United States v. King

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_____________________________
)
UNITED STATES OF AMERICA, )
)
v. ) Criminal Action No. 03-249 (RWR)
)
CHARLES KING, JR., )
)
Defendant. )
_____________________________ )
MEMORANDUM OPINION
Petitioner Charles King, Jr. filed an opposed motion to
vacate, set aside, or correct his sentence and judgment under 28
U.S.C. § 2255, and to conduct an evidentiary hearing arguing that
his trial and appellate counsel provided ineffective assistance.
He also moved to have counsel appointed to represent him in
pursuing the § 2255 motion.1 Because the record of this case
shows that King is entitled to no relief and the interests of
justice do not require appointment of counsel, King is not
entitled to an evidentiary hearing and his § 2255 and appointment
of counsel motions will be denied. King has also moved to amend
his § 2255 motion. Because King’s claim is time-barred, his
motion to amend will be denied.
1
King also wanted counsel to help him pursue his motion
under Federal Rule of Criminal Procedure 41(g) for a return of
property. That Rule 41(g) motion has since been granted, making
moot the argument that help is needed in pursuing the Rule 41(g)
motion.
-2-
BACKGROUND
In May 2003, United States Park Police officers stopped King
because he was “operating a vehicle without a front license
plate.” Presentence Investigation Report (“PSR”) ¶ 4. During
the stop, the officers noticed that King appeared to be nervous.
The officers asked King to get out of his car and they patted him
down. The officers also searched King’s car. The officers
recovered over $7,000 in cash from King’s person and pieces of
cocaine base and a loaded .45 caliber handgun from King’s car.
Id. King was indicted on two counts. Count One charged King
with possession with intent to distribute 50 grams or more of
cocaine base in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A)(iii). Count Two charged King with using, carrying,
and possessing a firearm during a drug trafficking offense in
violation of 18 U.S.C. § 924(c)(1).
King entered a plea of not guilty. His first trial in
October 2003 ended in a mistrial. His second trial concluded
with the jury finding King guilty on both counts on December 18,
2003. On July 2, 2004, King was sentenced to imprisonment for
the minimum term of 151 months then required by the U.S.
Sentencing Guidelines on Count One, and a consecutive sentence of
60 months’ imprisonment, the minimum consecutive sentence
required by statute, on Count Two. Barry Johnson represented
King in both trials and at his sentencing.
-3-
King filed timely a notice of appeal and, through his
counsel, Frances D’Antuono, filed an appellate brief arguing that
denying King’s motion to suppress the evidence the officers
recovered from the pat down and search of King’s vehicle was an
error. King further argued that applying mandatory sentencing
guidelines at sentencing was error under United States v. Booker,
543 U.S. 220 (2005). The D.C. Circuit affirmed King’s conviction
but held that a Booker error had been committed, and remanded the
case to determine whether the error was prejudicial. United
States v. King, 198 Fed. App’x 11, 12 (D.C. Cir. 2006). On
remand, this court found that King had been prejudiced by the
Booker error. On November 13, 2008 King was resentenced to
imprisonment for a term of 121 months on Count One and the
mandatory minimum consecutive term of 60 months’ imprisonment on
Count Two. Am. Judgment in a Criminal Case at 3. D’Antuono
represented King on his direct appeal and at his resentencing.
King filed a pro se motion under 28 U.S.C. § 2255 to be
resentenced on Count One and for his conviction to be vacated or,
alternatively, that he be resentenced on Count Two. Mem. of Law
in Support of King’s 28 U.S.C. § 2255 (“Pet’r Mem.”) at 11; Am.
28 U.S.C. § 2255 Mot. (“Am. Pet’r Mem.”) at 6. King contends
that Johnson and D’Antuono were constitutionally ineffective in
three ways. First, King argues that the government failed to
produce sufficient evidence that the cocaine base recovered from
-4-
King’s vehicle was smokable cocaine as required by United States
v. Brisbane, 367 F.3d 910 (D.C. Cir. 2004). Pet’r Mem. at 3.
