MEMORANDUM AND ORDER

KATHRYN H. VRATIL, District Judge.

On October 7, 2008, a jury found defendant guilty of armed bank robbery; using, carrying or brandishing a firearm during and in relation to a crime of violence; and possession of a firearm by a convicted felon. See Verdict (Doc. #104). On June 10, 2009, the Court sentenced defendant to 594 months in prison. See Judgment In A Criminal Case (Doc. #144). This matter is before the Court on defendant's Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (Doc. #184) filed February 16, 2012. For reasons stated below, the Court overrules defendant's motion.1

Factual Background

On direct appeal, the Tenth Circuit summarized the trial testimony as follows:

United States v. Hall, 625 F.3d 673, 675-80 (10th Cir. 2010).

On October 7, 2008, a jury found defendant guilty of armed bank robbery; using, carrying or brandishing a firearm during and in relation to a crime of violence; and possession of a firearm by a convicted felon. See Verdict (Doc. #104). Defendant asked for a mistrial because (1) the Court referred to his specific prior convictions when reading the indictment to the jury, and (2) the evidence was insufficient for a jury to find him guilty of the charged offenses. The Court found that the reference to defendant's prior conviction was not prejudicial because defendant planned to testify in any event and the Court independently admitted testimony about his prior offenses. See Memorandum And Order (Doc. #140) filed June 2, 2009 at 6. In overruling defendant's argument based on the sufficiency of the evidence, the Court found that even though the government presented circumstantial evidence, the evidence was substantial and overwhelming, and consisted primarily of the following: defendant was driving a vehicle which matched the description provided by bank employees; he attempted to elude police by driving for an extended period at a high rate of speed; during the chase, he and/or his passenger threw items from the vehicle including a shotgun (an exact match to the one used during the bank robbery), clothing items and money (including bank bait bills); one of the items discarded from the vehicle was a dark colored ski mask similar to that worn by the bank robber with DNA matching that of defendant on the mask; a Wal-Mart receipt in the vehicle showed the purchase of a dark colored ski mask and gloves; video surveillance showed that defendant and Morrison had gone to Wal-Mart the night before the robbery and purchased the mask and gloves; defendant testified that he loaned the vehicle to Morrison and another individual the day of the bank robbery for approximately one hour while he went to visit a former girlfriend at a halfway house in Leavenworth; several months after the government charged defendant, he sent letters to his former girlfriend and asked her to say that she was with him at the halfway house at approximately 2:00 p.m. on November 7, 2006; and defendant's former girlfriend testified that she was not with defendant that day at any time. See id. at 7-8.

On June 10, 2009, the Court sentenced defendant to 594 months in prison.

On appeal, defendant argued that during voir dire, the Court erred by referring to his conviction for bank robbery in 1984,2 the prosecutor exceeded the scope of permissible questioning about his prior offenses, and during closing argument, the prosecutor improperly referred to defendant's credibility in light of his prior convictions. The Tenth Circuit affirmed. See United States v. Hall, 625 F.3d 673 (10th Cir. 2010). The Tenth Circuit held that the district court's erroneous reference to defendant's prior conviction was harmless, the prosecutor's questioning did not substantially prejudice him and the prosecutor's comments during closing argument were not clearly improper.

Forrest A. Lowry initially represented defendant. Defendant alleged that he did not have faith in Lowry and did not believe that Lowry had given his case adequate attention. Defendant stated that he sought new counsel because under the local policy of the U.S. Attorney, Lowry would not allow defendant to personally review discovery. See Transcript Of Sentencing (Doc. #162) at 7-8; Traverse To The United States' Response To Hall's Motion Pursuant To 28 U.S.C. § 2255 (Doc. #203-1) at 2, 6. On May 15, 2007, at a hearing on defendant's pro se motion for new counsel, the Court allowed Lowry to withdraw and appointed Robin D. Fowler to represent defendant. Fowler represented defendant throughout the remaining pretrial proceedings and trial. In December of 2008, based on defendant's insistence that communication and trust with Fowler had completely broken down and that he did not believe a word that his attorney said, the Court allowed Fowler to withdraw and appointed Wendel S. Toth to represent defendant. In July of 2009, shortly after he filed an appeal, Toth asked the Tenth Circuit to appoint new counsel because of a breakdown in communication primarily related to disagreement on what issues to pursue on appeal. On July 8, 2009, the Tenth Circuit allowed Toth to withdraw and appointed Madeline Cohen, an Assistant Federal Public Defender, to represent defendant on appeal.

On February 16, 2012, defendant filed a pro se motion to vacate his sentence under 28 U.S.C. § 2255. Liberally construed, defendant's 83-page motion asserts that Fowler was ineffective in nearly every aspect of this case. Specifically, defendant argues that Fowler provided ineffective assistance because (1) he did not conduct adequate pretrial investigation related to DNA evidence, (2) he did not independently verify the investigator's conclusions about the willingness of witnesses to testify and the usefulness of their testimony, (3) he did not ensure that defendant's prior convictions for bank robbery were excluded at trial,3 (4) he did not call certain witnesses, (5) he did not effectively cross-examine government witnesses, (6) he did not notify the Court of differences between defendant and counsel, (7) he did not object to the discovery practice of the U.S. Attorney's Office, (8) he did not challenge the jury instruction on aiding and abetting, (9) he did not offer certain jury instructions, and (10) he abandoned his duty of loyalty.4 Defendant also argues that sentencing counsel (Toth) and appellate counsel (Cohen), provided ineffective assistance because they did not argue for application of Amendment 599 to the Sentencing Guidelines.

