COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE.
On July 15, 2005, Bryan Burwell ("Burwell") was convicted by a jury in this Court of: conspiracy to conduct and participate, directly and indirectly, in the affairs of an enterprise, through a pattern of racketeering activity ("Count I"), including the armed robbery of the Industrial Bank located at 2012 Rhode Island Avenue, N.E., Washington, D.C., on or about June 12, 2004 ("Racketeering Act 3") and the armed robbery of the Chevy Chase Bank located at 5823 Eastern Avenue, Chillum, Maryland, on or about May 27, 2004 ("Racketeering Act 6"); conspiracy to commit offenses against the United States, that is, armed robberies of banks the deposits of which were then insured by the Federal Deposit Insurance Corporation ("Count II"); armed robbery of the Industrial Bank on or about June 12, 2004 ("Count X"); and using and carrying a firearm during and in relation to a crime of violence on or about June 12, 2004 ("Count XI"). Presently before the Court is Burwell's pro se [822] Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. Upon a searching review of the parties' submissions,
On August 3, 2004, a federal grand jury indicted Burwell and seven codefendants in connection with a string of bank robberies that occurred in the District of Columbia and Maryland.
United States v. Burwell, 642 F.3d 1062, 1064-65 (D.C.Cir.2011). The matter proceeded to trial in this Court, and Burwell was tried alongside five other codefendants. On July 15, 2005, a jury convicted Burwell on all four counts upon which he was charged in the indictment. Verdict Form, ECF No. [474].
On April 28, 2006, this Court sentenced Burwell to 135 months of imprisonment on Count I, 60 months of imprisonment on Count II, and 135 months of imprisonment on Count X to run concurrently to each other. The Court also sentenced Burwell to 360 months of imprisonment on Count XI to run consecutive to all counts. See Judgment in a Criminal Case, ECF No. [615]. Burwell filed a timely appeal of his conviction and on April 29, 2011, the D.C. Circuit affirmed Burwell's conviction in a published opinion. United States v. Burwell, 642 F.3d 1062 (D.C.Cir.2011). The D.C. Circuit then granted Burwell's petition for rehearing en banc on the issue of whether 18 U.S.C. § 924(c)(1)(B)(ii), the statute governing Count XI, requires the government to prove that the defendant knew that the weapon he was carrying while committing a crime of violence was capable of firing automatically. United States v. Burwell, 690 F.3d 500, 502 (D.C.Cir.2012). In a split opinion, the D.C. Circuit held that the statute in question did not require that the defendant know that the weapon he used, carried, or possessed was capable of firing automatically, and, accordingly, the D.C. Circuit affirmed Burwell's conviction. Id. at 516. Burwell filed a petition for writ of certiorari which was denied by the Supreme Court of the United States. United States v. Burwell, ___ U.S. ___, 133 S.Ct. 1459, 185 L.Ed.2d 368 (2013). Burwell currently is serving his sentence.
Pending before the Court is Burwell's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. Burwell's motion is premised on overarching ineffective assistance of counsel claims at four stages of the proceedings, pre-trial, trial, post-trial, and appeal, by his trial counsel, Anthony D. Martin, and his appellate counsel, Robert S. Becker. Specifically, Burwell claims that his counsel rendered him ineffective assistance by: (1) failing to challenge the violation of his statutory right to a speedy trial prior to trial; (2) failing to raise double jeopardy and multiplicity challenges to the indictment prior to trial and failing to move to dismiss based on this challenge during trial; (3) failing to raise a Confrontation Clause challenge to certain evidence during trial and on appeal; (4) generally providing a "poor overall performance" at trial; (5) failing to allow Burwell to exercise his right to testify at trial; (6) failing to challenge government misconduct at trial and on appeal; (7) failing to give an effective closing argument at trial; (8) failing to request an informant jury instruction at trial; (9) failing to request a theory-of-defense instruction
Under 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 circumstances under which such a motion will be granted, however, 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. "[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, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). Nonetheless, "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall ... grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto." 28 U.S.C. § 2255(b).
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, 118 S.Ct. 1604, 140 L.Ed.2d 828 (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), aff'd, 22 Fed.Appx. 3 (D.C.Cir.2001) (citation omitted).
A defendant claiming ineffective assistance of counsel 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) (citation omitted). "Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence." Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). 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, 131 S.Ct. 770, 787, 178 L.Ed.2d 624 (2011). "The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions.... [I]nquiry into counsel's conversations with the defendant may be critical to a proper assessment of ... counsel's other litigation decisions." Strickland, 466 U.S. at 691, 104 S.Ct. 2052. In evaluating ineffective
A district court may deny a Section 2255 motion without a hearing when "the motion and files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b). "`The decision whether to hold a hearing is committed to the district court's discretion, particularly when, as here, the judge who is considering the § 2255 motion also presided over the proceeding in which the petitioner claims to have been prejudiced.'" United States v. Orleans-Lindsay, 572 F.Supp.2d 144, 166 (D.D.C.2008), appeal dismissed, No. 083089, 2009 U.S.App. LEXIS 20833 (D.C.Cir. Sept. 18, 2009) (quoting Fears v. United States, No. Civ. A. 06-0086(JDB), 2006 WL 763080, at *2 (D.D.C. Mar. 24, 2006) (citations omitted)); see also United States v. Agramonte, 366 F.Supp.2d 83, 85 (D.D.C.2005), aff'd, 304 Fed.Appx. 877 (D.C.Cir.2008). "The judge's own recollection of the events at issue may enable him summarily to deny a Section 2255 motion." Agramonte, 366 F.Supp.2d at 85 (citing United States v. Pollard, 959 F.2d 1011, 1031 (D.C.Cir. 1992), cert. denied, 506 U.S. 915, 113 S.Ct. 322, 121 L.Ed.2d 242 (1992)). To warrant a hearing, the petitioner's Section 2255 motion must "raise[ ] `detailed and specific' factual allegations whose resolution requires information outside of the record or the judge's `personal knowledge or recollection.'" Pollard, 959 F.2d at 1031 (quoting Machibroda v. United States, 368 U.S. 487, 495, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962)).
