United States v. Knight

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
v. Criminal No. 07-81 (CKK)
Civil Action No. 10-2012 (CKK)
DARRYL KNIGHT,
Defendant.
MEMORANDUM OPINION
(October 9, 2013)
On June 27, 2007, Darryl Knight pled guilty to one count of unlawful possession with
intent to distribute fifty (50) or more grams of cocaine base and one count of unlawful possession
of a firearm and ammunition by a convicted felon. This Court subsequently sentenced Knight to
121 months’ imprisonment and five (5) years supervised release on the drug offense, and 120
months’ imprisonment and five (5) years supervised release on the gun offense, to run
concurrently. Presently before the Court is Knight’s [77] Motion to Vacate Under 28 U.S.C. §
2255, [84] Motion to Amend Motion to Vacate Under 28 U.S.C. § 2255. The Court held an
evidentiary hearing regarding the Defendant’s motion to vacate on December 11, 2012. Upon
consideration of the pleadings,1 the testimony provided during the evidentiary hearing, the
relevant legal authorities, and the record as a whole, the Court finds no grounds for setting aside
1
Although the Court’s decision is based on the record as a whole, the Court’s analysis
focused on the following submissions from the parties, in chronological order of filing: Def.’s
Mot. to Vacate, ECF No. [63]; Gov’t Opp’n to Mot. to Vacate, ECF No. [70] (“First Gov’t
Opp’n”); Def.’s Addendum to Mot. to Vacate, ECF No. [71]; Def.’s Suppl. Mot. to Vacate, ECF
No. [77]; Gov’t Opp’n to Mot. to Vacate, ECF No. [82] (“Second Gov’t Opp’n”); Def.’s Reply,
ECF No. [83]; Def.’s Mot. to Amend Mot. to Vacate, ECF No. [84]; Def.’s Mot. for an Evid.
Hearing, ECF No. [85]; Gov’t Opp’n to Mot. to Amend, ECF No. [91]; Def.’s Suppl., ECF No.
[97]; Def.’s List of Issues, ECF No. [99]; Gov’t’s Notice of Filing, ECF No. [102]; Gov’t’s
Resp., ECF No. [104].
the Defendant’s plea and sentence. Accordingly, the Defendant’s [84] Motion to Amend Motion
to Vacate Under 28 U.S.C. § 2255 is GRANTED, Defendant’s [85] Motion for an Evidentiary
Hearing is DENIED AS MOOT, and Defendant’s [77] Motion to Vacate Under 28 U.S.C.
§ 2255 is DENIED.
I. BACKGROUND
On January 25, 2007, the Metropolitan Police Department (“MPD”) sought and received
a search warrant to search apartment three of 1420 Staples Street, Northeast, Washington, D.C.
Gov’t’s Ex. K (Search Warrant & Aff.), ECF No. [82-11]. The affidavit in support of the search
warrant averred MPD met with a confidential informant who claimed to have personal
knowledge of narcotics related activity at the relevant address. Id. at 2. At some point within the
seventy-two hours prior to January 25, MPD arranged and executed a controlled purchase of
narcotics by the confidential informant from the residence in question. Id. After returning from
the apartment, the confidential informant turned over a bag containing a “tan rock substance”
which field-tested positive for the presence of cocaine. Id. at 2-3. The search warrant sought to
recover narcotics (specifically crack cocaine), additional drugs, and a variety of materials
associated with narcotics trafficking. Id. at 1.
MPD executed the search warrant on February 2, 2007 at approximately 7:35 P.M.
6/27/12 Tr. (Plea Hearing) at 16:12-22. The Defendant, his girlfriend, the Defendant’s great
nephew, and Defendant’s infant son were present in the apartment at the time of the search. Id.
at 16:16-21. In the apartment proper, MPD recovered marijuana, crack cocaine, and a digital
scale, and $1,267.56 in United States currency. Id. at 16:22-17:12; 18:23-25. MPD also
discovered a hatch in the ceiling of the closet in Defendant’s bedroom which led to the attic. Id.
at 17:13-16. Reaching into the attic area from the opening, MPD further recovered a plastic bag
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containing 340.5 grams of crack cocaine, 82.1 grams of marijuana, a loaded .9 millimeter Beretta
handgun, a loaded .9 millimeter Curtelli handgun with an extra magazine, and approximately
$8,000 in United States currency. Id. at 17:17-18:22. Laboratory analysis confirmed the
composition and weight of the drugs. Id. at 19:1-13.
