Petition for Writ of Certiorari — Tommie H. Telfair, Petitioner v. United States
Supreme Court briefDec 12, 2018
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APPENDIX (A)
I7PP6AJDZ K
4
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 17-3379
TOMMIE H. TELFAIR,
Appellant
LTIM
UNITED STATES OF AMERICA
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civ. No. 2-13-cv-06585)
SUR PETITION FOR REHEARING
ES, JORDAN,
Present: SMITH, Chief Judge, McKEE, AMBRO, CHAGAR
, RESTREPO, BIBAS, and
HARDIMAN, GREENAWAY, JR., VANASKIE, KRAUSE
SCIRICA Circuit Judges
,
The petition for rehearing filed by Appellant in the above-ent
itled case having
ion of this Court and to all the
been submitted to the judges who participated in the decis
e service, and no judge who
other available circuit judges of the circuit in regular activ
a majority of the judge
concurred in the decision having asked for rehearing, and
petiti
circuit in regular service not having voted for rehearing, the
panel and the Court en banc, is denied.
BY THE COURT,
*
Judge Scirica's vote is limited to panel rehearing only.
s of the
on for rehearing by the
s/ Thomas I. Yanaskie
:Circuit Judge
I
•
i
Dated: September 14, 2018
iXlcc: Tommie H. Telfair
Mark E. Coyne, Esq.
.•
OFFICE OF THE CLERK
PATRICIA S.
DODSZUWEIT
CLERK
UNITED STATES COURT OF APPEALS
TELEPHONE
21400 UNITED STATES COURTHOUSE
601 MARKET STREET
PHILADELPHIA, PA 19106-1790
215-597-2995
Website: www.ca3.uscourts.gov
June 19, 2018
iviarK E. Coyne
Office of United States Attorney
970 Broad Street
Room 700
Newark, NJ 07102
Tommie H. Telfair
Fort Dix FCI
P.O. Box 2000
Joint Base MDL, NJ 08640
RE: Tommie Telfair v. USA
Case Number: 17-3379
District Court Case Number: 2-13-cv-06585
ENTRY OF JUDGMENT
•
-••-•.
•.:
-
-.----
Today, June 19, 2018 the Court issued a ease dispositive order in the 'above -ipti on- ed matter
which serves as this Court's judgment. Fed. R. App. P. 36.
If you wish to seek review of the Court's decision, you may file a petition for rehearing. The
procedures for filing a petition for rehearing are set forth in Fed. R. App. P. 35 and 40, 3rd Cir.
LAR 35 and 40, and summarized below.
Time for Filing:
14 days after entry of judgment.
45 days after entry of judgment in a civil case if the United States is a party.
-•
Form Limits:
3900 words if produced by a computer, with a certificate of compliance pursuant to Fed. R. App.
P. 32(g).
15 pages if hand or type written.
Attachments:
A copy of the panel's opinion and judgment only.
Certificate of service.
Certificate of compliance if petition is produced by a computer.
No other attachments are permitted without first obtaining leave from the Court.
Unless the petition specifies that the petition seeks only panel rehearing, the petition will be
construed as requesting both panel and en banc rehearing. Pursuant to Fed. R. App. P. 35(b)(3),
if separate petitions for panel rehearing and rehearing en banc are submitted, they will be treated
as a single document and will be subject to the form limits as set forth in Fed. R. App. P.
35(b)(2). If only panel rehearing is sought, the Court's rules do not provide for the subsequent
filing of a petition for rehearing en banc in the event that the petition seeking only panel
rehearing is denied.
Please consult the Rules of the Supreme Court of the United States regarding the timing and
requirements for filing a petition for writ of certiorari.
Very truly yours,
SI Patricia S. Dodszuweit
Clerk
By: James King
Case Manager
267-299-4958
cc:
Mr. William T. Walsh
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-
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--
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Telfair v. United States
C.A. No. 17-3379
Page 2
Appellant's request for a certificate of appealability is denied because he has not
made a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c).
The District Court denied Appellant's motion to vacate his sentence pursuant to 28
U.S.C. § 2255, in which he claimed, among other things, that his statement to law
enforcement officers should have been suppressed and that the attorneys who represented
him during the course of his criminal case were ineffective on numerous grounds. The
District Court concluded that Appellant's claims are without merit, and Appellant has not
shown that the District Court's decision is "debatable amongst jurists of reason." MillerEl v. Cockrell, 537 U.S. 322, 336 (2003). To the extent that Appellant seeks recusal of
the District Court and this Court and a change of venue, those requests are denied.
Appellant's motion for counsel is denied, as is his motion to be transferred to another
prison.
By the Court,
s/ Thomas I. Vanaskie
Circuit Judge
Dated: June 19, 2018
JKIcc: Tommie H. Telfair
Mark E. Coyne, Esq.
A True Copy:
Patricia S. Dodszuweit, Clerk
Certified Order Issued in Lieu of Mandate
i5I?
Case 2:13-cv-06585-SDW Document 59 Filed 09/25/17 Page 1 of 1 PagelD: 853
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 13-6585 (SDW)
TOMMIE TELFAIR,
Petitioner,
V.
ORDER
UNITED STATES OF AMERICA,
Respondent.
This matter having come before the Court on the Motion to Vacate, Set Aside or Correct
Sentence ("Motion") of Petitioner, Tommie Telfair, for relief under 28 U.S.C. § 2255 (ECF No.
1), the Court having previously denied all of Petitioner's claims other than his Miranda claim (ECF
No. 36-37), the Court having held an evidentiary hearing as to Petitioner's sole remaining claim
(ECF No. 57), the Court having considered the Motion, the records of proceedings in this matter,
the Responses of the United States (Brian Urbano, Assistant United States Attorney, and Anthony
Mahajan, Assistant United States Attorney, appearing) (ECF No. 20, 29, 34), and Petitioner's reply
thereto (ECF No. 24-25); and for the reasons expressed in the accompanying opinion,
IT IS on this 25TH day of September, 2017,
ORDERED that Petitioner's sole remaining claim for relief is DENIED; and it is further
ORDERED that a certificate of appealability is DENIED; and it is further
ORDERED that the Clerk of the Court shall serve this Order and the accompanying
Opinion upon the parties electronically, and shall CLOSE the file.
s/Susan D. Wi2enton
Hon. Susan D. Wigenton,
United States District Judge
Case 2:13-cv-06585-SDW Document 58 Filed 09/25/17 Page 1 of 12 PagelD: 841
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
TOMMIE TELFAIR,
:
Civil Action No. 13-6585 (SDW)
Petitioner,
V.
OPINION
UNITED STATES OF AMERICA,
Respondent.
WIGENTON, District Judge:
Presently before the Court is the sole remaining claim presented in the motion to vacate
sentence of Petitioner, Tommie Telfair. (ECF No. 1). Petitioner filed his motion on or about
October 25, 2013. (ECF No. 1). The Government filed a response (ECF No. 20),to which
Petitioner replied. (ECF Nos. 24-25). Following briefing and several other motions, this Court
entered an order and opinion denying all of Petitioner's claims except for his claim that his
statement was taken in violation of his Miranda rights, and denied Petitioner a certificate of
appealability as to his non-Miranda claims. (ECF Nos. 36-37). This Court thereafter held an
evidentiary hearing as to Petitioner's Miranda claim on August 3, 2017. (ECF No. 57). For the
following reasons, Petitioner's sole remaining claim is denied, and Petitioner is denied a certificate
of appealability.
I. BACKGROUND
As this Court presented an extensive summary of the factual background of this matter in
its previous opinion, (ECF No. 36 at 1-18), it need not repeat that endeavor here. Instead, only
those facts and allegations which are relevant to Petitioner's Miranda claim will be recounted. In
Case 2:13-cv-06585-SDW Document 58 Filed 09/25/17 Page 2 of 12 PagelD: 842
that opinion, this Court provided the following summary of the allegations Petitioner had made in
his initial motion regarding his Miranda claim:
Petitioner
[un the affidavit attached to his § 2255 motion,
presents [allegations which contradict the trial testimony of the
various federal agents involved in this case]. (Document 1 attached
to ECF No. I at 4-7). Petitioner alleges that it was Agent Greimel,
and not Agent Post, who interviewed Petitioner, despite the fact that
Greimel testified at trial that he was not present during the arrest or
questioning of Petitioner. Petitioner asserts that he told the agents
he was in pain and on the way to the doctor, but was instead arrested
and immediately placed in handcuffs, contrary to testimony by
Agent Post that Petitioner was not handcuffed until he was taken to
the DEA office in Newark. Petitioner asserts that he was thereafter
threatened with the prosecution of his wife if he did not cooperate.
Petitioner asserts that he refused to cooperate with the DEA, and
was never provided with Miranda warnings. Petitioner further
asserts that when he refused to cooperate, Agent Greimel insisted
that Petitioner would either give a statement, or one would be forged
to incriminate Petitioner. Petitioner alleges that he continued to
refuse, and the agents therefore forged his statement and arrested his
wife/Petitioner further asserts that, to the extent that he did answer
questions asked by an Agent Thomas, the agents recorded false
answers which in no way reflected the statements that Petitioner
gave. Petitioner further asserts that he requested an attorney, but
was denied one by the DEA agents. Petitioner finally asserts that,
during a lull in the questioning, he heard his wife being questioned
in another interrogation room, including insults hurled at Petitioner
by the questioning agent. Thus, Petitioner contends that he never
received Miranda warnings, was in constant pain from an injured
hand being handcuffed, was the subject of attempted coercion by
Agent Greimel, and in any event never made the statement used
against him at trial. (Id. at 4-8).
.
.
.
(ECF No. 36 at 25-26).
As the Court explained in its prior opinion, the trial testimony of the various federal agents
directly contradicted Petitioner's account. (Id. at 24-25). At trial, DEA Agent John Post testified
that, on the day of Petitioner's arrest, he and his fellow agents approached Petitioner as he was
exiting his home at approximately 3 p.m., that Post identified himself, told Petitioner he was under
arrest, and asked Petitioner if he wished to speak with them. (Id. at 12). Post testified that Petitioner
2
Case 2:13-cv-06585-SDW Document 58 Filed 09/25/17 Page 3 of 12 PagélD: 843
was "very cooperative," and led the agents to the door of his home, unlocked the door and entered
a code into an alarm system, and thereafter was cooperative. (Id.). Post further testified at trial
that Petitioner was given Miranda rights, stated that he understood those rights, was "very lucid
[and] very cooperative" and gave no indication that he didn't understand, was injured, needed to
see a doctor, or was otherwise impaired. (Id. at 12-13). Post also testified at trial that Petitioner
was not handcuffed until later, when he was taken to the DEA's Newark office. (Id. at 13).
Petitioner thereafter provided them the statements that were used against him at trial. (Id.). DEA
Agent Gregory Arthur Hilton also testified at trial, that Petitioner gave further information at the
DEA's office in Newark. (Id. at 11).
At Petitioner's § 2255 hearing, three DEA agents testified regarding their involvement in
Petitioner's arrest and interview
-
Agent Post, Agent Joseph Thompson, and Agent Greimel. In
his testimony at the hearing, Agent Post largely reiterated the testimony he had provided at trial.
Specifically, Agent Post testified that Petitioner was arrested outside of his home following
surveillance of his address. (Hearing Tr. at 7-9). Post stated that, at about 3 p.m., he and his fellow
agents observed Petitioner leaving his home with keys in hand; the agents then approached him,
identified themselves, and informed him he was under arrest, although they did not then handcuff
him. (Id. at 8). Post testified that Petitioner then stated that he wished to cooperate, and led the.
agents into his residence after Petitioner unlocked the door and turned off the alarm system. (Id.
at 9). Post then read Petitioner his Miranda rights, which Petitioner stated he understood and
agreed to waive by speaking with the agents. (Id. at 10). Post also testified that Petitioner was
cooperative and appeared to have no difficulty understanding, that Petitioner did not appear in pain
or injured, and that Petitioner never told Post he was injured, in pain, or otherwise incapacitated.
(Id. at 10-11). Post then testified as to the taking of Petitioner's statement, providing information
3
Case 2:13-cv-06585-SDW Document 58 Filed 09/25/17 Page 4 of 12 PagelD: 844
essentially in accord with his trial testimony. (Id. at 11-19). Post also testified that Petitioner
never asked for a lawyer while speaking to Post, that Petitioner was never threatened or otherwise
coerced, and that Petitioner's girlfriend was eventually arrested and pled guilty to harboring a
fugitive in relation to her harboring Petitioner. (Id. at 19-2 1). On cross-examination, Post admitted
that he did not follow DEA manual interrogation rules to the letter, and admitted that he had not
previously read the relevant sections of the DEA manual, but had been well acquainted with and
followed the Court's Miranda requirements in dealing with Petitioner. (Id. at 22-35). Agent Post
on cross-examination also stated that- while Petitioner had mentioned Paul Bergrin as having been
his attorney in relation toa written real estate document, Petitioner never asked to speak with,
contact, or otherwise consult With Bergrin in relation to his arrest at that time.' (Id. at 38-40).
DEA Agent Joseph Thompson then testified at Petitioner's § 2255 hearing. (Id. at 41).
Agent Thompson testified that he was present during Petitioner's arrest and was "in and out of'
the room while Agent Post was interviewing Petitioner. (Id. at 47). Agent Thompson testified
that he heard Post provide Petitioner with Miranda warnings at his home, and overheard parts of
Petitioner's statement to Post, although Post did not read the rights from a DEA issued card and
instead provided them from memory. (Id. at 52). Thompson also testified that he eventually took
over the interview from Agent Post after the return to the DEA's Newark Office. (Id. at 43-47).
Thompson further stated that Petitioner was cooperative during the interview, that Petitioner never
advised he was in pain, never complained of any injury, and "seemed coherent." (Id. at 43-44).
Thompson testified that Petitioner never took a note pad from him as had been alleged by
Although Agent Post testified that, to his recollection, Bergrin was not retained in Petitioner's
criminal case, Petitioner did in fact hire Bergrin, although Bergrin himself only briefly represented
Petitioner, and was not Petitioner's attorney when Post testified at Petitioner's trial. (See ECF No.
36 at 34-50). That Post was unaware that Bergrin did briefly act as Petitioner's attorney is therefore
of no moment.
4
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Petitioner, and that although Petitioner refused to sign a written statement, that was not uncommon
as even cooperative individuals "almost
.
.
.
never" sign statements for fear that a written, signed
statement could endanger them with other criminals. (Id. at 44-46). Following Thompson's
testimony, the Government also called Agent Matthew Greimel, who testified that he was not
involved with Petitioner's arrest as he was "out sick" the day of the arrest, a statement which
Greimel supported with his time sheet records. (Id. at 78-83).
Petitioner thereafter testified on his own behalf at the hearing. Petitioner stated that, at the
time of his arrest, he was on his way to the doctor to have an injured hand attended to, and that he
had unrelated back injuries at the time. (Id. at 84-85). Petitioner also testified that he had been on
Tylenol with codeine and a medication called Methocarbamol at or around the time of his arrest,
and that he had filled the prescription for those medicines in the beginning of January 2007. (Id.
at 88). Petitioner further testified that, while taking those medications, he felt "tranquilized," that
he couldn't drive, couldn't operate machinery, and felt "tired and super, super duper high." (Id at
89). In addition to testifying as to the medication he had allegedly taken, Petitioner stated that he
had never been given Miranda warnings during his arrest. (Id at 93).
When confronted with the allegations in his affidavit on cross examination, a subject
Petitioner did not discuss on direct examination, Petitioner stated that he couldn't recall whether
, the affidavit was accurate as it had been aconsiderabk period of time, and some of his court filings
had been prepared on his behalf by others. (Id at 97). Petitioner further stated that he couldn't
remember all that he had put into his affidavit, although he remembered signing and submitting it.
(Id. at 97-101). Petitioner also stated that, aside from human error the affidavit "should be correct."
