The opinion of the court was delivered by: Richard W. Roberts United States District Judge
A jury convicted pro se petitioner Celicia Hoover-Hankerson of conspiracy, theft from programs receiving federal funds, and first degree fraud. Her conviction was affirmed on direct appeal. She now moves under 28 U.S.C. § 2255 to vacate her sentence, arguing that her attorneys were ineffective in numerous respects, and that there was no jurisdiction to impose the sentence imposed in this case. The government opposes Hoover-Hankerson's motion, arguing that she is unable to show prejudice, that her allegations are false and conclusory, and that her sentencing claim is procedurally barred because it was not raised on direct appeal. Because Hoover-Hankerson's claims are unsubstantiated and she failed to raise on appeal the claim challenging her sentence, her § 2255 motion will be denied.
A detailed history of this case is recited in United States v. Hoover-Hankerson, 406 F. Supp. 2d 76, 78-81 (D.D.C. 2005), aff'd, 511 F.3d 164 (D.C. Cir. 2007). In brief, Hoover-Hankerson was a Criminal Justice Act ("CJA") attorney and her brother and co-conspirator, Benjamin Hoover, was a part-time criminal defense investigator, both serving in the D.C. Superior Court. (Trial Tr., June 28, 2004, at 189:18-20; id. at 152:14-15, 202:6-7.) As a CJA attorney, Hoover-Hankerson obtained and signed blank witness vouchers that Hoover and others distributed to people who never appeared as witnesses in Superior Court cases. The recipients cashed the vouchers at Superior Court, and the defendants pocketed a share of the proceeds. (See, e.g., Trial Tr., June 29, 2004, at 88-100.) Hoover-Hankerson signed out over 2,000 blank witness vouchers from the Superior Court Finance Office during the course of the conspiracy (see Trial Tr., June 30, 2004, at 222-23), and together, she and Hoover managed to misappropriate over $74,000 from the witness voucher program. (See Partial Tr. of Sent. Proceedings, Mar. 17, 2006, at 54:24-25.) On May 2, 2003, Hoover-Hankerson and Hoover were indicted on charges of conspiracy under 18 U.S.C. § 371, two counts of theft from programs receiving federal funds under 18 U.S.C. § 666(a)(1)(A), and two counts of fraud in the first degree under D.C. Code § 22-3821(a) (now codified at D.C. Code § 22-3221(a)). Hoover-Hankerson, 406 F. Supp. 2d at 78.
The co-defendants' joint jury trial began on June 24, 2004. During trial, the government introduced hundreds of witness vouchers with Hoover-Hankerson's name signed on the attorney signature line for which the Superior Court had paid the purported witnesses. (Gov.'s Opp'n at 7; see also Trial Tr., June 28, 2004, at 149-52.) Several witnesses testified that they participated in the voucher scheme by cashing the witness vouchers that were originally issued in blank to Hoover-Hankerson and that Hoover-Hankerson signed, even though the witnesses had never been subpoenaed and did not appear in the case for which they received the voucher. (See, e.g., Trial Tr., June 29, 2004, at 42-46; 98-99; 158-59.) Michael Taylor was one such witness. (Id. at 158-59.) Before trial, Taylor made an out-of-court identification of Hoover-Hankerson based on his having repeatedly seen Hoover-Hankerson together with Hoover and Troy Robinson, another investigator. (See id. at 183:4-23, 184:12-25.) Taylor also identified Hoover-Hankerson in court during his testimony. (Id. at 185:8-18.)
Hoover-Hankerson called Robinson as a witness at the trial. Robinson worked as an investigator for Hoover-Hankerson. (Trial Tr., July 6, 2004 a.m., at 5:17-18.) Although he admitted having participated in witness voucher fraud with another CJA attorney (id. at 30-31), he testified that Hoover-Hankerson never gave him a witness voucher to give to someone who was not a witness in a case, and she never conspired with him to participate in voucher fraud. (See Trial Tr., July 6, 2004 a.m., at 5-9, 29:17-25, 76:3-9.) The jury found Hoover-Hankerson guilty on all counts.
