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August 30, 2005.

RALPH WILSON, Defendant.

The opinion of the court was delivered by: COLLEEN KOTELLY, District Judge


This matter relates to the conviction and sentencing of Petitioner Ralph Wilson for charges related to the death of Leroy Copeland, a government witness in the trial of James Wilson, Petitioner's brother. Currently before the Court is Petitioner's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255. Petitioner claims that he is entitled to relief because (1) he received ineffective assistance of counsel in violation of the Sixth Amendment, (2) the Government did not disclose exculpatory information in a timely fashion before trial in violation of the Fifth Amendment right to Due Process and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and (3) his confrontation rights under the Sixth Amendment were violated. Additionally, Petitioner adopts the arguments and authorities set forth in the separate Section 2255 motion of his co-defendant and brother, Louis A. Wilson.*fn1 Petitioner requests an evidentiary hearing to resolve the issues raised in his motion. The Government opposes Petitioner's motion. After a careful review of the parties' multiple briefs and the relevant case law, the Court finds that an evidentiary hearing is unnecessary to the resolution of Petitioner's motion.*fn2 For the reasons set forth below in this Memorandum Opinion, the Court shall deny Petitioner's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255.


  This Section 2255 motion arises out of the murder of a Government witness scheduled to testify in the trial of James "Toe" Wilson, who was charged with robbing a United States Post Office. The Government's case against James Wilson was based primarily on information obtained by a witness, decedent Leroy Copeland, who had taped a conversation with James Wilson at the Lorton Reformatory ("the Lorton conversation") on July 28, 1995. Tr. 2A:8; 4:13, 125.*fn3 The Government turned over copies of the tape and transcript of the Lorton conversation, which revealed Copeland's identity, to James Wilson's attorney, Mr. Steven Jacoby, on the condition that the attorney not share copies of the tape and transcript with anyone without the Government's prior permission. Tr. 3:20-26, 105-07; GX:34. Shortly before the March 26, 1996, trial date, on March 20, James Wilson's attorney met with James's wife and brother Ralph to discuss the evidence against James. Tr. 3:108-09; 7:100-01. During the meeting, James's attorney alerted the family members to Copeland's role in the case against James by playing portions of the Lorton conversation between Copeland and James Wilson. Tr. 3:109-124; 7:101. On the evening of March 25, 1996, Leroy Copeland was shot and killed at 5th and O Streets, N.W., in Washington D.C. Tr. 4:17-18, 22-23, 56; 6:100-01, 125-126.

  On September 19, 1996, Defendants Louis "Spuds" Wilson and Ralph Wilson, brothers of James Wilson, along with another co-defendant, Marcellus Judd, were charged with (1) conspiracy to kill a federal witness in violation of 18 U.S.C. § 371, (2) killing a federal witness in violation of 18 U.S.C. § 1512(a)(1)(A), (3) retaliation against a federal witness in violation of 18 U.S.C. § 1513(a)(1)(B) and (2), and (4) first degree murder while armed in violation of D.C. Code §§ 2401 and 3202. Defendant Louis Wilson was additionally charged with two counts of using a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c), and possession of a firearm during a crime of violence in violation of D.C. Code § 22-3204(b). Following a trial in front of the Honorable Norma Holloway Johnson, Defendants Louis and Ralph Wilson were found guilty on all counts by a jury on March 21, 1997. On June 5, 1997, Defendant Ralph Wilson's Motion to Set Aside the Verdict was denied, and he was sentenced to life imprisonment in June 1997; Louis Wilson was sentenced to life imprisonment plus two consecutive five year terms of imprisonment in September 1997. On June 10, 1997, Defendant Ralph Wilson noted his appeal.

  On November 20, 1998, the United States Court of Appeals for the District of Columbia affirmed all convictions of the Wilsons except for one; the Court vacated one of Louis Wilson's convictions for using a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c). See United States v. Wilson, 160 F.3d 732 (D.C. Cir. 1998).*fn4 On October 4, 1999, the Supreme Court of the United States denied the Wilsons's petition for writ of certiorari. Wilson v. United States, 528 U.S. 828, 120 S.Ct. 81, 145 L.Ed.2d 69 (1999). Petitioner Ralph Wilson timely filed the instant motion on August 28, 2000, and then filed a Motion for Leave to Supplement 28 U.S.C. § 2255 Motion and the instant Supplemental Motion and Memorandum to 28 U.S.C. § 2255 Motion on December 18, 2003. Briefing was completed on the relevant filings on September 13, 2004.


