela, 639 F.2d 1055, 1057 (3d Cir. 1981)
(stating that "[o]nce a legal argument has been litigated and
decided . . . it is within the discretion of the district court
to decline to reconsider those arguments if raised again in
collateral proceedings under 28 U.S.C. § 2255").
Petitioner asserts four separate bases for relief. The first
two claims are treated together because they both fail to merit
collateral review. Petitioner's ineffective assistance of counsel
claim and Blakely-related claim are examined separately, and
also shall be denied for the reasons set forth below.
I. Collateral Review
Petitioner raises two claims on which he failed to seek direct
review. First, he contends that his sentence conflicts with
Apprendi v. New Jersey, 530 U.S. 466 (2000). In addition, he
asserts that the Government's conduct leading up to his arrest
was egregious and violated his right to due process. Because
Petitioner has failed to persuade this Court that these claims
merit collateral review, they are denied.
A. Apprendi Claim
Petitioner first claims that his sentence should be vacated
because the sentence he received in connection with his
conviction under 18 U.S.C § 924(c) contravenes Apprendi and its progeny.*fn3 In Apprendi, the Supreme Court of the
United States held that "other than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond
a reasonable doubt." Apprendi, 530 U.S. at 490.
Petitioner contends that, in his case, there were facts that
were not charged in the indictment but which increased the
penalty for his conviction beyond the prescribed statutory
maximum. He asserts that these facts should have been submitted
to the jury and proved beyond a reasonable doubt. Specifically,
Petitioner contends that both the prior conviction determination
of § 924(c)(1)(C)(i) and the machine gun determination of §
924(c)(1)(C)(ii) were facts which should have been submitted to
the jury. (Pet. Br. at 3.) Therefore, Petitioner contends that he
should be re-sentenced according to the facts reflected in the
Respondent counters that this claim does not merit collateral
review, because Petitioner has not demonstrated cause for failing
to raise this claim on direct review, and there is nothing about
this Apprendi claim that Petitioner did not know at the time of
the direct appeal. (Resp. Br. at 6.) Furthermore, Respondent
argues that, even if Petitioner could show cause for failing to
raise the claim on direct review, there is no prejudice to
Petitioner if this Court were to decline collateral review of
this claim now. The jury actually found, beyond a reasonable
doubt, that Petitioner had a prior conviction for purposes of §
924(c)(i), and furthermore, prior convictions are excepted from Apprendi's scope. Additionally, the jury
found that the particular firearm involved was a machine gun, as
set forth in § 924(c)(1)(C)(ii), and therefore, Petitioner has no
basis for relief under § 924(c).
This Court agrees that this claim should be denied. First,
Petitioner failed to raise the Apprendi claim on direct review,
and has not established cause for this failure. Second, even if
it were proper for Petitioner to raise this claim on a collateral
attack, he has not shown that declining to hear the claim now
will cause prejudice to him.
If a defendant fails to raise his claim on direct review, he
waives his right to raise the issue for collateral review, unless
he can satisfy two requirements. See Reed, 512 U.S. at 354.
He must establish not only "cause" for his failure to raise the
issue earlier but also actual prejudice if the alleged violation
were to remain unaddressed. Id.
To show cause, a petitioner must demonstrate that "some
external impediment" prevented him from raising the claim, such
as interference by officials, the unavailability of evidence at
the time, or ineffective counsel. See Wise, 958 F.2d at 34.
Petitioner does not assert anywhere in his brief an explanation
for not raising this Apprendi claim on direct appeal. Having
failed to show cause, this Court need not examine whether
Petitioner has demonstrated prejudice.*fn4 Accordingly, this
basis for relief under § 2255 is denied. B. Due Process Claim
Petitioner claims that the Government engaged in egregious
conduct in an effort to apprehend him, and thereby deprived him
of his right to due process. More specifically, Petitioner claims
that Respondent, frustrated by a host of bank robberies that it
was unable to solve, needed to hold someone accountable for these
robberies and orchestrated a scheme to peg responsibility for
those crimes on Petitioner. (Pet. Br. at 5.) Petitioner contends
that his alleged gang association, past criminal record, alleged
violent behavior, and his status as a fugitive for the attempted
murder of a police officer made him an appealing target. (Pet.
Br. at 5.)