Analysis

The standard of review of Section 2255 petitions is quite stringent. The Court presumes that the proceedings which led to defendant's conviction were correct. See Klein v. United States, 880 F.2d 250, 253 (10th Cir. 1989). To prevail, defendant must show a defect in the proceedings which resulted in a "complete miscarriage of justice." Davis v. United States, 417 U.S. 333, 346 (1974).

To establish ineffective assistance of counsel, defendant must show that (1) the performance of counsel was deficient and (2) a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). To meet the first element, i.e. counsel's deficient performance, defendant must establish that counsel "made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. In other words, defendant must prove that counsel's performance was "below an objective standard of reasonableness." United States v. Walling, 982 F.2d 447, 449 (10th Cir. 1992). The Supreme Court recognizes, however, "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689; see United States v. Rantz, 862 F.2d 808, 810 (10th Cir. 1988).

Initially, the Court notes that defendant has challenged as ineffective nearly every aspect of Fowler's performance during pretrial investigation and trial. Strickland, however, mandates that the Court be "highly deferential" in its review of counsel's performance and "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." 466 U.S. at 689. The Court must not second-guess counsel's assistance with the benefit of hindsight simply because defendant was convicted. See id. Here, although counsel did not secure defendant's acquittal, his strategy and conduct was reasonable and highly competent. Based on the Court's observations of counsel's performance at trial and his obvious preparation, defendant's allegations are highly suspect both in number and in substance. Below, the Court addresses each of defendant's claims.

I. Pretrial Investigation (Claim 1)

Defendant argues that Fowler was ineffective because he did not conduct a meaningful pretrial investigation. In particular, defendant claims that counsel did not investigate DNA evidence and explain to Dr. Dean Stetler, defendant's retained DNA expert, what specific testing was necessary. Defendant asserts that the DNA profile on the ski mask and coat in his car "possibly" matched the partial DNA profile on the shotgun (which the government expert conceded excluded defendant and Morrison as contributors). Motion Under 28 U.S.C. § 2255 (Doc. #184) at 5. Defendant concludes that if Stetler had conducted further testing and testified that defendant and Morrison were not sources of the DNA on the ski mask and coat, the results of the trial would have been different. Id. at 6.

Defendant's claim is directly refuted by the record — which reflects that defense counsel decided not to call Stetler because his testimony "would hurt petitioner more than it would help." Id. In particular, counsel explained to defendant that Stetler would testify that defendant's DNA was "the major contributor on the mixture of the ski mask." Id. at 6-7. That conclusion was consistent with the testimony of the government expert witness. Defendant reasons that counsel could have explained that defendant's DNA was only on the ski mask because government experts cross-contaminated DNA from defendant's sample with DNA on the ski mask or Special Agent Arch Gothard planted defendant's DNA on the ski mask. Defendant has not proffered credible support for any such theories. Counsel's decision not to pursue defendant's suggested strategy was not deficient or prejudicial. At trial, defense counsel vigorously contested the government's DNA evidence by noting the lack of testing inside the gloves, the lack of testing of hairs on the ski mask, the fact that the ski mask contained the DNA of another unknown individual, the ease of transfer of DNA, and the possibility that defendant's DNA might have transferred to the ski mask even if he did not put it on (e.g., defendant put his hand in the plastic bag containing the mask to grab a pack of cigarettes, and various other scenarios). See Transcript Of Trial (Doc. #151) at 609-12. Defendant has not shown that counsel's strategy in challenging the DNA evidence without calling Stetler to testify was below the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689.

Even if defendant could somehow show that counsel's strategy on DNA evidence was deficient, he has not shown a reasonable probability that but for that strategy, the jury would not have convicted him. Id. at 694. As the Court noted in its order overruling defendant's motion for new trial, the evidence against defendant was "substantial and overwhelming." Memorandum And Order (Doc. #140) at 7. On appeal, the Tenth Circuit noted that even if the district court induced defendant to testify by reading his specific prior convictions, "the error was harmless because Mr. Hall would undoubtedly have been convicted had he not testified." 625 F.3d at 675; see id. at 683 ("And without the alibi defense[,] probably, even with it[,] the evidence was so overwhelming that any reasonable juror would have found him guilty."). Defendant has not shown that absent counsel's alleged errors related to DNA evidence, the jury likely would have reached a different result. The Court therefore overrules defendant's first claim for relief.5

II. Failure To Independently Verify Investigator's Conclusions (Claim 2)

Defendant argues that Fowler provided ineffective assistance because he did not independently verify his investigator's conclusions about the willingness of witnesses to testify and the usefulness of their testimony. Motion Under 28 U.S.C. § 2255 (Doc. #184) at 64. To rebut the "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance," Strickland, 466 U.S. at 689, defendant may show that his attorney's representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy. See Kimmelman v. Morrison, 477 U.S. 365, 384 (1986). Counsel has a duty to make reasonable investigations or to make a reasonable decision that particular investigations are unnecessary. Id. A decision not to investigate must be assessed under the circumstances, applying a "heavy measure of deference" to counsel's judgments. Id. (quoting Strickland, 466 U.S. at 691). A decision not to investigate cannot be deemed reasonable if it is uninformed, see Hooper v. Mullin, 314 F.3d 1162, 1170-71 (10th Cir. 2002), but defendant has not shown that counsel's alleged decision was uninformed.

