United States v. Angell
United States v. Angell
Opinion of the Court
MEMORANDUM OPINION
Before the Court is pro se Petitioner John Angell’s Motion to Vacate, Set Aside, or Correct his Sentence Pursuant to 28 U.S.C. § 2255. For reasons that follow, the Court finds that the grounds pursuant to which Petitioner brings his motion lack merit. Consequently, the Court will deny the Motion without an evidentiary hearing.
1. PROCEDURAL HISTORY
Petitioner was charged by Superseding Indictment with eleven counts of traveling for the purposes of engaging in sex with a minor in violation of 18 U.S.C. § 2423(b) (Counts 1-11), and eleven counts of aggravated sexual abuse of a child and attempt in violation of 18 U.S.C. § 2241(c) (Counts 12-22).
At trial, Minor 1 testified that Petitioner began sexually abusing him when he was seven years old, and that the abuse occurred “most times” that he was alone with Petitioner.
Petitioner appealed, arguing that the evidence was insufficient to support his convictions and that the jury instructions for Counts 12-22 erroneously omitted an element of the offense. The Third Circuit found there was sufficient evidence to support Petitioner’s convictions on all counts, but agreed that the jury instructions on Counts 12-22 were erroneous.
II. STANDARD
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AED-PA”), a prisoner serving a sentence in federal custody may petition the court which imposed the sentence to vacate, set aside, or correct the sentence by asserting that “the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.”
III. ANALYSIS
Petitioner raises three claims based on the alleged ineffectiveness of his-trial counsel: (1) counsel failed to object to various statements made by the Government during closing arguments; (2) counsel failed to move for dismissal under Rule 29; and (3) counsel failed to move Minor l’s videotaped pre-trial interview into evidence as impeachment material. In addition, Petitioner requests a sentence reduction based on his rehabilitation activities in prison.
To prevail on a claim for ineffective assistance of counsel, Petitioner must demonstrate both that his attorney’s performance was deficient and that the deficiency caused him prejudice.
1. Counsel’s Failure to Object During Closing Arguments
First, Petitioner argues that counsel permitted prosecutorial misconduct by failing to object during closing arguments when the Government accused Petitioner of lying, referred to facts not in evidence, and vouched for Minor l’s credibility. These arguments are belied by the record. The Government’s attacks on Petitioner’s credibility merely highlighted inconsistencies between Petitioner’s testimony and other record evidence, and therefore did not exceed the boundaries of permissible advocacy.
Next, Petitioner argues that counsel failed to' move for dismissal based on insufficient evidence, but counsel did so at the close of the Government’s case, and the Court denied'the motion.
3. Counsel’s Failure to Move Minor 1’s Videotaped Interview into Evidence
Finally, Petitioner argues that counsel failed to offer a videotaped pretrial interview of Minor 1 by an FBI agent into evidence for impeachment purposes! However, counsel cross-examined Minor 1 at trial regarding the interview and elicited several damaging admissions, including that Minor 1 had described himself as, a “pathological liar” and told the FBI agent that he “lied a lot” and was “heavy into drugs.”
B. Petitioner’s Request for a Sentencing Reduction Based on Post-sentencing Rehabilitation
Petitioner also seeks a sentence reduction because of his postsentencing rehabilitation activities, including obtaining his GED and taking courses in anger management and parenting.
IV. CONCLUSION
For the reasons stated above, Petitioner conclusively fails to establish that his sentence was improper or that his counsel was ineffective. As a result, his motion will be denied without a hearing. Because Petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability shall not issue.
. "In evaluating a federal habeas petition, a District Court must hold an evidentiary hearing '[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.’ ” United States v. Kenley, 440 Fed.Appx. 78, 80 (3d Cir. 2011) (citing 28 U.S.C. § 2255(b)). If the record as a whole “conclusively show[s] that the prisoner is entitled to no relief," a court is not required to hold an evidentiary hearing. United States v. Dawson, 857 F.2d 923, 927 (3d Cir, 1988) (quoting Gov't of the V.I. v, Bradshaw, 726 F.2d 115, 117 (3d Cir. 1984)) (internal quotation marks omitted). Here, the Court finds that the record as a whole conclusively establishes that Petitioner is entitled to no relief. Accordingly, the Court will deny the motion without an evidentiary hearing. Similarly, the Court will deny Petitioner's request that counsel be appointed. E.g., United States v. Brown, Criminal Action No. 99-0730, 2008 WL 1376307, at *3 (E.D. Pa. Apr. 8, 2008) ("The Sixth Amendment does not guarantee a right to counsel in habeas proceedings.”) (citations omitted).
. The case was tried to a jury before the Honorable William H. Yohn, Jr., and was reassigned to the calendar of this Court after Petitioner filed this motion.
. Tr. 67:16-73:6, 103:17-04:9 (11/1/12) (testimony of Minor 1).
. Government Ex. 2; see also Doc. No. 100 (Government's Amended Response to Petition) at 11-13.
. United States v. Angell, 588 Fed.Appx. 161, 163 (3d Cir. 2014)
. Id. at 164.
