COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE.
On July 15, 2005, Malvin Palmer ("Palmer") 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 Bank of America located at 5911 Blair Road, N.W., Washington, D.C., on or about January 22, 2004 ("Racketeering Act 1") and the armed robbery of the Riggs Bank located at 7601 Georgia Avenue, N.W., Washington, D.C., on or about March 5, 2004 ("Racketeering
On August 3, 2004, a federal grand jury indicted seven of Palmer's codefendants in connection with a string of bank robberies that occurred in the District of Columbia and Maryland. Indictment (Aug. 3, 2004). On August 5, 2004, Palmer was added as a codefendant in the instant action by virtue of a superseding indictment. Superseding Indictment (Aug. 5, 2004). The United States Court of Appeals for District of Columbia Circuit ("D.C.Circuit") described the factual scenario:
United States v. Burwell, 642 F.3d 1062, 1064-65 (D.C.Cir.2011). The matter proceeded to trial in this Court, and Palmer was tried alongside five other codefendants. On July 15, 2005, a jury convicted Palmer on all eight counts upon which he was charged in the indictment. Verdict Form, ECF No. [476].
On May 12, 2006, this Court sentenced Palmer to 92 months of imprisonment on Count I, 60 months of imprisonment on Count II, 92 months of imprisonment on Count III, 92 months of imprisonment on Count VI, 92 months of imprisonment on Count VII, and 92 months of imprisonment on Count IX to run concurrently to each other. The Court also sentenced Palmer to 120 months of imprisonment on Count IV and 300 months of imprisonment on Count VIII to run consecutively to each other and to Counts I, II, III, VI, VII, and IX. See Judgment in a Criminal Case, ECF No. [636]. Palmer filed a timely appeal of his conviction and on April 29, 2011, the D.C. Circuit affirmed Palmer's conviction in a published opinion. United States v. Burwell, 642 F.3d 1062 (D.C.Cir. 2011), aff'd in part en banc, 690 F.3d 500 (D.C.Cir.2012). Palmer filed a petition for writ of certiorari which was denied by the Supreme Court of the United States. Palmer v. United States, ___ U.S. ___, 132 S.Ct. 329, 181 L.Ed.2d 205 (2011). Palmer currently is serving his sentence.
Pending before the Court is Palmer's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. Palmer's motion is premised on ineffective assistance of counsel claims related to his trial counsel, Atiq R. Ahmed, and his appellate counsel, Allen H. Orenberg. Specifically, Palmer claims that his counsel rendered him ineffective assistance by: (1) failing to raise a duplicity challenge to the indictment; (2) failing to challenge an alleged constructive amendment to the indictment; and (3) failing to raise a Confrontation Clause challenge to certain evidence.
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 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, 104, 131 S.Ct. 770, 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 presumption that counsel's conduct falls within the wide range of reasonable professional assistance," Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Moreover, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. 2052.
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-Lindsey, 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.
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. As explained below, Palmer has not proffered detailed and factual allegations outside of the record such that a hearing is required on the issues raised in his motion. Accordingly, the Court shall render its findings based on the parties' pleadings and the record.
Specifically, Palmer raises three ineffective assistance claims related to his counsel allegedly: (1) failing to raise a duplicity challenge to the indictment; (2) failing to challenge an alleged constructive amendment to the indictment; and (3) failing to raise a Confrontation Clause challenge to certain evidence. The Court shall address each claim in turn.
Palmer first contends that he was rendered ineffective assistance because his counsel failed to object to Counts IV and VIII of the indictment as duplicitous. Specifically, Palmer argues that "trial and appellate counsel[ ] is clearly constitutionally defective for their fatal failure to object and raise on direct appeal duplicitous charges as to count 4, 8, 11, and 16." Def.'s Memo. at 9. Palmer asserts that Counts IV and VIII were duplicitous based on the language of the indictment, coupled with the jury instructions and verdict form.
The Court finds that Palmer's ineffective assistance of counsel claim fails because his trial counsel did challenge Counts IV and VIII of the indictment as duplicitous. "Duplicity is the joining in a single count of two or more distinct and separate offenses." United States v. Hubbell, 177 F.3d 11, 14 (D.C.Cir.1999). "`The overall vice of duplicity is that the jury cannot in a general verdict render its finding on each offense, making it difficult to determine whether a conviction rests on only one of the offenses or on both.'" United States v. Washington, 127 F.3d 510, 513 (6th Cir.1997) (quoting United States v. Duncan, 850 F.2d 1104, 1108 (6th Cir.1988)). "`A general verdict of guilty will not reveal whether the jury found the defendant guilty of one crime and not guilty of the others, or guilty of all.'" United States v. Correa-Ventura, 6 F.3d 1070, 1081 (5th Cir.1993) (quoting 1 Charles A. Wright, Federal Practice and Procedure: Criminal 2D § 142 at 475 (1982)).