On March 22, 2007, the Grand Jury returned an indictment charging Defendant with (1)
unlawful possession with intent to distribute 50 grams or more of cocaine base in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(A)(iii); (2) unlawful possession with intent to distribute cannabis in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(D); (3) using, carrying, and possessing a firearm
during a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1); and (4) unlawful
possession of a firearm and ammunition by a person convicted of a crime punishable by
imprisonment for a term exceeding one year. Indictment, ECF No. [1], at 1-3. Defendant’s
counsel, Rita Bosworth and Michelle Peterson of the Federal Public Defender’s Office for
Washington, D.C., filed a motion to suppress, arguing the search warrant did not establish
probable cause. Def.’s Mot. to Suppress, ECF No. [13]. Specifically, counsel argued that a
single buy from an unnamed informant at an unspecified time is insufficient to establish probable
cause, the confidential informant did not disclose any evidence of narcotics paraphernalia in the
apartment, nor did he or she describe the individual from whom the drugs were purchased or
indicate any relationship between the Defendant and premises searched. Id. at 2-4. Defendant’s
counsel further argued that the officers executing the search warrant exceeded the scope of the
warrant when they entered the attic where the majority of the narcotics and the weapons were
discovered, and that the officers violated the “knock and announce” requirement of 18 U.S.C.
§ 3109. Id. at 8. In the same motion, counsel also moved to suppress Defendant’s statements on
the grounds they were obtained in violation of Defendant’s Miranda rights. Id. at 9-10; Def.’s
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Suppl. to Mot. to Suppress, ECF No. [22], at 2-3. Separately, defense counsel moved to compel
disclosure of the testimony the Defendant’s girlfriend gave to the Grand Jury. Def.’s Mot. to
Compel Grand Jury Test., ECF No. [20].
The Court convened an evidentiary hearing regarding the Defendant’s motion to suppress
on June 19, 2007. See generally 6/19/2007 Tr. In response to an inquiry from the Court, the
Government indicated that the parties had not yet engaged in significant substantive plea
negotiations. Id. at 10:21-11:10.
During the hearing MPD Officer David Wildey testified regarding the search of
Defendant’s residence, which Officer Wildey helped execute. 6/19/2007 Tr. at 13:16-20:25.
The primary question was whether the attic in which most of the narcotics and the weapons were
found was accessible from a location other than the Defendant’s apartment. Officer Wildey
provided extensive testimony describing the configuration of the attic above Defendant’s
apartment, including the dimensions of the attic, points of access to the attic, layout of insulation,
the proximity of the recovered drugs and currency to the hatch in Defendant’s closet, and the
overall layout of the building in which Defendant’s apartment was located. Id. at 21:1-66:7.
After the conclusion of Officer Wildey’s testimony, the Court indicated to the parties that it
could not make a decision regarding Defendant’s motion to suppress the evidence seized from
the attic absent additional information regarding whether or not the attic was accessible from any
other apartment in the building. Id. at 66:13-67:15; 70:9-22. The Court granted the parties a
one-day continuance to obtain additional information, but continued to hear testimony from
MPD Officer Sarah Hoffman regarding the circumstances surrounding the statements made by
the Defendant during the search of his residence. Id. at 73:10-90:5. MPD Officer Ilah White,
the affiant for the affidavit in support of the search warrant, further testified about the execution
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of the search warrant, including Defendant’s statements. Id. at 93:2-106:10. At the conclusion
of the Officers’ testimony, Ms. Bosworth presented arguments to the Court regarding why the
statements from the Defendant the Government sought to introduce were involuntary. Id. at
107:1-109:13; 112:4-113:9.
Upon reconvening the hearing on June 20, 2007, the Government recalled MPD Officer
Wildey, who had returned to the apartment building after the hearing recessed on June 19.