Here, the record reflects that Fowler reasonably relied on his investigator's conclusions regarding various witnesses. See Wilson v. Simmons, 536 F.3d 1064, 1136 (10th Cir. 2008) (in preparing for trial, counsel may rely on efforts of co-counsel, investigators and experts and failure to conduct personal interviews not necessarily deficient performance); Walls v. Bowersox, 151 F.3d 827, 834 n.4 (8th Cir. 1998) (not unreasonable for lawyer to use surrogates to investigate and interview potential witnesses rather than doing so personally); Duran v. Bravo, No. CIV. 10-0743 JB/GBW, 2012 WL 2175768, at *13 (D.N.M. June 11, 2012) (attorney reliance on investigative reports reasonable); see also United States v. Glick, 710 F.2d 639, 644 (10th Cir. 1983) (attorney decision not to interview witnesses and rely on other sources of information, if made in exercise of professional judgment, not deficient performance). Counsel's decision not to independently verify all of the investigator's conclusions was not deficient. In addition, in light of the "substantial and overwhelming" evidence of his guilt, defendant has not shown a reasonable probability that but for counsel's failure to independently verify the investigator's conclusions, the result of the trial would have been different. Memorandum And Order (Doc. #140) at 7; see Strickland, 466 U.S. at 694.

Defendant specifically challenges Fowler's failure to personally interview Wing after e-mail communications in which she expressed reluctance to testify. In context, it appears that Wing did not want to testify for defendant because she did not want to admit that she had contact with him in violation of the terms of her probation and she did not think that her testimony would be helpful to him. Defendant claims that Fowler should have taken various measures to ensure that Wing would testify for him (directly contrary to the rebuttal testimony at trial which discredited his alibi). In e-mail communications with counsel's investigator, Wing stated that she could not recall seeing defendant on November 7, 2006 and that she would not perjure herself and take a chance of going back to prison. See Exhibit 22 to Traverse To The United States' Response To Hall's Motion Pursuant To 28 U.S.C. § 2255 (Doc. #203-1). In addition, counsel's investigator noted that defendant's sister (Lunsford) had stated that Wing remembered seeing defendant with another white male the day of the robbery. See id. Even if Wing had agreed to testify that she saw defendant with a white male on November 7, 2006 shortly before count time (2:00 PM), such testimony would not have provided defendant an alibi for the bank robbery at 1:36 PM. Moreover, it could actually suggest that she saw him and Morrison (without Lee) minutes after the robbery. In addition, even if Wing would have somehow provided defendant an alibi at 1:36 PM, defendant has not shown how such testimony would have exonerated him under the government's theory of aiding and abetting. In light of her reluctance to testify and her statements that her testimony would not help defendant, counsel could reasonably rely on his investigator's conclusion that Wing would not be a helpful witness. Defendant has not shown that counsel's failure to personally interview Wing was deficient or prejudicial.

The Court overrules defendant's second claim for relief.

III. Failure To Obtain Exclusion Of Evidence Of Prior Convictions (Claim 3)

Defendant raises some nine related claims challenging counsel's failure to obtain exclusion of evidence of prior convictions for bank robbery: (1) Fowler should have asked for a pretrial ruling under Rule 404(b), Fed. R. Evid., Motion Under 28 U.S.C. § 2255 (Doc. #184) at 27, 58; (2) Fowler purposefully introduced defendant's prior arrests "to curry favor with the court in avoiding a costly mistrial," id. at 43-44; (3) without defendant's consent, Fowler included statements in defendant's motion to sever counts that defendant intended to testify regarding the MidAmerican Bank case, id. at 45-46, and that ultimately he was forced to testify because Fowler allowed evidence of his prior convictions to be admitted; (4) Fowler did not tell defendant that at side bar during voir dire, the prosecutor withdrew her request to admit defendant's prior convictions under Rule 404(b), id. at 29-30; (5) Fowler did not request a curative instruction about defendant's prior bank robbery convictions, id. at 44, 75; (6) Fowler failed to present the agreed upon alibi defense without defendant testifying, id. at 59; (7) Fowler failed to notify the Court that the prosecutor falsely represented to the Court that defense counsel had opened the door to prior convictions to rebut and impeach his defense, id. at 68-81; (8) Fowler failed to object to the prosecutor's improper questions on cross-examination of defendant about his prior convictions, id. at 36; and (9) Fowler failed to object to the prosecutor's closing comments about defendant's prior convictions, id.

As noted above, defendant had two prior convictions for bank robbery: Shawnee Federal Savings in 1984 and Interstate Federal Savings & Loan in 1990. Shortly before jury selection, the parties announced that they had reached a stipulation that defendant had been convicted of felonies before November 7, 2007 and under federal law, defendant could not own or possess any firearm. Trial Exhibit 132; see Old Chief v. United States, 519 U.S. 172 (1997). As part of the Court's preliminary jury instructions, it read the entire Second Superseding Indictment — including Count 3 which referenced that defendant had been "convicted in 1984, of Bank Robbery, case number 84-40051-01; and in 1992, of Armed Bank Robbery and Use and Carry of a Firearm in Connection with a Crime of Violence, case number 92-20023-01." Second Superseding Indictment (Doc. #51) filed February 1, 2008. Defense counsel moved for a mistrial because the Court had specifically mentioned the substance of the prior convictions. Defense counsel admitted that even before the Court read the indictment, defendant intended to testify and that his direct examination would cover the 1992 conviction. The Court overruled defendant's motion for a mistrial on the assumption that the government's case against defendant was overwhelming and that defendant could renew his motion if the evidence was not substantial. United States v. Sullivan, 108 F. App'x 579, 581-83 (10th Cir. 2004) (affirming denial of mistrial for reference to arson conviction in indictment because jury heard no other reference to name or nature of prior felony conviction and substantial evidence against defendant); see also United States v. Colon, 278 F. App'x 588, 593 (6th Cir. 2008) (mistaken disclosure of prior conviction through reading of indictment harmless because district court instructed jury that indictment was not evidence and no further mention of prior conviction at trial); United States v. Clay, 346 F.3d 173, 177 (6th Cir. 2003) (inadvertent disclosure of nature of prior conviction not reversible error where evidence overwhelming and error likely did not materially affect verdict).

