MEMORANDUM

STEWART DALZELL, District Judge

Before us is Dominic DiGregorio's petition for a writ of habeas corpus brought under 28 U.S.C. § 2255. Upon consideration of the many claims in both his pro se petition and counseled memorandum of law in support of it, we convened an evidentiary hearing earlier this week. This Memorandum responds to DiGregorio's claims based upon the record of his trial and our habeas hearing findings.

Factual and Procedural Background

On March 17, 1999, a federal grand jury returned a seven-count indictment against DiGregorio that charged him with conspiracy to manufacture, to possess with intent to distribute within one thousand feet of a school, and to distribute more than one kilogram of methamphetamine (Count One), possession of, and aiding and abetting the possession of, Phenyl-2-Propanone ("P2P") (Counts Two, Four, and Five), distribution of, and aiding and abetting the distribution of, methamphetamine (Counts Three and Six), and possession of a listed chemical with intent to manufacture methamphetamine (Count Seven). On November 19, 1999, after a five-day trial, a jury found DiGregorio guilty of the charges in Counts One, Three, Four, Five, and Six, but it acquitted him on Counts Two and Seven.

On November 16, 2000, we sentenced DiGregorio to one hundred months' imprisonment. DiGregorio filed an appeal asserting that this Court lacked jurisdiction because his indictment failed to allege that the charged drug offenses affected interstate commerce, that we abused our discretion in allowing the Government to present evidence of prior bad acts under Fed.R.Evid. 404(b), and that his trial counsel was ineffective. In a memorandum opinion filed October 11, 2001, our Court of Appeals affirmed DiGregorio's conviction after declining to consider his ineffective assistance of counsel claim and rejecting his other claims on the merits. See United States v. Dominic DiGregorio, No. 00-4113, mem. op., at 7 (3d Cir. Oct. 11, 2001) (Sloviter, J.).

DiGregorio then filed his wide-ranging § 2255 petition, which reasserts the ineffective assistance of counsel claim and also argues that we erred at sentencing by imposing a two-point enhancement for an unloaded firearm. After determining that the ineffective assistance of counsel claim raised factual issues that would necessitate a hearing, we appointed the Federal Defender Association to represent DiGregorio. His new counsel conducted a thorough review of the record and filed a memorandum of law that briefed DiGregorio's claims that counsel was ineffective for failing to file a motion to suppress and investigate potential defense witnesses. The counseled brief also asserts the claim, prompted by the Supreme Court's recent decision in Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531 (2004), that counsel was ineffective in failing to mount a Sixth Amendment challenge to the firearm enhancement.

On August 9, 2004, we convened an evidentiary hearing on the petition at which we heard the testimony of trial counsel Louis Busico, Esq., trial witness Adamia Daddazio, FBI Special Agent Mario Campana, and DiGregorio himself.

Ineffective Assistance of Counsel

In the first part of his petition, DiGregorio asserts that his pretrial counsel, John Scott, Esq., and trial counsel, Louis Busico, Esq., committed some fourteen errors that cumulatively amount to ineffective assistance of counsel.

To prevail on these claims, DiGregorio must first show that his counsel "made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland v. Washington, 466 U.S. 668, 687 (1984). We evaluate counsel's conduct with deference, making every effort "to eliminate the distorting effects of hindsight." Id. at 689. Moreover, we "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. Second, DiGregorio must show that his counsel's deficient performance resulted in prejudice, which the Supreme Court has defined as "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.

With Strickland's standard in mind, we consider each of DiGregorio's claims in turn.

1. Failure to argue bail motion

DiGregorio first argues that Mr. Scott failed to argue a bail motion. Not only did this claim become moot upon DiGregorio's conviction, see Lee v. United States, 1991 WL 146706, at *2 (7th Cir. Aug. 2, 1991), but it has no basis in fact. Mr. Scott initially secured DiGregorio's pre-trial release from Magistrate Judge Smith, and DiGregorio was detained only after the Government successfully — and over Mr. Scott's objections — secured from us the reversal of Judge Smith's decision. See Order of March 26, 1999 (docket entry # 7) (granting Government's motion for review of Judge Smith's release order "after a hearing and argument this day by counsel for the Government and the defendant").