6/20/2007 Tr. at 5:12-19. Officer Wildey testified regarding his observations as to the layout of
the apartment building and the attic. Id. at 5:20-11:22. Officer Wildey indicated that, in his
opinion, if there was an entrance to the attic from the other second floor apartment, that is,
apartment four, one would not be able to access the area in which the contraband was found due
to the placement of a beam in the attic. Id. at 11:23-16:25; 22:7-13; 22:14-25. The Government
indicated that the landlord for the apartment building would later be available to testify that one
could access the attic from a hatch on the balcony of apartment four, but that hatch had been
sealed, and there was no other access into the attic from apartment four. Id. at 58:23-59:20. The
Court recessed the hearing for the day, and indicated the hearing would resume the following day
at which point the landlord an another MPD officer involved in a subsequent search of apartment
three would testify. Id. at 59:16-60:11.
The Court reconvened the hearing for a third day on June 21, 2007, at which time the
parties asked the Court to postpone the hearing so as to allow the parties to continue plea
negotiations. 6/21/2007 Tr. at 2:21-3:7. Pursuant to a plea agreement, the Defendant pled guilty
to counts one and four of the indictment on June 27, 2007. Plea Agreement, ECF No. [37], at 1.
For sentencing purposes, Defendant agreed as part of the plea agreement he would be
accountable for 340.574 grams of crack cocaine and 98.87 grams of marijuana. Id. The Court
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sentenced Defendant to 121 months imprisonment on count one and 120 months on count four,
to run concurrently. 11/28/2007 J. at 3.
Knight filed a Notice of Appeal on December 10, 2007, but voluntarily dismissed the
appeal before briefing. See 10/09/09 Order, ECF No. [62] (granting Defendant’s motion to
dismiss appeal). Knight filed an initial Motion to Vacate on March 10, 2010. Def.’s Mot. to
Vacate, ECF No. [63]. The Government responded to the Defendant’s motion and the Defendant
sought to supplement his motion, but before the Court reached the merits of the motion, Knight
moved to dismiss the motion without prejudice. See Def.’s Mot. to Dismiss Mot. to Vacate, ECF
No. [73]. The Court granted the Defendant’s motion to dismiss and dismissed the Defendant’s
motion to vacate without prejudice. 6/28/10 Order, ECF No. [76]. Apparently unaware that the
Court had granted his motion to dismiss, Knight filed a “supplement” to his original motion to
vacate, incorporating by reference the grounds for relief asserted in the original motion. Def.’s
Mot. to Vacate, ECF No. [77]. The Government filed an opposition responding to all of the
allegations in Petitioner’s original and supplemental motions, and Petitioner filed a reply.
Knight further filed a Motion to Amend Motion to Vacate Under 28 U.S.C. § 2255 and Motion
for an Evidentiary Hearing, seeking to attach Petitioner’s affidavit and several pictures to the
Motion to Vacate and requesting an evidentiary hearing. The Court subsequently appointed
counsel to represent the Defendant for purposes of the present motion to vacate. After additional
filings from the parties regarding the scope and merits of the Defendant’s claims, the Court held
an evidentiary hearing on December 11, 2012, during which the Defendant and his former trial
counsel, Rita Bosworth and Michelle Peterson, and his former appellate counsel, Mitchell
Seltzer, testified.
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II. LEGAL STANDARD
Under 28 U.S.C. § 2255, a prisoner in custody under sentence of a federal court may
move 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, “unless 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
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performance fell below an objective standard of reasonableness under prevailing professional
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,
131 S.Ct. 770, 787 (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.” Id. at 692. 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.”
Strickland, 466 U.S. at 694. A “reasonable probability” is “a probability sufficient to undermine
confidence in the outcome.” Id. at 694.
III. DISCUSSION
Across four pleadings Defendant raises over two dozen arguments in support of his
contention that the representation provided by both his trial and appellate counsel was
constitutionally deficient. At the outset, the Court notes that after observing the demeanor of
Defendant and Defendant’s former counsel and weighing their credibility, the Court credits the
8
testimony of Ms. Bosworth, Ms. Peterson, and Mr. Seltzer. The Court will address Defendant’s
contentions according to the various stages of the proceedings. Ultimately, none of the
Defendant’s arguments have merit.
A. Pretrial Matters
Beginning with the Defendant’s claims relating to general pretrial matters, the Defendant
asserts that counsel erred in failing to challenge the fact no warrant was issued for Defendant’s
arrest, failing to request a probable cause hearing, and failing to move to dismiss the indictment.
In this case, Defendant was arrested pursuant to the indictment returned by the Grand Jury.
