Opinion
Criminal Action No. 01-20021-01-KHV.
May 10, 2004
MEMORANDUM AND ORDER
On June 7, 2001, a jury found defendant guilty of being a felon in possession of a firearm and ammunition. This matter is before the Court on defendant's Motion Pursuant To 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (Doc. #82) filed September 29, 2003 and defendant'sMotion For Court Appointment Of Counsel (Doc. #89) filed February 24, 2004. After carefully considering the parties' briefs, the Court overrules defendant's motion to vacate in part and sustains his motion to appoint counsel.
Factual Background
The evidence at trial may be summarized as follows:
In March 1996, defendant was convicted of aggravated robbery and aggravated burglary in the District Court of Wyandotte County, Kansas. The Honorable J. Dexter Burdette sentenced defendant to a term of imprisonment of 64 months with credit for time served. Following his release from prison, defendant resided at a halfway house.
On October 20, 2000, defendant was released from the halfway house. That evening, he went to see his girlfriend, Sheila McElroy. At approximately 11:00 p.m., the two went to a friend's apartment at 2405 Elmwood Avenue in Kansas City, Kansas. The apartment was located on the upper level of a two story apartment building with a wrap-around balcony on the second story. At approximately 12:20 a.m. on October 21, 2000, in response to a report of an armed disturbance at that address, Officers Chris Johnson and Steve Haulmark of the Kansas City, Kansas Police Department arrived at the apartment building. Sergeant Kenneth Shafer arrived shortly thereafter. Officer Johnson testified that as he approached the apartment building from the parking lot, he saw defendant banging on an apartment door on the second floor. As Officer Johnson got closer, he observed a handgun in defendant's right hand Officer Johnson signaled to Officer Haulmark that defendant had a gun. When defendant turned and saw the police officers, Officer Johnson identified himself and told defendant to drop his gun. According to Officer Johnson, defendant acted nervous; he reached down and placed the gun underneath a chair which was next to the door, immediately below a porch light. Officer Haulmark testified that after Officer Johnson told defendant to put down the gun, he saw that defendant had something in his hand and that defendant made a movement towards the ground. Officer Haulmark could not see what, if anything, defendant placed on the ground. After defendant placed the gun beneath the chair, Officers Johnson and Haulmark and Sergeant Shafer ran up the stairs and arrested defendant as he attempted to enter the apartment. Officer Johnson recovered the firearm, which was loaded with five rounds of ammunition. Each officer testified that defendant resisted arrest.
Defendant testified that he had taken McElroy to a party at the apartment at 2405 Elmwood, but that he stayed for only a short while and left by himself to eat dinner. Defendant picked up dinner and stopped by a convenience store before returning to the apartment complex. Defendant testified that he sat in his car and ate dinner. Defendant then walked up the stairs to the apartment to pick up McElroy. While he was on the balcony, he noticed police officers in the parking lot. He testified that he went to the apartment door and asked for McElroy, but that officers grabbed him as he entered the apartment. Defendant testified that the officers beat him without provocation, that he did not have a gun, and that the officers never showed him a gun that evening.
Procedural Background
On January 31, 2001, a grand jury returned a two-count indictment. See Indictment (Doc. #1). Count 1 charged defendant with possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). Count 2 charged defendant with possession of ammunition by a convicted felon in violation of 18 U.S.C. § 922(g)(1).
On the morning of the first scheduled trial date, Michael L. Harris of the Federal Public Defender's Office asked to withdraw because of a conflict with defendant as to trial strategy. The Court therefore continued the trial and appointed Terrence J. Campbell to represent defendant. On June 7, 2001, a jury convicted defendant on both counts. See Verdict (Doc. #29).
Shortly after trial, defendant asked the Court to appoint new counsel. He made numerous allegations as to Mr. Campbell's conduct as trial counsel and stated that he no longer had confidence in him. The Court therefore appointed Joseph D. Johnson to represent defendant for the remaining proceedings in district court, including sentencing.
At sentencing, the government presented evidence that a 911 call by defendant's girlfriend had prompted the police response and defendant's arrest. On the 911 tape, McElroy told the police dispatcher that defendant was pounding on the apartment door, that "he [was] scaring the shit out of us!" and that he had a gun. See Sentencing Exhibit 1. Defendant called McElroy to testify at sentencing. She admitted that although she had previously told defense counsel that she did not make the 911 call, her voice was in fact the one on the 911 tape.
The Court sentenced defendant to prison for 120 months. The Court enhanced defendant's sentence four levels under U.S.S.G. § 2K2.1(b)(5) because he possessed the firearm and ammunition in connection with another felony offense,i.e. aggravated assault of McElroy and the other apartment occupants. See Transcript Of Sentencing (Doc. #69). The Court also enhanced defendant's sentence two levels for obstruction of justice based on defendant's testimony at trial. See id. at 29. Defendant's total offense level was 26, with a criminal history category V, resulting in a sentencing range of 110 to 137 months which was capped by the statutory maximum of 120 months.
The Court initially sentenced defendant to a term of imprisonment of 120 months on Count 1 and 17 months on Count 2, to run consecutively. The Court vacated defendant's conviction on Count 2, however, because the two counts were based on possession of a single, loaded firearm and should have merged at the time of sentencing. See Order (Doc. #58) filed October 19, 2001.
The Tenth Circuit Court of Appeals appointed Jenine Jensen to represent defendant on appeal. On May 20, 2002, the Tenth Circuit affirmed defendant's conviction and sentence. See United States v. Powell, 33 Fed. Appx. 482 (10th Cir.), cert. denied, 537 U.S. 907 (2002).
