CATHERINE D. PERRY, District Judge.
Movant Dennis Dinwiddie is currently incarcerated at the Terra Haute Federal Correctional Complex in Terra Haute, Indiana. A jury convicted Dinwiddie on four counts related to a conspiracy to distribute marijuana and the murder of Sergio Burgos. This matter is before me on Dinwiddie's motion to vacate, set aside, or correct sentence under 28 U.S.C. Section 2255. Dinwiddie alleges several grounds for relief, including a claim that he was deprived of his right to testify at trial. I held an evidentiary hearing on that claim. The remaining grounds for relief each allege failure by trial counsel to introduce evidence that would establish Dinwiddie's innocence of the various crimes for which he was convicted.
Based on the evidence, the arguments of counsel, and the briefs filed on the § 2255 motion, I conclude that Dinwiddie's motion is meritless. The evidence indicates that Dinwiddie was aware of his constitutional right to testify at trial, but that he followed the prudent advice of his counsel and declined to exercise that right. In addition, because the evidence against him is overwhelming and because the uncalled witnesses would have been subject to impeachment, Dinwiddie was not prejudiced by his counsel's other alleged failures. The motion will be denied.
Following a four-day jury trial, Dinwiddie was convicted of conspiracy to distribute marijuana in excess of 50 kilograms (Count I), a Travel Act
On August 19, 2014, I held a hearing to receive evidence as to whether Dinwiddie knew of his constitutional right to testify. Dinwiddie appeared with privately retained counsel for the hearing, where he testified and elicited testimony in support of his claim. The government offered the testimony of one of Dinwiddie's trial attorneys.
Dennis Dinwiddie and Michael Meador were convicted in separate trials of conspiracy to distribute marijuana that resulted in the murder of Sergio Burgos. Their appeals were consolidated, and the Eighth Circuit set forth the facts supporting their respective convictions:
Dinwiddie, 618 F.3d at 827-29.
Under 28 U.S.C. § 2255, a federal prisoner may seek relief on the ground 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. Claims based on a federal statute or rule, rather than on a specific constitutional guarantee, can be raised "on collateral review only if the alleged error constituted a fundamental defect which inherently results in a complete miscarriage of justice." Reed v. Farley, 512 U.S. 339, 354 (1994) (quotations omitted). A motion pursuant to § 2255 "is `intended to afford federal prisoners a remedy identical in scope to federal habeas corpus.'" United States v. Wilson, 997 F.2d 429, 431 (8th Cir. 1993) (quoting Davis v. United States, 417 U.S. 333, 343 (1974)).
To succeed on a claim of ineffective assistance of counsel, the litigant must prove (1) that counsel's performance was deficient in that "counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed by the Sixth Amendment" and (2) that counsel's "deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687 (1984). To prove Strickland's first prong, deficient performance, a movant must demonstrate that "counsel's representation fell below an objective standard of reasonableness." Id. at 688. When evaluating counsel's performance, a court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. In addition, the objective reasonableness of counsel's performance is assessed "in light of professional norms prevailing when the representation took place." Sinisterra v. United States, 600 F.3d 900, 906 (8th Cir. 2010).
Even if sufficient proof exists with respect to the first prong, relief may only be obtained if a petitioner also proves that the deficient performance prejudiced the case (the second prong). Strickland, 466 U.S. at 697. A movant must demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. This showing of a "reasonable probability" of a different outcome is less than a preponderance of the evidence but greater than just a possibility; it "is a probability sufficient to undermine confidence in the outcome." Paul v. United States, 534 F.3d 832, 837 (8th Cir. 2008). The Court may address the two Strickland prongs in any order, and if a petitioner fails to make a sufficient showing of one prong, the Court need not address the other prong. See Strickland, 466 U.S. at 697; Fields v. United States, 201 F.3d 1025, 1027 (8th Cir. 2000) ("If we can answer `no' to either question, then we need not address the other part of the test.").
