United States District Court, District of Columbia
COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE
In January 2007, Duane Phillip Jones (“Jones”) was convicted by a jury in this Court of: one count of unlawful possession with intent to distribute cocaine base known as crack cocaine (Count I); one count of possession a firearm in furtherance of a drug trafficking offense (Count II); and one count of unlawful possession of a firearm and ammunition by a person convicted of a crime punishable by imprisonment for a term exceeding one year (Count III). Presently before the Court is Jones’  Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence, and  Amended Motion to Vacate or Set Aside Pursuant to 28 U.S.C. § 2255.Upon a searching review of the parties’ submissions,  the relevant authorities, and the record as a whole, the Court finds no grounds for setting aside Jones’ conviction and sentence. Accordingly, the Court shall DENY Jones’  Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence, and  Amended Motion to Vacate or Set Aside Pursuant to 28 U.S.C. § 2255.
On August 10, 2006, United States Deputy Marshals were dispatched to locate and arrest Jones for an outstanding warrant for first-degree murder issued by the Superior Court of the District of Columbia. The Marshals arrived at Clay Terrace in northeast Washington, D.C. While exiting his vehicle, Deputy U.S. Marshal James Cyphers (“Cyphers”) made eye contact with Jones who took off running. Cyphers chased Jones for approximately 100 yards, during which time Cyphers heard a gunshot fired to his left. Cyphers pursued Jones into a stairwell and stopped him by grabbing him around the waist and pulling him down. Cyphers asked Jones whether he had “anything on” him. Jones indicated, “I have a burner in my waistband.” Cyphers understood this statement to mean that Jones had a gun and another deputy marshal removed a loaded firearm from Jones’ waistband. Jones then was placed in handcuffs and brought to a police car where he was patted down by third deputy marshal. During the pat-down search, a bag containing crack cocaine was located in Jones’ back pocket.
On September 15, 2006, a grand jury indicted Jones in connection with Jones’ possession of the firearm and crack cocaine. Indictment, ECF No. . The matter proceeded to trial in this Court, and on January 24, 2007, a jury convicted Jones on all three counts of the indictment: Possession with Intent to Distribute 5 Grams or More of Crack Cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii); Possession of Firearm in Furtherance of a Drug Trafficking Crime, in violation of 18 U.S.C. § 924(c)(1)(A); and 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). Verdict Form, ECF No. .
On June 11, 2007, this Court sentenced Jones to 135 months of imprisonment on Count I and 120 months of imprisonment on Count III to run concurrently. The Court also sentenced Jones to 60 months of imprisonment on Count II to run consecutively to Counts I and III. Judgment at 3 (Jun. 21, 2007), ECF No. . The Court subsequently granted Jones’ Motion for Retroactive Application of Sentencing Guidelines to Crack Cocaine Offense and on January 5, 2011, resentenced Jones to a term of 120 months of imprisonment on Count I due to a retroactive amendment to the sentencing guidelines; the sentences for Counts II and III were unaffected. Order (Sept. 27, 2010), ECF No. ; Order (Jan. 5, 2011), ECF No. . Jones filed a timely appeal and on June 9, 2009, his conviction was upheld by the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) in a published opinion. See generally United States v. Jones, 567 F.3d 712 (D.C. Cir. 2009). Jones currently is serving his sentence.
Pending before the Court are Jones’ original Motion and Amended Motion to vacate or set aside his sentence pursuant to 28 U.S.C. § 2255. See generally Def.’s Mot.; Def.’s Amend. Mot. Jones argues that his sentence should be set aside because both his trial and appellate counsel provided him with ineffective assistance of counsel. These claims are premised on Jones’ argument that his trial and appellate counsel failed to adequately represent him after government counsel at trial allegedly published to the jury a piece of evidence previously deemed inadmissible. Jones also argues that his appellate counsel failed to raise on appeal a Sixth Amendment argument related to his right to cross-examine the analyst who prepared a laboratory report.
II. LEGAL STANDARD
Under 28 U.S.C. § 2255, a prisoner in custody under sentence of a federal court may move the sentencing court to vacate, set aside, or correct its sentence if the prisoner believes that the sentence was imposed “in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). The circumstances under which such a motion will be granted, however, are limited in light of the premium placed on the finality of judgments and the opportunities prisoners have to raise most of their objections during trial or on direct appeal. “[T]o obtain collateral relief a prisoner must clear a significantly higher hurdle than would exist on direct appeal.” United States v. Frady, 456 U.S. 152, 166 (1982). Nonetheless, “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.” 28 U.S.C. § 2255(b).