On September 29, 2003, defendant timely filed the instant motion pursuant to 28 U.S.C. § 2255. Defendant claims that the Court should vacate his sentence because Mr. Harris, Mr. Campbell, Mr. Johnson and Ms. Jensen each provided ineffective assistance.
Defendant states that he was delayed 30 days in filing his motion because the prison was on lock down status for 30 days during late May and early June of 2003. Even with the delay, defendant's motion is timely because it was filed within one year of the Supreme Court's denial of certiorari on his direct appeal.See United States v. Willis, 202 F.3d 1279, 1280 (10th Cir. 2000).
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) the deficient performance was so prejudicial that there is 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) (citation omitted),cert. denied, 489 U.S. 1089 (1989). As to the second element, the Court must focus on the question "whether counsel's deficient performance render[ed] the result of the trial unreliable or the proceeding fundamentally unfair." Lockhart v. Fretwell, 506 U.S. 364, 372 (1993).
A hearing on a claim for ineffective assistance of counsel in a Section 2255 proceeding is not required unless (1) defendant alleges specific and particularized facts which, if true, would entitle him to relief and (2) the motion and the files and records of the case do not conclusively show that defendant is entitled to no relief.See 28 U.S.C. § 2255; United States v. Kilpatrick, 124 F.3d 218, 1997 WL 537866, at *3 (10th Cir. Sept. 2, 1997) (allegations of ineffective assistance must be specific and particularized; conclusory allegations do not warrant hearing); Hatch v. Oklahoma, 58 F.3d 1447, 1457, 1471 (10th Cir. 1995) (same),cert. denied, 517 U.S. 1235 (1996); United States v. Chandler, 291 F. Supp.2d 1204, 1209 (D. Kan. 2003) (same);United States v. Marr, 856 F.2d 1471, 1472 (10th Cir. 1988);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 the record); see also Mayes v. Gibson, 210 F.3d 1284, 1287 (10th Cir.) (to warrant hearing on ineffective assistance claim under 28 U.S.C. § 2254, plaintiff must allege facts which "if true and not contravened by the record" would entitle him to relief), cert. denied, 531 U.S. 1020 (2000). Some allegations of ineffective assistance of counsel maybe resolved by the district court judge's personal knowledge or recollection, but where a record is available which would support or contradict defendant's claim, the district judge cannot rely solely on her recollection of events to rule on the merits. See Marr, 856 F.2d at 1472.
I. Initial Counsel — Mr. Harris
Defendant apparently claims that Mr. Harris was ineffective, but he does not provide any specific allegations. See Motion To Vacate (Doc. #82) at 6 (received ineffective assistance at all stages); defendant's Factual Background And Supporting Facts ("Defendant's Statement Of Facts") at 11 (received ineffective assistance from each lawyer), attached to defendant's Motion To Vacate (Doc. #82); Traverse (Doc. #88) filed November 20, 2003 at 1 (received ineffective assistance from each appointed attorney). Defendant's bare allegation is insufficient to show that counsel's performance was deficient. Even if defendant could somehow show that Mr. Harris' performance was deficient, he has not shown that his performance was prejudicial. Mr. Harris represented defendant at the preliminary stages of the case and withdrew from the case before trial. Defendant has not shown that absent the unspecified errors by Mr. Harris, the jury verdict would have been different. See Strickland, 466 U.S. at 687, 694. Defendant's conclusory allegations of ineffective assistance are insufficient to warrant an evidentiary hearing. See Hatch, 58 F.3d at 1471;Chandler, 291 F. Supp.2d at 1209.
II. Trial Counsel — Mr. Campbell
Defendant claims that Mr. Campbell was ineffective because (1) he conducted no meaningful pretrial investigation, (2) he did not conduct pretrial interviews of the individuals present at the apartment building, (3) he did not object to the composition of the grand or petit juries, (4) he did not file a motion to suppress, (5) he did not contest the chain of custody of the gun and ammunition, (6) he did not file a motion in limine to exclude evidence of defendant's prior conviction, (7) he did not subpoena Melvin Glover (who allegedly possessed a firearm the night defendant was arrested), (8) he did not adequately cross-examine the government witnesses, (9) he advised defendant to testify, (10) he did not object to a read back of defendant's testimony during jury deliberations, (11) he abandoned his role as advocate and (12) he did not file proper post-trial motions.
Initially, the Court notes that defendant has challenged as ineffective nearly every action and decision by trial counsel.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. Although counsel did not secure defendant's acquittal, his strategy and conduct was reasonable and competent. Indeed, from the Court's perspective, trial counsel provided superb representation and vigorously defended his client. Below, the Court addresses each of defendant's claims in turn.
A. Lack Of Meaningful Pretrial Investigation
Defendant argues that counsel was ineffective because he did not conduct a meaningful investigation of the crime scene. See Defendant's Statement Of Facts at 1, 9, attached to defendant'sMotion To Vacate (Doc. #82).
At trial, defense counsel offered without objection six photographs of the outside of the apartment building and balcony.See Trial Exhibits 400-405. In light of the photographs and trial testimony, defendant has not explained how counsel was deficient for not conducting a more detailed investigation of the "crime scene." Furthermore, even if defendant could show that counsel should have conducted a more thorough investigation, defendant has not shown a reasonable probability that but for counsel's alleged error, the results of the proceeding would have been different. See Rantz, 862 F.2d at 810-11. Plaintiff has not alleged how a more elaborate description of the crime scene would have altered the jury's conclusion that defendant had a gun on the apartment balcony. Because plaintiff has not alleged specific and particularized facts which if true would entitle him to relief, he is not entitled to a hearing on this claim. See Kilpatrick, 1997 WL 537866, at *3; Hatch, 58 F.3d at 1457;Chandler, 291 F. Supp.2d at 1209.