Indictment, ECF No. [1]. In the context of a criminal case “the return of an indictment
conclusively establishes probable cause.” Moore v. Hartman, 571 F.3d 62, 68 (D.C. Cir. 2009);
Fed. R. Crim. P. 5.1(a)(2). No arrest warrant was needed for the Defendant’s arrest, and any
request for a probable cause hearing would have been futile in light of the indictment. 12/11/12
Tr. at 88:8-16 (R. Bosworth) (“[W]hen I received his case he had already been indicted, and so
there would be no basis for a preliminary hearing. And I believe that he actually came to court
pursuant to a summons, in which case there would be no arrest warrant.”); Gov’t’s Ex. M (Decl.
of M. Peterson) at ¶ A (averring there was “no basis” for requesting a preliminary hearing or
challenging the lack of an arrest warrant).
The Defendant’s claim that counsel should have moved to dismiss the indictment, as set
forth in his pleadings, is vague and conclusory, and thus insufficient to even raise the issue “let
alone establish” ineffective existence of counsel. United States v. Green, 680 F.2d 183, 190 n.12
(D.C. Cir. 1982). During the evidentiary hearing the Defendant articulated his claim as follows:
The grand jury indictment came off an illegal search warrant, illegal seized search
warrant. And if she would have pressed -- if she would of had me plead my
suppression hearing and my suppression motion that she filed that I ain’t know
9
about, and I would have won it, the indictment would have been suppressed and
then squashed.
12/11/12 Tr. (D. Knight) at 30:12-17. Thus, the Defendant’s claim regarding the indictment is
duplicative of his claim arising out of the motion to suppress filed by Ms. Bosworth and Ms.
Peterson. As set forth below, that claim is meritless. Ultimately Ms. Bosworth and Ms. Peterson
each indicated that in their professional opinions, there was no basis on which to attack the
validity of the indictment, and the Court agrees. Gov’t’s Ex. A (Bosworth Decl.) ¶ A; Peterson
Decl. ¶ A.
The Defendant faults his counsel for failing to challenge the lack of identification
evidence. The Defendant appeared to argue at the evidentiary hearing that this claim arises out
of the fact no one identified the Defendant as the individual who sold narcotics to the
confidential informant. 12/11/12 Tr. (D. Knight) at 28:15-16. Ms. Peterson and Ms. Bosworth
averred that they elected not to challenge this issue because the search warrant was not required
to identify the person who sold the narcotics to the confidential informant, and in any event
counsel challenged the vague statements in the search warrant regarding the controlled purchase
in the motions to suppress filed by counsel. Bosworth Decl. ¶ D(1)-(2); Peterson Decl. ¶ D(1)-
(2). Accordingly, counsel’s failure to challenge the lack of identification evidence from the
confidential informant did not fall below objective standards of reasonableness and thus did not
constitute constitutionally defective representation.
The Defendant further suggests that trial counsel erred by failing to review discovery
provided by the Government. Ms. Bosworth testified that she not only reviewed the discovery in
this matter, but she also went over the discovery materials with the Defendant. 12/11/12 Tr.
88:17-24. Likewise, Ms. Peterson averred that she and Ms. Bosworth reviewed all of the
discovery materials provided by the Government and went over those materials with the
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Defendant. Peterson Decl. ¶ B.
Elsewhere in his pleadings the Defendant contends his counsel was ineffective for failing
to challenge the fact that no drugs were recovered from the confidential informant. As the search
warrant indicates, police in fact recovered from the confidential informant a substance that field
tested positive for the presence of cocaine. See also Bosworth Decl. ¶ D(3) (averring “there was
no basis to make [the] argument” that no drugs were recovered from the confidential informant
because “the affidavit stated that the police recovered drugs from the CI that field-tested positive
for cocaine,” and counsel “was aware of no evidence to the contrary”). As set forth below,
defense counsel moved to suppress the search warrant on several grounds, including the lack of
specificity regarding the controlled purchase. Counsel’s failure to raise an argument that is
facially meritless does not constitute ineffective assistance of counsel. To the extent the
Defendant’s argument concerns the narcotics recovered from the search of the Defendant’s
apartment, the Government produced laboratory analysis to defense counsel, which was
reviewed with the Defendant and set forth in the statement of offense. Bosworth Decl. ¶ H;
Peterson Decl. ¶ H.
