U.S v. Geraldo

• Decision Date: 06 December 2007
• Docket Number: Criminal No. 98-391 (CKK).,Civil Action No. 02-2427.
• Citation: 523 F.Supp.2d 14
• Parties: UNITED STATES of America, Plaintiff v. Jose GERALDO, Defendant.
• Court: U.S. District Court — District of Columbia

523 F.Supp.2d 14

UNITED STATES of America, Plaintiff v. Jose GERALDO, Defendant.

Civil Action No. 02-2427.

Criminal No. 98-391 (CKK).

United States District Court, District of Columbia.

December 6, 2007.

Mary Ann Snow, U.S. Attorney's Office, Washington, DC, for Plaintiff.

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, District Judge.

Currently before the Court is Defendant Jose Geraldo's [228] Amended Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 ("Def.'s Mot."). Defendant was convicted of seven drug-related charges on May 25, 2000. Defendant appealed his conviction to the Court of Appeals for the D.C. Circuit claiming, inter alia, that his trial counsel was constitutionally ineffective because she did not assert Defendant's privacy interest in an apartment building searched by the FBI where Defendant sold drugs to FBI informants. The D.C. Circuit affirmed Defendant's conviction on November 27, 2001, and Defendant began the collateral attack on his conviction on November 27, 2002.

Defendant's Motion seeks relief from his sentence because, according to Defendant, he received constitutionally ineffective assistance of his counsel, Ms. Asiner. On January 30, 2005, Defendant filed a "Traverse," which added additional claims based on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). After a careful and searching review of the Parties' submissions and the attachments thereto, applicable statutory authority, case law, and the record, as a whole, the Court shall DENY Defendant's Motion and the additional claims raised in Defendant's Traverse for the reasons that follow.

I. BACKGROUND

Defendant's drug-related charges originate from three transactions where Defendant sold cocaine or cocaine base to FBI informants.¹ See United States v. Geraldo, 271 F.3d 1112, 1115 (D.C.Cir.2001) (providing background related to Defendant's case and affirming his conviction). FBI agents obtained a search warrant for Defendant's residence and for the apartment building where these transactions occurred. See Gov't Opp'n at 2. During the search of Defendant's residence, FBI agents found "hidden under a mattress in [Defendant's] bedroom a razorblade with cocaine residue and a key that fit the padlock on a closet at [the apartment building]. The agents found in that closet 242 grams of powder cocaine. Elsewhere ... the agents found 69.3 grams of crack cocaine, four kilogram wrappers used to package cocaine, and a pot recently used to cook crack cocaine." Id.

Defendant pleaded not guilty to all charges. See Def.'s Mot. at 7. After rejecting a plea offer by the Government for 108 months incarceration pursuant to Fed. R.Crim.P. 11(c)(1)(c), Defendant was tried before a jury in a twelve-day trial. See Gov't Opp'n at 2, 14. The jury acquitted Defendant on Count I (conspiracy to distribute 50 grams or more of cocaine base) and found Defendant guilty on each of the seven other counts. Id. at 2. The Court sentenced Defendant to 160 months imprisonment followed by five years of supervised release. Id. Defendant filed a timely appeal arguing that the FBI's search of his residence violated the federal knock and announce statute, 18 U.S.C. § 3109, and exceeded the scope of the search warrant. See Geraldo, 271 F.3d at 1114. Defendant also argued that his attorney was deficient in not challenging the admissibility of the evidence obtained in a search of the apartment building where he had sold drugs to FBI informants. Id. The D.C. Circuit affirmed Defendant's conviction on November 27, 2001. Id. at 1119.

On November 27, 2002, Defendant filed the instant Motion, which he amended on June 18, 2004. Although the Motion lists three "claims," Defendant actually is asserting the same claim — ineffective assistance of counsel — covering three "phases" of his counsel's representation (plea, pretrial, and sentencing). The Government filed an Opposition on January 7, 2005. Defendant filed his Traverse on January 30, 2005, which the government opposed on March 30, 2005. Defendant filed a Reply on March 30, 2005.

