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United States v. Wilson

United States District Court, District of Columbia

October 7, 2019

UNITED STATES OF AMERICA,
v.
LOUIS A. WILSON, Defendant.

          MEMORANDUM OPINION

          COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE.

         Presently before the Court is Defendant Louis A. Wilson's [328] Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255, and his [351] Motion to Amend and/or Supplement [his § 2255 Motion] pursuant to Fed. R. Civil P. [ ] 15(a) and (c).[1] Defendant Louis A. Wilson (“Defendant” or “Mr. Wilson”), who is proceeding pro se, alleges that he received ineffective assistance of counsel from both his trial counsel and appellate counsel when they failed to challenge: (1) the trial court's violation of the Defendant's right to counsel of choice in violation of the Sixth Amendment; (2) Defendant's convictions and sentences on two murder counts that arose from the murder of one individual on Double Jeopardy grounds; (3) the suppression of information in violation of Brady v. Maryland, 373 U.S. 83 (1963), pertaining to a murder other than the murder for which Defendant was convicted; (4) the allegedly unauthorized presence of Assistant United States Attorney Robert Mueller before the grand jury; and (5) jurisdiction of the trial court to try his case. Defendant alleges further that he is “actually innocent.” Defendant requests that the Court reconsider and reduce his sentence, and he requests an evidentiary hearing to resolve the issues raised in his motions. The United States of America (the “Government”) has filed its oppositions to the Defendant's Motion to Vacate and Defendant's Motion to Amend and/or Supplement, and the Defendant has filed replies to both motions, which are ripe for this Court's review. Upon a searching review of the parties' submissions, [2] the relevant authorities, and the record in this case, the Court finds that Defendant is not entitled to the requested relief. Accordingly, the Court shall GRANT Defendant's [351] Motion to Amend and/or Supplement his Motion to Vacate and DENY his [328] Motion to Vacate, Set Aside, or Correct Sentence. A separate Order accompanies this Memorandum Opinion.

         I. BACKGROUND

         A. Factual Background [3]

         Defendant's [328] Motion to Vacate, Set Aside, or Correct Sentence (“Def.'s Mot. to Vacate”) arises out of a case involving the murder of a Government witness scheduled to testify in the trial of James “Toe” Wilson, who was charged with robbing a United States Post Office. The Government's case against James Wilson was based primarily on information obtained by a witness, decedent Leroy Copeland, who had taped a conversation with James Wilson at the Lorton Reformatory (“the Lorton conversation”) on July 28, 1995. The Government turned over copies of the tape and transcript of the Lorton conversation, which revealed Leroy Copeland's identity, to James Wilson's attorney, Steven Jacoby. This was done on the condition that Attorney Jacoby would not share copies of the tape and transcript with anyone without the Government's prior permission. On March 20, 1996-shortly before the March 26, 1996 trial date-James Wilson's attorney met with James's wife and brother, Ralph Wilson, to discuss evidence against James. During the meeting, Attorney Jacoby alerted the family members to Leroy Copeland's role in the case against James Wilson by playing portions of the Lorton conversation between Leroy Copeland and James Wilson. On the evening of March 25, 1996, Leroy Copeland was shot and killed at 5th and O Streets, N.W., in Washington, D.C.

         B. Procedural History

         On March 21, 1997, after a jury trial before the Honorable Norma Holloway Johnson, Defendant Louis A. Wilson (“Defendant”), brother of James Wilson, and codefendants Ralph Wilson and Marcellus Judd were convicted of conspiracy to kill a witness (18 U.S.C. § 371) (Count One), killing a witness (18 U.S.C. § 1512(a)(1)(A)) (Count Two), retaliating against a witness (18 U.S.C. § 1513(a)(1)(B) & (2)) (Count Four), first-degree murder while armed (D.C. Code §§ 22-2401, 3202) (Count Six), two counts of using a firearm during and in relation to a crime of violence (18 U.S.C. § 924(c)) (Counts Three and Five), and possession of a firearm during a crime of violence (D.C. Code § 22-3204(b)) (Count Seven). Jury Verdict, ECF No. [146]. On September 10, 1997, Defendant was sentenced to life imprisonment plus two consecutive five-year terms of incarceration.[4] After a timely notice of appeal was filed, [5] new counsel was appointed to represent Defendant on appeal. Govt.'s Opp'n, to Def.'s Mot. to Vacate, ECF No. 332, at 2-3.

