1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA :

 : CIVIL ACTION

v. :

 : No. 09-cv-4294

SEAN FERRELL, :

 : 

Defendant. : CRIMINAL ACTION

:

 : No. 04-cr-575

 : No. 04-cr-730

MEMORANDUM AND ORDER

Joyner, J. April 19, 2010

This case is now before the Court on Defendant/Petitioner’s

Habeas Corpus Motion Under 28 U.S.C. § 2255 (Docs. No. 76/116). 

For the reasons set forth below, Defendant’s Motion will be

DENIED.

Factual Background

In 2004, Defendant was facing two separate criminal

prosecutions. Case number 04-cr-575 charged Defendant with being

a convicted felon in possession of a firearm and with being a

convicted felon in possession of ammunition. The ammunition

charge was dismissed on the government’s motion, and Defendant

pled guilty to the possession of a firearm charge on April 9,

2007. He was sentenced to 120 months of imprisonment, a $100

special assessment, a $500 fine, and 3 years of supervised

release on August 14, 2007. Case number 04-cr-730 charged
2

Defendant with possession with intent to distribute cocaine,

carrying a firearm during and in relation to a drug trafficking

offense, being a convicted felon in possession of a firearm, and

being a convicted felon in possession of ammunition. Defendant

went to trial on this case and was convicted on all counts on

March 8, 2007. On June 25, 2007, he was sentenced to 240 months

imprisonment on the drug charges to run consecutively with his

sentence in 04-cr-575 and 120 months on the weapons charges to

run concurrently with the 240-month drug sentence. He was also

given a special assessment of $400, a fine of $2,000, and 3 years

of supervised release. 

Defendant filed his appeal with the Third Circuit in case

number 04-cr-575 on June 28, 2007, and his appeal in case number

04-cr-730 on June 29, 2007. The Third Circuit affirmed both

convictions and sentences on November 4, 2008, without issuing an

opinion. Defendant then filed his first petition for habeas

corpus relief with this Court on September 22, 2009. In this

petition, he alleges three constitutional harms that justify

relief: first, he asserts a Fifth Amendment violation based on

the government’s proffering the knowingly perjured testimony of

Bureau of Alcohol, Tobacco, and Firearms (“ATF”) Agent Michael

Ricko at Defendant’s grand jury proceedings; second, Defendant

asserts a Sixth Amendment ineffective assistance of counsel claim

based upon trial counsel’s failure to correct or cross-examine
3

ATF Agent Sarah Coughlin regarding her statements identifying

Defendant; and third, Defendant asserts another Sixth Amendment

ineffective assistance of counsel argument based upon trial

counsel’s failure to call Agent Ricko to contradict the testimony

provided by ATF Agent Brandon Harrison.

Standard

28 U.S.C. § 2255 provides individuals under federal custody

with an avenue to challenge their sentences. In doing so, the

petitioner must demonstrate 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.” 28 U.S.C. 

§ 2255(a). Such a claim must be brought within one year of the

latest of the conviction becoming final, the removal of any

impediment to bringing the motion, the development of a newly

recognized right made retroactive by the Supreme Court of the

United States, or the date on which facts supporting the claim

could have been discovered through due diligence. Id. § 2255(f).

Discussion

Fifth Amendment Claim

Defendant first asserts that his Fifth Amendment due process

rights were violated when the government put on knowingly

perjured testimony at his grand jury proceeding. Defendant is
4

correct that the government cannot meet the dictates of the Fifth

Amendment’s Due Process Clause by providing all of the process

demanded but submitting evidence that it knows to be false in

order to guarantee the desired result. See Mooney v. Holohan,

294 U.S. 103, 112 (1935) (stating that it is insufficient for the

government to provide “mere notice and hearing if a state has

contrived a conviction through the pretense of a trial which in

truth is but used as a means of depriving a defendant of liberty

through a deliberate deception of court and jury by the

presentation of testimony known to be perjured”). In order to

constitute perjury, and thereby rise to a Fifth Amendment

concern, the presentation of the false statement must be willful. 

See 18 U.S.C. § 1621 (establishing the federal crime of perjury). 

