ROBERT B. KUGLER, District Judge.
This matter comes before the Court on the motion of James Melton ("Petitioner") under 28 U.S.C. § 2255 to set aside, correct, or vacate his sentence. Petitioner, a federal inmate proceeding pro se, seeks relief based on numerous claims of ineffective assistance of counsel. For the reasons stated herein, the Court will deny Petitioner's motion.
On October 25, 2001, Petitioner was convicted of conspiracy to distribute and possess with intent to distribute cocaine and "crack" cocaine in addition to other related charges. United States v. Melton, No. 00-384 (RBK), Doc. No. 159. He was subsequently sentenced to a prison term of 480 months. (Doc. No. 220.)
Petitioner appealed his conviction and his sentence. (Doc. No. 221.) The Third Circuit affirmed his conviction but remanded the case for sentencing in light of the Supreme Court's intervening decision in United States v. Booker, 543 U.S. 220 (2005). United States v. Melton, 131 F.App'x 21 (3d Cir. 2005). The Court heard argument on the re-sentencing on October 20, 2005. (Doc. No. 266.) At the conclusion of that argument, the Court again sentenced Petitioner to a 480-month term of imprisonment. Petitioner appealed the resentencing, and this time the Third Circuit affirmed. United States v. Melton, 215 F.App'x 108 (3d Cir. 2007). Petitioner filed a petition for a writ of certiorari in his case to the United States Supreme Court on April 16, 2007. The Court denied the petition on May 21, 2007. Then, on December 17, 2009, Petition filed the instant motion. (Civil Doc. No. 1 ("Pet'r's Mot.").)
On April 12, 2010, the Court issued an order directing Respondent to respond to Petitioner's motion within forty-five days. (Civil Doc. No. 3.) The Court then granted several of Respondent's motions for extension of time, (Civil Doc. Nos. 4, 5, 7, 8), after which Respondent filed its opposition to Petitioner's motion on November 4, 2011. (Civil Doc. No. 9.) Petitioner was also granted several extensions in order to file his reply to Respondent's opposition. (Civil Doc. Nos. 12, 14.) Although Petitioner avers that he submitted his reply to prison authorities for mailing on May 31, 2012, it was not filed on the docket. Petitioner then filed a "motion to correct the status of his pending motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255, and a motion to file his reply to Respondent's opposition. (Civil Doc. No. 15.)
On August 28, 2013, it having appeared to the Court that Grounds Four and Five of Petitioner's section 2255 motion were not raised directly on appellate review, the Court issued an Order to Show Cause directing Petitioner to show why the claims for relief set forth in Grounds Four and Five should not be dismissed as procedurally defaulted. (Civil Doc. No. 17.) On October 3, 2013, Petitioner responded to the Court's Order and formally withdrew those. (Civil Doc. No. 18 (Pet'r's Resp. to Order to Show Cause 1, 3).)
28 U.S.C. § 2255 allows a prisoner in federal custody to challenge the validity of his sentence. Accord Morelli v. United States, 285 F.Supp.2d 454, 458 (D.N.J. 2003). The prisoner has the right to be released if his sentence was imposed in violation of the Constitution. See 28 U.S.C. § 2255. Such relief is available only if the petitioner can establish "a fundamental defect which inherently results in a complete miscarriage of justice or an omission inconsistent with the rudimentary demands of fair procedure." United States v. Deluca, 889 F.2d 503, 506 (3d Cir. 1989).
Petitioner here argues that his Sixth Amendment right to effective assistance of counsel was violated. To establish such a violation, a person must establish two things:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.
Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Grant v. Lockett, 709 F.3d 224, 232 (3d Cir. 2013) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). As to the first prong of the Strickland test, the burden is on the movant to show that his counsel's performance "fell below an objective standard of reasonableness under prevailing professional norms." United States v. Saunders, 165 F.3d 248, 250 (3d Cir. 1999) (citing Strickland, 466 U.S. at 688). In this context, scrutiny of counsel's conduct must be "highly deferential." Strickland, 466 U.S. at 689. The reviewing court must make every effort to "eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. Accordingly, analysis of this first prong must proceed with the "strong presumption" that the conduct in question fell within "the wide range of reasonable professional assistance, " leaving it to the movant to overcome that presumption. Id.
