HERNANDEZ v. United States

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

:

JUAN F. HERNANDEZ, :

: Civil Action No. 21-19648 (SRC)

Petitioner, :

:

v. : OPINION

:

UNITED STATES OF AMERICA, :

:

Respondent. :

:

CHESLER, District Judge:

Presently before the Court is Petitioner Juan F. Hernandez’s motion to vacate his sentence

brought pursuant to 28 U.S.C. § 2255. (ECF Nos. 1.) The Government filed a response to the

motion (ECF No. 18), to which Petitioner replied. (ECF No. 21.) For the following reasons,

Petitioner’s motion is denied and Petitioner is denied a certificate of appealability.

I. BACKGROUND

In its opinion affirming Petitioner’s conviction and sentence, the Third Circuit summarized

the background of this matter as follows:

In October 2018, [Petitioner] was charged with one count of

conspiring to transport individuals for purposes of prostitution,[]

and one count of conspiracy to harbor aliens for financial gain.[

He] pleaded not guilty.

As alleged in the indictment, [Petitioner] operated a chain of

brothels throughout New Jersey, alongside his girlfriend, Elizabeth

Rojas. The majority of women employed as prostitutes were

undocumented. [Petitioner] also hired undocumented individuals

to work as house-operators in charge of opening and closing the

brothels, taking payment from customers, and running errands for

the prostitutes, and others to serve as lookouts to warn of police

activity.

During the course of a five-day trial, the Government

presented the testimony of three of [Petitioner]’s brothel workers.

One of those workers, Jose Hernandez-Moreno, described

how he came to the United States illegally and started working for

[Petitioner]. Moreno informed [Petitioner] that he was

undocumented, but [Petitioner] never asked for “working papers” or

processed tax forms for Moreno’s employment[.] Moreno also

testified that [Petitioner] rented eight houses as brothels under

different names; made employment decisions, including pay; found

women to work as prostitutes; transported workers to and from bus

and train stations; and made rounds and daily calls to ensure

operations were running smoothly, and to collect cash payments

from customers.

Two former prostitutes also testified and corroborated

Moreno’s account of brothel operations. Cristina Suerro Guerrero

testified that she began working for [Petitioner] sometime after

arriving in the United States illegally from the Dominican Republic.

While working for [Petitioner], Guerrero lived in Pennsylvania and

New York, and traveled to the brothels in New Jersey. On one

occasion, [Petitioner] transported Guerrero from a train station in

Trenton to one of the brothels. Guerrero also explained that

[Petitioner] knew she lived out-of-state, and that he never asked for

her “working papers” or identification, never provided her with tax

forms, and paid her in cash.

Nashielly Salinas Pacheco testified that after being

trafficked across the border from Mexico, she worked for

[Petitioner] while living in Queens, New York. On at least one

occasion, she traveled by bus from New York to New Jersey, and

one of [Petitioner]’s workers picked her up from the station and

drove her to a brothel. Again, [Petitioner] never asked to see

Pacheco’s working papers, and never gave her any tax forms.

Pacheco also testified that when [Petitioner] or Roja scheduled her

shifts, it was understood that she would not leave her assigned

brothel without permission. She explained that this was because “it

was a brothel and there are neighbors and what we are doing is not

legal,” and she knew if she got caught “[law enforcement] would

put me in jail for prostitution and later deport me.”[]

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The Government also called two law enforcement witnesses

who testified about arrests made and evidence seized during the

execution of search warrants at the brothels. As relevant, Special

Agent Christopher Iatoro from Homeland Security testified that law

enforcement encountered approximately 30 people on the day the

brothels were searched, the majority of whom were illegal aliens.

The jury convicted [Petitioner] on both counts. At

sentencing, the District Court rejected [Petitioner]’s objection to a

six-level specific offense characteristic enhancement . . . based on

its finding that the offense involved harboring between 25 to 99

illegal aliens.[] The District Court sentenced [Petitioner] to

concurrent 78-month terms of imprisonment on each count.

(Docket No. 15-80 at ECF No. 107-2.)

II. DISCUSSION

A. Legal Standard

A prisoner in federal custody may file a motion pursuant to 28 U.S.C. § 2255 challenging

the validity of his or her sentence. Section 2255 provides, in relevant part, as follows:

A prisoner in custody under sentence of a court established by Act

of Congress claiming the right to be released upon the ground that

the sentence was imposed in violation of the Constitution or laws of

the United States, or that the court was without jurisdiction to

impose such a sentence, or that the sentence was in excess of the

maximum authorized by law, or is otherwise subject to collateral

attack, may move the court which imposed the sentence to vacate,

set aside or correct the sentence.

