Huggins v. United States (69 F. Supp. 3d 430, 2014)

MEMORANDUM OPINION

ROBINSON, District Judge

I. INTRODUCTION

Andre M. Huggins (“movant”) is a federal inmate currently confined at the Fairton Federal Correctional Institution in Fair-ton, New Jersey. Movant timely filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. (D.I. 358; D.I. 368) The government filed an answer in opposition. (D.I. 383) For the reasons discussed, the court will deny mov-ant’s § 2255 motion without holding an evidentiary hearing.

II. FACTUAL AND PROCEDURAL BACKGROUND

The case against movant arose out of a joint investigation conducted by the Internal Revenue Service (“IRS”) and the Drug Enforcement Agency (“DEA”). Federal law enforcement officers became interested in movant while investigating a used car business named 1800 Motor Cars in Wilmington, Delaware. The IRS suspected that 1800 Motor Cars was accepting large payments of cash from drug dealers without reporting such transactions to the IRS, as required by federal law. Movant was a client of 1800 Motor Cars, and law enforcement officers believed he was dealing drugs as his primary source of income. As part of the investigation, law enforcement officers used a variety of techniques to investigate movant, including surveillance, wiretaps, and a pen register. The agents also conducted undercover operations, using a confidential informant to attempt to purchase drugs from movant.

The law enforcement officers sought and received authorization to search movant’s home for evidence of drug trafficking. Movant agreed to speak with three law enforcement officers while his home was being searched, and he confessed that he was involved in distributing large amounts of cocaine with Jermaine Franklin, Ricardo Rogers, James Bestman, and Ricardo Barnaby. Movant was arrested that same day.

A third superseding indictment charged movant with seventeen counts. Count I charged that movant and Ricardo Rogers, a separately indicted co-conspirator, and others engaged in a conspiracy to distribute five kilograms or more of cocaine and distribute fifty grams or more of cocaine base between November '2001 and June 2002, in violation of 21 U.S.C. § 846 arid 18 U.S.C. § 2. Counts II through XI charged movant and Rogers with distributing cocaine or cocaine base on specific dates between February 21, 2002 and June 4, 2002. Count XII charged that movant and Jermaine Franklin, a previously indicted co-conspirator, and others conspired to possess with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 846. Count XIII charged that movant and Franklin knowingly managed and controlled a building, room, and enclosure for the purpose of unlawfully storing and distributing cocaine, in violation of 21 U.S.C. §§ 856(a)(2), (b) and 18 U.S.C. § 2. Count XIV charged movant and Franklin with knowing possession of cocaine with the intent to. distribute on May 28, 2003. Finally, Counts XV through XVII charged movant with money laundering, in violation of 18 U.S.C,. §§ 1956(a)(l)(B)(i) and 2, premised on transactions involving a Cadillac Escalade on December 3, 2001, a GMC Denali on August 14, 2002, and the same GMC Denali on February 3, 2003.

At trial, the government presented the testimony of the three law enforcement officers who interviewed movant at his home and obtained his confession: Special Agent Greene of the IRS, Special Agent Miller of the DEA, and Task Officer Collins of the DEA Task Force. Ricardo Rogers, one of the individuals movant identified in his confession as involved in distributing drugs with him, also testified for the government at trial. Rogers testified that he sold cocaine and crack cocaine from November 2001 to June 2002, and that movant supplied him with cocaine in four and a half ounce quantities. During his testimony, Rogers stated he' saw an individual named Melvin Barner at mov-ant’s store on February 19, 2002, and described how movant told him Barner was trying to buy drugs and asked if Rogers “could take care of hm.” Rogers testified about that particular drug transaction with Barner, and also testified that he made subsequent sales of drugs to Barner and other individuals during the relevant time period.

Barner testified for the government during movant’s trial, and explained that he worked as a paid confidential informant for the DEA in the spring and summer of 2002. Barner testified about the conversation he had with movant at his store on February 19, 2002 about buying cocaine, and how he obtained Rogers’ name from movant and completed a drug. deal with Rogers the next day. Barner also described seven subsequent drug transactions he had with Rogers in the spring and summer of 2002.

Jermaine Franklin testified at trial about his relationship with movant, Franklin described how movant offered him approximately $1000 per week to allow mov-ant to use his apartment to stash drugs. After agreeing to this arrangement in April 2003, movant began bringing a bag to Franklin’s apartment once a week and leaving it, and that movant would retrieve items from his apartment more frequently than once a week. Franklin testified that he saw the contents of the bags and believed they contained kilograms of cocaine in a rectangular shape. Franklin testified that movant stopped dropping off drugs in July of 2003. Franklin also testified that he picked up drugs from someone named “Pop” from April to July 2003.

In addition to these, witnesses, the jury heard tape recordings of calls between movant and Franklin, which Franklin identified as calls where movant would notify Franklin that he was coming to his apartment to pick up drugs.

Chris Malatesta, the sales manager at 1800 Motor Cars, testified that he sold five cars to movant and explained the falsified financing and titling arrangements. Mov-ant’s grandmother (Ruby Spielman) and father (Donald Jones) testified about their knowledge of the purchases.

On January 24, 2005, the jury convicted movant of counts II, XII, XIII, XIV, and XVII of the third superseding indictment. The jury was unable to reach a verdict on count I, and returned a verdict of not guilty on counts III-XI, and IV. Extensive post-trial motions followed, as well as litigation of the forfeiture allegations in the indictment. On November 4, 2005, movant moved for a new trial on the basis of allegedly newly discovered evidence. (D.I. 207) The evidence involved an affidavit purportedly authored by government witness Melvin Barner, wherein Barner recanted his. trial testimony. The court denied the motion after conducting an evi-dentiary hearing and finding that the Bar-ner affidavit had been falsified. (D.I. 259)

The court sentenced movant on August 21, 2006 to a term of twenty years of imprisonment and ten years of supervised release. (D.I. 276) The court also entered a final order of forfeiture, subjecting mov-ant to a personal money judgment and forfeiting his interest in a parcel of real property in Bear, Delaware. (D.I. 274) Movant appealed, and the Third Circuit Court of Appeals affirmed the conviction and sentence. See United States v. Huggins, 392 Fed.Appx. 50 (3d Cir.2010).