2. Failure to file motion to suppress

Second, DiGregorio argues that Mr. Busico was ineffective for failing to file a motion to suppress evidence seized from his house on March 25, 1998. DiGregorio must satisfy the "cause" aspect of his burden under Strickland by showing that counsel's representation fell below an objective standard of reasonableness. He must also demonstrate prejudice by showing that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence. Kimmelman v. Morrison, 477 U.S. 365, 375 (1986). The failure to challenge the admissibility of evidence can constitute a per se violation of the Sixth Amendment where it stems from counsel's failure to investigate the case against his client. Id. at 385-86. However, an informed decision not to file such a motion is entitled to the same measure of deference we grant to counsel's other strategic decisions.

Here, Mr. Busico's decision not to file a motion to suppress was based on his assessment of the motion's likelihood of success and his overall trial strategy. As Mr. Busico explained at the hearing, he concluded that the motion would have been "fruitless" because DiGregorio had signed an FBI Consent to Search form and had expressly confirmed at a pre-trial strategy session that he had, in fact, consented to the search. Moreover, Mr. Busico decided that DiGregorio's consent to the search could actually benefit him at trial because it demonstrated that he had nothing to hide. Pursuant to this tactical decision, Mr. Busico's cross-examination of Special Agent John Foley focused on DiGregorio's willingness to consent and his cordiality to the FBI agents. N.T. of 11/16/99, at 273-75. DiGregorio may disagree with Mr. Busico's decision in hindsight, but it was a reasonable decision that was well within prevailing professional norms; it certainly did not stem from Mr. Busico's failure to investigate DiGregorio's case.

But even if DiGregorio could show that Mr. Busico's decision was professionally unreasonable, he cannot demonstrate either that his Fourth Amendment claim would have been meritorious or that the verdict would have been different in the absence of the excludable evidence.

We begin by examining the circumstances of the search. On the morning of March 25, 1998, cooperating witness Robert Jordan met with Anthony "Tony the Beard" Palermo at a Hechinger store. Jordan purchased a pound of methamphetamine from Palermo for $10,500 in cash. Agents detained Palermo and brought him to an FBI office. Palermo decided to cooperate, informed the agents that he had gotten the methamphetamine from DiGregorio, and agreed to wear a wire when he delivered the purchase money to DiGregorio later that day. A group of agents left with Palermo, and Special Agent Campana remained in the office to draft an affidavit in support of a search warrant for DiGregorio's house.

With the $10,500 in a Hard Rock Café bag, Palermo entered DiGregorio's house. In the taped conversation that ensued, DiGregorio said "Nice bag," and stated that Palermo instead should have used his pockets to carry the money. Palermo and DiGregorio then discussed the fact that the pound of methamphetamine he had just sold was "better than the last one." N.T. of 11/15/99, at 146.

Rather than wait for Special Agent Campana to obtain a search warrant, the agents decided to enter DiGregorio's house. After knocking on the door, about ten agents entered the house with guns drawn. They identified themselves, patted down and handcuffed DiGregorio, and secured the premises. The agents then uncuffed DiGregorio and sat him down at the kitchen table. After putting away their guns, they explained why they were there, asked for his consent to search the house, and provided him with an FBI Consent to Search form. As DiGregorio confirmed at the habeas hearing, they also informed him that he could refuse consent and wait at the house until they secured a search warrant, which could take two or three hours. DiGregorio consented to the search and signed the form. In addition to the $10,500 in purchase money, which DiGregorio had moved to a flowerpot before the agents' entry, they recovered two firearms, a "tally sheet" that appeared to memorialize drug transactions, more than $10,000 in cash, travel documents and notes from a trip that DiGregorio had taken to Italy with another conspirator in an effort to purchase precursor chemicals, and a gallon of methylamine, a precursor chemical, that was behind the house.

