U.S. v. Cook

• Decision Date: 29 November 2000
• Docket Number: No. 93-365 SSH.,93-365 SSH.
• Citation: 130 F.Supp.2d 43
• Parties: UNITED STATES of America v. Darrick COOK, a/k/a Derrick Cook
• Court: U.S. District Court — District of Columbia

130 F.Supp.2d 43

UNITED STATES of America v. Darrick COOK, a/k/a Derrick Cook

No. 93-365 SSH.

United States District Court, District of Columbia.

November 29, 2000.

Timothy W. Lucas, AUSA, U.S. Attorney's Office for the District of Columbia, Special Proceedings Section, Washington, DC, for Plaintiffs.

Derrick Cook, Petersburg, VA, pro se.

MEMORANDUM ORDER

STANLEY S. HARRIS, District Judge.

Before the Court are petitioner's (1) motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2225, (2) motion for leave to amend § 2255 motion,¹ (3) motion requesting post-offense rehabilitation downward departure, and (4) motion requesting the Court to consider the motion regarding post-offense rehabilitation simultaneous to the § 2255 motion. The Court also considers the Government's opposition to the § 2255 motion and petitioner's reply thereto. The Court grants petitioner's motion for leave to amend his § 2255 motion and petitioner's motion to consider the downward departure motion simultaneous to the § 2255 motion. Upon consideration of the entire record, the Court denies petitioner's § 2255 motion and motion requesting a post-offense downward departure. Because the motion and the files and records of the case conclusively show that petitioner is entitled to no relief, the Court finds that a hearing is not necessary.

I. Background

On February 28, 1994, petitioner was convicted of one count of unlawful possession with intent to distribute 50 grams or more of cocaine base in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(A)(iii). On July 5, 1994, petitioner was sentenced to 240 months' imprisonment. The Court of Appeals affirmed his conviction and sentence on September 13, 1995. United States v. Cook, 70 F.3d 638 (D.C.Cir.1985) (per curiam), published at 1985 WL 281326.

III. § 2255 Motion

Petitioner's § 2255 motion asserts several allegations of ineffective assistance of counsel by Alan C. Drew, his attorney at trial and on appeal: (1) failure to object to the prosecutor's alleged vouching for a prosecution witness; (2) failure to appeal an objection to an expert witness' testimony regarding a hypothetical situation that mirrored the facts of the case; (3) failure to object to being sentenced for crack cocaine without proof of crack cocaine; (4) failure to object to a crack cocaine sentence where crack cocaine is not scheduled as a controlled substance; and (5) failure to object to the use of co-defendant Dwayne Short's alleged perjury.²

A. Legal Standard

A collateral attack under § 2255 is not a second chance at appeal, nor is it a substitute for direct appeal; a defendant is required to show "a good deal more than would be sufficient on direct appeal" to gain collateral relief. United States v. Pollard, 959 F.2d 1011, 1020 (D.C.Cir.), cert. denied, 506 U.S. 915, 113 S.Ct. 322, 121 L.Ed.2d 242 (1992). To obtain relief based on a trial error that is raised for the first time on collateral attack, the defendant typically must show "cause" for his failure to raise the issue at trial and on direct appeal, and he must show "actual prejudice" resulting from the errors of which he complains. United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 1594-95, 71 L.Ed.2d 816 (1982). In extraordinary instances, a petitioner may overcome a procedural default where "a fundamental miscarriage of justice" has occurred. McCleskey v. Zant, 499 U.S. 467, 494, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991); Coleman v. Thompson, 501 U.S. 722, 753, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). However, the Supreme Court has explicitly tied this exception to the petitioner's innocence. See Schlup v. Delo, 513 U.S. 298, 321, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). Where a petitioner raises claims of ineffective assistance of counsel in a § 2255 motion, he need not show "cause and prejudice" for not having raised such claims on direct appeal, as these claims may properly be raised for the first time in a § 2255 motion. See United States v. Johnson, 1999 WL 414237 at *1 (D.C.Cir., May 28, 1999) (unpublished opinion).

To prevail on an ineffective assistance of counsel claim, a defendant must show two things. First, the defendant must show that counsel's performance was deficient, falling below an objective standard of reasonableness. See Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prove deficient performance, a defendant must show that "counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S.Ct. 2052. In evaluating counsel's performance, "the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690, 104 S.Ct. 2052. Second, the defendant must show that the deficient performance had a prejudicial effect. To prove prejudice, a defendant must show that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id.

