United States v. Mahdi

• Decision Date: 25 November 2013
• Docket Number: Criminal No. 01–396–01 ESH
• Citation: 999 F.Supp.2d 236
• Court: U.S. District Court — District of Columbia
• Parties: United States, v. Abdur Mahdi, Defendant.

999 F.Supp.2d 236

United States
v.
Abdur Mahdi, Defendant.

Criminal No. 01–396–01 ESH

United States District Court, District of Columbia.

November 25, 2013

999 F.Supp.2d 238

Amy Jeffress, Patricia Heffernan, U.S. Attorney's Office, Washington, DC, for United States.

Bernard S. Grimm, Law Office of Bernard S. Grimm, Mary Manning Petras, Federal Public Defender for D.C., Robert Saul Becker, Marie Elise Haldane, Washington, DC, for Defendant.

MEMORANDUM OPINION

ELLEN SEGAL HUVELLE, United States District Judge

Defendant Abdur Mahdi has filed a pro se motion to vacate, set aside, or correct his criminal conviction and sentence pursuant to 28 U.S.C. § 2255. (Def.'s Mot. to Vacate, Set Aside, or Correct Sentence, Oct. 17, 2011 (“Def.Mot.”).) For the reasons set forth herein, the motion is denied as to all claims except the ineffective assistance of counsel claim, which requires an evidentiary hearing.

BACKGROUND

In 2003, Mahdi was tried by a jury and convicted on 48 counts of a 49–count indictment. Six counts were vacated on appeal, see United States v. Mahdi, 598 F.3d 883, 898 (D.C.Cir.2010)(“Mahdi Direct Appeal ”), so he presently stands convicted of 42 counts, including 24 federal counts¹ and 18 counts under District of Columbia law.² For these offenses, Mahdi is serving

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multiple concurrent life sentences (and lesser terms of incarceration), followed by one 7—year and five 25—year consecutive sentences for the six Federal Firearm Convictions. (Judgment of Conviction, Dec. 22, 2003.)

Following the Supreme Court's denial of his petition for certiorari, see Mahdi v. United States, ––– U.S. ––––, 131 S.Ct. 484, 178 L.Ed.2d 306 (2010), Mahdi timely filed the pending motion. After examining the motion, and the affidavits Mahdi subsequently filed in support thereof (see Notice of Filing, Def.'s Supplemental Filing in Support of Section 2255 Mot., Dec. 9, 2011 (“Def.Supp.Filing”), the Court ordered the government to file a response.³ (Order, Dec. 16, 2011.) The government opposed the motion (Gov't's Opp'n to Def.'s Pro Se Mot. to Vacate Conviction and Sentence Pursuant to 28 U.S.C. § 2255, Feb. 15, 2013 (“Gov't Resp.”)), and Mahdi filed a reply. (Movant's Reply in Answer to the Gov't's Opp'n to Movant's Mot. to Vacate Pursuant to 28 U.S.C. § 2255, Apr. 1, 2013 (“Def.Reply”).)

ANALYSIS

Mahdi's § 2255 motion makes the following claims: (1) that his counsel's failure to call as a witness an individual whose testimony would have exonerated Mahdi of the Hattley murder and related charges deprived him of his Sixth Amendment right to the effective assistance of trial counsel; (2) that the prosecution's failure to turn over impeachment evidence deprived him of his Fifth Amendment right to due process; (3) that the Narcotics Conspiracy Conviction and five of the six Federal Firearm Convictions violate the Fifth Amendment's Double Jeopardy Clause; and (4) that the prosecution's decision to charge him in a single indictment with both federal and state law offenses violated the Assimilative Crimes Act, 18 U.S.C. § 13, and deprived him of his Fifth Amendment right to equal protection.^F4

I. LEGAL STANDARD

Section 2255(a) of the United States Code provides that “[a] prisoner in custody under sentence of a [federal] court ... claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States ... may move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a). Where the motion is not dismissed prior to service upon the United States Attorney, the court will “determine the issues and make findings of fact and conclusions of law with respect thereto.” Id. § 2255(b). “If the court finds that the

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judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.” Id.

