United States v. Mitchell

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
VERNARD MITCHELL, )
)
Petitioner, )
)
v. ) Cr. Action No. 05-110 (EGS)
)
UNITED STATES, )
)
Respondent. )
______________________________)

MEMORANDUM OPINION

Pending before the Court is petitioner Vernard Mitchell’s

pro se Motion to Vacate, Set Aside, or Correct Sentence pursuant

to 28 U.S.C. § 2255. Upon consideration of petitioner’s motion

and reply, the opposition response, case record, applicable law,

and for the reasons set forth below, Mr. Mitchell’s habeas

motion is DENIED.

I. BACKGROUND

Three and a half weeks after his arrest in Northeast

Washington, DC, Petitioner was indicted March 24, 2005 on

weapons and drug charges. After pretrial motions and

continuances by both sides, a five-day jury trial commenced on

March 8, 2006 before this Court. At the conclusion of the

1
trial, petitioner was found guilty on four of five counts,1 and

the Court dismissed the fifth.

This Court denied petitioner’s subsequent Motion for a New

Trial and a pro se Motion for Newly Discovered Evidence and for

a New Trial. Order, Nov. 21, 2006, ECF No. 57. The Court then

sentenced Mr. Mitchell to 120, 262, 240, and 60 months, to run

concurrently for Counts One through Four, respectively. J. 3,

Apr. 10, 2007, ECF No. 71. The Circuit affirmed this Court’s

decision in November 2008. United States v. Mitchell, 304 F.

App’x 880, 881 (D.C. Cir. 2008). Mr. Mitchell then filed this

pro se Motion to Vacate pursuant to 28 U.S.C. § 2255 in December

2009, alleging ineffective assistance of counsel in violation of

his Sixth Amendment rights.

Specifically, petitioner alleges that counsel (1) failed to

properly attack the credibility of a witness; (2) allowed Mr.

Mitchell’s speedy trial rights to be violated; (3) failed to

object to the Court’s failure to elicit fully articulated

1
Petitioner was found guilty of unlawful possession of a
firearm by a person convicted of a crime punishable by
imprisonment for a term exceeding one year, in violation of 18
U.S.C. §§ 922(g)(1), 924(a)(2); unlawful possession with intent
to distribute five grams or more of cocaine base, in violation
of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(iii); unlawful possession
with intent to distribute heroin, in violation of 21 U.S.C. §§
841(a)(1), (b)(1)(C); and unlawful possession with intent to
distribute cannabis, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(D). Verdict Form 1-2, Mar. 13, 2006, ECF No. 37.
Petitioner was found not guilty on a separate count. Verdict
Form at 2.

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objections following the imposition of sentence; (4) failed to

explain the plea offer and its ramification if rejected; (5)

failed to object to the Court moving forward when Juror #11

attempted to abstain privately; and (6) failed to move to

suppress evidence obtained in violation of a knock and announce

procedure. Pet’r’s Mot. to Vacate, Dec. 8, 2009, ECF No. 95.

Petitioner’s motion is ripe for decision by the Court.

II. APPLICABLE LAW

To succeed on an ineffective assistance of counsel claim,

petitioner must show both that his counsel’s performance was

deficient, falling below an objective standard of

reasonableness, and that counsel’s deficient performance

prejudiced petitioner’s defense. Strickland v. Washington, 466

U.S. 668, 687-88 (1984). If a petitioner cannot meet either

prong, a Court need not address the other. Id. at 697.

The Strickland review of counsel’s performance is “highly

deferential,” id. at 689, as “the bar of objective

reasonableness is set rather low.” United States v. Hurt, 527

F.3d 1347, 1356 (D.C. Cir. 2008). Furthermore, unsuccessful

strategy or tactics are not grounds for attack. See Strickland,

466 U.S. at 699 (holding that counsel’s strategic choice,

“though unsuccessful, was the result of reasonable professional

judgment”). Indeed, counsel’s “strategic choices made after a

thorough investigation of the law and facts relevant to

3
plausible options are virtually unchallengeable.” United States

v. Catlett, 97 F.3d 565, 570 (D.C. Cir. 1996) (quoting

Strickland, 466 U.S. at 690).

