United States District Court, District of Columbia
COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE.
Presently before the Court is the sole remaining claim in Bryan Burwell’s  Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence, his ineffective assistance of counsel claim related to his trial counsel’s alleged failure to interview witness Reon Holloway regarding his knowledge of Burwell’s whereabouts on May 27, 2004, and to question him about this when Holloway testified at trial. See Memo. Op. (Jan. 15, 2015), at 43-46, ECF No. ; Memo. Op. (Mar. 12, 2015), at 4-8, ECF No. . The Court denied all of Burwell’s other claims in his § 2255 motion pursuant to its Orders and accompanying Memorandum Opinions issued on January 15, 2015, and March 12, 2015, which the Court INCORPORATES herein. The Court ordered additional briefing and held an evidentiary hearing on December 1, and 3, 2015, regarding the remaining claim in Burwell’s § 2255 motion. Upon consideration of the pleadings,  the testimony provided during the evidentiary hearing, the relevant legal authorities, and the record as a whole, the Court finds no grounds for setting aside Burwell’s conviction and sentence. Accordingly, Burwell’s  Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence is DENIED in its entirety for the reasons described herein.
The Court fully set out the procedural history of this matter in its Memorandum Opinion of January 15, 2015. Memo. Op. (Jan. 15, 2015), at 1-4. As such, the Court shall focus on the facts relevant to Burwell’s narrow remaining ineffective assistance of counsel claim. In the instant § 2255 motion, Burwell characterizes his ineffective assistance of counsel claim, raised against Anthony D. Martin, his trial counsel, as follows:
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 . . . .
Def.’s Memo. at 18. The Court issued an Order holding in abeyance this claim and directing Burwell to file a sworn statement identifying the witness who was “key to connection of DNA on one of the flash jackets” and provide a proffer of what testimony that witness would have provided at trial. Order (Jan. 15, 2015). Burwell filed an Affidavit in response, indicating that this 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” (“flak jacket”) 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 filed in response to the Court’s Order identified Holloway not just as a witness who could testify regarding the camouflage vest, but also as a witness who could provide him with an alibi for the date of one of the bank robberies. Holloway did not provide any alibi testimony at trial. Specifically, Burwell indicates in his Affidavit:
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. Burwell’s whereabouts on this date is relevant because he was charged in the indictment with Racketeering Act 6 under Count I (RICO conspiracy charge), the May 27, 2004, robbery of the Chevy Chase Bank in Chillum, Maryland. Burwell was not separately charged with any counts related solely to the May 27, 2004, bank robbery. See Superseding Indictment (Feb. 15, 2005), ECF No. .
The Government provided an Affidavit from Burwell’s trial counsel, Anthony D. Martin, addressing the arguments raised by Burwell with respect to this issue. In his Affidavit, Martin explains:
During our numerous discussions, the only alibi witness that Mr. Burwell ever mentioned was Brenda Ramirez. Mr. Reon Holloway was called to offer an explanation as to the presence of Mr. Burwell’s DNA on the bulletproof vest that was linked to the bank robberies. Mr. Burwell knew the scope of my intended examination of Mr. Holloway given my June 7th, 2005 letter. Indeed, a letter from Mr. Burwell to Mr. Holloway regarding his testimony mentions nothing about Holloway offering an alibi.
Furthermore, there was no communication from Mr. Burwell to either me or my investigator suggesting that Mr. Holloway was an alibi witness. Notwithstanding my reluctance to have Mr. Holloway testify and advisement that he not be called, Mr. Burwell insisted. Moreover, my efforts to personally find and meet with Mr. Holloway and contact his attorney are well documented in the record of trial. Finally, at no time did I ever tell Mr. Burwell, that I had “messed up.”
Martin Affidavit at 2 (citations and emphasis omitted). Given the factual dispute between Burwell and Martin, the Court appointed counsel to represent Burwell in relation to this remaining ineffective assistance of counsel claim in his § 2255 motion, and set this matter for an evidentiary hearing in order to have the most complete record on which to rule. The Court held the evidentiary hearing on December 1, and 3, 2015, during which Holloway, Burwell, and Martin testified.
