United States v. Mark Dolbin

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 10-2941
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UNITED STATES OF AMERICA
v.
MARK DOLBIN,
Appellant
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
(D.C. Crim. No. 03-cr-00118-001)
District Judge: Honorable Yvette Kane
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Submitted Under Third Circuit LAR 34.1(a)
December 8, 2011
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Before: McKEE, Chief Judge, HARDIMAN and BARRY, Circuit Judges
(Opinion Filed: January 13, 2012)
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OPINION
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BARRY, Circuit Judge
Appellant Mark Dolbin is currently serving a 240 month sentence on drug
trafficking, firearms, and obstruction of justice charges. This is an appeal from the
District Court‟s order denying Dolbin‟s motion for relief, pursuant to 28 U.S.C. § 2255,
on the ground of ineffective assistance of counsel. Because we find that Dolbin has not
demonstrated that his trial counsel rendered ineffective assistance by allowing evidence
of prior charges to be presented to the jury, we will affirm.
I.
In May 2003, Dolbin gave a co-conspirator, Roger Frey, $55,000 and instructed
him to purchase five pounds of methamphetamine in California and transport the drugs
back to Pennsylvania. Frey purchased the methamphetamine as planned, but was arrested
by DEA agents during his return trip to Pennsylvania. Upon being apprehended, Frey
admitted that he was supposed to deliver the drugs to Dolbin, and agreed to cooperate
with the government by wearing a body wire and participating in a “controlled exchange”
with Dolbin. This controlled exchange took place under police surveillance on May 12,
2003, as Dolbin picked up Frey and the drugs at a bus station in Harrisburg, Pennsylvania.
When law enforcement officers attempted to arrest Dolbin, he fled, leading police on a
high speed car chase before abandoning his vehicle and escaping on foot. Dolbin was
arrested the next day and, after a series of superseding indictments, was charged with four
substantive counts: conspiracy to distribute and possession with intent to distribute
methamphetamine in violation of 21 U.S.C. § 846; distribution and possession with intent
to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2;
possession of a firearm by an armed career criminal in violation of 18 U.S.C. §§
922(g)(1) and 924(e); and obstruction of justice in violation of 18 U.S.C. §§ 1512(c)(1),
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(2) and 2.
On March 7, 2005, a jury trial commenced on all four counts. During the course of
what would be a four day trial, the government called sixteen witnesses, including Roger
Frey, several law enforcement officers, Dolbin‟s fiancée, Dolbin‟s brother, Dolbin‟s
friend, and Dolbin‟s cellmate in pretrial detention. Relevant to this appeal, DEA Special
Agent John Barrett (“Agent Barrett”) also testified, albeit briefly, about four of Dolbin‟s
prior felony convictions, simply confirming the date and specific offense of each
conviction. Neither Agent Barrett nor any other witness provided further details as to
these convictions. At the close of trial, Dolbin was found guilty on all four counts and
was sentenced to life in prison. We subsequently vacated that sentence and on remand,
the District Court re-sentenced Dolbin to 240 months of imprisonment.
On December 9, 2008, Dolbin filed a motion to vacate, set aside, or correct his
sentence pursuant to 28 U.S.C. § 2255 on the ground that he was provided ineffective
assistance by his trial counsel. Dolbin asserted that his trial counsel failed to move to
sever the felon in possession of firearms charge (“the § 922(g) charge”) from the other
charges, failed to stipulate to his prior convictions underlying the § 922(g) charge, and
failed to move for a jury instruction limiting evidence related to prior convictions to the
fact of those convictions alone. The District Court denied Dolbin‟s § 2255 motion and he
timely appealed. On January 20, 2011, we granted a certificate of appealability on the
question of whether Dolbin‟s counsel “rendered constitutionally ineffective assistance
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regarding the introduction of evidence of [Dolbin‟s] prior convictions for purposes of the
felon in possession charge.”
II.1
We exercise plenary review over a district court‟s denial of a § 2255 motion.
United States v. Jenkins, 333 F.3d 151, 153 (3d Cir. 2003). In evaluating a claim for
ineffective assistance of counsel, we apply the familiar two-prong test established by the
Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a
defendant must show: (1) “that counsel‟s performance was deficient”; and (2) “that the
deficient performance prejudiced the defense.” Id. at 687. For the reasons outlined
below, we need not address whether the performance of Dolbin‟s counsel was deficient,
as Dolbin cannot show a “reasonable probability” that counsel‟s alleged errors affected
the outcome of his trial. See Strickland, 466 U.S. at 697 (“[A] court need not determine
whether counsel‟s performance was deficient before examining the prejudice suffered . . .
. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, which we expect will often be so, that course should be followed.”); see also
United States v. Cross, 308 F.3d 308, 315 (3d Cir. 2002) (“[I]t is preferable to avoid
passing judgment on counsel‟s performance when possible.”).
To establish prejudice under Strickland, a defendant must demonstrate “„a
reasonable probability that, but for counsel‟s unprofessional errors, the result of the
1
The District Court had subject matter jurisdiction over the underlying criminal
prosecution pursuant to 18 U.S.C. § 3231 and over the motion to vacate pursuant to 28
U.S.C. § 2255. We have appellate jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253.
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proceeding would have been different.‟” Outten v. Kearney, 464 F.3d 401, 414 (3d Cir.
2006) (quoting Strickland, 466 U.S. at 694). A reasonable probability in this context is “a
probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at
694. In rejecting Dolbin‟s prejudice argument, the District Court observed that “[t]he
evidence that supports Dolbin‟s guilty verdict is, simply put, immense.” We agree. The
District Court has ably and exhaustively catalogued the enormous amount of compelling
evidence adduced against Dolbin at trial, and we need not reprise that discussion here.
Suffice it to say, the uncontradicted testimony of several DEA agents and law
enforcement officers—which was corroborated and enhanced by testimony from Dolbin‟s
own friends, relatives, and co-conspirators—in combination with the audio recording of
the controlled exchange and the trove of incriminating physical evidence recovered from
Dolbin‟s home and storage unit, constitutes ample evidence of Dolbin‟s guilt.
In the face of this overwhelming evidence, Dolbin argues that because his trial
counsel did not move to sever the § 922(g) charge or stipulate to his prior convictions, the
government was permitted to introduce evidence of his prior convictions, thereby
“taint[ing] the jury‟s view” and “significantly prejudic[ing]” him. Dolbin provides no
explanation as to how it is reasonably probable that he would have been acquitted of the
charged offenses had Agent Barrett not testified to the fact of his prior convictions.
Instead, he simply concludes his brief with the bald assertion that absent trial counsel‟s
allegedly deficient performance, “the outcome of the case likely would have been
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different.” Given the government‟s evidence, however, there simply is no reasonable
probability that, had the jury not heard evidence of Dolbin‟s prior convictions, it would
have acquitted him. This is especially true, as the District Court observed, in light of “the
way the different, unrelated witnesses‟ accounts corroborated each other, fit together, and
were enhanced by the direct evidence produced through the police investigation.”
Accordingly, Dolbin‟s ineffective assistance claim fails.
III.
Because Dolbin cannot demonstrate ineffective assistance of counsel, we will
affirm the District Court‟s order denying his motion under § 2255.
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