In order to show that counsel’s deficient performance

prejudiced him, petitioner must show that but for counsel’s

deficient performance, the proceeding would have resulted

differently, Strickland, 466 U.S. at 694, not merely that the

errors “had some conceivable effect on the outcome of the

proceeding.” Id. at 693.

III. ANALYSIS

A. EVIDENTIARY HEARING

As a preliminary matter, the Court determines that no

evidentiary hearing is required. An evidentiary hearing on a

habeas matter is not required 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) (2006).

Appellate courts generally respect a district court’s decision

not to hold a hearing when the judge deciding the motion also

presided over the initial trial. United States v. Toms, 396

F.3d 427, 437 (D.C. Cir. 2005). This is because a complete and

uncontroverted evidentiary record, Machibroda v. United States,

368 U.S. 487, 494 (1962), coupled with the judge’s recollection

of the events at issue, enable a summary ruling. Id. at 495;

United States v. Pollard, 959 F.2d 1011, 1031 (D.C. Cir. 1992).

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Indeed, only where the § 2255 motion raises “detailed and

specific” factual allegations whose resolution requires

information outside of the record or the judge's “personal

knowledge or recollection” must a hearing be held. Pollard, 959

F.2d at 1031 (citing Machibroda, 368 U.S. at 495).

Having presided over Mr. Mitchell’s trial and sentencing,

this Court is intimately familiar with the facts and history of

the case. With no material facts in dispute, the parties’

briefs and the entire case record conclusively demonstrate both

that Mr. Mitchell is entitled to no relief and that an

evidentiary hearing is not warranted. The Court therefore

proceeds to the merits of petitioner’s claims.

B. PROCEDURALLY BARRED CLAIMS

Petitioner raises two procedurally barred claims in his

motion. His fourth and fifth claims that counsel was

ineffective – for failing to explain the plea offer and its

ramifications and for failing to object to the Court moving

forward when Juror #11 attempted to abstain privately – were

adjudicated, appealed, and affirmed. See Mitchell, 304 F. App’x

880.2

2
The Circuit Court noted that Mr. Mitchell twice and
unequivocally refused a plea bargain, and his appeal thus failed
to meet Strickland prejudice. Mitchell, 304 F. App’x at 881.
That court also held that Juror #11 agreed with the guilty
verdict and was merely ambivalent about announcing her vote

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 “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.“ United States v. Greene, 834

F.2d 1067, 1070 (D.C. Cir. 1987). There has been no change in

the applicable law since the Court of Appeals decided both

claims against Mr. Mitchell. This Court, therefore, considers

neither.

C. UNSUPPORTED CLAIMS

Of Mr. Mitchell’s four remaining claims of ineffective

assistance of counsel, three are offered without factual

allegation or support. The claims are that Mr. Mitchell’s

counsel failed to properly attack the credibility of a witness,

allowed Mr. Mitchell’s speedy trial rights to be violated, and

failed to move to suppress evidence obtained in violation of a

knock and announce procedure and to show that Mr. Mitchell had a

reasonable expectation of privacy in the dwelling. Pet’r’s Mot.

to Vacate at 5-6.

In addition to alleging no facts regarding these claims,

petitioner fails to explain how these problems amounted to

deficient representation of counsel or explain how he was

prejudiced as a result. Because Mr. Mitchell provides the Court

individually and in public. Id. This fact did not negatively
implicate petitioner’s substantive rights. Id.

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no basis on which to make a judgment, the Court relies on the

government’s opposition for facts, which petitioner did not

dispute in his reply, and briefly considers each claim in turn.

See United States v. Thomas, 772 F. Supp. 2d 164, 169 (D.D.C.

2011) (the Court could not find any merit to petitioner’s claim

because petitioner offered “no [supporting] insight or detail

whatsoever”).

Before examining the merits of each claim, however, the

Court notes that district courts have the power to deny § 2255

motions on the grounds that they offer only bald legal

conclusions with no supporting factual allegations. Sanders v.

