United States v. Gooch

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
___________________________________
)
UNITED STATES OF AMERICA, )
)
v. ) Criminal No. 04-128-23 (RMC)
)
LARRY GOOCH, )
)
Defendant. )
___________________________________ )

OPINION
Larry Gooch has filed a pro se Motion under 28 U.S.C. § 2255 to vacate, set

aside, or correct his criminal convictions and sentence. The United States opposes the motion.

The Court has reviewed the motion carefully and concludes that it must be denied. Mr. Gooch’s

claims are without merit.

I. FACTS

Larry Gooch was a defendant in the multi-defendant prosecution of a drug dealing

enterprise—the M Street Crew—in Washington, D.C. An investigation of the M Street Crew by

the Safe Streets Task Force, a joint effort by the D.C. Metropolitan Police Department (MPD)

and the Federal Bureau of Investigation (FBI), began in 2002 and ended on March 16, 2004,

when thirty-nine individuals were arrested in the District of Columbia, Maryland, Virginia, New

York, and California. In a 159-Count Superseding Indictment filed on October 19, 2005, a

Grand Jury charged Mr. Gooch and his co-defendants with, among other crimes, narcotics

conspiracy, in violation of 21 U.S.C. § 846; racketeering conspiracy, in violation of the

Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961–68; narcotics

trafficking; murder and other violent crimes; and various weapons crimes. See Superseding

Indictment [Dkt. 386].

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 The Superseding Indictment charged Mr. Gooch with four murders in connection

with the M Street Crew conspiracy. See id. at 51–58, 60–61. On October 19, 2005, the

Government filed a notice of intent to seek the death penalty against Mr. Gooch for Counts 126

and 128, i.e., the murders of Yolanda Miller and Calvin Cooper. Notice of Intent to Seek Death

Penalty [Dkt. 378]. The M Street Crew defendants were divided into three groups for trial. The

Group One defendants, including Jonathan Franklin, the leader of the M Street Crew, George

Wilson, William Robinson, William Simmons, and Joseph Blackson, went to trial and a jury

found them guilty on May 25, 2006. See March 6, 2006 Minute Entry; Verdict Form as to

Franklin, et al. [Dkt. 552]. The Group Two defendants, including Anthony Davis, Kenneth Cole,

Elliot Fields, James Hill, Shawn Hinson, Jamal Hinson, and Regina Lenear, entered guilty pleas

on December 21, 2005 and December 14, 2006. See Dec. 21, 2005 Minute Entry (guilty pleas

entered as to Ms. Lenear and Messrs. Cole, Davis, Hill, Fields, and Jamal Hinson); Dec. 14, 2006

Minute Entry (guilty plea entered as to Shawn Hinson). Group Three defendants Mr. Gooch,

Kenneth Dodd, Jonte Robinson, and Tommie Dorsey went to trial on January 9, 2007, but

Messrs. Dodd, Robinson, and Dorsey entered guilty pleas after jury selection. See Jan. 9, 2007

Minute Entry; Jan. 17, 2007 Minute Entry (guilty pleas entered as to Messrs. Dodd, Robinson,

and Dorsey). As a result, Mr. Gooch was the sole defendant at trial, and a jury found him guilty

on June 1, 2007. See Verdict Form as to Mr. Gooch [Dkt. 812].

Mr. Gooch’s appointed trial counsel was Thomas Heslep. After the United States

announced that it might, and then that it would, seek the death penalty, Jensen Barber and James

Connell, III, were appointed as “learned counsel.” See 18 U.S.C. § 3005 (“Whoever is indicted

for . . . [a] capital crime shall” have appointed two counsel, “of whom at least 1 shall be learned

in the law applicable to capital cases.”). Mr. Heslep filed multiple pre-trial motions on behalf of

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Mr. Gooch, which were ultimately denied. See, e.g., Mot. to Suppress Statements [Dkt. 557];

June 14, 2006 Mot. to Sever Counts [Dkt. 565]; Mot. to Dismiss Counts One and Two

[Dkt. 576]; Mot. to Strike Lurk Murder Evidence [Dkt. 577]; July 6, 2006 Mot. to Sever Counts

[Dkt. 579]; Mot. to Strike Death Penalty [Dkt. 580]; Mot. to Suppress Identification Testimony

[Dkt. 667]; Oct. 25, 2006 Minute Entry; Nov. 7, 2006 Mem. Op. & Order [Dkt. 692]; Mot. to

Strike Graffiti Evidence [Dkt. 706]; Mot. to Allow Polygraph Cross-Examination [Dkt. 707];

Dec. 20, 2006 Mem. Op. & Order [Dkt. 712]. Counsel also made an oral motion to strike the

Government’s opening statement on February 7, 2007; oral motions for a mistrial on February

27, 2007 and April 25, 2007; and an oral motion for judgment of acquittal on May 2, 2007. For

the reasons stated on the record, these motions also were denied.

