United States District Court, D. Columbia.
For AARON PERKINS, also known as, SHORT, Defendant (1:04-cr-00355-CKK-6): Robert Saul Becker, LEAD ATTORNEY, LAW OFFICES OF ROBERT S. BECKER, Washington, DC; Cynthia Katkish, Cynthia Katkish Attorney at Law, Washington, DC.
For USA, Plaintiff (1:04-cr-00355-CKK-6): Barbara E. Kittay, LEAD ATTORNEY, BARBARA E. KITTAY, ESQUIRE, Rockville, MD; Daniel Pearce Butler, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Washington, DC; Thomas Anthony Quinn, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.
AARON PERKINS, Petitioner (1:12-cv-01793-CKK), Pro se.
COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE.
On July 15, 2005, Aaron Perkins (" Perkins" ) was convicted by a jury in this Court of: conspiracy to conduct and participate, directly and indirectly, in the affairs of an enterprise, through a pattern of racketeering activity (" Count I" ), including the armed robbery of the SunTrust Bank located at 5000 Connecticut Avenue, N.W., Washington, D.C., on or about June 29, 2004 (" Racketeering Act 4" ); conspiracy to commit offenses against the United States, that is, armed robberies of banks the deposits of which were then insured by the Federal Deposit Insurance Corporation (" Count II" ); armed robbery of the SunTrust Bank on or about June 29, 2004 (" Count XV" ); and using and carrying a firearm during and in relation to a crime of violence on or about June 29, 2004 (" Count XVI" ). Presently before the Court is Perkins' pro se  Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. 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 Perkins' conviction and sentence at this time. Accordingly, the Court shall DENY Perkins'  Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence.
On August 3, 2004, a federal grand jury indicted Perkins and six other codefendants in connection with a string of bank robberies that occurred in the District of Columbia and Maryland. Indictment (Aug. 3, 2004). The United States Court of Appeals for District of Columbia Circuit (" D.C. Circuit" ) described the factual scenario:
[Perkins and his codefendants] indulged in a violent crime spree throughout the District of Columbia metro area that lasted for nearly a year and a half. Appellants, who began by cultivating and selling marijuana, evolved into a ring that committed armed bank robberies, using stolen vehicles to travel to the targeted banks and make their escapes. By the summer of 2004, the robbers had developed a signature style. The gang wore bullet-proof vests, masks, and gloves, and relied on superior fire power, preferring to use military weapons like AK-47s instead of handguns because they surmised the metropolitan police " wouldn't respond" when Appellants " robb[ed] banks with assault weapons." The gang made use of several stolen vehicles, strategically placed along the get-away-route, for each robbery. The robbers would serially abandon the vehicles, often torching them in an attempt to destroy any forensic evidence that might be left behind.
United States v. Burwell, 642 F.3d 1062, 1064-65, 395 U.S.App.D.C. 241 (D.C. Cir. 2011) (internal citation omitted). The matter proceeded to trial in this Court, and Perkins was tried alongside five other codefendants. On July 15, 2005, a jury convicted Perkins on all four counts upon which he was charged in the indictment. Verdict Form, ECF No. .
On May 2, 2006, this Court sentenced Perkins to 57 months of imprisonment under Counts I, II, and XV to run concurrently to each other. The Court also sentenced Perkins to 30 years of imprisonment on Count XVI to run consecutively to Counts I, II, and XV. See Judgment in a Criminal Case at 2, ECF No. . Perkins filed a timely appeal of his conviction and on April 29, 2011, the D.C. Circuit affirmed Perkins' conviction in a published opinion. United States v. Burwell, 642 F.3d 1062, 395 U.S.App.D.C. 241 (D.C. Cir. 2011), aff'd in part en banc, 690 F.3d 500, 402 U.S.App.D.C. 193 (D.C. Cir. 2012). Perkins filed a petition for writ of certiorari which was denied by the Supreme Court of the United States. United States v. Perkins, __ U.S. __, 132 S.Ct. 537, 181 L.Ed.2d 376 (2011). Perkins currently is serving his sentence.
Pending before the Court is Perkins' Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. Perkins' motion is premised on ineffective assistance of counsel claims related to his trial counsel, Bravitt Cola Manley, Jr., and his appellate counsel, William Francis Xavier Becker. Specifically, Perkins claims that his trial counsel rendered him ineffective assistance by: (1) failing to request an informant jury instruction at trial; (2) failing to raise a Confrontation Clause challenge to certain evidence at trial; (3) failing to properly advise Perkins during plea negotiations prior to trial; (4) failing to raise a multiplicity challenge to Counts I and II prior to trial. Further, Perkins asserts that his appellate counsel rendered him ineffective assistance by failing to raise the issue of juror misconduct and juror bias on appeal.