(Id at 101). PetitiOner admitted, however, that although he had originally named Agent Greimel
As the agent who accosted him that he "didn't know whose name went to whose face" when he
5
Case 2:13-cv-06585-SDW Document 58 Filed 09/25/17 Page 6 of 12 PagelD: 846
wrote the affidavit, and expected the Government to "correct" him as to the inaccuracies in his
own affidavit. (Id. at 102). Petitioner then testified that he couldn't remember whether it was
Greimel or another agent who allegedly threatened and accosted him. (Id. at 103). Petitioner
thereafter testified that he couldn't remember much of what happened, and could not guarantee the
accuracy of his prior allegations, but was certain he had not been Mirandized. (Id. at 103-109).
Petitioner thereafter called Dr. Alberto Mario Goldwaser to testify regarding the mental
effects of the medications Petitioner claims he had taken on the day of his arrest. (Id. at 109). Dr.
Goldwaser essentially testified that the drugs which Petitioner had been prescribed, including a
muscle relaxant, Methocarbamol, and a pain killer, Tylenol with codeine, both had the potential to
make Petitioner tired and slow his mental functions. (Id. at 126). According to various medical
sources, the doctor testified that the two drugs could cause drowsiness, sedation, dizziness, or the
like. (Id.). Based on Petitioner's medical records and these prescriptions, Dr. Goldwaser testified
that, "[h]ad [Petitioner] taken his medication," the doctor would conclude "to a reasonable degree
of medical probability"2 that Petitioner's judgment "wouldn't be as sharp" and Petitioner would
be "very easily convinced" to do thing to which he otherwise was not predisposed. (Id. at 13031). The doctor, however, was not present, and thus couldn't determine whether the medication
was taken, or if it had actually had any such effects upon Petitioner. (Id. at 131,138-39).
In his report, the doctor in multiple incidents couched his conclusions as being within a
reasonable degree of medical probability rather than medical certainty. (Id. at 131). in his
testimony, the doctor equivocated between the two standards, stating that his conclusions were
"with a reasonable degree of medical probability or certainty." It thus did not appear that the
doctor fully appreciated the difference between the two.
Case 2:13-cv-06585-SDW Document 58 Filed 09/25/17 Page 7 of 12 PagelD: 847
II. DISCUSSION
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.
denied 444 U.S. 865 (1979); see also Morelli v. United States, 285 F. Supp. 2d 454,458-59 (D.N.J.
2003).
Analysis
1. Credibility Determinations
Having held an evidentiary hearing in this matter, and having had the opportunity to
observe the demeanor and testimony of the witnesses at the hearing, this Court makes the following
credibility determinations. Turning first to the three DEA Agents, this Court found the testimony
Of Agents Post, Thompson, and Greimel to be highly credible. Each agent was responsive to
7
Case 2:13-cv-06585-SDW Document 58 Filed 09/25/17 Page 8 of 12 PagelD: 848
questioning from both Petitioner and the Government, and each testified to facts which were, in
all relevant respects, in accordance with the trial testimony of Post, Greimel, and Agent Hilton.
Although Agents Post and Thompson did have some difficulty remembering certain facts and had
to have their reflection refreshed as to certain details of Petitioner's statements, these gaps as to
those details are more than understandable given the more than ten year gap between the events in
question and the hearing in this matter. As all three agents were direct and forthcoming, even as
to Agents Post and Thompson admitting their lack of familiarity with certain portions of the DEA
manual, their testimony was credible and reliable.
Petitioner also testified at the hearing, but was less than a credible witness. While
Petitioner was forthcoming with his own attorney on direct examination, he was in large part
argumentative with the Government, seeming only able to recall those memories of his arrest
which weighed in his favor. In contrast, Petitioner's memory was full of convenient gaps
concerning those areas favorable to the Government. Importantly, Petitioner failed to testify at the
hearing to most of the controversial facts from his affidavit which led the Court to hold a hearing
in this matter. Petitioner admitted that his allegations developed over time and that he did not
know which agents in fact had actually been involved in his arrest and interrogation, despite the
apparent certainty that Agent Greimel had been his malefactor presented by his initial affidavit.
Petitioner's version of events thus seems to be fluid, but firmly contradicted by the credible
testimony of the agents as discussed above. This Court likewise finds incredible Petitioner's
assertion that he was either intoxicated by his medications or pain, especially in light of the fact
that Petitioner admits he was preparing to drive at the time of his arrest. However, Petitioner
testified at the hearing that his medications, if taken, would have left him "tranquilized" and
8
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incapable of operating his vehicle. Having observed Petitioner's demeanor, testimony, and
responsiveness to questioning, this Court finds Petitioner's testimony inconsistent and unreliable.
Finally, the testimony of Dr. Goldwaser, while not necessarily incredible, was of little value
to this Court's determinations. Even putting aside the doctor's equivocation between medical
probability and certainty, the doctor was, at best, able to say only how the medication Petitioner
was prescribed could have affected him, and even then only if he had taken it prior to his leaving
the house on the date of his arrest. The doctor could not testify as to whether the medication had
such an effect on Petitioner himself. Thus; his testimony was entirely too speculative to be of any
meaningful assistance in determining a fact in issue specifically Petitioner's competency to
waive his Miranda rights. See generally Fed. R. Evid. 702 (permitting consideration of expert
testimony only when that testimony "will help the trier of fact to understand the evidence or to
determine a fact in issue"); United States v. Delgado, 677 F. App'x 84, 86 (3d Cir. 2017) (expert
evidence properly admitted for consideration only where the testimony is "sufficiently tied to the
facts of the case that it will aid the jury in resolving a factual dispute," requiring that expert
testimony be more than merely relevant).
2. Petitioner's Miranda Claim
In his sole remaining claim, Petitioner asserts that, because he was not given Miranda
warnings, the trial court erred in failing to suppress his statement.3 As this Court previously
explained,
[u]nder Miranda, any statement made by a criminal defendant
during custodial interrogation is inadmissible at trial unless the
defendant was provided Miranda warnings and "in fact knowingly
Importantly, Petitioner maintains that he never gave any statement. This Court finds that
assertion unreliable.
ILI
Case 2:13-cv-06585-SDW Document 58 Filed 09/25/17 Page 10 of 12 PagelD: 850
and voluntarily waived [his Miranda] rights when making the
statement." Berghuis v. Thompkins, 560 U.S. 370, 382-83 (2010).
"The waiver inquiry has two distinct dimensions: waiver must be
voluntary in the sense that it was the product of a free and deliberate
choice rather than intimidation, coercion, or deception, and made
with a full awareness of both the nature of the right being abandoned
and the consequences of the decision to abandon it." Id. (internal
quotations omitted). Waiver need not be made by express or formal
statements, but may be made by implication so long as the facts
establish that the defendant was informed of his right[] to counsel
and [right to] remain silent, understood those rights, and voluntarily
made a statement having that understanding. Id. at 383.
(ECF No. 36 at 24).
Based on the testimony of Agents Post and Thompson at the evidentiary hearing, it is clear
that Petitioner was given Miranda warnings prior to his interrogation by the agents. Moreover, it
is also clear that Petitioner was cooperative and appeared to understand the warnings he was given.
The credible testimony in the record also establishes that Petitioner never complained of pain,
never appeared to be or stated that he was under the effects of any medication, and never stated he
was on his way to see a doctor. This Court therefore finds that Petitioner's waiver of his Miranda
warnings was knowing and voluntary. Petitioner chose, of his own free will, to give the statements
which were used against him at his trial after being informed of and choosing to waive his Miranda
rights.
There is no credible evidence in the record of the coercion, threats, or other misdeeds that
Petitioner asserted in his affidavit. Petitioner's waiver of his rights was made "with full awareness
of both the nature of the right [he chose to] abandon[] and the consequences" of his decision to
waive his rights. Berghuis, 560 U.S. at 382-83. Petitioner's recent contention that he requested,
but was denied, a lawyer is without merit. Agents Post and Thompson credibly testified that while
Petitioner may have mentioned Paul Bergrin as having represented him in other matters, Petitioner
did not invoke his right to counsel prior to the end of his interrogation As this Court finds that
10
C
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41
Petitioner's waiver of his Miranda rights and decision to give the agents a statement was knowing
and voluntary, the trial court did not err in refusing to suppress Petitioner's statements. Likewise,
• to the extent Petitioner asserted the trial court erred in refusing to hold a hearing on Petitioner's
suppression motion, any such error that may have existed was in all respects harmless in light of
the present determination that Petitioner was given and thereafter knowingly and voluntarily
waived his Miranda rights. See Fry v. P11/er, 551 U.S. 112, 116 (2007) (on collateral review, even
constitutional errors will be considered "harmless unless [they] had a substantial and injurious
effect" on the outcome of criminal proceedings); see also Brecht v. Abrahamson, 507 U.S. 619,
631 (1993); Albrecht v. Horn, 485 F.3d 103, 139 (3d Cir. 2007), cert. denied, 552 U.S. 1108
(2008).
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
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 sole remaining claim
Miranda claim
-
-
his
is patently without merit, Petitioner has failed to make a substantial showing of
the denial of a constitutional right, and jurists of reason could not disagree with this Court's
resolution of that claim. Petitioner shall therefore be denied a certificate of appealability.
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IV. CONCLUSION
For the reasons set forth above, Petitioner's sole remaining claim is DENIED and Petitioner
is DENIED a certificate of appealability. An appropriate order follows.
Dated: September 25, 2017
s/Susan D. Wigenlon
Hon. Susan D. Wigenton
United States District Judge
12
.
ppEluD2x
UNITED STATES DISTRICT CO
URT
DISTRICT OF NEW JERSEY
TOMMIE TELFAIR,
Civil Action No, 136585 (SDW)
Petitioner,
V.
[IJl.PI1
UNITED STATES OF AMERICA
,
Respondent
This matter having come before the
Court on the Motion to Vacate, Set
Sentence ("Motion") of Petitioner
, Tommie Telfair, for relief under
1), as well as Petitioner's Motion for
for Release on Bail (ECF No, 32);
28 U.S.C. § 2255 (ECF No.
Appointment of Counsel (ECF No
s. 26-28), and his Motion
and the Court having considered the
proceedings in this matter, the Res
ponses of the United States (Brian
Motions, the records of
Urbano, Assistant United
States Attorney, and Anthony Mahaja
n, Assistant United States Attorney,
20, 29, 34), and Petitioner's reply
Aside or Correct
thereto (ECF No. 24-25); and for
the
accompanying opinion,
ITisonthis l7th day ofFebruary,
ORDER-ED that an evidentiary
appearing) (ECF No.
reasons expressed in the
2016,-
hearing solely as to Petitioner's Mir
anda claim is
GRANTED; and it is further
ORDERED that Petitioner's remain
ing claims for relief under
it is further
ORDERED that a certificate of
Miranda claims; and it is further
§ 2255 are DENIED; and
appealability is DENIED as to Pet
itio
ner's non-
•
V
ORDERED that Petitioner's Motion for Appointment of Counsel is GRANTED solely
for the purpose of the Ihearing on Petitioner's Miranda claim; and it is ftirther
ORDERED that Petitioner's Motion for Release on Bail is DENIED; and it is finally
ORDERED that the Clerk of the Court shall serve this Order and the accompanying
Opinion upon Respondent electronically, and upon Petitioner by regular U.S. Mail.
s/SusanD. Wienton
Hon. Susan D. Wigenton,
United States District Judge
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
TOMMIE TELFAIR,
:
Civil Action No. 13-6585 (SDW)
Petitioner,
V.
:
OPINION
UNITED STATES OF AMERICA,
Respondent.
WIGENTON, District Judge:
Presently before the Court is the motion of Tommie Telfair ("Petitioner") to vacate, set
aside, or correct his February 2010 conviction. (ECF No. 1). Petitioner filed his motion on or
about October 25, 2013. (ECF No. 1). The Government filed a response (ECF No. 20), to which
Petitioner has replied. (ECF Nos. 24-25). Also before this Court are Petitioner's motion for the
appointment of counsel (ECF No. 26-28), to which the Government responded (ECF No. 29), and
in support of which Petitioner filed a reply (ECF No. 30-31); and Petitioner's motion for release
on bail, to which the United States has responded. (ECF No. 34). For the following reasons, this
Court will grant Petitioner's request for an evidentiary hearing solely as to his Miranda claim, will
grant Petitioner's motion for the appointment of counsel solely for the purposes of the evidentiary
hearing, deny Petitioner's motion for release on bail, deny all of Petitioner's remaining grounds
for relief,and deny Petitioner a certificate of appealability as to all of his non-Miranda claims.
I. BACKGROUND
Petitioner, Tommie Telfair, seeks in his current motion brought pursuant to 28 U.S.C. §
2255 to challenge his February 2010 conviction for conspiracy to distribute and possession with
the intent to, distribute one kilogram or more of heroin. In its decision affirming Petitioner's
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
TOMMIE TELFAIR,
Civil Action No. 13-6585 (SDW)
Petitioner,
V.
:
OPINION
UNITED STATES OF AMERICA,
Respondent.
WIGENTON, District Judge:
Presently before the Court is the motion of Tommie Telfair ("Petitioner") to vacate, set
aside, or correct his February 2010 conviction. (ECF No. 1). Petitioner filed his motion on or
about October 25, 2013. (ECF No. 1). The Government filed a response (ECF No. 20), to which
Petitioner has replied. (ECF Nos. 24-25). Also before this Court are Petitioner's motion for the
appointment of counsel (ECF No. 26-28), to which the Government responded (ECF No. 29), and
in support of which Petitioner filed a reply (ECF No. 30-31); and Petitioner's motion for release
on bail, to which the United States has responded. (ECF No. 34). For the following reasons, this
Court will grant Petitioner's request for an evidentiary hearing solely as to his Miranda claim, will
grant Petitioner's motion for the appointment of counsel solely for the purposes of the evidentiary
hearing, deny Petitioner's motion for release on bail, deny all of Petitioner's remaining grounds
for relief,and deny Petitioner a certificate of appealability as to all of his non-Miranda claims.
I. BACKGROUND
Petitioner, Tommie Telfair, seeks in his current motion brought pursuant to 28 U.S.C. §
2255 to challenge his February 2010 conviction for conspiracy to distribute and possession with
the intent to distribute one kilogram or more of heroin. In its decision affirming Petitioner's
Shortly after the shooting, the DEA attempted to find
[Petitioner] at the residence of his girlfriend, Catrina Gatling
("Gatling"), but she denied knowing [Petitioner]. The DEA then
obtained an arrest warrant for [Petitioner]. On January 23, 2007,
[Petitioner] was arrested outside Gatling's residence. After he was
Mirandized, [Petitioner] admitted he was a heroin dealer, and told
the DEA agents that he had been leaving to meet his heroin supplier,
Carlos Alberto Antigua ("Carlito"), when he was arrested. Carlito
repeatedly called [Petitioner] during the interview.
Carlito testified at trial that he began supplying heroin to
[Petitioner] in late August 2006. At the height of the relationship,
[Petitioner] was purchasing 100 bricks of heroin every three days.
This continued for roughly four months. During this period, Carlito
sold between four and five kilograms of heroin to [Petitioner].
An indictment was returned against [Petitioner] on March
29, 2007, charging him with one count of conspiracy to distribute
and to possess with intent to distribute 100 grams or more of heroin.
A superseding indictment was filed on May 7, 2007, charging
[Petitioner] with conspiracy to distribute one kilogram or more of
heroin. On April 7, 2008, the District Court held a hearing regarding
several motions filed by [Petitioner]' s then-counsel, James Kimball,
including a motion to suppress the evidence seized from 185 Parker
Street. The District Court denied the motions and issued a written
order, without an accompanying opinion, on May 20, 2008. On
October 7, 2008, this indictment was dismissed without prejudice
due to violations of the Speedy Trial Act, 18 U.S.C. § 3161.
On October 8, 2008, a second indictment was returned
against [Petitioner], charging him with one count of conspiracy to
distribute and possess with intent to distribute one kilogram or more
of heroin, and one count of distribution and possession with intent
to distribute 100 grams or more of heroin.
