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CASSELL v. U.S.

October 24, 2005.

DWAYNE CASSELL, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.



The opinion of the court was delivered by: RICARDO URBINA, District Judge

MEMORANDUM OPINION

DENYING THE PETITIONER'S MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE
I. INTRODUCTION
On December 8, 2000, the petitioner, Dwayne Cassell, was convicted by a jury of possession with intent to distribute cocaine base (count 1), possession with intent to distribute cocaine base within 1,000 feet of a school (count 2), possession of a firearm during a drug trafficking offense (count 3), and possession of a firearm and ammunition by a convicted felon (count 4). On March 7, 2001, the court sentenced the petitioner to 288 months of incarceration. On September 9, 2003, the petitioner filed the instant motion for relief under 28 U.S.C. § 2255, arguing that the prosecutor had allowed false evidence to go to the jury and engaged in improper witness vouching in his closing argument, and that the petitioner's counsel was constitutionally ineffective. Because the petitioner has failed to demonstrate prosecutorial misconduct, ineffective assistance of counsel, or actual prejudice resulting from either claim, his motion to vacate, set aside, or correct his sentence is denied. II. BACKGROUND

  A. Factual Background

  1. The Search, Arrests, and Grand Jury Proceedings

  On July 13, 2000, officers of the Metropolitan Police Department ("MPD") executed a search warrant of a home, where the petitioner resided with his uncle, Lawrence Hart, located at 1129 Trinidad Avenue in Northeast, Washington, D.C. The search warrant team, led by seizing officer Norma Horne, seized the following items, among others:
1. A brown bag containing 71 ziplock bags and containing a total of 17 grams of crack cocaine, a 9 mm. bullet, a .32 caliber bullet, and a bill and court document in the petitioner's name, were found in a hutch on the dining room table. Trial Tr. at 233-34, 490,
2. A large rock of cocaine base wrapped in a towel, worth approximately $11,500, with marijuana beside it, were found on the top of the refrigerator in the kitchen. Id. at 236-37, 258-59, 490,
3. A magazine for a semiautomatic handgun, a scale, and a car purchase receipt in the defendant's name, were found in a box on a chair on the rear porch. Id. at 203-06, 207-08,
4. A dinner plate bearing the petitioner's fingerprint and cocaine crumbs were found on the same chair on the rear porch. Id. at 209, 292-94, 299, 464-65, 473,
5. Marijuana, a .32-caliber loaded revolver, .22 caliber ammunition, and $750 in U.S. currency were found in Lawrence Hart's upstairs bedroom. Id. at 227-28, 230-33, 246-48,
6. Marijuana was found in a plastic bag inside a medicine cabinet in an upstairs bathroom. Id. at 225-26, 273,
7. A Cobray 9 mm. loaded pistol and a Colt AR-15 A2 loaded rifle were found under a duffle bag at the edge of the bed in the petitioner's bedroom. Id. at 215-18, 282-88,
8. A total of $3,154 in U.S. currency was found in the petitioner's bedroom. Id. at 221-25.
  Hart, who was present during part of the search, was carrying $1,429 in cash on his person. Id. at 247, 372-73. After the search, Hart was arrested and spent the night in jail. Id. at 376-77. Mr. Hart admitted ownership of the loaded .32 caliber firearm, the $750 in U.S. currency and the marijuana found in his room. Id. at 373-74. He explained that he was going to use the money to buy a big-screen television. Id. He later pled guilty to a single misdemeanor gun offense in exchange for his cooperation against his nephew. Id. at 377-79. Hart provided testimony to the grand jury concerning the petitioner. Pet'r's Mot., Ex. 1. At one point, Hart falsely testified that he had no previous criminal history before pleading guilty to the gun offense.*fn1 Id. at 28. In truth, Hart had previously been arrested for drug violations, gun-related violations, attempted petit larceny, attempted housebreaking, and destruction of property. Pet'r's Mot., Ex. 3 (MPD Criminal History Record). Of these arrests, Hart had been convicted of attempted housebreaking, attempted petit larceny, and destruction of property. Id. All of these arrests and/or convictions occurred before 1972. Id. On August 24, 2000, the petitioner was indicted for charges relating to the drugs and firearms seized at 1129 Trinidad Avenue.
  Two months later, the petitioner was arrested on September 8, 2000. Upon his arrest, he gave a videotaped statement in which he discussed with detectives a murder unrelated to the charges for which he had been arrested. Resp't's Opp'n, Ex. A. at 28 (Transcript of Videotaped Statement of Dwayne Cassell on September 9, 2000). When asked whether his uncle would know if he had been at home on a certain day, the petitioner stated that his uncle was "very upset" with him because of the "coke and the guns" found by police, id. at 29, and for this reason, further stated:
I think my uncle — to tell the truth — you know what I'm saying? — he mad at me . . . he might say anything . . . Because my uncle, man, he want to see me (inaudible) because the shit that went down — that federal shit you talking about? . . . The coke and the guns and shit, yeah, yeah — he very upset . . . So he might . . . say some bogus stuff . . . trying to get revenge back on me.
Id.
  Later in the interrogation, the petitioner discussed Sursum Corda — the neighborhood the petitioner lived in with his uncle — and how recent events there had interfered with his ability to "make his money":
[d]idn't nobody never come outside. Everybody think somebody going to shoot Little Dink[.] . . . So every time the police come around, they don't see nobody out there. That joint empty, you know what I'm saying? That's when everybody — all my friends, they got scared, stopped coming over there, sending me little stuff, just chilling. After that I was easing past there late night just — you know what I'm saying — make my money. All my other friends, it took them one hell of while for them to come out to the Corda. It took them the beginning of summer to come back, for real — to come back to the Corda. That joint was shut down for real . . . and Little Dink family — then they calling the police — calling the police on us anyway. So we got tired . . . Can't — man, we can't make no money and shit.
Id. at 49-50.