In the present case, Defendant has not established that

Agent Ricko’s testimony to the grand jury was false, much less

willfully false. Defendant asserts that Agent Ricko testified

that he was present at and witnessed events, although this was

not actually the case, and that this false testimony resulted in

Defendant’s indictment. Although Agent Ricko did repeatedly use

the term “we” when providing his testimony, and although we do

agree with Defendant that a review of the grand jury transcript

could lead to the conclusion that Agent Ricko was claiming to

have been present at the events about which he was testifying,

this is not the only conclusion that can be drawn. The
5

government asserts that in asking its questions, it consistently

was using the plural “you” and that Agent Ricko consistently

answered with “we” instead of “I.” Because of this, the

government asserts that Agent Ricko was not testifying about his

personal experience, but rather was providing a hearsay summary

of the investigations undertaken by the ATF. As hearsay is

permitted in grand jury proceedings, Costello v. United States,

350 U.S. 359, 363 (1956), Agent Ricko’s testimony would only be

objectionable if he was actually claiming to have been present

when he was not, or if his testimony was provided to willfully

give such an impression to the grand jury. Given the

government’s explanation, which does appear reasonable in light

of the grand jury transcript, even to the extent that the grand

jury may have misunderstood Agent Ricko’s testimony, it cannot be

described as being willfully false. Defendant’s Fifth Amendment

claims, therefore, must be denied.

Sixth Amendment Claims

The Sixth Amendment guarantees criminal defendants the right

to “reasonably effective” legal assistance. Strickland v.

Washington, 466 U.S. 668, 687 (1984). An attorney’s performance

is ineffective if a habeas petitioner demonstrates that

“counsel’s representation fell below an objective standard of

reasonableness” and that there is “a reasonable probability that,

but for counsel’s unprofessional errors, the result of the
6

proceeding would have been different.” Id. at 688, 694. In

assessing whether counsel’s representation was constitutionally

deficient, it is important to remember that the Sixth Amendment

does not guarantee perfect representation. In this regard, the

Supreme Court has cautioned against “second-guess[ing] counsel’s

assistance after conviction or adverse sentence.” Id. at 689. 

Further, any analysis begins with the “strong presumption that

counsel’s conduct falls within the wide range of reasonable

professional assistance.” Id.

If a petitioner establishes that his attorney’s performance

was constitutionally deficient, the court then turns to an

examination of whether the outcome at trial would have been

different but for the attorney’s errors. The standard for

showing prejudice “is not a stringent one.” Hull v. Kyler, 190

F.3d 88, 110 (3d Cir. 1999) (quoting Baker v. Barbo, 177 F.3d

149, 154 (3d Cir. 1999)). A petitioner must demonstrate a

“reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” 

Strickland, 466 U.S. at 694. Importantly, although this standard

does demand that a petitioner show more than “that the errors had

some conceivable effect on the outcome of the proceeding,” it

does not require a showing that the error “more likely than not

altered the outcome in the case.” Id. at 693.

Defendant in this case cannot establish that he received
7

constitutionally deficient representation, and, therefore, he has

no viable Sixth Amendment claim. Defendant highlights two

separate points at which his counsel was allegedly deficient. 

First, he asserts that his counsel’s failure to either object to

or cross-examine Agent Coughlin’s testimony regarding her

identification of Defendant while driving his car was a

constitutionally deficient failure on his attorney’s part. 

Defendant bases this contention on his assertion that there was a

stipulation between counsel at a pre-trial suppression hearing

that Agent Coughlin would not be testifying that she made an

identification of Defendant while he was driving his car. After

a review of the transcript, it does not appear that a stipulation

was agreed to by the government as to Agent Coughlin’s testimony;

although defense counsel proposed a stipulation, the government

did not agree as to Agent Coughlin that such a stipulation could

be entered at that time. Any failure to raise this alleged

stipulation at trial, therefore, was not ineffective. Further,

even if a stipulation was reached, it does not appear that Agent

Coughlin’s testimony at trial was counter to this stipulation. 

At trial, Agent Coughlin only testified as to a series of

circumstances that led her to conclude that Defendant was driving

the car in question, and did not testify that she independently

identified him driving the car. Defendant has no ineffective

assistance claim, therefore, based on his counsel’s failure to
raise the suppression-hearing conversation to either correct or

cross-examine Agent Coughlin’s trial testimony.

Second, Defendant asserts that his trial counsel was

ineffective for failing to call Agent Ricko to contradict the

testimony provided by Agent Harrison. At trial, Agent Harrison

testified that Agent Ricko did not witness the events about which

Agent Ricko testified before the grand jury. Defendant,

therefore, asserts that his counsel should have called Agent

Ricko to contradict Agent Harrison’s testimony as a way of

attacking Agent Harrison’s credibility. As discussed above,

however, Agent Ricko did not testify before the grand jury that

he was present for all of these events, but, rather, merely

provided a hearsay summary of the ATF’s investigation. Taken in

this light, Agent Ricko’s testimony was not inconsistent with

Agent Harrison’s, and could not be used to attack Agent

Harrison’s credibility. Defendant’s counsel, therefore, was not

ineffective for refusing to attempt to use Agent Ricko’s

testimony in this way.

Conclusion

Although Defendant asserts that his sentence was imposed in

violation of the Fifth and Sixth Amendments to the United States

Constitution, he has not stated any claims that rise to the level

of a constitutional violation. In the absence of such a claim,

we must deny his Motion.