United States v. Penn, Criminal No. 12-240

UNITED STATES OF AMERICA, v. JESSE NATHANIEL PENN, JR., Defendant.

Criminal No. 12-240

Civil Action No. 19-37

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

November 13, 2020

Judge Nora Barry Fischer

MEMORANDUM OPINION

I. INTRODUCTION

In this case, Defendant Jesse Nathaniel Penn, Jr. ("Penn") moves pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct his conviction for violating 18 U.S.C. § 922(g)(1) and sentence of 204 months' incarceration. (Docket Nos. 201; 208). Specifically, Penn claims that his trial counsel rendered ineffective assistance of counsel during pretrial suppression proceedings and plea negotiations. (Docket Nos. 201; 204; 208; 209; 220; 238). The Government counters that Penn has failed to meet his burden to demonstrate that his conviction and sentence should be set aside. (Docket Nos. 217; 222). Penn's motions have been exhaustively briefed and supplemented with relevant evidence from the parties. After careful consideration of the parties' arguments, and for the following reasons, Penn's motions [201] [208] are denied to the extent he seeks to vacate his conviction and sentence based upon alleged ineffective assistance of counsel.

II. BACKGROUND

The essential facts of this matter were set forth by the United States Court of Appeals for the Third Circuit.

In the spring of 2011 Penn was staying at his estranged wife Gineara's house. On June 16, law enforcement officers entered Gineara's home to arrest Penn for a probation violation. While securing the premises, an officer noticed a bulletproof vest in plain sight in the basement. Other officers found Penn on the second floor. After obtaining a search warrant for contraband related to the vest, officers discovered that a backpack near the vest contained a pink .380 Taurus handgun, a Smith & Wesson revolver, and ammunition. About a foot from the backpack, officers found a shoebox containing official papers in Penn's name and three cell phones. On the car ride to the county jail, Penn asked what had been found in the house. When a detective told him "two guns and a vest," Penn asked "is there anything I can do to make those guns go away?"

United States v. Penn, 616 F. App'x 524, 525 (3d Cir. 2015). The probation warrants were issued after Penn was identified as a suspect in a June 7, 2011 shooting of David Debold in East Pittsburgh and charged with related offenses in state court. (Docket No. 203). He was acquitted of those charges after a trial in state court in March of 2013. (Id.).

However, Penn was charged in federal court with violating 18 U.S.C. § 922(g)(1) for being a felon in possession of firearms and ammunition which were seized on June 16, 2011. (Docket No. 1). The case was prosecuted by former Assistant United States Attorney Paul Kovac, defended by former Assistant Federal Public Defender W. Penn Hackney, and presided over by the Honorable Terrence F. McVerry, all of whom have since retired. (See Docket Report). During pretrial proceedings, Penn moved to suppress the firearms and other evidence seized during the June 16, 2011 searches. A hearing was held and Judge McVerry denied his motion, finding that Gineara Penn had consented to the officers' entry into the residence and that the protective sweep of the house was reasonable under Fourth Amendment jurisprudence. See United States v. Penn, 2013 WL 5230802 (W.D. Pa. Sept. 17, 2013). Penn went to trial and was convicted of violating 18 U.S.C. § 922(g)(1). (Docket No. 75). At sentencing, Penn was found to be subject to enhancedpenalties under the Armed Career Criminal Act 18 U.S.C. § 924(e) given his three prior serious drug offenses and was sentenced to 204 months' incarceration. (Docket Nos. 86; 97).

Penn appealed his conviction and sentence. The Third Circuit, finding error in the admission of Rule 404(b) evidence regarding a prior firearms conviction, vacated the judgment and remanded for a new trial. Penn, 616 F. App'x at 527. The Court of Appeals declined to consider Penn's other argument challenging Judge McVerry's ruling precluding certain text message evidence. Id. at n.2. On remand, a pretrial conference was held on June 5, 2015 and there was some discussion between AUSA Kovac and AFPD Hackney concerning a potential plea but a plea agreement was not reached. A second trial was held in August of 2015 and Penn was once again convicted of violating § 922(g)(1). (Docket No. 151). In advance of the sentencing hearing, the defense was afforded multiple continuances to prepare and submit arguments challenging the ACCA enhancement. (Docket Nos. 158-161; 163-168; 171). Through counsel, Penn lodged objections to his designation as an armed career criminal, but Judge McVerry overruled those objections, and sentenced him once again to 204 months' incarceration. (Docket Nos. 172; 173; 174).

