Full opinion text
MEMORANDUM OPINION Per Curiam In this appeal, Carl Simon (“Simon”) challenges on numerous grounds the July 18, 2002 Order of the-Superior Court of the Virgin Islands dismissing his February 2000 amended petition for a writ of habeas corpus filed pursuant to 5 V.I.C. § 1314. Joint Appendix (“JA”) 4. For the reasons that follow, Simon’s appeal will be dismissed in part and remanded in part. It will be remanded to the Superior Court for a development of the factual record underlying Simon’s claim that Michael Joseph, Esq. rendered ineffective assistance of counsel in failing to appeal this Court’s August 20, 1997 Opinion affirming Simon’s conviction to the United States Court of Appeals for the Third Circuit. Simon’s appeal of his habeas petition will be dismissed in all’other respects. I. BACKGROUND AND PROCEDURAL HISTORY In September 1993, Simon, James Roach (“Roach”), and another individual burglarized a house on St. John, U.S. Virgin Islands. Elroy Connor (“Connor”), who lived in the house, and his friénd Daniel Ezekiel (“Ezekiel”), arrived during the burglary. An altercation ensued and Ezekiel was shot dead. Simon, Roach, and the third person fled the scene with money and other valuables. Simon and Roach were later separately apprehended. Roach was charged with first-degree murder, a local charge, and unlawful flight to avoid prosecution, a federal charge. On May 5, 1994, after a two-day trial, he was convicted of both charges in the District Court of the Virgin Islands and was sentenced to life imprisonment on the murder charge. JA 7. Roach filed a Notice of Appeal to the Third Circuit on May 11, 1994. He moved to dismiss his appeal on March 20,1995. Shortly after Simon’s arrest in May 1994, the Government of the Virgin Islands (the “Government”) filed an Information in the Superior Court of the Virgin Islands charging him with two local charges: premeditated murder, in violation of 14 V.I.C. §§ 921 and 922(a)(1) (Count I), and third-degree burglary, in violation of 14 V.I.C. § 444(1) (Count II). JA 67. The Virgin Islands Public Defender’s Office was appointed to represent Simon. JA 38. During a January 10,1995 pretrial conference, the Government stated that it intended to amend the Information to add a count of robbery. JA 87. The judge directed the Government to file a written motion and to give Simon, represented by his trial counsel, Augustin Ayala, Esq. (“Ayala”), an opportunity to respond. Id. On January 13, 1995, the Government provided Simon with a copy of an Amended Information containing four counts. JA 96. Count I charged felony murder, based on the predicate felony of robbery, in violation of 14 V.I.C. §§ 11(a), ' 921, and 922(a)(1); Count II charged robbery, in violation of 14 V.I.C. §§ 11(a) and 1862(2); Count III charged conspiracy to commit robbery, in violation of 14 V.I.C. § 551(1); and Count IV charged burglary, in violation of 14 V.I.C. § 444(1). Id. ' At the January 13, 1995 hearing, Simon opposed the proposed amendment because it added new counts. JA 121. The Government filed its motion to amend the Information on January 18, 1995 (“First Amended Information”). JA 130. At a pretrial conference prior to jury selection on January 23rd, the Government responded to the Court’s observation that the First Amended Information was defective by stating that it would not present the conspiracy count. JA 141-42. Simon again opposed the “last minute” amendment. JA 144. After a colloquy, the trial judge granted the Government’s motion to amend the proposed First Amended Information — to remove the conspiracy count; change the language in the murder count to reflect the elements of felony murder; and delete some text from the burglary count. JA 144-52,158. The judge further stated that the robbery charge was unobjectionable because the amended Count I provided. that the killing was allegedly perpetrated during the robbery, and that while the revised Information added a new count of robbery, he did not view it as prejudicing the Defendant. JA, 148. On January 25,1995, the Government filed the Second Amended Information that" reflected the changes resulting from the January 23rd pretrial colloquy. JA 750-52. Simon’s trial was held on January 24-25, 1995. During the trial, Roach appeared on behalf of the Government, and testified that Simon shot Ezekiel. JA 318-20. Ayala vigorously cross-examined Roach. He elicited testimony that Roach was angry “in a way” that, although subpoenaed, Simon had not testified on Roach’s behalf during Roach’s trial. Ayala argued that, as a result, Roach had a motive to testify against Simon at Simon’s trial. JA 337-38. Roach also expressed anger at Simon because Simon was the person who “shot the man, and here I am, in trial, for something I didn’t do. Carl Simon is who shot the man.” Id. at 338. Further, Ayala caused Roach to admit that certain statements Roach made at his trial — ie., that he did not know Simon, JA 341-44, and that he went by his girlfriend’s house on the night of the crime and thus was not at the scene of the crime, JA 365-69, 373, see also JA 297 — were lies. Roach also admitted that he lied to the judge and jury in his case, JA 373, as well as to a police detective who took a statement from him after the erime, JA 381-82, 399, • and a Deputy Marshal investigating the crime when-he stated that he did' not know Simon. ' JA 344. Roach further testified that he received “protection” from the Government. When asked by Ayala, “[d]o you know which Government gave the protection? Was it the Federal Government or the Local Government?” Roach’s response was, “I can’t — the Local.” JA 374-75. During redirect examination, the Government attorney asked Roach to explain what he received from the Government in exchange for testifying at Simon’s trial: Q: Mr. Roach, will you state to the Court and the Ladies and Gentlemen of the Jury, whether or not the Government has made any promises to you for your testifying here today, in terms of reducing or having . to do anything with your case? A: I ask for protection. Q: And? A: So that Carl Simon and he [sic] brother and they couldn’t get to me. The Court: Are’there any other promises that were made to you by the Government? A: No, Sir. JA 390. Another eyewitness, Elroy Connor, whose house had been broken into, identified Roach as one of the perpetrators. He testified that Roach was accompanied by a shorter man who wore a stocking that covered his face, and that he struggled with Roach. JA 468,470-71, 473-74. The record reflected that Simon was .shorter than Roach. JA 673. Another witness testified that he saw Roach and Simon together around 10:45 p.m. on the night of the. crime, JA 551-52, and observed that Simon was acting nervous that evening. JA 556-60. Simon called no witnesses. In his closing argument, Ayala pointed out that no one, and no physical evidence, corroborated Roach’s testimony implicating Simon. JA 655. He stressed that Roach was a liar, JA 647-53, 658-59, and that Roach had “every reason to come here and tell you that Mr. Simon was involved.” JA 657. The jury found Simon guilty of felony murder, first-degree robbery, and third-degree burglary. JA 753-54. The trial judge sentenced Simon to life in prison without the possibility of parole. Id. Ayala and Simon filed separate Notices of Appeal to this Court (the Appellate Division of the District Court) in February 