Based on a thorough review of the parties' pleadings and the entire record in the criminal proceeding, the Court finds that there is no need for an evidentiary hearing on the instant motion at this time. However, the Court shall reserve its ruling on the issue of whether a hearing is necessary based on Burwell's claim that his counsel failed to properly investigate specific witnesses prior to trial until further briefing is complete. As explained below, Burwell has not proffered detailed and factual allegations outside of the record such that a hearing is required on all other issues raised in his motion. Accordingly, the Court shall render its findings on these claims based on the parties' pleadings and the record.
Burwell raises 12 ineffective assistance of counsel claims related to counsel allegedly: (1) failing to challenge the violation of his statutory right to a speedy trial prior to trial; (2) failing to raise double jeopardy and multiplicity challenges to the indictment prior to trial and failing to move to dismiss based on this challenge during trial; (3) failing to raise a Confrontation Clause challenge to certain evidence during trial and on appeal; (4) generally providing a "poor overall performance" at trial; (5) failing to allow Burwell to exercise his right to testify at trial; (6) failing to challenge government misconduct at trial and on appeal; (7) failing to give an effective closing argument at trial; (8) failing to request an informant jury instruction at trial; (9) failing to request a theory-of-defense instruction at trial; (10)
Burwell alleges that his trial counsel was ineffective by failing to move to dismiss in the instant action based on a violation of the Speedy Trial Act.
In the instant action, Burwell was indicted pursuant to a sealed indictment on August 3, 2004, and arraigned on August 6, 2004.
However, on September 27, 2004, 33 days from the operative date, the Court held a status hearing with Burwell and his seven codefendants present, to discuss the Government's Notice to the Court of Plan, in Consultation with Defense Counsel, for Future Actions in this Case. See Notice to the Court of Plan, ECF No. [90]. At the
Following the hearing on October 4, 2004, 40 days from the operative Speedy Trial Act date, the Court entered a written order tolling the time period under the Act pursuant to 18 U.S.C. §§ 3161(h)(8)(A), (B)(i), (B)(ii) & B(iv) (2004). Order (Oct. 4, 2004). Specifically, the Court cited the nature of the case (eight codefendants and an alleged conspiracy to rob six separate banks on six different dates), the possible testimony (expert testimony on DNA, hair, fingerprint, and firearm analysis, and testimony of lay witnesses from the banks), as well as the number of potential witnesses at trial (potentially sixty government witnesses). Id. at 1-2. In its order, the Court noted that it was "the consensus of the parties and the Court that it would be unlikely that this case would be ready to proceed to trial within the next several months due to the extensive discovery involved, the complexity of the case, and the breadth of forensic evidence requiring expert testimony." Id. at 2.
The Court, specifically with the consent of Defendants, their counsel, and the Government, ultimately held that: (1) the case was so unusual or so complex, due to the nature of the prosecution that it was unreasonable to expect adequate preparation for pretrial proceedings or for the trial itself within the time limits established under the Speedy Trial Act, 18 U.S.C. § 3161(h)(8)(A),
Given the Court's specific written findings tolling the time frame under the Speedy Trial Act in compliance with the requirements of 18 U.S.C. § 3161(h) (2004), the Court finds that Burwell's related ineffective assistance of counsel claim fails. Burwell argues that the requirements of an "ends-of-justice" continuance were not met because the grant of a continuance allowed the Government to bolster its case against Burwell by giving the Government time to negotiate with codefendants who testified against Burwell. Def.'s Memo. at 14. While one reason for granting the continuance was to give the prosecution time to prepare because of the complex nature of the case, this characterization is inaccurate because the continuance also specifically was granted to give the defense time to effectively prepare their case and to avoid a miscarriage of justice. Accordingly, it is clear that the Court granted the continuance only after specifically finding that it benefited both the Government and the Defendants.
Burwell also cites Zedner v. United States, 547 U.S. 489, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006), in support of his argument. However, Zedner is distinguishable from the instant action. The Supreme Court in Zedner addressed the propriety of a district court's grant of a continuance when the court did not make express findings on the record either orally or in writing regarding the end-of-justice balance. Zedner, 547 U.S. at 506, 126 S.Ct. 1976. Here, it is clear that the Court made formal written findings on this issue close in time to the hearing and, as such, Zedner is distinguishable.
