United States District Court, D. New Jersey
STEVEN L. BAKER, Petitioner,
UNITED STATES OF AMERICA, Respondent.
G. SHERIDAN, UNITED STATES DISTRICT JUDGE
Steven L. Baker, is a federal prisoner proceeding through
counsel with a 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 his claims necessitate an
FACTUAL AND PROCEDURAL BACKGROUND
convictions arise from three separate armed bank robberies.
The first occurred on September 24, 2009 at the Investors
Savings Bank in Lakewood, New Jersey. (See Crim. No.
10-266 ECF 39 at 3). The second occurred at PNC Bank in
Brick, New Jersey on November 9, 2009. (See id.)
Finally, the third occurred on January 13, 2010 at the First
Atlantic Credit Union in Neptune, New Jersey. (See
committed these robberies with his cousin, Deshawn Clayton.
(See id.) The three robberies followed a similar
pattern. Petitioner and Clayton would wear gloves and masks
as they committed the robberies. (See Id. at 29-30).
Clayton would typically jump up on the bank counter during
the robberies. (See id at 41). After completing the
robberies, petitioner and Clayton would go to a motel to
split the proceeds of their bounty. (See Id. at 42).
time of the third robbery, Bryce Byham - a Neptune police
officer, happened to be in the parking lot near the bank.
(See Crim. No. 10-266 ECF 60 at 66) He noticed two
men who appeared suspicious. He took down their vehicle's
(a green Cadillac) license plate number. (See Id. at
69) Byham ultimately drove with an FBI agent to the address
where the car was registered. (See Id. at 70-71).
While there, they observed the green Cadillac. (See
Id. at 71) Alvin Hare was in the vehicle and was
initially detained. (See id at 72). Thereafter,
Clayton returned to the vehicle. (See id.) Byham
thought he looked familiar to the driver of the car who had
left the parking lot earlier. (See Id. at 72-73).
Cash was ultimately found in the Cadillac. (See Id.
at 74). Subsequently, Byham went to the Days Inn in Neptune
which was close to the First Atlantic Credit Union. He found
that Clayton had rented a room there earlier that morning.
(See Id. at 73).
his arrest, Clayton confessed to the robbery and ultimately
identified petitioner as his co-conspirator. (See
Crim. No. 10-266 ECF 39 at 71-72). Thereafter,
petitioner's residence was searched. (See Id.
ECF 60 at 186). Evidence corroborating certain aspects of
Clayton's testimony was found during this search such as
money transfers that corroborated the reasons petitioner had
given to Clayton for wanting to rob the banks. (See
Id. at 186-96).
was ultimately charged with three counts of bank robbery by
force or violence along with three counts of using a firearm
in connection with the three robberies. Petitioner's
trial took place in early August, 2010, before now retired
District Judge Garrett E. Brown, Jr. A jury convicted
petitioner on all counts. He received a sentence of
eighty-seven months imprisonment on the armed robbery counts
to be served concurrently with one other, along with
fifty-seven years total on the firearms counts. The
eighty-seven month and fifty-seven year sentences were to be
appealed his judgment of conviction to the United States
Court of Appeals for the Third Circuit. On appeal, petitioner
asserted several claims; namely: (1) trial court error by
excluding testimony regarding other cash deposits petitioner
made around the time of the robberies; (2) trial court error
in giving an "equally available witness"
instruction; (3) trial court error in allowing testimony
regarding the mapping of cell tower locations and
petitioner's cell phone; and (4) that the sentence was
substantively unreasonable. On September 17, 2012, the Third
Circuit affirmed petitioner's judgment of conviction.
See United States v. Baker, 496 Fed.Appx. 201 (3d
Cir. 2012). On January 22, 2013, the United States Supreme
Court denied petitioner's petition for writ of
certiorari. See Baker v. United States, 568 U.S.
January, 2014, petitioner filed a motion to vacate, set aside
or correct his sentence in this Court pursuant to 28 U.S.C.
§ 2255. Petitioner raised three claims in his initial
filing. Petitioner's first claim raised eight sub-claims
of purported ineffective assistance of counsel:
1. Counsel was ineffective for rejecting a plea offer from
the government without first conveying the offer to
2. Counsel was ineffective for failing to object to the use
of cell phone data for geographical information without the
government first obtaining a search warrant.
3. Counsel was ineffective for failing to investigate and or
move to suppress De Shawn Clayton's trial testimony on
the basis of Prosecutorial misconduct.
