William Hernandez, Pro Se, #41168-050, USP McCREARY, Pine Knot, KY, Petitioner.
Howard J. Wiener, Assistant U.S. Attorney, OFFICE OF THE U.S. ATTORNEY Steven J. D'Aguanno, Assistant U.S. Attorney, OFFICE OF THE U.S. ATTORNEY Camden, NJ, Attorneys for Respondent.
JEROME B. SIMANDLE, Chief District Judge.
This matter comes before the Court on Petitioner William Hernandez's petition to vacate, set aside, or correct 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. [Docket Item 1.] The motion, files and records of the case conclusively show that Petitioner is not entitled to relief on any of his claims, and therefore his § 2255 petition will be denied as to those claims, for the following reasons.
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. A jury convicted Petitioner, along with three co-defendants, of conspiracy to interfere with commerce by threats of violence in violation of the Hobbs Act, 18 U.S.C. §§ 1951(a), (b)(1), and (b)(3), as well as interstate and foreign travel or transportation in aid of racketeering enterprise in violation of the Travel Act, 18 U.S.C. §§ 1952(a)(2), (a)(3)(B), (b) and (2). Petitioner also was convicted of aiding and abetting the brandishing of a firearm in connection with a crime of violence under 18 U.S.C. § 924(c)(1)(A)(ii) and (2). See United States v. Hernandez , 306 Fed.Appx. 719, 720-21 (3d Cir. 2009) (summarizing the crime, charges and sentences); see also Cr. No. 06-126, Docket Item 125 ("Judgment in a Criminal Case") (enumerating the charges for which Petitioner was found guilty). Petitioner received a prison sentence of 480 months. [Cr. No. 06-126, Docket Item 145.]
Petitioner appealed his conviction and sentence on the grounds that (1) evidence of his cell phone records should not have been admitted, (2) there was insufficient evidence to convict under the Hobbs Act, and (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. The Third Circuit rejected all of these claims and affirmed the sentence and conviction. See Hernandez , 306 Fed.Appx. at 721-22. The U.S. Supreme Court denied certiorari. Hernandez v. United States , 130 S.Ct. 195 (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, each of which allegedly supports a finding that his trial attorney, Fortunato N. Perri, Jr., Esq., provided him with ineffective assistance of counsel in violation of the U.S. Constitution. Petitioner asserts counsel failed (1) to provide him with sufficient information to evaluate his plea of not guilty, (2) to adequately investigate Petitioner's case before trial, (3) to interview and call favorable witnesses, (4) to file pretrial motions to challenge the prosecution's evidence, (5) to move for a mistrial after jurors observed Petitioner in shackles in the courtroom, (6) to object and make a record of juror sleeping during the trial, (7) to challenge the prosecution's evidence and witnesses, (8) to interview experts and call expert witnesses to counter cell phone tower evidence, (9) to object to a Bruton violation, (10) to seek Petitioner's consent before stipulating to facts during trial, (11) to advise Petitioner about his right to testify, (12) to object to an erroneous application of § 924(c), (13) to properly object to the presentence report calculation errors for sentencing, (14) to present on appeal the erroneous classification of Petitioner as a career offender, and (15) to present on appeal "meritorious issues properly preserved" before and during trial. [Docket Item 1.] Later, Petitioner filed an "Addendum" to his memorandum, adding a paragraph that he asserts was mistakenly left out of his final brief. The Addendum asserts that counsel was ineffective for not seeking a Rule 29 motion for acquittal on the ground that Petitioner was actually innocent of the § 924(c) claim. [Docket Item 12.] Finally, in Petitioner's reply brief, he asserts, for the first time in so many words, actual innocence of the § 924(c) charge as grounds for relief under 28 U.S.C. § 2255. [Docket Item 70, at 10-11.]
After requesting and receiving several extensions of time to file a response, the government filed opposition, contesting all of Petitioner's claims. [Docket Item 13.]
The Court will assess each claim in turn.
III. Standard of Review
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. Failure to advise about sentence exposure
Petitioner alleges that his counsel did not inform him about consecutive prison terms, did not advise him of the "Career Offender" provision under the sentencing guidelines, and did not apprise him of his possible sentence exposure if he were found guilty at trial. [Mem. of Law and Facts Supporting Section 2255 Mot. ("Pet. Mot.") at 3-4.] Respondent replies that the record shows that Petitioner knew about the risks of going to trial and his possible sentence exposure, because Petitioner acknowledged as much on the record in court, and thus Petitioner can show no prejudice, even assuming that his counsel was deficient. [Resp't Opp'n at 11-13.]