At the relevant time period, 18 U.S.C. § 924(c)(1)(A) criminalized and provided certain sentencing requirements for "any person who, during and in relation to any crime of violence ..., uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm...." Id.
As previously discussed, this Court in its March 16, 2005, Memorandum Opinion, found that § 924(c) criminalized two separate offenses: (1) using or carrying a firearm during and in relation to an applicable crime of violence, and (2) possessing a firearm in furtherance of an applicable crime of violence. Memo. Op. (Mar. 16, 2005), at 20. The Court permitted the government to proceed despite the potential for a duplicity issue because the government proposed using a special verdict form to ensure that the jury considered the different alternatives separately which was done in this case. Id. The issue before the Court is whether Palmer's counsel was ineffective by permitting jury instructions and a verdict form that did not adequately separate out the two offenses. For the reasons described, the Court finds that the jury instructions and verdict form properly supported Palmer's convictions under Counts IV and VIII because Palmer was only convicted of using or carrying a firearm during and in relation to an applicable crime of violence, and not of possessing a firearm in furtherance of an applicable crime of violence.
The Court instructed the jury regarding Counts IV and VIII as follows:
Tr. 8039:12-8040:1 (Jun. 21, 2005) (emphasis added). Further, the Court went on to explain the essential elements, "One, the defendant and others committed the crime of armed bank robbery ...; and two, during and in relation to the commission of that crime, the defendant knowingly used, brandished, discharged, carried or possessed a firearm." Id. at 8040:6-10. The Court then went on to provide definitions for both elements. First, the Court defined "crime of violence" as it related to the first element. Id. at 8040:11-20. Next, the Court defined and "knowingly," "uses or carries a firearm," "brandish," "discharge," and "possession." Id. at 8040:21-8043:1.
After deliberations, the jury returned a verdict form finding Palmer guilty of both Counts IV and VIII. In relevant parts, the verdict form read as follows: "
On May 22, 2006, this Court entered a judgment convicting Palmer in part of Counts IV and VIII. The judgment indicates that Palmer was adjudged guilty under both Counts IV and VIII of "Using and Carrying a Firearm During Crime of Violence." Judgment in a Criminal Case at 1, ECF No. [636]. The judgment entered by the Court does not indicate that Palmer was found guilty of the separate offense of possessing a firearm in furtherance of an applicable crime of violence in violation of § 924(c).
To the extent that Palmer is now arguing that his counsel failed to object to the jury instructions and verdict form because they omitted the "in furtherance of an applicable crime of violence" language as required for a conviction of possession, the Court finds that Palmer cannot establish that he was prejudiced by his counsels' failure to raise this issue either at the time of trial or on appeal. See also United States v. Lopez, 569 Fed.Appx. 109, 109 (3d Cir.2014) (noting that the "in furtherance" element applies only if the charge is for "possessing" a firearm); United States v. Brown, 669 F.3d 10, 29 (1st Cir.2012), cert. denied, ___ U.S. ___, 132 S.Ct. 2448, 182 L.Ed.2d 1076 (2012) (affirming a conviction where the verdict form used the language "in connection with" in relation to a section 924(c) violation, but the jury instructions properly defined "during an in relation to" a crime of violence, and "possess" a firearm "in furtherance of" a crime of violence). Indeed, the jury returned guilty verdicts under the "using or carrying a firearm during and in relation to an applicable crime of violence" provision of the statute and the Court used the "during and in relation to" language in the jury instructions, in the verdict form, and in its judgment. Accordingly, it is clear that even if counsel had objected to the failure to use the "in furtherance of" language related to the possession charge, Palmer still would have been convicted of both section 924(c) violations on the grounds that he used or carried a firearm during and in relation to an applicable crime of violence. For this reason, the Court finds that Palmer's ineffective assistance of counsel claim related to the alleged duplicity of Counts IV and VIII is without merit. Further, for the reasons described above, the Court concludes that Palmer's appellate counsel was not ineffective for failing to raise this challenge on appeal because Palmer has not shown that there is a reasonable probability that he would have succeeded on this argument if it had been raised on appeal. See Smith v. Robbins, 528 U.S. 259, 288, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000) ("[A]ppellate counsel who files a merits brief need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal."); Payne v. Stansberry, 760 F.3d 10, 13 (D.C.Cir.2014) (applying the
Palmer next argues that his counsel failed to object to the constructive amendment to the indictment through the instruction and verdict form given to the jury. Specifically, Palmer argues that his trial and appellate counsel were ineffective by failing to object to the inclusion of language regarding semiautomatic assault weapons in the jury instructions and verdict forms for Counts IV and VIII. Def.'s Memo. at 16-17. Palmers argues that he was convicted of two counts of violating 18 U.S.C. § 924(c) based on this constructive amendment to the indictment that his counsel failed to challenge. The Court finds that this argument is without merit for the reasons described herein.