United States, 373 U.S. 1, 19 (1963). In addition, “conclusory

arguments may be summarily dismissed by the Court.” United

States v. Geraldo, 523 F. Supp. 2d 14, 22 (D.D.C. 2007) (citing

United States v. Morrison, 98 F.3d 619, 626 (D.C. Cir. 1996)

(holding that summary denial of a § 2255 motion is appropriate

when the ineffective assistance claim is speculative)).

i. Counsel Failed to Properly Attack the Credibility
of a Witness

Mr. Mitchell offers no support for his claim that his

conviction be vacated for ineffective assistance of counsel

based on defense counsel’s failure to attack a witness’s

credibility. Petitioner neither identifies which witness

counsel failed to properly cross-examine nor demonstrates how a

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different cross-examination would have altered the trial’s

outcome. Providing the Court with none of this information is

tantamount to “teasingly suggest[ing] that there may be facts

out there that [petitioner’s] trial counsel could have

discovered and that would have helped his case.” Coumaris v.

United States, 660 F. Supp. 2d 67, 71 (D.D.C. 2009) (quoting

United States v. Askew, 88 F.3d 1065, 1073 (D.C. Cir. 1996)).

This omission should not be the basis for overturning a

conviction. Id. Because the Court cannot determine how

counsel’s representation was deficient or how the representation

prejudiced Mr. Mitchell, the Court denies this claim.

ii. Counsel Allowed Mr. Mitchell’s Speedy Trial
Rights to be Violated

The Sixth Amendment to the Constitution guarantees Mr.

Mitchell’s right to a speedy trial. Although petitioner claims

that his rights were violated, Pet’r’s Mot. to Vacate at 5, his

memorandum and reply do not address this issue.

The Supreme Court, in Barker v. Wingo, provided a four-

factor inquiry to weigh whether a prisoner’s speedy trial rights

were violated. 407 U.S. 514 (1972). The four factors are

length of delay, reasons for the delay, defendant’s assertion of

his right to a speedy trial, and prejudice to a defendant. Id.

at 530. As a threshold matter, the length of delay triggers

further inquiry and is “dependent upon the peculiar

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circumstances of the case.” Id. at 530-31. “A delay of over

six months in bringing a case to trial warrants inquiry and

justification[.]” United States v. Goss, 646 F. Supp. 2d 137,

141 (D.D.C. 2009) (citing United States v. Lara, 520 F.2d 460,

464 (D.C. Cir. 1975)). “[A]nd a one-year delay is generally

considered ‘presumptively prejudicial,’” triggering an analysis

of the remaining Barker factors. Id. (citing Doggett v. United

States, 505 U.S. 647, 651-52, 652 n.1 (1992)). Given that Mr.

Mitchell’s trial commenced one year and seven days after his

arrest, this Court moves to the second, third, and fourth

factors.

Under the Barker scheme, there are neutral, valid, or

deliberate reasons for trial delay attributable to the

government. 407 U.S. at 531. A neutral delay, such as

negligence or overcrowded courts, will weigh against the

government, but not heavily. Id. Valid delays, like a missing

witness, justify appropriate delay. Id. Deliberate delays used

to hamper a defense weigh heavily against the government. Id.

Delay may also be attributable to defendants. Id. at 529.

Acting as waivers, these delays weigh against the defendant, not

the government. Id. “The burden is on the government to

justify the delay . . . .” Goss, 646 F. Supp. 2d at 141 (citing

Barker, 407 U.S. at 531 (“Closely related to length of delay is

the reason the government assigns to justify the delay.”)).

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 In its opposition, the government sets forth the pretrial

neutral, valid, and defendant-caused delays and argues that, as

a whole, they did not evince an “unconscionable delay.” Opp’n

and Mem. of Law 18, 20, App. A, Apr. 9, 2010, ECF No. 101. The

Court finds that the reasons for delay fall mainly into the

neutral or defendant-caused categories.3 Neutral delays

resulting from the Court’s docket and this Court’s consideration

of government motions were significant but not onerous or

unusual. The defendant also caused significant delays with his

substitution of counsel, as well as his motions to exclude

calculations from the Speedy Trial Act and to continue the

trial. Finally, an unfortunate death in the prosecutor’s

immediate family created an unavoidable continuance, which the

Court finds to be a valid delay. Accordingly, the Court

concludes that the reasons for delay do not support a Sixth

Amendment violation.