If an evidentiary hearing is sought, the prisoner bears a “fairly high burden of demonstrating a need for such a hearing,” United States v. Geraldo, 523 F.Supp.2d 14, 17 (D.D.C.2007), and the decision whether to grant an evidentiary hearing “is committed to the district court's discretion.” United States v. Pollard, 959 F.2d 1011, 1031 (D.C.Cir.1992) ; see also United States v. Morrison, 98 F.3d 619, 625 (D.C.Cir.1996) (“[A] district judge's decision not to hold an evidentiary hearing before denying a § 2255 motion is generally respected as a sound exercise of discretion when the judge denying the § 2255 motion also presided over the trial in which the [defendant] claims to have been prejudiced.”). The § 2255 motion must “raise[ ] ‘detailed and specific’ factual allegations whose resolution requires information outside of the record or the judge's ‘personal knowledge or recollection.’ ” Pollard, 959 F.2d at 1031 (quoting Machibroda v. United States, 368 U.S. 487, 495, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962) ). In addition, “[e]ven if the files and records of the case do not clearly rebut the allegations of the prisoner, no hearing is required where [defendant's] claims are ‘vague, conclusory, or palpably incredible.’ ” Pollard, 959 F.2d at 1031 (quoting Machibroda, 368 U.S. at 495, 82 S.Ct. 510 ).

II. SIXTH AMENDMENT INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM

Mahdi's first claim is that he was deprived of his Sixth Amendment right to the effective assistance of counsel due to his trial counsel's failure to call a witness, Jacob Vonderpool, to testify at trial.⁵

To prevail on a claim for ineffective assistance of counsel, a defendant must be able to show both “deficient performance” and “prejudice.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A counsel's performance is deficient if it falls below “an objective standard of reasonableness” defined by “prevailing professional norms.” Id. at 688, 104 S.Ct. 2052. Prejudice exists if “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. “Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim.” Id. at 700, 104 S.Ct. 2052.

According to Mahdi, Vonderpool, an eyewitness to the shooting death of Curtis Hattley, would have testified that Mahdi was not the shooter, and trial counsel was made aware prior to the trial of Vonderpool's existence and his willingness to provide potentially exonerating testimony at trial, yet counsel failed to further investigate or call Vonderpool to testify. (Def.

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Mot. at 2 (counsel “committed an egregious error in abandoning Vonderpool as a defense witness”).) As for prejudice, Mahdi contends that had Vonderpool testified, there is a reasonable probability that he would not have been convicted of the Hattley murder or any related counts.⁶

Mahdi's allegations are primarily supported by an affidavit from Vonderpool, who states as follows:

1. On the evening of November 17, 1999, I was visiting a friend in the 1300 block of Taylor Street, N.W., Washington, D.C. Then my friend Marcus and I began heading towards the corner store at 14th and Shepherd streets, N.W. We walked north up Taylor St. to an alley on the left hand side of the street, near the end of the block. We entered the alley to travel in a short cut across to Shepherd Street, which the next street over and where the corner store sat up on the corner. While in the alley we say a blue car with tinted windows pull into the alley from off Shepherd Street and a guy got out that I recognized as someone that I seen in the area named Joe. Joe had a gun in his hand and went out the alley and turned right.

2. Marcus and I exited the alley and turned right on Shepherd Street, headed up toward the corner store and a small bluish car drove up headed up toward the corner store with two people inside. Up ahead I saw a guy named Musa and Radar in the street and a guy name Joe. Radar had a gun and Joe had a gun, as the car reached the corner Radar start shooting into the car. I did not see Musa shoot nor did I see Joe shoot. It was Radar that was the only one shooting and I heard him yell to one of the people in the car, “I told you stay the fuck away from my woman,” right before he fired his gun. Me and Marcus then turned around and headed back through the alley.

3. Then in or about the fall of 2002, I met and spoke with an

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