Lincoln Navigator; a letter from DirecTY addressed to Hass Gatling at 185 Parker Street,
Newark, New Jersey; three letters from Meg Radio to Hass Gatling at 185 Parker Street; a letter
from Chase to Hass Gatling at 185 Parker Street; a letter from Cablevision to Hass Gatling at 185
Parker Street; a bill from Cablevision to Hass Gatling at 185 Parker Street; and a bill from Gold
Touch Carpet and Flooring to Hass at 185 Parker Street. The owner and landlord of 185 Parker
Street also testified that he had been renting the premises to [Petitioner] at the time the heroin
was found, that [Petitioner] had made several renovations to the property, and that he had never
informed the landlord of an intent to leave or to sublet the premises to Filpo and Sanchez."
United States v. Telfair, 507 F. App'x 164, 167 n. 3 (3d Cir. 2012).
Though represented by counsel, [Petitioner] filed a number
of pro se motions, including a motion to suppress the evidence
seized from 185 Parker Street, which were nearly identical to the
motions filed under the prior indictment. The District Court denied
these motions in a December 10, 2008 opinion, noting it had denied
"substantially similar" motions in its May 20, 2008 Order. The
court found the officers' warrantless entry of 185 Parker Street
justified by the consent of Filpo and Sanchez. The court also
concluded the search was justified by the plain view exception to the
warrant requirement.
In March 2009, roughly one year before trial, Mr. Kimball
was replaced by Michael Pedicini as counsel for [Petitioner].
[Petitioner] demanded that Mr. Pedicini file new motions on many
of the same subjects and based on the same arguments as the earlier
motions. Mr. Pedicini declined, saying "my position with regard to
motions is, if they've been filed and argued and denied, you can't
refile them until you get the answer you want."
United States v. Telfair, 507 F. App'x 164, 167-69 (3d Cir. 2012) (internal citations and footnotes
omitted), cert. denied, 134 S. Ct. 167 (2013).
Petitioner's matter proceeded to trial in February of 2010 following multiple extensions
requested by Petitioner. (See Docket No. 08-757 at ECF No. 67 at 20-23). On the eve of trial on
February 16, 2010, Petitioner brought to the trial court's attention that he believed that his counsel
was acting improperly by failing to file new motions as discussed above and by failing to review
the discovery with him. (See Id. at 18-41). In a lengthy colloquy, the trial court explained to
Petitioner that the court would not entertain any more repetitive motions by Petitioner, and would
not force Mr. Pedicini to file motions which counsel asserted had already been addressed during
prior counsel's representation of Petitioner. (Id.). During that colloquy, Mr. Pedicini and the
Government both addressed Petitioner's claim that he had not been provided discovery, and noted
that Petitioner had received all of the discovery well in advance of trial, and that Mr. Pedicini had
repeatedly spent significant amounts of time trying to go over the discovery with Petitioner, but
was often prevented from doing so by Petitioner's insistence on filing new motions and, in at least
one instance, by violent outbursts on Petitioner's part when Mr. Pedicini's investigation showed
that the facts did not match Petitioner's assertions. (Id. at 7, 14-17, 32-41). Although the Court
accepted Mr. Pedicini's assertion that he had reviewed the discovery with Petitioner, the Court
offered to provide Petitioner with a short recess of approximately one hour to go through the
discovery with Mr. Pedicini, which apparently amounted to a single binder containing various
DEA reports and the like. (Id. at 40-41). Petitioner, however, refused that offer, stating that he
didn't believe such a review would be of any benefit. (Id.).
During that same pre-trial presentation, defense counsel also sought permission to present
polygraph evidence at trial through an expert witness purportedly to buttress Petitioner's
credibility. (Id. at 47). Following argument, the trial court denied that request, excluding the
polygraph evidence. (Id. at 51-52). In so doing, the trial judge made the following comments:
Normally when something like this is offered with an individual
with this alleged scientific knowledge, the Court would look to
Daubert v. Merrill Dow[, 509 U.S. 579 (1993),] that famous 1993
case dealing with the admissibility of experts and the role the Court
plays as a gatekeeper in doing so, basically holding that the expert
testimony may be admissible even if not generally accepted in the
relevant scientific community provided that it qualifies in some
other way as reliable under Rule of Evidence 702, the rule pertaining
to experts.
I would note that most of our appellate courts that have
discussed polygraphs since Daubert have ruled against admitting
that type of evidence.
I'm going to deny the application. Ijust believe there are too
many aspects of this that create unreliability.
I recognize that there's no specific Third Circuit precedent.
That's within the discretion of this Court. I don't know whether or
not the results of this could confuse the jury, but I think there is the
potential to mislead the jury.
And I do believe that the tests are just inherently unreliable
and warrant exclusion.
5
,
(Id. at 50-51).
Trial commenced the following day. At trial, the Government first called Pablo Gonzalez,
a member of the Newark Police Department. (Docket No. 08-757 at ECF No. 68 at 24). Gonzalez
testified at length regarding the call in reference to the shooting at 185 Parker Street and the search
of the Parker Street home which resulted in the discovery of heroin in the refrigerator. (Id. at 2558) The Detective also provided the foundation for the admission of various photographs showing
the bullet holes in the door and kitchen of the home. (Id.). Finally, the Detective discussed the
initial interviews of Sanchez and Filpo which resulted in a search for Petitioner. (Id.). Following
Detective Gonzalez, the Government called Detective Luigi Corino of the Newark Police
Department, who recounted his discovery of the drug mill in the Parker Street Home during his
search thereof as recounted in the Third Circuit's opinion. (Id. at 68-76).
The Government next called DEA agent Matthew Greimel. (Id. at 76). Greimel testified
as to the purpose and function of a drug mill, and regarding his interview of Filpo and Sanchez.
(Id. at 82-87). Greimel testified that Filpo and Sanchez both identified the same individual as the
owner and operator of the drug mill found in the Parker Street home. (Id. at 86). He also testified
that they ultimately, identified Petitioner as the individual who operated the drug mill through a
photo array. (Id. at 87-88). Counsel for Petitioner did not object to the information regarding the
identification of Petitioner via a photo array. (Id.). Greimel admitted, however, that both Filpo
and Sanchez had lied to the Government regarding other facts involved in the drug operation, and
as a result had lost the benefit of their cooperation agreements (Id at 183-84, 211-15) Greimel
further testified that phone records showed the two women communicated with Petitioner under
the name "Haz" through a telephone account registered to Petitioner's paramour. (Id. at 89-101).
The agent also testified about the multitude of clothing and shoes found in the Parker Street home
and documents found therein addressed to Petitioner under the names "Tommy Hassan, Hass
Gatling, Son Gad ing, [and] Tommie Telfair." (Id. at 102-135). Finally, the agent testified
regarding Petitioner's arrest, and how a phone call placed to Petitioner's phone during the arrest
ultimately resulted in the arrest of Petitioner's co-conspirators, Carlos A. and Jose Antigua, (Id.
at 157-64).
Following Agent Greimel's testimony, the Government called Petitioner's landlord,
Antonio Rodriguez. (Id at 216). Mr. Rodriguez testified that he had rented the Parker Street home
to Petitioner, and that Petitioner had ultimately promised to pay rent for the location through the
time of the shooting. (Id. at 216-239). Mr. Rodriguez also testified that Petitioner had promised
to pay for any damages resulting from the search of the home, which Petitioner told him was the
result of the police breaking into the home (Id at 238-39) Finally, Mr. Rodriguez testified that
Petitioner had never informed him of an intent to move out of the Parker Street address, but instead
continued to assert that he would pay the back rent and continue with his lease even after the search
of the home. (Id. at 238-40). After the testimony of Petitioner's landlord, the Government and
Petitioner entered a stipulation that the drugs seized from the Parker street home included 154
grams of heroin with traces of cocaine and other drugs, as well as 5.6 grams of heroin in a chloride
form. (Docket No. 08-757 at ECF No. 69 at 300-01).
The Government then called Carlos A. Antigua to testify with the aid of a Spanish
interpreter. (Id. at 310). Antigua testified that he had supplied Petitioner with several hundred
bricks of heroin a week for several months. (Id. at 326). In total, Antigua testified that he supplied
Petitioner with between four and five kilograms of heroin. (Id. at 237). Antigua also testified that
2
For the sake of clarity, Carlos A. Antigua is herein referred to as Carlos Antigua, while Carlos
Jose Antigua is instead referred to as Jose Antigua.
'A
on at least one occasion, Petitioner had paid for ,a shipment of drugs by giving Antigua a car. (Id.
at 330-32). During his testimony, Carols Antigua testified that several pages of his ledger showed
transactions between himself and Petitioner, including the one in which Petitioner paid by way of
giving Carlos Antigua a black Lexus automobile. (Id. at 333-38). When the pages of the ledger.
were introduced, counsel for Petitioner requested an opportunity to look at two of the three ledger
pages because he didn't "have [two of the pages] in [his discovery] book" (-Id.. at 333) Upon
seeing the pages, counsel stated that there was "no problem" and did not object to admission of
the ledger pages. (Id.). Counsel did not say that he had never received the documents, only that
he did not have them with him at trial. (Id.).
Carlos Antigua then turned to testify regarding the events leading up to his arrest. (Id. at
340). Carlos Antigua stated that he was arrested after going to meet someone who was purportedly
Petitioner's cousin, who in fact was an undercover DEA agent. (Id.). Antigua testified that he had
spoken with the agent over the phone at least two times. (Id.). At that point, the Government
sought to introduce recordings of these conversations into evidence, one of which was played for
the jury, but was, according to defense counsel and the trial judge, inaudible. (Id. at 341-46).
When the Government thereafter tried to enter into evidence purported transcripts of the recording,
counsel for Petitioner objected. (Id. ).3 The trial court ultimately determined that the recordings,
and a related video recording of the agent meeting with Carlos Antigua, were unduly prejudicial
hearsay, and thus excluded them from evidence. (Id. at 347-53).
Carlos Antigua then testified that he met with an undercover DEA agent on several
occasions. (Id. at 354). When the Government sought to ask Antigua about the conversations that
Petitioner's trial attorney had previously objected to these recordings prior to trial, and the trial
judge had withheld his decision at that time. (See Id. at 347).
took place during those meetings, defense counsel objected On the grounds that this amounted to
inadmissible hearsay as the meetings took place after Petitioner's arrest and could therefore have
not been in furtherance of the conspiracy in which Petitioner was involved. (Id. at 355-363). The
trial judge initially concluded that defense counsel was correct, and thus said that he would
preclude the Government from discussing those conversations with the witness. (Id. at 363).
When the Government disputed this ruling, the trial judge stated that he would permit the
Government to discuss the hearsay, but warned that doing so would likely result in an appeal of
any conviction. (Id. at 364). The Government thereafter dropped the line of questioning, and
chose not to discuss the alleged hearsay further, despite permission to do so. (Id. at 365-66).
Defense counsel cross examined Carlos Antigua at length regarding'-his cooperation
agreement with the Government. Specifically, counsel elicited information that, even though
Antigua had distributed some ten or more kilograms of heroin, he pled guilty to only distributing
100 grams of heroin. (Id. at 377-82). Counsel likewise got Antigua to admit that Antigua had
some expectation of receiving a letter requesting'ã downward sentencing departure in exchange
for his testimony against Petitioner. (Id. at 380-82). Antigua also stated on cross examination that
he had met with the Government on several occasions to prepare for his testimony in Petitioner's
case. (Id. at 387).
The Government thereafter called Carlos Jose Antigua, the brother of Carlos A. Antigua,
to testify. Jose Antigua testified that he had acted as a go between for his brother and Petitioner,
and had delivered heroin to Petitioner on his brother's behalf (Id. at 416-21). Jose Antigua also
testified that on one occasion, he had deliveredheroin to Petitioner in exchange for the black Lexus
as had been recounted in his brother's testimony. (Id. at 422-23). Jose further testified that his
last delivery to Petitioner had been in January of 2007, a few weeks before Petitioner's arrest. (Id.
at 424-25). As with his brother, Jose Antigua was cross examined extensively on his cooperation
agreement with the government and the resulting sentencing benefitshe would receive in return
for his cooperation. (Id. at 447-48).
The Government next called Craig Ford, who testified that he was a longtime friend of
Petitioner. (Id. at 452-56). Ford testified that he and Petitioner had met at the Parker Street home
multiple times during June of 2006. (Id. at 457). Ford further testified that when he and Petitioner
went to the Parker Street home, they met with Filpo and Sanchez, who were staying in the home.
(Id. at 462-63). Ford also testified that he had at one point discarded a bag containing numerous
empty heroin bags on Petitioner's behalf (Id. at 465). Ford then testified that he later met with
Petitioner at the Parker Street home, and at that time he observed Petitioner with a large bag
containing "eight hundred-some grams" of heroin which Ford saw Petitioner weigh. (Id. at 46566). Ford explained that he and Petitioner took this bag of heroin to New York where Petitioner
attempted to return the heroin to the person from whom he'd bought it. (Id. at 467). Ford also
testified that Petitioner had told him about the shooting at Parker Street, and that Filpo and Sanchez
had called Petitioner and told him to come to the house after the shooting occurred. (Id. at 46869). Ford testified that Petitioner told him that he rode by the house to see what had happened,
saw the police, and left the scene. (Id. at 471).
Ford also stated that, a few days after the shooting incident, Ford accompanied Petitioner
back to the Parker Street home, where Petitioner paid several movers for moving the clothing and
shoes out of the Parker Street location. (Id. at 473-74). Ford then testified that, the following day,
he and Petitioner took a U-Haul and Petitioner had Ford and another man "clean[] out the
basement" by removing empty heroin bags and drug paraphernalia and wiping down the tables
and walls. (Id. at 475; Docket No. 08-757 at ECF No. 70 at 532-33). Ford also testified that he
10
had removed a few handguns, from a secret compartment under the refrigerator in the kitchen of
the Parker Street home. (Docket No. 08-757 at ECF No. 69 at 476).
The Government next called DEA Agent Gregory Arthur Hilton. (Docket No. 08-757 at
ECF No. 70 at 548). Agent Hilton testified that after Petitioner's initial interview at his home and
arrest, Petitioner was brought back to the DEA office inNewark New Jersey. (Id. at 551). Agent
Hilton further stated that although he was not initially part of that interview, he joined the interview
after it had begun. (Id.). Hilton was apparently asked to join the interview by his supervisor
because Hilton possessed knowledge of many of the drug traffickers active in the Newark area.
(Id. at 551-52). Hilton testified that, while he was present, Petitioner told the DEA agents
conducting the interview, Agents Thompson and Post, that his main supplier was Carlos A.
Antigua, and that Antigua had been his chief supplier since 2006. (Id. at 553). Hilton further
stated that Petitioner had previously dealt with another supplier, Fausto Paulino, and that Paulino
had been providing Petitioner with up to five hundred and fifty bricks of heroin per week during
the two years Petitioner had worked with him, with each brick weighing approximately 2.5 grams.
c
(Id. at 553-55). Agent Hilton then testified that Petitioner had permitted Filpo and Sanchez to stay
in his Parker Street Home as a favor to Pauli-no. (Id. at 555). Hilton also testified that Petitioner
claimed that he was not involved with the drug operation at the Parker Street home, although
Petitioner admitted the clothing and the like in the home were his. (Id. at 556-57).
-
Agent Hilton also testified that he was the undercover agent who had interacted with Carlos
Antigua. (Id. at 551). Hilton stated that, during the interview of Petitioner, he was given
Petitioner's phone and was instructed to answer an incoming phone call from Carlos A. Antigua.
(Id. at 550-51). Hilton testified that he was also instructed to lead Antigua to believe that Hilton
11
was a part of Petitioner's drug operation, which he did, ultimately resulting in the meetings with
and arrest of the Antigua brothers. (Id. at 551).
The Government's final witness was DEA Agent John Post. (Id. at 564). Agent Post
testified that, on January 23, 2007, in response to a report that Petitioner had been spotted at the
home of his wife, he and other agents surveilled the wife's home.
