United States District Court, District of Columbia
ELLEN SEGAL HUVELLE UNITED STATES DISTRICT JUDGE.
Filing motions pursuant to 28 U.S.C. § 2255, Ernest Glover and Helery Price now seek to vacate their convictions for conspiracy to distribute phencyclidine (“PCP”) on the basis that they have been deprived of their Sixth Amendment right to the effective assistance of counsel at trial and on appeal. (See Glover’s Mot. Under § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, Oct. 28, 2013 [ECF No. 325] (“Glover Mot.”); Price’s Mot. Under § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, Oct. 25, 2013 [ECF No. 329] (“Price Mot.”). The government opposes any relief. For the reasons stated herein, both motions will be denied.
After a jury trial, Glover and Price were each convicted of one count of conspiracy to possess with intent to distribute and to distribute one kilogram or more of PCP, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iv) & 846. (See Judgment (Glover), Aug. 11, 2008 [ECF No. 283]; Judgment (Price), Aug. 11, 2008 [ECF No. 277]). Both were sentenced to imprisonment for life pursuant to the applicable statutory mandatory minimum,  and their convictions were affirmed on appeal. See United States v. Glover, 681 F.3d 411 (D.C. Cir. 2012). A co-defendant, Anthony Suggs, was also tried and convicted by the same jury, and the Court has previously denied his § 2255 motion. See United States v. Suggs, No. 07-cr-0152, 2015 WL 7566658, at *12 (D.D.C. Nov. 24, 2015) (“Suggs § 2255 Opinion”), appeal filed, United States v. Suggs, No. 15-3092 (D.C. Cir. Dec. 30, 2015). That opinion included an extensive background section, see Suggs § 2255 Opinion at *1-3, which the Court will not repeat here, but will proceed directly to the specific claims raised by Glover and Price.
In their § 2255 motions, Glover and Price raise multiple claims of ineffective assistance of counsel. Those claims pertain to the following events: (1) Glover’s counsel’s alleged failure to investigate and learn of his drug addiction; (2) Price’s counsel’s one-day absence from the courtroom during trial due to illness; (3) the admission into evidence of items seized during the June 19, 2007 search of Glover’s residence; (4) the admission into evidence of five conversations recorded by the bug installed in alleged co-conspirator Lonnell Glover’s truck and related testimony about those conversations (the “truck bug” evidence); (5) the admission into evidence of FBI Agent Bevington’s lay opinion testimony explaining conversations recorded by the truck bug and by the wiretap on Suggs’ cell phone; (6) the jury’s exposure to the “overwhelming” odor of PCP; and (7) the Court’s response to a jury note. In addition, both Glover and Price claim that even if no claim succeeds individually, the cumulative impact of counsel’s mistakes entitles them to relief.
Of these claims, two -- the claim based on the response to the jury note and the claim based the jury’s exposure to the odor of PCP -- were also raised by Suggs and were denied for reasons that are equally applicable here. See Suggs § 2255 Opinion, 2015 WL 7566658, at *9-11. The Court will not repeat that analysis here, but rather incorporates by reference the analysis and conclusions set forth in its earlier decision. The remaining claims, including any additional facts necessary for an understanding and analysis of each claim, are addressed below.
I. LEGAL STANDARDS
A. Section 2255
Section 2255 provides that “[a] prisoner in custody under sentence of a court established by Act of Congress 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 . . . or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a). In general, “claims not raised on direct appeal may not be raised on collateral review unless the petitioner shows cause and prejudice, ” but “an ineffective-assistance-of-counsel claim may be brought in a collateral proceeding under § 2255, whether or not the petitioner could have raised the claim on direct appeal.” Massaro v. United States, 538 U.S. 500, 504 (2003).
