The opinion of the court was delivered by: Richard W. Roberts United States District Judge
Defendant Edward Kelly, Jr. pled guilty in 2006 under a plea agreement to one count of unlawful possession with the intent to distribute cocaine, see 21 U.S.C. § 841(a), (b)(1)(C), and one count of using, carrying, and possessing a firearm during a drug-trafficking offense, see 18 U.S.C. § 924(c)(1). He now moves under 28 U.S.C. § 2255 to vacate his sentence, arguing that the government was collaterally estopped from prosecuting him for these offenses in the District of Columbia ("D.C.") since, in earlier proceedings in the District of Maryland, he was acquitted of similar drug and gun charges. Kelly also asserts an ineffective assistance of counsel claim challenging the failure of the attorney representing him in the district court*fn1 to research and raise the collateral estoppel defense. The government opposes the motion on the ground that Kelly's claims are meritless. Because Kelly's claims are unsubstantiated, the motion will be denied.*fn2
The D.C. Circuit opinion affirming Kelly's conviction describes the facts relevant here. United States v. Kelly, 552 F.3d 824, 827-29 (D.C. Cir. 2009). "[T]he FBI began intercepting and recording Kelly's telephone conversations" in June of 2004 and, in September of that year, "obtained warrants to search Kelly's vehicle and his girlfriend's apartment [in] D.C." Id. at 827. Agents executing the warrant at the apartment on September 2, 2004 "discovered . . . a backpack containing two plastic bags that held 497.1 grams of cocaine hydrochloride and . . . a loaded Glock 9-millimeter handgun." Id.
Kelly was indicted in federal court in Maryland but acquitted of "(1) conspiracy to distribute and possess with intent to distribute cocaine and cocaine base between November 2000 and December 2004 in the District of Maryland, the District of Columbia and elsewhere . . . ; (2) using a communication facility in furtherance of a narcotics conspiracy . . . ; and (3) using and possessing a firearm in furtherance of conspiracy to distribute and possess with intent to distribute cocaine and cocaine base on September 2, 2004 in the District of Maryland[.]" Id. at 829 & n.3 (emphasis added). Later, a federal grand jury in D.C. handed down a 3-count indictment against Kelly. He pled guilty to Count One which charged unlawful possession in D.C. of cocaine on September 2, 2004 with the intent to distribute it, and to Count Three which charged using, carrying and possessing a firearm in D.C. on September 2, 2004 during the drug trafficking offense charged in Count One. Id. at 827.
At Kelly's plea hearing, "Kelly alerted the [court] to the fact that he had been charged with another section 924(c) violation in Maryland and that he believed it was the same section 924(c) violation as the one to which he was then pleading guilty." Id. at 828. This court concluded that "there may not be a double jeopardy problem" because "the predicate crime for each section 924(c) count was different." Id. at 829 (citation omitted). After Kelly's counsel agreed, Kelly "advised the court that he was ready to plead guilty . . . 'voluntarily and of his own free will.'" Id. Kelly's guilty plea was accepted, and he was sentenced to consecutive terms of 50 and 60 months' imprisonment on the drug and gun counts, respectively. Id.
While the D.C. Circuit affirmed Kelly's conviction on direct appeal, Kelly now attacks his sentence collaterally under § 2255. He argues that the principle of collateral estoppel barred his prosecution in D.C., and that he received ineffective assistance of counsel because his attorney failed to file a pretrial motion asserting collateral estoppel and did not move for a continuance of the plea hearing in order to prepare such a motion. (See, e.g., Def.'s Mem. at 6, 15-17.)
"A prisoner in custody . . . claiming the right to be released" may move under § 2255 to "vacate, set aside or correct" his sentence if it 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. However, since "[r]elief under § 2255 is an extraordinary remedy[,] . . . 'a prisoner must clear a significantly higher hurdle than would exist on direct appeal.'" United States v. Zakas, 793 F. Supp. 2d 77, 80 (D.D.C. 2011) (quoting United States v. Frady, 456 U.S. 152, 166 (1982)). Specifically, he "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.'"*fn3
Hoover-Hankerson v. United States, 792 F. Supp. 2d 76, 81 (D.D.C. 2011) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)) (additional citation omitted). "The defendant bears the burden of proving his claims by a preponderance of the evidence."
Zakas, 793 F. Supp. 2d at 80 (citing United States v. Simpson, 475 F.2d 934, 935 (D.C. Cir. 1973)).
Kelly's § 2255 motion asserts that the government was collaterally estopped*fn4 from prosecuting him for using, carrying and possessing a firearm during a drug trafficking offense in D.C., and for possessing with the intent to distribute cocaine, since he earlier was acquitted of conspiracy to possess with intent to distribute cocaine and possession of a firearm during a drug trafficking offense in the District of Maryland. (Def.'s Mem. at 6-7.) However, "there is no collateral estoppel if a different ground 'could' have been a rational basis for acquittal[.]'" United States v. Coughlin, 610 F.3d 89, 97 (D.C. Cir. 2010) (quoting Ashe v. Swenson, 397 U.S. 436, 444 (1970)).
Kelly argues that the Maryland jury found "reasonable doubt that [he] was aware" that he possessed the drugs in the backpack and that in this case the government would have had to prove beyond a reasonable doubt that he was ...