IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA : CIVIL ACTION NO. 10-480

 :

 v. :

 :

ANTHONY GAGLIARDI : CRIMINAL ACTION NO. 04-796

MEMORANDUM

Padova, J. June 1, 2010

Before the Court is Defendant Anthony Gagliardi’s Motion to Vacate, Set Aside or Correct

Sentence pursuant to 28 U.S.C. § 2255. For the following reasons, we deny the Motion.

I. BACKGROUND

On May 27, 2005, Defendant was found guilty of conspiracy to distribute cocaine, (Count

One) and attempted possession with intent to distribute between 500 grams and two kilograms of

cocaine on October 29, 2002 (Count Three). The jury returned not guilty verdicts on additional

counts of possession with the intent to distribute more than five kilograms of cocaine on October 8

or 9, 2002 (Count Two) and attempted possession with intent to distribute between 500 grams and

two kilograms of cocaine on December 8, 2002 (Count IV). Although he originallyretained counsel,

Defendant filed a pre-trial motion seeking to represent himself. Following the required colloquy,

we permitted Defendant to represent himself, with his prior attorney, Donald Manno, serving as

standby counsel.

On July 5, 2005, we denied Defendant’s post-trial motion. He was sentenced on August 17, 1

2006, to 180 months imprisonment, to be followed by eight years of supervised release. By

In that motion, Defendant asserted that (1) his convictions were based on the perjured

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testimony of Steven Carnivale; (2) we erred in denying his request for a bill of particulars; (3) there

was insufficient evidence to support the jury’s verdict; (4) new evidence existed; and (5) the

prosecutor had committed misconduct at trial and before the grand jury. 
memorandum dated July 3, 2008, the United States Court of Appeals for the Third Circuit

thoroughly analyzed each argument made byDefendant and affirmed the convictions. United States

v. Gagliardi, 285 Fed. Appx. 11 (3d Cir. 2008). The United States Supreme Court denied 2

Gagliardi made the following arguments in his direct appeal: 2

1. The Government violated his rights under Brady v. Maryland, 373 U.S. 83 (1963) by

failing to inform him that Thomas Carmean, one of the Government’s witnesses, had

incorrectly identified him in a photo lineup.

2. The Government violated Brady by failing to turn over evidence regarding the drug

transaction between him and Steven Carnivale on October 3, 2002.

3. We erred in allowing him to conduct his own defense at trial because he suffered

from various physical and mental conditions which prevented him from

understanding the nature of his decision and preparing an effective defense.

4. The Government violated Federal Rule of Evidence 404(b) by introducing evidence

regarding an October 3, 2002 drug transaction. 

5. The Government violated Rule 404(b) by presenting Carnivale’s testimony that he

sometimes gave Gagliardi small amounts of marijuana.

6. The Government violated Rule 404(b) byintroducing testimonyassociating himwith

organized crime.

7. The Government committed prosecutorial misconduct by presenting Carnivale’s

testimony before the grand jury that (a) he met Gagliardi at a meeting with “South

Philly mob guys,” and (b) Gagliardi took part in extortions, loan sharking, and other

illegal activities.

8. There was a fatal variance between the indictment and the evidence presented at trial

because, at trial, the government introduced evidence of an October 3, 2002 drug

transaction even though that transaction was not mentioned in the indictment.

9. The evidence introduced at trial was insufficient to support the jury’s verdict.

10. The jury returned inconsistent verdicts because, while he was convicted of the

conspiracy count, he was acquitted of a substantive count of possession with intent

to distribute 500 grams of cocaine on October 8 or 9, 2002.

11. We erred by failing to instruct the jury that he had the right to refuse to testify at trial,

notwithstanding the fact that he requested, as part of his trial strategy, that such an

instruction not be given.

12. We erred in denying his motion for a bill of particulars.

13. He was entitled to a new trial because, he asserted, a juror fell asleep during the trial 

and because, during deliberations, a deliberating juror inappropriately discussed the

case with an alternate juror.

14. He did not receive notice that we would consider a conviction he received in 1991

when calculating his sentence.

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Defendant’s petition for certiorari on March 29, 2009. Defendant’s § 2255 motion was timely filed

on February 2, 2010.

In the current motion, Defendant raises the following issues:

1. The juror misconduct issue raised on direct appeal arising from an allegedlyimproper

discussion during deliberation between a deliberating juror and an alternate juror.

2. Ineffective assistance of counsel arising from Attorney Manno’s failure to raise the

prejudice resulting from the juror misconduct.

