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United States v. Bailey

United States District Court, District of Columbia

September 14, 2016



          REGGIE B. WALTON United States District Judge.

         On December 22, 2006, the Court sentenced the defendant in this criminal matter to a term of life imprisonment after he was found guilty by jury verdict of Unlawful Possession with Intent to Distribute 500 Grams or More of Cocaine. Judgment in a Criminal Case ("Judgment") at 1-2, ECF No. 572. Currently before the Court is the defendant's pro se petition to vacate the Court's sentence pursuant to 28 U.S.C. § 2255 (2012), in which he asserts several claims of ineffective assistance of trial and appellate counsel and requests an evidentiary hearing. See Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence [] ("Def.'s Mot."), ECF No. 922. In addition, the defendant contends that he is entitled to sentencing relief in accordance with the Supreme Court's opinion in Johnson v. United States, ___U.S.___, ___, 135 S.Ct. 2551, 2563 (2015). See Movant's Supplemental/Amended Pleadings in Support of Petition for Writ of Habeas Corpus Pursuant to Title 28 U.S.C.A. § 2255 ("Def.'s Supp."), ECF No. 949.[1] Upon careful consideration of the defendant's submissions, the Court concludes that it must deny the defendant's petition in its entirety.[2]

         I. BACKGROUND

         The defendant appealed his conviction and sentence to the United States Court of Appeals for the District of Columbia Circuit on December 27, 2006. Notice of Appeal at 1, ECF No. 564. Specifically, the defendant raised the following claims: (1) that "the district court erred in denying his motion to suppress the drugs seized from his car, " United States v. Bailey, 622 F.3d 1, 2 (D.C. Cir. 2010);[3] and (2) that the Court erred in its "application of the career offender provision of the Sentencing Guidelines, " Id. at 10. The Circuit held that this Court "did not err in ruling there was articulable suspicion to stop [the defendant] and properly denied the motion to suppress, " Id. at 7, but remanded the case to this Court "for consideration of [the defendant's policy objection to the career offender provision of the U.S. Sentencing Guidelines, § 4B 1.1, in view of Kimbrough v. United States, 552 U.S. 85 (2007), which was decided after [the defendant's sentencing, " Id. at 3. The Circuit also instructed this Court to address the defendant's claims that were raised during pretrial proceedings that "false testimony was presented to the grand jury" by Detective Steven Manley, "and if so, whether it had a spillover effect on the grand jury's determinations." Id. at 11-12.

         On remand, the Court again concluded at resentencing "that the within-Guidelines sentence was appropriate in light of [the defendant]'s significant criminal history and the effects of [the defendant's drug dealing on the community." See United States v. Bailey, 544 F.App'x 1, 1 (D.C. Cir. 2013). The Court also addressed allegations raised by the defendant about "allegedly false grand jury testimony, " noting that "the Court has confirmed the government's earlier representation that no false testimony was presented to the grand jury." Id. at 2. The defendant again appealed his conviction and sentence to the Circuit, both of which were affirmed. Id. Pertinent to the defendant's motion here, the Circuit noted that the defendant for the first time in his appeal contended that "a second police officer, Officer Franchak, provided false testimony to the grand jury." Id. The Circuit summarily rejected this argument, explaining that:

Any error by the District Court in declining to address that issue would be harmless, for two reasons. First, the supposed misstatements cited by [the defendant] are immaterial. Second, the jury's decision to convict [the defendant] necessarily established that probable cause to arrest and indict [the defendant] did exist.

Id. (citing United States v. Mechanik, 475 U.S. 66 (1986)).


         Under 28 U.S.C. § 2255, a person in custody pursuant to a federal court sentence may "move the court which imposed the sentence to vacate, set aside[, ] or correct the sentence, " on grounds that "the sentence was imposed in violation of the Constitution or laws of the United States, ... 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). If the reviewing court finds that any grounds requiring relief under § 2255(a) are satisfied, it "shall vacate and set the judgment aside[, ] and [it] shall [also] discharge the prisoner[, ] resentence him[, ] grant a new trial[, ] or correct the sentence as may appear appropriate." Id. § 2255(b).

