U.S. v. Franklin

Decision Date26 April 2002
Docket NumberCiv. No. 01-6530.,Criminal No. 99-238-01.
Citation213 F.Supp.2d 478
PartiesUNITED STATES of America, v. Darryl Lamont FRANKLIN.
CourtU.S. District Court — Eastern District of Pennsylvania

Glennis L. Clark, Allentown, PA, Mark S. Refowich, Easton, PA, for defendant.

Darryl Lamont Franklin, Lewisburg, PA, pro se.

Robert E. Goldman, U.S. Attorney's Office, Philadelphia, PA, for U.S.


VAN ANTWERPEN, District Judge.

I. Introduction

The Defendant in this case is seeking habeas corpus relief pursuant to 28 U.S.C § 2255. On September 2, 1999, Defendant Darryl Lamont Franklin was convicted by a jury of Conspiracy to Commit Hobbs Act Robbery, Interference with Commerce by Robbery in violation of 18 U.S.C. § 1951(a), Brandishing a Firearm During and in Relation to a Crime of Violence in violation of 18 U.S.C. § 924(c), and Possession of a Firearm by a Convicted Felon in violation of 18 U.S.C. § 922(g). We held a sentencing hearing on February 11, 2000, and on February 14, 2000 we sentenced Defendant to 205 months incarceration. Defendant subsequently appealed and his sentence and conviction were upheld by the Third Circuit Court of Appeals on November 15, 2000. United States v. Franklin, 248 F.3d 1131 (TABLE) (3d Cir. Nov.15, 2000).

While we will not repeat the entire factual background of this case which was set forth in detail in United States v. Franklin, 64 F.Supp.2d 435 (E.D.Pa.1999) and United States v. Franklin, 2000 WL 217527 (E.D.Pa., Feb.14, 2000), this case is remarkable for both the overwhelming evidence supporting Defendants guilt and for the ferocity and extreme violence with which Defendant committed his crimes. On April 14, 1999 Defendant and another man robbed at gunpoint Talisman's Jewelry Store in Reading, Berks County, Pennsylvania. When Defendant Franklin entered the store he struck Daniel Cafoncelli, the son of store-owner Louis Cafoncelli, in the head with a 9 mm hand gun. Defendant then handcuffed Daniel Cafoncelli behind his back and threw him down a flight of stairs into the basement. When Louis Cafoncelli, who was initially outside the store, entered, Defendant pointed the gun at his head and a scuffle ensued. Louis Cafoncelli managed to draw his own gun (which he was licensed to carry as a jewelry store owner) and shoot Defendant. However, in the scuffle, Defendant got hold of Louis Cafoncelli's gun and fled the store. Just as he was about to leave, Defendant turned and pointed the gun at Louis Cafoncelli in an attempt to shoot him, but his plans were foiled when Cafoncelli got hold of another gun and returned fire, causing Defendant to flee the store.

Cash, jewelry, diamond rings, a revolver and a rifle were all taken during the robbery. Several minutes after the robbery, Defendant was found lying on the floor of St. Joseph's Medical Center. Some discarded jewelry was found outside the hospital and turned over to hospital security, the police were summoned, and Defendant Franklin was subsequently arrested.

Although Defendant testified in his own defense at trial, the Government introduced a massive amount of evidence including numerous eyewitnesses, law enforcement officials, and DNA samples taken from Defendant's clothing (Defendant refused to submit to a DNA test despite a court order) which tied him to the scene of the robbery. The jury rejected Defendant's story and he was convicted on all counts.

Defendant filed a pro se Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody and a Memorandum in support thereof on December 17, 2001. By Order of January 10, 2002 we noted that Defendant's pro se motion did not use the current, standard form and ordered that the Clerk of Court furnish Defendant with the appropriate forms. On January 28, 2002, Defendant filed another motion on an incorrect form. By Order of January 31, 2002, we again ordered Defendant to file his motion in appropriate form. On March 11, 2002, Defendant finally filed his habeas corpus motion on the appropriate form as mandated by Local Civil Rule 9.3.

Defendant raises numerous issues through his numerous habeas corpus motions. Though not all of these claims are raised in the March 11, 2002 motion, we will, in the interests of justice, consider all of his claims. Defendant claims that: (1) the Court lacked jurisdiction to "try or sentence petitioner for conduct other than those prescribed by statute;" (2) the evidence was insufficient to support a finding of a nexus to interstate commerce; (3) his first attorney, Mark S. Refowich, Esq. rendered ineffective assistance of counsel in his pretrial representation; (4) trial counsel Glennis Clark, Esq. rendered ineffective assistance of counsel; and (5) his Sixth Amendment right to counsel was violated because trial counsel was burdened by a conflict of interest. Though Defendant raises numerous allegations of error, none of them have any merit. Consequently, his § 2255 motion must be denied.

