United States v. Perkins

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
v. Criminal No. 04cr355-06 (CKK)
(Civil Action No. 12-1793)
AARON PERKINS,
Defendant.
MEMORANDUM OPINION
(March 19, 2015)
On July 15, 2005, Aaron Perkins (“Perkins”) was convicted by a jury in this Court of:
conspiracy to conduct and participate, directly and indirectly, in the affairs of an enterprise,
through a pattern of racketeering activity (“Count I”), including the armed robbery of the SunTrust
Bank located at 5000 Connecticut Avenue, N.W., Washington, D.C., on or about June 29, 2004
(“Racketeering Act 4”); conspiracy to commit offenses against the United States, that is, armed
robberies of banks the deposits of which were then insured by the Federal Deposit Insurance
Corporation (“Count II”); armed robbery of the SunTrust Bank on or about June 29, 2004 (“Count
XV”); and using and carrying a firearm during and in relation to a crime of violence on or about
June 29, 2004 (“Count XVI”). Presently before the Court is Perkins’ pro se [788] Motion Under
28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. Upon a searching review of the
parties’ submissions, 1 the relevant authorities, and the record as a whole, the Court finds no
grounds for setting aside Perkins’ conviction and sentence at this time. Accordingly, the Court
1
While the Court renders its decision today on the record as a whole, its consideration has
focused on the following documents: Def.’s Mot. to Vacate Sentence (“Def.’s Mot.”), ECF No.
[788]; Def.’s Memo. in Support of Mot. to Vacate Sentence (“Def.’s Memo.”), ECF No. [788-1];
Govt.’s Opp’n to Def.’s Mot. to Vacate Sentence (“Govt.’s Opp’n”), ECF No. [798]; Def.’s Reply
Brief (“Def.’s Reply”), ECF No [807]; and transcripts of status hearings and trial.
shall DENY Perkins’ [788] Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence.
I. BACKGROUND
On August 3, 2004, a federal grand jury indicted Perkins and six other codefendants in
connection with a string of bank robberies that occurred in the District of Columbia and Maryland. 2
Indictment (Aug. 3, 2004). The United States Court of Appeals for District of Columbia Circuit
(“D.C. Circuit”) described the factual scenario:
[Perkins and his codefendants] indulged in a violent crime spree throughout the
District of Columbia metro area that lasted for nearly a year and a half. Appellants,
who began by cultivating and selling marijuana, evolved into a ring that committed
armed bank robberies, using stolen vehicles to travel to the targeted banks and make
their escapes. By the summer of 2004, the robbers had developed a signature style.
The gang wore bullet-proof vests, masks, and gloves, and relied on superior fire
power, preferring to use military weapons like AK-47s instead of handguns because
they surmised the metropolitan police “wouldn’t respond” when Appellants
“robb[ed] banks with assault weapons.” The gang made use of several stolen
vehicles, strategically placed along the get-away-route, for each robbery. The
robbers would serially abandon the vehicles, often torching them in an attempt to
destroy any forensic evidence that might be left behind.
United States v. Burwell, 642 F.3d 1062, 1064-65 (D.C. Cir. 2011) (internal citation omitted). The
matter proceeded to trial in this Court, and Perkins was tried alongside five other codefendants.
On July 15, 2005, a jury convicted Perkins on all four counts upon which he was charged in the
indictment. Verdict Form, ECF No. [476].
On May 2, 2006, this Court sentenced Perkins to 57 months of imprisonment under Counts
I, II, and XV to run concurrently to each other. The Court also sentenced Perkins to 30 years of
2
An eighth codefendant later was added by virtue of a superseding indictment. Superseding
Indictment (Aug. 5, 2004).
2
imprisonment on Count XVI to run consecutively to Counts I, II, and XV. See Judgment in a
Criminal Case at 2, ECF No. [623]. Perkins filed a timely appeal of his conviction and on April
29, 2011, the D.C. Circuit affirmed Perkins’ conviction in a published opinion. United States v.
Burwell, 642 F.3d 1062 (D.C. Cir. 2011), aff’d in part en banc, 690 F.3d 500 (D.C. Cir. 2012).
Perkins filed a petition for writ of certiorari which was denied by the Supreme Court of the United
States. United States v. Perkins, -- U.S. --, 132 S. Ct. 537 (2011). Perkins currently is serving his
sentence.
Pending before the Court is Perkins’ Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside,
or Correct Sentence. Perkins’ motion is premised on ineffective assistance of counsel claims
related to his trial counsel, Bravitt Cola Manley, Jr., and his appellate counsel, William Francis
Xavier Becker. 3 Specifically, Perkins claims that his trial counsel rendered him ineffective
assistance by: (1) failing to request an informant jury instruction at trial; (2) failing to raise a
Confrontation Clause challenge to certain evidence at trial; (3) failing to properly advise Perkins
during plea negotiations prior to trial; (4) failing to raise a multiplicity challenge to Counts I and
II prior to trial. Further, Perkins asserts that his appellate counsel rendered him ineffective
assistance by failing to raise the issue of juror misconduct and juror bias on appeal.
II. LEGAL STANDARD
Under 28 U.S.C. § 2255, a prisoner in custody under sentence of a federal court may move
3
The Court notes that on August 8, 2005, after trial had concluded but before Perkins was
sentenced, Cynthia Katkish was substituted as counsel for Perkins. See Min. Entry (Aug. 8, 2005).
Perkins does not appear to raise any ineffective assistance of counsel claims related to Ms.
Katkish’s representation of him through sentencing in this matter. As noted above, Becker
represented Perkins on appeal.
3
the sentencing court to vacate, set aside, or correct its sentence if the prisoner believes that the
sentence was imposed “in violation of the Constitution or laws of the United States, or that the
court was without jurisdiction to impose such sentence, or that the sentence was in excess of the
maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a).
The circumstances under which such a motion will be granted, however, are limited in light of the
premium placed on the finality of judgments and the opportunities prisoners have to raise most of
their objections during trial or on direct appeal. “[T]o obtain collateral relief a prisoner must clear
a significantly higher hurdle than would exist on direct appeal.” United States v. Frady, 456 U.S.
152, 166 (1982). Nonetheless, “[u]nless the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing
thereon, determine the issues and make findings of fact and conclusions of law with respect
thereto.” 28 U.S.C. § 2255(b).
A prisoner may not raise a claim as part of a collateral attack if that claim could have been
raised on direct appeal, unless he can demonstrate either: (1) “cause” for his failure to do so and
“prejudice” as a result of the alleged violation, or (2) “actual innocence” of the crime of which he
was convicted. Bousley v. United States, 523 U.S. 614, 622 (1998). However, “[w]here a
petitioner raises claims of ineffective assistance of counsel in a § 2255 motion, he need not show
‘cause and prejudice’ for not having raised such claims on direct appeal, as these claims may
properly be raised for the first time in a § 2255 motion.” United States v. Cook, 130 F. Supp. 2d
43, 45 (D.D.C. 2000), aff’d, 22 F. App’x 3 (D.C. Cir. 2001) (citation omitted).
