COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE.
In January 2007, Duane Phillip Jones ("Jones") was convicted by a jury in this Court of: one count of unlawful possession with intent to distribute cocaine base known as crack cocaine (Count I); one count of possession a firearm in furtherance of a drug trafficking offense (Count II); and one count of unlawful possession of a firearm and ammunition by a person convicted of a crime punishable by imprisonment for a term exceeding one year (Count III). Presently before the Court is Jones' [64] Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence, and [93] Amended Motion to Vacate or Set Aside Pursuant to 28 U.S.C. § 2255.
On August 10, 2006, United States Deputy Marshals were dispatched to locate and arrest Jones for an outstanding warrant for first-degree murder issued by the Superior Court of the District of Columbia. The Marshals arrived at Clay Terrace in northeast Washington, D.C. While exiting his vehicle, Deputy U.S. Marshal James Cyphers ("Cyphers") made eye contact with Jones who took off running. Cyphers chased Jones for approximately 100 yards, during which time Cyphers heard a gunshot fired to his left. Cyphers pursued Jones into a stairwell and stopped him by grabbing him around the waist and pulling him down. Cyphers asked Jones whether he had "anything on" him. Jones indicated, "I have a burner in my waistband." Cyphers understood this statement to mean that Jones had a gun and another deputy marshal removed a loaded firearm from Jones' waistband. Jones then was placed in handcuffs and brought to a police car where he was patted down by third deputy marshal. During the pat-down search, a bag containing crack cocaine was located in Jones' back pocket.
On September 15, 2006, a grand jury indicted Jones in connection with Jones' possession of the firearm and crack cocaine. Indictment, ECF No. [1]. The matter proceeded to trial in this Court, and on January 24, 2007, a jury convicted Jones on all three counts of the indictment: Possession with Intent to Distribute 5 Grams or More of Crack Cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii); Possession of Firearm in Furtherance of a Drug Trafficking Crime, in violation of 18 U.S.C. § 924(c)(1)(A); and Possession of a Firearm and Ammunition by a Person Convicted of a Crime Punishable by Imprisonment for a Term Exceeding One Year, in violation of 18 U.S.C. § 922(g)(1). Verdict Form, ECF No. [30].
On June 11, 2007, this Court sentenced Jones to 135 months of imprisonment on Count I and 120 months of imprisonment on Count III to run concurrently. The Court also sentenced Jones to 60 months of imprisonment on Count II to run consecutively to Counts I and III. Judgment at 3 (Jun. 21, 2007), ECF No. [44]. The Court subsequently granted Jones' Motion for Retroactive Application of Sentencing Guidelines to Crack Cocaine Offense and on January 5, 2011, resentenced Jones to a term of 120 months of imprisonment on Count I due to a retroactive amendment to the sentencing guidelines; the sentences for Counts II and III were unaffected. Order (Sept. 27, 2010), ECF No. [63]; Order (Jan. 5, 2011), ECF No. [79]. Jones filed a timely appeal and on June 9, 2009, his conviction was upheld by the United States Court of Appeals for the District of Columbia Circuit ("D.C. Circuit") in a published opinion. See generally United States v. Jones, 567 F.3d 712 (D.C.Cir. 2009). Jones currently is serving his sentence.
Pending before the Court are Jones' original Motion and Amended Motion to vacate or set aside his sentence pursuant to 28 U.S.C. § 2255. See generally Def.'s Mot.; Def.'s Amend. Mot. Jones argues that his sentence should be set aside because both his trial and appellate counsel provided him with ineffective assistance of counsel. These claims are premised on Jones' argument that his trial and appellate counsel failed to adequately represent him after government counsel at trial allegedly published to the jury a piece of
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 assistance of counsel claims, the Court must give consideration to "counsel's overall performance," Kimmelman v. Morrison, 477 U.S. 365, 386, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986), and "indulge a strong
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. 08-3089, 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, the exhibits attached thereto, and the entire record in the criminal proceeding as well as based on its own recollection, the Court finds that there is no need for an evidentiary hearing on the instant motion. As explained below, Jones has not proffered detailed and factual allegations outside of the record or the Court's personal knowledge or recollection such that a hearing is required. Accordingly, the Court shall render its findings based on the parties' pleadings, the record, and its own recollection of the events at issue.
