UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA, )
)
v. ) Criminal Case No. 13-cr-131 (RJL)
)
AARON THORPE, and )
MELVIN KNIGHT,
§ FILED
Defendants. ) MAR 1 1 mg
Clerk, U.S. District & Bankruptcy
MEMORANDUM OPINION CDul'lS for the Di'Stfle Of Columbia
(March q_ 2019) [Dkt. ## 127, 1231
On July 31, 2013, after a seven-day trial, defendants Aaron Thorpe (“Defendant
Thorpe”) and l\/lelvin Knight (“Def`endant Knight”) Were found guilty by a jury of nine
counts each of being a felon in possession of a firearm, conspiracy, assault With a dangerous
Weapon, kidnapping While armed, burglary While armed, possession of a firearm during a
crime of violence, and obstruction of justice. Both raised a number of challenges to their
convictions and sentences on appeal, including claims that their Superior Court trial
counsel Were constitutionally deficientl Our Circuit Court affirmed defendants’
convictions and sentences, but remanded their ineffective-assistance-of-counsel (“IAC”)
claims for me to consider in the first instance. To that end, I held three days of evidentiary
hearings on May 24 and 25, and September 20, 2017, after which l accepted post-hearing
briefing in the form of motions to vacate the convictions based on ineffective assistance of
Superior Court counsel. Ultimately, the briefing Was completed on May 24, 2018.
l Um`ted States v. Km'ght, 824 F.3d 1105 (D.C. Cir. 2016).
l
Because Thorpe and Knight’s IAC claims ultimately stem from the same allegation
of the insufficiency of Thorpe’s Superior Court trial counsel, Frederick Iverson, 1 will
consider them together. Having closely reviewed the evidence presented during three days
of evidentiary hearings and in the parties’ extensive briefing, Thorpe and Knight’s IAC
claims are, for the reasons set forth below, DENIED.
BACKGROUND
A. Superior Court Proceedings
On January 28, 2013, police arrested Thorpe and Knight for the D.C. Code offense
of kidnapping while armed, among other things. In all of their Superior Court proceedings,
Defendant Thorpe was represented by David Knight (“Attorney Knight”), while Defendant
Knight was represented by Frederick Iverson (“Attorney Iverson”). Defendants were held
without bond pending a preliminary hearing in the Superior Court. At the February l, 2013
preliminary hearing, the federal prosecutor stated that the Government had “eXtended a
plea offer to one count of Assault With A Deadly [sic] Weapon to both defendants.” 2/1/ 13
Transcript, Government’s Motions Hearing Exhibit 1. The next time defendants appeared
before the Superior Court was February 19, 2013, when Assistant United States Attorney
Britten Shaw told the court that the Government’s understanding was that defendants
would not be accepting the pre-preliminary hearing plea and there would be no further plea
offers at that time. 2/19/13 Transcript, Government’s Motions Hearing EXhibit 2, at 2-3.
The case was therefore set for trial in the Superior Court on May 15, 2013.
B. Federal Court Trial and Appeal
On May 7, 2013, a federal grand jury indicted each defendant with the federal
offense of felon in possession ofa firearm in violation of 18 U.S.C. § 922(g)(1), as well as
the D.C. code offenses of conspiracy, assault with a dangerous Weapon, two counts of
armed kidnapping, first-degree burglary while armed, two counts of possession of a firearm
during a crime of violence, and obstruction of justice. The defendants’ Superior Court
charges were subsequently dismissed on May lO, 2013. At a June 4, 2013 status hearing
before this Court, Assistant United States Attorney Emory V. Cole communicated his
understanding that “defendants are not amenable to even discussing a non[-trial]
disposition...the defendants have indicated they want to go to trial.” 6/4/ 13 Transcript,
Status Hearing, at 4. Both defendants were assigned new defense counsel in the federal
proceeding--Shawn Moore represented Defendant Knight while Joseph Conte represented
Defendant Thorpe.
Two months later_. after a seven-day trial, a jury convicted both defendants on all
counts. The Government’s evidence at trial established that on the night of January 28,
2013, Thorpe and Knight donned masks and police-like attire and lay in wait for Edmund
Peters and his female companion-Luttitia Fortune. Brandishing weapons, the defendants
assaulted Peters and Fortune and forced them into Peters’ apartment Their alleged purpose
was to steal narcotics and cash from Peters’ drug trafficking operation. Fortunately, a next-
door neighbor witnessed the altercation outside Peters’ apartment entrance and called the
police station to let them know their officers were having a difficult time. When the police
arrived, they surrounded the apartment and ordered those inside to come out. The
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defendants, in response, threatened Peters and Fortune in an effort to get them to fabricate
a false story to law enforcement about the events that had transpired. To say the least, the
police never fell for their concoction of lies.