         On November 20, 1998, the Court of Appeals for the District of Columbia Circuit affirmed most but not all of Defendant's convictions. The court found that Defendant's conduct did not support two convictions for use of a firearm. Govt.'s Opp'n, ECF No. 332, at 3. Accordingly, the Court of Appeals vacated one of Defendant's two § 924(c) convictions for use of a firearm. See United States v. Wilson, 160 F.3d 732, 750 (D.C. Cir. 1998), cert. denied, 528 U.S. 828 (1999).[6]

         On September 29, 2000, Defendant filed a [230] Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255, followed by two supplements to the motion, which were filed on March 1, 2001 and January 20, 2004. On January 20, 2004, Defendant also moved to adopt the post-trial arguments filed by co-defendant Ralph Wilson. Def.'s Mot. for Miscellaneous Relief, ECF No. 260.

         On September 14, 2005, this Court entered an order, [7] following a memorandum opinion two days prior, [8] denying Defendant's [230] 28 U.S.C. § 2255 motion, which alleged that: (1) his conviction was based on perjured testimony; (2) the Government did not disclose exculpatory information that was in its possession prior to trial, in violation of its Brady obligations; (3) Defendant's confrontation rights were violated at trial (a confrontation claim adopted from co-defendant Ralph Wilson); and (4) Defendant received ineffective assistance of counsel at trial in violation of the fundamental guarantees of the Sixth Amendment.[9] In making a determination that Defendant's Fifth Amendment perjured testimony, Brady, and Confrontation Clause claims were procedurally barred, this Court applied the principle that “a prisoner may not raise an objection in a Section 2255 motion that could have been contested on direct appeal unless he can first demonstrate cause for the procedural default and then establish resulting prejudice.” September 12, 2005 Memorandum Opinion, ECF No. 281, at 6. The Court made further alternative findings as to the Defendant's Brady and Confrontation Clause claims. The Court analyzed the Defendant's claims based on ineffective assistance of counsel under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984).

         On October 18, 2005, Defendant filed an appeal of this Court's denial of his Section 2255 motion. Def.'s Notice of Appeal, ECF No. 285. On May 3, 2007, the United States Court of Appeals for the D.C. Circuit affirmed the summary denial of Defendant's [230] 28 U.S.C. § 2255 motion. United States v. Wilson, 219 F. App'x. 5 (D.C. Cir. 2007).

         On July 22, 2010, Defendant filed a [296] Motion for Entry of an Amended Judgment in a Criminal Case to reflect the D.C. Circuit's reversal of his conviction on the charge of using a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c). On November 23, 2010, pursuant to the decision issued by the Court of Appeals on November 20, 1998, directing that one of Defendant's 18 U.S.C. § 924(c) convictions be vacated pursuant to 18 U.S.C. § 3742(f)(1) and (2), this Court vacated the judgment and sentence previously imposed regarding Count Five, and entered an Amended Judgment and Commitment Order nunc pro tunc to effectuate a recomputation of Defendant's sentence by the Federal Bureau of Prisons. Am. Judgment, ECF No. 308. On December 28, 2010, Defendant noted an appeal from the order of this Court granting his Amended Judgment. Def.'s Notice of Appeal, ECF No. 311. Defendant's appeal was ultimately dismissed by the D.C. Circuit as untimely filed. See United States v. Wilson, 463 Fed.Appx. 1 (D.C. Cir. 2012).

         Defendant filed a [310] Motion to Correct/Amend an Illegal Sentence[10] on December 27, 2010, which the Government opposed on January 20, 2011.[11] On April 14, 2011, after explaining that the relief sought did not fall under the scope of Rule 35(a), this Court ordered that Defendant inform the Court whether he wished to withdraw his motion or have the Court recharacterize the motion as having been filed under 28 U.S.C. § 2255. Order, ECF No. 319. On May 26, 2011, Defendant moved to withdraw his Motion to Correct an Illegal Sentence, which the Court granted on May 31, 2011. Def.'s Mot. to Correct/Am., ECF No. 321.