A defendant claiming ineffective assistance of counsel must show (1) “that counsel’s
performance fell below an objective standard of reasonableness under prevailing professional
4
norms,” and (2) “that this error caused [him] prejudice.” United States v. Hurt, 527 F.3d 1347,
1356 (D.C. Cir. 2008) (citation omitted). “Judicial scrutiny of counsel’s performance must be
highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after
conviction or adverse sentence.” Strickland v. Washington, 466 U.S. 668, 689 (1984). It is the
petitioner’s burden to show that counsel’s errors were “so serious” that counsel could not be said
to be functioning as the counsel guaranteed by the Sixth Amendment. Harrington v. Richter, 562
U.S. 86, 105 (2011). “The reasonableness of counsel’s actions may be determined or substantially
influenced by the defendant’s own statements or actions . . . . [I]nquiry into counsel’s conversations
with the defendant may be critical to a proper assessment of . . . counsel’s other litigation
decisions.” Strickland, 466 U.S. at 691. In evaluating ineffective assistance of counsel claims,
the Court must give consideration to “counsel’s overall performance,” Kimmelman v. Morrison,
477 U.S. 365, 386 (1986), and “indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance,” Strickland, 466 U.S. at 689. Moreover,
“[t]he defendant must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.
III. DISCUSSION
A district court may deny a Section 2255 motion without a hearing when “the motion and
files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C.
§ 2255(b). “‘The decision whether to hold a hearing is committed to the district court’s discretion,
particularly when, as here, the judge who is considering the § 2255 motion also presided over the
proceeding in which the petitioner claims to have been prejudiced.’” United States v. Orleans-
5
Lindsey, 572 F. Supp. 2d 144, 166 (D.D.C. 2008), appeal dismissed, No. 08-3089, 2009 U.S. App.
LEXIS 20833 (D.C. Cir. Sept. 18, 2009) (quoting Fears v. United States, No. Civ. A. 06-0086
(JDB), 2006 WL 763080, at *2 (D.D.C. Mar. 24, 2006) (citations omitted)); see also United States
v. Agramonte, 366 F. Supp. 2d 83, 85 (D.D.C. 2005), aff’d, 304 Fed. App’x 877 (D.C. Cir. 2008).
“The judge’s own recollection of the events at issue may enable him summarily to deny a Section
2255 motion.” Agramonte, 366 F. Supp. 2d at 85 (citing United States v. Pollard, 959 F.2d 1011,
1031 (D.C. Cir. 1992), cert. denied, 506 U.S. 915 (1992)). To warrant a hearing, the petitioner’s
Section 2255 motion must “raise[] ‘detailed and specific’ factual allegations whose resolution
requires information outside of the record or the judge’s ‘personal knowledge or recollection.’”
Pollard, 959 F.2d at 1031 (quoting Machibroda v. United States, 368 U.S. 487, 495 (1962)).
Based on a thorough review of the parties’ pleadings and the entire record in the criminal
proceeding, the Court finds that there is no need for an evidentiary hearing on the instant motion.
As explained below, Perkins has not proffered detailed and factual allegations outside of the record
such that a hearing is required on the issues raised in his motion. Accordingly, the Court shall
render its findings based on the parties’ pleadings and the record.
Specifically, Perkins raises five ineffective assistance claims related to his counsel
allegedly: (1) failing to request an informant jury instruction at trial; (2) failing to raise
Confrontation Clause challenges to certain evidence at trial; (3) failing to properly advise Perkins
during plea negotiations prior to trial; (4) failing to raise a multiplicity challenge to Counts I and
II prior to trial; and (5) failing to raise the issue of juror misconduct and bias on appeal. The Court
shall address each claim in turn.
A. Informant Jury Instruction
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Perkins first argues that his trial counsel rendered him ineffective assistance by failing to
request an “informant jury instruction” with respect to the testimony of Noureddine Chtaini and
Antwon Perry, two codefendants turned government witnesses. Specifically, Perkins asserts that
at the time that Chtaini and Perry testified they had either entered into plea agreements or had
pending criminal charges and, thus, sought to gain a benefit from the government for testifying.
Def.’s Memo. at 2. Perkins further argues that “[r]equesting the informant instruction was vital
because a general witness credibility instruction was not sufficiently cautionary for informants
because of unique issues regarding the incentive that informants have to fabricate information for
their own benefits.” Id. at 2-3.
Perkins’ claim fails because the record reflects that the Court did, in fact, give instructions
regarding witnesses with plea agreements and witnesses who are accomplices. The instructions as
read during trial follow:
Now, you’ve heard evidence that Noureddine Chtaini, Omar Holmes and Antwon
Perry each entered into separate plea agreements with the government, pursuant to
which each of these witnesses agreed to testify truthfully in this case, and the
government agreed to dismiss charges against him and/or decline prosecution of
charges against him, and bring the witness’s cooperation to the attention of the
sentencing court on the remaining charges.
The government is permitted to enter into this kind of plea agreement. You in turn
may accept the testimony of such a witness and convict the defendant on the basis
of this testimony alone, if it convinces you of the defendant’s guilt beyond
reasonable doubt.
A witness who has entered into a plea agreement is under the same obligation to
tell the truth as is any other witness, because the plea agreement does not protect
him against prosecution for perjury or false statement, should he lie under oath.
However, you may consider whether a witness who has entered into such an
agreement has an interest different from any other witness. A witness who realizes
that he may be able to obtain his own freedom or receive a lighter sentence by
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giving testimony may have a motive to lie.
The testimony of a witness who has entered into a plea agreement should be
received with caution and scrutinized with care. You should give the testimony
such weight as in your judgment it’s fairly entitled to receive.
Now, you’ve also heard that Omar Holmes and Noureddine Chtaini were
accomplices. Accomplices in the commission of a crime are competent witnesses,
and the government has a right to use them as witnesses. An accomplice is anyone
who knowingly and voluntarily cooperates with, aids, assists, advises or encourages
another person in the commission of a crime, regardless of his degree of
participation.
The testimony of an alleged accomplice should be received with caution and
scrutinized with care. You should give it such weight as in your judgment it’s fairly
entitled to receive. If the testimony of an alleged accomplice is not supported by
other evidence, you may convict the defendant upon that testimony only if you
believe that it proves the guilt of the defendant beyond a reasonable doubt.
Tr. 7996:1–7997:16 (Jun. 21, 2005).
Accordingly, Perkins’ ineffective assistance of counsel claims fail on this issue because the
Court did give the relevant instruction.
