United States District Court, District of Columbia
ELLEN SEGAL HUVELLE UNITED STATES DISTRICT JUDGE.
Before the Court is Abdur Mahdi’s motion to vacate, set aside, or correct his criminal conviction and sentence pursuant to 28 U.S.C. § 2255. (Mahdi Mot. to Vacate [ECF No. 856].) The gravamen of the motion pertains to his conviction for the November 17, 1999 murder of Curtis Hattley, which Mahdi now claims was committed by a former associate named Clarence “Radar” Howard. For the reasons set forth herein, the motion is denied as to all claims, including three claims raised for the first time in Mahdi’s post-hearing briefs. Furthermore, because Mahdi has failed to make a substantial showing of the denial of a constitutional right, see 28 U.S.C. § 2253(c)(2), no certificate of appealability shall be issued.
Beginning in April 2003, Abdur Mahdi was tried on forty-nine D.C. and federal counts, including racketeering, narcotics distribution, perjury, obstruction of justice, assault with a dangerous weapon, and first degree murder. (See Retyped Indictment, July 14, 2003 [ECF No. 444].) On July 31, 2003, the jury found him guilty on forty-eight of those counts. (See Judgment of Conviction, Dec. 22, 2003 [ECF No. 580].) On appeal, Mahdi argued that (1) his indictment charged the same offense in more than one count; (2) the government failed to give requisite notice before introducing evidence of uncharged conduct; (3) various evidentiary rulings prevented him from mounting an effective defense; (4) his VICAR conviction violated the Commerce Clause; and (5) resentencing was necessary in order to merge certain D.C. counts into their corresponding federal counts. See generally United States v. Mahdi, 598 F.3d 883 (D.C. Cir. 2010). The Court rejected all but the last argument, as the parties agreed that merger was appropriate on six narcotics possession and possession with intent to distribute counts. See Id. at 898. As such, Mahdi presently stands convicted of forty-two counts: twenty-four federal counts and eighteen counts under D.C. law. For these offenses, Mahdi was sentenced to multiple concurrent life sentences, followed by one seven-year and five twenty-five-year consecutive sentences for the six Federal Firearm Convictions. (Judgment of Conviction, Dec. 22, 2003.)
Following the Supreme Court’s denial of his petition for certiorari, see Mahdi v. United States, 131 S.Ct. 484 (2010), Mahdi timely filed the pending pro se motion. It raised four claims for relief: (1) that Mahdi received ineffective assistance of counsel, because his trial counsel failed to call an eyewitness (Jacob Vonderpool) who would have testified that someone other than Mahdi murdered Curtis Hattley; (2) that the government provided cooperating witnesses with special treatment in prison, and that the prosecution’s failure to turn over this impeachment evidence deprived him of his Fifth Amendment right to due process; (3) that the Narcotics Conspiracy Conviction and five of the six Federal Firearm Convictions violated the Fifth Amendment’s Double Jeopardy Clause; and (4) that the prosecution’s decision to charge him in a single indictment with both D.C. and federal offenses violated the Assimilative Crimes Act, 18 U.S.C. § 13, and deprived him of his Fifth Amendment right to equal protection.
Shortly after that filing, Mahdi submitted affidavits from three witnesses. First, Jacob Vonderpool claimed that he had witnessed the Hattley murder while walking to a store with a friend, and that the real shooter was a man named Radar. (Vonderpool Aff. [ECF No. 858-1] ¶¶ 1-2.) Vonderpool also asserted that he provided this information to both Mahdi’s investigator Rebecca McMahon and trial counsel Bernard Grimm, and that he never heard back after Grimm promised to follow up and to likely call him as a trial witness. (See Id. ¶¶ 3-5.) Finally, he claimed that he did not inform Mahdi of any of this until December 2010. (Id. ¶ 5.) An affidavit was filed by Mahdi’s brother, Musa, who remains incarcerated after pleading guilty (as did three other Mahdi brothers) to various crimes arising from the Mahdi narcotics operation. (See Musa Mahdi Aff. [ECF No. 858-2]; Plea Agreement, Feb. 21, 2003 [ECF No. 287].) Musa’s affidavit claimed that Abdur Mahdi was not present when Hattley was shot and that the real shooter was “Radar aka (Clarence).” (Id.) Finally, another convicted member of the Mahdi organization, Antoine Tabron, submitted an affidavit claiming that he received special privileges from the government while in prison, in exchange for information about Mahdi. (Tabron Aff. [ECF No. 858-3].) Tabron did not testify at trial or at the evidentiary hearing.