1995. JA 755, 757. The then Territorial Chief Public Defender Harold Willocks, Esq. (‘Willocks”) was substituted for Ayala on direct appeal. In August 1995, Wil-locks filed a Motion to be Relieved as Counsel, asserting that Simon was dissatisfied with Ayala’s representation, which “has risen to the level of innuendos and accusations of ineffective counsel,” and that there may be a conflict if the Territorial Public Defender’s Office continued to represent Simón. JA 758-59. Subsequently, in February 1996, Willocks filed an Affirmation in which he stated that his office could find no basis for an appeal of Simon’s conviction. JA 762-63. He also stated that Simon had communicated that he. believed he had received “inadequate assistance” of trial- counsel; that Willocks and a former law professor had reviewed the trial transcript and- could find no indication of ineffective assistance; and that Willocks had written Simon asking what Simon viewed as reversible error but had received no response. Id. Willocks and Michael Joseph, Esq. (“Joseph”) signed á Stipulation that was approved by this Court on August 8, 1996 that substituted Joseph as counsel on Simon’s direct appeal. JA 813-14. Joseph filed a brief arguing that the Superior Court erred in allowing the Government to amend the Information. JA 815-18. Finding no prejudice to Simon from the amendment, this Court affirmed his conviction on August 20, 1997. JA 819-27. In response to a telephone message from Simon on September 9,1997, Joseph wrote Simon a letter dated.September 10, 1997 stating, inter alia, that he would not file an appeal to the Third Circuit in Simon’s case because such an appeal would be “frivolous and without merit.” JA 828. Simon drafted a notice of appeal the next day. JA 829. The appeal was dismissed on December 17,1997 by the Third Circuit as untimely. JA 831. Meanwhile, on September 1, 1995, seven months after testifying for the Government at Simon’s trial, an Assistant United States Attorney (“AUSA”) and Roach’s counsel signed a “Stipulation to Vacate [Roach’s] Conviction of First Degree Murder to Second Degree Murder” (“Stipulation”). JA 760-61. The Stipulation memorialized the fact that Roach had withdrawn his direct appeal to the Third Circuit on March 20, 1995 “under the condition that the United States Attorney would stipulate to vacate his conviction of murder first degree and agree to charge murder second degree as a reduced charge.” JA 760. The Stipulation also provided that Roach had “rendered substantial assistance in the conviction of his accomplice, Carl Simon, which the Department of Justice acknowledged by the attached letter dated August 1, 1995.” Id. The Stipulation further provided that, with regard to the outstanding and unsentenced federal charge against Roach (unlawful flight), the U.S. Attorney would provide a USSG § 5K1.1 letter citing Roach’s substantial assistance. Id. On June 12, 1996, the U.S. Attorney’s Office filed a request for “Reduction of Sentence for Changed Circumstances” (“Request for Reduction”) in light of Roach having “substantially assisted the United States by providing valuable testimony in the trial of Carl Simon[.]” JA 809-10. Roach pleaded guilty to second degree murder that same day and was sentenced to twenty years in prison.' JA 769-808, 811-12. In February 2000, Simon filed a pro se petition for a writ of habeas corpus in the Superior Court. JA 840-65. Gwendolyn Wilds, Esq. (“Wilds”) was appointed to represent him, and she filed an amended habeas petition. Simon subsequently filed a motion to discharge Wilds which was granted in January 2002, but the Superior Court declined to appoint new counsel. JA 13; Appellant’s Brief at 19-20. Then, by Memorandum Opinion dated July 18, 2002, the Superior Court dismissed Simon’s amended habeas petition. Simon v. Gov’t of the V.I., 47 V.I. 3 (V.I.Terr.Ct.2002). JA 5-37. Simon appealed the dismissal of his amended habe-as petition to this Court in July 2002, docketed as Simon v. Gov’t of the V.I., 3:03-cv-24 (the instant case). JA 1. In January 2004, this Court appointed C. Beth Moss, Esq. (“Moss”) to represent Simon on the appeal of the dismissal of his amended habeas petition. (Dkt. No. 12 in 2003-cv-24). In June 2004, Moss moved to withdraw as appellate counsel pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). (Dkt. No. 17). The motion was granted and Carolyn Hermon-Percell, Esq. (“Hermon-Percell”) was appointed. (Dkt. No. 19). In September 2005, Hermon-Percell also sought to withdraw by filing an An-ders brief. She identified seven possible issues for appeal, but found them to be without arguable merit, (Dkt. No. 26; Dkt. No. 31 at 5). In a Memorandum Opinion dated September 10, 2007, while Hermon-Percell’s Anders Motion was pending, the Appellate Division remanded this case to the Superior Court “to determine whether a Certificate of Probable Cause [“CPC”] should issue” in order for the case to proceed on appeal. (Dkt. No. 31 at 6; Dkt. No. 32). The Superior Court issued a CPC in February 2008, finding that the late amendment of the Information, the alleged Brady violation, “and other issues raised by Simon in his Amended Petition for Writ of Habeas Corpus are deserving of consideration by the Appellate Division.” (Dkt. No. 34 at 5). However, in a Memorandum Opinion filed in August 2009, this Court— apparently without considering the CPC previously issued by the Superior Court— affirmed the Superior Court’s July 2002 judgment denying Simon’s petition for a writ of habeas corpus and granted Her-mon-Percell’s Anders motion to withdraw as appellate counsel. (Dkt. Nos. 40, 41). Simon appealed this Court’s August 2009 Memorandum Opinion and Order to the Third Circuit. (Dkt. No. 42). In an Opinion issued in May 2012, the Third Circuit held that, in light of the CPC, the Appellate Division erred by finding that Hermon-Percell’s Anders brief was sufficient as a matter of law. Simon v. Gov’t of the Virgin Islands, 679 F.3d 109 (3d Cir.2012). The Court concluded that there were “nonfrivolous issues that the Appellate Division should have reviewed on the merits,” including the issues discussed in the CPC. Accordingly, the Third Circuit vacated this Court’s August 2009 Order, and remanded for further proceedings. Id. at 115-16. In October 2012, this Court granted Simon’s motion to expand the CPC issued by the Superior Court, and permitted him to address the following issues in his brief: (1) whether the Government improperly withheld Brady material; (2) whether harmless error was the appropriate standard of review to apply to an improper amendment of an Information; (3) whether the alleged error involved in improperly amending the Information warranted reversal of Simon’s conviction; (4) whether the Information was constructively amended; and (5) whether Simon received ineffective assistance of counsel. (Dkt. No. 62). The Court also permitted Simon to argue that the Superior Court Jacked jurisdiction to hear his criminal case in the first instance. (Dkt. Nos. 63, 86). II. JURISDICTION AND STANDARD OF REVIEW Title 5, Sections 1301-1325 of the Virgin Islands Code govern habeas corpus petitions brought in Superior Court. The statute provides that “[e]very person unlawfully imprisoned or restrained of his liberty, under any pretense whatever, may prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment or restraint.” 