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Baker v. United States

United States District Court, D. New Jersey

December 18, 2019

STEVEN L. BAKER, Petitioner,




         Petitioner, 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 evidentiary hearing.


         Petitioner's 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 id.)

         Petitioner 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).

         At the 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.[1] (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).

         Upon 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).

         Petitioner 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 served consecutively.

         Petitioner 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. 1148 (2013).

         In 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 Petitioner.
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 the conviction.
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.

         The 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).

         Thereafter, 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).

         The 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 remaining claims.


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


         Most of 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 690-91).

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

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

         A. Rejecting Plea Offer

         In 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 history category.
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 charges.

(ECF 1-2 at 9-10).

         The 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.

         The 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 noted:

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))).

         Courts 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 id.

         In this 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 claim.[2]

         B. Cell Phone Data Without Search Warrant

         Petitioner 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 case.

         "[A] 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).

         As the 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.

         Carpenter 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.

         Notwithstanding 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).

         This is 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.

         C. Failure to move to suppress Clayton's testimony based on prosecutorial misconduct

         Petitioner 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).

         Petitioner 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.

         Petitioner 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 ...

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