United States v. Coumaris ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
GEORGE T. COUMARIS,
Petitioner,
v. : Crimina1 No. 01-438 (GK)
Civil No. 04-405 (GK)
UNITED STATES OF AMERICA, L E o
Respondent. 0 7
C|erk, U.S. Dlstrict and
ME:MoRANnUM oPINIoN Ba"l399 F.3d 343 (2005), but remanded for
re-sentencing in conformity with United States v. Booker, 543 U.S.
220 (2005). This Court re-sentenced the Petitioner according to
its original sentence, and the Court of Appeals upheld the
Petitioner’s sentence. United States v. Coumaris, No. 05-3ll5,
2006 WL 2828872 (D.C. Cir. Sept. 22, 2006). On July 8, 2006, the
Petitioner filed his motion under 28 U.S.C. § 2255 to vacate his
conviction and set aside his sentence.
II. ANALYSIS
Petitioner alleges that his trial counsel was constitutionally
ineffective on several grounds:2 (l) counsel was unprepared for
trial and did not properly cross-examine Government witnesses; (2)
counsel failed to investigate potential evidence of police bias;
1 The Petitioner was also charged with aiding and abetting
identification fraud in violation of 18 U.S.C. §§ lO28(a)(7),
(d)(4), and aiding and abetting social security fraud in violation
of 42 U.S.C. § 408(a)(7)(B). The Court declared a mistrial on these
counts as the jury could not reach a verdict on them.
2 The Petitioner's pro se § 2255 motion raised a number of
other issues including prosecutorial misconduct, judicial bias, and
use of improper evidence, which the Government responded to in its
Opposition. However, the corrected Motion filed through counsel
only included the ineffective assistance of counsel claim.
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and (3) counsel prejudiced Petitioner in the eyes of the Court by
failing to notify him of the need to return to court.
To determine whether counsel was constitutionally ineffective,
the Court follows the two-pronged test laid out in Strickland v.
Washington, 466 U.S. 668, 687 (l984). First, a defendant must
show counsel's performance was so deficient that the representation
“fell below an objective standard of reasonableness under
prevailing professional norms.” United States v. Gwyn, 481 F.3d
849, 853 (D.C. Cir. 2007) (restating Strickland’s test). Second,
this deficiency must have prejudiced the defense such that “there
is a reasonable probability that, but for counsel's errors, the
result of the proceeding would have been different.” ;Q; A court
does not have to address both components of the inquiry if the
defendant makes an insufficient showing on one of them. Strickland
at 697. Here, the Petitioner failed to meet either prong of the
Strickland test.
A. Counsel's Representation Did Not Fall Below an Objective
Standard of Reasonableness.
The Petitioner argues that his trial counsel was unprepared
because he did not have enough time to review discovery materials
and did not follow up on suggestions given by the Petitioner's
private investigator. On the first day of trial, counsel asked for
a three-week continuance, stating that he did not have enough time
to review material received the day before. This Court granted a
one-day continuance and also noted that several witnesses would not
testify until after the weekend. In his Affidavit submitted for
this Motion, trial counsel stated “the continuance granted by the
Court was sufficient for me to thoroughly review the nmterial
provided by the government and 1 was fully prepared for trial when
it began.” Aff. of Bruce Johnson, Oct. l9, 2006 (“Johnson Aff.”),
at 3 (Ex. A to Respondent’s Opp. Mot.). See also United States v.
Hooker-Hankerson, 511 F.3d 164, 165 (D.C. Cir. 2007) (holding that
the defendant was not deprived of effective assistance of counsel
by the court’s denial of continuance motion). Additionally, under
the second Strickland prong, the Petitioner cannot point to any
“identifiable prejudice that is material or substantial in nature”
that resulted from the partial denial of the continuance request.
United States v. Gantt, 140 F.3d 329, 295 (D.C. Cir. 1998).
As for counsel failing to follow up on possible leads
suggested by Petitioner’s private investigator, that argument bears
on the type of trial strategy towards which courts must be “highly
deferential.“ United States. v. Weathers, 493 F.3d 229, 234 (D.C.