In written jury instructions, the Court included reference to prior "felony crimes," not the specific nature of those crimes. The Court also instructed the jury that an indictment is merely a charge or accusation and not evidence of any kind against defendant and does not create any presumption or permit any inference of guilt. Instructions To The Jury (Doc. #103), Inst. No. 15. The Court instructed the jury about the impact of a prior felony conviction as follows:

Id., Inst. No. 5.

In light of the substantial evidence of defendant's guilt and the Court's admonitions about the limited purpose of an indictment, the Court previously found that the isolated reference to defendant's bank robbery convictions in 1984 and 1992 was not prejudicial. See Memorandum And Order (Doc. #140) at 5-6. On appeal, the Tenth Circuit agreed that the voir dire reference to prior convictions was harmless. The Tenth Circuit stated as follows:

Hall, 625 F.3d at 682-83.

Defendant argues that Fowler should have asked for a pretrial ruling under Rule 404(b), Fed. R. Evid. See Motion Under 28 U.S.C. § 2255 (Doc. #184) at 27, 58. On September 12, 2008, the Court held a hearing on the government's proposed Rule 404(b) evidence and deferred ruling until trial. See Clerk's Courtroom Minute Sheet (Doc. #80). Because the Court declined to make a specific ruling before hearing the evidence at trial, counsel's failure to seek a ruling before trial was not deficient or prejudicial.

Defendant argues that Fowler purposefully introduced defendant's prior arrests "to curry favor with the court in avoiding a costly mistrial." Motion Under 28 U.S.C. § 2255 (Doc. #184) at 43-44. Defense counsel's decision to "front" defendant's prior convictions on direct examination — rather than wait for the government to bring them up on cross examination — was within the wide range of reasonable professional assistance. See Strickland, 466 U.S. at 689. Counsel's strategy in this regard was not deficient or prejudicial. Defendant argues that Fowler told the Court that his client was going to testify on the 1992 conviction anyway, as a way to cover for the Court. Counsel had previously indicated, however, that defendant was going to testify. Fowler's statement about defendant's intent to testify involved candor so that the Court did not grant a mistrial on a mistaken assumption that defendant otherwise would not testify. Defendant's claim that defense counsel purposely tried to get his prior convictions into evidence so that the Court's error would be harmless is wholly without merit. Defendant does not explain any plausible motive for such a strategy. Defendant asserts that counsel attempted to prevent a mistrial and ensure his conviction, but such a motive would be utterly inconsistent with counsel's professional obligations and his conduct before the Court over numerous years. From a review of the entire record, it is abundantly clear that counsel did not act to curry favor with the Court, but rather to pursue the most viable defense strategy available.

Defendant maintains that without his consent, in defendant's motion to sever counts, Fowler included statements that defendant intended to testify regarding the MidAmerican Bank case. Motion Under 28 U.S.C. § 2255 (Doc. #184) at 45-46. Defendant claims that Fowler ultimately forced him to testify by allowing evidence of prior convictions to be admitted.6 The Court overruled a similar argument in defendant's motion for new trial. There, it stated as follows:

Memorandum And Order (Doc. #140) at 6. On appeal, the Tenth Circuit also concluded that the Court did not induce defendant to testify:

Hall, 625 F.3d at 683.

Defendant's present argument is that Fowler (instead of the Court) did not give him the ultimate decision whether to testify. Counsel's advice whether defendant should testify is a matter of trial strategy. See Hooks v. Ward, 184 F.3d 1206, 1219 (10th Cir. 1999). "Although counsel should always advise the defendant about the benefits and hazards of testifying and of not testifying, and may strongly advise the course that counsel thinks best, counsel must inform the defendant that the ultimate decision whether to take the stand belongs to the defendant, and counsel must abide by the defendant's decision on this matter." Brown v. Artuz, 124 F.3d 73, 79 (2d Cir. 1997); see United States v. Dryden, 166 F.3d 1222, 1998 WL 930582, at *1 (10th Cir. Apr. 22, 1998). Where defendant had issues with counsel, he was well aware of avenues to seek judicial redress.7 Given his numerous prior convictions, the Court would infer that he was well aware that he had the right to choose whether to testify. The Court is confident that if defendant truly felt that counsel compelled him to testify against his will, defendant would have filed a pro se motion or otherwise informed the Court. At the beginning of his trial testimony, defendant acknowledged that he understood that he did not have to testify. See Transcript of Trial (Doc. #148) at 3. Defendant has not alleged specific facts which would establish that counsel's performance was deficient in this regard.

Even if trial counsel had not advised defendant that he had the ultimate right to decide whether to testify, the alleged error was not prejudicial. Defendant has not shown a reasonable probability that had he not testified, the jury would have reached a different result. The jury took approximately three hours to reach its verdict. From the Court's perspective, the jury would not have deliberated so long if defendant had not testified. The probable scenario is that given the government witness testimony and the lack of any witness to corroborate defendant's version of events, the jury would have promptly concluded that defendant was guilty if he had not testified. Defendant's testimony undoubtedly prolonged the deliberations, but the Court has no reason to believe that it changed the result. Accordingly, trial counsel's alleged error in failing to advise defendant that he had the ultimate right to decide whether to testify was not prejudicial. See Strickland, 466 U.S. at 694.