Following the parties’ initial briefing, the Court found that only Mahdi’s claim of ineffective assistance of counsel raised sufficient factual questions to require an evidentiary hearing, and it denied the other three claims. See United States v. Mahdi, 999 F.Supp.2d 236, 250 (D.D.C. 2013). The Court also appointed Mahdi’s appellate counsel to represent him at the evidentiary hearing. (See Nov. 25, 2013 Order [ECF No. 881].)
Prior to the hearing, Mahdi moved for discovery on both the ineffective assistance of counsel claim and the previously denied Brady/Giglio claim regarding witness favors. (See Mot. for Discovery [ECF No. 899].) In support of this motion, he submitted an affidavit from Joseph Hooker, a Mahdi co-defendant who testified against him at trial. (See Hooker Aff. [ECF No. 904-1].) In it, Hooker stated that the government brought food to him during debriefing sessions, asking what he would like the next day, in exchange for incriminating information about Mahdi. (See Id. ¶¶ 4-6.) He also claimed to have found at least two packages in his cell containing a cellphone and cigarettes. (Id. ¶ 22.) Next, Hooker recanted his trial testimony implicating Mahdi in the shooting of Curtis Hattley, claiming that the real shooter was “Clarence Howard, who [people] called Radar.” (See Id. ¶¶ 7-8, 11, 23-24.) Hooker stated that he only implicated Mahdi because that was what the government wanted, and that he chose not to implicate Radar because of his fear that Radar would kill him. (See Id. ¶¶ 7, 14-20.) Mahdi thus argued that Hooker’s affidavit buttressed Vonderpool’s account of the shooting, making it more likely that Mahdi received ineffective assistance of counsel and was actually innocent of the Hattley murder. (See Mahdi Reply Br. [ECF No. 904] at 6-7.)
Based on the Hooker affidavit, the Court vacated its prior denial of Mahdi’s Brady/Giglio claim regarding undisclosed gifts to government witnesses, at least as to witnesses relating to the Hattley murder. (See Nov. 24, 2014 Order [ECF No. 905] at 2 n.2.) It also found that Mahdi had demonstrated good cause to conduct discovery into his ineffective assistance of counsel claim, identifying certain categories of evidence that should be disclosed. (See Id. at 1-2.) The government’s subsequent May 19, 2015 production included two debriefing memos written by AUSA Michael Brittin, who was the original prosecutor on the case, regarding his pre-trial interviews with two witnesses to the Hattley murder-Hooker and Zakki Abdul-Rahim. (See May 19, 2015 Discovery Letter [ECF No. 922-1] ¶¶ (g), (m).) Mahdi did not mention these memos at the evidentiary hearing, nor did he attempt to enter them into evidence.
The evidentiary hearing took place on November 16-18, 2015. The Court heard testimony on the ineffective assistance claim from Rebecca McMahon, Jacob Vonderpool, Joseph Hooker, and Bernard Grimm. Vonderpool and Hooker testified to the same general topics addressed in their affidavits-their observation of Radar as he shot and killed Curtis Hattley, and for Vonderpool, his attempts to convey this information to Mahdi’s defense team. (See Nov. 16, 2015 Tr. [ECF No. 939] at 51:23-155:15 (Vonderpool); id. at 165:13-181:13; Nov. 17, 2015 Tr. [ECF No. 940] at 11:24-116:22 (Hooker).) Grimm and McMahon testified that they could not recall whether Vonderpool offered them information about the Hattley murder, but they seriously questioned certain aspects of Vonderpool’s account and, as will be discussed, provided strong circumstantial evidence that Vonderpool did not make any such offer. (See Nov. 16, 2015 Tr. at 10:11-47:14 (McMahon); Nov. 18, 2015 Tr. [ECF No. 941] at 4:2-40:23 (Grimm).)