Jones' claims for ineffective assistance of counsel center around two events. First, Jones alleges that an unredacted version of a report including information previously deemed inadmissible as more prejudicial than probative was displayed to the jury during trial. Second, Jones alleges that he was denied his Sixth Amendment right to cross-examine the analyst who signed the laboratory report indicating that the substance seized from him was crack cocaine. The Court shall address the merits of each of Jones' specific allegations in turn.
Jones raises six claims of ineffective assistance of counsel stemming from the alleged display of one page of evidence, titled the "Report of Drug Property Collected, Purchased or Seized," commonly known as the "DEA-7," in its unredacted form during trial. Prior to trial, the Government indicated it would not disclose to the jury that the arrest warrant that the Marshals were executing when the firearm
As the Court will explain further below, the term "DEA-7" as used during this trial was shorthand for evidence consisting of three pages of which only the third page contained the pending charge. The front page of the evidence was the DEA laboratory analysis, and the second page contained photos of the recovered drugs. However, as the record reflects, the actual exhibit admitted into evidence at trial and (albeit confusingly) referred to by the prosecutor as the DEA-7 only consisted of the first two pages and not the last page (the actual DEA-7) that listed the pending homicide charge. The record further demonstrates that the actual DEA-7 was never admitted into evidence and also was never displayed to the jury.
Jones contends that the alleged display of the DEA-7 including the charge information took place via a document camera, more commonly known as an "ELMO," that projected the image of the paper document onto a screen during testimony. Govt.'s Opp'n to Def.'s Amend. Mot. at 7 & 7 n.2. As a result of this alleged display, Jones argues that his trial counsel provided ineffective assistance of counsel by: (1) failing to object when the Government displayed the evidence; (2) failing to make a clear record after the Government displayed the evidence; (3) failing to request a mistrial after the Government displayed the evidence; and (4) failing to request a curative instruction after the Government displayed the evidence. Jones further argues that his appellate counsel provided ineffective assistance of counsel by: (1) failing to correct the transcript record prior to the appeal; and (2) failing to establish that the jury did in fact see the unredacted DEA-7. The Government contends that the record establishes that there was no improper display of an unredacted version of the DEA-7. Govt.'s Opp'n to Def.'s Amend. Mot. at 14. Further, the Government argues that even if an unredacted version of the DEA-7 was displayed to the jury, Jones has not established that he was prejudiced by the display. Id. at 14-16. The Court finds that Jones has not established that the third page of the evidence described as the DEA-7 was displayed to the jury based on a plain reading of the corrected transcript as well as the Court's own recollection of the events at issue. Accordingly, the Court finds that Jones' ineffective assistance of counsel claims related to this issue fail because each claim relies on the veracity of Jones' assertion that the third page with the pending homicide charge was in fact displayed to the jury.
As already noted, the DEA-7 was originally part of Government's Exhibit 2(a) that consisted of three pages: the DEA Laboratory Report, photographs of the analyzed drugs, and the DEA-7 that contained the pending charge. Govt.'s Ex. A (Laboratory Report; Photographs; DEA-7); Govt.'s Opp'n to Def.'s Amend. Mot. at 8 n.3; see also United States v. Jones, 567 F.3d 712, 717 (D.C.Cir.2009). However, when seeking to admit Exhibit 2(a) at trial, the prosecutor explained: "Government 2(a) is a laboratory analysis report dated November 2, 2006 and signed by Ms. Lanette
Jones alleges that the display of the DEA-7 with the charge information came during the testimony of Detective Anthony Williams, who testified as an expert on the drug trade in the District of Columbia. Id. at 386:19-387:3. The relevant portion of the transcript follows:
Id. at 387:4-390:2 (emphasis added).
Jones contends that prior to the bench conference, an unredacted version of the DEA-7 indicating that an arrest warrant was issued for Jones for the charge of homicide, was displayed to the jury. Def.'s Amend. Mot. at 1-2. Neither party contends that the DEA-7 was provided to the jury as part of the exhibits and, accordingly, the only issues are whether page three of the evidence, the unredacted DEA-7, was displayed to the jury during trial and, if so, whether Jones was provided with ineffective assistance of counsel related to this display during trial and the subsequent appeal.
