NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

STEVEN JACKSON,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

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Civil Action No. 11-3392 (SRC)

OPINION

CHESLER, District Judge

Pro se Petitioner Steven Jackson (hereinafter “Jackson” or “Petitioner”), a prisoner

currently confined at the United States Penitentiary Big Sandy in Inez, Kentucky, has filed a

motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 based on the

alleged violation of his Sixth Amendment right to the effective assistance of counsel. 

Specifically, Jackson maintains that the failure of his counsel, Larraine Gauli-Rufo and Patrick

McMahon (hereinafter “Counsel”), to perform a thorough investigation of the crime scene and

present a defense of officer misconduct on his behalf, gave rise to a Sixth Amendment violation. 

Petitioner additionally asserts a Fourth Amendment violation, arising out of this Court’s refusal

to conduct an evidentiary hearing on his suppression motion. The Respondent, the United States

of America (hereinafter “the Government”), filed its Answer, as ordered by the Court. The

Government opposes the petition on grounds that Petitioner’s ineffective assistance of counsel

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claim is not legally cognizable since his Counsel acted effectively and since Petitioner was not

prejudiced by any of their actions or inactions. The Court has considered the papers filed and for

reasons discussed below, denies Petitioner’s section 2255 motion. 

I. BACKGROUND

According to the Government, on December 31, 2006, two Newark police officers,

Michael Giordano and Louis Weber, were parked in an unmarked police car when they witnessed

Petitioner sell drugs to three customers outside of 7 Riverview Court in Newark, New Jersey. 

The Government contends that the officers approached Petitioner, identified themselves as police

officers, and attempted to arrest him. Subsequently, the Government avers that Petitioner

dropped one bag containing heroin and fled into 7 Riverview Court, where the police were able

to apprehend him. Upon searching Petitioner, police recovered an additional bag containing

cocaine, as well as a loaded gun.

Petitioner was subsequently charged with, and pled not guilty to, the following three

counts: (1) possession with intent to distribute a controlled substance in violation of 21 U.S.C. §

841(a) & (b)(1)(C) and 18 U.S.C. § 2, (2) possession of a firearm in furtherance of a drug

trafficking crime in violation of 18 U.S.C. §§ 924(c)(1)(A)(i), and (3) possession of a weapon by

a convicted felon in violation of 18 U.S.C. § 922(g)(1)(A). On February 29, 2008 Petitioner was

found guilty by a jury verdict on all three counts.

Jackson appealed the verdict of the trial court, and on January 29, 2010, the Third Circuit

affirmed the conviction. Petitioner also filed a petition for certiorari in the United States

Supreme Court, which was denied on June 14, 2010. Jackson has now moved to vacate, set aside

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or correct his sentence, pursuant to 28 U.S.C. § 2255.

II. DISCUSSION

Jackson is a pro se petitioner. A pro se pleading is held to less stringent standards than

more formal pleadings filed by lawyers. Haines v. Lerner, 404 U.S. 519, 520 (1972). Our

jurisprudence directs that a pro se habeas petition, such as the one at bar, should be construed

liberally and with a measure of tolerance. Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998). 

However, even applying this generous standard, the Court finds that Petitioner’s § 2255 petition

must be denied.

A. Ineffective Assistance of Counsel Claim

Title 28 U.S.C. § 2255 permits a prisoner in federal custody to attack the validity of his

sentence as having been imposed in violation of the Constitution. United States v. Nino, 878

F.2d 101, 103 (3d Cir. 1989). In considering a motion brought pursuant to section 2255, the

Court “must accept the truth of the movant’s factual allegations unless they are clearly frivolous

on the basis of the existing record.” United States v. Garvin, 270 F. App’x 141, 143 (3d Cir.

2008) (citing United States v. Booth, 432 F.3d 542, 545-46 (3d Cir. 2005)). Moreover, the Court

“must order an evidentiary hearing to determine the facts unless the motion and files and records

of the case show conclusively that the movant is not entitled to relief.” Gov’t of Virgin Islands v.

Forte, 865 F.2d 59, 62 (3d Cir. 1989). As the discussion below will illustrate, the facts

concerning Petitioner’s habeas corpus claim are clear, and the Court has determined that no

hearing is necessary.

In this section 2255 motion, Petitioner collaterally attacks his sentence based on the claim

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that he was denied his Sixth Amendment right to effective assistance of counsel. McMann v.

Richardson, 397 U.S. 759, 771 n. 14 (1970) (holding that Sixth Amendment guarantee of

assistance of counsel to accused in criminal prosecution includes right to effective assistance of

counsel). The Supreme Court decision in Strickland v. Washington, 466 U.S. 668 (1984) sets

forth the standard for establishing a claim that a habeas petitioner’s Sixth Amendment right of

effective assistance of counsel has been violated. The Strickland Court held:

A convicted defendant’s claim that counsel’s assistance was so defective as to

require reversal of a conviction or death sentence has two components. First, the

defendant must show that counsel’s performance was deficient. This requires

showing that counsel made errors so serious that counsel was not functioning as

the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the

defendant must show that the deficient performance prejudiced the defense. This

requires showing that counsel’s errors were so serious as to deprive the defendant

of a fair trial, a trial whose result is reliable. Unless a defendant makes both

showings, it cannot be said that the conviction or death sentence resulted from a

breakdown in the adversary process that renders the result unreliable.

Id. at 687. The Third Circuit has stressed that relief under § 2255 based on a claim of ineffective

assistance of counsel requires that the petitioner satisfy both prongs of the Strickland test: a

breach of duty and prejudice as a result of that breach. Nino, 878 F.2d at 103-04. The petitioner

bears the burden of proof to demonstrate ineffective assistance of counsel. United States v.