III. DISCUSSION

Movant timely filed the instant pro se motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255, asserting the following eleven grounds for relief: (1) trial and appellate counsel provided ineffective assistance in numerous' ways; (2) the government violated movant’s due process rights by using false evidence to obtain a search warrant, arrest, indictment, and conviction; (3) movant’s Fourth Amendment rights were violated because the warrant lacked probable cause and/or contained known perjury; (4) the government violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by withholding exculpatory material concerning co-conspirator Franklin; (5) the government violated movant’s due process rights by obtaining personal property' that was outside the scope of the search warrant and then by utilizing an administrative forfeiture procedure; (6) the government violated movant’s due process rights by misleading the court into seeking a money judgment against him in order to forfeit movant’s real property, and the money judgment violated the double jeopardy clause because movant suffered two punishments for the same offense; (7) the $292,000 money judgment was based on fraud and violated the double jeopardy clause; (8) the court has continuously violated movant’s due process rights by basing its decisions on facts that he has proven to be false; (9) movant’s convictions were obtained by prosecutorial and police misconduct; (10) movant has newly discovered evidence that shows the government knowingly presented false evidence in violation of his due process rights; and (11) movant has newly discovered evidence from the IRS showing that he had a legitimate and lawful income for the years 1997 to 2003, contradicting the government’s “unexplained wealth” theory it presented at his trial.

Movant’s claims are overlapping and, at times, difficult to discern. Nevertheless, the court concludes that the claims should be denied for the reasons set forth below.

A. Claim One: Ineffective Assistance of Trial and Appellate Counsel

Movant asserts that trial counsel provided ineffective assistance by: (1) providing deficient advice about sentencing consequences; (2) failing to conduct an appropriate investigation; (3) making deficient strategic choices during the trial; (4) failing to file a timely motion for new trial; (5) failing to contest the administrative forfeiture; and (6) representing movant while operating under a conflict of interest. Movant also asserts that appellate counsel provided ineffective assistance on direct appeal by failing to file a complete appellate brief and file a petition for certiorari.

Movant has properly raised his ineffective assistance of counsel allegations in the instant § 2255 motion rather than on direct appeal, and the court must review these arguments pursuant to the two-pronged standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under the first Strickland prong, movant must demonstrate that “counsel’s representation fell below an objective standard of reasonableness,” with reasonableness being judged under professional norms prevailing at the time counsel rendered assistance. Strickland, 466 U.S. at 688, 104 S.Ct. 2052. Under the second Strickland prong, mov-ant must demonstrate “there is a reasonable probability that, but for counsel’s error the result would have been different.” Id. at 687-96, 104 S.Ct. 2052. Additionally, in order to sustain an ineffective assistance of counsel claim, movant must make concrete allegations of actual prejudice and substantiate them or risk summary dismissal. See Wells v. Petsock, 941 F.2d 253, 259-60 (3d Cir.1991); Dooley v. Petsock, 816 F.2d 885, 891-92 (3d Cir.1987). Although not insurmountable, the Strickland standard is highly demanding and leads to a “strong presumption that the representation was professionally reasonable.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052.

1. Trial counsel provided deficient advice about sentencing consequences

Prior to the pre-trial motions hearing in August 2004, there were limited plea discussions between the government and trial counsel. (D.I. 385-2 at 30) However, no plea agreement was entered.

In September 2004, the government filed a notice pursuant to 21 U.S. § 851 stating that it intended to seek the available enhanced statutory penalties for any violations of Title 21 of the United States Code. (D.I. 77) On October 12, 2003, the grand jury returned a third superseding indictment. (D.I. 80) In January 2005, movant was convicted of count XII of the indictment, which alleged a violation of 21 U.S.C. § 841(a)(1), (b)(1)(A), and § 846. By virtue of the government’s § 851 notice and movant’s prior felony drug conviction, movant was subject to a twenty-year mandatory minimum sentence, which the court imposed. (D.I. 272 at 45, 47, 68) Absent the enhanced mandatory minimum term, movant would have faced a mandatory term of ten years imprisonment and a guideline range of 188-232 months of imprisonment. (D.I. 272 at 47)

In this claim, movant contends that trial counsel never told him about the enhanced mandatory minimum sentence, and actually told movant that he faced only 120-151 months imprisonment if he proceeded to trial. According to movant, he would have pled guilty if he had been informed that he faced a mandatory minimum twenty year sentence.

Movant’s instant allegation is unavailing. To begin, movant’s assertion that counsel provided deficient sentencing advice is refuted by one of movant’s defense counsel’s document titled “declaration in response.” (D.I. 385-2 at 29) One of movant’s defense attorneys submitted a declaration explaining that he discussed with movant “all penalties associated with the crimes he was facing, including all mandatory mínimums in effect after the government filed its Section 851 notice of intention to pursue enhanced statutory penalties. Nonetheless, [movant] insisted on going to trial.” Id. Moreover, movant has not provided anything to support his contention that he believed he faced a maximum sentence of 151 months. Thus, the court concludes that movant has failed to establish that counsel’s conduct fell below an objective standard of reasonableness.

In addition, the court finds mov-ant’s attempt to establish prejudice by asserting that he would have pled guilty if he had known that he faced a mandatory minimum twenty-year sentence if convicted at trial to be unavailing. “The plea bargain stage [is] a critical stage at which the right to effective assistance of counsel attaches.” United States v. Day, 969 F.2d 39, 43 (3d Cir.1992). To demonstrate prejudice in this context, movant must establish the following three components: (1) a plea offer was extended by the government; (2) there was a reasonable probability that he. would have accepted the plea offer and that the court would have approved the agreement; and (3) there was a reasonable probability he would have received a lesser sentence. Id. at 43-5, n. 8. Notably, movant provides no evidence that the government extended a plea offer or would have entered a plea agreement offering a range of 120-151 months of imprisonment and/or a mandatory minimum sentence of ten years. In fact, the government’s filing of the § 851 notice regarding its intent to seek enhanced statutory penalties demonstrates the strong likelihood that the government would not have entered a plea agreement providing for a lower sentence.

In turn, the government’s July 30, 2004 letter to trial counsel indicates that the government would only have extended a plea offer if movant agreed to cooperate with the government. (D.I. 385-2 at 30) However, movant does not allege that he would have been willing to enter into a cooperation agreement with the government, and the government’s letter actually indicates that movant was not interested in entering a cooperation agreement. Given these circumstances, the court cannot conclude that the government would have extended a plea offer.