28 U.S.C. § 2255. Unless the moving party claims a jurisdictional defect or a constitutional

violation, to be entitled to relief the moving party must show that an error of law or fact constitutes

“a fundamental defect which inherently results in a complete miscarriage of justice, [or] an

omission inconsistent with the rudimentary demands of fair procedure.” United States v. Horsley,

599 F.2d 1265, 1268 (3d Cir. 1979) (quoting Hill v. United States, 368 U.S. 424, 429 (1962)), cert.

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denied 444 U.S. 865 (1979); see also Morelli v. United States, 285 F. Supp. 2d 454, 458-59 (D.N.J.

2003).

B. Analysis

1. An evidentiary hearing is not required to resolve Petitioner’s motion

A district court need not hold an evidentary hearing on a motion to vacate where “the

motion and files and records of the case conclusively show that the prisoner is entitled to no relief.”

28 U.S.C. § 2255(b); United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005); United States v.

Day, 969 F.2d 39, 41-42 (3d Cir. 1992). “Where the record, supplemented by the trial judge's

personal knowledge, conclusively negates the factual predicates asserted by the petitioner or

indicate[s] that petitioner is not entitled to relief as a matter of law, no hearing is required.” Judge

v. United States, 119 F. Supp. 3d 270, 280 (D.N.J. 2015); see also Government of Virgin Islands

v. Nicholas, 759 F.2d 1073, 1075 (3d Cir. 1985); see also United States v. Tuyen Quang Pham,

587 F. App’x 6, 8 (3d Cir. 2014); Booth, 432 F.3d at 546. Because Petitioner’s claims are clearly

without merit for the reasons set forth below, no evidentiary hearing is required in this matter.

2. Petitioner’s ineffective assistance of counsel claims

In his motion to vacate sentence Petitioner presents several claims asserting ineffective

assistance of counsel. The standard applicable to such claims is well established:

[c]laims of ineffective assistance are governed by the two-prong test

set forth in the Supreme Court’s opinion in Strickland v.

Washington, 466 U.S. 668 (1984). To make out such a claim under

Strickland, a petitioner must first show that “counsel’s performance

was deficient. This requires [the petitioner to show] that counsel

made errors so serious that counsel was not functioning as the

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‘counsel’ guaranteed by the Sixth Amendment.” Id. at 687; see

also United States v. Shedrick, 493 F.3d 292, 299 (3d Cir. 2007).

To succeed on an ineffective assistance claim, a petitioner must also

show that counsel’s allegedly deficient performance prejudiced his

defense such that the petitioner was “deprive[d] of a fair trial . . .

whose result is reliable.” Strickland, 466 U.S. at 687; Shedrick,

493 F.3d at 299.

In evaluating whether counsel was deficient, the “proper

standard for attorney performance is that of ‘reasonably effective

assistance.’” Jacobs v. Horn, 395 F.3d 92, 102 (3d Cir. 2005). A

petitioner asserting ineffective assistance must therefore show that

counsel’s representation “fell below an objective standard of

reasonableness” under the circumstances. Id. The reasonableness

of counsel’s representation must be determined based on the

particular facts of a petitioner’s case, viewed as of the time of the

challenged conduct of counsel. Id. In scrutinizing counsel’s

performance, courts “must be highly deferential . . . a court must

indulge a strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance.” Strickland, 466

U.S. at 689.

Even where a petitioner is able to show that counsel’s

representation was deficient, he must still affirmatively demonstrate

that counsel’s deficient performance prejudiced the petitioner’s

defense. Id. at 692-93. “It is not enough for the defendant to show

that the errors had some conceivable effect on the outcome of the

proceeding.” Id. at 693. The petitioner must demonstrate that

“there is a reasonable probability, but for counsel’s unprofessional

errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id. at 694; see also Shedrick, 493 F.3d

at 299. Where a “petition contains no factual matter regarding

Strickland’s prejudice prong, and [only provides] . . . unadorned

legal conclusion[s] . . . without supporting factual allegations,” that

petition is insufficient to warrant an evidentiary hearing, and the

petitioner has not shown his entitlement to habeas relief. See

Palmer v. Hendricks, 592 F.3d 386, 395 (3d Cir. 2010). “Because

failure to satisfy either prong defeats an ineffective assistance claim,

and because it is preferable to avoid passing judgment on counsel’s

performance when possible, [Strickland, 466 U.S. at 697-98],”

courts should address the prejudice prong first where it is dispositive

of a petitioner’s claims. United States v. Cross, 308 F.3d 308, 315

(3d Cir. 2002).