Finally, Burwell asserts that "at no point did counsel ever explain to Petitioner his right to a speedy trial, or the mandatory dismiss[al] for that violation.... Had counsel done so in this case, Petitioner would have insisted that a motion to dismiss was filed." Def.'s Memo. at 14. Even assuming arguendo that Burwell's counsel did commit an error by not advising of him of his statutory Speedy Trial
Given that the Court followed the required process for tolling time under the Speedy Trial Act regardless of whether Burwell consented to the tolling, Burwell cannot establish that his counsel acted in an objectively unreasonable manner by failing to move to dismiss the case on the basis that the Court violated the 70-day requirement of the Act, nor can he establish that there is a reasonable likelihood of a different result had trial counsel made such a motion.
Burwell next argues that his trial counsel was ineffective by failing to raise double jeopardy and multiplicity challenges to the indictment prior to trial and for failing to move to dismiss the indictment based on this challenge. Def.'s Memo. at 15-18, 21, 24-25; Def.'s Reply at 1-2. Specifically, Burwell objects to Count I of the indictment, conspiracy to participate in a racketeer influenced corrupt organization ("RICO") pursuant to 18 U.S.C. § 1962(d), which Burwell argues is multiplicitous of the other charged robbery offenses. Def.'s Memo. at 15-18, 21; Def.'s Reply at 2. Burwell also argues that his multiple charges under 18 U.S.C. § 924(c), using and carrying a firearm during and in relation to a crime of violence, were improper. Def.'s Memo. at 16-17; Def.'s Reply at 2. Burwell's claims for ineffective assistance of counsel on these issues fail because: (1) his trial counsel did challenge the RICO charge, Count I, prior to trial on the grounds that it was multiplicitous and Burwell raises no additional valid arguments that his counsel should have advanced;
Turning first to the RICO charge, Burwell's counsel filed a Joint Defense Motion to Dismiss the Indictment due to Multiplicitous and Duplicitous Charging prior to trial. Sealed Jt. Def.'s Mot. to Dismiss Indictment, ECF No. [172]. The Court issued a Memorandum Opinion on March 16, 2005, finding that Burwell's arguments were without merit. Memo. Op. (Mar. 16, 2005), at 13-22, ECF No. [437]. While
Burwell asserts that the RICO charge required proof that Burwell: committed the robberies at issue; protected members of the enterprise; maintained weapons, body armor, and money of the enterprise in safe places; and retaliated against persons who interfered with the operation of the enterprise. Burwell argues that this conduct also forms the bases of other charged offenses for which Burwell was convicted and, accordingly, the RICO charge violates the Double Jeopardy clause. Def.'s Memo. at 15. Burwell provides a lengthy quote from the Second Circuit's holding in United States v. Basciano, 599 F.3d 184 (2d Cir.2010), in support of his argument.
Further, to the extent that Burwell may be arguing that the RICO charge (Count I), and the armed robbery of the Industrial Bank on or about June 12, 2004 (Count X) are multiplicitous charges, an argument that does not appear to have been advanced in his pre-trial motion, the Court finds that this argument also is without merit.
Here, Count I charges racketeering acts that require the Government to establish an "enterprise" and the "continuing" commission of stated offenses such as armed robbery and acts involving murder. In contrast, Count X is a charge for the substantive crime of armed robbery. Given the clear congressional intent to allow RICO violations to be prosecuted separately from underlying offenses, the Court finds that Counts I and X are not multiplicitous in violation of the Double Jeopardy clause. Accordingly, the Court cannot conclude that trial counsel acted in an objectively unreasonable manner by not raising this specific challenge to Burwell's indictment.
Turning to Burwell's argument regarding Count XI, using and carrying a firearm during a crime of violence under 18 U.S.C. § 924(c), Burwell points to case law to support his argument that the charge under this section was improper. Burwell cites the D.C. Circuit's ruling in United States v. Anderson, 59 F.3d 1323 (D.C.Cir. 1995) (en banc), in which the Circuit held that a defendant could not be convicted of multiple counts of using or carrying a firearm during and in relation to a drug trafficking crime under 18 U.S.C. § 924(c)(1), if each of the charges was tied to the same predicate offense, in that case a narcotics conspiracy. Anderson, 59 F.3d at 1324-25, 1334. Burwell also cites to the D.C. Circuit's holding in United States v. Wilson, 160 F.3d 732 (D.C.Cir.1998), that a defendant cannot be convicted of more than one offense under 18 U.S.C. § 924(c), based on one use of one firearm but with two underlying offenses. Id. at 748-50. Anderson and Wilson are not instructive because those cases deal with the propriety of convicting a defendant of more than one violation of 18 U.S.C. § 924(c), and in the instant action, Burwell was charged with only one count (Count XI), of using and carrying a firearm during a crime of violence under section 924(c).
Burwell next alleges that his trial and appellate counsel rendered ineffective assistance of counsel by failing to raise a Confrontation Clause challenge to records and affidavits admitted into evidence at trial to establish that the banks that were robbed were Federal Deposit Insurance Corporation ("FDIC") insured, one of the elements of Count II. Specifically, Burwell objects to the admission of documents establishing the insured status of four banks—Bank of America, Riggs Bank, Chevy Chase Bank, and SunTrust—along with affidavits attesting to the fact that the documents were official records of the FDIC; the records and accompanying affidavits were admitted into evidence at trial without objection. See Ex. CCB-001 (Proof of Insured Status for Chevy Chase Bank), ECF No. [837-1]; RB-001 (Proof of Insured Status for Riggs Bank), ECF No. [837-2]; BOA-001 (Proof of Insured Status for Bank of America), ECF No. [837-3]; SUN-001 (Proof of Insured Status for SunTrust Bank), ECF No. [837-4]. The Court finds that this claim is without merit for the several reasons described below.