5 V.I.C. § 1301. Habeas corpus is warranted only in limited cases where violations of constitutional principles are implicated. Dowling v. Gov’t of the V.I., 44 V.I. 256, 259 (Terr.Ct.2002). Granting habeas relief is an extraordinary remedy. To prevail on a habeas appeal, the petitioner must establish an error of constitutional magnitude which had a substantial and injurious effect or influence on the proceedings. Even an error that may justify a reversal on direct appeal will not necessarily sustain a collateral attack. The burden is upon the petitioner to attack the validity of the judgment under which [he is] imprisoned. Hughley v. Gov’t of the V.I., 2011 WL 4463309, at *1 (D.V.I.App.Div. Sept. 23, 2011), aff'd 536 Fed.Appx. 278, 281 (3d Cir.2013) (internal citations omitted). Ha-beas has been described as “ ‘a collateral remedy ... not designed as a substitute for direct review.’ ” Teague v. Lane, 489 U.S. 288, 306, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (quoting Mackey v. United States, 401 U.S. 667, 682-83, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971)). The Appellate Division of the'District Court “has jurisdiction to review appeals from final decisions of the Superior Court of the Virgin Islands concerning habeas petitions” in cases filed prior to January 29, 2007. Hughley, 2011 WL 4463309, at *1; see V.I. Code Ann. tit. 4, § 33; Revised Organic Act of , 1984, § 23A, 48 U.S.C. § 1613a(a) . (providing District Court with “appellate jurisdiction over the courts of the Virgin Islands established by local law to the extent now or hereafter prescribed, by local law”);, Martinez v. Stridiron, 2011 WL 1483260, at *2 (V.I. Mar. 22, 2011) (stating that, after January 29, 2007, “the Supreme Court of the Virgin Islands assumed exclusive jurisdiction over appeals arising out of the Superior Court of the Virgin Islands”); Legislature of the V.I. v. DeJongh, 52 V.I. 650, 645 F.Supp.2d 452, 457 (D.V.I.App. Div.2009) (establishing the Supreme Court of the Virgin Islands to review decisions of the Superior Court after Jan. 29, 2007). Simon’s habeas petition was filed in the Superior Court in February 2000. Accordingly, this Court, sitting in its appellate capacity, has jurisdiction to hear Simon’s appeal from the dismissal of his amended habeas petition by the Superior Court. “A trial court’s conclusions of law in dismissing a'petition for writ of habeas corpus are subject to plenary review.” Mendez v. Gov’t of the V.I., 56 V.I. 194, 199 (V.I.2012) (citing Villot v. Varner, 373 F.3d 327, 331 (3d Cir.2004)). This Court reviews “a trial court’s findings of fact only for clear error.”- Hughley, 2011 WL 4463309, at *2. A finding of fact is clearly erroneous when it is “completely devoid of minimum evidentiary support displaying some hue of credibility or bears no rational relationship to the supportive evidentiary data.” Berg Chilling Sys., Inc. v. Hull Corp., 369 F.3d 745, 754 (3d Cir.2004) (internal quotation marks omitted). III. DISCUSSION A. Brady Violation Simon argues that the Government of the Virgin Islands improperly withheld Brady material from him and his counsel before his trial. Specifically, he contends that: (1) a quid pro quo agreement was-reached between Roach and the U.S. Attorney’s Office,- which provided that Roach would abandon his then-pending appeal of his first-degree murder conviction and would testify against Simon in exchange for a reduced sentence; and (2) this agreement was memorialized in the September I,1995 Stipulation between the U.S. Attorney’s Office and Roach’s counsel recommending vacatur of Roach’s first-degree murder conviction and allowing him to re-plead to second-degree murder. Appellant’s Brief at 22, 26. Simon maintains that statements made at Roach’s June 12, 1996 resentencing hearing, plus the Stipulation and the August T, 1995 § 5K1.1 letter from the AUSA, are “clear evidence that there was an agreement that had been struck” with Roach that was never disclosed. Appellant’s Brief at 26-28. The Government denies that it improperly withheld Brady material. It counters that the Stipulation was signed more than seven months after Simon’s conviction and Roach was re-sentenced almost two and one-half years after Simon’s conviction. Appellee’s Brief at 6-7. The Government further asserts that the United States, not the. Government of the Virgin Islands, prosecuted Roach; that the two entities are separate sovereigns; and that nothing in the record shows when the Assistant Attorney. General prosecuting Simon learned of the agreement between the AUSA and Roach. Id. at 8-9. The Gov-ermhent concludes that Simon has not met his burden of demonstrating that it suppressed information of the settlement. The Government also adds that Roach’s credibility was vigorously attacked at trial; impeachment by ariy such agreement would be cumulative; and the evidence at trial was sufficient to ■ convict Simoh. Ap-pellee’s Brief at 9-10. 1. Legal Standard In Brady v. Maryland, the Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment[.]” Brady, 373 U.S. at 87, 83 S.Ct. 1194. ‘“[T]o establish a Brady violation requiring relief, a defendant must show that (1) the government withheld evidence, either willfully or inadvertently; (2) the evidence was favorable, either because it was exculpatory or of impeachment value; and (3) the withheld evidence was material.’ ” United States v. Walker, 657 F.3d 160, 185 (3d Cir.2011) (quoting Lambert v. Blackwell, 387 F.3d 210, 252 (3d Cir.2004)). The burden of establishing a Brady violation falls on the defendant. Maynard v. Gov’t of the V.I., 392 Fed.Appx. 105, 119 (3d Cir.2010) (citing United States v. Pelullo, 399 F.3d 197, 209 (3d Cir.2005)). 2.. Analysis Simon’s argument falters. on the first prong of the Brady analysis: he cannot show that- an agreement actually existed between Roach- and the prosecution beforehis trial, and therefore he cannot demonstrate that the Government withheld evidence of such an agreement. Simon relies on documents that do not support his quid pro quo theory, and statements that are equivocal at best and not made under oath, to prove that such an agreement existed. Simon simply extrapolates backward from the September 1995 Stipulation and June 1996 Request for a Sentence Reduction and- Hearing, and concludes that an agreement had to have been in place .before Roach testified. But those documents, plus statements Roach’s counsel made at the resentencing hearing, do. not meet Simon’s burden of proving that.fact. See United States v. Freeman, 763 F.3d 322, 346-47 (3d Cir.2014) (finding that documents that postdate trial fail the first prong of the Brady analysis). By its terms, the September 1995 Stipulation set forth one condition that Roach had to meet before the AUSA would stipulate to vacate Roach’s first-degree murder conviction and charge second-degree murder: Roach had to withdraw his appeal to the Third Circuit Court of Appeals. JA 760. Roach moved to dismiss his appeal on March 20, 1995, and the appeal was dismissed on May 1, 1995. U.S.C.A. Appeal No. 94-7284. Both the condition precedent to the Stipulation (withdrawing the appeal), and the Stipulation itself, occurred months after Roach testified at Simon’s trial. While the Stipulation also referred to Roach having rendered substantial assistance at Simon’s trial, nothing in the Stipulation indicates that his testimony at Simon’s trial was a