The opinion of the court was delivered by: Hon. Jerome B. Simandle
This matter comes before the Court on Petitioner Lawrence Johnson's motion to vacate, alter, or amend his sentence, filed pursuant to 28 U.S.C. § 2255, on the grounds of ineffective assistance of counsel under the Sixth Amendment of the United States Constitution and actual innocence. [Docket Items 1 and 5.] The Court finds that the motion, files and records of the case conclusively show that Petitioner is not entitled to relief and therefore his § 2255 petition will be denied without a hearing.
Petitioner was arrested in connection with a home invasion and robbery
in Erial, New Jersey, which culminated in a high-speed chase that led
police from New Jersey into Philadelphia, Pennsylvania. On September
26, 2006, a grand jury returned an indictment against Petitioner
Johnson and three other defendants. The indictment brought the
following charges against Petitioner: conspiracy to commit robbery in
violation of the Hobbs Act, 18 U.S.C. § 1951(a),(b)(1) and (b)(3)
(Count 1); robbery in violation of the Hobbs Act, 18 U.S.C. §
1951(a),(b)(1), (b)(3) and 2 (Count 2); violating the Travel Act, 18
U.S.C. § 1952(a)(2), (a)(3)(B), (b), and 2 (Count 3); conspiracy to
violate the Travel Act, 18 U.S.C. § 371 (Count 4); aiding and abetting
the using and carrying of a firearm in violation of 18 U.S.C. 924(c),
(c)(1)(A)(ii), and 2 (Count 5); and being a felon in possession of a
weapon in violation of 18 U.S.C. § 922(g)(1) and 2. (App.*fn1
On November 20, 2006, a jury found Petitioner guilty on all counts. [Cr. No. 06-126, Docket Item 146.] The convictions were affirmed in United States v. Hernandez, et al., 306 Fed. Appx. 719, 720-21 (3d Cir. 2009) (summarizing the crime, charges and sentences). The Petitioner was sentenced to 424 months in prison. Specifically, Petitioner was sentenced to 220 months on Counts 1 and 2 to be run concurrently; 120 months on Count 3, consecutive to the term imposed on Counts 1 and 2; 60 months on Count 4, concurrent to the term imposed on Count 3; 84 months on Count 5, consecutive to all other terms imposed; and 120 months on Count 8, concurrent to the term imposed on Counts 1 and 2. (App. 41.)
Petitioner filed a direct appeal of his conviction and sentence to the Third Circuit on the grounds that (1) the district court erred in admitting evidence of certain telephone calls made from prison by his co-defendants which violated the Confrontation Clause, (2) there was insufficient evidence to convict under the Hobbs Act, (3) the charge under § 924(c) should have been dismissed because the Court did not have jurisdiction over the Hobbs Act and Travel Act counts, and (4) the government improperly commented on Petitioner's failure to testify. The Third Circuit rejected all of these claims and affirmed the sentence and conviction. See Hernandez, 306 Fed. Appx. at 721-23. The Third Circuit also found that Johnson's counsel did not have a good faith basis to argue that the evidence at trial was insufficient as a matter of law to justify Johnson's convictions.
The Third Circuit stated that "the evidence submitted against Johnson was more than sufficient to support his conviction." Hernandez, 306 Fed. Appx. at 723. The U.S. Supreme Court denied certiorari. Johnson v. United States, 129 S. Ct. 2807 (2009).
Petitioner, pro se, timely filed this petition to vacate, set aside or correct his sentence under 28 U.S.C. § 2255. Petitioner makes several claims, some of which allegedly support a finding that his trial and appellate attorney, Edward Borden Jr., Esq., provided him with ineffective assistance of counsel in violation of the U.S. Constitution. Petitioner asserts counsel failed (1) to object to Counts 1 and 4 as unconstitutionally duplicative which resulted in cumulative punishment and double jeopardy; (2) to file a motion to dismiss under Fed. R. Crim. P. 12(b) as to Counts 3 and 4 which Petitioner maintains were defective in the indictment; (3) to object at sentencing to errors in the presentence report regarding the calculation of Petitioner's base offense level and guideline range; (4) to object during trial to the admission of Petitioner's self-incriminating statement made while in custody; and (5) to call Nancy Smith as a witness at trial to testify on Petitioner's behalf. Petitioner also argues that he is actually innocent as to Counts 5 and 8 because there was no proof he was in constructive possession of a firearm or that he aided and abetted the use of the firearm in the robbery.
The government responded to Petitioner's motion to vacate alter or amend his sentence and contests all of Petitioner's claims. [Docket Items 13, 43.] Petitioner filed a reply in further support of his application for relief. [Docket Items 31, 44.] Petitioner then subsequently filed a motion to appoint pro bono counsel. [Docket Item 40.]
The Court will assess each claim separately below.
Under § 2255(a), a federal prisoner may move to vacate, set aside or correct a sentence on the ground that the sentence was imposed in violation of the Constitution or federal law, the sentencing court was without jurisdiction, or the sentence is in excess of the maximum authorized by law or is otherwise subject to collateral attack. The district court shall grant a hearing to determine the issues and make findings of fact and conclusions of law. § 2255(b). However, if the motion, files and records of the case conclusively show that the prisoner is not entitled to relief, the petition will be denied. Id.; see also United States v. McCoy, 410 F.3d 124, 131-32 (3d Cir. 2005) (holding a district court must grant an evidentiary hearing unless the record before it conclusively showed the petitioner was not entitled to relief).