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Judge, 119 F. Supp. 3d at 280-81.

In the majority of his claims, Petitioner asserts that counsel failed to investigate his case

and potential witnesses who could have been called at trial. As courts in this District have

explained,

[i]n 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 produced a different result.

United States v. Askew, 88 F.3d 1065, 1073 (D.C. Cir. 1996)

(quoting Sullivan v. Fairman, 819 F.2d 1382, 1392 (7th Cir. 1987));

see also United States v. Lathrop, 634 F.3d 931, 939 (7th Cir. 2011)

(“[w]hen a petitioner alleges that counsel's failure to investigate

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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 F. App’x 141, 144 (3d Cir. 2008).

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

Here, Petitioner specifically faults counsel for “failing” to investigate witnesses to

call in his defense. As the decision as to which witnesses should be called at trial rests firmly in

counsel’s hands, 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 (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 F. App’x 157, 159 (3d Cir. 2015). Likewise, in order to show that he was

prejudiced by counsel’s failure to call any particular witness, a petitioner must present a sworn

statement setting forth that witness’s proposed testimony as the “failure to include a sworn

statement regarding the nature of [a witness’s] proposed testimony is fatal to his making a prima

facie showing of prejudice.” Tolentino v. United States, No. 13-4168, 2014 WL 3844807, at *3

(D.N.J. July 31, 2014); see also Duncan v. Morton, 256 F.3d 189, 201-02 (3d Cir. 2001).

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Petitioner first contends that counsel failed to secure and call an expert witness who could

have “educate[d] the jury” about the potential for bias in accomplice and cooperating witness

testimony. (ECF No. 1 at 16.) Petitioner, however, has not identified any proposed expert who

would have been available for trial, nor does he provide a sworn statement of any proposed expert.

As such, he cannot show that he was prejudiced by this alleged failing, and this claim is clearly

without merit. Duncan, 256 F.3d at 201-02.

Petitioner next contends that counsel proved ineffective in failing to call a number of

proposed character witnesses to establish that he was “hard working” and “law abiding” and to

suggest he did not have time to run a large scale prostitution ring. Specifically, Petitioner argues

counsel should have called Ogilvie Hernandez, who runs a company called Mexico Lindo for

which Petitioner apparently worked between 2000 and 2014; Adrian Castilllo, for whom Petitioner

worked during the period when the prostitution ring was operating; Sosue Chanez, who ran a

construction company for which Petitioner also worked; Ivan Sanchez, who operated a taxi

business for whom Petitioner at least occasionally drove; Petitioner’s probation officer Cruz, and

Petitioner’s co-conspirator Elizabeth Rojas. As with the expert witness claim, in his original

motion to vacate sentence, Petitioner failed to provide a sworn statement setting forth proposed

testimony for any of these witnesses. In his reply brief, however, Petitioner presents sworn

statements from two of the witnesses – Adrian Castillo and Ogilvie Hernandez. As Petitioner has

failed to provide a sworn statement of proposed testimony for Chanez, Sanchez, Cruz, or Rojas,1

1 As to Rojas, the Court also notes that counsel did not seek to interview her because, as

Petitioner’s co-defendant, Rojas was represented by counsel and was not available for interview.

(ECF Nos. 18-1; 18-2.) The Government further points out that Rojas was not reasonably

available for trial in any event as she had already pled guilty, served a prison sentence, and been

deported prior to Petitioner’s trial, and it thus appears that even had counsel been able to speak

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he cannot show that he was prejudiced by counsel’s alleged failure to call those witnesses.

Duncan, 256 F.3d at 201-02.

Petitioner’s claims relating to Castillo and Hernandez fare no better. Although Petitioner

asserts that counsel never sought out these witnesses, both of his trial counsel have provided

certifications indicating that they did, indeed, send investigators to find these proposed witnesses,

but could only locate two – the owner of a taxi company, presumably Sanchez, and the owner of

a landscaping company, who may be Chanez or Hernandez– but could not locate the others. (See

ECF Nos. 18-1; 18-2.) In any event, counsel chose not to call these or any other witnesses as to

Petitioner’s employment history for a very basic reason – the proposed testimony Petitioner wished

to have presented would have done no more than show that he was employed and may have paid

taxes during the period between 2000 and 2014, which was of at best limited value in the face of

the substantial evidence of Petitioner’s guilt presented at trial. (Id.) Nothing these witnesses

would have presented in counsel’s mind would have warranted the risk of opening the door for the

Government to counter this evidence of “good” character with evidence directly assailing

Petitioner’s character which would otherwise not have been admissible.

