L. SCOTT COOGLER, District Judge.
This Court has for consideration Petitioner Biniam Asghedom's ("Asghedom's") motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The United States has responded in opposition to the motion. For the following reasons, the motion is due to be denied as without merit, and no evidentiary hearing is warranted.
For some period of time prior to October 2010, Drug Enforcement Administration ("DEA") agents had been investigating the drug trafficking activities of individuals associated with a residence at 108 Page Avenue in Birmingham, Alabama. Part of the investigation had focused on Asghedom, from whom agents had made two undercover purchases of cocaine. On each occasion on which undercover buys were made, Asghedom was driving a black GMC pickup truck registered to Sharia Harris. On other occasions when agents had him under surveillance, Asghedom was always driving the same truck. In late October or early November 2010, agents attached a self-contained, battery powered GPS tracking device to the undercarriage of the truck.
On December 1, 2010, DEA agents were conducting physical surveillance of Asghedom and located him in the area of 108 Page Avenue, driving the black GMC pickup truck. Later that evening, while continuing to conduct surveillance, a detective with the Birmingham Police Department saw Asghedom fail to signal a lane change. Accordingly, Asghedom was pulled over for the traffic violation. During the stop, Asghedom was asked for consent to search the vehicle, which he gave. Under the beverage holder in the center console of the vehicle, officers recovered a large clear plastic bag containing several smaller clear plastic bags each holding what was later determined through testing to be cocaine hydrochloride with a net weight of 495.9 grams. Underneath the plastic bags, officers also found an amount of cash totaling $14,650. Asghedom was arrested. Two fingerprints that matched Asghedom were later lifted from one of the plastic bags.
On November 27, 2012, Asghedom was charged in a one-count indictment with possession with the intent to distribute cocaine. Asghedom retained Rita Briles, and later Steven D. Eversole and Adam Bollaert of the Eversole Law Firm, as his counsel. Ms. Briles filed two motions to suppress evidence on Asghedom's behalf, which were each denied after evidentiary hearings were held. Trial commenced on March 3, 2014. The following day, the jury returned a verdict of guilty on the one-count indictment in which Asghedom was charged. After trial, Mr. Eversole and Mr. Bollaert each sought and were permitted to withdraw as counsel. This Court sentenced Asghedom to a term of imprisonment of 120 months. Judgment was entered on August 1, 2014. Ms. Briles then sought and was permitted to withdraw as counsel.
Through different retained counsel, Asghedom appealed his conviction and sentence. On March 29, 2016, the Eleventh Circuit decided Asghedom's appeal, affirming his conviction and sentence. The mandate was issued on April 27, 2016. On July 26, 2016, Asghedom filed a notice of writ of certiorari with the Supreme Court. On October 3, 2016, the Supreme Court denied Asghedom's writ of certiorari.
On June 13, 2017, Asghedom signed the present § 2255 motion, which was filed into the record on June 19, 2017. On October 17, 2017, the Court issued an order to show cause to the United States. On October 20, 2017, the United States filed a motion for a more definite statement regarding Asghedom's § 2255 motion. The Court granted the United States's motion, directing Asghedom to provide a more definite statement of his claims for relief. Asghedom filed his supplement to his § 2255 motion on November 28, 2017. The United States then responded in opposition to the motion.
In litigation stemming from a § 2255 motion, "`[a] hearing is not required on patently frivolous claims or those which are based upon unsupported generalizations. Nor is a hearing required where the . . . [movant's] allegations are affirmatively contradicted by the record.'" Holmes v. United States, 876 F.2d 1545, 1553 (11th Cir. 1989) (quoting Guerra v. United States, 588 F.2d 519, 520-21 (5th Cir. 1979)). However, it is appropriate for the Court to conduct an evidentiary hearing if, "`accept[ing] all of the . . . [movant's] alleged facts as true,'" the movant has "`allege[d] facts which, if proven, would entitle him to relief.'" Diaz v. United States, 930 F.2d 832, 834 (11th Cir. 1991) (internal citations omitted).