4. Counsel failed to request a Franks hearing concerning the
issuance of the warrant.
5. Counsel was ineffective for failing to call Agent
Gallagher as a defense witness.
6. Counsel was ineffective for failing to object and/or
request jury instruction.
7. Counsel was ineffective for failing to appeal
insufficiency of the evidence presented at trial to obtain
8. Counsel was ineffective in her failure to hire a latent
print examiner, and a forensic video analyst, and/or present
exculpatory evidence, namely, fingerprints, fabric, footwear,
and glove impressions.
(ECF 1 at 4-5). Petitioner's second ground raised in his
initial filing was for prosecutorial misconduct. His third
ground was for cumulative error.
government filed a response in opposition to petitioner's
§ 2255 motion. (See ECF 7). Thereafter,
petitioner filed a traverse. (See ECF 8).
Subsequently, petitioner filed a motion to appoint counsel
along with a motion to amend his § 2255 motion.
(See ECF 11 & 13). In the motion to amend,
petitioner sought to add claims to this action pursuant to
Johnson v. United States, 135 S.Ct. 2551 (2015).
Ultimately, this Court granted both motions. Giselle R.
Pomerleau, Esq., of the Federal Defender's Office was
appointed to represent petitioner. (See ECF 23).
petitioner, now represented by counsel, filed a supplemental
brief in support of his § 2255 motion. (See ECF
32). In that supplemental brief, petitioner asserted that
trial counsel's inaccurate advice regarding the expected
Sentencing Guidelines calculation during plea negotiations
led petitioner to go to trial and reject a plea offer of
168-189 months. Additionally, the supplemental brief sought
to preserve all arguments concerning the interpretation of 18
U.S.C. §§ 924(c)(1)(A) and 924(c)(1)(C)(I).
government then filed a response to petitioner's
counseled supplemental brief. (See ECF 36).
Subsequently, petitioner filed a supplemental brief
considering the United States Supreme Court decision in
United States v. Davis, 139 S.Ct. 2319 (2019). In
that brief, petitioner withdrew his Johnson claim.
The matter is now ripe for adjudication on petitioner's
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 trial counsel was
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
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)).
Rejecting Plea Offer
petitioner's first claim, he asserts trial counsel
rejected a plea offer from the government without
petitioner's consent. More specifically, petitioner
states as follows:
The governments [sic] first plea offer was for the dismissal
of the two armed bank robbery charges for a guilty plea to
the remaining one count of armed bank robbery charge.
As a counter offer to the governments [sic] plea offer,
defense counsel offered a dismissal of "all" three
armed bank robbery charges for a guilty plea of
"misdemeanor possession of stolen property."
The government rejected defense counsel's counter offer
of misdemeanor possession of stolen property and instead the
government offered "criminal possession of stolen
property" in exchange for the dismissal of the
"three" armed bank robbery charges.
Counsel rejected the criminal possession of stolen property
plea offer because counsel erroneously believed that the
petitioner would still be exposed to the same amount of
prison time as if the petitioner would have plead [sic] to
one count of armed bank robbery, based, upon a failure to
investigate petitioner's offense level and criminal
Counsel incorrectly assumed that since petitioner had not,
initially, accepted the one count of armed bank robbery plea
offer, from the government, that petitioner would have
rejected the criminal possession of stolen property plea
offer, therefore counsel rejected the government's offer
without first consulting with petitioner and without
petitioner's consent. . . .
[I]f counsel would have properly investigated the facts and
the law, relaying and counseling petitioner on the
government's plea offer, petitioner would have accepted
the offer and would not have proceeded to trial on the
(ECF 1-2 at 9-10).
government asserts that it never gave petitioner a second
plea offer and that the only plea offer that was given was
for petitioner to plead to one bank robbery in exchange for
not pursuing charges against him on the two other bank
robberies. (See ECF 7 at 14; ECF 7-1). Thus,
according to the government, because a plea to a lesser
charge was never offered to petitioner's trial counsel,
counsel could not have been ineffective for rejecting it.
United States Supreme Court has held that "defense
counsel has the duty to communicate formal offers from the
prosecution to accept a plea on terms and conditions that may
be favorable to the accused." See Missouri v.
