United States v. Burwell

• Citation: 79 F.Supp.3d 1
• Decision Date: 15 January 2015
• Docket Number: Civil Action No. 14–270,Criminal No. 04cr355–05 CKK
• Parties: United States of America, v. Bryan Burwell, Defendant.
• Court: U.S. District Court — District of Columbia

79 F.Supp.3d 1

United States of America

v.Bryan Burwell, Defendant.

Criminal No. 04cr355–05 CKK

Civil Action No. 14–270

United States District Court, District of Columbia.

Signed (January 15, 2015)

Barbara E. Kittay, Daniel Pearce Butler, U.S. Attorney's Office, Washington, DC, for United States of America.

Anthony Douglas Martin, Greenbelt, MD, for Defendant.

MEMORANDUM OPINION

COLLEEN KOLLAR–KOTELLY, UNITED STATES DISTRICT JUDGE

On July 15, 2005, Bryan Burwell (“Burwell”) was convicted by a jury in this Court of: conspiracy to conduct and participate, directly and indirectly, in the affairs of an enterprise, through a pattern of racketeering activity (“Count I”), including the armed robbery of the Industrial Bank located at 2012 Rhode Island Avenue, N.E., Washington, D.C., on or about June 12, 2004 (“Racketeering Act 3”) and the armed robbery of the Chevy Chase Bank located at 5823 Eastern Avenue, Chillum, Maryland, on or about May 27, 2004 (“Racketeering Act 6”); conspiracy to commit offenses against the United States, that is, armed robberies of banks the deposits of which were then insured by the Federal Deposit Insurance Corporation (“Count II”); armed robbery of the Industrial Bank on or about June 12, 2004 (“Count X”); and using and carrying a firearm during and in relation to a crime of violence on or about June 12, 2004 (“Count XI”). Presently before the Court is Burwell's pro se [822] Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. Upon a searching review of the parties' submissions,¹ the relevant authorities, and the record as a whole, the Court finds no grounds for setting aside Burwell's conviction and sentence at this time. However, the Court shall require further briefing on the sole issue of whether Burwell's trial counsel was ineffective by failing to investigate and interview two witnesses prior to trial, and shall hold in abeyance the motion only with respect to this claim. Burwell's motion is denied as to all other claims as described herein. Accordingly, the Court shall DENY IN PART and HOLD IN ABEYANCE Burwell's [822] Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence.

I. BACKGROUND

On August 3, 2004, a federal grand jury indicted Burwell and seven codefendants in connection with a string of bank robberies that occurred in the District of Columbia and Maryland.² Indictment, ECF No. [10]. The United States Court of Appeals for District of Columbia Circuit (“D.C.Circuit”) described the factual scenario:

[Burwell and his codefendants] indulged in a violent crime spree throughout the District of Columbia metro area that lasted for nearly a year and a half. Appellants, who began by cultivating and selling marijuana, evolved into a ring that committed armed bank robberies, using stolen vehicles to travel to the targeted banks and make their escapes. By the summer of 2004, the robbers had developed a signature style. The gang wore bullet-proof vests, masks, and gloves, and relied on superior fire power, preferring to use military weapons like AK–47s instead of handguns because they surmised the metropolitan police “wouldn't respond” when Appellants “robb[ed] banks with assault weapons.” The gang made use of several stolen vehicles, strategically placed along the get-away-route, for each robbery. The robbers would serially abandon the vehicles, often torching them in an attempt to destroy any forensic evidence that might be left behind.

United States v. Burwell, 642 F.3d 1062, 1064–65 (D.C.Cir.2011). The matter proceeded to trial in this Court, and Burwell was tried alongside five other codefendants. On July 15, 2005, a jury convicted Burwell on all four counts upon which he was charged in the indictment. Verdict Form, ECF No. [474].