The Defendant further argues that his counsel was ineffective in failing to litigate the fact
that the Government did not provide a laboratory analysis of the weight and purity of the drugs
recovered from the confidential informant. The search warrant indicated the drugs received by
the confidential informant field-tested positive for the presence of cocaine. Ms. Bosworth and
Ms. Peterson concluded that, in their professional judgment, there was no basis for challenging
the lack of laboratory analysis because there is no requirement that the search warrant rely on
laboratory analysis. Bosworth Decl. ¶ D(1); Peterson Decl. ¶ D(1). The Defendant fails to
identify any legal relevance of laboratory analysis of the narcotics recovered from the
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confidential informant. Counsel’s decision not to challenge the lack of laboratory analysis was a
reasonable strategic decision and does not constitute ineffective assistance of counsel.
B. Search Warrant & Motion to Suppress
Most of Defendant’s allegations concern counsel’s strategy challenging the validity of the
search warrant and counsel’s conduct during the hearing on the Defendant’s motions to suppress.
The Defendant contends that his counsel erred in failing to argue that the police report gave
conflicting accounts of the color and/or appearance of the drugs recovered from the confidential
informant and from Defendant’s residence pursuant to the search warrant. Ms. Bosworth
explained that in her professional opinion, “this was not an issue to be raised during a motions
hearing, but rather, even assuming a relatively minor discrepancy of this type would be used at
all, it would be better utilized during a trial to attempt to impeach the police officer’s testimony
with the discrepancy in the police reports,” thus Ms. Bosworth “did not want to reveal this line of
questioning prior to trial.” Bosworth Decl. ¶ F; accord Peterson Decl. ¶ E. Defendant’s counsel
decision not to challenge the search warrant on this basis was a reasonable strategic decision,
particularly in light of the other grounds counsel raised for suppressing the search warrant.
Defendant next argues that his trial counsel’s performance was deficient because counsel
failed to move to suppress the search warrant on the grounds that the Defendant was not
specifically named in the search warrant. As Defendant’s own authority notes, a search warrant
need not name a specific individual, but rather must provide “‘a particular description of the
things to be seized.’” United States v. Maxwell, 920 F.2d 1028, 1031 (D.C. Cir. 1990) (quoting
Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971)). Ms. Bosworth and Ms. Peterson each
indicated that there was no legal basis to raise this argument because a search warrant does not
have to name the defendant, and the Defendant offers no authority to the contrary. Bosworth
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Decl. ¶ D(1); Peterson Decl. ¶ D(1).
Defendant further claims that his counsel should have challenged the lack of information
in the search warrant affidavit regarding when the controlled purchase from Defendant’s
apartment took place. Defendant’s counsel actually raised this argument in the motion to
suppress filed on the Defendant’s behalf. Def.’s Mot. to Suppress at 2 (“[A]n allegation of a
single sale at an unspecified time by an unspecified person up to three days prior to issuance of
the warrant does not establish probable cause to believe that there are narcotics presently in that
location.”). Likewise, the Defendant faults his counsel for failing to argue, when they in fact
argued to the Court, that the affidavit in support of the search warrant was insufficient because it
“allege[d] only a single buy,” and there was “no description of the individual who allegedly sold
the crack cocaine to the informant or nexus of that individual to 1420 Staples Street #3.” Id. at 3.
The remaining issues Defendant raised regarding the pretrial motion practice are too
vague and conclusory to raise any actual issue for the Court to resolve. The Defendant’s sixth
contention states only that his counsel “failed to argue against violation of Fourth Amendment
[r]ights.” A generalized allegation such as this cannot form the basis for relief, especially in light
of the fact Defendant’s counsel filed multiple motions challenging the admissibility of both the
physical evidence and Defendant’s own statements. Equally as vague, the Defendant suggests
his counsel failed to argue that false statements were “knowingly and intentionally” included in
the search warrant affidavit. Defendant simply asserts his counsel should have sought a Franks
hearing regarding the affidavit provided in support of the search warrant. “A defendant is
entitled to [a Franks] hearing only if his attack on the accuracy of the affidavit is ‘more than
conclusory’ and is accompanied by ‘allegations of deliberate falsehood or of reckless disregard
for the truth, and those allegations must be accompanied by an offer of proof.’” United States v.
