Reid v. United States

• Decision Date: 27 June 2012
• Docket Number: No. CRIM. 06–08–SLR, CIV. 09–638–SLR.,CRIM. 06–08–SLR, CIV. 09–638–SLR.
• Citation: Reid v. United States , 871 F.Supp.2d 324 (D. Del. 2012)
• Parties: Richard REID, Movant/Defendant, v. UNITED STATES of America, Respondent/Plaintiff.
• Court: U.S. District Court — District of Delaware

871 F.Supp.2d 324

Richard REID, Movant/Defendant,

v.UNITED STATES of America, Respondent/Plaintiff.

No. CRIM. 06–08–SLR, CIV. 09–638–SLR.

United States District Court, D. Delaware.

June 27, 2012.

Richard Reid. Pro se movant.

Lesley F. Wolf, Assistant United States Attorney, United States Department of Justice, Wilmington, Delaware. Counsel for respondent.

MEMORANDUM OPINION

SUE L. ROBINSON, District Judge.

I. INTRODUCTION

Richard R. Reid (“movant”) is a federal inmate currently confined at the Federal Correctional Institution in Loretto, Pennsylvania. Movant timely filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 (D.I. 74), and then filed an amended § 2255 motion (D.I. 80). Respondent filed an answer in opposition (D.I. 83), to which movant filed a response (D.I. 84). For the reasons discussed, the court will deny movant's amended § 2255 motion without holding an evidentiary hearing.

II. BACKGROUND

As set forth by the Court of Appeals for the Third Circuit in United States v. Reid, 297 Fed.Appx. 121, 122 (3d Cir.2008),

[movant's] conviction arises primarily out of the events of October 5, 2005. On that day, police officers were conducting surveillance of an apartment building in Claymont, Delaware. The officers observed [movant] exit the building and approach his vehicle. However, before he could enter his vehicle, he was detained. He indicated to the officers he was emerging from Apartment 3–E. A search of his person recovered pink and orange glassine baggies containing what was later determined to be crack cocaine, and a set of keys that were later determined to belong to Apartment 3–D in the building from which he exited.

After obtaining a warrant, a search of Apartment 3–D yielded three bundles of glassine baggies, matching the type found on his person; a .45 caliber cartridge; remnants of marijuana cigarettes; and a dinner plate containing 94.27 grams of crack cocaine. The dinner plate containing the crack cocaine had partial prints which matched movant. The search recovered men's clothing; mail from the school [movant's] son attended, sent to “Hakeem Shabazz,” at the address in question; a checkbook with the man “Hakeem Shabazz”; a loaded black revolver; glassine baggies; glassine baggies containing marijuana; two boxes of Smith and Wesson Winchester cartridges; and a box of fifty nine-millimeter cartridges. Also found were framed photographs of [movant] and a female as well as a black plastic bag containing powder cocaine and a scale. One bedroom appeared to belong to a teenage male. Trial testimony revealed [movant] used the name “Hakeem Shabazz” at an earlier point in his life after his mother had remarried. Testimony also revealed the apartment was leased to a Lawrence Jones who testified he knew [movant] as “Hakeem Shabazz.”

Id.

Following a two day bench trial, defense counsel verbally moved for judgment of acquittal under Rule 29 of the Federal Rules of Criminal Procedure, arguing that the government failed to establish movant's control and dominion over the drugs, guns, or packaging material that was in the apartment. (D.I. 55 at 164). The court denied the motion. Id.

In a decision dated May 30, 2007, 487 F.Supp.2d 463 (D.Del.2007), the court found movant guilty of all eleven counts of the superseding indictment: two counts of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and § 924(a)(2); three counts of being a felon in possession of ammunition, in violation of 18 U.S.C. § 922(g)(1) and § 924(a)(2); two counts of possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1); one count of possession with intent to distribute more than 50 grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(A); one count of possession with intent to distribute crack cocaine, in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(c); one count of possession of crack cocaine, in violation of 21 U.S.C. § 844; and one count of possession of marijuana, in violation of 21 U.S.C. § 844. On August 28, 2007, the government moved to dismiss count VI of the superseding indictment, which charged movant with possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1). (D.I. 59) This count related to the unloaded Colt pistol found in the master bedroom closet. The court granted the government's motion that same day. (D.I. 60)

The court sentenced movant to 300 months in prison on September 4, 2007. Movant appealed, arguing that: (1) no rational finder of fact could conclude that he possessed the firearms and ammunition in the apartment; (2) no rational trier of fact could conclude he possessed the drugs found in the apartment; and (3) the evidence was insufficient to show he possessed a firearm in furtherance of a drug trafficking crime. The Third Circuit Court of Appeals rejected these arguments and affirmed movant's conviction after determining that there was substantial evidence to support this court's finding of guilt. Reid, 297 Fed.Appx. at 123. More specifically, the Third Circuit found that a rational trier of fact could have concluded that movant lived in the apartment and that he had constructive possession of the firearms and drugs found therein. Id.