On April 28, 2006, this Court sentenced Burwell to 135 months of imprisonment on Count I, 60 months of imprisonment on Count II, and 135 months of imprisonment on Count X to run concurrently to each other. The Court also sentenced Burwell to 360 months of imprisonment on Count XI to run consecutive to all counts. See Judgment in a Criminal Case, ECF No. [615]. Burwell filed a timely appeal of his conviction and on April 29, 2011, the D.C. Circuit affirmed Burwell's conviction in a published opinion. United States v. Burwell, 642 F.3d 1062 (D.C.Cir.2011). The D.C. Circuit then granted Burwell's petition for rehearing en banc on the issue of whether 18 U.S.C. § 924(c)(1)(B)(ii), the statute governing Count XI, requires the government to prove that the defendant knew that the weapon he was carrying while committing a crime of violence was capable of firing automatically. United States v. Burwell, 690 F.3d 500, 502 (D.C.Cir.2012). In a split opinion, the D.C. Circuit held that the statute in question did not require that the defendant know that the weapon he used, carried, or possessed was capable of firing automatically, and, accordingly, the D.C. Circuit affirmed Burwell's conviction. Id. at 516. Burwell filed a petition for writ of certiorari which was denied by the Supreme Court of the United States. United States v. Burwell, ––– U.S. ––––, 133 S.Ct. 1459, 185 L.Ed.2d 368 (2013). Burwell currently is serving his sentence.

Pending before the Court is Burwell's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. Burwell's motion is premised on overarching ineffective assistance of counsel claims at four stages of the proceedings, pre-trial, trial, post-trial, and appeal, by his trial counsel, Anthony D. Martin, and his appellate counsel, Robert S. Becker. Specifically, Burwell claims that his counsel rendered him ineffective assistance by: (1) failing to challenge the violation of his statutory right to a speedy trial prior to trial; (2) failing to raise double jeopardy and multiplicity challenges to the indictment prior to trial and failing to move to dismiss based on this challenge during trial; (3) failing to raise a Confrontation Clause challenge to certain evidence during trial and on appeal; (4) generally providing a “poor overall performance” at trial; (5) failing to allow Burwell to exercise his right to testify at trial; (6) failing to challenge government misconduct at trial and on appeal; (7) failing to give an effective closing argument at trial; (8) failing to request an informant jury instruction at trial; (9) failing to request a theory-of-defense instruction at trial; (10) failing to request polling of the jury at trial; (11) failing to properly challenge juror misconduct and bias at trial and on appeal; and (12) failing to conduct pre-trial interviews of potential defense witnesses. Burwell also claims that the jury instructions related to Count XI were erroneous in light of the Supreme Court's holding in Rosemond v. United States, ––– U.S. ––––, 134 S.Ct. 1240, 188 L.Ed.2d 248 (2014).

II. LEGAL STANDARD

Under 28 U.S.C. § 2255, a prisoner in custody under sentence of a federal court may move the sentencing court to vacate, set aside, or correct its sentence if the prisoner believes 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(a). The circumstances under which such a motion will be granted, however, are limited in light of the premium placed on the finality of judgments and the opportunities prisoners have to raise most of their objections during trial or on direct appeal. “[T]o obtain collateral relief a prisoner must clear a significantly higher hurdle than would exist on direct appeal.” United States v. Frady, 456 U.S. 152, 166, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). Nonetheless, “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall ... grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.” 28 U.S.C. § 2255(b).

A prisoner may not raise a claim as part of a collateral attack if that claim could have been raised on direct appeal, unless he can demonstrate either: (1) “cause” for his failure to do so and “prejudice” as a result of the alleged violation, or (2) “actual innocence” of the crime of which he was convicted. Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). However, “[w]here 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.” United States v. Cook, 130 F.Supp.2d 43, 45 (D.D.C.2000), aff'd, 22 Fed.Appx. 3 (D.C.Cir.2001) (citation omitted).

A defendant claiming ineffective assistance of counsel must show (1) “that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms,” and (2) “that this error caused [him] prejudice.” United States v. Hurt, 527 F.3d 1347, 1356 (D.C.Cir.2008) (citation omitted). “Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence.” Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). It is the petitioner's burden to show that counsel's errors were “so serious” that counsel could not be said to be functioning as the counsel guaranteed by the Sixth Amendment. Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 787, 178 L.Ed.2d 624 (2011). “The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions.... [I]nquiry into counsel's conversations with the defendant may be critical to a proper assessment of ... counsel's other litigation decisions.” Strickland, 466 U.S. at...