MEMORANDUM OPINION (MARCH 7, 2019) [DKT. ## 127,
128]
RICHARD J. LEON UNITED STATES DISTRICT JUDGE
On July
31, 2013, after a seven-day trial, defendants Aaron Thorpe
("Defendant Thorpe") and Melvin Knight
("Defendant Knight") were found guilty by a jury of
nine counts each of being a felon in possession of a firearm,
conspiracy, assault with a dangerous weapon, kidnapping while
armed, burglary while armed, possession of a firearm during a
crime of violence, and obstruction of justice. Both raised a
number of challenges to their convictions and sentences on
appeal, including claims that their Superior Court trial
counsel were constitutionally deficient.[1] Our Circuit Court
affirmed defendants' convictions and sentences, but
remanded their ineffective-assistance-of-counsel
("IAC") claims for me to consider in the first
instance. To that end, I held three days of evidentiary
hearings on May 24 and 25, and September 20, 2017, after
which I accepted post-hearing briefing in the form of motions
to vacate the convictions based on ineffective assistance of
Superior Court counsel. Ultimately, the briefing was
completed on May 24, 2018.
Because
Thorpe and Knight's IAC claims ultimately stem from the
same allegation of the insufficiency of Thorpe's Superior
Court trial counsel, Frederick Iverson, I will consider them
together. Having closely reviewed the evidence presented
during three days of evidentiary hearings and in the
parties' extensive briefing, Thorpe and Knight's IAC
claims are, for the reasons set forth below,
DENIED.
BACKGROUND
A.
Superior Court Proceedings
On
January 28, 2013, police arrested Thorpe and Knight for the
D.C. Code offense of kidnapping while armed, among other
things. In all of their Superior Court proceedings, Defendant
Thorpe was represented by David Knight ("Attorney
Knight"), while Defendant Knight was represented by
Frederick Iverson ("Attorney Iverson"). Defendants
were held without bond pending a preliminary hearing in the
Superior Court. At the February 1, 2013 preliminary hearing,
the federal prosecutor stated that the Government had
"extended a plea offer to one count of Assault With A
Deadly [sic] Weapon to both defendants." 2/1/13
Transcript, Government's Motions Hearing Exhibit 1. The
next time defendants appeared before the Superior Court was
February 19, 2013, when Assistant United States Attorney
Britten Shaw told the court that the Government's
understanding was that defendants would not be accepting the
pre-preliminary hearing plea and there would be no further
plea offers at that time. 2/19/13 Transcript,
Government's Motions Hearing Exhibit 2, at 2-3. The case
was therefore set for trial in the Superior Court on May 15,
2013.
B.
Federal Court Trial and Appeal
On May
7, 2013, a federal grand jury indicted each defendant with
the federal offense of felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1), as well as the D.C.
code offenses of conspiracy, assault with a dangerous weapon,
two counts of armed kidnapping, first-degree burglary while
armed, two counts of possession of a firearm during a crime
of violence, and obstruction of justice. The defendants'
Superior Court charges were subsequently dismissed on May 10,
2013. At a June 4, 2013 status hearing before this Court,
Assistant United States Attorney Emory V. Cole communicated
his understanding that "defendants are not amenable to
even discussing a non[-trial] disposition...the defendants
have indicated they want to go to trial." 6/4/13
Transcript, Status Hearing, at 4. Both defendants were
assigned new defense counsel in the federal proceeding-Shawn
Moore represented Defendant Knight while Joseph Conte
represented Defendant Thorpe.
Two
months later, after a seven-day trial, a jury convicted both
defendants on all counts. The Government's evidence at
trial established that on the night of January 28, 2013,
Thorpe and Knight donned masks and police-like attire and lay
in wait for Edmund Peters and his female companion-Luttitia
Fortune. Brandishing weapons, the defendants assaulted Peters
and Fortune and forced them into Peters' apartment. Their
alleged purpose was to steal narcotics and cash from
Peters' drug trafficking operation. Fortunately, a
next-door neighbor witnessed the altercation outside
Peters' apartment entrance and called the police station
to let them know their officers were having a difficult time.
When the police arrived, they surrounded the apartment and
ordered those inside to come out. The defendants, in
response, threatened Peters and Fortune in an effort to get
them to fabricate a false story to law enforcement about the
events that had transpired. To say the least, the police
never fell for their concoction of lies.
On
March 10, 2014, I sentenced Thorpe to 300 months'
imprisonment. Thorpe Judgment [Dkt. # 84] at 3. I
sentenced Knight to 268 months' imprisonment. Knight
Judgment [Dkt. # 86] at 3. Prior to sentencing, defendants
requested new counsel on the grounds that they would have
never been brought to federal court had their Superior Court
attorneys provided effective assistance. I granted
defendants' requests for new counsel but told them that
sentencing would not wait for any habeas motions to be filed,
assuming they went forward with those motions at all. Howard
Katzoff appeared for Defendant Thorpe and Chris Davis
appeared for Defendant Knight, respectively, at their
sentencings, and in their subsequent appeal and remand for
IAC claims.[2]
On
appeal, Knight and Thorpe raised several challenges. First,
they raised a challenge claiming a violation of the Speedy
Trial Act ("STA"). Second, Thorpe argued that the
25-year sentence I gave him was unreasonable. And third, both
defendants argued that they received ineffective assistance
of counsel from their Superior Court counsel regarding the
wired plea offer they received in the Superior Court.
United States v. Knight, 824 F.3d 1105, 1109 (D.C.
Cir. 2016). Our Circuit Court rejected defendants' other
challenges but remanded their IAC claims for me to consider
in the first instance. Knight, 824F.3dat 1113.
C.