B. Confrontation Clause Challenge
Next, Perkins argues that his trial counsel rendered ineffective assistance by failing to raise
Confrontation Clause challenges to records and affidavits admitted into evidence at trial related to
the Federal Deposit Insurance Corporation (“FDIC”) insured status of the banks that were robbed,
one of the elements of Count II, and to DNA Expert Heather Suebert’s testimony “giv[ing]
credence to out-of-court statements of non-testifying analysts.” Def.’s Memo. at 3-5. The Court
finds that these claims are without merit for the several reasons described below.
Turning to Perkins’ first argument, Perkins objects to the admission of documents
establishing the insured status of four banks – Bank of America, Riggs Bank, Chevy Chase Bank,
8
and SunTrust – along with affidavits attesting to the fact that the documents were official records
of the FDIC; the records and accompanying affidavits were admitted into evidence at trial without
objection. See Ex. CCB-001 (Proof of Insured Status for Chevy Chase Bank), ECF No. [837-1];
RB-001 (Proof of Insured Status for Riggs Bank), ECF No. [837-2]; BOA-001 (Proof of Insured
Status for Bank of America), ECF No. [837-3]; SUN-001 (Proof of Insured Status for SunTrust
Bank), ECF No. [837-4]. Perkins’ claim fails because the official records and accompanying
affidavits were not testimonial and, thus, do not invoke Confrontation Clause concerns. As the
Government properly points out, the records themselves were admitted into evidence under the
public records exception to the hearsay rule. See Fed. R. Evid. 803(8) (Hearsay Exception for
Public Records). Further, the affidavits were admitted pursuant to Federal Rule of Evidence
902(4), to establish that the evidence was self-authenticating as certified copies of public records.
Perkins relies on the Supreme Court’s holding in Melendez-Diaz v. Massachusetts, 557
U.S. 305 (2009), in support of his Confrontation Clause argument. In Melendez-Diaz, the Supreme
Court held that affidavits showing the results of forensic analyses performed on seized substances
are testimonial statements and, accordingly, analysts are witnesses under the Confrontation Clause
of the Sixth Amendment. Id. at 309-11. The Court clarified that affidavits “‘made under
circumstances which would lead an objective witness reasonably to believe that the statement
would be available for use at a later trial,’” id. at 311 (quoting Crawford v. Washington, 541 U.S.
36, 52 (2004)), are testimonial statements and, accordingly, the authors of such affidavits are
witnesses for the purposes of the Confrontation Clause of the Sixth Amendment. Id. at 311. The
Court found that “[a]bsent a showing that the [authors of the affidavits] were unavailable to testify
at trial and that petitioner had a prior opportunity to cross-examine them, petitioner was entitled
9
to ‘be confronted with’ the [authors of the affidavits] at trial.’” Id. In drawing a connection
between the affidavits at issue in Melendez-Diaz, and the affidavits certifying the FDIC records in
this instant action, Perkins argues that his trial counsel erred by failing to raise a Confrontation
Clause challenge to the admissibility of the affidavits reflecting that the banks were insured by the
FDIC because the authors of the affidavits did not testify at trial. Def.’s Memo. at 4. The Court
finds that this argument fails based on the relevant case law on this issue.
Indeed, the Supreme Court in Melendez-Diaz, appeared to distinguish between situations
in which an affidavit is used to authenticate an otherwise admissible record from an affidavit
created for the sole purpose of providing evidence against a defendant. See Melendez-Diaz, 557
U.S. at 322-23. This Court itself has held that an affidavit certifying the authenticity of a record
is not testimonial and, accordingly, not subject to the Confrontation Clause. As this Court held,
“[i]t is the records, not the certification, that are introduced into substantive evidence against the
defendant during trial. The certifications at issue are simply ‘too far removed from the ‘the
principal evil at which the Confrontation Clause was directed’ to be considered testimonial.’”
United States v. Edwards, Crim. Case No. 11-129-1, 1, 11 (CKK), 2012 WL 5522157, at *2
(D.D.C. Nov. 15, 2012) (quoting United States v. Ellis, 460 F.3d 920, 920 (7th Cir. 2006)). The
Court finds the affidavits were not testimonial within the meaning of the Confrontation Clause
because the affidavits in question were created only to certify the authenticity of the public records,
and not to provide substantive evidence against Perkins at trial.
Second, Perkins claim fails because there was independent testimony at trial that each of
the four banks were FDIC-insured and Perkins’ counsel was presented with the opportunity to
cross-examine these witnesses on the issue. Tr. 1216:6-21 (Apr. 18, 2005) (Testimony of Viola J.
10
Scott, banking center manager at Bank of America branch); Tr. 1463:23—1464:10 (Apr. 19, 2005)
(testimony of Ricardo Young, assistant manager at Riggs Bank branch); Tr. 1543:5-19 (Apr. 20,
2005) (Testimony of Jacqueline Caldwell, bank manager at Chevy Chase Bank branch in
Hyattsville, MD); Tr. 1634:15-23 (April 20, 2005) (Testimony of Curtis Oliver, branch manager
at Chevy Chase Bank branch in Silver Hill, MD); Tr. 2168:11—2169:2 (Apr. 25, 2005)
(Testimony of Charlene Hollings, branch manager of SunTrust Bank branch). Finally, Perkins’
claim fails because he has not pointed to any evidence that his counsel failed to present that refuted
the assertion that the banks were in fact FDIC-insured, nor does Perkins himself at this juncture
appear to be claiming that the banks were not FDIC-insured.
Given that the evidence in question does not raise Confrontation Clause concerns and that
defense counsel was presented with the opportunity to cross-examine witnesses who testified that
each bank was FDIC-insured, the Court finds that counsel did not act in an objectively
unreasonable manner by failing to raise this challenge at trial. Nor does the Court find that Perkins
was prejudiced by counsel’s failure to raise this claim because Perkins has not pointed to any
evidence to rebut the claim that the banks were FDIC-insured.
Turning to Perkins’ second claim related to DNA Expert Heather Seubert, Perkins appears
to contend that his Sixth Amendment right was violated by the admission of testimonial statements
made by Suebert at trial. Specifically, Perkins claims that Suebert’s testimony “was premised on
statements and reports conducted by a non-testifying analyst who did not testify at trial,” and that
“trial counsel should have objected to the documents being admitted into evidence through Heather
[Suebert]’s testimony.” Def.’s Memo. at 5. Suebert testified at trial on May 26, 2005, and June
1, 2005, and was cross-examined by Perkins’ trial counsel. See generally Tr. 5345:19—5381:18
11
(Jun. 1, 2005) (cross examination of Heather Suebert by Perkins’ trial counsel).
Suebert’s notes and reports do not raise Confrontation Clause issues because they were not
admitted into evidence at trial, but rather were provided to the parties prior to trial to allow the
parties to raise specific objections to the admissibility of the DNA evidence. 4 See Williams v.