Having reviewed the sworn statements Petitioner has provided, this was undoubtedly a

logical strategic choice. Even for the only two witnesses Petitioner himself found willing to

provide sworn statements, those sworn statements amount to the two individuals providing no

more testimony that Petitioner worked for Ogilvie for a number of years and was “a good

with her there is nothing in the record to suggest she could have been called as a witness at trial

even had she been willing to testify on Petitioner’s behalf. All of these facts further support the

conclusion that counsel were not ineffective in “failing” to call her as a witness at trial, although

the Court need not rely on them as Petitioner’s failure to present any sworn affidavit from Rojas

prevents him from showing prejudice.

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employee” and “very honest person” and a statement that, for some unspecified period of time,

Petitioner also worked for Imperial Electro Plating. (ECF No. 21 at 35-36.) Neither has an

exculpatory testimony to provide, neither can directly contradict the strong evidence of Petitioner’s

guilt presented at trial, and neither can provide testimony which would do anything other than

open the door to evidence of Petitioner’s bad character. In light of the extremely limited value of

the testimony of these two proposed witnesses, and counsel’s logical strategic basis for choosing

not to pursue good character testimony from Petitioner’s previous employers, Petitioner has utterly

failed to show ineffective assistance of counsel as to the alleged failure to call any of these

witnesses.

In addition to these witnesses, Petitioner in his reply brief raises an entirely new claim –

that his counsel were ineffective in failing to investigate and call Wilmer Chavez at trial. Chavez,

an individual who implicated several people in the prostitution ring and later recanted, Petitioner

contends, was the author of one of several letters addressed to a “Jose Choco,” who the

Government contended was Petitioner, seized from Petitioner’s address but addressed to one of

the prostitution ring charges. Although this letter was read at trial, it was not identified as coming

from Chavez, and the letter itself was presented merely to connect Petitioner, from whose

possessions the letters were taken, to the prostitution ring and the name “Choco.” The letter itself

amounts to the author, writing from prison, requesting that Choco talk to his attorney and ask for

help in getting parole, after which the author would be able to help Choco with his work. The

text of the letter itself was not directly inculpatory – it does not identify the nature of Choco’s

business, and was certainly not testimonial in nature. Petitioner contends in his reply brief,

however, that counsel’s failure to interview and call Chavez as a witness amounts to ineffective

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assistance, and that counsel should have objected to the letter on the grounds that it amounted to a

violation of his right to confront the witnesses against him.

Initially, the Court notes that this claim was raised for the first time in Petitioner’s reply

brief. “It is axiomatic that reply briefs should respond to the respondent’s arguments or explain

a position in the initial brief that the respondent has refuted” and that new arguments “cannot be

raised for the fist time in reply briefs.” See Elizabethtown Water Co. v. Hartford Cas. Ins. Co.,

998 F. Supp 447, 458 (D.N.J. 1998); Jurista v. Amerinox Procesing Inc., 492 B.R. 707, 778-80

(D.N.J. 2013); see also Judge, 119 F. Supp. 3d at 284. This is because basic fairness “requires

that an opposing party have fair notice of his adversary’s claims, as well as an opportunity to

address those claims. Judge, 119 F. Supp. 3d at 284. Thus, when a habeas petitioner raises a

new claim in a reply brief in a § 2255 matter, a reviewing court may decline to consider that claim

for this reason alone. Id. Because Petitioner’s claim related to the letter was first raised in reply,

and the Government was not provided an opportunity to respond to is, this Court would be well

within its authority to reject this claim for that reason alone.

Putting aside this issue, however, it is clear that Petitioner’s claims related to Chavez and

the letter are without merit. First, to the extent Petitioner contends that counsel should have

investigated and called Chavez as a witness at trial, he has utterly failed to provide any sworn

statement setting forth any testimony Chavez would have provided at trial. Instead, Petitioner

provides only an admission that Chavez implicated people including himself regarding the

prostitution ring in 2014, and later recanted, submitting a letter which states that statements made

against Petitioner and his co-defendant were allegedly the result of “pressure” from a county

prosecutor and made to secure for himself a better deal at sentencing. (See ECF No. 21 at 40.)