B. Failure To Conduct Pretrial Interviews
Defendant argues that counsel was ineffective because he did not interview Melvin Glover (who allegedly had "the" firearm that evening) or other individuals in the apartment. See Defendant's Statement Of Facts at 1-2, 9, attached to defendant's Motion To Vacate (Doc. #82). In his affidavit, defendant states that at least five people would have verified that he never had physical possession of the firearm and bullets on the day of his arrest. See Defendant's Affidavit ¶ 2, attached to Motion To Vacate (Doc. #82).
Defendant does not explain (1) how the fact that Glover had a gun relates to his defense that police produced a gun after they took him to the police station that evening, (2) whether there was only one gun at the apartment that evening, or (3) if so, how he knew that Glover had the only gun. In addition, defendant's current assertion that Glover had "the" firearm is at odds with his trial testimony. Defendant testified that (1) he knew Glover, (2) he had never seen a gun as old as the one that officers produced at trial, and (3) other than McElroy, he did not know anyone at the apartment that evening. See Transcript Of Jury Trial (Doc. #70) at 218, 227-28, 273. If Glover was not at the apartment that evening, as defendant's trial testimony suggests, Glover was probably not competent to testify whether plaintiff had a gun when officers arrived at the apartment. Likewise, defendant testified that he went to eat by himself and that officers arrested him as he was trying to go inside the apartment to pick up McElroy. See id. at 218-19, 221-22. Plaintiff does not explain how at least five people could testify that he did not have a gun that evening when no one accompanied him to eat, no one knew him, and he did not have significant interactions with them between the time he returned from eating and the time of his arrest.
Notably, except for Glover, defendant has not identified by name any of the five people who would have testified on his behalf. He also has not offered an affidavit of any of these witnesses. As to Glover, the Court specifically granted defendant leave to file an affidavit or declaration, but he did not do so.See Order (Doc. #91) filed March 9, 2004. 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.) (failure to provide affidavit from witness regarding potential testimony precludes finding of prejudice),cert. denied, 493 U.S. 898 (1989); 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),cert. denied, 470 U.S. 1058 (1985); United States v. Anderson, 2003 WL 22757928, at *3 (D. Kan. Nov. 6, 2003) (Section 2255 movant required to submit affidavit of putative witness); 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 United States v. Jones, 124 F.3d 218, 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).
Defendant does not explain how the testimony of any of these witnesses would have changed the jury verdict. At trial, defendant testified that other than McElroy, he did not really know anybody inside the apartment. See Transcript Of Jury Trial (Doc. #70) at 218. At sentencing, McElroy confirmed that she called 911 that evening and told police that defendant was angry, that he had been in a fight earlier that evening, that he was "scaring the shit out of us" and that he had a gun. See Transcript Of Sentencing (Doc. #69) at 13. Absent an affidavit from any of the other apartment occupants, the Court must assume that their testimony would have been consistent with McElroy's 911 call. Even if Glover and the apartment occupants would have testified that defendant did not have a gun earlier that evening, plaintiff has not shown that such testimony (if admitted) likely would have altered the jury's ultimate conclusion that when officers approached later that evening and saw defendant hitting the apartment door, defendant had a gun in his possession. Therefore, defendant has not shown a reasonable probability that but for counsel's alleged error, the results of the proceeding would have been different. See Rantz, 862 F.2d at 810-11. Because plaintiff has not alleged specific and particularized facts which if true would entitle him to relief, he is not entitled to a hearing on his claim. See Kilpatrick, 1997 WL 537866, at *3; Hatch, 58 F.3d at 1457; Chandler, 291 F. Supp.2d at 1209.
C. Failure To Object To All-White Grand Jury Or Petit Jury
Defendant, who is African American, argues that counsel was ineffective in failing to object that he was indicted by an all-white grand jury and tried by an all-white petit jury. See Defendant's Statement Of Facts at 1-2, 12-16, attached to defendant's Motion To Vacate (Doc. #82). The Court first determines whether counsel's failure to object to the composition of the grand and petit juries was deficient. The Jury Selection and Service Act of 1968, 28 U.S.C. § 1861 et seq., provides in pertinent part:"It is the policy of the United States that all litigants in Federal courts entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross section of the community in the district or division wherein the court convenes." 28 U.S.C. § 1861. The Jury Act's fair cross section requirement parallels a defendant's Sixth Amendment right to trial by an impartial jury and both requirements are generally evaluated under the Sixth Amendment standard. United States v. Shinault, 147 F.3d 1266, 1270 (10th Cir.), cert. denied, 525 U.S. 988 (1998); see Taylor v. Louisiana, 419 U.S. 522, 526-31 (1975).
Likewise, the Fifth and Sixth Amendments require that a grand jury be drawn from a representative cross section of the community. See Campbell v. Louisiana, 523 U.S. 392, 397-399 (1998) (Fifth Amendment due process and equal protection rights to impartial grand jury); United States v. Deering, 179 F.3d 592, 597 (8th Cir. 1999) (Sixth Amendment right to grand jury from fair cross section); United States v. Terry, 60 F.3d 1541, 1544 (11th Cir. 1995) (Sixth Amendment right to grand and petit jury selected from fair cross section).
