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Baskerville v. United States

United States District Court, D. New Jersey

November 15, 2018

WILLIAM BASKERVILLE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION

          PETER G. SHERIDAN UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         Petitioner, William Baskerville, has filed a. pro se motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. For the following reasons, the majority of petitioner's § 2255 claims will be denied. However, a few of petitioner's claims will require an evidentiary hearing. Additionally, this Court will reserve judgment on one of petitioner's claims until after the evidentiary hearing. Finally, this Court will order respondent to file a response to one of petitioner's motions to expand the record.

         II. FACTUAL AND PROCEDURAL BACKGROUND

         In early 2003, petitioner became a target of the Federal Bureau of Investigation ("F.B.I.") for his involvement in distributing drugs. (See Crim. No. 03-836 ECF 190 Trial Tr. ("T.T.") at p.3473-74)[1] Deshawn "Kemo" McCray was a paid informant for the F.B.I. (See T.T. at p.3396-97) In January, 2003, McCray began purchasing crack cocaine from Terrell Thomas. (See id at p.3475-78) Thereafter, Thomas introduced McCray to petitioner. McCray was then advised that he could call petitioner directly on his cell phone if he wanted to purchase drugs. (See Id. at p.3478) Subsequently, and throughout the course of 2003, McCray made several drug purchases from petitioner.

         Petitioner was part of a larger drug organization at the time of McCray's drug purchases from him. Hakeem Curry was the "top guy" of this organization. (See T.T. at p.4355) Petitioner was below Curry by a few levels in the organization's hierarchy. (See Id. at p.4356) Below petitioner was Anthony Young, Jamal McNeil and Jamal Baskerville. (See id at p.4357) Below Young, McNeil and Jamal Baskerville were street-level dealers. (See id.)

         Ultimately, petitioner was arrested on November 25, 2003. (See T.T. at p.3761-62) Paul Bergrin represented petitioner at his initial appearance on the day of his arrest. (See Id. p.3836) While petitioner was being detained during the period following his arrest, petitioner communicated to Richard Hosten, another person who had sold drugs to McCray. Hosten had been arrested and had an initial appearance the same day as petitioner. Thereafter, when Hosten and petitioner were back at the Hudson County Jail, Hosten heard petitioner mention the name of Kemo to whomever he was speaking to on the telephone. (See Id. at p.4286) Thereafter, petitioner again told Hosten that Kemo was probably the reason that they were in jail. (See Id. at p.4277-78)

         After petitioner's initial appearance on November 25, 2003, Bergrin and Curry spoke by phone. At that time, Bergrin told Curry that the name of the confidential informant against petitioner was "K-Mo." (See Id. at p.4352) Young, who was present with Curry at the time of this call between Curry and Bergrin, came to the conclusion that the informant was "Kemo" and not "K-Mo" as stated by Bergrin, because Curry had repeated the name "K-Mo" after Bergin told him it over the phone. (See Id. at p.4352)

         Several days after petitioner's arrest, a meeting among various associates of the Curry drug organization took place at Jamal Baskerville's house. (See T.T. p.4359) Curry, Rakeem Baskerville, Jamal Baskerville, McNeil, Young and Bergrin were present. (See id.) At this meeting, Bergrin told the group that petitioner would not get bail and that petitioner was facing life imprisonment. (See Id. at p.4360) However, Bergrin told the group that if Kemo was not around to testify against petitioner, then there was no case, stating, "no Kemo, no case." (See Id. p.4361)

         After Bergrin left, the group remaining then discussed how to find Kemo McCray so that he would not testify against petitioner. (See Id. at p.4362) Curry and Rakeem Baskerville agreed to pay $15, 000 to either Young or McNeil to kill Kemo McCray. (See Id. at p.4363)

         From November, 2003 to March, 2004, Jamal McNeil visited petitioner in jail from time to time. (See Id. at p.4376) During these meetings, petitioner told McNeil that Kemo McCray needed to be killed quick or else he was going to spend the rest of his life in prison. (See Id. at p.4376)

         On March 2, 2004, McCray was discovered by the Curry drug organization. (See Id. p.4380) At that time, Curry instructed Young to kill McCray since Young had already been given $7500 to complete the murder. (See Id. at p.4382) Curry gave Young a gun to kill McCray. (See id atp.4383)

         Ultimately, Young and Rakeem Baskerville found McCray in Newark, New Jersey. As McCray was walking with his stepfather, Ronnie Davis, Young approached McCray, then shot and killed McCray. (See Id. at p.4399-4400)

         After McCray had been shot and killed, the F.B.L visited petitioner in prison to question him about McCray's murder. (See Id. at p.4753) Petitioner became upset after one of these visits. (See id.)

         Petitioner had had discussions with other inmates about McCray both before and after McCray's murder. Indeed, Troy Bell, another prisoner, stated that petitioner told him at one point that, "all I know, my informant could be dead. He said, my dudes is looking for him to put a bullet in his melon, but they can't find him." (See Id. at p.5060) Bell also stated that petitioner told him he knew who his informant was, that he told this information to his brother Rakeem Baskerville, and that he told him to "handle it." (See Id. at p.5067) Eric Dock, another prisoner, similarly stated that petitioner told him that his brother was out there looking for his informant and that they were "trying to put a hole in his melon." (See Id. at p.5263) Subsequent to McCray's murder, petitioner told one of his fellow prisoners, Eddie Williams, that he would have been a fool to tell the F.B.I, he had the murder done, even though he did. (See Id. at p.4753)

         In January, 2005, Young came to the F.B.I, to explain that he was involved in the murder of McCray. (See T.T. at p.3871) Young knew facts about the murder such as the positioning of McCray's body after he was killed, and that McCray also had a cigarette and a dust mask. (See Id. at p.3891) Ultimately, Young pled guilty to murdering a witness. Under a cooperating agreement, Young agreed to testify truthfully for the government. (See Id. at p.4596)

         On June 29, 2006, a Fourth Superseding Indictment was returned against petitioner. (See Crim. No. 03-836 ECF 82) Petitioner was charged with several counts of drug offenses as well as two counts related to the murder of McCray; namely conspiracy to murder a witness and conspiracy to retaliate against an informant.

         In 2007, petitioner went on trial before now retired District Judge Joel A. Pisano.

During jury selection, the District Court and parties settled on a venire of fifty-two potential jurors. The prosecution exercised peremptory challenges to strike four of the five African American venirepersons. The defense objected, claiming that the prosecutors impermissibly used peremptory challenges to prevent African Americans from being seated on the jury. See Batson v. Kentucky, 476 U.S. 79');">476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) (holding that the use of peremptory challenges on account of race violates the Equal Protection Clause). In response, the prosecution volunteered explanations for its use of peremptory challenges principally focused on the stricken jurors' attitudes toward the death penalty and relation to convicted criminals. Defense counsel did nothing to challenge the proffered explanations and the District Court overruled defense counsel's objection, finding that the prosecution's reasons were race-neutral, credible, and not pretextual.
Prior to trial, the prosecution filed a motion in limine seeking to introduce statements made by McCray while alive, pursuant to the forfeiture-by-wrongdoing exception to the ban on hearsay set forth in Federal Rule of Evidence ("FRE") 804(b)(6). Rather than hold a pretrial evidentiary hearing to determine whether the exception's elements were met, as defense counsel requested, the District Court reviewed the prosecution's extensive proffer of evidence connecting [William] Baskerville to McCray's murder. The District Court then indicated that it would admit the statements subject to the prosecution's making of the necessary connection at trial. Shortly before the end of trial, the District Court ruled definitively that the prosecution had made the necessary showing to admit McCray's statements under FRE 804(b)(6).
The District Court so ruled based upon evidence that the prosecution introduced in support of the charges against [William] Baskerville related to McCray's murder. That evidence consisted primarily of testimony by the gunman, Anthony Young, who testified that Baskerville had Bergrin transmit McCray's identity as an informant to several associates and told one associate to act quickly in killing McCray or else [William] Baskerville would lose the case. Young understood [William] Baskerville to have instructed the group to kill McCray. [William] Baskerville's cellmate corroborated Young's understanding with testimony that [William] Baskerville admitted lying to F.B.I. agents when he denied having McCray killed.

United States v. Baskerville, 448 Fed.Appx. 243, 245-56 (3d Cir. 2011).

         One of the witnesses who testified at petitioner's trial was F.B.I. Special Agent Shawn Manson.[2] Manson testified for several days at petitioner's trial. Her testimony included her interactions with McCray as well as evidence McCray provided the government as an informant and purchaser of drugs from petitioner. Another witness for the government was Anthony Young. Young's testimony included phone calls between Bergrin and Curry on the day petitioner was arrested, a meeting between Bergrin and members of the drug organization after petitioner was arrested, his subsequent killing of McCray, and what he did after the killing.