Thus, according to King, Johnson was ineffective by not moving
for a judgment of acquittal and for failing to raise the issue at
sentencing, id. at 4, and D’Antuono was ineffective because she
failed to raise this issue in King’s direct appeal, id. at 11
n.5. Second, King argues that Count Two in the indictment is
duplicitous. Id. at 7. Thus, Johnson was ineffective for not
challenging the indictment, id. at 9, and D’Antuono was
ineffective for not raising this issue on direct appeal, id. at
11 n.5. Third, King argues that D’Antuono was ineffective at his
resentencing because D’Antuono did not argue that 18 U.S.C.
§ 924(c) does not carry a 5-year minimum mandatory sentence in
King’s case. Am. Pet’r Mem. at 2. King also asserts that
§ 924(c) does not allow courts to impose a 5-year minimum
mandatory sentence where the related drug-trafficking offense
carries a higher minimum sentence. Id. at 3-6, 6 n.5. The
government opposes, arguing that even if trial and appellate
counsel’s performances were deficient in the three ways that King
alleges, King “cannot show prejudice from his trial and appellate
counsel’s alleged deficiencies because his claims are either
belied by the record or have no legal basis.” Gov’t Opp’n at 10.
King also filed a motion to amend his § 2255 motion to add a new,
unrelated claim.
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DISCUSSION
In a § 2255 motion, a petitioner can move the sentencing
court to “vacate, set aside or correct the sentence” if “the
sentence was imposed in violation of the Constitution or laws of
the United States, . . . or [if] the sentence was in excess of
the maximum authorized by law[.]” 28 U.S.C. § 2255(a). The
burden lies on the petitioner to prove the violation by a
preponderance of the evidence. United States v. Pollard, 602 F.
Supp. 2d 165, 168 (D.D.C. 2009).
“A judge need not conduct an evidentiary hearing before
denying a petition for relief under § 2255 when ‘the motion and
the files and records of the case conclusively show that the
prisoner is entitled to no relief.’” United States v. Morrison,
98 F.3d 619, 625 (D.C. Cir. 1996) (quoting 28 U.S.C. § 2255)
(noting that it is within the court’s discretion whether to hold
a hearing when it is the same court that presided over the
petitioner’s criminal proceedings).
I. MOTION TO AMEND § 2255 MOTION
In April 2012, King moved to amend his § 2255 motion to
include a claim that his trial counsel provided ineffective
assistance by not fully and adequately explaining the plea the
government offered and the potential consequences of proceeding
to trial. Mot. to Amend 28 U.S.C. § 2255 Petition ¶¶ 2–4. King
rejected the plea and was ultimately convicted and sentenced to a
-6-
longer period than the plea offer provided for. Id. ¶¶ 2–5.
King’s motion will be denied because it is untimely.
Initial § 2255 motions2 are subject to a one-year statute of
limitations. 28 U.S.C. § 2255(f). The limitation period runs
from the later of:
(1) the date on which the judgment of conviction becomes
final; [or]
. . .
(3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been
newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral
review . . . .
Id. Here, King’s sentence became final on November 28, 2008,
when the time period for filing a timely appeal expired. See
Fed. R. App. P. 4(b)(1)(A), 26(a) (2008). King did not file his
amended § 2255 claim until 2012, more than one year after his
conviction became final. However, King argues that his amended
claim is not time-barred because it relates to a right newly
recognized by the Supreme Court made retroactively applicable.
Mot. to Amend 28 U.S.C. § 2255 Petition ¶ 15. Specifically, King
contends that his new claim arises from Lafler v. Cooper, 132 S.
Ct. 1376 (2012), which the Supreme Court decided on March 21,
2012. Id. ¶¶ 16–17.
2
King’s amended motion is an initial motion and not a
second or successive motion. See Littlejohn v. Artuz, 271 F.3d
360, 362 (2d Cir. 2001) (“[M]otions to amend a habeas petition
should not be construed as second or successive petitions.”).
-7-
The D.C. Circuit has yet to fashion a framework to determine
when or whether the Supreme Court has “newly recognized” a right
under 28 U.S.C. § 2255(f)(3).3 Regardless of the test adopted,
the Supreme Court cannot be said to have “newly recognized” a
right where it is doing no more than applying its preexisting
precedent. United States v. Hopkins, 268 F.3d 222, 225 (4th Cir.