To establish a prima facie violation of the Sixth Amendment fair cross-section requirement, defendant must show:
(1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.Duren v. Missouri, 439 U.S. 357, 364 (1979). If defendant proves a prima facie violation, the government then bears the burden of proving that attainment of a fair cross section is incompatible with a significant state interest. See id. at 368.
Defendant has no right to a "petit jury composed in whole or in part of persons of his own race." Batson v. Kentucky, 476 U.S. 79, 85 (1986) (citing Strauder v. West Virginia, 100 U.S. 303, 305 (1880)). Moreover, the Sixth Amendment does not require that "petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population."Batson, 476 U.S. at 86 n. 6 (citing Taylor, 419 U.S. at 538).
The system employed by the Federal District of Kansas for selecting petit juries has been the subject of judicial scrutiny, and has been found to satisfy the requirements of the Sixth Amendment and 28 U.S.C. § 1861 et seq. See United States v. Chanthadara, 230 F.3d 1237, 1256-57 (10th Cir. 2000);Shinault, 147 F.3d at 1270-73. Based on this case law, counsel's failure to object to the composition of the grand jury and petit jury was not deficient. Defendant has not shown (1) that the representation of blacks on the juries was unfair or unreasonable in relation to the number of blacks in the community or (2) that blacks were systematically excluded from his venire. "Reasonable and effective assistance of counsel does not require an attorney to sift through voluminous jury records every time his client requests that he challenge the array as unconstitutionally drawn." Gustave v. United States, 627 F.2d 901, 906 (9th Cir. 1980). "There must be some evidence of irregularity in jury selection practices before failure to object to the panel rises to the level of ineffective assistance of counsel." Id. (citing Arnold v. Wainwright, 516 F.2d 964, 970-71 (5th Cir. 1975), cert. denied, 426 U.S. 908 (1976));see United States v. Ward, 610 F.2d 294, 295 (5th Cir. 1980); Smith v. United States, 456 F.2d 121, 122 (3rd Cir. 1972) (grand and petit juries).
Furthermore, if the Court assumed that counsel's representation was somehow deficient for failing to object to the composition of the grand and petit juries, defendant has not shown a reasonable probability that but for counsel's alleged error, the results of the proceeding would have been different. See Rantz, 862 F.2d at 810-11. Because the record conclusively shows that counsel was not ineffective for failing to object to the composition of the grand jury or petit jury, defendant is not entitled to hearing on his claim. See Marr, 856 F.2d at 1472.
D. Failure To File Motion To Suppress
Defendant complains that counsel did not file a motion to suppress the firearm or ammunition, but he has not shown any factual or legal basis for such a motion or that such a motion would have likely affected the outcome of the case. See Defendant's Statement Of Facts at 1, attached to defendant'sMotion To Vacate (Doc. #82). Only those motions having a solid foundation, not every possible motion, should be filed. United States v. Afflerbach, 754 F.2d 866, 870 (10th Cir.), cert. denied, 472 U.S. 1029 (1985). Defendant provides no facts which would suggest that counsel's failure to file a motion to suppress was deficient or prejudicial. Because plaintiff has not alleged specific and particularized facts which if true would entitle him to relief, he is not entitled to a hearing on his claim. See Kilpatrick, 1997 WL 537866, at *3; Hatch, 58 F.3d at 1457;Chandler, 291 F. Supp.2d at 1209.
E. Failure To Contest Chain Of Custody Of Gun And Ammunition
Defendant argues that counsel was ineffective because he never challenged the chain of custody of the firearm and ammunition.See Defendant's Statement Of Facts at 1, attached to defendant's Motion To Vacate (Doc. #82). Defendant, however, does not explain how counsel's performance was deficient. At trial, counsel vigorously challenged the officers' testimony that defendant had a gun in his hand and placed it underneath a chair when they ordered him to drop it. Counsel argued, and defendant testified, that the officers never showed him a gun that evening. The jury ultimately rejected defendant's theory, but defendant has not explained how counsel's performance as to the chain of custody was deficient or prejudicial. Because plaintiff has not alleged specific and particularized facts which if true would entitle him to relief, he is not entitled to a hearing on his claim. See Kilpatrick, 1997 WL 537866, at *3; Hatch, 58 F.3d at 1457; Chandler, 291 F. Supp.2d at 1209.
F. Failure To File Motion In Limine To Exclude Evidence Of Prior Conviction
Defendant was charged with possession of a firearm and ammunition by a convicted felon. The parties stipulated that the defendant was convicted of a crime in state court and that this crime was punishable by imprisonment for a term exceeding one year. Accordingly, the government did not present evidence of defendant's prior conviction during its case in chief. After defendant testified generally about his prior conviction and positive aspects of the conviction such as his rehabilitation, the Court ruled that his testimony opened the door for government counsel to ask about the prior conviction.
Defendant argues that counsel was ineffective because he did not file a motion in limine to exclude evidence of his prior conviction. See Defendant's Statement Of Facts at 1, attached to defendant's Motion To Vacate (Doc. #82). Counsel's failure to file a motion in limine was not deficient, however, because counsel objected at trial and made an adequate record on the issue. Rule 609, Fed.R.Evid., permits introduction of prior convictions for the purpose of attacking the credibility of a witness. When a defendant testifies, evidence of a prior conviction for a crime punishable by death or imprisonment for over one year "shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused." Fed.R.Evid. 609(a)(1). At trial, defense counsel objected to cross-examination about defendant's prior conviction. The Court overruled his objection, noting that by testifying, and by the nature of his testimony, defendant had put his character, honesty and integrity in issue. The Court also ruled that the probative value of the evidence outweighed its prejudicial effect.