Pursuant to 18 U.S.C. § 924(c)(1)(A), it is a crime to use or carry a firearm in relation to a crime of violence or a drug trafficking crime, or to possess a firearm in furtherance of such crimes. The statute proscribes different sentencing requirements depending on the type of firearm used. Specifically, if the firearm in question is a semiautomatic assault weapon, then the statute imposes a minimum 10-year term of imprisonment for the first violation of section 924(c), and if the firearm in question is a machinegun, then the statute requires a 30-year mandatory minimum sentence for a first violation of that provision. 18 U.S.C. § 924(c)(1)(B)(i)-(ii) (2004).
Here, Palmer was charged with and convicted of two counts of violating § 924(c)(1)(A), Counts IV and VIII. Count IV related to the bank robbery that occurred on January 22, 2004, and Count VIII related to the armed robbery that occurred on March 5, 2004. Superseding Indictment (Feb. 15, 2005), at 18, 22. Specifically, it was alleged in the indictment that Palmer "knowingly used, brandished, carried and possessed a firearm, that is, a machinegun, during and in relation to and in furtherance of a crime of violence ..., specifically, armed bank robbery...." Id. at 18, 22 (emphasis added). The jury convicted Palmer under both Counts IV and VIII. Verdict Form at 2, 4, ECF No. [476]. However, the jury found that it was proven that the firearm in question under both counts was a semiautomatic assault weapon, but not a machinegun. Id. at 3, 4.
Palmer alleges that the "[i]t is quite clear from the jury instructions and verdict form that counts 4 and 8 of Petitioner's indictment was amended so as to allow Petitioner to be found guilty of a Semi-Automatic Assault Weapon, which is an element of a separate and distinctive offense...." Def.'s Memo. at 15-16. Further, as the basis of his ineffective assistance of counsel claim, Palmer argues that had counsel challenged the alleged constructive amendment of the indictment either at the trial court level or on appeal, he would not have been convicted of two violations of § 924(c)(1)(A). Def.'s Memo. at 17. The government contends that there was no constructive amendment to the indictment and, instead, Palmer was simply convicted of a lesser included offense.
The Court finds Palmer's ineffective assistance of counsel argument unavailing because counsel could not have successfully argued that the indictment was constructively amended by the instructions given and the jury verdict form provided for several reasons. First, the Court concludes that Palmer's claim fails because he was charged in the indictment with violations of section 924(c) involving either a machinegun or a semiautomatic weapon. While Palmer argues that inclusion of the word "machinegun" in the description in the indictment precludes a conviction of violating section 924(c) through use of a different type of firearm, the Court finds this argument flawed based on a reading of the indictment. As Palmer correctly notes, the indictment for both Counts IV and VIII does reference "the firearm, that is, a machinegun." Superseding Indictment (Feb. 15, 2005), at 18, 22. However, under both Counts, the indictment also indicates that the charge is: "Using and Carrying a Firearm During a Crime of Violence, in violation of Title 18, United States Code, Section 924(c)(1)(A)(i)(ii)(iii), (B)(i) and B(ii), and 2." Id. (emphasis added). The Court notes that 18 U.S.C. § 924(c)(1)(B)(i) covers an offense involving an semiautomatic assault weapon and section 924(c)(1)(B)(ii) covers an offense involving a machinegun. 18 U.S.C. § 924(c)(1)(B)(i)-(ii). Notably, section 924(c)(1)(B)(i) only addresses the sentencing implications if the firearm is a short-barreled rifle, short-barreled shotgun, or semiautomatic assault weapon. Id. at (B)(i). Therefore, its inclusion in the indictment can only signal that the grand jury was indicting Palmer on these charges as related to a machinegun or, in the alternative, a semiautomatic assault weapon. Indeed, the inclusion of this statutory provision should have put Palmer on notice that he faced conviction under either provision of the statute. See United States v. Hitt, 249 F.3d 1010, 1026 (D.C.Cir.2001) ("`[B]asic principles of fundamental fairness' underlying the two key purposes of an indictment—notice to the defendant and protection against double jeopardy.").
