IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA :

: CRIMINAL ACTION 

v. : 

: NO. 05-307-3

REGINALD YOUNG : 

______________________________________________________________________________

REGINALD YOUNG :

: CIVIL ACTION 

v. : 

: NO. 10-5518

UNITED STATES OF AMERICA : 

SURRICK, J. JANUARY 20 , 2012

MEMORANDUM 

Presently before the Court is Petitioner Reginald Young’s Motion To Vacate, Set Aside,

Or Correct Sentence By A Person In Federal Custody under 28 U.S.C. § 2255. (ECF No. 269,

05-307-3.) For the following reasons, Petitioner’s Motion will be denied. 

I. BACKGROUND

Petitioner Reginald Young was indicted on one count of conspiracy to distribute 500

grams or more of cocaine, and 100 grams or more of heroin, in violation of 21 U.S.C. § 846

(Count One); one count of possession with intent to distribute 500 grams or more of cocaine, in

violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) (Count Two); and one count of possession with

intent to distribute 100 grams or more of heroin, in violation of 21 U.S.C. §§ 841(a)(1) and

(b)(1)(B) (Count Three). (Indictment 1, ECF No. 80.) On June 8, 2006, Petitioner was found

guilty by a jury on all three counts. (Trial Tr. 5-6, June 8, 2006.) 

Case 2:05-cr-00307-RBS Document 287 Filed 01/20/12 Page 1 of 15
Petitioner pursued several avenues for post-trial relief. He filed a Motion For Judgment

of Acquittal and a Motion For New Trial pursuant to Federal Rules of Criminal Procedure 29 and

33, arguing that the evidence presented was insufficient to support the jury’s findings. (Mot. for

Judgment, ECF No. 151.) By Memorandum and Order dated January 2, 2008, we denied the

motions observing that the evidence against Defendant was overwhelming. (Order on Mot. for

New Trial, ECF No. 217.) Petitioner was sentenced to a period of incarceration of 270 months. 

(ECF No. 246.) Petitioner filed an appeal in the Third Circuit Court of Appeals. (ECF Nos. 250,

253). In an opinion dated June 30, 2009 the Third Circuit affirmed the judgment of the District

Court. United States v. Young, 334 F. App'x 477 (3d Cir. 2009). The Supreme Court denied a

writ of certiorari on November 2, 2009. Young v. United States, 130 S.Ct. 524 (2009).

Petitioner now seeks relief on the following seven grounds. 

1. Petitioner claims that trial counsel was ineffective for failing to articulate a

specific objection to allegedly prejudicial testimony under Federal Rule of

Evidence 404(b). (Pet. 4, Pet’r Mem. 5.) 

2. Petitioner faults his appellate counsel for failing to challenge a perceived lack of

curative instructions related to allegedly 404(b) prejudicial evidence. (Pet. 5,

Pet’r Mem. 17.)

3. Petitioner contends that trial counsel was ineffective for failing to make a motion

for acquittal, pursuant to Federal Rule of Criminal Procedure 29, at the close of

the Government’s case-in-chief and after the jury’s verdict had been submitted. 

(Pet. 7, Pet’r Mem. 20.)

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4. Petitioner argues that trial counsel failed to challenge the sufficiency of a search

warrant which law enforcement executed concurrently with his arrest on August

25, 2005. (Pet. 8, Pet’r Mem. 29.)

5. Petitioner claims that trial counsel failed to properly object to a Government

witness’ testimony about Petitioner’s handwriting. (Pet. 13, Pet’r Mem. 36.) 

6. Petitioner alleges that trial counsel failed to properly object to the authentication

of crime lab reports. (Pet. 14, Pet’r Mem. 38.)

7. Petitioner contends that his sentencing counsel failed to challenge an upward

adjustment in the calculation of his base offense level pursuant to U.S.S.G. §

3B1.1. (Pet. 16, Pet. Mem. 55) The grounds for relief cited by Petitioner are

frivolous. 

II. LEGAL STANDARD

Pursuant to 28 U.S.C. § 2255, a federal prisoner may move the sentencing court to vacate,

set aside or correct a sentence “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.” 28 U.S.C. § 2255(a). Relief under this provision is

generally available “to protect against a fundamental defect which inherently results in a

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

procedure.” United States v. DeLuca, 889 F.2d 503, 506 (3d Cir. 1989).