Illinois, -- U.S. --, --, 132 S. Ct. 2221, 2228 (2012) (“When an expert testifies for the prosecution
in a criminal case, the defendant has the opportunity to cross-examine the expert about any
statements that are offered for their truth. Out-of-court statements that are related by the expert
solely for the purpose of explaining the assumptions on which that opinion rests are not offered
for their truth and thus fall outside the scope of the Confrontation Clause.”). As the Court noted
during Suebert’s cross examination by Perkins’ trial counsel: “Okay. We have not admitted her
report [into evidence]. That’s why I just want to make sure that, in terms of the record, we hook
it up to whatever exhibits we’ve actually admitted.” Tr. 5370:8-11 (Jun. 1, 2005). Given that the
evidence in question does not raise Confrontation Clause concerns because it was not admitted
into evidence at trial, because it was related by Suebert solely for the purpose of explaining the
assumptions on which her opinion rested, and because defense counsel was presented with the
4
The parties made several arguments related to the admissibility of the DNA evidence at
trial. See Defs.’ Jt. Objections to Govt.’s Proposed DNA Evid., ECF No. [248]; Govt.’s Opp’n to
Def.’s Jt. Objections to Govt.’s Proposed DNA Evid., ECF No. [257]; Govt.’s Supp. to Opp’n to
Def.’s Jt. Objection to Govt.’s Proposed DNA Evid., ECF No. [259]; Palmer’s Resp. to Govt.’s
DNA Pleadings, ECF No. [279]; Morrow’s Reply to Govt.’s Supp. Opp’n to Def.’s Jt. Objections
to Govt.’s Proposed DNA Evid., ECF No. [282]; Govt.’s Reply to Def. Palmer’s & Morrow’s
Resp. to Govt.’s Proposed DNA Evid., ECF No. [288]; Perkins’ Mot. to Exclude Contaminated
DNA Samples Obtained from Brinkley Road Search, ECF No. [363]; Govt.’s Opp’n to Def.
Perkins’ Mot. to Exclude Allegedly Contaminated DNA Samples Obtained from Brinkley Road
Search, ECF No. [377]; Perkins’ Mot. to Exclude Contaminated DNA Samples Obtained from
Brinkley Road Search, ECF No. [381]; Memo. Op. (Apr. 25, 2005), ECF No. [305].
12
opportunity to cross-examine Suebert at trial, the Court finds that trial counsel did not act in an
objectively unreasonable manner by failing to raise this challenge.
For the reasons described, the Court concludes that Perkins’ claims that his counsel
rendered him ineffective assistance of counsel by failing to raise Confrontation Clause challenges
both to the admission of the documents establishing the insured status of four banks and to the
testimony of DNA Expert Heather Seubert are without merit.
C. Plea Offer
Perkins asserts that his trial counsel was deficient in representing him during plea
discussions. Perkins indicates that “trial counsel discussed the fact that the government agreed to
permit Petitioner to plead guilty to conspiracy, one count of armed robbery, and possession of a
firearm during a crime of violence . . . .” Def.’s Memo. at 6. However, Perkins alleges that his
trial counsel was ineffective because he failed to secure the government’s plea offer in writing.
Perkins further asserts that “trial counsel never explained to [him] whether or not he would have
to waive his right to trial on the remaining counts against him or whether [he] would have to plead
guilty at a later date to the remaining counts in the indictment.” Id. Moreover, Perkins alleges
that his trial counsel never informed him whether he would have to pay any restitution as part of a
plea. Id. Ultimately, Perkins argues that he would have accepted the government’s plea offer if
his counsel had advised him “that other charges in the indictment would have been dismissed in
exchange for his guilty plea,” and “if his counsel would have secured the government’s plea in
writing.” Id.
A criminal defendant’s right to effective assistance of counsel under the Sixth Amendment
extends to the plea-bargaining process. Lafler v. Cooper, -- U.S. --, --, 132 S. Ct. 1376, 1384
13
(2012). The Court employs the two-part Strickland test in analyzing an ineffective assistance of
counsel claim arising out of the plea negotiations. Id. First, a defendant must show that his
counsel’s performance fell below an objective standard of reasonableness under prevailing
professional norms. United States v. Hurt, 527 F.3d 1347, 1356 (D.C. Cir. 2008). Second, a
defendant must show that the error caused him prejudice. Hurt, 527 F.3d at 1356. In order to
establish prejudice:
[A] defendant must show that but for the ineffective advice of counsel there is a
reasonable probability that the plea offer would have been presented to the court
(i.e., that the defendant would have accepted the plea and the prosecution would
not have withdrawn it in light of intervening circumstances), that the court would
have accepted its terms, and that the conviction or sentence, or both, under the
offer’s terms would have been less severe than under the judgment and sentence
that in fact were imposed.
Lafler, 132 S. Ct. at 1385.
The record reflects that plea offers were extended to Perkins and his codefendants, and
expired in September 2004. Indeed, during a status hearing held on September 27, 2004, the
prosecutor indicated that plea offers had been extended to all the defendants and they expired on
that day. Tr. 10:20-22, 12:13-23 (Sept. 27, 2004). It was explained at the hearing:
MS. KITTAY [government counsel]: Well, because the plea offers will expire
today --
THE COURT: I take it by “today,” do you mean that they have to accept them or
do they have to indicate that they are interested and you will have some further
discussions about them?
MS. KITTAY: Well, initially, it was the former, but it’s become the latter, and there
may be some discussion through the course of this week.
I would imagine if we came – at this point, Your Honor, I would probably insist
that if there are to be any pleas, that they be entered before this court within the
next week or two; probably more realistically next week.
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Tr. 13:12-24 (Sept. 27, 2004); see also id. at 21:11-19 (the prosecutor noting that the plea offers
would be “off the table and will expire” the moment that the prosecutors left the courtroom that
day, unless the defendant’s counsel had contacted the government to further negotiate).
At the September 27, 2004, hearing, the prosecutor explained that after final decisions on
these plea offers were reached, the government intended to file a superseding indictment that
would include a charge for conspiracy to conduct and participate, directly and indirectly, in the
affairs of an enterprise, through a pattern of racketeering activity (“RICO conspiracy”) and charges
for two incidents of assault. Id. at 11:16-19. Specifically, the prosecutor noted that the government
wanted to extend plea offers that did not include the RICO conspiracy charge because once the
government proceeded towards filing a superseding indictment, “it [would] in many ways restrict
[the government’s] discretion with respect to these plea offers.” Id. at 12:13-20. During that
hearing, the Court set a next hearing date in anticipation of the fact that trial dates would be set
once the plea offers were resolved. Id. at 20:12—21:10.
