The opinion of the court was delivered by: McAVOY, District Judge.
MEMORANDUM-DECISION & ORDER
Before the Court is Petitioner Keith Collier's motion to
vacate, set aside or correct his sentence pursuant to
28 U.S.C. § 2255.
As this Court noted in its March 30, 2000 Order in this
case,*fn1 although Petitioner identified nine separate "issues
for review," see Petitioner's Motion Under 28 U.S.C. § 2255
(Docket No. 1) (dated January 20, 2000) (hereinafter "Section
2255 Petition"), he discussed only the first eight issues. In an
amendment to his motion filed February 4, 2000, Petitioner
discussed the ninth issue; namely, that he was denied a fair
trial based on a constructive amendment to the Indictment at
trial. See Petitioner's Letter Motion to Amend, at 1
(hereinafter "Amended Section 2255 Petition") (Docket No. 4).
Because this issue was identified in Petitioner's initial
petition and responded to by the Government in its opposition
papers, the Court will view both the initial petition and
subsequent amendment as a single pleading under 28 U.S.C. § 2255.
On October 24, 1997, following a jury trial before this Court,
Petitioner Keith Collier was convicted of conspiring and
attempting to commit bank robbery, in violation of 18 U.S.C. § 371
and 2113(a); using a firearm in relation to a crime of
violence, in violation of 18 U.S.C. § 924(c)(1); possessing a
firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)
and 924(a)(2); and possessing a firearm with an obliterated
in violation of 18 U.S.C. § 922(k) and 924(a)(1). See United
States v. Collier, 172 F.3d 38, 1999 WL 38807, at *1 (2d Cir.
Jan.27, 1999) (Unpublished Table Decision). Petitioner was
sentenced principally to a term of imprisonment of 270 months.
On appeal, Petitioner, moving pro se, raised the following
challenges to his conviction: "(1) that the government's evidence
was insufficient to disprove his defense of entrapment; (2) that
the district court erred in refusing to hold an evidentiary
hearing on his claim of outrageous government conduct; and (3)
that, in sentencing, the court should have departed downward from
the recommended Sentencing Guidelines range of imprisonment on
the ground that, by delaying his arrest, the government engaged
in `sentencing entrapment' or `sentencing factor manipulation.'"
Collier, 1999 WL 38807, at *1. In an unpublished disposition,
the Second Circuit rejected Petitioner's claims and affirmed this
Court's judgment. See id. at *3.
In the instant petition, Collier raises numerous grounds to set
aside his conviction. In the interests of clarity, the Court
grouped these claims into four categories. The first set of
claims, essentially ineffective assistance of trial counsel
claims, allege that trial counsel committed error by: (1) failing
to investigate and call a witness; (2) not permitting Collier to
testify at trial; (3) failing to move for a severance; (4)
failing to object to the testimony of his codefendant, Edward
Jones; (5) failing to object to the Court's jury instructions
with respect to the conspiracy charge; and (6) failing to
investigate Petitioner's prior convictions which resulted in
Petitioner being sentenced as a career offender. See Section
2255 Petition at 1-19; 31-37; 43-45; Gov't Response at 17-28. In
his second set of claims, essentially prosecutorial misconduct
claims, Petitioner alleges that: (1) the government's closing
statement contained improper remarks; and (2) the introduction of
Petitioner's two prior robbery convictions violated a
stipulation. See Section 2255 Petition at 20-30; Gov't Response
at 29-31. In his third set of claims, essentially
trial/sentencing errors, Petitioner alleges that: (1) he was
improperly sentenced; and (2) the Indictment was constructively
amended at trial. See Section 2255 Petition at 45-46; Amended
Section 2255 Petition at 1-4; Gov't Response at 31-34. Lastly,
Petitioner raises a claim of ineffective assistance of appellate
counsel. See Section 2255 Petition at 38-42; Gov't Response at
The Court will address Petitioner's claims seriatim.
A prisoner sentenced by a federal court may move the court that
imposed the sentence to "vacate, set aside or correct the
sentence" where: (1) the sentence was imposed in violation of the
Constitution or laws of the United States; (2) the court was
without jurisdiction to impose such sentence; (3) the sentence
was in excess of the maximum authorized by law; or (4) the
sentence is otherwise subject to collateral attack. See
28 U.S.C. § 2255 (Supp. 1999); see also Chambers v. United States,
106 F.3d 472, 474 (2d Cir. 1997) (internal citations omitted).
A. Ineffective Assistance of Trial Counsel and the
"A defendant challenging his conviction and sentence on the
basis of ineffective assistance of counsel bears a heavy burden."
United States v. Diaz, 176 F.3d 52, 112 (2d Cir.), cert.
denied, ___ U.S. ___, 120 S.Ct. 181, 145 L.Ed.2d 153 (1999). "To
prevail on a claim of ineffective assistance of counsel, a habeas
petitioner must establish two elements: (1) that counsel's
performance `fell below an objective standard of reasonableness,'
and (2) that there is a `reasonable probability' that, but for
the deficiency, the outcome of the proceeding would have been
different." McKee v. United States, 167 F.3d 103, 106 (2d Cir.