Petitioner suggests that, prior to the sting operation that
resulted in his apprehension at the Walt Whitman rest stop,
Respondent attempted to create a nexus between Petitioner and the
bank robberies in the public eye through an aggressive media
campaign. (Pet. Br. at 6.) Specifically, Petitioner contends,
that in various news reports, including "America's Most Wanted,"
Respondent helped to portray Petitioner as a criminal capable of
committing any type of crime. (Pet. Br. at 6.) For instance,
Petitioner asserts that Respondent, among other things, likened
him to Scarface and nicknamed him "Crazy Charlie." (Pet. Br. at
6.) Petitioner also argues that many of the facts used to vilify
him were specious and completely fabricated. For example,
Petitioner claims that Respondent told the media that Petitioner
shot a police officer with an automatic weapon of .223 caliber,
the same weapon used in the commission of the bank robberies
(Pet. Br. at 6), even though no such proof was offered at trial.
Petitioner contends that this conduct is clear evidence that the
Government was attempting to tie Petitioner to the bank
robberies. (Pet. Br. at 6.) Petitioner further contends that the sting was unnecessary, and
that his arrest could have been secured through simpler, more
conventional methods. Petitioner claims that the FBI employed the
services of Flores, who initiated contact with Petitioner, not to
capture Petitioner, but instead to connect Petitioner to the bank
robberies and to create additional criminal charges against
Petitioner. (Pet. Br. at 7.) Petitioner argues that the sting
operation (involving the armored car robbery at the rest stop)
strengthened the Government's desired connection between
Petitioner and the bank robberies, because the attempted armored
car robbery at the rest stop had the same modus operandi as the
unsolved bank robberies. (Pet. Br. at 5.) Finally, Petitioner
also claims that Respondent had a contingent fee arrangement with
Flores to produce evidence against him. (Pet. Br. at 9.)
Petitioner concludes that Respondent's conduct as a whole
violated his right to due process. (Pet. Br. at 10.)
Respondent argues that Petitioner cannot re-litigate a claim
that he and his co-defendants raised unsuccessfully both pretrial
and on direct appeal. (Resp. Br. at 9-10.) Furthermore,
Respondent contends that, even if this claim is reviewed by this
Court, Petitioner failed to establish cause for failing to raise
this claim on direct review, or prejudice if this Court were to
decline to hear the claim. (Resp. Br. at 9-10.)
This Court agrees that Petitioner's claim of "pre-targeting"
does not merit collateral review. This claim, which, he asserts,
violated his right to due process, is substantively
indistinguishable from the claim of outrageous government conduct
raised on direct review by Petitioner and his
co-defendants.*fn5 Indeed, upon direct review, the Court of
Appeals for the Third Circuit denied Petitioner's outrageous government conduct claim.
(Ex. D to Resp. Br.) Where a prisoner raises, and loses, a claim
on direct review, "collateral relief is available under § 2255
when the claimed error of law constitutes `a fundamental defect
which inherently results in a complete miscarriage of justice.'"
Addonizio, 442 U.S. at 185. Here, Petitioner re-articulates the
basis for his prior outrageous-government-conduct claim, and
points to little else upon which this Court could conclude that a
complete miscarriage of justice would result if this Court were
to decline collateral review of Petitioner's assertions.
Therefore, this basis for relief is denied.
II. Ineffective Assistance of Counsel
Petitioner claims that his sentence should be vacated based on
ineffective assistance of counsel.*fn6 Petitioner contends
that counsel's assistance was ineffective for three reasons.
First, his trial counsel failed to call Benita Birchfield,
Flores' common law wife, as a witness. Petitioner claims that she
could have rebutted Flores' testimony that Petitioner had offered
to supply various firearms for the attempted armored car robbery.
(Pet. Br. at 12-13.) Second, Petitioner claims that trial counsel
failed to investigate the alleged relationship between Flores and
Roy Whitmore, a police officer from the Merchantville Police
Department who also was a member of the FBI team organized to
apprehend Petitioner. (Pet. Br. at 14.) Third, counsel neglected
to file any motions concerning prejudicial pretrial publicity in
connection with the impaneling of the grand jury. (Pet. Br. at 15.) For the following
reasons, this Court concludes that these bases fail to establish
a claim of ineffective assistance of counsel.
A claim of ineffective assistance of counsel essentially
asserts a violation of a person's Sixth Amendment right to
counsel. To establish this claim, a defendant must prove that:
(1) counsel's performance fell below an objective standard of
reasonableness; and (2) counsel's deficient performance
prejudiced the defendant, resulting in an unreliable or
fundamentally unfair outcome of the proceedings. See
Strickland v. Washington, 466 U.S. 668, 687 (1984). Judicial
scrutiny of counsel's performance must be highly deferential.
