U.S. v. Martin

• Decision Date: 05 October 2006
• Docket Number: Criminal Action No. 00-710.
• Citation: 454 F.Supp.2d 278
• Parties: UNITED STATES v. Tyrone MARTIN.
• Court: U.S. District Court — Eastern District of Pennsylvania

454 F.Supp.2d 278

UNITED STATES v. Tyrone MARTIN.

Criminal Action No. 00-710.

United States District Court, E.D. Pennsylvania.

October 5, 2006.

COPYRIGHT MATERIAL OMITTED

Joseph G. Poluka, U.S. Attorneys, Phila, PA, for United States.

MEMORANDUM

EDUARDO C. ROBRENO, District Judge.

Tyrone Martin has filed a pro se petition for habeas relief pursuant to 28 U.S.C. § 2255 asking this Court to vacate, set aside, or correct his sentence. He presents three arguments in support of his petition: (1) the violation of his Fourth Amendment rights; (2) ineffective assistance of counsel; and (3) prosecutorial misconduct.

I. BACKGROUND

Following a jury trial in this Court, Tyrone Martin was convicted of possession of cocaine base with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and with carrying a firearm in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1). On November 13, 2001, Martin filed a motion for post-trial relief, claiming that the government violated the Third Circuit's ruling in United States v. Watson, decided after his trial. 260 F.3d 301 (3d Cir.2001). He also alleged that this Court erred in failing to suppress evidence seized in a car stop.¹ In a February 7, 2002 Memorandum and Order, the Court denied this motion. This Court sentenced Martin to a total of 144 months of imprisonment, five years supervised release, a $1,000 fine and a $200 special assessment. Martin subsequently appealed, and on April 16, 2003, the Third Circuit affirmed the judgment of conviction and the sentence.

II. ANALYSIS

Section 2255 allows a prisoner in custody to attack his sentence if it was imposed in violation of the Constitution or statute, if the court lacked jurisdiction to impose it, if it exceeds the maximum allowed by law, or if it is otherwise subject to collateral attack.² See 28 U.S.C. § 2255. The petitioner is entitled to an evidentiary hearing as to the merits of his claim unless it is clear from the record that the prisoner is not entitled to relief. See United States v. Nino, 878 F.2d 101, 103 (3d Cir.1989). The decision as to whether the files and records of the case conclusively show that the prisoner is entitled to no relief is within "the sound discretion of the district court." United States v. Williams, 615 F.2d 585, 591 (3d Cir.1980). In exercising that discretion, however, the court must accept the truth of the petitioner's factual allegations unless they are clearly frivolous on the basis of the existing record. Id.

A. Violation of the Fourth Amendment

Martin contends in his petition that the stop of his vehicle was without probable cause and thus violated his Fourth Amendment rights.³ Martin already contested this issue in a pre-trial suppression hearing, at his trial, and in a post-trial motion. The Third Circuit also addressed the stop of Martin's vehicle on his direct appeal. U.S. v. Martin, No. 02-1435, 69 Fed.Appx. 46, 2003 WL 1879218 (3d Cir. April 16, 2003).

On Martin's direct appeal, the Third Circuit determined that under the totality of the circumstances, there was probable cause to stop Martin's vehicle: (1) Martin was driving his vehicle late at night; (2) he circled the block three or four times; (3) the area of the block was one where there was on-going drug activity; (4) he was driving a rented vehicle with out-of-state tags; and (5) the two officers respectively had four and five years' experience as Philadelphia police officers. 69 Fed.Appx. at 48, 2003 WL 1879218 at *48.

In support of its decision, the Third Circuit explained that:

Here, the information known to the officers at the time of the investigatory stop is substantially similar to that which was known to the officers in United States v. Rickus, 737 F.2d 360 (3d Cir.1984). There, we held that an investigatory stop by experienced police officers was supported by reasonable suspicion where the officers first observed the defendants' vehicle driving through a closed business district at 3:30 a.m. at 15-20 miles per hour below the speed limit and then turn into a residential area that had recently been victimized by a spate of burglaries. 737 F.2d at 365. We think our decision in Rickus is dispositive.

Id.

A Section 2255 petition 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); see also See United States v. Lawton, No. 01-630, 2005 U.S. Dist. LEXIS 6123, at * 10 (E.D.Pa. Mar. 21, 2005) (same). Therefore, this Court need not address once again whether the stop of Martin's vehicle was supported by probably cause because it was already adjudicated on direct appeal, and Martin is precluded from relitigating it here.

