404 U.S.
257, 263 (1970) (Douglas, J., concurring) for the proposition that
[t]he staff of the prosecution is a unit and each member must be presumed to
know the commitments made by any other member. lf responsibility could be
evaded that way, the prosecution would have designed another deceptive
‘contrivance,’ akin to those we condemned in Mooney v. Holohan,
294 U.S. 103
[(1935)], and Napue v. lllinois,
360 U.S. 264 [(1959)].
Def.’s Reply at 2. The defendant also cites Ruiz v. Cady,
507 F. Supp. 50, 51 (E.D. Wis. 1981),
where the district court entered a default judgment in favor of the petitioner on a habeas corpus
petition because of "[t]he attorney general's practice of routinely delaying habeas corpus
proceedings [was deemed] particularly reprehensible in light of the fundamental purpose of [the
writ of habeas corpus.]"
These cases are inapposite. In Santobello, a promise made during a plea agreement
negotiation was breached at the defendant’s sentencing hearing by "another prosecutor [who]
had replaced the prosecutor who had negotiated the plea." 404 U.S. at 259. The Supreme Court
remanded the case to the district court for further proceedings because "a constant factor [of plea
agreements] is that when a plea rests in any significant degree on a promise or agreement of the
prosecutor, so that it can be said to be part of the inducement or consideration, such promise
must be fulfilled." Ld. at 261. ln _l\¢o@v, the State prosecutor had obtained the defendant’s
conviction in violation of the Due Process Clause through the "deliberate deception of [the] court
and jury by [the] presentation of testimony known to be perjured." 294 U.S. at 1 12. &pu_e, too,
involved the knowing introduction by a prosecutor of perjured testimony by a key prosecution
witness. 360 U.S. at 267. Here, the delay caused by the unfortunate inadvertence of the United
States Attorney’s Office did not result in the unconstitutional conviction of the defendant, nor
was the defendant induced into bargaining away his freedom for a promise that was thereafter
broken by the government The circumstances here simply do not rise to the level of the
"contrivances" at issue in Santobello, l\/Iooney or Napue.
l\/Ioreover, even if the inadvertent failure to file a timely response by the government
could be said to be indicative ofa "[general] practice of routinely delaying habeas corpus
proceedings," Buiz_, 507 F. Supp. at 51. the Court would still refuse to grant the defendant``s
motion based on such a transgression. In Riiz, the district Court’s entry of a default judgment in
favor of the petitioner was promptly reversed by the Seventh Circuit, Ruiz v. Cady,
660 F.2d
337, 338 (7th Cir. 1981). The circuit court noted that "[w]here the respondent is guilty of long
and inadequately explained delays, it may be presumed that the petitioner is being illegally
confined[;] . . . [however,] a relatively short delay, certainly of some consequence if the
petitioner has been wrongly confined, does not, in our opinion, rise to the level ofa due process
violation." I;d. at 340, 34l. Similarly, no due process violation was occasioned here by the
government’s delay. lndeed, the purpose of Rule 59(e) is to p_rlt manifest injustice and it is
difficult to see how a relatively short, although inexcusable, delay should be the basis for
imposing significant costs on the general public by vacating a criminal conviction. Although the
Court sympathizes with the defendant’s position, and does not in any way condone the
regrettable actions of the government, the Court is satisfied that the interests of justice and the
purpose of Rule 59(e) support its decision to deny the defendant’s motions to vacate, amend, or
alter its February 19, 2008 Order and for summary judgment.
B. The Defendant’s Motion to Vacate His Conviction Pursuant to 28 U.S.C. § 2255
The defendant's current substantive challenge to his conviction and sentence is made
pursuant to 28 U.S.C. § 2255 , which permits a prisoner under sentence of a federal court to
"move the court which imposed the sentence to vacate, set aside, or correct the sentence[,]" on
the grounds 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. Under § 2255, the reviewing court, ifit
finds that the judgment was rendered without jurisdiction, or that the sentence
imposed was not authorized by law or [is] otherwise open to collateral attack, or
that there has been such a denial or infringement of constitutional rights of the
prisoner as to render the judgment vulnerable to collateral attack . . . shall vacate
and set the judgment aside and shall discharge the prisoner or resentence him or
grant a new trial or correct the sentence as may appear appropriate.
Here, broadly, the defendant’s collateral attack is premised on three theories: (l)
ineffective assistance of counsel; (2) the Double Jeopardy Clause; and (3) the bias of this Court.
More precisely, the defendant alleges first that each of liis four lawyers were constitutionally
ineffective under Strickland v. Washington,
466 U.S. 668 (1984). He claims that trial counsel
J ames L. Lyons (l) failed to investigate and request a jury instruction regarding an entrapment
defense "as first requested and instructed" by the defendant, (2) put on an "unwarranted and
unnecessary defense" instead of simply resting after the government presented its case, and (3)
failed to raise a Double Jeopardy defense when the Court permitted the case to go to the jury
despite the Court’s ruling that the Government had not proved that the substance in question was
crack cocaine. Def.’s l\/Iem. at 4. He claims that appellate counsel Adam H. Kurland (l) failed
to raise the Double Jeopardy claim. (2) did not challenge the reasonableness of the defendant’s
sentence, (3) did not challenge the use of his prior conviction as a basis for classifying him as a
Career Offender, (4) did not request a rehearing en banc in order to challenge purported errors in
the District of Columbia Circuit’s opinion, and (5) failed to argue that trial counsel Lyoiis was
ineffective. l;d. at 4-5. As to re-sentencing counsel Cary Clennon, the defendant alleges
constitutionally ineffective assistance for his (l) failure to raise the errors purportedly made by
trial and appellate counsel, (2) failure to raise the Double Jeopardy claim, and (3) failure to
challenge use of the defendant’s prior conviction for possession of cocaine with intent to
distribute as a basis for classifying him as a Career Offender. Ld. at 5. Finally, the defendant
alleges that appellate counsel Gregory B. English (1) failed to challenge the reasonableness of
defendant’s sentence, (2) did not adequately consult with the defendant, and (3) failed to raise
the Double Jeopardy clairri. § at 5-6. The defendant also claims that his conviction was
obtained in violation of the Double Jeopardy Clause and that this Court was biased against him.
