IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA :

: CRIMINAL ACTION

v. :

: NO. 05-440-01

ALTON COLES :

MEMORANDUM

SURRICK, J. MARCH 26, 2024

Presently before the Court are five motions for habeas corpus relief pursuant to 28 U.S.C.

§ 2255 (ECF Nos. 1624, 1647, 1702, 1741, 1816) and a Motion to Expand the Record (ECF No. 

1574) filed by Defendant Alton Coles.

1

 For the following reasons, Defendant’s motions

pursuant to Section 2255 will be denied, and Defendant’s Motion to Expand the Record will be 

granted in part and denied in part. 

I. BACKGROUND

On February 21, 2007, a grand jury returned a 194-count Fifth Superseding Indictment 

against Alton Coles and twenty-one co-defendants, alleging that they participated in a drug 

distribution conspiracy and committed other offenses. (ECF No. 295.) The first six coconspirators, including Defendant, went to trial in January of 2008. The Government presented 

extensive evidence of the conspirators’ $25 million cocaine sales operation and related gun 

1 The pending habeas corpus motions are: (1) pro se Habeas Corpus Motion Under 28 U.S.C.

§ 2255 to Vacate, Set Aside, or Correct Sentence by a Person In Federal Custody (ECF No. 1624); (2) pro 

se Motion Pursuant to Rule 15(c) of Federal Rules of Civil Procedure, Supplemental Pleading (ECF No. 

1647); (3) pro se Motion for Leave to File Supplemental Brief Pursuant to the Fed. R. Civ. P. Rule 15(d) 

(ECF No. 1702); (4) pro se Memorandum of Law in Support of 2255 Motion (ECF No. 1741); and (5) 

Supplemental Memorandum of Law Addressing the Necessity for the Court to Have an Evidentiary 

Hearing on his Claims of Ineffective Assistance of Counsel Pursuant to 28 U.S.C. § 2255 (ECF No.

1816).

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possession, money laundering, and various other crimes. On March 4, 2008, after almost eight 

weeks of testimony and nearly a week of jury deliberations, the jury returned guilty verdicts

against Defendant for conspiracy in violation of 21 U.S.C. § 846 (Count 1); engaging in a 

continuing criminal enterprise (“CCE”) in violation of 21 U.S.C. § 848 (Count 2); three counts of 

possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c) 

(Counts 68, 70, and 72); one count of possession of a firearm by a convicted felon in violation 

of 18 U.S.C. § 922(g) (Count 59); and various money laundering and drug offenses. Defendant 

filed the instant Motions raising a variety of ineffective assistance of counsel and prosecutorial 

misconduct claims. 

II. LEGAL STANDARD

Section 2255 permits a prisoner in federal custody to challenge the validity of his 

sentence on a variety of bases, including ineffective assistance of counsel. 28 U.S.C. § 2255; see

also United States v. Eakman, 378 F.3d 294, 297 (3d Cir. 2004). In order to establish a Sixth 

Amendment ineffective assistance of counsel claim, a defendant must show that: (1) his or her 

attorney’s performance was deficient, and (2) the deficient performance prejudiced his or her 

defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish deficient 

representation, a defendant must show that counsel’s performance “fell below an objective 

standard of reasonableness under prevailing professional norms.” Buehl v. Vaughn, 166 F.3d 

163, 169 (3d Cir. 1999) (citing Strickland, 466 U.S. at 688). To establish prejudice, “the 

defendant must show that there is a reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been different.” Id. at 695.

Under Strickland, counsel is presumed to have acted within the range of “reasonable professional 

assistance.” Id. at 689. A defendant is entitled to an evidentiary hearing unless the motions, 

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files, and records of the case conclusively show that he is not entitled to relief. See 28 U.S.C. 

§ 2255(b); United States v. Booth, 432 F.3d 542, 545-46 (3d Cir. 2005).

III. DISCUSSION

Defendant makes the following arguments:

(1) Trial and appellate counsel were ineffective for failing to object to the introduction of 

Defendant’s intercepted phone calls because the wiretap application omitted Defendant’s 

Urban Fleet Mobile Identifier number, and the prosecutor committed misconduct by 

failing to alert the Court to the application’s purported deficiency;

(2) Trial counsel was ineffective for failing to investigate over forty witnesses who would 

have testified about Defendant’s various sources of income;

(3) Trial counsel was ineffective for failing to call co-conspirator Tyrek McGeth to testify on 

Defendant’s behalf;

(4) Trial and appellate counsel were ineffective for failing to challenge the sufficiency of 

Defendant’s conspiracy conviction by arguing that Defendant’s co-conspirators were 

merely his customers;

(5) Appellate counsel was ineffective for failing to challenge the sufficiency of Defendant’s 

continuing criminal enterprise conviction because the jury did not name Defendant’s coconspirators when it rendered the guilty verdict;

(6) Trial counsel was ineffective for failing to introduce the video Menace into evidence at 

trial;

(7) Trial counsel was ineffective for failing to object to and discredit evidence showing that 

co-conspirator Randall Austin shot two people during a cocaine sale, and appellate 

counsel was ineffective for failing to challenge the admission of that evidence on direct 

review;

(8) Trial counsel was ineffective for failing to move to suppress evidence recovered in 

Austin’s apartment;

(9) Trial counsel was ineffective for failing to object to Special Agent Brandon Harrison’s 

testimony as lacking a foundation as an expert witness;

(10) Trial counsel was ineffective for advising Defendant to conduct a pretrial interview and 

leaking information to the press;

(11) Trial counsel was ineffective for failing to investigate Officer Brian Reynolds, and the 

prosecutor committed misconduct with regard to the officer’s history;

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(12) Trial counsel was ineffective for failing to convey a plea offer to Defendant;

(13) Appellate counsel was ineffective for failing to raise an Alleyne claim on direct appeal;

(14) Appellate counsel was ineffective for failing to challenge the admission of Charlton 

Custis’s testimony on direct review;

(15) Trial counsel was ineffective for failing to undertake any pretrial investigation;

(16) Trial counsel was ineffective for failing to object to a conflict of interest between 

Defendant and co-defendant James Morris’ attorney, Wayne Powell; and

(17) Cumulative errors at trial entitle him to relief.

We will analyze the arguments in the same order.

A. Trial and appellate counsel were not ineffective for failing to raise meritless 

objections to the introduction of Defendant’s intercepted phone calls, and the 

prosecutor committed no misconduct in relation to the calls.

Defendant asserts that trial counsel was ineffective for failing to move to suppress his 

intercepted phone calls on the ground that it failed to specify his cellphone’s Urban Fleet Mobile 

Identifier (“UFMI”) number. (ECF No. 1624 at 22-36; ECF No. 1741 at 13.) Trial counsel was 

not ineffective because the UFMI number was not necessary to adequately identify the records to 

be searched. Appellate counsel was not ineffective for failing to raise this waived and meritless 

claim on appeal. There is no evidence to support Defendant’s baseless claims of prosecutorial 

misconduct.

Prior to trial, Defendant moved to suppress the information contained within the wiretap 

application on another Title III ground: he argued that the wiretap failed to satisfy the statutory 

“necessity” requirement of § 2518(1)(c). After a thorough review of the arguments and 

evidence, we denied his motion. United States v. Coles, No. 05-440, 2007 WL 2916488, at *1 

(E.D. Pa. Oct. 4, 2007). Now, Defendant asserts that there was a different Title III error because 

the May 16, 2005, authorization for interception of wire communications signed by Deputy 

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Assistant Attorney General Joseph F. Blanco failed to identify Defendant’s phone by its UFMI 

number; it only approved the interception in reference to Defendant’s telephone number—(267) 

784-3964—and International Mobile Subscriber Identifier (“IMSI number”)—

316010002062652. However, the letter did note: “The authorization given is intended to apply 

not only to the target telephone number listed above, but to any telephone or telephone number 

accessed through or by the IMSI number referenced above and to any other IMSI number 

assigned to the target telephone number referenced above.” (ECF No. 1624, Ex. A, 2.)

