2009 WL 3735511,
at *5 (D.C. Cir. Nov. 10, 2009) ("‘In this circuit, when an appellant makes an ineffective assistance
of counsel claim for the first time on appeal, we generally remand for a fact-finding hearing, at which
-3_
the district court can explore whether alleged episodes of substandard representation reflect the trial
counsel’s informed tactical choice or a decision undertaken out of ignorance of the relevant law."’)
(quoting Um``ted States v. Moulz``ng, 557 F.3d 658, 668-69 (D.C. Cir. 2009)).
B. The Basis For Mr. Franklin’s § 2255 Motion
The Government’s case against the "M Street Crew" was based on a mountain of
evidence. lt presented video from pole cameras, still photographs, audio and video undercover drug
buys, wiretaps, seizures from multiple search warrants, testimony from cooperators, and experts.
The case was developed through an investigation by the Federal Bureau of lnvestigation’s Safe
Streets Task Force and the l\/letropolitan Police Department, led by MPD Detective Joseph Sopata
and FBl Special Agent Rich Stallings. Beginning in August 2002, they investigated the area of 18"‘
and M Streets N.E., Washington, D.C. The investigation culminated in a "take-down" on March 16,
2004. On that date, more than 350 law enforcement officers simultaneously executed scores of
search warrants, including 26 in the D.C. metropolitan area. A total of 40 arrests were made in
connection with the investigation. All defendants either pled guilty or were convicted by a jury.
The evidence of Mr. Franklin’s drug dealing and use of telephones to facilitate drug
dealing was particularly compelling. The Govemment played almost one hundred intercepted calls
between Mr. Franklin and his wife, Elizabeth Lee, who decanted the PCP into ounce and half-ounce
bottles; between Mr. Franklin and Monica Bell, who tested each batch of PCP for quality; between
Mr. Franklin and Messrs. Ronnie Tucker, Dwaine Williams, J ames Hill and Ed Spears concerning
drug dealing; and between l\/lr. Franklin and William Dee Robinson and George Wilson concerning
drug dealing and the sales at 18"‘ and M. lt had picture-perfect video and audio of Mr. Franklin
selling PCP and Ecstasy to undercover officer Donna Leftridge and to others. The strength of the
_4_
case was such that Mr. Franklin began conversations with the Govemment in July 2005 about a plea
deal
Mr. Franklin and his lawyers first met with the prosecutors to hear about the
Govemment’s case against him. Thereafter, Mr. Franklin spoke openly with Special Agent Stallings
and Detective Sopata or the prosecutors on six occasions, debriefing about the M Street Crew, his
role in supplying PCP and Ecstasy, the accompanying violence, and the murder of Mr. Lurk and
shooting of Mr. Anderson. Mr. Franklin acknowledges that he spoke with the prosecutors and law
enforcement agents because the evidence against him was "very strong," Tr. I, 43, 50 (Franklin).
He had discussed "all the aspects of the case" and "reviewed all of" the video and audio tapes with
l\/Is. Amato, who said the Government’s case "was very strong" and he agreed. Ia’. at 41 , 43, 50, 52.
He was aware prior to deciding to go trial that if he were convicted, he could be sentenced to life in
prison. Ia'. at 44.
The Government offered a cooperation plea, whereby Mr. Franklin would have to
testify against his co-defendants. See id. at 46. The Govemment made arrangements for Mr.
Franklin and his lawyers to meet privately with co-defendants Joe Blackson, Mr. Franklin’s brother,
and Mike Simmons, Mr. Franklin’s cousin, and their lawyers so that Mr. Franklin could try to
persuade his two relatives to enter pleas. See id. at 48-49. Mr. Blackson refused to attend. See id.
at 48. Mr. Simmons refused to agreed See id. at 49. Although urged by his lawyers to accept, see
z``d. at 51, 90, Mr. Franklin refused the plea deal, see id. at 49, 92. He told his lawyers that he was
3 l\/Ir. Franklin talked to Mr. Simmons "about the case and all of the evidence that was
against . . . me and him and the other co-defendants." Tr. l, 49 (Franklin). "We talked about all the
different options that we had. And 1 tried to convince him to cooperate [but] he came to a conclusion
that that’s something that he didn’t want to do." Id.
