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Camden Vicinage James Gallaway v. United States of America

November 28, 2011


The opinion of the court was delivered by: Kugler, United States District Judge:

(Not for Publication) (Doc. Nos. 1, 3, 4, 7, 8, 9)


Currently before the Court is the motion of Petitioner James Gallaway ("Petitioner") to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Respondent United States of America ("Government") submitted a motion to dismiss in response to the Petition. The Court has considered the parties' submissions, and for the reasons set forth below, concludes that Petitioner's motion must be denied.*fn1


This section 2255 Petition arises out of Petitioner's imprisonment for unlawful possession of a firearm. On November 26, 2007, Galloway Township police officers received and investigated a report of a driver that was passed out behind the wheel at a traffic intersection. Presentence Investigation Report ¶ 7. The investigating officer found Petitioner asleep in the driver's seat in the reported intersection. Id. Smelling the odor of burnt marijuana emanating from the vehicle, the officer performed a warrantless search of Petitioner's car, which revealed a bag of marijuana. Id. The officer then placed Petitioner under arrest, and searched Petitioner incident to his arrest. Id. The search of Petitioner's person revealed a Glock handgun, individual bags of heroin, and approximately $1,306 in U.S. currency. Id. ¶¶ 7-8.

On March 11, 2008, Petitioner was indicted by a federal grand jury on the charge of knowing possession of a firearm*fn2 in violation of 18 U.S.C. § 922(g). Id. ¶ 1. On September 5, 2008, Petitioner filed a suppression motion challenging the warrantless search of his vehicle by the investigating officers. On November 7, 2008, this Court held a suppression hearing, at the conclusion of which the Court denied Petitioner's suppression motion. On November 21, 2008, Petitioner entered a plea of guilty to the indictment. On May 31, 2007, Petitioner was sentenced to serve 90 months in prison.*fn3

Petitioner subsequently appealed to the United States Court of Appeals for the Third Circuit. On September 13, 2010, Petitioner's sentence was affirmed. On February 14, 2011, Petitioner filed the instant pro se Petition to vacate, set aside, or correct Petitioner's sentence pursuant to 28 U.S.C. § 2255, alleging ineffective assistance of counsel. All parties having briefed the matter, the Petition is now ripe for review.


Pursuant to 28 U.S.C. § 2255, a prisoner in federal custody may move before the court that imposed the sentence to vacate, set aside, or correct the sentence if it were imposed "in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack[.]" To establish a right to habeas corpus relief, a petitioner must demonstrate "a fundamental defect which inherently results in a complete miscarriage of justice or an omission inconsistent with the rudimentary demands of fair procedure." U.S. v. DeLuca, 889 F.2d 503, 506 (3d Cir. 1989). Section 2255 is the preferred method for advancing an ineffective assistance of counsel claim. U.S. v. Nahodil, 36 F.3d 323, 326 (3d Cir. 1994). A petitioner is entitled to a hearing to determine issues of fact and to make conclusions of law, unless the files and records of the case "conclusively show" that the petitioner is entitled to no relief. 28 U.S.C. § 2255(b).


Petitioner argues that he was denied effective assistance of counsel because 1) his trial counsel failed to raise in the motion to suppress that mere odors cannot constitute probable cause to search a vehicle; 2) trial counsel insufficiently challenged the application of U.S.S.G. § 2K2.1(b)(6); 3) trial counsel failed to effectively advocate for Petitioner during the calculation of Petitioner's criminal history; 4) this Court lacked jurisdiction to apply sentencing enhancements to Petitioner. Pet. br. at 3-10. The Government challenges each of these arguments. The Court finds the Government's positions on each claim to be compelling, and accordingly denies the Petition.

A. Ineffective Assistance of Counsel

To prevail on a claim of ineffective assistance of counsel, a party must establish 1) deficiency of counsel's performance and 2) prejudice caused by the deficiency. Strickland v. Washington, 466 U.S. 668, 687 (1984). Only the most serious errors constitute deficient performance. Id. (describing errors "so serious that counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment"). Prejudice exists only when the defendant is denied a fair trial capable of producing a reliable result. Id.

The first Strickland prong is an objective standard of "reasonableness under prevailing professional norms." Id. at 688. The Constitution requires a fair trial, not some higher quality of legal representation. See id. at 688-89. Thus, the standard is "highly deferential" and there is "a strong presumption that counsel's ...

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