Because the Court admitted evidence of his prior conviction, defendant filed a post-trial motion for new trial. The Court overruled defendant's motion, reasoning as follows:
On direct examination, defendant testified that he felt bad about "it" (his conduct underlying the prior conviction), he regretted doing "it," and that he "just happened to end up going to the penitentiary for it." See Partial Transcript Of Jury Trial (Doc. #32) filed June 13, 2001 at 2-3. Defendant also testified about positive aspects of his prior conviction: his rehabilitation, his work history and his church attendance in prison. Defendant's testimony opened the door for government counsel to ask about "it," i.e. the fact that defendant had been convicted for aggravated robbery and aggravated burglary. See Brown v. United States, 356 U.S. 148, 155-56 (1958) (defendant cannot claim immunity from cross-examination on matters he put in dispute); United States v. Wolf, 561 F.2d 1376, 1381 (10th Cir. 1977) (where defendant attempts to explain away effect of prior conviction or to minimize his guilt, defendant may be cross-examined on any facts which are relevant to direct examination); Martin v. United States, 404 F.2d 640, 643 (10th Cir. 1968) (where defendant admits prior felony conviction, prosecution permitted to ask what felony was and when was it committed); cf. United States v. White, 222 F.3d 363, 370 (7th Cir. 2000) (where defendant attempts to explain away prior conviction on direct examination, he has opened the door to impeachment by prosecution on details of conviction). Moreover, defendant, just like any other witness, put his character at issue by simply testifying. To preclude all cross-examination regarding his conviction "would make the Fifth Amendment not only a humane safeguard against judicially coerced self-disclosure but a positive invitation to mutilate the truth a party offers to tell." Brown, 356 U.S. at 156; see United States v. Haslip, 160 F.3d 649, 654 (10th Cir. 1998) (Tenth Circuit has long permitted government to impeach testimony of defendant in same manner as any other witness, including reference to prior convictions); Burrows v. United States, 371 F.2d 434, 435 (10th Cir. 1967) ("When a defendant in a criminal action takes the stand, he takes with him his character and reputation. He is supported by more than his own testimony, for the law presumes that his reputation is good with respect to all elements involved in the crime with which he is charged. For this reason it has always been considered proper in cross-examination to interrogate him as to all collateral matters which would clearly tend to disprove the legal presumption with which he is clothed.") (internal citation omitted). "Although [defendant] stipulated to his prior conviction of a felony, an element that the government would otherwise have to prove, . . . [t]he jury has a right under the law to hear that any witness, whether it is the defendant or not, has a felony record that is or can be considered to be impeaching." United States v. Toney, 27 F.3d 1245, 1253 (7th Cir. 1994).
Several circuit courts have outlined five factors to guide district courts when balancing the probative value and prejudicial effect of a defendant's prior conviction under Rule 609(a)(1). See, e.g., United States v. Jimenez, 214 F.3d 1095, 1098 (9th Cir. 2000); United States v. Smith, 131 F.3d 685, 687 (7th Cir. 1997); United States v. Sloman, 909 F.2d 176, 181 (6th Cir. 1990); Gordon v. United States, 383 F.2d 936, 940 (D.C. Cir. 1967). These factors include:
1. the impeachment value of the prior crime;
2. the point in time of the conviction and the witness' subsequent history;
3. the similarity between the past crime and the charged crime;
4. the importance of the defendant's testimony; and
5. the centrality of the credibility issue.
Jimenez, 214 F.3d at 1098.
Here, the first two factors favor admission of defendant's prior conviction. The impeachment value of defendant's prior conviction was substantial based on the serious nature of aggravated robbery and aggravated burglary. See United States v. Alexander, 48 F.3d 1477, 1488 (9th Cir.) (robbery and drug convictions probative of defendant's credibility), cert. denied, 516 U.S. 878 (1995); United States v. Jefferson, 925 F.2d 1242, 1256 (10th Cir. 1991) (district court did not abuse discretion by admitting defendant's prior conviction of aggravated robbery, which is a "substantial crime"); United States v. Halbert, 668 F.2d 489, 495 (10th Cir.) (armed robbery probative of credibility), cert. denied, 456 U.S. 934 (1982). Defendant's prior conviction also was relatively recent (approximately five years earlier) and he was arrested on the instant offense within 24 hours of his release from a halfway house on that conviction. See United States v. Moore, 917 F.2d 215, 234 (6th Cir. 1990) (admission of armed robbery conviction from 9 years ago was proper in subsequent armed robbery prosecution); see also Jefferson, 925 F.2d at 1256 (district court did not abuse discretion by admitting defendant's conviction of aggravated robbery even though conviction was slightly beyond 10-year time limit of Rule 609(b)).
The next two factors favor exclusion of defendant's prior conviction. Defendant's prior crimes (aggravated burglary and aggravated robbery) are somewhat akin to the instant offense (felon in possession), and they tend to suggest that because defendant had previously committed an "aggravated" offense, he must have possessed a firearm on October 21, 2000. See Toney, 27 F.3d at 1254 (danger of admitting prior conviction for similar offense is that jury will regard prior conviction as evidence of willingness to commit crime charged). The importance of defendant's testimony also favors exclusion of his prior conviction. See Gordon, 383 F.2d at 940 ("One important consideration is what the effect will be if the defendant does not testify out of fear of being prejudiced because of impeachment by prior convictions."). Defendant's testimony was essential to his claim that police officers planted the firearm and then beat him without provocation.
