IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA :

 :

 v. : CRIMINAL ACTION NO. 04-CR-295

: CIVIL ACTION NO. 11-CV-5717

JOHNNY GUNTER :

REPORT AND RECOMMENDATION

CAROL SANDRA MOORE WELLS January 13, 2012

CHIEF UNITED STATES MAGISTRATE JUDGE

Presently before this court is a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or

Correct Sentence, filed pro se. Johnny Gunter (“Defendant”), currently incarcerated at the United

State Penitentiary-Canaan in Waymart, Pennsylvania, seeks post-conviction relief based on two

claims of ineffective assistance of counsel. The Honorable Joel S. Slomsky referred this matter to

the undersigned for preparation of a Report and Recommendation, pursuant to 28 U.S.C. §

636(b)(1)(B). For the reasons set forth below, it is recommended that Defendant’s motion be

DENIED without an evidentiary hearing.

I. BACKGROUND AND PROCEDURAL HISTORY1

On May 25, 2004, Defendant was charged with conspiracy to distribute more than 50 grams

of cocaine base (Count 1), possessing with the intent to distribute more than 50 grams of cocaine

base (Count 2), possessing with the intent to distribute more than 50 grams of cocaine base within

1000 feet of a school (Count 3), carrying a firearm during and in relation to the drug trafficking

offense charged in Count 2 (Count 4) and being a felon in possession of a firearm (Count 5). Docket

Entry 1. Defendant was tried by a jury from January 10-12, 2005 and, on January 12, 2005, was

The facts set forth in this background and procedural history were gleaned from Defendant’s Motion Under 28 U.S.C.

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§ 2255 to Vacate, Set Aside or Correct Sentence (“Def. Mot.”), his Brief in Support (“Def. Br.”), the criminal docket

for this case (“Docket”), the Government’s Response to the § 2255 Motion (“Resp.”) and the district court’s entire file.

Case 2:04-cr-00295-JHS Document 127 Filed 01/13/12 Page 1 of 8
convicted of all five counts. (N.T. 1/12/05 at 77, 85). Defendant was initially sentenced to a term

of incarceration of 283 months, 10 years of supervised release, a fine of $1,000 and a special

assessment of $400. Resp. at 2. Several successful appeals resulted in re-sentencing, on December

22, 2009, Defendant received the sentence he is currently serving: 180 months of imprisonment, 10

years of supervised release and a special assessment of $300. Id. at 2-3.

On September 14, 2011, this case was reassigned from the retired Honorable John P. Fullam

to Judge Slomsky. Docket Entry 119. On the same day, Defendant filed his § 2255 motion,

claiming that trial counsel was ineffective for: (1) withdrawing a pre-trail motion to suppress all of

the physical evidence admitted against him; and (2) failing to move for judgment of acquittal with

respect to Count 4. Def. Mot. at 6. Judge Slomsky referred the § 2255 motion to the undersigned

on September 20, 2011. Docket Entry 121. The government filed its response to the § 2255 motion

on December 22, 2011. Docket Entry 126. This court finds that Defendant’s two claims lack merit.

II. DISCUSSION

A. Standards of Review

Section 2255 provides, in relevant part:

A prisoner in custody under sentence of a court established by Act of

Congress claiming the right to be released upon the ground 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, may

move the court which imposed the sentence to vacate, set aside or

correct the sentence.

28 U.S.C. § 2255(a).

Claims of ineffective assistance of counsel are governed by the two-part test announced in

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Strickland v. Washington, 466 U.S. 668 (1984). First, the defendant must show that “counsel’s

representation fell below an objective standard of reasonableness.” Id. at 688. In making this

determination, the court's scrutiny of counsel's performance must be “highly deferential.” Id. at 689. 

The court should make every effort to “eliminate the distorting effects of hindsight, to reconstruct

the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel’s

perspective at the time.” Id. In short, the “court must indulge a strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance; that is, the [defendant]

must overcome the presumption that, under the circumstances, the challenged action ‘might be

considered sound trial strategy.’” Id.

Second, the defendant must show that counsel's deficient performance “prejudiced the

defense” by “depriv[ing] the [defendant] of a fair trial, a trial whose result is reliable.” Id. at 687. 