First, Burwell's claim fails because the official records and accompanying affidavits were not testimonial and, thus, do not invoke Confrontation Clause challenges. As the Government properly points out, the records themselves were admitted into evidence under the public records exception to the hearsay rule. See Fed.R.Evid. 803(8) (Hearsay Exception for Public Records). Further, the affidavits were admitted pursuant to Federal Rule of Evidence 902(4), to establish that the evidence was self-authenticating as certified copies of public records.
Burwell relies on the Supreme Court's holding in Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), in support of his Confrontation Clause argument. In Melendez-Diaz, the Supreme Court held that affidavits showing the results of forensic analyses performed on seized substances are testimonial statements and, accordingly, analysts are witnesses under the Confrontation Clause of the Sixth Amendment. Id. at 309-11, 129 S.Ct. 2527. The Court clarified that affidavits "`made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,'" id. at 311, 129 S.Ct. 2527 (quoting Crawford v. Washington, 541 U.S. 36, 52, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)), are testimonial statements and, accordingly, the authors of such affidavits are witnesses for the purposes of the Confrontation Clause of the Sixth Amendment. Id. at 311, 129 S.Ct. 2527. The Court found that "[a]bsent a showing that the [authors of the affidavits] were unavailable to testify at trial and that petitioner had a
Indeed, the Supreme Court in Melendez-Diaz, appeared to distinguish between situations in which an affidavit is used to authenticate an otherwise admissible record from an affidavit created for the sole purpose of providing evidence against a defendant. See Melendez-Diaz, 557 U.S. at 322-23, 129 S.Ct. 2527. This Court itself has held that an affidavit certifying the authenticity of a record is not testimonial and, accordingly, not subject to the Confrontation Clause. As this Court held, "[i]t is the records, not the certification, that are introduced into substantive evidence against the defendant during trial. The certifications at issue are simply `too far removed from the `the principal evil at which the Confrontation Clause was directed' to be considered testimonial.'" United States v. Edwards, Crim. Case No. 11-129-1, 1, 11(CKK), 2012 WL 5522157, at *2 (D.D.C. Nov. 15, 2012) (quoting United States v. Ellis, 460 F.3d 920, 920 (7th Cir.2006)). The Court finds the affidavits were not testimonial within the meaning of the Confrontation Clause because the affidavits in question were created only to certify the authenticity of the public records, and not to provide substantive evidence against Burwell at trial.
Second, Burwell's claim fails because there was independent testimony at trial that each of the four banks were FDIC-insured and Burwell's counsel was presented with the opportunity to cross-examine these witnesses on the issue. Tr. 1216:6-21 (Apr. 18, 2005) (Testimony of Viola J. Scott, banking center manager at Bank of America branch); Tr. 1463:23-1464:10 (Apr. 19, 2005) (testimony of Ricardo Young, assistant manager at Riggs Bank branch); Tr. 1543:5-19 (Apr. 20, 2005) (Testimony of Jacqueline Caldwell, bank manager at Chevy Chase Bank branch in Hyattsville, MD); Tr. 1634:15-23 (April 20, 2005) (Testimony of Curtis Oliver, branch manager at Chevy Chase Bank branch in Silver Hill, MD); Tr. 2168:11-2169:2 (Apr. 25, 2005) (Testimony of Charlene Hollings, branch manager of SunTrust Bank branch). Finally, Burwell's claim fails because he has not pointed to any evidence that his counsel failed to present that refuted the assertion that the banks were in fact FDIC-insured, nor does Burwell himself at this juncture appear to be claiming that the banks were not FDIC-insured.
Given that the evidence in question does not raise Confrontation Clause concerns and that defense counsel was presented with the opportunity to cross-examine witnesses who testified that each bank was FDIC-insured, the Court finds that both trial counsel and appellate counsel did not act in an objectively unreasonable manner by failing to raise this challenge either at
Burwell next alleges that his counsel rendered ineffective assistance by failing to cross-examine witnesses, by failing to employ a "theory of defense," and by generally providing a "poor overall performance" at trial. The Court finds that Burwell has failed to establish that his trial counsel was deficient in any of these respects and, accordingly, his claims for ineffective assistance of counsel on these bases are without merit.
Burwell does not point to any specific witnesses whom his counsel failed to cross-examine. He simply explains that his counsel "during trial was ineffective with poor overall performance." Def.'s Memo. at 22. Specifically, Burwell argues that his counsel's strategy was to remain silent as much as possible due to Burwell's lesser role and lesser charges as compared to his codefendants. Id. Burwell further asserts that "[d]uring the trial[,] testimony from government witnesses was inconsistent and counsel still waited for other defense lawyers to object and [did] not applying any theory of defense what so ever." Id. at 23.