(Id. at 565-66).
At
approximately 3 p.m. that afternoon, Agent Post and his team saw Petitioner exit the. home. (Id.
at 567). Agent Post then approached Petitioner, identified himself, and told Petitioner that he was
under arrest as Petitioner was walking towards his vehicle. (Id. at 567-68). Agent Post described
Petitioner's demeanor at that time as follows:
He was very cooperative. When we arrest an individual like
[Petitioner], initially, what we hope to do is get his cooperation. We
asked him if he'd like to go back into his house to talk to us. He
said he would. We did not handcuff him at the time. We walked
him back to his residence. He had the keys to get into the house,
and there was an alarm system at the door entrance. He keyed the
alarm, opened the door, and we went into the residence.
[Agent Post explained that the DEA generally attempts to obtain
cooperation from drug trafficking suspects in the hopes of gaining
information on their superiors, suppliers, and co-conspirators.]
He agreed to talk to
initially, when we got him back in the
apartment, sat him on the couch, I Mirandized him, and he agreed to
continue talking to us.
-
I told him he had the right to remain silent; anything he said could
and will be used against him in a court of law; that he had a right to
an attorney to be present with him during questioning if he so opted;
if he couldn't afford anattorney, he could be provided with one.
[(Id. at 568-69).] Agent Post further testified that Petitioner stated that he understood those rights,
was "very lucid [and] very cooperative," and gave the agent no reason to believe that he did not
12
understand his rights. (Id. at 570). Agent Post testified that5Petitioner at no time stated he was in
any pain or needed/was headed to see a doctor, and that Petitioner was not handcuffed until the
initial interview ended and Petitioner was taken to the DEA's office in Newark. (Id. at 581-83,
594-95).
Agent Post testified that among the items found on Petitioner's person at the time of his
arrest were three cell phones, one of which Petitioner used to conduct his drug business. (Id. at
570-73). Although Petitioner initially stated that he had not spoken with anyone on this business
phone on the day of his arrest, Petitioner admitted after being told his phone was being monitored'
that he had "recently spoken to his friend [Carlos A. Antigua]." (Id. at 573). Petitioner then
identified Carlos Antigua as his heroin supplier. (Id. at 574). Agent Post testified that when he
looked at Petitioner's phone it was locked, and he asked Petitioner if he could look at the phone,
at which point he handed the phone to Petitioner who entered his private code, unlocked the phone,
and gave it back to Agent Post. (Id.). Petitioner's phone confirmed that Petitioner's most recent
call had been to Antigua. (Id.). Post further testified that, during the conversation, Carlos Antigua
called Petitioner's cell phone. (Id. at 574-75). Petitioner further explained to post that Antigua
had told him that he had "good news" for him
have heroin for Petitioner
-
-
meaning that Antigua either had or would soon
and that Petitioner had been on his way to see Carlos Antigua when
he was arrested. (Id. at 574-81).
Agent Post then testified that he attempted to gain Petitioner's cooperation against Antigua.
Petitioner apparently told Post that he would call Antigua to calm him, but only if he could call his
girlfriend first, which Post would not allow him to do. (Id. at 581-82). Petitioner thereafter refused
to call Carlos Antigua for the DEA, and stated that he would not cooperate in an attempt to arrest
phone was subject to a United States Marshals' pen register. (Id. at 573).
F -F-HI e
ii~ —ru
13
.,
—ro
A)
16
Antigua, but was amenable to continuing to talk with the DEA. (Id. at 583). Petitioner was at that
point handcuffed and taken to the DEA' s Newark office. (Id.). Agent Post also confirmed that
Petitioner had, during questioning at the DEA's office, provided the information about -which
Agent Hilton had testified regarding his previous supplier, Filpo, Sanchez, and Petitioner's claim
that the women were using his Parker Street home to sell drugs. (Id. at 584-88).
On cross examination, Agent Post again confirmed that Petitioner never, said he was in
pain, had an injured hand, or that he was on his way to see a doctor. (Id. at 595-95). Post also
confirmed that he provided Petitioner with proper Miranda warnings, which Petitioner waived.
(Id. at 597). When asked why there was not. a signed Miranda waiver form, Agent Post testified
that it was not the standard procedure of the DEA at that time to require a signed waiver fOrm.
Following the testimony of Agent Post, the United States rested its case, and counsel made
a Rule 29 motion for a judgment of acquittal, which thetrial judge denied. (Id. at 612-13). Defense
counsel was then given a brief period of time during which to speak with Petitioner, who ultimately
chose not to testify in hisown defense. (Id. at 614-15). Petitioner called no witnesses in his
defense, and rested on counsel's cross examinations of the Government's witnesses. (Id. at 61516).
During its summation, the Government made the following statements in response to the
cross-examination of Craig Ford and in anticipation of defense counsel's attack on Ford's
credibility, (see id. at 646-47), which Petitioner alleges constituted improper vouching:
It's not about whether anyone would want to have dinner with Craig
Ford. Craig Ford came here. He did so under compulsion of
subpoena. You observed his testimony. The Government submits
that Craig Ford's testimony was perhaps as credible as could be. He
had no incentive whatsoever. All this talk about cooperation
agreements? Didn't happen. Didn't have any pending charges.
14
11
Wasn't getting anything from his testimony. He came here, and you
saw how difficult it was for him. He's known [Petitioner] for 30
years. Yet he pierced each one of the defenses raised by Petitioner].
(Id. at 635-36).
In response to defense counsel's argument that Petitioner had consistently argued that he
never made any statements to Agents Post and Hilton about Carlos Antigua or his other suppliers,
and had simply denied any involvement with the Parker Street home's drug contents, the
Government made the following comments in its rebuttal summation, which Petitioner also asserts
amounted to improper vouching:
So that's the defense you're to consider: everybody lied. Mr.
Telfair has maintained, I didn't say those things.
So Special Agent Greg Hilton, over 20 years of experience,
Special Agent John Post, involved in completely separate interviews
with [Petitioner], both saying the same thing that he said he's a
huge heroin supplier, he's been so for a long time would come
here, put their careers on the line, jeopardize their nearly half a
century combined of law enforcement experience to lie, to frame
just another drug dealer, one of many they arrest every day?
-
-
Does that make sense? Is that a real defense here? Is that
consistent with all the evidence?
So [Petitioner] didn't say all those things that are recorded
in multiple detailed reports of what he said but just somehow turned
out to be true.
[Petitioner]: I didn't say Fausto was my supplier for three
years.
So then why does Carlos Antigua come in here, never talked
to [Petitioner] about that, and say, Yeah, [Petitioner] was being
supplied by Fausto? How do we know? Because [Antigua testified
that the drug trafficking organization for which Antigua worked]
passed him from Fausto to Ruben to [Antigua].
[Petitioner] says, well, L never did business with Tony. I
never said that to those agents.
15
But somehow that's true. How do we know that? [Petitioner
s]hows Carlos Antigua the basement of bad heroin.
[Petitioner]: I never said I had a
over bad heroin.
running
dispute with Tony
Mr. Antigua: Yeah, he showed me bad heroin in the
basement of 185 Parker Street.
Mr. Ford: Yeah, he showed me more than 700 grams of
heroin we took to Washington Heights and we exchanged it.
So when [Petitioner] says, I didn't say that: these agents
that just happened
made up statements [] completely out of the
to be true? Does that make sense?
air
(Id. at 650-52).
Following summations and the jury instructions, the jury retired at 3 p.m. on February 19,
2010. (Id. at 711). The jury returned its verdict approximately 90 minutes later, finding Petitioner
guilty of both counts of the indictment, and finding that Petitioner's conspiracy conviction had
involved "one kilogram or more of a mixture or substance containing heroin" beyond a reasonable
doubt. (Id. at 715-16).
Between the verdict and sentencing, Petitioner again changed counsel, and was thus
represented by John Azzarello at sentencing. Although the trial court determined at sentencing
that Petitioner was subject to a guidelines range of 360 months to life based on the quantity of
heroin involved in his case and the armed career criminal enhancement to which Petitioner was
subject based on his criminal history, Azzarello successfully persuaded the trial judge at sentencing
that the enhancement overstated Petitioner's actual criminal history. See Telfair, 507 F. App'x at
169. As a result, the trial court granted Petitioner a downward departure and sentenced Petitioner
to 240 months' imprisonment. Id. Petitioner thereafter filed a timely notice of appeal. Id.
16
'
On appeal, Azzarello determined that, in his professional judgment, Petitioner's case did
not present any meritorious basis for appeal, and therefore filed a brief pursuant to Anders v.
California, 386 U.S. 738, 744 (1967), with the Third Circuit arguing that all the apparent bases for
an appeal were without merit. Telfair, 507 F. App'x at 169-70; Anders, 386 U.S. at 744 (holding
that "if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he
should so advise the court and request permission to withdraw
.
.
.
[t]hat request must, however,
be accompanied by a brief referring to anything in the record that might arguably support the
appeal"). Although the Third Circuit found that counsel's Anders brief was inadequate in so much
as it failed to address certain claims which Petitioner raised in his pro se briefs, the Third Circuit
examined Petitioner's case in depth and determined that Petitioner's case presented no meritorious
basis for an appeal. Telfair, 507 F. App'x at 171-79.
In making that determination, the Third Circuit considered and rejected Petitioner's
arguments that ,the search of the Parker Street home violated the Fourth Amendment, that the
second superseding indictment was deficient or embellished the facts, that the Government
committed discovery violations, that the trial court should have granted certain motions for a
mistrial, and that Petitioner's sentence was either unreasonable or the result of deficient process.
Id. The Court also rejected Petitioner's attempts to bring ineffective assistance of counsel claims
on direct appeal, finding that most of those claims went beyond the trial record and thus would
only be cognizable on collateral review.' Id. at 175-76. The Third Circuit thus denied Petitioner's
appeal, finding no meritorious issues in Petitioner's pro se filings or counsel's Anders brief. The
Court also denied Petitioner's outstanding miscellaneous pro se motions and filings as equally'
The Third Circuit did review Petitioner's claim that Mr. Pedicini was ineffective in so much as
he "conspired" to deprive Petitioner of his appellate rights, and rejected that claim as clearly
without merit. Id. at 176 n. 17.
17
without merit. Id. at 179. Petitioner thereafter filed a petition for certiorari, which the Supreme
Court denied on October 7, 2013. See Telfair v. United States,
US.
,
,
134 S. Ct. 167,
rehearing denied, --- U.S . ---- ---- 134S.Ct.815(2013).
IL 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 (3dCir. 1979) (quoting Hill v. United States, 368 U.S. 424,429 (1962)), cert.
denied 444 U.S. 865 (1979); see also Morelli v. United States, 285 F. Supp. 2d 454,458-59 (D.N.J.
2003).
18
B. Analysis
1. An evidentiary hearing is required only for Petitioner's Miranda claim and counsel will
be appointed for the hearing on that claim
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 thepetitioner
or indicate[s] that petitioner is not entitled to relief as a matter of law, no hearing is required."
Judge v. United States,
---
F. Supp. 3d
---,
---,
No. 132896, 2015 WL 4742380, at *3 (D.N.J.
Aug. 11, 2015); see also Government of Virgin Islands v. Nicholas, 759 F.2d 1073, 1075 (3d Cir.
1985); see also United States v. Tuyen QuangPham, 587 F. App'x 6,8 (3d Cir. 2014); Booth,
432 F.3d at 546. For the reasons set forth below, all of Petitioner's claims other than his
Miranda claim are without merit, and will therefore be denied without an evidentiary hearing.
Because this Court cannot decide Petitioner's Miranda based claim based solely on the record at
hand, including the transcripts of the hearing now-retired Judge Cavanaugh held as to
Petitioner's suppression motion, Petitioner will be provided with an evidentiary hearing limited
solely to his Miranda claim. Because this Court is granting Petitioner a hearing as to that claim,
Rule 8 of the Rules Governing Section 2255 proceedings requires that this Court appoint counsel
for Petitioner for that hearing, as such, Petitioner's motion for the appointment of counsel will be
granted solely for the purpose of a hearing as to Petitioner's Miranda claim.
19
Petitioner's may not use his § 2255 motion to relitigate' those matters decided adversely
to him on direct appeal
Petitioner attempts to raise several claims in his motion to vacate which have previously
been decided adversely to him on the merits on direct appeal. A § 2255 motion "is not a
substitute for an appeal" and therefore cannot "be used to relitigate matters decided adversely on
appeal." Nicholas, 759 F.2d at 1075. As such, § 2255 "may not be employed to relitigate
questions which were raised and considered on direct appeal." United States v. DeRewal, 10
F.3d 100, 105 n. 4 (3d Cir. 1993) (internal quotations omitted); see also United States v
Travillion, 759 F.3d 281, 288 (3d Cir. 2014) ("issues resolved in a prior direct appeal will not be
reviewed again by way of § 2255 motion"). Here, Petitioner attempts to assert claims that the
searches and seizures conducted at 185 Parker Street violated his Fourth Amendment rights, and
attacks the sufficiency of the indictment against him. The Third Circuit, however, already
decided those claims on the merits adversely to Petitioner on direct appeal. Telfair, 507 F.
App 'x at 171-77. Petitioner is therefore barred from raising those claims in his motion to vacate,
and those claims present no basis for relief 6 Travillion, 759 F.3d at 288.
Petitioner's Speedy Trial Act Claim
Petitioner alleges that the trial court erred in dismissing his indictment without prejudice
in response to his second speedy trial act motion. Petitioner argues that the indictment should
have been dismissed with prejudice and the Government blocked from proceeding with the
6
Although Petitioner insists that he is not relitigating the same issues and that he is instead
addressing "new facts," he is in fact raising the same claims he raised on direct appeal:
specifically that the evidence seized at 185 Parker Street should have been suppressed and that
the indictment against him should have been dismissed. The Third Circuit addressed both of
those claims in its opinion, and as such Petitioner may not re-argue those points here.
20
second superseding indictment through which he was ultimately tried and convicted.
Under
the Speedy Trial Act, trial, in a criminal matter "shall commence within seventy days from the
filing date.. of the.
.
. .
indictment or from the date the defendant has appeared before a judicial
officer of the court in which the charge is pending, whichever date last occurs." 18 U.S.C.
§3161(c)(1). courts exclude from that seventy day period many forms of pretrial delay
including any delays resulting from pretrial motions and any period of delay resulting from
continuances which the court finds are in the interest of justice at the time the continuances are
granted. See 18 U.S.C. § 3161(h)(1)-(7). In Petitioner's case, the pre-trial delay exceeded
seventy days by, at most, eighty four days.7 (See Docket No. 07-272 at Document 1 attached to
ECF No. 64 at 4, 4 ml). That this eighty four day delay beyond the speedy trial period existed
mandated that the trial court dismiss Petitioner's original criminal case, but the statute does not
require that a criminal case be dismissed with prejudice for all violations of the Speedy Trial Act.
The Speedy Trial Act permits trial courts to dismiss a criminal indictment with or without
prejudice following a violation of the act. See 18 U.S.C. § 3162(a)(1). "In determining whether
to dismiss the case with or without prejudice, the court shall consider, among others, each of the
following factors; the seriousness of the offense; the facts and circumstances of the case which
-"V
This eighty four day period of delay includes both the twenty eight day excess found by the
trial court and fifty six days of delay granted by the trial court nunc pro tunc. See United States v.
Brenna, 878 F.2d 117, 122 (3d Cir. 1989) (an order continuing a case must be entered before the
days to be excluded). Although Petitioner argues that several of his lawyers requested delays he
didn't want, he has not specified which of the many continuances in this matter were unwanted,
instead providing only vague allegations that three of his lawyers sought continuances without
first receiving his permission, which he alleges he would not have given. As that allegation is
vague and conclusory, and Petitioner has not shown that he suffered ineffective assistance of
counsel as discussed below, this Court cannot and will not speculate as to additional excesses
based on allegedly improper continuances. Although Petitioner asserts that he was delayed by
over a year, he arrives at that calculation, by essentially failing to remove from his calculation the
time accounted for by continuances sought by his attorneys or resulting from his filing of
numerous pretrial motions.
