United States v. Mahdi

• Decision Date: 24 March 2016
• Docket Number: Criminal No. 01-396-01 (ESH)
• Parties: United States v. Abdur Mahdi, Defendant.
• Court: U.S. District Court — District of Columbia

172 F.Supp.3d 57

United States

v.Abdur Mahdi, Defendant.

Criminal No. 01-396-01 (ESH)

United States District Court, District of Columbia.

Signed March 24, 2016

Amy Jeffress, Angela S. George, James Stephen Sweeney, Joan Draper, Margaret J. Chriss, Patricia Heffernan, Sherri Lee Berthrong, U.S. Attorney's Office, Washington, DC, for United States.

Bernard S. Grimm, The Law Offce of Bernard Grimm, Mary Manning Petras, Federal Public Defender for the District of Columbia, Robert Saul Becker, Law Offices of Robert S. Becker, Marie Elise Haldane, Washington, DC, for Defendant.

MEMORANDUM OPINION

ELLEN SEGAL HUVELLE

, United States District Judge

Before the Court is Abdur Mahdi's motion to vacate, set aside, or correct his criminal conviction and sentence pursuant to 28 U.S.C. § 2255

. (Mahdi Mot. to Vacate [ECF No. 856].) The gravamen of the motion pertains to his conviction for the November 17, 1999 murder of Curtis Hattley, which Mahdi now claims was committed by a former associate named Clarence “Radar” Howard. For the reasons set forth herein, the motion is denied as to all claims, including three claims raised for the first time in Mahdi's post-hearing briefs. Furthermore, because Mahdi has failed to make a substantial showing of the denial of a constitutional right, see 28 U.S.C. § 2253(c)(2), no certificate of appealability shall be issued.

BACKGROUND

Beginning in April 2003, Abdur Mahdi was tried on forty-nine D.C. and federal counts, including racketeering, narcotics distribution, perjury, obstruction of justice, assault with a dangerous weapon, and first degree murder. (See Retyped Indictment, July 14, 2003 [ECF No. 444].) On July 31, 2003, the jury found him guilty on forty-eight of those counts. (See Judgment of Conviction, Dec. 22, 2003 [ECF No. 580].) On appeal, Mahdi argued that (1) his indictment charged the same offense in more than one count; (2) the government failed to give requisite notice before introducing evidence of uncharged conduct; (3) various evidentiary rulings prevented him from mounting an effective defense; (4) his VICAR conviction violated the Commerce Clause; and (5) resentencing was necessary in order to merge certain D.C. counts into their corresponding federal counts. See generally United States v. Mahdi , 598 F.3d 883 (D.C.Cir.2010)

. The Court rejected all but the last argument, as the parties agreed that merger was appropriate on six narcotics possession and possession with intent to distribute counts. See

id. at 898. As such, Mahdi presently stands convicted of forty-two counts: twenty-four federal counts¹ and eighteen counts under D.C. law.² For these offenses, Mahdi was sentenced to multiple concurrent life sentences, followed by one seven-year and five twenty-five-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 , 562 U.S. 971, 131 S.Ct. 484, 178 L.Ed.2d 306 (2010)

, Mahdi timely filed the pending pro se motion. It raised four claims for relief: (1) that Mahdi received ineffective assistance of counsel, because his trial counsel failed to call an eyewitness (Jacob Vonderpool) who would have testified that someone other than Mahdi murdered Curtis Hattley; (2) that the government provided cooperating witnesses with special treatment in prison, and that the prosecution's failure to turn over this 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 violated the Fifth Amendment's Double Jeopardy Clause; and (4) that the prosecution's decision to charge him in a single indictment with both D.C. and federal offenses violated the Assimilative Crimes Act, 18 U.S.C. § 13, and deprived him of his Fifth Amendment right to equal protection.

Shortly after that filing, Mahdi submitted affidavits from three witnesses. First, Jacob Vonderpool claimed that he had witnessed the Hattley murder while walking to a store with a friend, and that the real shooter was a man named Radar. (Vonderpool Aff. [ECF No. 858-1] ¶¶ 1-2.) Vonderpool also asserted that he provided this information to both Mahdi's investigator Rebecca McMahon³ and trial counsel Bernard Grimm, and that he never heard back after Grimm promised to follow up and to likely call him as a trial witness. (See id. ¶¶ 3-5.) Finally, he claimed that he did not inform Mahdi of any of this until December 2010. (Id. ¶ 5.) An affidavit was filed by Mahdi's brother, Musa, who remains incarcerated after pleading guilty (as did three other Mahdi brothers) to various crimes arising from the Mahdi narcotics operation. (See Musa Mahdi Aff. [ECF No. 858-2]; Plea Agreement, Feb. 21, 2003 [ECF No. 287].) Musa's affidavit claimed that Abdur Mahdi was not present when Hattley was shot and that the real shooter was “Radar aka (Clarence).” (Id. )⁴ Finally, another convicted member of the Mahdi organization, Antoine Tabron, submitted an affidavit claiming that he received special privileges from the government while in prison, in exchange for information about Mahdi. (Tabron Aff. [ECF No. 858-3].) Tabron did not testify at trial or at the evidentiary hearing.