Post-Conviction Evidentiary Hearings
Following
our Circuit's remand, defendants moved for a waiver of
attorney-client privilege with respect to their Superior
Court counsel-Attorney Iverson and Attorney Knight-which I
granted. I ordered the production of documents related to
defendants' representation in Superior Court, including
billing records, jail visit records, hearing transcripts, and
communications between counsel and the government regarding
the plea offer. I then held three days of evidentiary
hearings on May 24, May 25, and September 20, 2017. Attorneys
Iverson and Knight testified about their interactions with
defendants between the initial Superior Court hearing on
February 1, 2013 and the hearing at which the prosecutor
represented that defendants had rejected the wired plea deal
on February 19, 2013. Defendants Thorpe and Knight also
testified, as did the D.C. Jail Custodian of Records.
Testimony
of Attorney Iverson
Attorney
Iverson testified that he had practiced as a CJA attorney in
Superior Court since 1998, handling "somewhere between
80 and 100-plus cases a year." 5/24/17 Tr. 80- 82. He
first spoke with Knight for "five" or "six
minutes" at the January 29, 2013, presentment in
Superior Court. 5/24/17 Tr. 84. While he "[didn't]
have any recollection of the actual events of [Knight's]
presentment," 5/24/17 Tr. 85-86, Attorney Iverson
testified that at a typical presentment,
You can talk to them briefly. Tell them what they have been
charged with. You're basically introducing yourself,
telling them about the process, you're going to try to
get them out, whether you believe, based on the charges,
they'll probably be held, what the next step will be as
far as them coming to court for a preliminary hearing, things
of that nature, find out if they have any family in the
audience, or who you're going to be contacting. But
that's pretty much what goes on at that point.
5/24/17 Tr. 85. After the presentment, Iverson testified
that, on January 31, 2013, he received an email "from
Trevor McFadden, [Assistant] United States Attorney at that
time...spelling] out the pre-preliminary hearing plea offer
that the government was making at that time." 5/24/17
Tr. 87. That same day, Attorney Iverson testified that he
visited Defendant Knight at the D.C. Jail to discuss the
Government's plea offer, among other things. 5/24/17 Tr.
91-92, 100.
Afterwards,
Iverson testified that he met with Defendant Knight
"several times" to discuss the case. 5/24/17 Tr.
88.[3]
Iverson's billing records reflect that on February 1,
2013, he "conference[d] [client" at the courthouse,
and also "conference[d] co-defendant attorney,
conference[d] government attorney and family." 5/24/17
Tr. 96. He also met with Defendant Knight, co-counsel, and
the prosecutors on February 19, 2013, before the hearing, for
roughly an hour in total. 5/24/17 Tr. 97-98, 126. On cross,
Attorney Iverson was asked whether he had any record of
meeting with Defendant Knight between the hearings on
February 1 and February 19. The Government produced evidence
that he visited the jail on February 5, 2013, but Iverson had
neither billing records memorializing that visit nor any
independent recollection of that visit. 5/24/17 Tr.
120-21.[4] Attorney Iverson testified that he
"believe[d] [his] billing records are accurate."
5/24/17 Tr. 100.
Attorney
Iverson could not recall the exact details of what he
discussed with Defendant Knight about the plea offer. On the
one hand, Iverson testified that he found out the case was
going to federal court "abruptly" at the hearing on
February 19, 2013. 5/24/17 Tr. 133. He testified that he
''wasn't focused on the possibility of him going
over to Federal Court and weighing those options with
[Defendant Knight]," because he was focused on
"preparing our case to go to trial in D.C. Superior
Court." 5/24/17 Tr. 147. Attorney Iverson further stated
that there was "nothing in [the government's plea]
letter to make [him] focus on the federal side." 5/24/17
Tr. 147.
Yet, on
the other hand, Attorney Iverson testified that in a typical
case he "would have discussed the plea offer" with
his client, 5/24/17 Tr. 92, including "the terms of the
plea offer," id. at 100, "possible
penalties," id. at 102, "what are the
maximum penalties," id., and "what his
co-defendant would do or not do." Id. at 103.
Attorney Iverson had "some recollection of some
conversations with [Defendant Knight] about the case...going
over some of the strengths and weaknesses about the evidence
[, ] what [they] expected the evidence to be at trial,
talking to [Knight] about some of the weaknesses in defenses,
what [he] thought would be the strength of the
government's case, [and] why [he] thought [they]
wouldn't prevail on certain issues." 5/24/17 Tr.
100-01. Iverson specifically recalled Defendant Knight being
"hopeful that Mr. Peters would not cooperate with the
government or would not testify" against him."
5/24/17 Tr. 112-13. When asked if he had discussed the nature
of the wired plea offer with his client, Iverson did not
"have an independent recollection of explaining to
[Knight] wired [pleas]; and that [ ] he can't get the
deal unless his co-defendant takes the deal." 5/24/17
Tr. 103.
After
reviewing a transcript of the February 19, 2013 hearing,
Iverson recalled that "[a]t that time" of the
hearing, "we were not accepting the plea offer, m'am
no. If we were accepting it, I would have spoken up and said,
we don't want to go forward with a preliminary hearing,
we want the plea offer." 5/24/17 Tr. Ill. 115-16.
Iverson testified "that was the decision my client and I
had made-my client had made" after "discuss[ing]
his options." 5/24/17 Tr. 110-11. He insisted, "I
don't make the decision." 5/24/17 Tr. 110. Once
Defendant Knight was indicted in federal court, Iverson
testified that he "wouldn't have been his lawyer at
that point," regardless of Knight's satisfaction
with his representation, "because I'm not admitted
in Federal Court. And once it leaves D.C. Superior Court,
it's not my case anymore, and that's the end of my
representation." 5/24/17 Tr. 115.
Testimony
of ...