         After weeks of testimony, petitioner was eventually convicted by a jury on all counts. The jury declined to impose the death penalty against petitioner. Instead, petitioner was sentenced to nine concurrent terms of life imprisonment. (See Crim. No. 03-836 ECF 244)

         Petitioner directly appealed to the United States Court of Appeals for the Third Circuit. Petitioner raised the following claims on his initial direct appeal:

1. The prosecutor's proffered reasons for striking four of the five black jurors on the jury venire were pretexts for racial discrimination, in violation of Batson v. Kentucky, 476 U.S. 79');">476 U.S. 79(1986).
2. The District Court erred by allowing the government to introduce out-of-court statements made by Kemo McCray.
3. The government failed to present sufficient evidence to prove beyond a reasonable doubt that petitioner was complicit in the murder of Kemo McCray.

         Thereafter, the government filed a motion to remand the case to the District Court for further fact-finding. This occurred as a result of the government's appellate attorney who reviewed the rough notes from jury selection of the trial Assistant United States Attorneys that were not part of the record on appeal. The Third Circuit granted this partial remand for further proceedings.

         On remand, Judge Pisano determined that petitioner's Batson objections would remain overruled. Judge Pisano denied petitioner's motion for a new trial. (See Crim. No. 03-836 ECF 287 & 288) Thereafter, the matter was again appealed to the Third Circuit. Petitioner added a claim on this appeal that the District Court erred by denying his motion for a new trial because the prosecution did not disclose evidence favorable to the defense.

         Ultimately, the Third Circuit affirmed the District Court's judgment of conviction. Baskerville, 448 Fed.Appx. 243. The Third Circuit failed to find any error, let alone, plain error, "that would lead [them] to disturb the District Court's ruling that the prosecutor's race-neutral reasons were credible." Id. at 247. Furthermore, the Third Circuit noted that they did "not find the points of comparison between jurors that Baskerville urges to be so blatant that the District Court should have easily recognized that the Government's reasons lacked credibility." Id. at 248. With respect to the juror notes by the government, the Third Circuit determined that:

[m]erely making notes of a juror's race, as the prosecution did, is insufficient alone to support a finding of discriminatory intent. Similarly, the grading system used by the prosecutors, without more, does not lead us to conclude that the Government intentionally discriminated.

Id. at 249.

         The Third Circuit also rejected petitioner's claim that the District Court had erred by admitting McCray's statements pursuant to the forfeiture-by-wrongdoing exception to hearsay under Federal Rule of Evidence 804(b)(6). The Third Circuit determined that the government had made a sufficient showing of petitioner's actions and intent that procured McCray's unavailability at trial. See Baskerville, 448 Fed.Appx. at 249-250.

         Petitioner's sufficiency of the evidence claim on the murder conspiracy convictions was also denied. Indeed, the Third Circuit stated as follows:

There was sufficient evidence from which a jury could have found that [William] Baskerville intended to prevent McCray from testifying at his trial. Testimony from Anthony Young, the gunman who shot McCray, supported the jury finding that [William] Baskerville directed Bergrin to pass along McCray's identity to several associates after identifying him as the informant. Further testimony by Young indicated that the associates to whom McCray's identity was passed understood the message to be an instruction from [William] Baskerville to have McCray killed. [William] Baskerville's cellmate corroborated as much when he testified that Baskerville admitted responsibility for the murder because without McCray the prosecution had no drug case against him. This and other evidence, if credited by a jury, could easily lead it to conclude, beyond a reasonable doubt, that [William] Baskerville participated in the conspiracy to murder McCray with intent to prevent him from testifying at trial.

Id. at 250-51.

         Finally, the Third Circuit denied petitioner's claim raised pursuant to Brady v. Maryland, 373 U.S. 83 (1963), that the prosecution failed to disclose evidence that Bergrin participated in the murders of witnesses in unrelated cases. See Baskerville, 448 Fed.Appx. at 251-52. Indeed, the Third Circuit determined that "[e]vidence that Bergrin helped retaliate against witnesses in other cases would not have proved favorable to the defense." Id. at 251. Furthermore, the Third Circuit determined that the undisclosed evidence was not material to petitioner's guilt. See Id. at 252.

         Petitioner then filed a petition for writ of certiorari to the United States Supreme Court. The Supreme Court subsequently denied petitioner's petition for writ of certiorari. See Baskerville v. United States, 568 U.S. 827 (2012).

         As petitioner's trial was ongoing at the District Court and appellate level on direct appeal, the government brought federal criminal charges against Bergrin. Among one of the charges filed against Bergrin was witness-tampering for his role in facilitating the murder of McCray. Bergrin's criminal proceedings were initially before District Judge William J. Martini. Judge Martini ordered the McCray murder counts to be severed and tried first and separate from the rest of the charged crimes against Bergrin. Bergrin went to trial on the two counts related to the McCray murder in late 2011.[3] Ultimately, that trial resulted in a mistrial after the jury could not return a verdict. The government then appealed various evidentiary rulings prior to the retrial of Bergrin. The Third Circuit then vacated one of the District Court's evidentiary rulings and remanded the matter, albeit to a different District Judge. See United States v. Bergrin, 682 F.3d 261 (3dCir.2012).

         Bergrin was retried in 2013[4] before now retired District Judge Dennis M. Cavanaugh. At that trial, and most relevant to petitioner's action currently before this Court, Bergrin was convicted on the counts related to McCray's murder. On appeal to the Third Circuit, Bergrin asserted that the government provided insufficient evidence to convict him on the counts related to the McCray murder. The Third Circuit denied this claim, stating as follows:

The record is replete with evidence to support the Government's claim that Bergrin was "house counsel" to Hakeem Curry's drug-trafficking organization. In that capacity, Bergrin was retained to represent Curry's underlings to ensure that they did not cooperate with authorities. One such underling was William Baskerville, who was arrested on November 25, 2003, for selling crack cocaine to a confidential witness. [William] Baskerville deduced the identity of the confidential witness and disclosed it to his lawyer, Bergrin, who then called Curry to advise him that the witness was "K-Mo." Anthony Young, who was with Curry when he received Bergrin's call, recognized "K-Mo" as Kemo McCray. Soon thereafter, Bergrin met with Curry and several of his associates. According to Young, Bergrin told the group that [William] Baskerville "was facing life in prison for that little bit of cocaine," App. 3281, and "if Kemo testify against Will, Will was never coming home. He said ... don't let Mr. McCray ... testify against Will, and if he don't testify, he'll make sure he gets Will out of jail," App. 3282. Bergrin repeated: "no Kemo, no case," a phrase he reiterated upon leaving the group while pointing his finger. App. 3282, 3283. A few months later, Young shot McCray to death.
Although the aforementioned excerpts from the record are enough to sustain Bergrin's convictions related to the McCray murder, there is much more. For example, Bergrin told another client that he would kill an informant named Junior and that "it wasn't his first time," App. 6855; see also App. 6853, which a rational juror could infer was a reference to the McCray murder. Rather than denying culpability, Bergrin boasted to his law partner, Thomas Moran, that the Government lacked evidence to convict him of McCray's murder, further supporting the same inference. Finally, the jury was allowed to infer that Bergrin had the ultimate motive to prevent McCray from testifying against [William] Baskerville because, had [William] Baskerville been incentivized to cooperate against Curry, the Government might have "climbed the ladder" to Bergrin himself.

United States v. Bergrin, 599 Fed.Appx. 439, 440-41 (3d Cir. 2014).[5]

         After petitioner's direct appeal concluded, he filed a pro se § 2255 motion in this Court. Petitioner raises a plethora of claims in his petition. First, he asserts numerous ineffective assistance of trial counsel claims; they are as follows:

1. Failure to investigate audio of March 21, 2003 surveillance video ("Claim I").
2. Failure to investigate phone system at the Hudson County Jail ("Claim II").
3. Failure to investigate Anthony Young ("Claim III").
4. Failure to investigate drug evidence chain of custody ("Claim IV").
5. Failure to investigate witness Anthony Young on material facts ("Claim V").
6. Failure to challenge jailhouse informant testimony ("Claim VI").
7. Failure to challenge drug evidence based on faulty chain of custody ("Claim VII").
8. Failure to object to and challenge speculative and improper testimony from Anthony Young ("Claim VIII").
9. Failure to object to hearsay testimony from Anthony Young ("Claim IX").
10. Failure to object to hearsay testimony by Agent Manson ("Claim X").
11. Failure to object to hearsay testimony from Marshal Cannon ("Claim XI").
12. Failure to meaningfully cross-examine witnesses Manson, Young and Dock ("Claim XII").
13. Failure to properly preserve the Batson issue ("Claim XIII").
14. Failure to challenge grand jury irregularities ("Claim XIV").
15. Failure to challenge the obstructive nature of the delays and restrictions relative to discovery ("Claim XV").
16. Failure to object/preserve the jury instruction that relieved the government of its burden of proof on counts 1 and 2 ("Claim XVI").
17. Failure to object/preserve the issue of a constructive amendment of the indictment ("Claim XVII").
18. Failure to object/preserve the jury instruction that insufficiently defined conspiracy ("Claim XVIII").
19. Failure to seek a bifurcated trial ("Claim XIX").
20. Failure to object to an illegal sentence ("Claim XX").

