Opinion
Criminal No. 01-732, Civil Action No. 03-5090.
February 17, 2004
MEMORANDUM
Before the Court is Miguel O. Davilla's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255. For the following reasons, the Motion is denied.
I. BACKGROUND
Miguel O. Davilla ("Davilla") has brought this Motion based on allegedly ineffective assistance provided by his trial counsel in connection with a Motion to Suppress physical evidence which was heard by this Court on March 4, 2002. Indictment No. 01-732 charged Davilla with one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The charge against Davilla arose from the warrantless search of his apartment by his parole officer following his arrest for violation of his parole. The search of Davilla's apartment resulted in the seizure of a 9mm handgun, $2,060.00 in cash, and a small amount of marijuana and drug paraphernalia. At the suppression hearing, Davilla argued that the warrantless search of his home was not valid and, therefore, the evidence seized in his apartment should be suppressed.
The following evidence was presented during the hearing on Davilla's Motion to Suppress. Parole Agent Amy Clewell testified that Davilla had been on parole since his release from prison on a conviction for third degree murder on December 22, 1999. (3/4/02 N.T. at 15-16.) Parole Agent Clewell took over supervision of Davilla on July 18, 2001. (Id. at 14.) To her knowledge, he was not employed at the time she took over his supervision. (Id.) Parole Agent David Guglielmi supervised Davilla prior to Parole Agent Clewell. (Id.) Davilla had been instructed to report to Parole Agent Clewell on July 27, 2001, but did not appear. (Id. at 13.) Davilla's failure to appear was a violation of the conditions of his parole. (Id. at 16-17.) As a consequence of this violation, Parole Agent Clewell went to Davilla's residence with an arrest team on July 31, 2001. (Id. at 16.) The arrest team was composed of Parole Agents Gillespie, Coslett, Cossias, White and Guglielmi and Supervisor Hines. (Id. at 17.) When they arrived at his residence at approximately 8:30 p.m., they saw Davilla standing outside on the corner of 5th and Venango Streets holding a can of beer. (Id.) Davilla's presence on the street corner violated two conditions of his parole, as he was required, as a condition of parole, to be inside his residence by 8:00 p.m. and he was prohibited from consuming alcoholic beverages. (Id. at 17-18.)
Parole Agent Clewell and the other Parole Agents then attempted to take Davilla into custody for multiple parole violations, namely, failure to report, curfew violation and consumption of alcoholic beverages. (Id. at 18.) Davilla, however, got loose from Parole Agent White while handcuffed with his hands behind his back and escaped. (Id.) Davilla fled east on Venango and was apprehended two blocks away. (Id.) After Davilla was caught, Parole Agent Coslett asked him why he escaped and he replied that he "had to." (Id.) Davilla was then put in leg irons, placed in a vehicle and returned to his residence. (Id. at 19.) As a result of information made known to him by Parole Agent Guglielmi, Supervisor Hines then decided to search Davilla's residence. (Id. at 25.) Parole Agents Clewell, Gillespie and Cossias, and Supervisor Hines, then searched Davilla's residence. (Id.) Inside Davilla's residence, the searchers found, and seized, a brown bag containing what appeared to be drug paraphernalia and a small amount of marijuana, a wallet with identification and $2,060 in United States currency, and a gun. (Id.)
Parole Agent Clewell also testified that, approximately one week prior to Davilla's arrest, she had overheard Parole Agent Martinez tell Parole Agent Guglielmi that he had seen Davilla on a corner during the day counting what appeared to be a large amount of money. (Id. at 20.) She further testified that, in her experience, a person standing on a street corner counting a large amount of money indicates possible drug dealing. (Id.) She also testified that she knew that this neighborhood has "a high activity of drug trafficking." (Id.) Davilla's attorney established, during cross-examination of Parole Agent Clewell, that Davilla's parole file contained documentation that Davilla was employed at the time of his arrest. (Id. at 23.) The parole file contained records of interviews in which Davilla informed his parole agent that he was employed (on June 20, 2001) and brought a check in to verify his employment (on June 27, 2001). (Id.)