While the court may in its discretion hold an evidentiary hearing on a Section 2255

petition, Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989), such a hearing need not be held

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if the “motion and the files and records conclusively show that the prisoner is entitled to no

relief.” 28 U.S.C. § 2255(b); see also United States v. Day, 969 F.2d 39, 41-42 (3d Cir. 1992).

III. DISCUSSION

In order to make out a claim of ineffective assistance of counsel, “a habeas petitioner

must show that his counsel’s performance was deficient and that this deficient performance

caused him prejudice.” Saranchak v. Beard, 616 F.3d 292, 301 (3d Cir. 2010) (citing Strickland

v. Washington, 466 U.S. 668, 687 (1984)). In order to show that counsel’s performance was

deficient, a petitioner “must show that counsel’s representation fell below an objective standard

of reasonableness, which means reasonableness under prevailing professional norms.” United

States v. Smack, 347 F.3d 533, 537 (3d Cir. 2003) (quoting Strickland, 466 U.S. at 688). 

Prejudice is established only when the petitioner can show that “there is a reasonable probability

that, but for counsel’s professional errors, the result of the proceeding would have been

different.” United States v. Thornton, 327 F.3d 268, 271 (3d Cir. 2003) (quoting Strickland, 466

U.S. at 694).

A strong presumption exists that counsel’s conduct falls within the wide range of

reasonable professional assistance. Strickland, 466 U.S. at 689; see also id. (“Judicial scrutiny of

counsel’s performance must be highly deferential.”); Kimmelman v. Morrison, 477 U.S. 365, 382

(1986) (“Strickland’s standard, although not insurmountable, is highly demanding. . . . Only

those habeas petitioners who can prove under Strickland that they have been denied a fair trial by

the gross incompetence of their attorneys will be granted the writ.”). 

A. Trial Counsel’s Failure to Cite Fed. R. Evid. 404(b)

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Petitioner claims that he was denied the effective assistance of counsel because his trial

counsel failed to specifically cite Federal Rule of Evidence 404(b) when he objected to the 1

testimony of a government witness. (Pet’r Mem. 5.) This claim arises from an exchange

between Assistant United States Peter D. Hardy and Ricardo Rodriguez. Rodriguez is a former

police officer who had been discharged from the police force for obstruction of justice. 

Rodriguez was describing the circumstances of his firing by the Philadelphia Police Department:

Q. Okay. And have you ever been employed as a police officer?

A. Yes.

Q. Where?

A. Philadelphia.

Q. Okay. How long were you a police officer?

A. Three years.

Q. From when to when?

A. From 1984 to 1987.

Q. And were you fired?

A. Yes.

Q. Why?

A. Because I -- I told the Defendant that they were going to come and ask him questions.

Q. I don't want to get into all the gory details, but just so folks understand what

you're talking about, what do you mean by that?

A. I was interfering in an ongoing investigation.

Q. What did you do?

A. I told the Defendant that the Homicide was looking -

(Trial Tr. 170-71, June 6, 2006.) Defense counsel objected to Rodriguez’s testimony and the

objection was sustained. (Id. at 171.)

In his Motion for a New Trial, Petitioner cited this testimony, and contended that this

exchange was improperly admitted into evidence. According to Petitioner, the mention of

“homicide” was highly prejudicial, and justified the granting of a new trial. (Supp. Mot. for New

 Rule 404(b) of the Federal Rules of Evidence states, in relevant part: “Evidence of other 1

crimes, wrongs, or acts is not admissible to prove the character of a person in order to show

action in conformity therewith.”

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Trial 8, ECF No. 189.) We rejected the argument noting that “there was nothing in Rodriguez’s

answer that indicated that he was referring to [Petitioner] when he made this statement.”2

Moreover, the objection by Defendant’s attorney was sustained. (Order on Mot. for New Trial

7.) 

Petition now contends that counsel was ineffective for failing to specifically refer to Rule

404(b) in his objection. It is true that Counsel did not explicitly refer to Rule 404(b). However,

Counsel immediately objected to Rodriguez’s testimony, and his objection was sustained.

