United States District Court, District of Columbia
B. WALTON United States District Judge.
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.
Upon careful consideration of the defendant's
submissions, the Court concludes that it must deny the
defendant's petition in its entirety.
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); 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.
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)).
STANDARD OF REVIEW
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).
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
The defendant also contends that he is entitled to sentencing
relief because of intervening controlling case law. See
generally Def.'s Supp. at 4.
The Defendant's Claims of Ineffective Assistance of
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
grounds for his claim that he was provided ineffective
assistance by his trial attorney, the defendant contends that
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