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UNITED STATES v. WIGGINS

July 12, 1997

UNITED STATES OF AMERICA
v.
CRAIG E. WIGGINS, Defendant-Petitioner.



The opinion of the court was delivered by: MCAVOY

 Before the Court is petitioner Craig E. Wiggins' motion pursuant to 28 U.S.C. § 2255. Petitioner alleges: (1) ineffective assistance of counsel; (2) an unconstitutional conviction under Bailey v. United States, 516 U.S. 137, 133 L. Ed. 2d 472, 116 S. Ct. 501 (1995); (3) government misconduct; and (4) that the Comprehensive Crime Control Act of 1984 is per se unconstitutional.

 I. BACKGROUND

 On June 8, 1994, petitioner was convicted of interstate travel to commit a crime, carrying a firearm during and in relation to a crime of violence, and interstate transportation of an explosive (Appendix to Brief of Defendant-Appellant at 1183), in violation of 18 U.S.C. § 1952, 924(c)(1), and 844(d). The convictions stemmed from the August 11, 1990, attempted bombing of a single-family residence in Deposit, New York occupied by Wiggins' sister-in-law and brother-in-law. On September 22, 1994, petitioner was sentenced to sixty months on Count One and sixty three months on Count Three, to be served concurrently. As to Count Two, petitioner was sentenced to sixty months, to be served consecutively to Count Three. (Appendix to Brief of Defendant-Appellant at 1184).

 Petitioner appealed his conviction on the grounds that the Court erred in: (1) failing to dismiss the indictment on the ground of double jeopardy; (2) failing to dismiss on the grounds of pre-indictment and pre-arrest delay; (3) failing to dismiss the indictment on grounds of denial of a speedy trial; (4) precluding further cross-examination of witnesses Patti Charles and Richard Kadien; (5) refusing to admit the affidavit of an unavailable alibi witness; (6) admitting vital evidence without the prosecution establishing a proper chain of custody; (7) failing to dismiss as to Counts One and Two; (8) charging the jury; and (9) sentencing the defendant because of double counting, and not following the guideline procedure. By summary order filed July 11, 1995, the United States Court of Appeals for the Second Circuit affirmed petitioner's judgment of conviction. See United States v. Wiggins, 60 F.3d 811 (1995).

 On January 3, 1997, petitioner filed this motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Petitioner raises the following four arguments, none of which were raised on appeal: (1) ineffective assistance of counsel; (2) an unconstitutional conviction under Bailey v. United States, 516 U.S. 137, 133 L. Ed. 2d 472, 116 S. Ct. 501 (1995); (3) government misconduct; and (4) that the Comprehensive Crime Control Act of 1984 is per se unconstitutional.

 II. DISCUSSION

 "Section 2255 may not be employed to relitigate questions which were raised and considered on direct appeal." Barton v. United States, 791 F.2d 265, 267 (2d Cir. 1986) (per curiam). Moreover, failure to raise a particular ground on direct appeal will bar consideration of that claim in a § 2255 motion unless the movant can show cause for failing to raise the issue, and prejudice resulting therefrom. See United States v. Frady, 456 U.S. 152, 167-68, 71 L. Ed. 2d 816, 102 S. Ct. 1584 (1982).

 A. Ineffective Assistance of Counsel

 The Second Circuit formally adopted the cause and prejudice test in Campino v. United States, 968 F.2d 187, 189 (2d Cir. 1992), holding that "failure to raise a claim on direct appeal is itself a default of normal appellate procedure, which a defendant can overcome only by showing cause and prejudice." However, Billy-Eko v. United States, 8 F.3d 111 (2d Cir. 1993) established for ineffective assistance claims an exception to the normal Campino rule that a failure to raise a claim on direct appeal amounts to a procedural default. Douglas v. United States, 13 F.3d 43, 47 (2d Cir. 1993); see also Riascos-Prado v. United States, 66 F.3d 30 (2d Cir. 1995). In Billy-Eko, the Second Circuit held that defendants alleging ineffective assistance claims not brought on direct appeal would be permitted to raise those claims in a § 2255 motion when: (1) an accused is represented on appeal by the same attorney as at trial; or (2) the claim is not based solely on the record developed at trial. In the case at hand, because petitioner was represented by Michael A. Jacobs both at trial and on appeal, he satisfies the Billy-Eko test. Therefore, petitioner does not need to show cause and prejudice in order to bring an ineffective assistance of counsel claim.

 In order to establish his ineffective assistance claim, petitioner must show: (1) that the attorney's representation was unreasonable under prevailing professional norms; and (2) that there is a reasonable probability that, but for the counsel's unprofessional errors, the result of the initial proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 690, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984); see also United States v. Workman, 110 F.3d 915 (2d Cir. 1997). In applying this standard, the Court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689.

