Mitchell v. United States

• Citation: 841 F.Supp.2d 322
• Decision Date: 30 January 2012
• Docket Number: Cr. Action No. 05–110 (EGS).
• Parties: Vernard MITCHELL, Petitioner, v. UNITED STATES, Respondent.
• Court: U.S. District Court — District of Columbia

841 F.Supp.2d 322

Vernard MITCHELL, Petitioner,

v.UNITED STATES, Respondent.

Cr. Action No. 05–110 (EGS).

United States District Court, District of Columbia.

Jan. 30, 2012.

MEMORANDUM OPINION

EMMET G. SULLIVAN, District Judge.

Pending before the Court is petitioner Vernard Mitchell's pro se Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. Upon consideration of petitioner's motion and reply, the opposition response, case record, applicable law, and for the reasons set forth below, Mr. Mitchell's habeas motion is DENIED.

I. BACKGROUND

Three and a half weeks after his arrest in Northeast Washington, DC, Petitioner was indicted March 24, 2005 on weapons and drug charges. After pretrial motions and continuances by both sides, a five-day jury trial commenced on March 8, 2006 before this Court. At the conclusion of the trial, petitioner was found guilty on four of five counts,¹ and the Court dismissed the fifth.

This Court denied petitioner's subsequent Motion for a New Trial and a pro se Motion for Newly Discovered Evidence and for a New Trial. Order, Nov. 21, 2006, ECF No. 57. The Court then sentenced Mr. Mitchell to 120, 262, 240, and 60 months, to run concurrently for Counts One through Four, respectively. J. 3, Apr. 10, 2007, ECF No. 71. The Circuit affirmed this Court's decision in November 2008. United States v. Mitchell, 304 Fed.Appx. 880, 881 (D.C.Cir.2008). Mr. Mitchell then filed this pro se Motion to Vacate pursuant to 28 U.S.C. § 2255 in December 2009, alleging ineffective assistance of counsel in violation of his Sixth Amendment rights.

Specifically, petitioner alleges that counsel (1) failed to properly attack the credibility of a witness; (2) allowed Mr. Mitchell's speedy trial rights to be violated; (3) failed to object to the Court's failure to elicit fully articulated objections following the imposition of sentence; (4) failed to explain the plea offer and its ramification if rejected; (5) failed to object to the Court moving forward when Juror # 11 attempted to abstain privately; and (6) failed to move to suppress evidence obtained in violation of a knock and announce procedure. Pet'r's Mot. to Vacate, Dec. 8, 2009, ECF No. 95. Petitioner's motion is ripe for decision by the Court.

II. APPLICABLE LAW

To succeed on an ineffective assistance of counsel claim, petitioner must show both that his counsel's performance was deficient, falling below an objective standard of reasonableness, and that counsel's deficient performance prejudiced petitioner's defense. Strickland v. Washington, 466 U.S. 668, 687–88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). If a petitioner cannot meet either prong, a Court need not address the other. Id. at 697, 104 S.Ct. 2052.

The Strickland review of counsel's performance is “highly deferential,” id. at 689, 104 S.Ct. 2052, as “the bar of objective reasonableness is set rather low.” United States v. Hurt, 527 F.3d 1347, 1356 (D.C.Cir.2008). Furthermore, unsuccessful strategy or tactics are not grounds for attack. See Strickland, 466 U.S. at 699, 104 S.Ct. 2052 (holding that counsel's strategic choice, “though unsuccessful, was the result of reasonable professional judgment”). Indeed, counsel's “strategic choices made after a thorough investigation of the law and facts relevant to plausible options are virtually unchallengeable.” United States v. Catlett, 97 F.3d 565, 570 (D.C.Cir.1996) (quoting Strickland, 466 U.S. at 690, 104 S.Ct. 2052).

In order to show that counsel's deficient performance prejudiced him, petitionermust show that but for counsel's deficient performance, the proceeding would have resulted differently, Strickland, 466 U.S. at 694, 104 S.Ct. 2052, not merely that the errors “had some conceivable effect on the outcome of the proceeding.” Id. at 693, 104 S.Ct. 2052.

III. ANALYSISA. EVIDENTIARY HEARING

As a preliminary matter, the Court determines that no evidentiary hearing is required. An evidentiary hearing on a habeas matter is not required when “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief....” 28 U.S.C. § 2255(b) (2006). Appellate courts generally respect a district court's decision not to hold a hearing when the judge deciding the motion also presided over the initial trial. United States v. Toms, 396 F.3d 427, 437 (D.C.Cir.2005). This is because a complete and uncontroverted evidentiary record, Machibroda v. United States, 368 U.S. 487, 494, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962), coupled with the judge's recollection of the events at issue, enable a summary ruling. Id. at 495, 82 S.Ct. 510;United States v. Pollard, 959 F.2d 1011, 1031 (D.C.Cir.1992). Indeed, only where the § 2255 motion raises “detailed and specific” factual allegations whose resolution requires information outside of the record or the judge's “personal knowledge or recollection” must a hearing be held. Pollard, 959 F.2d at 1031 (citing Machibroda, 368 U.S. at 495, 82 S.Ct. 510).