         In addition to these ineffective assistance claims, petitioner also alleges that appellate counsel was ineffective for failing to advance the following issues on appeal:

1. The confrontation/hearsay issues stemming from the testimony of Marshal Cannon ("Claim XXI").
2. The insufficient evidence with respect to the agreement element required to sustain the conspiracy convictions in counts 1 and 2 ("Claim XXII").
3. The government's failure to correct known perjured testimony by Anthony Young and Agent Manson ("Claim XXIII").
4. Prejudicial errors with respect to the jury instructions ("Claim XXIV").
5. Sentencing errors ("Claim XXV").
6. Additional plain errors with the trial record ("Claim XXVI").
7. Lack of subject matter jurisdiction as to all charges ("Claim XXVII").
8. Any issues identified with respect to trial counsel's ineffectiveness that could have been raised on appeal ("Claim XXVIII").

         Petitioner also claims that he is entitled to relief due to the cumulative errors associated with his ineffective assistance of counsel claims ("Claim XXIX").

         Petitioner claims he also has newly discovered evidence which shows that his convictions are constitutionally infirm and should be vacated ("Claim XXX"). Within this claim are numerous sub-claims, they are as follows:

a. Inconsistencies relative to the government's theory as to the motive of the McCray murder.
b. Inconsistent testimony by Manson on the issues of how, when and from whom, she learned information relative to the McCray murder.
c. Numerous material inconsistencies and conflicts with Young's testimony.
d. Additional inconsistencies and conflicts as to highly material matters.
e. Eyewitness information that cast doubt on the foundation of the government's case as related to the murder counts.

         Finally, petitioner claims he is entitled to relief due to prosecutorial misconduct ("Claim XXXI"). Again, within this claim there are several subclaims; they are:

a. Withholding audio recordings.
b. Allowing perjured testimony on material matters to go uncorrected.
c. Presenting different theories of motive on the McCray murder at petitioner's and Bergrin's trial.
d. Government gaining an unfair advantage in obtaining favorable evidentiary rulings due to its lack of disclosure of newly discovered evidence.

         Respondent filed a response in opposition to petitioner's § 2255 motion. Thereafter, this matter was reassigned to the undersigned in light of Judge Pisano's retirement. Subsequently, petitioner filed a reply in support of his § 2255 motion.

         After the matter was fully briefed, petitioner filed several documents seeking to expand the record in this case. The government did not respond to many of these requests except petitioner's most recent motion to expand the record. With respect to petitioner's final motion to expand the record, the government expressly states that it does not object to that particular motion.

         III. LEGAL STANDARD FOR § 2255 MOTION

         A motion to vacate, set aside or correct a sentence of a person in federal custody pursuant to 28 U.S.C. § 2255 entitles a prisoner to relief if "the court finds .. . [t]here has been such a denial or infringement of the constitutional rights of the prisoner as to render judgment vulnerable to collateral attack." 28 U.S.C. § 2255(b). "In considering a motion to vacate a defendant's sentence, 'the court must accept the truth of the movant's factual allegations unless they are clearly frivolous based on the existing record.'" United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005) (quoting Gov't of Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989)) (citing R. Governing § 2255 Cases R. 4(b)). A District Court "is required to hold an evidentiary hearing 'unless the motion and files and records of the case show conclusively that the movant is not entitled to relief.'" Id. (quoting Forte, 865 F.2d at 62). The Third Circuit has stated that this standard creates a '"reasonably low threshold for habeas petitioners to meet.'" Id. (quoting United States v. McCoy, 410 F.3d 124, 134 (3d Cir. 2005) (quoting Phillips v. Woodford, 267 F.3d 966, 973 (9th Cir. 2001))). Accordingly, this Court abuses its discretion "if it fails to hold an evidentiary hearing when the files and records of the case are inconclusive as to whether the movant is entitled to relief." Id. (citing McCoy, 410 F.3d at 134).

         IV. DISCUSSION

         Most of petitioner's claims assert that either trial or appellate counsel were ineffective. The Sixth Amendment guarantees effective assistance of counsel. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court articulated the two-prong test for demonstrating when counsel is deemed ineffective. First, the petitioner must show that considering all of the circumstances, counsel's performance fell below an objective standard of reasonableness. See Id. at 688; see also Grant v. Lockett, 709 F.3d 224, 232 (3d Cir. 2013) (noting that it is necessary to analyze an ineffectiveness claim in light of all of the circumstances) (citation omitted). A petitioner must identify the acts or omissions that are alleged not to have been the result of reasonable professional judgment. See Strickland, 466 U.S. at 690. Under this first prong of the Strickland test, scrutiny of counsel's conduct must be "highly deferential." See Id. at 689. Indeed, "[c]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690. 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. at 689. 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).

         The second prong of the Strickland test requires the petitioner to affirmatively prove prejudice. See 466 U.S at 693. Prejudice is found where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Id.; see also McBridge v. Superintendent, SCI Houtzdale, 687 F.3d 92, 102 n.11 (3d Cir. 2012). "This does not require that counsel's actions more likely than not altered the outcome, but the difference between Strickland's prejudice standard and a more-probable-than-not standard is slight and matters only in the rarest case. The likelihood of a different result must be substantial, not just conceivable." Harrington v. Richter, 562 U.S. 86, 111-12 (2011) (internal quotation marks and citations omitted).

         "With respect to the sequence of the two prongs, the Strickland Court held that 'a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ... that course should be followed.'" Rainey v. Varner, 603 F.3d 189, 201 (3d Cir. 2010) (quoting Strickland, 466 U.S. at 697). Additionally, "claims of ineffective assistance of appellate counsel are also governed by the Strickland standard." Lusick v. Palakovich, 270 Fed.Appx. 108, 110 (3d Cir. 2008) (citing United States v. Mannino, 212 F.3d 835, 840 (3d Cir. 2000)).

         A. Claim I - Failure to Investigate Audio of March 21, 2013 Surveillance Video

         In Claim I, petitioner states that was told by his trial counsel that "you could not impeach a federal agent." (ECF 1-1 at p.3) Petitioner asserts that trial counsel's failure to impeach a federal agent manifested itself when trial counsel failed to investigate and impeach Manson with the audio of a surveillance video taken on March 21, 2003. The video was taken by the F.B.I. and shows a drug purchase by McCray. Petitioner claims that the video illustrates that Manson was not certain of highly material matters such as the identity of the subject in the video, specifics of the vehicle used such as the make, model, color, number of doors and license plate number, as well as whether or not a transaction took place. Indeed, petitioner appears transfixed on Manson's statement during trial that "[w]e were able to get the license plate. I actually saw it very clearly, although you can't see it on the videotape." (T.T. at p.3573) Petitioner states that the video was presented at trial without audio and that Manson filled in the gaps at trial regarding audio that was not played. Petitioner then argues as follows:

Trial counsel failed to investigate the missing information evident from the audio and exploit that highly material information to demonstrate that Agent Manson gave a narration at trial that was entirely inconsistent with her contemporaneous and unintentionally recorded understanding of the relevant events even though defendant-movant provided the recording and there was no strategic reason not to use the same to cast doubt on the narration of events provided by Agent Manson at trial.... The failure of trial counsel to investigate this highly material audio recording and use the same to establish the reasonable doubt the recording does give rise to was not within the bounds of reasonable competent advocacy.

(ECF 1 at p.4)

         The government asserts that counsel had a specific trial strategy for not introducing the audio portion of the drug transaction video. Relying on affidavits from petitioner's trial counsel, the government claims that the audio would have served to make the event more real in the jury's mind and the audio would not have contradicted Manson's trial testimony on any material aspect of the drug case. (See ECF 16-1 at p.7 & 16-2 at p.8)

         This Court ordered the government to provide it with a copy of the video after it failed to do so within its initial filings in this case. (See ECF 35) Respondent then complied with that order. This Court has now had the opportunity to review that surveillance video along with its corresponding audio, as well as Manson's testimony at petitioner's trial. For the following reasons, this Court finds petitioner is not entitled to relief on this claim.