l_d. at 20-21, 35-36.
l. Ineffective Assistance of Counsel
To prevail on an ineffective assistance of counsel claim, a defendant must demonstrate
both deficient performance by his counsel and prejudice to him because of that deficient
performance. United States v. Williams, 488 F.3d l004, 1010 (D.C. Cir. 2007) (citing
Strickland 466 U.S. at 687). Counsel’s performance is deficient only where he "made errors so
serious that [he] was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment." Strickland, 466 U.S. at 687. In other words, counsel must provide only
"reasonably effective assistance." Ll_.; see also Massaro v. United States,
538 U.S. 500, 505
(2003) ("[A] defendant claiming ineffective counsel must show that counsel's actions were not
supported by a reasonable strategy . . . ."). When entertaining claims of ineffective assistance of
counsel, "[j]udicial scrutiny of counsel’s performance must be highly deferential," and courts
"must indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance." Strickland, 466 U.S. at 689. Prejudice occurs if there is a
"reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different." § at 694. A "reasonable probability is a probability sufficient to
undermine confidence in the outcome." § At bottom, the defendant faces a heavy burden in his
effort to establish that any of his lawyers were ineffective. And, while the defendant may seek
an evidentiary hearing to develop his claims, a court need not hold one where "the motions and
the files and the records of the case conclusively show that the prisoner is entitled to no relief."
28 U.S.C. § 2255(b).
a. Defendant’s Contention that His Attorneys Were Ineffective for Not Raising a
Double Jeopardy Claim, and that his Conviction itself was Obtained in Violation
of the Double Jeopardy Clause.
The defendant charges that all four of his attorneys were constitutionally ineffective for
failing to argue that his conviction violated the Double Jeopardy Clause. The defendant argues
that "once this [C]ourt acquitted him of [distribution of] crack cocaine[,] [t]hen legally that was
the end of the government’s case." Def.’s Reply at 7. Essentially, the defendant argues that the
Court’s mid-trial ruling on the sufficiency of the government’s evidence was a complete
judgment of acquittal, and that it was a Double Jeopardy Clause violation to send the question of
whether the defendant had distributed "cocaine base" to the jury. §
The government responds that "[h]ere, [the] defendant was convicted in a single trial,
was not tried for the same offense in a second trial after acquittal or conviction of the same
conduct in an earlier trial, and was not given multiple punishments for the same crime." Gov’t’s
Opp’n at 10. Thus, the Government argues that his attorneys were not ineffective because this
claim lacks merit as a matter of law. § (citing United States v. Brown, 449 F.3d l54, 159 (D.C,
Cir. 2006) (“Failure to raise a meritless claim is not evidence of ineffective assistance.")).
Although the government’s response is cursory and rests upon the overly simplistic view that the
Double Jeopardy Clause only applies to successive prosecutions in separate trials, it is correct
that the defendant’s claim is meritless as a matter of law.
The Double Jeopardy Clause "‘protects against a second prosecution for the same offense
after acquittal[, and] protects against a second prosecution for the same offense after
conviction."’ United States v. Ginyard, 511 F.3d 203, 207 (D.C. Cir. 2008) (quoting Brown v.
Li_o, 432 U.S. l6l, 165 (1977)). Contrary to the governnient’s claims, the Double Jeopardy
Clause applies to midtrial judgments of acquittal as well, at least where that acquittal was
"facially unqualified." Smith v. Massacusetts,
543 U.S. 462, 473. ln Yi, the trial court
granted the defendant’s mid-trial motion for acquittal based on insufficiency of the governinent’s
evidence. as the State had failed to introduce evidence regarding the barrel length of the gun the
defendant was charged with illegally possessing. § at 465. Nothing in the record indicated that
this judgment was not final or open to reconsideration. § at 471-72. After the defense
presented its case concerning the remaining two charges, the prosecution alerted the judge to
precedent holding that the victim’s previous testimony might be sufficient to establish the
unlawful firearm possession count. § at 465. The judge agreed and "announc[ed] orally that
she was ‘reversing’ her previous ruling and allowing the firearm-possession count to go to the
j ury.” § This procedure was held to violate the Double Jeopardy Clause, lest its guarantee "be
allowed to become a potential snare for those who reasonably rely upon it." § at 473. Thus,
the Government is incorrect that the Double Jeopardy Clause is not implicated where only a
single trial has taken place. § Gov’t’s Opp’n at 10.
The defendant’s reliance on Sm§ith is inisplaced, however. This Court’s mid-trial ruling
on the sufficiency of the government’s evidence was only a "partial judgment of acquittal."
Brisbane, 367 F.3d at 912, That is, this Court ruled that while the government had failed to
prove that the substance was crack cocaine, which is not defined in Section 841, the government
had offered sufficient evidence to support a guilty verdict for distribution of "cocaine base,"
rejecting the defendant's argument that "cocaine base" as used in Section 841 was intended to
sanction crack cocaine only. S_e_e 1/23/03 Tr. 155-56 ("lt would be my view that the language [in
the indictment], ‘crack cocaine,’ is really superfluous and really has no bearing on the issue of
what the government has to prove in order to establish the offense of the distribution of cocaine
base. . . . So 1 will deny the Motion for Judgment of Acquittal to the extent that it is asking that
the second count of the indictment be dismissed in its entirety."). Thus, this Court never
acquitted the defendant of either distribution of "cocaine base" or of Section 841(b)(1)(B)(iii)
more generally. Although the District of Columbia Circuit held (contrary to the holdings of a
number of other circuit courts)z that Section 841(b)(1)(B)(iii) deals with crack cocaine only, it
employed its authority under 28 U.S.C. § 2106 to "‘modify a criminal judgment to reduce the
conviction to that of a lesser included offense, where the evidence fails to support one element of
the crime of which appellant was charged and convicted but sufficiently sustains all the elements
of the included offense."’ Brisbane, 367 F.3d at 915 (quoting Austin v. United States, 382 F.2d
129, 142 (D.C. Cir. 1967)). Thus, the Double Jeopardy Clause was not violated by the
defendant’s conviction, and the defendant’s lawyers cannot be considered deficient for failing to
raise a double jeopardy obj ection.