There is no likelihood that a motion to suppress would have been successful. The agents' initial entry into DiGregorio's house was constitutional pursuant to the exigent circumstances exception to the Fourth Amendment's warrant clause. Exigent circumstances were present because the agents already had probable cause to believe that DiGregorio was engaged in methamphetamine trafficking. In view of the fact that he and Palermo had just concluded their transaction, it was objectively reasonable for the agents to believe they had to act quickly to prevent DiGregorio from destroying or hiding the purchase money as well as any methamphetamine that might have been in the house.United States v. Medina, 944 F.2d 60, 68-69 (2d Cir. 1991).

The ensuing warrantless search of the house did not violate the Fourth Amendment because DiGregorio gave his consent. As Special Agent Foley testified at trial — and as DiGregorio himself confirmed at the hearing — the agents had uncuffed him and put away their firearms by the time they asked for his consent. The agents advised DiGregorio of his right to refuse consent and provided him with an FBI Consent to Search form. Moreover, they specifically gave DiGregorio the option of awaiting the arrival of a warrant, and in view of the highly specific information they had obtained concerning DiGregorio's trafficking activities at the house that Special Agent Campana incorporated into his Affidavit of Probable Cause, they had every reason to believe that a judge would issue the warrant. Under the totality of the circumstances, his consent was voluntary.

Finally, even if DiGregorio could show that his Fourth Amendment claim was meritorious, he has not shown that there was a reasonable probability the verdict would have been different absent the excludable evidence. Although the Government certainly relied on this evidence at trial, there was ample other evidence upon which the jury could have convicted DiGregorio. Not only did the Government's cooperating witnesses cross-corroborate one another, but DiGregorio had acknowledged his involvement in drug trafficking in his conversation with Palermo immediately before the search. As to the firearm, for which DiGregorio received a sentencing enhancement, our Court of Appeals has held, pre-Blakely, that "evidence suppressed as in violation of the Fourth Amendment may be considered in determining appropriate guideline ranges", except possibly where "the record showed that evidence was illegally seized for the purpose of enhancing the sentence." United States v. Torres, 926 F.2d 321, 325 (3d Cir. 1991). There is no evidence here that the agents seized the firearm for the purpose of enhancing DiGregorio's sentence.

3. Failure to pursue Starks issue

DiGregorio's third and fourth ineffective assistance claims focus on Mr. Scott's decision not to contest the Government's motion to admit tape recordings pursuant to United States v. Starks, 515 F.2d 112 (3d Cir. 1975), and Mr. Busico's failure to "follow up" on this issue. DiGregorio included these claims on the § 2255 form but did not raise them at the hearing or elaborate on them in either his pro se or counseled briefs. We therefore conclude that they are too vaporous to warrant further investigation or discussion. See Zettlemoyer v. Fulcomer, 923 F.2d 284, 301 (3d Cir. 1991).

4. Failure to present adequate defense

DiGregorio's fifth, sixth, seventh, and eleventh ineffective assistance claims challenge Mr. Busico's failure both to investigate potential witnesses and to elicit more "compelling" testimony from witness Adamia Daddazio. These claims all focus on Mr. Busico's decisions concerning DiGregorio's defense that the so-called "tally sheet" that Government agents recovered on March 25, 1998 did not memorialize drug transactions but instead recorded gambling transactions.

To place the claims in their proper context, it is helpful to describe the tally sheet and review both the Government's use of it at trial and Mr. Busico's efforts to counter its evidentiary value. The tally sheet is a small piece of paper divided into two columns. The left side records transactions involving "Dave" and "Nick." The right side bears the name "John." It appears to add together the sums $12,000, $35,000, and $35,000 and then subtract $59,000, for a resulting debt of $23,000. At trial, the Government argued that "John" referred to Government witness John A. Renzulli, who testified on a series of transactions with DiGregorio involving methamphetamine and precursor chemicals. N.T. of 11/18/99, at 695-96.

Mr. Busico challenged the tally sheet in two ways. First, he extracted a concession from Special Agent Norton that, although he had assumed that the numbers on the sheet referred to debts and that the lines drawn through many of the numbers reflected repayment of those debts, all of these notations were, in fact, susceptible of other interpretations. N.T. of 11/16/99, at 350. Second, and more significantly, Mr. Busico advanced the theory that the tally sheet recorded debts stemming from Mr. DiGregorio's gambling activities. He developed this defense through witness Adamia Daddazio, DiGregorio's girlfriend, who testified that he was a frequent gambler who recorded his and his friends' bets on tally sheets similar to the one seized on March 25th.

