The opinion of the court was delivered by: PAUL FRIEDMAN, District Judge
This matter is before the Court on defendant Charles W.
Ramsey's motion for relief under 28 U.S.C. § 2255. Pursuant to
that section, the Court shall vacate a conviction and grant
appropriate relief where, inter alia, "there has been such a
denial or infringement of the constitutional rights of the
prisoner so as to render the judgment vulnerable to collateral
attack." Mr. Ramsey claims that the deficient performance of his
trial attorney denied him the "assistance of counsel" guaranteed
him by the Sixth Amendment.
The Court has considered the briefs filed by two successive and
very experienced criminal defense lawyers whom the Court
appointed to assist the defendant in this matter: Francis S.
Carter, Esquire, and Steven C. Tabackman, Esquire. The Court
appreciates their service to Mr. Ramsey and to the Court. The
Court also has considered the briefs and memoranda filed by the
government, as well as the transcripts of the trial and
sentencing and other relevant portions of the record. The Court
held an evidentiary hearing on defendant's Section 2255 motion on
April 2 and 5, 2004. The witnesses at the hearing were Mr. Ramsey
and his retained trial counsel, Allan M. Palmer, Esquire, whose competence and effectiveness Mr. Ramsey challenges on this
motion. For the reasons that follow, the Court grants defendant's
motion for relief under 28 U.S.C. § 2255.
The defendant, Charles W. Ramsey, was charged in a two-count
indictment with one count of possession with intent to distribute
500 grams or more of cocaine on November 21, 1995, in violation
of 21 U.S.C. § 841(a)(1) and 841(b)(1)(B)(ii), and one count of
attempted possession with intent to distribute 500 grams or more
of cocaine on the same date, in violation of 21 U.S.C. § 846. A
jury trial began before this Court on May 14, 1996, and concluded
on May 21, 1996, when the jury found the defendant guilty on the
first count, possession with intent to distribute 500 grams or
more of cocaine. As instructed, the jury accordingly did not
consider the second count, attempted possession.
Before sentencing, the defendant filed a pro se motion for
a new trial, arguing ineffective assistance of counsel. The Court
appointed Mr. Carter to represent Mr. Ramsey on that motion and
on appeal. In a Memorandum Opinion and Order dated June 27, 1997,
the Court denied the motion for new trial because it had not been
timely filed under Rule 33 of the Federal Rules of Criminal
Procedure. After a subsequent hearing, the Court issued an
Opinion and Order, dated December 15, 1997, rejecting all of Mr.
Ramsey's sentencing-related arguments. The Court concluded that,
under the relevant provisions of the United States Sentencing
Guidelines and based upon the facts presented at trial, a total
of 44 kilograms of cocaine was attributable to Mr. Ramsey for
Guideline sentencing purposes. The Court denied the government's
motion to depart upward under Section 4A1.3 of the Guidelines and, in view of Mr. Ramsey's criminal history,
concluded that Mr. Ramsey should be sentenced within the
Guideline range for a defendant with an Offense Level of 34 and
Criminal History Category IV, 210 to 262 months. On December 19,
1997, the Court sentenced the defendant to 210 months'
incarceration, followed by eight years of supervised release. The
defendant appealed, and the court of appeals affirmed Mr.
Ramsey's conviction and sentence on February 9, 1999. See
United States v. Ramsey, 165 F.3d 980 (D.C. Cir.), cert.
denied, 528 U.S. 894 (1999).
On August 16, 2000, the defendant filed a pro se motion for
appointment of counsel and a motion to vacate, set aside, or
correct his sentence under 28 U.S.C. § 2255. He filed an
amendment to that motion one month later. On September 22, 2000,
the Court granted the defendant's motion for appointment of
counsel and again appointed Mr. Carter to represent him. Various
other papers subsequently were filed, some pro se and some by
counsel, until, on August 16, 2002, the defendant filed a pro
se motion seeking the replacement of his appointed counsel on
the ground that counsel had a potential conflict of interest. On
September 13, 2002, upon consideration of that motion and defense
counsel's motion to withdraw, the Court granted the motion to
withdraw. On October 20, 2002, the Court appointed defendant's
present counsel, Steven Tabackman, to represent Mr. Ramsey. On
September 6, 2003, the defendant, through his new counsel, filed
a reply to the government's opposition to his motion for relief
under Section 2255. The government filed a response on February
13, 2004, and the defendant filed a surreply on March 17, 2004.