In order to determine whether a UFMI number must be included within letters 

authorizing wiretaps, we first explain what a UFMI number is. Nextel cellphones, such as the 

one Defendant owned, “can be used to engage in both traditional, open-line telephone 

communications and push-to-talk (‘PPT’) communications. A PTT communication is sometimes 

referred to [as] ‘direct connect.’” United States v. House, No. 09-273, 2015 WL 4111457, *4 

(W.D. Pa. July 8, 2015) (citations to the record omitted). Both PTT and traditional telephone 

communication use the same network and cellphone device. Id.

When engaging in a traditional telephone communication using any cellular 

telephone, the line remains open and both parties can talk over it at any time, or 

even at the same time, until one participant hangs up. A PTT conversation, 

however, is akin to a walkie-talkie communication. It is a one-way communication 

in which one person connects the line by pressing a button on the side of his or her 

cellular telephone device, speaks, and disconnects the line by releasing the button, 

and the other person responds by connecting the line by pressing a button on the 

side of his or her cellular telephone device, speaking, and disconnecting the line by 

releasing the button.

Id. at *5. Traditional phone calls use ten-digit numbers, which include a three-digit area code 

and are separated by dashes, but PTT conversations use a different identification number, called 

an Urban Fleet Member Identification number (“UFMI number”), which use three groups of 

numbers of varying lengths, separated by two asterisks. Id. Phones also have another 

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identifying number, an ISMI number, which is linked to the phone’s SIM card, a circuit card 

required to operate the phone. Id. at *8.

In determining whether a UFMI number is critical to obtaining a wiretap, we turn to 

House, 2015 WL 4111457, which analyzed a nearly identical issue. House moved to suppress 

information obtained from a wiretap of his cellphone, which he asserted was the result of an 

illegal search, in a drug trafficking case against him. Id. at *1. The Government sought a 

warrant for House’s phone and identified it in its warrant application by its ten-digit telephone 

number and ISMI number. While “the application, affidavit, and court order for the pen/trap on 

TT4 did not refer to direct connect or PTT communications, the service order stated that 

information about PTT communications should be provided to the FBI.” Id. at *9. Pursuant to 

Title III, a judge issued a wiretap order referring to a traditional telephone number, ISMI 

number, and subscriber information. Id. Defendant argued before the suppression court that law 

enforcement failed to comply with Title III’s requirement that the facility be identified with 

particularity because the UFMI number was not specified in the affidavit, application, and court 

orders.

In determining that House’s PTT communications should not be suppressed, the court 

held that “[c]ellular telephone devices are sufficiently identified for purposes of Title III by IMSI 

or ESN number, subscriber information, traditional telephone number, or UFMI/PTT number, or 

any combination of the same.” Id. at *21; see also United States v. Vasconcellos, 658 F. Supp.

2d 366, 394 (N.D.N.Y. 2009) (holding that New York’s analogous wiretap statute permitted 

identification by the traditional telephone number and subscriber information as sufficient to 

satisfy its particularity requirements regarding the interception of PTT communications). 

Further, it observed that, even where a telephone or other identification number changes, 

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interception can continue even where the court does not specifically order that interception may 

continue if a number changes. Id. (citing United States v. Jackson, 41 F. App’x 848, 851 (7th 

Cir. 2002)). Finally, the court observed that “[t]here is no legal requirement that PTT 

communications be separately identified from traditional telephone communications, and, even if 

there were, the requirement would be technical, thus not warranting suppression, and the agents 

would be able to invoke the good faith exception in any event.” House, 2015 WL 4111457, at 

*25.

Accordingly, we find that trial counsel was not ineffective for failing to challenge the 

absence of the UFMI number because there is no requirement that documents supporting a 

wiretap application include the UFMI number. See id.; Vasconcellos, 658 F.Supp.2d at 394. 

The letter explicitly stated that it “appl[ied] not only to the target telephone number listed above, 

but to any telephone or telephone number accessed through or by the IMSI number referenced 

above and to any other IMSI number assigned to the target telephone number referenced above.” 

This is clearly sufficient to identify Defendant’s phone, both as a traditional phone and a directconnect device. Even if the UFMI number should have been included, the omission is excusable

under the good faith exception. Id. at *25. Had counsel raised this meritless issue, he would not 

have been successful in suppressing the evidence. For the same reasons, appellate counsel was 

not ineffective for failing to raise this waived and meritless issue.

Defendant further asserts that two expert witnesses should be permitted to testify in 

support of his mistaken legal argument, but their testimony would not have changed the outcome 

of the suppression hearing. Regarding his first proposed expert, Defendant attaches an email 

from Ben Levitan, a wireless cellular telecommunications expert, who asserts that he would 

“testify to the fact that Nextel service requires a court order for Title III wiretap for their ‘PushCase 2:05-cr-00440-RBS Document 1929 Filed 03/26/24 Page 7 of 32
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to-Talk’ service and a second court order for their cell phone service. These services are distinct 

telecommunications services with separate phone numbers that are combined in a single device 

and as such a court order for Title III wiretap is needed for each.” (ECF No. 1647, Ex. 1.) 

However, experts cannot testify to legal conclusions, so Mr. Levitan’s testimony would be 

inappropriate. M.S. by & through Hall v. Susquehanna Twp. Sch. Dist., 969 F.3d 120, 129 (3d 

Cir. 2020). Moreover, we are aware that Nextel phones can provide two different services 

through the same device, as discussed supra, so this information would not affect the conclusion 

that the warrant was sufficient in this case.

Defendant also proffers that another expert, Arthur Stone, would testify at an evidentiary 

hearing. (ECF No. 1816 at 8.) According to Defendant,

Stone would testify as an expert regarding the numerous critical differences 

between the IMSI number and UFMI feature in an effort to assist the Court in 

understanding the problems and importance of omitting the UFMI number from the 

initial authorization. At a hearing, he would explain that although the IMSI number 

and UFMI feature are packaged together in one handset, they are essentially a 

telephone and walkie talkie that operate separately. Not including the UFMI feature 

in the memorandum is the equivalent of leaving off a separate phone line or 

intercepting communication from a telephone for which permission was never 

sought to intercept.

(Id.) The Court is aware of the above information, so the testimony is unnecessary and 

ineffective.

Finally, Defendant asserts that the prosecutor committed misconduct because according 

to him, the prosecutor “realized [his] error” of omitting the UFMI number from the application, 

“then manipulated the District Court by embedding the request to intercept the UFMI 

communication in the body of the District Court’s application in an effort to circumvent” the 

Wiretap Act’s requirements because the District Court “may not have been aware of the legal 

significance of the requirements for UFMI interception, which allowed the [G]overnment to 

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evade detection of [its] failure to comply [with] the statutory requirement.” (ECF No. 1624 at

32-33.) Defendant has proffered no evidence to support the position that the Government 

believed that its application had any errors or that it misled or deceived Judge Robreno, who 

presided over the search warrant application. 

Under these circumstances, the omission of the UFMI was not an error. Neither trial nor 

appellate counsel were ineffective for failing to challenge the search warrant application on that 

basis, and there is no evidence that the prosecutor committed misconduct in submitting the 

application. Defendant is not entitled to an evidentiary hearing or relief on this issue.