The more specific language of the indictment supports this reading. Both Counts IV and VIII incorporate language from Count I of the indictment that provides a more detailed 16 description of the firearms alleged to have been used and carried by Palmer.
"To support a claim of constructive amendment, [defendant] would have needed to show that the evidence presented at trial and the instructions given to the jury so modify the elements of the offense charged that the defendant may have been convicted on a ground not alleged by the grand jury's indictment.'" United States v. Toms, 396 F.3d 427, 436 (D.C.Cir.2005) (quoting United States v. Sayan, 968 F.2d 55, 59 (D.C.Cir.1992)). However, not every divergence from the terms of indictment constitutes a constructive amendment. "Ultimately, whether an indictment has been constructively amended comes down to whether the deviation between the facts alleged in the indictment and the proof [underlying the conviction] undercuts the[ ] constitutional requirements' of the Grand Jury Clause: allowing a defendant to prepare his defense and to avoid double jeopardy." United States v. Bastian, 770 F.3d 212, 220 (2d Cir.2014) (quoting United States v. Rigas, 490 F.3d 208, 228 (2d Cir.2007)). Here, the jury instructions and the verdict form did not undercut Palmer's ability to prepare for trial. Indeed, he was aware that he was charged with, and needed to prepare a defense for, two violations of section 924(c) related to bank robberies that occurred on two specified dates. Furthermore, given the specificity of the indictment, there were not double jeopardy concerns because the incidents giving rise to the section 924(c) charges were clearly laid out.
Given that Palmer's alleged use of both a semiautomatic assault weapon and a machinegun in relation to the counts under section 924(c) were included in the indictment, the Court concludes that Palmer has
Finally, Palmer argues that his trial and appellate counsel rendered ineffective assistance of counsel by "failing to object and raise DNA Expert Heather Suebert['s] Testimonial Statement that was in violation of Petitioner's Sixth Amendment Rights to Confront all witnesses against him."
In Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), a case decided after this matter was tried, the Supreme Court of the United States 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 prior opportunity to cross-examine them, petitioner was entitled to `be confronted with' the [authors of the affidavits] at trial.'" Id.
Here, Palmer appears to contend that his Sixth Amendment right was violated by the admission of testimonial statements made by Suebert, the government's DNA expert, at trial. Suebert testified at trial on May 26, 2005, and June 1, 2005, and was cross-examined by Palmer's trial counsel. See generally Tr. 5381:21-5388:18 (Jun. 1, 2005) (cross examination of Heather Suebert by Palmer's trial counsel). Suebert's notes and reports do not raise Confrontation Clause issues because they were not admitted into evidence at trial, but rather were provided to the parties prior to trial to allow the parties to raise specific objections to the admissibility of the DNA evidence.
Given that the evidence in question does not raise Confrontation Clause concerns because it was not admitted into evidence at trial, because it was related by Suebert solely for the purpose of explaining the assumptions on which her opinion rested, and because defense counsel was presented with the opportunity to cross-examine Suebert at trial, the Court finds that both trial and appellate counsel did not act in an objectively unreasonable manner by failing to raise this challenge. Further, the Court finds that Palmer has not established that he is prejudiced in any way by either trial or appellate counsels' failure to raise this issue.
When the district court enters a final order resolving a petition under 28 U.S.C. § 2255 that is adverse to the petitioner, it must either issue or deny a certificate of appealability. Rules Governing Section 2255 Proceedings for the United States District Courts, Rule 11(a). By statute, "[a] certificate of appealability may issue... only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Such a showing demands that Palmer demonstrate that "reasonable jurists could debate whether ... the petition should have been resolved in a different manner or that the issues presented were `adequate to deserve encouragement to proceed further.'" Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)). For the reasons set forth above, the Court concludes that Palmer has failed to make that showing in this case, and, accordingly, no certificate of appealability shall issue from this Court. To the extent Palmer 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(b).
For the foregoing reasons, the Court finds no reason to set aside Palmer's conviction or sentence at this time. Accordingly,
An appropriate Order accompanies this Memorandum Opinion.