The Court also heard testimony on the Brady/Giglio claim from Hooker, Ken Mansfield and Paul Moloney. Mansfield, a former DOJ paralegal, testified that the government provided Hooker with food at debriefings, but nothing fancier than a fast-food sandwich or drink. (See Nov. 17, 2015 Tr. at 136:22-137:12.) He also testified that he never provided Hooker with a cellphone or cigarettes, nor had he seen or heard of anyone else from the government doing so. (Id. at 137:13-138:1.) Moloney, a DEA agent, could not remember whether he brought Hooker food during debriefings, but he did testify that he never brought Hooker a cellphone or cigarettes and had never seen anyone else from the government doing so. (Id. at 148:17-149:9.)
Following the testimony of Mansfield and Moloney, and given Hooker’s testimony that he had no idea where the cellphones and cigarettes came from (id. at 73:4-19), the Court found nothing to tie the government to those gifts and thus substantiate the Brady/Giglio claim. (See Id. at 152:8-154:3.) The Court therefore confirmed with Mahdi’s counsel at the end of the hearing that his only remaining claim was that of ineffective assistance of counsel. (See Nov. 18, 2015 Tr. at 41:22-42:5.) Mahdi’s counsel twice agreed on that point. (See Id. (“THE COURT: The issue is ineffective assistance of counsel relating to the failure to call Vonderpool. MR. BECKER: That’s correct, Your Honor. THE COURT: I mean that’s the only issue that still remains. MR. BECKER: That’s correct.”).)
Following the hearing, both parties submitted proposed findings of fact and conclusions of law, and Mahdi submitted a subsequent response. (See Proposed Findings of Fact and Points and Authorities (“Mahdi Proposed Findings”) [ECF No. 942]; Government’s Proposed Findings of Fact and Conclusions of Law (“Gov’t Proposed Findings”) [ECF No. 944]; Response to Government’s Proposed Findings of Fact and Conclusions of Law (“Mahdi Response”) [ECF No. 945].) Despite his repeated, on-the-record acknowledgement that his only remaining claim involved ineffective assistance of counsel, Mahdi’s filings raised three entirely new claims for relief: (1) that Hooker’s recantation is newly discovered evidence that would produce an acquittal at a new trial (see Mahdi Proposed Findings at 17-18); (2) that the government knowingly elicited false testimony from Hooker in violation of the Fifth Amendment (id. at 14-16); and (3) that the government violated its Brady obligations by failing to disclose the Hooker and Abdul-Rahim debriefing memos written by AUSA Brittin (id. at 16-17).
It is unclear whether these claims are properly before the Court. Mahdi had much of the supporting evidence well in advance of the hearing. (See Hooker Aff. (executed Nov. 17, 2014); Discovery Letter at 1-2 (Brittin debriefing memos disclosed May 19, 2015).) And at the hearing, despite his protestations to the contrary, Mahdi’s counsel attempted to gather evidence that was relevant only to the new claims, unbeknownst to the Court or to government counsel. (See, e.g., Nov. 17, 2015 Tr. at 54:5-55:4.) At no point, however, has Mahdi ever sought to amend his motion to include the new claims. See United States v. Hicks, 283 F.3d 380, 386 (D.C. Cir. 2002) (applying Federal Rule of Civil Procedure 15’s “permissive approach” to the amendment of Section 2255 motions). Nor is it clear that he would be entitled to do so now, given the applicable one-year statute of limitations. See, e.g., 28 U.S.C. § 2255(f); Hicks, 283 F.3d at 387 (amendments sought outside the limitations period are only permissible if they relate back to the earlier, timely motion). However, the government does not argue that Mahdi has procedurally defaulted these claims (see Gov’t Proposed Findings at 17-19), so the Court will proceed to address them on the merits.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. LEGAL STANDARD
Section 2255(a) of the United States Code provides that “[a] prisoner in custody under sentence of a [federal] court . . . claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a). Where the motion is not dismissed prior to service upon the United States Attorney, the court will “determine the issues and make findings of fact and conclusions of law with respect thereto.” Id. § 2255(b). If the court finds that “there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.” Id. However, “Section 2255 is not a substitute for a direct appeal, ” and therefore petitioner must show “a good deal more than would be sufficient [to warrant relief] on a direct appeal.” See United States v. Pollard, 959 F.2d 1011, 1020 (D.C. Cir. 1992). In order to protect the finality of the criminal proceedings, the Court begins with the presumption that Mr. Mahdi “stands fairly and finally convicted.” See United States v. Frady, 456 U.S. 152, 164-66 (1982) (reaffirming “the well-settled principle that to obtain collateral relief a prisoner must clear a significantly higher hurdle than would exist on direct appeal”).
