GLEN E. CONRAD, Chief Judge.
Adelson Michel ("Michel"), a federal inmate, brings this motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (2006). After an evidentiary hearing before United States Magistrate Judge B. Waugh Crigler ("Judge Crigler") on the government's motion to dismiss, Michel filed objections to the Magistrate Judge's Report and Recommendation ("Report"). For the reasons that follow, the court will grant the government's motion to dismiss and deny Michel's motion to vacate.
On September 6, 2006, a grand jury in the Western District of Virginia returned a twenty-nine count indictment stemming from a crack cocaine conspiracy in Winchester, Virginia. (Docket No. 3.) Among the twelve defendants named in the indictment was Michel, who was charged in eight of the twenty-nine counts. More specifically, Michel was charged with one count of conspiracy to distribute 50 or more grams of crack cocaine, in violation of 21 U.S.C. §§ 846 and 841(a)(1) and (b)(1)(A), and with seven counts of distribution of crack cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A), (b)(1)(B), and (b)(1)(C).
Michel was tried before a jury in Harrisonburg over a four-day period from March 26 to March 29, 2007.
On March 29, 2007, the jury returned its verdict, finding Michel guilty of the one conspiracy count, and of six of the seven counts of distribution of crack cocaine.
Judge Crigler convened an evidentiary hearing on October 12, 2011, at which the court heard testimony from Michel and Todd Freiwald ("Freiwald") of the Bureau of Alcohol, Tobacco, Firearms and Explosives, the principal investigator in the case. Michel was represented by court-appointed counsel. On direct examination, Michel testified that the only contact he had with Smith before trial was a single visit by Smith to the jail where Michel was detained pending trial. (Docket No. 897 at 14-15.) Despite Michel's poor English capabilities at that time,
According to Michel, if he had known that he had a right to testify, he would have taken the witness stand to fill in the gaps in the case that Smith allegedly had left through his deficient performance. More specifically, his testimony "would have concerned the truthfulness of the Government's witnesses, his denial that he knew several of them, and other matters relating to their personal motives for testifying against him." (Docket No. 904 at 5.) In short, Michel's aspiration to testify at trial emanated from his desire to profess his complete innocence of the charges for which he was prosecuted and ultimately convicted.
On cross-examination at the evidentiary hearing, the Assistant United States Attorney questioned Michel on his English proficiency during the period from 2003, when he moved from Florida to Winchester, to 2007, when he was tried. According to Michel, he lived in Winchester with his girlfriend, Laquita Sloane, during that time period. (Docket No. 897 at 53.) Michel
Furthermore, on cross-examination, the Assistant United States Attorney asked, "I want to make sure I understand your position. I mean, you knew you had a right to testify; correct?" (Id. at 68.) Michel responded, "I knew that I could talk if I wanted to, but I didn't know that I had the right." (Id.) Michel also testified on cross-examination that he would be satisfied with an attorney's services only if he prevailed on his § 2255 motion. (Id. at 48.)
Freiwald was the only witness called by the government during the evidentiary hearing. Freiwald's testimony concerned two main points. First, Freiwald testified that, prior to trial, he met with Smith and Michel to review an evidentiary videotape.
Following the evidentiary hearing, Judge Crigler submitted his Report in which he recommended that this court deny Michel's motion to vacate and grant the government's motion to dismiss. (Docket No. 904.) The Report reflected Judge Crigler's observation that Michel's "demeanor and conduct while testifying did not instill confidence in the substance of that testimony." (Id. at 14.) Judge Crigler found that Michel's testimony was laced with contradictions and found disingenuous Michel's allegations regarding Smith's performance. (Id. at 14-15.) Furthermore, the trial transcript refuted Michel's assertions regarding Smith's allegedly abysmal performance at trial — specifically, the transcript revealed that Smith's cross-examination of government witnesses probed their own involvement with drugs and their incentive to cooperate with law enforcement. (Id. at 15.) Judge Crigler noted that the transcript further demonstrated that, in his closing argument to the jury, Smith sought to undermine the credibility of the government's witnesses, stressing that they were convicted felons and highlighting their own plea bargains with the government. (Id. at 12-14, 16.)