. Doc. No. 95 (Amended Judgment).
. 28 U.S.C. § 2255(a).
. United States v. DeLuca, 889 F.2d 503, 506 (3d Cir. 1989).
. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); United States v. Shedrick, 493 F.3d 292, 299 (3d Cir. 2007).
. Shedrick, 493 F.3d at 299 (citation and internal quotation marks omitted).
. See United States v. Vaghari, 500 Fed.Appx. 139, 144 (3d Cir. 2012) (explaining that "it is not improper for a prosecutor to refer to a defendant's testimony as ‘lies’ so long as this characterization is ‘a fair comment on the evidence adduced at trial” and not an "inflammatory expression of a prosecutor’s personal belief.’ ”) (quoting United States v. Reilly, 33 F.3d 1396, 1421 (3d Cir. 1994)).
. Specifically, Petitioner argues that the Government improperly referenced a scar on his penis, but Minor 1 and the Government’s urology expert Dr. Lee both testified that Petitioner had such a scar. Tr. 84:16-25 (11/1/12) (testimony of Minor 1); Tr. 109:14-112:10 (11/2/12) (testimony of Dr. Lee). Petitioner also argues that the Government erroneously referred to assaults taking place during "a 10 minute stop,” but this was supported by Minor l’s testimony that the assaults took "[t]en minutes [on] average.” Tr. 135:24-136:2 (11/1/12). Finally, Petitioner complains that the Government made statements about Minor l’s post-assault behavior that were inconsistent with the record, but the Government did not discuss the subject in detail, and in any event, these statements were supported by the record as well. Tr. 86:2-15 (11/1/12) (testimony of Minor 1); Tr. 32:5-15 (11/2/12) (testimony of Minor l’s mother).
. The Government’s statements were a far cry from the type of impermissible witness vouching that occurred in the cases cited by Petitioner. Compare United States v. Smith, 814 F.3d 268, 274 (5th Cir. 2016) (prosecutor's statements that he was "totally convinced” a witness was telling the truth, and that another witness was "worthy of believing” crossed the line into impermissible witness vouching); Hodge v. Hurley, 426 F.3d 368, 377 (6th Cir. 2005) (prosecutor’s statements that witnesses were "absolutely believable” were improper).
. To the extent Petitioner raises an independent claim based on prosecutorial misconduct, this claim is procedurally defaulted because it was not raised on direct appeal, and Petitioner cannot establish cause and prejudice to excuse the default as the underlying claim is meritless. E.g., Hodge v. United States, 554 F.3d 372, 379 (3d Cir. 2009) (citing Bous
. Tr. 7:1-8:14, 78:22-81:9 (11/5/12).
. See Angell, 588 Fed.Appx. at 163. Some of Petitioner’s arguments appear to pertain to his convictions for aggravated sexual assault, which were vacated and thus are not at issue here. Petitioner also argues that the Government failed to'prove that his primary purpose in traveling with Minor 1 was to commit criminal sexual activity because Petitioner had a separate, pecuniary motive in making the trips, but this argument -was rejected on appeal and is foreclosed by Third Circuit precedent. Id. (explaining that the Government was required to prove only that " 'a significant or motivating purpose' of the trav- ' el was to facilitate the abuse,” and that the evidence was sufficient to support such a finding) (quoting United States v. Hayward, 359 F.3d 631, 637-38 (3d Cir. 2004)).
. Tr. 128:17-133:19 (11/1/12).
. See generally Dierolf v. Thompson, Civil No. 1:CV-11-01999, 2013 WL 2896819, at *20 (M.D. Pa. June 12, 2013) ("Decisions by trial counsel with regard to examination of witnesses are strategic by nature and necessitate a strong level of deference to the attorney’s assessment.”) (citing Diggs v. Owens, 833 F.2d 439, 444-45 (3d Cir. 1987)).
. Doc, No, 97 (Petition) at 15. Although Petitioner states that his Certificates of Completion for these courses are attached to his Petition as "Exhibit A,” no such exhibits appear on the docket, Nonetheless, the Court takes as true' Petitioner's allegation that he has completed a number of educational courses while incarcerated.
. 562 U.S. 476, 481, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011).
. Although the Third Circuit affirmed Petitioner's convictions on Counts 1-11, Petitioner’s sentence on those counts was reduced from 360 to 235 months on resentencing. See Doc. Nos. 68, 95 (Judgment and Amended Judgment).
. See United States v. Renfro, Criminal No. 08-93-ART-CJS-2, 2017 WL 1416869, at *6 (E.D. Ky. Mar. 22, 2017) (holding that request for resentencing based on Pepper was "not cognizable in a § 2255 proceeding absent a showing of a complete miscarriage of justice”); McCullough v. United States, No. 12-1214, 2015 WL 1651270, at *5 (W.D. Tenn. Apr. 14, 2015) (holding that Pepper did not allow petitioner to seek a resentencing under § 2255).
. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L,Ed.2d 542 (2000).
Reference
- Full Case Name
- United States v. John ANGELL
- Status
- Published