The opinion of the court was delivered by: Wigenton, District Judge.
Before the Court are the petitions of Jorge Reyeros ("Jorge") and Juan Reyeros ("Juan") (collectively "Petitioners") to vacate, set aside, or correct their sentences pursuant to 28U.S.C.§2255 (the "Petitions"), as well as a motion to consolidate the Petitions and a motion by Juan to strike the response brief of the United States Government ("Government" or "Respondent").
The Court, having considered the parties‟ submissions, decides this motion without oral argument pursuant to Federal Rule of Civil Procedure 78. Petitioners‟ motion to consolidate the Petitions is GRANTED, and as such, both Petitions will be addressed below.*fn1 For the reasons set forth below, the Court DENIES Petitioner Juan‟s motion to strike the Government‟s response brief and DENIES the Petitions.
FACTUAL AND PROCEDURAL BACKGROUND
On August 20, 2004, a Grand Jury returned a six-count*fn2
Second Superseding Indictment against Petitioners, Hernan
Uribe ("Uribe"), and Rafael Garravito-Garcia ("Garravito"). Count 5
charged Petitioners, Uribe, and Garravito with conspiring between
March and November of 1999 to import from Ecuador 400 to 500 kilograms
of cocaine concealed in cargo containers in violation of 21U.S.C.§963.
Count 6 charged Jorge with unauthorized access to a United States
Customs Service ("Customs") computer in violation of
18U.S.C.§1030(a)(2)(B) and (c)(2)(B)(ii). Jorge, an inspector for
Customs, sought to further the conspiracy by accessing a Customs
computer to determine whether a company could be used to smuggle
cocaine. Correspondingly, Juan, Uribe and Garravito were charged with
aiding and abetting the unauthorized access of a Customs computer in
violation of the same statutes.
In September 2004, the jury trial against Petitioners began before the Honorable William G. Bassler, U.S.D.J. (now retired). The other individuals indicted with Petitioners were not tried at that time. Garravito was never arrested and Uribe was imprisoned in Colombia after being arrested on narcotics-related charges. However, Customs agents traveled to Colombia in 2002 to interview Uribe about his relationship with Petitioners.
Uribe was eventually extradited to the United States during Petitioners‟ trial. He testified that in 1999, Juan asked for his assistance in identifying an American company that could be used to smuggle 400 to 500 kilograms of cocaine. Uribe further testified that Juan told him that Jorge could use his position as a Customs inspector to ensure the successful importation of the cocaine. To find a company that could be used to smuggle the cocaine, Uribe contacted Garravito for assistance, who in turn contacted James Lagroterria ("Lagroterria"), an informant for Customs and the Drug Enforcement Administration ("DEA"). Garravito introduced Lagroterria to Uribe. Lagroterria was told that the conspirators were working with a Customs inspector who would find out whether the company Lagroterria identified was flagged by Customs because it had previously imported contraband. Lagroterria identified TJ Imports Produce ("TJ Imports"), which was a fictitious company that was created and entered into Customs‟ database by Customs and DEA agents. At trial, the Government presented Jorge‟s "playbacks" from his Customs computer searches, which included searches specifically for TJ Imports.
The jury convicted Petitioners of Counts 5 and 6. Subsequently, the district court denied Petitioners‟ post-trial motions. Jorge was sentenced to 292 months of imprisonment on Count 5 and 60 months of imprisonment on Count 6, to be served concurrently. Juan was sentenced to 235 months of imprisonment on Count 5 and 60 months of imprisonment on Count 6, also to be served concurrently.
Petitioners appealed their sentences to the Third Circuit, which denied their appeal and affirmed the sentences imposed by the district court. United States v. Reyeros, 537 F.3d 270 (3d Cir. 2008), cert. denied, 129 S. Ct. 2780 (2009).
Petitioners timely filed their present Petitions. Petitioners bring joint and separate claims of ineffective assistance of counsel. Additionally, Jorge claims: (1) that his right to due process was violated by an impermissible broadening of the scope of 18U.S.C.§1030(a)(2)(B), and (2) that the Government offered insufficient evidence to support his conviction for conspiracy to import cocaine at trial.
