The opinion of the court was delivered by: Walls, Senior District Judge
Hector Linarez-Delgado filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255. Linarez-Delgado seeks to vacate, set aside or correct his May 2006 sentence of 170 months for importing and conspiring to import, distribute and possess with intent to distribute ecstasy. Linarez-Delgado asserts that his Sixth and Fourteenth Amendment rights were violated as a result of his trial lawyer's ineffectiveness. Linarez-Delgado claims that his trial lawyer was ineffective because (1) he did not argue for suppression of a videotape found during a search of Linarez-Delgado's belongings; (2) he did not move to dismiss the indictment on Speedy Trial Act grounds; and (3) he allowed the jury to learn that Linarez-Delgado was incarcerated during the trial. Linarez-Delgado's petition is denied. Because "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief" this case is decided without a hearing. See 28 U.S.C. § 2255(b).
FACTUAL AND PROCEDURAL BACKGROUND
In late 2002, customs officers intercepted two people attempting to bring the drug ecstasy into the United States. The drug couriers implicated a man known as Sebastian as the leader of the ecstasy importation ring. An arrest warrant was issued for Sebastian. Based on their investigation, customs officers believed that Sebastian was actually Linarez-Delgado. LinarezDelgado's name was placed on a watch list used by customs officers.
In February 2003, a customs officer stopped Linarez-Delgado when he arrived in Puerto Rico on a ferry from the Dominican Republic. The officer reviewed footage on a camcorder in Linarez-Delgado's possession, which revealed that he went by the name Sebastian. LinarezDelgado was arrested.
Linarez-Delgado was indicted for importing and conspiring to import, distribute and possess with intent to distribute ecstasy. A jury convicted him in April 2005. In May 2006, this Court sentenced him to 170 months in prison.
A prisoner sentenced by a federal court who claims that his sentence was imposed in violation of the Constitution or laws of the United States may move the court which imposed the sentence to vacate, set aside or correct the sentence. 28 U.S.C. § 2255. To obtain collateral relief under § 2255, "a prisoner must clear a significantly higher hurdle than would exist on direct appeal." United States v. Frady, 456 U.S. 152, 166 (1982).
Linarez-Delgado asserts that his Sixth and Fourteenth Amendment rights were violated as a result of his trial lawyer's ineffectiveness. The Sixth Amendment provides that, "In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. A defendant has the right not just to counsel but to "reasonably effective assistance of counsel." United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992).
To prove ineffective assistance of counsel under the Sixth Amendment, a petitioner must satisfy the two-prong test set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). A petitioner must show that (1) counsel's performance fell below an objective standard of reasonableness, and (2) this deficient performance prejudiced the petitioner. Id. at 692.
To satisfy the first prong of the Strickland test, the petitioner must show that counsel's performance was deficient. "A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment." Strickland, 466 U.S. at 690. The defendant must provide factual evidence rather than "mere speculation" that counsel's performance at trial fell below "minimum professional standards." United States v. Rodgers, 755 F.2d 533, 541 (7th Cir. 1985). In assessing whether counsel was competent, judicial scrutiny of an attorney's performance must be highly deferential. See Strickland, 466 U.S. at 689 (holding that the reviewing court should "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance").
Second, the petitioner must "affirmatively prove" that the deficient performance prejudiced him. This step requires the petitioner to show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 693-94. A reasonable probability is one that is sufficient to undermine confidence in the outcome. Id. at 693; Brown v. United States, 75 F. Supp. 2d 345, 348 (D.N.J. 1999).
Both prongs must be established in order for the petitioner to meet his burden. If either prong is not satisfied, the claim of ineffective assistance of counsel must be rejected. See Strickland, 466 U.S. at 697. If a lack of prejudice has already been established, "examining the deficiency prong of the test has been explicitly discouraged by the Supreme Court of the United States." Darr v. United States, ...