pre-condition to the agreement to reduce Roach’s sentence. Similarly, nothing in the June 1996 Request for a Sentence Reduction indicates that the prosecutor reached any agreement with Roach, prior to Simon’s trial, in exchange for his testimony. JA 809. Simon points to certain statements made by Roach’s counsel at the June 1996 resen-tencing as support for his position that the agreement to reduce Roach’s sentence was reached before Roach testified. For the resentencing court’s benefit, Roach’s attorney “fill[ed] in some gaps” with’regard to what had occurred after Roach was convicted. JA 778. Roach’s counsel stated, “[ajfter we had filed our appeal, ... we were approached by the Government and we agreed with regards to that matter to testify in the Territorial Court. Upon our testimony in the Territorial Court, we agreed and we stipulated to vacate the conviction for first degree murder” based on Roach’s testimony against Simon and because Roach had given “substantial information.” Id. (emphasis added). This statement describes a two-step process in reaching the agreement to vacate the conviction for first-degree murder. First, at some unidentified time after Roach filed his appeal on May 20,1994, he agreed to testify. However, counsel’s statement does not indicate that the agreement to testify was predicated on some benefit for doing so. Second, sometime after Roach testified, his counsel and the AUSA agreed and stipulated to Vacate Roach’s first-degree murder conviction. Roach’s counsel explicitly stated that the agreement to reduce Roach’s sentence occurred “[u]pon our testimony” — not before he testified. At the resentencing, Roach’s counsel also stated that “immediately” after Roach was convicted, Roach expressed his desire to cooperate, and “[subsequently, [the U.S. Attorney] and myself we agreed that this [Stipulation] may be the best mechanism in terms of the interest of justice.” JA 796. Here, also, two time frames are mentioned: the first was when Roach expressed a general interest in cooperating, which occurred “immediately” after Roach’s conviction on May 5, 1994. The second time frame was highlighted by counsel’s use of the word “subsequently,” indicating, that, at some unidentified time after Roach expressed interest in cooperating, his counsel and the Government decided that a stipulation would- be the “best mechanism” to achieve the “interest of justice.” There is, however, no indication that the agreement to reduce Roach’s sentence occurred prior to Roach’s testimony in the Simon ease. These statements from the resentencing hearing, as well as others upon which Simon relies, Appellant’s Brief at 27-28, merely refer to the uncontested fact that a stipulation was reached. None of the statements establish that the agreement to reduce Roach’s sentence occurred before Roach testified. In fact, the only definitive statement is Roach’s testimony to the contrary — that the benefit he received prior to his testimony was protection, and that there were no other promises made to him for his testimony by the Government. JA 390. At bottom, the Court is left with Simon’s speculation that a deal must have been struck with Roach before he testified because he eventually received a benefit after he testified. But such speculation is not sufficient to invoke Brady. See Strickler v. Greene, 527 U.S. 263, 286, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999) (“Mere speculation that some exculpatory material may have been withheld is unlikely to establish good cause for a [Brady-related] discovery request on collateral review.”); Maynard, 392 Fed.Appx. at 116-17 (rejecting conjecture as a basis for a Brady challenge); United States v. Ramos, 27 F.3d 65, 71 (3d Cir.1994) (stating that it was “unwise to infer the existence of Brady material based upon speculation alone”). Moreover, the Superior Court’s conclusion in its July 2002 habeas Memorandum Opinion — that “the fact that the United States cited Roach’s cooperation in the Territory’s prosecution of Simon as a factor in its request for a reduction in sentence does not, in and of itself, establish the existence of a quid pro quo between the United States or the Government of the Virgin Islands and James Roach,” JA 32-33 — is well-supported by case law. The Third Circuit came to a similar conclusion in United States v. Freeman. In Freeman, the defendant alleged a Brady violation on direct appeal based on the fact that, several years after his conviction, during a trial of several co-defendants, he became aware of numerous letters written by key witnesses who had testified against him at his trial. One group of letters allegedly discussed agreements between the government and cooperating witnesses, and detailed the consideration they would receive in exchange for their testimony and cooperation. None of these letters had been produced to defense counsel. The Third Circuit reviewed the letters and found that they post-dated' the defendant’s trial. The Court concluded that “[b]ecause there is no record evidence that the letters even existed at the time of [defendant’s] trial, he cannot, therefore, establish prejudice as a result of the government’s nondisclosure,” and that the claim “fail[ed] at the first prong of the Brady analysis.” Freeman, 763 F.3d at 346-47. Other courts have ruled similarly. For example, the Sixth Circuit, in Akrawi v. Booker, 572 F.3d 252 (6th Cir.2009), found: “[T]he mere fact of favorable treatment received by a witness following cooperation is also insufficient to substantiate the existence of an' agreement. ‘[I]t is not the case that, if the government chooses to provide assistance to a witness following trial, a court must necessarily infer a preexisting deal subject to disclosure under Brady.’ ” Id. at 263 (quoting Bell v. Bell, 512 F.3d 223, 234 (6th Cir.2008)); see also United States v. Winston, 372 Fed.Appx. 17, 19 (11th Cir.2010) (same); Shabazz v. Artuz, 336 F.3d 154, 165 (2d Cir.2003) (observing that “the fact that a prosecutor afforded favorable treatment to a government witness, standing alone, does not establish the existence of an underlying promise of leniency in exchange for testimony”); Rivera v. Nolan, 596 F.Supp.2d 162, 170 (D.Mass.2009) (pointing out that merely because prosecution witness “ultimately received consideration” does not establish that the prosecution had struck a deal with the witness before he testified). It is a defendant’s burden to prove that a Brady violation existed. For the foregoing reasons, the Court finds that Simon has not carried his burden on the first Brady prong of showing that the Government withheld evidence of a cooperation agreement that existed before Roach testified. Finding no error in the Superior Court’s conclusion in this regard, we affirm the holding of the Superior Court-that Simon has not established the existence of a quid pro quo agreement between the Government and Roach, and reject Simon’s appeal of his Brady claim on that basis. B. The Amended Information In his amended habeas petition, Simon argued that, after nine months of proceeding on an Information charging first-degree murder and burglary, “the government’s improper amendment of the Information on the day of trial prejudiced his ability to prepare adequately for trial.” JÁ 13.