U.S. v. Riddick

• Decision Date: 16 July 1998
• Docket Number: Civil No. 98-372.,Criminal No. 95-00073-02.
• Citation: 15 F.Supp.2d 673
• Parties: UNITED STATES of America v. Charles Pernell RIDDICK, JR.
• Court: U.S. District Court — Eastern District of Pennsylvania

15 F.Supp.2d 673

UNITED STATES of America v. Charles Pernell RIDDICK, JR.

Civil No. 98-372.

Criminal No. 95-00073-02.

United States District Court, E.D. Pennsylvania.

July 16, 1998.

OPINION AND ORDER

VAN ANTWERPEN, District Judge.

I. INTRODUCTION

On May 24, 1995 Petitioner was sentenced to life for his role in a conspiracy to smuggle drugs into the Lehigh County Prison, where he was then incarcerated. Specifically, a jury convicted Petitioner of Conspiracy to Distribute Cocaine and Marijuana, Possession and Distribution of Cocaine and Marijuana, and Distribution of Cocaine and Marijuana Within One Thousand Feet of a School Zone. Petitioner now wishes to collaterally attacks his conviction through a § 2255 motion.

Mr. Riddick raises numerous issues through his petition. He claims that: (1) the government failed to disclose evidence which contradicted one of its witness's (Tereza Cordero) trial testimony; (2) the government failed to disclose that Cordero was a government informant and did not provide the Petitioner agent reports; (3) Petitioner used cocaine and marijuana during the trial and sentencing and therefore was not competent to stand trial, waive his right to testify, or to assist his counsel at sentencing, that the court should have noticed Petitioner's drug use and ordered a competency hearing, and that Petitioner's counsel was ineffective for failing to notice his drug use and request a competency hearing; (4) trial counsel was ineffective for failing to object to an BNI agent Troy Serfass's testimony that Petitioner was serving a two to five year prison sentence in April of 1992, when Petitioner was facing a possible sentence but had not yet been sentenced in the case; (5) trial counsel was ineffective for failing to move for a mistrial after Petitioner's cousin spoke to one of the jurors during the trial; (6) trial counsel was ineffective for failing to examine a witness (Lowy) about his motive for testifying for the government; (7) trial counsel was ineffective for conceding Petitioner's guilt during closing argument; (8) trial counsel was ineffective at sentencing for failing to object to the allegedly untimely filing of an information of prior conviction under 21 U.S.C. § 851; and (9) trial counsel was ineffective at sentencing for failing to object to the drug quantity calculation adopted by the district court. Though Petitioner raises numerous allegations of error, none of them have any merit. Consequently, Mr. Riddick's § 2255 motion will be denied.

II. DISCUSSION

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

A. Non-Ineffective Assistance of Counsel Claims

1. Government's Alleged Failure to Disclose Impeachment Evidence

Petitioner claims that the government failed to disclose critical impeachment evidence at trial: that the prosecution's witness, Teresa Cordero, stored drugs at her apartment on more than the one occasion that was disclosed to the Petitioner. Petitioner claims that Cordero's testimony at trial that she only stored drugs at her residence for Kenneth Riddick on one occasion "draws the inference that the government's case includes knowing use of false testimony," since she stored drugs at her residence in June of 1992. Petitioner bases his claims on Cordero's testimony at Kenneth Riddick's trial.

Petitioner's claim is groundless. At Petitioner's trial, Cordero testified that, in the Fall of 1991, Kenneth Riddick obtained an apartment in Cementon for the Petitioner and herself in exchange for their storing Kenneth Riddick's cocaine there. Tr. 5/18/95 at 141. However, Cordero never testified that she stored Kenneth Riddick's cocaine at her residence in June of 1992, and therefore there is no inconsistency with her testimony at Petitioner's trial. There was an incident in June of 1992 where Kenneth Riddick asked Cordero to go to Shannon Sicher's garage and retrieve a package of cocaine that Kenneth Riddick had hidden in a drain pipe. Cordero testified about this unrelated incident at Kenneth Riddick's trial. Tr. 12/5/96 at 137-145. Cordero was not aware of the cocaine until Kenneth Riddick informed her of it. The witness picked up the cocaine, but turned it over to detectives rather than to Riddick. Id. at 144. Cordero did not, as Petitioner claims, store this cocaine in her residence and this incident is not inconsistent with her testimony at Petitioner's trial. Therefore this information is not impeachment material that reflected on Cordero's credibility.