2 S_ee United States v. Barbosa,
271 F.3d 438, 461-67 (3d Cir. 2001); United States v. Butler,
988 F.2d 537, 542-43
(5th Cir. l993); United States v. Jackson,
968 F.2d 158, 161-63 (2d Cir. 1992); United States v. Easter, 981 F.2d
1549. 1558 (l0th Cir. 1992).
12
b. Defendant’s remaining claims against trial counsel Lyons.
The defendant further contends that trial counsel Lyons was constitutionally ineffective
for failing to investigate and present an entrapment defensef and, alternatively, for presenting a
defense which permitted the government to fill the gaps in its case-in-chief. Def.’s Mem. at 11-
12, 17; see also Def.’s Mem. at 15 (stating that the "existing fact’s [sic.] were readily available to
raise the entrapment defense that was suggested and instructed to defense counsel to pursue. But
for whatever reason, defense counsel incompetently abandoned the issue [before trial]")." The
government responds with a number of arguments. First, it claims that "[t]he record in this case
conclusively established that this defense was not available to [the] defendant because he did not
admit to committing the crime[,]" but instead testified that he lacked the requisite intent to
distribute cocaine base. Gov’t’s Opp’n at 1 1. Further, the government argues that the record
also demonstrates that the defendant cannot show prejudice, because he could not have proven
inducement to committing the crime and would have been found predisposed to distribute
cocaine because of his prior criminal history. § at 13.
lt is impossible for the Court to hold that the existing record conclusively establishes that
Lyons’s trial preparation was constitutionally sound. "[C]ounsel's function, as elaborated in
prevailing professional norms, is to make the adversarial testing process work in the particular
case." Kimmelman v. Morrison,
477 U.S. 365, 384 (1987) (citation omitted). To fulfill this
constitutional mandate, "counsel must conduct some investigation into the prosecution’s case
and into various defense strategies." § at 384-385 (finding counsel’s reasons for conducting no
3 After the submission ofthe case to the jury, thejury submitted a question to this Court regarding whether it could
consider entrapment. The Court instructed the jury not to consider entrapment, as the defense had not been raised.
4 The Court construes this argument as encompassing both a claim that the evidence at trial was sufficient to merit a
jury instruction on the entrapment defense § a claim of deficient investigation leading to a failure to present the
defense.
13
discovery constitutionally infirm, because they were based not on any reasoned professional
judgment but on his misunderstanding of the law); see also Strickland, 466 U.S. at 691
("[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that
makes particular investigations unnecessary."). Of course, "a particular decision not to
investigate must be directly assessed for reasonableness in all the cii'cumstances, applying a
heavy measure of deference to counsel’s judgments." Strickland, 466 U.S. at 691.
Correspondence between the defendant and Lyons might or might not reflect a
misunderstanding of the right to present conflicting defenses. 1n an e-mail to the defendant,
Lyons states his reasons for declining to present an entrapment defense:
As you will recall, we discussed the entrapment defense on several occasions.
Entrapment is a defense where a defendant says "ves, 1 did the crime charged, but
1 didn’t want to and 1 was pressured into it by the government’s actions." 1n our
case, your position was that YOU D1D NOT COl\/IMIT THE OFFENSE
CHARGED (distribution and possession with intent to distribute). You [sic.]
purpose was not to actually sell any drugs, but to flim flam the prospective buyer
and get the money and run. Your position was simply not consistent with
entrapment. Your defense was 1 am not guilty because 1 did not intend to commit
the crime charged.
Gov’t``s Opp’n, Ex. 3 (E-mail Correspondence Between George Brisbane and James Lyons,
February 6, 2007) ("Lyons E-mail") (emphasis added and capitalization in original) at 1. To the
extent that Lyons was suggesting that it would be imprudent to pursue an entrapment defense
because such a defense was "simply not consistent with entrapment," thereby potentially
affecting the credibility of the defendant, then it would appear to the Court that Lyon’s strategic
assessment is a reasonable one that would be entitled to "a heavy measure of deference."
Strickland, 466 U.S. at 691. On the other hand, if Lyons was suggesting that the defendant’s
refusal to admit to the commission of the crime precluded him from relying on the entrapment
defense at trial,$ such an assessment of the legal ability to present the defense would have been
incorrect. When prosecuted for a federal crime, a defendant need not admit that he committed
the crime as a prerequisite to presenting an entrapment defense. _Se_e l\/Iathews v. United States,
485 U.S. 58, 59-60 (1988) (holding that "a defendant in a federal criminal prosecution who
denies commission of the crime may nonetheless have the jury instructed, where the evidence
warrants, on the affirmative defense of entrapment"); United States v. Glover,
153 F.3d 749, 754
(D.C. Cir. 1998) (discussing the district court’s denial of an entrapment instruction, noting that
the defendant "wanted an instruction that even if the jury found he did intend to distribute crack
(rather than soap), it should still acquit if it found the government had wrongfully induced him.