The third factor, defendant’s assertion of his right to a

speedy trial, is critical to proving the right was denied.

Barker, 407 U.S. at 531-32. On June 26, 2005, Mr. Mitchell

filed a Motion to Dismiss based on a violation of the Speedy

Trial Act (“STA”), which indicates a recognition of his related

3
The government’s calculations were well over the 372 days
petitioner was held before his trial. This mistake aside, the
characterizations regarding the reasons for delay were largely
accurate.

10
Constitutional right.4 Mot. to Dismiss on Speedy Trial, June 26,

2005, ECF No. 16. On the other hand, he changed counsel,

received a lengthy continuance, and offered no objection to

government’s continuances to transport a prisoner and upon the

death of the prosecutor’s father. Asserting his speedy trial

rights while both contributing and acquiescing to the delay

undermines the strength with which he asserted his right. See

Goss, 646 F. Supp. 2d at 142 (“[Petitioner] requested, and

received, numerous extensions and continuances, cutting against

the vigor of his assertion of his right to a speedy trial.”).

The fourth factor, prejudice to the defendant, is analyzed

with the aim to prevent oppressive pretrial incarceration,

minimize anxiety and concern of the accused, and limit the

possibility that the defense will be impaired. Barker, 407 U.S.

at 532. The third interest is the most important. Id.

(examples of prejudice that impaired a defense include witness

disappearance or death and the inability of a witness to recall

events accurately due to the passage of time). Mr. Mitchell

asserts none of these interests. Petitioner, therefore, has

failed to demonstrate prejudice from his trial’s delayed start.

When balanced, the Barker factors demonstrate that the

reasons for delay were valid, neutral, or defendant-caused, that

Mr. Mitchell did not assert his rights consistently or

4
The motion was denied. Order, Aug. 11, 2005, ECF No. 23.

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strenuously, and that petitioner was not prejudiced. As a

result, the Court finds that Mr. Mitchell’s Sixth Amendment

right to a speedy trial was not violated. Accordingly, his

ineffective assistance of counsel claim for allowing his

constitutional speedy trial rights to be violated must fail.

iii. Counsel Failed to Move to Suppress Evidence
Obtained in Violation of a Knock and Announce
Procedure and to Show that Mr. Mitchell had
Standing in the Dwelling

Mr. Mitchell contends that counsel was ineffective for

failing to move to suppress evidence obtained during a search of

the premises where he was arrested. Police executed a search

warrant while Mr. Mitchell was inside 815 5th Street NE,

Apartment One, Washington, DC. Petitioner offers no factual

assertions regarding the allegedly unlawful entry and does not

address the issue in his memorandum or reply. The record

suggests that the officers conducted a procedurally adequate

entry after knocking and announcing their presence pursuant to

the Fourth Amendment’s protections.

Specifically, the trial transcript shows that the officers

entered the apartment building after obtaining a search warrant.

Tr. 109-12, Mar. 8, 2006, ECF No. 84. At the door to Apartment

One, Officer Bruce knocked and announced “police, search

warrant” several times. Tr. 111-12, Mar. 8, 2006. Hearing no

response, the officers used a battering ram to open to door,

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finding defendant and a friend inside. Tr. 112-13, Mar. 8,

2006. That friend, a corroborating witness, testified that she

heard three bangs at the door (perhaps twice) and thought

someone was coming into the apartment, to which Mr. Mitchell

told her to “pay that no mind.” Tr. 75, Mar. 9, 2006, ECF No.

85.

“When the ineffectiveness claim concerns an attorney’s

failure to raise a Fourth Amendment issue, the defendant must

show that the Fourth Amendment claim has merit and that there

was a reasonable possibility that the verdict would have been

different absent the excludable evidence.” United States v.

Wood, 879 F.2d 927, 934 (D.C. Cir. 1989) (citing Kimmelman v.

Morrison, 477 U.S. 365, 375 (1986)). In other words, petitioner

must establish that a motion to dismiss would have been granted

and that the trial’s outcome would have changed. Upon examining

the record, the Court concludes there was no Sixth Amendment

violation because petitioner has not shown that a Motion to

Suppress would have both succeeded and changed the trial’s

outcome.