1999) (quoting Strickland v. Washington, 466 U.S. 668, 688,
694, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984)). Courts apply the same standard when
reviewing claims of ineffectiveness of appellate counsel. See
id. (citing Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.),
cert. denied, 513 U.S. 820, 115 S.Ct. 81, 130 L.Ed.2d 35
In establishing that counsel's performance was deficient, "it
is not sufficient for the habeas petitioner to show merely that
counsel omitted a nonfrivolous argument, for counsel does not
have a duty to advance every nonfrivolous argument that could be
made." Mayo, 13 F.3d at 533; see also Purdy v. United States,
208 F.3d 41, 44 (2d Cir. 2000) ("The performance inquiry is
contextual; it asks whether defense counsel's actions were
objectively reasonable considering all the circumstances."). In
making this inquiry, "[j]udicial scrutiny of counsel's
performance must be highly deferential." Strickland, 466 U.S.
at 689, 104 S.Ct. 2052 ("It is all too tempting for a defendant
to second-guess counsel's assistance after conviction or adverse
sentence, and it is all too easy for a court, examining counsel's
defense after it has proved unsuccessful, to conclude that a
particular act or omission of counsel was unreasonable."). As the
Second Circuit recently stated in McKee:
A fair assessment of attorney performance requires
that every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the
circumstances of counsel's challenged conduct, and to
evaluate the conduct from counsel's perspective at
the time. Actions or omissions by counsel that might
be considered sound trial strategy do not constitute
ineffective assistance, and a court may not use
hindsight to second-guess counsel's tactical choices.
A petitioner may rebut the suggestion that the
challenged conduct reflected merely a strategic
choice, however, by showing that counsel omitted
significant and obvious issues while pursuing issues
that were clearly and significantly weaker.
167 F.3d at 106 (internal quotations and citations omitted).
"In evaluating the prejudice component of the Strickland
test, a court must determine whether, absent counsel's deficient
performance, there is a reasonable probability that the outcome
of the proceeding would have been different." Mayo, 13 F.3d at
534; see also McKee, 167 F.3d at 106. "`A reasonable
probability is a probability sufficient to undermine confidence
in the outcome.'" Mayo, 13 F.3d at 534 (quoting Strickland,
466 U.S. at 694, 104 S.Ct. 2052). In contrast to the performance
determination, "the prejudice analysis may be made with the
benefit of hindsight." McKee, 167 F.3d at 106-07 (citing
Lockhart v. Fretwell, 506 U.S. 364, 371-72, 113 S.Ct. 838, 122
L.Ed.2d 180 (1993)); Mayo, 13 F.3d at 534. The Court will now
turn to Petitioner's ineffective assistance of counsel claims
with these standards in mind.
1. Failure to Call Jamal Cox as a Witness
Petitioner contends that trial counsel was ineffective for
failing to call Jamal Cox as a trial witness. Specifically,
Petitioner claims that Cox would have testified that: (1) it was
Cox, rather than Petitioner, who invited James Williams, the
Government's witness who alerted police to the planned robbery,
to the barbecue where the robbery was discussed; and (2) it was
Williams, rather than Petitioner, who stated that the robbery
would be "mad easy."
"The decision whether to call any witnesses on behalf of the
defendant, and if so which witnesses to call, is a tactical
decision of the sort engaged in by defense attorneys in almost
every trial." United States v. Eisen, 974 F.2d 246, 265 (2d
Cir. 1992) (internal quotation omitted), cert. denied,
507 U.S. 998, 113 S.Ct. 1619, 123 L.Ed.2d 178 (1993). Accordingly, trial
counsel's decision not to call Jamal Cox to testify cannot form
the basis of a meritorious ineffective assistance claim. See,
e.g., United States v. Smith, 198 F.3d 377, 386 (2d Cir. 1999);
United States v. Schmidt, 105 F.3d 82, 90 (2d Cir.) ("[T]he
decision of whether to call specific witnesses — even ones that
might offer exculpatory evidence — is ordinarily not viewed as a
lapse in professional representation."), cert. denied,
522 U.S. 846, 118 S.Ct. 130, 139 L.Ed.2d 80 (1997); United States v.
Luciano, 158 F.3d 655, 660 (2d Cir. 1998), cert. denied,
526 U.S. 1164, 119 S.Ct. 2059, 144 L.Ed.2d 224 (1999); United States
ex rel. Walker v. Henderson, 492 F.2d 1311, 1314 (2d Cir.)
("[T]he decision to call or bypass particular witnesses is
peculiarly a question of trial strategy, which courts will
practically never second-guess.") (internal citations and
footnote omitted), cert. denied, 417 U.S. 972, 94 S.Ct. 3179,
41 L.Ed.2d 1144 (1974). Given that Cox's testimony would have
implicated Petitioner in the robbery and, thus, was more harmful
than helpful to Petitioner, trial counsel had a sound strategic
reason for deciding not to ...