Defendant maintains that Fowler provided ineffective assistance when he did not tell defendant that at side bar during voir dire, the prosecutor withdrew her request to admit defendant's prior convictions under Rule 404(b). Motion Under 28 U.S.C. § 2255 (Doc. #184) at 29-30. Defendant apparently claims that he would not have testified if he had known that the government had withdrawn its request to admit the prior convictions under Rule 404(b). As explained above, the record reflects that defendant intended to testify in any event.8 Counsel's failure to immediately inform defendant about the Court's ruling was not deficient or prejudicial because defendant had no other witnesses to maintain an alibi defense. As the Tenth Circuit noted, without the alibi defense, "the evidence was so overwhelming that any reasonable juror would have found him guilty." Hall, 625 F.3d at 683.

Defendant complains that counsel did not request that the Court give a curative instruction about the prior bank robbery convictions. Motion Under 28 U.S.C. § 2255 (Doc. #184) at 44, 75. The decision to request a curative instruction or other remedy is a matter of trial strategy. See United States v. Chapman, 593 F.3d 365, 368 (4th Cir. 2010) (decisions regarding mistrial are tactical decisions entrusted to sound judgment of counsel); United States v. Washington, 198 F.3d 721, 724 (8th Cir. 1999) (decision to move for mistrial involves numerous alternative strategies such as remaining silent, interposing objection, requesting curative instruction or requesting end to proceeding). Counsel could have reasonably concluded that a curative instruction would only highlight defendant's prior convictions and that the better course was to rely on the Court's general instruction regarding prior felony crimes at the end of the case. See United States v. Harris, 14 F. App'x 144, 146 (4th Cir. 2001) (reasonable trial strategy to forego curative instruction that would remind jurors of particular evidence); Cooper v. Zavaras, No. 08-cv-2480-MSK, 2010 WL 4449450, at *18 (D. Colo. Nov. 1, 2010) (defense decision not to emphasize comments by requesting curative instruction falls within bounds of reasonable trial strategy). Even if counsel was somehow deficient in not seeking an immediate curative instruction, defendant has not shown a reasonable probability that but for counsel's failure to do so, the result of trial would have been different. Strickland, 466 U.S. at 694.

Defendant next argues that Fowler failed to present the agreed alibi defense without defendant testifying. Motion Under 28 U.S.C. § 2255 (Doc. #184) at 59. Defendant argues that counsel virtually ensured that he would be convicted by putting him on the stand. While defendant's chances of acquittal were slim with — or without — such a strategy, counsel reasonably concluded that defendant's alibi defense was more likely to succeed if defendant testified. Absent testimony by defendant, the only witness in support of the alibi would be Wing (who had stated before trial that she would not perjure herself to help defendant and who testified for the government in rebuttal to discredit defendant's alibi). Even under defendant's version of Wing's "true" observations, she only briefly saw defendant with a white male individual shortly before 2:00 PM. Defendant has not shown a reasonable probability that absent his own testimony, a jury would have reached a different conclusion on his alibi defense. Counsel's alleged failure in this regard was not deficient or prejudicial.

Defendant argues that Fowler failed to notify the Court that the prosecutor falsely represented to the Court that defense counsel had opened the door to prior convictions to rebut and impeach his defense. Motion Under 28 U.S.C. § 2255 (Doc. #184) at 68-81.9 Defendant has not shown precisely how counsel could have formulated a valid objection to evidence of his prior convictions and maintain an alibi defense. Even if the Court assumes that counsel was somehow deficient in this regard, defendant has not shown a reasonable probability that if counsel employed such a strategy (which would necessarily include defendant not testifying), the result of the trial would have been different.

Defendant argues that Fowler failed to object to improper questions on cross-examination of defendant about prior convictions. Id. at 36. Defendant also contends that Fowler was ineffective because he did not object to questions about prior convictions which exceeded the scope of the Court's ruling. In rejecting a similar argument on direct appeal, the Tenth Circuit stated as follows:

625 F.3d at 683-84. For these reasons and those stated elsewhere in the record, the Court finds that counsel's failure to object to the scope of questions about defendant's prior convictions was not deficient or prejudicial.

Defendant finally argues that Fowler failed to object to the prosecutor's closing comments about his prior convictions. Motion Under 28 U.S.C. § 2255 (Doc. #184) at 36. Prosecutors generally have latitude in making closing arguments when defense counsel invites the argument. United States v. Anaya, 727 F.3d 1043, 1056 (10th Cir. 2013); United States v. Hernandez-Muniz, 170 F.3d 1007, 1012 (10th Cir. 1999) (prosecutors have "considerable latitude" to respond to argument by opposing counsel). Counsel's failure to object to the prosecutor's comments during closing was not deficient or prejudicial.

Here, the prosecutor argued in closing as follows:

Transcript Of Trial (Doc. #151) at 592, 604. On direct appeal, the Tenth Circuit found that the above comments were not clearly improper. Hall, 625 F.3d at 685 (when read in context, prosecutor was arguing that defendant's criminal history would not necessarily have taught him that it was foolish to take his own car to a bank robbery, because half the time that he had done so, he had not been caught); id. (not "wholly out-of-bounds" to mention prior conviction because it was element of a charged offense).

During rebuttal closing argument, the prosecutor stated as follows:

Transcript Of Trial (Doc. #151) at 626, 629-30.

Again, on direct appeal, the Tenth Circuit found that the above comments were not clearly improper. Hall, 625 F.3d at 685 (within limits of proper argument to suggest that innocent person with long criminal record would promptly state alibi to avoid further legal difficulty); id. at 686 (proper argument to support fall-back theory of aiding and abetting by pointing out that even after Hall knew that Morrison had been involved in robbery, he continued to assist Morrison's flight); id. (clear import of comment that as a multiconvicted felon, Hall not credible, consistent with rationale for Rule 609). Counsel's failure to object to the prosecutor's comments during closing was not deficient or prejudicial.

