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United States v. Vines

July 6, 2006


The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge


This matter relates to the conviction and sentencing of Petitioner Jerome A. Vines for charges stemming from an incident that occurred on August 9, 2001. 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 -- or, at the very least, an evidentiary hearing -- because (1) he received ineffective assistance of counsel in violation of the Sixth Amendment, (2) the prosecutor engaged in misconduct by misleading the Court, the jury and Petitioner, and (3) the Court conspired to deprive Petitioner of his constitutional rights. The Government opposes Petitioner's motion. After a careful review of the parties' multiple briefs, the trial record, and the relevant case law, the Court finds that an evidentiary hearing is unnecessary to the resolution of Petitioner's motion. 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 conviction of Petitioner Jerome A. Vines for several offenses committed by him on August 9, 2001. The evidence at trial was that Petitioner had spent most of the day with a female companion, Charlene Miller, until he suddenly told everyone to vacate his apartment. See United States' Opposition to Defendant's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 ("Gov't's Opp'n") at 2 & Tr. at 2:298-300, 304, 306.*fn1

When attempting to leave, Miller found the front gate locked and attempted to convince Petitioner to let her out by sitting on the ground and pretending to cry. Id. & Tr. at 307. At that time, she heard a click and looked up to see Petitioner pointing a gun at her head; at this point she actually began to cry. Id. & Tr. at 308. Petitioner then pulled the trigger of the gun, but it misfired, and instead, a bullet jumped out and fell to the floor; thereafter, Petitioner permitted Miller to leave his apartment. Id. & Tr. at 307-08. Although the jury convicted Petitioner based on this evidence, Petitioner contests this account and argues that he never used the gun in a threatening manner towards Miller, though he does not contest that he did have possession of the weapon. See Memorandum in Support of 28 U.S.C. § 2255 Petition to Vacate, Set Aside or Correct Sentence and Discharge Petitioner ("Pet'r Mot.") at 1. Petitioner did not testify at his trial.

Subsequently, Ms. Miller walked to a nearby bus stop and placed an anonymous 911 call to report a man with a gun in Petitioner's apartment. See Gov't's Opp'n at 3 & Tr. at 2:310. The Government indicates that the Petitioner followed Miller and attempted to talk her into returning with him to his apartment, an invitation that she declined. Id. When Miller then attempted to board a bus, Petitioner grabbed her by the neck and pulled her back towards his apartment. Id. & Tr. at 310-12. The Government also contends that Petitioner threatened to "bust" Miller with his gun right on the spot if she refused to return to his apartment. Id. & Tr. at 312-13. Upon returning to the apartment with Miller, Petitioner was told by neighbors that the police had stopped by his apartment; Petitioner then hid his gun in a nearby trash can. Id. & Tr. at 314.

At the time that Miller placed her 911 call, a radio run call came in to Sergeant Poe and Sergeant Gregory, who arrived at the scene within minutes. Tr. at 1:2. Sergeant Poe witnessed a man screaming at a woman at a bus stop on his way to the apartment but did not recognize the Petitioner at that time. Id. at 2. Officer Barnes and Officer Flynn were already on the scene when Sergeants Poe and Gregory arrived. Id. Thereafter, Petitioner and Miller returned to the apartment and the officers engaged them in conversation. Id. Sergeant Poe testified that he heard the other officers ask Petitioner to enter the apartment, and he granted them permission to do so. Id. Upon entering, the officers located a bullet casing on the floor and thereafter escorted Petitioner towards the scout car. Id. at 3.

Once Petitioner was taken from the apartment, Miller informed the officers as to the location of the hidden gun, which was thereupon recovered. Id. Petitioner was arrested for carrying a pistol without a license and transported to the Third District police station. Id. Upon arriving, Petitioner was placed in a holding cell and another policeman, Officer Franchak, came in to speak with Petitioner, who was sprawled out on a chair but awake. Id. at 8. Franchak read Petitioner his rights from the PD-47 statement and gave it to him to read. Id. Petitioner was told to answer the question and Petitioner did so and signed and dated the form. Franchak indicated that he did not perceive the Petitioner to be intoxicated based upon his appearance, behavior, and speech. Id. at 9-10. Petitioner contends that he waived his Miranda rights while he was heavily intoxicated and believes that the Officer could smell the alcohol. See Pet'r Mot. at 2. Investigator Mouton, who was present in the holding room and operated the camera that caught the interrogation on video, agreed that the smell of alcohol was present. Tr. at 1:14.


On November 9, 2001, Petitioner was charged by indictment with unlawful possession of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1); assault with a dangerous weapon, in violation of D.C. Code § 22-502; possession of a firearm during the commission of a crime of violence or dangerous offense, in violation of D.C. Code § 22-3204(b); and threatening to injure the person of Charlene Miller, in violation of D.C. Code § 22-2307. A jury found Petitioner guilty on all charges on February, 26, 2002. On December 23, 2002, this Court sentenced Petitioner to a 262 month period of incarceration on the felon-in-possession count, and to 60 months of incarceration on each of the other counts in the indictment, with all sentences to run concurrently. This Court also imposed a five-year period of supervised release for the felon-in-possession count and three year periods of supervised release on each of the other counts, with all supervised release periods to run concurrently.

