United States District Court, D. New Jersey
G. SHERIDAN UNITED STATES DISTRICT JUDGE.
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.
FACTUAL AND PROCEDURAL BACKGROUND
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) 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.
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
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.
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)
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
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)
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
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
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)
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.)
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)
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)
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.
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).
the witnesses who testified at petitioner's trial was
F.B.I. Special Agent Shawn Manson. 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.
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)
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.
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.
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
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
[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.
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.
sufficiency of the evidence claim on the murder conspiracy
convictions was also denied. Indeed, the Third Circuit stated
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.
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.
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).
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. 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).
was retried in 2013 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).
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
4. Failure to investigate drug evidence chain of custody
5. Failure to investigate witness Anthony Young on material
facts ("Claim V").
6. Failure to challenge jailhouse informant testimony
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
9. Failure to object to hearsay testimony from Anthony Young
10. Failure to object to hearsay testimony by Agent Manson
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
14. Failure to challenge grand jury irregularities
15. Failure to challenge the obstructive nature of the delays
and restrictions relative to discovery ("Claim
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
20. Failure to object to an illegal sentence ("Claim
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
4. Prejudicial errors with respect to the jury instructions
5. Sentencing errors ("Claim XXV").
6. Additional plain errors with the trial record ("Claim
7. Lack of subject matter jurisdiction as to all charges
8. Any issues identified with respect to trial counsel's
ineffectiveness that could have been raised on appeal
also claims that he is entitled to relief due to the
cumulative errors associated with his ineffective assistance
of counsel claims ("Claim XXIX").
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
c. Numerous material inconsistencies and conflicts with
d. Additional inconsistencies and conflicts as to highly
e. Eyewitness information that cast doubt on the foundation
of the government's case as related to the murder counts.
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
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.
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.
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.
LEGAL STANDARD FOR § 2255 MOTION
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).
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).
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
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)).
Claim I - Failure to Investigate Audio of March 21, 2013
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
(ECF 1 at p.4)
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)
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.
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
Claim II - Failure to Investigate Phone System at Hudson
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.
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.)
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
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).
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.
Claim HI - Failure to Investigate Anthony Young
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.
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)
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
Claim IV - Failure to Investigate Chain-of-Custody Drug
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)
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.
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.
Claim V - Failure to Investigate Anthony Young on
Material Facts by Calling Other Witnesses
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.
Jamal Baskerville & Jamal McNeil
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)
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. .
is not entitled to relief on his claim that his attorney
failed to investigate and call Jamal
Baskerville 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.")
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
Paul Feinberg, Esq.
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.
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.
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)
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.
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
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
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
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)
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
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
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.
Hakeem Curry & Rakeem Baskerville
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
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)
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
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
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
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.
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
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.
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.
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)
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.
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.
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 VI - Failure to Challenge Jailhouse Testimony
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
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.
Claim VII - Failure to Challenge Drug Evidence based on
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.
Claim VIII - Failure to Object/Challenge
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)
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 IX - Failure to object to hearsay testimony of
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.
Claim X - Failure to object to hearsay testimony by Agent
Manson about statements made by McCrav prior to his
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)
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.
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)
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.
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 XI - Failure to object to hearsay testimony by
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)
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
Q: You have been to the Hudson County Jail?
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
Q: They told you it didn't work, they couldn't record
A: Yeah. I inquired and they advised me they couldn't do
Q: Who was that?
A: It was a sergeant. I don't recall his name.
(T.T. at p.5471-72)
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
Claim XII - Failure to meaningfully cross-examine
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)
§ 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.
Claim XIII - Failure to properly preserve Batson
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.").
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
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. [¶] The Government has now