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Booker v. United States

July 26, 2010


The opinion of the court was delivered by: Simandle, District Judge



This matter is before the Court on a pro se application by Petitioner Christopher Booker for habeas corpus relief vacating his sentence under 28 U.S.C. § 2255. On August 4, 2006, this Court sentenced Petitioner to a term of imprisonment of 240 months for possession with intent to distribute cocaine base and a consecutive term of imprisonment of 60 months for possession of two firearms in furtherance of a drug trafficking felony.

Petitioner's present habeas petition asserts that his defense counsel was ineffective for failing to raise four arguments and that this ineffective assistance of counsel justifies vacating Petitioner's sentence. For the reasons discussed herein, Petitioner's motion for habeas relief under 28 U.S.C. § 2255 will be denied without an evidentiary hearing and his petition will be dismissed.


In October 2004, Petitioner was staying at the Best Western Envoy Hotel in Atlantic City, New Jersey. See United States v. Booker, 270 F. App'x 176, 177 (3d Cir. 2008). On October 27, 2004, Officer Paul Petinga of the Atlantic City Police Department saw Petitioner loitering in front of the hotel for over two hours and eventually stopped and questioned him. Id. (citing Terry v. Ohio, 392 U.S. 1 (1968)). Petitioner informed Officer Petinga that he was at the hotel because he had a court appearance later in the morning. Id. Officer Petinga ran a check on the information found in Petitioner's identification card, and no warrants for Petitioner came up in the system. Id. The next day, however, Officer Petinga discovered that Petitioner did have an outstanding warrant. Id.

Two days later, a maid at the Best Western discovered two firearms in the bathroom trash can of Room 309. Id. The maid immediately notified hotel manager Sunil Pillay. Id. Manager Pillay contacted her friend, Officer Petinga, to ask for assistance. Id. After this conversation with Pillay, Officer Petinga went with another officer to the hotel, where he determined from the information on file with the hotel - which included the occupant's identification card - that the occupant of Room 309 was the same man he had questioned outside the hotel two days earlier, Petitioner Christopher Booker. Id. Shortly thereafter, additional officers arrived at the hotel, management locked out Petitioner by creating a new room key for the officers to utilize, and the officers knocked and announced themselves at the hotel room door. Id. There was no response from anyone inside the room. Id. Once inside the officers saw the two firearms in the trash can with some toilet paper resting on top of them. Id. The officers remained while the firearms were photographed and taken by Identification Bureau personnel. Id. Immediately after the firearms were removed the officers set up surveillance in a room across the hall from Petitioner's room. Id. Sergeant Mark Pincus from the Atlantic City Police Department ran a criminal background check while the other officers were conducting surveillance, and discovered that Petitioner had at least one conviction in addition to multiple prior arrests. Id.

Petitioner returned to the hotel room hours later, and his identity was confirmed both by officers stationed at the front desk and by Sergeant Pincus through the peephole of the other room. Id. at 177-78. Pincus along with another officer arrested Petitioner in the hallway after ordering Petitioner to get on his knees. Id. at 178. Petitioner immediately asked why he was under arrest, and Sergeant Pincus responded that it was because "the officers found something in [Petitioner's] hotel room." Id. Petitioner responded "guns?" Id. Sergeant Pincus proceeded to handcuff Petitioner and search his person, which included the jacket that Petitioner attempted to kneel on. Id. In the jacket Pincus found two packages containing approximately 149 grams of crack cocaine. Id. Subsequent to the arrest, Petitioner consented to a search of the hotel room. Id.

Once in custody, Pincus sought to question Petitioner, but Petitioner invoked his right to counsel, so questioning ceased. (Suppression Hr'g Tr. 81:10-25; 82:1-11.) Sometime prior to November 30, 2004, Darby Borough detectives contacted Special Agent Roselli of the Federal Bureau of Investigations ("FBI") on behalf of Petitioner to explain that Petitioner wanted to talk to Agent Roselli regarding his knowledge of a bank robbery. (Id. at 169:1-11.) In response to Petitioner's request to meet with her, on November 30, 2004, Special Agent Roselli met with Petitioner in Atlantic County where he was in custody. (Id. at 169:6-11.) Before questioning Petitioner, Agent Roselli gave Petitioner an Advice of Rights form, which she used to advise him of his rights under Miranda v. Arizona, 384 U.S. 436 (1966), and Petitioner signed the form waiving his rights. (Id. at 169:18-25; 170:1-18, 171:1-7.) Even though Petitioner asked to speak with Roselli solely regarding the bank robbery, he voluntarily made statements to her pertaining to the Atlantic City drug and firearm charges. (Id. at 172:7-11.) Petitioner met with Special Agent Roselli on several subsequent occasions, and before every interview Agent Roselli gave Petitioner an Advice of Rights form, which he initialed and signed thereby waiving his rights. (Id. at 169:18-25; 170:1-18; 171:1-7.)