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This letter presents no exculpatory testimony Chavez could or would have provided. What it does

confirm, however, is that if Chavez had been called as a witness in Petitioner’s favor, there was a

statement, made by Chavez to prosecutors, with which the Government could have directly

confronted him, a statement that certainly would have done Petitioner no favors. As Petitioner’s

failure to provide a sworn statement detailing the testimony Chavez would have provided at trial

is fatal to his ability to show Strickland prejudice related to the failure to call him as a witness, and

as the evidence in the record in any event suggests that calling Chavez would have provided little

more than an avenue for the Government to confront Chavez with inculpatory statements he had

made by Petitioner, Petitioner’s claim that counsel should have called Chavez at trial is clearly

without merit as Petitioner cannot show prejudice. Duncan, 256 F.3d at 201-02.

Petitioner’s confrontation claim related to the Chavez letter fares no better. The

Confrontation Clause generally protects criminal defendants from the admission of testimonial

hearsay statements against them where the maker of the statement was not made available to the

defendant for cross-examination in a judicial proceeding. See Crawford v. Washington, 541 U.S.

36, 53-54 (2004). The Clause only prohibits the admission of testimonial hearsay statements

which are presented for the truth of the matter asserted within the statement and do not fit within

established and recognized exceptions to the hearsay rule. Id. at 54. Where a statement is

nontestimonial, the Clause simply does not apply. Id.; see also Davis v. Washington, 547 U.S.

813, 822 (2006). Although the Supreme Court has not adopted a bright line division between

testimonial and non-testimonial statements, it has presented some guidance on the issue –

statements will only be testimonial when the nature of the statement renders the speaker a witness

within the meaning of the Clause. Davis, 547 U.S. at 822. Thus, statements generated during

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police investigations through questioning with an eye towards prosecution will generally qualify

as prosecutions, whereas statements not made in reference to or for the future purpose of litigation

or prosecution generally will not qualify. Id. Ultimately, courts determining whether a statement

look to the objective character of the statement in question and determine whether the statement is

“testimonial” – i.e., akin to testimony or a witness statement – in the colloquial, generally

understood sense. Id.

The letter with which Petitioner takes issue here is clearly non-testimonial. The letter was

written by a private individual, to an apparent friend or comrade, for the purposes of asking for

help in exchange for future business cooperation. The statement was not made with or by

prosecutorial or police action, it is not of the character of a statement by a witness in a legal

proceeding, and instead appears to be a private exchange between associates never meant to be

seen by outside eyes or to be used in any sort of legal proceeding. The letter is thus clearly not

testimonial, and any Confrontation Clause challenge to its admission would have been utterly

without merit. Id. As the failure to raise a meritless motion is not ineffective assistance of

counsel, Petitioner’s Confrontation Clause related ineffective assistance claim is thus meritless.

See . See Werts v. Vaughn, 228 F.3d 178, 203 (3d Cir. 2000); United States v. Aldea, 450 F.

App’x 151, 152 (3d Cir. 2011).

Petitioner next argues that counsel was ineffective in failing to investigate a phone

recording of a conversation between Petitioner and a Government witness which was ultimately

played at trial, and which the Government witness authenticated as between himself and Petitioner

during his testimony. Petitioner contends that counsel should have sought a voice analysis to

“prove” that Petitioner was or was not the voice on the other end of the line. Once again,

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Petitioner has utterly failed to provide any evidence or proposed expert testimony to suggest that

defense counsel could have proven that his was not the other voice involved in the call, and

Petitioner thus cannot show prejudice from the failure to secure a voice analysis. More to the

point, both of Petitioner’s counsel assert that they chose not to seek such an analysis as the outcome

would likely be more harm than good to Petitioner – if a formal report found that Petitioner was

the voice on the recording as the Government’s witness testified, it would have simply added

ammunition to the Government’s case and further strengthened an already overwhelming case

against Petitioner. Counsel’s decision not to seek an expert evaluation of the call was thus sound

trial strategy, and was not deficient. As Petitioner has in any event not shown any basis to challenge

the Government witness’s authentication of the recording and not made a comprehensive showing

that further investigation would have led to any evidence that he was not the recorded voice, this

claim of ineffective assistance of counsel is utterly without merit and provides no basis for habeas

relief.