However, Judge Crigler concluded that Michel's ineffective assistance of counsel claim must fail because Michel could not prove that he had suffered prejudice as a result of Smith's deficient performance. (Id. at 18-19.) More specifically, because Michel's proffered testimony would offer nothing above and beyond what Smith already established through his cross-examinations and closing argument, Judge Crigler concluded that Michel had failed to prove that there was a reasonable probability that his testimony would have changed the outcome of the trial. (Id.) In fact, "it [wa]s [Judge Crigler]'s view that [Michel's] proffered testimony would have sealed his conviction." (Id. at 19 n. 13.)
Michel, through counsel, then filed objections to the Report. (Docket No. 906.) Essentially, Michel disputes Judge Crigler's reliance on the Strickland standard (i.e., whether there is a reasonable probability that, but for counsel's ineffective performance, the outcome would have been different) in determining whether Smith's deficient performance prejudiced Michel. (Id. at 1-2.) Instead, Michel argues that the relevant inquiry in "right to testify" cases, such as this one, is the standard announced in Owens v. United States, 483 F.3d 48 (1st Cir.2007) — whether Michel would have offered genuine exculpatory testimony at trial. (Id. at 2.) Based on this standard, Michel contends that, although Smith may have attempted at trial to impeach the credibility of the government's witnesses, Michel's testimony would have constituted the only affirmative exculpatory evidence offered by the defense at trial. (Id. at 7.)
Having received Michel's objections, and having received no objections from the government, the court will now proceed to disposition.
To state a claim for relief under § 2255, a defendant must prove that one of the following occurred: (1) his sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose such a sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). In a § 2255 motion, the convicted defendant bears the burden of proving grounds for a collateral attack by a preponderance of the evidence. Miller v. United States, 261 F.2d 546, 547 (4th Cir.1958) (per curiam). Furthermore, once a defendant has waived or exhausted his appeals, the court is "entitled to presume he stands fairly and finally convicted." United States v. Frady, 456 U.S. 152, 164, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). Thus, unless the petitioner alleges a jurisdictional or constitutional error, any asserted error — of fact or law — will not provide a basis for collateral attack unless it constitutes "a fundamental defect which inherently results in a complete
As stated above, Michel raises an ineffective assistance of counsel claim on his § 2255 motion, contending that Smith failed to inform him of his constitutional right to testify in his own defense and, furthermore, that he attempted unsuccessfully at the trial to invoke (through the interpreter) his right to testify. To prove a claim of ineffective assistance of counsel, a defendant must show (1) "that counsel's performance was deficient," and (2) "that the deficient performance prejudiced the defense." Strickland, 466 U.S. at 687, 104 S.Ct. 2052. However, the court determines that no substantive consideration of the Strickland factors is required by this case because, as explained below, the court finds completely incredible Michel's factual allegations regarding Smith's performance.
The record of the evidentiary hearing shows that there is strong evidence to support Judge Crigler's finding that Michel's testimony is not credible. (Docket No. 904 at 14-16.) As Judge Crigler observed, Michel's testimony was "laced with contradictions." (Id. at 14.) For example, Michel testified on direct examination that the only contact he had with Smith before trial was a single visit by Smith to the jail where Michel was detained pending trial. (Docket No. 897 at 14-15.) However, on cross-examination, Michel retreated from this harsh position, conceding that Smith had visited him in jail prior to trial numerous times in 2006 and 2007. (Id. at 55-56.) Michel acknowledged as well that he communicated with Smith by telephone many times before trial. (Id. at 57.)