2001) (“[I]t is axiomatic that a new right cannot be ‘initially
recognized’ when the Court has merely applied its precedent to a
particular factual setting.”); cf. Teague v. Lane, 489 U.S. 288,
301 (1989) (“[A] case announces a new rule if the result was not
dictated by precedent existing at the time the defendant’s
conviction became final.”).
Lafler did not announce a new right. In Lafler, the Supreme
Court considered “how to apply Strickland’s prejudice test where
3
Teague v. Lane, 489 U.S. 288 (1989), considers the
corresponding provision in 28 U.S.C. § 2254 which allows a state
prisoner to raise a claim even though “the applicant has failed
to develop the factual basis of a claim in State court
proceedings” if the claim relies on “a new rule of constitutional
law, made retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable[.]” 28 U.S.C.
§ 2254(e)(2) (emphasis added). Because that provision is limited
to constitutional claims, it is narrower than the § 2255(f)(3)
newly-recognized-right standard. See United States v. Lopez, 248
F.3d 427, 430–31 (5th Cir. 2001) (holding that § 2255(f)(3)
“comprehends statutory rights as well” as constitutional rights);
United States v. Valdez, 195 F.3d 544, 546 (9th Cir. 1999)
(noting that “under § 2255(3), the right ‘initially recognized’
by the Supreme Court need not be a constitutional one”),
abrogated on other grounds by Dodd v. United States, 545 U.S. 353(2005). The D.C. Circuit has yet to consider whether, despite
the differences in the statutes, the Teague framework applies to
initial § 2255 motions.
-8-
ineffective assistance results in a rejection of the plea offer
and the defendant is convicted at the ensuing trial.” Lafler,
132 S. Ct. at 1384. It is well-established that Strickland v.
Washington, 466 U.S. 668 (1984), laid out the “constitutional
standards for effective assistance of counsel.” Lafler, 132 S.
Ct. at 1383–84. To establish Strickland prejudice, “[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.” Strickland, 466 U.S. at
694. In Hill v. Lockhart, the Supreme Court held that “the two-
part Strickland v. Washington test applies to challenges to
guilty pleas based on ineffective assistance of counsel.” Hill
v. Lockhart, 474 U.S. 52, 58 (1985). In Hill, the Court
explained that in the plea context, the Strickland prejudice
requirement “focuses on whether counsel’s constitutionally
ineffective performance affected the outcome of the plea
process.” Id. at 59. Applying Strickland and Hill where
counsel’s deficient performance caused the defendant to reject a
plea offer, the Lafler Court held that to establish prejudice in
this context,
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
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severe than under the judgment and sentence that in fact
were imposed.
Lafler, 132 S. Ct. at 1385. Because the holding in Lafler was
dictated by Supreme Court precedent, it is not a new right and
King’s motion to amend his § 2255 motion will be denied as
untimely.4
II. INEFFECTIVE ASSISTANCE OF COUNSEL
The Sixth Amendment provides criminal defendants the right
to be represented by counsel. U.S. Const. amend. VI. Implicit
in this guarantee is that counsel will provide effective
assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771
n.14 (1970) (“[T]he right to counsel is the right to the
effective assistance of counsel.”). To establish that
representation was constitutionally deficient, King must show
(1) that counsel’s representation fell below an objective
standard of reasonableness, and (2) that there is a reasonable
probability that, but for counsel’s errors, the result of the
proceeding would have been different. Strickland, 466 U.S. at687–88. The two-part Strickland test also applies to challenges
of ineffective assistance of appellate counsel. Smith v.
Robbins, 528 U.S. 259, 285 (2000); United States v. Agramonte,
366 F. Supp. 2d 83, 86 (D.D.C. 2005).
4
Cf. In re Perez, 682 F.3d 930, 932-34 (11th Cir. 2012)
(holding that Lafler v. Cooper did not announce a new rule of
constitutional law under 28 U.S.C. § 2255(h)).
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To establish the performance prong, the petitioner must show
that counsel did not provide reasonable service under the
“prevailing professional norms” given the circumstances.