  2. The Trial

  The petitioner's trial began on December 4, 2000. The petitioner was represented at trial by Valencia R. Rainey of the Federal Public Defender Service. At trial, Ms. Rainey asserted both during her opening argument and during cross-examination of government witnesses that the firearms seized from the defendant's bedroom belonged to Hart. Trial Tr. at 186-190, 278, 399-448. According to testimony elicited from Hart at trial by the government, Hart is a 51-year-old resident of the District of Columbia who, by the date of the search, had lived in the house in question for seven years. Trial Tr. at 358, 361. For the past seventeen years, Hart had worked full-time, first at the Navy Annex and then at the Department of Justice copy center. Id. at 359. The petitioner had lived in Hart's home for about two and a half years prior to the date of the search. Id. at 361-62. The petitioner did not have a job while he stayed with his uncle, although he occasionally purchased cars at auctions and re-sold them. Id. at 364, 432.

  Hart testified at trial that on a previous occasion three or four months before the search, Hart had kicked the defendant out of his house after he had returned early from work one day and observed his nephew and another man with a white material that smelled like crack. Id. at 381-87. Hart further testified that he allowed the defendant to return a week later after warning him not to keep drugs in the house. Id. at 387-89. Hart also testified that he had seen the defendant on another occasion leaving the house with tiny ziplock bags that he assumed contained cocaine, id. at 389-91, and discovered a measuring cup in the sink that made him feel the defendant was "doing something," id. at 392-94.

  The jury also heard from numerous law enforcement officials, including Officer Horne, who identified the location of the items seized during the search of the petitioner's home. E.g., id. at 194-97. Detective Tyrone Thomas, a drug operations expert, testified that drug dealers keep firearms to "protect their drug operations" from rival dealers and people seeking to rob them. Id. at 486. Detective Thomas also testified generally as to how crack cocaine is manufactured and packaged. Id. at 483-85. Officer Lawrence Powell and Agent Joseph Bigbee of the Bureau of Alcohol, Tobacco and Firearms identified the two firearms found in the petitioner's bedrooms as a Colt AR-15 A2 semiautomatic rifle made by Colt industries and a Cobray 9-millimeter semiautomatic pistol. Id. at 284-86, 349-52. Barbara Evans, a fingerprint specialist for the MPD, testified that the print on the dinner plate matched the right thumb-print of Dwayne Cassell. Id. at 464-67. Finally, the jury viewed a redacted version of the videotaped statement taken from the petitioner after he was arrested. Id. at 530. Petitioner's counsel brought motions pursuant to Federal Rules of Evidence 609 and 404(b) to impeach Hart with his prior convictions, all of which were denied. The government rested its case on December 7, 2000. The petitioner rested without introducing any evidence. On December 8, 2000, the jury convicted the petitioner of counts 1-4, and acquitted him of count 5 (possession of marijuana). On March 7, 2001, the court sentenced the defendant to 288 months of incarceration.

  The petitioner filed a timely notice of appeal, arguing that the admission of evidence of his prior firearm possessions violated Rules 404(b) and 403 of the Federal Rules of Evidence. On June 11, 2002, these judgments were affirmed by the United States Court of Appeals for the District of Columbia. Cassell v. United States, 292 F.3d 788 (D.C. Cir. 2002). The petitioner filed the current motion to vacate, set aside, or correct sentence, on September 9, 2003. The court now turns to this motion.

  III. ANALYSIS

  A. Legal Standard for ...


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