LEGAL STANDARD FOR 28 U.S.C. § 2255 PETITIONS
A district court, in considering a 28U.S.C.§2255 petition, must "accept the truth of the [petitioner‟s] factual allegations unless they are clearly frivolous on the basis of the existing record." United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005) (quoting Gov't of V.I. v. Forte, 865 F.2d 59, 62 (3d Cir. 1989)) (internal quotation marks omitted). If the 28U.S.C.§2255 petition and the underlying case record show conclusively that the petitioner is not entitled to relief, the district court is not required to hold an evidentiary hearing. Forte, 865 F.2d at 62. Finally, under Rule 4(b) of the Rules Governing § 2255 Proceedings: "If it plainly appears from the [petition], any attached exhibits, and the record of prior proceedings that the [petitioner] is not entitled to relief, the judge must dismiss the [petition] and direct the clerk to notify the [petitioner]."
Juan contends that the Government‟s March 11, 2011 brief should be stricken pursuant to L. Civ. R. 7.1(d)(6) because it is a sur-reply that was filed without permission. (Juan‟s Mot. to Strike Br. 1.) As the Government correctly points out, Jorge‟s reply brief, which Juan adopts, was filed about six weeks after the Government filed the March 11, 2011 response brief. Consequently, both Jorge and Juan "had the benefit of the government‟s responses" to issues Petitioners raise. (Resp‟t Reply Br. 1.) Additionally, Petitioners‟ reply brief does respond to the arguments the Government raises in its response brief. Therefore, Juan is asking this Court to strike the very brief he responds to. Juan cannot have his cake and eat it too. The motion to strike is denied.
A. Ineffective Assistance of Counsel
Together, Petitioners argue that defense counsel was ineffective because counsel
failed: (1) to investigate and present exculpatory testimony of other Customs officials who accessed TJ Imports information; (2) to challenge the use of evidence derived from a wiretap pursuant to 18U.S.C.§2518(9); (3) to object to Uribe meeting ex parte with the sentencing judge; and (4) to obtain documents, either through the Colombian government directly or by establishing joint venture between the United States and Colombia, that could have been used to impeach Uribe. Jorge and Juan also separately claim that defense counsel nullified their right to testify and was thus ineffective. Further, Juan claims that his appellate counsel was ineffective for failing to argue on appeal that he was denied the right to allocute at sentencing.
Section 2255 petitioners have the burden of proof to demonstrate ineffective assistance of counsel. United States v. Baynes, 622 F.2d 66, 69 (3d Cir. 1980). A defendant is denied the right to effective assistance of counsel when: (1) his attorney‟s performance falls below "an objective standard of reasonableness," and (2) there is a "reasonable probability" that such ineffectiveness prejudiced the outcome at trial. Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).
The first prong ("the performance prong") requires a petitioner to identify those "acts or omissions" by counsel that were outside the range of professionally competent assistance. Id. at 690. A court must be highly deferential when assessing an attorney‟s performance and, as such, a petitioner must overcome a strong presumption that the challenged action "might be considered sound trial strategy." Id. at 689.
The second prong ("the prejudice prong") requires a petitioner to show a reasonable probability that, but for counsel‟s professional incompetence, the outcome of the proceeding would have been different. Id. at 694. A reasonable probability of prejudice is one "sufficient to undermine confidence in the outcome." Id.
In a criminal case, the authority to make certain decisions regarding defense strategy is divided between the defendant and his or her attorney. Gov't of V.I. v. Weatherwax, 77 F.3d 1425, 1433 (3d Cir. 1996). The defendant has the ultimate authority to decide whether to plead guilty, waive the right to a jury, testify or appeal. Jones v. Barnes, 463 U.S. 745, 751 (1983) (describing such decisions as "fundamental"). Nevertheless, the daily conduct of the defense is the responsibility of the attorney, who has "the immediate - and ultimate - responsibility of deciding if and when to object, which witnesses, if any, to call, and what defenses to develop." Wainwright v. Sykes, 433 U.S. 72, 93 ...