Strickland, 466 U.S. at 688. Prevailing professional norms are
demonstrated by reference to “an attorney’s ethical duties,
including those which require counsel to bring skill and
knowledge to the case and to provide zealous representation.”
Best v. Drew, Criminal Action No. 01-262 (RWR), 2006 WL 2035652,
at *3 (D.D.C. July 18, 2006). In determining whether counsel’s
representation fell below an objective standard of
reasonableness, “every effort [must] be made to eliminate the
distorting effects of hindsight[.]” Strickland, 466 U.S. at 689.
“[A] court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional
assistance . . . [since] [e]ven the best criminal defense
attorneys would not defend a particular client in the same way.”
Id. at 689; accord id. (“Judicial scrutiny of counsel’s
performance must be highly deferential.”). To establish that
appellate counsel was incompetent in not raising a particular
issue on direct appeal, “a defendant fights a particularly
difficult battle, as he bears the burden of ‘showing that a
particular nonfrivolous issue was clearly stronger than issues
that counsel did present.’” United States v. Brisbane, 729 F.
Supp. 2d 99, 118 (D.D.C. 2010) (quoting Smith, 528 U.S. at 288).
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As to the prejudice prong, the petitioner must “show that
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694. In the trial
context, the defendant must show that “counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.” Id. at 687. In the sentencing
context, the defendant may establish prejudice by showing that
there is a reasonable probability that counsel’s errors caused an
increase in the defendant’s sentence. See Glover v. United
States, 531 U.S. 198, 203–04 (2001).
Courts have discretion to order their analysis of the two
prongs and resolve an ineffective assistance of counsel claim on
the basis of lack prejudice to the petitioner without examining
counsel’s performance under the first prong. Strickland, 466
U.S. at 697.
A. Failure to raise Brisbane issue
According to King, Brisbane, 367 F.3d 910, required the
government to prove that King possessed smokable cocaine or crack
cocaine to meet its burden to prove that King violated 21 U.S.C.
§ 841(b)(1)(A)(iii). Pet’r Mem. at 4. King argues that the
government did not prove that the cocaine base recovered from his
vehicle was crack cocaine and that trial counsel was ineffective
because he did not move for judgment of an acquittal under
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Federal Rule of Criminal Procedure 29 on this ground and did not
object to King being sentenced under § 841(b)(1)(A)(iii). Id. at
4, 6. King also asserts that appellate counsel rendered
ineffective assistance of counsel by failing to raise this
argument in King’s direct appeal. Id. at 11 n.5. King asserts
that he was prejudiced by counsel’s deficient performances
because it would have likely been found that Brisbane required
that the government prove that the recovered cocaine base was
either smokable cocaine or crack cocaine. Id. at 6-7. Had the
government not met this burden, King argues, his statutory
sentencing range and his sentencing guidelines range would have
been lower. Id. The government counters that even if counsel’s
performances were deficient, the government “presented more than
sufficient evidence” at trial that King possessed crack cocaine.
Gov’t Opp’n at 14. As such, the government maintains, King
cannot show that he was prejudiced. Id.
Brisbane was decided on May 11, 2004 -- five months after
King was convicted and two months before King was sentenced.
When King was standing trial in 2003, Rule 29 provided that a
motion for a judgment of acquittal may be filed in two instances.
First, the defense may move for a judgment of acquittal before
the offense is submitted to the jury. Fed. R. Crim. P. 29(a)
(2003). Second, the defense may move for a judgment of acquittal
“within 7 days after a guilty verdict or after the court
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discharges the jury, whichever is later[.]” Fed. R. Crim. P.
29(c)(1) (2003). Brisbane was decided after December 30, 2003 --
the latest time that Johnson would have been able to file a Rule
29 motion. Id.; Fed. R. Crim. P. 45(a). Thus, Johnson was not
deficient in not raising this issue as grounds for a judgment of
acquittal.