         C. Present Motions to Vacate Sentence Pursuant to 28 U.S.C. § 2255 and to Amend and/or Supplement Pursuant to Fed.R.Civ.P. 15(a) and (c)

         On May 21, 2012, pro se Defendant filed this [328] second-filed Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. Defendant did not seek a certificate to file this [328] second-filed § 2255 motion. However, because Defendant's second-filed § 2255 motion is his first § 2255 challenge to the current judgment, it does not qualify as a “second or successive” § 2255 motion under the Antiterrorism and Effective Death Penalty Act (“AEDPA”). See Govt.'s Opp'n, ECF No. 332, at 10 n.6 (acknowledging that the Government does not believe that Defendant's § 2255 motion qualifies as a successive § 2255 motion under Magwood v. Patterson, 561 U.S. 320, 332-33 (2010)). Accordingly, Defendant need not have sought a certificate to file his [328] second-filed § 2255 motion.

         In Magwood, the Supreme Court held that a state prisoner's federal habeas petition could not be treated as “second” or “successive” under § 2244(b), a provision added through the enactment of the AEDPA, because the petition challenged an amended judgment entered by the state court and not the original judgment that the state prisoner had previously successfully challenged through a prior federal habeas petition. Magwood, 561 U.S. 320, 341-342 (2010). The Supreme Court explained that “where . . . there is a ‘new judgment intervening between the two habeas petitions,' . . . an application challenging the resulting new judgment is not ‘second or successive' at all.” Id.

         On August 29, 2017, Defendant filed his subsequent [351] Motion to Amend and/or Supplement pursuant to Fed. R. Civil P. Rule 15(a) and (c). In this subsequent filing, Defendant presents the affidavit of his former co-defendant-Marcellus Judd-as well as information alleging that the murder weapon was linked to a different murder, in support of Defendant's claim of “actual innocence.” Def's Mot. to Am. and/or Supplement, ECF No. 351.

         II. LEGAL STANDARD

         Pursuant to 28 U.S.C. § 2255, a prisoner in custody under sentence of a federal court may move the sentencing court to vacate, set aside, or correct its sentence if the prisoner believes that the sentence 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).

         However, the remedy set forth by § 2255 “does not encompass all claimed errors in conviction and sentencing.” United States v. Addonizio, 442 U.S. 178, 185 (1979). The circumstances under which such a motion will be granted “are limited in light of the premium placed on the finality of judgments and the opportunities prisoners have to raise most of their objections during trial or on direct appeal.” United States v. Burwell, 160 F.Supp.3d 301, 308 (D.D.C. 2016). “[T]o obtain collateral relief a prisoner must clear a significantly higher hurdle than would exist on direct appeal.” United States v. Frady, 456 U.S. 152, 166 (1982).The petitioner has the burden of proof to demonstrate his right to such relief by a preponderance of the evidence. United States v. Basu, 881 F.Supp.2d 1, 4 (D.D.C. 2012). A court shall grant a hearing to determine the issues and make findings of fact and conclusions of law “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b).

         With few exceptions, a prisoner may not raise a claim as part of a collateral attack if that claim could have been raised on direct appeal, unless he can demonstrate either: (1) “cause” for his failure to do so and “prejudice” as a result of the alleged violation, or (2) “actual innocence” of the crime of which he was convicted. Bousley v. United States, 523 U.S. 614, 622-23 (1998). However, “[w]here a petitioner raises claims of ineffective assistance of counsel in a § 2255 motion, he need not show ‘cause and prejudice' for not having raised such claims on direct appeal, as these claims may properly be raised for the first time in a § 2255 motion.” United States v. Cook, 130 F.Supp.2d 43, 45 (D.D.C. 2000) (citation omitted), aff'd, 22 Fed.Appx. 3 (D.C. Cir. 2001).

         A defendant claiming ineffective assistance of counsel may raise it for the first time as a collateral attack, rather than on direct appeal, but must show (1) “that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, ” and (2) “that this error caused [him] prejudice.” United States v. Hurt, 527 F.3d 1347, 1356 (D.C. Cir. 2008) (citations omitted). For the first prong, “[j]udicial scrutiny of counsel's performance must be highly deferential” and defendant must “overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Strickland v. Washington, 466 U.S. 668, 689 (1984) (internal quotation marks and citation omitted). The Court must consider “counsel's overall performance, ” Kimmelman v. Morrison, 477 U.S. 365, 386 (1986), and “indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, ” Strickland, 466 U.S. at 689. “The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Id. at 686. It is the petitioner's burden to show that counsel's errors were “so serious” that counsel could not be said to be functioning as the counsel guaranteed by the Sixth Amendment. Harrington v. Richter, 562 U.S. 86, 104 (2011).