III. DISCUSSION

Movant timely filed his original motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255, asserting one ineffective assistance of counsel claim. Movant's amended § 2255 motion added nine more claims. Thus, when the motions are viewed together (hereinafter, “§ 2255 motion”), movant asserts a total of eight ineffective assistance of counsel claims, alleging that counsel erred by: (1) failing to argue under Rule 29 that the evidence at trial failed to show a nexus between the firearms and the drugs; (2) failing to file a motion to dismiss the indictment on the basis of statutory and constitutional speedy trial violations; (3) failing to negotiate an open guilty plea with the government; (4) failing to conduct a pre-trial investigation and call all available witnesses at trial; (5) failing to file objections to the PSR; (6) failing to argue the “crack/powder” disparity at trial; (7) failing to file notice of a Supreme Court ruling in connection with his appeal; and (8) failing to file a writ of certiorari in the Supreme Court. In claim nine, movant asserts that the government's interference with counsel and counsel's cumulative errors amounted to “structural error.”

Movant has properly raised his ineffective assistance of counsel arguments in the instant § 2255 motion rather than on direct appeal, ¹ and the court must review the arguments pursuant to the two-pronged standard enunciated by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under the first Strickland prong, movant must demonstrate that “counsel's representation fell below an objective standard of reasonableness,” with reasonableness being judged under professional norms prevailing at the time counsel rendered assistance. Strickland, 466 U.S. at 688, 104 S.Ct. 2052. Under the second Strickland prong, movant must demonstrate “there is a reasonable probability that, but for counsel's error the result would have been different.” Id. at 687–96, 104 S.Ct. 2052. Additionally, in order to sustain an ineffective assistance of counsel claim, movant must make concrete allegations of actual prejudice and substantiate them or risk summary dismissal. See Wells v. Petsock, 941 F.2d 253, 259–60 (3d Cir.1991); Dooley v. Petsock, 816 F.2d 885, 891–92 (3d Cir.1987). Although not insurmountable, the Strickland standard is highly demanding and leads to a “strong presumption that the representation was professionally reasonable.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. The court will address movant's ineffective assistance of trial counsel arguments in seriatim.

A. Claim One: Counsel's Failure To Argue Insufficient Evidence In The Rule 29 Motion

Movant contends that trial counsel provided ineffective assistance by failing to argue there was insufficient evidence to convict him of violating § 924(c)(1) because the government failed to prove a nexus between the loaded firearm and the drugs found in the apartment. For the following reasons, this argument is unavailing.

Section 924(c) makes it unlawful to, inter alia, possess a firearm in the furtherance of a drug trafficking crime. In order to prove that a defendant possessed a firearm in furtherance of a drug trafficking crime pursuant to § 924(c)(1), the government has to show “that possession of the firearm advanced or helped forward a drug trafficking crime.” United States v. Sparrow, 371 F.3d 851, 853 (3d Cir.2004). The mere presence of a firearm on the same premises as drugs is not enough to meet this burden. Id. Rather, the following nonexclusive factors must be considered when determining if the possession was “in furtherance of” the drug trafficking crime for § 924(c)(1) purposes:

[T]he type of drug activity that is being conducted, accessibility of the firearm, the type of the weapon, whether the weapon is stolen, the status of the possession (legitimate or illegal), whether the gun is loaded, proximity to drugs or drug profits, and the time and circumstances under which the gun is found.

Id.

In turn, evidence is sufficient to support a conviction when, “after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). This inquiry requires examining “the totality of the evidence, both direct and circumstantial, and [ ] credit[ing] all available inferences in favor of the government.” Sparrow, 371 F.3d at 852.

In this case, the evidence demonstrates a nexus between the loaded gun and drugs found in the apartment. The gun was possessed...