Under Strickland, in order to establish ineffective assistance of counsel, a defendant must show that his counsel's performance was deficient, and that the deficient performance prejudiced the defense. United States v. Brown, 398 Fed.Appx. 599, 600 (D.C.Cir.2010). However, the Court is not required to consider both prongs of the test if it can dispose of the claim on one or the other. Id. Here, Burwell has failed to meet the first prong because he has not shown that his counsel's performance was deficient. Burwell's vague claim that his counsel should have cross-examined unnamed government witnesses is insufficient to overcome the strong presumption that his counsel's representation at trial was adequate and reasonable. See United States v. Rush, 910 F.Supp.2d 286, 293-94 (D.D.C.2012) (holding that defendant's broad claim that counsel failed to secure and adequately explain the terms of her plea agreement was insufficient to overcome the presumption that her counsel's representation was reasonable); Simms v. United States, 730 F.Supp.2d 58, 61 (D.D.C.2010) (holding that "vague and conclusory" allegations that counsel's representation was ineffective are not enough to overcome the strong presumption of effective representation). Indeed, Burwell has pointed to no specific witnesses that he argues his attorney should have cross-examined, other than generally referring to the testimony of "government witnesses," that spanned over roughly eight weeks.
Burwell's allegation that his counsel employed "no theory of defense" and, thus, was ineffective similarly fails. While Burwell asserts that his counsel employed no "theory of defense," in the same passage he does indicate that his counsel employed the strategy of minimally speaking at trial to deflect focus away from Burwell and on to his codefendants who allegedly had played a larger role in the conspiracy. Def.'s Memo. at 22-23. Indeed, the assertion that Burwell's counsel made a strategic decision to allow codefendants' counsel to speak more frequently in order to draw attention away from Burwell's alleged role
Burwell has made no specific arguments to support the contention that his trial counsel's performance was deficient by failing to cross-examine unspecified witnesses, employing "no theory of defense," or generally providing what Burwell deemed a "poor overall performance" at trial with no specific information. Accordingly, Burwell's ineffective assistance of counsel claims on these bases fail.
Burwell raises the claim that his counsel was ineffective by failing to allow him to testify on his own behalf despite Burwell "plead[ing] with counsel" to be able to do so. Def.'s Memo. at 22. The D.C. Circuit explained that ineffective assistance of counsel claims premised on the argument that a defendant was denied his right to testify on his own behalf should be analyzed in a manner consistent with the two-part Strickland test. United States v. Tavares, 100 F.3d 995, 998 (D.C.Cir.1996), cert. denied, 520 U.S. 1160, 117 S.Ct. 1344, 137 L.Ed.2d 502 (1997). The Court must "continue to assign special significance to the defendant's precluded right to testify and at the same time to inquire whether it is reasonably probable that the defendant's testimony would have changed the outcome of the trial in his favor." Id. Indeed, a defendant's testimony would have no impact or a negative impact at trial in some cases. Id.
The Court first notes that in the instant action, Burwell was placed under oath on June 13, 2005, and Burwell, after being fully advised of his right to testify by the
Burwell next argues that his trial counsel was ineffective by failing to challenge government misconduct at trial or on appeal. Def.'s Memo. at 24, 28. Generally, Burwell asserts that from a review of the trial transcripts, "it is clear that the government vouched for its witnesses and made several prejudicial remarks to the jury during closing." Id. at 24. Burwell also alleges that two coconspirators turned government witnesses both testified that they were not expecting and had not been promised any benefit for testifying at trial. Id. The Court shall address each claim in turn.
First, the vague assertion regarding the government's closing argument is insufficient to establish that Burwell's counsel's performance fell below an objective standard of reasonableness. Indeed, Burwell cannot overcome the strong presumption that his counsel acted reasonably by simply lodging a vague objection that the government vouched for unidentified witnesses and made prejudicial remarks during closing without citing a single example of objectionable conduct. See United States v. Moore, 651 F.3d 30, 85 (D.C.Cir. 2011) (Defendant must raise a "`colorable claim' by making `factual allegations that, if true, would establish a violation of his sixth amendment right to counsel.'"); United States v. Rush, 910 F.Supp.2d 286, 293-94 (D.D.C.2012) (requiring more than a broad claim that counsel failed to secure and adequately explain the terms of a plea agreement to overcome the presumption that defense counsel's representation was reasonable). Accordingly, the Court finds that Burwell's claim that his trial and appellate counsel were ineffective by failing to challenge unspecified incidents of prosecutorial misconduct is without merit.
Accordingly, Burwell cannot establish that either his trial or appellate counsel was ineffective for failing to object to, or raise on appeal, this issue, because it is clear from the record that neither witnesses testified that he was not expecting any benefit in exchange for testifying.
Burwell next argues that his counsel was ineffective by failing to use the allotted time for closing argument in an efficient manner. Def.'s Memo. at 23. Specifically, Burwell asserts that his counsel used an ineffective strategy by choosing to use half of the 30-40 minutes to deliver an anecdote. Id. "[C]ounsel has wide latitude in deciding how best to represent a client, and deference to counsel's tactical decisions in his closing presentation is particularly important because of the broad range of legitimate defense strategy at that stage." Yarborough v. Gentry, 540 U.S. 1, 5-6, 124 S.Ct. 1, 157 L.Ed.2d 1 (2003). Accordingly, "[j]udicial review of a defense attorney's summation is ... highly deferential." Id. at 6, 124 S.Ct. 1. In order to show that his counsel's closing argument was ineffective as to violate the Sixth Amendment, Burwell must meet the Strickland test by showing that (1) his counsel's representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Smith v. Spisak, 558 U.S. 139, 149, 130 S.Ct. 676, 175 L.Ed.2d 595 (2010) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Here, Burwell's claim fails because neither prong of the test is met based on the record.