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Gaston, 357 F.3d 77, 80 (D.C. Cir. 2004). The Defendant argued during the evidentiary hearing
that “[t]he false statement . . . in the affidavit is about the drug sale. I never sold to no CI.”
12/11/12 Tr. at 23:12-14. The Defendant also argues the police officer’s statement that he
observed the confidential informant exiting the Defendant’s apartment was false because the
police office could only have observed the confidential informant leaving the apartment building
as a whole. Id. at 23:12-18. With respect to the first issue, as previously indicated, the
Defendant’s counsel was not aware of any evidence contrary to the statement in the search
warrant affidavit that the confidential informant provided the police officer with narcotics
acquired during a controlled purchase from the Defendant’s apartment. Ms. Peterson and Ms.
Bosworth averred that in their professional judgment there was no basis for requesting a Franks
hearing. Bosworth Decl. ¶ G; Peterson Decl. ¶ G.
The Defendant further argues that the counsel failed to investigate the apartment subject
to the search warrant after being ordered to conduct an investigation by the Court. Defense
counsel disputes the Defendant’s contention that the Court ordered counsel to conduct an
investigation, but in any event aver that they utilized a defense investigator to investigate
whether there was any other access point to the attic, and that the investigator conducted an
investigation, including by taking measurements and pictures of the attic. Bosworth Decl. ¶ B;
Peterson Decl. ¶ B. The Defendant likewise argues without elaboration that his counsel failed to
call an important witness during the hearing regarding the Defendant’s motion to suppress. The
Defendant indicated that he gave the name of the alleged confidential informant to Ms.
Bosworth, but she declined to call the individual as a witness. 12/11/12 Tr. 28:21-29:10. Ms.
Bosworth and Mr. Peterson indicated that Mr. Knight did not provide counsel with the names of
any particular witnesses, but counsel nonetheless spoke with the Defendant’s girlfriend, and
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utilized their investigator to attempt to locate other witnesses who could be helpful to Mr.
Knight. Bosworth Decl. ¶ C; Peterson Decl. ¶ C. The Court credits this testimony. Moreover,
Defendant’s counsel indicated that because the evidentiary hearing had not yet concluded at the
time the Defendant elected to plead guilty, counsel had not made a final decision as to who might
testify during the hearing. Id. To the extent the Defendant challenges defense counsel’s decision
not to interview the police officers involved in the pre-trial investigation, Ms. Peterson and Ms.
Bosworth indicated that, using their professional judgment, counsel elected not to question the
police officers because (1) the discovery materials reflected the officers’ likely answers; and (2)
counsel did not want the prosecution to learn of the Defendant’s strategy. Bosworth Decl. ¶ C;
Peterson Decl. ¶ C. On this record, the Court finds counsel’s decision regarding what witnesses
to question and call during the evidentiary hearing was a reasonable strategic decision.
Along these same lines, the Defendant contends that his counsel failed to “argue
important facts” during the suppression hearing. Defendant never identifies the “important
facts” omitted by defense counsel, therefore the Court cannot find counsel’s performance on this
basis was deficient. Green, 680 F.2d at 190 n.12. Moreover, the hearing regarding the
Defendant’s motions to suppress was adjourned before defense counsel had an opportunity to
fully present its arguments, thus counsel cannot be faulted for its failure to raise any specific
arguments during the hearing. Bosworth Decl. ¶ D(1); Peterson Decl. ¶ D(1).
The Defendant also argues that counsel erred by failing to ask the Government to produce
a police report concerning the controlled purchase of narcotics by the confidential informant, and
for failing to challenge the Government’s failure to produce any such report. Ms. Peterson and
Ms. Bosworth indicated that, in their professional opinion, they did not have a sufficient basis for
filing a motion to compel the production of any such report because there was no indication the
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Government intended to call the confidential informant as a witness at trial. Bosworth Decl. ¶ F;
Peterson Decl. ¶ F. The Defendant offers no evidence or argument to the contrary. Therefore,
counsel’s failure to file a motion relating to the police report (or lack thereof) regarding the
controlled purchase did not constitute ineffective assistance of counsel.
Finally, in an “addendum” to his initial motion the Defendant asserts that counsel erred in
failing to advise Defendant that the Court had granted the motion to suppress on May 21, 2007.
