1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA, : CRIMINAL ACTION

:

v. :

:

HAROLD CANNON : No. 05-CR-36

MEMORANDUM RE: PETITION FOR HABEAS CORPUS RELIEF

Baylson, J. August 12, 2009

Defendant / Petitioner Harold Cannon was convicted by a jury of possession of cocaine

base with intent to distribute and related offenses. (Doc. No. 75). After the Third Circuit denied

his appeal, Defendant filed the current Motion to Vacate/Set Aside/Correct Sentence under 28

U.S.C. § 2255 asserting several grounds of error. (Doc. Nos. 98, 100). For the following

reasons, Defendant’s Motion will be denied.

I. Background and Procedural History

Defendant’s conviction arose out of an incident that occurred on March 5, 2004. 

(Indictment 1.) Prior to this, on December 15, 2003, a confidential informant (“informant”)

known to Federal Bureau of Investigation (“FBI”) Special Agent Robert Parks told Agent Parks

that Defendant was a crack and cocaine dealer. (Govt’s Resp. Def.’s Mot. 2.) The informant

identified a picture of Defendant and provided Defendant’s telephone numbers and address,

which Agent Parks verified as having come up in to previous FBI drug investigations. (Id.) On

March 3, 2004, the informant told Agent Parks that Defendant had asked the informant to

distribute cocaine for Defendant. (Id.) The informant also told Agent Parks Defendant’s address

and that Defendant drove a purple Chrysler, which Agent Parks again verified. (Id. at 2-3.)

Case 2:05-cr-00036-MMB Document 102 Filed 08/13/09 Page 1 of 7
2

On March 5, 2004, the informant told Agent Parks that Defendant would be leaving his

house to deliver cocaine to the informant. (Id. at 3.) The FBI then asked the Philadelphia police

to assist in surveillance of Defendant. (Id.) At about 11:55 a.m. on March 5, Philadelphia police

officers made a traffic stop of the car Defendant was driving based on the information received

from the informant. (Id.; Def.’s Mot. Identification Produc. Informant ¶¶ 2,4.) Defendant did

not have a driver’s license, and the officers asked Defendant to step out of the car. (Govt’s Resp.

3.) The officers conducted a pat-down frisk and retrieved a .38 Smith and Wesson caliber

revolver loaded with live rounds. (Id. at 4; Indictment 1.) The officers conducted a further

search of Defendant’s person, incident to his arrest, and discovered capsules and zip-lock

packets containing 12.2 grams of crack cocaine and $215 in cash. (Govt’s Resp. 4.) The

officers also saw 56.4 grams of marijuana in plain view in Defendant’s car. (Id.) Later at the

police station, officers discovered an additional $1,700 on Defendant’s person. (Id.)

A federal grand jury indicted Defendant on January 25, 2005, charging him on four

counts: (1) possession of a firearm and ammunition by a convicted felon, in violation of 18

U.S.C. § 922(g)(1); (2) possession of a firearm in furtherance of a drug trafficking crime, in

violation of 18 U.S.C. § 924(c); (3) possession of more than five grams of cocaine base (“crack”)

with intent to distribute, in violation of 21 U.S.C. § 841(a); and (4) possession of marijuana with

intent to distribute, in violation of 21 U.S.C. § 841(a). 

Prior to trial, the government discovered that the firearm recovered from Defendant was

considered an “antique firearm” that was excluded under Sections 922(g) and 924(c). (Def.’s

Mot. In Limine ¶¶ 2,3). Thus, the government did not go forward at trial on Count II, possession

of a firearm in furtherance of a drug trafficking crime, and, as to Count I, went forward based

solely on Defendant’s possession of ammunition. (Def.’s Mot. In Limine ¶ 5; Govt’s Resp. 5).