21
led to the dismissal; and the impact of a reprosecution on the" administration of [the Speedy Trial
Act] and on the administration ofjustice." Id. The presence or absence of prejudice to the
criminal defendant is also a factor relevant to this determination. See United States v. Martinez,
75 F. Supp. 2d 360, 365 (D.N.J. 1999) (citing United States v. Taylor, 487 U.S. 326, 334-36
(1988)); see also United States v. Cox, 553 F. App'x 123, 129 (3d Cir. 2014).
A consideration of the relevant factors in this case clearly shows that the trial court took
the correct course of action by dismissing Petitioner's indictment without prejudice. Turning
first to the seriousness of the offense, Petitioner was charged with a conspiracy to distribute large
amounts of heroin, a crime which carried with it a hefty potential sentence. Indeed, Petitioner
himself admits that his was a serious offense. Turning to the facts and circumstances of
Petitioner's case, it is clear that the delay in this case mostly arose out of Petitioner's many pretrial motions firing of his original attorneys and the continuances requested by Petitioner and
his attorneys. Those periods of time which were not excluded were, as noted by the trial court,
brief gaps between the various motions and continuances and thus were not the result of any
evident bad faith or dilatory practice on the part of the Government. Because there is no
evidence of a pattern of continuance neglect, antipathy, or bad faith on the part of the
Government, and much of the delay in this case arose out of Petitioner's actions, this factor
would also weigh in favor of a dismissal without prejudice. See Taylor, 487 U.S. at 339-41; see
also United States v. Berberena, No. 02-0587, 2008 WL 4083198, at *3 (E.D. Pa. Aug. 28,
2008).
Turning to the last two factors, it is clear that dismissal without prejudice was the correct
sanction in this case. Petitioner attempts to allege that he was prejudiced by the delays in his
case, and the Government benefited in so much as they were able to conduct further investigation
22
and better prepare Petitioner's case. Petitioner, however, presents no real evidence in support of
his claim that he was prejudiced by the delay. Indeed, the delay here enabled Petitioner to raise
several of his motions and to change his lawyer on multiple occasions, while simultaneously
,,nnng therisk of damaging the Government's ability toprosecute petitioner in so much as time
<
wakens
memories and can cause evidence to become stale. There is little, if any, evidence that
,
C,
the Government received any real benefit from the delays Petitioner caused, and the trial court,
just before Petitioner's trial, specifically noted that many of the delays Petitioner requested were
granted in the face of the Government's preparedness to proceed to trial. (See Docket No. 08757 at ECF No. 67 at 19-23). Thus, there is no real evidence of prejudice to Petitioner, which
cuts in favor of a dismissal without prejudice. Based on the lack of prejudice, the seriousness of
the offense, and the lack of evidence of bad faith or dilatory motive on the part of the
Government, it clearly appears that the impact of reprosecution would not have a negative effect
/
on the administration of justice or of the Speedy Trial Act as a dismissal without prejudice
addressed the technical violation fairly. Although a dismissal without prejudice is a less harsh
sanction than one with prejudice, it is not "toothless." Taylor, 487 U.S. at 342. It is clear from
the facts here that a dismissal without prejudice was more than sufficient to address the relatively
minor speedy trial act violation in this case, and there is no support in the record for Petitioner's
proposition that a dismissal with prejudice was necessary. Thus, Petitioner is not entitled to
relief based on his speedy trial claim.
23
4. Petitioner's Miranda Claim8
Petitioner asserts that the trial court erred when it failed to suppress his alleged statement
to the police, and that it erred in not holding anevidentiary hearing on his motions to suppress
his statements. Under Miranda, any statement made by a criminal defendant during custodial
interrogation is inadmissible at,trial unless the defendant was provided Miranda warnings and
"in fact knowingly and voluntarily waived [his Miranda] rights when making the statement."
Berghuis v. Thonipkins, 560 U.S. 370, 382-83 (2010). "The waiver inquiry has two distinct
dimensions: waiver must be voluntary in the sense that it was the product of a free and deliberate
choice rather than intimidation, coercion, or deception, and made with a full awareness of both
the nature of the right being abandoned and the consequences of the decision to abandon it." Id.
(internal quotations omitted). Waiver need not be made by express or formal statements, but
may be made by implication so long as the facts establish that the defendant was informed of his
rights to counsel and remain silent, understood those rights, and voluntarily made a statement
having that understanding. Id. at 383.
In this case, it is clear that Petitioner was in custody at the time he made the statements he
now challenges, and it is likewise clear.that he was under interrogation both in his home and at
8 Petitioner asserts that his rights were violated in so much as his statements were allegedly taken
without Miranda warnings and after he had asked for an attorney during a pre-charge custodial
interrogation. Petitioner also attempts to assert that this amounts to a violation of his rights
under Massiah v. United States, 377 U.S. 201 (1964) simply because he allegedly asked for a,
lawyer during his interrogation. Petitioner is incorrect. A violation of Massiah only occurs
where a Defendant's Sixth, as opposed to Fifth, Amendment right to counsel has attached
through the filing of a formal charge, preliminary hearing, indictment, information, or
arraignment. See, e.g., United States v. Bergrin, No. 09-369, 2011 WL 4368970, at *2.3 (D.N.J.
Sep. 19, 2011). Here, the alleged violations took place during a custodial interrogation prior to
the filing of a charge or the like. As such, Petitioner's Sixth Amendment right to counsel had not
yet attached at the time of his interrogation, and no violation of Petitioner's Massiah rights could
have occurred.
24
the DEA offices when he was being questioned by numerouS DEA agents. As it is clear that
Petitioner was the subject of custodial interrogation, the Miranda rulesapply, and his statements
to the DEA would only be admissible if he was provided Miranda warnings, and made a
knowing and voluntary waiver of his Miranda rights. Here, all of the evidence in the record
itself (as opposed to in Petitioner's certification) clearly indicates that Petitioner was provided
with Miranda warnings and chose to give a statement regardless. Indeed, Agent Post clearly
testified that Petitioner was arrested, informed of his Miranda rights, and asked if he would like
to make a statement. Agent Post likewise testified that Petitioner at no time mentioned that he
was in pain, needed a doctor, was under the influence, or gave any other impression than that he
was lucid and cooperative, save for the fact that he did not wish to help the Government set up
his heroin supplier. Agent Hilton's testimony that Petitioner continued to be cooperative and
answer questions after being taken back to the DEA offices likewise supports the conclusion that
Petitioner knowingly and voluntarily waived his rights, and that the questioning on the day of
Petitioner's arrest was calm and at least relatively amicable. That the statement Petitioner gave
to the DEA aligns with the facts as testified to by other witnesses, including the Antigua brothers
and Craig Ford, further supports the conclusion that Petitioner did, indeed, give an inculpatory
statement to the DEA following his arrest. Thus, all of the evidence provided at trial supports
the conclusion that Petitioner knowingly and voluntarily waived his rights and gave the
statement testified to by Agent Post following his arrest.
In the affidavit attached to his § 2255 motion, however, Petitioner presents an entirely
different story. (Document 1 attached to ECF No. 1 at 4-7). Petitioner alleges that it was Agent
Greimel, and not Agent Post, who interviewed Petitioner, despite the fact that Greimel testified
at trial that he was not present during the arrest or questioning of Petitioner. Petitioner asserts
25
that he told the agents he was in pain and on the way to the doctor, but was instead arrested and
immediately placed in handcuffs, contrary to testimony by Agent Postthat Petitioner was not
handcuffed until he was taken to the DEA office in Newark. Petitioner asserts that he wasthereafter threatened with the prosecution of his wife if he did not cooperate. Petitioner asserts
that he refused to cooperate with the DEA, and was never provided with Miranda warnings.
Petitioner further asserts that when he refused to cooperate, Agent Greimel insisted that
Petitioner would either give a statement, or one would be forged to incriminate Petitioner.
Petitioner alleges that he continued to refuse, and the agents therefore forged his statement and
arrested his wife. Petitioner further asserts that, to the extent that he did answer questions asked
by an Agent Thomas, the agents recorded false answers which in no way reflected the statements
that Petitioner gave. Petitioner further asserts that he requested an attorney, but was denied one
by the DEA agents. Petitioner finally asserts that, during a lull in the questioning, he heard his
wife being questioned in another interrogation room, including insults hurled at Petitioner by the
questioning agent. Thus, Petitioner contends that he never received Miranda warnings, was in
constant pain from an injured hand being handcuffed, was the subject of attempted coercion by
Agent Greimel, and in any event never made the statement used against him at trial. (Id. at 4-8).
While Petitioner's version of events certainly strains credulity and is clearly contradicted
by much of the testimony in the record, including the testimony of Agents Post and Hilton
regarding the interrogation, the testimony of Agent Greimel about being absent on the day of the
arrest, and the testimony of the Antigua brothers and Craig Ford which would clearly corroborate
the statement given by Petitioner to the DEA, it is clear that, if Petitioner properly presented the
claims he now presents to the trial court, there was an apparent issue of fact regarding the
statement that would arguably have needed resolution.
26
The trial court record establishes that Petitioner tried to raise a version of the complaint
he now raises at least twice: once in a motion by his third attorney, John Kimball, filed prior to
the speedy trial dismissal, and once in a substantially similar pro se motion filed after that
dismissal, both of which the trial court denied. In both instances, the trial court determined that
Petitioner's legal arguments without the submission of an affidavit setting forth his version of
events was insufficient to establish that an evidentiary hearing as to the voluntariness of
Petitioner's statement was warranted. Thus, the trial court denied the motions to suppress and
left it to the Government to provide adequate proof at trial to demonstrate, by a preponderance of
the evidence, that Petitioner waived his Miranda rights in giving his statement. (See April 7,
2008 Hearing Transcript at 6-7). As it is clear that the evidence produced at trial more than
established by a preponderance of the evidence that Petitioner knowingly and voluntarily waived
his Miranda rights, the ultimate question here is whether the trial court properly refused to hold
an evidentiary hearing, and thereby prevented Petitioner from litigating his version of events
without the attendant risks of testifying on his own behalf at trial.
Although Rule 12 of the Federal Rules of Criminal Procedure requires that a motion such
as Petitioner's motion to suppress be raised pretrial, it does not specify when a criminal
defendant is entitled to a pretrial evidentiary hearing. See United States v. Voight, 89 F. 3d 1050,
1067 (3d Cir. 1996); see also United States v. Foster, 287 F. Supp. 2d 527, 529 (D. Del. 2003).
As the Third Circuit has explained, to warrant a hearing, a criminal defendant's
moving papers must demonstrate a "colorable claim" for relief
United States v. Brink, 39 F. 3d 419, 424 (3d Cir. 1994) (remanding
for hearing where Brink alleged facts that, if true, "could violate a
defendant's rights under the Sixth Amendment")[; see] United
States v. Soberon, 929 F.2d 935, 941 (3d Cir.) (If district court had
"reasonable suspicion" of prosecutorial misconduct proper course
was to hold evidentiary hearing), cert. denied, 502 U.S. 818
[(1991)]. In order to be "colorable" a defendant's motion must
27
consist of more than mere bald-faced allegations of misconduct.
United States v. Sophie, 900 F.2d 1064, 1071 (7th Cir.) ("A district
court does not have to hold evidentiary hearing on a motion just
because a party asks for one."), cert. denied, 498 U.S. 843 [(1990)].
There must be issues of fact material to the resolution of the
defendant's constitutional claim. See United States v. Panitz, 907
F.2d 1267, 1273-74 (1st Cir. 1990) (refusal to hold evidentiary
hearing on outrageousness claim proper because material facts were
not in dispute); Sophie, 900 F.2d at 1071 (refusal to hold hearing
proper where defendant's own submissions refuted his claim).
Voight, 89 F.3d at 1067. The burden is on the defendant to establish the need for an evidentiary
hearing, and "[t]hat burden can be met only upon the presentation of definite, specific, detailed,
and nonconjectural facts." Foster, 287 F. Supp. 2d at 529 (quoting United States v. Rodriguez,
69 F.3d 136, 141 (7th Cir. 1995)); see also United States v. Blackman, 407 F. App'x 591, 594-95
(3d Cir. 2011) ("a motion to suppress must be detailed enough to present both a colorable
constitutional claim and disputed issues of material fact that will affect a district court's
resolution of the motion" to warrant a hearing).
In his motions to suppress his statement, Petitioner essentially alleged a simplified
version of the facts that he alleges in his certification: that he was not given Miranda warnings,
that he had an injured hand, that he was on painkillers for a back injury, that he requested
counsel several times, and that when he did speak with the DEA agents, they wrote down a
statement which did not mention his answers to their questions. (See 07-252 at ECF No. 36 at 810). Thus, Petitioner did allege in his motions what is essentially a colorable Miranda claim in
so much as he argued that he had not been provided Miranda warnings, and that he had been
both in pain and under the influence of pain killers while giving his alleged statement. Although
the trial court was correct that in both his initial motion and his later pro-se motion to suppress
his statements, Petitioner failed to provide an affidavit or certification in support of his factual
allegations, the substance of the allegations suggests that the best course of action would have
28
been to either provide counsel sufficient time to obtain and present a certification in support of
the motion, or to provide a hearing. Given the absence of a factual certification, it is not clear
that the trial court erred in refusing to hold an evidentiary hearing, but out of an abundance- of
caution, this Court will provide Petitioner with an evidentiary hearing in which he may argue that
his statement should have been suppressed on the basis of the information contained in
Petitioner's certification before this Court.9
5. Petitioner's claim that the Government committed improper vouching during
summation
Petitioner claims that the Government committed improper vouching in both its
summation and rebuttal summation by arguing that Craig Ford, Agent Post, and Agent Hilton
were credible witnesses. Vouching occurs where a prosecuting attorney assures a criminal jury
of the credibility of one of the Government's witnesses either through his own personal
knowledge or by reference to other information outside of the testimony before the jury. See
United States v. Walker, 155 F.3d 180, 184, 187 (3d Cir. 1998); see also United States v. Lore,
430 F.3d 190, 211-12 (3d Cir. 2005).
A prosecutor's vouching for the credibility of a government witness
raises two concerns: (1) such comments can convey the impression
that evidence not presented to the jury, but known to the prosecutor,
supports the charges against the defendant and can thus jeopardize
the defendant's right to be tried solely on the basis of the evidence
presented to the jury; and (2) the prosecutor's opinion carries with
it the imprimatur of the Government and may induce the jury to trust
In granting Petitioner an evidentiary hearing, this Court notes the following: first, in the event
the hearing shows that' Petitioner's statement to the DEA should not have been suppressed on the
basis of the testimony of Petitioner and the DEA agents, it is clear that Petitioner would have
suffered no harm as a result of the trial court's refusal to hold an evidentiary hearing; and second
that the hearing itself will be limited solely to the Miranda issue.
29
the Government's judgment rather than its own view of the
evidence.
Our case law indicates that to find vouching two criteria
must be met: (1) the prosecutor must assure the jury that the
testimony of a Government witness is credible; and (2) this
assurance is based on either the prosecutor's personal knowledge or
other information not contained in the record. Thus, it is not enough
for a defendant on appeal to assert that the prosecutor assured the
jury that a witness' testimony was credible. The defendant must be
able to identify as the basis for that comment an explicit or implicit
reference to either the personal knowledge of the prosecuting
attorney or information not contained in the record. It follows that
where a prosecutor argues that a witness is being truthful based on
the testimony given at trial, and does not assure the jury that the
credibility of the witness based on his own personal knowledge, the
prosecutor is engaging in proper argument and is not vouching.
Likewise, prosecutorial comment that points to a lack of evidence in
the record which supports a defendant's argument that the witness
is not credible is proper so long as the comment does not constitute
an assurance by the prosecutor that the witness is credible.
Walker, 155 F.3d at 184-87; see also Lore, 430 F.3d 211-12.