On January 19, 2005, a grand jury in the Eastern District of Pennsylvania returned a three-count indictment charging Petitioner with "conspiracy to distribute and possess with intent to distribute more than 50 grams of cocaine base in the Eastern District of Pennsylvania and the District of New Jersey, in violation of 21 U.S.C. § 846, possession with intent to distribute approximately 149.5 grams of cocaine base . . . in violation of 21 U.S.C. § 841(a)(1), and possession of two firearms in furtherance of a drug trafficking felony, in violation of 18 U.S.C. § 924(c)" [Docket Item 13 at 9]. On April 25, 2005, after Petitioner was arraigned in Philadelphia, he filed a motion to change venue to the District of New Jersey, which was granted [Id.]. Prior to his trial, this Court held a hearing on Petitioner's motion to suppress evidence seized - the two firearms and the 149.5 grams of cocaine base - as well as all post-arrest statements that Petitioner made to law enforcement [Id. at 10]. Petitioner's motion to suppress was denied by this Court in its entirety. United States v. Booker, No. 05-313, 2005 WL 2217023, at * 1 (D.N.J. Sept. 9, 2005). At that hearing Officer Petinga testified regarding the reasons he, along with fellow officers, went to the hotel to search Petitioner's room for firearms. (Suppression Hr'g Tr. 11:17-25; 12:1-25.) As part of his testimony, Officer Petinga stated that one of the reasons he went to the hotel was because of the maid's statements to the manager regarding the presence of guns. (Id.) At the suppression hearing and at trial, the only witness testimony that pertained to the content of the maid's statements came from Officer Petinga and the maid's manager and was offered to explain why the police searched Petitioner's hotel room.*fn1 (Id.; 136:2-23; 137:3-24; 145:3-23; 150:25; 151:1-25; 152:1-2); see also (Tr. 1/25/06 at 5:19-25; 7:25; 8:1-8; 23:20-25; 38:1-22; 39:1-3; 52:21-25; 53:1-6; 58:19-25.) There was no testimony by the maid at the suppression hearing or at the trial.

At trial evidence was also offered regarding the guns and their use "in furtherance" of Petitioner's drug offenses. Petinga explained how the officers entered the room, that the guns were close to the entrance to the hotel room - and in plain view - and how the guns were confiscated. (Tr. 1/25/06 at 41:11-25; 42:5-25; 43:3-25; 44:1-24; 55:18-25.) Special Agent Roselli testified that Petitioner "admitted [to her during an interview] that the guns and the crack cocaine that he was caught with [at the hotel] were in fact his," and she also testified about voluntary statements Petitioner made regarding his ownership of the firearms and drugs - while he was being transported to Philadelphia by her and other law enforcement officers. (Tr. 1/27/06 at 170:1-8; 177:22-25; 178:1-13; 179:1-15.) Detective Ed Obert offered additional evidence about how the firearms were processed by himself and the rest of the Identification Division of the Atlantic City Police Department. He explained that the weapons were a nine millimeter semi-automatic handgun and a forty-caliber semi-automatic handgun, both of which were loaded, and he examined both of the Government's exhibits identifying them as Petitioner's firearms found in the hotel with accompanying magazines (ammunition). (Tr. 1/25/06 at 69:8-25; 70-73; 80-83:9.) Detective Sergeant James Ryan of the Atlantic City Ballistics Unit, also testified as to the type of firearms found and stated that the found guns were loaded with additional ammunition. (Tr. 1/26/06 at 36-43.) Sergeant Pincus also testified about Petitioner's arrest and how drugs were found on Petitioner. (Tr. 1/25/06 at 119-120.)