_5_
interested in a non-cooperation plea but the prosecutors refused. See ia'. at 50. Mr. Franklin could
not bring himself to testify against Mr. Blackson or Mr. Simmons. See id. at 46-49. The plea
negotiations broke down because "he would not agree to testify against l\/lr. Simmons or his brother
Joseph Blackson." Tr. ll, 19 (Tuminelli). "His decision after that meeting was that he wouldn’t
plead if it required cooperation." Ia'. at 21.
Between the take-down day in March 2004 and trial in March 2006, Mr. Franklin met
with one or both of his counsel at least once a month and developed a "pretty cordial" relationship.
Tr. l, 52 (Franklin). Once Mr. Franklin rejected the last opportunity for a pre-trial plea in November
2005, his lawyers thought their options very slim. The evidence was strong. Mr. Franklin could not
present contrary evidence because, if he did through his own testimony or others’, his statements
during the debriefings could be used against him. See Tr. ll, 25 (Turninelli); Dkt. # 1090, Ex. 2
(August 4, 2004 Debriefing Letter). And, the CCE and murder counts carried statutory mandatory
life sentences if he were convicted. Client and counsel repeatedly discussed trial strategy. See Tr.
l, 52-58 (Franklin); Tr. ll, 26-31 (Tuminelli); Tr. II. 97-98 (Amato). Mr. Tuminelli suggested atactic
to "concede to the obvious," such as the "Donna Leftridge taped buys" and narcotics "[d]istribution."
Tr. l., 53 (Franklin); see also id. at 97. He also would concede the gun-possession-by-a-felon counts
and those charging use of the telephone to facilitate drug trafficking. See z``d. at 5 3-55, 100. But there
would be no concession to the narcotics or RICO conspiracies, the CCE, the Mr. Lurk murder or Mr.
Anderson shooting, or use of a gun in furtherance of drug trafficking ( § 924(c)). See id. at 55, 98-99.
This strategy was adopted because "the evidence with Donna Leftridge was very strong" and the
concession could "give the jury trust on the other counts." Id. at 56. "Basically with his strategy we,
when we talked about it, it was basically to make sure that 1 didn’t get a life sentence." Id Mr.
_6_
Tuminelli’s goal "was to make sure that 1 didn’t get life and that by conceding to the distribution
counts, the worse [sic] possible sentence 1 would have gotten would have been 30 years, if
everything went like he wanted it to go." Ia’. at 57. Ms. Amato agreed with the strategy. Tr. ll, 98
(Amato). Mr. Franklin and his lawyers discussed the United States Sentencing Guidelines as they
applied to the trial strategy "a couple of times." Tr. 1, 57-58 (Franklin).
Mr. Tuminelli "told Mr. Franklin that 1 had done this in other cases and had been
successful in some and not successful in some . . . ." Tr. 11, 26 (Tuminelli). l\/Ir. Tuminelli did not
promise that the strategy would succeed or tell l\/lr. Franklin that the strategy was likely to succeed.
Id. at 30-31. "I told him he had a chance that it could be successful." ld. at 30. Mr. Franklin admits
that Mr. Tuminelli "didn’t promise me that the strategy would work, but he basically brought my
confidence up by telling me that he applied this strategy several times in Maryland." Tr. 1, 105
(Franklin). "1 believe he said he applied it in Maryland, he told me a case that he had with someone
that did this and basically because he’s my lawyer and 1 trusted him, and was being optimistic at the
time 1 wanted to believe that that, the better, the best outcome of the case would happen." Ia’. at 105-
06. "[A]fter 1 decided not to plead," Mr. Tuminelli "told me that he will go in there and do
everything he can to make sure that 1 don’t get a life sentence." Ia'. at 106, However, Mr. Franklin
understood that he would not get a life sentence only if everything worked perfectly, that is, "if
everything, if, if [l\/Ir. Tuminelli’s] plan went right." Id. l\/Ir. Franklin was not told that this was
likely to happen, only that Mr. Tuminelli "believed that it could happen." Id. "1 mean, that was his
goal." Ia’.
Mr. Tuminelli testified that "since the guidelines had become advisory, 1 told Mr.
