MEMORANDUM OPINION
Royce
C. Lamberth United States District Judge
Before
the Court is the Motion Pursuant to 18 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence by a Person in Federal
Custody [ECF No. 1159] by the defendant Gerald Eiland.
Defendant claims ineffective assistance of trial counsel and
requests that this Court vacate, set aside or correct the
sentence imposed on him. Upon consideration of the Motion
[ECF No. 1159], the government's Opposition [ECF No.
1169], the entire record herein, and applicable law, the
Court DENIES the defendant's Motion.
I.
BACKGROUND
Beginning
in March of 2003, the Federal Bureau of Investigation
("FBI") and .the D.C. Metropolitan Police
Department investigated a suspected narcotics trafficking
operation in the District of Columbia. United States v.
Eiland, 738 F.3d 338, 345 (D.C. Cir. 2013). This
investigation, which included the use of physical
surveillance, informants, pen register and toll record
analysis, and judicially authorized wiretaps, resulted in
charges against twenty-one defendants for conspiring to
distribute heroin, cocaine, cocaine base, and PCP between
1999 and 2004 in Virginia, Maryland, and the District of
Columbia. Id. Gerald Eiland ("Eiland") and
Frederick Miller ("Miller") were identified as the
leaders of the operation. Id.
Prior
to trial, many of the defendants moved to suppress evidence
collected through the use of the wiretaps, which they argued
were authorized in violation of 18 U.S.C. § 2510, et
seq. United States v. Eiland, 398 F.Supp.2d 160, 162-63
(D.D.C. 2005). Of particular relevance to this motion is the
February 13, 2004, affidavit supporting a wiretap of
Miller's telephone submitted by Special Agent Sparks
("Sparks 2/13/2004 Affidavit"), which the
defendants argued contained misleading information and
omitted material facts. Id. at 163-65. This Court
denied the motions to suppress. Id. at 176.
On
October 3, 2006, Eiland proceeded to jury trial with
codefendants Miller, Robert Bryant, and Alvin Gaskins. 738
F.3d at 345-46. Bryant was acquitted on all charges, and
Gaskins was found guilty only of narcotics conspiracy.
Id. Eiland and Miller were both found guilty of: (1)
narcotics conspiracy with intent to distribute heroin,
cocaine, and cocaine base; (2) RICO conspiracy; (3)
continuing criminal enterprise; (4) attempt to possess with
intent to distribute heroin; and (5) three counts of unlawful
use of a communication facility. United States v.
Eiland, 525 F.Supp.2d 37, 39 (D.D.C. 2007). Eiland and
Miller were sentenced to concurrent sentences of life
imprisonment for RICO conspiracy and continuing criminal
enterprise, with additional lesser sentences imposed for the
other convictions. 738 F.3d at 346.
On
appeal, Eiland and Miller raised several points of error,
including, inter alia: (1) that the affidavits
supporting the application for (and subsequent extensions of)
a wiretap on Miller's phone failed to establish probable
cause or necessity, and therefore the trial court erred in
denying the defendants' motions to suppress; (2) that the
trial court erred in allowing FBI Agent John Bevington's
testimony, which the defendants argued provided a superfluous
overview of conspiracy investigations and improperly vouched
for cooperating informants; and (3) that the trial court
erred in allowing FBI Agent Hall's lay opinion testimony
interpreting the wiretap evidence. Eiland, 738 F.3d
at 347-54. The D.C. Circuit affirmed the convictions, holding
in relevant part: (1) that both probable cause and necessity
had been established for the wiretap applications and
extensions thereof; (2) that while Agent Bevington's
testimony was plain error pursuant to the recent holding in
United States v. Moore, 651 F.3d 30, 59-61 (D.C.
Cir. 2011), the error was harmless; and (3) that the
defendants failed to demonstrate that any error in allowing
Agent Hall's testimony, if existent, was prejudicial.
Id. at 348-54.
Eiland
timely filed the present Motion [ECF No. 1159] within one
year of the Circuit's denial of his petition for
rehearing. The Motion prays that this Court vacate, set
aside, or correct Eiland's sentence pursuant to 18 U.S.C.
§ 2255 on the grounds that Eiland was denied effective
assistance of counsel as guaranteed by the Sixth Amendment to
the United States Constitution. ECF No. 1159 at 10.
Specifically, Eiland asserts that his counsel performed
deficiently by failing to:
(1) raise meritorious arguments challenging the sufficiency
of the affidavits supporting the wiretap applications and
extensions thereof under Title III of the Omnibus Crime
Control and Safe Streets Act, 18 U.S.C. § 2510,
etseq. (Id. at 10-33);
(2) move in limine to exclude or object to FBI Agent
Bevington's irrelevant and vouching testimony concerning
cooperating witnesses (Id. at 33-52);
(3) present evidence that Eiland had a source of income from
his auto-shop business that could have justified his personal
spending and lifestyle (Id. at 52); and (4) object
to FBI Agent Hall's lay opinion testimony interpreting
wiretaps (Id. at 52-53).
II.
LEGAL STANDARD
A.
Section 2255 Motion
Pursuant
to 28 U.S.C. § 2255, a prisoner may collaterally attack
an otherwise final sentence if it 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). Under such a
motion, a prisoner may ask a court to vacate, set aside, or
correct the sentence. Id. If the sentence is found
by the court to deny or infringe upon a prisoner's
constitutional rights such that the judgment is
"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." § 2255(b).
"Unless the motion and the files and records of the case
conclusively show that the prisoner is entitled to no
relief," a court shall grant a hearing. Id.
Under
§ 2255, the petitioner bears the burden of proof, and
must demonstrate by a preponderance of the evidence that he
is entitled to relief. United States v. Pollard, 602
F.Supp.2d 165, 168 (D.D.C. 2009). "Relief under §
2255 is an extraordinary remedy in light of society's
legitimate interest in the finality of judgments."
United States v. Zakas, 793 F.Supp.2d 77, 80 (D.D.C.
2011). A petitioner asserting a § 2255 motion must
therefore "clear a significantly higher hurdle than
would exist on direct appeal." United States v.
Frady, 456 U.S. 152, 166 (1982).
B.
Ineffective Assistance of Counsel
Eiland
claims ineffective assistance of counsel as to his trial
counsel-a claim he did not raise on direct appeal.
Ordinarily, claims not raised on direct appeal may not be
raised as part of a collateral attack on the sentence unless
the petitioner shows either: (1) cause for failing to raise
the issue and prejudice as a result of the alleged
constitutional violation, or (2) actual innocence.
Bousley v. United States, 523 U.S. 614, 622 (1998).
Ineffective assistance of counsel claims, however, are not
subject to this procedural default, and petitioners asserting
such claims need not show cause and prejudice for having
failed to raise the issue on direct appeal. Massaro v.
United States, 538 U.S. 500, 504 (2003).
An
ineffective assistance of counsel claim is comprised of two
elements: (1) "counsel's performance was
deficient," and (2) "the deficient performance
prejudiced the defendant." Strickland v.
Washington, 466 U.S. 668, 687 (1984). "Failure to
make the required showing of either deficient performance or
sufficient prejudice defeats the ineffectiveness claim."
Id. at 700.
Deficiency
of performance is established by demonstrating "that
counsel made errors so serious that counsel was not
functioning as the 'counsel' guaranteed ... by the
Sixth Amendment." Id. More specifically, the
defendant must show that his counsel's performance
"fell below an objective standard of
reasonableness." Id. at 688. A court reviewing
the actions of counsel at trial must "indulge a strong
presumption that the counsel's conduct falls within the
wide range of reasonable professional assistance."
Id. at 689. The ...