Several facts support the finding that the DEA-7 listing Jones' charge information was not displayed to the jury. First, it is clear from the record that when the Court admitted Exhibit 2(a), it was admitted as just two pages, consisting of the laboratory report and the photographs of the drugs. Id. at 239:6-12 (prosecutor's description of Exhibit 2(a)); id. at 240:12-13 (Court's description of Exhibit 2(a)); Id. at 240:15-19 (receiving Exhibit 2(a) into evidence without objection); Id. at 327:7-9 (Court's further description of Exhibit 2(a)). Second, it is clear from the record that the prosecutor colloquially referred to Exhibit 2(a) in its entirety as the "DEA-7," even though that was not the actual document he was referencing. See id. at
Jones argues that defense counsel's request to approach and discussion after the close of evidence demonstrates that the DEA-7 was displayed to the jury. Specifically, Jones argues "[t]he only rational explanation for trial counsel's immediate interjection is that the Government showed the unredacted DEA-7 to the jury." Def.'s Amend. Mot. at 2. Jones also contends that his counsel later clarifies that the unredacted DEA-7 had been shown to the jury. See id. At the close of evidence, the Court reviewed the exhibit and noted, "It's just the lab report. So the one that evidently indicated the arrest warrant charge, it doesn't seem to be part of the evidence, is that accurate?" Tr. 426:19-21 (Jan. 23, 2007). Defense counsel responded, "I didn't think it was and I'm sorry that I cut him off so quickly because Mr. Jones noticed it and I didn't think that was part of the exhibit which was why I was jumping up so quickly." Id. at 426:22-25. While the Court does not dispute Mr. Jones' claim that he informed his counsel about the DEA-7, this exchange does not indicate that the DEA-7 actually was displayed on the screen but rather that it was in the exhibits provided to defense counsel and Jones. The inclusion of the DEA-7 as part of the exhibit prior to being provided to the jury is further discussed between the Court and counsel at the close of evidence, and the Government indicates that the DEA-7 does not need to be included in the exhibit at all.
Further, the Court notes that this issue was raised on appeal and the D.C. Circuit also held that Jones failed to establish that the jury ever saw the DEA-7. United States v. Jones, 567 F.3d 712, 717 (D.C.Cir. 2009). After reviewing the transcript, the D.C. Circuit noted that "[a]lthough the prosecutor used Exhibit 2A when questioning an expert witness and repeatedly described it as `the DEA-7,' it is clear from the transcript that he used the term as shorthand to refer to the entire three-page document and only displayed the first page." Id. at 718.
Jones filed a letter with the instant motion from the court reporter correcting the version of the transcript that was relied on by the D.C. Circuit. The letter indicates that the transcript should be corrected to reflect that during the bench conference, Mr. Moore, Jones' trial counsel, indicated that the Government had placed the wrong "slide" on the projector, rather than the wrong "side" as the earlier version of the transcript indicated. Def.'s Ex. C (Letter from William D. McAllister). Jones argues that the difference between the word "side" and "slide" is noteworthy because "side" implies that the jury saw the blank back side of the exhibit whereas "slide" indicates that the jury was shown the wrong exhibit altogether. Def.'s Amend. Mot. at 1-2. The Court does not accept this reading of the transcript as corrected and, instead, finds that the substitution of the word "side" for "slide" does not alter the plain reading of the transcript, that the government counsel showed the laboratory report.
The D.C. Circuit did note that defense counsel's use of the term "side" in the uncorrected version of the transcript did lend itself to the reading that the unredacted version of the DEA-7 was not shown to the jury. In relation to defense counsel's statement that the wrong side was displayed, the D.C. Circuit noted:
Jones, 567 F.3d at 718. Jones now contends that the corrected record "reflects that trial counsel stated that the Government displayed the wrong `slide', meaning the wrong exhibit." Def.'s Amend. Mot. at 1-2. The Court disagrees that the distinction between side and slide demonstrates that the DEA-7 was shown to the jury based on it reading of the entire transcript as described above.
Finally, the Court notes that while the transcript itself begs the reading that the DEA-7 was never displayed to the jury, the Court itself has a recollection of the incidents at issue. The Court has a clear recollection that the Government never published to the jury the DEA-7 either in its redacted or unredacted form, but rather that the laboratory report that included no information about Jones' arrest warrant or the charge related to it was displayed.