Finally, movant fails to demonstrate a reasonable probability that he would have accepted a plea offer from the government, and the record actually refutes movant’s contention that he would have accepted a guilty plea. As just discussed, the government’s July 2004 letter to trial counsel indicates that movant would not have entered a plea agreement with the government because such an agreement would have required him to cooperate with the government, which he was not willing to do. In addition, movant’s assertions during his litigation history belie movant’s instant self-serving statement that he would have accepted a guilty plea to a term of imprisonment less than twenty years. See United States v. Nigro, 419 Fed.Appx. 244, 248 (3d Cir.2011) (rejecting similar claim on ground that record demonstrated the defendant was adamant that police lied and thus did not intend to plead regardless of sentencing consequences). Notably, during the entire life span of this case, movant has repeatedly and vociferously asserted: (1) his innocence; (2) that all of the government’s witnesses committed perjury; (3) that various investigating law enforcement individuals committed perjury; (4) that the government agents lied about his confession to drug activity; and (5) that numerous witnesses and other evidence would have supported his claims of innocence and/or perjury. Given all of these circumstances, the court concludes that movant has not demonstrated he was prejudiced by any action of defense counsel in advising him as to the sentence he would face if he went to trial and was found guilty. Accordingly the court will deny this first allegation of ineffective assistance as meritless.

2. Trial counsel failed to conduct an appropriate investigation of evidence indicating government witnesses perjured themselves

At trial, Rogers testified that he was inside movant’s store on February 19, 2009 when Barner came in and spoke with movant. In contrast, Barner testified that Rogers was on his way into movant’s store as he was exiting it. Consistent with Earner’s testimony, Agent Ramos-Diaz testified, and Agent Miller’s notes confirmed, that Agent Ramos-Diaz saw Barner meet and speak with Rogers outside of mov-ant’s store. Movant asserts these inconsistencies demonstrate that Barner and Rogers lied about movant’s role during the February 19, 2002 meeting. He further contends that trial counsel would have been able to prove that perjury and his innocence with respect to count II of the indictment if counsel had sufficiently investigated the contents of Tape N-15 (the recording taken from the wire Barner wore on February 19, 2002 that was not admitted as evidence during the trial), Agent Ramos-Diaz’s testimony regarding the events of that day, and Agent Miller’s notes regarding the events of that day.

The court is not persuaded. Movant has repeatedly asserted to both this court and the Third Circuit his belief that Barner and Rogers committed perjury and his belief that Tape N-15 and/or the surveillance testimony would have revealed this perjury. Both courts, however, have con-eluded that the evidence admitted at trial, which included recorded phone conversations, co-conspirator testimony, and mov-ant’s confession admitting his involvement in the drug trafficking and money laundering activities for which he was convicted, as well as Tape N-15 (which was not admitted at trial), did not reveal perjury by government witnesses. See e.g., Huggins, 392 Fed.Appx. at 51-55, For instance, movant first alleged that Barner committed perjury in his first Rule 33 motion for new trial filed by counsel 2. To support that motion, movant submitted an affidavit purportedly authored by Barner in which Barner recanted the trial testimony he provided that supported count II of the indictment relating to the February 19, 2002 event. The affidavit stated that Bar-ner lied at -trial and that he followed a script prepared by the government attorneys and agents. (D.I. 259 at 4) Movant’s Rule 33 motion also alleged that Tape N-15, which was not admitted as evidence at trial, demonstrated that the drug transaction occurred between Barner and Rogers exclusively and did not involve movant. After conducting an evidentiary hearing, the court determined that the Barner affidavit was a fraud. The court also found that Barner was credible and accepted his evidentiary hearing testimony that he had testified truthfully at trial. (D.I. 259 at 10), In addition, after listening to Tape N-15 “multiple times in tape and CD form,” the court noted that “it remains difficult to discern the identities of the speakers, the contents of their conversations, or the location of same.” (D.I. 259 at 11) The court concluded, “the tape, at best, is impeachment material and not of such a compelling nature to produce an acquittal.” Id. at 12.

In August 2006, while representing himself, movant filed a second Rule 33 motion, this time alleging that a different government witness, Ricardo Rogers, had committed perjury along with Barner during the trial. Movant asserted that Barner and Rogers falsely testified about the alleged meeting with movant that occurred on February 19, 2002, and that their untruthfulness was proven by the recording known as Tape N-15, as well as by the surveillance testimony and notes of Special Agents Ramos-Diaz and Miller. The court denied this second Rule 33 motion as untimely during movant’s August 21, 2006 sentencing hearing. (D.I. 272 at 3)

Although the court denied movant’s second Rule 33 motion on procedural grounds, the Third Circuit expressly rejected mov-ant’s assertion that the surveillance testimony in any way demonstrated that Bar-ner or Rogers testified falsely, stating:

[Movant] contends that Agent Ramos-Diaz’s trial testimony and Agent Miller’s notes requires us to conclude that Rogers was not present in [movant’s] store on February 19, 2002.... We conclude to the contrary.... Although [movant] has identified inconsistencies among the trial testimony of Rogers, Barner, and Agent Ramos-Diaz with regard to whether Rogers was inside of [movant’s] store white [movant] was speaking,with Barner, this does not establish that Rogers did not enter the store and speak with [movant] about selling cocaine to Barner on February 19,2002.

Huggins, 392 Fed.Appx. at 68 n. 14.

In order to conclude that trial counsel failed to conduct an adequate investigation of the evidence identified by movant, the court would have to accept movant’s assertion that the mere inconsistencies in the evidence he identifies proves perjury by Barner and Rogers, The record, however, simply does not support that conclusion. “There are many reasons testimony may be inconsistent; perjury is only one possible reason.” Lambert v. Blackwell, 387 F.3d 210, 249 (3d Cir.2004). As found by the Third Circuit, even if Rogers was outside movant’s store when movant was speaking with Barner inside his store, that situation does not prove that Rogers did not enter the store and speak with movant about selling cocaine to Barner on February 19, 2002. “In fact, the testimony of Barner and Agent Ramos-Diaz support an inference that Rogers was headed into [movant’s] store after speaking with Bar-ner.” Huggins, 392 Fed.Appx. at 59 n. 6. Significantly, the “jury, as the finder of fact, was entitled to draw such an inference or to credit the testimony of Rogers.” Id.