A prisoner may not raise a claim as part of a collateral attack if that claim could have been raised on direct appeal, unless he can demonstrate either: (1) “cause” for his failure to do so and “prejudice” as a result of the alleged violation, or (2) “actual innocence” of the crime of which he was convicted. Bousley v. United States, 523 U.S. 614, 622 (1998). However, “[w]here a petitioner raises claims of ineffective assistance of counsel in a § 2255 motion, he need not show ‘cause and prejudice’ for not having raised such claims on direct appeal, as these claims may properly be raised for the first time in a § 2255 motion.” United States v. Cook, 130 F.Supp.2d 43, 45 (D.D.C. 2000), aff’d, 22 F. App’x 3 (D.C. Cir. 2001) (citation omitted).
A defendant claiming ineffective assistance of counsel must show (1) “that counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms, ” and (2) “that this error caused [him] prejudice.” United States v. Hurt, 527 F.3d 1347, 1356 (D.C. Cir. 2008) (citation omitted). “Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence.” Strickland v. Washington, 466 U.S. 668, 689 (1984). It is the petitioner’s burden to show that counsel’s errors were “so serious” that counsel could not be said to be functioning as the counsel guaranteed by the Sixth Amendment. Harrington v. Richter, --U.S. --, --, 131 S.Ct. 770, 787 (2011). “The reasonableness of counsel’s actions may be determined or substantially influenced by the defendant’s own statements or actions. . . . [I]nquiry into counsel’s conversations with the defendant may be critical to a proper assessment of . . . counsel’s other litigation decisions.” Strickland, 466 U.S. at 691. In evaluating ineffective assistance of counsel claims, the Court must give consideration to “counsel’s overall performance, ” Kimmelman v. Morrison, 477 U.S. 365, 386 (1986), and “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance, ” Strickland, 466 U.S. at 689. Moreover, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. A “reasonable probability” is “a probability sufficient to undermine confidence in the outcome.” Id.
A district court may deny a Section 2255 motion without a hearing when “the motion and files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). “‘The decision whether to hold a hearing is committed to the district court’s discretion, particularly when, as here, the judge who is considering the § 2255 motion also presided over the proceeding in which the petitioner claims to have been prejudiced.’” United States v. Orleans-Lindsey, 572 F.Supp.2d 144, 166 (D.D.C. 2008), appeal dismissed, No. 08-3089, 2009 U.S. App. LEXIS 20833 (D.C. Cir. Sept. 18, 2009) (quoting Fears v. United States, No. Civ. A. 06-0086 (JDB), 2006 WL 763080, at *2 (D.D.C. Mar. 24, 2006) (citations omitted)); see also United States v. Agramonte, 366 F.Supp.2d 83, 85 (D.D.C. 2005), aff’d, 304 Fed. App’x 877 (D.C. Cir. 2008). “The judge’s own recollection of the events at issue may enable him summarily to deny a Section 2255 motion.” Agramonte, 366 F.Supp.2d at 85 (citing United States v. Pollard, 959 F.2d 1011, 1031 (D.C. Cir. 1992), cert. denied, 560 U.S. 915 (1992)). To warrant a hearing, the petitioner’s Section 2255 motion must “raise ‘detailed and specific’ factual allegations whose resolution requires information outside of the record or the judge’s ‘personal knowledge or recollection.’” Pollard, 959 F.2d at 1031 (quoting Machibroda v. United States, 368 U.S. 487, 495 (1962)).
Based on a thorough review of the parties’ pleadings, the exhibits attached thereto, and the entire record in the criminal proceeding as well as based on its own recollection, the Court finds that there is no need for an evidentiary hearing on the instant motion. As explained below, Jones has not proffered detailed and factual allegations outside of the record or the Court’s personal knowledge or recollection such that a hearing is required. Accordingly, the Court shall render its findings based on the parties’ pleadings, the record, and its own recollection of the events at issue.
Jones’ claims for ineffective assistance of counsel center around two events. First, Jones alleges that an unredacted version of a report including information previously deemed inadmissible as more prejudicial than probative was displayed to the jury during trial. Second, Jones alleges that he was denied his Sixth Amendment right to cross-examine the analyst who signed the laboratory report indicating that the substance seized from him was crack cocaine. The Court shall address the merits of each of Jones’ specific allegations in turn.