Petitioner offers no basis for the claim that failure to cite to a specific rule constitutes attorney

error.

Furthermore, the jury was specifically instructed at the beginning of the trial and at the

close of trial that “any proposed testimony, or any proposed exhibit to which an objection was

sustained should be entirely disregarded.” (Trial Tr. 164, June 7, 2006.) Absent information

which suggests otherwise, we presume that jurors follow the court’s instructions. United States

v. Lloyd, 269 F.3d 228, 241 (3d Cir. 2001). The mere inclusion of the specific number of the

Rule in this objection would not have changed the jury’s verdict or otherwise affected the

outcome of the proceedings. Counsel acted properly in objecting to the testimony, and was not

required to cite the Rule in doing so. Counsel’s objection was sustained. This was enough. For

trial counsel to have done anything more would have simply highlighted the situation. Since

 Generally, Rodriguez referred to Petitioner as “Reggie” throughout his testimony. (See 2

Trial Tr. 143, 146, 147, June 6, 2006.) The context of Rodriguez’s statement suggests that

Rodriguez was discussing warnings given, while he was a police officer, to an unrelated

individual regarding ongoing investigations. There is no apparent connection between those

warnings and Petitioner. Moreover, the Government has submitted affidavits from law

enforcement agents that establish that Rodriguez was not talking about Petitioner. 

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Petitioner cannot show that counsel’s representation fell below an objective standard of

reasonableness, his first claim of ineffective assistance of counsel fails.

B. Appellate Counsel’s Failure to Challenge Lack of Curative Instructions

Petitioner contends that appellate counsel was ineffective for failing to argue that the trial

court should have given curative instructions to the jury. (Pet’r Mem. 17.) At trial, neither party

requested that such instructions be given. (Id.) The Court was under no obligation to sua sponte

give additional curative instructions which certainly would have drawn additional attention to

allegedly prejudicial statements. The approved Third Circuit instruction on Rule 404(b) evidence

would have been completely inappropriate and harmful to Petitioner. (See Third Circuit Model

Jury Instruction 4.29.) Moreover, the Court twice instructed the jury that it was to disregard the

subject matter of sustained objections. (See Trial Tr. 45, June 5, 2006; Trial Tr.164, June 7,

2006.) Jurors are presumed to follow the Court’s instructions. Lloyd, 269 F.3d at 241.

Appellate counsel’s decision not to raise this issue did not constitute ineffective

assistance. The claim lacked merit. “There can be no Sixth Amendment deprivation of effective

counsel based on an attorney’s failure to raise a meritless argument.” United States v. Sanders,

165 F.3d 248, 253 (3d Cir. 1999). Accordingly, Petitioner’s second claim is denied.

C. Failure to Raise Motion for Acquittal Under Federal Rule of Criminal

Procedure 29

Petitioner argues that trial counsel was ineffective for failing to move for a judgment of

acquittal. Specifically, Petitioner claims that trial counsel did not so move, pursuant to Federal

Rule of Criminal Procedure 29(a), at the close of the Government’s case-in-chief. (Pet’r Mem.

20.) Petitioner also claims that trial counsel did not so move, pursuant to Federal Rule of

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Criminal Procedure 29(c), after the jury had returned its verdict. (Id. at 23.) Petitioner is simply

wrong.

A court is obligated to grant Rule 29 motions if the Government’s “evidence is

insufficient to sustain a conviction.” Fed. R. Crim. P. 29(a). At the close of the Government’s

case, trial counsel asked the Court to grant a “motion for the discharge of the charges.” (Trial Tr.

95, June 7, 2006.) Counsel argued that “the government has [not] presented enough information

for these charges to be submitted to the jury.” (Id.) There is no question that Counsel

substantively moved for a judgment of acquittal. Whether he uttered the words “Rule 29" is

irrelevant. Counsel properly made the motion, which the Court properly denied.

After the jury had returned its verdict, trial counsel filed a Motion For Judgment of

Acquittal, pursuant to Rule 29(c). Trial counsel also filed a Motion For A New Trial pursuant to

Rule 33. We denied these motions, noting that the evidence “supporting the jury’s conclusion

that [Petitioner] was guilty on all counts was not only sufficient, it was overwhelming.” (Order

on Mot. for New Trial 4.)