When viewed in totality, the testimonial inconsistencies highlighted by movant do not conclusively show that Barner and Rogers perjured themselves. Additionally, because of its lack of clarity, Tape-N-15 does not conclusively show that Barner and Rogers perjured themselves. As such, movant cannot demonstrate that counsel’s failure to “pi-operly investigate” Tape N-15 and the testimony and notes provided by Agents Ramos-Diaz and Miller fell below an objective standard of reasonableness, or that he was prejudiced by counsel’s failure to uncover perjury that simply did not exist. Thus, the court will deny this allegation as meritless.

3. Trial counsel utilized deficient trial strategies

Movant asserts numerous examples of trial counsel’s alleged deficient trial tactics and/or strategies. As a general rule, the strategic choices of counsel are afforded a strong presumption of correctness and deference. See United States v. Martin, 262 Fed.Appx. 392, 397 (3d Cir.2008) With this principle in mind, the court will address movant’s specific assertions of error in seriatim.

(a) Ineffectively impeached trial witnesses

(1) Barner and Rogers

Movant asserts that trial counsel should have recalled Barner and Rogers to the stand after Special Agent Ramos-Diaz testified in order to impeach them with Ramos-Diaz’s allegedly conflicting testimony. During movant’s direct appeal, the Third Circuit found that Ramos-Diaz’s testimony .was consistent with Barner’s testimony and also that it did not conflict with Rogers’ testimony. See Huggins, 392 Fed.Appx. at 58-59 n.6. Based on that finding, the court concludes that trial counsel’s failure to attempt to impeach Barner and Rogers with Ramos-Diaz’s non-conflicting testimony did not amount to ineffective assistance.

Movant relatedly asserts that counsel failed to impeach Barner and Rogers with Tape N-15 and Agent Miller’s handwritten notes. As previously noted, the court reviewed Tape N-15 and concluded that the identities of the speakers, the contents of their conversations, and the location of those conversations were “difficult to discern.” (D.I. 259 at 11) Consequently, the court finds that trial counsel’s decision not to use Tape N-15 while cross-examining Barner and Rogers did not fall below an objective standard of reasonableness. Additionally, although the Third Circuit did not review the merits of this claim when movant presented it on direct appeal, the Third Circuit stated,

[movant’s] trial counsel may well have made a strategic choice not to use the N15 CD and Agent Ramos’s testimony to impeach Barner. It is far from clear that this evidence could have been effectively used to impeach Barner and several other approaches were available to trial counsel. In fact, trial counsel attacked Earner’s credibility on several other grounds — questioning him about his engagement in criminal activity while he was working as a confidential informant for the government and his history of violating court orders and lying to law enforcement officers. Counsel also questioned Barner about his plea agreement with the government.

Huggins, 392 Fed.Appx. at 68. The Third Circuit’s description of trial counsel’s thorough efforts to impeach Barner defeats movant’s instant contention that trial counsel’s performance in this respect was ineffective.

Finally, movant has failed to demonstrate prejudice resulting from trial counsel’s actions. Agent Ramos-Diaz testified at trial about his surveillance on February 19, 2002. Trial counsel used Agent Miller’s notes about the events of that date when cross-examining Agent Ramos-Diaz. As a result, the jury was aware of any conflicting testimony, and recalling Barner or Rogers would have added little to the defense. Moreover, given counsel’s extensive cross-examination of Earner and Rogers and overall attempts to impeach their credibility, the court cannot conclude that movant has demonstrated a reasonable probability that the outcome of movant’s trial would have been different but for trial counsel’s failure to use Agent Miller’s notes, Agent Ramos-Diaz’s testimony, or Tape N-15 to impeach Barner and Rogers. Accordingly, the court will deny this particular allegation as meritless.

(2) Agent Miller and Task Force Officer Collins

Next, movant asserts that trial counsel “failed to impeach and destroy” the credibility of Special Agent Miller and Task Force Officer Collins with respect to the drug transaction that occurred on February 19, 2002, Movant contends that trial counsel were ineffective for failing to ask these officers any questions about their involvement in the surveillance of the events of February 19, 2002, and asserts that cross-examination would have revealed that they suborned the allegedly perjured testimony of Rogers and Barner. This argument is unavailing. As previously explained, trial counsel used Agent Miller’s notes during the cross-examination of Agent Ramos-Diaz, and the Third Circuit found that inconsistencies in the trial testimony of Rogers and Barner about the February 19, 2002 incident did not establish that Rogers did not enter the store and speak with movant about selling cocaine to Barner. As such, movant cannot demonstrate that he was prejudiced by counsel’s actions.

(3) Jermaine Franklin

During movant’s trial, Franklin testified about his role in storing cocaine and cash in his apartment for movant in 2003, and that that he picked up drugs for mov-ant on occasion from an individual known as “Pop.” Franklin also testified that, although he could see bricks of cocaine inside the bags movant brought to his apartment, he was unsure about the number of bricks in the bag on each occasion. On cross-examination, counsel asked Franklin how many times he had picked up drugs from Pop. Franklin responded that he did not know, and that the DEA agents who interviewed him “told me to guess, so I threw a number in.” (D.I. 134 at 40-41) On further cross-examination, Franklin testified that the agents “told me to guess everything ... Everything I told them I didn’t know, so they told me, well, guess.” Id. Franklin also indicated on cross-examination that he “just threw numbers out” regarding the quantities of cocaine and money involved. Id.

Here, movant contends that trial counsel should have impeached Franklin’s credibility by using Franklin’s “guessing” testimony. Movant asserts that counsel failed to make the point “absolutely clear to the jury” that Franklin had in actuality testified falsely, and trial counsel’s failure to question Franklin further did not “destroy” Franklin’s credibility. The record belies movant’s contentions about trial counsel’s allegedly ineffective performance. On cross-examination, trial counsel directly challenged Franklin’s testimony and elicited Franklin’s statements about his “guesswork.” As such, trial counsel’s cross-examination did, in fact, undermine Franklin’s credibility, and was the type of cross-examination movant contends did not occur. In addition, although Franklin’s testimony about the drug quantities was inconclusive, nothing in the record provides support for movant’s contention that Franklin testified falsely about storing the cocaine and picking up deliveries of cocaine for movant.