As noted, the hearing on the motion was held on April 2 and 5,
2004. II. THE TRIAL
In her opening statement at trial, the prosecutor told the jury
that her primary witness would be Francisco Fierro, a Miami drug
dealer who had delivered drugs to the defendant in the District
of Columbia on approximately eight occasions from 1992 to 1994.
See Transcript of Ramsey Trial ("Tr.") at 138-39. The
prosecutor explained that the relationship ended in 1995 when
Fierro was arrested for attempted murder. See id. at 141. The
prosecutor said that Mr. Fierro subsequently agreed with the
United States Drug Enforcement Administration ("DEA") to try to
sell drugs to Mr. Ramsey in an effort to help Fierro's
brother-in-law, who was then serving a jail sentence, and to get
a deal for himself on the attempted murder charge. See id. at
141-42. According to the prosecutor, Mr. Fierro, at DEA's urging,
attempted to arrange a five-kilogram drug transaction with Mr.
Ramsey. In furtherance of the plan to catch Mr. Ramsey in a drug
deal, between September 1995 and November 21, 1995, Mr. Fierro
held numerous telephone conversations with Mr. Ramsey, all of
which were recorded on audiotape. There also were a number of
face-to-face meetings that were videotaped. See id. at 142.
Finally, the prosecutor indicated that Mr. Fierro would describe
for the jury, and that the videotapes would show the transaction
on November 21, 1995, which was the subject of the indictment.
See id. at 143-44.
In his opening statement, Allan Palmer, defendant's lawyer,
stated that Mr. Fierro's cooperation with the DEA was an attempt
to obtain lenient treatment at a time when he was locked up
without bond in a Miami jail charged with attempted murder and
the use of a handgun during the commission of a felony. See Tr.
at 146-47. Mr. Palmer stated that Mr. Fierro first unsuccessfully
tried to induce some of his drug-dealer friends in Miami to buy
or sell drugs, setting them up to be caught by the DEA. See id.
at 147. According to Mr. Palmer, Mr. Fierro, unable to make a
case against anyone in Miami, devised a scheme to "set up" Mr.
Ramsey. As part of the scheme, Fierro urged Mr. Ramsey to pose as
a big-time drug dealer when introduced to Fierro's out-of-town
drug connection, even though Fierro knew Ramsey had stopped
selling drugs years earlier. See id. at 149-51. It was for
this reason, according to Mr. Palmer, that Mr. Ramsey did in fact
appear to be a drug dealer talking about drugs on some of the
audiotapes and videotapes. See id. at 150. In sum, Mr. Palmer
told the jury in his opening statement: "[Y]ou will determine
whether or not Charles Ramsey was set up, entrapped into
receiving these drugs from Francisco and whether or not he
intended to distribute or sell them in the street." Id. at 152.
Francisco Fierro was the government's primary witness at trial.
He testified that he had delivered drugs to the defendant eight
times between 1993 and 1994, selling him a total of 39 kilograms
of cocaine during that period. See Tr. at 259-74. While the
first delivery was for a small amount, the subsequent deliveries
were, in each instance, of amounts between one and ten kilograms
of cocaine at a price of approximately $20,000 per kilogram.
See id. at 265, 270. Mr. Fierro generally would meet with Mr.
Ramsey in a hotel room, where Fierro would give him one or two
kilograms of cocaine; Ramsey then would leave, sell the drugs
over a period of hours or days, and return later with payment.
See id. at 265-67, 270-71. This procedure is known as
"fronting" the drugs. Once Mr. Fierro had received his money, he
would "front" the defendant another one or two kilograms of
cocaine. See id. Fierro testified that in 1994 he left the
drug trade but returned in September of 1995 to assist the DEA in
a "reverse" undercover operation against Mr. Ramsey. See id. at 274-81.
Fierro and Agent Robert Valentine both testified about several
face-to-face meetings and numerous telephone conversations Fierro
had had with the defendant from late-September 1995 until the
date of defendant's arrest on November 21, 1995. Most of the
conversations were recorded. See Tr. at 281-82, 287-88. On one
occasion, on September 25, 1995, the defendant and Mr. Fierro met
in a hotel room and discussed a five-kilogram cocaine deal.