Penn appealed this judgment as well, but the Court of Appeals affirmed his conviction and sentence on August 30, 2017. See United States v. Penn, 870 F.3d 164 (3d Cir. 2017). In a lengthy precedential opinion, the Court of Appeals denied his challenge to the voir dire. Id. The Court of Appeals also rejected his arguments that the felon-in-possession statute was unconstitutional and that his prior convictions were not "serious drug offenses" under the ACCA, as both were foreclosed by binding Third Circuit precedent. Id. at n.2 (citing United States v. Singletary, 268 F.3d 196, 204-05 (3d Cir. 2001) and United States v. Henderson, 841 F.3d 623, 631 (3d Cir. 2016)).Penn filed a petition for a writ of certiorari with the Supreme Court of the United States but it was denied on January 8, 2018. Penn v. United States, 138 U.S. 700 (2018).

Penn initiated these § 2255 proceedings with a series of filings received by the Court on January 15, 2019 including a motion to vacate, motion for discovery, affidavit and brief in support. (Docket Nos. 201; 202; 203; 204). He also attached documentary evidence to his submissions. (Docket No. 204). In response to the Court's Miller Order, Penn filed an amended motion to vacate, brief in support and a supplement on February 21, 2019. (Docket Nos. 208; 209; 210). After receiving extensions of time, the Government submitted its response and supporting evidence on June 13, 2019. (Docket No. 217). Penn countered by filing a motion for summary judgment on August 14, 2019 which the Court construed as a reply brief. (Docket No. 220). The Government filed a sur-reply brief on August 30, 2019. (Docket No. 222).

On October 16, 2019, Penn separately submitted a motion for leave to file a supplemental pleading raising a claim under Rehaif v. United States, 139 S. Ct. 2191 (2019). (Docket No. 227). The Government responded on October 25, 2019. (Docket No. 230). Penn then proceeded to file additional motions seeking the U.S. Attorney's Office and Federal Public Defender's Office to produce additional evidence concerning plea negotiations including emails to him. Both offices responded that no such emails existed, as they had previously. After receiving leave of court, Penn submitted a reply brief as to the Rehaif issue and a further supplement regarding the plea negotiations. (Docket No. 238). Counsel was appointed to represent Penn on the Rehaif claim on May 28, 2020. (Docket No. 239).

Given all of these submissions, Penn's motions to vacate alleging ineffective assistance of counsel are fully briefed and ripe for disposition.

III. LEGAL STANDARD

A prisoner in federal custody may move to vacate his sentence under 28 U.S.C. § 2255 if such "sentence was imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255(a). As a collateral challenge, a motion under § 2255 is "reviewed much less favorably than a direct appeal of the sentence." United States v. Travillion, 759 F.3d 281, 288 (3d Cir. 2014). Section 2255 relief "is available only when 'the claimed error of law was a fundamental defect which inherently results in a complete miscarriage of justice, and . . . present[s] exceptional circumstances where the need for the remedy afforded by the writ . . . is apparent.'" Id. (quoting Davis v. United States, 417 U.S. 333, 346 (1974)).

"A prisoner seeking relief on the grounds of ineffective assistance of counsel bears the burden to demonstrate two requirements," United States v. Seeley, 574 F. App'x. 75, 78 (3d Cir. 2014), which were initially set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). In order to prevail on a claim of ineffective assistance of counsel under Strickland, a defendant "must establish that (1) the performance of counsel fell below an objective standard of reasonableness; and, (2) counsel's deficient performance prejudiced the defense." United States v. Otero, 502 F.3d 331, 334 (3d Cir. 2007) (citing Strickland, 466 U.S. at 688, 694); see also Roe v. Flores-Ortega, 528 U.S. 470, 476-77 (2000) (citing Strickland, 466 U.S. at 688, 694) (same). The United States Court of Appeals for the Third Circuit has "endorsed the practical suggestion in Strickland [that the Court may] consider the prejudice prong before examining the performance of counsel prong 'because this course of action is less burdensome to defense counsel.'" United States v. Lilly, 536 F.3d 190, 196 (3d Cir. 2008) (quoting United States v. Booth, 432 F.3d 542, 546 (3d Cir. 2005)); see also Strickland, 466 U.S. at 697 ("If it is easier todispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.").

A district court must order an evidentiary hearing in a federal habeas case if a defendant's § 2255 allegations raise an issue of material fact. United States v. Biberfeld, 957 F.2d 98, 102 (3d Cir. 1992). But, if there is "no legally cognizable claim or the factual matters raised by the motion may be susceptible of resolution through the district judge's review of the motion and records in the case," the motion may be decided...