Assuming there were sufficient evidence of entrapment, [the defendant] was entitled to such an
instruction"). Lyons did interview Corbin Patterson, the government’s "special employee" who
allegedly induced the defendant to broker the drug transaction, and informed the defendant that
"[Patterson] ‘had nothing to say."’ Def.’s Mem. at 12. However, if this interview and other
related pre-trial investigation and trial-development decisions (such as not attempting to call
Patterson to the stand as an adverse witness, and not to develop testimony concerning the
pressure allegedly placed on the defendant by Patterson) were framed by trial counsel’s
misunderstanding of federal entrapment law, the Court cannot say at this juncture - the
government having submitted no supporting affidavits from the defendant’s counsel - that those
decisions were reasonable strategic decisions within "the wide range of professionally competent
assistance." Strickland, 466 U.S. at 690; see, e.g., Williams v. Tavlor,
529 U.S. 362, 395 (2000)
(noting that a decision based on a legal misunderstanding was not animated by "strategic
5 Indeed, the govemment asserts this very point in its opposition memorandum, stating that "[t]he record in this case
conclusively establishes that this defense was not available to defendant because he did not admit to committing the
crime." Gov’t’s Opp’n at 1 1-12. The government cites no authority for this proposition, instead relying only upon
the e-mail from Lyons quoted above. §
15
calculation"); Bullock v. Carver,
297 F.3d 1036, 1049 (l0th Cir. 2002) (citations omitted) ("An
attorney’s demonstrated ignorance of law directly relevant to a decision will eliminate
Strickland's presumption that the decision was objectively reasonable because it might have been
made for strategic purposes, and it will often prevent the government from claiming that the
attorney made an adequately informed strategic choice.").
Even if counsel’s performance was deficient, the defendant must still show prejudice in
order to be granted relief. § Strickland, 466 U.S. at 694 ("The 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."). An entrapment defense consists of two components:
"‘government inducement of the crime, and a lack of predisposition on the part of the defendant
to engage in the criminal conduct."’ United States v. Hanson, 339 F.3d 983, 988 (D.C. Cir.
2003) (quoting l\/lathews v. United States, 485 U.S. at 63). The defendant bears the burden of
showing government inducement; if he makes this showing, the burden shifts to the government
to establish that the defendant was predisposed to commit the charged crime. Hanson, 339 F.3d
at 988. Although "[b]oth inducement and predisposition are normally matters for the jury, . . . a
defendant only is entitled to an entrapment instruction when there is sufficient evidence from
which a reasonable jury could find entrapment." Ql_ov§er,153 F.3d at 754 (quotation marks and
citations omitted).
"When a government informant buys drugs from a defendant, the defendant can show
inducement by pointing to ‘evidence of reluctance’ to sell the drugs or the informant's use of
‘ persuasive overtures,’ beyond those ‘ordinarily present in a drug transaction."’ United States v.
Law,
528 F.3d 888, 905 (D.C. Cir. 2008) (quoting Glover, 153 F.3d at 754); see also United
16
States v. Sanchez,
88 F.3d 1243, 1249 (D.C. Cir. 1996) (noting that inducement includes
"persuasion, fraudulent representations, threats, coercive tactics, harassment, promises of reward,
or pleas based on need, sympathy . . . . A solicitation, request or approach by law enforcement
officials to engage in criminal activity, standing alone, is not an inducement"). The same is true
when the informant allegedly induces a defendant to sell drugs to an undercover officer. Once a
defendant shows the government induced him to break the law, "the prosecution must prove
beyond reasonable doubt that the defendant was disposed to commit the criminal act prior to first
being approached by [g]overnment agents." Jacobson v. United States,
503 U.S. 540, 549 (1992).
1n other words, the government must prove that any "predisposition was independent and not the
product of the attention that the [g]overnment had directed at" the defendant. § at 550 (holding
that no predisposition could be shown because "[b]y the time petitioner finally placed his order
[for child pomography], he had already been the target of 26 months of repeated mailings and
communications from Government agents and fictitious organizations").
1n a case such as this one, where a defendant claims that his attomey was ineffective for
failing to raise an entrapment defense, "the necessary corollary of Mathews is that the version of
the facts [the Court] must take as true for purposes of analyzing the validity of [a defendant’s]
entrapment defense is the one that supports that defense . . . , and not his alternative claim of
innocence" adduced at trial, because "[o]therwise, there would be no evidence of inducement,
and no crime into which the defendant had been induced And that would effectively deprive the
defendant of his right, under Mathews to assert inconsistent defenses." Glover, 153 F.3d at 753.
Thus, while there is certainly evidence in the record that would appear to prevent the defendant
from relying on an entrapment defense, see, e.g., Def.’s Mem. at 14 (testifying that it was he,
rather than the government, who "set up the deal in order to [allow him to] steal the informant’s
money), there are certain potential lines of inquiry regarding inducement that, although
undeveloped, give the Court pause, and which should be the focus of an evidentiary hearing (in
addition to determining whether Lyons’s investigation was deficient). For example, it is
undisputed that the government’s "special employee," Patterson, repeatedly contacted the
defendant over a period of seven months in an attempt to purchase drugs. The defendant alleges
that Patterson was aware of the defendant’s "plight of being financially pressed," § at 13, that
he shared a bond with Patterson based on their shared religious beliefs, 1/23/03 Tr. 72, and that
the defendant "was interested in getting hired by [Patterson’s] company as an apprentice,"
5/13/03 Tr. 41. Although the precise persuasive tactics used are not detailed, the defendant
claims that he rebuffed Patterson’s requests multiple times, § at 41 -43, that Patterson was
"pressuring me and pressuring me" over a period of seven months "about drugs, which 1 had no
involvement with," § at 42, and insinuates that Patterson would do anything to get this
transaction to occur because it would fulfill Patterson’s obligations with the government pursuant
to his “special emp1oyee" agreement, Def.’s Reply at 9.
Of course, these allegations alone are certainly insufficient to warrant the relief the
defendant seeks (a new trial). As the District of Columbia Circuit has made clear,
[w]hen a convicted defendant seeks to overturn a jury verdict based on inadequate
investigation by counsel, courts should insist that the defendant show to the extent
possible precisely what information would have been discovered through further
investigation. Any other rule would give defendants an incentive to present as
little evidence as is necessary to create some doubt, even when disclosure of more
facts would make clear that further investigation by trial counsel would not have
created a reasonable probability of a different outcome. Although defendants are
entitled to the benefit of reasonable doubt at trial, an appellate court should not
overturn a conviction simply because the defendant has teasingly suggested that
there may be facts out there that his trial counsel could have discovered and that
would have helped his case. 1f any such facts exist, the defendant must identify
them.