On June 1, 2007, the jury convicted Mr. Gooch of narcotics conspiracy, RICO

conspiracy, drug dealing, four felony murders, assault with intent to kill while armed, assault on

a police officer, three violent crimes in aid of racketeering (VICAR), 18 U.S.C. § 1959, and

various gun charges. United States v. Gooch, 514 F. Supp. 2d 63, 64 (D.D.C. 2007); see also

Verdict Form as to Mr. Gooch.

The trial evidence showed that the M Street Crew “coordinated their drug-dealing

efforts, cooperated with one another to avoid arrest and imprisonment, and maintained a

reputation for violence.” United States v. Gooch, 665 F.3d 1318, 1322 (D.C. Cir. 2012). Mr.

Gooch served as the primary “muscle” for the M Street Crew, enforcing the gang’s rules,

participating in violent activities, and punishing disloyalty amongst its members. Id.

Mr. Gooch was convicted of the August 1, 2000 robbery and murders of William

Cunningham and Christopher Lane. Id. at 1322–23; Verdict Form as to Mr. Gooch at 6–8. Mr.

Gooch was also convicted of the February 21, 2003 murders of Calvin Cooper and Yolanda

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Miller. Id. at 1322–23. On the latter two murders, the jury declined to proceed to the death

penalty. See Death Penalty Phase Eligibility Verdict Form [Dkt. 821].

On September 14, 2007, this Court sentenced Mr. Gooch to life imprisonment on

Count 1 (narcotics conspiracy); a mandatory term of life imprisonment on Count 2 (RICO

conspiracy); forty years on Count 25 (distribution of crack cocaine near a school); twenty years

on Count 26 (distribution of ecstasy near a school); forty years on Count 29 (distribution of crack

cocaine near a school); a mandatory term of fifteen years to life on Count 110 (first degree

burglary while armed, 22 D.C. Code §§ 801(a), 4502); a mandatory term of thirty years to life on

Count 112 (first degree felony murder while armed, 22 D.C. Code §§ 2101, 4502); a mandatory

term of thirty years to life on Count 113 (first degree felony murder while armed, 22 D.C. Code

§§ 2101, 4502); twenty years to life on Count 116 (second degree murder while armed, 22 D.C.

Code §§ 2102, 4502); twenty years to life on Count 117 (second degree murder while armed, 22

D.C. Code §§ 2102, 4502); thirty years to life on Count 122 (assault with intent to kill while

armed, 22 D.C. Code §§ 2101, 4502); eight years on Count 123 (assaulting a police officer with

a dangerous weapon, 22 D.C. Code § 405(b)); twenty years on Count 124 (violent crime in aid of

racketeering); sixty years on Count 125 (first degree premeditated murder while armed, 22 D.C.

Code §§ 2101, 4502); a mandatory term of life imprisonment on Counts 126 and 128 (violent

crime in aid of racketeering activity); sixty years on Count 127 (first degree premeditated murder

while armed, 22 D.C. Code §§ 2101, 4502); a mandatory term of five years on Count 145 (use of

a firearm during and in relation to a crime of violence or drug trafficking crime, 18 U.S.C.

§ 924(c)); mandatory terms of twenty-five years on Counts 146 and 147 (use of a firearm during

and in relation to a crime of violence or drug trafficking crime, 18 U.S.C. § 924(c)); five to

fifteen years on Counts 150, 152, and 153 (possession of a firearm during a crime of violence, 22

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D.C. Code § 4504(b)); and thirteen years on Counts 155, 156, and 157 (possession of a firearm

during a crime of violence, 22 D.C. Code § 4504(b)). See Judgment [Dkt. 891] at 1–5. Mr.