With this background in mind, we turn to consider DiGregorio's specific contentions concerning Mr. Busico's treatment of the tally sheet.

DiGregorio first complains that he gave Mr. Busico the identities of "Dave", "Nick", "John", and other gamblers who could testify on his behalf, but Mr. Busico never even attempted to locate them. The Supreme Court held in Strickland that "counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." 466 U.S. at 691. As Mr. Busico explained at the hearing, a variety of concerns dictated his decision not to locate DiGregorio's gambling cronies, let alone risk putting them on the witness stand. He concluded that they would be easily impeachable; that they might be untruthful; and that it was possible they would invoke their privilege against self-incrimination if subpoenaed as trial witnesses. Moreover, he worried that uncovering these witnesses might expose his client to a criminal prosecution for illegal gambling. Finally, Mr. Busico concluded that he could advance the gambling defense through the testimony of Ms. Daddazio, an eminently respectable person whose character the Government did not even attempt to impeach at trial. In sum, Mr. Busico's decision not to locate DiGregorio's friends was precisely the sort of reasonable decision rendering an investigation unnecessary that the Supreme Court had in mind in Strickland.

Second, DiGregorio asserts that Mr. Busico refused to let Ms. Daddazio provide testimony that would have proven that the tally sheet recorded gambling transactions. We have reproduced the transcript of Ms. Daddazio's testimony below, and it shows that Mr. Busico's examination was well within the range of strategic choices defense counsel may reasonably make at trial. Rather than ask Ms. Daddazio about the notations on the tally sheet, he questioned her on DiGregorio's general gambling and record keeping methods. This approach created doubt about the Government's interpretation of the tally sheet without implicating Ms. Daddazio in DiGregorio's gambling activities or opening the door to cross-examination on the specific transactions recorded on the sheet.

4. Failure to impeach Government witnesses and exhibits

The eighth through tenth ineffective assistance claims challenge Mr. Busico's treatment of Government's witnesses and physical evidence. In particular, he argues that Mr. Busico should have (1) more vigorously challenged the evidentiary value of the jug of methylamine found behind his house, and (2) cross-examined Government witnesses on discrepancies between their grand jury and trial testimony.

These claims lack merit. As the trial transcript reveals, Mr. Busico's cross-examination of Government witnesses reflected his years of experience as a criminal defense lawyer, and he actually secured DiGregorio's acquittal on Count Seven, which charged him with possession of the methylamine. To the extent that DiGregorio now believes that Mr. Busico should have raised certain topics on cross-examination — none of which having any likelihood of changing the outcome of the trial — this is precisely the sort of Monday morning quarterbacking thatStrickland forbids.

5. Failure to assert jurisdictional challenges to the indictment

DiGregorio's twelfth ineffective assistance claim faults counsel for failing to assert unspecified jurisdictional challenges to the indictment. This claim is frivolous. Not only is counsel under no obligation to file frivolous motions, but DiGregorio asserted such a challenge on direct appeal. Our Court of Appeals heard it — and rejected it out of hand. See DiGregorio, No. 00-4113, mem. op. at 4-6.

6. Failure to consult with DiGregorio on the case and sentencing issues

DiGregorio's thirteenth claim is that Mr. Busico failed to consult with him about his case and advise him of either the strength of the Government's evidence or the sentencing consequences of proceeding to trial. At the hearing, Mr. Busico refuted these claims, and we credit his testimony entirely.

In the first place, Mr. Busico explained that in the months leading up to trial, he had a one to two hour meeting with DiGregorio at FCI-Schuylkill and conferred extensively with DiGregorio's daughter and brother, who live in Philadelphia and provided the names of potential defense witnesses and other information. He expressed to DiGregorio his belief that the Government's case against him was not particularly strong, and at the hearing he reiterated that, in his view, the turning-point in the case was our decision on the third day of trial to allow the Government to present evidence of prior bad acts under Fed.R.Evid. 404(b). Moreover, Mr. Busico testified that he conveyed to DiGregorio the Government's offer of a plea agreement if he could provide information on other drug traffickers in South Philadelphia and information on a suspected methamphetamine lab in the Poconos.