Fierro told Mr. Ramsey that a drug distributor named "Tony" (in
reality DEA undercover Agent Robert Valentine) required payment
in advance. See Tr. at 311-12, 317-19, 323-24 (Fierro
testimony). Ramsey responded that he had no money to pay for
drugs. See Tr. at 403-04. This meeting was videotaped. See
id. at 311-12. On October 6, 1995, the defendant met with
"Tony" (Agent Valentine) at a restaurant, they discussed a
five-kilogram deal, and the defendant asked that the drugs be
"fronted." See Tr. at 453-58 (Valentine testimony). On October
24, 1995, Mr. Ramsey met Agent Valentine and Mr. Fierro at a
hotel in Washington, D.C. In an audiotaped conversation, the
defendant asked to see the cocaine and Valentine showed him five
kilograms, but ultimately Ramsey refused to pay for it except
under the fronting arrangement. See id. at 458-63. On
November 2, 1995, Agent Valentine and Mr. Ramsey met in
Valentine's car and Valentine again showed him five kilograms of
cocaine. This meeting also was videotaped. See id. at 463-69.
Because of statements Mr. Ramsey had made at a number of these
meetings, the DEA concluded that Ramsey preferred to deal solely
with Mr. Fierro and that he would not deal unless the drugs were
fronted. See Tr. at 516-19. As a result, the testimony showed,
the DEA pulled Agent Valentine out of the operation and
instructed Mr. Fierro to arrange to sell drugs to Mr. Ramsey under his old procedure.
Fierro contacted Ramsey on November 15, 1995, and offered to
front him five kilograms of cocaine. Ramsey and Fierro agreed to
meet on November 21, 1995, and did in fact meet on that day in a
hotel room in Washington, D.C.; this meeting was videotaped.
See Tr. at 336-40; 377-78. Fierro showed the defendant five
one-kilogram bricks of cocaine, and they agreed on a price of
$20,000 for each brick. The defendant agreed to take two
kilograms at that time and to return later for the other three.
See id. at 377-78. The defendant placed two bricks of cocaine
inside a duffle bag and left the hotel room. He was arrested by
DEA agents in the corridor.
At trial, the credibility of Mr. Fierro and certain of the DEA
agents was the focus of the defense. Notably, Mr. Fierro
testified on cross-examination that he had worked with the
narcotics squad of the State Police in Florida, introducing
targets of crack cocaine investigations to undercover police
officers. See Tr. at 416-17, 422-25. He testified, however,
that he had never told anyone at the DEA, except possibly for
Agent Curtis, that he was working for the state police. See
id. at 425-26. Agent Valentine testified that he knew nothing
about Fierro's cooperation with the Florida State Police. See
id. at 498. Mr. Fierro testified that he had agreed to
participate in the DEA sting against Mr. Ramsey as part of a deal
arranged with the Florida State Attorney's Office, according to
which Mr. Fierro would receive probation on his then-pending
charge of attempted murder. See Tr. at 276-77. The DEA agents
testified, however, that they had not sought lenient treatment
for Mr. Fierro from the Florida State Attorney and that
participation in the sting had not been discussed with the State
Attorney's Office. See id. at 187-190, 192-93, 214. Mr. James
Cobb, an Assistant State Attorney in Florida, contradicted this
testimony. Mr. Cobb testified that he had received indeed a call from DEA Agent Curtis and had been
asked by the DEA to give Mr. Fierro a lenient plea deal so that
Fierro could be released to travel outside the state to assist
"on a really big case." Tr. at 360-62.*fn1
On the day the prosecutor announced her intention to call Mr.
Cobb as a witness, she gave to Mr. Palmer the file Mr. Cobb had
maintained in the Fierro case. Mr. Palmer immediately expressed
dismay at the prospect of having Mr. Cobb testify without the
defense first being provided an adequate opportunity to review
the file, stating that "it would take me about three hours to
read this file." Tr. at 350. The Court then announced that it
would provide the defense an adequate period of time within which
to do so, at least until after lunch. See id. at 350-51. Mr.
Palmer declined to take advantage of the offer and instead agreed
that Mr. Cobb's testimony should be taken immediately, "because I
guess in the long run it's really not too relevant to our case."
Id. at 351. The Court then explained the potential relevance of
the testimony, noting specifically that if Mr. Cobb testified
"inconsistent[ly] with what any of the DEA agents said, then it
goes to their credibility." Id. Further, "I think it goes to
both Fierro's credibility, motivation and incentive to push Mr.
Ramsey to do something he might not want to have done." Id. at
352. Mr. Palmer was unmoved, suggesting that "we should start
cranking it up now and move the case." Id. at 352. On Thursday, May 16, 1996, while Agent Valentine was
testifying, the prosecutor asked him to read a statement that Mr.
Ramsey had made to Valentine and Agent McGrath the evening of
Ramsey's arrest. See Tr. at 470-71. In the statement, Mr.
Ramsey admitted to having had several meetings with "Tony" and
Fierro for ...