In Brisbane, the D.C. Circuit examined the definition of
“cocaine base” as used in 21 U.S.C. § 841. George Brisbane was
convicted by a jury of distributing five or more grams of cocaine
base in violation of § 841. 367 F.3d at 910–11. After the
government rested, Brisbane filed a motion for a judgment of
acquittal arguing that “cocaine base” in § 841 means only crack
cocaine and “that the government had not proven [that] the
substance [he distributed] was crack as alleged in the
indictment.” Id. at 912. The district court agreed that the
government had not proven that the substance was crack but held
that the government had still proven that Brisbane possessed
“cocaine base” in violation of § 841 because cocaine base refers
to more than just crack cocaine. Id. Brisbane appealed. The
court of appeals acknowledged that “cocaine base” in § 841 is
ambiguous. Id. at 913. After considering the possible
interpretations of “cocaine base,” the D.C. Circuit held that to
convict a defendant of violating § 841 under a provision devoted
to “cocaine base,” the government must prove that the substance
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is a smokable form of cocaine, such as crack cocaine. Id. at
913-14.5
King suffered Strickland prejudice if there is a reasonable
probability that King’s objection to being sentenced under 21
U.S.C. § 841(b)(1)(A)(iii) would have been sustained or the court
of appeals would have vacated King’s conviction. At trial, the
government presented evidence that the substance recovered from
King’s vehicle was crack cocaine. Specifically, Officer
Adamchik, the arresting officer, testified that:
[The substance found in King’s car] almost looked like
the inside of orange peels, a real white color. . . . It
was big chunks of something. . . . I saw clear plastic
baggies with white chunks inside of it. That definitely
appeared to be crack cocaine to me[.]
12/10/03 Tr. at 54, 67, 78. Adamchik also referred to the
substance as “crack cocaine” and described it as an “off white
rock like substance” on the form he submitted with the substance
to the Drug Enforcement Agency for analysis (i.e., a “DEA-7
form”). Gov’t Opp’n, Ex. 1. Also, King stipulated to the
admission of a report by Charles Matkovich, a forensic chemist,
identifying the “active drug ingredient” in the substance as
“cocaine base.” Id. at 15, Ex. 1. Finally, Detective Tyrone
Thomas, the government’s narcotics trafficking expert, viewed the
substance and testified that in his opinion, it was “wholesale
5
The Supreme Court has since held that “the term ‘cocaine
base’ as used in § 841(b)(1) means not just ‘crack cocaine,’ but
cocaine in its chemically basic form.” DePierre v. United
States, 131 S. Ct. 2225, 2237 (2011).
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quantities of crack cocaine.” 12/11/03 Tr. at 51-54. Detective
Thomas also offered general testimony that crack cocaine
can be placed into a smoking device and smoked, heated,
burnt, and the fumes would be smoked just like in a
cigarette form, and that causes a more instant high; it
causes a more addictive high, and it required less of the
product itself to create this high that these drug users
are seeking.
Id. at 45-46.
King argues that Officer Adamchik’s testimony and the DEA-7
form are insufficient to show that the substance was crack
cocaine. King also objects to Detective Thomas’s testimony
because Detective Thomas “was never involved in this case” and
“apparently saw the cocaine base for the first time at trial and
was only able to identify the substance in a seal-tamper proof
evidence bag because of the DEA-7 report.” Pet’r Mem. at 5, 5
n.1. Of course, the time to object to the admissibility of this
evidence is long past. See Scott v. United States, 317 F.2d 908,
908 (D.C. Cir. 1963) (per curiam) (“‘[O]bjection to the
admissibility of evidence should be made at the time it is
offered and the grounds therefor stated.’” (quoting Fuller v.
United States, 288 F. 442, 445 (D.C. Cir. 1923)). Moreover, King
does not substantiate his claim that Detective Thomas had no
basis for his identification that the substance was crack
cocaine.
In United States v. Eli, 379 F.3d 1016 (D.C. Cir. 2004) -- a
post-Brisbane case -- the D.C. Circuit upheld a district court’s
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finding that the government had proven that the substance at
issue was crack cocaine. Eli pled guilty to distributing 50
grams or more of cocaine base in violation 21 U.S.C.