In a proceeding before Judge Rosen, then a U.S. Magistrate Judge, the prosecutor summarized the charges facing Petitioner and noted that a conviction on the § 924(c) charge could result in a sentence of "up to life imprisonment." [Docket Item 14-2 at 73:16-74:15.] Judge Rosen asked Petitioner if he heard and understood the summary, to which Petitioner replied "Yes." [Id. at 74:16-18.] The prosecutor repeated the same information five days later at Petitioner's pretrial detention hearing, including the possible maximum sentence of life in prison, and Petitioner similarly affirmed that he heard and understood the charges and possible consequences. [Id. at 80:11-81:3.] The same information about the charges and their possible penalties, including the possibility of "life in prison, " was repeated in the Petitioner's presence at the arraignment on the superseding indictment. [Id. at 88:17-89:10.] Furthermore, Mr. Perri, Petitioner's counsel, in a declaration states that he advised Petitioner of the possibility of life in prison. [Docket Item 14-1 ¶ 5.]
Based on these exchanges contained in the record, and supported by Mr. Perri's declaration, the Court finds that Petitioner was aware of the risks of going to trial. Because Petitioner knew of the possibility of a life sentence, and received 40 years in prison, he will be unable to show prejudice from counsel's alleged ineffective assistance under Strickland and no evidentiary hearing will be held on this issue.
B. Failure to advise about pleading guilty
Petitioner asserts that had counsel provided better information, "there is a reasonable probability that [Petitioner] would have pled guilty, avoided a jury trial, and received a sentence far lesser [sic] than forty (40) years...." [Id. at 4.] Petitioner asserts that his counsel did not advise him of the option to plead guilty and accept responsibility without having to cooperate with the government. [Id.] Petitioner acknowledges in his reply brief that initial plea discussions were conducted with appointed attorney Martin I. Isenberg, not Mr. Perri, whom he subsequently retained. [Pet. R. Br. at 6-7.] He asserts that he was exposed to up to 98 additional months of imprisonment because of Mr. Perri's lack of advice about plea bargaining. [Id. at 8.]
Respondent asserts that Petitioner did not receive a plea offer, nor would Petitioner have taken one, because Petitioner has never admitted guilt in any form. [Resp't Opp'n at 11-12.] Respondent argues there are "at least two kinds of ineffective assistance claims in the plea bargaining context" - when an attorney fails to communicate a plea offer to his or her client and when an attorney gives advice that is so incorrect and insufficient regarding a plea offer that the defendant's ability to make an intelligent decision is undermined - and neither is available to Petitioner here, because the government extended no plea offer. [Id. at 17 n.10.]
The Third Circuit has recognized that a habeas petitioner states a plausible claim for ineffective assistance of counsel when he asserts that his counsel failed to advise of the possibility of entering an open plea, which would have reduced his sentence. United States v. Booth , 432 F.3d 542, 549 (3d Cir. 2005). In Booth, defendant Booth went to trial after plea negotiations broke down. Id. at 544. Booth was sentenced to 90 months in prison, and his conviction was affirmed on appeal. Id . Booth filed a § 2255 petition, alleging his counsel was ineffective because he was not informed about all possible plea options, including an "open plea, " which would not have required Booth to cooperate with the government. Id. at 543. The district court denied the motion without holding a hearing, but the Third Circuit reversed, concluding that "a defendant has the right to make a reasonably informed decision whether to accept a plea offer" and that Booth raised a sufficient allegation that he would have accepted an "open plea" and was entitled to an evidentiary hearing on the merits. Id. at 545, 549. The Third Circuit stated: "we must accept that Booth would have truthfully admitted the conduct comprising counts one and two and any additional relevant conduct" and the court found that Booth likely would have received a reduction in sentence for accepting responsibility. Id. at 548-49. The Third Circuit ordered the district court to hold an evidentiary hearing on the question. Id. at 550.
The Third Circuit distinguished the Booth holding in United States v. Gonzalez-Rivera , 217 Fed.Appx. 166 (3d Cir. 2007), and in that case affirmed the district court's denial of a § 2255 petition for an evidentiary hearing. The petitioner in Gonzalez-Rivera argued his counsel was ineffective for failing to pursue a plea agreement. Id. at 168. The court distinguished Booth, because the petitioner in Gonzalez-Rivera had maintained his innocence throughout the proceedings, and was unwilling to plead guilty, unlike Booth, who had engaged in plea negotiations. Id. at 170. In addition, the court in Gonzalez-Rivera found that the petitioner's counsel had informed him of the option to plead guilty without cooperation, unlike Booth's counsel, who did not discuss that option with Booth. Id.
