NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 18-3169

UNITED STATES OF AMERICA

v.

DAVID BEST, Appellant

On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Criminal No. 2-13-cr-00195-001) District Judge: Honorable Arthur J. Schwab

Argued September 10, 2020

Before: CHAGARES, HARDIMAN, and MATEY, Circuit Judges.

(Opinion filed: October 16, 2020)

Laurel Gift Schnader Harrison Segal & Lewis 120 Fifth Avenue Suite 2700 Pittsburgh, PA 15222

Bruce P. Merenstein [ARGUED] Schnader Harrison Segal & Lewis 1600 Market Street Suite 3600 Philadelphia, PA 19103 Counsel for Appellant

Laura S. Irwin [ARGUED] Office of United States Attorney 700 Grant Street Suite 4000 Pittsburgh, PA 15219 Counsel for Appellee

OPINION

MATEY, Circuit Judge.

After a jury convicted David Best for narcotics and firearms offenses, Best filed a

motion under

challenging, among other things, his attorney’s

effectiveness. The District Court denied the motion based on the trial record and the

Judge’s recollections of the trial, but without an evidentiary hearing. Best appeals that

decision and, finding no error, we will affirm.

I. BACKGROUND

A grand jury indicted Best with violating a host of laws related to a drug distribution

conspiracy, including, most seriously, death resulting from drug consumption. Best

pleaded not guilty to all charges and, represented by Stanton D. Levenson, proceeded to

trial. Over eight days, the jury heard from more than 30 witnesses, including Best. Best

admitted to selling drugs, conspiring with others to do so, and repeatedly burglarizing a

pharmacy to steal pain pills. But he denied brandishing a firearm or causing an overdose

 This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. 2 death. After deliberations, the jury acquitted Best of the death resulting charge but found

him guilty on all other counts. Best was later sentenced to 288 months of imprisonment.

Still represented by Levenson, Best appealed, alleging insufficient evidence and

sentencing errors. We affirmed. United States v. Best,

(3d Cir. 2016),

cert. denied,

(Oct. 3, 2016). Then, aided by new counsel, Best filed a motion

under

to vacate his conviction, arguing Levenson provided ineffective

assistance by, among other things, falling asleep during his trial.

The District Court denied Best’s motion without an evidentiary hearing. Best

“totally . . . failed to show that counsel slept during any portion, much less a substantial

portion, of the trial,” the District Court wrote, so he could not prove the prejudice required

to make out an ineffective assistance claim. (App. at 27.) That conclusion mirrored the

Judge’s recollection that, while presiding over the trial, Levenson did not fall asleep. The

District Court declined to issue a certificate of appealability, but we granted Best’s request

solely as to the sleeping counsel claim.1

II. DISCUSSION

Best argues that the District Court abused its discretion by declining to hold an

evidentiary hearing before denying his petition. Such hearings are required “[u]nless the

motion and the files and records of the case conclusively show that the prisoner is entitled

1 The District Court had jurisdiction under

and

. We have jurisdiction under

and 2253. We review the District Court’s factual findings for clear error, its decision not to grant an evidentiary hearing for abuse of discretion, and exercise plenary review over legal conclusions. United States v. Scripps,

(3d Cir. 2020). 3 to no relief.”

(b). “In considering a motion to vacate a defendant’s

sentence, ‘the court must accept the truth of the movant’s factual allegations unless they

are clearly frivolous on the basis of the existing record.’” United States v. Booth,

(3d Cir. 2005) (quoting Gov’t of V.I. v. Forte,

(3d Cir. 1989)).

But an evidentiary hearing is not required where the petitioner has no right to relief either

because “(1) the petitioner’s allegations, accepted as true, would not entitle the petitioner

to relief, or (2) the allegations cannot be accepted as true because they are contradicted by

the record, inherently incredible, or conclusions rather than statements of fact.” United

States v. McCoy,

(3d Cir. 2005) (quoting Engelen v. United States,

(8th Cir. 1995)).

A. The District Court’s Factual Findings Were Not Clearly Erroneous

Best first argues that the District Court erred in denying him an evidentiary hearing

because “the pleadings and existing record alone,” (Opening Br. at 7), do not “conclusively

show that [he] is entitled to no relief,”

(b). In the personal affidavit he

submitted in support of his motion, Best stated that he “recall[ed] Mr. Levenson nodding

off and falling asleep on several occasions,” one of which was during the testimony of

Amanda Feltner, a technician at Medfast, the pharmacy Best repeatedly robbed. (App. at

95.) Best’s motion also states that “a preliminary investigation . . . has revealed that the

Jury Foreman recalls other jurors noting, joking, and laughing” at Levenson’s behavior.