Franklin look, if we can avoid, you know, the statutory mandatory life sentences, it will be up to
_7_
Judge Collyer even if she wants to give you a life sentence based upon a guideline, you know,
requiring a life sentence, she doesn’t have to give it to you." Tr. 11, 27 (Tuminelli). "So the bottom
line was we were trying to avoid the statutory mandatory life sentences and we were trying to limit
his guidelines to something less than life and [as a] last resort even if we had guidelines of life, he
was still in the position to get less than life. That’s what we were trying to do." Id.
Mr. Franklin agreed with the strategy. Tr. 1, 58 (Franklin). Nonetheless, he now
insists that had he known that the concession strategy could have resulted in a life sentence, he would
have entered into a cooperation plea. Id. at 76. "1 would have definitely cooperated . . . because my
ultimate goal was not to get life. 1 don’t think that 1 would have chose [sic] to do life in jail even
because they [Messrs. Blackson and Simmons] didn’t want to cooperate. 1 know that 1 wouldn’t
have done that. 1 know that 1 would have cooperated." Id. at 76-77.
II. LEGAL STANDARDS
The Supreme Court has articulated two separate standards for evaluating the
effectiveness of trial counsel in a criminal case. Mr. Franklin argues that his counsel were
constitutionally ineffective under either one but he urges the Court to follow United States v. Cronic,
466 U.S. 648 (1984), under which circumstances may "justify a presumption of ineffectiveness . . .
without inquiry into counsel’s actual performance at trial." [d. at 662. Under the Cronic line of
cases, courts will presume a per se violation of the Sixth Amendment right to counsel only "‘if
counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing."’ Bell v.
Cone,
535 U.S. 685, 697 (2002) (quoting Crom``c, 466 U.S. at 659) (emphasis in original); United
States v. Hughes,
514 F.3d 15, 18 (D.C. Cir. 2008) (noting that the presumption of constitutional
ineffectiveness arises in a "very narrow range of situations"). "[T]he attorney’s failure must be
_g_
complete." Bell, 535 U.S. at 697; see also Wright v. Van Patten,
552 U.S. 120, 124 n.* (2008)
(same). Cronic is "reserved for situations in which counsel has entirely failed to function as the
client’s advocate." Florz``da v. Nixon,
543 U.S. 175, 189 (2004); see also United States v. Holman,
314 F.3d 837, 839 n.l (7th Cir. 2002) ("Crom'c only applies if counsel fails to contest any portion
of the prosecution’s case") (emphasis in original).
Except in those rare circumstances where deficient performance can be presumed
under Cronic, a court evaluates claims of ineffective assistance of counsel under the standard
enunciated in Stricklana’ v. Washington, 466 U.S. 668 (1984). "Most ineffectiveness claims proceed
under Strickland v. Washington’s familiar two-step framework, which requires (l) showing
‘counsel’s representation fell below an objective standard of reasonableness’ and (2) demonstrating
‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different."’ Hughes, 514 F.3d at 17 (quoting Strickland, 466 U.S. at
687-88, 694); see also Mouling, 557 F.3d at 668 (under Szrickland a defendant "must show two
things: that his lawyer made errors so serious that counsel was not functioning as the counsel
guaranteed the defendant by the Sixth Amendment, and that counsel’s deficient performance was
prejudicial, z``.e., that there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different") (quotation marks and citations omitted).
A court’s "evaluation of counsel’s performance is ‘highly deferential,"’ and a court "must ‘indulge
a strong presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance."’ United States v. Toms,
396 F.3d 427, 432 (D.C. Cir. 2005) (quoting Strickland, 466
U.S. at 689). "The defendant bears the burden of proving that his lawyer made errors ‘so serious that
counsel was not functioning as the ‘counsel’ guaranteed by the Sixth Amendment’ and that counsel’s
-9-
deficient performance was prejudicial." United States v. Geraldo,
271 F.3d 1112, 11 16 (D.C. Cir.
2001) (quoting Strickland, 466 U.S. at 687).
III. ANALYSIS
A. Cr0nic ls Inapplicable
Mr. Franklin’ s appellate lawyers argue that his trial lawyers’ concession strategy was
per se constitutionally deficient under Crorzz``c "[b]ecause trial counsel conceded to the majority of
the govemment’s case against Mr. Franklin from the start of the trial" and "not only entirely failed
to subject the govemment’s case to adversarial testing on the conceded counts but went so far as to
bolster the govemment’s case . . . ." Def.’s Mem. in Supp. of Claim of 1neffective Assistance of
Trial Counsel ("Def.’s Mem.") [Dkt. # 1069] at 12. The Court does not agree.