Generally, an evidentiary hearing must be held to resolve issues of fact falling outside the record of the case. United States v. Costanzo, 625 F.2d 465, 470 (3d Cir. 1980). However, a hearing need not be held if the petition raises no legally cognizable claim, or if the factual matters raised by the petition may be resolved through the district court's review of the motions and the records in the case, or, in some circumstances, if the court, in its discretion, finds the movant's claims to be too vague, conclusory or palpably incredible. Id. (quoting Machibroda v. United States, 368 U.S. 487, 495 (1962)). Government affidavits filed in opposition to a petition for § 2255 relief are not part of the files and records of the case and are not conclusive against the petitioner. Id.
Furthermore, not every asserted error of law may be raised on a § 2255 motion. See Davis v. United States, 417 U.S. 333, 346 (1974). The appropriate inquiry is whether the claimed error is a "fundamental defect which inherently results in a complete miscarriage of justice" and whether it presents "exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent." Id. (quoting Hill v. United States, 368 U.S. 424, 429 (1962)).
To prevail on a claim of ineffective assistance of counsel, Petitioner must demonstrate that (1) counsel's performance was so deficient as to deprive him of the representation guaranteed to him under the Sixth Amendment of the United States Constitution, and (2) the deficient performance prejudiced the defense by depriving the defendant of a fair trial. Strickland v. Washington, 466 U.S. 668, 687 (1984). To show prejudice under Strickland, Petitioner must demonstrate that there is a "reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different." Gov't of the V.I. v. Forte, 865 F.2d 59, 62 (3d Cir. 1989) (quoting Strickland, 466 U.S. at 694).
A. Double Jeopardy and Cumulative Punishment with regards to Counts 1 and 4
The Petitioner first argues that his counsel was ineffective for failing to argue that Count 1 charging a Hobbs Act conspiracy and Count 4 charging a Travel Act conspiracy punished the Petitioner twice for the same conduct. Petitioner maintains that his counsel should have argued that these charges resulted in double jeopardy in violation of the Constitution and subjected him to cumulative punishment. Specifically, Petitioner maintains that the Hobbs Act conspiracy was a lesser included offense subsumed by the Travel Act conspiracy.
The Double Jeopardy clause provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." U.S. CONST. amend. V. The Double Jeopardy clause "applies to both multiple punishments and successive prosecutions for the same criminal offense." United States of America v. Conley, 37 F.3d 970, 975 (3d Cir. 1994). "The Double Jeopardy bar applies if the two offenses for which the defendant is punished or tried constitute the same offense." Id.
In determining whether a defendant is being charged twice for the same conduct, a court must analyze whether "each of the offenses created requires proof of a different element." Blockburger v. United States, 284 U.S. 299, 304 (1932). "The particular rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Id.
The Supreme Court has offered further guidance on the application of the Blockburger test. In particular, the Supreme Court has stressed that "the critical inquiry is whether the . . . [broader] offense is considered the 'same offense' as one or more of the predicate offenses within the meaning of the double jeopardy clause." Garret v. United States, 471 U.S. 773, 786 (1985). The Supreme Court has also stressed that the Blockburger test reflects the assumption that "Congress ordinarily does not intend to punish the same offense under two different statutes." Whalen v. United States, 445 U.S. 684, 692 (1980). Consequently, the Blockburger test should not be controlling "where, for example, there is a clear indication of contrary legislative intent." Id. Importantly, the "double jeopardy clause's protection against multiple punishments in a single case ensures only that a court does not impose a punishment in excess of the punishment intended by the legislature." Conley, 37 F.3d at 976.
In this case, Petitioner's ineffective assistance of counsel claim based on his counsel's failure to challenge Counts 1 and 4 on the basis of double jeopardy fails for two reasons.
First, the Hobbs Act conspiracy and the Travel Act conspiracy both required proof of an additional element. The Hobbs Act conspiracy required proof of an agreement to violate the Hobbs Act, which was not required for Count 4. Instead, Count 4 required proof of an agreement to violate the Travel Act. The Travel Act conspiracy required proof of an overt act in furtherance of the conspiracy which was not required for Count 1. In addition, the Travel Act conspiracy required proof of an agreement to travel interstate or to use an interstate facility which was not required under the Hobbs Act. See 18 U.S.C. § 1951(a); 18 U.S.C. § 1952(a). Consequently, the Blockburger test is satisfied and there is no double jeopardy issue.
Second, there is also no prejudice even if Blockburger were not satisfied. The Travel Act conspiracy conviction in Count 4 did not result in additional punishment. The sentence on Count 4 of 60 months' imprisonment for conspiracy was concurrent with the conviction on Count 3 for the substantive Travel Act violation for which the sentence was 120 months' imprisonment. Although Counts 3 and 4 were concurrent, and their 120-month sentence was consecutive to the sentence on the concurrent Counts 1 and 2, the 120-month consecutive feature for Counts 3 and 4 was driven by the Count 3 conviction, which is not contested on double jeopardy grounds, and not by the Count 4 conviction for Travel Act conspiracy. Stated differently, if for the sake of argument Count 4 were stricken entirely, it would not shorten Petitioner's overall sentence. Accordingly, under the second Strickland prong, Petitioner has failed to show that the result of the proceeding would have been different.
Therefore, Plaintiff's motion to vacate, alter or amend his sentence because his counsel was ineffective in failing to object to Counts 1 and 4 on the basis of double jeopardy will be denied.
B. Failure to File a Motion to Dismiss Counts 3 and 4
Petitioner next argues that his counsel was ineffective for failing to file a motion to dismiss Counts 3 and 4 of the indictment which charged Petitioner with violating the Travel Act and conspiracy to violate the Travel Act, respectively. Petitioner maintains that the government failed to produce sufficient evidence of a relationship between performance of the wrongful act and interstate travel, which Petitioner argues is required under ...