Movant also asserts that counsel should have called as a witness Special Agent Mark McHugh, the investigator who supposedly told Franklin “to guess.” Considering that Franklin himself testified that he was told to guess as to the drug quantities, Special Agent McHugh’s testimony on this point would have been cumulative. As such, any alleged deficiency with respect to such testimony cannot satisfy the Strickland prejudice standard. See Clark v. Ricci, 285 Fed.Appx. 933, 936 (3d Cir.2008).

(b) Failed to object to testimony

Movant asserts that counsel provided ineffective assistance by failing to object to the admission of Rogers’ and Franklin’s testimony, as well as to the admission of testimony about movant’s confession. These contentions are unpersuasive, because counsel had no basis under the Federal Rules of Evidence for objecting to this testimony. See United States v. Nguyen, 379 Fed.Appx. 177, 181 (3d Cir.2010). For instance, movant contends that counsel should have moved to strike Rogers’ testimony regarding the February 19, 2002 incident in movant’s store on the ground that it was proven to be false by Agent Ramos-Diaz’s testimony and Agent Miller’s handwritten notes. However, considering that the Third Circuit rejected movant’s argument that the Ramos-Diaz/Miller evidence demonstrated that Rogers testified falsely, movant cannot establish a reasonable probability that an objection on this basis would have been successful. Moreover, because Rogers was a witness involved in the events of February 19, 2002, there was an adequate foundation for his testimony under Federal Rules of Evidence 601 and 602, and the testimony was relevant under Rules 401 and 402. Finally, any other evidence that cast doubt on Rogers’ credibility would have affected the weight of the evidence rather than its admissibility.

Movant also contends that counsel should have objected to Franklin’s testimony on the basis that Franklin did not have “any personal knowledge or observation” about the contents of the bags of cocaine because he answered all the questions about the bags of cocaine stored in his apartment with “I don’t know, I never looked in the bag.” Movant’s contention is unavailing. Pursuant to Federal Rule of Evidence Rule 602, a witness can only testify to issues about which he/she has personal knowledge. Here, although Franklin testified that he never personally opened the bags outside of movant’s presence, Franklin unequivocally testified that he saw bricks of cocaine in the bags when movant opened the bags in his apartment — he just did not know the actual number of bricks that were in the bags. Given this record, counsel had no factual basis for objecting to Franklin’s testimony as lacking personal knowledge.

Next, movant asserts that counsel should have objected to the admission of testimony about his confession offered by three investigating agents: DEA Special Agent Miller, DEA Task Force Officer Collins, and IRS-CI Special Agent Greene. Movant asserts that the testimony was inadmissible because there was no documentary evidence supporting the Agents’ testimony that movant confessed. This argument is to no effect. Contrary to movant’s assertion, the Federal Rules of Evidence do not require tangible evidence corroborating a confession in order for a witness to testify about that confession. Each of the three witnesses testified that he was present during movant’s multi-hour, Mirandized interview, and each witness described what he personally heard. The absence of other documentary corroboration goes to the weight of the evidence, and trial counsel vigorously cross-examined Agents Collins and Miller about mov-ant’s confession. (D.I. 385 at 139-140, 159-171) Moreover, because each witness had personal knowledge of the interview, the testimony was relevant and had an adequate foundation. See Fed.R.Evid. 401, 402, 601, 602. Thus, counsel did not provide ineffective assistance by failing to raise a meritless objection about the absence of documentary evidence of movant’s confession.

(c) Failed to investigate and call witnesses

Movant contends that counsel should have interviewed and subpoenaed fifteen individuals because their testimony would have been pertinent to his defense. The court summarily rejects movant’s contention that the following six individuals should have been subpoenaed and interviewed, because all six witnesses testified at trial and were subject to cross-examination: Special Agent Ramos-Diaz; Special Agent Miller; Task Force Officer Collins; Donald Jones (movant’s father); Ruby Spielman (movant’s grandmother); and Jermaine Franklin. As such, there was no error or prejudice with respect to counsel’s “failure” to interview or call these individuals.

As for movant’s assertions regarding counsels’ failure to investigate and subpoena the remaining nine individuals, courts generally presume that attorneys acted strategically in deciding not to call certain witnesses, and the defendant bears the burden of rebutting that presumption. See Thomas v. Varner, 428 F.3d 491, 499-500 (3d Cir.2005). An otherwise reasonable decision by counsel not to call certain witnesses is not ineffective simply because it differed from the defendant’s wishes. See, e.g., Diggs v. Owens, 833 F.2d 439, 445-46 (3d Cir.1987). With this principle in mind, the court will review movant’s assertions.

(1) Special Agent McHugh

Movant contends that counsel should have interviewed Special Agent McHugh to provide a “recap” of Agent McHugh’s interview of Franklin and describe what went on at Franklin’s residence on August 26, 2003. Notably, mov-ant does not identify what, if any, different or additional relevant information would have been provided by Agent McHugh had he been interviewed or had he testified. Considering that Franklin himself testified and was cross-examined about his interview with Agent McHugh, Agent McHugh’s testimony on this issue would have been cumulative. As such, movant cannot demonstrate that he was prejudiced by counsels’ failure to interview Agent McHugh.

(2) Ralph Perez

As established by trial testimony, Perez was standing outside movant’s store with movant on February 19, 2002, the day on which Barner arrived at moyant’s store to discuss selling drugs with movant. In the instant claim, movant asserts counsel was ineffective for not calling Perez to testify, because Perez would have testified that Rogers was not present in the store in that date. Movant also asserts that Perez would have verified that Barner and mov-ant never discussed the sale of 4.5 ounces of cocaine on February 19, 2002.

As an initial matter, movant does not provide an affidavit from Perez stating that he would have been available to testify and/or describing his potential testimony. Nor does movant provide any other support for his assertion that Perez would have been available to testify and would have testified in the manner he describes. As such, movant’s description of Perez’s potential testimony amounts to speculation. Given these circumstances, the court cannot conclude that counsel’s failure to interview or call Perez as a witness was objectively unreasonable.