- Simon claimed that he should have been afforded an additional thirty days to prepare his defense to the new robbery charge. JA 14. The Superior Court raled, inter alia, that: (1) while the amendment of the Information to include robbery violated the language of Fed. R.Crim.P. 7(e) in that an additional offense was charged, the error was harmless .beyond a reasonable doubt; (2) the substitution of felony murder for premeditated murder did not amount to charging a different offense; (3) Simon had adequate notice — almost two weeks — that the Government intended to amend the Information to include a robbery charge; (4) there was a “significant overlap” between the robbery offense and other charged offenses, and "the facts giving rise to the robbery offense took place within the same narrow time frame and location as the burglary' offense; and (5) ‘ Simon’s counsel had adequate time to review Roach’s prior testimony for any impeaching statements when preparing to defend against the additional robbery offense. JA 13-25, 36. In challenging the amendment of the Information on appeal, Simon advances three arguments. First, Simon claims that because the Information was constructively amended, he is entitled to habeas relief, regardless of whether the standard of review is harmless error or plain error. According to Simon, “a constructive amendment is ‘per se error’ in the harmless error context and satisfies the ‘affects substantial rights’ prong of the plain error test.” Appellant’s Brief at 31 (citing United States v. Syme, 276 F.3d 131, 153 n. 7 (3d Cir.2002)). Thus, Simon’s first argument is based on the premise that the Information was constructively amended. Because this premise is fatally flawed, Simon’s first argument must be rejected. The Third Circuit has held that “[t]he rule against constructive amendments arises under the Fifth Amendment, and protects the ‘constitutionally guaranteed role. of the- grand jury.’” United States v. Vosburgh, 602 F.3d 512, 532 n. 20 (3d Cir.2010) (quoting United States v. Daraio, 445 F.3d 253, 261 (3d Cir.2006)). As the court in Vosburgh noted: ‘An indictment is constructively amended when, in the absence of a formal amendment, the evidence and jury instructions at trial modify essential terms of the charged offense in such a way that there is a substantial likelihood that the jury may have convicted the defendant for an offense differing from the offense the indictment returned by the grand jury actually charged.’ Id. at 532 (quoting Daraio, 445 F.3d at 259-60). “An indictment can be constructively amended through ‘evidence, arguments, or the district court’s jury instructions’ if they ‘effectively amend the indictment by broadening the possible bases for conviction from that which appeared in the indictment.’” Id. (quoting United States v. McKee, 506 F.3d 225, 229 (3d Cir.2007)). On’ the other hand, “[i]f a defendant is convicted of the same offense that was charged in the indictment, there is no constructive amendment.” Id.; see also United States v. Miller, 471 U.S. 130, 136, 105 S.Ct. 1811, 85 L.Ed.2d 99 (1985) (“Convictions generally have been sustained as long as the proof upon which they are based corresponds to an offense that was clearly set out in the indictment.”). Even assuming the general applicability of the constructive amendment concept in the context of an information — rather than an indictment — Simon’s argument must fail. The Government first informed Simon, at a January 10, 1995 pre-trial conference, that it intended to amend the Information to include a robbery count.JA 87. On January 13th, the Government gave Simon a copy of an Amended Information that changed the first-degree murder count to felony murder, and added a conspiracy and a robbery count. JA 96, 121. The Government filed its motion to amend the- Information on January,, 18, 1995. JA 130. At a January 23, 1995 pretrial conference, the judge granted the Government’s motion to again amend the Information, with the understanding that the Government would remove the conspiracy count, and conform the language in the murder and burglary counts to reflect the elements of felony murder and burglary. JA 144-452. The approved Second Amended Information was filed on January 25, 1995. JA 750-52. • Based on this set of facts, the Court finds that the Information was not constructively amended. At the pretrial conference on January 23rd — before any testimony was taken at trial and before any arguments were made to the jury or jury instructions given — the Information was amended to reflect the charges of which Simon was subsequently convicted. Because the charges accepted by the Court at the January 23rd pretrial conference were memorialized in the Second Amended Information and constitute the offenses on which Simon ■ was tried and convicted, there was no constructive amendment. The absence of a constructive amendment negates the premise upon which Simon’s first argument, is predicated and renders the argument groundless. Simon next argues that, in' applying the harmless error standard, the Superior Court’s conclusion that he had adequate notice that the Government intended to amend the Information to include a robbery charge is misguided, arid he was prejudiced because his attorney could not mount a meaningful defense. Appellant’s Brief at 31-32. As support for this conclusion, Simon cites Ayala’s comment prior to jury selection on January 23, 1995 that he did not have “the time to be able to investigate and corroborate certain of the facts or some of the elements nécessary to prove those charges ...” JA 144. This argument is unavailing. In addressing Simon’s argument, the Superior Court pointed out that, given that the linchpin. of the Sixth Amendment is notice, -it was clear that Simon had “adequate notice — almost two weeks” that the Government intended to amend the Information to add the robbery charge. JA 24-25.. The court rejected Simon’s contention that counsel had no time to prepare for the additional robbery defense, finding that counsel had “adequate time to review Roach’s prior testimony for any impeaching statements.” Id. at 25. The Superior Court observed that Simon received actual notice of the robbery charge almost two weeks before trial, “thereby giving defense counsel at least thirteen days’ notice of the government’s new theory.” JA 20 n.7. The court went on to say that “[o]ther courts have found no violation of a defendant’s sixth amendment right to notice in even narrower time frames,” citing cases. Id. The court also highlighted the fact that Simon “never singled out any additional statements that were made by Roach in the district court that would have further impeached his testimony at Simon’s trial.” Id. at 25 n.12. Moreover, the Superior Court found that “the factual posture of the case militates in favor of harmless error” because of the “significant overlap between the robbery offense and the other charged offenses. The facts that gave rise to the robbery offense took place within the same narrow time frame and location — namely, between Simon’s entry into Ezeki[e]’ls house and his exit — as the burglary offense.” Id. at 25. As a result, the Superior Court concluded that few evidentiary matters or defenses that Simon raised would have been undermined by the new charge. The Superior Court further added that even if counsel had requested a continuance, it was “difficult to imagine how defense counsel would have proceeded differently.” Id. Exercising plenary review