B. Analysis

Petitioner's allegations do not demonstrate that Drew's performance fell below an objective standard of reasonableness. The Court's independent recollection of the trial also leads it to conclude that petitioner's representation was of a high professional quality. The Court briefly addresses each of petitioner's claims.

1. Vouching

Petitioner claims that Drew was ineffective for failing to object to the Government's alleged bolstering of key witness Dwayne Short. Petitioner contends that the Government repeatedly referred to the provision in Short's plea agreement that requires that he testify truthfully, thereby bolstering Short's credibility.

The Court finds no ineffective assistance of counsel. Applying the reasoning of United States v. Spriggs, 996 F.2d 320 (D.C.Cir.1993), the Court sees "no good reason to believe that the allegedly bolstering provisions of the agreement are likely to enhance the witness's credibility in the eyes of the jury." Id. at 324. Furthermore, because the alleged "bolstering" occurred only after the defense counsel first attacked the witness's credibility using portions of the plea agreement, the Court sees no error in the Government's manner of rehabilitation.

2. Expert testimony

At trial, the Government elicited testimony from Detective Tyrone R. Thomas, a police expert witness, as to whether possession of a certain quantity of drugs indicated an intent to distribute those drugs. Drew objected, alleging that the expert impermissibly testified to petitioner's intent, as opposed to a general observation, because the Government's hypothetical question mirrored the facts of the case. The Court overruled Drew's objection. Drew did not raise the issue on appeal, which petitioner claims constituted ineffective assistance of counsel.

Federal Rule of Evidence 704(b) provides that an expert witness may not testify to a defendant's mental state or condition constituting an element of the crime charged, as these are ultimate issues for the trier of the fact to determine. In earlier cases, this Circuit stated that "Rule 704(b) allows an expert to state that certain conduct fits a specific role in a criminal enterprise — even though the conduct described exactly parallels conduct that other evidence explicitly links to a defendant," United States v. Mitchell, 996 F.2d 419, 422 (D.C.Cir.1993), although such testimony can be "awkward," United States v. Williams, 980 F.2d 1463, 1466 (D.C.Cir. 1992). Not until May 30, 1995, in United States v. Boyd, 55 F.3d 667, 671 (D.C.Cir. 1995), did this Circuit prohibit the use of "mirroring hypotheticals," stating that the Government may not recite hypothetical facts that mirror the case at hand and ask the expert to opine whether such facts prove an intent to distribute.

The Court concludes that defense counsel Drew was not deficient for not appealing the Court's ruling. At the time Drew appealed the case on July 26, 1994, and filed a brief on behalf of petitioner on April 10, 1995, the Boyd case had not been decided yet. Thus, the Court's ruling was sufficiently supported by the prevailing law, and Drew therefore cannot be found deficient for not appealing the ruling, particularly where the Court's ruling would have been reviewed only for abuse of discretion. See United States v. Smart, 98 F.3d 1379, 1386 (D.C.Cir.1996) (trial judge's admission of evidence reviewed for abuse of discretion). Even if Drew's performance was deficient, petitioner has not presented sufficient evidence that the outcome would have been different had Detective Brown refrained from answering the question about petitioner's intent.

3. Proof of crack cocaine

Petitioner contends that although he was sentenced under the crack cocaine statute, at no time did the Government present evidence to prove that the drug at issue was crack cocaine. Petitioner therefore alleges that Drew was ineffective because he did not familiarize himself sufficiently with the crack cocaine statute, did not inform petitioner about the alternatives to the crack cocaine enhancement, did not object to the application of the crack cocaine guideline, and did not present any evidence that could have mitigated his sentence under the crack cocaine guideline.

The Court rejects petitioner's contention. The transcript of the trial reveals numerous references to crack cocaine. Two police officers testified that the "loose white rock" field-tested positive for crack cocaine, see Tr. 2/25/94 at 39 and 156, and one police officer testified that the DEA laboratory chemist determined that the drugs were cocaine base, commonly known as crack cocaine. See Tr. 2/25/94 at 204. Dwayne Short also testified that he saw petitioner "break a piece off" of an eighth of a "key," and hand the confidential police informant "the rock." "Rock-like substances" which are analyzed to contain cocaine base are...