B. Ineffective Assistance of Counsel
The Sixth Amendment guarantees a criminal defendant the right to the effective assistance of counsel at trial and on appeal. Strickland v. Washington, 466 U.S. 668 (1984). In order to establish ineffective assistance of counsel, a defendant “must show that counsel’s performance was deficient” and “that the deficient performance prejudiced the defense.” Id. at 687. “An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding, if the error had no effect on the judgment.” Id. at 691. Thus, “[f]ailure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim.” Id. at 700. A counsel’s performance is deficient if it “fell below an objective standard of reasonableness” under “prevailing professional norms.” Id. at 688. “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id. at 689. As for establishing prejudice, “[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.” Id. at 694. “When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Id. at 695. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.; see also Harrington v. Richter, 562 U.S. 86, 112 (2011) (A “reasonable probability” means that “[t]he likelihood of a different result must be substantial, not just conceivable.”) In assessing prejudice, courts must determine “if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.” Strickland, 466 U.S. at 696; see also Wong v. Belmontes, 558 U.S. 15, 27 (2009) (“Strickland places the burden on the defendant, not the [government], to show a ‘reasonable probability’ that the result would have been different.” (quoting Strickland, 466 U.S. at 694)).
II. GLOVER’S COUNSEL’S ALLEGED FAILURE TO ADEQUATELY INVESTIGATE HIS CASE
Glover claims that his trial counsel failed to adequately investigate his case because he failed to learn that Glover was a long-time user of and addicted to heroin, and thus he failed to “present this line of available defense.” (Glover Supp. at 38.) A failure to investigate can constitute ineffective assistance of counsel. See Strickland, 466 U.S. at 691 (“counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary”). “[T]o show prejudice, a defendant basing an inadequate assistance claim on his or her counsel's failure to investigate must make ‘a comprehensive showing as to what the investigation would have produced. The focus of the inquiry must be on what information would have been obtained from such an investigation and whether such information, assuming its admissibility in court, would have produced a different result.’” United States v. Askew, 88 F.3d 1065, 1073 (D.C. Cir. 1996) (quoting Sullivan v. Fairman, 819 F.2d 1382, 1392 (7th Cir.1987)). Here, however, the record establishes that Glover’s trial counsel knew of his heroin addiction, and he made use of that fact throughout the trial. (See, e.g., 2/19/08am Tr. at 48 (“My client has had some problems in his life. . . . My client has struggled with an addiction to heroin as well. The evidence is going to show that also.”); see also 2/19/08am Tr. at 50-51 (“But you are going to hear evidence that this man has struggled with a heroin addiction for some time.”).) Thus, Glover’s claim that his counsel failed to investigate and learn of his heroin addiction is clearly contradicted by the record. In addition, to the extent that Glover is suggesting that his trial counsel should have utilized this information differently, he fails to suggest any alternative use, much less one that would render trial counsel’s choice outside the realm of reasonable strategic alternatives. Accordingly, the Court rejects Glover’s claim of ineffectiveness based on an alleged failure to investigate.
III. PRICE’S COUNSEL’S ABSENCE FROM THE COURTROOM
Price claims that his counsel was ineffective because he failed to raise a Sixth Amendment objection to the proceedings that were held while he was absent from the courtroom.
During the trial, Price’s counsel fell ill and was unable to attend court for a day. (Minute Entry, Mar. 3, 2008.) In his absence, no witnesses were called to testify. However, the Court did have the jury go through their exhibit books to make sure they were up-to-date (see 3/3/08am Tr. at 19-37), and, out of the jury’s presence, addressed several issues with counsel for Price’s co-defendants, such as scheduling the remaining witnesses and possible stipulations (id. at 3-19, 37-79). The Court also distributed to counsel who were present its proposed revisions to the conspiracy jury instruction for counsel to review. (Id. at 13-14.) It briefly explained some of the changes it had made and advised counsel that it would “take up substantive objections” to its proposed revision after Price’s counsel was “back.” (Id. at 43.) The next day, when Price’s counsel was back in court, the Court confirmed with all counsel that there was nothing further to address with regard to the jury instructions. (See 3/4/08am Tr. at 66.) Trial testimony finished later that same day, and the Court instructed the jury. After it finished with the instructions, the Court again asked counsel whether there was anything further for it to address, and all counsel responded that there was not. (See 3/4/08pm Tr. at 40.)