         The video makes clear that Manson was part of a larger F.B.I, surveillance team on the day it was made, March 21, 2003. While it is true at one point on the video Manson states that she cannot view the license plate of the vehicle in question, a review of the video clearly reveals the license plate of the vehicle. Thus, it was not necessarily inconsistent when she testified that "we were able to get the license plate." (T.T. at p.3573) While it is true that she then testified with respect to the license plate that she "saw it very clearly," presumably meaning when the video was taken, this Court does not see how impeaching her using the audio would have changed the result of the proceeding to a reasonable probability given that the license plate was clearly visible from the video itself. Accordingly, petitioner is not entitled to federal habeas relief on Claim I.

         B. Claim II - Failure to Investigate Phone System at Hudson County Jail

         In Claim II, petitioner asserts that trial counsel failed to investigate the issue of telephone monitoring/recording capabilities at the Hudson County Jail. He claims that:

[t]he reason that issue was very important was because it was the government's position that defendant/movant made incriminating calls with regard to the alleged plot/conspiracy to kill Kemo Deshawn McCray ("McCray"), a government informant/witness, at issue in Counts 1 and 2 of this case, but that the reason the government could not present any recordings to establish that premise was because the Hudson County jail did not have the capability of recording calls during the time period defendant/movant was there .... Had trial counsel conducted the investigation defendant-movant requested in this regard, it would have been learned that the Hudson County jail did in fact have the recording capabilities the government claimed it did not have[.]

(ECF 1 at p.5) According to petitioner, had trial counsel investigated the recording capability issue further, it would have created a basis for the jury to have reasonable doubt to convict him. Petitioner claims further investigation by counsel would have exposed the jury to the government's attempt to mislead them on whether the Hudson County Jail had recording capabilities of inmate phone calls.

         At trial, Deputy Marshal William Cannon testified for the government. He testified that the Hudson County Jail is a facility that the United States Marshals Service detains federal prisoners. (T.T. at p.5466) He further testified that the Hudson County Jail did not have the capability of recording prisoners' telephone calls prior to November, 2006. (See id.)

         With respect to determining whether counsel can be deemed ineffective for failing to investigate, one court in this District has explained:

In Strickland, the Supreme Court held that trial counsel "has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." 466 U.S. at 691. "The failure to investigate a critical source of potentially exculpatory evidence may present a case of constitutionally defective representation," and "the failure to conduct any pretrial investigation generally constitutes a clear instance of ineffectiveness." United States v. Travillion, 759 F.3d 281, 293 n.23 (3d Cir. 2014) (internal quotations omitted); see also United States v Gray, 878 F.2d 702, 711 (3d Cir. 1989) (noting that a complete absence of investigation usually amounts to ineffective assistance because a counsel cannot be said to have made an informed, strategic decision not to investigate); United States v. Baynes, 622 F.2d 66, 69 (3d Cir. 1980).
Where a Petitioner can show that counsel's failure to investigate amounts to deficient performance, he must still show prejudice. In order to do so,
a defendant basing an inadequate assistance claim on his or her counsel's failure to investigate must make "a comprehensive showing as to what the investigation would have produced. The focus of the inquiry must be on what information would have been obtained from such an investigation and whether such information, assuming admissibility in court, would have produce a different result."
United States v. Askew, 88 F.3d 1065, 1073 (D.C. Cir. 1996) (quoting Sullivan v. Fairman, 819 F.2d 1382, 1392 (7th Cir. 1987)); see also United States v. Lathrop, 634 F.3d 931, 939 (7th Cir. 2011) ("[w]hen a petitioner alleges that counsel's failure to investigate resulted in ineffective assistance, the petitioner has the burden of providing the court with specific information as to what the investigation would have produced"); United States v. Green, 882 F.2d 999, 1002 (5th Cir. 1989) ("A defendant who alleges a failure to investigate on the part of his counsel must allege with specificity what the investigation would have revealed and how it would have altered the outcome" of Petitioner's case); accord Untied States v. Garvin, 270 Fed.Appx. 141, 144 (3d Cir. 2008).

Brown v. United States, No. 13-2552, 2016 WL 1732377, at *4-5 (D.NJ. May 2, 2016).

         Petitioner fails to show that he is entitled to relief on this ineffective assistance of counsel claim. He has come forward with nothing to indicate that further investigation by his trial counsel would have revealed that the Hudson County Jail had the capacity and capability to tape his phone calls during the period at issue. Accordingly, he fails to show prejudice even if counsel had investigated this issue because he has not come forward with any evidence to show that the facility did have the capability to record prisoners' phone calls at that time. See, e.g., United States v. Williams, 166 F.Supp.2d 286, 306-07 (E.D. Pa. 2001) (denying ineffective assistance of counsel claim where defendant made no showing as to what type of evidence would have been revealed with more investigation as "[b]ald assertions and conclusory allegations do not afford a sufficient ground for an evidentiary hearing in habeas corpus matters.") (quoting Mayberry v. Petsock, 821 F.2d 179, 185 (3d Cir. 1987)); see also Lewis v. Mazurkiewicz, 915 F.2d 106, 115 (3d Cir. 1990) ("With respect to trial counsel's decision not to interview Miller, petitioner has failed to show a reasonable likelihood that such an interview would have produced any useful information not already known to trial counsel[.]") Therefore, petitioner is not entitled to relief on Claim II.

         C. Claim HI - Failure to Investigate Anthony Young

         In Claim III, petitioner claims that trial counsel should have investigated and challenged Young regarding his trial testimony with respect to who was present in Curry's vehicle when Curry received a call from Bergrin at around 4:00 p.m. on November 25, 2003. During this call, Bergrin told Curry that the confidential informant was K-Mo.

         At petitioner's trial, Young testified that himself, Curry and Rakeem Baskerville were present in Curry's vehicle when Curry received this call from Bergrin. (T.T. at p.4350-51) However, petitioner states that Curry then called Rakeem Baskerville immediately after Bergrin's 4:00 p.m. call, indicating that Rakeem Baskerville was not in Curry's vehicle at the time of the Bergrin phone call. During this subsequent call, Curry asked Rakeem Baskerville who was K-Mo. Petitioner claims trial counsel had these audio recordings in their possession and that they were ineffective by not impeaching Young on his testimony that Rakeem Baskerville was physically present in Curry's vehicle at the time of the Curry/Bergrin phone call. In his reply, petitioner claims this is important because it relates to when, how and by whom the confidential informant was identified. Indeed, during petitioner's trial, Young testified that he and Rakeem Baskerville came to the conclusion that the informant was Kemo, not K-Mo as stated by Bergrin during the 4:00 p.m. call to Curry. (See T.T. at p.4352)

         Even if counsel had investigated and impeached Young on this point of Rakeem Baskerville's presence in the vehicle, it would not have changed the outcome of the proceeding to a reasonable probability. First, whether Rakeem Baskerville was in this vehicle or not at the precise time of the Bergrin call would not have made much difference at trial. Indeed, what was important at trial was what was said on the call. Immediately after the call, Curry called Rakeem Baskerville asking who was K-Mo. Thus, Young's testimony at trial corroborated what was said on the call, namely Bergrin naming the confidential informant as K-Mo. (See T.T. at p.4352) Furthermore, the audio recordings indicate that Curry then called Rakeem Baskerville. Young then testified that he and Rakeem came to the conclusion that the informant was Kemo. This is not incredible given Rakeem Baskerville's knowledge immediately after the Bergrin 4:00 p.m. phone call. Accordingly, petitioner fails to show that he is entitled to relief on this claim as he has not shown prejudice.[6]

         D. Claim IV - Failure to Investigate Chain-of-Custody Drug Evidence

         In Claim IV, petitioner alleges that trial counsel should have fully explored the chain-of-custody drug evidence that McCray purchased from petitioner. Indeed, he states that he asked trial counsel to move to suppress the DEA Form-7 exhibits pertaining to the drugs since there was a break in the chain-of-custody. In his reply, petitioner bases his chain-of-custody argument as follows:

Petitioner asserts that the Government failed to establish a sufficient chain of custody showing that the cocaine described in DEA Form-7 report was the same substance seized on the occasions described in the indictment. Where the DEA Form-7 reports describe alleged seizures from the "Crips Street Gang," the indictment alleged controlled purchases from Petitioner.

