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.
"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.