B. Ineffective Assistance of Counsel.

Martin also argues that he received ineffective assistance of counsel because: (1) his trial counsel, Tariq Karim El-Shabazz, failed to inform Martin that he" had previously represented Johnny Culpepper, one of the government witnesses who testified at trial; (2) his trial counsel (both initially appointed Federal Defender David M. Kazlow and then retained counsel Mr. El-Shabazz) failed to inform him of a plea offer made by the government; (3) Mr. El-Shabazz failed to assist or communicate with Martin during the critical stages of the trial; (4) trial counsel failed to object when the prosecutor asked Martin if certain of the government's witnesses were "lying;" (Trial Tr. 182, June 20, 2001) and (5) counsel failed at trial and sentencing to contest the drug amount for sentencing guideline purposes.

The law is clear that a defendant has a Sixth Amendment right not just to counsel, but to "reasonably effective assistance" of counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To gain relief for a violation of this right, a defendant must show both unprofessional conduct and resulting prejudice. Id. More precisely, the claimant must show that: (1) his or her attorney's performance was, under all the circumstances, unreasonable under prevailing professional norms, see id. at 657-91, 104 S.Ct. 2052; and (2) there is a "reasonable probability that, but for counsel's unprofessional errors, the result would have been different," id. at 694, 104 S.Ct. 2052. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.

1. Conflict of Interest

Martin alleges that during cross-examination, counsel disclosed for the first time "that he represented Mr. Culpepper in the past." (Pet.5B). Martin claims that El-Shabazz's representation of Mr. Culpepper in the past "was fraught with the danger of dividing counsel's loyalties as to justify a present finding of a Sixth Amendment violation as a result of conflicting interests." (Pet.5B).

If there is a conflict of interest between counsel and the client, prejudice under the Strickland test is presumed. Gov't of the Virgin Islands v. Zepp, 748 F.2d 125, 134 (3d Cir.1984) (citing Cuyler v. Sullivan, 446 U.S. 335, 350, 348, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980)). Following that presumption, the petitioner need only show that the actual conflict "adversely affected counsel's performance" to prove ineffective assistance of counsel. See id. at 134. The Third Circuit has defined an actual conflict as follows: "if, during the course of representation, the defendant's interests diverge with respect to a material factual or legal issue or to a course of action." Id. at 136 (citing Sullivan v. Cuyler, 723 F.2d 1077 (3d Cir.1983)).

There appears to be no Third Circuit decision dealing directly with the potential conflict of interest created when counsel for a criminal defendant is required to cross-examine a government witness who is a former client of that attorney. In United States v. FMC Corp., however, the Honorable Judge Green faced a situation similar to the allegations presented here by Martin. 495 F.Supp. 172 (E.D.Pa. 1980). In that case, the government had filed a motion to disqualify the defense counsel based on an alleged conflict of interest because four witnesses for the government were defendant's employees and legal counsel's former clients. Id. at. 174. The Court noted that in cases involving an alleged conflict of interest based on the prior representation of a prosecution witness by defense counsel, the courts have generally examined the particular circumstances to determine if counsel's "undivided loyalties" lie with his current client. Id. at 178-79 (citing United States v. Jeffers, 520 F.2d 1256, 1264 (7th Cir.1975), writ of certiorari denied, 423 U.S. 1066, 96 S.Ct. 805, 46 L.Ed.2d 656 (1976)). In particular, courts have examined: (1) whether the lawyer's pecuniary interest in possible future business likely to cause him to be less vigorous in her cross-examination of the witness who is a former client; and (2) whether any confidential information received by the defense counsel from his former client who is now a government witness will be relevant to the cross-examination of that witness. Id. The government's motion to disqualify was denied because neither of these two conditions were shown to obtain. Id.; c.f. (United States v. Moscony, 697 F.Supp. 888, 893 (E.D.Pa.1988)) (motion to disqualify granted where witnesses testified that they revealed confidential information to defense counsel which could be used against them during cross-examination at trial).

This Court finds that petitioner is entitled to an evidentiary hearing on his claim for ineffectiveness of counsel, based on his allegations that Mr. El-Shabazz previously represented Mr. Culpepper. At the hearing, petitioner will have the opportunity to show whether Mr. El-Shabazz represented Mr. Culpepper in the past,⁴ and if he did, whether Mr. El-Shabazz had a continuing financial interest in his relationship with Mr. Culpepper and how, if at all, the past representation provided Mr. El-Shabazz with confidential information that affected...