On January 31, 2005, the Court held a hearing to discuss the pleas offers extended to and
rejected by Perkins and his codefendants on the record. 5 Tr. 10:2-4 (Jan. 31, 2005). During that
5
The Court notes that Perkins in his reply brief argues: “To the extent that the Government
foundates [sic] its position on the excerpts of the transcripts dated 1/31 . . . , the Court is respectfully
requested to keep in mind that the colloquial conducted on that day is a far cry from the prescribed
Rule 11, Fed. R. Crim. P. plea hearing.” Def.’s Reply at 5. The Court notes that the January 31,
2005, status hearing differed from a Rule 11 hearing because the defendants had rejected the plea
offers. As the Court explained:
[T]he whole purpose of this [hearing] is to make sure on the record that there’s been
a discussion with each of the clients as to what the plea offer would mean in terms
of sentencing guidelines, what the plea offer would mean if they got convicted of
all of it, what the differences would be in terms of potential sentences. If you
15
hearing, the Court discussed the plea offer with Perkins, Perkins’ trial counsel, and the prosecutor
on the record and Perkins indicated that he did not accept the plea offer. As the prosecutor
explained at the hearing, the government extended Perkins an offer that would have required him
to plead guilty to one count of conspiracy to commit armed robberies (18 U.S.C. § 371); one count
of armed robbery (18 U.S.C. § 2113); and one count of using and carrying a firearm during and in
relation to a crime of violence under the D.C. Code. Id. at 25:12-15. Further, the plea offer would
not have required Perkins to cooperate with the government. Id. at 25:15-16.
The parties then discussed the potential sentencing implications of accepting the plea offer
as opposed to proceeding to trial. After the prosecutor explained that the guideline range of the
term of imprisonment under the plea offer would be 78 to 97 months, the Court inquired of Perkins’
counsel and of Perkins who was placed under oath:
THE COURT: Well, it’s 78 to 97 months. Was there a different calculation that you
did?
MR. MANLEY [Perkins’ counsel]: I think it was that we were looking at what the
maximum sentence would have been under the guidelines, so that was a range, but
disagree with the way the government has calculated [the potential sentence], you
would put that on the record.
This is so that there – if it doesn’t occur, that we go to trial, somebody gets
convicted and then afterwards it is raised in a 2255 that they did not get a full
discussion of the plea.
So this is my best way of making sure that everybody is on the same page, that
whatever the government has said everybody hears, whatever defense counsel has
said and your client, so that there’s no issues at a later point.
Tr. 15:6-21 (Jan. 31, 2005). The Court further explained its role during the hearing: “[T]he court
doesn’t get involved with what gets offered and rejected. All I want to do is to make sure that all
of these options are discussed, presented to the defendants and that you have the option of making
your own decision about it in consultation with your lawyer.” Id. at 17:8-13.
16
it was explained to him that it would be 97, a possible sentence of 97 months. But
since Mr. Perkins is innocent of these charges, we rejected the plea offer and
Mr. Perkins directed me that we weren’t to enter into any further plea
negotiations.
THE COURT: Mr. Perkins, was this the plea offer that you discussed with your
attorney?
DEFENDANT PERKINS: Yes, Your Honor.
THE COURT: And is this roughly the calculation that you discussed with him as
well.
DEFENDANT PERKINS: Yes, Your Honor.
THE COURT: Then if we could do the one in terms of it turns out that he goes to
trial and does get convicted.
Id. at 26:18—27:9. The prosecutor then went on to explain that Perkins’ sentencing
exposure under the guidelines would be 411 to 423 months if he proceeded to trial and was
convicted. Id. at 27:10-17. The Court then inquired:
THE COURT: All right. Is this the discussion, Mr. Manley, that you had with your
client?
MR. MANLEY: Yes, it is, Your Honor.
THE COURT: Is that correct, Mr. Perkins?
DEFENDANT PERKINS: Yes, it is, Your Honor.
THE COURT: Were there any departures or anything else the court should be aware
of that would have been discussed or potentially available to your client pre-Booker
or post-Booker?
MR. MANLEY: No, Your Honor.
THE COURT: Did you have a long enough period of time to have a discussion
with your attorney about this?
17
DEFENDANT PERKINS: Yes, Your Honor.
THE COURT: Do you understand the offer?
DEFENDANT PERKINS: Yes, Your Honor.
THE COURT: And what’s your decision whether to accept it or not?
DEFENDANT PERKINS: Oh, I’m not accepting it.
Id. at 28:2-19.
Turning first to Perkins’ argument that his trial counsel was ineffective for failing to get
the plea offer in writing, the Court finds this argument is without merit because Perkins has not
demonstrated that his counsel’s performance was deficient or that he was prejudiced by counsel’s
failure to obtain a written plea agreement. The Court shall accept as true for the limited purpose
of this analysis that Perkins’ trial counsel did not secure the plea offer extended to him by the
government in writing. Nonetheless, the failure to obtain a plea offer in writing does not
demonstrate that his counsel was deficient. Indeed, there is no requirement that a plea offer be
reduced to writing in order for it to be honored. See United States v. Sanchez, 562 F.3d 275, 280
(3d Cir. 2009) (“Just as contracts are not invalid simply because they are made orally, the same is
true of plea agreements.”), overruled on other grounds by Freeman v. United States, -- U.S. --.
131 S. Ct. 2685 (2011); see also Brown v. Poole, 337 F.3d 1155, 1159 (9th Cir. 2003) (“The terms
of oral plea agreements are enforceable, as are those of any other contracts, even though oral plea
agreements are not encouraged by reviewing courts.”). Accordingly, the Court concludes that
Perkins’ trial counsel’s performance did not fall below an objective standard of reasonableness
simply because he did not obtain the plea offer extended to Perkins in writing.
18
The Court further finds that Perkins has not demonstrated that he was prejudiced in any
way by the failure to request that the plea offer be placed in writing. Perkins explains that “[t]he
prosecution would not have been unwilling [sic] to cancel its offer had Petitioner’s trail [sic]
attorney made a simple request to have the terms reduced to writing for his client.” Def.’s Memo.
at 8. While Perkins alleges that “trial counsel never secured any written plea document binding the
government to its offer to Petitioner,” nowhere in his pleadings does Perkins allege that the
government changed the terms of the offer extended to him or rescinded an offer that had been
made prior to the expiration of the offer. Id. at 6. The Court cannot conclude that Perkins was
prejudiced by the failure to obtain a written plea offer based only on Perkins’ bald assertion that
he would have accepted the plea offer if it was in writing without providing any other rationale.
See id. at 6. Accordingly, the Court finds that Perkins has failed to demonstrate that he was
prejudiced by the failure to obtain a written plea offer when it is clear from the record that Perkins
was extended a plea offer, the terms of the offer were explained to him on the record in open court,
Perkins confirmed that these terms had been explained to him by his counsel, and he rejected the
plea offer.