The Court did not issue a ruling on the motion to suppress. 6/27/12 Tr. at 8:18-25.
C. Plea Negotiations
With respect to the plea negotiations in this case, the Defendant alleges that his counsel
admitted on the record that she could have but did not obtain a more favorable plea offer for the
Defendant. There is no support in the record for this accusation. During the sentencing hearing,
Ms. Bosworth stated she was not aware the Government would seek a sentence at the high end of
the guidelines range. 11/15/2007 Tr. at 6:9-19. This statement does not provide any indication
that Defendant’s counsel could have obtained or that the Government would have agreed to a
more favorable plea agreement. Moreover, the record indicates Defendant’s counsel attempted
to negotiate a different approach to a plea agreement than initially offered by the Government
(although the Court is not aware of which approach the parties eventually took). 6/21/2007 Tr. at
4:11-18. Ms. Bosworth denied making any statement to the effect that she could have secured a
more favorable plea agreement. Bosworth Decl. ¶ I. To the contrary, Ms. Bosworth indicated
that the plea offer ultimately accepted by the Defendant was the best offer the Government made,
and she did not believe that counsel could have obtained any more favorable terms for a plea
agreement. Id.; accord Peterson Decl. ¶ I. Counsel’s performance as to the plea negotiations in
this respect was not deficient.
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The Defendant also argues that Ms. Bosworth and Ms. Peterson coerced Defendant into
accepting the plea offer before the Court issued a decision on Defendant’s motion to suppress.
Specifically, the Defendant claims that counsel (1) informed Defendant that if he proceeded to
trial and lost, he would face a mandatory life sentence; and (2) informed Defendant that if
Defendant succeeded with the motion to suppress, the Government would simply re-indict
Defendant for conspiracy to sell narcotics for the controlled purchase. Ms. Bosworth and Ms.
Peterson indicated that they discussed the pros and cons of a guilty plea with the Defendant, but
prior to June 21, 2007, the Defendant indicated he was not interested in pleading guilty.
Bosworth Decl. ¶ J; Peterson Decl. ¶ J. Ms. Bosworth and Ms. Peterson indicated that on his
own accord, prior to the resumption of the motions hearing on June 21, the Defendant, on his
own initiative, indicated that he wanted to plead guilty. Id. Defense counsel thus negotiated a
plea agreement with the prosecution. Id. Neither Ms. Bosworth nor Ms. Peterson ever
represented to the Defendant that he would face a life sentence if convicted at trial. Id. In fact,
prior to the plea hearing, Ms. Bosworth asked the United States Probation Office to conduct a
criminal history calculation for the Defendant, which determined that Defendant Knight fell
within Criminal History category II, and was not considered a career offender. Id. Furthermore,
neither counsel claimed that the Defendant would be re-indicted for conspiracy if the Court ruled
in the Defendant’s favor on the pending motions to suppress. Id. The Court finds that trial
counsel did not coerce the Defendant into pleading guilty.
D. Sentencing
Defendant also takes issue with several aspects of his counsel’s performance during
sentencing. The Defendant first claims his counsel’s performance during the sentencing
proceedings was deficient because counsel failed to challenge the fact that no drugs were
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recovered from the confidential informant. The Defendant contends that absent drugs being
recovered from the confidential informant, at sentencing the Court could not hold the Defendant
accountable for a specific amount of narcotics. This argument is unpersuasive for two reasons.
First, the record indicates MPD did recover narcotics from the confidential informant after the
controlled purchase, and defense counsel had no evidence to the contrary. See, e.g., Gov’t Ex. K
at 2 (noting the substance recovered from the confidential informant tested positive in the field
for cocaine). Second, the premise of Defendant’s argument is false: Defendant was sentenced
based on the amount of cocaine base recovered in his apartment, which Defendant stipulated to
in the plea agreement, not the drugs recovered from the confidential informant. Plea Agreement,
ECF No. [37], at 1. Counsel’s performance on this issue was not deficient.