Movant also cannot demonstrate that he was prejudiced by counsel’s decision not to interview Perez or call Perez as a witness. As previously discussed, the record shows that there were some disparities between the testimony provided by Rogers, Barner, and Agent Ramos-Diaz regarding Rogers’ presence in movant’s store while movant was arranging a drug deal with Barner. However, on direct appeal, the Third Circuit determined that these inconsistencies did “not establish that Rogers did not enter the store and speak with movant about selling cocaine to Barner on February 19, 2002.” See Huggins, 392 Fed.Appx. at 59 n. 6. Thus, even if Perez would have testified that movant was not in the store on the relevant date, that testimony would have been cumulative of the same inconsistency that the Third Circuit determined to be irrelevant.

For all of these reasons, movant’s speculative statement regarding the benefit of Perez’s testimony fails to overcome the strong presumption that trial counsel’s decision not to call Perez as a witness amounted to sound trial strategy.

(3) Ricardo Barnaby and Joseph Smithers

At trial, federal law enforcement officers testified that movant confessed in August .2003 to his involvement in the sale of illegal narcotics. During his confession, movant stated he had acquired up to ten kilograms of cocaine at any one time from Ricardo Barnaby (aka “Man Pop” or “Pop”) during the period from February to August 2003. Movant’s confession corroborated Jermaine Franklin’s testimony that movant would direct him to pick up cocaine from Barnaby. Franklin described how he would travel to Barnaby’s residence in Newark, Delaware, and Barnaby would give Franklin a bag containing the cocaine. Franklin would transport the bag to his apartment, and then contact movant to confirm the delivery. Wiretap and surveillance evidence admitted at trial confirmed this arrangement.

Here, movant contends that counsel should have called Barnaby as a witness because he would have testified that none of the above information regarding mov-ant’s acquisition of cocaine from him was true. Once again, however, because mov-ant does not provide an affidavit from Barnaby confirming that he would have testified in this manner, movant’s assertion constitutes mere speculation. Moreover, when viewed in context with the fact that Barnaby was an alleged supplier of multiple kilograms of cocaine, there was a strong likelihood that Barnaby’s testimony would have been more harmful than beneficial to movant’s case. In short, movant’s speculation about what Barnaby may or may not have testified to cannot overcome the strong presumption that counsel’s strategic decision not to call an alleged drug supplier to issue a blanket denial about movant’s involvement was reasonable and did not prejudice movant.

Movant also contends that counsel should have called Joseph Smithers as a witness at trial to rebut expert testimony that movant used code language to speak with his customers to negotiate the quantities of various drug deals. This code language was demonstrated at trial via the following conversation between Smithers and movant, and included such phrases as “plate/half a plate” and “four courses/eight courses” to refer to kilogram/half-kilogram quantities of cocaine.

Movant: Like before?

Smithers: Yeah, but don’t you remember, when I was fronted that whole plate, right?

Movant: Yeah.

Smithers: I’m only trying to eat half a plate, though, you know what I’m saying?

Movant: Oh, instead of eight courses you only want four courses?

Smithers: Huh?

Movant: You only want four courses instead of eight?

Smithers: Right, right, right, right ... Based on how much I ate, you what I’m saying, last time and it took me, you know what I’m saying?

(D.I. 385-2 at 1-2) According to movant, Smithers would have denied that “half a plate” referred to quantities of cocaine if he had been called to testify.

This contention fails to establish that counsel provided ineffective assistance. The court acknowledges that movant filed a notarized statement allegedly signed by Smithers (D.I. 207-1 at 9) as an exhibit to his Rule 33 motion for new trial (D.I. 207) wherein Smithers states that the “conversation played on the internet between [movant] and myself talking about — half a plate and a whole plate — half way up the block and all the way up the block — are in no way setting up or discussing cocaine deals or cocaine [].” (D.I. 207-1 at 9) However, Smithers’ “affidavit” is dated April 25, 2005 and does not indicate whether Smithers would have been willing or available to testify in this manner during movant’s trial in January 2005. In turn, neither Smithers’ “affidavit” nor movant’s § 2255 motion provides an alternate meaning for these allegedly innocent phrases. As such, the court concludes that movant’s speculative contention fails to satisfy either prong of the Strickland standard

(4) Jimmy Chan, Frank Acierno, Jr., and Linda Hancock

Movant’s money laundering convictions stemmed from two separate transactions involving movant’s concealment of drug proceeds through his acquisition of a 2001 GMC Denali from a business called 1800 Motorcars and, specifically, a salesman named Christoper Malatesta. On or about August 15, 2002, movant and Ma-latesta completed the sale of the Denali. (D.I. 383 at 24) Malatesta, who had already pled guilty to a money laundering charge by the time of movant’s trial, testified during movant’s trial and provided the following financial details about the transactions.

Movant approached Malatesta and told him that he “had some cash that he needed cleaned up.” Id. Consequently, movant purchased a Denali from 1800 Motorcars in the name of his grandmother, Ruby Spielman, and the paperwork for the deal fraudulently concealed the amount of cash that movant paid for the car. (D.I. 385 at 93-104) In order to complete the transaction, movant and Malatesta obtained an $18,000 car loan in Ms. Spielman’s name, but Ms. Speilmari was completely unaware of this transaction. A few weeks later, Ms. Spielman began complaining to the bank upon learning about the new loan. Malatesta told movant that he needed to pay off the loan, and movant provided $18,000 to Malatesta. During his testimony, Malatesta identified Jimmy Chan as another salesperson at 1800 Motor Cars, and Frank Acierno, Jr. as the owner of the business. Malatesta testified that he “put [the money] in [his] drawer and then gave it to Frank or Jimmy.” (D.I. 385 at 103) Documents from the bank demonstrate that the loan was paid off in full within nine days after it was initiated. (D.I. 385 at 104-06)

In the instant claim, movant, contends that trial counsel should have called Chan to testify because he would have contradicted Malatesta’s testimony about the money laundering transactions. Once again, however, movant fails to support this contention with an affidavit from Chan. Moreover, considering that Chan had already pled guilty in May 2004 to conspiracy' to commit money laundering, money laundering, and obstruction of justice, movant cannot overcome the strong presumption that trial counsel’s decision not to call Chan to testify was strategically reasonable. Significantly, Chan was .charged with, and pled guilty to, conspiring with Malatesta to do the same type of fraudulent automobile transactions that were at issue in movant’s case. In fact, one of the overt acts charged against Chan involved the sale of a Cadillac Escalade to movant. Additionally, the trial evidence included movant’s express admission in his confession that all of his large-dollar purchases, including his automobiles, were made using drug proceeds. (D.I. 383 at 25) Consequently, even if Chan had been called to testify, his potential testimony would have had little credibility.