For the above reasons, the Court overrules defendant's third claim and related sub-claims that Fowler was ineffective in failing to obtain exclusion of evidence of defendant's prior convictions.

IV. Failure To Call Certain Witnesses (Claim 4)

Defendant argues that counsel was ineffective because he did not call Shawna Tripp, Jessica Tripp, Mr. Morrison's landlord, Scott Phillips, Jeff Smith, Bob Cantwell and an unknown female who was at the halfway house on November 7, 2006. Defendant has not offered affidavits of any of these witnesses.10 To warrant an evidentiary hearing on a claim that counsel failed to interview or subpoena a witness, defendant must provide an affidavit of the potential witness as to the nature of the proposed testimony. See United States v. Ashimi, 932 F.2d 643, 650 (7th Cir. 1991) (to show ineffective assistance, evidence about testimony of putative witness must generally be presented by witness testimony or affidavit); Sanders v. Trickey, 875 F.2d 205, 210-11 (8th Cir. 1989) (failure to provide affidavit from witness regarding potential testimony precludes finding of prejudice); United States v. Schaflander, 743 F.2d 714, 721 (9th Cir. 1984) (to warrant evidentiary hearing, movant must submit affidavit or sworn statement from witness or counsel); United States v. Cosby, 983 F.Supp. 1022, 1026 (D. Kan. 1997) (prejudice not established where defendant did not submit affidavit of potential alibi witnesses); see also Snow v. Sirmons, 474 F.3d 693, 730 n.42 (10th Cir. 2007) (to show prejudice, habeas petitioner must show not only that testimony of uncalled witness would have been favorable, but that witness would have testified); United States v. Cervini, 379 F.3d 987, 994 (10th Cir. 2004) (no evidentiary hearing required without firm idea of what testimony will encompass and how it will support claim); United States v. Jones, 124 F.3d 218 (Table), 1997 WL 580493, at *1 (10th Cir. Sept. 19, 1997) (certificate of appealability on ineffective assistance claim denied because defendant did not present specific facts to show that co-defendant would have offered exculpatory evidence). Absent an affidavit from the proposed witnesses, defendant has failed to show a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694.

The Court overrules defendant's fourth claim for relief.

V. Failure To Effectively Cross Examine Government Witnesses (Claim 5)

Defendant claims that counsel was ineffective because he did not effectively cross-examine government witnesses including George Seifert, Mary Garrison, Debbie Smith and Special Agent Gothard. Trial strategy includes determining how best to cross-examine witnesses. See Pickens v. Gibson, 206 F.3d 988, 1002 (10th Cir. 2000); Glick, 710 F.2d at 644 (selection of questions is matter of "strategic choice"). The manner in which counsel cross-examines a witness is a strategic choice and therefore "virtually unchallengeable." Kessler v. Cline, 335 F. Misprision 768, 770 (10th Cir. 2009) (quoting Strickland, 466 U.S. at 690). Defense counsel aggressively cross-examined government witnesses, and his questions evidenced a well-informed understanding of the case. See United States v. Marr, 856 F.2d 1471, 1472 (10th Cir. 1988) (judge may rely on personal knowledge or recollection). Defendant has not shown that further pretrial investigation would have allowed counsel to better cross-examine the witnesses. See Moore v. Gibson, 195 F.3d 1152, 1179 (10th Cir. 1999); see also Church v. Sullivan, 942 F.2d 1501, 1513 (10th Cir. 1991) (defendant bears burden of establishing how more extensive cross-examination would have changed outcome of trial). On this record, the Court must assume that even if defense counsel had conducted a more thorough pretrial investigation and interviews of government witnesses before trial, their testimony would not have changed in any material respect.11 Defendant has not shown a reasonable probability that but for counsel's alleged error, the results of trial would have been different. See Strickland, 466 U.S. at 694.

Defendant also claims that Fowler provided ineffective assistance because he failed to show that Wing was lying when she testified at trial that (1) she went back to the halfway house on November 1, 2006, (2) she had no contact with defendant between the summer of 2006 and November 7, 2006, and (3) she did not see defendant on November 7, 2006 through a window at the halfway house. Defendant maintains that Wing actually went back to the halfway house on November 2, 2006 and that he had contact with her between the summer of 2006 and November 7, 2006, but he does not explain how — even if true — these discrepancies are material. As to whether Wing saw defendant on November 7, 2006, defendant's sister testified that Wing said that she saw defendant from a window at the halfway house but did not go out to meet him because it was near count time that day (which defendant states is at 2:00 PM). Transcript Of Trial (Doc. #151) at 564-65. Defense counsel cross-examined Wing on the alleged discrepancies and called defendant's sister to rebut Wing's testimony. Defense counsel's strategy to discredit Wing was well within the wide range of reasonable professional assistance. Even if defendant could show that counsel should have more aggressively cross-examined Wing, he has not shown a reasonable probability that but for counsel's failure to do so, the result of the trial would have been different. As noted, evidence of defendant's guilt was "substantial and overwhelming." Memorandum And Order (Doc. #140) at 7; see Strickland, 466 U.S. at 694.

The Court therefore overrules his fifth claim for relief.