         III. ANALYSIS

         In his petition, the defendant claims that he was provided ineffective assistance of counsel by both his trial and appellate attorneys (Counts One, Two, and Three), see Def.'s Mot. at 5-9; Def.'s Mem. at 18-34, that he was subjected to Fourth Amendment violations at the hands of law enforcement (Counts Four, Five, Six, and Seven), Def.'s Mot. at 9, 10(a); Def.'s Mem. at 35-53, that law enforcement officers testified improperly during his trial (Count Eight), Def.'s Mot. at 10(a); Def.'s Mem. at 54-56, that law enforcement officers improperly interrogated him in violation of the requirements of Miranda v. Arizona, 384 U.S. 436 (1966) (Counts Nine and Ten), Def.'s Mot. at 10(a); Def.'s Mem. at 57-62, and that the cumulative impact of the purported errors at trial warrants reversal of his conviction (Count Eleven), Def.'s Mot. at 10(b); Def.'s Mem. at 63.[4] The defendant also contends that he is entitled to sentencing relief because of intervening controlling case law. See generally Def.'s Supp. at 4.

         A. The Defendant's Claims of Ineffective Assistance of Counsel

         "To prevail on an ineffective assistance of counsel claim, a defendant must demonstrate both deficient performance [by his counsel] and prejudice to him [because of counsel's deficient performance]." United States v. Williams. 488 F.3d 1004, 1010 (D.C. Cir. 2007) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). Counsel's performance is deficient only where counsel "made errors so serious that [he or she] was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687; see also United States v. Abney, 812 F.3d 1079, 1086 (D.C. Cir. 2016) ("Counsel's performance is 'deficient' when his representation falls below an objective standard of reasonableness." (citing United States v. Rodriguez, 676 F.3d 183, 189 (D.C. Cir. 2012))). In other words, counsel must provide "reasonably effective assistance, " Strickland, 466 U.S. at 687, measured by "prevailing professional norms, " Id. at 688; see also Massaro v. United States, 538 U.S. 500, 505 (2003) ("[A] defendant claiming ineffective counsel must show that counsel's actions were not supported by a reasonable strategy ...."). When entertaining claims of ineffective assistance of counsel, "[j]udicial scrutiny of counsel's performance must be highly deferential, " Strickland, 466 U.S. at 689, and courts "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, " Id. Prejudice occurs if there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A "reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.

         As grounds for his claim that he was provided ineffective assistance by his trial attorney, the defendant contends that counsel:

inexplicably failed to perform an all-inclusive examination of the facts and circumstances surrounding the traffic stop of [the defendant], [and] had he . . . completed this task as required he would have realized the alleged Kilo of cocaine encased in a brown paper bag and wrapped-up in duct tape was supposedly situated on the front seat of the vehicle [the defendant] was operating, not the rear floorboard as [trial counsel] incorrectly sets forth in his motion [to suppress].

Def.'s Mem. at 18 (emphases omitted). Additionally, the defendant contends that counsel inaccurately stated in that motion "that an officer began to poke at the package[, ] penetrating it with a sharp object, " contradicting statements by the police that "a corner of the alleged package was cocked, open[, ] and visible to the police officers." Id. at 19 (emphases omitted). But as the Circuit explained on appeal, "the officers had probable cause to search [the defendant's] car because, as he concedes, a package containing cocaine was in plain view on the passenger's seat, " Bailey, 622 F.3d at 3 (citing United States v. McKie, 951 F.2d 399, 402 (D.C. Cir. 1991), and thus, this Court "properly denied the [defendant's] motion to suppress, " Id. at 7. Therefore, probable cause existed to search the defendant's vehicle at the time of his arrest, even according to the facts as now alleged in the ...

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