(App. at 83.)

Neither argument shows clear error. Levenson challenged the Government’s

testimony, crossing (and at times re-crossing) nearly all of the government’s witnesses.

4 Other than Levenson’s failure to cross-examine Feltner, Best has identified nothing in the

trial record to support his claim that Levenson fell asleep on any occasion, let alone several.

Without more, his claims are the sort of “vague and conclusory allegations” that may be

dismissed without an evidentiary hearing. United States v. Thomas,

(3d

Cir. 2000). The District Court’s evaluation of the record, “supplemented by the trial judge’s

personal knowledge, conclusively negate[d] the factual predicates asserted by [Best] in

support of his motion for post-conviction relief.” Gov’t of V.I. v. Nicholas,

(3d Cir. 1985); see also United States v. Travillion,

(3d Cir. 2014)

(“[T]he District Judge . . . is uniquely familiar with the overall circumstances of the original

case.”). Accordingly, we conclude that the District Court did not abuse its discretion by

declining to hold an evidentiary hearing.

B. There Was No Prejudice

Best also argues that the District Court erred in holding that he needed to prove that

he was prejudiced by Levenson’s conduct. In Strickland v. Washington,

(1984) the Supreme Court set forth the now-familiar two-part test for reviewing claims of

ineffective attorney assistance. First, counsel’s performance must be “deficient”—so

wanting that it falls below “an objective standard of reasonableness”; second, that deficient

performance must prejudice the defendant.

at 687–88. In certain limited contexts,

prejudice may be so likely that “the cost of litigating [its] effect in a particular case is

unjustified,” and may be presumed. United States v. Cronic,

(1984). So,

no showing of prejudice is necessary, for example, “if counsel entirely fails to subject the

prosecution’s case to meaningful adversarial testing.”

.

5 Best does not meet that standard because he has failed to establish that Levenson

slept at all during trial, let alone during a substantial portion of it. Cf. United States v. Ragin,

(4th Cir. 2016) (“[A] defendant’s Sixth Amendment right to counsel is

violated when that defendant’s counsel is asleep during a substantial portion of the

defendant’s trial.”). Best’s jury trial lasted from March 31 to April 10, 2014. It included

the presentation of 32 government witnesses, many with first-hand knowledge of Best’s

conduct, 28 of whom Levenson cross-examined. Feltner, the only person whose testimony

Best specifically claims Levenson slept through, was only one such witness. Even

assuming that lapse, such limited inattention is not “tantamount to no counsel at all.”

(quoting United States v. DiTommaso,

(2d Cir. 1987)). Rather, at most,

the brief “episodes of inattention or slumber” Best alleges require a showing of actual

prejudice. Tippins v. Walker,

(2d Cir. 1996).

And there is none. While Best describes Feltner as a “key witness,” (Opening Br. at

4), he presents no evidence that, had Levenson cross-examined her, “the result of [his trial]

would have been different,” Strickland,

.2 Feltner was the twenty-fifth

government witness to testify. By the time the jury heard from her, multiple witnesses—

including Best’s ex-girlfriend Jade Gagianas (who worked with Feltner at MedFast) and

two of his co-conspirators, Katie Adams and Carlos Martinez—had named him as a

2 “We have endorsed the practical suggestion in Strickland to consider the prejudice prong before examining the performance of counsel prong ‘because this course of action is less burdensome to defense counsel.’” Booth,

(quoting McCoy,

n.6). Because we conclude that Best fails to establish prejudice, we do not review Levenson’s performance. 6 participant in the MedFast burglaries. Levenson cross-examined them to confirm various

aspects of their testimony. Feltner, by contrast, provided only background. She explained

how a pharmacy technician like Gagianas would have had access to controlled medication,

described what the pharmacy looked like after the burglaries, and reviewed videos and

photographs of it following each burglary for the benefit of the jury. She did not identify

Best as the perpetrator of the burglaries.

Even if Feltner had picked out Best as the culprit, it’s not clear how Levenson’s

failure to cross-examine her would have prejudiced him. After Feltner testified, Best took

the stand and admitted to all three of the burglaries. In fact, Best confessed to all of but two

of the charges against him. The two charges he disputed—a count of death after

consumption, for which he was acquitted, and one of brandishing a firearm in furtherance

of drug trafficking, for which he was convicted—were not implicated by Feltner’s

testimony.

Given the evidence at trial, Best “has not demonstrated a ‘reasonable probability’

that the proceeding would have been different” had Levenson cross-examined Feltner.

United States v. Lilly,

(3d Cir. 2008).

III. CONCLUSION

For these reasons, we will affirm the District Court’s dismissal of Best’s motion.

7