United States v. Askew, 88. F.3d 1065, 1073 (D.C. Cir. 1996). However, those lines ofinquiry
identified by the Court above could possibly push the defendant over the threshold necessary to
obtain a new trial, and an evidentiary hearing is necessary to provide the defendant with the
opportunity to develop these facts. Indeed, district courts facing similar allegations have held
evidentiary hearings to determine the reasonableness of trial counsel’s decision to forego an
entrapment defense and to inquire into the defendant’s allegations of entrapment. §§ Smith v.
United States,
522 F. Supp. 2d 233, 23 8-39 (D.D.C. 2007) (determining after evidentiary hearing
that defense counsel’s failure to raise entrapment defense in prosecution for drug and weapons
offenses was not deficient performance supporting claim of ineffective assistance of counsel
under § 2255, where counsel indicated that, in her professional judgment, the facts of the case
did not support an entrapment defense, and the government proffered evidence that the defendant
flagged down the undercover officer on his own to solicit a drug transaction suggested that the
defendant was willing to engage in criminal activity and, in fact, initiated it); §glg Qn_i;e§
States v. Gwyn,
481 F.3d 849, 855 (D.C. Cir. 2007) (affirming district court’s judgment, made
after evidentiary hearing, that "[b]ecause [defendant] Gwyn failed to identify any evidence or
theory of defense helpful to his cause . . . he ha[d] failed to meet []his burden" of showing
deficient investigation); Capps v. Sullivan,
921 F.2d 260, 263 (l0th Cir. 1990) (affirming district
court’s grant of a new trial for failure to raise entrapment defense where counsel put the
defendant on the stand to admit all allegations of the crime, and failed to raise an entrapment
defense where evidence suggested it, instead opting to pursue a jury nullification strategy; noting
that district court held an evidentiary hearing where testimony was presented by "the attorney
who tried the case, [the] police informant . . . who induced [the petitioner] to participate in the
19
heroin transaction, and [by the petitioner] himself"). Accordingly, the defendant is entitled to an
evidentiary hearing based on the record now before the Court.
To be sure, the Court need not hold an evidentiary hearing if the record establishes
beyond a reasonable doubt that the defendant was predisposed to committing the crime. The
government contends that there was "evidence [at trial] of [the] defendant discussing additional
drug transactions," and that the defendant’s conviction in 1984 for distribution of 310 worth of
cocaine serves as additional evidence of predisposition. Gov’t’s Opp’n at 13. Unfortunately for
the government, these assertions alone are not necessarily sufficient to establish predisposition
on the part of the defendant. First, the evidence that the defendant engaged in discussions
concerning future drug transactions was contested at trial, compare 1/24/03 Tr. 33 (the defendant
testified that after the drugs changed hands between the seller and purchaser, he "really paid no
attention to [what they said about future deals] . . . They talked 1 paid no attention to it."), §
1/27/03 Tr. 27 (government counsel arguing in closing statement that the defendant "does join in
the conversation" about future deals and assents at least implicitly to being a future go-between),
and there is no evidence or allegation that the defendant participated in any drug-related activity
after the single transaction in question which occurred many years earlier Moreover, the
predisposition inquiry focuses on the defendant’s predisposition independent of any government
inducement; thus, "[t]he government may attempt to prove disposition by introducing evidence
of the defendant's actions after a government agent approached him, but under Jacobson [that
evidence of] predisposition does not count if it is itself the product of improper government
conduct." United States v. Vaughn,
80 F.3d 549, 552 (D.C. Cir. 1996) (quotation marks and
citation omitted).
20
As for the government’s reliance on the defendant’s prior conviction for distribution of
illegal drugs, it certainly is far from clear that the defendant’s single prior drug conviction almost
twenty years earlier and contested statements about unrealized future transactions are sufficient
to establish predisposition as a matter of law. Indeed, the defendant alleges in his briefs and
presented testimony at sentencing that notwithstanding that prior conviction, prior to the seven
¢C
months of alleged pressure placed on him by the government’s special employee," he had
reformed himself, and thus was not predisposed to distributing narcotics. § Def.’s Mem. at 14
(al1eging a lack of predisposition); Def.’s Reply at 9 ("Common sense would indicate to any
prudent person that a drug dealer does not need 7 months to sell one ounce of drugs."); 5/13/03
Tr. 44 ("[B]asically, 1 have given up the street life nearly 20 years ago anyway. . . . All 1 had in
mind was just working and trying to be a good father to my kids . . . . 1 possessed no desires then,
nor do 1 do now, to involve myself in a criminal element, at all. None."). 1f credited by the jury,
this testimony (backed up by evidence of strong, consistent performance by the defendant at his
job, § 1/24/03 Tr. 83-87), might be sufficient to rebut the government’s case for predisposition
1n the words of the District of Columbia Circuit,
Jacobson allows a jury to consider the possibility that a defendant's disposition to
commit a crime changed over time. Sinners may become saints and saints may
beeeme Siimere. Nothing is neeeeeeriiy permanent ebeut either etere. A persen
might be disposed to commit a crime one day and not disposed to do so some time
later.
§g@, 80 F.3d at 552 (citing Sherman v. United States, 356 U.S. 369, 375-376 (1958)). Given
the defendant’s allegations and the less than overwhelming evidence of predisposition (so far)
proffered by the government, the Court cannot say that the record establishes a "reasonable
probability" that the defendant was predisposed to distribute cocaine. Strickland, 466 U.S. at
694; compare Vaughn, 80 F.3d at 552 (discussing with approval jury verdict that the defendant
21
had been entrapped, where he "acknowledged [at trial] that he ‘indulged’ in the ‘sale of cocaine’
before or during 1991 but that he was no longer ‘into that’ in 1992"), w§ §§, 339 F.3d at
989 (holding that the defendant could not show prejudice sufficient to withdraw a guilty plea,
"because the government had extremely strong evidence of [defendant’s] predisposition to
commit the drug deal. During the preceding six years, [the defendant] had been arrested on
narcotics charges multiple times and was twice convicted of possession with intent to
distribute."). Thus, the Court finds that an evidentiary hearing on the entrapment issue is
warranted.