See id. at 689. In determining whether assistance of counsel
has been ineffective, a court "must indulge a strong presumption
that counsel's conduct falls within the wide range of reasonable
professional assistance." Id. If a defendant fails to satisfy
one prong of the Strickland test, it need not consider the
other. Id. at 697 (holding that "there is no reason for a court
deciding an ineffective assistance claim . . . to address both
components of the inquiry if the defendant makes an insufficient
showing on one").
A. Benita Birchfield
Petitioner asserts that counsel's failure to call Benita
Birchfield, Flores' common law wife, as a witness at trial
amounts to "per se" ineffective assistance of counsel. (Pet. Br.
at 12.) According to Petitioner, Birchfield could have testified
that the weapons used in the attempted armored car robbery were
supplied by Flores, not by Petitioner. (Pet. Br. at 12-13.)
Because Petitioner has not shown that counsel's failure to call
Birchfield falls short of an objective standard of
reasonableness, this asserted error is insufficient to establish
a claim of ineffective assistance of counsel. To determine whether counsel's failure to call a witness was
objectively unreasonable, the first prong of the Strickland
standard, a court may consider whether a petitioner has
established: (1) the identity and existence of the witnesses; (2)
that his counsel was informed of the existence of the witnesses
or should have known of them prior to trial; (3) that the
witnesses were prepared to cooperate and would have testified on
the petitioner's behalf; and (4) that the absence of the
witnesses' testimony prejudiced the petitioner so as to deny him
a fair trial. See Marlo v. Klem, No. 02-2850, 2003 U.S. Dist.
LEXIS 25001, at *24 (E.D. Pa. Sept. 22, 2003) (suggesting
consideration of these factors).
Although this Court is not bound to consider these factors, an
examination of them is helpful to the present inquiry into
whether counsel was ineffective, for purposes of the
Sixth Amendment, for failing to call Birchfield. First, with respect to
Birchfield, Petitioner has identified Birchfield, the allegedly
key witness to this case. (Pet. Br. at 12.) Second, though
Petitioner does not claim to have told counsel about Birchfield,
Petitioner does suggest that defense counsel should have been
aware of Birchfield. Petitioner asserts that "something cloudy
was permeating through the air that could have alerted defense
counsel as to the importance of Ms. Birchfield [sic] testimony."
(Pet. Br. at 13.) Even if this Court were to conclude that the
first two factors were satisfied, Petitioner cannot establish
that Birchfield was prepared to cooperate on his behalf. Although
Petitioner asserts in his brief that Ms. Birchfield was available
to testify, and would have testified to various alleged facts
(Pet. Br. at 12-13), Petitioner neither alleges nor offers
evidence that helpful testimony from Ms. Birchfield was
forthcoming or would have been available upon reasonable
investigation. Petitioner simply alleges that Birchfield would
have made statements that would have discredited Flores'
testimony (Pet. Br. at 12-13), but "vague and conclusory allegations that some unspecified and
speculative testimony might have established the petitioner's
defense do not meet the petitioner's burden of proof." See
Zettlemoyer v. Fulcomer, 923 F.2d 284, 298 (3d Cir. 1991).
This Court is not persuaded by Petitioner's claim that
Birchfield would have provided relevant testimony, or that such
testimony would have been helpful. Therefore, it is difficult to
conclude that counsel performed in an objectively unreasonable
manner by not calling her as a trial witness, or that the absence
of her testimony caused Petitioner prejudice. In conclusion, in
light of Petitioner's inability to meet either prong of the
Strickland test, this basis for a claim of ineffective
assistance of counsel is rejected.
B. Roy Whitmore
The second basis for Petitioner's ineffective assistance of
counsel claim is that counsel failed to call Roy Whitmore, a
police lieutenant of the Merchantville Police Department, as a
witness at trial. Here, too, this Court may consider the factors
set forth in Marlo, supra, in determining whether the failure
to call a witness at trial demonstrates ineffectiveness of
counsel. This Court concludes that this asserted error does not
establish a claim of ineffective assistance of counsel.
Essentially, Petitioner questions the propriety of the
relationship between Whitmore and the FBI, and that between
Whitmore and Flores. Petitioner asks, "Why did the FBI contacted
[sic] specifically Whitmore and what was the connection between
this man and informant Flores. [sic]" (Pet. Br. at 14.)
Petitioner seems suspicious of Whitman's assignment to the FBI
task force in charge of capturing Petitioner because he believes
that Whitmore has a close relationship with Flores. He asserts
that "[Whitmore's] relation to Fernando Flores was not casual but
deeply rooted, more like a police-informant relation." (Pet. Br. at 14.)
Petitioner alleges that Whitmore introduced Flores to the FBI,
and that Whitmore "held guns for safekeeping at his house for
Flores, and represented him on criminal cases." (Pet. Br. at 14.)