Freiwald's testimony concerning a certain pretrial meeting casts further doubt on the credibility of Michel's testimony. Freiwald testified that, prior to trial, he met with Smith and Michel to review an evidentiary videotape. (Id. at 77.) However, earlier in the hearing, Michel had testified that this meeting with Smith and Freiwald never happened. (Id. at 58-59.) In fact, Michel asserted that the video of which Freiwald spoke was "fake." (Id. at 41, 65.)
Michel also testified that he did not speak English at the time of the trial. (Id. at 16.) He further testified that the only reason that he was able to speak English during the evidentiary hearing was that, since the trial, he had undertaken schooling to learn English. (Id.) However, Michel's representations concerning the poorness of his English proficiency at the time of the trial are rendered suspect by his later admissions during the course of the evidentiary hearing. Michel testified that Smith never utilized an interpreter during any of their pretrial meetings or phone conversations — hence, all of their pretrial communications were conducted in English. (Id. at 12, 17, 61.) Furthermore, Michel testified that, prior to his arrest, he lived in Winchester with his girlfriend, Laquita Sloane. (Id. at 25, 53.) Michel conceded that, because Sloane knew only English, he communicated with her solely in English. (Id. at 53.) However, when asked if he communicated with other people in Winchester, Michel responded: "I don't communicate to people in Winchester. I communicate with my girlfriend, because I ain't never been with people in Winchester." (Id. at 54.) Michel's testimony concerning his poor English at trial is also contradicted by Freiwald, who testified that he detected no difference in Michel's English proficiency during the evidentiary hearing as compared to his English proficiency at the
At one point during his cross-examination at the evidentiary hearing, Michel professed his innocence, claiming initially that he possessed documents substantiating that he was not present in the Winchester area at the time of some of the alleged drug transactions. (Id. at 63.) However, after being pressed to produce this documentation, Michel withdrew his claim of documentary support and, instead, contended simply that the person about whom everyone was speaking was "not me." (Id. at 64.)
Michel also sought to impugn the quality of Smith's representation at trial. According to Michel, Smith failed to elicit in his cross-examination of the government witnesses their status as convicted drug dealers and their incentive to testify against him. (Id. at 42-45.) Michel further testified at the evidentiary hearing that Smith likewise failed to broach these topics in the course of his closing argument to the jury. (Id. at 45-46.) As Judge Crigler noted in the Report, Michel alleged that Smith "offered little to nothing in the way of exculpatory evidence." (Docket No. 904 at 15.) In essence, Michel attempted to portray Smith's trial representation as a shoddy effort in which Smith did not consult with Michel and in which Smith utterly failed to elicit any points that would benefit Michel's case. In fact, Michel even went so far as to state at the evidentiary hearing that "Smith help [sic] the government." (Docket No. 897 at 66.) After Michel levied these allegations, Judge Crigler queried, "Now, if the transcript of the proceedings show [sic] otherwise, what is the Court to do? If the transcript shows that Mr. Smith made th[ose] very argument[s], what is the Court to do with what you just said?" (Id. at 46.) Michel responded by stating simply, "Judge, you can do anything you want to do." (Id.)
Judge Crigler's question has proven to be a premonition of the state of the trial record — the trial transcript flatly refutes Michel's assertions regarding the substance of Smith's representation. For example, as Judge Crigler noted, "the cross examinations of [two government witnesses] demonstrate that Smith questioned them about their experiences as drug dealers and their incentive to cooperate with law enforcement in exchange for potential reductions in their sentences." (Docket No. 904 at 15.) Furthermore, as Judge Crigler observed, the transcript of Smith's closing argument reveals that he did, in fact, emphasize to the jury that the government's witnesses should not be believed based on their status as convicted criminals and "liars[,]" and on their personal incentives to cooperate with the government. (Id. at 16.) Smith also sought to impress upon the jurors' minds that various nicknames associated with drug dealers had been improperly attributed to Michel. (Id. at 13.) In short, Judge Crigler observed, "the trial transcript makes clear that many of Michel's claims about how Smith represented him during trial are patently false." (Id. at 16.)