B. Trial counsel was not ineffective for failing to investigate over forty potential 

witnesses who may have testified about Defendant’s various sources of 

income.

Defendant asserts that counsel was ineffective for failing to call forty-five witnesses to 

testify on his behalf. (ECF No. 1624 at 16-27; ECF No. 1670 at 18, 62-66; ECF No. 1647 at 16; 

ECF No. 1816 at 16-20.) Defendant asserts that these witnesses would testify that Defendant 

was very wealthy due to various events that he organized in the early 2000’s, his dog fighting 

ventures, and selling fake drugs. According to Defendant, the witnesses would also testify as to 

the specific amounts of money that Defendant earned from these specific occurrences, which 

would prove that his assets were the fruits of ventures other than selling drugs. These witnesses 

include his co-defendants Asya Richardson (who was his co-defendant at trial) and Gary Creek 

(who had pled guilty at the time of Defendant’s trial and was awaiting sentencing), rapper Kanye 

West, and over ten people listed only by their first name or nickname. Defendant attaches to his 

filings affidavits from five of these proposed witnesses: Amir Wiggins, Jeff Sherrod, Randall 

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Austin, Lisa Natson, and Joseph M. Marrone.

2

 Defendant asserts that he “provided his counsel 

with the fact witnesses and their status.” (ECF No. 1624 at 25.)

Counsel’s apparent decision not to call the witnesses to testify was not deficient for 

several reasons. First, as Defendant admits with regard to all witnesses except for Joseph 

Marrone, it was “highly unlikely” that any of them would have testified because their testimony 

“would expose them to criminal liability for tax evasion,” as many of Defendant’s alleged 

financial ventures were not reported. (ECF No. 1816 at 20.) Second, their proposed testimony 

that Defendant was wealthy because of ventures other than illegal drug sales directly contradicts

counsel’s trial strategy: counsel argued at trial that Defendant was poor in order to explain why 

he purchased various property under others’ names. (See, e.g., 1/16/08 Trial Tr. at 34.) Had

counsel called the Defendant’s proposed witnesses to testify that he was wealthy, it would have 

left the jury to speculate about why Defendant—an allegedly rich man—took out loans for 

property that he should have been able to afford and titled property in others’ names. Third, 

even the hundreds of thousands of dollars that Defendant asserts he earned from his party 

planning and other ventures pales in comparison to the scale of his $25 million cocaine sales 

operation, as Defendant admits in his brief, so the evidence would be insufficient to provide an 

alternative source of his assets. (See ECF No. 1675 at 13) (claiming that the witnesses would 

have collectively proven that Defendant’s income was about a million dollars per year but

admitting that income was “no-where near what [was] alleged by the [G]overnment” and that 

“[a]fter accountability of the assets, the [G]overnment would be left [to prove its] allegations of 

$25 million in drug proceeds”). For the same reasons, Defendant was not prejudiced by 

2 Defendant states that he contacted the individuals from whom he obtained affidavits, but asserts 

that, “the majority of those uncalled previously available witnesses[] will be located and testify to their 

recollection of the claimed business ventures,” which suggests that Defendant has not had any contact 

with these potential witnesses in connection with the filing of this petition. (ECF No. 1675 at 12.) 

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counsel’s alleged failure to investigate witnesses whose availability Defendant has not 

demonstrated and whose cooperation is uncertain at best and present an unsupported argument to 

the jury. Trial counsel was not ineffective.

C. Trial counsel was not ineffective for failing to call co-conspirator Tyrek 

McGeth to testify on Defendant’s behalf.

Defendant also asserts that counsel was ineffective for failing to call Tyrek McGeth, one 

of Defendant’s co-conspirators who was awaiting trial later in the year, as a witness. Defendant 

asserts that McGeth would have testified on his behalf that cooperating witness Desmond Faison 

attempted to recruit him to perjure himself on behalf of the Government. (ECF No. 1624 at 30; 

ECF No. 1741 at 18.) However, Defendant did not assert that counsel was aware of his proposed 

testimony. Counsel cannot be held ineffective for failing to offer the testimony of a witness 

when counsel was not aware that the individual would have testified on behalf of his client. See

Donaldson v. United States, 593 F. Supp. 2d 691, 696 (D. Del. 2009) (holding that counsel was 

not ineffective where the defendant did not ask counsel if a witness could testify on his behalf at 

his sentencing hearing). A hearing or relief on this issue will not be granted.

D. Trial and appellate counsel were not ineffective for failing to challenge the 

sufficiency of his conspiracy conviction.

Defendant also contends that both trial and appellate counsel were ineffective for failing 

to challenge the sufficiency of the evidence to sustain his conspiracy conviction. Specifically, 

Defendant asserts that they should have argued that contrary to the Government’s argument that 

Defendant conspired with distributors Desmond Faison and Gary Creek to sell drugs, Defendant 

had a mere buyer-seller relationship with them. Defendant is incorrect; the evidence was 

sufficient to sustain his conspiracy conviction.

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“The elements of a conspiracy are: (1) a unity of purpose between the alleged 

conspirators; (2) an intent to achieve a common goal; and (3) an agreement to work together 

toward that goal.” United States v. Coles, 558 F. App’x 173, 186 (3d Cir. 2014). A simple 

buyer-seller relationship “is insufficient to establish that the buyer was a member of the seller’s 

conspiracy.” United States v. Gibbs, 190 F.3d 188, 197 (3d Cir. 1999). However, the 

Government can show a conspiratorial relationship through direct or circumstantial evidence. Id.

at 197-99. In order to determine whether a buyer-seller relationship was also a conspiracy, 

courts consider: “(1) the length of affiliation between the defendant and the conspiracy; (2) 

whether there is an established method of payment; (3) the extent to which transactions are 

standardized; and (4) whether there is a demonstrated level of mutual trust.” United States v.

Burgos, 46 F. App’x 101, 103 (3d Cir. 2002) (citing id. at 199). Courts also consider whether the 

transactions involved a large amount of drugs. Coles, 558 F. App’x at 186.

Defendant asserts that there was insufficient evidence that two of his associates, 

Desmond Faison and Gary Creek, were his co-conspirators. Faison testified at trial that he 

regularly bought cocaine from Defendant and distributed the drugs to other middlemen, so the 

cocaine could ultimately be sold to people at Paschall Homes, a public housing site in 

Philadelphia. (2/5/08 Trial Tr. at 16.) Faison met Defendant in mid-to-late 2002, and he started 

buying cocaine in small amounts to determine whether Defendant sold a high-quality product. 

(Id. at 11, 14-15.) After Faison determined that the cocaine was good, he started buying kilos in 

cash in early 2003. (Id. at 15, 19.) By mid-2003, Faison was buying three kilograms of cocaine 

at once, which he bought for $21,000 to $22,500 per kilo. (Id. at 20, 58-59.) Faison originally 

bought directly from Defendant, but later, he would call Defendant, who would send Defendant’s 

uncle to meet Faison at various locations. (Id. at 28-29.) If Faison purchased drugs that were 

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low quality, he would call Defendant, return the drugs to him, and expect Defendant to repay 

him for the drugs. (Id. at 24-27, 38.) However, later in the relationship, Defendant sold Faison 

low quality drugs for which Coles never paid him back. (Id. at 40.) Faison bought drugs from 

Defendant through sometime in 2005. (Id. at 28.)

