                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                     No. 10-3623


                          UNITED STATES OF AMERICA

                                          v.

                                 AHMED WALKER,
                                   a/k/a Amelios,
                                    a/k/a Ammo

                                   Ahmed Walker,
                                                   Appellant.


                   On Appeal from the United States District Court
                       for the Middle District of Pennsylvania
                               (No. 1-00-cr-00300-003)
                      District Judge: Honorable Sylvia Rambo


                       Submitted under Third Circuit LAR 34.1
                                  on July 15, 2011

               Before: RENDELL, SMITH and ROTH, Circuit Judges

                         (Opinion filed: September 29, 2011)


                                    OPINION


ROTH, Circuit Judge:

      Ahmed Walker appeals from the District Court’s partial denial of his 28 U.S.C. §


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2255 petition; he also appeals the new sentence imposed after the partial grant of his

petition. The District Court certified for appeal two ineffective assistance of counsel

claims and one sentencing issue. 1 However, Walker also claims on this appeal that his

new sentence is unreasonable. This issue was not covered by the certificate of

appealability. Nevertheless, we will permit the review of the newly imposed sentence

because otherwise Wilson would have no opportunity to have it reviewed. See United

States v. Hadden, 475 F.3d 652, 664 (4th Cir. 2007) (holding that, on appeal of a § 2255

order, to the extent that a claim is made that the newly imposed sentence is not in

conformity with the Constitution or Sentencing Guidelines, then the prisoner “is

appealing a new criminal sentence and therefore need not obtain a COA under §§ 3742(a)

and 1291.”); United States v. Futch, 518 F.3d 887, 894 (11th Cir. 2008). For the reasons

discussed below, we will affirm.

       On May 16, 2001, a grand jury issued a superseding indictment charging Walker

and two co-defendants with seven counts arising from their participation in a shootout at

the Lebanon Village Apartments with a rival drug gang from New York. 2 Walker


       1
         In light of the Supreme Court’s holding in Abbott v. United States, __ U.S. __,
131 S. Ct. 18 (2010), Walker withdrew his application for certificate of appealability on
the sentencing issue. (Appellant Br. at 16 n.10.) We therefore do not have jurisdiction to
consider this issue. See 18 U.S.C. § 2253(c)(3).
       2
         Walker was charged with six counts: (1) conspiracy to possess, use, carry,
brandish, and discharge firearms in furtherance of drug trafficking in violation of 18
U.S.C. § 924(c) and (o); (2) possessing, brandishing and discharging a firearm in
furtherance of drug trafficking on March 13, 2000, in violation of 18 U.S.C. § 924(c); (3)
possession of firearms in furtherance of drug trafficking on July 12, 2000, in violation of
18 U.S.C. § 924(c); (4) possessing, brandishing and discharging a firearm in furtherance
of drug trafficking between July 18, 2000, and July 21, 2000, in violation of 18 U.S.C. §
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pleaded not guilty and proceeded to trial.

       In the midst of trial, Walker’s co-defendants entered into guilty pleas with the

government. After the guilty pleas were entered with the trial court, Walker’s trial

counsel moved for a mistrial, arguing that no curative instruction would adequately

address why Walker remained in the courtroom and that the testimony of two witnesses

would not have been admitted had Walker been the only defendant. The trial court

denied the motion but gave the jury a curative instruction.

       During the trial, Dennis Rittle also twice stated in his testimony that Walker had

been shot, despite the District Court’s pre-trial ruling that any reference to an unrelated

shooting in which Walker had been injured was inadmissible. Rittle’s statements were

brief and addressed the injury Walker sustained during the July 21, 2000, shooting. The

government did not improperly elicit this testimony and, in response, sought to avoid

drawing further attention to the testimony by directing Rittle to other subjects. Walker’s

trial counsel moved for a mistrial on the grounds that Rittle’s two references to Walker’s

shooting injuries were inappropriate. The trial court denied Walker’s motion. Walker’s

counsel did not seek a curative instruction.

       The jury found Walker guilty on all counts. The District Court sentenced Walker

to 681 months’ imprisonment. On appeal, we vacated his sentence in part and remanded

for resentencing. See United States v. Walker, 136 Fed. Appx. 524, 526 (3d Cir. 2005).