Petitioner also argues that counsel’s alleged failures to investigate his case were the result

of counsel’s belief that he was guilty of the crimes charged. Specifically, Petitioner alleges that

counsel told his family members that they should try to convince him to plead guilty or Petitioner

may ultimately receive the death penalty. In his reply brief, Petitioner provides notarized letters

from family members who assert that, during a conversation with one of his attorneys conducted

through a translator, counsel told them that if Petitioner did not plead guilty he could be sentenced

to death. In their certifications, counsel state that Petitioner and his family members are, to some

extent, mistaken, and that what counsel actually told them was that it would be better if Petitioner

pled guilty because otherwise, in addition to the sentencing exposure on the underlying charges,

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Petitioner might be subjected to a superseding indictment with a multiple murders related charge

which would carry death penalty eligibility. This Court, however, need not hold a hearing to

determine whose recollection is more accurate. The death penalty issue is ultimately a red

herring. Clearly, Petitioner had no intention of pleading guilty even in the face of any threatened

penalty, and he was thus not prejudiced by counsel’s advice to plead guilty as it is clear that any

less severe advice would not have changed his mind and led to a guilty plea if the looming threat

of a death penalty did not sway him. See, e.g., Lafler v. Cooper, 566 U.S. 156, 163 (2012)

(prejudice as to plea related advice requires showing that outcome would have differed with

different advice). Indeed, he does not now allege that the outcome of any plea deal would have

been different with better advice.

Instead, Petitioner seeks to use the death penalty advice issue as a means to poison the well

as to his failure to investigate claims, asserting that counsel poorly investigated his case because

they believed him guilty. The Court notes, however, that there is no requirement that defense

counsel believe in his client’s innocence, only that counsel provide competent assistnace during

trial proceedings. Regardless of the alleged motive for counsel’s alleged failing, the ultimate test

remains the same – to show that counsel proved ineffective, he must actually show that counsel

failed to investigate his case and that “better” investigation would have turned up evidence which

would have potentially changed the outcome of his trial. Brown, 2016 WL 1732377, at *4-5.

Petitioner has utterly failed to make any such showing. He has not presented any evidence which

might have been discovered which would have had an effect upon the outcome of his trial, and he

has in any event not shown that counsel did not investigate his case. To the contrary, the trial

record, including counsel’s arguments to this court, pretrial motions, and thorough cross-

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examination of witnesses, clearly indicates that both counsel were very familiar with the facts of

Petitioner’s case, had investigated Petitioner’s charges, and ably defended him in the face of

overwhelming evidence of his guilt. Petitioner has thus failed to show that counsel were

ineffective in investigating his case, and has thus not shown ineffective assistance of counsel.

In his final claim, Petitioner asserts that even if his claims fail individually, counsel’s

cumulative failings warrant relief. Although errors “that individually do not warrant habeas relief

may do so when combined,”

a cumulative-error analysis merely aggregates all the errors that

individually have been found to be harmless, and therefore not

reversible, and it analyzes whether their cumulative effect on the

outcome of the trial is such that collectively they can no longer be

determined to be harmless. Cumulative errors are not harmless if

they had a substantial and injurious effect or influence in

determining the jury's verdict, which means that a habeas petitioner

is not entitled to relief based on cumulative errors unless he can

establish actual prejudice.

Albrecht v. Horn, 485 F.3d 103, 139 (3d Cir. 2007) (internal quotations and citations omitted),

cert. denied, 552 U.S. 1108 (2008). Petitioner’s claims fare no better cumulatively than they do

individually. Even considered in the aggregate, Petitioner has utterly failed to show that he was

prejudiced by counsel’s alleged errors, and thus cannot show ineffective assistance of counsel.

Petitioner’s cumulative claim is thus also without merit. As all of Petitioner’s claims are clearly

without merit, his motion to vacate sentence is denied.

III. CERTIFICATE OF APPEALABILITY

Pursuant to 28 U.S.C. § 2253(c), the petitioner in a § 2255 proceeding may not appeal from

the final order in that proceeding unless he makes “a substantial showing of the denial of a

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constitutional right.” “A petitioner satisfies this standard by demonstrating that jurists of reason

could disagree with the district court’s resolution of his constitutional claims or that jurists could

conclude that the issues presented here are adequate to deserve encouragement to proceed further.”

Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). As Petitioner’s claims are all clearly without

merit, Petitioner is denied a certificate of appealability.

IV. CONCLUSION

For the reasons stated above, Petitioner’s motion to vacate sentence (ECF No. 1) is

DENIED, and Petitioner is DENIED a certificate of appealability. An appropriate order follows.

___s/ Stanley R. Chesler________

Hon. Stanley R. Chesler,

United States District Judge

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