Case 2:05-cr-00036-MMB Document 102 Filed 08/13/09 Page 2 of 7
3

On May 5, 2006, the jury returned a verdict of guilty on all remaining counts in a

bifurcated proceeding. (Doc. No. 75). This Court then held a sentencing hearing for Defendant

on September 13, 2006, and imposed a sentence of 137 months imprisonment, eight years of

supervised release, a $300 special assessment, and a $5,000 fine. (Doc. Nos. 85, 86). Defendant

appealed his conviction and sentence. (Doc. No. 87). On June 12, 2008, the Third Circuit

denied Defendant’s appeal. (Doc. No. 97).

On May 14, 2009, Defendant filed the current pro se Motion to Vacate/Set Aside/Correct

Sentence under 28 U.S.C. § 2255 (Doc. No. 98) and filed an Extension to the Motion on June 19,

2009 (Doc. No. 100). The government filed its Response to Defendant’s § 2255 petition on June

25, 2009. (Doc. No. 101).

II. Standard for § 2255 Petitions

Defendant brings this Motion under 28 U.S.C. § 2255(a), which provides that:

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). A district court may grant relief under this statute if the court finds that

“the judgment was rendered without jurisdiction, or that the sentence imposed was not

authorized by law or otherwise open to collateral attack, or that there has been such a denial or

infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to

collateral attack.” 28 U.S.C. § 2255(b).

III. Points of Alleged Error

Case 2:05-cr-00036-MMB Document 102 Filed 08/13/09 Page 3 of 7
4

In his Motion, Defendant raises the following points of alleged error:

(1) the Government improperly amended the indictment without returning to the grand

jury;

(2) the trial court improperly failed to allow Defendant the right to confront and crossexamine the informant as a trial witness; and

(3) Defendant’s counsel was ineffective for not objecting to the Government’s change in

the indictment and the court’s improper denial of Defendant’s right to confront and crossexamine the informant. 

A. Change to the Indictment

First, Defendant argues that the government improperly amended the criminal indictment

returned by the grand jury on January 25, 2005. Defendant contends that “the Court allowed the

government to amend the indictment from 18 U.S.C. 924(c) to 18 U.S.C. 922(g)” without

seeking a new indictment. (Def.’s Mot. Vacate 6.) The Government argues that the grand jury

indictment was not amended but, rather, the Government decided to drop one count listed in the

indictment and go forward on a limited basis on another charge. (Govt’s Resp. 5.)

Defendant’s argument fails. Prosecutors are granted broad discretion in charging and

prosecuting counts of an indictment. See Wayte v. United States, 470 U.S. 598, 607 (1985). 

Defendant alleges that the Government altered the original indictment, but the Record

does not support this allegation. The Government chose not to pursue Count Two of the

indictment (possession of a firearm in furtherance of a drug trafficking offense in violation of 18

U.S.C. § 924(c)) after discovering that the firearm in question was an antique weapon, which is

not covered by 18 U.S.C. § 924(c). For the same reason, the Government chose to proceed with

Case 2:05-cr-00036-MMB Document 102 Filed 08/13/09 Page 4 of 7
5

Count One of the indictment based solely on Defendant’s possession of ammunition, instead of

possession of a firearm. Petitioner has relied upon a misinterpretation of United States v. Miller,

471 U.S. 130 (1985), and argues that Miller holds that the government may not alter an

indictment without returning to a grand jury. (Def.’s Mot. 9.) However, in Miller, the

government struck part of an indictment that it no longer wished to pursue, and the Supreme

Court held that this narrowing of an indictment in no way violated the constitutional rights of the

defendant. Id. at 145. Here, the Government chose not to pursue Count Two of the indictment

and withdrew this count at trial. Id. Count One, for possession of a firearm and ammunition by

a convicted felon in violation of 18 U.S.C. § 922(g), was in the original indictment and was not

an amendment. (Doc. No. 1). The Government’s decision not to proceed with this count of the

indictment constitutes a narrowing of the indictment consistent with Miller.

This decision not to pursue a portion of the indictment falls squarely within the

Government’s prosecutorial discretion and in no way violated Defendant’s constitutional rights. 

