U.S. v. Aikens

• Decision Date: 25 February 2005
• Docket Number: Criminal Action No. 01-335.,Civil Action No. 04-3930.
• Citation: 358 F.Supp.2d 433
• Parties: UNITED STATES of America, v. Philip AIKENS.
• Court: U.S. District Court — Eastern District of Pennsylvania

Page 433

358 F.Supp.2d 433

UNITED STATES of America, v. Philip AIKENS.

Criminal Action No. 01-335.

Civil Action No. 04-3930.

United States District Court, E.D. Pennsylvania.

February 25, 2005.

Phillip Aikins, Bradford, PA, pro se.

Dina Keever, Catherine Votaw, U.S. Attorney's Office, Philadelphia, PA, for Plaintiff.

MEMORANDUM

DuBOIS, District Judge.

Presently before the Court is the Motion of petitioner, Philip Aikens, to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 ("Section 2255 Motion"). For the reasons set forth below, petitioner's Section 2255 Motion will be denied.

I. BACKGROUND

On June 14, 2001, a federal grand jury sitting in the Eastern District of Pennsylvania returned a four-count Indictment charging petitioner, Philip Aikens, with theft of interstate shipment and aiding and abetting, in violation of 18 U.S.C. §§ 659 and 2 (Count I); conspiracy to interfere with interstate commerce by robbery, in violation of 18 U.S.C. § 1951 (Count II); interference with interstate commerce by robbery and aiding and abetting, in violation of 18 U.C.S. §§ 1951 and 2 (Count III); and brandishing a firearm during and in relation to a crime of violence and aiding and abetting, in violation of 18 U.S.C. §§ 924(c) and 2 (Count IV). A Superceding Indictment was filed on November 8, 2001, which included an additional count of willful failure to appear before the court, in violation of 18 U.S.C. § 3146 (Count V).

The case was tried before a jury on February 26 and 27, 2002, and resulted in a verdict of guilty on all counts of the Superceding Indictment. The Court sentenced defendant to concurrent terms of 72 months incarceration on Counts I, II, III and V, and a consecutive 84-month term on Count IV; five years of supervised release; a $500 special assessment; and $115,000 in restitution. The Third Circuit affirmed the conviction on May 14, 2003.

On August 18, 2003, petitioner filed a motion under 28 U.S.C. § 2255 asking the Court to vacate his sentence on the following grounds: (1) trial counsel was constitutionally ineffective due to lack of time spent with petitioner preparing for trial; (2) trial counsel was constitutionally ineffective in failing to advise petitioner of his right to testify and refusing to allow petitioner to testify; and (3) the sentence imposed violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), in light of Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The Court will address these arguments in turn.

II. DISCUSSION

A. Ineffective Assistance of Counsel

To establish a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a convicted defendant must demonstrate that his counsel's performance (1) "fell below an objective standard of reasonableness," and (2) that counsel's deficient performance prejudiced the defendant. Id. at 688, 692, 104 S.Ct. 2052. "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. at 686, 104 S.Ct. 2052. The ultimate focus of the Strickland inquiry is on the "fundamental fairness of the proceeding whose result is being challenged." Id. at 696, 104 S.Ct. 2052.

In evaluating whether counsel's performance fell below an objective standard of reasonableness, the court must consider "whether counsel's assistance was reasonable considering all the circumstances." Id. at 688, 104 S.Ct. 2052. In its analysis, the court must be "highly deferential," and "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. at 689, 104 S.Ct. 2052 (internal quotations omitted). The court must not use the benefit of hindsight to second-guess strategic decisions made by counsel unless they were unreasonable. Id. at 690, 104 S.Ct. 2052.

With regard to the prejudice prong of Strickland, a defendant need not demonstrate that the outcome of the proceeding would have been different, but rather that there is a "reasonable probability that, 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." Marshall v. Hendricks, 307 F.3d 36, 85 (3d Cir.2002) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052).

