United States v. Hemphill ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
GWENDOL YN M. HEMPHILL )
)
Petitioner, )
)
v. ) Civil Case No.1 :08-cv-00624 (RJL)
) Criminal Case No. 03-cr-516 (RJL)
UNITED STATES OF AMERICA ~ FIL.ED
) MAR 0 ) 2009
Respondent. )
)
``4 MEMORANDUM OPINION
(March ,2009) [# 367 (08-cr-516); # 1 (1 :08-cv-00624)]
Petitioner Gwendolyn M. Hemphill ("petitioner"), a federal Bureau of Prisons
inmate, filed a Motion to Vacate, Set Aside, or Correct the Sentence with the Court
pursuant to 28 U.S.C. § 2255. She alleges she is entitled to relief based on ineffective
assistance of counsel. The government opposes her motion, arguing she failed to establish
deficiency of counselor resulting prejudice, as required for ineffective assistance of
counsel claims under Strickland v. Washington, 466 U.S. 668 (1984). For the following
reasons the Court agrees and DENIES petitioner's motion.
BACKGROUND
The petitioner was tried and convicted in this Court on August 31, 2005, of
multiple counts including embezzlement, money laundering, false pretenses, and
conspiracy to commit these crimes as part of a scheme to defraud the Washington
Teachers Union. This Court sentenced her on May 22,2006, to 132 months'
imprisonment, followed by a 36-month term of supervision. She appealed on mUltiple
grounds, and the Court of Appeals affirmed her conviction. See United States v.
Hemphill, 514 F.3d 1350 (D.C. Cir. 2008).
Before this Court is Petitioner's claim under 28 U.S.C. § 2255, which provides
that a prisoner in custody may move the court to vacate, set aside, or correct a sentence
on the basis that it was imposed in violation of the Constitution or federal law.
Specifically, petitioner contends her counsel, lead counsel Nancy Luque and Deborah St.
Jean, who assisted Ms. Luque, were ineffective for several reasons: (1) counsel failed to
properly advise petitioner of the consequences of not accepting the government's plea
offers; (2) counsel failed to advise petitioner to accept plea offers in light of the
government's overwhelming evidence against her; (3) counsel failed to advise her that an
acquittal was improbable and she faced a sentence twice as long as that offered under the
plea offers; (4) counsel failed to obtain a change of venue by establishing that prejudice
from pre-trial pUblicity denied her right to a fair trial; (5) counsel failed to "strongly
argue" at a hearing regarding Brady evidence; (6) counsel failed to follow up after
objecting to jury instructions; (7) counsel displayed excessive emotion and thus became
an "adversary" of the Court; (8) counsel failed to present meaningful mitigating evidence
at sentencing; (9) Counsel failed to inform petitioner that the Government could appeal
her downward departure; and (10) counsel failed to file a motion to reduce the sentence.
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ANALYSIS
This Court has the authority to summarily deny a Section 2255 motion without
holding an evidentiary hearing when "the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255; see also
United States v. Agramonte, 366 F. Supp. 2d 83,86 (D.C.C. 2005). Ifa Section 2255
motion does not raise "detailed and specific factual allegations" that must be resolved
using "information outside of the record or the judge's personal knowledge or
recollection," a hearing need not be held. See Agramonte, 366 F. Supp. 2d at 86 (internal
quotation omitted). The Court concludes that the record of the case conclusively shows
that the petitioner is not entitled to relief and that an evidentiary hearing is not warranted.
In her ineffective assistance of counsel claim, petitioner must establish two things.
First, she must establish her counsel's performance fell "below an objective standard of
reasonableness." Agramonte, 366 F. Supp. 2d at 86 (citing Strickland, 466 U.S. at 687-
88). Only if her counsel "made errors so serious that counsel was not functioning as the
'counsel' guaranteed ... by the Sixth Amendment" is her performance unreasonable. Id.Second, petitioner must establish the deficient performance prejudiced her defense. Id.Claims Related to the Plea Offer
Petitioner's first three grounds for alleging ineffective assistance of counsel relate
to counsel's alleged failure to properly advise Petitioner regarding the plea offer. These
claims are without merit, as the government's plea offers expired before Ms. Luque and
Ms. St. Jean were retained as petitioner's counsel. See Resp't Ex. A at ~ 3. Although
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Ms. Luque tried to obtain an additional plea offer, the government did not extend another
one to petitioner. (See Resp't Ex. B (containing plea offers, the last of which expired on
September 29,2003, more than two weeks before Ms. Luque began representing
petitioner).)
Petitioner's claim also fails to the extent she alleges her previous counsel was
ineffective, as Ms. Luque states petitioner said her previous counsel did advise her to
accept the plea offer, yet petitioner declined (Resp't Ex. A at ~ 5). Petitioner does not
dispute this.
Claims Related to Trial
The next three grounds relate to counsel's success at trial. Petitioner alleges her
counsel was ineffective because she failed to obtain a change of venue. Counsel did file
a motion for a change in venue based on pretrial pUblicity, and counsel is not ineffective
merely because this Court denied her motion. See Agramonte, 366 F. Supp. 2d at 86
(citing Strickland, 466 U.S. at 699). ("So long as a strategy or tactic employed by
counsel was reasonable, that tactic is not a ground for attack even if it proved
unsuccessful. ").
Petitioner also claims counsel was ineffective for failing to strongly argue or
follow up, yet petitioner does not specify what information counsel failed to present or
how this prejudiced her defense. The strength to which counsel argued, as well as her
courtroom demeanor, was likely a tactical decision, and it does not constitute
ineffectiveness here. See Jones v. Barnes, 463 U.S. 745, 751 (1983) ("Experienced
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advocates since time beyond memory have emphasized the importance of winnowing out
weaker arguments on appeal and focusing on one central issue .... ").
Claims Related to Sentencing
The final three grounds on which petitioner alleges ineffective assistance of
counsel relate to sentencing. Petitioner alleges counsel failed to present meaningful
mitigating evidence at sentencing and should have filed a motion to reduce the sentence.
Again, however, petitioner does not identify what evidence counsel should have
presented or how this evidence would have resulted in a different sentence. See
Agramonte, 366 F. Supp. 2d at 86 (noting petitioners alleging ineffective assistance of
counsel are required to establish how a deficient performance prejudiced their defense).
Finally, Petitioner alleges counsel was ineffective for failing to inform her that the
government could appeal the downward departure. It is unclear how this prejudiced
petitioner. It is even less clear why petitioner would have wanted counsel to seek a
longer sentence for her in order to avoid a government appeal.
Thus, for all of the above reasons, petitioner's motion is DENIED, and an order
consistent with the foregoing accompanies this Memorandum Opinion.
RICHARD . LEON
United States District Judge
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