2. Government's Alleged Failure to Disclose Cordero's Informant Status

Petitioner also attacks the government for allegedly failing to disclose the fact that Ms. Cordero was a confidential informant either prior to or by April 15, 1992. Petitioner claims that if Cordero were a confidential informant, then he could not have conspired with her. Petitioner also asserts that he was entitled to reports any meetings Ms. Cordero may have had with the government. These arguments, however, are meritless.

On February 8, 1992, Petitioner was arrested on a prole violation. Petitioner begged Cordero to "do something" to cooperate with the police to get him out of prison. Tr. 12/5/96 at 137. Petitioner himself had already been unsuccessful in cooperating with law enforcement. Id. at 138. On April 15, 1992 Ms. Cordero spoke to some government agents about cooperating on behalf of the Petitioner. Id. at 137-138, 141. These agents asked Ms. Cordero to assist them in seizing cocaine. Ms. Cordero gave them information about Kenneth Riddick and his cocaine suppliers, but withheld any information about Charles Riddick Sr., the Petitioner, or her own involvement in the prison drug smuggling. Id. at 141-142. On June 26, 1992, Ms. Cordero turned over to the police a quantity of Kenneth Riddick's cocaine on the Petitioner's behalf. Id. at 143-45. Ms. Cordero, however, never told the authorities about Riddick Jr. and Sr.'s continuing drug activities, or her involvement with them, until she was arrested in 1995.

As the history of this case bears out, Ms. Cordero never acted as an informant against the Petitioner. Instead, at the Petitioner's request, and with his knowledge and consent, Ms. Cordero disclosed selected pieces of information regarding Kenneth Riddick's activities to the police. She deliberately withheld any information that she believed might hurt the Petitioner. Ms. Cordero remained a loyal accomplice and coconspirator with the Petitioner until the conspiracy ended. Therefore, Petitioner's claim that he could not have conspired with Ms. Cordero during 1992 is meritless, as is his claim that Petitioner was entitled to any notes of Ms. Cordero's meetings where she served as an informant against him.

3. Petitioner's Alleged Lack of Competency at Trial Due to Drug Use

Petitioner asserts, for the first time in his § 2255 Motion, that he was high on drugs and alcohol during both his trial and sentencing. He argues that he was therefore incompetent to stand trial, waive his right to testify, or to assist his counsel at sentencing. Petitioner also claims that the court should have noticed Petitioner's drug use and ordered a competency hearing, and that Petitioner's counsel was ineffective for failing to notice his drug use and request a competency hearing. We will deal with Petitioner's first two arguments here. Petitioner's third drug related claim will be considered in the next section which deals with the ineffective assistance of counsel issues.

Petitioner's claims that his own illegal drug use rendered him incompetent to stand trial, waive his right to testify, or to assist his counsel at sentencing must be dismissed for a variety of reasons. First of all, Petitioner failed to raise these arguments either at trial or on his direct appeal. He is therefore procedurally barred from raising these claims for the first time in his § 2255 motion. The Supreme Court has held that if a § 2255 petitioner fails to properly raise an issue at trial or on direct appeal, he will be procedurally barred from raising the issue in a collateral attack unless he can show cause and actual prejudice. United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 71 L.Ed.2d 816, rehearing den. 456 U.S. 1001, 102 S.Ct. 2287, 73 L.Ed.2d 1296 (1982); United States v. Essig, 10 F.3d 968, 979 (3d Cir.1993). To show "cause," a petitioner must demonstrate that the reason for failing to raise the issue is something that cannot be fairly attributed to him. Had Petitioner been high during the course of the trial and sentencing, as he suggests, then the Petitioner would be the only person with first hand knowledge of the issue. Any failure to raise this issue on appeal is therefore fully attributable to the Petitioner. Thus, Petitioner is procedurally barred from raising this issues for the first time in the instant motion. Yet, even if Plaintiff's complaint that he was entitled to a competency hearing based on his alleged drug use were not procedurally barred, it would still have to be denied.

The Third Circuit has had said little on the topic of a defendant's drug use during trial. However, ample case law makes it clear that the crux of the issue raised by the Petitioner is not whether he had been high on marijuana and alcohol during the course of his trial and sentencing, but whether Petitioner was in fact competent during his trial. See Watts v. Singletary, 87 F.3d 1282 (11th Cir.1996), cert. denied ___ U.S. ___, 117 S.Ct. 2440, 138 L.Ed.2d 200 (1997)(court did not err in not holding a competency hearing for a defendant that it suspected was using drugs at the time of trial); Fallada v. Dugger, 819 F.2d 1564, 1569 (11th Cir.1987)(drug use does not, per se, necessitate a competency hearing); United States v. Ridley, 12 M.J. 675, 677 (ACMR 1981)(question is not whether defendant had ingested drugs, but whether he was able to...