of the legal issues, and clearly erroneous review of the factual issues, this Court finds no error with .the Superior Court’s conclusion that Simon had sufficient notice of the new charges to prepare his case, and that he was not prejudiced by the amendment of the Information. The Superior Court properly analyzed Simon’s claim under the Sixth Amendment and supported its conclusion with adequate citations to case law. Simon’s actual notice of the amendment .on January 10, 1995 — almost two weeks before trial — did not violate his Sixth Amendment right to notice of the charges against him. See Hawkinson v. Zavaras, 427 Fed.Appx. 653, 658 (10th Cir.2011) (finding that pretrial hearing gave ample notice to defendant of charges he was facing and afforded him opportunity to defend against those charges); Heiss v. Berghuis, 2015 WL 1001535, at *11 (W.D.Mich. Mar. 5, 2015) (finding that prosecutor sending notice of added charge to defense attorney, and discussion of that charge at pretrial hearing nearly a week before trial, provided fair notice of charges against defendant and did not warrant habeas relief). Simon also argues that if Ayala had additional time to devote to the case, he would have been able “to effectively attack the testimony of Roach” or find two police officers whose testimony allegedly would have helped his defense. Appellant’s Brief at 32. These arguments are entirely speculative. See Rolan v. Vaughn, 445 F.3d 671, 682 (3d Cir.2006) (in context of Strickland analysis concerning whether result of proceeding would have been different, defendant’s showing of constitutional violation “may not be based on mere speculation about what the witnesses [that counsel] failed to locate might have said”) (internal quotation marks omitted).- Simon has not pinpointed on appeal what additional'challenges he could have made to Roach’s testimony once the Information was amended that he could not have made earlier when the charges were simply murder and burglary under the original Information. In other words, the need to effectively attack Roach’s testimony or to find the police officers with allegedly helpful evidence — -which Simon, claims necessitated more time — did not arise as a result of the amendment of the Information. The importance of any such testimony applied equally to the original Information. In sum, none of Simon’s arguments demonstrate that the Superior Court erred when it concluded that he had constitutionally adequate notice regarding the amendment of the Information to add the robbery charge; that he had sufficient time to defend against that offense; and that his substantial rights were not prejudiced. JA 25. Accordingly, this Court rejects Simon’s second argument that he did not have adequate notice of the amendment and therefore his counsel was, hampered from providing an adequate defense. With regard to Simon’s third argument — that because he was convicted of two counts upon which he was never arraigned, he was subjected to constructive amendment of the Information — the Court also finds this contention without merit. Simon claims that not being arraigned on charges on which he was tried constitutes prejudice affecting his substantial rights. Consequently,, his- convictions for felony murder and robbery, must be vacated. Appellant’s Brief at 38-39.,, Simon’s-counsel never raised this objection at trial and, in any event, case law does not support Simon’s conclusion. Over one hundred years ago, in Garland v. Washington, 232 U.S. 642, 34 S.Ct. 456, 58 L.Ed. 772 (1914), the Supreme Court held that “it cannot for a moment be maintained that the want of formal arraignment [on a second information] deprived the accused of any substantial right, or in any wise changed the course of trial to his disadvantage.” Id. at 645, 34 S.Ct. 456. The Court went on to say that “such strict adherence to the mere formalities of trial” is not required under the Due Process Clause.” Id. at 646, 34 S.Ct. 456. Numerous Circuit Courts have cited Garland in rejecting defendants’ arguments on direct appeal that failing to dismiss a superseding indictment for failure to arraign, or simply failing to arraign on a superseding indictment, constituted grounds for reversal of a conviction. In United States v. McGee, 606 Fed.Appx. 351 (9th Cir.2015), the Ninth Circuit found that the district court did not err in deny- , ing McGee’s motion for a new trial based on failure to arraign him on the superseding indictment, as this was a “technical error, which does not require reversal, since McGee was fully aware of the charges against him, and heard them from his counsel and- the district court during trial.” Id. at 353; see also United States v. Solomon, 581 Fed.Appx. 270, 272 (4th Cir.2014) (finding that failure to arraign on superseding indictment is “technical noncompliance with the procedural requirements” of Fed.R.Crim.P. 10 governing arraignments, and “does not warrant reversal of a conviction if not raised before trial,” citing United States v. Reynolds, 781 F.2d 135, 136 n. 2 (8th Cir.1986), and that, “[a] failure to arraign only warrants a reversal if it causes prejudice or impairs a substantial right,” quoting United States v. Williams, 152 F.3d 294, 299 (4th Cir.1998) (citing Garland, 232 U.S. 642, 34 S.Ct. 456, 58 L.Ed. 772); United States v. Correa-Ventura, 6 F.3d 1070, 1073 (5th Cir.1993) (under Fed.R.Crim.P. 10, arraignment was required so a defendant could be informed of the substance of the charges against him, to be given an opportunity to plead' to them, and to prepare a defense; but “a conviction will not be vacated for lack of formal arraignment proceedings unless possible prejudice is shown.”); United States v. Joyner, 201 F.3d 61, 79 (2d Cir.2000) (assessing issue of failure to arraign on superseding indictment in context of double jeopardy, and citing Garland). Having shown no- prejudice or impairment" of a substantial right, and given that Simon had adequate notice of the charges against him and an opportunity to defend, the Court finds meritless Simon’s third argument that, because he was convicted of two counts upon which he was never arraigned, the Information was constructively amended. Accordingly, finding no error in the Superior Court’s conclusion, we affirm the court’s ruling that the amendment of the Information did not violate Simon’s Sixth Amendment constitutional rights and reject Simon’s Amended Information argument on appeal as groundless. C. Superior Court Jurisdiction Simon maintains that the Superior Court did not have jurisdiction over his trial for first-degree murder because the crime occurred in 1993, prior to the Superior Court obtaining jurisdiction over local first-degree murder cases on January 1, 1994. Appellant’s Brief at 32-37. Challenges to the jurisdiction of a court can be raised at any time. See Arbaugh v. Y & H Corp., 546 U.S. 500, 506, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) (jurisdiction can be raised at “any stage in the litigation, even after trial and the entry of judgment”). Prior to 1994, the Superior Court had “no power to hear first-degree murder cases.” Gov’t of the V.I. v. Colbourne, 1994 WL 737179, at *1, 31 V.I. 22 (Terr.Ct. Nov. 25, 1994). The Virgin Islands Legislature expanded the Superior Court’s jurisdiction, effective January 1, 1994, with the enactment of 4 V.I.C. § 76(b), which provides that “the Territorial