II. LEGAL STANDARD

Under 28 U.S.C. § 2255, a prisoner in custody sentenced in a federal court may move the sentencing court to vacate, set aside, or correct the sentence if the prisoner believes his sentence was imposed "in violation of the Constitution or laws of the United States ... or that the sentence was in excess of the maximum authorized by law...." 28 U.S.C. § 2255 (1996). A district court judge need not conduct an evidentiary hearing before denying a § 2255 motion when "the motion and files and records of the case conclusively show that the prisoner is entitled to no relief." Id.; United States v. Morrison, 98 F.3d 619, 625 (D.C.Cir.1996). As the rules governing § 2255 proceedings provide, "[i]f it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief in the district court, the judge shall make an order for its summary dismissal...." Rules Governing § 2255 Proceedings, Rule 4, 28 U.S.C. § 2255 (2005). Accordingly, a § 2255 Defendant is not automatically entitled to an evidentiary hearing, and should not receive one if his allegations are "vague, conclusory, or palpably incredible"rather than "detailed and specific." Machibroda v. United States, 368 U.S. 487, 495, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962); see also United States v. Pollard, 959 F.2d 1011, 1031 (D.C.Cir.1992), cert. denied, 506 U.S. 915, 113 S.Ct. 322, 121 L.Ed.2d 242 (1992) ("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.") (quoting Machibroda, 368 U.S. at 495, 82 S.Ct. 510); United States v. McGill, 11 F.3d 223, 225 (1st Cir.1993) ("[E]videntiary hearings are the exception, not the rule."). This is so even if the files and records of the case do not clearly rebut the allegations of the claim. Id. The party seeking an evidentiary hearing in a § 2255 proceeding therefore carries a fairly high burden of demonstrating a need for such a hearing, and the decision whether to grant one is "committed to the district court's discretion." Pollard, 959 F.2d at 1031.

III. DISCUSSION

Defendant's Motion claims that Defendant was subject to constitutionally ineffective assistance of counsel, and Defendant's Traverse claims that Defendant received a constitutionally defective sentence pursuant to Apprendi v. New Jersey, 530 U.S. 466, 12G S.Ct. 2348, 147 L.Ed.2d 435 (2000) and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The Court will address each of these claims in turn.

A. Ineffective Assistance of Counsel

Under the test for ineffective assistance of counsel, as set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a successful claimant must meet two requirements. First, the party must show that his attorney's deficient representation fell below "an objective standard of reasonableness." Id. The attorney must have made "errors so serious that counsel was not functioning as the `counsel' guaranteed by the Sixth Amendment." Id. Legal advice is adequate unless counsel is not "a reasonably competent attorney" and the advice is not "within the range of competence demanded of attorneys in criminal cases." Id. (quoting McMann v. Richardson, 397 U.S. 759, 770, 90 S.Ct. 1441, 25 L.Ed.2d 763(1970)).

A court conducting an inquiry should measure attorney performance under "prevailing professional norms," and "[j]udicial scrutiny of counsel's performance must be highly deferential." Id, at 688-90, 104 S.Ct. 2052. As such, the Defendant must overcome a strong presumption that counsel rendered effective assistance and "that counsel's conduct falls within the wide range of reasonable professional assistance." United States v. Askew, 88 F.3d 1065, 1070 (D.C.Cir.1996) (quoting Strickland, 466 U.S. at 689-90, 104 S.Ct. 2052).

Notwithstanding the burden to establish professionally defective assistance, the Defendant must also satisfy the second prong of the Strickland test — i.e., prejudice sufficient to create a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." 466 U.S. at 694, 104 S.Ct. 2052. This requires the Defendant to affirmatively show that counsel's mistakes were so serious "as to deprive the defendant of a fair trial." Id. at 687, 104 S.Ct. 2052. A showing of sufficient prejudice requires more than a mere allegation "that the errors had some conceivable effect on the outcome of the proceedings." Id. at 693, 104 S.Ct. 2052. Rather, a defendant must demonstrate that "counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. at 686, 104 S.Ct. 2052.

Lastly, a court deciding an ineffective assistance of counsel claim does not need to address both the deficient performance and prejudice components of the inquiry if an insufficient showing on one prong is evidenced. Id. at 697, 104 S.Ct. 2052 ("If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed."). Accordingly, Defendant must show that his trial counsel made professional errors sufficient to affect the outcome at trial.

1. Claims Related to "Plea Phase"

Defendant's first set of arguments relates to his counsel's performance during the plea process, which Defendant argues was so deficient as to interfere with his Sixth Amendment rights. Def.'s Mot. at 10. Although the specifics of Defendant's argument are not entirely clear, it appears Defendant is arguing that he would have accepted the....