Gooch filed a timely appeal. 1 After full arguments concerning jury selection, trial, and verdict,

the D.C. Circuit affirmed Mr. Gooch’s convictions and sentence on January 6, 2012. See Gooch,

665 F.3d at 1338.

Mr. Gooch timely filed the instant motion on April 9, 2013, less than one year

after the U.S. Supreme Court denied his petition for writ of certiorari. 2 United States v. Gooch,

665 F.3d 1318 (D.C. Cir. 2012), cert denied, 132 S. Ct. 1981 (2012); see also 28 U.S.C.

§ 2255(f)(1) (providing a one-year limitations period from, inter alia, “the date on which the

judgment of conviction becomes final”).

II. LEGAL STANDARD

A federal prisoner claiming the right to be released on the ground 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,” may move the court

which imposed the sentence to vacate, set aside, or correct the sentence. 28 U.S.C. § 2255(a).

Because “Section 2255 is not a substitute for a direct appeal,” “in order to gain relief under any

claim, [the movant] is obliged to show a good deal more than would be sufficient on a direct

1
Mr. Gooch was represented by Stephen Leckar on appeal. See United States v. Gooch, 665
F.3d 1318 (D.C. Cir. 2012).
2
The Court received and docketed Mr. Gooch’s Motion on April 24, 2013. However, under the
prison mailbox rule, the operative filing date is that on which petitioner placed his motion in the
prison mail system to be sent to the Court. Houston v. Lack, 487 U.S. 266, 270–71 (1988).
Since Mr. Gooch mailed his Motion on April 9, 2013, the Court deems it filed as of that date.

5
appeal from his sentence.” United States v. Pollard, 959 F.2d 1011, 1020 (D.C. Cir. 1992)

(citing United States v. Frady, 456 U.S. 152, 165 (1982)).

A hearing need not be held on a § 2255 motion when “the motion and the files

and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C.

§ 2255(b); accord United States v. Morrison, 98 F.3d 619, 625 (D.C. Cir. 1996). When the

judge ruling on the § 2255 motion is the same judge who presided over the trial, as is the case

here, the decision as to whether an evidentiary hearing is necessary is within the discretion of the

Court. See Morrison, 98 F.3d at 625. “When a § 2255 motion involves ineffective assistance of

counsel, a hearing is not required if the district court determines that the ‘alleged deficiencies of

counsel did not prejudice the defendant.’” United States v. Weaver, 234 F.3d 42, 46 (D.C. Cir.

2000) (quoting United States v. Sayan, 968 F.2d 55, 66 (D.C. Cir. 1992)) (other citation omitted).

III. ANALYSIS

Mr. Gooch challenges his convictions on the following grounds: (1) ineffective

assistance of trial counsel for failing to attack the Grand Jury’s indictment procedure;

(2) ineffective assistance of trial counsel for eliciting damaging testimony on cross-examination

regarding the February 21, 2003 murders of Calvin Cooper and Yolanda Miller; (3) ineffective

assistance of appellate counsel for failing to challenge trial counsel’s performance on the

aforesaid cross-examination; and (4) ineffective assistance of trial counsel for failing to request a

change of venue. See Section 2255 Motion (Def. Mot.) [Dkt. 1212] at 16–34; Def. Reply

[Dkt. 1228] at 3–15.

The Court finds that no evidentiary hearing is warranted on Mr. Gooch’s § 2255

petition. Having presided over jury selection and Mr. Gooch’s trial, this Court is familiar with

the facts and issues of the case. The parties’ briefs and the record conclusively demonstrate that

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Mr. Gooch is not entitled to relief. The Court therefore proceeds to the merits of Mr. Gooch’s

claims.

A. Ineffective Assistance of Trial Counsel

Mr. Gooch faced the death penalty if the Attorney General approved the

prosecution as a capital case. Thomas Heslep was appointed as trial counsel for Mr. Gooch.

When the Government stated that it was considering the death penalty, the Court appointed

Jensen Barber as learned counsel. See 18 U.S.C. § 3005. Because of complexities in the case,

the Court later appointed James Connell as a second learned counsel on October 17, 2006. Two

days later, the Government filed its Notice of Intent to Seek the Death Penalty. See Notice of

Intent to Seek the Death Penalty. During the course of trial, at Mr. Gooch’s request, Mr. Connell

joined Mr. Heslep as part of the trial team. 3 Thus, Mr. Gooch’s claims for ineffective assistance

of trial counsel may relate to two lawyers, although his specific allegations appear to be directed

at Mr. Heslep.