Cronic is "reserved for situations in which counsel has entirely failed to function as
the client’s advocate." Floria’a v Nixorz, 543 U.S. at 189. Notwithstanding Mr. Franklin’s appellate
lawyers’ characterization, his trial counsel did not "entirely fail" to function as Mr. Franklin’s
advocate because counsel vigorously contested the drug conspiracy, RICO conspiracy, CCE,
§ 924(c) gun counts, and all counts relating to the murder of Mr. Lurk and shooting of Mr. Anderson,
with the result that Mr. Franklin was acquitted on all of the counts relating to the murder of Mr. Lurk
and shooting of Mr. Anderson. 1n cases such as this, where trial counsel concedes only a portion of
the Govemment’s case as part of a strategy to fight the remainder, Stricklana’, not Crorzic, is the
appropriate standard to be applied. See z``d. at 189-92 (Crom'c inapplicable where defense counsel
conceded the defendant’s guilt on all of the offenses as part of a strategy to avoid the death penalty);
United States v. Thomas, 417 F.3d 1053, 1058-59 (9th Cir. 2005) (Crom``c inapplicable to strategy
of conceding some charges in order "to focus on the charges on which [the defendant] had a
_19_
chance"); Holman, 314 F.3d at 839 n.l ("Cronic only applies if counsel fails to contest any portion
of the prosecution’s case; if counsel mounts a partial defense, Strickland is the more appropriate
test") (emphasis in original); Haynes v. Caz``n, 298 F.3d 375, 381 (5th Cir. 2002) (en banc) ("Cronic
is reserved only for those extreme cases in which counsel fails to present any defense")."
B. Mr. Franklin Has Not Shown Trial C0unsel’s Performance T0 Have Been
Def``lcient
l\/Ir. Franklin’s appellate lawyers argue in the altemative that his trial lawyers’
concession strategy was deficient under Stricklana’ because the concessions "all but guaranteed that
Mr. Franklin would be sentenced to life imprisonment in this case." Def.’s Mem. at 14. 1n order to
establish that his trial counsel’s performance was deficient, Mr. Franklin "must show that counsel’s
representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688.
"[S]trategic choices made after thorough investigation of law and facts relevant to plausible options
are virtually unchallengeable." Ia’. at 690; see also Knowles v. Mz``rzayance, 129 S. Ct. 1411, 1420
(2009) (same).
Judged against this standard, Mr. Franklin’s argument must fail. Many of the drug
distribution counts were incontestable: the Govemment had video and audiotape of Mr. Franklin
selling to undercover officer Donna Leftridge and they had video from pole cameras showing him
delivering drugs to street sellers. Whether 18"‘ and M Streets N.E. are within 1,000 feet of a school,
4 Mr. Franklin’s reliance on United States v. Swanson, 943 F.Zd 1070 (9th Cir. 1991), is
misplaced. Cronz'c was applied there because defense counsel "told the jury that no reasonable doubt
existed as to his client’s identity as the perpetrator of the only crime charged in the indictment." Ia'.
at 1076. The court "recognize[d] that in some cases a trial attomey may find it advantageous to his
client’s interests to concede certain elements of an offense or his guilt of one of several charges.”
Icl. at 1075-76. See also Thomas, 417 F.3d at 1058 (Swanson "applied Cronic because counsel’s
concession concemed the only factual issues in dispute on the only count that was charged").
_]]_
as the Govemment proved, was incontestable once it was measured. Whether it was Mr. Franklin
talking to his wife or his co-conspirators on his cell phone was incontestable for at least some of the
calls, particularly since his wife and a number of the co-conspirators had plea agreements that
required them to testify truthfully. Whether Mr. Franklin was a felon-in-possession of a gun was
incontestable inasmuch as Mr. Franklin was a convicted felon and guns were found in a search of
his home and car.