B. Denial of Right to Confront Informant

Second, Defendant argues that his right to confront and cross-examine the Government’s

informant was improperly denied. (Def.’s Mot. Vacate 6). The Government argues that

Defendant has not presented any specific reason why the informant’s testimony was necessary

and further that the informant was not a witness to the crime and therefore his testimony is

irrelevant. (Govt’s Resp. 6-8). 

Defendant had no right to confront the informant at trial. This Court considered and

denied his motion to that effect on May 2, 2006. (Doc. No. 71). The Supreme Court has

recognized that the Government has a qualified privilege in the refusal to disclose the identity of

Case 2:05-cr-00036-MMB Document 102 Filed 08/13/09 Page 5 of 7
6

a confidential informant from whom it has received information concerning alleged criminal

activity. See Roviaro v. United States, 353 U.S. 53, 59-60 (1957); see also United States v.

Bazzano, 712 F.2d 826, 839 (3d Cir. 1983). However this privilege must give way where

disclosure is “relevant and helpful to the defense of an accused, or is essential to a fair

determination of a case.” Roviaro, 353 U.S. at 60-61. The defendant bears the burden of setting

forth a specific need for disclosure. United States v. Jiles, 658 F.2d 194, 197 (3d Cir. 1981). 

The Court must weigh the “particular circumstances of each case” to determine if the defendant

has met his burden. See United States v. Harrington, 951 F.2d 876, 877 (8th Cir. 1991) (quoting

Roviaro, 353 U.S. at 62).

Here, Defendant has not made any substantive argument as to how the informant’s

identity, testimony, or cross-examination would have aided in the defense of his criminal

charges. The informant was not an eyewitness to the crime alleged in the indictment nor were

the informant’s statements critical to the Government’s case against Defendant. The informant

in this case merely provided authorities with a corroborated tip that led to Defendant’s traffic

stop on March 5, 2004. The evidence presented at trial, without any testimony by the informant

as a trial witness, was sufficient to support the jury’s guilty verdict. Further, Defendant

previously raised the issue of the police’s probable cause to stop his vehicle in a Motion to

Suppress, (Doc. No. 20), and this Court denied the motion (Doc. No. 40).

Petitioner’s reliance upon Brady v. Maryland, 373 U.S. 83 (1963), and 18 U.S.C. § 3500

is also erroneous. Brady concerns the Government’s disclosure of exculpatory evidence, which

is not at issue here. Section 3500, the Jencks Act, covers the admission of witness statements

following their testimony, and thus this argument is not relevant.

Case 2:05-cr-00036-MMB Document 102 Filed 08/13/09 Page 6 of 7
7

C. Ineffective Assistance of Counsel

Finally, Defendant argues that his counsel was ineffective for failing to raise the two

issues discussed above prior to and during trial. (Def.’s Mot. Vacate 6.) Whether a defendant

was denied effective assistance of counsel is controlled by Strickland v. Washington, 466 U.S.

668 (1984). “Under the Strickland standard, in order to prevail on a claim of ineffective

assistance of counsel, a petitioner must establish that: (1) counsel’s performance was deficient,

and (2) counsel’s deficient performance prejudiced the defense.” United States v. Zahir, 2008

WL 5050180, at *3 (E.D. Pa. Nov. 26, 2008) (Baylson, J.) (citing Strickland, 466 U.S. at 687). 

Here, the defendant fails to meet the first prong of the Strickland test. Counsel’s

performance cannot be termed ineffective for failing to raise baseless arguments. In the cases

cited by Defendant, the government had improperly amended an indictment, statements were

improperly introduced, or some other improper action was taken at or before trial, and counsel

failed to raise these issues. Defendant’s claims concerning an amended indictment and failure to

identify and call the informant as a witness are baseless for the reasons discussed above, and

Defendant’s counsel cannot be ineffective for failing to raise these baseless claims.

IV. Conclusion

This Court finds no probable cause to issue a certificate of appealability.

An appropriate Order follows.

Case 2:05-cr-00036-MMB Document 102 Filed 08/13/09 Page 7 of 7