Finally, and starkly contrary to his entrapment claim, the defendant argues that Lyons
simply should have rested after the government presented its case and not presented any defense
at all, because doing so allowed the government to fill in the gaps of its case-in-chief. Def.’s
Mem at 4. This argument merits only brief discussion. Quite aside from the fact that the
defendant does not point to any gaps in the government’s case that were filled in as a result of
the presentation of his defense, the Court had already determined that the government’s evidence
was sufficient to go to the jury, as the undisputed evidence showed that the defendant had
brokered a cocaine transaction, and the defendant himself insisted that he be allowed to present
his side of the story to the jury. § Opp’n Ex. 3. Failure to present a defense would surely have
led to immediate conviction, thus negating any claim of prejudice; indeed such a strategy, given
the circumstances, very likely would have produced a viable claim for ineffective assistance of
counsel. C_f. United States ex rel Barnard v. Lane,
819 F.2d 798, 804-805 (7th Cir. 1987)
(affirming grant of writ of habeas corpus based on ineffective assistance of counsel, where
testimony had already established that defendant had committed the elements of the crime
charged, noting that "[t]he spectrum of counsel's legitimate tactical choices does not include
22
abandoning a client's only defense in the hope that a jury's sympathy will cause them to misapply
or ignore the law they have sworn to follow").
Thus, the Court determines that the record, briefs, and documents before it conclusively
demonstrate that in all regards except the alleged failure to investigate and present an entrapment
defense, the representation by trial counsel Lyons was constitutionally sound. Regarding the
entrapment issue, the Court will hold an evidentiary hearing to determine (l) trial counsel
Lyons’s reasons for foregoing an entrapment defense, and (2) whether the defendant’s
allegations rise to the level of inducement sufficient to present an entrapment defense.
c. Defendant’s claims against appellate counsels Kurland and English regarding
their decisions to forego particular sentencing claims on appeal.
The defendant claims that both Kurland and English were constitutionally ineffective for
failing to challenge the reasonableness of his sentence on appeal. § Def.’s Mem. at 28, 41.
The defendant also claims that Kurland was constitutionally deficient for failing to challenge the
use of his prior drug conviction as a basis for classifying him as a career offender. § at 4.
The defendant’s first claim against Kurland here merits only summary treatment, as there
clearly can be no prejudice to the defendant from the decision of Kurland not to challenge the
reasonableness of the defendant’s sentence on direct appeal. On appeal, Kurland succeeding in
having the defendant’s conviction and sentence vacated. The District of Columbia Circuit then
remanded the case for resentencing under a different (but lesser included) offense. Brisbane, 367
F.3d at 915. Thus, it is highly unlikely that the Circuit would have addressed this claim had it
been presented, as the issue was mooted by Kurland’s successful representation on a broader
issue. l\/Ioreover, at the time of the defendant’s first sentencing and first direct appeal, the
Sentencing Guidelines were mandatory, and any "reasonableness challenge" to a guideline-range
sentence (such as that given the defendant) would have been meritless at best, or frivolous at
23
worst. Thus, there clearly is no "reasonable probability" that the outcome of the defendant’s
appeal, or the length of the defendant’s sentence, "would have been different" had appellate
counsel Kurland argued the reasonableness of his sentence on direct appeal. Strickland, 466 U.S.
at 694.
Regarding English, the defendant argues that a "reasonableness" challenge to his
sentence was viable because it was "truly disparait [sic.] to other sentences received in this same
[District of Columbial Federal Courthouse." Def.``s Reply at 15 (citing United States v. Foster,
02-cr-396, at *7, Sentencing Memorandum of October 25, 2005) (sentencing defendant to 12
years (144 months) in prison for distribution of cocaine base, notwithstanding his career offender
status and guideline range of up to 262 months, because "his small-time drug dealing is
prompted by addiction and not the pursuit of pure monetary gain. . . . . [He] did not intend to
prey upon the community but only to feed his habit"). Further, the defendant argues that this
Court’s sentence was not appropriate given his particular background and remorse. § Def.’s
Mem. at 28-31. The government responds that although English represented the defendant after
the Supreme Court’s decision in United States v. Booker,
543 U.S. 220 (2005), "[g]iven the
circumstances of the case and defendant’s long criminal history, counsel certainly did not
diverge from the wide range of professional assistance . . . in deciding not to challenge the
reasonableness of the defendant’s within-the-Guidelines sentence on appeal." Gov’t’s Opp’n at
20 (internal citation and quotation marks omitted).
1n challenging the decision of an appellate attorney to forego a particular issue on appeal
where others were presented, 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
24
counsel did present." Smith v. Robbins,
528 U.S. 259, 288 (2000). 1n the words ofthe Supreme
Court:
1n Jones v. Bames
463 U.S. 745 (1983), we held that 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. Notwithstanding Barnes it is still possible to bring a Strickland claim
based on counsel’s failure to raise a particular claim, but it is difficult to
demonstrate that counsel was incompetent. See, e.g., Gray v. Greer,
800 F.2d
644, 646 (7th Cir. 1986) ("Generally, only when ignored issues are clearly
stronger than those presented, will the presumption of effective assistance of
counsel be overcome").
§ According to one district court, "[c]hallenges on appeal to the reasonableness of a sentence
are the norm ever since [E], so it is perhaps somewhat surprising that [defendant’s]
appellate counsel did not make the argument." United States v. Redmond, Civil Action No. 09-
2971, 2009 WL 3671l53, at *3 (N.D. Ill. Oct. 29, 2009). 1n any event, English, in consultation
with the defendant, Kurland and Clennon, determined that
there is no way to attack Judge Walton for abusing his discretion. He imposed a
sentence within in [sic.] the guidelines so it is presumptively reasonable. . . Your
sufficiency of the evidence [and § 851 notice] argument[s] [are] good one[s], and
you do not want to screw [them] up by arguing stuff that is crap.