Judge Crigler also took a step back from the specific, substantive details of Michel's testimony and observed generally that Michel's "demeanor and conduct while testifying" lent further weight to a finding of incredibility. (Id. at 14.) In making its own independent review of the transcript from the evidentiary hearing, this court notes that Michel was argumentative, contentious, evasive, and unresponsive to questions. Furthermore, Michel manifested overtly accusatory behavior, perhaps best evidenced by Michel's allegation that the prosecutor was a "mole" who was lying and hiding evidence from the court and the jury. (Docket No. 897 at 48-49.) Numerous other instances illustrated Michel's penchant for placing the blame on others.
However, a more important factor supporting this court's finding of incredibility emanates from a presumption that a court interpreter translates communications with propriety, accuracy, and integrity. Once again, Michel contends that the Haitian Creole interpreter who translated the trial proceedings for Michel's benefit failed to communicate to Smith that Michel had voiced an intent to exercise his Fifth Amendment right to testify. Michel would have the court believe that he was linguistically incapable of conveying his intent directly to Smith.
A number of state courts have recognized that "[t]here is a rebuttable presumption that an interpreter in the course of performing his official duty has acted regularly." State v. Casipe, 5 Haw.App. 210, 686 P.2d 28, 33 (Haw.Ct.App.1984); see also, e.g., Skaha v. State, 44 Kan.App.2d 334, 236 P.3d 560, 565 (Kan.Ct. App.2010) ("Absent some contrary showing, courts presume that an interpreter exercising his or her official duties has acted properly."); State v. Mendoza, 181 Ariz. 472, 891 P.2d 939, 942 (Ariz.Ct.App. 1995) ("[I]t is presumed that court interpreters will correctly carry out their duties and that oaths will be properly administered."); Thomason v. Territory, 4 N.M. 154, 13 P. 223, 228 (1887) ("Acting under oath and the order of the court, the presumption should be in favor of proper action by [an interpreter], rather than against it.... If this officer of the court did or said anything prejudicial, that is a fact for the defendant to show...."). Furthermore, a limited number of federal courts have likewise recognized that, "upon a collateral attack, an ... interpreter is cloaked with the presumption of regularity, which `allows a court to assume that an official or person acting under oath of office will not do anything contrary to his or her official duty.'" Hou v. Walker, No. CV 96 1365, 1996 WL 684442, at *3 (E.D.N.Y. Nov. 20, 1996) (quoting People v. Bicet, 180 A.D.2d 692, 580 N.Y.S.2d 55, 56 (1992)); see also Clervil v. McNeil, No. 08-20144-CIV, 2008 WL 4753575, at *12 (S.D.Fla. Oct. 28, 2008) (citing Hou, 1996 WL 684442, at *3).
In any event, this court believes that, even without this supporting authority, a presumption of propriety should accompany a court interpreter in the performance of his or her official duties. The law recognizes many presumptions that place the onus to adduce rebuttal evidence on the party attacking the presumption. See, e.g., Landgraf v. USI Film Prods., 511 U.S. 244, 265, 114 S.Ct. 1483, 128 L.Ed.2d 648 (1994) (recognizing a "presumption against retroactive legislation"); AT & T Techs., Inc. v. Commc'ns Workers of Am., 475 U.S. 643, 650, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986) (recognizing a "presumption of arbitrability" when a contract contains an arbitration clause); United States v. Chem. Found., Inc., 272 U.S. 1, 14-15, 47 S.Ct. 1, 71 L.Ed. 131 (1926) (recognizing a "presumption of regularity" that undergirds the official acts of public officers, causing courts to presume that they have properly discharged their official duties); Nibagwire v. Gonzales, 450 F.3d 153, 156 (4th Cir.2006) (recognizing a "presumption of effective delivery" with respect to regular mail); United States v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992) (en banc) (recognizing a "presumption that [a] plea [of guilty] is final and binding" if the plea was made during a properly conducted hearing pursuant to Rule 11 of the Federal Rules of Criminal Procedure); 79 Am.Jur.2d Wills § 374
