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Perry Burns v. United States

April 9, 2013


The opinion of the court was delivered by: William J. Martini, U.S.D.J.


This matter comes before the Court on pro se Petitioner Perry Burns' motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.*fn1 There was no oral argument. For the reasons stated below, the motion is DENIED.


On September 24, 2008, Petitioner and five other co-Defendants were charged in a one-count indictment with conspiracy to distribute cocaine and heroin, in violation of 21 U.S.C. §§ 846, 841(a)(1). On October 15, 2008, Petitioner pled not guilty to the charge.

On January 5, 2009, the Court held a hearing in which it was made unequivocally clear that based on Petitioner's prior criminal history, if he went to trial and was convicted, he would be subject to a 20-year mandatory minimum sentence pursuant to 21 U.S.C. § 841(b)(1)(A). (Jan. 5, 2009 Hr'g Tr. 8, Gov't. Br., Ex. A, § 2255 Docket, ECF No. 4.)

At trial, Petitioner was represented by Marlon Kirton. Petitioner's trial began on January 12, 2009. During trial, the Government introduced a number of recorded conversations in which Petitioner and Edwin Cintron, an uncharged co-conspirator and Government-witness, discussed various heroin and cocaine sales and transactions. The Government also introduced recorded conversations between Cintron and other charged co-defendants discussing similar drug transactions. Thereafter Cintron testified in open court and explained the substance of those recorded conversations. Mr. Cintron also testified that on at least one occasion Petitioner provided drugs to Cintron with the understanding that those drugs would go to a third-party buyer for resale. (Jan. 23, 2009 Tr. 39, Crim. Docket, ECF No. 106.)

In addition, the Government introduced other evidence which did not directly implicate Petitioner, including the quantity of drugs seized from Petitioner's co-defendants and testimony about certain other actions of those individuals.

At present, it is useful to note that a substantial number of Petitioner's arguments in support of his § 2255 petition are premised on Petitioner's fundamentally incorrect assertion that the Government failed to prove the single conspiracy charged in the indictment. To clarify, throughout his § 2255 petition, Petitioner repeatedly asserts that although the Government produced evidence suggesting that uncharged co-conspirator, Edwin Cintron: (1) entered into a conspiracy to distribute heroin and cocaine with Petitioner; and (2) separately entered into conspiracies with the five other co-defendants, those proofs show only that Petitioner was engaged in one of multiple conspiracies.*fn2 As an initial matter, the question of whether a single conspiracy or multiple conspiracies exist is a question of fact for the jury. United States v. Smith, 789 F.2d 196, 200 (3d Cir. 1986). And in order for the jury to consider the issue, the Government is not required to prove that a defendant knew all the "details, goals, or other participants" involved in the conspiracy, just that he knew he was part of a larger operation. United States v. Perez, 280 F.3d 318, 347 (3d Cir. 2002). At trial, the Government more than satisfied that burden.

Thus, when Petitioner's trial counsel moved under Rule 29 for a judgment of acquittal at the close of the Government's case, based on his assertion that the Government failed to set forth sufficient proof of the single conspiracy charged in the indictment, the Court denied that motion. (Jan. 26, 2009 Tr. 54, Crim. Docket, ECF 102.) In denying that motion, the Court explained:

"What I remember in terms of the evidence, and particularly the tapes and the conversations was, it was clear to me that the defendants, both knew that there were other people involved. They may not have known them by name, but in the conversations, there were several conversations with respect to each of them that they were referring to other people. And it was clear they that Mr. Cintron was not just acting alone, and that he was getting his drugs from someone . . . . So there was evidence here, if the jury believes, that would certainly enable them to believe that this conspiracy involved more people than just . . . Mr. Cintron and Mr. Burns.

(Id. at 62.) Thereafter, on January 27, 2009, the Court charged the jury, and, over the objection of defense counsel, incorporated Third Circuit Model Jury Instruction 6.18.371H -- which explains the distinction between single and multiple conspiracies and the basis to convict a defendant of a single conspiracy charged in an indictment -- into that charge. (Id. at 47.)

The jury returned a verdict of guilty on the same day.

Thereafter, Petitioner retained Anna Cominsky to represent him at sentencing and on appeal. On April 10, 2010, Petitioner filed a motion for a new trial based on his assertion that he was previously not competent to stand trial. (May 17, 2010, Tr. 2, Crim. Docket, ECF No. 134.) On May 17, 2010, the Court denied that motion and sentenced Petitioner to the statutory minimum of 240 months in prison. (May 18, 2010 Order, Crim. Docket, ECF No. 129; May 17, 2010 Judgment, Crim. Docket, ECF No. 130.)

On May 26, 2010, Petitioner appealed his conviction to the Third Circuit. During the pendency of that appeal, Petitioner communicated with Ms. Cominsky, and specifically requested that she raise several different legal issues on appeal. (Pet'r Br. 8-15, ยง 2255 Docket, ECF No. 1-1.) After considering Petitioner's suggestions, Ms. Cominsky informed Petitioner that she would only pursue the issue of competency to stand trial because it had the ...

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