Dinwiddie formally raises four grounds for relief, each of which implicates his rights to due process and effective assistance of counsel. As his first ground, Dinwiddie alleges his defense counsel failed to introduce testimony that Dinwiddie was not guilty of conspiring to distribute marijuana in excess of 50 kilograms and possession of a firearm in connection with a drug trafficking crime. Dinwiddie's second ground states that his counsel failed to introduce testimony to demonstrate that although Dinwiddie did possess a firearm on April 22, 2006, that possession was unconnected to a drug trafficking crime. The third ground for relief alleges failure to introduce testimony that the firearm possessed by Dinwiddie was not used to cause the death of Sergio Burgos. The fourth ground for relief states that Dinwiddie's counsel failed to introduce testimony that Dinwiddie did not act with the requisite mens rea, assuming Dinwiddie did possess a firearm and that firearm was used to cause the death of Sergio Burgos. Dinwiddie also informally raises a fifth ground — deprivation of his right to testify — that I will discuss first.
A defendant's right to testify in his own defense is guaranteed under the Due Process Clause of the Fourteenth Amendment, the Compulsory Process Clause of the Sixth Amendment, and the Fifth Amendment's privilege against selfincrimination. See Rock v. Arkansas, 483 U.S. 44, 51-53 (1987). "Because the right to testify is a fundamental constitutional guarantee, only the defendant is empowered to waive the right." Frey v. Schuetzle, 151 F.3d 893, 898 (8th Cir. 1998) (quoting United States v. Bernloehr, 833 F.2d 749, 751 (8th Cir. 1987). The waiver of this right must be made knowingly and voluntarily. Id. Voluntary waiver may be found where a defendant remains silent when his attorney rests without having called the defendant to testify. Id. (citing Bernloehr, 833 F.2d at 751-52).
In the Government's response brief, it noted that Dinwiddie opted not to testify at trial. In reply, Dinwiddie stated that he had wanted to testify but was prohibited from doing so by his counsel. Because it was unclear from the record whether Dinwiddie knew of his right to testify and voluntarily waived that right, I held an evidentiary hearing on the issue.
At the hearing, Dinwiddie testified that he had numerous conversations with his counsel and that it was their joint intention, up to the close of defendant's evidence, that he would testify at trial. When he discovered that his counsel were refusing to call him to the stand, Dinwiddie became frustrated and it became necessary for his attorneys to ask his father, Grover Dinwiddie, to convince Dinwiddie not to testify. After Grover Dinwiddie returned to his seat, Dinwiddie again told his counsel that he wanted to testify, but he ultimately remained silent after the defense rested because he did not know he could say anything to the court and did not want to be "rude" in court. Dinwiddie further testified that he did not know he had a constitutional right to testify until he was notified of the evidentiary hearing in this § 2255 proceeding.
On cross-examination, the government contradicted Dinwiddie's present testimony with his second affidavit, in which Dinwiddie claimed that before trial, he was told he could not testify: "That before trial and during trial when I told my trial counsels Michael Gorla and Jennifer Herndon that I wanted and needed to give testimony on my own behalf, I was told `No! I didn't need to testify.'" ECF Doc. 15-2, ¶ 6.
One of Dinwiddie's trial attorneys testified for the government. He stated that he and his co-counsel had numerous conversations with Dinwiddie about whether he would testify, and they recommended before trial that Dinwiddie not testify, because
Evidentiary Hearing Transcript, p. 36-37. The trial counsel also testified that it is his general practice to advise his clients of their right to testify and that he was sure this topic arose during the course of his meetings with Dinwiddie. Finally, he recalled that at the close of evidence, he and his co-counsel recommended to Dinwiddie that he not testify and Dinwiddie concurred with their recommendation.
I find Dinwiddie's counsel to be credible. Based on the facts and arguments presented at the evidentiary hearing, I conclude that Dinwiddie was informed of his right to testify and deferred to his attorneys' recommendation not to testify.
Dinwiddie alleges that his constitutional rights were violated and his counsel was deficient for failing to introduce testimony showing that:
Dinwiddie supports these grounds with a recording made between himself and one of the investigating detectives as well as with affidavits of uncalled witnesses.
