The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge
Document Nos. 85, 88, 89, 91
MEMORANDUM OPINION DENYING THE PETITIONER'S MOTIONS FOR POST-CONVICTION RELIEF
On April 30, 2000 a jury convicted petitioner Kenneth Hinton of bank fraud and related crimes. The court subsequently sentenced the petitioner to imprisonment for up to six years, a fine and restitution. This matter is now before the court on the now- pro se petitioner's motions for post-conviction relief filed pursuant to 28 U.S.C § 2255 and 18 U.S.C. § 3664(k). The United States opposes the petitioner's motions on the grounds that the D.C. Circuit has already addressed many of the petitioner's claims on appeal, and those which it did not address are unsupported by evidence and law. Pursuant to section 2255, the petitioner makes four evidentiary arguments and an ineffective assistance of counsel argument. The D.C. Circuit already denied three of the petitioner's evidentiary arguments, the fourth evidentiary argument suffers procedural default, and the petitioner fails to satisfy the burden required to prevail on his ineffective assistance of counsel argument. Consequently, the court denies the petitioner's motion for relief pursuant to section 2255. The court denies without prejudice the petitioner's motions pursuant to section 3664 for modifications to the restitution order because the petitioner fails to demonstrate the requisite change in circumstances.
Before his conviction, the petitioner worked as a legal assistant at the law firm Shaw, Pittman, Potts & Trowbridge LLP ("Shaw Pittman"). United States v. Hinton, 12 Fed. Appx. 11, 11 (D.C. Cir. 2001). While working at Shaw Pittman, the petitioner stole checks from several of the firm's attorneys and used the stolen checks to deposit funds into various bank accounts he had previously opened using stolen identities. Id. On April 30, 2000, a jury found the petitioner guilty of eight counts of bank fraud, interstate transportation of stolen checks, second-degree burglary, and first-degree theft. On July 5, 2000, this court sentenced him to concurrent terms of imprisonment for 37 months on Counts I through VI of the indictment and two to six years on Counts VII and VIII. J. at 2.
The D.C. Circuit affirmed the petitioner's conviction and sentence on May 25, 2001. Hinton, 12 Fed. Appx. at 11. Subsequently, the petitioner filed a motion ("first motion") to vacate his sentence pursuant to section 2255. On March 1, 2002, the petitioner filed another motion ("second motion"), asking the court to amend the restitution order pursuant to section 3664(k). On November 25, 2002, the petitioner filed yet another motion ("third motion"), again asking the court to amend the restitution order pursuant to section 3664(k). The court now turns to the appropriate legal standards and the substance of the motions.
A. The Court Denies the Petitioner's Habeas Motions
In his section 2255 motion, the petitioner asks the court to vacate his sentence on multiple grounds. See generally Pet.'s 1st Mot.; Pet.'s Reply. After setting forth the relevant legal standard, the court addresses the petitioner's three grounds for relief that the D.C. Circuit previously rejected. Next, the court addresses the petitioner's ineffective assistance of counsel claim. Finally, the court resolves an argument in the petitioner's reply that the petitioner failed to raise in his appeal.
1. Legal Standard for Habeas Review
When a court imposes a sentence in violation of the Constitution or laws of the United States, without jurisdiction, in excess of the maximum sentence authorized by law, or otherwise subject to collateral attack, a federal prisoner may move the sentencing court to vacate, set aside, or correct her sentence. 28 U.S.C. § 2255. Habeas review is an extraordinary remedy that petitioners may not use in place of an appeal. Bousley v. United States, 523 U.S. 614, 621 (1998). Once an issue has been decided on direct appeal, the petitioner may not raise the issue pursuant to section 2255 unless there has been an intervening change in the law. United States v. Green, 834 F.2d 1067, 1070 (D.C. Cir. 1987). Furthermore, when a claim suffers procedural default because the petitioner failed to raise it on appeal, the petitioner may only raise her claim pursuant to section 2255 if she can show cause and prejudice. Massaro v. United States, 123 S.Ct. 1690, 1693 (2003). To show cause and prejudice, the petitioner must (1) demonstrate good cause for her failure to raise the issue on appeal, and (2) show that the issue she is raising caused actual prejudice. Bousley, 523 U.S at 622; United States v. Kleinbart, 27 F.3d 586, 590 (D.C. Cir. 1994). The procedural default rule does not apply to claims of ineffective assistance of counsel. Massaro, 123 S.Ct. at 1693-94.
2. The Petitioner's Previously Raised Arguments
The petitioner seeks habeas relief based on three arguments, each of which the D.C. Circuit previously rejected: (1) that suggestive viewings of a photograph of the petitioner prior to the trial "irrevocably tainted" the in-court identification of him; (2) that the court admitted evidence of prior bad acts in violation of Federal Rule of Evidence 404(b); and (3) that the court used evidence not submitted to the jury in sentencing the petitioner, in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000). Pet.'s Mem. in Support of Pet.'s 1st Mot. ("Pet.'s Mem.") at 4-5. As noted, in May 2001, the D.C. Circuit reviewed and denied the petitioner's appeal, which included these three arguments. Hinton, 12 Fed. Appx. at 11-12. Therefore, the petitioner may raise these arguments only if the relevant law has changed since the May 2001 appellate decision. Green, 834 F.2d at 1070. The petitioner does not demonstrate any intervening changes in the law, and the court has uncovered no such changes in its own review of the law. Hinton, 12 Fed. Appx. at 11-12 (relying on Kotteakos v. United States, 328 U.S. 750, 776 (1946); Chapman v. California, 386 U.S. 18, 24 (1967); Neder v. United States, 527 U.S. 1, 18 (1999); ...