Trial counsel pursued the proper motions at every appropriate juncture. Accordingly,

counsel’s performance was not deficient. The uttering of the words “Rule 29" would have

changed nothing. As the Third Circuit noted in affirming the judgment of this Court, the

evidence of Petitioner’s guilt was sufficient to support the jury’s finding and the verdict was not

against the weight of the evidence. United States v. Young, 334 F’ Appx. 477, 481 n.3 (3d Cir.

2009). Petitioner’s third claim must be denied.

D. Failure to Challenge Sufficiency of Search Warrant

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Petitioner contends that trial counsel failed to challenge the probable cause underlying

search warrants executed on the date of his arrest. (Pet’r Mem. 29.) In particular, Petitioner

alleges that trial counsel did not contest the sufficiency of two affidavits used by law enforcement

to justify the issuance of the warrants. (Id.) In addition, Petitioner claims that trial counsel failed

to inquire whether Petitioner’s prior criminal history was improperly used as justification to issue

the warrants. (Id. at 31.) 

The search warrants in question were executed by law enforcement on August 25, 2005,

at two properties located at 1506 and 1508 Lindley Avenue. Philadelphia law enforcement

agents obtained keys from Petitioner, and used the keys to enter the second floor apartment at

1508 Lindley Avenue. (Trial Tr. 12, June 7, 2006.) Items seized during the search of the

apartment were admitted into evidence at Petitioner’s trial. (Resp. at 25.)

“Searches pursuant to a warrant will rarely require any deep inquiry into reasonableness.” 

United States v. Leon, 468 U.S. 897, 922 (1984) (citation omitted). In granting an application for

a search warrant, a magistrate must have a “substantial basis” for concluding that probable cause

is present. Illinois v. Gates, 462 U.S. 213, 236 (1983). A magistrate determines the presence of

probable cause based on the “totality of the circumstances.” Id. at 233. The Supreme Court has

explained that the “task of the issuing magistrate is simply to make a practical, common-sense

decision whether, given all the circumstances set forth in the affidavit before him, including the

‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair

probability that contraband or evidence of a crime will be found in a particular place.” Id. at 238-

39. A district court reviews challenges to the sufficiency of a search warrant application under a

deferential standard. See id. at 235.

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“A warrant may issue even in the absence of direct, first-hand evidence” linking the place

to be searched with criminal activity. See United States v. Ritter, 416 F.3d 256, 262 (3d Cir.

2005) (citations omitted). In this case, however, substantial evidence linked the Lindley Avenue

apartments to Young’s criminal activity. The search warrants were based partially on information

proffered by two informants, who the Affidavit strongly suggests were Petitioner’s coconspirators Rodriguez and Ramirez. (Aff. ¶¶ 7-8.) In fact, the Affidavit actually recites how

Rodriguez and Ramirez told the law enforcement agents how they transported drugs from Texas

to Philadelphia to be delivered to Petitioner. Petitioner’s co-conspirators admitted to

participating in criminal activity with Petitioner, and were, at the time, cooperating with the

Government. (Gov’t. Resp. 27.) There is no reason to doubt that they had an adequate “basis of

knowledge” for any statements made to law enforcement, and that their primary motivation was

to be truthful.

Moreover, the confidential informants’ statements were not the sole, or even the primary,

basis for issuance of the warrant. The magistrate judge relied on condensed versions of recorded

telephone conversations that implicated Petitioner in ongoing criminal activity. (Aff. ¶ 7.) In

addition, seizures of illicit drugs, interceptions of drug-connected currency, and information

received from a number of law enforcement agents contributed to the magistrate’s determination

that probable cause existed to justify a search warrant. (Id.)

 Given the deference with which district courts treat a magistrate’s approval of a search

warrant, and the evidence which clearly established probable cause, Petitioner would not have

succeeded in a challenge to the sufficiency of the search warrant affidavit. Petitioner’s counsel

cannot be deemed ineffective for failing to raise a meritless claim. See Sanders, 165 F.3d at 253.