Court shall have original jurisdiction in all criminal actions.” In addressing Simon’s challenge to the Superior Court’s jurisdiction,. the Colbourne case is directly on point. It instructs that the proper inquiry is not when the crime occurred, but when the case was filed. See Colbourne, 1994 WL 737179 at *3 (“The fact that [the alleged offense] happened before the Court had jurisdiction is immaterial”; “As long as the Government’s criminal action was filed after jurisdiction passed to the [Superior] Court, the [Superior] Court had jurisdiction over the matter.”) (internal quotation marks and citations omitted); cf. Callwood v. Enos, 230 F.3d 627, 631 (3d Cir.2000) (noting that a criminal proceeding was properly before the District Court, rather than the Superior Court, when the matter was filed before January 1, 1994). Thus, the issue is whether the criminal action against Sim'on was filed in Superior Court after January 1, 1994 — the date on which .that court obtained jurisdiction to hear all, criminal cases. Here, the initial Information was, filed, and the action was commenced, on May 25, 1994, over four months after the Superior Court’s expanded jurisdiction over criminal cases became effective. JA 39. Therefore, the matter was properly before the Superior. Court, and Simon’s challenge on this ground is without merit. Simon also contends that the Superior Court lacked jurisdiction over Counts I (felony murder) and II (robbery) of the Second Amended- Information because he was never arraigned on, that.iteration of the Information and never , entered a plea pursuant to Fed.R.Crim.P. 10. He acknowledges that failure to be arraigned on a superseding charge is not necessarily error if no substantive changes are made to the charging document. Appellant’s Brief at 36. However, he asserts that since substantive changes were made here, the failure to ' arraign him on the new Information was fatal and his conviction must be reversed. Id. at 35-36. Simon does not explain how his argument in this regard amounts to a jurisdictional challenge or how the essence of the argument differs in any material respect from his. various challenges to the Amended Information. In any event, whether couched as a constructive amendment issue, Appellant’s Brief at 37, or a jurisdictional issue; Appellant’s Brief at 35-37, the argument fails. The notion that the crux of the issue here is whether Simon had adequate notice and an opportunity to defend' or whether the failure to arraign re-suited in prejudice to Simon is neither new or novel. As discussed earlier, from over a century ago in Garland v. Washington, 232 U.S. 642, 34 S.Ct. 456, 58 L.Ed. 772 (1914), to the present time, courts have adopted and applied these principles in addressing challenges of the nature raised by Simon. Simon also claims to have suffered prejudice by not having “an adequate opportunity to defend himself of the new and amended charges.” Appellant’s Brief at 37. The Court has previously rejected this argument in the context of addressing the Amended Information. This argument fares no better here when couched in jurisdictional terms. In view of the foregoing, the Court rejects Simon’s jurisdictional arguments. D. Ineffective Assistance of Counsel Simon did not properly raise an ineffective assistance of counsel claim in his habe-as petition, and the Superior Court’s Certificate of Probable Cause did not address such a claim. (Dkt. No. 34). In its May 16, 2012 Amended Opinion, the Third Circuit analyzed whether the Appellate Division of this Court “erred in applying the procedures of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) to assess the motions filed by court-appointed counsel to withdraw from representing Simon on post-conviction appeal.” Simon, 679 F.3d at 113. In its analysis, the Third' Circuit noted that Simon had raised other issues, such as ineffective assistance of counsel, “that counsel may also choose to address upon remand.” Id. at 116. In response, this Court issued an October 2012 Order expanding the CPC to permit Simon to address, inter alia, “[w]hether [he] received ineffective and/or deficient assistance of counsel.” (Dkt. No. 62). Accordingly, this Court will address those claims in the first instance. In his brief on appeal, Simon contends that several attorneys who represented him in this case (and in another ease), at the trial, appellate, and habeas levels, provided him with ineffective assistance. He claims ineffective assistance by Augustin Ayala, Esq. in the Superior Court trial; Harold Willocks, Esq. on direct appeal of his Superior Court conviction to the Appellate Division of the District Court; Michael A. Joseph, Esq., on the direct appeal to the Appellate Division and the appeal of the Appellate Division opinion to the Third Circuit; Arturo Watlington, Esq. (“Wat-lington”), in the appeal of a separate habe-as petition; and Gwendolyn R. Wilds, Esq., in representing him before the Superior Court in his habeas petition. “The right to effective assistance of counsel in certain criminal proceedings is guaranteed by the Sixth Amendment of the Constitution as extended to the Virgin Islands by section 3 of the Revised Organic Act of 1954 ... § 3, 48 U.S.C. § 1561.” Hughley, 2011 WL 4463309, at *2. Under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), there are two components to an ineffective assistance of counsel inquiry. The petitioner bears the burden of establishing both components. Id. First, ' “ ‘the defendant must show that counsel’s representation fell below an objective standard of reasonableness.’ ” Gov’t of the V.I. v. Vanterpool, 767 F.3d 157, 165 (3d Cir.2014) (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). This inquiry “is necessarily linked to the practice and expectations of the legal community.” Padilla v. Kentucky, 559 U.S. 356, 366, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). But a “fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Courts scrutinizing the reasonableness of an attorney’s conduct must examine counsel’s overall performance, both before and at trial, and must be highly deferential to the attorney’s judgments. Id. at 688-89, 104 S.Ct. 2052. The proper inquiry is “whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.” Id. at 690, 104 S.Ct. 2052. “[T]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms,” Hughley, 2011 WL 4463309 at *2 (internal quotation marks omitted). Second, a defendant must prove prejudice by showing that there is 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, 104 S.Ct. 2052. “A reasonable probability is a probability sufficient to undermine confidence in the outcome. That requires a ‘substantial,’ not just ‘conceivable,’ likelihood of a different result.” Vanterpool, 767 F.3d at 165 (citing Cullen v. Pinholster, 563 U.S. 170, 131 S.Ct. 1388, 1403, 179 L.Ed.2d 557 (2011)). A “purely outcome determinative perspective is inappropriate.” United States v. Livingston, 425 F.Supp.2d 554, 558 (D.Del.2006) (citing Lockhart v. Fretwell, 506 U.S. 364, 369, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993)). In applying Strickland, “the court is not engaging in a prophylactic exercise to guarantee each defendant a perfect trial with optimally proficient counsel, but rather to guarantee each defendant a fair trial, with constitutionally competent counsel.” Marshall v. Hendricks, 307 F.3d 36, 85 (3d Cir.2002). 