Dinwiddie points to a recording he made of a conversation between himself and Detective Tim Anderson, who was one of the Tennessee police officers involved in intercepting and making the controlled delivery of fifty pounds of marijuana. This recording was made some time after the January 25, 2006, interaction between Detective Anderson and Dinwiddie, a recording of which was introduced at trial as Government's Exhibit 24. Exhibit 24 included a conversation between Dinwiddie and Sergio Burgos regarding marijuana shipped to Dinwiddie's sister and ultimately seized by the police. Dinwiddie contends that had the recording of his conversation with Detective Anderson been admitted into evidence, it would have impeached Anderson, because it shows that Anderson "believed the seized marijuana was not Mr. Dinwiddie's."
Assuming the evidence was available, the decision not to introduce the recorded conversation was a strategic one. Counsels' "strategic choices made after thorough investigation of law and facts . . . are virtually unchallengeable[.]" Strickland, 466 U.S. at 690. "We presume attorneys provide effective assistance, and will not second-guess strategic decisions or exploit the benefits of hindsight." Payne v. United States, 78 F.3d 343, 345 (8th Cir. 1996).
Even had the conversation been admitted, there is little reason to believe that its admission would have changed the outcome. The unadmitted evidence must be considered alongside the evidence admitted at trial. See McCauley-Bey v. Delo, 97 F.3d 1104, 1106 (8th Cir. 1996) ("[T]he testimony of the uncalled witness is not considered in a vacuum."). Detective Anderson testified at length about his initial interaction with Dinwiddie. On that day, Dinwiddie told Detective Anderson that he knew "Sergio" was responsible for sending the packages, and agreed to cooperate with the investigation. Dinwiddie called Burgos using Dinwiddie's own phone, using a "direct connect" feature, similar to a two-way radio, which directly dialed the name in the phone's contact list. Dinwiddie used the speaker feature on his phone so that Detective Anderson could listen to and record both sides of the conversation, and a transcript of that conversation was admitted into evidence. Sergio referred to Dinwiddie by his first name, and after prompting by Detective Anderson, the two had a conversation about the contents of the packages:
At trial, Detective Anderson testified that the phrases "green" and "fifty and a half" meant that there was approximately 50.5 pounds of marijuana between the two boxes.
Detective Anderson's statement to Dinwiddie that he did not believe the marijuana was Dinwiddie's was made sometime after the January 25, 2006, exchange. It occurred during the course of an open investigation, and it was made to Dinwiddie while Anderson was attempting to encourage his continued cooperation against Sergio Burgos. Given that context — especially when combined with Detective Andersons's explicit statement that he believed Dinwiddie was "involved in the conspiracy conduct" — the jury would likely have found that Detective Anderson remained credible.
Finally, there is no prejudice if the government's case remains overwhelming even after factoring in the unadmitted evidence. United States v. Ramon-Rodriguez, 492 F.3d 930, 945 (8th Cir. 2007); McCauley-Bey, 97 F.3d at 1106. The evidence of Dinwiddie's direct involvement with the shipment was bountiful. Dinwiddie appeared at the place of delivery, had the packing slip on his person, admitted he knew that Burgos sent the package, and direct dialed Burgos with a number already programmed into his own phone. Burgos referred to Dinwiddie by "Dennis," and was willing to discuss the contents of the package with Dinwiddie. As noted by the Eighth Circuit on appeal, the evidence of the drug conspiracy between Dinwiddie and Burgos was "overwhelming." Dinwiddie, 618 F.3d at 831. The evidence remains overwhelming, even when considering the content of the unadmitted recording between Dinwiddie and Detective Anderson. Dinwiddie cannot show that he was prejudiced by his counsel's failure to introduce the recording between him and Detective Anderson.