Faison’s testimony clearly established a conspiracy. Defendant’s and Faison’s three-year 

long relationship required the two men to build trust, first by making smaller purchases to 

determine the cocaine quality, and later by Defendant’s guarantee that Faison could return low 

quality product. Faison paid in cash to Defendant or his uncle after Defendant organized the 

sale. In addition, at the peak of the conspiracy, each individual sale involved an enormous 

amount of drugs—three kilograms, which was worth upwards of $60,000. 

With regard to Creek—a charged co-conspirator who was scheduled for trial after 

Defendant but ultimately entered a guilty plea—the evidence was also sufficient to support the 

conspiracy conviction. While Creek did not testify at trial, the jury heard multiple recorded 

phone calls between the two men, including one in which Defendant facilitated a drug deal 

between Creek and another person, Dante Tucker, by directing Creek to a Kentucky Fried 

Chicken. (2/13/08 Trial Tr. at 14.) Defendant even testified that Creek “may have been” there to 

pick up cocaine, but then asserted it had “nothing to do with” Defendant. (Id.) The jury was free 

to infer that those calls were about selling cocaine, and that Defendant was directing Creek to 

sell drugs. See United States v. Badini, 525 F. App’x 190, 193 (3d Cir. 2013) (“[T]he jury was 

entitled to make inferences based” on phone calls between conspirators to determine that the 

relationship between actors was not merely about occasional purchases). Because Defendant’s 

conspiracy conviction was based on sufficient evidence, neither trial nor appellate counsel were 

ineffective for failing to challenge the conviction on that basis.

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E. Appellate counsel was not ineffective for failing to challenge the sufficiency of 

his continuing criminal enterprise conviction.

Defendant asserts that appellate counsel was ineffective for failing to challenge his 

conviction for participation in a CCE, which requires proof that the defendant occupied “a 

position of organizer, a supervisory position, or any other position of management” with respect 

to five or more individuals in the enterprise. 21 U.S.C. § 848(d)(2)(A). Defendant is not entitled 

to relief on this claim because there was ample evidence that he engaged in a CCE.

Defendant’s second-in-command, Timothy Baukman, raised this same issue on direct 

appeal. The Third Circuit observed:

The so-called organizer or supervisor and numerosity requirements are obvious 

manifestations of Congress’s concern to fight the growth of large-scale profitmaking drug enterprises. These requirements thus distinguish minor enterprise 

employees from those who conceive and coordinate enterprise activities. The five 

individuals need not be under the direct and immediate control or supervision of 

the defendant. Moreover, the defendant need not have had personal contact with 

each of the five persons involved, and the delegation of managerial and supervisory 

duties will not defeat an individual’s ultimate status as organizer, supervisor, or 

manager.

United States v. Coles, 558 F. App’x 173, 177-78 (3d Cir. 2014) (citations omitted). The Third 

Circuit concluded that Baukman supervised two street-level managers, who supervised at least 

six other street-level sellers, so “there was considerable evidence from which the jury could 

conclude that Baukman was a manager or supervisor of at least five people involved in this drug 

enterprise.” Id. at 178. The evidence at trial showed that Coles was the leader of his eponymous 

gang, and Baukman worked beneath him. Coles was responsible for supervising anyone that 

Baukman supervised. Id. (observing that delegation of supervisory duties will not defeat a 

defendant’s ultimate status as an organizer). From the evidence recited within the Third 

Circuit’s opinion alone, we conclude that Defendant supervised at least nine people, and the 

evidence at trial showed that he supervised even more people. Because the evidence was 

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sufficient, appellate counsel was not ineffective for failing to challenge his conviction on this 

basis.

F. Trial counsel was not ineffective for failing to introduce the film Menace into 

evidence at trial.

At trial, Coles testified that he and others created a feature length film about a drug dealer 

who wanted to be a musician, Menace, and a hip-hop musical, New Jack City: The Next 

Generation. Prior to trial, Defendant’s counsel objected to playing parts of New Jack City

because it was prejudicial, as it showed various acts of violence and knowledge of packaging 

cocaine. (ECF No. 605.) The Court deferred decision until trial. (ECF No. 622.) At trial, 

counsel played clips of New Jack City for the jury; Menace was not shown. (2/12/08 Trial Tr. at

78.) Coles asserted that the drugs and various other drug-related items featured in both movies 

were fake, and that some of the guns featured in New Jack City were fake. (Id. at 76-150, 203.) 

During deliberations, the jury requested, among other things, to view Menace. (2/25/08 Trial Tr.

at 61.) Counsel replied that it was not admitted into evidence. (Id.) The jury was instructed 

accordingly. (Id. at 61, 73-74.)

Defendant asserts that trial counsel was ineffective for failing to show the jury the film or 

enter it into evidence. Defendant alleges that Menace could have explained that some of 

Defendant’s contraband was fake. However, considering the overwhelming evidence against 

Defendant, see, e.g., Coles, 558 F. App’x at 176 (“The evidence showed that Coles was the 

leader of an organization that proceeded, packaged and distributed cocaine and cocaine base 

(crack)”), he cannot show “a reasonable probability that, but for counsel’s unprofessional errors, 

the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. 

Accordingly, Defendant cannot make a claim for ineffective assistance of counsel. 

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G. Trial counsel was not ineffective for failing to object to and discredit evidence 

showing that Randall Austin shot two individuals during a cocaine sale, and 

appellate counsel was not ineffective for failing to challenge the admission of 

the evidence on direct review.

Defendant argues that trial counsel was ineffective for failing to object to evidence of a 

shooting committed by his unindicted co-conspirator and for failing to discredit that evidence as 

both false and unrelated to Defendant’s actions. (ECF No. 1624 at 44-45.) He further claims 

that appellate counsel was ineffective for failing to argue on direct review that the evidence was 

improperly admitted. (Id. at 74.) Defendant’s claims are meritless.

On April 14, 2002, Tyree Griffith and his brother, Damon Williams, went to the 

Philadelphia Zoo with $10,500 to buy half a kilogram of cocaine from Defendant’s unindicted 

co-conspirator, Randall Austin. During the drug exchange, Austin grabbed a gun, shot Griffith 

and Williams, and stole the money. At trial, co-defendant James Morris’ attorney objected to the 

introduction of the testimony and requested a mistrial on the ground that the shooting had no 

probative value. (1/22/08 Trial Tr. at 354.) The Court denied the motion. (Id.)

Defendant’s trial counsel was not ineffective for failing to also object. Morris’s attorney 

made the same objection that Defendant now asserts that his counsel should have made. 

Morris’s objection was overruled. Clearly, there was no prejudice. Had Defendant’s counsel 

raised the same objection, it likewise would have been overruled, and the outcome of the trial

would not have changed. See Hill v. Lockhart, 474 U.S. 52, 59 (1985). Moreover, the objection 

had no merit since the evidence was properly admitted. The shooting was highly probative 

because it explained why police were looking for Austin and searched his apartment, where they 

recovered large amounts of cocaine, five guns, ammunition, various cocaine sale paraphernalia, 

and paperwork that linked Defendant to the property and drug sales occurring within the 

apartment. Appellate counsel was not ineffective for failing to raise these same arguments.

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Defendant also asserts that trial counsel was ineffective for failing to show that the 

testimony about the shooting was false, which he claims is established by the fact that Austin 

was “exonerated” for his involvement in the shooting. But there is no evidence that the 

testimony about the shooting was false, and Austin was not exonerated. While Austin was 

acquitted of robbery, he was convicted of the attempted murder of Griffith and second-degree 

murder of Williams. See Commonwealth v. Austin, 906 A.2d 1213, 1216-17 (2006). The

Pennsylvania Superior Court reversed the second-degree murder conviction because Williams 

was acquitted of the robbery. Id. The conviction for shooting Griffith remained intact, and the 

matter was remanded for a new trial. Id. at 1223. The District Attorney did not retry the case. 