(ECF 29 at p.25)

         Petitioner is not entitled to relief on this claim. Manson explained at trial why some of the DEA Forms listed the drug evidence as coming from the "Crips Street Gang." Petitioner is correct as a factual matter that some of the forms do indeed state that the evidence came from the "Crips Street Gang" while others state the evidence came from William Baskerville. However, Manson explained that they did not convert the paperwork until April, 2003, because that is when the investigation shifted to specifically target William Baskerville. (T.T. at p.4001) Thus, this difference does not show a break in the chain-of-custody necessarily.

         Furthermore, it is worth noting that trial counsel did elicit from Manson at trial that there were errors in the forms. More specifically, counsel elicited from Manson that some of the forms indicated that the drugs were "seized" when in actuality they should have been marked as "purchased." (See T.T. at p.4001-02) The Supreme Court has explained that chain of custody gaps go to the weight of the evidence, not their admissibility in the ordinary case. See Melendez-Diaz v. Massachusetts, 557 U.S. 311 n.1 (2009); United States v. Rawlins, 606 F.3d 73, 82-83 (3d Cir. 2010) (noting while serious gaps may render a chain of custody so deficient that exclusion is required, "in the ordinary case gaps in the chain go to the weight of the evidence, not its admissibility.") (internal quotation marks and citations omitted). Trial counsel noticed and brought forth at trial the errors in the forms for the jury to consider. Accordingly, and for these reasons, petitioner fails to show that he is entitled to relief on this ineffective assistance of counsel claim.

         E. Claim V - Failure to Investigate Anthony Young on Material Facts by Calling Other Witnesses

         In Claim V, petitioner argues that certain witnesses who were not called by his trial counsel would have established that Young's testimony on material matters was false. According to petitioner, these witnesses would have challenged Young's credibility on several points, such that their testimony would have created reasonable doubt as to his two convictions arising out of the murder of McCray.

         i. Jamal Baskerville & Jamal McNeil

         Petitioner argues that trial counsel should have investigated and called as witnesses Jamal Baskerville and Jamal McNeil. Petitioner submitted his own declaration regarding what their testimony would have been if counsel had investigated and called them at trial. With respect to Jamal Baskerville, petitioner asserts in his declaration that Jamal Baskerville would have testified at trial as follows: (1) that there was no meeting in front of his house on November 25, 2003 between Diedra Baskerville, Rakeem Baskerville, Jamal McNeil, Hamid Baskerville, Hakeem Curry and Anthony Young; (2) that there was no second meeting 4-10 days after petitioner's arrest between Paul Bergrin, Hakeem Curry, Rakeem Baskerville, Jamal McNeil and Anthony Young where Bergrin said "No Kemo, no case"; (3) that he never told Young where he could find McCray so he could kill him; and (4) that petitioner never communicated to him that he wanted him or anyone else to harm McCray. (ECF 1-1 at p.6)

         With respect to Jamal McNeil, petitioner asserts in his declaration that McNeil would have testified as follows: (1) that he did not attend any meeting on November 25, 2003 at Jamal Baskerville's house among Diedra Baskerville, Rakeem Baskerville, Hamid Baskerville, Jamal Baskerville, Hakeem Curry and Anthony Young; (2) that petitioner never implied that he wanted anyone to kill McCray; (3) that he never communicated to anyone that petitioner wanted anyone to kill McCray; and (4) that petitioner had no knowledge of the conspiracy to kill McCray. .

         Petitioner is not entitled to relief on his claim that his attorney failed to investigate and call Jamal Baskerville[7] and Jamal McNeil as witnesses. In the ineffective assistance of counsel context, "[prejudice 'requires more than just a 'conceivable' likelihood of a different result." AH v. Nogan, No. 13-7364, 2016 WL 8678443, at *7 (D.N.J. Apr. 1, 2016) (quoting Grant v. Lockett, 709 F.3d 224, 235 (3d Cir. 2013) (quoting Harrington v. Richter, 131 S.Ct. 770, 792 (2011))) (other citations omitted). In Duncan v. Morton, 256 F.3d 189, 202, (3d Cir. 2001), the Third Circuit found that a habeas petitioner's failure to present any sworn testimony by the witnesses the habeas petitioner claimed counsel should have investigated and called as a witness amounted to a failure to establish Strickland prejudice. See Id. ("In light of Duncan's failure to present any sworn testimony by Sherman, he has failed to establish prejudice as a result of [counsel's] failure to interview Sherman.") (emphasis added). In the § 2255 context, other courts have similarly found that a petitioner needs to provide a sworn statement of fact from the proposed witness regarding what they would have testified to if a § 2255 petitioner is to establish Strickland prejudice. See Huggins v. United States, 69 F.Supp.3d 430, 446 (D. Del. 2014) (noting that movant did not provide an affidavit from the witness stating that he would have been available to testify and or describing his potential testimony); Karamos v. United States, No. 04-0171, 2005 WL 2777552, at *4 (D.N.J. Oct. 24, 2005) ("[T]he Court cannot conclude that Petitioner was prejudiced by counsel's failure to investigate or call these individuals as witnesses because Petitioner has failed to provide a sworn statement of facts from any of the seventeen detailing their proposed testimony.")

         In this case, petitioner failed to provide any type of sworn statements from Jamal Baskerville and Jamal McNeil that they would have been willing or able to testify. Given this omission, petitioner's declaration as to what these witnesses would have testified to amounts to speculation that is insufficient to grant him relief, or at a minimum, conduct an evidentiary hearing on this claim with respect to these two witnesses.

         ii. Paul Feinberg, Esq.

         Petitioner also claims that he requested that counsel contact Paul Feinberg, Esq., as a potential witness. Feinberg was Young's original lawyer. According to petitioner, he requested that counsel investigate Feinberg to determine: (1) whether he represented Young when he contacted the F.B.I, on January 14, 2005 as he claimed; (2) whether he had ever advised Young to not implicate himself and lie to the F.B.I, while meeting them; and (3) whether he gave Manson consent for the F.B.I, to speak to Young outside of his presence when he was Young's attorney.

         Like Jamal Baskerville and Jamal McNeil, petitioner fails to include an affidavit from Feinberg with his filings in this case. However, unlike Jamal Baskerville and Jamal McNeil, this Court does have sworn testimony from Feinberg as he testified for the defense in both Bergrin I and Bergrin II.

         Petitioner was not prejudiced by counsel's failure to call Feinberg as a witness at petitioner's trial. In Bergrin I, Feinberg testified that he represented Young for a short period of time in late 2004 and early 2005, but that when Young stopped paying him, he told him that he could no longer represent him and that he should go to the Federal Defender's Office and ask for representation. (See 09-cr-369 ECF 317 at p.30-31) Feinberg also testified that he told Young that if he was going to go to the F.B.I. that he had to tell the truth. (See Id. at p.31) Feinberg further told Young that he should not implicate himself if he talked to the F.B.I. (See id.) Feinberg testified similarly in Bergin II. (See 09-cr-369 ECF 524 at p.34-37)

         This Court fails to see how, if Feinberg testified similarly at petitioner's trial as he had in Bergrin I and II, that the outcome of petitioner's trial would have been different to a reasonable probability. Therefore, petitioner has failed to show prejudice with respect to counsel's failure to investigate/call Feinberg as a witness.

         iii. Paul Bergrin

         Petitioner provided a certification from Paul Bergrin in this action. (See ECF 29 at p.76- 81) In his certification, Bergrin states that he represented petitioner in his federal criminal case from November 25, 2003 until 2005. (See Id. at p.76) Bergrin states that trial counsel interviewed him and that he agreed to truthfully testify on petitioner's behalf. (See Id. at p.77) Bergrin explains that petitioner never expressed any intent to kill or cause harm to McCray. (See id.) He states that from early on, the plan was for petitioner to plead guilty. (See Id. at p.79) Bergrin denies "attending, setting up, being present at any meeting with anyone and ever uttering the words, 'No Kemo, No Case.'" (Id. at p.80) He further states that there:

was never a meeting on Avon Avenue, Newark, New Jersey, nor at any other location between [Bergrin], Rakeem Baskerville, Hakeem Curry, Jamal McNeil, Jamal Baskerville and Anthony Young, wherein [Bergrin] ever informed any of these individual's that if Kemo was killed or even unavailable as a witness, that I would win William Baskerville's case and he would go free; that if Kemo testifies that William Baskerville would be convicted and get life in prison. This was never stated by me to any person, never even entered my thought process and no meeting ever held wherein I ever stated this.

(Id.)