The Defendant also contends that his defense counsel should have contested the
application of the ten-year mandatory minimum to his case. Pursuant to the plea agreement,
Defendant pled guilty to Count One of the indictment, unlawful possession with intent to
distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A)(iii), and Count Four, unlawful possession of a firearm and ammunition by a person
convicted of crime punishable by imprisonment for a term exceeding one year, in violation of 18
U.S.C. 922(g)(1). At the time of Defendant’s sentencing, section 841(b)(1)(A)(iii) provided for a
ten-year mandatory minimum for unlawful possession with intent to distribute “50 grams o more
of a mixture or substance . . . which contains cocaine base.” Defendant acknowledged the
mandatory minimum in the plea agreement, and several times before the Court accepted
Defendant’s guilty plea, Ex. E at 27:27:17-28:6; 28:12-29:12; 34:17-22. Prior to the plea
hearing, the defense counsel advised the Defendant that the offense to which he was going to
plead guilty carried a ten-year mandatory minimum. Bosworth Decl. ¶ K.
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The Defendant also takes issue with his counsel’s purported failure to dispute the three
point enhancement applied to the sentencing guidelines range in light of Defendant’s prior felony
conviction. On July 8, 1997, Defendant plead guilty to one count of conspiracy in violation of
18 U.S.C. § 371, threats in violation of 22 D.C. Code § 504(a), and assaulting, resisting, or
impeding certain officers or employee in violation of 18 U.S.C. § 111(a)(1). Gov’t Ex. N,
(7/8/1997 Judgment in a Criminal Case, Case No. 96-cr-202), at 1. Judge Emmet G. Sullivan
sentenced Defendant to a total of seventy-two months imprisonment. Id. at 2. In this case, the
Court ruled prior to the motions hearing that the Government could impeach Defendant with his
prior conviction for the conspiracy count, but not the threats or assault counts. 6/18/2007 Order,
ECF No. [25]. Defense counsel had no basis in law or fact to challenge the guidelines
calculation of Defendant’s criminal history, and thus counsel was not ineffective on this ground.
Bosworth Decl. ¶ L.
E. Appeal
The Defendant’s final claim with respect to his trial counsel is that defense counsel failed
to file a notice of appeal despite the Defendant’s request. The record indicates that on December
10, 2007, Defendant’s counsel filed a [50] Notice of Appeal on his behalf. Nearly two years
later, Defendant’s appellate counsel, Mitchell Seltzer, filed a Motion for Voluntary Dismissal of
Appeal. Gov’t Ex. I at 1-2. In support of that motion, Defendant submitted a declaration
avowing under penalty of perjury that he “[had] decided that it is in my best interest to dismiss
the appeal at this time.” Gov’t’s Ex. I (Def.’s Decl. in Support of Voluntary Dismissal) at 4.
The Defendant claims that Mr. Seltzer coerced the Defendant into withdrawing his appeal by
telling the Defendant that his appeal would not be successful. Mr. Seltzer reviewed the Rule 11
plea colloquy, the terms of the Defendant’s sentence, and employed an investigator to determine
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whether there was any other access to the attic. 12/11/12 Tr. 162:20-163:23. Mr. Seltzer spoke
with the Defendant, and discussed the pros and cons of raising ineffective assistance of counsel
claims in the context of a direct appeal as compared to a motion to vacate. Id. at 164:1-22. The
Defendant ultimately agreed that it would be advisable to pursue such claims in the context of a
motion to vacate. Id. Mr. Seltzer discussed the issue over the phone and in-person with the
Defendant. Id. at 165:20-167-3. Mr. Seltzer and the Defendant discussed the arguments the
Defendant waived during his guilty plea, and the likelihood the Defendant would receive a
hearing. Id. At the conclusion of their discussions, the Defendant “didn’t really hesitate” in
signing the affidavit in support of his motion to dismiss his appeal. Id. Mr. Seltzer did not
coerce the Defendant into dismissing his appeal.
IV. CONCLUSION
For the foregoing reasons, despite a litany of purported errors by his trial and appellate
counsel, the Court finds no reason to set aside the Defendant’s guilty plea and sentence.
Accordingly, the Defendant’s [84] Motion to Amend Motion to Vacate Under 28 U.S.C. § 2255is GRANTED, the Defendant’s [85] Motion for an Evidentiary Hearing is DENIED AS MOOT,
and the Defendant’s [77] Motion to Vacate Under 28 U.S.C. § 2255 is DENIED. An appropriate
Order accompanies this Memorandum Opinion.
/s/
COLLEEN KOLLAR-KOTELLY
UNITED STATES DISTRICT JUDGE
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