First, Burwell's counsel's use of an anecdote during closing was not objectively unreasonable. See Tr. 7881:7-7883:23 (Jun. 20, 2005). In his closing argument, Burwell's counsel first reminded the jury that the burden of proof rested at all times with the Government, and reminded the jury of the charges that specifically were pending against Burwell. Id. at 7872:1-7873:4. Burwell's counsel then spent a large amount of time attacking the government's evidence against Burwell, and emphasizing evidence that demonstrated Burwell's innocence. Id. at 7873:5-7881:6. Finally, Burwell's counsel chose to employ an anecdote about defense counsel and his brother eating a pie and then blaming it on a cat to avoid being punished by their mother to close
Burwell next argues that his trial counsel rendered him ineffective assistance of counsel by failing to request an "informant jury instruction." Specifically, Burwell asserts "the jury need[ed] to be instructed to scrutinize the informant testimony more carefully than other witnesses, even biased witnesses, because of the potential for perjury born out of self-interest." Def.'s Memo. at 20. Burwell points to the testimony of two codefendants turned government witnesses in relation to this claim. Id.
Burwell's claim fails because the record reflects that the Court did, in fact, give instructions regarding witnesses with plea agreements and witnesses who are accomplices. The instructions as read during trial follow:
Tr. 7996:1-7997:16 (Jun. 21, 2005).
Accordingly, Burwell's ineffective assistance of counsel claims fail on this issue because the Court did give the relevant instruction.
Next, Burwell argues that his trial counsel rendered him ineffective assistance of counsel by failing to request a theory-of-defense jury instruction. Def.'s Memo. at 23-24. "A theory-of-defense instruction is in order if there is `sufficient evidence from which a reasonable jury could find' for the defendant on his theory." United States v. Hurt, 527 F.3d 1347, 1351 (D.C.Cir.2008). In assessing Burwell's claim, the Court again employs the Strickland test for ineffective assistance of counsel. See id. at 1356.
As an initial matter, Burwell's claim fails because he does not point to any specific theory-of-defense instruction to which he believes that he was entitled. Rather, he simply states that his counsel should have requested such an instruction without any specificity. Furthermore, the Court gleans from the record and the instant motion that Burwell's defense consistently has been that he was not present at the specific bank robbery to which he was charged as corroborated by an alibi, and that his DNA was present on one of the vests because he had previously owned it. Indeed, the Court is unable to identify any other defense advanced by Burwell. Here, while Burwell's counsel did not request a specific theory-of-defense instruction, see Tr. 8050:1-8051:1 (Jun. 21, 2005), the Court did give a particularized alibi instruction in which Burwell was identified:
Id. at 8049:12-25.
Given that the jury instruction regarding alibis related to Burwell, the Court cannot find that defense counsel's failure to also request another theory-of-defense instruction fell below an objectively unreasonable standard in light of professional norms. Nor can the Court conclude that the outcome would have been different if trial counsel had requested a theory-of-defense instruction given that the instructions as a whole convey the substance of Burwell's defense in light of the alibi instruction. Cf. Hurt, 527 F.3d at 1351 (holding that a trial court's mistaken refusal of a requested jury instruction is not a reversible error if the instructions as a whole adequately convey the substance of the requested instruction). Accordingly, the Court finds that Burwell's claim that his trial counsel rendered him ineffective assistance of counsel by failing to request a theory-of-defense instruction is without merit.
Burwell asserts that he was rendered ineffective assistance of counsel because his trial counsel failed to request a polling of the jury after the verdict. Burwell argues that his counsel should have made this request due to "ambiguous markings on the verdict form," the potentially confusing wording of the jury form, and the emotion of the foreperson when reading the verdict.
Next, Burwell argues that his trial counsel failed to effectively represent him when allegations of juror misconduct and bias arose, and that his appellate counsel failed to raise the issue on appeal. Def.'s Memo. at 25-26, 28. Allegations of juror misconduct were raised in two post-trial motions by trial counsel. On August 15, 2005, codefendant Miguel Morrow filed a Motion for a New Trial which the Court considered on behalf of Burwell as well as the other codefendants.
The Court held an evidentiary hearing on the issue of juror misconduct on October 31, 2005 and Juror #1, who was the only juror who provided information relied upon by Defendants, testified under oath. Min. Entry (Oct. 31, 2005); Morrow, 412 F.Supp.2d at 152. However, in keeping within the confines of Federal Rule of Evidence 606(b),
On April 7, 2006, Morrow filed a second motion for a new trial, alleging juror misconduct on the basis that Juror #2, the foreperson of the jury, lied or omitted facts during voir dire regarding her relationship with Jerrold E. Vincent, a person
Burwell's arguments in the instant motion appear to center around the first motion for a new trial, involving the claims made by Juror #1. See Def.'s Memo. at 25-26 (only mentioning the juror misconduct claims raised by Juror #1 and not those surrounding Juror #2). Burwell raises two specific objections to his counsel's performance at the October 31, 2005 hearing: (1) Defense counsel should have subpoenaed the other jurors who were identified by Juror #1 as the possible sources of misconduct; and (2) Defense counsel should have taken the stand to "present evidence regarding his personal knowledge of the alleged misconduct garnered while talking to Juror NO.1, and/or any other jurors involved." Def.'s Memo. at 26. The Court shall address each challenge in turn.