Asghedom raises five claims, each alleging ineffective assistance of counsel by one of his trial attorneys, Ms. Briles: 1) she was ineffective for failing to call witnesses at trial and failing to hire a fingerprint expert; 2) she was ineffective for failing to allow Asghedom to testify on his own behalf at trial; (3) she was ineffective for asking questions during cross-examination that opened the door to evidence of Asghedom's involvement in a larger criminal enterprise; (4) she was ineffective for failing to object to the Court's treatment of a juror question; and (5) she was ineffective for failing to examine material evidence prior to trial, namely the plastic bag containing the cocaine on which Asghedom's latent fingerprints were discovered. Asghedom is clear that his allegations of ineffective assistance of counsel are directed solely at Ms. Briles, and not at any of the other attorneys he hired.
Claims of ineffective assistance of counsel may be raised for the first time in a § 2255 motion and are therefore not subject to procedural bar. Massaro v. United States, 538 U.S. 500, 504 (2003). Post-conviction relief will not be granted on a claim of ineffective assistance of trial counsel unless the petitioner can show not only that counsel's performance was deficient but also that such deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). More specifically, the petitioner must show that: (1) his counsel's representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for his counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 687-88.
In applying this framework, the Court should be "highly deferential" in evaluating counsel's performance and must bear in mind that "a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged performance, and to evaluate the conduct from counsel's perspective at the time." Id. at 689. The Court must also indulge a strong presumption that counsel's performance falls within the "wide range of reasonable professional assistance." Id.; see Bell v. Cone, 535 U.S. 685, 702 (2002) (holding that "tactical decisions about which competent lawyers might disagree" do not qualify as objectively unreasonable). A petitioner who seeks to overcome this presumption does not carry his burden by offering bare accusations and complaints, but rather "must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment." Strickland, 466 U.S. at 690.
Where a petitioner fails to show that his counsel's performance fell below an objective standard of reasonableness, the court need not address the issue of prejudice. See Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000). Where the court does consider this prong, the petitioner must show that counsel's errors were prejudicial and deprived the defendant of a "fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687. This burden is met by establishing by a reasonable probability that the outcome of the proceeding would have been different but for counsel's errors. Williams v. Threatt, 529 U.S. 362, 391-93 (2000); Strickland, 466 U.S. at 692.
Asghedom's first claim, that his trial counsel was ineffective for failing to call any witnesses on his behalf or hire a fingerprint expert to refute the United States's fingerprint expert's testimony, fails for several reasons.
First, Asghedom has failed to identify with specificity any witnesses who should have been called but were not, aside from stating generally that family members and friends could have testified as to his good character and "legitimate activities." His mere allegation that his counsel should have called witnesses is insufficient to sustain his burden of demonstrating that his counsel was ineffective in a § 2255 proceeding. See Beeman v. United States, 871 F.3d 1215, 1222 (11th Cir. 2017) (noting that petitioners bear the burden of proof under § 2255).
Second, to the extent that Ms. Briles, an experienced trial attorney, was involved in any decision regarding whether or not to call a witness,
These same principles are true with regard to the alleged failure to hire a fingerprint expert. Assuming Ms. Briles had some involvement in decisions concerning a fingerprint expert,
In any event, a decision not to hire an expert is a strategic decision not generally subject to review in habeas proceedings. See, e.g., Lovett v. State of Fla., 627 F.2d 706, 709 (5th Cir. 1980). As explained by the Eleventh Circuit in a § 2255 proceeding where the petitioner challenged the scope of his attorneys' investigation and the reasonableness of their strategic choices:
LeCroy v. United States, 739 F.3d 1297, 1313 (11th Cir. 2014).