Finally, Mr. Busico testified that he did not recall having any conversations with DiGregorio about a non-cooperation plea agreement. While the failure to advise a client of the consequences of going to trial instead of accepting a plea agreement can constitute ineffective assistance of counsel, the defendant must show it was reasonably probable he would have pleaded guilty with the benefit of competent counsel. United States v. Day, 969 F.2d 39, 44-45 (3d Cir. 1992). Here, however, DiGregorio has offered no evidence — not even his own affidavit — that he would have considered the possibility of such a plea. Indeed, Mr. Busico confirmed that his client always stoutly insisted on his innocence.

7. Failure to file Rule 29 motion

DiGregorio's fourteenth claim is that Mr. Busico was ineffective for failing to file a motion for judgment of acquittal under Fed.R.Crim.P. 29(a). In ruling on such a motion, the district court must view the evidence in the light most favorable to the Government and determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). The testimony and physical evidence that the Government introduced at DiGregorio's trial easily passed this test, and Mr. Busico was not ineffective for declining to file what would have been a frivolous motion.

8. Failure to challenge constitutionality of upward adjustment

At sentencing, DiGregorio received a two-point upward enhancement from his base offense level for one of the firearms seized in the March 25th search. DiGregorio's counseled brief in support of his petition raises the claim that his sentencing counsel, Alan Ellis, Esq., and James Feldman, Esq., were ineffective for failing to raise a Blakely-like Sixth Amendment challenge to this application of the Sentencing Guidelines.

The difficulty with this argument is that DiGregorio's extraordinarily able counsel actually did object to the gun enhancement on the basis of Apprendi v. New Jersey, 530 U.S. 466 (2000). Messrs. Ellis and Feldman raised the Apprendi issue in their Objections to the Pre-Sentence Investigation Report and in oral argument at the sentencing hearing. At an earlier point in the hearing, we agreed with counsel that, in view ofApprendi and its possible effect on the Guidelines, the base offense level should not take into account certain precursor chemicals that were the subject of Counts Two and Seven, upon which DiGregorio was acquitted.

When the hearing turned to the gun enhancement, counsel again raised the Apprendi issue:

Mr. Feldman: I think that . . ., under the logic that [led] your Honor to find a Base Offense Level of 32, that same logic I think would also lead to the conclusion that no gun enhancement applies in this case either.

The Court: To wit?

Mr. Feldman: To wit, that this was an issue that was not presented to the Jury. I think that the Jury did not find under the instructions that the Court gave and the statute that he was charged with. It's not necessarily —

The Court: Well, you know, we're — part of the problem we have in that respect of course is until we know what, how this all shakes out, the Third Circuit has historically discouraged the submission of Special Interrogatories to the Jury on points like this; and I have to live within that "legal landscape," that, I readily agree with you, the Supreme Court may well change on us.

N.T. of 11/16/00, at 25-26.

DiGregorio was thus one of the earliest criminal defendants whose sentencing counsel was prescient enough to preserve theBlakely issue, and he has only himself to blame for not pursuing it in his pro se appeal.

Imposition of Upward Adjustment

DiGregorio's second major claim is that we erred in our application of the Guidelines in imposing the gun enhancement because it was "clearly improbable" that the firearm was connected to the offenses of conviction. Pet.'s Mem. at 14. DiGregorio failed to raise this issue on direct appeal, and in any event, his challenge lacks a constitutional dimension and is not cognizable in a § 2255 petition. United States v. Cepero, 224 F.3d 256, 267 (3d Cir. 2000).

Conclusion

For the reasons provided above, we conclude that DiGregorio is not entitled to relief on any of the claims presented in either his pro se petition or counseled memorandum of law. Because DiGregorio has failed to make a substantial showing of a denial of his constitutional rights, we decline to issue a certificate of appealability.

An appropriate Order follows.