US v. Lively

• Decision Date: 31 March 1993
• Docket Number: Crim. A. No. 91-42 LON.
• Parties: UNITED STATES of America, Plaintiff-Respondent, v. Theron LIVELY, Defendant-Petitioner.
• Court: U.S. District Court — District of Delaware

817 F. Supp. 453

UNITED STATES of America, Plaintiff-Respondent, v. Theron LIVELY, Defendant-Petitioner.

Crim. A. No. 91-42 LON.

United States District Court, D. Delaware.

March 31, 1993.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Robert Prettyman, U.S. Attorney's Office, Wilmington, DE, for plaintiff-respondent.

Cheryl J. Sturm, West Chester, PA, for defendant-petitioner.

OPINION

LONGOBARDI, Chief Judge.

I. BACKGROUND

On August 22, 1991, a jury convicted the Petitioner, Theron Lively ("Lively"), of two counts under 21 U.S.C. § 860(b) for knowingly distributing cocaine within 1,000 feet of the Redding Middle School and two counts under 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) for knowingly distributing cocaine. Petitioner's conviction was affirmed without opinion by the United States Court of Appeals for the Third Circuit in United States v. Lively, 968 F.2d 15 (3d Cir.1992). His present motion under 28 U.S.C. § 2255 to vacate, set aside or correct his sentence, Docket Item ("D.I.") 40, is before this Court for "preliminary consideration," pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings.¹

Rule 4(b) of the Rules Governing Section 2255 Proceedings requires that the Court perform a preliminary examination of the motion, together with "all the files, records, transcripts, and correspondence relating to the judgment under attack." Rule 4(b), 28 U.S.C. § 2255. If it "plainly appears" that the movant is not entitled to relief, the motion must be summarily dismissed. Id. Otherwise, the Court must "order the United States Attorney to file an answer" or otherwise plead within a specified period of time. Id.

"Rule 4(b) recognizes that summary dismissal of meritless motions under § 2255 is appropriate to relieve the district courts from the heavy burden which an obligation of hearings and findings on these motions would impose." Abatino v. United States, 750 F.2d 1442, 1444 (9th Cir.1985). The Third Circuit recently delineated the standard under which a district court may exercise its discretion to summarily dismiss a section 2255 petition without a hearing in United States v. Day, 969 F.2d 39 (3d Cir.1992). The court stated that

"when a motion is made under 28 U.S.C. § 2255 the question of whether to order a hearing is committed to the sound discretion of the district court. In exercising that discretion the court must accept the truth of the movant's factual allegations unless they are clearly frivolous on the basis of the existing record. Further, the court must order an evidentiary hearing to determine the facts unless the motion and files and records of the case show conclusively that the movant is not entitled to relief."

Id. at 41-42 (quoting Government of Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989)).

Thus, a section 2255 motion may be denied if the movant's allegations, viewed against the record, either do not state a claim for relief or are so palpably incredible or patently frivolous as to warrant summary dismissal. See Marrow v. United States, 772 F.2d 525, 526 (9th Cir.1985); Abatino, 750 F.2d at 1444; Baumann v. United States, 692 F.2d 565, 571 (9th Cir.1982). "At this preliminary stage, defendant's factual allegations must be accepted as true, unless they clearly are frivolous on the basis of the existing record." United States v. Singer, Crim. No. 85-00283-01, 1990 WL 161258, at *1 (E.D.Pa. Oct. 18, 1990) (citing United States v. Williams, 615 F.2d 585, 591 (3d Cir.1980)). Moreover, a district court judge may properly refer to his or her own recollection of the proceedings in a determination of a § 2255 motion. See Abatino, 750 F.2d at 1444 (citing Gustave v. United States, 627 F.2d 901, 903 (9th Cir.1980); Blackledge v. Allison, 431 U.S. 63, 74 n. 4, 97 S.Ct. 1621, 1629 n. 4, 52 L.Ed.2d 136 (1977)).

