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April 11, 2000


The opinion of the court was delivered by: McAVOY, District Judge.


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 serial number, 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 See United States v. Collier, 172 F.3d 38, 1999 WL 38807, at *1 (2d Cir. Jan.27, 1999) (Unpublished Table Decision).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 In an unpublished disposition, the Second Circuit rejected Petitioner's claims and affirmed this Court's judgment.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 34-35.

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 Strickland Standard

"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 (1994)).

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 tactical 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 ...

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