Def.’s Reply, Exhibit 2, Correspondence Between Defendant George Brisbane and Appellate
Counsel Gregory English, September 22, 2005 and October 28, 2005 ("Ex. 2"); _se_eals_o §
States v. Dorcely, 454 F.3d 366, 376 (D.C. Cir. 2006) ("[A] sentence within a properly
calculated Guidelines range is entitled to a rebuttable presumption of reasonab1eness."). There is
no contention that this Court miscalculated the Guideline range appropriate for the defendant,
given his Career Offender status.(’ And, given the defendant’s long criminal history, which
6 The defendant does argue that he was improperly categorized as a Career Offender because "under 28 U.S.C. §
994(1)(5), the framers ofthe U.S. Senetncing [sic.] Guidelines did not intent [sic.] for a local/state $-10.00 [sic.] sale
of powder cocaine in the amount of one-tenth of a gram to be used as a predicate enhancement for career criminal
designation at U.S.S.G. § 4B1.1[.]" Def.’s Mem at 26. A failure by both appellate counsel Kurland and
resentencing counsel Clennon to challenge this supposedly incorrect categorization, he argues, made their
25
includes (but is not limited to) past convictions for distribution of cocaine and assault with intent
to l2009 WL 3671153, at *3 (finding no prejudice
from counsel’s failure to challenge reasonableness of sentence post-B_ogk_eg). Thus, the Court
determines that the defendant has not met his burden of showing that a reasonableness challenge
was "clearly stronger" than the complex constitutional and sentencing claims that appellate
counsel English did pursue. §§ 528 U.S. at 288. l\/loreover, even if he had made such a
showing, the defendant is unable to show prejudice, that is, a reasonable probability that his
sentence would be different had the challenge been made. Strickland, 466 U.S. at 694.
Thus, each of the defendant’s claims against Kurland, English, and Clennon, regarding
the decisions to forego challenges to the defendant’s sentence and the defendant’s classification
as a Career Offender, are conclusively without merit.
representation constitutionally deficient §ep Def.’s l\/Iem. at 4, 26-27. This argument fails. Not only did
resentencing attorney Clennon (and the defendant himself) actually challenge the propriety of using the defendant’s
1984 cocaine distribution conviction as a basis for making him a Career Offender, s_@ 5/25/05 Tr. 35-40, 54-55, but
U.S.S.G. § 4Bl.l(a) clearly states:
A defendant is a career criminal offender if(1) the defendant was at least eighteen years old at the
time the defendant committed the instant offense of conviction; (2) the instant offense of
conviction is a felony that is either a crime of violence or a controlled substance offense; and (3)
the defendant has at least two prior felony convictions of either a crime of violence or a controlled
substance offense.
This provision plainly applies to the defendant. lt is uncontested that the defendant’s 1984 conviction for
distribution of cocaine was a felony committed after his eighteenth birthday And given the defendant’s 1984
conviction for assault with intent to kill, there simply is no legal basis to challenge the Court’s determination that he
is a Career Offender. Thus, the defendant’s claim in this regard against Kurland and Clennon must fail due to his
inability to demonstrate prejudice, and there is no remaining dispute regarding whether the defendant’s Guideline
range was properly calculated
26
d. The defendant’s claim that appellate counsel Kurland was ineffective for failing
to request gp banc review.
The defendant claims that Kurland was constitutionally ineffective for failing to file for
g banc review "after being instructed to do [so] by" the defendant. Def.’s l\/lem. at 41. The
defendant states that Kurland should have petitioned for en banc review based on the "myriad of
constitutional violations" committed by the District of Columbia Circuit panel that decided his
direct appeal, allegations that amount to a claim that the circuit court’s use of 28 U.S.C. § 2106
to order his conviction for cocaine distribution as a lesser included offense was unconstitutional
§e_:e_ § This claim is utterly without merit.
First, "[a]n en banc hearing or rehearing is not favored and ordinarily will not be ordered"
except to ensure uniformity within the circuit or where "the proceeding involves a question of
substantial importance." Fed. R. App. P. 35(a). The defendant has not alleged or even alluded to
any intra-circuit split or any circumstances that make his claim worthy of _ep § review. §;
§ Def.’s Mem. at 41. Nor does the defendant cite to any authority supporting the proposition
that a failure to petition for rehearing g papg is grounds for postconviction relief on the basis of
ineffective assistance of counsel. 1n addition to an inability to show that Kurland was deficient
in not seeking g § review, the defendant cannot demonstrate prejudice, as the claim on
which he argues such review should have been sought - that it was improper for the Court of
Appeals to instruct this court to enter a judgment of conviction against the defendant for a lesser
included offense that was not requested in the indictment or argued to the jury - was presented at
resentencing, on appeal from the resentencing, and to the Supreme Court in the form of a second
petition for certiorari, and was rejected on each occasion. § 5/25/05 Tr. 7-23; Def.’s Mem.
Exhibit C, Reply Brief by Attorney English; Brisbane v. U.S.,
549 U.S. 943 (2006). Considering
these rejections and the distinct probability (if not absolute certainty) that a rehearing would have
27
been denied, there is no "reasonable probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different" had appellate counsel Kurland requested g
banc review. Strickland, 466 U.S. at 694.
e. The Defendant’s contentions that Kurland and Clennon were constitutionally
ineffective for failing to raise the constitutional ineffectiveness of their predecessors.
The defendant argues that both Kurland and Clennon were constitutionally ineffective for
failing to raise the purported constitutional ineffectiveness of lawyers who had handled earlier
phases of the defendant’s case. This argument is premised on the proposition that Kurland
should have raised on direct appeal the constitutional ineffectiveness of Lyons, and Clennon
should have raised the ineffectiveness of both Kurland and Lyons during resentencing §
Def``s Mem. at 5 . These claims are without merit. Even if the Court were to determine that any
of the actions of the defendant’s dedicated lawyers were constitutionally deficient, the petitioner
was not prejudiced by a failure to raise an ineffectiveness claim on direct appeal or during
sentencing, because those claims remain open to him on collateral attack, as evidenced by the
petition that is the subject of this opinion.
f. The Defendant’s remaining claim that English did not adequately consult with
him.
