The opinion of the court was delivered by: CHARLES R. RICHEY
Before the Court is the defendant's Motion to Vacate Sentence pursuant to 28 U.S.C. § 2255. The defendant bases her claim for relief on ineffective assistance of counsel at trial. The Court has carefully considered the submissions of the parties, the arguments of counsel, the applicable law, and the entire record herein, and concludes that the defendant's motion must be denied.
The defendant was charged in a two-count indictment with distribution of cocaine base and possession with intent to distribute five grams or more of cocaine base. A jury trial was held before this Court on October 1-2, 1990. The defendant was convicted of both counts and was sentenced on January 3, 1991.
The evidence at trial showed that on March 16, 1990, Officer Mary Lanauze of the Metropolitan Police Department was working undercover in the vicinity of 5610 First Street in Northwest Washington, DC. She purchased drugs from a woman she identified as the defendant inside the house at 5610 First Street. She then left the house and called an arrest team. Transcript of trial, volume one at 90-95 ("Tr. 1; 90-95"). According to Officer Anthony Washington, a member of the arrest team, the team went to defendant's house where Officer Washington saw the defendant run into the house and slam the front door. Tr. 1; 115. The evidence recovered from the house included drugs, a razor blade, plastic bags and shotgun shells from the basement. Tr. 1; 117-18. In the upstairs right back bedroom, eighteen plastic ziploc bags containing white rock narcotics were seized, as well as personal mail and one seven gram white rock of narcotics was recovered. Tr. 1; 118. Seven hundred dollars in cash were taken from the defendant's person. Tr. 1; 119. The defendant was positively identified by Officer Lanauze as the person who had sold her drugs. Tr. 1; 97-98.
At the outset of trial, before jury selection, defense trial counsel announced that he had subpoenaed the defendant's son, John Skinner, III, to testify. Trial counsel for the defendant indicated that he thought the son might have a Fifth Amendment privilege and asked the Court to appoint counsel for him. Tr. 1; 3. The Court did so, and the appointed counsel moved to quash the subpoena on Fifth Amendment grounds. Tr. 1; 61. The Court conducted a hearing outside the presence of the jury regarding the assertion of the privilege. Tr. 1; 165-71. The son invoked his privilege in response to questions regarding which room in the house was his bedroom. The Court found the assertion of Fifth Amendment privilege proper and quashed the subpoena. Tr. 1; 171.
Defense counsel then moved for permission for his investigator to testify that the defendant's son had told the investigator that the upstairs right bedroom was his bedroom, the drugs seized in the upstairs right bedroom belonged to him, and his mother knew nothing about those drugs. Tr. 1; 172. Defense counsel asserted that these statements were admissible as statements against penal interest excepted from the hearsay rule. Tr. 1; 173; see Fed R. Evid. 804(b)(3). The Court reserved ruling on the issue, and recessed for the day. Tr. 1; 181.
The next day, when the defense put on its case, defense trial counsel elected not to call the investigator. Tr. 2; 34-35. The Court confirmed with defense counsel that the decision not to call the investigator was voluntary and not based on any instruction or ruling from the Court. Tr. 2; 43.
The defendant testified on her own behalf. She stated that the drugs were found in her son's bedroom and that she knew nothing about them. Tr. 2; 46. She denied selling drugs to Officer Lanauze. Tr. 2; 249-51. The defendant stated that she had the $700 cash on hand in order to pay a home contractor. Tr. 2; 49. She explained that the reason that she ran into the house when the police came was because she thought there was going to be some shooting between the police and some young men. Tr 2; 47.
The jury convicted the defendant on both counts on October 2, 1990.
To determine if counsel's performance was constitutionally deficient, the inquiry is whether counsel's assistance was reasonable considering all the circumstances. Conduct should be evaluated from counsel's perspective at the time and on the facts of the particular case. Id. at 689. A court must indulge a "strong presumption" that the conduct falls "within the wide range of reasonable professional assistance." Id. at 689. Strategic decisions "made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." Id. at 690-91. However, strategic choices after incomplete investigation are only reasonable to the extent reasonable professional judgment supports the limits on the investigation. Id.
To determine whether counsel's actions prejudiced the defense, the inquiry is whether there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A "reasonable probability" is a ...