Specifically, Mr. Mitchell does not address whether the

arresting officers were constructively refused admittance when

he did not acknowledge their knocks. This question is critical

because an officer may assume refusal of admittance and

“forcibly enter a house if the occupant does not respond to the

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officer’s announcement within a reasonable period of time.”

Wood, 879 F.2d at 932 (citing United States v. Davis, 617 F.2d

677, 695 (D.C. Cir. 1979)).5 Here, officers observed Mr.

Mitchell from the window then proceeded to knock and announce

several times. Tr. 111-12, Mar. 8, 2006. Knowing that

petitioner was inside and hearing no response, the officers

forcibly entered. These facts suggest that the officers made a

reasonable determination that they had been constructively

refused admittance, and petitioner provides the Court with no

reason to doubt their determination. Mr. Mitchell, therefore,

has failed to meet his burden under Kimmelman and Wood by

showing his hypothetical motion to suppress would have

succeeded.

In sum, Petitioner has not shown that the police search of

Apartment One would have failed a Fourth Amendment challenge via

a Motion to Suppress.6 Consequently, Counsel’s decision not to

5
The time required to wait is a factual determination for
the trial court. Wood, 879 F.2d at 933.

6
Furthermore, even if the entry violated the Fourth
Amendment, counsel’s strategic decision not to attack the search
and to distance Mr. Mitchell from the apartment and the evidence
therein was reasonable, given the facts of the case and the
argument defense developed at trial. Strickland, 466 U.S. at
699 (unsuccessful strategy or tactics are not grounds for
attack). Mr. Mitchell illustrates the reasonableness of this
strategy in his own memorandum. He notes that, “Mr. Mitchell
was verbally contracted to repair [the apartment] in order to
ultimately be considered for residency” and “it was established
by the owner Mr. Abdoo that Mitchell was to repair the apartment

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challenge the search could not have prejudiced Mr. Mitchell.

Counsel, therefore, was not ineffective, as his inaction does

not meet the second prong of the Strickland test.

D. OBJECTION-ELICITATION CLAIM

This final claim is the only ground for appeal that Mr.

Mitchell’s memorandum of law and reply address. The crux of

petitioner’s argument is that this Court erred in two respects.

First, according to Mr. Mitchell, after sentencing, the Court

should have elicited objections to the sentence. Pet’r’s Mem.

of Law 9-10, Dec. 10, 2009, ECF No. 96. Mr. Mitchell claims his

counsel erred by not objecting to the Court’s failure to do so

and was, therefore, ineffective. Id. Second, Petitioner argues

that grounds for objection existed because the Court imposed

sentences of 262 months for Counts One, Three, and Four, which

is beyond the maximum guidelines. The Court finds no merit in

either argument.

As an initial matter, this Court is not obligated to elicit

objection following sentencing. Mr. Mitchell confuses Eleventh

Circuit precedent with two Supreme Court cases – McNabb v.

and then he could live there, and no prints belonging to
Mitchell was [sic] found on the gun or drugs . . . .” Pet’r’s
Mem. of Law 1, Dec. 10, 2009, ECF No. 96. Counsel made a
reasonable strategic choice given the facts and law before him
to distance petitioner from the apartment rather than establish
standing and presumably attack the search. Thus this collateral
claim is foreclosed to petitioner.

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United States and Cupp v. Naughten. McNabb holds, and Cupp

acknowledges, that appellate courts enjoy “supervisory authority

over the administration of criminal justice,” McNabb, 318 U.S.

332, 341 (1943); see id. at 340 (“Judicial supervision of the

administration of criminal justice in the federal courts implies

the duty of establishing and maintaining civilized standards of

procedure and evidence.”); see also Cupp v. Naughten, 414 U.S.

141, 146 (1973) (“The appellate courts were, in effect,

exercising the so-called supervisory power of an appellate court

to review proceedings of trial courts and to reverse judgments

of such courts which the appellate court concludes were

wrong.”). Neither case supports petitioner’s contention that

the objection-elicitation requirement is a national mandate.

Pet’r’s Mot. 5. Petitioner relies on United States v. Jones,

where the Eleventh Circuit exercised its supervisory authority,

in accordance with McNabb and Cupp, to require its district

courts to elicit objections following imposition of sentence.
7
United States v. Jones, 899 F.2d 1097, 1102 (11th Cir. 1990).