         As one court in this District has noted:

Where a petitioner challenges his counsel's decision as to which witnesses to call, courts "are 'required not simply to give [the] attorney[ ] the benefit of the doubt, but to affirmatively entertain the range of possible reasons [petitioner's] counsel may have had for proceeding as he did.'" Branch v. Sweeney, 758 F.3d 226, 235 (3d Cir. 2014). "Strickland requires that a defendant 'overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.' 466 U.S. at 689, 104 S.Ct. 2052 (internal quotation marks omitted). If the Government 'can show that counsel actually pursued an informed strategy (one decided upon after a thorough investigation of the relevant law and facts),' the effectiveness of counsel's assistance is 'virtually unchallengable.' Thomas v. Varner, 428 F.3d 491, 500 (3d Cir.2005)." United States v. Graves, 613 Fed.Appx. 157, 159-60, 2015 WL 3406548, at *2 (3d Cir. May 28, 2015).

Judge v. United States, 119 F.Supp.3d 270, 284-85 (D.N.J. 2015).

         In this case, Bergrin's own certification indicates that petitioner's trial counsel interviewed him. Thus, this does not appear to be a situation where petitioner's trial counsel failed to investigate Bergrin. Both of petitioner's trial counsel provided affidavits setting forth their reasons for not calling Bergrin as a witness. For example, Kenneth W. Keyser, Esq. states that he:

would have never called Mr. Bergrin as a defense witness. First, he was Mr. Baskerville's original attorney who was conflicted out of the case. Issues may have arisen as to the attorney-client privilege, and the Government may have been entitled to elicit otherwise privileged communications of Mr. Baskerville on cross-examination. Additionally, Mr. Bergrin was, according to the Government, "house counsel" for the Curry organization. Any such evidence elicited in front of the jury would have damaged Mr. Baskerville, as the Government claimed Mr. Baskerville was a part of this organization. Mr. Bergrin's bias to protect the organization may have been brought out, and, coupled with the allegation that Bergrin was an unindicted co-conspirator in the McCray murder, his testimony may have been seen as self-serving and lacking credibility. Additionally, I emphasized during the summation in the guilt phase that Bergrin, as "house counsel,' was principally responsible for McCray's death. This theme was also brought up in the opening of the penalty phase to point out that Bergrin was not facing any charges, let alone the death penalty.

         (ECF 16-2 at p. 14-15) Carl Herman, Esq. also submitted a declaration. In it, he stated similar reasons as did Mr. Keyser for why Bergrin was not called as a witness. (See ECF 16-1 at p. 13)

         This Court finds that petitioner's trial counsel's decision not to call Bergrin as a witness was based on an informed trial strategy that petitioner fails to overcome. Therefore, petitioner is not entitled to relief on counsel's failure to call Bergrin as a witness at his trial.

         iv. Diedra Baskerville

         Petitioner next asserts that counsel should have investigated and called Diedra Baskerville, petitioner's now ex-wife, as a witness at his trial. Petitioner does include a declaration from his ex-wife in which she states that she would have testified that she "did not attend any meeting on November 25, 2003 at the residence of Jamal Baskerville." (See ECF 29 at p.84) She further states in her declaration that she would have testified that she had no transportation on that day because the F.B.I, had taken her vehicle when they had arrested her husband at the time, and that she had never met Young prior to his appearance in Court at petitioner's 2007 trial. (See id.)

         Petitioner claims that Diedra's testimony would have refuted Young's testimony that she was present when Young arrived at Jamal Baskerville's house the morning petitioner got arrested. This Court fails to see how her testimony would have changed the outcome of the proceedings to a reasonable probability as her presence at this November 25, 2003 meeting was a minor point. Furthermore, as petitioner's trial counsel notes in their declarations, her bias was obvious. Therefore, petitioner is not entitled to federal habeas relief on this claim.

         v. Hakeem Curry & Rakeem Baskerville

         Petitioner next argues that trial counsel was ineffective for failing to investigate and call as witnesses Hakeem Curry and Rakeem Baskerville. Both of these individuals provided declarations in this matter. Hakeem Curry states as follows in his declaration:

Had Mr. Baskerville's attorney called me as a defense witness I would have testified under oath that I had no role in any sort of conspiracy to kill Deshawn McCray because of his status as an informant/witness against Mr. Baskerville.
I would have further testified that Mr. Baskerville never communicated any desire to me that he wanted any harm to befall Deshawn McCray.
I also would have testified that I never suggested in any way that anyone should harm Desahwn McCray, nor would I have condoned or entertained anyone else's desire to harm Deshawn McCray because of his status as an informant/witness against Mr. Baskerville.

(ECF 29 at p.82-83)

         Rakeem Baskerville stated as follows in his affidavit:

I would have testified that I had no involvement in, nor knowledge of, any plot, scheme, or conspiracy to kill McCray as alleged in the above-entitled cause and action.
I would have testified that I did not attend, and have never attended, any meeting at Jamal Baskerville's home on 25 November 2003 with Diedra Baskerville, Jamal Baskerville, Hamid Baskerville, Jahmal McNeil, Hakim Currie, Anthony Young and Paul Bergrin as alleged in the above-entitled cause and action.
I would have testified that I was not in Hakim Currie's vehicle on 25 November 2003 with Anthony Young and Hakim Currie when it is alleged that Paul Bergrin called Hakim Currie and gave him the name "K-Mo."
I would have testified that I did not attend any meeting 4-10 days after William Baskerville's arrest where it is alleged that a meeting occurred between myself, Paul Bergrin, Hakim Currie, Anthony Young, Jahmal McNeil and Jamal Baskerville where it is further alleged that Paul Bergrin stated "no K-Mo, no case."
I would have testified and refuted the allegation that I was involved in any aspect of the McCray murder and that any such testimony to that effect was false.
I would have testified William Baskerville never communicated to me in any way that he wanted any act of violence carried out against McCray as alleged in the above-entitled cause and action.

         (ECF 29 at p.85)

         Mr. Kayser and Mr. Herman state in their declarations that they chose not to call Rakeem Baskerville because he had already been convicted and sentenced along with Hakeem Curry to life in prison for participating in a drug conspiracy in a separate criminal proceeding. (See ECF 16-1 at p. 14; ECF 16-2 at p. 16) According to them, Rakeem Baskerville would not have aided petitioner at his trial even if he would have waived his Fifth Amendment rights. According to petitioner's trial counsel, Rakeem Baskerville would have caused serious damage to the defense's ability to maintain credibility with the jury. (See id.) Mr. Kayser and Mr. Herman's declarations though are relatively silent about why they chose not to call Hakeem Curry as a witness, except for mentioning in passing that Curry had already been convicted and sentenced to life imprisonment for participating in a drug conspiracy in a previous trial.

         It is a true that both Rakeem Baskerville and Hakeem Curry had already been tried, convicted and sentenced to life imprisonment on various federal drug charges in a separate criminal proceeding at the time of petitioner's trial in 2007. (See Crim. No. 04-280) However, neither was tried and convicted on charges arising from the murder of McCray. Both Rakeem Baskerville and Hakeem Curry state in their declarations that they had no part in the conspiracy to murder McCray. This is despite Young's testimony at petitioner's trial to the contrary.

         At the present time, and out of the abundance of caution, this Court will conduct an evidentiary hearing as it relates to trial counsel's purported ineffectiveness for failing to call these two purported unindicted co-conspirators for McCray's murder as witnesses at petitioner's trial. See, e.g., United States v. Sellner, 773 F.3d 927, 929 (8th Cir. 2014) ("The district court is not permitted to make a credibility determination on the affidavits alone.") (internal quotation marks and citation omitted).

         This Court expects to hear testimony from Mr. Herman and Mr. Kayser at this hearing regarding their investigation into these two witnesses, and their reasons for choosing not to call either witness at trial. This will give this Court a better understanding of whether their decision not to call these two witnesses could be considered sound trial strategy.

         Additionally, this Court will also expect to hear testimony from Rakeem Baskerville and Hakeem Curry at the evidentiary hearing. Among the items that this Court will seek to hear testimony about is whether these two witnesses were ready, willing and able to testify at petitioner's trial, whether defense counsel or anyone on the defense team met with them to discuss what their possible testimony would be as well as what they would have testified to at trial. Finally, petitioner may also wish to testify at the evidentiary hearing. Among the items this Court is interested in hearing from petitioner would be what, if anything, he told his counsel about Hakeem Curry and Rakeem Baskerville's willingness to testify, as well as what, if anything petitioner told his counsel regarding the nature of what these two witnesses would testify to if called as witnesses.

         vi. Rashidah Tarver

         The next witness that petitioner asserts that trial counsel should have investigated and called as a witness is Rashidah Tarver. Petitioner attached Ms. Tarver's declaration to his reply brief where she states as follows:

I am aware that I was falsely accused by Anthony Young in which he had testified that I had driven him and Rakeem Baskerville back in March of 2004 to an auto boby [sic] shop to dispose of a gun.
I had given testimony in the matter of United States v. Paul Bergrin, and my testimony was consistent in both of Mr. Bergrin's 2011 and 2013 trials to which I denied all of these false claims of Anthony Young of my involvement or having knowledge of those things which he has alleged.
Had I been called as a witness at the time of William Baskerville's trial, at which time I was available and willing to testify, I would have given testimony denying Anthony Young's false allegations that, I had driven him and Rakeem to a body shop to dispose of a gun in March of 2004 or at any other time.
I would had also testified that I have never driven Anthony Young and Rakeem Baskerville anywhere ever.
Also I have never been contacted or interviewed by any investigator or the attorneys' of William Baskerville in relations to the matter of Mr. Baskerville.