Because there was "overwhelming evidence" on these counts, Mr. Franklin "was, in
effect, caught red-handed" and his lawyers "saw a need to concentrate the defense on those counts
that carried the stiffest penalties." Thomas, 417 F.3d at 1058. Accordingly, Mr. Tuminelli “had a
sensible reason for not contesting" those charges; they were, "for all practical purposes,
incontestible, and he believed that doing so would enhance his credibility on counts where the
evidence was somewhat less clear and the penalties significantly greater." la’. ; see also Holman, 314
F.3d at 840 ("Conceding an indefensible charge is thought to build credibility with a jury by
acknowledging the overwhelming evidence of guilt for that particular charge, creating goodwill and
trust that can be applied towards arguments attacking the remaining charges."). Under these
circumstances, where trial counsel made a strategic choice to concede to charges as to which there
was overwhelming evidence of guilt in an effort to build credibility with the jury with respect to
other charges as to which the evidence of guilt was less convincing, Mr. Franklin has failed to show
that his trial counsel’s representation fell below an objective standard of reasonableness.
lt was a risky option, to be sure. Mr. Franklin had spoken openly with law
enforcement on six occasions, trying to work out a cooperation plea. Nothing he told the
Govemment could be used against him at trial unless he offered contrary testimony or evidence.
_12-
Therefore, his lawyers were limited as a defense case to cross examination of Govemment witnesses.
The CCE count and the counts associated with the murder of Mr. Lurk were the most dangerous and,
if convicted, would yield statutory mandatory life sentences. lf convicted on the narcotics conspiracy
counts, Mr. Franklin faced a Guidelines range of life imprisonment. To avoid such a sentence, it
would be necessary to avoid unfavorable verdicts on the narcotics conspiracy, the RICO conspiracy,
CCE,$ and the murder. To avoid conviction on the narcotics conspiracy, Mr. Tuminelli proposed
to argue to the jury that Mr. Franklin was a wholesale supplier of drugs to a lot of small independent
drug sellers with whom he had merely an arm’s length relationship. 1f they were successful on the
narcotics conspiracy, the RICO and CCE counts would fail as well. The murder of Mr. Lurk
required a different strategy, which proved successful and, in fact, Mr. Franklin was acquitted on
those counts.
Appellate counsel contends that this strategy was deficient because Mr. Franklin
rejected a plea to go to trial with no chance of successfully avoiding a life sentence; he argues that
a "wholesaler" and a "leader" are first cousins. Appellate counsel asserts that trial counsel conceded
that Mr. Franklin had distributed at least 10 gallons of PCP, which would result in a base offense
level of 36 under the United States Sentencing Guidelines;° that trial counsel further conceded that
Mr. Franklin distributed drugs within 1000 feet of a school, adding one more level; that trial counsel
5 The components of CCE were proof that Mr. Franklin led five or more people and that he
distributed 30 kilograms or more of PCP,
6 Under the 2008 Sentencing Guidelines 2.D.1.1, 30 kilograms or more of PCP is an offense
level 38; at least 10 but fewer than 30 kilograms of PCP is an offense level 36. On cross
examination, Mr. Tuminelli got Herbert l\/lartin, Mr. Franklin’s main supplier, to back down on the
quantity estimate he had provided on direct examination to say that he had sold at most 10 gallons
of PCP to Mr. Franklin. Twelve gallons equals approximately 31 kilograms.
_13-
further conceded Mr. Franklin’s gun possession, adding two more offense levels; and that- by
arguing that Mr. Franklin was a "wholesaler" of PCP _ trial counsel effectively conceded that he
played a major role, thereby increasing his offense level by four. Adding 36 + 1 + 2 + 4, appellate
counsel contends that trial counsel’s concessions resulted in an adjusted offense level of 43, which
would lead to a Guidelines sentence of life. Mr. Franklin testified that he would have plead guilty
and cooperated had he known that the concessions could have resulted in a life sentence.
The argument has obvious facial appeal and must be considered carefully within the
circumstances presented at the time and without the benefit of hindsight. Strickland, 466 U.S. at
689. As described by Mr. Tuminelli, in January 2006, after the Court denied defense suppression
motions, l\/lr. Franklin was between a rock and a hard place. The Govemment’s plea offer depended
on his cooperation and testimony; l\/lr. Franklin tried hard to persuade his brother and cousin to
cooperate too, so that he could accept the deal, but they refused. Mr. Franklin then refused as well.