If counsel makes "a thorough investigation of law and facts" about his plausible options, the strategic choices he makes accordingly are "virtually unchallengeable." Gov't of Virgin Islands v. Weatherwax, 77 F.3d 1425, 1432 (3d Cir. 2006) (citing Strickland, 466 U.S. at 690-91). If, on the other hand, counsel pursues a certain strategy after a less than complete investigation, his choices are considered reasonable "to the extent that reasonable professional judgments support the limitations on investigation." Rolan v. Vaughn, 445 F.3d 671, 682 (3d Cir. 2006) (citing Strickland, 466 U.S. at 690-91).
With regard to Strickland 's second prong, prejudice to the defendant will arise only if there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. A reasonable probability is one "sufficient to undermine confidence in the outcome." Id.
As a practical matter, a court deciding an ineffective assistance of counsel claim may begin (and potentially end) its analysis with either the first or second prongs set forth in Strickland. Id. at 697 ("If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, ... that course should be followed.").
Petitioner's motion originally asserted claims arising under the Fourth, Fifth, and Sixth Amendments. In his response to Respondent's opposition, however, he abandoned his Fourth and Fifth Amendment claims regarding the admissibility of recorded telephone conversations. (Civil Doc. No. 16 (Pet'r's Resp. to Opp'n 2 n.2).) Further, in response to the Court's August 28 Order to Show Cause, Petitioner officially withdrew his Fifth Amendment claims set forth in Grounds Four and Five of his section 2255 motion. (Pet'r's Resp. to Order to Show Cause 1, 3.) Accordingly, all that remains are Petitioner's Sixth Amendment claims that he was denied the effective assistance of counsel both at his trial and during his appeal. The Court now turns to these claims.
A. Ineffective Assistance of Trial Counsel
Petitioner's motion lists eighteen "supporting facts" which he claims demonstrate the ineffective assistance of his counsel. The Court will address each of these facts in turn.
i. "Trial counsel failed to investigate and/or listen to government audiotapes of wiretap recordings, thereby failing to properly object to their authentication and admission or to use them in their entirety for defendant's benefit once admitted"
Respondent offers persuasive evidence disputing the accuracy of this assertion. First, trial counsel avers that after receiving discovery in the case, he "listened to the audio recordings of the wiretap calls that were pertinent to the Government's case against [Petitioner]." (Resp't's Opp'n, Ex. A (Decl. of Joshua Markowitz ¶ 8a ("Markowitz Decl.")).) He also listened "numerous times" to the audio recordings of the wiretap calls the Government intended to use at trial and reviewed transcripts of them with Petitioner for further clarification. ( Id. )
The Court has no reason not to accept this declaration at face value. Petitioner offers nothing more than his speculation that counsel did not listen to wiretapped calls. ( E.g., Pet'r's Resp. to Opp'n, Decl. ¶ 13 ("At the outset when Attorney Markowitz talked to me about his defense strategy, it was clear to me that he did not independently evaluate the audio recordings.").) Instead, it appears that Petitioner, after his conviction, listened to a number of tape recorded conversations that were provided to a codefendant of his, came to the conclusion after listening to them that they reveal some inconsistencies of the evidence offered at trial, and then infers that his attorney, because he did not pursue a trial strategy that highlighted those inconsistencies, must not have listened to them. Without anything more than this apparent speculation, however, there is no indication that counsel's conduct in listening to the audio tapes that were pertinent to the Government's case against Petitioner fell below any "objective standard of reasonableness under prevailing professional norms." See Saunders, 165 F.3d at 250. Thus, Petitioner has failed to establish the first prong of Strickland. His section 2255 motion cannot therefore proceed on this basis.
ii. "Trial counsel failed to seek a Franks hearing to challenge the wiretap warrant affidavit and the government's necessity ...