The final factor, i.e. the centrality of the credibility issue, favors admission of defendant's prior conviction. See United States v. Smith, 10 F.3d 724, 727 (10th Cir. 1993) (district court did not abuse discretion by admitting defendant's earlier robbery and burglary convictions because of nature of defense and importance of his credibility). Of the five factors, three favor admission of defendant's prior conviction while two favor exclusion of the evidence. The scales are tipped in favor of admission, however, by the importance of the credibility issue. See United States v. Payton, 159 F.3d 49, 58 (2d Cir. 1998) (centrality of credibility issue and impeachment value of prior convictions are "highly relevant factors to a trial court's ultimate determination"); Moore, 917 F.2d at 234 (admission of armed robbery conviction was proper because defendant's credibility was "very much in contention"); United States v. Brown, 956 F.2d 782, 787 (8th Cir. 1992) (prior conviction was "highly probative" because credibility of witnesses was critical factor in jury's determination). This case was a classic credibility contest between the police officers and defendant. Defendant admitted that he was on the balcony where the police officers observed him, but he claims that he did not have a firearm in his possession. Accordingly, the Court permitted the government to challenge defendant's credibility based on his prior conviction.
For these reasons, the Court finds that under Rule 609(a)(1), Fed.R.Evid., the probative value of defendant's prior conviction outweighed its prejudicial effect. Defendant's motion for a new trial on this issue is overruled.United States v. Powell, 165 F. Supp.2d 1230, 1234-36 (D. Kan. 2001).
In failing to file a motion in limine to exclude evidence of defendant's prior conviction, defense counsel's performance was not deficient. As explained above, the Court's ruling on the issue depended on whether defendant testified and the nature of his testimony. Counsel made an appropriate though ultimately unsuccessful objection at trial. Counsel's failure to file a motion in limine on the issue also was not prejudicial because such a motion would not have altered the Court's ruling on the issue. See Marr, 856 F.2d at 1472 (judge may rely on personal knowledge or recollection). Because plaintiff's claim is contravened by the trial record and he has not alleged specific or particularized facts which if true would entitle him to relief, he is not entitled to a hearing on his claim. See Mayes, 210 F.3d at 1287; Kilpatrick, 1997 WL 537866, at *3;Hatch, 58 F.3d at 1457; Chandler, 291 F. Supp.2d at 1209.
G. Failure To Subpoena Glover As A Witness
Defendant argues that counsel was ineffective because he did not subpoena Glover to testify. See Defendant's Statement Of Facts at 1-2, attached to defendant's Motion To Vacate (Doc. #82). Trial counsel has not submitted an affidavit explaining why he did not subpoena Glover. At this stage, the Court must therefore assume that defendant could establish that trial counsel's failure to subpoena Glover was deficient. In any event, counsel's decision not to call Glover was not prejudicial. Although defendant claims that Glover was the individual who actually owned and possessed "the" gun, defendant has not offered an affidavit from Glover as to the nature of his proposed testimony. As explained above, 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 Ashimi, 932 F.2d at 650; Sanders, 875 F.2d at 210-11;Schaflander, 743 F.2d at 721; Anderson, 2003 WL 22757928, at *3; Cosby, 983 F. Supp. at 1026. Defendant's conclusory allegation that Glover owned and possessed "the" gun is insufficient to establish that Glover would have testified to that fact. See Jones, 124 F.3d 218, 1997 WL 580493, at *1 (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). Even if the Court assumes that Glover would have admitted that he possessed a gun that evening, plaintiff has not specifically alleged that Glover also would have testified that defendant did not have a gun when he returned to the apartment by himself later that evening. Because plaintiff has not provided an affidavit of Glover or alleged facts which if true would entitle him to relief, he is not entitled to a hearing on his claim. See Mayes, 210 F.3d at 1287; Ashimi, 932 F.2d at 650; Sanders, 875 F.2d at 210-11; Schaflander, 743 F.2d at 721.
H. Inadequate Cross-Examination
Defendant argues that counsel's cross-examination was ineffective because he lacked adequate trial preparation. See Defendant's Statement Of Facts at 3, attached to defendant'sMotion To Vacate (Doc. #82). Trial strategy includes determining how best to cross-examine witnesses. See Pickens v. Gibson, 206 F.3d 988, 1002 (10th Cir. 2000); United States v. Glick, 710 F.2d 639, 644 (10th Cir. 1983) (selection of questions is matter of "strategic choice"). Defense counsel aggressively cross-examined the police officers, and his questions evidenced a well-informed understanding of the case.See Marr, 856 F.2d at 1472 (judge may rely on personal knowledge or recollection). Defendant has not alleged how additional trial preparation would have allowed counsel to better cross-examine the witnesses. See Moore v. Gibson, 195 F.3d 1152, 1179 (10th Cir. 1999). Nor has he articulated what exculpatory evidence could have been elicited through better cross-examination. See 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). Because plaintiff has not alleged specific and particularized facts which if true would entitle him to relief, he is not entitled to a hearing on his claim. See Kilpatrick, 1997 WL 537866, at *3; Hatch, 58 F.3d at 1457; Chandler, 291 F. Supp.2d at 1209.
I. Advice That Defendant Should Testify
Defendant argues that counsel was ineffective because he advised him to testify. See Defendant's Statement Of Facts at 3-4, attached to defendant's Motion To Vacate (Doc. #82). 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). In his affidavit, defendant states that he specifically told Mr. Campbell that he did not want to testify. See defendant's Affidavit ¶ 6, attached to defendant's Motion To Vacate (Doc. #82). In addition, in his initial letter asking the Court to replace Mr. Campbell with a new attorney, defendant stated that counsel "insisted" that he testify and that he took the stand against his wishes. Letter (Doc. #37) filed July 11, 2001 at 1. Defendant's statements are sufficient to call into question whether counsel advised defendant that he had the ultimate decision whether to testify. The Court therefore will hold an evidentiary hearing on this limited issue on June 7, 2004 at 11:00 a.m. Counsel for the government is directed to secure Mr. Campbell's appearance at the hearing.
