United States District Court, District of Columbia
COLLEEN KOLLAR-KOTELLY, District Judge.
On July 15, 2005, Malvin Palmer ("Palmer") 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 Bank of America located at 5911 Blair Road, N.W., Washington, D.C., on or about January 22, 2004 ("Racketeering Act 1") and the armed robbery of the Riggs Bank located at 7601 Georgia Avenue, N.W., Washington, D.C., on or about March 5, 2004 ("Racketeering Act 2"); 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 Bank of America on or about January 22, 2004 ("Count III"); using and carrying a firearm during and in relation to a crime of violence on or about January 22, 2004 ("Count IV"); unlawful possession on or about January 22, 2004, of a firearm by a person convicted of a crime punishable by imprisonment for a term exceeding one year ("Count VI"); armed robbery of the Riggs Bank on or about March 5, 2004 ("Count VII"); using and carrying a firearm during an in relation to a crime of violence on or about March 5, 2004 ("Count VIII"); and unlawful possession on or about March 5, 2004, of a firearm by a person convicted of a crime punishable by imprisonment for a term exceeding one year ("Count IX"). Presently before the Court is Palmer's 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 Palmer's conviction and sentence at this time. Accordingly, the Court shall DENY Palmer's  Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence.
On August 3, 2004, a federal grand jury indicted seven of Palmer's codefendants in connection with a string of bank robberies that occurred in the District of Columbia and Maryland. Indictment (Aug. 3, 2004). On August 5, 2004, Palmer was added as a codefendant in the instant action by virtue of a superseding indictment. Superseding Indictment (Aug. 5, 2004). The United States Court of Appeals for District of Columbia Circuit ("D.C. Circuit") described the factual scenario:
[Palmer 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 (D.C. Cir. 2011). The matter proceeded to trial in this Court, and Palmer was tried alongside five other codefendants. On July 15, 2005, a jury convicted Palmer on all eight counts upon which he was charged in the indictment. Verdict Form, ECF No. .
On May 12, 2006, this Court sentenced Palmer to 92 months of imprisonment on Count I, 60 months of imprisonment on Count II, 92 months of imprisonment on Count III, 92 months of imprisonment on Count VI, 92 months of imprisonment on Count VII, and 92 months of imprisonment on Count IX to run concurrently to each other. The Court also sentenced Palmer to 120 months of imprisonment on Count IV and 300 months of imprisonment on Count VIII to run consecutively to each other and to Counts I, II, III, VI, VII, and IX. See Judgment in a Criminal Case, ECF No. . Palmer filed a timely appeal of his conviction and on April 29, 2011, the D.C. Circuit affirmed Palmer's conviction in a published opinion. United States v. Burwell, 642 F.3d 1062 (D.C. Cir. 2011), aff'd in part en banc, 690 F.3d 500 (D.C. Cir. 2012). Palmer filed a petition for writ of certiorari which was denied by the Supreme Court of the United States. Palmer v. United States, ___ U.S. ___, 132 S.Ct. 329 (2011). Palmer currently is serving his sentence.
Pending before the Court is Palmer's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. Palmer's motion is premised on ineffective assistance of counsel claims related to his trial counsel, Atiq R. Ahmed, and his appellate counsel, Allen H. Orenberg. Specifically, Palmer claims that his counsel rendered him ineffective assistance by: (1) failing to raise a duplicity challenge to the indictment; (2) failing to challenge an alleged constructive amendment to the indictment; and (3) failing to raise a Confrontation Clause challenge to certain evidence.
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.Appx. 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, 562 U.S. 86, 104 (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. 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-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, 506 U.S. 915 (1992)). To warrant a hearing, the ...