The Supreme Court has articulated two separate standards for evaluating the

effectiveness of trial counsel in a criminal case. Under United States v. Cronic, 466 U.S. 648

(1984), courts presume a per se violation of the Sixth Amendment right to counsel only “‘if

counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing.’” Bell v.

Cone, 535 U.S. 685, 697 (2002) (quoting Cronic, 466 U.S. at 659). Mr. Gooch claims that Mr.

Heslep wholly failed to challenge the Grand Jury’s indictment procedure and to request a change

of venue. Def. Mot. at 4, 7. While these allegations concern an alleged failure to raise certain

pre-trial issues, they do not allege a complete failure to subject the prosecution’s case to

3
Mr. Barber, now deceased, did not actively participate at the guilt phase of the trial.
7
meaningful testing. See Cronic, 466 U.S. at 659. The Court concludes that the Cronic analysis

is inapplicable here.

The more common standard for ineffective assistance of counsel was established

by Strickland v. Washington, 466 U.S. 668 (1984). Strickland requires (1) a showing that

counsel’s representation fell below an objective standard of reasonableness; and (2) a showing

that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. United States v. Hughes, 514 F.3d 15, 17 (D.C. Cir.

2008) (quoting Strickland, 466 U.S. at 687–88) (quotation marks omitted). A convicted

defendant bears the burden of showing that his lawyer made errors “‘so serious that counsel was

not functioning as the counsel guaranteed by the Sixth Amendment and that counsel’s deficient

performance was prejudicial.’” United States v. Geraldo, 271 F.3d 1112, 1116 (D.C. Cir. 2001)

(quoting Strickland, 466 U.S. at 687). Therefore, to prevail on a claim of ineffective assistance

of counsel, a defendant must prove both incompetence and prejudice. Strickland, 466 U.S. at

700.

The Sixth Amendment guarantees legal representation to a criminal defendant at

trial. U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right . . .

to have the assistance of counsel for his defense.”). Since it is so easy after the fact to blame the

lawyer for the client’s conviction, a high standard applies to demonstrate that the lawyer failed to

represent his client effectively. A court’s evaluation of an attorney’s performance should be

highly deferential, i.e., there is a strong presumption that an attorney’s conduct fell within the

wide range of reasonable professional assistance. United States v. Toms, 396 F.3d 427, 432

(D.C. Cir. 2005). The fact that a particular litigation strategy failed does not mean that it had no

chance of success or that counsel was ineffective by employing it. “It is all too tempting for a

8
defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all

too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude

that a particular act or omission of counsel was unreasonable.” Strickland, 466 U.S. at 689.

Mr. Gooch alleges ineffective assistance of trial counsel because (1) “[c]ounsel

[u]nprofessionally failed to . . . object to the admission of the indictment by the prosecution 4 in

violation of the Fifth Amendment [] and the Sixth Amendment,” Def. Mot. at 16; (2) “Defendant

was prejudiced by the objectively unreasonable performance” of Mr. Heslep on cross-

examination of MPD Detective Herndon, Def. Mot. at 25; and (3) counsel failed “to [move for] a

change of venue, thus depriving [Mr. Gooch] of a fair trial [as] guaranteed by [the U.S.

Constitution],” Def. Mot. at 34. The Court evaluates each of these claims under the Strickland

standard.

i. Grand Jury Indictment Procedure

Mr. Gooch contests the validity of the Grand Jury’s indictment procedure in his

case. Specifically, he contends that “there is nothing in the . . . record [that] show[s] where the

grand jury returned the defendant’s indictment in open court, or voted the indictment in open

court.” Def. Reply at 3 (internal quotation marks omitted). Mr. Gooch contends that the Grand

Jury did not comply with the Federal Rules of Criminal Procedure, and that this Court lacked

jurisdiction over his trial and sentencing. Id. at 5–7; see also Fed. R. Crim. P. 6(f) (“A grand

jury may indict only if at least 12 jurors concur. The grand jury—or its foreperson or deputy

foreperson—must return the indictment to a magistrate judge in open court.” (emphasis added)).