  Under Section 2255 of Title 28 of the United States Code, a prisoner in custody sentenced in a federal court may move the sentencing court to vacate, set aside, or correct the sentence if the prisoner believes his sentence was imposed "in violation of the Constitution or laws of the United States . . . or that the sentence was in excess of the maximum authorized by law. . . ." 28 U.S.C. § 2255 (2005). However, a district court judge need not conduct an evidentiary hearing before denying a Section 2255 motion when "the motion and files and records of the case conclusively show that the prisoner is entitled to no relief." Id.; United States v. Morrison, 98 F.3d 619, 625 (D.C. Cir. 1996). As the rules governing Section 2255 proceedings provide, "[i]f it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief in the district court, the judge shall make an order for its summary dismissal. . . ." Rules Governing § 2255 Proceedings, Rule 4, 28 U.S.C. foll. § 2255 (2005). Accordingly, a Section 2255 petitioner is not automatically entitled to an evidentiary hearing, and should not receive one if his allegations are "vague, conclusory, or palpably incredible" rather than "detailed and specific." Machibroda v. United States, 368 U.S. 487, 495, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962); see also United States v. Pollard, 959 F.2d 1011, 1031 (D.C. Cir. 1992), cert. denied, 506 U.S. 915, 113 S.Ct. 322, 121 L.Ed.2d 242 (1992) ("Only where the § 2255 motion raises `detailed and specific' factual allegations whose resolution requires information outside of the record or the judge's `personal knowledge or recollection' must a hearing be held.") (quoting Machibroda, 368 U.S. at 495); United States v. McGill, 11 F.3d 223, 225 (1st Cir. 1993) ("[E]videntiary hearings are the exception, not the rule."). This is so even if the files and records of the case do not clearly rebut the allegations of the claim. Id. The party seeking an evidentiary hearing in a Section 2255 proceeding therefore carries a fairly high burden of demonstrating a need for such a hearing, and the decision whether to grant one is "committed to the district court's discretion." Pollard, 959 F.2d at 1031.*fn5


  In his Section 2255 motion presently before the Court, Petitioner alleges violations of his Sixth Amendment rights to effective assistance of counsel and confrontation of witnesses against him. See Pet'r Mot. at 2-4; see also Pet'r Notice of New Case Authority at 1. Petitioner also alleges that he has been denied his right to Due Process guaranteed under the Fifth Amendment because the government tardily disclosed potentially exculpatory information in violation of Brady v. Maryland. See id. at 2. Finally, in his Supplemental Motion, Petitioner claims that the district court improperly instructed the jury on the elements of the offense and the law in its instructions for Count Two of the indictment, killing a government witness in violation of 18 U.S.C. § 1512(a)(1)(A). See Pet'r Supp. at 2. The Court shall treat the substantive aspects of each claim in sequence, as well as any procedural aspects that exist with respect thereto.

  A. Ineffective Assistance of Counsel Claims

  Petitioner's first theory is that his conviction and sentence for charges related to the death of Leroy Copeland should be vacated, set aside, or corrected because Petitioner did not receive effective assistance of counsel at trial in violation of the Sixth Amendment. Pet'r Mot. at 2-4, 12-23. Petitioner launches a volley of claims challenging his trial counsel's performance, alleging that his trial counsel — Messrs. David Howard, Esq., and Gregory Spencer, Esq., of the Federal Public Defender Service — (1) failed to file a motion for recusal of the trial judge, move for a mistrial based on the perceived animosity of the trial judge, or request a limiting jury instruction concerning such perceived animosity; (2) failed to move for a continuance to investigate potentially exculpatory statements; (3) refused to request a continuance to allow Petitioner's pre-trial counsel, Ms. Reita Pendry, Esq., to be available for trial; (4) failed to present material witnesses in support of Petitioner's defense; (5) had a conflict of interest that deprived Petitioner of material evidence in support of his defense; and (6) declined to explore plea negotiations despite Petitioner's request to do so. Id. Under the test for ineffective assistance of counsel established in Strickland v. Washington, a successful claim must meet two requirements. 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, a party must show that his attorney's deficient performance was "so serious that counsel was not functioning as the `counsel' guaranteed ? by the Sixth Amendment." Id. A court conducting an inquiry should measure attorney performance under "prevailing professional norms," and "[j]udicial scrutiny of counsel's performance must be highly deferential." Id. at 688, 689, 104 S.Ct. 2052. In short, a petitioner must overcome a strong presumption that counsel rendered adequate and effective assistance. See id. at 690, 104 S.Ct. 2052 ("[T]he Court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable judgement."); see also United States v. Askew, 88 F.3d 1065, 1070-71 (1996) (explaining Strickland standard for deficient performance); United States v. Mitchell, 216 F.3d 1126, 1130-31 (2000) (same).