(ECF 29 at p.86)

         Petitioner's trial counsel's declarations each state that Ms. Tarver was interviewed by a defense team investigator, but that it was determined she was of no value and would not make a good witness. (See ECF 16-1 at p. 15; ECF 16-2 at p. 16-17)

         This Court will not decide this claim under the first prong of Strickland. Indeed, there is a factual dispute between Ms. Tarver and petitioner's trial counsel whether she was ever interviewed. Accordingly, the claim will be analyzed to determine whether there was any prejudice.

         This Court finds that there was no prejudice to petitioner. Ms. Tarver's testimony related to a tangential and relatively minor issue of whether she drove Young after the murder to an auto body shop where the gun was destroyed after McCray was murdered. This testimony would not have changed the outcome of the proceedings to a reasonable probability. Thus, petitioner is not entitled to relief on this claim.[8]

         F. Claim VI - Failure to Challenge Jailhouse Testimony

         In Claim VI, petitioner alleges that trial counsel failed to challenge the testimony of Eric Dock, a jailhouse informant. According to petitioner, trial counsel should have called Bergrin during a pre-trial hearing to advance an argument that Dock had obtained information about the murder not from petitioner's admissions, but from pre-trial discovery that was in Baskerville's cell that Dock had supposedly accessed.

         Petitioner is not entitled to relief on this claim. He comes forward with nothing to indicate that Bergrin could or would have testified as to what was the actual source of Dock's information. Thus, petitioner fails to show prejudice.

         G. Claim VII - Failure to Challenge Drug Evidence based on Faulty Chain-of-Custody

         In Claim VII, petitioner reiterates his claim that trial counsel was ineffective in failing to challenge the drug evidence based on faulty chain-of-custody. As detailed in supra Part IV.C, petitioner is not entitled to relief on this claim. Therefore, it will be denied.

         H. Claim VIII - Failure to Object/Challenge Speculative/Improper Testimony

         In Claim VIII, petitioner argues that trial counsel failed to object to improper testimony from Anthony Young. More specifically, petitioner asserts counsel should have objected when Young testified relative to McCray's name being passed along to him and what it meant when Young said that the name being passed along meant "if you cross the Baskerville's and somebody give you the name who did it, get rid of 'em," as well as to information from petitioner whereby Young said it was a "demand." (See Dkt. No. 1-1 at p.8)

         Trial counsel state in their declarations that there was no strategic value in challenging either of these claims. This Court agrees. Petitioner fails to state what the legal significance of a request as opposed to demand to kill McCray. Furthermore, there was no strategic reason to object to Young's testimony about how he interpreted the communication from Baskerville regarding McCray since it was relevant to explain Young's subsequent actions. Accordingly, petitioner is not entitled to relief on this claim.

         I. Claim IX - Failure to object to hearsay testimony of Young

         In Claim IX, petitioner argues that his trial counsel failed to object to hearsay testimony by Anthony Young. Petitioner's objection relates to Young's testimony that petitioner told Jamal McNeil that they had to hurry up and get rid of the confidential informant. (See ECF 1-1 at p.8)

Rule 801 of the Federal Rules of Evidence explains that a statement is not hearsay if "the statement is offered against an opposing party and ... was made by the party's coconspirator during and in furtherance of the conspiracy." The Rule thus imposes two predicate inquiries before a statement will be admitted: (1) the statement must be made by a coconspirator, and (2) the statement must be made during the course of and in furtherance of the conspiracy. Both requirements must be satisfied by a preponderance of the evidence.

United States v. Stimler, 864 F.3d 253, 273 (3d Cir. 2017) (footnotes and citations omitted). Petitioner's statement to McNeil falls within the co-conspirator exception to hearsay. Counsel was not ineffective for failing to object to the introduction of this testimony because the objection would have been overruled.

         J. Claim X - Failure to object to hearsay testimony by Agent Manson about statements made by McCrav prior to his death

         In Claim X, petitioner argues that "[t]rial counsel failed to object to hearsay testimony based on statements McCray allegedly made to Agent Manson prior to his death and counsel also failed to object to certain audio recordings being admitted." (ECF 1-1 at p.9)

         Federal Rule of Evidence 804(b)(6) provides an exception to the hearsay rule when the "statement is offered against a party that wrongfully caused - or acquiesced in wrongfully causing - the declarant's unavailability as a witness, and did so intending that result." Fed.R.Evid. 804(b)(6).

         This issue was the subject of a motion in limine filed by the government at petitioner's trial. (See Crim. No. 03-836 ECF 102) Petitioner's counsel filed a response to that motion in which they requested an evidentiary hearing to determine if the government had met its burden. (See Id. ECF 106) Ultimately, the Court stated as follows with respect to the motion in limine:

I suppose we have to take it as it comes. I don't know what more to tell you, other than to suggest to the Government that I would hope that you would present the proofs on these threshold issues in such a way that it makes orderly sense and I would suggest, I don't know that it is determinative, but I would suggest that this sort of issue not, to the extent it can be avoided, not be the kind of thing that comes in subject to connection later on.

(Id. ECF 123 at p. 14)

         An issue on petitioner's direct appeal was whether the trial court erred by admitting McCray's statements pursuant to Federal Rule of Evidence 804(b)(6). See Baskerville, 448 Fed.Appx. at 249. Ultimately, the Third Circuit explained that, "[t]he District Court's admission of McCray's statements did not constitute error because the Government's proffer made a sufficient showing of Baskerville's actions, and intent, to procure McCray's unavailability." See Id. Thus, as the Third Circuit noted, the government made a sufficient enough showing to permit the introduction of McCray's statements at trial. See Id. at 249-50.

         With respect to petitioner's argument as to trial counsel's purported ineffectiveness for failing to raise an objection to this testimony, he fails to show that he would be entitled to relief as any objection by petitioner's trial counsel on hearsay grounds to the admission of these statements would have been denied. See United States v. Nguyen, 379 Fed.Appx. 177, 181-82 (3d Cir. 2010) (denying claim in part that argued counsel was ineffective for failing to object to hearsay when if the objections were made they would have been rejected). Accordingly, petitioner is not entitled to relief on this claim.

         K. Claim XI - Failure to object to hearsay testimony by Marshal Cannon

         In Claim XI, petitioner states that Marshal Cannon testified that the Hudson County Jail lacked capabilities of recording prisoner phone calls while petitioner was detained there. With respect to his claim for relief, petitioner asserts that "[t]rial counsel failed to object to the hearsay-within-hearsay testimony of Marshal Cannon when they learned during cross-examination that the information that formed the basis of his testimony at issue came from an unknown and unidentified source." (ECF 1-1 at p.9)

         For context, during cross-examination, the following colloquy took place between petitioner's trial counsel and Cannon:

Q: You say that Hudson didn't have the capability of recording phone calls?
A: No, they did not.
Q: And how were you aware of that?
A: I was told by the Hudson County Jail, our point of contact there.
Q: You have been to the Hudson County Jail?
A: Yes.
Q: Do you have anything to do with their phone system?
A: Do I? No, I don't have anything to do with their phone system.
Q: They told you it didn't work, they couldn't record calls?
A: Yeah. I inquired and they advised me they couldn't do that.
Q: Who was that?
A: It was a sergeant. I don't recall his name.

(T.T. at p.5471-72)

         Petitioner fails to show that he is entitled to relief on this claim. He has not shown to a reasonable probability that the outcome of his trial would have been different had counsel objected. Petitioner has come forward with no evidence to suggest that the Hudson County Jail had the capabilities to record phone calls while he was there. This Court fails to see how if counsel had objected to this testimony, it would have changed the outcome of petitioner's trial to a reasonable probability.