Turning next to Perkins’ argument that his counsel was deficient for failing to explain that
the other charges against him in the indictment would have been dismissed if he pled, the Court
finds that this argument is without merit for the reasons described herein. Perkins contends that
“trial counsel never explained to Petitioner whether or not he would have to waive his right to trial
on the remaining counts against him or whether Petitioner would have to plead guilty at a later
date to the remaining counts in the indictment.” Id. Further, Perkins asserts that “the outcome of
the plea process would have been much different if Petitioner had the advice of competent counsel
19
because Petitioner would have accepted the pleas [sic] offer had he discovered that other charges
in the indictment would have been dismissed in exchange for his guilty plea.” 6 Id. at 8. Here, the
Court cannot conclude that Perkins’ trial counsel was deficient by failing to advise him that the
other charges in the indictment would be dismissed if he accepted the plea offer because at the
time that the offer was extended and expired, Perkins would have been required to plead guilty to
all the counts pending against him as well as an additional charge. Indeed, there were no charges
in the indictment that could have been dismissed at that time because no counts would have
remained if he accepted the plea offer.
As previously discussed, the plea offer extended to Perkins expired following the status
hearing held on September 27, 2004. At that time, Perkins was charged pursuant to the first
superseding indictment filed on August 5, 2004. Accordingly, when Perkins rejected the plea offer
6
The Court notes that the record reflects that Perkins was familiar with the plea process as
he had accepted a plea offer in an unrelated matter less than two months before he was arrested in
the instant action. Indeed, the Presentence Investigation Report in this matter, indicates:
On January 23, 2004, the defendant was arrested in Prince George’s County,
Maryland and charged with 1) Concealing a Deadly Weapon; 2) Handgun in a
Vehicle; 3) Handgun on person; 4) Handgun Violation Use/Felony-Violent Crime;
5) Unlawfully Taking a Motor Vehicle; 6) Theft of $500 plus; 7) Displaying
Registration Plate(s) Issued for Other Vehicle to Other Person . . . ; and 8) Person
Driving Motor Vehicle on Suspended License and Privilege . . . . On June 9, 2004,
the defendant appeared in the Circuit Court for Prince George’s County, Maryland
and pled to counts two and four. Sentencing is scheduled for May 24, 2006. The
defendant’s attorney is Ross Johnson.
Presentence Investigation Report ¶ 83 (emphasis added). Perkins was arrested in the instant action
on August 5, 2004, less than two months after he entered the plea in Prince George’s County,
Maryland that involved pleading guilty to some pending counts while others were dismissed. Less
than six months after his arrest and eight months after accepting the plea in Maryland, Perkins
indicated on the record in open court January 31, 2005, that he rejected the government’s plea offer
extended to him in the instant action.
20
extended by the government, he was charged only with one count of conspiracy to commit offenses
against the United States, that is, armed robberies of banks the deposits of which were then insured
by the Federal Deposit Insurance Corporation (18 U.S.C. § 371) and one count of armed bank
robbery (18 U.S.C. §§ 2113(a) & (d), 2). Superseding Indictment (Aug. 5, 2004). On September
27, 2004, Perkins rejected the government’s offer that would have required him to plead guilty to
those two counts, the only counts that he was charged with at that time, as well as one count of
using and carrying a firearm during and in relation to a crime of violence pursuant to the D.C.
Code. Tr. 25:12-15 (Jan. 31, 2005). As previously mentioned, this offer was made in
contemplation of the government filing a superseding indictment to add more charges, including
a RICO conspiracy charge and the charge for using and carrying a firearm during a crime of
violence, if the plea offers were rejected. On November 9, 2004, after the plea offers were rejected
by Perkins and his codefendants with whom he was tried, the government filed a second
superseding indictment, charging Perkins with the same two charges from the earlier indictment
as well as two additional counts, the RICO conspiracy charge (18 U.S.C. § 1962(d)) and using and
carrying a firearm during a crime of violence (18 U.S.C. § 924(c)). See Superseding Indictment
(Nov. 9, 2004). Perkins was ultimately convicted of all four charges brought against him after
trial. Here, the record demonstrates that Perkins’ trial counsel was not deficient for failing to
explain the effect of accepting the plea offer on the “remaining counts” in the indictment because
if Perkins accepted the plea, there would have been no “remaining counts.” Further, if Perkins had
accepted the plea in September 2004, there would have been no additional charges pending against
him in this case that could have been dismissed. Accordingly, the Court finds that Perkins’
ineffective assistance of counsel claim as to this issue is without merit because Perkins has failed
21
to demonstrate that his trial counsel’s performance fell below an objective standard of
reasonableness.
Finally, the Court notes that while Perkins indicates that his trial counsel failed to discuss
with him “whether or not he would have to pay a fine (special assessment) restitutions as part of
any guilty plea,” Perkins never asserts that he would have accepted the plea offer had this
information been provided to him. Def.’s Memo. at 6. Accordingly, the Court cannot conclude
that Perkins was prejudiced by this alleged failure on his counsel’s part. Further, the Court notes
that pursuant to 18 U.S.C. § 3663A(a)(1) and (3), the Court was required to enter an order for
restitution making Perkins and his codefendants (both those who proceeded to trial and those who
pled) jointly and severally liable for $361,000. Presentence Investigation Report ¶¶ 134-36. Thus,
Perkins would have been required to pay restitution in the same amount whether he accepted the
government’s plea offer or proceeded to trial and was convicted.
Ultimately, the record reflects and Perkins himself acknowledged under oath that he had
sufficient time to discuss with his trial counsel the plea offer that was extended to him by the
government. Further, Perkins indicated his desire to reject the plea offer because he asserted that
he was innocent of the charged offenses. Accordingly, for the reasons described, the Court finds
that Perkins’ ineffective assistance of counsel claims related to his plea offer are without merit.
D. Multiplicity Challenge to Counts I and II
Perkins next argues that his trial counsel was ineffective by failing to raise a multiplicity
challenge to Counts I and II of the indictment. Specifically, Perkins asserts that “[t]rial counsel
should have made an objection to the indictment on the grounds that Count One should have been
dismissed as multiplicitous of Count Two and vice versa.” Def.’s Memo. at 9. Perkins’ claim fails
22
because it is clear from the record that Perkins’ counsel did raise this issue prior to trial and the
Court rejected it.
“An indictment is multiplicitous, and thereby defective, if a single offense is alleged in a
number of counts, unfairly increasing a defendant’s exposure to criminal sanctions.” United States
v. Anderson, 39 F.3d 331, 353-54 (D.C. Cir. 1994), cert. denied, 516 U.S. 999 (1995) (quoting
United States v. Harris, 959 F.2d 246, 250 (D.C. Cir. 1992)). Here, Perkins alleges that Count I,
conspiracy to conduct and participate, directly and indirectly, in the affairs of an enterprise,
through a pattern of racketeering activity, and Count II, conspiracy to commit offenses against the
United States, that is, armed robberies of banks the deposits of which were then insured by the
Federal Deposit Insurance Corporation, are multiplicitous.
