Opinion
CIVIL NO.: WDQ-07-2797, CRIMINAL NO.: WDQ-04-0082.
March 18, 2008
MEMORANDUM OPINION
Pending is Frank L. Williams's pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The Court has reviewed the pleadings and the record and determined that no evidentiary hearing is necessary. See Rule 8 of the Rules Governing § 2255 Proceedings. For the following reasons, Williams's motion will be denied.
I. Background
On November 23, 2004, a jury convicted Williams as a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) (2000). On April 6, 2005, Williams was sentenced to 235 months imprisonment.
The Fourth Circuit affirmed Williams's conviction and sentence. United States v. Williams, 461 F.3d 441, 452 (4th Cir. 2006). Williams's petition for certiorari was denied. Williams v. United States, 127 S. Ct. 616 (2006).
Williams filed this motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 on October 15, 2007.
II. Analysis
Williams's § 2255 motion states two grounds for relief: (1) ineffective assistance of counsel; and (2) improper sentencing as an Armed Career Criminal under 18 U.S.C. § 924(e).
A. Ineffective Assistance of Counsel 1. Standard of Review
The Sixth Amendment guarantees the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). To prove ineffective assistance of counsel, Williams must show that: (1) counsel's performance was deficient and (2) the deficient performance prejudiced his defense. Id. at 687. Williams must establish that counsel made errors so serious that "counsel's representation fell below an objective standard of reasonableness." Id. at 688. Williams must also demonstrate a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.
Judicial scrutiny of attorney performance asks whether counsel's assistance was reasonable under the circumstances. Id. at 688. This scrutiny is highly deferential. Id. at 689.
2. Discussion
Williams argues that his attorney committed prejudicial error by allowing him to testify at trial, which gave the Government an opportunity to introduce his criminal history. The Government counters that Williams voluntarily exercised his right to testify and was aware that his criminal history might be used to impeach him if he took the stand. As additional support, the Government attaches an affidavit from Williams's counsel who explained that he advised Williams on his decision to testify. Resp't Br. Ex. 3.
The Government also argues that because Williams did not raise on direct appeal whether he was improperly sentenced or voluntarily took the stand, he is barred from litigating that in this motion. Williams contended, as he does here, that the Court violated the Sixth Amendment by sentencing him as an armed career criminal. Williams, 461 F.3d at 452. Williams also argued that a demonstration he proposed to perform at trial was not testimonial, and therefore the Court erred in excluding the demonstration unless he took the stand. Id. at 445. This ruling affected Williams's decision whether to testify, and relates to his claim of ineffective assistance of counsel. Williams's claims are not procedurally barred or subject to a heightened standard of review.
The defendant retains the ultimate authority to decide whether to testify at trial. United States v. McMeans, 927 F.2d 162, 163 (4th Cir. 1991). Counsel's advice on whether to testify is a tactical decision that will not be second-guessed by the Court. Hutchins v. Garrison, 724 F.2d 1425, 1436 (4th Cir. 1983).
At trial, a police officer testified that when he searched Williams during the arrest, he found a handgun tucked inside Williams's underwear. Williams, 461 F.3d at 443. The officer testified that Williams was wearing a fanny pack at the time of his arrest, and the officer suspected that Williams had transferred the gun from the fanny pack to his underwear after the arrest. Id. To undermine this theory, Williams sought to demonstrate that the fanny pack did not fit him. Id. The Court ruled, however, that Williams could only perform the demonstration if he took the stand and subjected himself to cross-examination. Id. at 444-45. Williams took the stand, performed the demonstration, and his prior convictions — including a handgun conviction — were brought out on cross-examination. Id. at 445.
Williams stipulated that he was a convicted felon, and having stipulated to his status, there was little indication that he intended to testify. Williams, 461 F.3d at 443. Presumably, Williams wished to keep the jury from hearing about his prior conviction for a handgun offense.
Williams's counsel advised Williams that should he testify, the Government could use his prior convictions to impeach his testimony. Resp't Br. Ex. 3, ¶ 2. His counsel explained to him that given the Court's ruling, the only way to demonstrate that the fanny pack did not fit was to take the stand and risk impeachment. Id. ¶ 3. Although Williams had decided not to testify before this advice, he took the stand anyway. Id.
Williams's counsel was not deficient. Counsel advised him that taking the stand to perform the demonstration would subject him to impeachment. Williams nonetheless chose to testify. Moreover, his counsel and the Government discussed in open court (out of the jury's presence) whether his convictions would be admissible if he performed the demonstration on the stand. Trial Tr. vol. 2, 230-237, 260-61, Nov. 23, 2004. Williams was aware of the consequences of his testimony, and made the knowing and voluntary choice to proceed. His counsel committed no error.
B. Armed Career Criminal Sentence
III. Conclusion
18 U.S.C. § 924United States v. Blakely, 542 U.S. 296 United States v. Booker, 543 U.S. 220 Shepard v. United States, 544 U.S. 13 Williams, 461 F.3d at 452 (citing United States v. Cheek, 415 F.3d 349
Williams also argues that his counsel was ineffective for failing to object at sentencing to his status as an Armed Career Criminal. The Government asserts that Williams's counsel did object to an enhanced sentence under Blakely. As Williams has not demonstrated how the alleged failure to raise a frivolous argument was prejudicial, he cannot obtain § 2255 relief on this ground.