924(c); (5) criminal conspiracy to distribute and possess with intent to distribute 50
grams or more of crack cocaine, cocaine hydrochloride and heroin, in violation of 21
U.S.C. §846; and (6) distribution and possession with intent to distribute 50 grams or
more of crack cocaine, cocaine hydrochloride, heroin, and marijuana, in violation of 21
U.S.C. § 841(a). (Dkt. 48.)

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On remand, the District Court reduced Walker’s sentence to 622 months. In a subsequent

appeal, we affirmed Walker’s second sentence. See United States v. Walker, 251 Fed.

Appx. 735 (3d Cir. 2006), cert. denied Walker v. United States, 557 U.S. 1137 (2007).

       Walker then filed a pro se habeas petition under 28 U.S.C. § 2255, alleging

fourteen claims of error including ineffective assistance by trial and appellate counsel.

The court held an evidentiary hearing on April 20, 2010, and permitted Walker to file a

supplemental post-hearing brief.

       During the evidentiary hearing, Walker’s trial counsel testified that he had moved

for a mistrial – rather than requesting a curative instruction – after the co-defendants

pleaded guilty and were excused from the trial because he “basically[] didn’t think the

curative instruction was adequate – [he] didn’t think the curative instruction would

suffice.” With respect to Rittle’s statements about Walker’s gunshot wound, although he

“[had] no independent recollection of what [he] was thinking at that time” because the

trial occurred eight years before, counsel stated that he did not seek a curative instruction

concerning those statements because he “didn’t want to cause it anymore – give anymore

importance to it or bring it up again.”

       The court granted in part and denied in part Walker’s habeas petition, vacated his

conviction as to Count 4, and resentenced him to 289 months imprisonment. 3 With

       3
         The District Court granted Walker’s motion as to his claim that the trial court
erred when it imposed two consecutive sentences for possession of a firearm in
furtherance of drug trafficking. Relying on United States v. Diaz, 592 F.3d 467, 475 (3d
Cir. 2010), the District Court held that because there was no way of knowing which
predicate offense was associated with which § 924(c) charge, it could not “simply assume
that the § 924(c) charges were tied to the separate predicate offenses.”

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respect to the curative instruction related to the co-defendants’ absence, the court noted

that “it certainly would have been preferable for the court to have explicitly stated that

the absence of other defendants should not be held against Walker, rather than simply

stating that the reasons for their absence was not a matter for the jury’s concern,” but

ultimately concluded that the district court’s instruction was not so “woefully inadequate”

as to call the proceedings into question. As for the shooting incident, the court found that

trial counsel’s decision not to request a curative instruction was “the sort of strategic

decision made by trial counsel that falls well within the wide range of reasonable

professional assistance.”

       We have appellate jurisdiction of this appeal pursuant to 28 U.S.C. §§ 1291 and

2255(d). We exercise plenary review over the District Court’s legal conclusions and

apply a clearly erroneous standard to the District Court’s factual findings in a habeas

proceeding. United States v. Cepero, 224 F.3d 245, 258 (3d Cir. 2000) (en banc).

       To succeed on his ineffective assistance of counsel claims, Walker must

demonstrate (1) that trial counsel’s performance was unconstitutionally deficient and that

(2) such performance prejudiced Walker’s defense. Boyd v. Waymart, 579 F.3d 330, 350

(3d Cir. 2009) (citing Strickland v. Washington, 466 U.S. 668, 686-87 (1984)). We agree

with the District Court’s determinations on both claims of ineffective assistance.

       As for his sentence, Walker first contends that it was unreasonable because it

should have been reduced by six months for time served on a related state offense. We

have determined, however, after our review of the record that the six months

imprisonment in question was served on an unrelated aggravated assault offense. Thus,

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the District Court did not err in failing to credit Walker for that period. As to the claim

that the sentence was unreasonable, our review also convinces us that, in imposing the

below-the-guidelines sentence, the District court listened carefully to Walker and his

counsel and considered their contentions and the applicable § 3553 factors. See United

States v. Cooper, 562 F.3d 558, 569 (3d Cir. 2009). We conclude that the greatly reduced

sentence was reasonable and the District Court did not abuse its discretion in imposing it.

       We will therefore affirm the judgment of the District Court.




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