Parole Agent David Guglielmi testified that he suggested to Supervisor Hines that Davilla's residence be searched after he was taken into custody. (Id. at 37.) He made this suggestion based on his knowledge of several things which had happened during the last six months of his supervision of Davilla. (Id. at 37.) Parole Agent Guglielmi state that between January 2001 and June 2001, Davilla had lost his job and had not gotten another job. (Id.) Although he did not have a job, Davilla was "maintaining a household, paying his bills and purchasing items that I observed when I went into his house, and had no viable source of income." (Id.) Parole Agent Guglielmi had put Davilla on the 8:00 p.m. curfew in order to pressure him to get a job. (Id.) Parole Agent Guglielmi also testified that he had seen people pull up to Davilla's residence, call up to his window and then leave. (Id. at 38.) Parole Agent Guglielmi believed it was possible that these people had gone to Davilla's residence to purchase drugs. (Id.) Parole Agent Guglielmi also testified that he had received information that Davilla had violated a special condition of his parole that he not associate with Oscar Colon, his co-conspirator in his third degree murder conviction, that he was involved with Colon in drug sales, and that Davilla and Colon had assaulted someone together. (Id. at 38-39.) Parole Agent Guglielmi had also been told, by Parole Agent Martinez, that an informant had seen Davilla on the street a few weeks prior to the arrest with a "handful of money." (Id.)
Parole Agent Robert Martinez testified that he had received information from a confidential informant prior to Davilla's arrest that Davilla was associating with Colon, that Colon was involved in drugs and weapons, and that Davilla and Colon had physically assaulted another parolee at a bar. (Id. at 51.) Parole Agent Martinez had also seen Davilla outside of his residence two weeks prior to his arrest, during the day, counting a large amount of U.S. currency. (Id. at 52.) He passed that information on to Agent Guglielmi. (Id.)
Parole Agent Howard White testified that he supervised Davilla for a short time during the summer of 2001 and also supervised Colon. (Id. at 62.) During his supervision of Colon, he received information from a confidential informant that Colon and Davilla had been associating together and had been involved in an assault in September 2000. (Id. at 64.)
In his Motion to Suppress, Davilla took the position that the warrantless search of his residence was not valid, and the results of that search should be suppressed, because the Parole Agents did not have a reasonable suspicion to justify the search. This Court found, based on the evidence presented during the March 4, 2002 hearing, that the United States had met its burden of proving by a preponderance of the evidence that the search of Davilla's residence was occasioned and based on a reasonable suspicion by the Parole Agents that conducted the search. The Court specifically found as fact and concluded that "as of July 31st, 2001, which was the time of the search of this defendant's residence, there was a confluence of information, a coming together of information which did constitute reasonable suspicion and does justify the search that was occasioned in this case." (3/4/02 N.T. at 96.)
The United States Supreme Court has determined that a probation officer needs a reasonable suspicion of criminal conduct in order to conduct a warrantless search. See United States v. Knights, 534 U.S. 112, 118-21 (2001). Davilla had, as a condition of his parole, consented to the search of his person, property and residence, without a warrant, by agents of the Pennsylvania Board of Probation and Parole. However, the United States Court of Appeals for the Third Circuit has determined that the form signed by Defendant, agreeing that the parole agents could conduct warrantless searches of his residence, does not waive the requirement that the parole agent have a reasonable suspicion to conduct the search. United States v. Baker, 221 F.3d 438, 449 (3d Cir. 2000).
Davilla pled guilty to Indictment No. 01-732 immediately following the Court's denial of his Motion to Suppress on March 4, 2002. He was sentenced on June 6, 2002 to forty-five (45) months of imprisonment and three years of supervised release. He filed a timely notice of appeal on June 19, 2002. On July 9, 2003, the United States Court of Appeals for the Third Circuit affirmed the Judgment of the District Court.
II. LEGAL STANDARD
Davilla has moved for relief pursuant to 18 U.S.C. § 2255, which provides as follows:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.28 U.S.C.A. § 2255 (West Supp. 2001).
"Section 2255 does not provide habeas petitioners with a panacea for all alleged trial or sentencing errors." United States v. Rishell, Civ.A. Nos. 97-294-1, 01-486, 2002 WL 4638, at *1 (E.D. Pa. Dec. 21, 2001) (citation omitted). In order to prevail on a Section 2255 motion, the movant's claimed errors of law must be constitutional, jurisdictional, "a fundamental defect which inherently results in a complete miscarriage of justice," or "an omission inconsistent with the rudimentary demands of fair procedure." Hill v. United States, 368 U.S. 424, 428 (1962). A district court has the discretion to summarily dismiss a motion brought under § 2255 in cases where the motion, files, and records "show conclusively that the movant is not entitled to relief." United States v. Nahodil, 36 F.3d 323, 325 (3d Cir. 1994) (citing United States v. Day, 969 F.2d 39, 41-42 (3d Cir. 1992)).