Movant also asserts that Acierno should have been called as a witness because he would have contradicted Malatesta by verifying that movant still owed over $18,000 on the Denali purchase. However, as just explained, the testimonial evidence presented at trial belies this assertion, and documents from the bank demonstrate that the loan was paid off in full within nine days after it was initiated. (D.I. 385 at 104-06) Thus, counsel cannot be ineffective for failing to call Acierno to testify to a situation that just' was not true and was easily disproved by verified bank documents. In addition, even if Acierno had testified in the manner set forth by mov-ant, his testimony would not have changed that fact that the automobile transaction was accomplished using a false name and false paperwork in order to conceal the actual owner of the vehicle and the amount of cash provided.

Finally, movant contends that counsel should have called a woman named Linda Hancock to testify at trial. Ms. Hancock was the loan officer for movant’s purchase of his home. Supposedly, in 2001, Ms. Hancock informed movant that he could not get any new credit because of his bad debt-to-income ratio and that, therefore, he needed to reduce his credit. Movant contends that he put the Denali paperwork and loan in his grandmother Spielman’s name in order to achieve a better debt-to-credit ratio and help him obtain a house loan. According to movant, if counsel had called Ms. Hancock as a witness, she would have testified that she advised movant to reduce his credit. In essence, movant asserts that Ms. Hancock’s testimony would have demonstrated that he only put the Denali paperwork in his grandmother’s name in order to help him obtain a house loan, and that his fraudulent actions were not part of a money laundering scheme.

Movant’s contention is unavailing. Even if the court were to accept as correct mov-ant’s speculation regarding Ms. Hancock’s potential testimony, that testimony had no relevance to evidence that was introduced with respect to the financing transaction involving the Denali in 2002 and 2003. Movant’s grandmother, Ruby Spielman, clearly and explicitly testified at trial that, while she knowingly helped movant obtain financing for an Escalade he bought, she had absolutely no knowledge about an auto loan taken out in her name to finance the purchase of the Denali. (D.I. 135 at 112— 128) Notably, Ms. Spielman did not testify that she allowed the Denali loan to be obtained in her name because movant had bad credit. Given these circumstances, Ms. Hancock’s testimony about movant’s bad credit would have had little relevance to the testimony and evidence regarding the Denali purchase. Thus, movant’s contention about counsel’s failure to call Ms. Hancock as a witness does not satisfy either prong of the Strickland, standard.

(5) Movant’s probation officers

Movant also asserts that counsel was ineffective for failing to interview and/or call his two probation officers to testify at trial. Movant states that the officers would have testified that movant brought in income verifications during the years 1996-2003 which, in turn, would have undermined the government’s unexplained wealth theory.

First, any of movant’s out-court-statements to his probation officers verifying his income would not have been admissible for the truth of the matter if offered by movant himself. See Fed. R.Evid. 801. Second, having movant’s probation officers testify would have emphasized to the jury that movant was previously convicted of a crime warranting a seven year parole term. As a result, it is very likely that trial counsel strategically weighed the pros and cons of calling mov-ant’s probation officers as witnesses, and decided that the possibility of prejudice outweighed any benefit. Considering that the evidence at trial established that mov-ant did not file income tax returns during the years in question except the $5,465 reported in 2001, and that the government only presented a limited theory of unexplained wealth, the probative value of the probation officers’ testimony was doubtful. Accordingly, the court concludes that counsel’s failure to call movant’s probation officers did not amount to ineffective assistance.

(d) Failed to use Tape N-15 at trial

Tape N-15 was a recording taken from a wire worn by Barner on February 19, 2002. The government presented Tape N-15 to the defense during discovery, but neither party elected to use the tape during the trial. Here, movant asserts that trial counsel should have used Tape N-15 “to impeach and expose” the perjury committed by the government’s witnesses. This claim is unpersuasive. First, because the court has already rejected the factual premise of this argument — that Tape N-15 provides any clarity with respect to the events surrounding February 19, 2002— movant cannot establish that he was prejudiced by counsel’s failure to use a tape that had little, if any, evidentiary value. Moreover, as already discussed, counsel extensively impeached Barner and Rogers, and also questioned Barner about his criminal activity while working as an informant. Accordingly, the court will deny this argument as meritless.

(e) Failed to rebut the money laundering case

The government’s evidence on the money laundering counts of conviction concerned two separate transactions involving movant’s concealment of drug proceeds through his acquisition of a 2001 GMC Denali. To reiterate, movant originally acquired the Denali in August 2002 through the use of a fraudulent bill of sale that concealed the amount of cash paid for the car. The car was falsely titled in the name of movant’s grandmother, Ruby Spielman, and a bank loan for a portion of the price ($18,000) was also executed in Spielman’s name. Once purchased, movant arranged to have a second set of fictitious sale documents created on February 3, 2003, which enabled movant to have the Denali titled in the name of his father, Donald Jones.

According to movant, counsel was ineffective for failing to mount a defense to these transactions. Movant asserts that counsel should have provided evidence showing that the car was titled first in Ms. Spielman’s and then in Mr. Jones’ name because the cost of insurance was too high for movant, and also because he had bad credit and needed to avoid taking on new loans as he simultaneously attempted to purchase a home. The court rejects the specious contention. Trial counsel thoroughly cross-examined both Ms. Spielman and Mr. Jones in an attempt to establish both the bad credit and insurance theories. Although Mr. Jones’ testimony advanced this theory in a limited manner, Ms. Spiel-man explicitly testified that she was completely unaware that the Denali had been purchased in her name. Upon hearing this statement from Ms. Spielman, it would have been reasonable for counsel to have decided not to pursue the credit/insurance theory because it would not withstand Ms. Spielman’s own testimony. Viewed in this context, counsel made the strategically sound decision to aggressively impeach Christopher Malatesta, the person who provided testimony demonstrating mov-ant’s mens rea for the money laundering charges.

Moreover, given Ms. Spielman’s testimony that she did not know the Denali had been purchased in her name, movant cannot demonstrate that he was prejudiced by counsel’s failure to pursue this theory. Accordingly, the court will deny this allegation for failing to satisfy either prong of the Strickland standard.