Here, Petitioner asserts that the Government committed improper vouching in two
passages quoted above wherein the Government argued that Craig Ford, Agent Post, and Agent
Hilton were all credible. Not only did the Government make these arguments in response to the
cross examinations of these witnesses, but also either in response to or in anticipation of
Petitioner's arguments suggesting either that these three witnesses were not credible or that they
had invented Petitioner's statement to the DEA out of whole cloth. Thus, it was appropriate for
the Government to comment on and argue that the testimony of these witnesses indicated that
they were credible. In making those arguments, the Government commented on matters that
were directly before the jury based on the testimony given at trial and pure logic, such as the
experience of the officers, the hesitance and need for a subpoena regarding Ford, and the
30
consistency of the testimony given with the other facts in evidence. The Government did not
appeal to its own personal knowledge or to information outside the record, and thus these
comments clearly do not constitute improper vouching. Walker, 155 F.3d at 184-87; see also
Lore, 430 F.3d 211-12. As such, Petitioner is not entitled to relief on this ground.
6. Petitioner's argument that the trial court erred in denying the admissibility of
Petitioner's polygraph expert
Petitioner next argues that the trial court erred by refusing to allow Petitioner to call a
polygraph expert in order to testify that Petitioner's performance on a polygraph indicated that
Petitioner was trustworthy. In Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 589, 588-89
(1993), the Supreme Court held that expert testimony may be admissible under Federal Rule of
Evidence 702 even where it is not generally accepted in the relevant scientific community so
long as the testimony qualifies as reliable in some other way. As the trial court noted in this
case, the Third Circuit has yet to take a firm stance on the issue of the admissibility of polygraph
testimony. See, e.g., United States v. Lee, 315 F.3d 206, 214, 214 n. 6 (3d Cir 2003) (noting that
the Third Circuit has not adopted a rule that polygraphs are per se inadmissible but noting that
while some district courts had admitted polygraph evidence, several circuit courts have ruled that
such evidence is inadmissible because it is not reliable). Notably, most, if not all, of the cases
wherein polygraphs were admitted in the district court preceded the Supreme Court's opinion in
United States v. Scheffer, in which the Supreme Court expressed its doubts as to the reliability of
polygraph evidence in ruling that the per se exclusion of polygraphs from military tribunals was
constitutionally proper. See 523 U.S. 303 (1998); see also United States v. Matusiewicz,
---,
---
F.3d
2015 WL 9305642, at *45 (D. Del. Dec. 21, 2015). Given the lack of a finn ruling by the
31
Third Circuit on the admissibility of polygraph evidence, see Lee, 315 F.3d at 214; the clear
trend among other circuit courts finding such evidence unreliable under Daubert, see United
States v. Mare, 668 F.3d 35 (1st Cir. 2012); United States v. Johnson, 446 F.3d 272 (2d Cir.
2006); United States v. Gardiner, 463 F.3d 445 (6th Cir. 2006); United States v. Prince-Oyibo,
320 F.3d 494 (4th Cir. 2003); United States v. Lea, 249 F.3d 632 (7th Cir. 2001); and the
Supreme Court's ruling in Scheffer, the trial court appears to have been entirely justified in ruling
that Petitioner's polygraph expert's testimony was not sufficiently reliable, and thus the trial
court properly excluded that evidence. As such, Petitioner's argument here is without merit.
7. Petitioner's Ineffective Assistance of Counsel Claims
Petitioner presents numerous claims in which he asserts that each of the attorneys who
represented him at various stages of his criminal proceedings was constitutionally ineffective.
The standard for evaluating 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
'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
32
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." M. 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 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. Hendi-icks, 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).
.
.
.
-
Judge v. United States,
---
F. Supp. 3d
---,
---,
2015 WL 4742380, at *34 (D.N.J. 2015).
a. Petitioner's claims against Paul Bergrin
Petitioner first asserts that his original counsel, Paul Bergrin, was ineffective in so much
as Bergrin failed to challenge the legality of the search of Petitioner's cell phone during his
questioning by the authorities. Petitioner specifically argues that Bergrin's failure to raise such
an argument in his motion to suppress shows that Bergrin failed to gain a grasp of the facts and
law as they applied to Petitioner's situation. The problem with Petitioner's argument, however,
33
is that Petitioner consented to the search of his phone. Even assuming that the state of the law at
the time of the search of the cell phone required a warrant for such a search even where incident
to a defendant's arrest, see Riley v. California,
--
U.S.
---,
---,
134 S. Ct. 2473 (2014) (settling
the issue that the search incident to arrest exception does not permit the search of a cell phone's
data without a warrant or other applicable exception to the warrant requirement), neither
probable cause nor a warrant are needed to conduct a search where the subject of the search
provides his consent. See United States v. Stabile, 633 F.3d 219, 230 (3d Cir. 2011). So long as
consent is voluntarily given and the person giving consent has the authority to so consent, such a
search is reasonable under the Fourth Amendment and does not warrant the exclusion of
evidence derived from the search. Id. Although it must be voluntary, consent "need not be
knowing or intelligent, such that it may be given unintentionally and without knowledge of the
right to refuse consent." United States v. Claus, 458 F. App'x 184, 188-89 (3d Cir. 2012); see
also United States v. Lockett, 406 F.3d 207, 211 (3d Cir. 2005) (consent "may be given
unintentionally and without knowledge of the right to refuse consent, and the police are not
required to warn an individual of the right to refuse consent").
In his brief in support of his § 2255 motion, Petitioner admits that after he was searched
incident to arrest, police found the cell phone in question on his person and asked him'to unlock
the phone using his private code. (Document 2 attached to ECF No. 1 at 14). Petitioner "didn't
think nothing of it because he didn't have anything to hide" and thus freely gave the officers the
code to unlock his celiphone and access the data contained in the phone, which: would crtin1y
include the phonenumbers and call history used by the. DEA agents inthis-matter. (Id,).
Petitioner's assertion that he had "nothing to hide" clearly indicates that he understood that
providing the unlock code to the agents amounted to implied, if not express, consent to a search
34
of the phone. Thus, by Petitioner's own admission he voluntarily gave the DEA complete access
to his cell phone by providing them with the unlock code, and consented to the search to which
he now objects. Petitioner's only argument in support of his assertion that his consent did not
provide the authority for the police to access his phone and the data contained therein is his
assertion that he "didn't know" that he could refuse to consent to the search of the phone and was
unaware of his rights to "cell phone privacy." (Id.). Petitioner's lack of knowledge as to his
rights does not retroactively void his voluntary consent to the search of the cell phone, thus the
search of the cell phone was permissible under the Fourth Amendment. Claus, 458 F. App'x at
188-89. By Petitioner's own admission, the search of the phone was lawful and the failure of
Paul Bergrin to move to suppress the search of the phone could not have been ineffective
assistance of counsel as any such motion would have been without merit. 10 United States v.
Aldea, 450 F. App'x 151, 152 (3d Cir. 2011) ("[c]ounsel cannot be ineffective for failing to raise
meritless claims"); United States v. Berry, 314 F. App'x 486, 489 (3d Cir. 2008); Wets v.
Vaughn, 228 F.3d 178, 203 (3d Cit. 2000); Parrish v. Fulcomer, 150 F.3d 326, 328-29 (3d Cir.
1998).
Petitioner next asserts that Bergrin was constitutionally ineffective because of a conflict
of interest that arose because Bergrin was himself under investigation during his representation
of Petitioner. Petitioner, however, was specifically questioned by Magistrate Judge Shwartz
regarding this potential conflict of interest, and Petitioner chose to continue with Bergrin as his
10
Petitioner raises a substantially similar claim in which he asserts that his later counsel, Mr.
Pedicini, was ineffective for failing to move to suppress the search of the cell phone. Petitioner's
assertions as to Mr. Pedicini fail for the same reason as those made against Mr. Bergrin: any
motion to suppress the phone evidence would have been without merit, and thus counsel was not
ineffective for failing to make such a motion. See Claus, 458 F. App'x at 188-89; Aldea, 450 F.
App'x at 152.
35
attorney. (See Docket No. 07-272 at ECF No. 9). As Petitioner chose to proceed with Bergrin
following the issue being raised by the magistrate judge, Petitioner cannot now assert a conflict
of interest which he chose to waive. Petitioner has not indicated how .he was prejudiced by
Bergrin' s actions, other than to assert that his cell phone evidence was not suppressed which has
been discussed above, or to assert that he suffered a speedy trial delay. As Petitioner's later
counsel both moved for and was granted a dismissal on speedy trial grounds, Petitioner suffered
no prejudice as a result of any delay. As Petitioner has not shown any other prejudice which may
have resulted from the alleged conflict, Petitioner's conflict claim must also fail as he has not
shown he was prejudiced. Palmer, 592 F.3d at 395.
Petitioner also asserts that Bergrin improperly pressured him to plead guilty. Petitioner,
however, did not choose bow to that pressure, and has not alleged any prejudice as a result of the
alleged pressure. As Petitioner has failed to allege any prejudice resulting from improper
pressure to plead guilty, and as Petitioner resisted this "improper" pressure, Petitioner has failed
to show that he suffered ineffective assistance of counsel as a result. Id.
Petitioner's final allegation of ineffective assistance by Bergrin is his assertion that
Bergrin submitted several continuance requests which were not authorized by Petitioner,
resulting in violations to Petitioner's right to a speedy trial. Petitioner, however, does not specify
which of the many continuances sought and received in this matter by his attorneys were sought
over his objection, if any, nor which continuances were otherwise not wanted by Petitioner.
Petitioner has likewise not shown how he was prejudiced by his lawyers' decisions to request
continuances other than his assertion that his speedy trial dismissal should have been with
prejudice. As this Court discussed above, Petitioner is incorrect that his indictment should have
36
been dismissed with prejudice, and this Court cannot conclude otherwise based solely on
Petitioner's vague assertion that counsel sought continuances he did not desire. Id.
b. Petitioner's claims against Zilka Saunders
Petitioner also asserts that Zilka Saunders, who represented Petitioner on behalf of
Bergrin's office, was constitutionally ineffective for failing to obtain discovery, failing to file
suppression motions, and for failing to object to the "prosecutorial misconduct" of the
Government. As to Petitioner's assertion that Ms. Saunders failed to file a suppression motion,
that claim must fail not only because both Petitioner and his later counsel, James Kimball, did
file suppression motions and thus Petitioner was not prejudiced in so much as he was able to
present his suppression claims after Ms. Saunders's representation, but also because Paul Bergrin
filed a suppression motion prior to his office, and in turn Ms. Saunders, being fired by Petitioner.
(See Docket No. 07-272 at No. 20). Petitioner has again failed to show how he was prejudiced
by Ms. Saunders's alleged failure to file a suppression motion prior to appointment of Mr.
Kimball, and Petitioner's claim in that regard must fail. Palmer, 592 F.3d at 395.
To the extent that Petitioner alleges that Ms. Saunders failed to seek discovery, Petitioner.
provides no facts as to what discovery, if any, Ms. Saunders failed to acquire, nor how this
failure actually prejudiced Petitioner's defense at trial. Indeed, not only does the record indicate
that Petitioner received all of the discovery well in advance of trial, (see Docket No. 08-757 at
ECF No. 67 at 1546, 29-30, 34-35), but the Third Circuit on direct appeal determined that there
were no discovery violations in this matter and defense counsel was ultimately "not deprived of
discovery." See Telfair, 507 F. App'x at 177. As Petitioner has not alleged what discovery Ms.
Saunders failed to acquire, and the record clearly demonstrates that all of the discovery was
37
provided to Petitioner and his defense counsel well in advance of trial, Petitioner has failed to
show prejudice and this claim, too, must fail. Id.
Petitioner's final argument regarding Ms. Saunders is that she failed to object to
"prosecutorial misconduct" by the Government. This argument is connected to Petitioner's
stand-alone argument that the Governnient violated Petitioner's due process rights by
"threatening" to prosecute his wife, Catrina Gatling, related to her lying to the Government
regarding Petitioner's whereabouts. Petitioner essentially asserts that the Government
committed prosecutorial misconduct in so much as they pressured him to plead guilty by stating
that, if he did not do so, they would prosecute his paramour for her part in aiding Petitioner
evade arrest. It is not prosecutorial misconduct, however, for the Government to use the
prosecution of a third party as a bargaining chip in plea negotiations so far as the Government
observed a "high standard of good faith based upon probable cause to believe that the third party
had committed a crime." United States v. Mott, No. , 1998 WL 195712, at *3 (E.D. Pa. Apr.
1998) (quoting United States v. Whalen, 976 F.2d 1346, 1348 (10th Cir. 1992)); see also
Bordenkircher v. Hayes, 434 U.S. 357, 364-65 (1978); United States v. Hodge, 412 F.3d 479,
489-92 (3d Cir. 2005) (permitting negotiation of plea deals where prosecutor officers leniency to
a third party in exchange for a guilty plea by criminal defendant); Mann v. Kemp, 760 F.2d
1244, 1248 (11th Cir. 1985). Here, Petitioner cannot show that, even if his allegations that the
Government told him they would prosecute Ms. Gatling if he failed to plead guilty are true, the
Government failed to act with good faith based upon probable cause to believe Ms. Gatling had
committed a crime. Not only did the Government have probable cause to believe Ms. Gatling
had committed a crime, but the Government did, indeed, eventually charge and convict Ms.
Gatling of making false statements to the DEA in relation to the DEA 's attempts to locate
38
Petitioner. (See United States v. Gatling, Docket No. 10-195 at ECF No. 41). As the
Government acted in good faith to the extent that they told Petitioner that Ms. Gatling could and
would be charged, and that her career as a prison/jail guard would suffer as a result, Petitioner's
claim of prosecutorial misconduct must fail. Because Petitioner's underlying claim of
misconduct fails, any motion by Ms. Saunders challenging that conduct would fail, and Ms.
Saunders was not ineffective for failing to make such a motion. See A idea, 450 F. App'x at 152;
Berry, 314 F. App'x at 489; Wets, 228 F.3d at 203; Parrish, 150 F.3d at 328-29.
c. Petitioner's claims against James Kimball
Petitioner presents numerous claims asserting that his next attorney, James Kimball, was
ineffective. Petitioner first asserts that, like Ms. Saunders, Kimball did not object to the
Government telling Petitioner during meetings that Petitioner would face a lengthy sentence at
trial and that if Petitioner did not plead guilty, the Government would pursue charges against Ms.
Gatling. For the reasons discussed above in regard to Ms. Saunders, the argument pertaining to
potential charges against Ms. Gatling fails to demonstrate prosecutorial misconduct, and any
objection to such statements by Kimball would have been meritless. Likewise, any claim that
the Government was making improper statements by stating that Petitioner faced significant jail
time would be equally meritless. Any such statements by the Government would have been
absolutely true, and such statements regarding potential jail time are at the heart of any plea
negotiation. Any objection to those statements by Kimball would have been baseless, and thus
Kimball was not ineffective for failing to raise objections to those statements. A idea, 450 F.
App'x at 152. Petitioner also asserts that Kimball was ineffective for failing to object to the
Government transporting Petitioner to a meeting without Kimball's knowledge. Assuming
39
arguendo that such a meeting took place without Kimball's knowledge, Petitioner has failed to
show that counsel's alleged failure to bring the occurrence to the attention to the trial court
prejudiced his defense. As Petitioner has failed to show how he was prejudiced by counsel's
failure to object to the alleged meeting, which appears to have terminated as soon as Petitioner,
asked about the presence of counsel, Petitioner has not shown that he suffered ineffective
assistance of counsel. Palmer, 592 F.3d at 395.