 The Court now turns to petitioner's claim of ineffective assistance, which is based upon counsel's alleged: (1) refusal to allow petitioner to testify at trial and indication he would withdraw as counsel if petitioner did testify; (2) failure to investigate and research the law in relation to the facts; (3) failure to move for dismissal of Counts One and Two; (4) failure to move for dismissal of the indictment because of bad faith on behalf of government officials in failing to preserve exculpatory evidence; (5) failure to retain an independent expert chemist to test the water solution used by the government's expert and to challenge the scientific reliability of the Greiss test; (6) failure to elicit favorable testimony during cross-examination; (7) failure to request a jury instruction on the trustworthiness of an alleged statement made by defendant; (8) failure to file a motion to arrest judgment pursuant to Fed.R.Crim.Proc. 34; (9) failure to raise, on direct appeal, the issue of insufficient evidence to support the conviction; (10) failure to raise, on direct appeal, the issue of violation of Fed.R.Evid. 615, the Rule of Sequestration of Witnesses/Single Agent; (11) counsel's cumulative errors and omissions. The Court finds each of these claims to be without merit.

 1) Refusal to allow testimony and indication of withdrawal

 "A criminal defendant clearly cannot be compelled to remain silent by defense counsel." United States v. Teague, 953 F.2d 1525 (11th Cir. 1992); see also Brooks v. Tennessee, 406 U.S. 605, 32 L. Ed. 2d 358, 92 S. Ct. 1891 (1972) (whether to testify not only an important tactical decision for a defendant, but also matter of constitutional right); Harris v. New York, 401 U.S. 222, 225, 28 L. Ed. 2d 1, 91 S. Ct. 643 (1971) (criminal defendant is privileged to testify in his own defense or to refuse to do so). Petitioner primarily relies on two cases, Nichols v. Butler, 953 F.2d 1550 (11th Cir. 1992) and United States ex rel. Wilcox v. Johnson, 555 F.2d 115 (1977), which both held that a threat by an attorney to withdraw during a trial in order to coerce the defendant to relinquish his right to testify constitutes ineffective assistance of council. Nichols, 953 F.2d at 1553; Wilcox, 555 F.2d at 120.

 In the case at bar petitioner provides no proof that his trial counsel either refused to allow petitioner to testify at trial or indicated that he would withdraw as counsel if petitioner did testify. The record does confirm that trial counsel recommended to petitioner that he should refrain from testifying. (Tr. at 1005). However, nowhere in the record is there evidence of trial counsel's refusal to allow petitioner to testify or threatening to withdraw. Petitioner relies on the following exchange:

 
The Court: All right. Mr. Wiggins, what do you have to say about that?
 
Mr. Jacobs: In regard to--part of the reason you've agreed with me you should not take the witness stand.
 
The Defendant: It is my understanding that the Assistant United States Attorney threatened me with governmental obstruction and perjury, no matter
 
what I said.

 (Tr. at 1006). Petitioner points to Jacobs' statement, specifically " part of the reason you've agreed with me you should not take the stand," as proof that there were other reasons petitioner was not testifying. Petitioner claims that one of these other reasons was that trial counsel Jacobs was going to withdraw as counsel if petitioner did testify. However, "in a subsequent attack on the conviction the defendant must produce something more than a bare, unsubstantiated . . . self-serving allegation that his lawyer (in violation of professional standards) forbade him to take the stand." Underwood v. Clark, 939 F.2d 473, 476 (7th Cir. 1991). Here, the only evidence that petitioner offers in support of his claim is his own statement that trial counsel forbade him from taking the stand. Because petitioner offers no other evidence, this claim must fail.

 (2) Failure to investigate and research the law

 Petitioner's brief in support of his § 2255 motion alleges that he "specifically advised trial counsel . . . that there was no explosive in the pipe, that it contained potassium nitrate and charcoal. There was a missing third ingredient and there was never any danger to anybody." (Pet. Brief at 18). Petitioner's second claim is that trial counsel failed to investigate and research the law regarding the missing element (black powder). Had trial counsel researched the law, petitioner argues, he would have presented the fact that there was a missing element through the testimony of petitioner himself. Hence, such testimony would have supported the position that petitioner had nothing more than a dysfunctional pipe, as opposed to a destructive device.

 Petitioner's claim is not supported by the actions of counsel at trial. Trial counsel cross-examined the government's expert witnesses at length as to the contents of the pipe:

 
Rowland C. Pogue, Jr.:
 
Q. Would you find sulphur in other compounds?
 
A. Yeah. You would find sulphur in other compounds.
 
Q. How many other compounds would you find sulphur in, hundreds?
 
A. Yeah, could be.
 
A. Black powder, it would be finely ground.
 
Q. But sulphur, isn't it a true statement, you're going to find sulphur in many compounds . . . it could be found in its elemental state and it could be found in ...

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