In essence, petitioner seeks to transfer the objection-

elicitation requirement of the Eleventh Circuit to this Court.

The D.C. Circuit has not imposed this requirement on the

district courts, however, and this Court, therefore, made no

7
The Sixth Circuit agrees with the Eleventh. See United
States v. Bostic, 371 F.3d 865, 872 (6th Cir. 2004).

16
error. It follows that Mr. Mitchell’s counsel, in turn, did not

err in failing to object to this Court’s non-elicitation of

objection. Counsel’s representation, therefore, was not

deficient nor was petitioner prejudiced.8

Plaintiff’s second argument - that his sentence itself was

unlawful – also fails. The Court imposed distinct and lawful

sentences for each Count and ran them concurrently. J. 3, Apr.

10, 2007, ECF No. 71 (“The defendant is hereby committed to the

custody of the United States Bureau of Prisons to be imprisoned

for a total term of: 120 Months on Count 1; 262 Months on Count

2; 240 Months on Count 3; and 60 Months on Count 4. [A]ll

Counts are concurrent.”); Tr. 21, Mar. 30, 2007, ECF No. 91.

Though Mr. Mitchell argues that the 262-month sentence at issue

was imposed for all Counts, the record is clear that sentence

applied only to Count Two. Tr. 21, Mar. 30, 2007.9 And, as the

Court noted, Mr. Mitchell could have been sentenced to 327

months, which was both within the guidelines and this Court’s

discretion. Tr. 20, 23, Mar. 30, 2007. The record demonstrates

8
Petitioner mentions the rationale for the Eleventh
Circuit’s Jones rule – to preserve appellate objections – was
lost when his counsel failed to object, and he, therefore,
suffered prejudice. But again, this argument is premised on an
inaccuracy. Jones does not control this circuit so no objection
on this ground was foreclosed because none existed in the first
place.

9 At trial, the Court noted, “I can sentence him to 262
months on Count Two and impose the other sentences and just have
them run concurrent.” Tr. 21, Mar. 30, 2007.

17
that the sentence was lawful and that counsel had no grounds to

object; counsel’s failure to object, therefore, did not

prejudice Mr. Mitchell.

Mr. Mitchell makes a similar argument concerning his

appellate counsel, charging ineffective assistance of counsel

for not raising the issue of statutorily excessive sentences for

Counts One, Three, and Four and for not raising the objection-

elicitation requirement. Pet’r’s Mem. of Law at 3. As noted

earlier, the imposed sentences were legal and distinct, and the

262-month sentence was for Count Two alone. Furthermore, the

objection-elicitation requirement has no bearing on this Court,

and appellate counsel, therefore, had no basis to raise the

issue with the Circuit. See Jones v. Barnes, 463 U.S. 745, 751

(1983)(holding that appellate attorneys need not bring up every

issue his/her client requests and that appellate attorneys

should winnow out weaker arguments); see also Smith v. Robbins,

528 U.S. 259, 288 (2000) (emphasizing that Jones v. Barnes held

that frivolous claims need not be brought forward by appellate

counsel). Having no tenable legal basis to bring these claims,

counsel properly raised neither before the Circuit.

“The analysis by which courts determine whether appellate

counsel provided ineffective assistance is the same as that for

trial counsel.” United States v. Agramonte, 366 F. Supp. 2d 83,

86 (D.D.C. 2005) (citing Smith v. Robbins, 528 U.S. 259, 289

18
(2000)). Applying the Strickland test, petitioner cannot

demonstrate that his appellate counsel’s performance was

deficient and that any alleged deficiency was prejudicial.

Petitioner’s counsel raised the strongest arguments on appeal

and winnowed out weaker and frivolous claims. Petitioner’s

ineffective assistance of appellate counsel claim, therefore,

fails.

IV. CONCLUSION

For the foregoing reasons, the Court DENIES petitioner’s

pro se Motion to Vacate, Set Aside, or Correct Sentence. An

appropriate order accompanies this memorandum opinion.

SO ORDERED.

Signed: Emmet G. Sullivan
United States District Judge
January 30, 2012

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