Frye, 566 U.S. 134, 145 (2012). "[T]he fact of a
formal offer means that its terms and its processing can be
documented so that what took place during the negotiation
process becomes more clear if some later inquiry turns on the
conduct of earlier pretrial negotiations." Id.
at 146. Accordingly, deficient performance occurs when
counsel fails to communicate formal plea offers to the
defendant. See Id. at 146-47. Once that is
satisfied, a petitioner still must show prejudice. In
Frye, the Supreme Court noted that:
To show prejudice from ineffective assistance of counsel
where a plea offer has lapsed or been rejected because of
counsel's deficient performance, defendants must
demonstrate a reasonable probability they would have accepted
the earlier plea offer had they been afforded effective
assistance of counsel. Defendants must also demonstrate a
reasonable probability the plea would have been entered
without the prosecution canceling it or the trial court
refusing to accept it, if they had the authority to exercise
that discretion under state law. To establish prejudice in
this instance, it is necessary to show a reasonable
probability that the end result of the criminal process would
have been more favorable by reason of a plea to a lesser
charge or a sentence of less prison time.
Frye, 566 U.S. at 147 (citing Glover v. United
States, 531 U.S. 198, 203 (2001). As one court has
A petitioner ... who seeks to establish a claim of
ineffective assistance of counsel in the context of plea
bargaining, consequently must make a double showing - (1)
that the prosecutor extended the plea offer and (2) that his
or her attorney either failed to communicate the offer to him
or misadvised him concerning the advantages and disadvantages
of the offer so as to cause the non-acceptance of an
otherwise beneficial outcome by a favorable guilty plea.
Compean v. United States, No. 12-0730, 2013 WL
6196517, at *7 (W.D. Ky. Oct. 18, 2013) (citing Lint v.
Prelesnik, No. 09-10044, 2011 WL 3241840, at * 11 (E.D.
Mich. July 29, 2011); Robinson v. United States, 744
F.Supp.2d 684, 696 (E.D. Mich. 2010)); report and
recommendation adopted by, 2013 WL 6196533 (W.D. Ky.
Nov. 26, 2013). Thus, whether a defendant is ever offered a
formal plea offer is a vital factor in determining whether
counsel is deemed to be ineffective because mere informal
plea discussions are not enough to trigger counsel's duty
to inform. See Shnewer v. United States, No.
13-3769, 2016 WL 867461, at *15 (D.N.J. Mar. 7, 2016) (citing
Hull v. United States, No. 15-0123, 2015 WL 5009998,
at *2 (W.D. Wis. Aug. 15, 2015)) ("The Court made clear
in Frye, that duty applies only when the plea offer
is a 'formal one.' The Court has never held that
defense counsel can be found constitutionally ineffective for
failing to tell their clients about informal discussions they
have with the government about possible plea offers.");
Mavashev v. United States, No. 11-3724, 2015 WL
1508313, at *9 (E.D.N.Y. Mar. 31, 2015) (noting that there is
a significant distinction between formal plea offers and
informal plea offers); United States v. McCall, No.
00-0505, 2014 WL 2581353, at *3 (N.D. Cal. June 9, 2014)
("In reality, there is either a formal plea offer, or in
its absence, mere discussions between counsel. Mere
conversations are rarely recorded and always subject to
interpretation and mis-remembering. It would be a
near-impossible burden to require defense counsel to update
defendant on each twist and turn in informal conversations.
And it would be impossible for the government to reconstruct
and prove each such twist and turn in the communication, much
less prove that defense counsel passed on the twists and
turns to their client.... Therefore, to transmogrify mere
conversation into an "informal plea offer" and then
to further say it must be communicated to an accused on pain
of Section 2255 relief would be a nifty sleight of
hand.") (citations omitted); United States v.
Merlino, Crim. No. 99-10098, 2014 WL 793987, at *4 (D.
Mass. Feb. 28, 2014) ("A majority of courts ... have
held that a formal plea offer must consist of something more
than preliminary oral communications.") (citations
omitted); Montgomery v. United States, No. Crim.