Here, Petitioner alleges that he would have pled guilty had he known about the possibility of receiving a lesser sentence without cooperating with the government. Id. at 4. Mr. Perri's declaration even suggests that, before trial, Petitioner inquired about pleading guilty: "The only time Hernandez ever gave any indication that he was considering a guilty plea was when he told me to see if the prosecution would give him a ten year deal." [Docket Item 14-1 ¶ 5.] Mr. Perri explains that "I did not think he was serious when he said that" and, in Mr. Perri's opinion, Petitioner never "express[ed] any serious interest whatsoever in pleading guilty." [Id.] In fact, Mr. Perri asserts that he "strongly suggested Hernandez to plead guilty because I told [Hernandez] that I did not believe he could win the case." [Id.] The government communicated to Mr. Perri that it was willing to enter plea negotiations and that defendants had the option of a proffer session, according to Mr. Perri's declaration, but Petitioner "refused to entertain any notion of pursuing plea negotiations." [Id. ¶¶ 6-7.] Mr. Perri continues: "the government never rendered a formal plea offer; plea bargaining discussions never got specific because my interactions with my client convinced me that he never seriously contemplated pleading guilty." [Id. ¶ 8.]
Petitioner does not claim that his attorney failed to present an actual plea offer from the government. He also fails to explain his rather singular belief that he could only plead guilty if he cooperated with the government against others. Again, neither the government nor defense counsel ever attached such a condition to plea negotiations. The record is clear that there is no indication that he told his attorney, before or during the trial, that he wished to explore entering a guilty plea. He wanted his attorney to pursue all defenses. Finally, he gives no indication, even now, that obtaining a 3-point reduction in his proposed guideline range for acceptance of responsibility, still leaving him to face the certainty of many years of imprisonment and mandatory consecutive sentences, would have conceivably induced him to enter an open plea to all counts of the indictment. Accordingly, Petitioner fails to demonstrate that he would have entered an open plea, let alone that his attorney unreasonably failed to urge him to enter an open plea under the circumstances.
C. Failure to challenge cell phone evidence and failure to investigate a line of defense to challenge the cell phone evidence
Petitioner next asserts that the case against him "hinged on [the government's] cellular telephone evidence, " which demonstrated that Petitioner's cell phone traveled roughly the course that the prosecution argued Petitioner and his co-defendants took on the night of the crime. [Pet. Mot at 5-6.] Petitioner claims this his attorney "allowed the prosecution's telecommunications evidence... to go largely uncontested, " even though Petitioner "informed counsel that there may have been an innocent reason why" his phone was in the vicinity of the crime on that night. [Id. at 5-7.] Petitioner suggests that his phone could have been carried by a friend or family member, or someone might have "cloned" his phone and thus it only appeared that Petitioner's phone was in the area. [Id. at 7.] He faults his counsel for not calling an expert to explain these possibilities. [Id. at 7.]
Respondent argues that Petitioner never explains what information would have been found, had counsel investigated these matters. [Resp't Opp'n at 18.] Respondent also argues that the government argued at trial that there was no possibility that someone other than Petitioner was using his phone that night because, during the relevant period of time, the phone made outgoing calls to Petitioner's girlfriend and relatives. [Id. at 20.] Furthermore, Mr. Perri did attack the testimony of Mark Gillen, an FBI agent assigned to the Violent Crime Program out of the Philadelphia Division, who testified for the government about the cell site information. Mr. Perri forced Special Agent Gillen to admit that the precise locations of the phone could not be determined by the cell signal, nor did the signal indicate the identity of the person using the telephone. [Id. at 21-22.] Respondent concludes that there is nothing counsel could have done to further attack the evidence, and thus, Petitioner cannot show prejudice under Strickland. [Id. at 21.]
At trial, Mr. Perri conducted a challenging cross-examination of Special Agent Gillen, and elicited responses helpful to the defense about the inability of the government to pinpoint exactly the location of a cell phone from the tower information, and Mr. Perri was able to suggest the possibility that someone other than Petitioner was using the phone. [Docket Item 43 at 1331:1-1337:7.]