Baynes, 622 F.2d 66, 69 (3d Cir. 1980).

Petitioner has not met this burden. Petitioner argues that his Counsel’s performance was

deficient since they did not perform a thorough investigation of the crime scene, as evidenced by

their failure to: (1) dispute the arresting officers’ testimony concerning the distance of their

observations, (2) introduce how the door the officers claimed to have chased Petitioner through

was not accessible from the outside, and (3) call two witnesses who would have refuted the

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police officers’ account of the events leading up to Petitioner’s arrest. However, Counsel

repeatedly addressed the validity of the officers’ testimony concerning the distance from which

they observed Petitioner selling drugs, both in the direct examination of the investigator for the

Federal Public Defenders Office and in the cross-examinations of the arresting officers. The

observation distance issue was also emphasized in Counsel’s closing argument. The second

example that Petitioner provides, Counsel’s failure to address the credibility of the officers’

testimony about the door to 7 Riverview Court, was also thoroughly investigated and presented

to the jury. Counsel repeatedly questioned Officer Giordano on the subject and addressed the

issue in their closing argument. Furthermore, while Counsel did not call the two witnesses that

Petitioner specifically references, the record reflects that Counsel called numerous other

witnesses in the course of the trial, including six police officers, a manager at the Newark

Housing Authority, and the criminal investigator at the New Jersey Federal Public Defender’s

Office. Such strategic choices regarding which witnesses to call is not indicative of deficient

representation. See Strickland, 466 U.S. at 690 (“Strategic choices made after thorough

investigation of law and facts relevant to plausible options are virtually unchallengeable.”).

In addition, while Petitioner avers that Counsel failed to present a defense of police

misconduct on his behalf in neglecting to call these witnesses, the potential police misconduct

was in fact one of the main arguments presented to the jury by Counsel. Counsel extensively

examined the credibility of the police officers regarding their ability to view the events preceding

the arrest. In fact, most of Counsel’s closing argument was devoted to undermining the

testimony of the officers and suggesting to the jury that their testimony was too incredible to be

believed. As such, Petitioner has failed to meet the Strickland standard of deficient performance. 

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Additionally, even were the Court to assume for the sake of argument that Counsel’s

performance was deficient, the Court notes that Jackson has made no attempt in his section 2255

petition to demonstrate how Counsel’s deficiencies resulted in any prejudice. The Supreme

Court has held that to meet the prejudice prong of ineffective assistance of counsel test, a

petitioner must show that “there is a reasonable probability that but for counsel’s unprofessional

errors, the result of the proceeding would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” See Strickland, 466 U.S. at 694. 

As aforementioned, Counsel exhaustively examined the credibility of the police officers’

testimony, which the jury ultimately found to be sufficient. Petitioner’s motion puts forth no

evidence indicating how the testimony of the two witnesses would challenge the jury’s credibility

determination in any additional and meaningful way. As such, Jackson fails to carry his burden

of establishing both essential prongs of the Strickland test - deficiency and prejudice. See Forte,

865 F.2d at 62 (“To establish that his representation was constitutionally inadequate a defendant

must prove that his attorney’s performance was unreasonable under prevailing professional

standards and that this performance prejudiced the defense . . . .”). Therefore, the Court rejects

for lack of merit the claim that Jackson was denied the effective assistance of counsel.

B. Fourth Amendment Claim

In this section 2255 motion, Petitioner claims that his Fourth Amendment rights were

violated by this Court’s decision to deny him an evidentiary hearing on his suppression motion. 

In considering a motion for habeas corpus relief under 28 U.S.C. § 2255, “the appropriate inquiry

[is] whether the claimed error of law was a ‘fundamental defect which inherently resulted in a

complete miscarriage of justice’ and whether ‘it...presents exceptional circumstances where a

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need for the remedy afforded by the writ of habeas corpus is apparent.’” Casper v. Ryan, 822

F.2d 1283, 1288 (3d Cir. 1987). A section 2255 motion is not a substitute for appeal, nor may it

be used to relitigate matters decided adversely on appeal. United States v. Orejuela, 639 F.2d

1055, 1057 (3d Cir. 1981). Because the issue of this Court’s refusal to conduct an evidentiary

hearing was raised and affirmed by the Third Circuit on direct appeal, Petitioner is barred from

challenging the issue in this section 2255 motion. See United States of America v. Jackson, 363

Fed. Appx. 208, 209-10 (3d Cir. 2010). Therefore, this Court denies Petitioner’s petition to

vacate, set aside or correct his sentence. 

C. Certificate of Appealability

This Court must determine whether a certificate of appealability should issue. L.A.R.

22.2. The Court should issue a certificate only if the petitioner “has made a substantial showing

of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this showing, the

“petitioner must demonstrate that reasonable jurists would find the district court’s assessment of

the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). As

set forth above, this Court concluded that Jackson’s Sixth Amendment ineffective assistance of

counsel claim lacks merit. It further concludes that Jackson has not demonstrated that jurists of

reason would find this assessment debatable or wrong. Therefore, this Court declines to issue a

certificate of appealability pursuant to section 2253(c)(2).

III. CONCLUSION

For the foregoing reasons, this Court denies Petitioner’s motion for relief under 28 U.S.C.

§ 2255. A certificate of appealability will not issue. An appropriate form of order will be filed

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together with this Opinion.

 s/ Stanley R. Chesler 

 STANLEY R. CHESLER

United States District Judge

DATED: September 14, 2011

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