II. Discussion

For the sake of simplicity, we will divide our discussion of Defendant's claims into those that are based on ineffective assistance of counsel and those that are not.

A. Ineffective Assistance of Counsel Claims
1. Standard

The right to assistance of counsel is guaranteed by the Sixth Amendment of the United States Constitution. This right has been deemed fundamental by the Supreme Court; it cannot be denied to a defendant absent intentional and actual waiver. Johnson v. Zerbst, 304 U.S. 458, 462, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). The Supreme Court has set out a two-prong test to establish a claim of ineffectiveness of counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A defendant must show both that: (1) his counsel's conduct was deficient and "fell outside the wide range of professionally competent assistance" and (2) the defendant was prejudiced as a result of that deficient conduct. Strickland, 466 U.S. at 687, 104 S.Ct. 2052; United States v. DeRewal, 10 F.3d 100, 104 (3d Cir.1993), cert. denied, 511 U.S. 1033, 114 S.Ct. 1544, 128 L.Ed.2d 196 (1994).

To satisfy the first prong, deficiency, a defendant must show that his lawyer's conduct fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688, 104 S.Ct. 2052. In evaluating such a claim, we "must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. 2052. We may not use the benefit of hindsight to second-guess tactical decisions made by an attorney unless they are unreasonable. See Id. at 690, 104 S.Ct. 2052; Diggs v. Owens, 833 F.2d 439, 444-445 (3d Cir. 1987), cert. denied, 485 U.S. 979, 108 S.Ct. 1277, 99 L.Ed.2d 488 (1988) ("An attorney is presumed to possess skill and knowledge in sufficient degree to preserve the reliability of the adversarial process and afford his client the benefit of a fair trial. Consequently, judicial scrutiny of an attorney's competence is highly deferential").

If the first prong is proven, a defendant must also prove the second prong, prejudice. To show prejudice, a defendant must show that there is a reasonable probability that there would have been a different outcome; that the deficient performance "deprived the defendant of a trial whose result is reliable." DeRewal, 10 F.3d at 104 citing Strickland, 466 U.S. at 690, 104 S.Ct. 2052. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. 2052. We must examine the trial with our focus not on the outcome, but on whether the error so affected the adversarial balance that the trial was rendered unfair and the verdict rendered suspect. Lockhart v. Fretwell, 506 U.S. 364, 369, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993).

2. Defendant's First Attorney

We initially appointed Mark S. Refowich, Esq. as CJA counsel to represent Defendant. On June 29, 1999, we received a pro se Motion for Change of Counsel and we held a hearing on this issue on July 9, 1999. Attorney Refowich is a seasoned criminal defense lawyer with more than 30 years of experience. As we have already noted in our Memorandum and Order of February 14, 2000, Mr. Refowich's performance appeared to be proper at all times. United States v. Franklin, 2000 WL 217527 at *5. However, based upon Defendant's unsupported allegation that Mr. Refowich had "shown both a deficiency in performance that has resulted in prejudice," we appointed new CJA counsel Glennis Clark, Esq. to represent Defendant.

Defendant's complaint at the time, which he reasserts now on habeas review, is that Mr. Refowich filed an in limine motion to preclude the Government from using Defendant's prior convictions for impeachment purposes pursuant to Fed.R.Evid. 609. In this motion, Mr. Refowich wrote:

5. The Defendant is planning to take the stand and offer testimony that at the time of the robbery he was walking on the street in front of the store and he saw a man with a black suit run from the store chased by an elderly man. That elderly man had a gun and fired at the fleeing man. The Defendant claims that he was hit by the bullets and that is all he remembers.

According to Defendant, including this paragraph in an in limine motion amounted to ineffective assistance of counsel, because the disclosure of Defendant's planned testimony was unnecessary, violated his Fifth Amendment right against self incrimination, and prejudiced Defendant by putting the Government on notice regarding his defense.1 We disagree.

Defendant has satisfied neither the deficiency, nor the prejudice prong of the Strickland test. In evaluating the reasonableness of counsel's performance, the American Bar Association Standards serve as a helpful guideline. Strickland, 466 U.S. at 688, 104 S.Ct. 2052; See also Government of the Virgin Islands v. Weatherwax ("Weatherwax I"), 20 F.3d 572, 579 (3d Cir.1994), rev'd on...

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