Given that Jones' six ineffective assistance of counsel claims are premised on counsel's failure to properly represent him after this alleged display to the jury, the Court finds these related ineffective assistance of counsel claims also must fail. Jones has not established that his trial counsel committed an error by failing to object, failing to make a clear record, failing to request a mistrial, or failing to request a curative instruction, because the DEA-7 with the pending charge was not shown to the jury. Further, Jones has not established that appellate counsel rendered ineffective assistance of counsel by failing to correct the transcript record prior to the appeal or failing to demonstrate that the DEA-7 was in fact shown to the jury.
Finally, Jones asserts that appellate counsel was ineffective by failing to raise the issue on appeal of whether Jones had a Sixth Amendment right to cross-examine the analyst who completed a laboratory report admitted into evidence. Def.'s Mot. at 8. In making this argument, Jones relies on the Supreme Court of the United States' holding in Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). On June 25, 2009, 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 found that "[a]bsent a showing that the analysts were unavailable to testify at trial and that petitioner had a prior opportunity to cross-examine them, petitioner was entitled to `be confronted with' the analysts at trial.'" Id. at 311, 129 S.Ct. 2527. Jones argues that his appellate counsel erred by failing to argue on appeal that this Court committed an error by allowing the Government to introduce documents at trial signed by an analyst who did not appear at trial. Def.'s Mot. at 8.
In conformance with Strickland, Jones must first show "that his counsel was objectively unreasonable in failing to find arguable issues to appeal — that is, that counsel unreasonably failed to discover nonfrivolous issues and to file a merits
The parties entered into a written stipulation, signed by counsel for both parties and Jones himself, regarding the analysis of the seized substance. Govt.'s Ex. B (Parties' Stipulation). Specifically, the parties stipulated that the seized substance was crack cocaine, a Schedule II controlled substance. Id. Further, the parties stipulated that: the chain of custody was properly maintained; the laboratory analysis in question accurately reflected the results of the chemical analysis; and that Lanette Allison, the Forensic Chemist who completed the laboratory analysis, was qualified to perform the analysis and make the conclusions as set forth in the report. Id. In addition to providing the written stipulation, the stipulation also was read into the record at trial. Tr. at 238:20-239:16 (Jan. 23, 2007). Given that the report was admitted into evidence pursuant to a stipulation, Jones' Confrontation Clause claim fails. See United States v. Moore, 651 F.3d 30, 71 n. 13 (D.C.Cir.2011), aff'd ___ U.S. ___, 133 S.Ct. 714, 184 L.Ed.2d 570 (2013) (citing Bullcoming v. New Mexico, ___ U.S. ___, 131 S.Ct. 2705, 2709, 180 L.Ed.2d 610 (2011)). The Court further notes that Jones, in a stipulation that he personally signed, not only attested to the accuracy of the analysis, but also stipulated to the fact that the seized substance was in fact crack cocaine, a Schedule II controlled substance.
Further, the Court notes that Melendez-Diaz was decided two weeks after the D.C. Circuit affirmed Jones' conviction. See 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (decided June 25, 2009); United States v. Jones, 567 F.3d 712 (D.C.Cir.2009) (decided June 9, 2009). Accordingly, to the extent that Jones appears to be arguing that his appellate counsel should have raised the issue on his appeal, the Court notes that the Supreme Court's holding in Melendez-Diaz was not binding case law at the time of the appeal, nor was it relevant to the facts of this case given the parties' stipulation. Accordingly, the Court finds that Jones has failed to establish that his appellate counsel rendered ineffective assistance of counsel by failing to raise the issue of Sixth Amendment Confrontation Clause claim related to lab report analyzing the seized substance.
When the district court enters a final order resolving a petition under 28 U.S.C.
For the foregoing reasons, the Court finds no reason to set aside the Defendant's conviction or sentence. Accordingly, Jones' [64] Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence is DENIED, and [93] Amended Motion to Vacate or Set Aside Pursuant to 28 U.S.C. § 2255 is DENIED. Furthermore, no Certificate of Appealability shall issue from this Court. To the extent Jones intends to file an appeal, he must seek a Certificate of Appealability from the United States Court of Appeals for the District of Columbia Circuit in accordance with Federal Rule of Appellate Procedure 22. An appropriate Order accompanies this Memorandum Opinion.