07-00036, 2013 WL 6196554, at *4 (W.D. Ky. Nov. 26, 2013)
("Although there has been little exposition regarding
the precise definition of the term "formal offer,"
the Court clearly intended to distinguish "offers"
made during the course of preliminary negotiations from those
made once negotiations have concluded. In other words, while
there is no touchstone for assessing the formality of an
offer, there must at the very least be some basis for
concluding that the alleged offer could have been accepted or
rejected without further discussion or negotiation.");
Compean, 2013 WL 6196517, at *7 ("The threshold
issue for the Court therefor is whether the Government ever
extended a formal plea offer to the Defendant in the first
instance.") (citing Guerrero v. United States,
383 F.3d 409, 417 (6th Cir. 2004); Strollo v. United
States, No. 05-0113, 2007 WL 2071940, at *3 (N.D. Ohio
July 16, 2007))).
do tend to look at several factors to determine whether the
prosecutor extended a formal plea offer. Indeed:
One court has noted that plea agreements "are
essentially contracts" and that "for a contractual
offer to exist, it must contain 'sufficiently definite
terms to enable [a] fact finder to interpret and apply
them." United States v. Petters, 986 F.Supp.2d
1077, 1082 (D. Minn. 2013) (quoting Neb. Beef, Ltd. v.
Wells Fargo Bus. Credit, Inc., 470 F.3d 1249, 1251 (8th
Cir. 2006)). Thus, in Petters, the District of
Minnesota determined that a formal plea offer had not been
extended because there was "an absence of any discussion
of the charges to which Petters would acknowledge guilt, the
factual basis for a plea, or restitution or forfeiture
issues." Id. A court in this Circuit has
similarly stated that, "it is clear that an oral
discussion of the sentencing range for a possible plea
agreement that does not include an agreement on the charges
to which the defendant will plead guilty and the facts that
he will admit, does not constitute a formal plea offer."
Waters, 2013 WL 3949092, at *8 (citing Enright
v. United States, 341 F.Supp.2d 159, 165 (D.N.J. 2004)).
Shnewer, 2016 WL 867461, at *16. In
Shnewer, Judge Kugler determined that the petitioner
failed to show that a formal plea offer had been made because
of a lack of a discussion regarding the charges to which the
defendant would have pled guilty to along with a factual
basis for the plea. See Id. Furthermore, Judge
Kugler noted that petitioner failed to show that the
prosecutor had the authority to bind the government. See
case, and unlike Shnewer, petitioner does indicate
the charge to which he would have pled guilty to, namely
criminal possession of stolen property in exchange for the
dismissal of the three-armed bank robbery charges. While the
government indicates in its brief that this assertion is
false, they provide no declaration/affidavit from the
prosecutor and/or from petitioner's trial counsel to
support this argument. Accordingly, this Court finds the
record on this claim at present is inconclusive. Thus, an
evidentiary hearing will be necessary to resolve this
Cell Phone Data Without Search Warrant
next asserts that "the government presented cell tower
data gathered from petitioner's cell phone's
'outgoing' and 'incoming' phone calls,
without first obtaining a search warrant[.]" (ECF 1-2 at
22). Respondent filed its response to this claim in 2014.
Relying on In re Application of United States for an
order Directing Provider of Electronic Communication service
to Disclose Records to the Government, 620 F.3d 304 (3d
Cir. 2010), abrogated by Carpenter v. United States,
138 S.Ct. 2206 (2018), respondent argues that a warrant was
not required to obtain petitioner's historical cell tower
data for his cell phone. Respondent claims all that was
required was an order from a Judge pursuant to the Stored
Communication Act, 18 U.S.C. 2703(d), which was done in this
court deciding an actual ineffectiveness claim must judge the
reasonableness of counsel's challenged conduct on the
facts of the particular case, viewed as of the time of
counsel's conduct." Strickland, 466 U.S. at
690. It is "only in a rare case" where counsel may
be deemed deficient for failing to make an [argument] which
could not be sustained on the basis of the existing law as
there is no general duty on the part of defense counsel to
anticipate changes in the law." United States v.
Davies, 394 F.3d 182, 189 (3d Cir. 2005).
above citation indicates, In re Application was
abrogated by the Supreme Court in Carpenter. Indeed,
Carpenter held that acquisition of such cell phone
records constitutes a search such that the government must
generally obtain a warrant supported by probable cause before
acquiring such records. See 138 S.Ct. at 2221. While
a warrant for petitioner's cell records was not obtained
in this case, this does not necessarily mean that petitioner
is entitled to relief on his claim that counsel should have
objected to this evidence being introduced at trial.
was decided almost eight years after petitioner's trial.
Furthermore, only one month after petitioner's trial, the
Third Circuit decided In re Application.
Petitioner's counsel cannot be deemed ineffective for
failing to predict that the Supreme Court would eventually
determine that acquiring such cell phone data normally
required a warrant eight years after petitioner's trial.