On February 1, 2006, a jury convicted Petitioner of possession with intent to distribute approximately 149.5 grams of cocaine base in violation of 21 U.S.C. § 841(a)(1), and possession of two firearms in furtherance of a drug trafficking felony in violation of 18 U.S.C. § 924(c). The jury acquitted Petitioner of conspiracy to distribute and possess with the intent to distribute cocaine base under 21 U.S.C. § 846. On August 4, 2006, this Court sentenced Petitioner to a term of imprisonment of 240 months for possession with intent to distribute and a consecutive term of imprisonment of 60 months for possession of firearms in furtherance of the drug transaction. The Court of Appeals for the Third Circuit affirmed the decision of this Court denying Petitioner's motion to suppress on March 19, 2008.

On April 8, 2009, Petitioner filed the instant supplemental motion under 28 U.S.C. § 2255. Petitioner bases his motion on ineffective assistance of counsel for failure of his attorney to argue four issues at trial or on direct appeal, which are: (1) there was insufficient evidence to support the "in furtherance" element of the drug trafficking charge in violation of 924(c); (2) all post-arrest statements by Petitioner to law enforcement should be suppressed because they were obtained in violation of Miranda; (3) evidence seized from Petitioner's hotel room was the product of an illegal search and seizure, and warrantless entry of Petitioner's hotel room; and (4) admission of evidence at the suppression hearing and trial of the maid's statements about the guns found in the Petitioner's hotel room violated the Confrontation Clause [Docket Item 10].


A. Standard of Review

When considering a § 2255 petition the Court must hold an evidentiary hearing, unless the record and motion of a case conclusively indicate that the movant is not entitled to relief. United States v. Booth, 432 F.3d 542, 545-46 (3d Cir. 2005). The Court is required to accept the Petitioner's factual allegations as true so long as they are not "clearly frivolous," which the Court can establish by examining the existing record. Id. Nevertheless, should the movant's petition contain "vague and conclusory" allegations it is at the Court's discretion to dispose of it without further inquiry. United States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000).

B. Standard for Ineffective Assistance of Counsel

In Strickland v. Washington, the Supreme Court articulated the standard for measuring ineffective assistance of counsel. 466 U.S. 668 (1984). The Court held that both prongs of the Strickland test must be satisfied in order to establish ineffective assistance of counsel. Id. The Strickland test states that:

(1) The defendant must show that counsel's performance was deficient. This requires showing that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment; (2) the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose results are reliable.

Id. at 687.

When examining an attorney's performance, the standard to be applied is an objective standard of reasonableness where considering all the facts and circumstances, the petitioner must demonstrate that counsel's representation fell below the standard, that is, that the counsel failed to provide "reasonably effective counsel." Id. at 669. The Strickland Court noted that "[j]udicial scrutiny of counsel's performance must be highly deferential" and that a "court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id.

To satisfy the prejudice prong of the Strickland test, a petitioner must show that a reasonable probability exists that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. When applying this test the Supreme Court noted that either the performance and prejudice prongs of Strickland may be addressed first. In fact, the Supreme Court recommends beginning the analysis with whichever prong is easiest to satisfy or dispose of. Id. at 697. For example, "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Id. at 697.

In order to ascertain whether Petitioner can sustain a valid claim of ineffective assistance of counsel, this Court must determine whether Petitioner's counsel made errors that prejudiced Petitioner, (1) by failing to move to suppress all post-arrest statements, (2) by failing to object to the sufficiency of the evidence for the 18 U.S.C. § 924(c) violation, (3) by failing to seek suppression of the fruits of the warrantless search and arrest, and (4) by failing to challenge the admission of the maid's statements during the suppression hearing and trial. The Court considers the overarching ineffective assistance of counsel claim in light of Petitioner's four specific underlying allegations and addresses each allegation in turn.

C. Law of the Case Doctrine

This Court examines the application of the law of the case doctrine to Petitioner's habeas petition because Respondent raises its applicability to two of Petitioner's claims. Respondent argues that because the Third Circuit Court of Appeals addressed two of Petitioner's claims on direct appeal - (1) the legality of the search of Petitioner's hotel room; and (2) whether evidence of Petitioner's statement ("guns?") made at the time of his arrest was admitted in violation of Miranda, 384 U.S. 436 (1966) - he is ...

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