Turning first to Burwell's charge that his counsel should have subpoenaed the other jurors to testify at the October 31, 2005 hearing, the Court notes that it limited the presentation of evidence at that hearing. The Court held a hearing on the issue of the alleged juror misconduct in light of the vague allegations of juror misconduct made in the Defendants' motion. As the Court set forth in a written Order prior to the hearing:
Order (Oct. 27, 2005), at 1, ECF No. [528]. The Court, citing its great discretion in the investigation of alleged juror misconduct, set the parameters of the hearing:
Id. at 2-3. Accordingly, it was the Court, and not defense counsel, that made the decision to hear from only Juror #1, the sole juror raising allegations of juror misconduct, during this hearing. Indeed, the purpose of the hearing was to place the allegations on the record so that the Court could make a decision as to whether a further hearing involving other jurors was necessary. After hearing the testimony of Juror #1, the Court determined that a further hearing was not necessary and expressly denied the Defendants' request to conduct a further hearing to take testimony from other jurors. See Morrow, 412 F.Supp.2d at 167 ("Upon a review of the record adduced at the October 31, 2005 hearing, the Court—in employing its discretion—finds that a more invasive hearing involving other members of the jury is unnecessary and not in the interests of justice."). Given that it was the Court's and not defense counsel's decision to only take testimony from Juror #1 at the evidentiary hearing, this is an improper basis for an ineffective assistance of counsel claim. Further, it is clear from the record that the defense counsel unsuccessfully attempted to persuade the Court to take testimony from the other jurors, a request that the Court denied as part of its lengthy written opinion. See Morrow, 412 F.Supp.2d at 174. Accordingly, Burwell's claim that his counsel was ineffective for failing to subpoena other jurors is without merit because such subpoenas would have been fruitless given that the Court indicated that it would only hear testimony from Juror #1 at that hearing.
Burwell's second claim that his counsel should have testified fails for similar reasons.
Burwell also asserts that his appellate counsel rendered ineffective assistance of counsel by failing to argue during the appeal that he was entitled to a new trial based on the alleged juror misconduct.
In the instant action, Burwell's appellate counsel chose not to raise the issue of the alleged jury misconduct in favor of raising other claims on Burwell's behalf. Notably, Burwell's appellate counsel raised the issue of whether Burwell could be convicted of Count XI, under which he was sentenced to 360 months imprisonment, if the Government did not prove that Burwell knew that the weapon he was carrying while committing a crime of violence was capable of firing automatically. United States v. Burwell, 690 F.3d 500, 502 (D.C.Cir.2012); Judgment in a Criminal Case, ECF No. [615]. Ultimately, the D.C. Circuit reheard the issue en banc. See generally Burwell, 690 F.3d 500.
Here, the Court cannot conclude that appellate counsel's decision not to raise the issue of the alleged juror misconduct was objectively unreasonable given professional norms, nor can the Court conclude that if appellate counsel had raised this issue, that there is a reasonable probability of a different result on appeal. First, the D.C. Circuit has recognized for claims of juror misconduct, "[t]he trial court obviously is the tribunal best qualified to weigh the relevant factors and draw the conclusion appropriate." United States v. Williams, 822 F.2d 1174, 1189 (D.C.Cir.1987). Second, as the Government points out, the D.C. Circuit utilizes a "highly deferential" standard of review for a district court's denial of a motion for a new trial. Govt.'s Opp'n at 22 (citing United States v. Rouse, 168 F.3d 1371, 1376 (D.C.Cir.1999); see also United States v. Gloster, 185 F.3d 910, 914 (D.C.Cir.1999) ("We will reverse a district court's decision whether to grant such a motion [for a new trial] `only if the court abused its discretion or misapplied the law.'"). Finally, the Court finds that there is not a reasonable probability of a different result on appeal had the issue of juror misconduct been raised. As this Court noted, "Quite simply, the circumstances adduced by Defendants do not approach those other, far more egregious cases where the D.C. Circuit has previously found that no `prejudice' occurred and no new trial was warranted despite third-party contacts with the jury." Morrow, 412 F.Supp.2d at 174. Given the standard of review, the Court concludes that appellate counsel's failure to raise the alleged juror misconduct on appeal in favor of stronger claims such as the issue of statutory interpretation that the D.C. Circuit reheard en banc and that may have resulted in a reduction of Burwell's sentence by as much as 30 years, was objectively reasonable. See Jones v. Barnes, 463 U.S. 745, 751-52, 103 S.Ct. 3308, 77 L.Ed.2d 987
Next, Burwell argues that his trial counsel rendered ineffective assistance of counsel by failing to interview a key witness and failing to properly interview an alibi witness prior to trial. Def.'s Memo. at 18. Specifically, Burwell asserts:
Id. The Government's opposition is of little assistance on this issue as the Government simply conflates this claim along with other claims under the catchall "Strategy and Performance," and does not address it directly. Govt.'s Opp'n at 15-17. Instead, the Government proceeds to examine the defense's closing argument and the evidence that was presented, while Burwell complains about evidence that was not presented. Govt.'s Opp'n at 15.