VI. Failure To Notify Court Of Differences Between Defendant And Counsel (Claim 6)

Defendant argues that counsel provided ineffective assistance because he did not notify the Court when differences arose between him and Fowler. Defendant states that after the Court had erroneously referred to his prior convictions for bank robbery, he disagreed with Fowler's decision not to ask to withdraw a trial stipulation that a firearm functioned as intended by the manufacturer and firearm was manufactured outside the State of Kansas and thus necessarily traveled in interstate and/or foreign commerce. Motion Under 28 U.S.C. § 2255 (Doc. #184) at 47. Decisions concerning trial strategy, such as the filing of motions, only constitute ineffective assistance if they are completely unreasonable, not merely wrong, so that they bear no relationship to a possible defense strategy. See Hatch v. Oklahoma, 58 F.3d 1447, 1459 (10th Cir. 1995). Counsel apparently explained that withdrawing from the stipulation would disrupt the trial schedule and the Court would not grant it. In addition, even if the Court had granted it, defendant has not shown a reasonable probability that the government would have been unable to secure the evidence subject to the stipulation. See Trial Exhibit 132. Defendant has not shown that counsel's decision not file a motion to withdraw the stipulation was deficient or prejudicial. The Court overrules defendant's sixth claim for relief.

VII. Failure To Object To Discovery Practice (Claim 7)

Defendant argues that counsel was ineffective because he did not object to the U.S. Attorney's discovery practice which precluded him from personally inspecting discovery materials including certain billing statements. Motion Under 28 U.S.C. § 2255 (Doc. #184) at 39-42, 48-49. Defendant has not shown how counsel's performance was deficient. Courts often limit disclosure of sensitive documents to counsel and prohibit criminal defendants from removing or copying such materials.12 Defendant has not shown that he had a particularized need to personally inspect any discovery materials. In addition, defendant has not shown how counsel's failure to let him personally inspect discovery materials affected the outcome of the trial. Defendant largely complains about potential overbilling by counsel and Stetler, but he has not shown that these billing issues likely affected the outcome of trial. Accordingly, defendant has not established prejudice. The Court overrules defendant's seventh claim for relief.

VIII. Failure To Challenge Jury Instruction On Aiding And Abetting A Crime (Claim 8)

Defendant argues that Fowler should have objected to the Court's aiding and abetting instruction because it essentially allowed the government "to have it both ways." Motion Under 28 U.S.C. § 2255 (Doc. #184) at 37. Defendant apparently argues that because Morrison pled guilty to aiding and abetting the robbery of MidAmerican Bank, the government had to proceed against defendant as the principal, i.e. the one who actually entered the bank. The record reflects that defense counsel adequately raised this issue. At trial, the Court overruled counsel's objection because (1) the indictment clearly charged aiding and abetting and (2) defendant's alibi defense injected the issue whether he was at the bank or whether he merely drove the getaway car. See Transcript Of Trial (Doc. #151) at 571. Defendant has not shown how counsel's argument on this issue was deficient or prejudicial. The Court overrules defendant's eighth claim for relief.

IX. Failure To Offer Jury Instructions On Lesser Included Offenses (Claim 9)

Defendant argues that trial and appellate counsel were ineffective for failing to offer jury instructions on the "lesser-included offenses" of accessory after the fact in violation of 18 U.S.C. § 3 or misprision of a felony in violation of 18 U.S.C. § 4. Motion Under 28 U.S.C. § 2255 (Doc. #184) at 63. Defendant is entitled to an instruction on lesser-included offenses if the lesser offenses included some but not all of the elements of the offense charged. United States v. Pearson, 203 F.3d 1243, 1270 (10th Cir. 2000). The crimes of being an accessory after the fact and misprision of a felony are not lesser included offenses of bank robbery, using a firearm during and in relation to a crime of violence or possession of a firearm by a convicted felon; simply stated, the elements of the offenses under 18 U.S.C. §§ 3 and 4 are not subsets of the elements of the charged offenses. See Schmuck v. United States, 489 U.S. 705, 715-16 (1989) (lesser-included offense instruction may not be given if lesser offense includes element not part of greater offense). Accordingly, counsel's failure to seek such instructions was not deficient or prejudicial. The Court overrules defendant's ninth claim for relief.

X. Fowler's General Performance (Claim 10)

Defendant argues that generally throughout the proceedings, Fowler was ineffective because he abandoned his duty of loyalty. Defendant states that counsel breached his duty of loyalty at side bar, in discussing the impact of reading the indictment to the jury, when he stated "believe me I want to get this thing over with, but ..." and saying that he should have caught the error. Motion Under 28 U.S.C. § 2255 (Doc. #184) at 44; see id. at 28 (at side bar, counsel abandoned defendant and made it clear to government and court that he was not going to offer any resistance at all). Defendant, however, has taken counsel's comment out of context. Counsel's comments merely reiterated his goal (as in any case) to try the case only once. In context, counsel essentially said "I'm sorry to ask for a mistrial before the Court has even started questioning the jury, but I believe that defendant is entitled to one." Counsel is a well-respected and experienced criminal defense attorney. The Court has had occasion to see him in action for 23 years and it is absurd to suggest that Fowler would put his professional reputation in jeopardy to try to cover up the Court's mistake at the expense of his client's freedom. Defense counsel adequately presented the issue and specifically asked the Court to declare a mistrial. While the Court ultimately overruled the request, defendant has not shown a reasonable probability that if counsel had presented the matter in a different manner, the Court would have a reached a different result.13

Defendant claims that Fowler breached his duty of loyalty by billing for services not performed or billing for services at a "fraudulent rate." Motion Under 28 U.S.C. § 2255 (Doc. #184) at 41; see also id. at 40 (Fowler wanted to bill as many hours as possible). Defendant's claim that Fowler was using this case primarily for his monetary benefit is completely speculative and inconsistent with his other assertions that Fowler "wanted to get the trial over as soon as possible" and did not want a second trial. Id. at 28. In sum, defendant has not alleged sufficient facts to show that Fowler overbilled for his services or that Fowler provided ineffective assistance because of any alleged overbilling.