J. Failure To Object To Read-Back Of Defendant's Testimony
Defendant argues that counsel was ineffective because he did not object to the jury's request for a read-back of defendant's testimony after deliberations had commenced. See Defendant's Statement Of Facts at 4, attached to defendant's Motion To Vacate (Doc. #82). Defendant does not explain on what grounds counsel could have objected to the jury's request and the Court's ruling to allow the jury to hear a read-back of defendant's entire testimony. Counsel's decision not to object falls within the wide range of reasonable professional assistance. More importantly, counsel's decision not to object was not prejudicial because the Court likely would have overruled such a general objection. See Marr, 856 F.2d at 1472 (judge may rely on personal knowledge or recollection). The Court has discretion to allow the testimony of a witness to be read back to a jury during the course of its deliberations. See Brown v. Hannigan, 166 F.3d 346, 1998 WL 874854, at *1 (10th Cir. Dec. 16, 1998); United States v. Brunetti, 615 F.2d 899, 902 (10th Cir. 1980). Although the read-back of testimony during deliberations is disfavored because of the potential that the jury might unduly emphasize such testimony, the Tenth Circuit has found no abuse of discretion where testimony is read in its entirety. See Brown, 1998 WL 874854, at *1; United States v. Keys, 899 F.2d 983, 988 (10th Cir.), cert. denied, 498 U.S. 858 (1990); Brunetti, 615 F.2d at 903. Here, upon the jury's request, the Court allowed the jury to hear defendant's testimony in its entirety. See Transcript Of Jury Trial (Doc. #70) at 333-35. Defendant has not alleged or shown that the Court would have sustained a general objection to the read-back. Therefore defendant did not suffer any prejudice from counsel's failure to object. Because plaintiff has not alleged facts which if true would entitle him to relief, he is not entitled to a hearing on his claim. See Mayes, 210 F.3d at 1287.
K. Abandonment Of Role As Advocate
Defendant apparently argues that counsel abandoned his role as advocate and prejudged his guilt, and therefore was unable to provide an adequate defense. See Defendant's Statement Of Facts at 3, attached to defendant's Motion To Vacate (Doc. #82). Based on the police testimony and the evidence at sentencing, counsel provided representation which was not only adequate but excellent. With a degree of certainty, defense counsel argued that defendant was not guilty and that officers had beat him because of his race and/or because they simply wanted to arrest someone that evening. To the extent that counsel may have personally doubted defendant's innocence and even communicated those doubts to defendant, such doubts do not suggest that counsel abandoned his role as advocate. Because plaintiff's claim is contravened by the trial record and the Court's recollection of counsel's representation at trial, he has not alleged facts which if true would entitle him to relief. Therefore he is not entitled to a hearing on his claim. See Mayes, 210 F.3d at 1287; Marr, 856 F.2d at 1472.
The Court considers the evidence revealed at sentencing to help judge the difficulty of the case and illustrate that exculpatory evidence was not readily available at trial. Defendant's girlfriend (the only individual who defendant allegedly knew at the apartment) admitted that she made the 911 call and reported that defendant had a gun and was scaring people at the party.
L. Errors In Post-Trial Motions
Defendant argues that counsel committed certain errors in his post-trial motions which affected the outcome of the case. See Motion To Vacate (Doc. #82) at 5. Defendant does not state specifically how counsel was deficient as to the post-trial motions or how any alleged error affected the outcome of the motions. Defendant's conclusory allegations of ineffective assistance related to his post-trial motions are insufficient to warrant an evidentiary hearing. See Mayes, 210 F.3d at 1287;Hatch, 58 F.3d at 1471; Chandler, 291 F. Supp.2d at 1209.
III. Sentencing Counsel — Mr. Johnson
Defendant argues that Mr. Johnson was ineffective because he subpoenaed McElroy to testify at sentencing. Paragraph 17 of the Presentence Investigation Report ("PSIR") proposed a four level enhancement under U.S.S.G. § 2K2.1(b)(5) because defendant possessed the firearm and ammunition in connection with another felony offense, i.e. aggravated assault. In that regard, Paragraph 17 of the PSIR referenced the 911 call from McElroy: McElroy told the police dispatcher that defendant was pounding on the apartment door, that "he [was] scaring the shit out of us!" and that he had a gun. At sentencing, McElroy acknowledged that she had previously told defense counsel that her voice was not on the 911 tape, but that in fact she had made the 911 call.
The decision to subpoena McElroy did not impact defendant's sentence. Based on the PSIR and the government's evidence at sentencing, the Court was authorized to apply a four level enhancement under U.S.S.G. § 2K2.1(b)(5) even absent McElroy's testimony. The 911 tape, which government counsel played at the time of sentencing, supported the enhancement because it clearly evidenced the caller's fright and that "Powell" was the individual with the gun. McElroy's admission that she was the caller did not subject defendant to a further enhancement under U.S.S.G. § 2K2.1(b)(5). Accordingly, counsel's decision to subpoena McElroy was not prejudicial to defendant.