A. Alleged Display of the DEA-7 to the Jury
Jones raises six claims of ineffective assistance of counsel stemming from the alleged display of one page of evidence, titled the “Report of Drug Property Collected, Purchased or Seized, ” commonly known as the “DEA-7, ” in its unredacted form during trial. Prior to trial, the Government indicated it would not disclose to the jury that the arrest warrant that the Marshals were executing when the firearm and crack cocaine were recovered was issued for the charge of first-degree murder. Tr. 7:15–8:2 (Jan. 11, 2007); Tr. 2:13-23 (Jan. 16, 2007). The Court specifically noted that the introduction of the nature of the charge in front of the jury would be more prejudicial than probative. Tr. 2:22-23 (Jan. 16, 2007). Jones alleges that at trial, the government displayed to the jury an unredacted version of the DEA-7, indicating in the “REMARKS” section: “On August 10th 2006, members of the Metropolitan Police Department arrested the above named Defendant for HOMICIDE (Arrest Warrant #2006CRW001978 . . . .” Def.’s Ex. A (DEA-7).
As the Court will explain further below, the term “DEA-7” as used during this trial was shorthand for evidence consisting of three pages of which only the third page contained the pending charge. The front page of the evidence was the DEA laboratory analysis, and the second page contained photos of the recovered drugs. However, as the record reflects, the actual exhibit admitted into evidence at trial and (albeit confusingly) referred to by the prosecutor as the DEA-7 only consisted of the first two pages and not the last page (the actual DEA-7) that listed the pending homicide charge. The record further demonstrates that the actual DEA-7 was never admitted into evidence and also was never displayed to the jury.
Jones contends that the alleged display of the DEA-7 including the charge information took place via a document camera, more commonly known as an “ELMO, ” that projected the image of the paper document onto a screen during testimony. Govt.’s Opp’n to Def.’s Amend. Mot. at 7 & 7 n.2. As a result of this alleged display, Jones argues that his trial counsel provided ineffective assistance of counsel by: (1) failing to object when the Government displayed the evidence; (2) failing to make a clear record after the Government displayed the evidence; (3) failing to request a mistrial after the Government displayed the evidence; and (4) failing to request a curative instruction after the Government displayed the evidence. Jones further argues that his appellate counsel provided ineffective assistance of counsel by: (1) failing to correct the transcript record prior to the appeal; and (2) failing to establish that the jury did in fact see the unredacted DEA-7. The Government contends that the record establishes that there was no improper display of an unredacted version of the DEA-7. Govt.’s Opp’n to Def.’s Amend. Mot. at 14. Further, the Government argues that even if an unredacted version of the DEA-7 was displayed to the jury, Jones has not established that he was prejudiced by the display. Id. at 14-16. The Court finds that Jones has not established that the third page of the evidence described as the DEA-7 was displayed to the jury based on a plain reading of the corrected transcript as well as the Court’s own recollection of the events at issue. Accordingly, the Court finds that Jones’ ineffective assistance of counsel claims related to this issue fail because each claim relies on the veracity of Jones’ assertion that the third page with the pending homicide charge was in fact displayed to the jury.
As already noted, the DEA-7 was originally part of Government’s Exhibit 2(a) that consisted of three pages: the DEA Laboratory Report, photographs of the analyzed drugs, and the DEA-7 that contained the pending charge. Govt.’s Ex. A (Laboratory Report; Photographs; DEA-7); Govt.’s Opp’n to Def.’s Amend. Mot. at 8 n.3; see also United States v. Jones, 567 F.3d 712, 717 (D.C. Cir. 2009). However, when seeking to admit Exhibit 2(a) at trial, the prosecutor explained: “Government 2(a) is a laboratory analysis report dated November 2, 2006 and signed by Ms. Lanette M. Allison, L-a-n-e-t-t-e M. A-l-l-i-s-o-n, a forensic chemist with the Drug Enforcement Administration Mid-Atlantic Laboratory. Government Exhibit 2(a) accurately reflects the results of the chemical analysis conducted on Government Exhibit 2.” Tr. 239:6-12 (Jan. 23, 2007). The Court further explained: “So we are talking about 2(a) which is the laboratory report and the photographs . . . .” Id. at 240:12-13. Accordingly, as described, Exhibit 2(a) consisted of two pages that were admitted into evidence without objection and did not include the actual DEA-7 form at all. Id. at 240:15-19.
Jones alleges that the display of the DEA-7 with the charge information came during the testimony of Detective Anthony Williams, who testified as an expert on the drug trade in the District of Columbia. Id. at 386:19–387:3. The relevant portion of the transcript follows:
RONALD WALUTES [Government counsel]: If I could first go into the area of crack cocaine and how it is used and smokability. I wonder if you might explain what looks on an a [sic] analyst’s report as just cocaine base – if I could hand you, if I could hand you what has been admitted into evidence both Government Exhibit 2 and ...