Petitioner next asserts that Kimball was ineffective because Kimball's motion to suppress
the evidence seized at 185 Parker Street was "unprofessional" and lacked an affidavit from
Petitioner in support of the motion. Petitioner's assertion must fail, however. Petitioner asserts
that the typographical errors and lack of an affidavit prejudiced his motion because, had counsel
included them, Petitioner believes the trial court would have found suppression of the evidence
"more appealing." Putting aside the fact that "more appealing" hardly amounts to a likelihood of
a better outcome, Petitioner's assertion is incorrect. The Court of Appeals examined Petitioner's
suppression arguments in detail and determined that the search of the Parker Street home was
entirely proper given the consent of the women then present in the home and the plain view
doctrine. See Telfair, 507 F. App'x at 171-75. As the Third Circuit held that the trial court acted
properly in denying the suppression motions, and determined that the searches and seizures at
issue were perfectly lawful, it is clear that correction of the errors Petitioner alleges counsel
made would not have affected the outcome of the suppression motion. As it is clear that it is not
at all likely that the outcome of the suppression motion would have changed absent counsel's
alleged errors, Petitioner has again failed to show that he was prejudiced, and this claim of
ineffective assistance must fail. Shedrick, 493 F.3d at 299; Cross, 308 F.3d at 315.
40
Petitioner also asserts that Mr. Kimball was ineffective in failing to file a proper motion
to suppress his statements pursuant to Miranda. As this Court noted in discussing Petitioner's
Miranda claim, however, Mr. Kimball did, in fact, move to suppress that statement, and in his
motion argued many of the bases for suppression Petitioner now presents. Although Mr.
Kimball did not file an affidavit or certification alongside his motion to suppress, which resulted
in the trial court refusing to grant an evidentiary hearing, this Court is now granting Petitioner a
hearing centered on that very issue based on Mr. Kimball's motion. Thus, it is clear that Kimball
did, indeed, file a motion to suppress the statement which set forth sufficient information in this
Court's view to require a hearing, and counsel was therefore not deficient as a result.
Petitioner next asserts that Mr. Kimball was ineffective in so much as he did not object to
the second superseding indictment. Petitioner first asserts that this was ineffective because the
second superseding indictment should have been dismissed because it was substantially similar
to the indictment dismissed on speedy trial grounds. The inherent flaw in this argument is that
the speedy trial dismissal was without prejudice. Because that dismissal was without prejudice,
it presented no bar to the raising of similar or even identical charges by way of a new indictment
so long as a grand jury did so indict Petitioner and the statute of limitations had not passed.. As
the grand jury did so indict Petitioner and the statute of limitations had not run, that similar
charges were previously dismissed without prejudice would in no way support a dismissal of the
second superseding indictment. As such, any objection by Kimball on that ground would have
been meritless, and the failure to make such an objection cannot be ineffective assistance of
counsel. Aldea, 450 F. App'x at 152.
Petitioner's second assertion regarding the indictment is that counsel failed to object to
the second superseding indictment on the grounds that there was no support in the criminal
41
complaints for either the amount of heroin charged or for a conspiracy charge. The intrinsic flaw
in this argument is- that "there is no requirement that an indictment must parrot the charge
contained in a previoUs complaint; indeed, as a grand jury Investigates the mater, it may choose
to modify, drop or add charges as it sees fit. Petitioner is simply incorrect in assuming that his
Indictment must be identical to the Complaint." Munez v. United States, No. 09-3860, 2010 WL
2925917, at *3 (D.N.J. July 21, 2010). Both the conspiracy charge and the greater amount of
drugs were submitted to the grand jury who based on the presentment of the Government chose
to indict Petitioner with the charges in the second superseding indictment. That the charges
indicted were different from those in the criminal complaints, or even different from those in the
original indictment, is essentially immaterial. As the Third Circuit has already upheld the
sufficiency of the second superseding indictment, see Telfair, 507 F. App'x at 176, and
Petitioner's argument regarding the differences between the complaint and its attached affidavit
and the eventual indictment is without merit, Petitioner has presented no meritorious ground on
which counsel could have stood in challenging the second superseding indictment. As the
objection Petitioner wishes counsel had raised would have been without merit, the failure to raise
that challenge is not ineffective assistance of counsel. Aldea, 450 F. App'x at 152.
Petitioner's final argument as to Mr. Kimball is that, like Paul Bergrin, Kimball requested
continuances without Petitioner's approval. Oddly, Petitioner also asserts that Kimball did not
request continuances that Petitioner did wish to seek. As to Petitioner's first argument, to the
extent these continuances occurred before the speedy trial dismissal, any prejudice resulting from
those continuances Kimball requested would have been undone by that dismissal. To the extent
that they occurred after the filing of the second superseding indictment, both Petitioner's own
assertion that Kimball should have requested other continuances and the trial court's observation
42
p
that Petitioner had repeatedly sought to delay trial both indicate that Petitioner suffered no
prejudice from these alleged errors. In any event, as Peti(ioner has failed to show howhe was
prejudiced by Kimball's requesting of continuances or refusals to do so, Petitioner's allegations
of ineffective assistance of counsel must fail. Shedrick, 493 F.3d at 299; Cross, 308 F.3d at 315
d. Petitioner's claims against Michael Pedicini
Petitioner first asserts that his trial counsel, Michael Pedicini, was ineffective because he
allegedly failed to investigate the scene of the Parker Street home. Petitioner asserts that had
Pedicini so investigated, he would have discovered that the "allegations of law enforcement are
false because there were not bullet holes in the backdoor of the house." (Document 2 at ECF No.
1 at 43). Both Pedicini and his investigator, Stephen Novosedlik, have submitted certifications,
however, that indicate that Petitioner's factual assertion is incorrect. Both counsel and the
investigator state that Novosedlik was dispatched to the area and not only examined the crime
scene, but also interviewed people in the neighborhood in the hope of finding witnesses who
could support Petitioner's assertions, but Novosedlik ultimately found nothing to support
Petitioner's assertions. (Documents 1-2 attached to ECF No. 20). Indeed, the physical evidence
submitted at trial, including pictures of the bullet holes in the Parker Street house show that
counsel and the investigator are correct and that Petitioner's factual assertions are incorrect. As
Petitioner's assertion is based both on the false assertion that counsel did not investigate the
Parker Street location and the false assertion that law enforcement created the crime scene from
whole cloth, Petitioner has failed to show that counsel was ineffective for failing to discover
these alleged truths, and has certainly failed to show any prejudice. Petitioner's first claim of
ineffective assistance as to Mr. Pedicini therefore cannot be sustained.
43
Petitioner next asserts that counsel was ineffective when he failed to call three witnesses
at trial: Luis Peguero, Jenifer Filpo, and Catherine Sanchez. Where a petitioner challenges his
attorneys decision as to which witnesses to call, courts hearing habeas challenges "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 adefendant
'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).
Petitioner asserts that counsel should have called Peguero as a witness because Peguero
would have testified that Filpo and Sanchez lied about his being a supplier for Petitioner and
would have revealed their untrustworthiness, and thereby weaken the value of their statements to
the authorities. The problem with Petitioner's assertion about Peguero, however, is that counsel
did, in fact, subpoena Peguero. (Document 1 attached toECF No. 20 at 3). Peguero, however,
was then under criminal investigation and represented by counsel, who refused to permit Peguero
to be interviewed. (Id.). Thus, Peguero was not available to counsel for interview, let alone to
be called a witness. Given the fact that a Government agent, who was not subject to cross
examination on the basis of his criminal record, and who was not unavailable to defense counsel,
already provided testimony that Filpo and Sanchez had lied about Peguero, and had lost the
benefit of their cooperation agreements with the Government, any testimony regarding those
44
same issues from Peguero would have been repetitious even if counsel had been able to call
Peguero, whose credibility as a witness is less than clear. As the only information Peguero could
have provided that would have benefited Petitioner had already been provided by a reputable
witness at trial, and because counsel was barred from interviewing Peguero by Peguero's own
attorney and was therefore unable to gauge the value and risks associated with calling Peguero, it
is clear that not calling Peguero as a witness was the result of informed decision making on the
part of counsel and not an example of deficient performance. As such, Petitioner's assertion of
ineffective assistance for failure to call Peguero must fail.
Petitioner's assertion that counsel should have called Filpo and Sanchez fairs no better.
In his certification, Pedicini makes clear that he did not call Filpo and Sanchez because, while
Filpo and Sanchez would potentially have testified that they lied about Peguero being
Petitioner's drug supplier, they could have also provided detailed testimony regarding "the
contraband that belonged to [P]etitioner" which was in the Parker Street home. Counsel thus
believed that, given the fact that testimony regarding their lack of trustworthiness had already
been supplied by a reputable Government agent, the limited value of having them admit to their
lies would have been severely outweighed by the damage Filpo and Sanchez could have done by
testifying further regarding Petitioner's involvement in the drug conspiracy and regarding the
other contraband Petitioner kept in the Parker Street location. (Document 1 attached to ECF No.
20 at 3). As such, it is clear that counsel made an informed, reasonable, and strategic decision
not to call Filpo and Sanchez as witnesses, and therefore was not deficient in so deciding.
Graves, 613 F. App'x at 159.
Petitioner also asserts that counsel was ineffective in failing to call other, unnamed
witnesses who may or may not have existed who could have shed more light on the shooting at
MR
the Parker Street location. Petitioner, however, fails to detail who these alleged witnesses were
or what they would have said had they been called to testify at trial. The failure to identify these
witnesses and provide any information on what testimony they could have provided is fatal to
Petitioner's ineffective assistance of counsel claim. See, e.g., Tolentino v. United States, Civil
Action No. 13-4168, 2014 WL 3844807, at *3 (D.N.J. July 31, 2014) ("[a petitioner's] failure to
include a sworn statement regarding the nature of [a witness's] proposed testimony is. fatal to his
making aprimafacie showing of prejudice"); see also Duncan v. Morton, 256 F.3d 189, 201-02
(3d Cir. 2001). Petitioner provides no more than hypotheticals as to what witnesses may have
existed, and what testimony they could have provided, which is utterly insufficient to establish
Strickland prejudice. Id. As such, this claim, too, fails to establish a basis for relief.
Petitioner next claims that Pedicini was ineffective in so much as Petitioner alleges that
Pedicini failed to provide Petitioner with discovery and failed to go over the discovery in any
event. Both counsel's certification and an extensive colloquy conducted on the record prior to
trial, however, indicate that Petitioner was provided with all of the relevant discovery, some of it
years before trial, and that Pedicini did his best to explain the discovery to Petitioner, despite
Petitioner's difficulties including at least one violent outburst. (See Document 1 attached to ECF
No. 20 at 7-8; Docket No. 08-757 at ECF No. 67 at 6-7, 14-41). Indeed, even after both the trial
court and counsel noted that Petitioner's was a straightforward case with little in the way of
documentary discovery, the trial court offered Petitioner an opportunity to discuss the discovery
with counsel prior to trial, and Petitioner refused stating that such a review would not be helpful.
(Docket No. 08-757 at ECF No. 67 at 40-41). It is therefore clear from the record that Petitioner
was provided with all of the relevant discovery, that counsel made efforts to discuss it with him,
and that Petitioner himself was responsible for many, if not all, of the difficulties that arose
EEO
between himself and counsel in reviewing the discovery. AsPetitioner was clearly provided
with the discovery in this case, and counsel made many attempts to discuss it with Petitioner,
Petitioner's assertion that counsel failed to do precisely that must fail as it is without any support
and is directly contradicted by the record. As such, this claim, too, fails to establish a basis for
relief.
Petitioner further asserts that Pedicini was ineffective because he failed to object to the
admission of the photo-array identification of Petitioner by Filpo and Sanchez on confrontation
clause grounds. Even assuming, arguendo, that the identification by Filpo and Sanchez of
Petitioner as the owner of the home and operator of the drug mill does run afoul of the
confrontation clause, Petitioner cannot show that he was prejudiced as a result of the admission
of that testimony. The identification by Filpo and Sanchez here identified Petitioner as the
resident of the Parker Street home and the operator of the drug mill in the basement of that home.
There was more than sufficient evidence adduced at trial to establish this same fact, however,
including the testimony of Petitioner's landlord that Petitioner was the resident of the home who
promised to pay rent through the date of the search; numerous documents attesting to Petitioner's
residence and continued use of the home including bills, identification documents, and other mail
located in the Parker Street home; the testimony of Craig Ford that Petitioner asked Ford to clean
out the Parker Street home and that Petitioner operated the drug mill found therein; and the
testimony of Petitioner's co-conspirators establishing that Petitioner operated as a part of their
drug operations and used the Parker Street location. Viewed in light of the staggering quantity of
evidence establishing both Petitioner's guilt and his ownership/operation of the Parker Street
drug mill, it is clear that, even had the identification made by Filpo and Sanchez been excluded
from evidence, the result of Petitioner's trial would have been no different. This is especially
47
true in light of the fact that the Filpo and Sanchez identification was caveated by the admission
by the Government's witnesses that both women had lied and lost the benefit of their cooperation
agreements. Ultimately, because Petitioner cannot show that the suppression of the identification
would have likely changed the outcome of his trial, Petitioner has failed to show that he was
prejudiced by counsel's failure to object to the identification. As such, Petitioner's ineffective
assistance claim fails. Strickland, 466 U.S. at 694; Shedrick, 493 F.3d at 299; Cross, 308 F.3d at
315.
Petitioner next argues that Pedicini was ineffective for failing to object to the admission
-
of pages from the ledger of Petitioner's co-conspirators because these documents amount to
Brady material which shbuld have been provided to the defense prior to trial. A violation of the
rule established in Brady v. Maryland, 373 U.S. 83, 87 (1963), occurs where a prosecutor
suppresses evidence that is favorable to a criminal defendant which is material to the guilt or
punishment of the criminal defendant. See United States v. Risha, 445 F.3d 298, 303 (3d Cir.
2006). The ledgers at issue here, however, were not in any way favorable to Petitioner, indeed,
they clearly supported the testimony of Petitioner's co-conspirators that Petitioner was a part of
their conspiracy to distribute heroin. Thus, even if Petitioner were correct that counsel was not
provided two of the three ledger pages. submitted by the Government, because they were
clearly not favorable to Petitioner, no Brady violation would have resulted from their suppression
by the Government in this case. Id. As any objection on Brady grounds would have been
without merit, counsel's failure to so move cannot form the basis of an ineffective assistance of
counsel claim. Aldea, 450 F. App'x at 152.
11 This is by no means clear from the trial transcripts. The record appears to establish only that
counsel did not have two of the pages in his trial binder, not that counsel had never been
provided with the document. (See Docket No. 08-757 at ECF No. 69 at 333).
48
Petitioner also alleges that Pedicini was ineffective fOr failing to object to the submission
into evidence of several recordings of phone calls made by an undercover officer to his coconspirator, Carlos A. Antigua. The underlying problem with this argument is that counsel did
object to the recordings both prior to trial and at trial, (See Docket No. 08-757 at ECF No. 67 at
52-54, Docket No. 8-757 at ECF No. 69 at 342-53), and, indeed, after one of the recordings was
played, the trial court also raised an issue as to the audibility, clarity, and fundamental fairness of
the admission of the tapes and the transcripts the Government had made of those tapes. (See
Docket No. 08-757 at ECF No. 69 at 342-53). Based on the objection and the Court's own
observation that the tapes were virtually inaudible and unduly prejudicial under the
circumstances, the trial court excluded the recorded phone calls, the transcripts of those calls,
and a video of Antigua meeting with a Government agent. (Id.). As counsel did object to this
evidence, and, indeed, the Court did ultimately suppress the evidence, Petitioner did not receive
ineffective assistance of counsel in relation to the recordings. 12
Petitioner next asserts that counsel was ineffective when he failed to adequately oppose
the introduction of certain hearsay statements arising out of a conversation between Carlos A.
Antigua and a federal agent concerning a heroin transaction which occurred after Petitioner had
been arrested. Petitioner asserts that because counsel did not adequately oppose this line of
questioning, the prosecution was able to inject unacceptable hearsay testimony into Petitioner's
trial, resulting in his conviction. Petitioner's factual assertions, however, are incorrect. It is clear
from the trial transcripts that Pedicini objected to the entire line of questioning concerning
12
Although one of the recordings was played in the presence of the jury, both counsel and the
trial judge note that the tapes were inaudible and it wasn't clear what was being said. The
playing of that tape, absent a transcript which the trial court excluded, was at worst harmless to
Petitioner as a result, and Petitioner certainly cannot show that he was prejudiced by the playing
of an inaudible tape.