Furthermore, Petitioner also is suspicious of Whitmore because he
apparently denied any involvement with the FBI task force when
confronted by defense investigators. (Pet. Br. at 14.) According
to Petitioner, if his attorney had questioned Whitmore, Whitmore
might have held or provided information that could have helped to
reveal a cover up and misconduct by the Government.
In this Court's view, the fourth Marlo consideration, whether
the absence of Whitmore's testimony prejudiced Petitioner so as
to deprive him of a fair trial, is critical here. First, it is
not clear how Whitmore's testimony could have revealed government
misconduct or a cover up. The testimony that Petitioner thought
his counsel could have sought or obtained from Whitmore remains a
mystery, and thus, in the absence of any understanding as to what
the proffered testimony might have been, it is impossible for
this Court to conclude that the omission of trial testimony from
Whitmore prejudiced Petitioner in any way. A showing of actual
prejudice may not be based on "mere speculation about what the
witnesses [trial counsel] failed to [utilize] might have said."
United States v. Gray, 878 F.2d 702, 712 (3d Cir. 1989).
Thus, because Petitioner cannot demonstrate that counsel's
failure to call Roy Whitmore as a trial witness was objectively
unreasonable or caused him prejudice, as required under
Strickland, Petitioner cannot establish a claim of ineffective
assistance of counsel on this basis.
C. Pretrial Publicity
Petitioner contends that counsel's failure to raise the issue
of prejudicial pretrial publicity constitutes ineffective
assistance of counsel. (Pet. Br. at 15.) He seeks relief on two
grounds. First, Petitioner asserts that "the pretrial publicity in the
form of misrepresentation of the facts by the media infected the
grand jury proceedings with unfairness which violated movant's
rights under the due process and equal protection clauses of the
Fourteenth Amendment." (Pet. Br. at 16.) According to Petitioner:
[D]ue to the extensive publicity during the period
prior to petitioner's indictment the attorney should
have filed a motion to dismiss the indictment, or in
the alternative a motion pursuant to Rule 6(e) of the
Federal Rules of Criminal Procedure, permitting him
to inspect the minutes of all proceedings before the
grand jury which indicted appellant and a motion for
an order pursuant to the same rule allowing him to
question or depose the members of the grand jury.
(Pet. Br. at 24.) Petitioner states that what is at issue is
"whether when the grand jury was impaneled[,] precautions
required by the statute and its controlling judicial
interpretation to insure [sic] a grand jury that would not be
tainted by prejudice against petitioner were taken." (Pet. Br. at
24.) Petitioner concludes that counsel's failure to raise any of
the aforementioned motions, pursuant to 28 U.S.C. § 1867, which
governs challenges to grand and petit jury selection, amounted to
ineffective assistance of counsel.
Additionally, in his reply brief, Petitioner adopts a claim
that his brother, Joseph Rodriguez, raised in a § 2255 motion
that was filed with, and denied by, this Court. (Civil Action No.
04-85.) Petitioner's brother had contended that pretrial
publicity surrounding the offenses for which they were charged
had affected the trial jury, and therefore, that his counsel
should have raised this issue with this Court. His brother did
not claim, as Petitioner does, that pretrial publicity affected
the impaneling of the grand jury, and that counsel should have
sought relief for Petitioner on this ground.*fn7 Respondent argues that the notion that counsel should have
moved to dismiss the indictment or to open the grand jury
proceedings, based on pre-indictment publicity, cannot establish
a claim of ineffective assistance of counsel, because Petitioner
cannot show that he suffered prejudice as a result of counsel's
failure to raise this issue with the Court. Respondent contends
that Petitioner has not demonstrated that there was a reasonable
probability that, had counsel raised the issue of pretrial
publicity with this Court as a basis for opening grand jury
proceedings or dismissing the indictment, the outcome of the case
would have been different.
According to Respondent, Petitioner has not shown that counsel
even could have met the requisite burden of demonstrating a
"particularized need" for opening the grand jury proceedings.
Respondent underscores that disclosure of grand jury matters,
when requested, is denied routinely in all but extraordinary
circumstances, and that this case hardly presents such special
circumstances. (Resp. Br. at 21) (citing Costello v.
