                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 10-2941
                                     _____________

                            UNITED STATES OF AMERICA

                                             v.

                                    MARK DOLBIN,
                                             Appellant
                                    ______________

             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
                                  ____________

                       Submitted Under Third Circuit LAR 34.1(a)
                                  December 8, 2011
                                    ____________

        Before: McKEE, Chief Judge, HARDIMAN and BARRY, Circuit Judges

                            (Opinion Filed: January 13, 2012)
                                     ____________

                                        OPINION
                                      ____________

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.
                                             4
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


                                              5
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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