§ 841(b)(1)(A)(iii). Id. at 1017. After being sentenced to 121
months’ imprisonment, Eli filed a motion under 28 U.S.C. § 2255claiming that his defense counsel was constitutionally
ineffective because counsel had not disputed that the substance
Eli distributed was crack cocaine. Id. at 1017–18. The
district court conducted an evidentiary hearing and found that
Eli had distributed crack cocaine “beyond a reasonable doubt.”
Id. at 1018. On appeal, the D.C. Circuit held that the district
court’s finding that the substance was crack cocaine was well
supported by the following evidence:
First, the government chemist testified, and Eli did not
dispute, that Eli’s drugs tested positive for cocaine
base. Second, both the Drug Enforcement Agency’s (DEA’s)
lab report and the U.S. Probation Office’s Presentence
Investigation Report (to which Eli acceded) stated that
the drugs recovered in the sales were “rock-like.”
Third, the chemist indicated that the drugs were
smokable. Finally, he concluded that the drugs were
properly identified as crack cocaine.
Id. at 1021 (internal citations omitted).
The evidence here is similar. As in Eli, the chemist’s
report here identified the substance as cocaine base. The DEA-7
form identified the drugs as rock like. Here, Officer Adamchik
also testified that the substance was in “chunks.” Detective
Thomas testified that the substance was smokable and he offered
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his opinion that the substance was crack cocaine. Accordingly,
based on the record, King has not met his burden of showing that
there is a reasonable probability that but for his counsel’s
alleged deficient performance in not challenging his conviction
and sentencing under 21 U.S.C. § 841(b)(1)(A)(iii), his sentence
would have been different or his conviction would have been
overturned.
B. Failure to object to Count Two as duplicitous
In Count Two of the indictment, the grand jury charged King
with violating 18 U.S.C. § 924(c) as follows:
On or about May 17, 2003, within the District of
Columbia, CHARLES KING, JR., did unlawfully and knowingly
use, and carry during and in relation to, and possess in
furtherance of, a drug trafficking offense, for which he
may be prosecuted in a court of the United States, that
is Count One of this Indictment which is incorporated
herein, a firearm, that is, a Llama .45 caliber semi-
automatic pistol.
Indictment 1-2.
Although the count follows the statutory language, King
argues that Count Two is duplicitous because § 924(c)
criminalizes at least two separate offenses: (1) using or
carrying a firearm during and in relation to a drug trafficking
crime, and (2) possessing a firearm in furtherance of a drug
trafficking crime. Pet’r Mem. at 8. King contends that Johnson
was ineffective because he did not move to dismiss Count Two as
duplicitous and D’Antuono was ineffective because she did not
raise this issue in King’s direct appeal. Id. at 7-9, 11 n.5.
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Federal Rule of Criminal Procedure 12(b)(3) states that “a
motion alleging a defect in the indictment” “must be raised
before trial[.]” Fed. R. Crim. P. 12(b)(3) (2003). Thus, King’s
appellate counsel was not deficient because she likely could not
have raised this issue in King’s direct appeal.
“Duplicity is the joining in a single count of two or more
distinct and separate offenses.” United States v. Hubbell, 177
F.3d 11, 14 (D.C. Cir. 1999). “It is well established that if a
criminal statute disjunctively lists multiple acts which
constitute violations, ‘the prosecution may in a single count of
an indictment or information charge several or all of such acts
in the conjunctive[.]’” United States v. Brown, 504 F.3d 99, 104
(D.C. Cir. 2007) (quoting District of Columbia v. Hunt, 163 F.2d
833, 837–38 (D.C. Cir. 1947)). Section 924(c) is such a statute.
See 18 U.S.C. § 924(c) (providing additional punishment for “any
person who, during and in relation to any crime of violence or
drug trafficking crime . . . for which the person may be
prosecuted in a court of the United States, uses or carries a
firearm, or who, in furtherance of any such crime, possesses a
firearm” (emphasis added)). Count Two charges each act in the
conjunctive. Accordingly, if trial counsel had moved pretrial to
dismiss the indictment because it was duplicitous, the motion
likely would have been denied. Therefore, King cannot meet his
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burden to show that he was prejudiced by his trial counsel’s
performance.