3. The two Brady violations raised on direct appeal.

4. The Rule 404(b) violations raised on direct appeal arising from the references to

marijuana and loan sharking activities.

5. The bill of particulars issue raised on direct appeal.

6. The prosecutorial misconduct issues raised on direct appeal.

7. Improper jury instruction on the definition of reasonable doubt.

8. Structural error arising from egregious activityon the part of the Government causing

Defendant to change his mind and not call Antonio Nieves as a witness.

II. LEGAL STANDARD

Gagliardi has moved for relief pursuant to 28 U.S.C. § 2255, which provides as follows:

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.

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28 U.S.C. § 2255(a). In order to prevail on a Section 2255 motion, the movant’s claimed errors of

law must be constitutional, jurisdictional, “a fundamental defect which inherently results in a

complete miscarriage of justice,” or “an omission inconsistent with the rudimentary demands of fair

procedure.” Hill v. United States, 368 U.S. 424, 428 (1962).

III. DISCUSSION

A. Claims Raised on Direct Appeal

Several of the claims included by Defendant in his § 2255 motion were the subject of his

direct appeal. Specifically, the following claims duplicate arguments that were raised and rejected

on direct appeal:

1. The juror misconduct issue arising from an allegedly improper discussion during

deliberation between a deliberating juror and an alternate juror (Ground 1).

2. The two Brady violations (Ground 3).

3. The Rule 404(b) violations arising from the references to marijuana and loan

sharking activities (Ground 4).

4. The bill of particulars issue raised on direct appeal (Ground 5).

5. The prosecutorial misconduct issues involving the grand jurytestimonyabout “South

Philly mob guys,” extortion, loan sharking, and other illegal activities (Ground 6).

None of these claims may be reasserted in a motion pursuant to § 2255. 

Absent an intervening change in the governing substantive law or other exceptional

circumstances, Section 2255 generally “may not be employed to relitigate questions which were

raised and considered on direct appeal.” United States v. DeRewal, 10 F.3d 100, 105 n.4 (3d Cir.

1993) (citations omitted); see also Davis v. United States, 417 U.S. 333, 342 (1974) (intervening

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change in governing substantive law that makes petitioner’s conviction and punishment unlawful

constitutes exceptional circumstances that justify collateral relief under § 2255 after unsuccessful

litigation of the issue on direct appeal). If a defendant attempts to raise such errors in a section 2255

motion, the motion will be “procedurally barred.” United States v. Jenkins, 333 F.3d 151, 155 (3d

Cir. 2003). Because Defendant makes no assertion that an intervening change in the law, or some

other exceptional circumstance has occurred since he litigated these issues on direct appeal, we must

summarily reject these claims because he is procedurally barred from re-asserting them.

B. Claims that Defendant Could Have Raised on Drirect Appeal

Two of Defendant’s other claims are procedurally defaulted because he could have raised

them on direct appeal, but neglected to do so. Specifically, Gagliardi’s claims that our supplemental

instruction on the definition of reasonable doubt was erroneous (Ground 7), and that the Government

committed structural error by causing Defendant to change his mind and not call Antonio Nieves as

a witness (Ground 8), are based on issues that arose during the trial and could have been raised on

direct appeal.

A defendant cannot raise in a § 2255 motion a constitutional issue that he could have raised

on direct appeal, but did not, unless he shows good cause for, and actual prejudice from, his failure

to raise the claim on appeal, or demonstrates that he is “actually innocent” of a crime charged. 

Massaro v. United States, 538 U.S. 500, 504 (2003); Jenkins, 333 F.3d at 155; see also Hodge v.

United States, 554 F.3d 372, 379 (3d Cir. 2009) (“Put differently, a movant has procedurally

defaulted all claims that he neglected to raise on direct appeal.”) “The procedural-default rule is

neither a statutory nor a constitutional requirement, but it is a doctrine adhered to by the courts to

conserve judicial resources and to respect the law’s important interest in the finality of judgments.” 

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Massaro, 538 U.S. at 504. Cause necessary to excuse a procedural default must be an occurrence

beyond a defendant’s control that cannot be fairly attributed to him. See McCleskey v. Zant, 499

U.S. 467, 493 (1991) (“In procedural default cases, the cause standard requires petitioner to show

. . . ‘some objective factor external to the defense. . . .’”). Prejudice necessary to excuse a procedural

default means that the alleged error worked to a defendant’s “actual and substantial disadvantage.” 

United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis omitted). 