4
Despite the wording of Mr. Gooch’s claim, the Superseding Indictment was neither admitted
into evidence at trial nor submitted to the jury. As indicated below, his actual contention is
related to the Grand Jury’s presentment of the Superseding Indictment.
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 The Supreme Court has held that “[a] convicted defendant making a claim of

ineffective assistance must identify the acts or omissions of counsel that are alleged not to have

been the result of reasonable professional judgment.” Strickland, 466 U.S. at 690. Mr. Gooch

has made no such showing concerning the Superseding Indictment. The Superseding Indictment

indicates, on its face, that it was filed by the foreperson in open court on October 19, 2005. See

Superseding Indictment at 1, 74. Through the attestation of its anonymous foreperson and the

Assistant United States Attorney, it bears evidence that twelve jurors concurred with the charges,

as presented in court. The fact of the foreperson’s signature is evident on the docket, but his or

her name is omitted as a protective measure. See id. at 74. More to the point, “as a general

matter, a district court may not dismiss an indictment for errors in grand jury proceedings unless

such errors prejudiced the defendants.” Bank of Nova Scotia v. United States, 487 U.S. 250, 254

(1988); see also United States v. Lennick, 18 F.3d 814, 817 (9th Cir. 1994) (holding that “errors

in the grand jury indictment procedure are subject to harmless error analysis unless the structural

protections of the grand jury have been so compromised as to render the proceedings

fundamentally unfair” (citation and internal quotation marks omitted)). Mr. Gooch neither

supplies nor suggests evidence that the Grand Jury was compromised or that its proceedings

were fundamentally unfair. His counsel—whether Mr. Heslep or Mr. Connell—were not

objectively unreasonable for omitting an argument for which there was no evidence.

Further, Mr. Gooch has not established any resulting prejudice from the Grand

Jury’s procedures for returning the Superseding Indictment. To establish prejudice, “[t]he

defendant must show that there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. Mr.

Gooch argues that the “jury verdict is automatically invalid when the Court [lacks] jurisdiction,

10
because [s]ubject [m]atter [j]urisdiction is a threshold issue and may be raised at any time and

cannot be forfeited” Def. Reply at 6–7. But even if Mr. Gooch were prosecuted under a

defective indictment, which has not been established, there is no evidence that the alleged defects

were severe enough to have warranted dismissal of all charges against him with prejudice. Cf.

Ballard v. United States, 329 U.S. 187, 201 (1946) (“A decision by this court merely directing

the dismissal of the indictment because of error in the selection of the grand jury . . . will

inevitably lead to curing of this defect by resubmission to a properly selected grand jury.”).

Because the Superseding Indictment contradicts his claims and because Mr. Gooch offers no

evidence of prejudice resulting from the Grand Jury’s alleged non-compliance with ministerial

aspects of the indictment procedure, the Court will deny his claim of ineffective assistance based

on the Grand Jury’s procedure. 5

ii. Thomas Heslep’s February 21, 2007 Cross-Examination

Mr. Gooch points to Mr. Heslep’s February 21, 2007 cross-examination of MPD

Detective Carlton Herndon to prove ineffective assistance of counsel. Def. Mot. at 25–33.

When cross-examining the detective on February 21, 2007, Mr. Heslep asked an open-ended

question that prompted Detective Herndon to testify that Mr. Gooch absented himself from 18th

and M Streets, N.E., the M Street Gang’s territory, because Mr. Gooch was responsible for

shooting Calvin Cooper and Yolanda Miller in an alley.

Q. He use[d] to be out there all the time until he became wanted
but he was down there every day all the time 18th and M, right in
those four blocks, right?

5
Mr. Gooch adds that the Court is “guilty of corruption because of its improper exercise of
[j]urisdiction,” Reply at 7, and that “[t]he prosecutor knowingly presented false evidence to the
Court . . . [and] should have known the indictment was false[,] which amounts to a denial of due
process,” id. at 8–9. Because these arguments are premised on the allegedly defective indictment
process, they, too, must fail.

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 A. Yes.

Q. Now that’s a bit different from disappearing from some
shooting in the alley[,] isn’t it?

A. No.

Q. Why not?

A. Because he shot the people, they put a warrant out for him and
he disappeared.

Feb. 21, 2007 A.M. Tr. [Dkt. 865] at 59.

On February 27, 2007, Mr. Connell made an oral motion for a mistrial, arguing

that Mr. Heslep’s cross-examination constituted ineffective assistance of counsel under the Sixth

Amendment. 6 Feb. 27, 2007 Minute Entry; see also Def. Mot. for Mistrial at 1. The Court

denied the motion in open Court on February 28, 2007. See Feb. 28, 2007 Minute Entry.