C. Failure to object to consecutive 60-month term of
imprisonment for 18 U.S.C. § 924(c)(1) violation
King alleged that his trial and appellate counsel performed
deficiently by not arguing that 18 U.S.C. § 924(c)(1) does not
require that King be sentenced to “a term of imprisonment of not
less than 5 years” “in addition to” his sentence for his “drug
trafficking crime.” Am. Pet’r Mem. at 3. Citing United States
v. Whitley, 529 F.3d 150 (2d Cir. 2008) and United States v.
Williams, 558 F.3d 166 (2d Cir. 2009), King argues that
§ 924(c)(1)(A)(i) is more properly interpreted as requiring a
consecutive sentence only when there is no other provision that
provides for a “greater minimum sentence.” Id. at 3–4. Thus,
according to King, because 21 U.S.C. § 841 requires a 10-year
minimum sentence, § 924(c)(1) does not require that King be
sentenced to a 60-month consecutive sentence. Id. at 5–6. King
contends that he was prejudiced because had counsel raised this
issue, King would have prevailed and King would have received a
lesser total sentence. Id.
This argument requires little discussion. In Abbott v.
United States, 131 S. Ct. 18 (2010), the Supreme Court explicitly
abrogated Williams.6
6
United States v. Tejada, 631 F.3d 614, 619 (2d Cir. 2011),
also recognized that Abbott abrogated Whitley.
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We hold, in accord with the courts below, and in line
with the majority of the Courts of Appeals, that a
defendant is subject to a mandatory, consecutive
sentence for a § 924(c) conviction, and is not spared
from that sentence by virtue of receiving a higher
mandatory minimum on a different count of
conviction. . . . He is . . . subject to the highest
mandatory minimum specified for his conduct in
§ 924(c), unless another provision of law directed to
conduct proscribed by § 924(c) imposes an even greater
mandatory minimum.
Abbott, 131 S. Ct. at 23.
In light of Abbott, King cannot show prejudice as a result
of his counsel’s alleged deficient performances. For the same
reason, King’s contention that § 924(c) did not authorize a
mandatory minimum 5-year sentence fails.
III. APPOINTMENT OF COUNSEL
There is no constitutional right to appointment of counsel
in habeas corpus proceedings. Brown v. Cameron, 353 F.2d 835,
836 n.1 (D.C. Cir. 1965). However, under the Criminal Justice
Act (“CJA”), 18 U.S.C. § 3006A, representation may be provided
“for any financially eligible person who . . . is seeking relief
under section . . . 2225 of title 28” if “the interests of
justice so require.” 18 U.S.C. § 3006A(a)(2).
To determine whether appointing counsel is in the
interests of justice, a court must consider 1) the
petitioner’s likelihood of success on the merits, 2) the
ability of the petitioner to articulate his claims pro se
in light of the complexity of the legal issues involved,
and 3) the factual complexity of the case and whether the
petitioner has the ability to investigate undeveloped
facts.
-21-
United States v. Washington, 782 F. Supp. 2d 1, 3 (D.D.C. 2011)
(citing United States v. Waite, 382 F. Supp. 2d 1, 2 (D.D.C.
2005)).
King was unlikely to succeed and does not succeed on the
merits of his three ineffective assistance of counsel claims for
the reasons stated above. King’s motion does not allege that any
further fact investigation is necessary. Moreover, King cited
legal authority throughout his § 2255 motion and articulated
lucidly supporting arguments for his claims. Accordingly, the
interests of justice do not require appointment of counsel under
these circumstances. See 18 U.S.C. § 3006A(a)(2).
CONCLUSION
King’s amended claim is time-barred. King failed to show
that his trial and appellate counsel rendered ineffective
assistance of counsel under Strickland. The interests of justice
do not warrant appointment of counsel here. Therefore, King’s
§ 2255 motion, motion to amend his § 2255 motion, motion for
appointment of counsel, and motion for initial consideration of
his motion to amend his § 2255 motion will be denied. King’s
motion for an update of the status of his § 2255 motion will be
granted. A separate Order accompanies this Memorandum Opinion.
SIGNED this 9th day of December, 2013.
/s/
RICHARD W. ROBERTS
Chief Judge