Cir. 2007). lndeed, counsel noted he did not pursue all of the
offered suggestions because he did not believe that they would be
fruitful or lead to admissible evidence. Johnson Aff. at 2. A
conviction should not be overturned “simply because the defendant
has teasingly suggested that there may be facts out there that his
trial counsel could have discovered and that would have helped his
case.” United States v. Askew, 88 F.3d 1065, 1073 (D.C. Cir.
l996). The Petitioner also argues that counsel did not effectively
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cross-examine Jenkins by failing to demonstrate Jenkins’ bias, that
Jenkins' version of events had changed, and that Jenkins had access
to materials he used to make the fake identification documents
without the Petitioner's help.
The trial record does not support these claims. Counsel
questioned Jenkins on his motives to lie and got Jenkins to admit
that he was angry at the Petitioner for giving the police
information which led to his arrest and wanted to get back at the
Petitioner for turning him in. Tr. at 32, 39 (Oct. 28, 2002).
Counsel also got Jenkins to admit that he had used fraudulent
identification prior to meeting the Petitioner. lQ; at 24-26.
Additionally, counsel questioned Jenkins about prior drug and
alcohol use, his prior criminal record, and his cooperation
agreement with the Government. ;Q; at 14-42. Jenkins admitted that
he had lied to his probation officer and that in order to be a
successful “hustler,” he had to be good at manipulating people.
lQL at 14-23.
Given that “it is all too tempting for a court, examining
counsel's defense after it has proved unsuccessful, to conclude
that a particular act or omission of counsel was unreasonable,”
Strickland, 466 U.S. at 689, counsel's cross-examination of Jenkins
was well within the bounds of objectively reasonable behavior. §§e
also Henderson v. Noris, 118 F.3d l283, 1287 (8th. Cir. 1997)
(“There are a few, if any, cross-examinations that could not be
improved upon. If that were the standard of constitutional
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effectiveness, few would be the counsel whose performance would
past muster.”).
Next, the Petitioner argues that counsel failed to investigate
evidence that the Government unfairly targeted the Petitioner
because of his history as a neighborhood activist who often made
accusations of police misconduct, When a convicted defendant seeks
to overturn a jury verdict based on inadequate investigation by
counsel, courts should insist that the defendant “show to the
extent possible precisely what information would have been
discovered through further investigation.” United States v. Askew,
88 F.3d l065, 1073 (D.C. Cir. 1996).
On February 20, 2002, counsel made a Motion for Discovery of
Metropolitan Police Department documents concerning complaints
against Third District officers’ derogatory comments about
homosexuals and any investigations stemming from the Petitioner’s
accusations of corruption. On July l0, 2002, this Court granted
the Motion as to any statements of bias against homosexuals or
against the Petitioner personally that officers involved in
preparing the case had made. Tr. at 8 (July l0, 2002).
Additionally, no Third District officers even testified at the
trial, and the only MPD officer who the Government called was a
records custodian. The Petitioner maintains that counsel should
have pursued the bias investigation further, by using Freedom of
Information Act requests to find complaints against individual
officers. lt is not at all clear that any further investigation
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would have turned up additional admissible evidence of bias other
than what was already covered under counsel's Motion. Thus,
counsel's performance was not deficient regarding failure to
investigate police bias,
ln summary, the record indicates that counsel filed numerous
pre-trial motions to compel production of documents (some of which
this Court ordered produced), presented the testimony of seven
witnesses, and adequately argued on behalf of the Petitioner in his
opening statement and closing argument. As “the bar of objective
reasonableness is set rather low,” requiring errors so serious that
“counsel was not functioning as the ‘counsel' guaranteed by the
Sixth Amendment,” United States v. Hurt, 527 F.3d 1347, 1356 (D.C.
Cir. 2008), the Petitioner's trial counsel more than fulfilled his
responsibilities under the first Strickland prong,
B. Counsel's Representation Did Not Prejudice
Petitioner Even if It Was Deficient.