Since the Govemment’s offer was conditioned on Mr. Franklin’s cooperation, which he felt unable
to provide, his options were: 1) plead guilty to the entire indictment; or 2) go to trial and attempt
to salvage a life after prison. Because Mr. Franklin was unwilling to accept a cooperation plea, his
lawyers chose the only available option: go to trial and attempt to avoid convictions that would
necessarily result in a life sentence.
Although the United States Sentencing Guidelines were mandatory when the M Street
Crew was taken down, by the time of trial, they had been declared advisory only by the Supreme
Court. See United States v. Booker, 543 U.S. 220, 245 (2005). However, at sentencing, a federal
district court always begins with a Guidelines analysis and then relies on the other statutory factors
at 18 U.S.C. § 3553(a) to determine whether a sentence in the Guidelines range, a downward
_14_
departure, or a variance from the Guidelines should be imposed. See Gall v. United States,
552 U.S.
38, 49-50 (2007). 1f the jury had believed that Mr. Franklin was a wholesale seller to a neighborhood
of independent drug dealers, and that there was no conspiracy among them, the total quantity of
drugs might have been affected and he might also have fought off the four-point bump for leadership
role and received less than four. Appellate counsel is entirely correct that a jury finding reasonable
doubt would not preclude the sentencing judge from finding proof of leadership by a preponderance
of the evidence, but if the case had fallen apart and no conspiracies, CCE, or murder were proved
to the jury’s satisfaction, it is highly speculative to guess what a sentencing judge may or may not
have found 1n addition, even if some counts could have triggered a Guidelines range that included
life, the Guidelines are no longer mandatory and counsel would have been able to argue for less, if
there were no convictions on counts which carried statutory mandatory life sentences.l Appellate
counsel’s assertion that Mr. Franklin would have received a lif``e sentence even if the concession
strategy had succeeded is mere conjecture.
Appellate counsel argues that "reasonably competent defense counsel should have
known that a four level enhancement for major role was all but assured" because "[t]he
govemment’s evidence easily showed, certainly by a preponderance of the evidence, that Mr.
597
Franklin was ‘an organizer or leader of a criminal activity that involved five or more participants
7 Based on the charges in the superseding indictment, if Mr. Franklin were convicted of the
murder of Mr. Lurk, he would have received a statutory mandatory life sentence on Counts 2
(RICO), see 18 U.S.C. § 1963(a), and 130 (violent crime in aid of racketeering), see 18 U.S.C. §
1959(a)(1). 1f he were convicted as a principal in the CCE count (with a finding of at least 30
kilograms of PCP), he faced another statutory mandatory sentence of life. See 21 U.S.C. §
848(b)(2)(A). 1f he were convicted of the drug conspiracy and counts 44 and 67, with a finding that
he distributed at least 30 kilograms of PCP, distributed within 1000 feet of a school and played a
leadership role in the offense, he faced a Guidelines range of life imprisonment. See U.S.S.G. §§
2D1.1, 2D1.2, 3B1.1.
_15_
Def.’s Post-Hearing Mem. [Dkt. # 1092] at 2 (quoting U.S.S.G. § 3B1.1). With the full trial behind
us _ close to 100 witnesses, 1 ,000 exhibits ~ the full strength of the Government’ s case is obvious.
All subsequent co-defendants entered pleas except Larry Gooch, who was facing (and avoided) the
death penalty. Mr. Franklin himself wrote to Mr. Blackson that Mr. Franklin had a 99.99% chance
of conviction and a life sentence. See Dkt. # l090, Ex. 5. Clearly both l\/Ir. Franklin and his lawyers
recognized that a plea was his best avenue but no lawyer can make that decision for the client. E. g.,
Florz``cla v. Nixon, 543 U.S. at 187 ("counsel lacks authority to consent to a guilty plea on a client’s
behalf"). Despite the odds and the advice of his lawyers, Mr. Franklin would not cooperate since
it meant testifying against his brother and cousin. Mr. Tuminelli decided he had one chance: gain
credibility with the jury by admitting the obvious and try to avoid guilty verdicts on the rest. He
feared that if they attacked the Government’s case as a whole _ challenging the guns found at Mr.
Franklin’s home and in his car, his sales of PCP caught on videotape, and his phone calls caught on
audiotape _ everything would be lost in the face of such overwhelming evidence.