That is, the defendant must show that “there is a reasonable probability that, absent the errors, the

factfinder would have had a reasonable doubt respecting guilt.” Id. at 695. “A reasonable

probability is a probability sufficient to undermine confidence in the outcome,” id. at 694, but it is

less than a preponderance of the evidence. Id. at 693, 694. In cases where it is alleged that trial

counsel was ineffective for failing to properly litigate a Fourth Amendment claim, the defendant

must show that the Fourth Amendment claim was meritorious as a component of proving prejudice. 

Kimmelman v. Morrison, 477 U.S. 365, 375 (1986). If the Fourth Amendment claim is meritorious, 

the defendant must then demonstrate a reasonable probability that the verdict would have been

different if the evidence had been excluded. Id.

If the defendant fails to satisfy either prong of the Strickland test, there is no need to evaluate

the other part, as his claim will fail. Strickland, 466 U.S. at 697. Further, counsel will not deemed

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to be ineffective for failing to present an unmeritorious claim or objection. Parrish v. Fulcomer, 150

F.3d 326, 328-29 (3d Cir. 1998). 

B. The Merits of Defendant’s Claims

1. Trial Counsel was not Ineffective for Withdrawing the Suppression Motion

Defendant contends that trial counsel was ineffective for withdrawing his pre-trial motion

to suppress the evidence seized pursuant to the search warrant. Def. Mot. at 6. He believes that trial

counsel could have demonstrated that the warrant lacked probable cause; hence, the seized evidence

should have been suppressed. Id.; Def. Br. at 23-56. Defendant maintains that the warrant was

deficient because the two purported controlled purchases of cocaine from Room 108 of the Penn

View Motel listed in the search warrant affidavit never occurred. Def. Br. at 24. The only support

for this assertion is Defendant’s own self-serving allegation that he was in Room 108 on the days

in question and saw that no sales of cocaine occurred. Id. at 24-25.

A search warrant affidavit is presumed to be valid. Franks v. Delaware, 438 U.S. 154, 171

(1978). In order to obtain a hearing to challenge a search warrant affidavit (and, hence, the warrant

itself) the defendant must allege deliberate falsehood on the part of the affiant and support those

allegations with an offer of proof. Id. To prevail at a hearing, the defendant must demonstrate, by

a preponderance of the evidence, that: (1) the affiant lied or recklessly disregarded the truth; and (2)

with the affidavit’s false material set aside, the remaining content is insufficient to establish probable

cause. Id. at 156.

The search warrant affidavit, prepared by Berks County Detective Joshua Romig, facially

provides probable cause, because it describes two controlled purchases of cocaine inside Room 108

of the Penn View Motel, in late January 2004 and early February 2004. See Def. Br., Exhibit G at

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[3]. At the suppression hearing, Detective Romig testified that the information he included in the

warrant application about the two controlled purchases was correct. (N.T. 12/22/04 (Document No.

64) at 62-65). He specified that the first controlled purchase was on January 27, 2004 at 4:37 p.m. 2

and the second on February 3, 2004 at 5:00 p.m. Id. at 68-69.

Defendant’s only contradictory “proof” that Detective Romig’s averments constitute perjury

are his bald assertions that no drug sales took place from Room 108 on those two dates. If Defendant

testified in this manner at a hearing, he could not establish by a preponderance of credible evidence

that Detective Romig lied or recklessly disregarded the truth. First, Defendant is a biased witness

with a clear incentive to lie. Second, Defendant has a prior felony conviction, which further

compromises his credibility. See Fed. R. Ev. 609(a)(1). Hence, his testimony alone is inadequate

to prove by a preponderance that Detective Romig deliberately lied or recklessly disregarded the

truth. Accordingly, had the suppression motion been fully litigated rather than withdrawn, the

evidence still would not have been suppressed. See Franks, 438 U.S. at 156. Inasmuch as

Defendant’s Fourth Amendment suppression claim lacks merit, he cannot demonstrate the requisite

prejudice. See Kimmelman, 477 U.S. at 375.

2. Trial Counsel was not Ineffective fo Failing to File a Motion for Judgment of

Acquittal

Defendant claims that trial counsel was ineffective for failing to move for judgment of

acquittal pursuant to Fed. R. Crim. P. 29 (“Rule 29"). Def. Mot. at 6. This claim is belied by the 3

record; trial counsel did bring such a motion, which the trial court denied. (N.T. 1/11/05 at 197). 