  Second, it is not enough to show that counsel's performance was professionally deficient, but there must also be prejudice sufficient to create a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. That some effect on the outcome of trial is conceivable does not meet the level of prejudice contemplated in Strickland. Id. at 693, 104 S.Ct. 2052. Finally, a court deciding an ineffective assistance of counsel claim does not need to address both the deficient performance and prejudice components of the inquiry if there has been an insufficient showing on one prong. Id. at 697, 104 S.Ct. 2052. "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." Id. Accordingly, Petitioner must show that his trial counsel made professional errors sufficient to affect the outcome at trial.

  1. Failure to File a Motion for Recusal or Mistrial Based on the Perceived Animosity of the Trial Judge, or Request an "Animosity" Jury Instruction

  Petitioner's first ineffective assistance claim rests on the idea that his trial counsel should have filed for a recusal or a mistrial during trial based on the perceived animosity of the trial judge, or sought a limiting jury instructing concerning such perceived animosity. Pet'r Mot. at 12. According to Petitioner, "the animosity of the trial judge continued throughout the trial," which allegedly exposed bias to the jury, and "counsel did not move for a mistrial when the conduct became apparent." Id. at 13. In support of this argument, Petitioner submits an affidavit from Mr. David Howard, one of Petitioner's trial counsel, as well as a motion for recusal filed in June 1997 in a different case against Petitioner before the same judge. See Att. 6 to Pet'r Mot. (Howard Affidavit);*fn6 Att. 1 to Pet'r Mot. (recusal motion highlighting the portions of the trial record in the present case perceived to convey hostility on the part of the trial judge directed at Petitioner's trial counsel).*fn7 After reviewing the submitted affidavits and the portions of the trial record highlighted by trial counsel in the attached motion for recusal, and placing them in the greater context of the entire trial, the Court finds that trial counsel's performance was not deficient since there are no grounds for recusal, mistrial, or an animosity instruction based on the trial judge's conduct.*fn8 Without such grounds, Petitioner has not and cannot establish that his trial counsel's failure to move for recusal, mistrial, or an animosity instruction at trial, constituted deficient performance, nor can he establish the required prejudice resulting from trial counsel's failure such that the Court's confidence in the outcome of the proceeding is undermined. See Strickland, 466 U.S. at 694.*fn9

  Grounds for recusal, mistrial, or an animosity instruction did not exist in this case because the trial judge's actions did not rise to the level of "deep-seated favoritism or antagonism that would make fair judgment impossible." Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994). In Liteky, the Supreme Court noted that "judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge." Id. Petitioner cites United States v. Donato, 99 F.3d 426, 434-38 (D.C. Cir. 1996) for his contention that "the one-sidedness of the court's hostility was such that defendant did not receive a fair trial." Pet'r Mot. at 13. While the court in Donato held that criticism from a trial judge may be so hostile as to deprive a party's right to a fair trial, id. at 435, 438, the court also emphasized that "a district judge has wide discretion in monitoring the flow of a criminal trial. . . . Sharp words spoken by a trial court to counsel do not by themselves establish impermissible bias." Id. at 434; see United States v. Clark, 184 F.3d 858, 868-69 (D.C. Cir. 1999) (finding that defendant received a fair trial despite contention that the court undermined his defense by directing unjustified harshness and criticism at trial counsel in the presence of the jury). In this case, the allegations of hostility involve adverse rulings by the trial judge, most of which included an explanation of the basis for her rulings.