Defendant makes no showing of cause and prejudice or a claim of actual innocence.3

Therefore, we reject the two claims that could have been raised on direct appeal. 

C. Ineffective Assistance of Counsel

The sole claim raised in the § 2255 motion that can be addressed on its merits is Defendant’s

claim that Attorney Manno – acting as standby counsel – rendered constitutionally ineffective

assistance when he failed to raise the issue of jury misconduct. We reject this claim as well.

A claim for ineffective assistance of counsel is based on the Sixth Amendment right to

counsel, which exists “‘in order to protect the fundamental right to a fair trial.’” Lockhart v.

Fretwell, 506 U.S. 364, 368 (1993) (quoting Strickland v. Washington, 466 U.S. 668, 684 (1984)). 

A claim for ineffective assistance of counsel must meet the two-part test advanced by the Strickland

court. First, petitioner must show that counsel 

made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed

the defendant by the Sixth Amendment. Second, [petitioner] must show that the

deficient performance prejudiced the defense. This requires showing that counsel’s

errors were so serious as to deprive the defendant of a fair trial, a trial whose result

is reliable.” 

Defendant’s only assertion of cause and prejudice relates to the issues actually presented in 3

his direct appeal, not the issues upon which he has procedurally defaulted. (See Petitioner’s

Supplemental Resp. at 1-2, 4.)

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Strickland, 466 U.S. at 687. More precisely, a petitioner must show that (1) his attorney’s

performance was unreasonable under prevailing professional norms, and, unless prejudice is

presumed, (2) there is a reasonable probabilitythat, but for counsel’s unprofessional errors, the result

would have been different. United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). 

Defendant cannot meet Strickland’s prejudice prong. Defendant raised the substantive issue

of the alleged juror misconduct in his direct appeal, and the Third Circuit rejected that claim as

meritless. Gagliardi, 285 F. Appx at 20. This finding is dispositive on the ineffective assistance

claim. Because any objection to the manner in which the Court dealt with the alleged juror

misconduct would have been rejected as meritless, counsel cannot be deemed to have acted

ineffectively in failing to raise one. See United States v. Sanders, 165 F.3d 248, 253 (3d Cir. 1999)

(stating that there can be no Sixth Amendment deprivation of effective counsel based on an

attorney’s failure to raise a meritless argument) (citations omitted).

Moreover, Gagliardi was representing himself at the trial and AttorneyManno was appointed

as standby counsel. Several Courts of Appeal have held that there is no constitutional right to

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hybrid representation and because there is no constitutional right to standby counsel, a defendant

We reject Defendant’s assertion that Attorney Manno was acting as primary counsel at the 4

time that the jury misconduct issue arose. Defendant asserts that he was ill and Attorney Manno

addressed the Court on the issue. (See 5/25/2005 N.T. at 2-5.) However, Defendant never

relinquished his right to self-representation and we continued to direct our comments to him

throughout the deliberation phase of the trial. Defendant was present at the side-bar discussion of

the issue. (See id. at 5.) At the conclusion of the discussion, we addressed Defendant directly asking

if he agreed with the resolution that was discussed:

THE COURT: Okay. If we get to a situation where we have to

substitute alternate number two, then it becomes and [sic] issue and

we’ll revisit it at that time. Okay? Mr. Gagliardi?

MR. GAGLIARDI: Yes, sir.

THE COURT: Okay, thank you.

(Id.)

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generally cannot prove standby counsel was ineffective. See United States v. Tilley, 326 F. App’x

96, 96-97 (3d Cir. 2009) (noting no constitutional right to standby counsel); United States v.

Schmidt, 105 F.3d 82, 90 (2d Cir. 1997) (“Absent a constitutional right to standby counsel, a

defendant generally cannot prove standby counsel was ineffective.”) (citing United States v.

Cochrane, 985 F.2d 1027, 1029 & n.1 (9th Cir. 1993) (per curiam) (rejecting ineffective assistance

of standby counsel argument in this context without foreclosing argument in future); and United

States v. Windsor, 981 F.2d 943, 947 (7th Cir. 1992) (holding that there is no constitutional right to

effective assistance of standby counsel)). Accordingly, we reject Defendant’s claim of

constitutionally ineffective assistance of counsel.

IV. CONCLUSION

For the foregoing reasons, we conclude that Defendant is not entitled to the relief he seeks. 

 We therefore deny Defendant’s § 2255 Motion in its entirety. An appropriate Order follows.

BY THE COURT:

/s/ John R. Padova 

 

John R. Padova, J.