Defendant also claims that counsel was ineffective for failing to call Randall Austin as a 

witness to testify that Defendant’s actions were unrelated to the shooting. However, the 

testimony was introduced to explain the recovery of contraband from Austin’s apartment, which 

was connected to Defendant in part by items found in Austin’s apartment. The Government did 

not suggest that Defendant play a role in the Zoo shooting. Any failure to present Austin’s 

proposed testimony did not prejudice Defendant because his assertion that Defendant was 

unrelated to the shooting did not change the impact of the testimony.

H. Trial counsel was not ineffective for failing to move to suppress evidence 

recovered in Austin’s apartment.

Defendant also asserts that unindicted co-conspirator Randall Austin’s apartment was 

unconstitutionally searched, and therefore counsel was ineffective for failing to move to suppress 

the evidence recovered. Because Defendant had no standing to challenge the search or seizure of 

contraband within another person’s apartment, counsel was not ineffective.

The Fourth Amendment guarantees “[t]he right of the people to be secure in their 

persons, houses, papers, and effects, against unreasonable searches and seizures . . . .” U.S.

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CONST. amend. IV. “Because Fourth Amendment rights are ‘personal,’ the proponent of a 

motion to suppress ‘bears the burden of proving . . . that he had a legitimate expectation of 

privacy in’ the place searched.” United States v. Stearn, 597 F.3d 540, 551 (3d Cir. 2010) 

(quoting Rawlings v. Kentucky, 448 U.S. 98, 104 (1980)). For example, a defendant has a 

privacy interest if he is staying in another person’s home as an overnight guest, but not if he is 

merely in the other person’s apartment for a short time for the business purpose of packaging 

drugs. See Minnesota v. Olson, 495 U.S. 91, 98-100 (1990); United States v. Perez, 280 F.3d 

318, 337 (3d Cir. 2002).

Defendant failed to proffer any evidence that he had a legitimate expectation of privacy 

in Austin’s apartment. Without such evidence, Defendant has no standing to challenge the 

seizure. While Coles was present in the house when the search warrant was executed (1/17/08 

Trial Tr. at 24), Defendant testified at trial that he “never lived there.” (2/12/08 Trial Tr. at 58.) 

Given this straightforward testimony, there is no reason to believe that Defendant could have 

established standing to challenge the search. Counsel was not ineffective for failing to challenge 

the search of a property in which Defendant never lived.

I. Trial counsel was not ineffective for failing to object to Agent Harrison’s 

testimony on the ground that Agent Harrison was not qualified as an expert 

witness.

Defendant claims that trial counsel was ineffective for failing to object to the testimony 

of a federal agent who testified beyond the scope of his field of expertise. Counsel was not 

ineffective because he properly objected, and the testimony was cumulative of a qualified 

expert’s testimony.

At trial, Special Agent Brandon Harrison testified that he surveilled Defendant’s drug 

operation and executed a search warrant on Randall Austin’s home. (1/17/08 Trial Tr. at 27.) In 

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Austin’s home, agents recovered a hydraulic press. (Id. at 36.) Agent Harrison explained that 

the press was used to create bricks of cocaine and that he observed white powder on the floor 

near the press. (Id. at 37-40.) He also explained that small blue packets recovered in the 

apartment were used to distribute crack cocaine or cocaine. (Id. at 42-43.) After this testimony, 

Defendant’s counsel objected because Agent Harrison had not yet been qualified as a witness. 

(Id. at 43.) The prosecutor qualified Agent Harrison as an expert in the field of narcotics 

paraphernalia, and there was no objection. (Id. at 43-44.) Agent Harrison then testified about

the difference between cocaine and crack cocaine, Defendant’s counsel objected again, the 

objection was sustained, and the jury was instructed to disregard the testimony about the 

difference between cocaine and crack cocaine. (Id. at 45-46.) Agent Harrison next testified 

about the use of protective masks in crack cocaine production, Defendant’s counsel objected, the 

objection was sustained, and the Court called the attorneys to sidebar, where it instructed the 

prosecutor to question Agent Harrison about his observations as he was not offered as an expert

beyond the field of narcotics paraphernalia. (Id. at 46-48.) The prosecutor and Agent Harrison 

complied with these instructions. Finally, counsel objected to Agent Harrison’s use of the term 

“kilo wrappers,” which was sustained, and he subsequently referred to those items as “empty 

wrappers.” (Id. at 69.)

Defendant claims that trial counsel was ineffective for failing to object to Agent 

Harrison’s testimony because he was not properly qualified as an expert in any area except 

narcotics paraphernalia. However, counsel did object multiple times, and his objections were 

generally successful. Moreover, Special Agent Christopher Marano—an expert in the area of 

narcotics identification and investigation who received no objection to his qualifications (2/7/08 

Trial Tr. at 8)—testified to the differences between crack and cocaine (id. at 13), about bags used 

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for packaging cocaine (specifically use of blue packaging) (id. at 9, 13), the purpose of a 

hydraulic press (id. at 14), and kilo wrappers (id. at 9). Even if counsel’s objections were 

deficient, there was no prejudice to Defendant. The same information was properly admitted by 

way of Agent Marano’s testimony. 

J. Trial counsel was not ineffective for advising Defendant to conduct a pretrial 

media interview and allegedly leaking information to the media.

Defendant argues that trial counsel was ineffective (1) for advising Defendant to conduct 

a pretrial interview, which he claims caused Desmond Faison to cooperate with the Government,

and (2) for allegedly leaking information to the media. According to Defendant, his attorney 

advised him to participate in a pretrial interview. Defendant attaches two 2007 articles by 

George Anastasia, a staff writer for The Philadelphia Inquirer, containing descriptions of the 

allegations against him, quotes from Defendant asserting his innocence, and other relevant facts. 

(ECF No. 1624, App’x F.) Defendant asserts that this interview caused Faison to cooperate with 

the Government. He did so a few days after the articles were published. (Id. at 57.) Defendant 

asserts that “counsel should have known that . . . the aggravated circumstances ha[d] a high 

potential to cause cooperation as well as fabrication for potential benefits through plea 

agreement.” (Id.) However, there is no evidence that Defendant’s interview caused Faison to 

plead guilty, that counsel had any reason to believe that Faison would plead guilty as a result of 

the interview, or that the article would have been any more favorable to Defendant without his 

participation. Because Defendant has no factual basis upon which to rest his various accusations, 

relief will not be granted on his claim.

As for Defendant’s assertion that trial counsel leaked information to the media, 

Defendant offered no specifics as to what information was leaked or how it affected the outcome 

of his trial. In any event, the Court questioned prospective jurors during voir dire about whether 

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they had any knowledge of the allegations against Defendant from outside of the court 

proceedings and if that might affect their ability to be impartial. (12/19/07 Jury Selection Tr. at

11-17.) None of the jurors who had knowledge of the allegations from any source outside of the 

courtroom served on Defendant’s jury. Therefore, any alleged leaks could not have affected 

Defendant’s verdict, and Defendant was not prejudiced by them.

K. Trial counsel was not ineffective for failing to investigate Officer Brian 

Reynolds, and there is no evidence that the prosecutor committed 

misconduct with regard to that officer’s history.

Defendant states that counsel was ineffective for failing to investigate a group of police 

officers that faced corruption charges after Defendant’s trial, as one of these officers briefly 

testified at Defendant’s trial. He further claims that the prosecutor committed misconduct by 

failing to disclose the allegations against these officers. Neither of these claims entitles

Defendant to relief.