In support of its belief that the law should reflect a presumption of propriety in favor of court interpreters, the court notes that courts in general have recognized that various professionals are entitled to presumptions that they perform their duties accurately. See, e.g., Strickland, 466 U.S. at 689, 104 S.Ct. 2052 (recognizing, in ineffective assistance of counsel claims, a "presumption that counsel's conduct falls within the wide range of reasonable professional assistance"); Youngberg v. Romeo, 457 U.S. 307, 324, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982) (establishing a presumption of correctness with respect to decisions rendered by appropriate medical professionals); Froelich v. Senior Campus Living LLC, 355 F.3d 802, 810 (4th Cir.2004) (recognizing that, pursuant to the business judgment rule, the decisions of business professionals on the board of directors should be presumed valid). This court is of the opinion that court interpreters should likewise be accorded such a presumption in the execution of their official duties. Court-appointed interpreters qualify for service based on their ability to satisfy certain objective standards. See 28 U.S.C. § 604(a)(14)-(16) (providing that the duties of the Director of the Administrative Office of United States Courts include the establishment of a "program for the certification and utilization of interpreters in courts of the United States"); id. §§ 1827-28 (setting forth more specific guidance with respect to the Director's duty to establish a program for certifying and utilizing interpreters in federal courts); Guide to Judiciary Policy: Court Interpreting § 320 (2011), available at http://www.uscourts.gov/uscourts/FederalCourts/Publications/Guide_Vol05.pdf (describing the standards that govern qualification for service as a court interpreter); Charles M. Grabau & Llewellyn Joseph Gibbons, Protecting the Rights of Linguistic Minorities: Challenges to Court Interpretation, 30 New Eng. L. Rev. 227, 255-60 (1996) (summarizing and discussing the qualifications for court interpreters). In addition to qualifying for service, federal court interpreters must "give an oath or affirmation to make a true translation." Fed.R.Evid. 604.
Based on the requirements that court interpreters must satisfy certain objective standards and must take an oath to translate truthfully, and based on the decisions of other courts assigning similar presumptions to other qualified professionals, this court holds that court interpreters are entitled to a presumption that they execute their official duties with propriety, accuracy, and integrity. To rebut this presumption, an individual must adduce specific evidence of impropriety by the interpreter. See 27 Charles Alan Wright & Victor James Gold, Federal Practice and Procedure § 6055, at 374 (2d ed. 2007) ("[T]he party attacking a translation has the burden of showing it deficient and prejudicial. Absent such a showing, there is a presumption that the interpreter has properly performed." (footnote omitted)).
Applying this presumption of propriety to the facts of the instant case constrains the court to conclude that Michel has adduced no specific evidence demonstrating impropriety by the court interpreter at trial. Although Michel alleges that the court interpreter failed to convey to Smith the invocation of Michel's right to testify, Michel conceded, after further probing by Judge Crigler at the evidentiary
Finally, the court's finding of incredibility is further bolstered by the fact that the record from the evidentiary hearing establishes that Michel knew that he could have testified at trial. Even though, according to Michel, he did not know of his right to testify, "[he] knew that [he] could talk if [he] wanted to." (Id. at 68.) Despite Michel's awareness of his ability to testify,
Based on the analysis set forth above, the court will adopt the Report insofar as it recommends that this court find Michel's testimony incredible.
The Clerk is directed to send certified copies of this memorandum opinion and the accompanying order to Michel and to all counsel of record.
However, Michel's objection is meritless and, in fact, directly conflicts with the central reasoning of the instant opinion. Contrary to Michel's objection, the credibility of his testimony at the evidentiary hearing has everything to do with the substance of Michel's allegations regarding the prejudice that he allegedly suffered. Because this court finds Michel's testimony at the evidentiary hearing incredible, the court does not believe that Michel suffered the prejudice of which he complains.