Counsel for Perkins’ codefendant filed a Joint Defense Motion to Dismiss the Indictment
due to Multiplicitous and Duplicitous Charging, which was considered on behalf of all the
codefendants, on February 1, 2005. Sealed Jt. Def. Mot. to Dismiss Indictment, ECF No. [172].
In the motion, the Defendants argue that Counts I and II of the indictment are multiplicitous
because both counts require proof of essentially the same facts. See id. at 2-5. The Court issued
a Memorandum Opinion on March 16, 2005, finding that this argument was without merit. Memo.
Op. (Mar. 16, 2005), at 14-16, ECF No. [437]. Specifically, the Court found after applying the
multiplicity test from Blockburger v. United States, 284 U.S. 299 (1932), and relying on relevant
case law, that “Counts I and II do not impinge upon the protections afforded by the Double
Jeopardy Clause.” Id. at 16. Accordingly, Perkins cannot establish that his trial counsel was
ineffective by failing to raise this claim because it is clear from the record that he did timely raise
this argument on Perkins’ behalf and the Court rejected it.
23
E. Juror Misconduct and Bias
Finally, Perkins argues that his appellate counsel failed to properly raise the issue of juror
misconduct and bias on appeal. Def.’s Memo. at 10-12. Allegations of juror misconduct were
raised in two post-trial motions by trial counsel. On August 15, 2005, codefendant Miguel Morrow
filed a Motion for a New Trial which the Court considered on behalf of Perkins as well as the other
codefendants. Morrow’s Mot. for New Trial, ECF No. [488]; United States v. Morrow, 412 F.
Supp. 2d 146, 152 n.4 (D.D.C. 2006). Defendants alleged that: jurors went to both the scenes of
the bank robberies and another relevant location, and described the areas during deliberations;
jurors read and were influenced by a Washington Post article that had been admitted into evidence
after it was found at Perkins’ apartment; and at least one juror remained in contact with a juror
who had been dismissed from the jury after making improper comments about the defendants’
guilt during the trial. Morrow’s Mot. for New Trial at 6-7; Def.’s Supp. Memo. in Supp. of Mot.
For New Trial at 2-3, ECF No. [509]. After becoming concerned about the “relative unspecific
and generalized assertions of juror misconduct by Defendants,” the Court set the matter for an
evidentiary hearing on the issue of the alleged jury misconduct. Morrow, 412 F. Supp. 2d at 152.
Prior to the hearing, the Court directed that the Defendants provide the government and the Court
with any statement made by a juror-witness expected to appear at the evidentiary hearing, and
information identifying the individual or individuals to whom the juror made such statements. Id.
Defendants produced post-trial emails between counsel and one juror, Juror #1. Id.
The Court held an evidentiary hearing on the issue of juror misconduct on October 31,
2005, and Juror #1, who was the only juror who provided information relied upon by Defendants,
testified under oath. Min. Entry (Oct. 31, 2005); Morrow, 412 F. Supp. 2d at 152. However, in
24
keeping within the confines of Federal Rule of Evidence 606(b), 7 which governs inquiries into the
validity of a verdict in which a juror is called as a witness, the Court conducted the initial inquiry
and then allowed each defendant the opportunity to ask further questions. Morrow, 412 F. Supp.
2d at 152-53. After hearing the evidence and reviewing additional briefing filed after the hearing,
the Court entered a 44-page Memorandum Opinion specifically considering and rejecting each of
the claims of juror misconduct as a basis for granting a new trial. See generally id. at 167-74.
Further, the Court found that the likelihood of prejudice was too insignificant to warrant a more
invasive hearing involving more members of the jury. Id. at 167. Accordingly, the Court denied
the Defendants’ requests for further hearings and for a new trial. Id. at 174.
On April 7, 2006, Morrow filed a second motion for a new trial, alleging juror misconduct
on the basis that Juror #2, the foreperson of the jury, lied or omitted facts during voir dire regarding
her relationship with Jerrold E. Vincent, a person unrelated to this case who allegedly had been
charged with and convicted of assault. See Morrow’s Mot. to Reopen Def. Morrow’s Mot. for
New Trial, Or, In the Alt., Mot. for New Trial on Newly Discovered Evid., ECF No. [596]. Perkins
7
At the relevant time, Federal Rule of Evidence 606(b) proscribed:
Upon an inquiry into the validity of a verdict or indictment, a juror may not testify
as to any matter or statement occurring during the course of the jury’s deliberations
or to the effect of anything upon that or any other juror’s mind or emotions as
influencing the juror to assent to or dissent from the verdict or indictment
concerning the juror’s mental processes in connection therewith, except that a juror
may testify on the question whether extraneous prejudicial information was
improperly brought to the jury’s attention or whether any outside influence was
improperly brought to bear upon any juror. Nor may a juror’s affidavit or evidence
of any statement by the juror concerning a matter about which the juror would be
precluded from testifying be received for these purposes.
Fed. R. Evid. 606(b) (2005) (amended 2011).
25
joined in Morrow’s second motion for a new trial. United States v. Morrow, Crim. No. 04-355
(CKK), 2006 WL 1147615, at *1 n.1 (D.D.C. Apr. 26, 2006). In their motion, the Defendants
alleged that despite being in a romantic relationship with Mr. Vincent, Juror #2 improperly
indicated during voir dire that she did not have any immediate family members or close friends
who had “‘been arrested, charged with a crime or found guilty or gone to jail for the same or similar
type of crime as the ones charged in this case. So it’s any kind of broad robbery, bank robbery,
gun charges, assaults.’” Morrow’s Mot. to Reopen Def. Morrow’s Mot. for New Trial, Or, In the
Alt., Mot. for New Trial on Newly Discovered Evid. at 1-2 (quoting Tr. 46:10-14 (Apr. 5, 2005)).
Further, Defendants also alleged that Juror #2 visited Mr. Vincent during the trial in the instant
action at the D.C. Jail, where the Defendants also were housed. Id. at 1.
The Court did not hold a hearing on the issue, and instead based its ruling on a searching
examination of the Defendants’ second motion, the Government’s opposition, the replies filed by
numerous Defendants, the attached exhibits, the relevant case law, and the entire record. 8 Morrow,
2006 WL 1147615, at *1. On April 26, 2006, the Court issued a 35-page Memorandum Opinion
detailing its reasons for denying the Defendants’ second motion for a new trial. See generally id.
The Court first found that the Defendants’ second motion for a new trial was untimely. Id. at *6-
*7. Next, the Court explained that even assuming arguendo that the second motion for a new trial
was properly before the Court, the claims in the motion were without merit. Specifically, the Court
found that the Defendants had proffered no evidence indicating that Juror #2 actually failed to
disclose information based on her relationship with Mr. Vincent at the time of the voir dire and
8
The Court notes that at the time of the filing of the Defendants’ second motion for a new
trial, Juror #2 was deceased. Morrow, 2006 WL 1147615, at *3.