Specifically, the Court stated:

Maybe the questioning wasn’t handled as well as you would have
wanted it to be. Maybe instead of saying why not, Mr. Heslep
could have said[,] that was a different warrant[,] wasn’t it? That
wasn’t a warrant for a home invasion, wasn’t it? . . . But I don’t
see this as ineffective assistance of counsel.

Ineffective assistance of counsel has to be if counsel’s conduct so
undermines the proper functioning of the adversarial process that
the trial cannot be relied on as having produced a just result.

Now[,] to begin with, of course, it’s a little early. We don’t have
any result. So we’ll put prematurity as one of the problems with
the claim of ineffective assistance of counsel.

...

6
In supplemental briefing during trial, the parties addressed whether defense counsel could argue
its own ineffective assistance, and whether such a claim could be raised at trial rather than on
appeal. See Def. Mot. for Mistrial [Dkt. 756]; U.S. Opp’n to Mot. for Mistrial [Dkt. 757]. Given
its conclusions, the Court did not resolve this dispute.
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 It seems to me there is no ineffective assistance of counsel. That
whatever the issue is can be cured with a curative instruction and
that a mistrial . . . would be [a] terribly clumsy ax to address what
can be addressed with much smaller tools.

Feb. 28, 2007 A.M. Tr. [Dkt. 867] at 37–38.

In his brief, Mr. Gooch repeats Mr. Connell’s February 27, 2007 argument that

“the testimony that [Mr. Gooch] [was] responsible [for the shootings of Calvin Cooper and

Yolanda Miller] [was] the only direct evidence . . . presented in the trial. And as the Court has

observed, that evidence was elicited not by the government, but by the defense.” Feb. 27, 2007

P.M. Tr. [Dkt. 866] at 7; see also Def. Mot. at 28. While Mr. Heslep might have regretted the

question, a simple error does not constitute ineffective assistance of counsel. See, e.g., Roe v.

Flores-Ortega, 528 U.S. 470, 482 (2000) (“[I]n cases involving mere ‘attorney error,’ we require

the defendant to demonstrate that the errors ‘actually had an adverse effect on the defense.’”

(quoting Strickland, 466 U.S. at 693)); Smith v. Robbins, 528 U.S. 259, 287–88 (2000) (applying

prejudice requirement where counsel was alleged to have missed a specific non-frivolous

argument). The defense requested that the Court appoint a new attorney as chief trial counsel.

See Feb. 28, 2007 A.M. Tr. at 38. On February 28, 2007, the Court denied Mr. Gooch’s motion

for a mistrial and addressed any potential issues with a curative instruction and the addition of

Mr. Connell to the trial defense team. See id. at 38–41. Both lawyers vigorously defended Mr.

Gooch throughout the trial, and, after the jury verdict, Mr. Connell persuaded the jury that it did

not need to consider any issues relating to the death penalty. On this record, the Court finds that

Mr. Gooch did not suffer actual prejudice resulting from Mr. Heslep’s February 21, 2007 cross-

examination of Detective Herndon.

Mr. Gooch also claims that Mr. Heslep had “‘an actual conflict of interest [that]

adversely affected his . . . performance.’” Def. Mot. at 29 (quoting Cuyler v. Sullivan, 446 U.S.

13
335, 348 (1980)). However, Mr. Gooch offers no evidence to support his claim of a conflict of

interest. There is no basis for the Court to find that Mr. Heslep had a conflict of interest that

prejudiced Mr. Gooch at trial. Cf. United States v. Miskinis, 966 F.2d 1263, 1268 (9th Cir. 1992)

(holding that “the record [was] not sufficiently developed to allow [the Court] to determine on

direct appeal whether an actual conflict of interested existed”).

iii. Change of Venue

Mr. Gooch contends that “[w]hen the venue of a criminal trial is saturated with

news coverage, [the Fifth and Sixth Amendments to the U.S. Constitution] require a change of

venue even before attempting to seat a jury.” Def. Mot. at 34; accord Def. Reply at 14.

According to Mr. Gooch, a change of venue also was required because “a local judge would have

[had] a difficult if not impossible time [] finding that local [police] officers had acted

dishonest[l]y.” Def. Mot. at 34. He also claims prejudice because “many other people had

already been tried in the Superior Court of the District of Columbia connected to this . . . case.”