The defense strategy was an attempt to thread a very small needle, and it ultimately
failed But the fact that the strategy failed does not mean that it had no chance of success or that
counsel was ineffective by employing it. "lt is all too tempting for a defendant to second-guess
counsel’ s assistance after conviction or adverse sentence, and it is all too easy for a court, examining
counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of
counsel was unreasonable." Strickland, 466 U.S. at 689. Likewise, having been convicted by a jury
and sentenced to life in prison, it is all too tempting for Mr. Franklin to now say that he would have
agreed to a cooperation plea and not gone to trial had he known that he could have received a life
sentence even if the concession strategy had succeeded 1n light of the strength of the Govemment’s
_15_
case and Mr. Franklin’s steadfast refusal to testify against his brother and cousin, trial counsel’s
LSG
concession strategy was entirely reasonable. The strategy was the product of trial counsel’s
656
informed tactical choice"’ and not a decision undertaken out of ignorance of the relevant law."’
Reeves, 2009 WL 3735511, at *5 (quoting Moulz'ng, 557 F.3d at 668-69).
C. Mr. Franklin Has Not Shown Prejudice
"An error by counsel, even if professionally unreasonable, does not warrant setting
aside the judgment of a criminal proceeding if the error had no effect on the judgment." Stricklana’,
466 U.S. at 691. "[A]ny deficiencies in counsel’s performance must be prejudicial to the defense
in order to constitute ineffective assistance under the Constitution." Icl. at 692. To demonstrate
prej udice, "[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.” Id. at 694; see also
Moulz``ng, 557 F.3d at 668 (under Strickland a defendant must show "that counsel’s deficient
performance was prejudicial, i.e., that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different") (quotation marks and
citations omitted).
Assuming that trial counsel’s concession strategy was unreasonable, Mr. Franklin’s
ineffective assistance claim still fails because he has not shown that there is a reasonable probability
that, but for his trial counsel’s concession to the distribution, telephone, and felon-in-possession
counts, the result of the trial would have been different. Had those concessions not been made, trial
counsel still would have had to convince the jury and the sentencing judge that Mr. Franklin was not
a leader of a narcotics distribution conspiracy. Moreover, trial counsel would have had to do so
while also contesting narcotics distribution charges as to which there was overwhelming evidence
_]'7..
of guilt, thereby undermining trial counsel’s credibility with the jury. Appellate counsel has not
articulated let alone shown, how the trial strategy prejudiced Mr. Franklin’ s ability to defend against
the conspiracy charges. Trial counsel contested Mr. Franklin’s leadership role in a drug conspiracy.
Mr. Franklin has not shown that there is a reasonably probability that, but for the concessions, he
would have been acquitted of the conspiracy charges and would have avoided a four-point increase
in his offense level for a leadership role.
Nor has Mr. Franklin shown that there is a reasonable probability that he would have
accepted the Govemment’s cooperation plea offer had he known that he could have gotten a life
sentence under the concession strategy. Mr. Franklin testified that before making his decision to go
to trial, he knew a conviction could result in a life sentence. Tr. 1, 44 (Franklin) ("Q. You were
aware prior to trial that a sentence of life if you were convicted by the jury was a possibility? A.
Yes."). He further testified that before agreeing to the trial strategy, he had consulted with his
lawyers "a couple of times" about the potential sentencing ramifications of employing the strategy,
and understood that he would avoid a life sentence only "if everything went like [Mr. Tuminelli]
wanted it to go." la’. at 57, 58. Mr. Franklin testified that Mr. Tuminelli "didn’t promise me that the
strategy would work," that he "was being optimistic at the time," and that he "wanted to believe that
. . . the best outcome of the case would happen." Ia'. at 105 -06. He elected to go to trial against the
advice of his trial counsel to "take the cooperation agreement" and despite knowing that the
Government had a "very strong" case against him. ld. at 50, 51. Against this backdrop, the Court
does not credit Mr. Franklin’s assertion that he would have accepted the Government’s cooperation
plea offer and testified against his brother and cousin had he known that he could have received a
life sentence under the concession strategy.
_1g_
IV. CONCLUSION
For the foregoing reasons, the Court will deny Mr. Franklin’s § 2255 motion for a
new trial because of ineffective assistance of trial counsel. A memorializing Order accompanies this
Memorandum Opinion.
Date: December 2, 2009 /Li g /?/_
/iiosl-:MARY M_ ooLLYER
United States District Judge
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