Given the scope of its inquiry, the Court shall briefly address the record at trial surrounding Holloway’s testimony. 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, Martin also informed the Court of the following with relation to Holloway:
This witness is being called against my advice. Mr. Burwell wants this witness called. And I have spoken to Mr. Holloway’s attorney twice. My understanding is Mr. Samad has advised Mr. Holloway not to testify. And I have also sent my investigator out no less than twice. And Mr. Holloway, as far as I can tell, is evading him.
I know he has a pending case in Superior Court. I’ve never spoken to Mr. Holloway, so that’s another reason I don’t want to call him. I have no clue what he’s going to say when he takes the stand.
Id. at 6932:2-15. While Martin indicated that he had not spoken with Holloway, Jones, the defense investigator, indicated on the record that he had interviewed Holloway in April or early May. Id. at 6945:14-15.
With regard to Holloway’s representation by Samad, the Court indicated on the record that it would need to know the basis for Samad’s objection to Holloway testifying in the instant action. The Court indicated that if Samad was asserting a Fifth Amendment claim on behalf of Holloway, then the Court would require Holloway to be represented by counsel in relation to this issue. Id. at 7040:20-7041:13, 7041:18-24, 7042:9-25. The Court further noted that it would conduct an inquiry on the record with regard to the Fifth Amendment issue if it was raised. Id. at 7042:9-25. On the morning of June 15, 2005, Holloway was transported to Court and the Court located Samad who was appearing across the street at Superior Court. Tr. 7209:11-7210:2 (Jun. 15, 2005). When Samad arrived in Court, the Court took a recess to allow Samad and Martin to speak to each other and with Holloway, who was in the cellblock. Id. at 7270:6-7272:19. After the recess, Martin indicated that there was no Fifth Amendment issue with regard to the testimony of Holloway. Id. at 7273:10-14. After the Court took a break for lunch on June 15, 2005, the Court indicated that it would prefer to put Holloway on the stand that day so that he did not need to be transported back to Court on the following day since he was in a wheelchair. Id. at 7312:23- 7313:1. However, later in the day, the Court indicated that it was unlikely that they would reach Holloway’s testimony that day, and that the Court would issue a come-up for the following day to facilitate Holloway’s transport to Court from CTF. Id. at 7366:6-15. Holloway was the first witness to testify on the morning of June 16, 2005. See Tr. 7461:12-17, 7462:21-25 (Jun. 16, 2005). Holloway’s testimony only addressed the flak jacket and there was no discussion of Burwell’s whereabouts on May 27, 2004. Tr. 7462:21-7468:6 (Jun. 16, 2005).
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, 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.
At the evidentiary hearing, the witnesses presented conflicting testimony regarding Martin’s knowledge that Holloway could present alibi testimony for the May 27, 2004, bank robbery. In light of the factual dispute between Burwell and Martin, the key issue before the Court is whether Martin knew that Holloway could present alibi testimony on Burwell’s behalf for the May 27, 2004, date. In reaching its decision on this issue, the Court shall discuss the pertinent evidence before it. The Court shall first review the conflicting accounts provided by the witnesses at the evidentiary hearing. The Court shall then discuss the documents created by Burwell and Martin prior to and during trial. The Court shall next turn to Burwell’s account of Martin’s explanation for not eliciting Holloway’s alibi testimony. The Court shall then address Martin’s and Jones’ dealings with Holloway prior to him testifying at trial. The Court shall also discuss the post-conviction pleadings filed on Burwell’s behalf and by Burwell. Finally, the Court shall address a separate issue raised by Burwell in a supplemental brief submitted pro se on February 12, 2016, regarding the Supreme Court of the United States’ recent decision in Johnson v. United States, 135 S.Ct. 2551 (2015).
