United States District Court, District of Columbia
COLLEEN KOLLAR-KOTELLY, District Judge.
On January 15, 2015, this Court issued an order denying in part and holding in abeyance in part Bryan Burwell's  Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. Specifically, the Court held in abeyance its ruling on Burwell's claim that his trial counsel was ineffective for failing to investigate and interview two witnesses prior to trial. See Memo. Op. (Jan. 15, 2015), at 43-46, ECF No. . The Court denied all of Burwell's other claims in his § 2255 motion. See generally id. The Court directed Burwell to file a sworn statement with the Court: (1) identifying the witness by name who was "key to connection of DNA on one of the flash jackets found at one of the alleged stash houses, " and provide a proffer of what testimony that witness would have provided at trial; and (2) identifying the alibi witness by name (i.e. Brenda Ramirez or a different witness) who testified at trial but whom Burwell asserts was not properly interviewed. Order (Jan. 15, 2015), at 1, ECF No. . Presently before the Court is Burwell's Affidavit in response to that Order which the Court granted leave to file on February 27, 2015. For the reasons described herein, the Court shall hold in abeyance its ruling on Burwell's ineffective assistance of counsel claim related to witness Reon Holloway and shall require that the government provide an affidavit from Burwell's trial counsel, Anthony D. Martin, in relation to this claim. Further, the Court shall deny Burwell's ineffective assistance claim as it relates to counsel's preparation of witness Brenda Ramirez to testify.
In his original § 2255 motion, Burwell argues that his trial counsel rendered ineffective assistance of counsel by failing to interview a key witness and failing to properly interview an alibi witness prior to trial. Def.'s Memo. at 18. Specifically, Burwell asserts:
Counsel was supposed to have sent out investigator to alibi witness's house on "one" occasion despite Petitioner's plea that this witness was key to connection of DNA on one of the flash jackets found at one of the alleged stash houses. Counsel actually apologized for his negligence in the matter saying he "thought" the investigator was on top of the situation and that he interviewed each alibi witness properly. Counsel also stated that he has "messed up" and the issue would become an appeal issue due to the outcome of the case. The second alibi witness was not interviewed properly either her testimony was not credible at all and was hurtful to defense having called a non-interviewed witnesses and almost being impeached in front of the jury.
Id. In his Affidavit, Burwell indicates that the first witness referenced in his § 2255 motion is Reon Holloway. Holloway testified at trial that Burwell gave him a camouflage vest (identified as Exhibit "Brinkley 26") in fall 2002 or spring 2003 and that Holloway sold the vest to government witness Noureddine Chtaini around Christmas of 2003. Tr. 7462:21-7468:6 (Jun. 16, 2005). However, Burwell in his Affidavit indicates:
Had my lawyer asked Holloway about my where-abouts on the date of May 27, 2004, Holloway would have informed the jury that he and I were together at Longfellow Street, on the morning in question as well as the remaining portion of that day.
I very specifically requested my lawyer to pursue Mr Holloway concerning my where-abouts, and he had informed me that he had complied. I was not aware that counsel had not properly asked Holloway about where I was on the day in question until this witness was dismissed from the stand. Following dismissing Holloway I asked my lawyer about why he had not asked Holloway about my alibi he informed me that he had not obtained that information and did not want to bring it up because he was unaware of what Holloway might say. This witness was a crucial part of my defense because he would have provided the jury with an alternative location of my where-abouts thereby raising reasonable doubt resulting in an acquittal.
At an evidentiary hearing I am positive that my trial counsel would admit to this over-sight that ultimately led to my conviction.
Affidavit ¶¶ 2, 5. With regard to the second witness, Burwell indicates that the witness whom he alleges trial counsel failed to properly interview was Brenda Ramirez. Burwell also asserts in his affidavit, "I was unable to confirm her testimony after I prepared my Section 2255." Id. ¶ 4. Ramirez, a coworker of Burwell's wife, testified at trial that she had spoken with Burwell on the phone on June 12, 2004, around the time of the robbery of the Industrial Bank. See Tr. 6805:21-6808:23 (Jun. 13, 2005). The Court shall address Burwell's ineffective assistance of counsel claims related to witnesses Reon Holloway and Brenda Ramirez in turn.