Petitioner's motion challenges his sentence based on a violation of his Sixth Amendment right to the assistance of counsel. For the reasons that follow, the Court rejects this challenge and summarily denies Petitioner's motion as unmeritorious pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings.²

II. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM

Petitioner claims that he received ineffective assistance of counsel at his trial on August 21-22, 1991. The first ground raised by Lively is that his attorney committed a nonstrategic trial error by calling Lively as a defense witness at the trial. The second ground raised by Lively is that his attorney provided ineffective assistance because he failed to object to the government's improper summation. In conjunction with this claim, the Petitioner asserts that he suffered prejudice from his attorney's failure to object to the allegedly improper summation of the prosecutor.

The standards for evaluating ineffective assistance of counsel claims under the Sixth Amendment were delineated by the Supreme Court in Stricklnad v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under the Sixth Amendment, a criminal defendant has a right to "reasonably effective assistance" of counsel. Id. at 687, 104 S.Ct. at 2064. To establish that his representation was constitutionally inadequate, the Petitioner must show that his attorney's performance was deficient and unreasonable under prevailing professional standards and that this performance prejudiced the defense, i.e., "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Government of Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir.1989) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. at 2068) (other citation omitted).

Related to the first prong of the Strickland test, "when a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 687-88, 104 S.Ct. at 2064. The proper measure of attorney performance is reasonableness under prevailing professional norms and considering all the circumstances. Id. at 688, 104 S.Ct. at 2064-65. In evaluating the challenged conduct, the Court "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. at 2065 (citation omitted).

Recently, the Supreme Court revisited the Strickland test in Lockhart v. Fretwell, ___ U.S. ___, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). While affirming Strickland's basic contours, the Fretwell court clarified that the prejudice prong of the test does not focus solely on mere outcome determination. Id. ___ U.S. at ___, 113 S.Ct. at 842. The Supreme Court held that to establish prejudice a criminal defendant must show that counsel's deficient representation rendered the result of his trial fundamentally unfair or unreliable. Id. See also Strickland, 466 U.S. at 686, 697, 104 S.Ct. at 2063-64, 2069-70 (benchmark for judging ineffectiveness claim is 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; an ineffectiveness claim is an attack on the fundamental fairness of the proceeding whose result is challenged). Further, "unreliability or unfairness does not result if the ineffectiveness of counsel does not deprive the defendant of any substantive or procedural right to which the law entitles him." Fretwell, ___ U.S. at ___, 113 S.Ct. at 844.

Moreover, the burden of proof and persuasion rests with the Petitioner to establish ineffective assistance of counsel at trial. United States v. Davenport, 986 F.2d 1047, 1048-49 (7th Cir.1993) (citing Strickland, 466 U.S. at 687, 104 S.Ct. at 2064). When bringing an ineffective assistance of counsel claim, the Petitioner has the burden of demonstrating that the challenged action of counsel was not what "might be considered sound trial strategy." Sanchez v. United States, 782 F.2d 928, 935 (11th Cir.1986) (quoting Strickland, supra).

A. CALLING THERON LIVELY AS A WITNESS ON HIS OWN BEHALF

Lively's first claim of ineffective assistance is that his counsel committed a nonstrategic trial error by calling Lively to testify in his own defense at trial. Petitioner proffers two reasons why calling him as a witness was error. First, Lively had a recent conviction for the identical crime charged in the instant case, i.e., selling drugs within 1,000 feet of a school. Second, Lively claims that his testimony was entirely cumulative because his mother, brother and girlfriend had previously testified about his alibi defense. According to Lively, it stands to reason that if the jury was unpersuaded by alibi testimony from his mother, brother and girlfriend, who had no criminal records, it was not going to be persuaded by the testimony of a defendant with a recent prior conviction for the identical offense. The above allegations represent the entire sum and substance of Petitioner's ineffective assistance claim.

At his trial, Lively's primary defense was misidentification supported by an alibi defense. Three witnesses testified on behalf of the prosecution. All three were New Castle County Police Officers. Two of the officers testified that on February 1, 1991 at approximately 10:45 p.m., they each made an undercover purchase of cocaine from Lively.³ At the time of the purchases, the undercover police officers were seated in an undercover vehicle, a pickup truck. Each testified that Lively approached the driver's side window of the truck, and while standing there, engaged in conversation with them related to the drug sales. The sales were then consummated. The undercover officers testified that they taped the conversation by means of a tape recorder which was concealed on the truck...