Defendant also argues that Mr. Johnson was ineffective because he had a conflict of interest. See Motion To Vacate (Doc. #82) at 6-7. Because defendant did not raise this issue at sentencing or on direct appeal, he must demonstrate that an actual conflict of interest adversely affected his lawyer's performance. See Cuyler v. Sullivan, 446 U.S. 335, 347-48 (1980); Workman v. Mullin, 342 F.3d 1100, 1107 (10th Cir. 2003). An actual conflict of interest exists only if counsel was "forced to make choices advancing . . . interests to the detriment of his client." Id. (quoting United States v. Alvarez, 137 F.3d 1249, 1251-52 (10th Cir. 1998)). In addition, defendant must identify specific instances in the record that suggest his interests were damaged for the benefit of another party. Workman, 342 F.3d at 1107. Defendant's conclusory allegations of a conflict do not satisfy either prong and are insufficient to warrant an evidentiary hearing. See Hatch, 58 F.3d at 1471; Chandler, 291 F. Supp.2d at 1209.
Defendant apparently alleges that the conflict was between himself and Mr. Johnson. See Defendant's Statement Of Facts at 7, attached to defendant's Motion To Vacate (Doc. #82). At sentencing, Mr. Johnson acknowledged some difficulties in his relationship with defendant, but he noted that he had not had any trouble communicating with defendant. See Transcript Of Sentencing (Doc. #69) at 20-21. Moreover, defendant has not specifically explained how any of his disagreements with Mr. Johnson resulted incounsel's deficient or prejudicial performance at sentencing. Defendant merely alleges that Mr. Johnson did not represent him diligently, effectively and thoroughly at sentencing. See Defendant's Statement Of Facts at 7, attached to defendant's Motion To Vacate (Doc. #82). Because defendant has not alleged specific and particularized facts which if true would entitle him to relief, he is not entitled to a hearing on his claim. See Kilpatrick, 1997 WL 537866, at *3; Hatch, 58 F.3d at 1457; Chandler, 291 F. Supp.2d at 1209.
In his reply brief, defendant argues that Mr. Johnson was ineffective because he did not challenge the sentencing enhancement under Apprendi v. New Jersey, 530 U.S. 466 (2000).See Traverse (Doc. #88) at 5-6. Counsel's decision not to object under Apprendi was neither deficient nor prejudicial because defendant's sentence was not beyond the statutory maximum. See United States v. Sullivan, 255 F.3d 1256, 1265 (10th Cir. 2001) (Apprendi "does not apply to sentencing factors that increase a defendant's guideline range but do not increase the statutory maximum"), cert. denied, 534 U.S. 1166 (2002). Indeed, the Tenth Circuit rejected a similar argument on defendant's direct appeal. See Powell, 33 Fed. Appx. at 483.
IV. Appellate Counsel — Ms. Jensen
Defendant argues that appellate counsel was ineffective because she did not claim ineffective assistance of counsel at trial and at sentencing. Ordinarily, however, the Tenth Circuit dismisses all claims of ineffective assistance of counsel on direct appeal.See United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995). Counsel's conduct was therefore not deficient. In addition, counsel's conduct was not prejudicial because defendant has been able to raise his ineffective assistance claims in this collateral proceeding.
V. Defendant's Motion For Appointment Of Counsel
Defendant asks for appointment of counsel. Rule 8(c) of the Rules Governing Section 2255 Proceedings states that "[i]f an evidentiary hearing is required, the judge shall appoint counsel for a movant who qualifies for the appointment of counsel under 18 U.S.C. § 3006A(g)." Defendant originally qualified for appointment of counsel in this case under 18 U.S.C. § 3006A(g) and the government does not suggest that his financial circumstances have changed. The Court's initial determination that defendant is financially unable to obtain counsel is still valid. The Court therefore appoints counsel to represent defendant on his claim of ineffective assistance based on counsel's advice that he should testify.
In his reply brief on his motion for appointment of counsel, defendant asks for discovery on his Section 2255 motion. Defendant specifically asks for discovery only on "chain-of-custody" evidence. See Movant's Reply To Counsel For The Government Response To His Motion For Appointment Of Counsel And Request For Discovery According To Rule 6(a) Of The Rules Governing 28 U.S.C. Section 2255 Proceedings (Doc. #93) filed April 6, 2004 at 2. He also alludes to the lack of affidavits from his former attorneys. See id. Defendant has not specifically explained how discovery would help develop any of his claims. Rule 6(a) of the Rules Governing Section 2255 Proceedings states that the Court in its discretion and for good cause may permit a party to take discovery. Defendant has not shown that if the facts are fully developed on his claims, he maybe able to demonstrate that he is entitled to relief. He therefore has not shown good cause for discovery. See Bracy v. Gramley, 520 U.S. 899, 908-09 (1997); Wallace v. Ward, 191 F.3d 1235, 1245 (10th Cir. 1999), cert. denied, 530 U.S. 1216 (2000). For reasons outlined above, the Court finds that except for defendant's claim related to counsel's advice that he should testify, defendant's claims can be conclusively resolved on the record before the Court.
IT IS THEREFORE ORDERED that defendant's Motion Pursuant To 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By a Person In Federal Custody (Doc. #82) filed September 29, 2003 be and hereby is OVERRULED in part. On June 7, 2004 at 11:00 a.m., the Court will hold an evidentiary hearing on defendant's claim of ineffective assistance of counsel based on counsel's advice that defendant should testify. The government is directed to secure the attendance of attorney Terrence J. Campbell at the hearing.
IT IS FURTHER ORDERED that defendant's Motion For Court Appointment Of Counsel (Doc. #89) filed February 24, 2004 be and hereby is SUSTAINED. The Court appoints Robert B. Rogers to represent defendant at the evidentiary hearing.