The defendant claims that "[b]ecause appellate counsel Gregory English intentionally
failed to consult with [him] prior to preparing his direct appeal, in order to discuss the above
[sentencing] issues and facts . . ., he was not functioning as the counsel [required] by the Sixth
Amendment." Pet.’s Mot. at 36. The government responds that the defendant’s own pleadings
belie this claim, pointing to a significant amount of correspondence between English and the
defendant, see Def.’s Mem., Exhibit C ("English Correspondence"), and further contends that the
defendant cannot show prejudice because the sentencing claims lack legal merit. Gov’t’s Opp’n
at 20-2 l. Both the defendant and the government have submitted a great deal of correspondence
between the defendant and English that conclusively demonstrates that significant, substantive
consultations did take place between them (a@ between English and the defendant’s previous
attorneys) before English filed the defendant’s appeal. §§ Pet.’s Mem., Ex. C (English
Correspondence) ( seven letters to defendant from English discussing substantive bases for
appellate review); Def.’s Reply, Ex. 2. l\/Ioreover, as discussed above, the defendant cannot
show prejudice from English’s decision to forego raising the sentencing issues the defendant
now claims he wanted raised on appeal. § supra Part 11.B.1.b. Thus, this final claim of
ineffective assistance of counsel against English also lacks merit.
2. The Defendant’s Remaining Claim that the Court Was Biased Against Him.
Finally, the defendant argues that the Court was biased against him and failed to properly
consider mitigating factors when it resentenced him. Specifically, the defendant baldly states
that this Court
stated [at the defendant``s first sentencing] that if it weren’t for the mandatory imposition
of the guidelines, the court would have sentenced this petitioner nowhere near 30 years. .
. . At petitioners [sic.] 2d sentencing hearing on May 25, 2005, this court took a
completely different position irrespective of Booker (2005)[,] [a]nd all petitioner"s
positive post-rehabilitative achievements and accomplishments, albeit, while petitioner
had to indure [sic.] severe hardships, while confined[.] This posture by the court was
surely indicative to petitioner that the court was not exhibiting an extreme lack of
impartiality.
Pet.’s Mem. at 35. The Government responds that that this final claim is procedurally barred.
Gov``t’s Opp’n at 22.
Apart from claims of ineffective assistance of counsel, the procedural default rule
generally precludes consideration of an argument made on collateral review that was not made
on direct appeal, unless the defendant shows cause and prejudice. Massaro 538 U.S. at 504.
This rule "respect[s] the law’s important interest in the finality of judgments" and conserves
29
judicial resources. § Thus, "[b]ecause [the defendant] did not raise his judicial bias claim on
direct appeal, the procedural default rule bars its consideration unless [he] demonstrates cause
and prejudice." United States v. Hughes, 514 F.3d 15, 17 (D.C. Cir. 2008). "Cause" for habeas
purposes "ordinarily tum[s] on whether the prisoner can show that some objective factor external
to the defense impeded counsel’s efforts to comply with the [relevant] procedural mle." §§
v. Carrier
477 U.S. 478, 488 (1986). F or example, a petitioner may demonstrate "that the
factual or legal basis for a claim was not reasonably available to counsel, or that ‘some
interference by officials’ made compliance impracticable." § (citations omitted). Ineffective
assistance of counsel is also "cause for procedural default." § Here, the defendant neither
discusses the procedural default rule, nor offers any grounds by which the Court might find cause
for the defendant’s failure to present this claim on direct appeal. § Def.’s Mem. at 31-36;
Def.’s Reply at 12-16. The Court therefore finds that this claim is procedurally defaulted for
failure to show cause.l § §§, 514 F.3d at 17 (citation omitted) ("lnexplicably, Hughes's
opening brief does not acknowledge the existence of the procedural default rule; his reply brief
contains no argument whatsoever to show the cause and prejudice requirements have been
satisfied for his judicial bias claim; and he offers no colorable reason why the procedural default
rule should not apply to this claim, Accordingly, we need not address Hughes’s procedurally
defaulted judicial bias claim on the merits."); United States v. Spadaro, 675 F. Supp. 2d 36, 38
7 Notwithstanding the defendant’s inability to show cause, he likely would be unable to show actual prejudice
resulting from the bias of which he claims. To establish "actual prejudice," the defendant must show that the errors
at his sentencing "worked to his actual and substantial disadvantage, infecting his entire trial with error of
constitutional dimensions. United States v. Frady,
456 U.S. 152, 170 (1982). l\/loreover, "[a] finding ofjudicial bias
must be based on ‘an abiding impression left from a reading ofthe entire record,’ not from particular comments or
rulings considered in isolation." l_d. (citations omitted). A sentence within a properly-calculated Guidelines range,
especially considering the nature ofthe offense for which the defendant was convicted coupled with his criminal
record, accompanied by tough but fair words reminding the defendant of the seriousness of his offense and its
effects on his family and community, 5/25/05 Tr. 68-69, surely do not rise to the level ofjudicial bias or actual
prejudice.
(dismissing claim as procedurally barred for failure to show cause where the defendant "offers
no reason for why he has raised his two competency-related claims for the first time in his
habeas petition").
III. Conclusion
For the foregoing reasons, the Court will hold an evidentiary hearing pursuant to 28
U.S.C. § 2255 on the defendant’s entrapment defense claim and the decision by trial counsel
Lyons not to pursue that defense. The defendant’s remaining claims for post-conviction relief
are without legal merit, and thus are denied."
SO ORDERED on thisa_?l_ day of July, 2010.
,@mr@
/’Ri£oc?ié B. wALToN
United States District Judge
8 The Court is issuing an order contemporaneously with this memorandum opinion (l) denying in part the
defendant’s petition to vacate his conviction, and (2) directing the parties and James Lyons to appear before the
Court for an evidentiary hearing on the merits ofthe defendant’s claim of ineffective assistance of counsel.
31