United States District Court, District of Columbia
COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE.
before the Court is Defendant Louis A. Wilson's 
Motion to Vacate, Set Aside, or Correct Sentence pursuant to
28 U.S.C. § 2255, and his  Motion to Amend and/or
Supplement [his § 2255 Motion] pursuant to Fed. R. Civil
P. [ ] 15(a) and (c). 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,  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  Motion to Amend and/or Supplement his
Motion to Vacate and DENY his  Motion to Vacate, Set
Aside, or Correct Sentence. A separate Order accompanies this
Factual Background 
 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.
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. . On September 10, 1997, Defendant was
sentenced to life imprisonment plus two consecutive five-year
terms of incarceration. After a timely notice of appeal was
filed,  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.
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).
September 29, 2000, Defendant filed a  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.
September 14, 2005, this Court entered an order,
following a memorandum opinion two days prior,  denying
Defendant's  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. 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
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  28 U.S.C. § 2255
motion. United States v. Wilson, 219 F. App'x. 5
(D.C. Cir. 2007).
22, 2010, Defendant filed a  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).
filed a  Motion to Correct/Amend an Illegal
Sentence on December 27, 2010, which the
Government opposed on January 20, 2011. 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.
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)
21, 2012, pro se Defendant filed this 
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  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 
second-filed § 2255 motion.
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.”
August 29, 2017, Defendant filed his subsequent  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.
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).
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).
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.
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
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.
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).
Leave to Amend
Court first addresses the issue of whether Defendant's
failure to seek leave to amend his  second-filed §
2255 Motion to Vacate, Set Aside, or Correct Sentence
warrants a dismissal of Defendant's  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
to Rule 15, Defendant may amend his  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
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
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, 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  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
 second-filed Motion to Vacate. Moreover, although
Defendant never sought leave to amend his  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.
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  §
2255 Motion to Vacate, Set Aside, or Correct Sentence by
Defendant's  Motion to Amend and/or Supplement, and
the Court will address the argument set forth in both motions
in this opinion.
Applicability of Pre-AEDPA Procedural Default Rules to
Post-AEDPA Second-Filed § 2255
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;
2) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
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)).
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).
the parties' briefing on Defendant's  Motion to
Vacate was complete, this Court ...