III. DISCUSSION
Davilla asserts two claims for relief pursuant to 28 U.S.C. § 2255 based upon the ineffective assistance of his trial counsel during the hearing on his Motion to Suppress. In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court held that criminal defendants have a Sixth Amendment right to "reasonably effective" legal assistance, id. at 687, and determined that a defendant claiming ineffective assistance of counsel must show the following:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.Id. In order to meet his burden of proving ineffectiveness, a "defendant must show that counsel's representation fell below an objective standard of reasonableness." Id. at 688. The Petitioner "must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Id. at 690. "In evaluating counsel's performance, [the Court is] `highly deferential' and `indulge[s] a strong presumption' that, under the circumstances, counsel's challenged actions `might be considered sound . . . strategy.'" Buehl v. Vaughn, 166 F.3d 163, 169 (3d Cir. 1999) (quoting Strickland, 466 U.S. at 689). "Because counsel is afforded a wide range within which to make decisions without fear of judicial second-guessing, . . . it is `only the rare claim of ineffectiveness of counsel that should succeed under the properly deferential standard to be applied in scrutinizing counsel's performance.'" Id. (quoting United States v. Gray, 878 F.2d 702, 711 (3d Cir. 1989)).
If a defendant shows that counsel's performance was deficient, he then must show that the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687. "This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. Defendant must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome."Id. at 694.
Davilla maintains that his trial counsel was ineffective in failing to object to hearsay testimony during the hearing on his Motion to Suppress. The United States Supreme Court has determined that "the rules of evidence normally applicable in criminal trials do not operate with full force at hearings before the judge to determine the admissibility of evidence." United States v. Matlock, 415 U.S. 164, 172-73 (1974). Consequently, the Court may consider hearsay evidence at a suppression hearing, "even though that evidence would not be admissible at trial."United States v. Raddatz, 447 U.S. 667, 679 (1980) (citingMatlock, 415 U.S. at 172-4); see also Brosius v. Warden, U.S. Penitentiary, Lewisburg, PA, 278 F.3d 239, 246 n. 4 (3d Cir. 2002) ("Hearsay may be considered in a suppression hearing in a federal court.") (citing Raddatz, 447 U.S. at 679). Since hearsay evidence is admissible at a hearing on a motion to suppress, the Court cannot find that trial counsel's representation "fell below an objective standard of reasonableness" when he failed to object to the introduction of hearsay testimony at the hearing on Davilla's Motion to Suppress.See Strickland, 466 U.S. at 688.
Davilla also contends that his attorney was ineffective for failing to investigate and obtain proof that Davilla was employed at the time of his arrest. Although Davilla's counsel did not introduce independent evidence of his employment at the hearing on Davilla's Motion to Suppress, he effectively elicited such evidence from Agent Clewell during cross-examination. In fact, Agent Clewell agreed, during cross-examination by defense counsel, that Davilla's parole file contained documentation regarding his employment status and that Davilla had informed his parole officer on June 20, 2001 that he was employed and had brought a check in to verify his employment on June 27, 2001. (3/4/02 N.T. at 23.) Since Davilla's attorney did put evidence of Davilla's employment on the record during the hearing on the Motion to Suppress, the Court cannot find that his representation "fell below an objective standard of reasonableness" when he failed to investigate and obtain other proof of Davilla's employment. See Strickland, 466 U.S. at 688.
For the reasons stated above, the Court finds that Davilla's attorney was not ineffective in failing to object to hearsay testimony during the hearing on Davilla's Motion to Suppress or in failing to obtain independent evidence of Davilla's employment. Accordingly, Davilla's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 is denied. The Court further finds that Davilla has not made a substantial showing of the denial of a constitutional right and that there is no basis for the issuance of a certificate of appealability.
An appropriate order follows. AND NOW, this 17th day of February, 2004, upon consideration of Miguel O. Davilla's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. No. 38), all attendant and responsive briefing thereto, and the notes of testimony from the March 4, 2002 hearing, IT IS HEREBY ORDERED that said Motion is DENIED in all respects. As Davilla has failed to make a substantial showing of the denial of a constitutional right, there is no basis for the issuance of a certificate of appealability.