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Petitioner’s claim that trial counsel was ineffective for failing to inquire about the use of

his criminal history in the warrant application process is similarly without merit. The sole

mention in the affidavit of Petitioner’s past criminal history is in a footnote which states that

“[Petitioner] is on federal supervised release for bank fraud in violation of 18 U.S.C. § 1344.”

(Aff. ¶ 4(b) n.1.) The search warrant affidavit here was more than sufficient to support the

issuance of the search warrant. The suggestion that the affidavit lacked probable cause is

ridiculous. The mention of Petitioner’s criminal record does not render the affidavit defective.3

Trial counsel would have had no basis upon which to challenge this warrant, and cannot

be faulted for failing to do so. Furthermore, given the overwhelming nature of the evidence

against Petitioner, which included wiretaps and the testimony of two co-conspirators, the

outcome of the proceedings would have been no different without the fruits of the warrant.

Accordingly, Petitioner’s fourth claim is denied.

E. Failure to Object to Government Witness’ Testimony about Handwriting

Petitioner argues that trial counsel was ineffective for failing to cite two Federal Rules of

Evidence in an objection to the admission of testimony about Petitioner’s handwriting. (Pet’r

Mem. 33.) Specifically, Petitioner claims that had trial counsel cited Rules 701 and 901(b)(2),

“the outcome [of the motion] would have been different.” (Id.) Petitioner states that had trial

 We note that “[t]he use of prior arrests ... is often helpful” to establish probable cause,

3

particularly where “the previous arrest or conviction involves a crime of the same general nature

as the one which the warrant is seeking to uncover.” United States v. Stearn, 597 F.3d. 540, 557

(3d Cir. 2010). In this case the mention of Petitioner’s criminal record was for the purpose of

establishing that he lived at 1506 Lindley Avenue and had been seen at 1508 Lindley Avenue. 

The affidavit recited that Petitioner’s probation officer had seen him at those addresses. 

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counsel “properly objected,” the trial court would, “in all probability,” have granted a mistrial. 

(Id.)

Rodriguez testified that he had seen Petitioner’s handwriting. When the Government

asked Rodriguez to identify writing that may have belonged to Petitioner, Petitioner’s trial

counsel objected. The Court sustained the objection, and instructed the jury to disregard both the

question and Rodriguez’s answer, telling the jurors to “erase it from your minds” and “not

consider it.” (Trial Tr. 188, June 6, 2006.) 

Trial counsel cannot be deemed ineffective for failing to cite to specific Rules in making

an objection. The Court sustained trial counsel’s objection and cautioned the jury to disregard the

question and the answer. There is no basis for alleging that trial counsel’s performance was, in

any way, deficient. Furthermore, Petitioner’s claim that the Court would have granted a mistrial

had the objection been differently phrased is wholly devoid of merit. Accordingly, Petitioner’s

fifth claim is denied.

F. Failure to Articulate Specific Objections to Crime Lab Reports

Petitioner contends that trial counsel was ineffective for failing to properly object to

Government witnesses’ testimony about the authenticity of crime lab reports. (Pet’r Mem. 36.) 

Petitioner and trial counsel entered into a stipulation with the Government that the

substances recovered from Ramirez and Rodriguez on July 30, 2004, were 4.01 kilograms of

cocaine and 917 grams of heroin, as determined by the Drug Enforcement Agency’s (DEA)

laboratory. (Trial Tr. 5, June 6, 2006 & Gov’t. Ex. 100.) Petitioner further stipulated that the

laboratory reports were admissible at trial. (See Trial Tr. 5-6, June 6, 2006 & Gov’t. Exs. 22A,

22B.) At trial, a law enforcement agent testified about the tests conducted on the recovered

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substances. (Trial Tr. 90-91, June 5, 2006). The agent further testified that, after the testing had

been completed, the substances had been destroyed. (Id. at 89.)

After the agent’s testimony, Petitioner’s counsel asked the Court for permission to

withdraw the stipulation, on the grounds that Petitioner was unaware that the drugs had been

destroyed. The Court denied Petitioner’s request, noting that Petitioner’s defense was not that 4

the transfer of drugs had never occurred, but rather that Petitioner was not connected to the

Rodriguez and Ramirez drug transaction. (Trial Tr. 2-5, June 6, 2006.)