II. INEFFECTIVE ASSISTANCE OF COUNSEL
1. Clarence “Radar” Howard, a former associate of Mr. Mahdi, died of a gunshot wound in Houston, Texas on August 18, 2009. (See Gov’t Hearing Ex. 1.) Sometime later, Mahdi informed Jacob Vonderpool of Radar’s death. (Nov. 16, 2015 Tr. at 109:8-25.) On October 2, 2011, Vonderpool posted a public message on Mahdi’s Facebook page reading “I GOT THAT MOVE IN THE MAKIN 4 U!!” (Gov’t Hearing Ex. 3.) Four days later, Mahdi responded by telling Vonderpool to check his inbox and his email, implying that he did not want the substance of his response to be viewed publicly on his Facebook page. (See id.) Approximately one month after that, Vonderpool signed an affidavit identifying Radar as the murderer of Curtis Hattley. (See Vonderpool Aff. at 2.)
2. The Court finds Vonderpool’s explanation for the Facebook message-that he was referring to donations he had collected on Mahdi’s behalf-to be unconvincing. (See Nov. 16, 2015 Tr. at 147:2-11.) Mahdi’s response directing Vonderpool to his private inbox suggests that the topic was something more sensitive than mere donations. Instead, the close temporal proximity between the Facebook messages and the Vonderpool affidavit raises a reasonable inference that Vonderpool’s message was referring to his affidavit.
3. Mahdi and Vonderpool have a longstanding friendship, dating back to the events that led to Mahdi’s conviction. (See id. at 69:13-70:17.) Although Vonderpool testified that Mahdi was not his drug supplier (id. at 143:21-25), Hooker testified to the contrary at trial and during his plea (see Nov. 17, 2015 Tr. at 105:21-107:17), and Vonderpool implausibly claimed not to know his own supplier (see Nov. 16, 2015 Tr. at 103:12-16). Vonderpool, whose sister was a close friend of Mahdi’s, viewed Mahdi as a “good dude, [who gave] good advice, funny, ” and someone he looked up to “as a role model.” (See Id. at 70:1-17.) In 2013, he posted a picture of Mahdi on his own Facebook page, along with the caption “JUST TALKED 2 MY MAN LASTNIGHT AND HE STILL ON HIS JOKETIME SHIT LIVIN LIFE!!! HE EVEN GIVIN ME MOTIVATION 2 DO BETTER!! #FreeBigChief #MahdiBoyz.” (Gov’t Hearing Ex. 2.)Vonderpool testified at the hearing that he was very loyal and would do whatever he could to help Mahdi, but that he was not lying in his testimony to the Court. (See Nov. 16, 2015 Tr. at 110:19-111:3.)
4. Given their long-time friendship, Vonderpool’s loyalty to his “role model” Mahdi, and his stated desire to help Mahdi, the Court finds that Vonderpool possesses a strong bias in favor of Mahdi.
5. Vonderpool testified that after Mahdi’s conviction, he kept in contact with Mahdi “off and on” via phone and e-mail but never visited him in prison. (Id. at 86:13-87:9.) However, he then admitted on cross examination that he visited Mahdi thirty times in prison between 2003 and 2008, which he attempted to explain away by claiming that he had not understood the question. (Id. at 124:21-126:9.) This discrepancy is not insignificant. Given Vonderpool’s concession, it is clear that he covered up his close relationship with Mahdi when in fact they communicated remotely and met in prison countless times. It undercuts the already-implausible notion that, despite these many communications, Vonderpool waited until December 2010 to announce that he had witnessed a murder for which he believed Mahdi had been wrongfully convicted. Vonderpool testified that he repeatedly tried to tell Mahdi, but “every time [Vonderpool] would try to talk about it, [Mahdi] would shut it down.” (See Id. at 88:23-89:10.) The Court finds it unbelievable that Mahdi could somehow prevent Vonderpool, time and time again, from telling him that he saw Radar shoot Hattley, especially when they were communicating over e-mail. Nor does Vonderpool offer a sufficient explanation as to what changed in December 2010, when he was finally able to convey this information to Mahdi. (See Id. at 86:1-5 (“Finally I mean, Abdur I guess he was maybe ...