  Here, the entirety of the trial record shows that the presiding trial judge was even-handed in the way she monitored the flow of trial. See Gov't Opp'n at 23 n. 20 (citing numerous examples of trial court's criticism of government counsel). Moreover, the trial judge took care to instruct the jury at the opening and closing of trial not to let her actions and rulings affect the jury's consideration of the case, and jurors are presumed to follow the court's instructions.*fn10 See Zafiro v. United States, 506 U.S. 534, 540, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993) (finding presumption that jury follows court's instructions). Importantly, the court's allegedly hostile conduct was directed at Petitioner's counsel, not at Petitioner or witnesses. Att. A to Pet'r Mot. Accordingly, the jury heard nothing to suggest, as Petitioner argues, that the Court's perceived animosity toward Petitioner's counsel was based on a bias against Petitioner. See Donato, 99 F.3d at 438 (finding it significant that some of court's criticism was directed at defendant in holding that defendant was deprived of fair trial); Clark, 184 F.3d at 869 (finding it significant that court directed its allegedly hostile comments to attorneys rather than defendant in holding that defendant received fair trial).

  Without sufficient grounds for recusal, mistrial, or an animosity instruction, trial counsel's motion would likely have been denied.*fn11 Therefore, Petitioner cannot establish that trial counsel should have moved the trial court for any of these reasons, and acted unreasonably for not doing so.*fn12 See Strickland, 466 U.S. at 690. Furthermore, because the trial would most likely have proceeded exactly as it did even if Petitioner's trial counsel had moved for recusal, mistrial or an animosity instruction, Petitioner cannot show prejudice such that but for his trial counsel's deficient performance, the result of the proceeding would have been different. See id. at 694; see also United States v. Holland, 117 F.3d 589, 594 (D.C. Cir. 1997) ("A lawyer is not ineffective when he fails to file a frivolous pleading."); United States v. Glover, 153 F.3d 749, 758 (D.C. Cir. 1998) (counsel is not ineffective for failing to make a frivolous objection).

  2. Failure to Request Continuance to Investigate Eddings's Statements

  Petitioner's next ineffective assistance of counsel claim rests on the notion that his trial counsel should have requested a continuance to investigate allegedly exculpatory statements by a witness, Mr. Kevin Eddings, disclosed to defense counsel the evening preceding Eddings's testimony at trial. Pet'r Mot. at 13; see Apps. H and I to Gov't Opp'n (Eddings's 4/19/96 stmt. to the police, Tr. 6:130, 137, and Eddings's grand jury testimony on 5/1/96, Tr. 6:132-33, 140). According to Petitioner, Eddings's statements "strongly implied that another individual other than those on trial had shot and killed Mr. Leroy Copeland," namely, that witness Kirk Thomas had done so. Id. at 15. Therefore, argues Petitioner, his trial counsel should have sought a continuance to determine whether a third-party shooter defense could be mounted based on Eddings's statements, rather than "wing[ing] it by cross-examination," as his trial counsel purportedly did. Id.

  As an initial matter, Petitioner overstates the contents of these statements; they did not "strongly imply" anything, rather they simply indicated that Eddings recalled others being nearby when Copeland was murdered. See App. H to Gov't Opp'n at 6; App. I to Gov't Opp'n at 16, 17, 23. That aside, Petitioner fails to establish what information the defense stood to gain from interviewing and investigating Eddings. In addition, Petitioner does not establish the requisite prejudice to support a claim of ineffective assistance of counsel, i.e. a reasonable probability that the result of trial would have been different if not for the failure of trial counsel to seek a continuance to investigate Eddings. See Strickland, 466 U.S. at 694. As explained in detail below, the Court concludes that this prong of Petitioner's ineffective assistance claim does not warrant setting aside, vacating, or correcting his sentence pursuant to 28 U.S.C. § 2255.

  The Court is guided by United States v. Askew, in which the D.C. Circuit held that when a convicted defendant attempts to gain collateral relief based on failure of trial counsel to investigate, a court should require the petitioner to show "to the extent possible precisely what information would have been discovered through further investigation." 88 F.3d at 1073. The Court explained:
Any other rule would give defendants an incentive to present as little evidence as is necessary to create some doubt . . . Although defendants are entitled to the benefit of a reasonable doubt at trial, an appellate court should not overturn a conviction simply ...

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