IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA : CRIMINAL ACTION

:

v. :

:

JAMES CARSTARPHEN : NO. 05-467

MEMORANDUM AND ORDER

McLaughlin J. July 28, 2008

A federal grand jury returned an indictment on August

18, 2005, charging James Carstarphen with conspiracy, in

violation of 18 U.S.C. § 371; armed carjacking, in violation of

18 U.S.C. § 2119; kidnaping, in violation of 18 U.S.C. § 1201;

carrying, and aiding and abetting the carrying of, a firearm

during and in relation to a crime of violence, in violation of 18

U.S.C. §§ 924(c)(1) and (2); and possession of a firearm by a

convicted felon, in violation of 18 U.S.C. § 992(g)(1), arising

out of the gunpoint abduction of a woman and her automobile from

Philadelphia, Pennsylvania, to Camden, New Jersey, on July 16,

2005.

The defendant pled guilty to the indictment on April

19, 2006. On March 14, 2007, the District Court imposed a

sentence of 205 months imprisonment, a term of five years

supervised release, a fine of $500, and a special assessment of

$500. The defendant did not appeal his sentence. The defendant

filed a motion to vacate, set aside and correct sentence under

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On June 9, 2008, the defendant filed a motion for 1

discovery related to his § 2255 motion, requesting his

preliminary hearing transcripts, transcripts from the status of

counsel hearings, his DYFS records, Dr. Tepper’s full report, and

transcripts from his sentencing hearing. The government produced

voluntarily the records in it possession: the Tepper report; some

FDC medical records; and two letters from a DYFS social worker.

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28 U.S.C. § 2255 on April 24, 2008. He filed the correct form

for his § 2255 motion on May 12, 2008.

The defendant makes four claims in his § 2255 petition:

defense counsel were ineffective because they failed to make a

motion for a competency hearing; the Court erred because it did

not on its own motion order a competency hearing; the Court erred

in sentencing the defendant because it did not cross-reference

the robbery guidelines; and, the Court erred in imposing a sentence

under both 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(c)(1) for the

same firearm. The Court will deny the motion. 

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I. Discussion

The government argues that the defendant’s petition is

untimely because it was filed on April 24, 2008, over thirteen

months after the defendant was sentenced on March 14, 2007. The

government is correct that the defendant’s motion is untimely

unless equitable tolling is appropriate. The defendant has

argued that there were extraordinary circumstances that should

allow him to file his § 2255 motion past the one year time

period. The Court will assume for purposes of this motion that

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The defendant originally was represented by Benjamin 2

Cooper, Esq. After he pled guilty, the defendant moved to have

Mr. Cooper withdrawn as counsel. Mr. Carstarphen filed a letter

with the Court in which he clearly explained that he did not want

Mr. Cooper representing him anymore because they had irreconcilable

differences. In that letter, the defendant complained that he was

innocent of the charges. Mr. Cooper was allowed to withdraw and

Nialena Caravasos, Esq., was appointed to represent Mr. Carstarphen

at sentencing.

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equitable tolling is appropriate and will consider the merits of

the petition.

A. The Issue of Competency

The defendant claims that his two counsel were

ineffective in failing to request a competency hearing and that

the Court erred in not sua sponte ordering a competency hearing.2

Whether or not counsel will be considered “ineffective” for

habeas purposes is governed by the two-part test articulated by

the Supreme Court in Strickland v. Washington, 466 U.S. 668

(1984). Under Strickland, the defendant must prove that (1)

counsel’s representation fell below an objective standard of

reasonableness; and (2) that there is a reasonable probability

that, but for counsel’s error, the result would have been

different. Id. at 687-96; see also United States v. Nino, 878

F.2d 101 (3d Cir. 1989).

In evaluating the first prong, a Court must be “highly

deferential” to counsel’s decision and there is a “strong

presumption” that counsel’s performance was reasonable. United

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States v. Kauffman, 109 F.3d 186 (3d Cir. 1997)(citing

Strickland). Counsel must have wide latitude in making tactical

decisions. Strickland, 466 U.S. at 689. The defendant must

overcome the presumption that, under the circumstances, the

challenged action might be considered sound trial strategy. 

United States v. Gray, 878 F.2d 702 (3d Cir. 1989). 

The conduct of counsel should be evaluated on the facts

of the particular case, viewed as of the time of the conduct. 

Strickland, 466 U.S at 690. The Third Circuit, quoting

Strickland, has cautioned that: the range of reasonable

professional judgments is wide and courts must take care to avoid

illegitimate second-guessing of counsel’s strategic decisions

from the superior vantage point of hindsight. Gray, 878 F.2d at

711. 

The defendant argues that counsel had knowledge of “a

mass array of documents showing that he was incompetent.” The

Court is not aware of and the defendant does not direct the Court

to any documents questioning his mental competency. The Court

did sign an order allowing a psychological evaluation of Mr.

Carstarphen prior to sentencing. Ms. Caravasos retained Alan M.

Tepper for a psychological evaluation. There was never any

suggestion from Mr. Tepper that Mr. Carstarphen was incompetent

to proceed before the Court. In her sentencing memorandum, Ms.

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Caravasos did describe the defendant’s mental difficulties in her

request for a more lenient sentence.

The Court never had any doubt as to the defendant’s

competency. The defendant’s responses to questions and conduct

during the guilty plea colloquy, his letter to the Court asking

for the withdrawal of Mr. Cooper as counsel and the appointment

of new counsel, and his sentencing letters to the Court and to

the victim evidenced a clear understanding of the nature of the

proceedings, his role in those proceedings, and the role of the

other participants.

B. Other Issues

The government argues that the claim that the Court

used the wrong sentencing guidelines is not cognizable under §

2255. That does appear to be the view of many Courts of Appeals

that have considered this issue. In any event, the defendant’s

argument is without merit. The guideline calculations were

correct.

The defendant’s final argument is that his sentence

under both 18 U.S.C. §§ 924(c)(1) and 922(g)(1) violated double

jeopardy. Congress expressly authorized cumulative punishments

in this case. The statute unambiguously states that the term of

imprisonment imposed under § 924 (c) must run consecutively to

any other term of imprisonment imposed on the defendant. In any

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event, §§ 922(g) and 924(c) constitute separate offenses under

Blockburger v. United States, 284 U.S. 299, 304 (1932). Each

requires proof of a fact that the other does not. They were

designed to deter and punish two different types of antisocial

conduct. There was no violation of the double jeopardy clause in

this case.

An appropriate order follows.

Case 2:05-cr-00467-GAM Document 108 Filed 07/28/08 Page 6 of 7
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA : CRIMINAL ACTION

:

v. :

:

JAMES CARSTARPHEN : NO. 05-467

ORDER

AND NOW, this 28th day of July, 2008, upon

consideration of defendant’s motion to vacate, set aside, or

correct sentence by a person in federal custody under 28 U.S.C.

§ 2255 (Docket No. 103), and the government’s opposition thereto,

IT IS HEREBY ORDERED that said motion is DENIED for the reasons

stated in a memorandum of today’s date. IT IS FURTHER ORDERED

that a certificate of appealability is denied because the

defendant has not made a substantial showing of the denial of a

constitutional right. 

BY THE COURT:

/s/ Mary A. McLaughlin

MARY A. McLAUGHLIN, J.

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