Petitioner offers no basis for concluding that trial counsel’s performance was deficient.

Petitioner’s trial counsel stipulated to the DEA crime lab report because Petitioner’s defense

necessarily admitted that the substances in question were, in fact, illicit drugs. Petitioner’s

counsel further attempted to withdraw the stipulation upon Petitioner’s request. That the Court

denied Petitioner’s attempt to withdraw the stipulation does not reflect on trial counsel’s

performance. 

Petitioner cannot demonstrate that trial counsel was ineffective for stipulating to the

crime lab reports. Such stipulations are commonplace, especially in cases that are being

defended as was this one. Accordingly, Petitioner’s sixth claim is denied.

G. Failure to Challenge Adjustment Under U.S.S.G. Section 3B1.1(c)

Petitioner’s final claim is that his sentencing counsel was ineffective for failing to

properly challenge an upward adjustment in the calculation of Petitioner’s suggested sentence

 Although the Government initially indicated that the substances had been destroyed, 4

while post trial motions were pending, the Government advised that the testifying agent had been

incorrect. According to several Government submissions, the drugs are still intact and available

for inspection by Defendant. (Gov’t. Resp. to Mot. for New Trial 20, ECF No. 154; Gov’t. Resp.

35.) Petitioner has never sought to have the drugs tested. 

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range under the United States Sentencing Guidelines (“U.S.S.G.”). (Pet’r Mem. 38.)

Specifically, Petitioner alleges that sentencing counsel did not object to the addition of two

points to his “base offense level” pursuant to U.S.S.G. § 3B1.1(c) for an aggravated role in the

offense. As a result of the adjustment, Petitioner’s base offense level of 32, which reflected the

quantity of illegal drugs at issue in the case, was raised to 34. Petitioner’s criminal history

category was V. With an adjusted offense level of 34 and a criminal history category of V, 

Petitioner’s sentencing guidelines were 235 to 293 months. 

Section 3B1.1(c) of the U.S.S.G. provides for a two-level enhancement if the defendant

was “an organizer, leader, manager, or supervisor in any criminal activity other than described in

subsections (a) and (b).” A supervisor is defined as a person who exercises a degree of control 5

over other individuals involved in the commission of the crime. United States v. DeGovanni,

104 F.3d 43, 46 (3d Cir. 1997). To qualify as a supervisor, a defendant need only direct or

control the actions of one other participant. United States v. BethanCourt, 65 F.3d 1074, 1081

(3d Cir. 1995). 

There was ample evidence to support the finding that Petitioner acted in a supervisory

role. In fact, the Third Circuit specifically affirmed the finding that Petitioner acted in a

supervisory role. United States v. Young, 334 F’ Appx. 477, 482(3d Cir. 2009). During

Petitioner’s trial, the Government presented evidence that Petitioner had directed his coconspirators’ actions on several occasions. For example, Rodriguez had traveled across state

lines at Petitioner’s behest. Petitioner had instructed Rodriguez on where and when to meet

 U.S.S.G. § 3B1.1(a)-(b) imposes four- and three-level enhancements for defendants, if 5

the involvement was more significant or the criminal activity in question more extensive.

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Ramirez, and discussed details of the drug sale that led to Rodriguez’s arrest. (Gov’t. Resp. 38,

ECF No. 279.)

In any event, sentencing counsel did challenge the upward adjustment. In a March 26,

2008 letter, Petitioner challenged the United States Probation Office’s Presentence Investigation

Report (“PSR”), and notified the Court of its objections to the Probation Office’s §3B1.1(c)

finding. The Court ultimately agreed with the PSR, and imposed a sentence of 270 months

imprisonment, which was within the guideline range of 235 to 293 months.

Petitioner’s sentencing counsel challenged the two-point adjustment in the calculation of

Petitioner’s U.S.S.G. range. Consequently, there is no basis for the claim that counsel’s

performance was deficient. Accordingly, Petitioner’s seventh claim is denied.

IV. CONCLUSION

For the foregoing reasons, Petitioner’s Motion will be denied with prejudice. No

certificate of appealability will be issued.

An appropriate Order follows. 

BY THE COURT:

 

R. BARCLAY SURRICK, J.

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