Defendant states that the Court had an "apparent bias" against him. Traverse To The United States' Response To Hall's Motion Pursuant To 28 U.S.C. § 2255 (Doc. #203-1) at 5. To the extent defendant claims that counsel was ineffective for failing to ask the undersigned judge to recuse because of bias, the Court overrules defendant's claim. Under 28 U.S.C. § 455(a), federal judges must disqualify themselves in any proceeding in which their partiality might reasonably be questioned. Switzer v. Berry, 198 F.3d 1255, 1257 (10th Cir. 2000); see also Code of Conduct For United States Judges, Canon 3, § C(1) ("A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned."). The test is whether a reasonable person, knowing all the relevant facts, would harbor doubts about the judge's impartiality. Hinman v. Rogers, 831 F.2d 937, 939 (10th Cir. 1987). The statutory guidance for recusal must also be read in light of a judge's "duty to sit." See Nichols v. Alley, 71 F.3d 347, 351 (10th Cir. 1995) (judge has as strong a duty to sit when no legitimate reason to recuse as she does to recuse when law and facts require). The statute is not intended to give litigants a veto power over sitting judges, or as a vehicle for obtaining a judge of their choice. United States v. Cooley, 1 F.3d 985, 992-93 (10th Cir. 1993). Consequently, a judge should not recuse on unsupported, irrational or highly tenuous speculation. Hinman, 831 F.2d at 939 (citation omitted).

In this case, a reasonable person with access to the relevant facts would not question the impartiality of the undersigned judge. Under Section 455(b)(1), a judge must disqualify if she has a personal bias or prejudice concerning a party. The undersigned has no such bias or prejudice against defendant, from extrajudicial sources or otherwise. See Liteky v. United States, 510 U.S. 540, 554-55 (1994) (bias and prejudice must come from extrajudicial source).

The Court has addressed defendant's numerous allegations against Fowler and find all of them to be without merit. As noted above, the evidence against defendant was substantial and overwhelming, and the Court has no reason to believe that but for the alleged errors by counsel, either individually or collectively, the result of the trial would have been different.

XI. Failure To Raise Amendment 599 To The Sentencing Guidelines (Claim 11)

Defendant claims that sentencing counsel, Toth, and appellate counsel, Cohen, provided ineffective assistance because they did not argue for application of Amendment 599 to the Sentencing Guidelines. Defendant asserts that under the reasoning of Amendment 599 to the Sentencing Guidelines, the Court could not sentence defendant for violation of 18 U.S.C. § 2113(d), which carries a 25-year statutory maximum sentence, instead of Section 2113(a), which carries a 20-year statutory maximum sentence. Motion Under 28 U.S.C. § 2255 (Doc. #184) at 60-62. Defendant essentially argues that the Court enhanced his sentence twice for the same conduct by (1) considering the enhanced penalties under 18 U.S.C. § 2113(d) — for assaulting or putting in jeopardy the life of another by use of a dangerous weapon while committing an offense under 18 U.S.C. § 2113(a) — instead of the limited penalties in 18 U.S.C. § 2113(a), and (2) sentencing defendant to prison under Count 2 for using a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1). Initially, the Court overrules defendant's argument because the Sentencing Guidelines and Amendments do not supplant statutory authority. Congress clearly expressed its intent that punishment under Section 924(c)(1) be cumulative to the punishment for the underlying violent crime. United States v. Pearson, 203 F.3d 1243, 1268 (10th Cir. 2000); see United States v. Lanzi, 933 F.2d 824, 826 (10th Cir. 1991) (convictions under §§ 924(c)(1) and 2113(a) and (d) do not violate Double Jeopardy Clause). Counsel's failure to object at sentencing or on appeal was not deficient or prejudicial. The Court overrules defendant's eleventh claim for relief.

Conclusion

The files and records in this case conclusively show that defendant is not entitled to relief. Moreover, defendant does not allege specific and particularized facts which, if true, would entitle him to relief. Accordingly, no evidentiary hearing is required. See 28 U.S.C. § 2255; United States v. Cervini, 379 F.3d 987, 994 (10th Cir. 2004) (standard for evidentiary hearing higher than notice pleading); United States v. Kilpatrick, 124 F.3d 218 (Table), 1997 WL 537866, at *3 (10th Cir. 1997) (conclusory allegations do not warrant hearing); United States v. Marr, 856 F.2d 1471, 1472 (10th Cir. 1988) (no hearing required where court may resolve factual matters raised by Section 2255 petition on record); United States v. Barboa, 777 F.2d 1420, 1422-23 (10th Cir. 1985) (hearing not required unless "petitioner's allegations, if proved, would entitle him to relief" and allegations are not contravened by record).

Certificate Of Appealability

Under Rule 11 of the Rules Governing Section 2255 Proceedings, the Court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant. 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).14 To satisfy this standard, the movant must demonstrate that "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Saiz v. Ortiz, 392 F.3d 1166, 1171 n.3 (10th Cir. 2004) (quoting Tennard v. Dretke, 542 U.S. 274, 282 (2004)). For reasons stated above, the Court finds that defendant has not satisfied this standard. The Court therefore denies a certificate of appealability as to its ruling on defendant's Section 2255 motion.

IT IS THEREFORE ORDERED that defendant's Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (Doc. #184) filed February 16, 2012 be and hereby is OVERRULED. A certificate of appealability as to the ruling on defendant's Section 2255 motion is DENIED.