         Furthermore, the defendant must meet the second Strickland prong and “affirmatively prove prejudice.” Strickland, 466 U.S. at 693. That is, “[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. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 669. To find prejudice, the petitioner must show that there is “a substantial, not just conceivable, likelihood of a different result.” Cullen v. Pinholster, 563 U.S. 170, 189 (2011) (internal quotation marks and citation omitted). An ineffective assistance of counsel claim is defeated if the defendant fails to demonstrate either prong.

         A Section 2255 petitioner is not automatically entitled to an evidentiary hearing and should not receive one if his allegations are “vague, conclusory, or palpably incredible” rather than “detailed and specific.” Machibroda v. United States, 368 U.S. 487, 495 (1962); see also United States v. Pollard, 959 F.2d 1011, 1031 (D.C. Cir. 1992), cert. denied, 506 U.S. 915 (1992) (“Only where the § 2255 motion raises ‘detailed and specific' factual allegations whose resolution requires information outside of the record or the judge's ‘personal knowledge or recollection' must a hearing be held.”) (quoting Machibroda, 368 U.S. at 495). A district court may deny a federal inmate's motion for an evidentiary hearing in connection with a Section 2255 motion to vacate when: “(1) the motion is inadequate on its face; (2) the movant's allegations, even if true, do not entitle him to relief; or (3) movant's allegations “need not be accepted as true because they state conclusions instead of facts, contradict the record, or are inherently incredible.” Reyes v. United States, 421 F.Supp.2d 426, 430 (D. Puerto Rico 2006) (quoting United States v. McGill, 11 F.3d 223, 225-26 (1st Cir. 1993)); see United States v. Morrison, 98 F.3d 619, 625 (D.C. Cir. 1996) (“A judge need not conduct an evidentiary hearing before denying a petition for relief under § 2255 when “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.”) (citing 28 U.S.C. § 2255 (1994)), cert. den., 520 U.S. 1131 (1997).

         III. PRELIMINARY ISSUES

         A. Leave to Amend

         The Court first addresses the issue of whether Defendant's failure to seek leave to amend his [328] second-filed § 2255 Motion to Vacate, Set Aside, or Correct Sentence warrants a dismissal of Defendant's [351] Motion to Amend. The Court notes that the Government has responded to Defendant's Section 2255 motion, and the Government opposes Defendant's request to amend his second-filed Section 2255 motion for purposes of adding an “actual innocence” claim. Accordingly, Rule 15(a) of the Federal Rules of Civil Procedure requires that Defendant obtain this Court's permission to amend his motion. United States v. Hicks, 283 F.3d 380, 386 (D.C. Cir. 2002); see United States v. Coughlin, 251 F.Supp.3d 212, 218 (D.D.C. 2017) (“Civil pleadings, including § 2255 motions, may be amended or supplemented as provided in the Federal Rule of Civil Procedure 15.”)

         Pursuant to Rule 15, Defendant may amend his [328] motion “only with the opposing party's written consent or the court's leave.” Fed.R.Civ.P. 15 (a)(2). The “court shall freely give leave [to amend] when justice so requires.” Id.

Although the grant or denial of leave to amend is committed to the district court's discretion, it is an abuse of discretion to deny leave to amend unless there is sufficient reason, such as “undue delay, bad faith or dilatory motive . . . repeated failure to cure deficiencies by [previous] amendments . . . [or] futility of amendment.”

Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (quoting Foman v. Davis, 371 U.S. 182 (1962)). “Courts liberally interpret Rule 15(a) to allow amendment unless doing so would not be in the interest of justice.” Shea v. Clinton, 288 F.R.D. 1, 4 (D.D.C. 2012).