1. Augustin Ayala, Esq. Attorney Ayala represented Simon during his January 1995 trial in Superior Court. In addition to the trial transcript, which provides insight into Ayala’s representation, the record on appeal includes the transcript of a May 21, 2003 evidentia-ry hearing before District Court Judge Raymond L. Finch at which both Simon and Ayala testified regarding an ineffective assistance of counsel claim against Ayala that Simon raised in a separate ha-beas petition. JA 902-1021. Simon asserts that Ayala rendered -ineffective assistance on numerous grounds— none of which the Court finds persuasive. The Court will address each argument in turn. a. Ayala’s Characterization of His Representation First, Simon points to- certain statements by Ayala during the May 2003 hearing that Ayala considered his representation ineffective. Appellant’s Brief at 40-41. Ayala testified that, shortly before the Simon trial, he had transferred from the Federal Public Defender’s Office to the Territorial Public Defender’s Office, and that.no one in his new office “wanted to or was willing to assist or try any murder cases.” As a result, he was “saddled” with three murder cases — including Simon’s— that he tried in six weeks. JA 920, 921. He commented that “there is no way that you could defend three murder cases effectively in any six-week period.” JA 922. When asked whether he was effective in defending Simon due to his ease load, Ayala responded: I would have to characterize that as ineffective, because- there is no way. Capital cases require a lot of leg work. Public Defender’s Offices are not equipped with the personnel, and I mean the supporting personnel. For example, I had to do the investigations myself. I didn’t have any competent investigator at that time for the investigator to go out there and track down nicknames. JA 923. Ayala was also asked about his trial strategy regarding the charges against Simon. He responded: “Actually, I had no strategy with Mr. Simon.” JA 926. Contrary to Simon’s contention, under Strickland it is not an attorney’s subjective opinion that governs whether his representation was or was not effective. Strickland requires courts to assess whether the representation “fell below an objective standard of reasonableness” as determined by “prevailing professional norms.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052 (emphasis added). Ayala’s statements, upon which Simon relies, do not support such a conclusion. ' , Ayala’s subjective assessment of his ineffectiveness focused in large part on attorney staffing problems, insufficient support personnel, and his heavy workload of three murder trials over a six-week period at the Territorial Public Defender’s Office. However, these institutional problems — albeit daunting — do not, without more, establish that Ayala’s representation of Simon was ineffective and fell below an objective standard of reasonableness. Ayala’s testimony, upon which Simon relies, does not reveal any facts that would specifically, and objectively, show that Ayala’s representation was ineffective. While Ayala testified summarily that he had “no strategy with Mr. Simon,” JA 926, he provided details at other times during the May 2003 hearing about the trial strategies that he attempted to implement, but was'stymied by Simon, and the trial strategy that he ultimately adopted. Ayala testified that every time he sat down with Simon and attempted to formulate a defense — -whether self-defense or an alibi defense — Simon would not answer him or would simply- say he did not do the shooting. Id. Ayala recounted that: Mr. Simon provided me with his theory of defense [that] would have been an alibi defense. I kept insisting with Mr. Simon that he had to provide me with the names and addresses [of the alibi witnesses], since I had to take those names to the government and allow the government time to investigate ... those individuals. JA 923-24. Ayala told .Simon on another occasion that if he was not at the scene of the crime, he needed to establish an alibi defense, but Simon “never stated to me, even at trial, after the government closed its case” the details, necessary to establish the defense. JA 931; see also JA 930, 937. Ayala further added that Simon gave him the name of one witness “a week before trial” that he was able to- track down, but that individual stated he would not come to court to testify on Simon’s behalf. JA 923. Simon gave him at least two other nicknames but “no addresses, no telephone numbers, no nothing. It’s just like, for example, giving me Harry. Well, who is Harry? I have to know which Harry. Harry that hangs out by the Tamarind Tree; .Harry that hangs out by Simmonds Alley. No nothing.” JA 924. Ayala piso discussed a self-defense trial strategy.with Simon, to no avail. JA 940-41. Under the circumstances, Ayala stated. that the “best strategy” -was to “let it-l[i]e,” that is, to leave the Government to its proof — which was the trial strategy he ended up employing on Simon’s' behalf. JA936. This testimony indicates not only that Ayala’s conclusory statement that he had no strategy does not tell the full story, but that his attempt.,to establish any alternative strategy from the “let it l[i]e” strategy that he ultimately adopted was frustrated by Simon. The faet that- he was consigned by default to a strategy wherein the Government, was left to prove its case was a strategy in and of itself. See Strickland, 466 U.S. at 691, 104 S.Ct. 2052 (“The reasonableness of- counsel’s actions may be determined or substantially influenced by the defendant’s own statements or actions.”). In view of the foregoing, Simon’s contention that Ayala provided ineffective assistance because Ayala characterized his assistance as ineffective and because he stated he did not follow a trial strategy has no merit. b. Failure to Seek a Continuance Second, Simon asserts that Ayala provided him with ineffective assistance by failing to seek a continuance when the Government moved to amend the Information. Simon maintains that “any competent criminal defense attorney would have recognized the need to rebut the prosecution’s case, and the manner in which the defense was mounted had to have changed when felony murder and robbery were added as counts.” Appellant’s Brief at 42. Simon argues that he was prejudiced as a result, because he was not given a reasonable amount of time to mount a cogent and effective defense. M The Court has previously addressed and rejected Simon’s argument that the amendment of the Information violated his Sixth Amendment rights. To the extent that his ineffective assistance argument for failing to seek a continuance is based on that same premise or the same underlying arguments, it is meritless. Where the underlying issue has no merit, an ineffective assistance claim cannot lie. Lafler v. Cooper, — U.S. -, 132 S.Ct. 1376, 1386, 182 L.Ed.2d 398 (2012) (because matter upon which the ineffective assistance claim was premised was merit-less, defendant could not demonstrate an error entitling him to relief); Ross v. Dist. Attorney of the Cnty. of Allegheny, 672 F.3d 198, 211 n. 9 (3d Cir.2012) (“We have held ... that ‘counsel cannot be deemed ineffective for failing to raise a meritless claim.’”) (quoting Werts v. Vaughn, 228 F.3d 178, 202 (3d Cir.2000)); Thomas v. Horn, 570 F.3d 105, 121 n. 7 (3d Cir.2009) (rejecting ineffective assistanc