Def. Reply at 14. To allege ineffective assistance on this basis, Mr. Gooch must attribute his

trial in the District of Columbia to “acts or omissions of counsel that are alleged not to have been

the result of reasonable professional judgment.” Strickland, 466 U.S. at 690.

Unfavorable news coverage alone may not be sufficient to warrant a change of

venue from the District of Columbia. See United States v. Caldwell, 543 F.2d 1333, 1342 (D.C.

Cir. 1974) (finding no error where the district court denied defendant’s motion for change of

venue after defense counsel “directed the trial judge’s attention to news articles and broadcasts,”

because there was “no indication . . . that an impartial jury could not be obtained”). Mr. Gooch

fails to identify striking or prejudicial pre-trial publicity sufficient to challenge the impartiality of

14
the jury, or contend that counsels’ failure to move for a change of venue before the jury was

seated constituted ineffective assistance rather than the exercise of professional judgment.

The selection of the jury for Mr. Gooch’s trial proceeded in four critical stages:

first, the Court issued a question to 3,500 potential jurors to identify and excuse immediately

those who stated legitimate reasons they could not serve on a six-month trial; second, the Court

administered a juror questionnaire over the course of two days, which was completed by

hundreds of prospective jurors and to which all counsel had directed comments, objections, and

suggestions; third, prosecutors and defense counsel reviewed all juror questionnaires and

objected to specific jurors, which led the Court to excuse many potential jurors; and, finally, the

Court conducted individual questioning of approximately 300 jurors in open court to discern

biases for and against the Defendant, the Government and—especially—the death penalty, to

which all defense counsel and prosecutors contributed and asked additional questions. See Jan.

3, 2007 Order [Dkt. 732]; Jan. 9, 2007 Minute Entry. This process started on January 9, 2007

and concluded on February 5, 2007, and Mr. Gooch and his lawyers were active participants

throughout. See Gooch, 665 F.3d at 1322. Inasmuch as Mr. Gooch and his counsel participated

throughout the jury selection process and the Court accepted counsels’ juror objections, see id., it

is not surprising that his lawyers did not move for a change of venue.

Finally, even if counsel were defective in some way, Mr. Gooch has not shown any

resulting prejudice. See Strickland, 466 U.S. at 694. Mr. Gooch implicitly alleges that the Court

was biased in favor of local MPD officers, and that both the Court and the jury were biased

against him because of earlier related trials in D.C. Superior Court. Def. Mot. at 34; Def. Reply

at 14. But he fails to explain or support his allegation of judicial bias or identify the earlier trials

in D.C. Superior Court. Contrary to Mr. Gooch’s assertions, the record is devoid of any

15
indication that jury bias tainted the verdict. Instead, after weeks of deliberations, the jury

rejected the defenses and unanimously voted to convict, therefore necessarily crediting some

cooperators’ testimony.

B. Ineffective Assistance of Appellate Counsel

Mr. Gooch avers that he failed to raise a claim of ineffective assistance on direct

appeal because appellate counsel was “ineffective.” See Def. Mot. at 4, 6–7, 10. Mr. Gooch

argues that his appellate counsel, Stephen Leckar, “should have raised [Mr. Heslep’s cross

examination of Detective Herndon] on direct appeal []. Indeed, appellate counsel [was]

completely ineffective by failing to raise the above issue on direct appeal.” Def. Reply at 10.

The standard for ineffective assistance of counsel on appeal is as follows:

[Petitioner] must first show that his counsel was objectively
unreasonable in failing to find arguable issues to appeal—that is,
that counsel unreasonably failed to discover nonfrivolous issues
and to file a merits brief raising them. If [Petitioner] succeeds in
such a showing, he then has the burden of demonstrating prejudice.
That is, he must show a reasonable probability that, but for his
counsel’s [error], he would have prevailed on his appeal.

Robbins, 528 U.S. at 285 (internal citations omitted).