United States, 350 U.S. 359, 364 (1956)). Furthermore, Respondent
argues that Petitioner has failed to demonstrate that, in his
case, counsel could have shown that the need for disclosure of
grand jury proceedings outweighed the long tradition of
protecting the secrecy of grand jury proceedings. (Resp. Br. at
20) (citing Pittsburgh Plate Glass Co. v. United States,
360 U.S. 395, 400 (1959)). Thus, if Petitioner cannot establish that
he had a "particularized need" for the disclosure of opening up
the entire grand jury proceeding, or that such need trumped the
general secrecy protecting such proceedings, Petitioner cannot
assert that there was a reasonable probability that, had counsel sought to disclose the grand jury proceedings or to dismiss the
indictment based on pre-indictment publicity, the outcome of the
case would have been different.
Respondent points to other reasons why counsel's failure to
challenge the pre-indictment publicity surrounding the case falls
short of establishing a Sixth Amendment claim of ineffective
assistance. Respondent argues, for example, that there is no
clearly established right of a defendant to a grand jury that has
not been adversely affected by pre-indictment publicity, and in
any event, that Petitioner has presented no evidence that any of
the grand jurors were aware of, or adversely affected by, the
pretrial publicity. (Resp. Br. at 23, 26.) Finally, Respondent
also asserts that the verdict by the trial jury vitiates any
claim of problems related to the grand jury, because even if the
grand jury's indictment of Petitioner was based in part upon
prejudicial, pre-indictment publicity, there is no evidence that
the trial jury was affected similarly when it rendered its
verdict. (Resp. Br. at 26.) Respondent notes that this Court
explored the issue of pretrial publicity surrounding the case
during jury selection. (Resp. Br. at 27.)
This Court agrees that Petitioner has failed to satisfy the
requisite burdens of establishing a claim of ineffective
assistance of counsel. Although Petitioner sets forth the details
of some of the press coverage that his case received, this Court
ultimately cannot conclude that counsel performed unreasonably by
not moving to open the grand jury proceedings or to dismiss the
indictment on this basis. First, judicial scrutiny of counsel's
performance is highly deferential. See Strickland,
466 U.S. at 689. Second, to the extent that counsel considered the issue
of pretrial publicity, and decided not to raise Petitioner's
concern about pre-indictment publicity with this Court, that
determination was not objectively unreasonable, as the disclosure
of grand jury proceedings is justified only where the "ends of
justice" so require. See Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400 (1959); see
also United States v. McDowell, 888 F.2d 285, 289 (3d Cir.
1989) ("As a matter of public policy, grand jury proceedings
generally must remain secret except where there is a compelling
necessity."). If, as Petitioner has demonstrated here, he could
not have shown the sort of "particularized need" for disclosure
of grand jury proceedings, this Court cannot conclude that it was
objectively unreasonable for counsel not to seek minutes of those
of proceedings, or otherwise seek an indictment based on
publicity surrounding the case.
To the extent counsel did not consider the issue of
pre-indictment publicity, or considered the issue but declined to
raise it with this Court, this Court has difficulty concluding
that, in either circumstance, Petitioner suffered prejudice. In
light of the general public policy against disclosure of these
secret proceedings, see McDowell, 888 F.2d at 289, as well as
the absence of a "particularized need" for disclosure of the
proceedings, and finally, the "substantial discretion" vested in
the district courts in determining whether to open grand jury
proceedings, this Court cannot conclude that there is a
reasonable probability that, had counsel addressed the publicity
surrounding the case either by moving to dismiss the
indictment, or by seeking to open the grand jury proceedings
that counsel would have prevailed on either request, i.e., that
Petitioner would have benefitted from a different result.
Accordingly, Petitioner's claim of ineffective assistance of
counsel is denied.
III. Blakely Claim
Although Petitioner relies on Blakely v. Washington,
542 U.S. 296 (2004), as a basis for relief in his original motion, his
claim, which asserts that his sentence under the United States Sentencing Guidelines violated his Sixth Amendment rights,
actually arises under United States v. Booker, 125 S. Ct. 738
This claim must be denied. Even if this Court overlooks the
fact that Petitioner sought to add this claim after the deadline
for amending the instant motion expired, Petitioner still would
not be entitled to relief. Booker, which was decided after
Petitioner's motion was filed, does not apply retroactively on
habeas review to criminal judgments that became final prior to
that decision. See Lloyd v. United States, 407 F. 3d 608 (3d
Cir. 2005). Petitioner's conviction and sentence became final on
March 24, 2003, when the Supreme Court denied his petition for a
writ of certiorari. Thus, Petitioner cannot seek relief under
Booker, which was decided this year. Petitioner's final basis
for relief under § 2255 is denied.
For the reasons set forth in this Opinion, the Petition is
denied. Furthermore, pursuant to 28 U.S.C. § 2253(c)(2), because
Petitioner has not made a substantial showing of the denial of a
constitutional right, a certificate of appealability shall not