The Sixth Amendment guarantees a defendant’s right to have counsel present “at all critical stages of the criminal process.” Iowa v. Tovar, 541 U.S. 77, 80 (2004); see United States v. Cronic, 466 U.S. 648, 653-654 (1984). If a defendant’s counsel is absent at a “critical stage, ” that is a per se Sixth Amendment violation. Woods v. Donald, 135 S.Ct. 1372, 1375-76 (2015); Cronic, 466 U.S. at 659. A “critical stage” is one that “h[olds] significant consequences for the accused.” Bell v. Cone, 535 U.S. 685, 696 (2002); see also Van v. Jones, 475 F.3d 292, 313 (6th Cir. 2007) (critical stage if “there was a reasonable probability that [the defendant’s] case could suffer significant consequences from his total denial of counsel at the stage”).
Price contends that his counsel was absent at a “critical stage” because “substantive issues were discussed, ” in particular the Court’s proposed revisions to the conspiracy instruction. (Price Mot. at 23.) A close review of the record confirms that Price’s counsel was not absent for a “critical stage” of the proceedings. As the transcript from that date confirms, the Court was well-aware of the importance of not addressing any substantive issues that pertained to Price in the absence of Price’s counsel. (See, e.g., 3/3/08am Tr. at 13 (“I can’t[, ] obviously[, ] proceed without [Price’s counsel].”); id. at 54-55 (“I can’t take it up without him.”).) More importantly, it also confirms that the discussion that took place that day in court pertaining to the conspiracy instruction or to any other matter was not substantive. Finally, Price’s counsel had ample opportunity, when he returned to court the following day, to raise objections to the conspiracy instruction, but he did not do so. See Van v. Jones, 475 F.3d at 313 (“perhaps the best way” of determining whether a proceeding is a critical stage is “to ask whether [the defendant] had any opportunity, subsequent to the [proceeding], to recover or exercise whatever privilege he lost at the hearing”). Accordingly, as Price was not deprived of counsel at a critical stage of the proceedings, there was no Sixth Amendment violation.
IV. EVIDENTIARY CLAIMS
The three remaining claims of ineffective assistance all pertain to evidence that defendants contend should not have been admitted at trial: the items seized during the search of Glover’s residence; portions of Agent Bevington’s lay opinion testimony; and the truck bug evidence. To prevail on an ineffectiveness claim premised upon counsel’s failure to file a motion to suppress or to object to the admission of evidence at trial, a defendant must at a minimum establish that the evidence was, in fact, wrongfully admitted. See, e.g., United States v. Wood, 879 F.2d 927, 934 (D.C. Cir. 1989); see also Kimmelman v. Morrison, 477 U.S. 365, 375 (1986). Accordingly, the Court will consider first whether any of the challenged evidence should have been excluded and, if any of the evidence was inadmissible, whether its admission was prejudicial to Glover or Price.
A. ADMISSIBILITY OF EVIDENCE SEIZED DURING THE SEARCH OF GLOVER’S RESIDENCE
On June 19, 2007, the police conducted a search of Glover’s residence. During that search, it seized a number of items, including cash, a digital scale, a $1 bill with heroin on it, little baggies (one with heroin in it), two shoe boxes filled with small glass bottles and tops, two turkey basters, two eye droppers, a juice bottle with 178.1 grams of PCP; 2 vanilla extract bottles containing 6.2 grams of PCP, two funnels, a turkey baster, a shotgun, a rifle, and boxes of ammunition. No motion to suppress was filed, and the seized items were introduced into evidence at trial. (See 2/21/08pm Tr. at 52-72 (testimony of ...