Following the parties' initial briefing, the Court found that only Mahdi's claim of ineffective assistance of counsel raised sufficient factual questions to require an evidentiary hearing, and it denied the other three claims. See United States v. Mahdi , 999 F.Supp.2d 236, 250 (D.D.C.2013)

. The Court also appointed Mahdi's appellate counsel to represent him at the evidentiary hearing. (See Nov. 25, 2013 Order [ECF No. 881].)

Prior to the hearing, Mahdi moved for discovery on both the ineffective assistance of counsel claim and the previously denied Brady

/Giglio claim regarding witness favors. (See Mot. for Discovery [ECF No. 899].) In support of this motion, he submitted an affidavit from Joseph Hooker, a Mahdi co-defendant who testified against him at trial. (See Hooker Aff. [ECF No. 904-1].) In it, Hooker stated that the government brought food to him during debriefing sessions, asking what he would like the next day, in exchange for incriminating information about Mahdi. (See id. ¶¶ 4-6.) He also claimed to have found at least two packages in his cell containing a cellphone and cigarettes. (Id. ¶ 22.) Next, Hooker recanted his trial testimony implicating Mahdi in the shooting of Curtis Hattley, claiming that the real shooter was “Clarence Howard, who [people] called Radar.” (See id. ¶¶ 7-8, 11, 23-24.) Hooker stated that he only implicated Mahdi because that was what the government wanted, and that he chose not to implicate Radar because of his fear that Radar would kill him. (See id. ¶¶ 7, 14-20.) Mahdi thus argued that Hooker's affidavit buttressed Vonderpool's account of the shooting, making it more likely that Mahdi received ineffective assistance of counsel and was actually innocent of the Hattley murder. (See Mahdi Reply Br. [ECF No. 904] at 6-7.)

Based on the Hooker affidavit, the Court vacated its prior denial of Mahdi's Brady

/Giglio claim regarding undisclosed gifts to government witnesses, at least as to witnesses relating to the Hattley murder. (See Nov. 24, 2014 Order [ECF No. 905] at 2 n.2.) It also found that Mahdi had demonstrated good cause to conduct discovery into his ineffective assistance of counsel claim, identifying certain categories of evidence that should be disclosed. (See

id. at 1-2.) The government's subsequent May 19, 2015 production included two debriefing memos written by AUSA Michael Brittin, who was the original prosecutor on the case, regarding his pre-trial interviews with two witnesses to the Hattley murder—Hooker and Zakki Abdul-Rahim. (See May 19, 2015 Discovery Letter [ECF No. 922-1] ¶¶ (g), (m).) Mahdi did not mention these memos at the evidentiary hearing, nor did he attempt to enter them into evidence.

The evidentiary hearing took place on November 16-18, 2015. The Court heard testimony on the ineffective assistance claim from Rebecca McMahon, Jacob Vonderpool, Joseph Hooker, and Bernard Grimm. Vonderpool and Hooker testified to the same general topics addressed in their affidavits—their observation of Radar as he shot and killed Curtis Hattley, and for Vonderpool, his attempts to convey this information to Mahdi's defense team. (See Nov. 16, 2015 Tr. [ECF No. 939] at 51:23-155:15 (Vonderpool); id. at 165:13-181:13; Nov. 17, 2015 Tr. [ECF No. 940] at 11:24-116:22 (Hooker).) Grimm and McMahon testified that they could not recall whether Vonderpool offered them information about the Hattley murder, but they seriously questioned certain aspects of Vonderpool's account and, as will be discussed, provided strong circumstantial evidence that Vonderpool did not make any such offer. (See Nov. 16, 2015 Tr. at 10:11-47:14 (McMahon); Nov. 18, 2015 Tr. [ECF No. 941] at 4:2-40:23 (Grimm).)

The Court also heard testimony on the Brady

/Giglio claim from Hooker, Ken Mansfield and Paul Moloney. Mansfield, a former DOJ paralegal, testified that the government provided Hooker with food at debriefings, but nothing fancier than a fast-food sandwich or drink. (See Nov. 17, 2015 Tr. at 136:22-137:12.) He also testified that he never provided Hooker with a cellphone or cigarettes, nor had he seen or heard of anyone else from the government doing so. (Id. at 137:13-138:1.) Moloney, a DEA agent, could not remember whether he brought Hooker food during debriefings, but he did testify that he never brought Hooker a cellphone or cigarettes and had never seen anyone else from the government doing so. (Id. at 148:17-149:9.)

Following the testimony of Mansfield and Moloney, and given Hooker's testimony that he had no idea where the cellphones and cigarettes came from (id. at 73:4-19), the Court found nothing to tie the government to those gifts and thus substantiate the Brady

/Giglio claim. (See id. at 152:8-154:3.) The Court...