1. Claim: Lack of Time Spent with Defendant Preparing for Trial

Petitioner claims that defense counsel was ineffective because counsel spent "probably a total of 3 hours" with him before trial and that, as a result, he went to trial without really understanding his options. (Def. Motion at 4); See Carmichael v. United States, 1998 WL 894592, at *1 (D.Conn. Dec.16, 1998) (02-815) (defense counsel spending a total of 2.9 hours with defendant was deficient as a matter of law under Strickland). The Court finds that the record belies petitioner's argument that his counsel spent only three hours with him before trial. As an example of what the record discloses, defense counsel was present in Court with petitioner at a suppression hearing held over the course of four days. However, the Court need not decide the question of whether the time counsel spent with petitioner before trial fell below an objective standard of reasonableness because petitioner fails to satisfy the second prong of Strickland.

As to the prejudice prong of Strickland, petitioner's motion does not demonstrate how he was prejudiced by counsel's alleged failure to spend more time with him. McAleese v. Mazurkiewicz, 1 F.3d 159 (3d Cir.1993) (burden rests with defendant to establish his claim of ineffectiveness of counsel); he says absolutely nothing on that issue. In short, there is no evidence that the outcome of the proceedings would have been different had counsel spent more time with petitioner. Accordingly, petitioner has failed to satisfy the prejudice prong of Strickland and his claim of ineffective assistance of counsel based on the argument that counsel did not spend sufficient time with him before trial is denied.

2. Claim: Failure to Fully Advise Petitioner of the Right to Testify and Refusing to Allow Petitioner to Testify

"It is well established that the right of a defendant to testify on his or her behalf at his or her own criminal trial is rooted in the Constitution." United States v. Pennycooke, 65 F.3d 9, 10 (3d Cir.1995); Rock v. Arkansas, 483 U.S. 44, 49-53, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987). "The right is personal and can be waived only by the defendant, not defense counsel." United States v. Leggett, 162 F.3d 237, 245 (3d Cir.1998), cert. denied, 528 U.S. 868, 120 S.Ct. 167, 145 L.Ed.2d 141 (1999) (citing Pennycooke, 65 F.3d at 10). Although it is the duty of defense counsel to inform defendant of his right to testify, the decision itself is ultimately that of the defendant. Pennycooke, 65 F.3d at 12; see also Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983) ("[T]he accused has the ultimate authority to make certain fundamental decisions regarding the case, [including] as to whether ... to testify in his or her own behalf.").

This Court has held that in order "[t]o prevail on trial counsel's alleged refusal to allow a client to testify, the petitioner must do more than just assert that his lawyer refused to allow him to testify." United States v. Smith, 235 F.Supp.2d 418, 424 (E.D.Pa.2002)(DuBois, J.). "In a subsequent collateral attack on the conviction the defendant must produce something more than a bare, unsubstantiated, thoroughly self-serving, and none too plausible statement that his lawyer (in violation of professional standards) forbade him to take the stand." Id. (quoting Underwood v. Clark, 939 F.2d 473, 476 (7th Cir.1991)).

Petitioner alleges that counsel failed to fully discuss with him whether he should testify at trial. (Def. Reply at 5). He further contends that counsel refused him the opportunity to testify despite his repeated requests to do so. (Id.). Had counsel informed him that it was ultimately his decision whether to testify, he argues, he would have taken the stand. (Id.).

Had defense counsel prevented petitioner from exercising his constitutional right to testify, his performance would have fallen below Strickland's objective standard of reasonableness. See Pennycooke, 65 F.3d at 10. Similarly, had counsel failed to inform petitioner of his right to testify and that the ultimate decision whether to testify belonged to him, counsel would have neglected his duty to ensure that the petitioner's right to testify was protected. See id. at 12. However, the Court need not conduct an evidentiary hearing to determine whether petitioner can establish those allegations because he has failed to demonstrate a reasonable probability that the result of the proceeding would have been different had he testified. See Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

To establish prejudice, petitioner must produce evidence that defense counsel's error undermined confidence in the outcome of the case, and he has failed to do so. Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Petitioner contends that if he had been permitted to testify, he would have "specifically rebutted the prejudicial aspects of the alleged co-conspirator's testimony" and "denied ... the government's allegations and the alleged co-conspirator's claims that he was part of the charged conspiracy." (Def. Motion at 7). He also argues that this testimony could have convinced the jury to believe his "side of the story" instead of the cooperating witnesses'. (Def. Reply at 6)

Petitioner's assertion that his testimony would have...