Having presided over Mr. Mitchell's trial and sentencing, this Court is intimately familiar with the facts and history of the case. With no material facts in dispute, the parties' briefs and the entire case record conclusively demonstrate both that Mr. Mitchell is entitled to no relief and that an evidentiary hearing is not warranted. The Court therefore proceeds to the merits of petitioner's claims.

B. PROCEDURALLY BARRED CLAIMS

Petitioner raises two procedurally barred claims in his motion. His fourth and fifth claims that counsel was ineffective—for failing to explain the plea offer and its ramifications and for failing to object to the Court moving forward when Juror # 11 attempted to abstain privately—were adjudicated, appealed, and affirmed. See Mitchell, 304 Fed.Appx. 880.²

“It is well established in the federal circuits that a federal prisoner cannot raise collaterally any issue litigated and adjudicated on a direct appeal from his conviction, absent an intervening change in the law.” United States v. Greene, 834 F.2d 1067, 1070 (D.C.Cir.1987). There has been no change in the applicable law since the Court of Appeals decided both claims against Mr. Mitchell. This Court, therefore, considers neither.

C. UNSUPPORTED CLAIMS

Of Mr. Mitchell's four remaining claims of ineffective assistance of counsel, three are offered without factual allegation or support. The claims are that Mr. Mitchell's counsel failed to properly attack the credibility of a witness, allowed Mr. Mitchell's speedy trial rights to be violated, and failed to move to suppress evidence obtainedin violation of a knock and announce procedure and to show that Mr. Mitchell had a reasonable expectation of privacy in the dwelling. Pet'r's Mot. to Vacate at 5–6.

In addition to alleging no facts regarding these claims, petitioner fails to explain how these problems amounted to deficient representation of counsel or explain how he was prejudiced as a result. Because Mr. Mitchell provides the Court no basis on which to make a judgment, the Court relies on the government's opposition for facts, which petitioner did not dispute in his reply, and briefly considers each claim in turn. See United States v. Thomas, 772 F.Supp.2d 164, 169 (D.D.C.2011) (the Court could not find any merit to petitioner's claim because petitioner offered “no [supporting] insight or detail whatsoever”).

Before examining the merits of each claim, however, the Court notes that district courts have the power to deny § 2255 motions on the grounds that they offer only bald legal conclusions with no supporting factual allegations. Sanders v. United States, 373 U.S. 1, 19, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963). In addition, “conclusory arguments may be summarily dismissed by the Court.” United States v. Geraldo, 523 F.Supp.2d 14, 22 (D.D.C.2007) (citing United States v. Morrison, 98 F.3d 619, 626 (D.C.Cir.1996) (holding that summary denial of a § 2255 motion is appropriate when the ineffective assistance claim is speculative)).

i. Counsel Failed to Properly Attack the Credibility of a Witness

Mr. Mitchell offers no support for his claim that his conviction be vacated for ineffective assistance of counsel based on defense counsel's failure to attack a witness's credibility. Petitioner neither identifies which witness counsel failed to properly cross-examine nor demonstrates how a different cross-examination would have altered the trial's outcome. Providing the Court with none of this information is tantamount to “teasingly suggest [ing] that there may be facts out there that [petitioner's] trial counsel could have discovered and that would have helped his case.” Coumaris v. United States, 660 F.Supp.2d 67, 71 (D.D.C.2009) (quoting United States v. Askew, 88 F.3d 1065, 1073 (D.C.Cir.1996)). This omission should not be the basis for overturning a conviction. Id. Because the Court cannot determine how counsel's representation was deficient or how the representation prejudiced Mr. Mitchell, the Court denies this claim.

ii. Counsel Allowed Mr. Mitchell's Speedy Trial Rights to be Violated

The Sixth Amendment to the Constitution guarantees Mr. Mitchell's right to a speedy trial. Although petitioner claims that his rights were violated, Pet'r's Mot. to Vacate at 5, his memorandum and reply do not address this issue.

The Supreme Court, in Barker v. Wingo, provided a four-factor inquiry to weigh whether a prisoner's speedy trial rights were violated. 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The four factors are length of delay, reasons for the delay, defendant's assertion of his right to a speedy trial, and prejudice to a defendant. Id. at 530, 92 S.Ct. 2182. As a threshold matter, the length of delay triggers further inquiry and is “dependent upon the peculiar circumstances of the case.” Id. at 530–31, 92 S.Ct. 2182. “A delay of over six months in bringing a case to trial warrants inquiry and justification[.]” United States v. Goss, 646 F.Supp.2d 137, 141 (D.D.C.2009) (citing ...