On July 29, 2014, a federal grand jury indicted six Philadelphia Narcotics Field Unit 

police officers—Brian Reynolds, Thomas Liciardello, Michael Spicer, Perry Betts, Linwood 

Norman, and John Speiser—and charged them with racketeering conspiracy in violation of 18 

U.S.C. § 1962(d), civil rights violations, robbery, extortion, possession with intent to distribute 

controlled substances, and various other crimes. The Indictment alleged that while in their 

course of duty, the officers allegedly stole money and drugs, sold drugs, physically assaulted 

some arrestees, and falsified police records. The Government asserted that the conduct began in 

February 2006, and the first allegation against Reynolds occurred in October of 2007. 

(Indictment, No. 14-412, at 9.) The defendants were acquitted at trial.3

3 Another officer, Jeffrey Walker, was separately indicted and pled guilty.

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At Defendant’s trial, Officer Reynolds testified that he and another officer arrested codefendant Timothy Baukman on September 28, 1999. (1/30/08 Trial Tr. at 149.) Officer 

Reynolds said that he observed Baukman sitting in a parked car and hand small objects to 

another man, and Baukman’s car speed off when police approached. (Id. at 151.) According to 

Officer Reynolds, Baukman crashed the car and attempted to flee on foot, but the police officers

arrested him and recovered a small amount of cocaine and $64 in the car. (Id. at 153-54.)

Defendant asserts that counsel was ineffective for failing to investigate the misconduct of

the indicted officers, about which Defendant asserts he informed counsel. (ECF No. 1624; ECF 

No. 1675 at 25.) He suggests that if counsel had investigated adequately, the Government may 

have decided not to prosecute him. Defendant also asserts that the prosecutor committed 

misconduct by setting forth evidence from those officers where, according to a 2014 article that 

Defendant cited, prosecutors had declined to charge these officers “for years,” even though they 

were aware of their alleged misconduct. (ECF No. 1624, App’x FF.) 

Defendant cannot prove that he was prejudiced by Reynolds’ brief testimony, which was 

minor during the two-month trial and did not implicate Defendant. Moreover, evidence of the 

allegations against Reynolds would not have been admissible at trial. See United States v.

Rodriguez, No. 13-4818, 2015 WL 1279472, at *5 (E.D. Pa. Mar. 19, 2015) (holding that 

evidence of the same six officers’ alleged misconduct would be inadmissible at trial under Rules 

403 and 404 because it “is exactly the type of propensity evidence that Rule 404(b) prohibits”).

In addition, while there is no evidence that the prosecutor suppressed information, any 

alleged suppression would not have been material. Defendant asserts that he knew of the 

officers’ alleged misconduct prior to trial and provided the information to counsel. (ECF No. 

1624 at 60-61; ECF No. 1675 at 25.) Even if the prosecutor had failed to disclose this evidence, 

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it would not have been material because Defendant and his attorney were already aware of the 

information. See United States v. Pelullo, 399 F.3d 197, 202 (3d Cir. 2005), as amended (Mar. 

8, 2005) (“[T]he government is not obliged under Brady to furnish a defendant with information

which he already has or, with any reasonable diligence, he can obtain himself”). Because the 

evidence was neither suppressed nor admissible, counsel cannot be found to be ineffective here.

L. Trial counsel was not ineffective for failing to convey a plea offer where 

Defendant does not claim that he would have accepted the offer or 

demonstrate that a plea offer was made by the Government.

Defendant asserts that counsel refused to convey a plea offer from the Government 

because counsel believed that Defendant would not plead guilty. Defendant does not assert that 

he would have plead guilty or present support that a plea offer was even made by the 

Government. This is an insufficient proffer to obtain an evidentiary hearing. See United States

v. Jones, No. 12-1956, 2014 WL 1386328, at *4 (E.D. Pa. Apr. 8, 2014) (holding there was 

insufficient support to entitle the petitioner to a hearing about an alleged plea offer where he did 

not provide “the documents he claims are in his case file, nor a statement from counsel, or any 

supporting declarations from family members who he claims had knowledge of the alleged plea 

offers.”).

Defendant asserts that United States v. Bennett, 588 F. App’x 159 (3d Cir. 2014) entitles 

him to relief. In that case, counsel believed that Bennett was “determined to go to trial,” so he 

never discussed the Government’s offer that Bennett enter an open guilty plea at a reduced 

sentencing guideline level or his potential sentence. Bennett said he would have accepted the 

plea if counsel had offered it. Specifically, the Third Circuit observed that Bennett’s “judgment 

was clouded by misunderstanding up through the time of his trial because his counsel did not do 

his job.” Id. at 161. That situation is distinguishable from the one presented here. Here, 

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Defendant did not assert that counsel misinformed him about his potential sentence or a plea 

offer or claim that he would have entered a guilty plea. There is no indication that a plea offer 

existed. Counsel was not ineffective.

M. Appellate counsel was not ineffective for failing to raise an Alleyne claim on 

direct review where Defendant would have received a sentence of life in 

prison regardless of whether counsel raised the claim.

Defendant also argues that appellate counsel was ineffective for failing to raise his 

Alleyne claim on direct review. Alleyne v. United States, 570 U.S. 99 (2013), which was decided 

after the jury found Defendant guilty but before the Third Circuit ruled on his direct appeal, held 

that “any fact that increases the mandatory minimum is an ‘element’ that must be submitted to 

the jury.” 570 U.S. at 103. Defendant correctly observes that the jury should have been 

instructed to make a factual finding that he was “the principal administrator, organizer, or leader 

of the enterprise” and trafficked at least 1,500 kilograms of cocaine or 1.5 kilograms of cocaine 

base (crack) or that the enterprise received $10 million dollars in gross receipts regarding his 

continuing criminal enterprise (“CCE”) conviction in violation of 21 U.S.C. § 841(b)(1)(B).

When analyzing an Alleyne error on direct review, appellate courts first determine 

whether the error was a sentencing error or trial error, then assess whether the objection was 

preserved, and finally, review the matter for either plain error if it was preserved or harmless 

error if it was not. United States v. Johnson, 899 F.3d 191, 198 (3d Cir. 2018). We will assess 

these inquiries to determine whether counsel’s failure to raise the claim on appeal resulted in 

prejudice for the purpose of Defendant’s ineffective assistance claim.

“Sentencing error occurs when a defendant is charged with and convicted of one crime 

but sentenced for another.” Johnson, 899 F.3d at 198. In such a case, “the defendant [is] 

sentenced for a crime for which he was neither indicted nor tried.” Lewis, 802 F.3d at 455 n.6. 

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“Harmless-error review for a sentencing error turns on whether the error did or did not 

‘contribute to the [sentence] obtained.’” Id. at 456 (quoting Sochor v. Florida, 504 U.S. 527, 

539, (1992)). “Trial error, by contrast, occurs when the defendant is charged with, convicted of, 

and sentenced for a crime, but one of the elements of that crime is not submitted to the jury.” 

Johnson, 899 F.3d at 198. The analysis then turns on “whether it is ‘clear beyond a reasonable 

doubt that a rational jury would have found the defendant guilty absent the error.’” Lewis, 802 

F.3d at 456 (quoting Neder v. United States, 527 U.S. 1, 18 (1999)).

