The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge
MEMORANDUM OPINION DENYING THE DEFENDANT'S MOTION TO VACATE CONVICTION AND SENTENCE PURSUANT TO 28U.S.C.§2255
Pending before the court is the defendant's pro se motion pursuant to 28 U.S.C. § 2255 to vacate his conviction and sentence. The defendant was convicted on a four-count indictment for unlawful distribution of cocaine base, in violation of 21 U.S.C. § 841 (a)(1) and (b)(1)(C) (Count One); unlawful possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841 (a)(1) and (b)(1)(C) (Count Two); using, carrying, or possessing a firearm during a drug trafficking offense, in violation of 18 U.S.C. § 924 (c)(1)(A)(i) (Count Three); and unlawful possession of a firearm and ammunition by a person convicted of a crime punishable by imprisonment for a term exceeding one year, in violation of 18 U.S.C. §§ 922 (g)(1) and 924 (e)(1) (Count Four). The court sentenced him to 30 years in prison. The defendant now claims ineffective assistance of counsel because his attorney failed to conduct an independent investigation to challenge the government's evidence and witnesses. The court denies the defendant's motion to vacate the conviction and sentence because the motion is time barred under 28 U.S.C. § 2255.
The undisputed facts in this case are as follows: on January 7, 2004, Officer Sylvan Alteiri from the District of Columbia Metropolitan Police Department conducted a "buy-bust" operation in the 1200 block of Howison Place, S.W. Gov't's Opp'n to Def.'s Mot. to Vacate ("Gov't's Opp'n") at 4-5. As soon as Officer Altieri approached the defendant and expressed interest in purchasing crack cocaine, the defendant jogged north on Howison Place and returned a few seconds later with a soft pack of Newport cigarettes. Id. at 5-6. From the pack, the defendant handed the officer a small, pink ziplock bag in exchange for $20 in pre-recorded funds. Id. at 6. A field test of the substance in the ziplock bag revealed that the substance was cocaine. Id.
After the transaction, Officer Alteiri drove away and transmitted a description of the defendant's appearance and clothing to a nearby squad car that arrived on the scene within minutes. Id. After initially questioning the defendant, Officers Smalls and James and Investigator Penn began to look for the Newport pack in the direction where Officer Alteiri had seen the defendant retrieve the drugs. Id. at 7. About 50 to 80 feet up the street, Officer Penn found the Newport pack under a bush and saw a handgun "right beside" the cigarette pack. Id. at 8. Officer Smalls then searched the defendant and recovered the pre-recorded $20 bill and $126 in other U.S. currency. Id.
On February 5, 2004, the grand jury returned a three-count indictment against the defendant. Id. at 2. On February 10, 2004, the grand jury issued a superseding indictment charging appellant with a four-count indictment. Id. At trial, the prosecution introduced evidence that the Newport pack contained 35 pink ziplock bags containing a total of 3.8 grams of cocaine base, 75% pure. Id. at 9. The only fingerprint evidence recovered from the Newport pack did not match the defendant's prints. Id. In addition, the prosecution introduced the loaded 9mm handgun found next to the drugs. Id. No fingerprints were recovered from the gun, and the gun did not bear any dirt, frost or oil, indicating that it had not lain on the ground for very long. Id. Mark Stone, the government's drug expert, testified that there is a link between guns and drug trafficking. Id. at 10. The prosecution also introduced testimony that the defendant had been arrested twice in the previous three years for distribution of cocaine base, once using the same modus operandi (concealing multiple ziplock bags in a Newport pack). Id. at 10-11.
The defense counsel only called one witness, a private investigator, who introduced photographs of the neighborhood where the defendant was arrested. Id. at 12. The investigator testified that a person standing where Officer Alteiri was parked would not have had a clear view of the wall where the drugs and handgun were recovered. Id. He also testified that the stash was approximately 80 feet away from the location of the buy-bust, contradicting Officer Alteiri's testimony that the stash was 50 feet away. Id.
On May 10, 2004, the jury returned a guilty verdict as to each of the four counts against the defendant. Gov't's Opp'n at 3. A week later, the defendant moved for a judgment of acquittal or, in the alternative, for a new trial claiming that the government had failed to prove that (1) the substance distributed and possessed was crack cocaine; (2) the government improperly introduced hearsay evidence concerning a prior sale of cocaine; and (3) the evidence was insufficient to support the jury's conclusion that he possessed a firearm in relation to a drug-trafficking crime. United States v. Booker, 2005 WL 1848169, at *13-14 (D.C. Cir. 2005). In a separate addendum, the defendant also argued that the testimony of the government's drug expert exceeded his expertise and lacked a scientific base. Id. The District Court denied both motions. Gov't's Opp'n at 3.
Six months later, the court imposed a guideline sentence of 240 months on Count One, 240 months on Count Two, 60 months on Count Three and 360 months on Count Four. Id. The terms of Counts One, Two and Four were to run concurrently, while Count Three was to run consecutively to the other counts. Id. The defendant filed a motion to declare the guidelines unconstitutional and for an appropriate non-guidelines sentence. Id. On appeal, the defendant also argued that the government's evidence was insufficient to support a finding that he had constructively possessed the handgun. United States v. Charles K. Booker, 436 F.3d 238, 242 (D.C. Cir. 2006). On February 3, 2006, the D.C. Court of Appeals remanded the case back to this court for re-sentencing in light of the Supreme Court's decision in United States v. Freddie Booker, 543 U.S. 220 (2005). Gov't's Opp'n at 4. The Court of Appeals also held that the evidence was sufficient to support a finding that the defendant "constructively possessed" the handgun. Id. Subsequently, on April 25, 2006, this court imposed an alternative, non-guideline sentence of 30 years based on the record and without holding a hearing. Id. On May 5, 2006, the defendant filed a motion for the court to vacate its sentence and grant a resentencing hearing. The court granted a hearing but did not vacate the sentence. Order (Sept. 21, 2006). On January 9, 2007, the court held a resentencing hearing and orally affirmed the sentence entered on April 25, 2006. Min. Order (Jan. 9, 2007). On March 26, 2007, the court issued a written order affirming the April 25, 2006 sentence and memorializing the result of the January 9, 2007 hearing. Order (Mar. 26, 2007).
On June 15, 2007, the defendant filed the present motion to vacate the conviction and sentence pursuant to 28 U.S.C. § 2255 claiming that he received ineffective assistance of counsel, that the government violated his Fifth Amendment due process rights for Counts Three and Four and that the indictment was unconstitutionally ...