26
that there was no evidence that Juror #2 was aware of any assaultive conduct by Mr. Vincent at
the time of voir dire. Id. at *7-*12. Further, the Court noted that its voir dire questioning was
more than adequate to root out relevant information. Id. at *13-*16. Finally, the Court noted that
even if Juror #2 did fail to disclose required information during voir dire, the Defendants’ claim
still failed because the Defendants “cannot demonstrate actual or implied bias on the part of Juror
# 2.” Id. at *17. Indeed, the Court noted that if Juror #2 had a bias resulting from her relationship
with Mr. Vincent, it is likely that the bias would have been pro-Defendant. Id. The Court
explained:
Ultimately, Defendants have simply made no showing of bias resulting from Mr.
Vincent’s situation that could have transferred to them which would be sufficient
to support a strike for cause of Juror # 2 had that information been disclosed.
Indeed, in circumstances much more egregious than this one, where some form of
bias or prejudice was much more plausible, courts have still remained recalcitrant
to grant a new trial, finding that the stringent “challenge for cause” test had not
been met . . . . Accordingly, even assuming arguendo that Defendants’ Second
Motion for a New Trial was timely, and that Juror # 2 was aware of and under an
obligation to reveal Mr. Vincent’s criminal history, the information is insufficient
to lay the foundation for a “challenge for cause” of Juror # 2. As such, even
assuming the truth of the facts and argument put forward by Defendants in their
Second Motion for a New Trial, Defendants’ motion is without merit.
Id. at *19.
Perkins’ argument in the instant motion appears to center around the second motion for a
new trial, involving the claims related to Juror #2. See Def.’s Memo. at 10-12 (only mentioning
the juror misconduct and bias claims surrounding Juror #2 and not those raised by Juror #1).
Essentially, Perkins argues that his appellate counsel should have raised the issue of the alleged
misconduct and bias of Juror #2 on appeal. Perkins’ claim as to his appellate counsel fails for the
reasons described herein.
27
The Strickland standard applies to claims of ineffective assistance of both trial and
appellate counsel. Payne v. Stansberry, 760 F.3d 10, 13 (D.C. Cir. 2014). Accordingly, in order
to prevail, Perkins must demonstrate: “(1) his counsel’s performance ‘fell below an objective
standard of reasonableness,’ and (2) ‘there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.’” Id. (quoting
Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984)). As the Supreme Court has noted,
“appellate counsel who files a merits brief need not (and should not) raise every nonfrivolous
claim, but rather may select from among them in order to maximize the likelihood of success on
appeal.” Smith v. Robbins, 528 U.S. 259, 288 (2000). However, the Court noted that “it is still
possible to bring a Strickland claim based on counsel’s failure to raise a particular claim [on
appeal], but it is difficult to demonstrate that counsel was incompetent.” Id.
In the instant action, Perkins’ appellate counsel chose not to raise the issue of the alleged
jury misconduct and bias in favor of raising other claims on Perkins’ behalf. For instance, Perkins’
appellate counsel raised issues applicable to all codefendants as well as the issue of whether
Perkins’ case should have been severed from the cases of his codefendants because he was only
charged with the last bank robbery. Jt. Brief of the Appellants at 65-66, Burwell et al v. United
States, No. 06-3071 (D.C. Cir. Oct. 2, 2009). Here, the Court cannot conclude that appellate
counsel’s decision not to raise the issue of the alleged juror bias and misconduct was objectively
unreasonable given professional norms, nor can the Court conclude that if appellate counsel had
raised this issue, that there is a reasonable probability of a different result on appeal. First, the
D.C. Circuit has recognized for claims of juror misconduct and bias, “[t]he trial court obviously is
the tribunal best qualified to weigh the relevant factors and draw the conclusion appropriate.”
28
United States v. Williams, 822 F.2d 1174, 1189 (D.C. Cir. 1987). Second, as the Government
points out, the D.C. Circuit utilizes a “highly deferential” standard of review for a district court’s
denial of a motion for a new trial. Govt.’s Opp’n at 19 (citing United States v. Rouse, 168 F.3d
1371, 1376 (D.C. Cir. 1999)); see also United States v. Gloster, 185 F.3d 910, 914 (D.C. Cir. 1999)
(“We will reverse a district court’s decision whether to grant such a motion [for a new trial] ‘only
if the court abused its discretion or misapplied the law.’”).
The Court finds that there is not a reasonable probability of a different result on appeal had
the issue of juror bias and misconduct been raised. As this Court noted, “Indeed, in circumstances
much more egregious than this one, where some form of bias or prejudice was much more
plausible, courts have still remained recalcitrant to grant a new trial, finding that the stringent
‘challenge for cause’ test had not been met.” Morrow, 2006 WL 1147615, at *19. Given the
standard of review, the Court concludes that appellate counsel’s failure to raise the alleged juror
bias and misconduct on appeal in favor of stronger claims such as the issue of whether Perkins’
case should have been severed from those of his codefendants, was objectively reasonable. See
Jones v. Barnes, 463 U.S. 745, 751-52 (1983) (“Experienced advocates since time beyond memory
have emphasized the importance of winnowing out weaker arguments on appeal and focusing on
one central issue if possible, or at most on a few key issues.”). Accordingly, the Court finds that
Perkins is not entitled to relief on his ineffective assistance of counsel claims related to the alleged
juror bias and misconduct.
F. Certificate of Appealability
When the district court enters a final order resolving a petition under 28 U.S.C. § 2255 that
is adverse to the petitioner, it must either issue or deny a certificate of appealability. Rules
29
Governing Section 2255 Proceedings for the United States District Courts, Rule 11(a). By statute,
“[a] certificate of appealability may issue . . . only if the applicant has made a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Such a showing demands that
Perkins demonstrate that “reasonable jurists could debate whether . . . the petition should have
been resolved in a different manner or that the issues presented were ‘adequate to deserve
encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting
Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). For the reasons set forth above, the Court
concludes that Perkins has failed to make that showing in this case, and, accordingly, no certificate
of appealability shall issue from this Court. To the extent Perkins intends to file an appeal, he
must seek a Certificate of Appealability from the United States Court of Appeals for the District
of Columbia Circuit in accordance with Federal Rule of Appellate Procedure 22(b).
IV. CONCLUSION
For the foregoing reasons, the Court finds no reason to set aside Perkins’ conviction or
sentence at this time. Accordingly, Perkins’ [788] Motion Under 28 U.S.C. § 2255 to Vacate, Set
Aside, or Correct Sentence is DENIED. To the extent Perkins intends to file an appeal, he must
seek a Certificate of Appealability from the United States Court of Appeals for the District of
Columbia Circuit in accordance with Federal Rule of Appellate Procedure 22.
An appropriate Order accompanies this Memorandum Opinion.
This is a final, appealable order.
/s/
COLLEEN KOLLAR-KOTELLY
UNITED STATES DISTRICT JUDGE
30