For the reasons described herein, the Court finds that Martin was unaware that Holloway could present alibi testimony for Burwell on May 27, 2004, up until the instant proceedings on Burwell’s § 2255 motion. As such, Burwell’s ineffective assistance of counsel claim fails because Martin’s performance is not deficient for failing to investigate information that was never provided to him.
A. Two accounts provided by the witnesses at the evidentiary hearing
At the evidentiary hearing, two conflicting accounts of the information provided to Martin leading up to trial regarding Holloway’s potential alibi testimony were advanced - one account based on the testimony of Burwell and Holloway and one account based on Martin’s testimony. The Court shall address each account in turn.
1. Burwell’s and Holloway’s account
Burwell and Holloway provided largely consistent testimony regarding the incidents that occurred on May 27, 2004. According to both of them, Burwell came over to Holloway’s house sometime between 9:30 a.m. and 10:00 a.m. on May 27, 2004, and the two were together outside in the neighborhood continuously until late in the evening or very early the next morning. Holloway indicated that he came over to Burwell’s house before 10:00 a.m., which is the time that the liquor store in the neighborhood opens. Tr. 29:3-14 (Dec. 1, 2015).
Burwell testified that he told both Jones and Martin that Holloway should be called as an alibi witness on his behalf for the May 27, 2004, bank robbery. Id. at 40:19-22. While Burwell could not remember the specific date or time frame, he indicated that he identified Holloway as an alibi witness while he was working with Martin to build his defense theory. Id. at 48:10-14. During the same meeting, Burwell testified that he believes he told Martin both about Holloway’s ability to testify regarding the flak jacket and Burwell’s whereabouts on the date of the first bank robbery, as well as about another alibi witness, Brenda Ramirez, who could testify as to his whereabouts on the date of the second bank robbery. Id. at 53:17-56:12.
Holloway similarly testified that he told both Jones and Martin about his ability to serve as an alibi witness for Burwell. Id. at 9:6-11, 11:9-12:1. Specifically, Jones met with Holloway on two occasions, once briefly at his home and once at the Correctional Treatment Facility (“CTF”) for 30 to 45 minutes. Id. at 7:13-16, 8:5-16, 15:8-13, 19:11-14. During both meetings, Holloway told Jones about his ability to testify regarding Burwell’s whereabouts on May 27, 2004, and the two also discussed the flak jacket. Id. at 15:22-16:24, 20:9-11.
Holloway also indicated that he met with Martin for about ten minutes in the bullpen in this courthouse on the day that he testified. Id. at 9:18-25, 10:10-14. At that meeting, Holloway and Martin discussed the same things that Holloway told Jones, including the flak jacket and Holloway’s information about Burwell’s whereabouts on May 27, 2004. Id. at 10:18-25. Martin specifically asked Holloway whether he could testify that Holloway and Burwell were together on May 27, 2004. Id. at 11:9-12. Holloway told Martin that he could testify to that and had he been asked on the stand, he would have testified that he and Burwell were together continuously from 9:30 or 10:00 a.m. for the remainder of the day. Id. at 11:1-12:1, 12:15-13:16. Based on Holloway’s testimony, it is reasonable to conclude that by his account, Martin knew that Holloway spoke with Jones about his potential alibi testimony. See Id. at 10:21-23 (“He said, you know, you spoke with my investigator and we’re going to go over that same things that you guys spoke about pertaining to the vest and his whereabouts.”).
During the evidentiary hearing, both Burwell and Holloway provided specific details about events occurring on May 27, 2004, that both indicated they did not provide to either Jones or Martin. Id. at 16:20-19:8, 79:2-81:8. Specifically, 10 to 20 other people were outside in the neighborhood with Burwell and Holloway at various times during the day and, on that day, Burwell and Holloway got Burwell’s father, Buster Burwell, drunk because it was almost his birthday. Id. at 17:2-18:16, 80:1-81:12. Burwell indicated that he could not list the names of the other people who were outside with them that day. Id. at 80:7-81:8. Moreover, he indicated that he did not tell Martin about ...