We hold that the error was a trial error, as the indictment correctly stated the elements, 

but the jury was not charged with making the relevant findings. The Fifth Superseding 

Indictment states:

ALTON COLES was the leader and organizer of a cocaine and cocaine base 

(“crack”) distribution gang (hereinafter referred to as the COLES Cocaine Gang 

(“CCG”), which distributed in excess of 5 kilograms, that is, approximately 1,200 

kilograms of cocaine, and in excess of 50 grams, that is, approximately 600 

kilograms of cocaine base (“crack”), conservatively valued at no less than 

$25,200,000, between in or about January 1998 and on or about August 10, 2005.

(ECF No. 295, ¶ 2) (emphasis in original). The indictment states the elements of CCE under 21 

U.S.C. § 841(b)(1)(B), specifically that he was an administrator, leader, or organizer of the 

enterprise, trafficked the necessary amount of crack cocaine, and that the enterprise was valued 

in excess of $10 million.

Next, we determine whether trial counsel preserved the issue. Defendant points to no 

place in the record—nor did we find one—where trial counsel preserved this issue. Moreover, 

we would not expect trial counsel to preserve the issue because Alleyne had not yet been 

decided.

4

 

4 We note that counsel’s failure to preserve this issue was not ineffective assistance because 

“failing to predict a change in the law is not deficient performance.” United States v. Doe, 810 F.3d 132, 

154 (3d Cir. 2015).

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Since Defendant’s objection was not preserved, we review the matter for harmless error. 

An error is harmless if it “did not affect the district court’s selection of the sentence imposed.” 

United States v. Lewis, 802 F.3d 449, 458 (3d Cir. 2015). Defendant would have received the 

same sentence—regardless of the error—because even if Defendant had been acquitted of CCE, 

he would have faced a life sentence as a result of other convictions entered that same day. Had 

Defendant not been subject to a mandatory minimum life sentence for his CCE conviction, the 

Government asserts that he would have still received a mandatory minimum life sentence under 

21 U.S.C. § 841(a)(1)(A) for committing a conspiracy with two predicate convictions. (4/16/09 

Sent. Hr’g, 6) (“I’m satisfied that . . . there are two final prior convictions that support the 

mandatory minimum life sentence.”). Defendant was found guilty of both CCE and conspiracy 

at trial, but the Court did not sentence Defendant for his conspiracy conviction because it was a 

lesser included offense of CCE. Had Defendant been acquitted of CCE, conspiracy would not 

have been a lesser included offense and the Court would have sentenced him pursuant to the 

conspiracy statute mandatory minimum sentence. A life sentence would have been imposed 

either way. Accordingly, Defendant cannot prove prejudice for the purpose of his 

ineffectiveness claim.5

5 Even had counsel preserved the issue, his appeal would not be successful because plain error did 

not occur. When a Supreme Court case issues a new rule, it applies to criminal cases pending on direct 

review. Johnson, 899 F.3d at 190 (citing Schriro v. Summerlin, 542 U.S. 348, 351 (2004)). In such cases, 

appellate courts apply the plain error standard. Id. at 199-200.

Under the plain error standard, an appellate court may exercise its discretion to correct (1) 

an error (2) that was plain—i.e., clear or obvious, rather than subject to reasonable 

dispute—and (3) that affected the appellant’s substantial rights—i.e., there is a reasonable 

probability that it affected the outcome of the proceedings. Even if the appellant meets 

those requirements, we will not remedy the error unless the appellant can show that it (4) 

seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.

Id. at 200 (internal citations omitted).

Defendant failed to prove that the failure to instruct the jury affected his substantial rights, 

meaning there was a reasonable probability that it affected the outcome of the proceedings, for two 

reasons. First, as discussed above, he would have been subject to a life sentence for conspiracy even 

absent his CCE conviction. Second, the evidence against him was overwhelming—he was shown to have 

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Defendant also asserts that counsel should have challenged the Indictment because it 

insufficiently described his conduct, specifically the conduct that could result in a mandatory 

minimum life sentence. After reviewing the Indictment, we find that there was no omission, and 

counsel’s performance was neither deficient nor prejudicial.

N. Appellate counsel was not ineffective for failing to challenge the admission of 

Charlton Custis’s testimony on direct review.

Defendant contends that appellate counsel should have argued that parts of witness 

Charlton Custis’ testimony should not have been admitted at trial because the Government laid 

an insufficient foundation. Specifically, he maintains that Custis should not have been permitted 

to (1) identify Defendant’s and his associates’ voices on intercepted phone calls, (2) testify that 

certain documents were Defendant’s financial ledgers, and (3) use the phrase “I need that little 

change.” Defendant is not entitled to relief.

First, Defendant complains that Custis—who personally knew Defendant and his various 

associates—identified their recorded voices. However, authentication of a voice recording is

explicitly permitted by the Federal Rules of Evidence, and Custis’s relationship with Defendant

and others satisfied the rule because he knew them personally and had many prior interactions

with them. See Fed. R. Evid. 901(b)(5) (requiring that an opinion identifying a person’s voice be 

“based on hearing the voice at any time under circumstances that connect it with the alleged 

speaker”). We further note that Defendant’s instant argument—that Custis should not have been 

permitted to identify the voices on the calls (ECF No. 1624 at 71-72)—is not the argument that 

trial counsel preserved. At trial, counsel objected to the admission of Custis’s “interpretation” of 

managed an organization (named after himself) that trafficked approximately 40 kilograms of crack per 

year and 306 kilograms of crack total—so if the jury had been correctly charged, he still would have been 

convicted of CCE. Johnson, 899 F.3d at 200 (strong, uncontradicted evidence of defendant’s guilt 

showed that the jury verdict would not have been different had the jury been properly instructed).

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the conversation, in which he explained who the callers were and their relationship to Defendant. 

(1/29/08 Trial Tr. at 78.) Thus, appellate counsel was not ineffective for the additional reason 

that Defendant’s proposed objection was not preserved at trial and therefore would have been 

deemed waived on appeal. 

Second, Defendant argues that Custis identified documents as drug ledgers without 

proper foundation. However, Custis explained that he saw his own debts to Defendant listed 

among the names on the ledger, and he frequently owed Defendant money because Defendant 

provided drugs without receiving payment at times. (1/29/08 Trial Tr. at 74-76.) He also noted 

that Defendant would frequently tell Custis how much money he owed him and refer to his 

“notes” to confirm the amount owed. (Id. at 74.) Defendant observes that Custis could not point 

to a specific amount that he remembered owing Defendant that matched numbers in the ledger. 

However, Custis’s inability to match a particular transaction to a specific amount on the ledger 

does not undermine his ability to identify the documents as drug ledgers. Even if the 

introduction was in error, it was harmless in light of the ample physical and audio evidence 

against Defendant, as well as Custis’ testimony that Defendant did, in fact, sell drugs and the two 

had multiple conversations about drug sales. See United States v. Zehrbach, 47 F.3d 1252, 1265 

(3d Cir. 1995) (“[N]on-constitutional error is harmless when ‘it is highly probable that the error 

did not contribute to the judgment.’”).

Finally, Defendant complains that appellate counsel should have objected to Custis’s 

explanation that the phrase “I need that little change” meant “I need the money that he owe[s] 

me.” (1/29/08 Trial Tr. at 84-85.) However, there is no possibility that preventing Custis from 

testifying to his interpretation of the phrase “I need that little change” would have changed the 

outcome of trial. See Zehrbach, 47 F.3d at 1265. Appellate counsel was not ineffective.

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O. Trial counsel was not ineffective in conducting a pretrial investigation.

Defendant asserts that counsel made no investigation before Defendant’s trial. 

“Ineffectiveness is generally clear in the context of complete failure to investigate because 

counsel can hardly be said to have made a strategic choice against pursuing a certain line of 

investigation when s/he has not yet obtained the facts on which such a decision could be made.” 