(f) Failed to object to unexplained wealth theory

IRS Special Agent Raymond Greene testified at trial about the “unexplained wealth” analysis that he conducted on movant, which compared movant’s estimated expenditures from 2000-2003 with his reported income. Agent Greene testified that movant did not file federal income tax returns for the years 1999-2000 and 2002-2003, and that movant filed a tax return for the year 2001 claiming a total net income of only $5,465. Agent Greene explained that he used this figure for purposes of his analysis, but trial counsel objected before Agent Greene could testify about his conclusions from his analysis. Following a lengthy colloquy with counsel for both parties and voir dire of Agent Greene outside the jury’s presence, the court sustained the objection.

In the instant allegation, movant asserts that trial counsel should have objected to the government’s unexplained wealth theory based on his failure to file income tax returns. Movant contends that trial counsel should have explained that his failure to file income tax returns did not necessarily mean that movant did not have a legitimate source of income.

The court is not persuaded by this argument. Trial counsel objected to Agent Greene’s analysis before it was presented to the jury, and that objection was sustained. In turn, while cross-examining Agent Greene, trial counsel explored the possible innocent explanations for movant’s failure to file tax returns. Trial counsel also thoroughly cross-examined Agent Greene about the basis for his expenditure analysis. In short, movant’s argument cannot satisfy either prong of the Strickland standard, because trial counsel actually put forth the arguments/objections movant contends were never made.

(g) Failed to allow movant to testify in his own defense

Movant contends that counsel erred by not permitting him to testify in his own defense at trial. Movant asserts that he told trial counsel toward the close of the government’s case that he wanted to testify, but trial counsél refused that request. This assertion is belied by the record, which includes movant’s personal statement to the court at the close of the case that it was his desire not to testify:

COUNSEL: And lastly, Your Honor, let the record reflect that [co-counsel] had an extensive conversation, and I had a conversation with [movant] as well. And we informed him of his constitutional right to testify or to remain silent. We informed him that it’s his right and his decision alone and no one can make that decision for him.

And also, Your Honor, he’s aware that he can have an instruction given by the court, that the fact that he remains silent, the jury cannot take that as an inference, an adverse inference, as to his guilt.

After having that discussion and we’ve been having discussion with him for some time regarding whether or not he should testify and he knows my strategic position on that and he had a conversation my [co-counsel] as well, it his desire not to testify in this case.

Is that correct, sir?

MOVANT: Yes.

COURT: All right.

(D.I. 385-1 at 178-79) Given movant’s admission before the court that the decision not to testify was his, the court -will deny the instant allegation as meritless.

4. Trial counsel failed to file a timely motion for new trial

After the jury verdict, trial counsel filed a Rule 29(c) motion for judgment of acquittal, alleging that the evidence presented by the government was insufficient to support a finding of guilt on any of the counts of conviction. (D.I. 131) Thereafter, movant filed two pro se letter memo-randa in support of the Rule 29(c) motion. (D.I. 173; D.I. 173) The court denied the Rule 29(c) motion in July 2005. (D.I. 179) In its memorandum opinion denying the motion, the court noted that it had considered both the counseled and pro se pleadings in reaching this decision (D.I. 179 at 1 n.3), and further explained:

As noted, [movant] challenges the crux of the investigation, witnesses and prosecution as deceitful, corrupt and without merit. Although [movant] meticulously details every perceived injustice, his claims can essentially be reduced to attacks on the credibility of the witnesses who testified against him. The court’s role on review under Fed.R.Crim.P. 29, however, is to refrain from second guessing the credibility determinations made by the jury. [ ] A court’s finding of insufficiency should be limited to cases where the prosecution’s failure is clear,

(D.I. 179 at 15)(internal case citations omitted).

In August 2005, movant retained a new attorney to represent him (“trial counsel 2”). In November 2005, trial counsel 2 filed a Rule 38 motion seeking a new trial on all counts based on alleged newly discovered evidence, claiming that witness Melvin Barner had committed perjury when testifying in support of count II during movant’s trial. (D.I. 207) The newly discovered evidence included an affidavit purportedly authored by Barner admitting his perjury, as well as Tape N-15, which movant contended supported the allegation of perjury. The court denied the Rule 33 motion after finding that Barner had testified truthfully and that the alleged “affidavit” indicating otherwise was fraudulent, and also that Tape N-15 lacked clarity. (D.I. 259)

In the instant claim, movant contends that, after the verdict, he instructed trial counsel to file both a Rule 33 motion for new trial and a Rule 29 motion for judgment of acquittal, and that counsel agreed to do so. However, trial counsel only filed a Rule 29 motion for judgment of acquittal. Movant asserts that trial counsel’s failure to file a Rule 33 motion within seven days of the jury verdict constituted ineffective assistance, because filing such a motion would have “allowed the court to review the [government’s solely circumstantial] evidence under a different standard, and would have allowed the court to make-credibility determinations.” (D.I. 368 at 27) More specifically, movant contends:

In light of the record and evidence [mov-ant] has presented, and weighing the evidence most favorable to [movant], the court would have been justified in granting [movant] a new trial in the interest of justice. The court has never ruled on Rogers’ false testimony and the facts that show he was not inside the store before, during, or after Barner left.

Ramos’ testimony and Miller’s notes has Rogers meeting and talking to Barner when Barner got up to 6th street, after Barner left the store. [Tape] N-15 captured their conversation, and proves that [movant] did not have a drug conversation with Barner, and Rogers did.

Given the totality of this evidence most favorable to defendant, there is a reasonable probability that this court would have found that prosecution witnesses, including police officers, not to be credible when reviewing the trial record in response to a Rule 33 motion filed within 7 days.

Had counsel filed the Rule 33 motion within seven days it would have allowed the court to weigh Franklin’s testimony in light [of] the discovery that everything he told the police during his interview, he did not know, and he told them he did not know, and the agents, in turn, told Franklin to guess and throw numbers out at everything.

This, with the magnification that police officers told Franklin to guess and throw numbers out to falsely accuse [movant] in a felony drug conspiracy, obstructing justice, and suborning false testimony, surely would have given the court ample reason, and a reasonable probability to grant [movant] a new trial in the interest of justice.

(D.l. 389 at 41-42) The court liberally construes this allegation as asserting that trial couns