Furthermore, only one month after petitioner's trial, the
Third Circuit held just the opposite of Carpenter.
Thus, petitioner's counsel's performance did not fall
below an objective standard of reasonableness as she cannot
be deemed ineffective for failing to predict
Carpenter eight years after the fact.
petitioner's failure to satisfy prong one of
Strickland, he has also failed to show prejudice.
"When defense counsel's failure to litigate a Fourth
Amendment claim competently is the principal allegation of
ineffectiveness, the defendant must also prove that his
Fourth Amendment claim is meritorious and that there is a
reasonable probability that the verdict would have been
different absent the excludable evidence in order to
demonstrate actual prejudice." Kimmelman v.
Morrison, 477 U.S. 365, 375 (1986).
not a case where the evidence against petitioner was weak
absent the cell phone records. Petitioner was out of work
each day of the robberies. (See Crim. No. 10-266 ECF
58 at 49, 50, 53-54). Additionally, and most importantly,
Clayton testified at length at petitioner's trial and
expressly implicated petitioner in the crimes. Clayton's
testimony was corroborated in several respects. By way of
example only, Clayton's description of the robbery such
as them wearing masks and gloves as well as him jumping up on
the counter was corroborated by witness testimony at trial.
(See Crim. No. 10-266 ECF 54 at 6; ECF 56 at 6-7).
Additionally, the reasons Clayton gave for why petitioner
wanted to rob the banks were corroborated in several
respects. Clayton testified that petitioner wanted to rob the
first bank because he was behind on his mortgage and credit
card payments. (See Id. ECF 39 at 25-26). After the
first robbery, petitioner made mortgage payments. (See,
e.g., Id. ECF 60 at 191). Additionally, petitioner told
Clayton before the third robbery that he needed money for his
lawyer. (See Id. ECF 39 at 50). Subsequently, after
the third robbery, petitioner paid his lawyer in cash.
(See Id. ECF 58 at 36). Accordingly, based on all
the other evidence implicating petitioner at trial,
petitioner failed to show to a reasonable probability that
the verdict would have been different had the cell phone
evidence against him been excluded. Accordingly, petitioner
is not entitled to relief on this claim.
Failure to move to suppress Clayton's testimony based
on prosecutorial misconduct
next alleges that counsel was ineffective for failing to move
to suppress Clayton's testimony based on prosecutorial
misconduct. Petitioner states that Clayton's agreement
with the government to testify against him stated that if he
committed another crime while under the agreement, the
agreement was null and void. (See ECF 1-2 at 25).
Petitioner states that Clayton tried to extort money from
petitioner during the initial criminal proceedings in
exchange for an affidavit that would declare petitioner's
innocence. (See id.) Clayton ultimately pled guilty
to Obstruction of Official Proceedings. (See Crim.
No. 10-518). However, according to petitioner, Clayton's
agreement with the government "was not null and voided
in order that the government could compel Clayton to testify
even after the government discovered Clayton was a liar and
inconsistencies in Clayton's confession."
(See ECF 1-2 at 25). Petitioner also asserts that
counsel failed to petition the court to have the Assistant
United States Attorney ("AUSA") removed from the
criminal proceedings considering Clayton's violating his
agreement with the government. (See Id. at 26).
fails to show that he is entitled to relief on this claim.
First, this Court is not aware, nor has petitioner indicated
any case on point that would have led counsel to move to
suppress Clayton's testimony based on his attempt to
extort petitioner. Clayton's attempt to extort petitioner
was addressed and discussed by questions posed to him by both
the government and petitioner's trial counsel during
Clayton's testimony. (See Crim. No. 10-266 ECF
39 at 9-14; Crim. No. 10-266 ECF 41 at 96-102). This
presumably acted to challenge Clayton's credibility with
the jury. Petitioner fails to show that counsel's actions
fell below an objective standard of reasonableness and/or
that he was prejudiced by counsel's failure to move to
suppress Clayton's testimony.
also appears to be asserting some type of ineffective
assistance of counsel claim against his trial attorney by
alleging that AUSA Bartle told Clayton that he would still
get his agreement with the government if he lied on the stand
at petitioner's trial. In petitioner's reply brief,
he specifically cites to a portion of Clayton's
cross-examination at his trial. The portion cited by
petitioner went as follows:
THE COURT: The question is if you were lying, what effect
would that have any agreement you have with the Government?
THE WITNESS: It wouldn't have no - no effect. I'm
still going ...