Here, Ms. Stacy Loggins, a senior fingerprint analyst with the DEA, testified on behalf of the United States at trial that three latent prints were found on the plastic bag found in the vehicle Asghedom was driving when he was arrested and that only two of those prints were suitable for comparison, both of which matched Asghedom. (Trial transcript, criminal doc. 75 at 126-27.) On cross-examination, Asghedom's other counsel, Mr. Bollaert, asked Ms. Loggins if there were other latent prints and or partial prints that were not suitable for identification, and she admitted that there were. (Id. at 137.) Mr. Bollaert also established that because they were not suitable for comparison, Ms. Loggins could not testify who they belonged to. (Id.) Thus, through cross-examination, Mr. Bollaert elicited evidence that prints belonging to another person could have been on the exhibit. It very well may have been defense counsel's strategy to poke holes in the United States's fingerprint expert's testimony through cross-examination rather than to engage in a "battle of the experts," leaving the jury with conflicting opinions. See LeCroy, 739 F.3d at 1308. This Court's only task is to determine if that strategy was reasonable, see id. at 1313, and here, there is no doubt that it was.
For the foregoing reasons, Asghedom is not due to relief on his first claim of ineffective assistance of counsel.
Asghedom's second claim, which is that his trial counsel was ineffective because she did not permit him to testify on his own behalf or inform him of his right to testify, fails because it is contradicted by this Court's questioning of him. Indeed, this Court engaged in the following colloquy directly with Asghedom during trial:
(Trial transcript, criminal doc. 76 at 6-9.)
In light of this extensive explanation, there is no doubt that Asghedom understood his right to testify regardless of anything he now alleges his trial counsel did or didn't tell him.
Asghedom's third claim is that his trial counsel rendered ineffective assistance in asking questions on cross-examination of DEA Special Agent Ryan Knerr that opened the door to evidence that Asghedom was already under investigation by the DEA at the time of the traffic stop that led to his arrest.
The background on this claim is as follows. Prior to trial, Ms. Briles filed a motion in limine seeking to prohibit the United States from introducing evidence of a GPS vehicle tracker that had been placed on the car Asghedom was driving when he was arrested. (Criminal doc. 52.) In response, the United States stated that the issue was moot because it did not intend to offer evidence regarding the tracking device at trial. (Criminal doc. 55.) At the beginning of trial, the Court directed the United States to ensure that no evidence of the vehicle tracker be introduced. (Trial transcript, criminal doc. 75 at 3-4.) Seeking clarification, the United States inquired as to whether the Court would permit it to introduce evidence generally of the larger investigation in which Asghedom was a target since it was that investigation which led to the traffic stop that day. (Id. at 4-5.) The Court denied the United States's request, stating, "I have no problem with you saying that he [a DEA agent] directed somebody, he directed somebody [to stop the vehicle Asghedom was driving], but there won't be any discussions to why, period." (Id. at 8.)
In cross-examining Agent Knerr, Ms. Briles engaged in the following dialogue:
(Trial transcript, doc. 75 at 91-92.)
In light of this questioning, the United States then asked the Court to reconsider its ruling prohibiting inquiry into any evidence of the larger DEA investigation into Asghedom, arguing that the defense had opened the door by cross-examining Agent Knerr about why he had not followed up with the registered owner of the vehicle. The following exchange occurred:
(Trial transcript, doc. 75 at 94.)
On redirect of Agent Knerr, then, the United States introduced evidence about the investigation leading up to the traffic stop as follows:
(Trial transcript, doc. 75 at 99-101.)
Asghedom's claim that Ms. Briles rendered constitutionally ineffective assistance fails because he cannot overcome the strong presumption that her decision to cross-examine Agent Knerr in the way she did was sound trial strategy. See Chateloin v. Singletary, 89 F.3d 749, 752 (11th Cir. 1996) (there is a strong presumption that counsel's actions constitute sound trial strategy). Indeed, by planting some doubt in the minds of the jurors as to her client's connection to the car, Ms. Briles might well have created a reasonable doubt as to whether Asghedom knew that the drugs found in the console were there. She was also presumably attempting to show the jurors that the arresting officer was not doing his job properly in not attempting to find the rightful owner of the vehicle that Asghedom was driving that day. See Gordon v. United States, 518 F.3d 1291, 1302 (11th Cir. 2008) ("When we can conceive of a reasonable motivation for counsel's actions, we will deny a claim of ineffective assistance without an evidentiary hearing."). In light of the Court's emphatic directive that the United States's witnesses not comment in any way on why they encountered Asghedom that day, and in an effort to insert reasonable doubt, it was reasonable for Ms. Briles to have believed that this line of questioning was worth the risk of the United States pointing out that she had opened the door to evidence of the larger investigation. Keeping in mind the following admonition from the Eleventh Circuit,
White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 2012), the Court finds that Asghedom's fourth ineffective assistance of counsel claim fails.