Hoover-Hankerson had several different attorneys representing her at various stages of the proceedings. Initially, attorneys Douglas Evans and Khadijah Ali represented her, but they moved to withdraw as counsel on May 24, 2004. (See Docket Entry #59, Mot. to Withdraw as Counsel; see also Gov.'s Opp'n at 3 ¶ 4.) On June 27, 2004, attorney James Becker entered his appearance, and Evans's and Ali's motion to withdraw was then granted. (Gov.'s Opp'n at 3 ¶ 4.) Following trial, Hoover-Hankerson moved under Federal Rule of Criminal Procedure 29 for a judgment of acquittal claiming that the evidence was insufficient to support her conviction, and while her motion was pending, attorney Danny Onorato entered his appearance as her counsel. (Id. ¶¶ 6-7.) Thereafter, Becker filed a motion to withdraw, which was granted. (Id.) Hoover-Hankerson's motion for judgment of acquittal was denied and she was sentenced to thirty-five months' imprisonment. Hoover-Hankerson appealed her conviction, and the D.C. Circuit affirmed it in 2007. See Hoover-Hankerson, 511 F.3d at 164. Thereafter, she filed this motion under § 2255 to vacate her sentence, arguing that the court lacked jurisdiction to impose the sentence it imposed, and that her various attorneys were ineffective before and during the trial. She claims that pre-trial preparation was inadequate because she suffered injuries before trial that prevented her from assisting counsel in pre-trial preparation, and that her attorneys failed to (1) object when voir dire continued in her absence; (2) investigate government witnesses; (3) obtain a handwriting expert; (4) elicit exculpatory testimony from Robinson; (5) interview Hoover for exculpatory evidence and file or renew a motion for severance; (6) object to the leadership role and abuse of trust enhancements applied to her offense level under the sentencing guidelines; (7) object to the admission of attorney vouchers; and (8) object to Taylor's out-of-court and in-court identifications.
Section 2255 authorizes "[a] prisoner in custody . . . claiming the right to be released" to move the sentencing court to "vacate, set aside or correct" her sentence if the sentence was "imposed in violation of the Constitution or laws of the United States, . . . the court was without jurisdiction to impose such sentence, or . . . the sentence . . . is otherwise subject to collateral attack[.]" 28 U.S.C. § 2255. "The person seeking to vacate [her] sentence shoulders the burden of sustaining [her] contentions by a preponderance of the evidence." Winchester v. United States, 477 F. Supp. 2d 81, 83 (D.D.C. 2007) (citing United States v. Simpson, 475 F.2d 934, 935 (D.C. Cir. 1973)). Specifically, she "must show 'a fundamental defect, which inherently results in a complete miscarriage of justice' or 'an omission inconsistent with the rudimentary demands of fair procedure.'" United States v. Weaver, 112 F. Supp. 2d 1, 6 (D.D.C. 2000) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)).
Because of the premium placed on the finality of judgments, there are limited circumstances under which a court should grant a [§] 2255 motion. Collateral attack is not appropriate where a prisoner had the opportunity to raise [her] objections to [her] conviction and sentence . . . on direct appeal and failed to do so.
United States v. Wilson, Criminal Action No. 96-319-01 (CKK), 2005 WL 6293747, at *3 (D.D.C. Sept. 12, 2005) (citing United States v. Frady, 456 U.S. 152, 164 (1982)). Accordingly, "[w]hen a petitioner fails to raise an argument on direct appeal, [she] can raise [her] claim collaterally (that is, pursuant to § 2255) only if [she] can show cause and prejudice." Winchester, 477 F. Supp. 2d at 84 (citing Massaro v. United States, 538 U.S. 500, 504 (2003)). This showing requires a movant to demonstrate "(1) . . . good cause for [her] failure to raise the issue on appeal, and (2) . . . that the issue [she] is raising caused actual prejudice." Id. (citing Bousley v. United States, 523 U.S. 614, 622 (1998); United States v. Kleinbart, 27 F.3d 586, 590 (D.C. Cir. 1994)). Also, "[a]n evidentiary hearing does not need to be held when the 'motion and the files and the records of the case conclusively show the [movant] is entitled to no relief.'" United States v. Talley, 674 F. Supp. 2d 221, 223 (D.D.C. 2009) (quoting United States v. Horne, No. 99-3080, 2000 WL 60246, at *2 (D.C. Cir. Jan. 4, 2000) (noting that it is within the court's discretion whether to hold an evidentiary hearing when it is the same court that presided over the petitioner's criminal proceedings)).
I. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS
An ineffective assistance of counsel claim requires proof
"(1) that counsel's representation fell below an objective standard of reasonableness, and (2) that there is a reasonable probability that, but for counsel's errors, the result of the proceedings would have been different." Talley, 674 F. Supp 2d at 224 (citing Strickland v. Washington, 466 U.S. 668, 687-88 (1984)).*fn1 "Judicial scrutiny of counsel's performance must be highly deferential" because "[i]t is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Strickland, 466 U.S. at 689. Ultimately, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Id. (internal citation omitted). A convicted defendant, therefore, "must identify the act or omissions of counsel that are alleged not to have been the result of reasonable professional judgment" and a "court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the ...