United States v. Gray, 878 F.2d 702, 711 (3d Cir. 1989). “The complete failure to investigate 

potentially corroborating witnesses, however, can hardly be considered a tactical decision.” 

United States v. Debango, 780 F.2d 81, 85 (D.C. Cir. 1986). Here, Defendant has identified 

multiple witnesses that he alleges trial counsel could have called in support of his case, theories 

he could have advanced, or challenges he could have raised. However, we have found that trial 

counsel was not ineffective for choosing not to call the witnesses Defendant has identified, 

advance the theories he now presents, or raise the proffered evidentiary or strategic issues. See 

Subsections B, C, H, and K. Therefore, based on the existing record, we find that Defendant is 

not entitled to relief, and we will not grant an evidentiary hearing on this issue. 

P. Trial counsel was not ineffective for failing to object to a conflict of interest 

between Defendant and co-defendant James Morris’ counsel, Wayne Powell, 

who had previously represented Defendant.

Defendant raises a conflict-of-interest claim in a counseled supplemental brief. 

Defendant is not entitled to relief because the claim is time-barred and meritless.

Defendant had multiple co-defendants, including James Morris. James Morris was 

represented by two attorneys: Ronald Thompson and Wayne Powell. Attorney Powell 

previously represented Coles. At trial, Defendant testified and was cross-examined by attorney

Thompson about his history of betting on dog fights. Attorney Thompson elicited that, 

according to Defendant, co-defendant Morris was a “dog trainer” for the fights, and Morris had 

never provided Defendant with any illegal drugs other than steroids, which were used for dog 

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fights. (2/13/08 Trial Tr. at 153, 184-85.) Attorney Powell did not cross-examine Defendant. 

According to Defendant, his attorney, Christopher Warren, was aware of the prior representation.

In 2016, this Court held a hearing regarding co-defendant Morris’s habeas petition, 

where he claimed attorney Powell was ineffective for 1) failing to inform him that he faced a life 

sentence and 2) having a conflict of interest with his former client, Defendant. Attorney Powell 

testified that he previously represented Defendant in a dog fighting case. The Government and 

co-defendant Morris negotiated a lower sentence. This Court did not rule on whether the 

conflict-of-interest claim entitled Morris to relief.

Now, Defendant asserts that Attorney Powell was conflicted, and he also asserts a new 

factual claim that Attorney Powell also represented him in a drug sales case that resulted in a 

guilty plea. Defendant’s claim is time-barred, as it was raised over a year after his conviction 

became final, and it is not subject to any applicable exception.

There is a one-year period limitations for Section 2255 petitions, which runs from the 

latest of:

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by governmental 

action in violation of the Constitution or laws of the United States is removed, 

if the movant was prevented from making a motion by such governmental 

action;

(3) the date on which the right asserted was initially recognized by the Supreme 

Court, if that right has been newly recognized by the Supreme Court and made 

retroactively applicable to cases on collateral review; or

(4) the date on which the facts supporting the claim or claims presented could have 

been discovered through the exercise of due diligence.

28 U.S.C. § 2255(f). Timeliness is assessed on a claim-by-claim basis. Fielder v. Varner, 379 

F.3d 113, 118-22 (3d Cir. 2004). Defendant has not alleged any compliance with or exception to 

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the time-bar. We will analyze the only possible options that could apply to the matter before 

us—the first and fourth prongs—but ultimately determine that the claim is time-barred.

Defendant raised his conflict-of-interest claim over a year after his conviction became 

final. On December 3, 2014, Defendant’s judgment of conviction was affirmed following a 

resentencing hearing. United States v. Coles, 586 F. App’x 98, 100 (3d Cir. 2014). Defendant 

did not file a writ of certiorari to the United States Supreme Court. Thus, his conviction became 

final ninety days later, on March 3, 2015, when the time for filing a writ of certiorari expired. 

Kapral v. United States, 166 F.3d 565, 570-71 (3d Cir. 1999). But Defendant did not raise the 

conflict-of-interest claim until September 6, 2016, which was his fourth substantive filing

regarding his Section 2255 Petition. (ECF No. 1741.) Therefore, the conflict-of-interest claim is 

untimely because it was filed over a year and a half after his conviction became final.

Defendant also cannot show that he raised the conflict-of-interest claim within a year of 

the date that the claim could have been discovered through the exercise of due diligence. 

Defendant was present at his trial. No argument can be made that he did not see his former 

attorney representing his co-defendant, and he does raise any assertion suggesting that he was 

unaware of that representation. 

Even if the claim was not time-barred, Defendant would still not be entitled to relief. 

Attorney Warren’s failure to object to the alleged conflict with Attorney Powell did not prejudice 

Defendant. As noted with respect to several other arguments, the evidence against Defendant 

was overwhelming, and Defendant’s relatively minor testimony about his dog fighting activities

vis a vis Morris—which were not central to the charges at hand—would not have changed the 

jury’s verdict.

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Q. Any cumulative errors did not have a substantial effect on the trial.

Defendant further claims that the alleged errors addressed in this Opinion had the 

cumulative effect of violating his Sixth Amendment right to counsel. This is simply not so. 

“The cumulative error doctrine allows a petitioner to present a standalone claim asserting the 

cumulative effect of errors at trial that so undermined the verdict as to constitute a denial of his 

constitutional right to due process.” Collins v. Sec’y of Pennsylvania Dep’t of Corr., 742 F.3d 

528, 542 (3d Cir. 2014). As noted above, most of Defendant’s claims are facially deficient or 

contradicted by the record. Relief will not be granted on Defendant’s claim of cumulative error.

6

IV. CONCLUSION

For the foregoing reasons, Defendant’s Habeas Corpus Motion Under 28 U.S.C. § 2255

to Vacate, Set Aside, or Correct Sentence by a Person In Federal Custody and related filings 

(ECF Nos. 1624, 1647, 1702, 1741, 1816) will be denied. Defendant’s Motion to Expand the 

Record (ECF No. 1574) will be granted in part and denied in part. An appropriate Order follows.

BY THE COURT: 

/s/ R. Barclay Surrick 

R. BARCLAY SURRICK, J.

6 In addition to his 2255 Petition, Defendant also filed a Motion to Expand the Record, to which 

the Government did not respond. (ECF No. 1574.) “Pursuant to Rule 7 of the Rules Governing Section 

2255, a court may direct the record to be expanded to include additional materials relevant to the 

determination of the § 2255 motion.” Clemons v. United States, No. 03-319, 2004 WL 2212017, at *2 

(D. Del. Sept. 10, 2004). Defendant urges the Court to consider documentation showing that he 

attempted to raise an issue via hybrid representation before the Third Circuit, letters showing that 

Defendant made ethical complaints against the prosecutors in his case and that his complaints were 

dismissed by a state disciplinary board, and excerpts from cases regarding similar Wiretap Act claims 

raised in his 2255 Petition. The Advisory Notes to Rule 7 observe that “[i]t is less likely that the court 

will feel the need to expand the record in a Section 2255 proceeding than in a habeas corpus proceeding, 

because the trial (or sentencing) judge is the one hearing the motion . . . and should already have a 

complete file on the case in his possession.” Conway v. United States, No. 09-4578, 2010 WL 2287565, 

at *2 (D.N.J. June 3, 2010). The Motion is granted with respect to Defendant’s attempted filing with the 

Third Circuit because it is relevant to his Alleyne claim and denied with respect to the rest of the 

documents as they do not add any factual information relevant to Defendant’s claims.

Case 2:05-cr-00440-RBS Document 1929 Filed 03/26/24 Page 32 of 32