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, 102 S.Ct. 1584, 71 L.Ed.2d 816 (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, 118 S.Ct. 1604, 140 L.Ed.2d 828 (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, 381 U.S.App.D.C. 259 (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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (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, 562 U.S. 86, 105, 131 S.Ct. 770, 178 L.Ed.2d 624 (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, 106 S.Ct. 2574, 91 L.Ed.2d 305 (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. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.
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-Lindsay, 572 F.Supp.2d 144, 166 (D.D.C. 2008), appeal dismissed, No. 08-3089, (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 F.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, 295 U.S.App.D.C. 7 (D.C. Cir. 1992), cert. denied, 506 U.S. 915, 113 S.Ct. 322, 121 L.Ed.2d 242 (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, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962)).
Based on a thorough review of the parties' pleadings and the entire record in the criminal proceeding, the Court finds that there is no need for an evidentiary hearing on the instant motion. As explained below, Perkins has not proffered detailed and factual allegations outside of the record such that a hearing is required on the issues raised in his motion. Accordingly, the Court shall render its findings based on the parties' pleadings and the record.
Specifically, Perkins raises five ineffective assistance claims related to his counsel allegedly: (1) failing to request an informant jury instruction at trial; (2) failing to raise Confrontation Clause challenges to certain evidence at trial; (3) failing to properly advise Perkins during plea negotiations prior to trial; (4) failing to raise a multiplicity challenge to Counts I and II prior to trial; and (5) failing to raise the issue of juror misconduct and bias on appeal. The Court shall address each claim in turn.
A. Informant Jury Instruction
Perkins first argues that his trial counsel rendered him ineffective assistance by failing to request an " informant jury instruction" with respect to the testimony of Noureddine Chtaini and Antwon Perry, two codefendants turned government witnesses. Specifically, Perkins asserts that at the time that Chtaini and Perry testified they had either entered into plea agreements or had pending criminal charges and, thus, sought to gain a benefit from the government for testifying. Def.'s Memo. at 2. Perkins further argues that " [r]equesting the informant instruction was vital because a general witness credibility instruction was not sufficiently cautionary for informants because of unique issues regarding the incentive that informants have to fabricate information for their own benefits." Id. at 2-3.
Perkins' claim fails because the record reflects that the Court did, in fact, give instructions regarding witnesses with plea agreements and witnesses who are accomplices. The instructions as read during trial follow:
Now, you've heard evidence that Noureddine Chtaini, Omar Holmes and Antwon Perry each entered into separate plea agreements with the government, pursuant to which each of these witnesses agreed to testify truthfully in this case, and the government agreed to dismiss charges against him and/or decline prosecution of charges against him, and bring the witness's cooperation to the attention of the sentencing court on the remaining charges.
The government is permitted to enter into this kind of plea agreement. You in turn may accept the testimony of such a witness and convict the defendant on the basis of this testimony alone, if it convinces you of the defendant's guilt beyond reasonable doubt.
A witness who has entered into a plea agreement is under the same obligation to tell the truth as is any other witness, because the plea agreement does not protect him against prosecution for perjury or false statement, should he lie under oath.
However, you may consider whether a witness who has entered into such an agreement has an interest different from any other witness. A witness who realizes that he may be able to obtain his own freedom or receive a lighter sentence by giving testimony may have a motive to lie.
The testimony of a witness who has entered into a plea agreement should be received with caution and scrutinized with care. You should give the testimony such weight as in your judgment it's fairly entitled to receive.
Now, you've also heard that Omar Holmes and Noureddine Chtaini were accomplices. Accomplices in the commission of a crime are competent witnesses, and the government has a right to use them as witnesses. An accomplice is anyone who knowingly and voluntarily cooperates with, aids, assists, advises or encourages another person in the commission of a crime, regardless of his degree of participation.
The testimony of an alleged accomplice should be received with caution and scrutinized with care. You should give it such weight as in your judgment it's fairly entitled to receive. If the testimony of an alleged accomplice is not supported by other evidence, you may convict the defendant upon that testimony only if you believe that it proves the guilt of the defendant beyond a reasonable doubt.
Tr. 7996:1-7997:16 (Jun. 21, 2005).
Accordingly, Perkins' ineffective assistance of counsel claims fail on this issue because the Court did give the relevant instruction.
B. Confrontation Clause Challenge
Next, Perkins argues that his trial counsel rendered ineffective assistance by failing to raise Confrontation Clause challenges to records and affidavits admitted into evidence at trial related to the Federal Deposit Insurance Corporation (" FDIC" ) insured status of the banks that were robbed, one of the elements of Count II, and to DNA Expert Heather Suebert's testimony " giv[ing] credence to out-of-court statements of non-testifying analysts." Def.'s Memo. ...