         L. Claim XII - Failure to meaningfully cross-examine important witnesses

         In Claim XII, petitioner argues as follows:

Trial counsel failed to use known and available documentary evidence to meaningfully cross-examine important fact witnesses on material matters relevant to all counts. Those witnesses include Agent Manson, Young, and Dock, and the documentary evidence that was known and available is certain grand jury transcripts, audio recordings, video recordings, and reports. Had counsel used the information that was known and available the jury would have had a fair basis to find a reasonable doubt with respect to Counts 1 and 2, and the drug charges as well.

(ECF 1 at p.8)

         "[A] § 2255 movant cannot meet his burden of proving ineffective assistance of counsel based on vague and conclusory allegations[.]" Stallworth v. United States, No. 14-4005, 2018 WL 505073, at *4 n.4 (D.N.J. Jan. 19, 2018) (quoting United States v. McClellan, No. 16-2943, 2017 WL 2822315, at *1 (3d Cir. Jan. 3, 2017)). In this case, and specifically within Claim XII only, petitioner does not cite to anything specific with respect to the documentary evidence, grand jury transcripts, audio recordings, video records, and/or reports that trial counsel should have specifically cross-examined these three witnesses on. Thus, this Court will not grant petitioner relief on this particular vague and conclusory claim.

         M. Claim XIII - Failure to properly preserve Batson issue

         In Claim XIII, petitioner argues that trial counsel was ineffective when they failed to preserve Batson objections during jury voir dire.

The Equal Protection Clause forbids the use of peremptory strikes against potential jurors on the basis of race. Batson [v. Kentucky], 476 U.S. [79, ] at 88-89, 106 S.Ct. 1712. Batson established a three-step process for determining the constitutionality of a peremptory strike. First, the defendant makes a prima facie case that the prosecutor exercised a peremptory challenge on the basis of race. Coombs [v. Diguglielmo], 616 F.3d [255, ] 261 [(3d Cir. 2010)]. "Second, if the showing is made, the burden shifts to the prosecutor to present a race-neutral explanation for striking the juror in question." Id. (citing Rice v. Collins, 546 U.S. 333, 338, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006)). "Third, the court must then determine whether the defendant has carried his burden of proving purposeful discrimination." Id. (quoting Rice, 546 U.S. at 338, 126 S.Ct. 969).

Coombs v. DiGuglielmo, 581 Fed.Appx. 129, 132 (3d Cir. 2014). Within the Strickland framework, petitioner "must show that his counsel's conduct during the Batson challenge fell below the 'objective standard of reasonableness' by failing to live up to 'prevailing professional norms.'" Juniper v. Zook, 117 F.Supp.3d 780, 792 (E.D. Va. 2015) (citing Padilla v. Kentucky, 559 U.S. 356, 366 (2010) (quoting Strickland, 466 U.S. at 688)). In the context of the second prong of Strickland, prejudice, a petitioner must show that the result of the Batson challenge would have been different to a reasonable probability but for trial counsel's ineffectiveness. See id.\ see also Pirela v. Horn, 710 Fed.Appx. 66, 82 n.16 (3d Cir. 2017) (noting that under Weaver v. Massachusetts, 137 S.Ct. 1899, 1911 (2017), even if a petitioner's counsel's conduct led to a structural error, "that term 'carries with it no talismanic significance' because Pirela cannot show either a reasonable probability of a different outcome in his case, or that the error was 'so serious as to render his ... . trial fundamentally unfair.").

         At the outset, this Court notes that trial counsel did raise the issue of whether the prosecution was impermissibly striking jurors based on their race. Indeed, the following colloquy took place during voir dire:

MR. HERMAN: We wanted to express a concern, Judge. By our count, there are five African American jurors in the first 52. The Government has struck three of them, juror number 31, juror number 108, juror number 72. Out of -
THE COURT: What are those numbers?
MR. HERMAN: 31.
THE COURT: What juror number?
THE COURT: 35.
MR. FRAZER: That's old 35?
THE COURT: New 35.
MR. HERMAN: Old 108.
THE COURT: What's the new number? 56.
MR. HERMAN: And 72.
THE COURT: 47.
MR. HERMAN: We're making a challenge under Batson, Judge, that of all the challenges, 12 challenges, they used three against African Americans with only five African Americans in the entire pool, Judge.
MR. FRAZER: First, Judge, I don't think they made out a pattern under Batson, which is the threshold.
THE COURT: I'm sorry?
MR. FRAZER: They haven't made out a pattern under Batson, but regardless of that, Judge, for purposes of the record, we have exercised those challenges in a race-neutral fashion and I'll be happy to expound on that.
THE COURT: Go ahead.
MR. FRAZER: Number 31 clearly said she leans towards life imprisonment. That was the question the defense put, how do you lean one way or the other, even though you say you can be fair. She leans toward life imprisonment. We thought that she should have been challenged anyway. [¶] She also said - first of all, her child's father is in jail, so that's another reason that she may not be appropriate, she may harbor feelings about the criminal justice system. For those reasons, Judge, -- and she said it would be really hard to impose the death penalty. For those reasons, we challenged juror number 31. [¶] I'll need a minute to get to my notes.
MR. KAYSER: Can we have the old number?
MR. FRAZER: That was the old number, 31. [¶] Judge, by doing this we're not conceding in any way we've made a pattern under Batson, but for the record, we're just making these reasons known. [¶] The next one is - it may take a minute. This juror -
THE COURT: Who?
MR. FRAZER: 108, wrote on her questionnaire, "thou shalt not kill" is her religion and she agreed it. She "hates the idea of the death penalty." This is a quote. That's what she said both on the questionnaire and when I questioned her, she said that was the correct words. [¶] Her husband's brothers are both in jail for drug-related offenses and has been in jail off and on at various times for five years, one of them and one recently went in for a drug offense. [¶] She said as to that one, he was at the wrong place at the wrong time, so obviously that's questionable about whether she can -what her attitudes toward law enforcement might be. Those are the reasons for juror number 108, which I think are fairly obvious. [¶] Finally, 72, if I may just have a moment.
THE COURT: Which is new number 47.
MR. FRAZER: Oh, she was the Jamaican woman who was just all over the place and she had concerns over the death penalty that it may not - what happens if it's not the right person? She was easily confused, she went back and forth on numerous questions. [¶] Other than that, I'd have to pull my questionnaire, but I believe she also had a family member, husband's cousin in jail, but I would have to actually get the questionnaire, Judge. I have numerous notations that her questions on the questionnaire were, to say the least, questionable. I have seven of them listed. I'm just going to pull that for a moment. [¶] First, on the questionnaire, she failed to fill out her county and town of residence. She did not fill out the portions of the questionnaire which made it - it was unusual actually in relation to the rest of the pool. She, for instances, did not fill out her education in the questionnaire. She did not fill out anybody who influences her in her life and again, based upon -1 remember her clearly, Judge. Her answers were equally kind of back and forth throughout the entire process. [¶] She also didn't fill out question 67, 68 regarding the defendant testifying and presumption of innocence. [¶] Overall, those were the reasons that the Government struck this juror. She also put a question mark under her religion, what her religion or spiritual affiliation was and what the teachings were. [¶] Those concerns caused us and those are all race-neutral reasons and legitimate reasons to challenge those jurors. [¶] Frankly, Judge, as we're doing this, Mr. Minish and I had no idea the race of the jurors. That's not written down on anything that we do, for the record.
THE COURT: All right. [¶] Well, the burdens involved in this issue require the opponent of the peremptory challenge to make out a prima facie case of discrimination. The burden then shifts to the proponent of the strike to come forward with a non-discriminatory explanation for the strike and then the Court determines whether or not the opponent of the strike has demonstrated purposeful discrimination as the intent for the exercise of the challenges. [¶] Having listened to the explanation put forth by Mr. Frazer, it does appear to me that the exercise of the challenges is based on non-racial reasons. He has articulated non-racial concerns as to each of the jurors who have been challenged and I have, therefore, concluded that the challenges will stand. [¶] I accept -1 make the finding without the representation made by Mr. Frazer that they don't know the race of the jurors from the notes that they've kept and I certainly have no difficulty accepting the representation, but the Court's ruling on it doesn't require that representation because there has been a non-racial justification set forth for each of those challenges.

(T.T. at p.3203-08) After this discussion and decision by Judge Pisano, the use of peremptory strikes continued until petitioner's trial counsel made another Batson challenge after another prospective African-American juror was struck by the prosecution. Indeed, at that time, the following discussion took place:

MR. MINISH: Judge, the next two strikes from the Government are new number 33, which is old number 36; and new number 48, which is old number 74.
MR. HERMAN: Well, Judge, all I can do is keep count here. [¶] Old juror number 36.
THE COURT: 33 is already excused.
MR. HERMAN: I'm sorry, Judge. I'm making another Batson challenge. [ΒΆ] The Government has now ...

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