This Amended Memorandum clarifies the issues first addressed by the Court in response 1

to the § 2255 Petition of Perry Smith in the Court’s Memorandum and Order of December 10,

2009. This amendment was prompted by the government counsel’s December 11, 2009 letter. 

The Court’s ruling is not changed by this amended memorandum.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA : CRIMINAL ACTION

: NO. 04-472-1

v. :

: CIVIL ACTION

PERRY SMITH : NO. 09-929

AMENDED MEMORANDUM1

PRATTER, J. DECEMBER 14, 2009

Perry Smith, convicted by a jury on August 17, 2004 of two counts of conspiracy to

commit robbery which interfered with interstate commerce and using and carrying a firearm

during a crime of violence, and aiding and abetting, unsuccessfully appealed his judgment and

sentence all the way to seeking a writ of certiorari from the United States Supreme Court. Now,

he hopes to invoke 28 U.S.C. §2255 to vacate, set aside or correct his sentence by claiming that

he was denied effective assistance of counsel at trial. Having had the opportunity to present such

evidence and argument to the Court as was available to him, Mr. Smith meets with no greater

success by way of this avenue than he did with his direct appeals. Specifically, the Court

concludes that Mr. Smith received entirely appropriate assistance from his trial counsel prior to

and during the trial. His motion is without merit.

During the evidentiary hearing prompted by Mr. Smith’s motion, Mr. Smith called his

former counsel, Andrew F. Erba, Esquire, as a witness. The upshot of Mr. Smith’s claim in his
During the hearing, Mr. Smith’s counsel also suggested that Mr. Smith elected to testify 2

at trial (an admittedly material strategic decision in many respects) because, being misadvised

about pleading guilty, Mr. Smith proceeded to trial. 11/17/09 Tr. at 49.

2

written motion was that Mr. Erba (1) gave Mr. Smith erroneous advice concerning whether or not

Mr. Smith could or should plead guilty, (2) neglected to secure a defense investigator’s services 2

and (3) failed to consult with Mr. Smith or follow Mr. Smith’s suggestions for themes of

examination of witnesses during the trial. During the hearing Mr. Smith concentrated on the

issue of counsel’s advice (or lack thereof) concerning the possibility of a guilty plea (though Mr.

Smith declined to acknowledge the impact or circumstances of his trial testimony). The second

issue was reconfigured somewhat. The third issue was indeed pursued. 

As the only witness called by Mr. Smith at the hearing, Mr. Erba testified that during his

representation of Mr. Smith he regularly conferred with Mr. Smith to discuss options for trying to

respond to the serious charges against Mr. Smith. At the hearing, Mr. Erba was questioned at

length about Mr. Smith’s supposed focus on endeavoring to prove that Mr. Smith was not

physically present in the same room at Shernoff Salads where and when co-defendant Kevin

Cleveland shot Heidi Shernoff. In response to this questioning, and consistent with the Court’s

distinct recollection of the actual trial in this matter, Mr. Erba testified that the issue of where Mr.

Smith was at the time of the shooting was of no material moment because during the trial there

was no suggestion or allegation that Mr. Smith was present in, or even near, the room where Mr.

Cleveland shot Ms. Shernoff. The charges against Mr. Smith were not dependent upon Mr.

Smith’s mere proximity (or distance) from Mr. Cleveland at that moment.

Moving into other aspects of Mr. Smith’s challenge, Mr. Erba also testified that during

the pendency of the prosecution Mr. Smith never expressed any interest in pleading guilty to all
 Mr. Smith himself did not testify at the hearing. The merely conclusory affidavit he 3

submitted with his petition remained the only expressions by him for the Court’s consideration

regarding this Motion.

3

of the charges against him, although it appears Mr. Smith preferred to think - - erroneously - -

that the federal prosecutors would engage in plea bargaining in a manner similar to what Mr.

Smith had experienced in state prosecutions, namely, foregoing some charges in exchange for a

guilty plea to other charges. Mr. Erba testified that more than once he expressly disabused Mr.

Smith of the possibility of pleading guilty to only some of the charges against him. Mr. Erba

explained repeatedly to Mr. Smith that federal prosecutors would not plea bargain in that fashion. 

Mr. Erba also testified that Mr. Smith never said he wanted to plead guilty to all of the charges.

Mr. Smith’s third argument, to wit, that Mr. Erba refused to consult with Mr. Smith

during the trial or ask questions of witnesses that Mr. Smith thought would “change the

outcome” of the case was no more efficacious than his other grounds. Indeed, Mr. Erba could

not even venture a guess as to the basis for Mr. Smith’s argument in this regard, and no specifics

were suggested by Mr. Smith or his counsel. 3

There is no question that Mr. Smith has a constitutional right to effective assistance of

counsel as he deals with criminal charges. See Strickland v. Washington, 466 U.S. 668, 684-686

(1984). There is also no question that Mr. Smith failed to sustain his burden to persuade the

Court - - as he would be obliged to do - - that Mr. Erba’s “conduct so undermined the proper

functioning of the adversarial process that the trial cannot be relied on as having produced a just

result.” Id. at 686. Mr. Smith showed neither that Mr. Erba’s performance fell below any

objective standard of reasonableness nor that but for some supposed error (of which the Court
 It is not clear what “outcome” Mr. Smith claims would have been different. By some of 4

his arguments, such as the notion that Mr. Erba should have pursued different themes or lines of

questions, Mr. Smith appears to suggest he would not have been found guilty of some or all of

the charges. By the same token, however, Mr. Smith also argues he wanted to plead guilty

instead of pursue trial, thereby perhaps suggesting his sentence would have been more lenient. 

This sentencing “outcome” is at least consistent with the title of Mr. Smith’s motion

concentrating on changing his sentence. However, the record here is utterly devoid of any basis

for speculating as to what - - other than refraining from testifying as he did during the trial on a

significant issue in a way that was inherently not believable - - would have led to a materially

different sentence. These competing arguments do not augment or complement each other. They

are essentially at odds with each other. 

 By so stating Mr. Smith’s failure to meet his evidentiary obligations under Strickland 5

the Court is not suggesting that Mr. Erba’s performance - - either as observed directly by the

Court during the actual trial or as addressed during the hearing on the pending motion - - was

anything other than in keeping with professional standards. In addition, the Court finds Mr.

Erba’s testimony at the hearing on the pending motion to have been temperate, credible and

useful on all pertinent points.

4

has not been made aware) the outcome as to Mr. Smith likely would have been different. Id. at 4

687.5

Accordingly, the Court will deny Mr. Smith’s motion and, because the Court also

concludes that Mr. Smith has not made a substantial showing of a denial of any constitutional

right, no certificate of appealability will be issued. 

BY THE COURT

 /s/ Gene E.K. Pratter 

Gene E. K. Pratter

United States District Judge