The Strickland test applies to the issue of counsel's alleged failure to interview witnesses prior to trial. Indeed, while "[a]n attorney's failure to prepare for and challenge the testimony of a critical witness may be so unreasonable as to violate both prongs of the Strickland test, " Silva v. Woodford, 279 F.3d 825, 833 (9th Cir. 2002), cert. denied 537 U.S. 942 (2002), the Court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, " Strickland v. Washington, 466 U.S. 668, 689 (1984). First, Burwell must establish that his counsel's alleged errors did not meet the objective standard of reasonableness under professional norms. Strickland, 466 U.S. at 688. "Where the case involves a failure to investigate, the particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.'" United States v. McDade, 699 F.3d 499, 506 (D.C. Cir. 2012) (quoting Strickland, 466 U.S. at 691). If Burwell establishes deficiency in his counsel's performance, he also must establish that it is reasonably likely that the decision reached would have been different absent the errors. Id.
Turning first to witness Reon Holloway, Burwell asserts that his trial counsel was ineffective for failing to ask Holloway about Burwell's whereabouts on May 27, 2004, the date of one of the armed robberies, because Burwell claims that Holloway would have testified that Burwell and Holloway were together on Longfellow Street. Burwell was not separately charged with any counts related to the May 27, 2004, bank robbery. See Superseding Indictment (Feb. 15, 2005), ECF No. . However, Burwell's participation in the May 27, 2004, bank robbery formed the basis of one of two predicate racketeering acts that supported his conviction under Count I of the indictment, conspiracy to conduct and participate, directly and indirectly, in the affairs of an enterprise, through a pattern of racketeering activity ("RICO conspiracy"). Id. at 5-6. Pursuant to 18 U.S.C. § 1961(5), in order to be convicted of a RICO conspiracy charge, a defendant must have participated in a pattern of racketeering activity including at least two acts of racketeering activity. Here, Burwell's participation in the May 27, 2004, bank robbery was one of only two predicate racketeering acts required for Burwell's conviction under Count I. Burwell now asserts that he informed his trial counsel that Holloway would have testified that they were together on May 27, 2004, and, thus, would have provided an alibi for Burwell on that date. Holloway was not asked about his whereabouts on May 27, 2004, either on direct or cross examination at trial. See Tr. 7463:21-7471:9 (Jun. 16, 2005).
The Court notes that Holloway testified on June 16, 2005. On June 13, 2005, Burwell's trial counsel indicated on the record that Holloway ignored two subpoenas requiring him to appear to testify at trial. Burwell's trial counsel explained that Burwell requested that Holloway be brought to Court to testify by the United States Marshals, which Burwell himself confirmed on the record. Burwell's counsel also asserted that it was his determination that this course of action was not in Burwell's best interest. Ultimately, Burwell's counsel put on the record that he would make the request that the Marshals bring Holloway to testify at his client's request but against his advice. Tr. 6800:1-6801:2 (Jun. 13, 2005). The Court indicated that it would not direct the Marshals to pick up Holloway and transport him to Court to testify unless it was verified that Holloway was previously properly subpoenaed to appear at trial and ignored the subpoena. Id. at 6801:3-7; Tr. 6931:9-14 (Jun. 14, 2005). On June 14, 2005, the Court questioned whether Holloway was properly served with the subpoena after hearing from the investigator, David Jones, who attempted to serve him but instead left the subpoena at Holloway's door after he was unable to locate Holloway and the woman who answered the door refused to accept the subpoena. Id. at 6944:3-6946:15. Nonetheless, it appears that the request to send the Marshals to pick up Holloway became moot as Burwell's counsel informed the Court that he had discovered that Holloway was detained at the Correctional Treatment Facility ("CTF"). In light of this information, the Court issued a come-up to require Holloway's transport from CTF to Court. Id. at 7040:10-15, 7042:9-10; Tr. 7209:11 (Jun. 15, 2005).
At the relevant time period, it appears that Holloway had charges pending against him in the Superior Court of the District of Columbia ("Superior Court") and was represented by attorney Richard Samad. See Tr. 6932:3-5, 6932:12-13, 6947:22-24 (Jun. 14, 2005). On June 14, 2005, Burwell's ...