The Strickland test applies to the issue of counsel's alleged failure to interview witnesses prior to trial. First, Burwell must establish that his counsel's alleged errors did not meet the objective standard of reasonableness under professional norms. Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "Where the case involves a failure to investigate, the `particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.'" United States v. McDade, 699 F.3d 499, 506 (D.C.Cir.2012) (quoting Strickland, 466 at 691, 104 S.Ct. 2052). If Burwell establishes deficiency in his counsel's performance, he also must establish that it is reasonably likely that the decision reached would have been different absent the errors. Id.
Here, the Court does not have enough information to determine whether either prong of the Strickland test is met. The Court notes that in compliance with the Rules Governing Section 2255 Proceedings 2(b)(5), Burwell declared and stated under penalty of perjury that his motion was true and correct. Def.'s Mot. at 13. Accordingly, the Court shall consider the motion and accompanying memorandum in support thereof to be affidavits. 28 U.S.C. § 1746; see also Weddington v. Zatecky, 721 F.3d 456, 464-65 (7th Cir.2013) (treating a federal habeas petition as an affidavit because it was declared and stated under penalty of perjury); Cf. Wehausen v. United States, 820 F.Supp.2d 128, 130 (D.D.C. 2011) (considering a declaration submitted by defense counsel uncontroverted by a defendant who did not sign his § 2255
Burwell raised concerns about trial counsel's assistance with relation to two witnesses. First, Burwell asserts that his counsel failed to investigate a witness who had information about the DNA evidence belonging to Burwell found on one of the flash jackets, however, Burwell does not identify this witness by name. The Court notes that one of Burwell's witnesses at trial, Reon Holloway, testified that Burwell gave him a camouflage vest (identified as Exhibit "Brinkley 26") in fall 2002 or spring 2003 and that Holloway sold the vest to Noureddine Chtaini around Christmas of 2003. Tr. 7462:21-7468:6 (Jun. 16, 2005). Burwell appears to assert that there is another witness who did not testify at trial but had information about one of the flash jackets admitted into evidence at trial. Second, Burwell argues that his trial counsel failed to properly interview another one of his witnesses who testified at trial. After a review of the record, it appears to the Court that Burwell is referring to Brenda Ramirez, a coworker of Burwell's wife who testified that she had spoken with Burwell on the phone on June 12, 2004, around the time of the robbery of the Industrial Bank. See Tr. 6805:21-6809:1 (Jun. 13, 2004).
Given that Burwell has not identified either witness by name and in an exercise of its discretion and pursuant to Rules Governing Section 2255 Proceedings 7(b), the Court shall require additional evidence to be submitted on the issue of counsel's failure to interview these two witnesses. Specifically, the Court shall require that Burwell file a sworn statement with the Court: (1) identifying the witness by name who was "key to connection of DNA on one of the flash jackets found at one of the alleged stash houses," and provide a proffer of what testimony that witness would have provided at trial; and (2) identifying the alibi witness by name (i.e. Brenda Ramirez or a different witness) who testified at trial but whom Burwell asserts was not properly interviewed. Once the Court has received this information from Burwell, the Court shall determine whether the Government will be required to produce a sworn statement from Burwell's trial counsel regarding his alleged failure to interview the witnesses identified by Burwell in his affidavit. Accordingly, the Court shall reserve its ruling on Burwell's request for an evidentiary hearing and on his motion only as to this issue. As previously mentioned, all other claims are denied.
Burwell raises for the first time in his reply that the Court erred in its jury instructions related to Count XI. Def.'s Reply at 7. Pursuant to Count XI, Burwell was charged with using and carrying a firearm during a crime of violence in violation of 18 U.S.C. § 924(c) or aiding and abetting that offense in violation of 18 U.S.C. § 2. Superseding Indictment (Feb. 15, 2005), at 24. Burwell asserts that the jury instructions related to aiding and abetting of the offense were erroneous in light of the Supreme Court's holding in Rosemond v. United States, ___ U.S. ___, 134 S.Ct. 1240, 188 L.Ed.2d 248 (2014).
Finally, Burwell seeks to incorporate into his motion the issues raised by his codefendants in their pending § 2255 motions. Def.'s Memo. at 28. Four of the codefendants with whom Burwell stood trial have § 2255 motions pending before the Court at this time.
Burwell in his reply asserts that he adopts codefendant Miguel Morrow's claim that his trial counsel rendered him ineffective assistance of counsel by failing to properly advise him regarding a plea offer that was extended to Burwell prior to trial that he ultimately rejected. Def.'s Reply at 8. Burwell's claim related to the rejected plea offer fails for several reasons. First, the rejected plea offer claim is raised for the first time in Burwell's reply and, accordingly, the Court need not consider the argument because the Government has not been afforded an opportunity to respond.
For the foregoing reasons, the Court finds no reason to set aside Burwell's conviction or sentence at this time. Accordingly, Burwell's [822] Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence is DENIED IN PART and HELD IN ABEYANCE IN PART. Specifically, the Court shall hold in abeyance its ruling on the ineffective assistance of counsel claim related to counsel's alleged failure to interview witnesses in order to allow for additional briefing on the issue. Burwell's Motion is denied as to all other claims.
An appropriate Order accompanies this Memorandum Opinion.
Notice to the Court of Plan at 3.
Order Setting Forth Trial Proc. in Crim. Cases (Feb. 23, 2005) at 7, ECF No. [202].
Fed.R.Evid. 606(b) (2005) (amended 2011).
Tr. 15:3-21 (Jan. 31, 2005), ECF No. [728].