There are two transcripts of the December 22, 2004 hearing. One (Document No. 64) lists December 12, 2004 on the

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cover page. However, the district judge states that the hearing is taking place on December 22, 2004. See Document

No. 64 at 3). The other transcript (Document No. 77) lists December 22, 2004 on the cover page. All citations to the

December 22, 2004 hearing transcript are to Document No. 64.

Rule 29(a) allows the defendant to move for judgment of acquittal upon the close of the government’s case. The motion

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is granted for any offense where the evidence is insufficient to sustain a conviction. Id.

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Counsel’s oral motion was terse and did not state the specific ground Defendant now advances: that

there insufficient evidence to support Count 4, because the government had only proved his

constructive possession of the firearm, not that he carried it during and in relation to the drug

trafficking crime charged in Count 2. However, as explained below, sufficient record evidence

supports the jury’s finding that Defendant carried the firearm. Hence, trial counsel was not

ineffective for failing to advance the specific ground Defendant pursues now. See Parrish, 150 F.3d

at 328-29 (counsel is not ineffective for failing to pursue an argument that lacks merit).

The government was obligated to prove that Defendant carried a firearm during and in

relation to the drug trafficking crime charged in Count 2. See 18 U.S.C. § 924(c)(1)(A); Muscarello

v. United States, 524 U.S. 125, 126 (1998). In this case, the following facts are uncontested. When

the Berks County Narcotic Unit executed the search warrant on February 3, 2004 on Room 108 of

the Penn View Motel at approximately 6:10 p.m., Defendant was alone in the room and was wearing

only boxer shorts and a T-shirt. However, on the bed in the motel room, there were a pair of jeans

containing approximately $500 in U.S. currency and a firearm. Also, approximately 72.5 grams of

crack were found in a black suitcase in the room, a quantity which an expert testified was consistent

with possession with the intent to distribute, rather than possession for personal use. Other items

found in the room were a digital scale, additional bullets for the firearm, and drug paraphernalia.

Defendant argues that, because he was not wearing the pants that held the seized firearm at

the moment the police executed the search warrant, the government only proved his constructive

possession of the firearm, which does not satisfy the statute’s carrying requirement. Def. Br. at 57-

58. Defendant’s claim fails; the government was not required to prove that he carried the firearm

at the precise moment the search warrant was being executed. Instead, the government had to prove

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that Defendant carried the firearm at some point in time when he possessed the seized crack with the

intent to distribute it. See N.T. 1/12/05 at 59-60. Denise Jackson, Defendant’s co-conspirator,

testified that, on February 3, 2004 between 11:00 and 11:30 a.m., Defendant arrived at Room 108

with crack he had purchased in New York; she identified the seized firearm as belonging to

Defendant and testified that Defendant always carried the firearm or kept it nearby when he was in

bed. (N.T. 1/11/05 at 93, 97). Berks County Corporal Scott Errington testified that, while he was

performing surveillance of Room 108 for approximately 45 minutes prior to the execution of the

search warrant on February 3, 2004, he saw eight to ten people drive up to the room, enter for a

minute or two and then leave. (N.T. 1/10/05 at 85-86). This evidence, together with the undisputed

evidence, proves, circumstantially and sufficiently, that on February 3, 2004 while in Room 108,

Defendant possessed the seized crack with the intent to distribute it and that, at some point in time

that day, he had carried the seized firearm during and in relation to his drug trafficking crime (which

is possession with intent to distribute, as charged in Count 2).

III. CONCLUSION

Defendant’s claims lack merit. Therefore, his § 2255 motion should be denied without a

hearing. Reasonable jurists would not debate the appropriateness of the court’s substantive

disposition of Defendant’s claims; therefore, a certificate of appealabilityshould not issue. See Slack

v. McDaniel, 529 U.S. 473, 484 (2000). Accordingly, I make the following:

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RECOMMENDATION

AND NOW, this 13 day of January, 2012, for the reasons contained in the preceding th

Report,itis herebyRECOMMENDEDthat Defendant’s claims be DENIED without an evidentiary

hearing. Defendant has failed to demonstrate that any reasonable jurist could find this court’s

substantive rulings debatable; hence, there is no probable cause to issue a certificate of appealability. 

Defendant mayfile objections to this Report and Recommendation within fourteen (14) days

of being served with a copy of it. See Local R. Civ. P. 72.1(IV). Failure to file timely objections

may constitute a waiver of any appellate rights.

It be so ORDERED.

 /s/ Carol Sandra Moore Wells 

CAROL SANDRA MOORE WELLS

Chief United States Magistrate Judge

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