There was no plausible answer to the question of why some other person would have used the Defendant's cell phone to call his girlfriend and family members at the relevant times. Likewise, if his phone had somehow been cloned by the true assailant, Petitioner could easily have pointed to any unfamiliar numbers that would have shown up on the billing statements to demonstrate such use, but he did not do so and has not done so. Also Petitioner has never attempted to suggest what his attorney should have done to explain why his cell phone was linked to the two cell phones found at the scene of the crashed van.
Mr. Perri's efforts reflect a reasonable strategic decision to deal with the highly persuasive cell phone evidence, within the wide range of competent representation contemplated in Strickland. Given the undisputed evidence about the outgoing phone calls made from Petitioner's phone that night, which was suggestive that Petitioner himself used the phone, Mr. Perri was not required by the Sixth Amendment to consult with an expert about the possibility of cloning. Neither was Mr. Perri required to investigate who may have had Petitioner's phone if Petitioner, even now, does not suggest any plausible alternative with any specificity. Mr. Perri, to whatever extent he could, attempted to defend against the government's testimony and cast doubt on the strength of the prosecution's case. Mr. Perri's counsel was not ineffective in this regard, and the Court need not hold an evidentiary hearing on this claim.
D. Failure to interview and call favorable witnesses
Petitioner asserts that his girlfriend, Ashley Krause, and his sister, Wanda Moreno, "would have provided materially favorable testimony" and "would have been  favorable witness[es]." [Pet. Mot. at 7-8.] Petitioner alleges that his counsel did not properly investigate Petitioner's alleged alibi; counsel reported to Petitioner that he "checked into it and found nothing." [Id. at 8.] Petitioner concludes that his counsel "completely failed to prepare for [Petitioner's] trial...." [Id. at 9.]
Respondent replies that Petitioner has not stated what testimony any of these witnesses would have provided and how it would have helped his case. [Resp't Opp'n at 23.] Respondent also cites United States v. Gray , 878 F.2d 702, 713 (3d Cir. 1989) for the proposition that when a petitioner alleges that counsel failed to investigate or interview witnesses, prejudice must be assessed in relation to the evidence as a whole.
The Court reads pro se Petitioner's brief to suggest that his girlfriend or sister or other witnesses would be able to testify that Petitioner was elsewhere at the time the crime was committed. Mr. Perri's declaration suggests otherwise. He avers that he reviewed statements from potential witnesses, and even conversed with Ms. Krause about the case, and she convinced Mr. Perri that Petitioner was actually guilty. [Docket Item 14-1 ¶¶ 9-10.]
The prosecution's cell phone evidence, showing the location of Petitioner's phone and the outgoing phone calls to Petitioner's acquaintances, as well as the connection of the two recovered cell phones to Petitioner's phone, is strong. The cell phone evidence connected Hernandez to the precise route and times of the journey to New Jersey, the home invasion, and the getaway to Philadelphia. While it is true that the provided no witness who identified Petitioner, specifically, as being at the scene, Petitioner even at this time provides no proffer of the supposedly favorable testimony that his girlfriend Ashley Krause and his sister Wanda Moreno would have given. The Court notes that Petitioner's allegations are not sufficient for him to succeed on the motion after an evidentiary hearing; he has not articulated any testimony from any named witness that would help his defense, and a petitioner does not meet the Strickland standard with "mere speculation" about what the unlocated witnesses might have said. Gray , 878 F.2d at 712.
It is uncontradicted that Mr. Perri indeed investigated the prospect of calling Moreno and Krause. As to Moreno, he learned that she had been immunized by the government and that she gave information harmful to Petitioner's defense, according to the report of her interview. (Perri Decl. ¶ 10 at App. 56-57.) He also interviewed Krause and never received information from her that would be helpful to Petitioner's defense; in particular, "Krause confirmed that Hernandez had his cellular telephone (as opposed to someone else having it) during the relevant time period." (Id. ¶¶ 10-11 at App. 57.) If either Moreno or Krause had any exculpatory evidence to offer, it does not appear upon this record.
Given the overwhelming strength of the circumstantial evidence against Petitioner and given further the efforts counsel undertook to investigate them as possible alibi witnesses, this is not a case where counsel's efforts were below the standards of effective assistance.
Petitioner's bald assertions and conclusory allegations do not provide sufficient ground to require an evidentiary hearing, where Petitioner has not proffered specifically what their testimony would have been and where counsel in fact investigated them as possible witnesses and rejected the idea for perfectly sound reasons. Zettlemoyer v. Fulcomer , 923 F.2d 284, 301 (3d Cir. 1991); see Gray , 878 ...