UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
UNITED STATES OF AMERICA )
)
)
v. ) Criminal Action No. 04-128-06 (RMC)
)
)
KENNETH DODD, )
)
Defendant. )
)
MEMORANDUM OPINION
On January 9, 2007, the Court began jury selection for a death penalty trial with four
co-defendants: Kenneth Dodd, Tommie Dorsey, Jonte Robinson, and Larry Gooch, Jr. During the
jury selection process, Messrs. Dodd, Dorsey, and Robinson entered into a “wired” plea agreement
with the United States. Each of them pled guilty to narcotics conspiracy, RICO conspiracy, and
various gun charges. In addition, Messrs. Dorsey and Robinson pled guilty to two murders, in return
for which the parties agreed to a sentence of 25 years for each Defendant. The plea agreement was
presented to the Court on January 17, 2007, pursuant to Federal Rule of Criminal Procedure
11(c)(1)(C). The Court went through separate colloquies with each Defendant pursuant to Federal
Rule of Criminal Procedure 11, and Messrs. Dodd, Dorsey, and Robinson each pled guilty after
satisfying the Court that their pleas were knowing and voluntary. Mr. Gooch proceeded to trial and
was later convicted and sentenced to life in prison.
Several months after pleading guilty and only two days before the jury began
deliberating in Mr. Gooch’s trial, Mr. Dodd filed a notice stating that he wanted to withdraw his
guilty plea. See Dodd’s May 7, 2007 Notice [Dkt. # 790].1 Mr. Dodd claimed that: 1) the Court had
not, in fact, accepted his plea; 2) the Court did not specifically inform him that his plea could not be
withdrawn once accepted; 3) the Court improperly inserted itself into the plea-bargaining process;
and 4) his plea was coerced. See id. The Court rejected each of Mr. Dodd’s arguments and denied
his motion. See United States v. Robinson, 498 F. Supp.2d 328 (D.D.C. 2007).
On May 5, 2008, in accordance with the plea agreement, Mr. Dodd was sentenced to
287 months incarceration and five years of supervised release. See Minute Entry May 5, 2008. Mr.
Dodd appealed the judgment arguing that: 1) the Court did not accept his guilty plea; 2) the Court
abused its discretion in denying his motion to withdraw his plea; 3) the Court’s Rule 11 colloquy was
defective; 4) the Court improperly intruded itself into the plea-bargaining process; 5) he was coerced
into accepting the plea; and 6) he should be able to withdraw his plea based upon new sentencing
guidelines that lowered the base level for crack cocaine offenses. See United States v. Robinson, 587
F.3d 1122 (D.C. Cir. 2009). The Court of Appeals rejected each of Mr. Dodd’s arguments and
affirmed the district court’s judgment. See id.
On December 17, 2010, Mr. Dodd filed a motion to vacate his sentence under 28
U.S.C. § 2255. [Dkt # 1125]. He withdrew this motion on February 7, 2011 and, with the Court’s
leave, filed an amended § 2255 motion on April 11, 2011. See [Dkt # 1135] (“Mot. to Vacate”). The
United States opposed this motion [Dkt # 1162] and Mr. Dodd filed a reply on September 19, 2011
[Dkt # 1168]. Mr. Dodd’s motion will be denied.
1
Mr. Dodd’s co-defendants filed similar notices which were also denied. See Robinson’s
May 3, 2007 Notice [Dkt. # 789] & May 21, 2007 Notice [Dkt. # 807]; Dorsey’s June 13, 2007
Notice [Dkt. # 822].
-2-
I. LEGAL STANDARD
Under 28 U.S.C. § 2255, a prisoner sentenced in federal court may move to vacate,
set aside, or correct his sentence if the sentence was imposed “in violation of the Constitution or laws
of the United States, or . . . the court was without jurisdiction to impose such sentence, or . . . the
sentence was in excess of the maximum authorized by law, or [the sentence] is otherwise subject to
collateral attack.” 28 U.S.C. § 2255. To gain relief under § 2255, the defendant must show “a good
deal more than would be sufficient on a direct appeal from his sentence.” United States v. Pollard,
959 F.2d 1011, 1020 (D.C. Cir. 1992), cert. denied, 506 U.S. 915 (1992). The defendant must
demonstrate, by a preponderance of the evidence, United States v. Simpson, 475 F.2d 934, 935 (D.C.
Cir. 1973), that “the plea proceeding was tainted by a fundamental defect which inherently results
in a complete miscarriage of justice or an omission inconsistent with the rudimentary demands of fair
procedure.” United States v. Weaver, 265 F.3d 1074, 1077 (D.C. Cir. 2001), cert. denied, 535 U.S.
955 (2002). Typically, a prisoner is entitled to an evidentiary hearing to meet his burden unless “the
motion and files and records of the case conclusively show the prisoner is entitled to no relief.”
United States v. Morrison, 98 F.3d 619, 625 (D.C. Cir. 1996).
II. ANALYSIS
Mr. Dodd argues that his sentence should be vacated because: a) the Court lacked
jurisdiction; b) “[t]he indictment failed to allege any facts by and through a witness competent to
testify, testifying under oath and attesting to authenticated evidence to show that a violation of
federal law had occurred under any statutory authority;” c) his plea was coerced; d) he had ineffective
-3-
assistance of counsel; e) he was “deprived of [his] Sixth Amendment right[] to confrontation;” and
f) one or more search warrants was defective.2
A. Jurisdiction
Mr. Dodd argues that “[t]he court was deprived of subject matter jurisdiction due to
due process of law violations and fraud on the court.” Mot. to Vacate at 1. Mr. Dodd does not
explain what these alleged violations were or what fraud deprived this Court of jurisdiction. See id.
