The opinion of the court was delivered by: Paul L. Friedman United States District Judge
This case is before the Court on defendant Pedro Agramonte's motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. Agramonte's motion and memoranda allege three errors which he contends require that his conviction be vacated and the case be scheduled for a new trial. See Memorandum in Support of Petitioner's § 2255 Motion at 4-19. Specifically, Agramonte claims that (1) the Court erred by admitting evidence of other crimes, (2) the Court improperly instructed the jury to consider that evidence, and (3) Agramante received ineffective assistance from his trial counsel, Howard F. Bramson, and his counsel on appeal, David B. Smith. Id.
Upon consideration of the papers filed by Mr. Agramonte and by the government, the transcripts of the trial and the Court's clear recollection of the trial, and the transcripts of other hearings in the case, the Court concludes that defendant Agramonte's motion should be denied.
On June 1, 1999, Mr. Agramonte and several co-defendants were charged in an indictment alleging their participation in a narcotics distribution conspiracy in Washington, D.C. At trial, the government gave notice of its intention to introduce evidence of drug paraphernalia seized from Agramonte's apartment in Philadelphia as well as evidence of a secret compartment in a car linked to Agramonte that contained drugs, money, and handguns. The government contended that this evidence of other alleged crimes was permissible under Rule 404(b) of the Federal Rules of Evidence to demonstrate Agramonte's knowledge, intent, and modus operandi in dealing with drugs. After several hearings and over the vigorous objection of defendant's counsel, the Court ruled that the government could introduce the money and drugs found in the car and call the officers to testify about what they found in the Philadelphia apartment; evidence of the gun in the car was excluded. At the conclusion of the trial, the Court gave extensive limiting instructions to the jury, directing it to use the aforementioned evidence only to help decide whether Agramonte had knowledge of drug trafficking practices and/or the intent to distribute heroin and cocaine.
On May 3, 2000, Mr. Agramonte was found guilty of numerous drug charges, including conspiracy to distribute and possess with intent to distribute 50 grams or more of crack cocaine. On May 10, defendant's trial counsel, Howard Bramson, filed a motion for a new trial, alleging that the Court erred in admitting Rule 404(b) evidence against his client at trial. The Court denied that motion on July 12, 2000. On September 8, 2001, Mr. Agramonte was sentenced to 286 months in prison pursuant to the United States Sentencing Guidelines, followed by five years of supervised release. In determining the Sentencing Guideline range, the Court found by a preponderance of the evidence that Agramonte was accountable for 20 kiligrams of cocaine and five kilograms of heroin. Through counsel, Mr. Agramonte filed a notice of his appeal on September 14, 2000, and Mr. Bramson and counsel for co-defendant Jose Diplan filed a joint appellate brief on behalf of Agramonte and Diplan on February 12, 2001. Mr. Bramson's appellate brief argued, in part, that the Court had abused its discretion when it admitted evidence of alleged criminal activity occurring in Philadelphia.
On March 20, 2002, Mr. Bramson withdrew from serving as Agramonte's appellate counsel because of illness,*fn1 and attorney David Smith was appointed to replace him. With the approval of the UNITED STATES COURT OF APPEALS for the District of Columbia Circuit, Mr. Smith withdrew the brief prepared by Mr. Bramson and filed another brief on Agramonte's behalf. This new brief raised no challenges to Agramonte's conviction but rather attacked only the sentence imposed after conviction, alleging that the sentencing procedures violated Apprendi v. New Jersey, 530 U.S. 466 (2000). The appeals court agreed with counsel's Apprendi argument on two counts but not on the third; because the sentences imposed by this Court ran concurrently, however, the sentence imposed remained the same, and the court affirmed the sentence on December 28, 2001. See United States v. Agramonte, 276 F.3d 594 (D.C. Cir. 2001).
The Court has the authority to deny summarily a Section 2255 motion without holding an evidentiary hearing when "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255. A hearing must be held only when the Section 2255 motion raises "detailed and specific" factual allegations whose resolution requires consideration of information outside of the record or the judge's "personal knowledge or recollection." United States v. Pollard, 959 F.2d 1011, 1030-31 (D.C. Cir. 1992) (quoting Machibroda v. United States, 368 U.S. 487, 495 (1962)). The judge's own recollection of the events at issue may enable him summarily to deny a Section 2255 motion. See United States v. Pollard, 959 F.2d at 1031. The decision whether to grant a hearing is committed to the discretion of the trial court, particularly when, as here, the judge denying the motion also presided over the trial in which the defendant claims to have been prejudiced. See United States v. Morrison, 98 F.3d 619, 625 (D.C. Cir. 1996).
The Court concludes that the briefs of the parties and the entire record of this case conclusively show that the defendant is not entitled to relief and that an evidentiary hearing is not warranted. There are no material facts in dispute, and the defendant has failed to present a creditable basis on which either relief should be granted or a hearing need be held.
A. Admission of Rule 404(b) Evidence and Limiting Instructions
Petitioner's claim of error with respect to the admission of evidence under Rule 404(b) of the Federal Rules of Evidence must be denied outright, as it is not properly before the Court. The defendant did not challenge any aspect of his conviction -- including the Court's evidentiary decisions -- on direct appeal.*fn2 Thus, the procedural posture of the case precludes him from seeking collateral review on such non-constitutional grounds. "The writ of habeas corpus and its federal counterpart, 28 U.S.C. § 2255, 'will not be allowed to do service for an appeal.' For this reason, non-constitutional claims that could have been raised on appeal, but were not, may not be asserted in collateral proceedings." Stone v. Powell, 428 U.S. 465, 477 n.10 (1976) (citation omitted). Any substantive claims related to the admission of Rule 404(b) evidence and the related limiting instructions, therefore, are not properly before the Court and will not be addressed.*fn3
B. Ineffective Assistance of Counsel: Appellate Counsel
Defendant's claim that his appellate counsel provided ineffective assistance by not challenging defendant's conviction or raising the Rule 404(b) objection on direct appeal cannot be sustained.*fn4 The analysis by which courts determine whether appellate counsel provided ineffective assistance is the same as that for trial counsel. See Smith v. Robbins, 528 U.S. 259, 289 (2000). In order to prevail on an ineffective assistance of appellate counsel claim, a defendant must show two things. First, he must show that counsel's performance was deficient, falling below an objective standard of reasonableness. See Strickland v Washington, 466 U.S. 668, 687-88 (1984). Counsel must have "made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. In evaluating counsel's performance, the Court begins with a rebuttable presumption that counsel provided effective assistance because there is a wide range of sound strategy that a constitutionally effective attorney might choose. See id. at 689-90. It is up to the defendant to overcome this presumption and show that the challenged action was not the result of sound strategy. See id. So long as a strategy or tactic employed by counsel was ...