Opinion
CRIMINAL NO. 1:CR-01-248-03.
October 10, 2008
MEMORANDUM
Defendant, Daryl L. Parker, filed a pro se motion under 28 U.S.C. § 2255 challenging his conviction after a jury trial for conspiracy to distribute crack cocaine in violation of 21 U.S.C. § 846. On that conviction, he received a sentence of 349 months, to run concurrently with the sentence he received for the substantive offense of the distribution of crack cocaine in violation of 21 U.S.C. § 841(a)(1).
Defendant appealed his conviction and sentence. The Third Circuit affirmed the conviction but remanded for resentencing under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). United States v. Parker, 142 Fed. Appx. 19 (3d Cir. 2005) (nonprecedential). On remand, the same 349-month sentence was imposed, and it was upheld on appeal. United States v. Parker, 462 F.3d 273 (3d Cir. 2006).
Defendant does not challenge the latter conviction.
The sole ground raised in the motion is that trial counsel was ineffective in failing to investigate whether his codefendant, Travis Parker, who was tried with him, would have testified on Defendant's behalf. Travis Parker submitted a penalty-of-perjury declaration indicating he would have testified favorably for Defendant against certain testimony presented by Michael Parker, a prosecution witness.
Michael Parker is Travis Parker's brother and Defendant's cousin. Michael Parker was also charged and pled guilty to conspiracy to distribute crack cocaine.
Counsel was appointed to represent Defendant, and a hearing was held in June 2006 on the motion. After consideration of the testimony at the hearing, we will deny relief.
In considering a Sixth Amendment ineffective assistance of counsel claim, we apply the two-pronged test from Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, the defendant must show that counsel's performance was objectively unreasonable. Id. at 688. "The proper measure of attorney performance" is "reasonableness under prevailing professional norms." Id. Counsel's errors must be "so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. Second, the defendant must show that counsel's deficient performance prejudiced his defense. Id. The 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." Id. at 694.
Defendant claims that counsel was ineffective by failing to discover that Travis would have testified on his behalf. In evaluating an ineffective-assistance claim based on counsel's investigation, the Strickland Court explained that "counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." 466 U.S. at 690-91. Defense counsel may rely on information supplied by the defendant when considering the nature and scope of pretrial investigation. Lewis v. Mazurkiewicz, 915 F.2d 106, 111 (3d Cir. 1990) discussing Strickland, 466 U.S. at 691). According to Strickland, "The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. Counsel's actions are usually based, quite properly, on information supplied by the defendant. In particular, what investigation decisions are reasonable depends critically on such information." 466 U.S. at 691.
In pertinent part, the 2255 hearing produced the following testimony. Travis stated that before the trial he told Defendant he was willing to testify that Michael was lying. (transcript of 2255 proceedings, p. 8). However, Travis acknowledged he did not tell his own attorney, ( id., pp. 14-15), nor did he tell Defendant's attorney that he wanted to testify. ( Id., p. 26). As for Defendant, he testified that he told his own counsel at the beginning of the trial that Travis wanted to testify. ( Id., p. 40). He did not tell this to Travis's attorney. ( Id., p. 44).
Conversely, Defendant's trial counsel testified that: at no time before or during trial did Defendant suggest that Travis might be a witness who would testify in Defendant's favor, ( id., p. 49); Travis's attorney did not suggest at any time that his client might testify for Defendant, ( id., pp. 49-50); and no one either pretrial or during the trial suggested that Travis would be a witness. ( Id., p. 50). Counsel stated that Travis never offered to testify and never said what his testimony would be if he were to testify. ( Id., p. 62). To counsel's knowledge, Travis never told his own counsel he would testify, or at least Travis's attorney did not tell him Travis would testify, and neither did Defendant. ( Id.).
Travis's attorney also testified at the hearing. He stated that during the course of his representation of Travis, Travis never told him that he had information beneficial to Defendant, and that if he had, counsel would have provided it to Defendant's counsel. ( Id., p. 73). Further, if Defendant's counsel had wanted to interview Travis, he would have allowed it, but would have strongly advised his client it was not in his best interests to give out any information. ( Id., p. 73). Neither Defendant nor anyone else ever told him at anytime that Travis had information helpful to Defendant, ( id., p. 75), and no one told him Travis wanted to testify on Defendant's behalf. ( Id., pp. 75-76).
We accept the veracity of Defendant's counsel and Travis's attorney over that of Defendant and Travis. We therefore conclude that Plaintiff's claim fails because, as noted above, defense counsel may rely on information supplied by the defendant when considering the nature and scope of pretrial investigation, and here neither Defendant nor his codefendant told counsel that Travis would testify on Defendant's behalf. See United States v. Ray, 1995 WL 472340, at *3 (E.D. Pa.) (trial counsel not ineffective for failing to call witnesses when the defendant did not inform counsel of the existence of these witnesses before trial).
Defendant raised the following claims for the first time at the 2255 hearing: (1) counsel did not obtain the prison records of Andre Holder when requested by Defendant; (2) counsel did not call Sharetha Cole as a witness; (3) counsel pressured Defendant into not testifying; and (4) at Defendant's resentencing, counsel made him rewrite a letter he had written for the court's consideration so that it made no sense. Defendant's postconviction counsel also raised a new claim, that trial counsel failed to conduct a "formal" investigation.
By "formal" investigation, postconviction counsel means that trial counsel did not hire an investigator, but postconviction counsel does not specify what an investigator would have found.
We will therefore not consider these new claims. The government objected to them at the hearing, and they were raised beyond the one-year statute of limitations for 2255 motions, see 28 U.S.C. § 2255(f), without any attempt to amend the motion or to argue why they should be considered.
The limitations period expired on November 28, 2007, and these claims were raised for the first time at the 2255 hearing on June 26, 2008.
We will issue an order denying the 2255 motion. The order will also deny a certificate of appealability, based on the analysis in this memorandum. However, Defendant is advised that he has the right for sixty (60) days to appeal our order denying his 2255 motion, see 28 U.S.C. § 2253(a), and that our denial of a certificate of appealability does not prevent him from doing so, as long as he also seeks a certificate of appealability from the court of appeals. See Federal Rule of Appellate Procedure 22.
ORDER
AND NOW, this 10th day of October, 2008, it is ordered that:
1. Defendant, Daryl Parker's, motion (doc. 315) under 28 U.S.C. § 2255 is denied.
2. A certificate of appealability is denied.
3. The Clerk of Court shall close this file.