Even if counsel's representation was deficient, Petitioner
suffered no prejudice as a result. The second prong of the
Strickland test requires Petitioner to show that counsel's
deficient performance actually prejudiced him. Strickland, 466 U.S.
at 694. Actual prejudice against the Petitioner is presumed in
only a “very narrow range of situations” such as where counsel
“entirely failed to subject the prosecution's case to meaningful
adversarial testing or was totally absent, or prevented from
assisting the accused during a critical stage of the proceeding.”
United States v. Hughes, 514 F.3d l5, 18 (D.C. Cir. 2008).
A court hearing an ineffectiveness claim must consider the
totality of the evidence before the jury. Strickland, 466 U.S. at
695. Likewise, a verdict only weakly supported by the record is
more likely to have been affected by errors than one with
overwhelming record support. lQ;
Notwithstanding any of the alleged deficiencies of trial
counsel described above, there was abundant evidence before the
jury that Petitioner was guilty of conspiring to assist Jenkins
evade authorities by helping him procure fraudulent identification
documents. ln his Motion, Petitioner relies heavily on the fact
that trial counsel did not pursue the issue of whether Jenkins had
access to identification documents in Petitioner’s house before he
became a fugitive. Whether or not this is true, it is hard to see
its relevance with respect to Jenkins’ conduct after he violated
his parole. lt was only once an arrest warrant had been issued
that Jenkins needed Petitioner’s help in creating a false identity.
The Government presented evidence that Petitioner supplied Jenkins
with identity information about two of his former lovers as well as
additional government identification cards. For example,
Petitioner drove Jenkins to a pawn shop to receive a false ID card
and obtained numerous other false membership cards for Jenkins.
Tr. at 43-50 (Oct. 25, 2002). lndeed, Jenkins had been arrested
using one of the names of Petitioner's former lovers, but was
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released from custody before his true identity was known. lQ4 at
53.
The Petitioner argues that counsel did not do enough to
convince the jury that Jenkins had access to a scrapbook of
identification documents before he was consumed by alcoholism, and
was able to gain access to them and use them without Petitioner’s
help. However, trial counsel did attempt to introduce the
scrapbook as an exhibit, but this Court ruled it was inadmissible
hearsay. The Court of Appeals held that it was error not to admit
the scrapbook, but this error was harmless because it did not have
a “substantial effect or influence in determining the jury’s
verdict.” United States v. Coumaris, 399 F.3d 343, 349 (D.C. Cir.
2005). Indeed, the jury heard testimony about the contents of the
scrapbook, and Jenkins himself testified that he had looked at it
and had access to it. ;d; Thus, trial counsel cannot be found
ineffective for not further pursuing a course of action which the
Court of Appeals has already found non-prejudicial.
Final1y, the Petitioner argues that counsel failed to properly
notify hin1 to return to court once the jury had reached_ its
verdict, and that this caused the Court to hold him without bond
pending sentence. However, this Court specifically said that the
Petitioner’s tardiness did not affect its decision. Tr. at 13-14
(Nov. 6, 2002).
Given the entire record, including the numerous pre-trial
motions, counsel's performance during the trial itself, and the
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strong evidence that the Petitioner assisted Jenkins in procuring
false identification documents, counsel's representation of the
Petitioner was not objectively unreasonable, and even if it was,
there was no reasonable probability that the results of the
proceeding would have been different.
C. No Hearing Is Required on This Motion
Given the Court's conclusion that no prejudice to the
Petitioner occurred, no hearing is required on Petitioner's motion.
A hearing is not required if a court determines that the alleged
deficiencies of counsel did not prejudice the Petitioner. United
States v. Weaver, 234 F.3d 42, 46 (D.C. Cir. 2000). When the judge
deciding a Section 2255 motion also presided at trial, the court’s
decision not to hold a hearing is “generally respected as a sound
exercise of discretion.” United States v. Toms, 396 F.3d 427, 437
(D.C. Cir. 2005).
III. CONCLUSION
For the reasons stated herein, Petitioner’s Motion Under 28
U.S.C. § 2255 to Vacate Conviction and Set Aside Sentence is
denied. The Court finds that Petitioner did not receive
ineffective assistance of counsel and even if counsel's
representation was deficient, Petitioner was not prejudiced.
An Order will issue with this opinion.
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Date Gladys Kessler 0
United States District Judge
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