Asghedom next argues that his trial counsel was ineffective for failing to object to the Court's decision not to reopen the evidentiary phase of the trial based upon questions asked by the jury during deliberations. By way of background, the trial transcript reveals the following exchange between the Court and the parties:
(Trial transcript, criminal doc. 76 at 66.)
Asghedom's claim that defense counsel should have requested that the Court reopen the evidence phase of the trial in order to answer the jury's question fails because such a request would not have been granted. Indeed, the only manner in which this Court could have lawfully answered the jury's questions was to have reopened the evidentiary phase of the case. While a district court's decision whether to reopen a case to introduce evidence after the parties have rested is discretionary, several factors inform the exercise of that discretion: (1) the timeliness of the motion to reopen; (2) the character of the testimony to be offered; (3) the effect of granting the motion to reopen; and (4) the reasonableness of the excuse for the request to reopen. United States v. Byrd, 403 F.3d 1278, 1283-84 (11th Cir. 2005). Here, the factors weigh strongly against reopening the case. With regard to timeliness, the question was asked after the jury was instructed and had already begun deliberations, which would have had to begin anew if additional evidence was introduced. With regard to the character of the evidence, it was of marginal relevance, if any, and would very likely have hurt Asghedom more than helped him. Indeed, Asghedom's argument that evidence of his relationship with the owner of the vehicle would have assisted his defense is purely speculative because, once the door was opened to that line of questioning, the United States could have delved into the evidence that had been presented to the Court in various pre-trial motions regarding the larger overall investigation into Asghedom's and others' drug trafficking activities. Further, the effect of reopening the evidentiary phase of the trial would have required halting the jury's deliberations and instructing them to deliberate as though the first deliberations had not occurred.
In sum, even if Asghedom's trial counsel had objected to the Court's instruction and moved the Court to reopen the case, such a motion would have been denied for the reasons set forth above. Thus, Asghedom's trial counsel was not ineffective for failing to raise an objection that would have been overruled by this Court.
Asghedom's last claim is that his trial counsel was ineffective for failing to examine latent fingerprint evidence discovered on the plastic bag containing the half-kilogram of cocaine that he was convicted of having possessed with the intent to distribute. Asghedom advances his argument by claiming that he was "certain that there were numerous other prints on the outer bag because it was a sandwich bag—and it was likely to have been touched by many others."
In making his claim, Asghedom offers no evidence in support of his assertion that there would have been identifiable latent fingerprints on the evidence other than his own. Moreover, he ignores evidence at trial that the only latent prints on the bag were his. As previously noted, Ms. Stacy Loggins, a senior fingerprint analyst with the DEA, testified that three latent prints were found on the plastic bag and only two of those prints were suitable for comparison, both of which matched Asghedom. (Trial transcript, criminal doc. 75 at 126-27.) On cross-examination, Asghedom's other counsel, Mr. Bollaert, asked Ms. Loggins if there were other latent prints and or partial prints that were not suitable for identification, and she admitted that there were. (Id. at 137.) Mr. Bollaert also established that because they were not suitable for comparison, Ms. Loggins could not testify who they belonged to. (Id.) Thus, through cross-examination, Mr. Bollaert
For the aforementioned reasons, Asghedom's § 2255 motion is due to be denied and this action dismissed with prejudice. Additionally, the Court declines to issue a certificate of appealability. This Court may issue a certificate of appealability "only if the applicant has a made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To make such a showing, a "petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable and wrong," Slack v. McDaniel, 529 U.S. 473, 484 (2000), or that "the issues presented were adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal quotations omitted). Asghedom's claims do not satisfy either standard. Accordingly, insofar as an application for a certificate of appealability is implicit in Asghedom's motion, it is due to be denied.
A separate closing order will be entered.