Dinwiddie also cites the version of the facts presented in his own affidavits and the affidavits of his co-defendant, Michael Meador, and a colleague, Eric Tharpe, as testimony that should have been introduced by his counsel at trial. The affidavits paint a different picture of the events surrounding Burgos's death and place the blame solely on Lawan James. They say that Dinwiddie and Tharpe followed James to Meador's house to assist James in the purchase of a car. When they arrived, James had already killed Burgos as part of a failed drug purchase of which they were not aware.
As discussed above, Dinwiddie voluntarily chose not to testify at trial based, in part, on advice of counsel. At the hearing, one of the defense attorneys testified as to some of the reasons why he recommended that Dinwiddie not testify. The attorney said that he had investigated elements of Dinwiddie's story and could not corroborate them. He also expressed concerns that Dinwiddie's criminal history would undermine their defense, which centered on the theme that the government witnesses should not be believed because of their own bad records and because they benefitted from their testimony against Dinwiddie.
Dinwiddie alleges that his counsel was ineffective for failing to call Michael Meador to testify. Although Meador's affidavit does say he was willing to testify had he been subpoenaed, Meador declined to testify at his own later trial. Dinwiddie does not establish that Meador would actually have testified, and the decision to call Meador to the stand remains one of strategy, to which trial counsel is given great deference. Payne, 78 F.3d at 345.
Even had Meador testified as to the story presented in his affidavit, such testimony would have been impeached by other evidence available at trial. For example, Meador told his half-brother, Billy Meador, that "Dee" killed Burgos. Meador told the police an entirely different story: that unknown "Haitians" had committed the murder. Moreover, Meador's story that James alone shot Burgos is contradicted by the physical evidence, including the two differently sized shell casings found at the scene of the crime. See Dinwiddie Trial Transcript Vol. II, p. 127. Had Meador's testimony been admitted, the government's case against Dinwiddie would have remained overwhelming. Dinwiddie was not prejudiced by the failure to call Meador to testify. See Ramon-Rodriguez, 492 F.3d at 945.
The same analysis holds true for Tharpe, whose affidavit is contradicted by three sets of interviews he gave to the police during the investigation. In an interview taken April 28, 2006, Tharpe said that he had last talked to Dinwiddie on Friday April 21st or Saturday the 22nd, when Dinwiddie told him he was going to Radcliff, Kentucky to get comedy show tickets. ECF Doc. 10-2. In a second interview conducted March 12, 2007, Tharpe said that he saw Dinwiddie in Clarksville, Tennessee on the Saturday the murder happened. ECF Doc. 10-3. The next day, Tharpe again said that he and Dinwiddie were in Clarksville, Tennessee on the day of the murder. ECF Doc. 10-4. Given the self-contradictory nature of Tharpe's versions of the events and the quantity of evidence against him, Dinwiddie was not prejudiced by the absence of Tharpe's testimony.
As for Dinwiddie's fourth ground — that he was prejudiced by the absence of defense testimony as to his state of mind — the ground fails for the same reason as the others: the desired testimony would have been impeached and would have paled in the light of the overwhelming evidence against him. Billy Meador testified that after Burgos stole $10,000 meant to purchase marijuana, Dinwiddie said he wanted to be the one to "smoke that Mexican." Trial Transcript Vol. I, p. 82-83. When Dinwiddie was told Burgos was in Missouri, he acquired a handgun, drove to that state, hid his car, and waited for Burgos in a place selected so that Burgos could not escape. He shot Burgos in the groin and then, after Burgos pleaded for his life, shot him in the head. Given the amount and quality of the evidence against Dinwiddie, he was not prejudiced by the failure of his counsel to introduce evidence that he lacked the mens rea for murder. See Ramon-Rodriguez, 492 F.3d at 945.
As Dinwiddie has not made a substantial showing of the denial of a federal constitutional right, I will not issue a certificate of appealability. See Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997) (citing Flinger v. Delo, 16 F.3d 878, 882-83 (8th Cir. 1994) (substantial showing must be debatable among reasonable jurists, reasonably subject to a different outcome on appeal, or otherwise deserving of further proceedings)).
Accordingly,
A separate Judgment in accordance with this Memorandum and Order is entered this same date.