         In this case, Defendant filed his Motion to Amend and/or Supplement [relating to his second-filed § 2255 motion] more than five years after service of his second-filed § 2255 motion and receipt of an initial responsive pleading from the Government, [12]and approximately two years after the Government provided a response on the merits of Defendant's claims. There is no allegation that Defendant filed his [351] Motion to Amend and/or Supplement in bad faith or with a dilatory motive. Nor has there been any determination on the substantive merits of Defendant's [328] second-filed Motion to Vacate. Moreover, although Defendant never sought leave to amend his [328] second-filed § 2255 motion, he is proceeding pro se. “‘[P]ro se litigants are afforded more latitude than litigants represented by counsel to correct defects in . . . pleadings.'” Lawrence v. Guthrie, No. 08-1292 (RMU), 2011 WL 3563109, at *2 (D.D.C. Aug. 11, 2011) (quoting Moore v. Agency for Int'l. Dev., 994 F.2d 874, 876-77 (D.C. Cir. 1993)); see also Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A document filed pro se ‘is to be liberally construed,' and ‘a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'”) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)); Belton v. Shinseki, 637 F.Supp.2d 20, 23 (D.D.C. 2009) (same); McFadden v. Washington Metro. Area Transit Auth., 168 F.Supp.3d 100, 105 (D.D.C. 2016) (same). But see Casares v. Wells Fargo Bank, N.A., No. 13-1633 (ABJ), 2015 WL 13679889, at *1 (D.D.C. May 4, 2015) (“Even pro se litigants, however, must comply with the Federal Rules of Civil Procedure.”) (citing Jarrell v. Tisch, 656 F.Supp. 237, 239 (D.D.C. 1987)).

         “The practice of freely giving leave to amend is thus ‘particularly appropriate' where pro se litigants are concerned.” Lawrence v. Guthrie, No. 08-1292 (RMU), 2011 WL 3563109, at *2 (D.D.C. Aug, 11, 2011) (quoting Kidd v. Howard Univ. Sch. of Law, No. 06-CV-1853 (RBW), 2007 WL 1821159, at *2 (D.D.C. June 25, 2007)). Moreover, no real prejudice to the Government will result from allowing Defendant to proceed without having sought leave to amend, particularly as the briefing on both motions has now been completed. Requiring Defendant to file a motion seeking leave to amend his § 2255 motion at this point would only cause more delay. Accordingly, in the interest of judicial efficiency, the Court will permit the amendment/supplementation of Defendant's [328] § 2255 Motion to Vacate, Set Aside, or Correct Sentence by Defendant's [351] Motion to Amend and/or Supplement, and the Court will address the argument set forth in both motions in this opinion.

         B. Applicability of Pre-AEDPA Procedural Default Rules to Post-AEDPA Second-Filed § 2255 Motions[13]

         The first issue before the Court is the applicability of the procedural default rule, as found in pre-AEDPA case law, to (1) a second-filed § 2255 motion, (2) filed after the enactment of the AEDPA, based on (3) the failure to raise a claim in a prior collateral attack of a different judgment. Effective April 24, 1996, the Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214 (1996), enacted on April 24, 1996, imposes limitations on second and successive petitions under § 2255. United States v. Wilson, 950 F.Supp.2d 90, 93 (D.D.C. 2013). Once a federal court has adjudicated a defendant's § 2255 motion, any “second or successive” motion under § 2255 must be certified by a panel of the relevant court of appeals to contain

1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

Id. (citing 28 U.S.C. § 2255(h)). “Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.” Id. (quoting 28 U.S.C. § 2244(b)(3)(A)).

         Prior to the enactment of the AEDPA, courts addressing § 2255 motions filed by federal prisoners held that if the abuse of writ defense was raised by the Government, the prisoners were procedurally barred from raising claims that could have been, but were not, raised in an earlier § 2255 motion unless the prisoner could show both cause and prejudice. See United States v. Ortiz, 136 F.3d 161, 163-64, 165-67 (D.C. Cir. 1998) (distinguishing between the former “abuse of the writ” standard that was applied to a federal prisoner raising claims that could have been raised in his first § 2255 motion, and the new AEDPA standards for filing a second or successive § 2255 motion). The Supreme Court explained:

The cause and prejudice analysis we have adopted for cases of procedural default applies to an abuse-of-the-writ inquiry in the following manner. When a prisoner files a second or subsequent application, the government bears the burden of pleading abuse of the writ. The government satisfies this burden if, with clarity and particularity, it notes petitioner's prior writ history, identifies the claims that appear for the first time, and alleges that petitioner has abused the writ. The burden to disprove abuse then becomes petitioner's. To excuse his failure to raise the claim earlier, he must show cause for failing to raise it and prejudice therefrom as those concepts have been defined in our procedural default decisions.

McCleskey v. Zant, 499 U.S. 467, 494 (1991).

         After the parties' briefing on Defendant's [328] Motion to Vacate was complete, this Court ...


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