Because Mr. Dodd was charged with (and pled guilty to) a violation of federal law, this Court had
jurisdiction. See 18 U.S.C. § 3231; cf. United States v. Clark, 8 F.3d 839 (1993) (“[T]here is no
doubt that the United States Attorney for the District of Columbia enjoys free rein in deciding
whether to prosecute in federal or in Superior Court, where the facts support a violation of both local
and federal law.”)
B. Faulty Indictment
Mr. Dodd’s complaint with respect to the indictment is difficult to decipher. Aside
from his opaque and conclusory statement that, “[t]he indictment failed to allege any facts by and
2
Dodd contends that he:
“was deprived of recording and deposition upon learning that an applicant
is requesting a warrant under Federal Crim. P. Rule 41(d)(3)(A) . . . .
Defendant deprived of due process of law 5th Amendment and 6th
Amendment confrontation and Rule 16 standing discovery by U.S. Magistrate
Judge, prosecution and defense attorney malpractice and prejudice covering
up fact no prosecution eyewitness exists to testify under oath under
constitution Fourth Amendment warrant upon probably cause supported by
oath or affirmation, and particularly describing the place to be searched, and
person or things to be seized.”
Liberally construing this claim in Mr. Dodd’s favor, see Haines v. Kerner, 404 U.S.
519, 520-521 (1972), the Court assumes Mr. Dodd is arguing that his sentence
should be vacated because one or more search warrants was invalid.
-4-
through a witness competent to testify, testifying under oath and attesting to authenticated evidence
to show that a violation of federal law had occurred under any statutory authority,” Mr. Dodd gives
no argument or insight into what it is specifically that he is claiming. Mot. to Vacate at 1. To the
extent he is complaining about the inadequacy of the indictment, he waived that claim with his guilty
plea. See, e.g., United States v. Fitzgerald, 466 F.2d 377, 379 (D.C. Cir. 1972) (“a voluntary plea
of guilty waives all rights and defenses, known and unknown, past or future”); Hayle v. United
States, 815 F.2d 879, 881 (2nd Cir. 1987) (by pleading guilty, defendant waives all non-jurisdictional
challenges to the prosecution and defects in the prior proceeding).
C. Coerced Plea
Mr. Dodd has twice raised his argument that his guilty plea was coerced and both this
Court and the D.C. Circuit have found it to be without merit. See United States v. Robinson, 498 F.
Supp.2d 328 (D.D.C. 2007), aff’d, 587 F.3d 1122 (D.C. Cir. 2009). Mr. Dodd gives no reason why
this Court should revisit this issue, and it therefore declines to do so. See, e.g., United States v.
Greene, 834 F.2d 1067, 1070 (D.C. Cir. 1987) (“[I]t is . . . well established that a court may decline
to review issues raised in a section 2255 motion that have already been decided on direct review”),
cert. denied, 487 U.S. 1238 (1988); Brodie v. United States, 626 F. Supp. 2d 120, 122 (D.D.C. 2009)
(“It is well established in the federal circuits that a federal prisoner cannot raise collaterally any issue
litigated and adjudicated on a direct appeal from his conviction, absent an intervening change in the
law.”)
D. Ineffective Assistance of Counsel
Mr. Dodd alleges that “[t]he attorneys that have handled this case from the beginning
have been inept, inadequate and in this case have committed malpractice against my civil liberties
-5-
and human rights as a defendant in this case.” Mot. to Vacate at 1-2. Like the rest of his allegations,
this one is fatally conclusory. Mr. Dodd provides neither support for nor an explanation of how his
counsel was allegedly ineffective. To prevail on this claim, he must be able show that 1) his counsel
“made errors so serious that [his] counsel was not functioning as the ‘counsel’ guaranteed . . . by the
Sixth Amendment,” and 2) that his counsel’s “deficient performance prejudiced [his] defense.”
Strickland v. Washington, 466 U.S. 668, 687 (1984). Mr. Dodd has not met either standard, and his
claim must be denied.
E. Sixth Amendment Right to Confrontation
In pleading guilty, Mr. Dodd expressly waived his Sixth Amendment right to confront
the United States’ witnesses. See, e.g. Fitzgerald, 466 F.2d at 379; Hayle, 815 F.2d at 881. Having
waived this right, Mr. Dodd cannot rely upon it to vacate his sentence.
F. Defective Search Warrant(s)
Like his claim under the Sixth Amendment, Mr. Dodd waived any claim he may have
had under the Fourth Amendment for any unlawful search or seizure. See id. Accordingly, the Court
will not vacate or modify his sentence based upon an allegedly defective search warrant, especially
when, as here, Dodd fails to identify the search or seizure and how it was (allegedly) constitutionally
infirm. Additionally, the validity of all search warrants was already litigated in pretrial proceedings,
in which Mr. Dodd was a full and active participant.
-6-
III. CONCLUSION
For the forgoing reasons, Mr. Dodd’s motion to vacate or amend his sentence [Dkt.
# 1134] is denied. A memorializing Order accompanies this Memorandum Opinion.
DATE: December 6, 2011 /s/
ROSEMARY M. COLLYER
United States District Judge
-7-