49
Antigua's conversations with agents regarding heroin deals after Petitioner's arrest. (Docket No.
08-757 at ECF No; 69 at 355-56). Initially, the trial court agreed with Pedicini that the
information the Government sought to elicit was inappropriate and should be excluded both as
hearsay and as unfairly prejudicial. (Id. at 356-60). Although the Government vehemently
opposed this ruling, and the trial court ultimately stated that it would allow the Government to
continue the line of questioning at its own peril, specifically at risk of a reversal on appeal, the
trial judge's warning ultimately led the Government to abandon the line of questioning at issue.
(Id. at 360-66). The Government thereafter ceased asking questions about the conversation.
between Antigua and federal agents, and instead simply asked whether he had met with federal
agents acting under cover and ultimately been arrested. (Id. at 366-68). It is thus clear from the
record that Pedicim vigorously opposed the line of alleged hearsay questioning Petitioner calls
into question, and that this opposition ultimately convinced both the trial judge of the
impropriety of the line of questions and the Government of the riskiness of continuing with that
line. Thus, even if the trial court did not exclude the questioning at hand, as a result of Pedicini's
objection the Government abandoned the questioning Petitioner now decries, and it is clear that
counsel was not ineffective, nor was Petitioner prejudiced as a result. 13 Petitioner's claim of
ineffective assistance therefore fails.
Petitioner's final claim asserting that Pedicini was constitutionally ineffective asserts that
Pedicini failed to cross examine Agent Greimel regarding both whether Greimel was present at
Plaintiff's arrest and whether Petitioner was properly given Miranda warnings and to cross
13
Likewise, because the Government abandoned this line of questioning and ultimately decided
against eliciting the alleged hearsay testimony, it is clear that the Government did not commit
prosecutorial misconduct by attempting to inject inadmissible hearsay into Petitioner's trial as
Petitioner attempts to claim.
50
examine Carlos Antigua about who initiated the call between Antigua and the Government. As
to Greimel, Greimel clearly testified that he was not present during Petitioner's arrest and initial
questioning as he was ill on the day in question. There is nothing in the record to suggest
otherwise, and Petitioner presents only his own assertion to support his claim that Greimel was
present during his arrest and questioning. Both Greimel's, testimony, and the testimony of Agent
Post who arrested Petitioner and gave him his Miranda warnings clearly supports the fact that
Petitioner was given the warnings, and that it was Post, rather than Greimel, who questioned
Petitioner. Thus, the record suggests that had Greimel been confronted with Petitioener's claim
on cross-examination regarding where Greimel was during Petitioner's arrest and whether
Petitioner was given proper Miranda warnings, Greimel would have testified in accord with his
own prior testimony and that of Post: i.e. that Greimel was not present for the arrest, but that
Petitioner was given proper Miranda warnings by Post. Nothing in the record suggests Greimel
would have answered otherwise, and thus the record establishes that Petitioner would have
gained nothing from cross examination on that subject, and thus Petitioner was not prejudiced by
counsel's "failure" to cross-examine Greimel or the other agents on that subject.
Turning to Carlos Antigua, Petitioner suggests counsel should have asked him and the
relevant federal agents whether it was the agents or Antigua who initiated the phone call that
ultimately resulted in the arrest of Antigua. The testimony of Agent Hilton, however, clearly
established that it was Antigua who placed the call, and Hilton was asked to answer the call and
pretend to be a member of Petitioner's drug operation. As such, the record clearly suggests that
both Antigua and the agents, had they been cross examined on the subject, would have stated that
it was Antigua who placed the call. Petitioner's assertion otherwise, without an affidavit from
Antigua or the agents to suggest that they would have testified that the agents made the call, is
51
insufficient to show that anyone would have testified that federal agents placed that call. As the
record indicates that Petitioner's assertion is incorrect, Petitioner was not prejudiced by counsel's
failure to cross examine Antigua and the agents on this topic.14 As Petitioner has failed to show
that he was prejudiced by counsel's cross-examinations of these witnesses, this claim of
ineffective assistance also fails to establish a basis for relief.
e. Petitioner's claims against John Azzarello
Petitioner finally asserts that his sentencing and appellate counsel, John Azzarello was
constitutionally ineffective for failing to raise the arguments in his § 2255 motion on appeal, and
because he was held accountable at sentencing for higher drug quantities than his co-conspirators
and was sentenced on the basis of information that was presented in the PSR, but was not found
by the jury. Turning first to Petitioner's sentencing argument, it is clear that Petitioner's
ineffective assistance argument is without merit. Petitioner's assertion that counsel was
ineffective because counsel did not object to the fact that Petitioner was sentenced on the basis of
a higher quantity of heroin than his co-conspirators fails to account for the fact that his coconspirators, the Antigua brothers, both pled guilty pursuant to plea agreements, cooperated with
the Government, and received Government motions for a downward departure on that basis.
Thus, while Petitioner went to trial and was thus bound by the testimony at trial as to the quantity
of drugs involved, his co-conspirators made plea deals .with the Government stipulating to
different drug quantities and were sentenced based on those quantities as a result. The amount of
14
Even had the agents or Antigua testified otherwise, such testimony would have been of little, if
any value, as the remaining testimony of Antigua would still clearly indicate that Petitioner was
involved in the drug conspiracy at issue in his indictment, and thus what prejudice Petitioner
would have suffered even if he could show Antigua would have testified that the agents initiated
the call is, at best, unclear.
52
drugs contained in Petitioner's PSR, and on which he was ultimately sentenced, however, stems
directly from the testimony given at trial including Petitioner's statement to the DEA and the
testimony of the Antigua brothers. Thus, there was a clear basis for the quantities which were
ascribed to Petitioner, and thus any objection to those quantities on the grounds Petitioner raises
would have been without merit, and counsel's "failure" to object to those quantities would have
been without merit.
Likewise, to the extent that Petitioner alleges that these quantities were not found by the
jury, he misunderstands the law. While a jury must find beyond a reasonable doubt those facts
which alter the minimum and maximum statutory sentence applicable to an offense, a judge may
determine those facts which only affect the judge's imposition of a sentence within the statutory
sentencing range. See, e.g., Apprendi v. New Jersey, 530 U.S. 466 (2000); see also Alleyne v.
United States,
---
U.S.
---,
133 S. Ct. 2151(2013). Here, the jury found beyond a reasonable
doubt the one fact which determined the applicable statutory minimum and maximum sentence:
that Petitioner's conspiracy involved a quantity over one kilogram of heroin. Thus, a jury was
not required to fmd the exact amount, and it was not error for the trial judge to determine the
appropriate amount via the PSR, and an objection on that basis by counsel would have been
without merit.
In any event, Petitioner cannot show he was prejudiced by counsel's representation at
sentencing because counsel's actions at sentencing clearly led to Petitioner being sentenced to at
least ten years less prison time than recommended by the PSR's guidelmes determination Here,
Petitioner, due in part to his criminal history, was subject to a recommended guidelines range of
thirty years to life Due to counsel's arguments that Petitioner's history was overstated, the
sentencing judge was convinced that Petitioner should receive a downward variance. Thus,
4i
.
53
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r
4
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counsel, secured for Petitioner a sentence of twenty years, significantly below the relevant
guidelines range. As Petitioner received a sentence well below the guidelines range as, a result of
counsel's arg. ments to the sentencing court, and the objections Petitioner now raises are without
merit, it is clear Petitioner was not prejudiced by counsel's performance at sentencing. As such,
Petitioner's first claim against Azzarello must fail.
Petitioner's final claim is that Azzarello was ineffective when he did not raise .the issues
contained in Petitioner's § 2255 motion on direct appeal. As this Court has shown above, the
claims Petitioner raises in his motion are clearly without merit save for Petitioner's Miranda
claim, and whatever merit that claim now has arises mostly out of facts outside the record
provided in Petitioner's affidavit attached to his § 2255 motion. Given the fact that Petitioner's
claims lack merit on the basis of the trial record alone, and given the fact that the Third Circuit
determined on direct appeal not only that both Petitioner's pro se filings and counsel's Anders
brief failed to raise any meritorious claims on appeal, but also that there were no non-frivolous
bases for appeal in Petitioner's case, it is clear that Petitioner was not prejudiced by counsel's
actions on direct appeal. See Telfair, 507 F. App'x at 171-79. Thus, as with all of Petitioner's
ineffective assistance claims, this claim does not present a basis for relief.
8. Petitioner's Motion for Release on Bail Pending this Court's resolution of his § 2255
motion
Petitioner also moves this Court to grant him release on bail pending the resolution of his
motion to vacate his sentence. Bail pending the disposition of a habeas petition or motion to
vacate is available "only when the petitioner has raised substantial claims upon which he has a
high probability of success or exceptional circumstances exist which make a grant of bail
54
necessary to make the habeas remedy effective." See Pelulló v. United States, 487 F. App'x 1, 3
(3d Cir. 2012) (quoting Landano v. Rafferty, 970 F.2d 1230, 1239 (3dCir. 1992)). Exceedingly
few cases present the sort of extraordinary circumstances which would warrant grant of bail
1inding habeas review. Landano, 970 F.2d at 1239. The sorts of cases which do present such
circumstances include those where a petitioner was gravely ill and approaching total blindness,
and where a petitioner's sentence was so short that without bail pending review success in the
petitioner's habeas petition would have been of virtually no value to the petitioner. Id.
Here, Petitioner has neither presented a substantial claim with a high probability of
success, nor extraordinary circumstances. As to Petitioner's claims, only one is even of arguable
value
-
his Miranda claim. Even in that claim, however, Petitioner fights an uphill battle in so
much as his assertions run counter to the trial testimony of several federal agents and of the
corroborating testimony provided by a childhood friend and his co-conspirators. It is thus by no
means highly likely that Petitioner will succeed on even his Miranda claim. Likewise, in his
motion Petitioner presents no extraordinary circumstances which would merit a grant of bail
pending a hearing on his Miranda claim. Petitioner has thus failed to show any basis for this
Court to find that he should be released on bail pending the outcome of his motion to vacate his
sentence. As such, Petitioner's motion for release on bail pending the outcome of his current
motion must be denied. Pelullo, 487 F. App'x at 3; Landano, 970 F.2d at 1239.
IV. 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
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
55
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 to all of Petitioner's claims other
than his Miranda claim, Petitioner has failed to make a substantial showing of the denial of a
constitutional right, and jurists of reason could not disagree with this Court's determination tha
Petitioner's non-Miranda claims are without merit. As such, this Court will deny Petitioner a
certificate of appealability as to all of his non-Miranda claims.
V. CONCLUSION
For the reasons set forth above, Petitioner's motion for the appointment of counsel is
GRANTED, Petitioner's request for an evidentiary hearing is GRANTED solely as to
Petitioner's Miranda claim, Petitioner's motion to vacate is DENTED as to all of Petitioner's
remaining grounds for relief, Petitioner's motion for release on bail is DENIED, and Petitioner is
DENIED a certificate of appealability as to all of his non-Miranda claims. An appropriate order
follows.
February 17, 2016
s/Susan D. Wigenton
Hon. Susan D. Wigenton
United States District Judge
AppeNDZoK
•
Case 2:13-cv-06585-DMC Document 2 Filed 11/12 /13
Page 1 of 3 PageiD: 133
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
TOMMIE TELFAIR,
:
Civil No. 1376585 (I)MC)
:
NOTICE and ORDER
Petitioner,
V.
UNITED STATES OF AMERICA,
Respondents
CAVANAUGH, District Judge:
1, You have filed a motion to vacate a sentence, pursuant to 28 U.S.C. § 2255, imposed
by judgment of this Court entered on November 23, 3011, in United States v. Telfair, Crim. No.
08-0757 (DMC) judgment (D.N.J. Nov. 23, 2011), aff'd, 507 FApp'x 164 (3d Cir. 2012), cert.
denied. 2013 WL 2903555 (Oct. 7, 2013) (No. 12-10747).
2. Your motion to vacate under 28 U.S.C. § 2255 raises 12 grounds:
GROUND ONE: Evidence was obtained in violation of Mr. Telfair's Fourth
Amendment right against illegal search and seizure. U.S. Const. IV amend.
GROUND TWO: Miranda violation
-
Fifth and Sixth Amendment violations.
GROUND THREE: Law Enforcement Misconduct.
GROUND FOUR: Illegal search of cell phone.
GROUND FIVE: DUE PROCESS AND SIXTH AMENDMENT VIOLATIONS
UNDER THE SPEEDY TRIAL ACT —18 USC § 161(b).
•
GROUND SIX: TIME TO PREPARE FOR TRIAL.
GROUND SEVEN: DISTRICT COURT COMMITTED CLEAR ERROR
WHEN DENYING SUPPRESSION MOTION.
GROUND EIGHT: INEFFECIVE ASSISTANCE OF COUNSEL.
•
Case 2:13-cv-06585-DMC Document 2 Filed 11112/13 Page 2 of 3 PagelD: 134
GROUND NINE:
DISTRICT COURT COMMITTED ERROR WHEN
DENYING TELFAIR'S REQUEST TO ADMIT LIE DETECTOR RESULT
FROM EXPERT LIE DETECTOR SPECIALIST.
GROUND TEN: THE GOVERNMENT COMMITTED IMPROPER
VOUCHING.
GROUND ELEVEN: BRADY VIOLATIONS.
GROUND TWELVE: PROSECUTORIAL MISCONDUCT.
(Motion to Vacate, ECF No. I at 4, 5, 7, 8, 10, 12) (typeface in original).
Because federal law requires a District Court to dismiss a second or successive
§ 2255
motion, see 28 U.S.C. §§ 2255(h), 2244(a), a § 2255 movant must include on the face of his or her
first § 2255 motion all available federal claims. See United States v. Miller, 197 F.3d 644 (3d Cir.
19.99); 28 U.S.C. § 2255 Rule 2(b)(1) (requiring the motion to vacate to "specify all the grounds
for relief available to the moving party").
In addition, this first § 2255 motion must be handed to prison officials for mailing to
the District Court within one-year from the latest of: the date on which the judgment of conviction
becomes final, or the date on which the impediment to making a motion created by
unconstitutional governmental action is removed, if the movant was prevented from making a
motion by such governmental action, or the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been newly recognized and made retroactive by
the Supreme Court, or the date on which the facts supporting the claim or claims presented could
have been discovered through the exercise of due diligence,
28 U.S.C. § 2255(f).
Please note that, in accordance with United States v. Miller,
you have two
options at this time:
a.
Have your pending § 2255 Motion (raising only the 12 grounds listed above)
considered as your all-inclusive § 2255 motion, or
2
135'
3
Case 2:13-cv-06585-DMC Document 2 Red 11112113 Page 3 of PageD:
b,
Withdrayour pending § 2255 Motion (without ptejudice) in order to file your
all-inclusive § 2255 motion at a later time, rOvided the motion is filed within the
one-year statute of limitations in 28 U.S.C. § 2255(f) and is complete on its face;
6. If you do not notify the Clerk of the Court in writing within 30 days, then this Court
will consider your pending § 2255 Motion (raising these 12 grounds) as your all-inclusive § 2255
motion.
SO ORDERED.
/f/i// 3
3
I
ORDERED that Petitioner's Motion for Appointment of Counsel is GRANTED solely,
for the purpose of the hearing on Petitioner's Miranda claim; and it is further
ORDERED that Petitioner's Motion for Release on Bail is DENIED; and it is finally
ORDERED that the Clerk of the Court shall serve this Order and the accompanying
Opinion upon Respondent electronically, and upon Petitioner by regular U.S. Mail.
s/Susan B. WiRenton
Hon. Susan D. Wigenton,
United States District Judge
Additional material
from this filing is
available in the
Clerk's Office.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.