Petitioner filed a notice of appeal on January 2, 2003 to the United States Court of Appeals for the District of Columbia Circuit. The Court of Appeals affirmed Petitioner's convictions on October 28, 2003 and denied his petition for rehearing and rehearing en banc on December 23, 2003. See United States v. Vines, 80 Fed. Appx. 113 (D.C. Cir. 2003). The United States Supreme Court denied Vines' petition for a writ of certiorari on March 22, 2004. Vines v. United States, 541 U.S. 954, 124 S.Ct. 1697, 158 L.Ed.2d 387 (2004).

On March 14, 2005, Petitioner, pro se, filed a Motion for Extension of Time to File a Habeas Corpus section 2255 Motion, and on March 24, 2005, Petitioner filed a Motion for Leave to File Amended Motion Pursuant to 28 U.S.C. § 2255 with a "place holder" motion attached. On March 30, 2005, the Court granted both pro se motions. The instant Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody was thereafter filed on March 30, 2005.


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). The party "seeking to vacate his sentence shoulders the burden of sustaining his contentions by a preponderence of the evidence." Smith v. United States, No. Crim. A. 94-0251, 2005 WL 1313445, at *2 (D.D.C. Jun. 1, 2005) (citing United States v. Simpson, 475 F.2d 934, 935 (D.C. Cir. 1973)). A court 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); see also Morrison, 98 F.3d at 625. The decision to hold an evidentiary hearing before rendering a decision on a section 2255 motion is committed to the judge's discretion when the judge "also presided over the trial in which the petitioner claims to have been prejudiced." Morrison, 98 F.3d at 625 (internal citations omitted).*fn2

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 section 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, 82 S.Ct. 510); 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 shoulders 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.


In his Section 2255 motion presently before the Court, Petitioner alleges violations of his Sixth Amendment right to effective assistance of counsel at the trial, sentencing, and appeals levels. See Pet'r Mot. at 7-21, 27-28. Petitioner also alleges that the Prosecutor engaged in gross misconduct through fabrication and deception, thereby abridging Petitioner's right to a fair trial. See Petitioner's Response to the Government's Opposition Brief to Said § 2255 ("Pet'r Reply") at 14-16. Finally, Petitioner claims that the district court conspired with Petitioner's attorney and the prosecutor to convict Defendant by improperly conducting voir dire. See Pet'r Mot. at 22-23. 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

Petitioner's first theory is that his conviction and sentence for charges related to the incident of August 9, 2001 should be vacated, set aside or corrected because Petitioner did not receive effective assistance of counsel at trial, sentencing, or on appeal in violation of the Sixth Amendment. Pet'r Mot. at 7-21. Under the test for ineffective assistance of counsel, as laid out in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a successful claimant must meet two requirements. First, the party must show that his attorney's deficient representation fell below "an objective standard of reasonableness." Id. The attorney must have made "errors so serious that counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment." Id. Legal advice is adequate unless counsel is not "a reasonably competent attorney" and the advice is not "within the range of competence demanded of attorneys in criminal cases." Id. (quoting McMann v. Richardson, 397 U.S. 759, 770, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970)).

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 688-90, 104 S.Ct. 2052. As such, the petitioner must overcome a strong presumption that counsel rendered effective assistance and "that counsel's conduct falls within the wide range of reasonable professional assistance." United States v. Askew, 88 F.3d 1065, 1070 (D.C. Cir. 1996) (quoting Strickland, 466 U.S. at 689-90, 104 S.Ct. 2052).

Notwithstanding the burden to establish professionally defective assistance, the petitioner must also satisfy the second prong of the Strickland test -- i.e., prejudice sufficient to create a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." 466 U.S. at 694, 104 S.Ct. 2052. This requires the petitioner to affirmatively show that counsel's mistakes were so serious "as to deprive the defendant of a fair trial." Id. at 687, 104 S.Ct. 2052. A showing of sufficient prejudice requires more than a mere allegation "that the errors had some conceivable effect on the outcome of the proceedings." Id. at 693, 104 S.Ct. 2052. Rather, a defendant must demonstrate that "counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. at 686, 104 S.Ct. 2052.

Lastly, 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 an insufficient showing on one prong is evidenced. 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."). Accordingly, Petitioner must show that his trial counsel made professional errors sufficient to affect the outcome at trial.

1. Mr. Moore's Performance at Trial

Petitioner challenges the sufficiency of his trial counsel's performance, alleging that his trial counsel -- Mr. Shawn Moore of the Federal Public Defender Service*fn3 -- (1) failed to file pretrial motions; (2) failed to conduct a pretrial investigation; (3) acted improperly with respect to voir dire by failing to object to certain jurors; (4) failed to adequately question Ms. Miller, the key witness against Petitioner; (5) declined to raise applicable defenses, such as intoxication and mental ...

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