Mr. Gooch has not established that Mr. Leckar’s failure to argue ineffective

assistance of trial counsel was beyond his “reasonable professional judgment.” Strickland, 466

U.S. at 690. On appeal, Mr. Leckar raised five arguments on behalf of Mr. Gooch: (1) the trial

court erred by allowing the Government to use peremptory challenges to remove qualified

African Africans from the venire, in violation of Batson v. Kentucky 7; (2) the trial court erred in

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Batson v. Kentucky, 476 U.S. 79 (1986), forbids prosecutors and defense counsel, under the
Equal Protection Clause, from striking potential jurors solely on account of race. There are three
elements to a Batson challenge:

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rejecting his challenge to the joinder of local and federal charges stemming from the murders of

Messrs. Cunningham and Lane; (3) the trial court erred in denying his motion for severance of

overt acts relating to the murders of Messrs. Cunningham and Lane to support Count One

(narcotics conspiracy) and Count Two (RICO conspiracy); (4) the trial court erred in denying his

motion to vacate judgment as to the murders of Messrs. Cunningham and Lane; and (5) the trial

court erred in denying his motion for judgment of acquittal on Counts 126 and 128, i.e., the

murders of Calvin Cooper and Yolanda Miller. Gooch, 665 F.3d at 1321.

Despite these points on appeal, Mr. Gooch argues that Mr. Leckar also should

have raised ineffective assistance of trial counsel based on Mr. Heslep’s cross-examination of

MPD Detective Herndon. But appellate counsel is not required to raise every conceivable issue

on appeal. Appellate counsel is expected to exercise his or her professional judgment to focus

the litigation and raise those claims that are most likely to succeed. Jones v. Barnes, 463 U.S.

745, 751–52 (1983) (“Experienced advocates since time beyond memory have emphasized the

importance of winnowing out weaker arguments on appeal and focusing on one central issue if

possible, or at most on a few key issues.”).

Mr. Gooch cites Caver v. Straub, 349 F.3d 340 (6th Cir. 2003), for the proposition

that appellate counsel is ineffective when he or she fails to present a claim that is “much

stronger” than the issues actually presented on appeal. Def. Mot. at 33. Caver held that “there

First, a defendant must make a prima facie showing that a
peremptory challenge has been exercised on the basis of race;
second, if that showing has been made, the prosecution must offer
a race-neutral basis for striking the juror in question; and third, . . .
the trial court must determine whether the defendant has shown
purposeful discrimination.

Snyder v. Louisiana, 552 U.S. 472, 476–77 (2008) (internal quotation marks and alterations
omitted). The trial court denied Mr. Gooch’s Batson challenges, and the D.C. Circuit affirmed
on appeal. See Gooch, 665 F.3d at 1322, 1326–28.
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can be little doubt but that the omitted issue—trial counsel’s alleged absence during jury re-

instruction—was much stronger than the issues . . . appellate counsel presented.” 349 F.3d at

348. Mr. Gooch’s allegation does not rise to this level.

To be sure, Mr. Heslep elicited potentially damaging testimony on cross-

examination by asking Detective Herndon an open-ended question about Mr. Gooch’s

whereabouts after the murders of Mr. Cooper and Ms. Miller. Despite Detective Herndon’s

testimony, Mr. Heslep’s question did not evince professional negligence or a wholesale disregard

of Mr. Gooch’s interests at a critical stage of trial. Instead, the record shows that defense counsel

opposed the Court’s suggestion that it issue a curative instruction, and the Court acceded to Mr.

Gooch’s personal request that Mr. Connell join Mr. Heslep on the trial team. See Feb. 28, 2007

A.M. Tr. at 38–41. The Court cannot find that Caver v. Straub required presentation of the

allegedly deficient cross-examination on appeal or, more critically, that Mr. Leckar was

constitutionally deficient for failing to raise it on direct appeal. As to the latter point, the Court

notes this Circuit’s preference for allegations of ineffective assistance of counsel to be addressed

in the first instance by the trial judge, subject to later appeal. See United States v. Franklin, 663

F.3d 1289, 1290 (D.C. Cir. 2011) (“Consistent with our common practice, we remanded [Mr.

Franklin’s] claim of ineffective assistance of counsel for analysis in the first instance by the

District Court.”). Thus, had Mr. Leckar raised the issue of Mr. Heslep’s cross examination of

Detective Herndon, it would have been remanded to this Court for analysis and decision in the

first instance. Mr. Gooch was not prejudiced by Mr. Leckar’s decision not to raise the issue of

Mr. Heslep’s cross examination on direct appeal.

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 IV. CONCLUSION

For the foregoing reasons, the Court will deny Mr. Gooch’s motion to vacate, set

aside, or correct his sentence under 28 U.S.C. § 2255 [Dkt. 1212]. A memorializing Order

accompanies this Opinion.

Date: March 7, 2014 /s/
ROSEMARY M. COLLYER
United States District Judge

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