On l\/larch 10, 2014, I sentenced Thorpe to 300 months’ imprisonment Thorpe
Judgment [Dkt. # 84] at 3. 1 sentenced Knight to 268 months’ imprisonment Knight
Judgment [Dkt. # 861 at 3. Prior to sentencing, defendants requested new counsel on the
grounds that they would have never been brought to federal court had their Superior Court
attorneys provided effective assistance. l granted defendants’ requests for new counsel but
told them that sentencing would not wait for any habeas motions to be filed, assuming they
went forward with those motions at all. Howard Katzoff appeared for Defendant Thorpe
and Chris Davis appeared for Defendant Knight, respectively, at their sentencings, and in
their subsequent appeal and remand for IAC claims.2
On appeal, Knight and Thorpe raised several challenges. First, they raised a
challenge claiming a violation ofthe Speedy Trial Act (“STA”). Second, Thorpe argued
that the 25-year sentence I gave him was unreasonable And third, both defendants argued
that they received ineffective assistance of counsel from their Superior Court counsel
regarding the wired plea offer they received in the Superior Court. United States v. Knighl,
824 F.3d 1105, 1109 (D.C, Cir. 2016). Our Circuit Court rejected defendants’ other
challenges but remanded their IAC claims for me to consider in the first instance. Knight,
824 F.3d at 1113.
2 Mary Davis appeared in place of Chris Davis as counsel for Defendant Knight in two of
the three post-conviction evidentiary hearings
4
C. Post-Conviction Evidentiary Hearings
Following our Circuit’s remand, defendants moved for a waiver of attorney-client
privilege with respect to their Superior Court counsel_~Attorney Iverson and Attorney
Knight-which l granted l ordered the production of documents related to defendants’
representation in Superior Court, including billing records, jail visit records, hearing
transcripts, and communications between counsel and the government regarding the plea
offer. l then held three days of evidentiary hearings on May 24, May 25, and September
20, 2017. Attorneys Iverson and Knight testified about their interactions with defendants
between the initial Superior Court hearing on February 1, 2013 and the hearing at which
the prosecutor represented that defendants had rejected the wired plea deal on February 19,
2013. Defendants Thorpe and Knight also testified, as did the D.C. Jail Custodian of
Records.
Testimonv of Attornev Iverson
Attorney Iverson testified that he had practiced as a CJA attorney in Superior Court
since 1998, handling “somewhere between 80 and 100-plus cases a year." 5/24/17 Tr. 80-
82. He first spoke with Knight for “five” or “six minutes” at the January 29, 2013,
presentment in Superior Court. 5/24/ 17 Tr. 84. While he “[didn’t] have any recollection
of the actual events of [Knight’s] presentment,” 5/24/ 17 Tr. 85-86, Attorney Iverson
testified that at a typical presentment,
You can talk to them briefiy. Tell them what they have been charged with. You're
basically introducing yourself, telling them about the process, you're going to try to
get them out, whether you believe, based on the charges, they'll probably be held,
what the next Step will be as far as them coming to court for a preliminary hearing,
things of that nature, find out if they have any family in the audience, or Who you're
going to be contacting But that's pretty much what goes on at that point.
5/24/ 17 Tr. 85. After the presentment, Iverson testified that, on January 31, 2013, he
received an email “from Trevor l\/lcFadden, [Assistant] United States Attorney at that
time...spell[ing] out the pre-preliminary hearing plea offer that the government was
making at that time.” 5/24/ 17 Tr. 87 . That same day, Attorney Iverson testified that he
visited Defendant Knight at the D.C. Jail to discuss the Government’s plea offer, among
other things. 5/24/17 Tr. 91~92, 100.
Afterwards, Iverson testified that he met with Defendant Knight “several times” to
discuss the case. 5/24/17 Tr. 88.3 lverson’s billing records reflect that on February 1, 2013,
he “conference[d] [client” at the courthouse, and also “conference[d] co-defendant
attorney, conference[d] government attorney and family.” 5/24/ 17 Tr. 96. He also met
with Defendant Knight, co-counsel, and the prosecutors on February 19, 2013, before the
hearing, for roughly an hour in total. 5/24/ 17 Tr. 97~98, 126. On cross, Attorney Iverson
was asked whether he had any record of meeting with Defendant Knight between the
hearings on February 1 and February 19, The Government produced evidence that he
visited the jail on February 5, 2013, but Iverson had neither billing records memorializing
that visit nor any independent recollection of that visit. 5/24/ 17 Tr. 120-21.4 Attorney
3 Though he had no direct recollection of the number or nature of their meetings, Attorney
lverson’s billing records reflect that he did in fact meet with Knight at the D.C. Jail on
1/31/13, 3/22/13, 3/26/13, 4/5/13, 4/13/13, 4/22/13, and 5/7/13. 5/24/17 Tr. 97-99. He also
met with Knight at the courthouse on 2/1/13 and 2/19/13. 5/24/17 Tr. 97-98.
4 Indeed, much of Mr. Iverson’s testimony was inconclusive He testified that he suffered
a head injury in 2004 due to a motorcycle accident, and that there are instances in which
his memory has been “affected” as a result. 5/24/ 17 Tr. 150-51.
6
Iverson testified that he “believe[d] [his] billing records are accurate.” 5/24/ 17 Tr. 100.
Attorney Iverson could not recall the exact details of what he discussed with
Defendant Knight about the plea offer. On the one hand, Iverson testified that he found
out the case was going to federal court “abruptly” at the hearing on February 19, 2013.
5/24/17 Tr. 133. He testified that he “wasn’t focused on the possibility of him going over
to F ederal Court and weighing those options with [Defendant Knight],” because he was
focused on “preparing our case to go to trial in D.C. Superior Court.” 5/24/17 Tr. 147.
Attorney Iverson further stated that there was “nothing in [the government’s plea] letter to
make [him] focus on the federal side.” 5/24/17 Tr. 147.
Yet, on the other hand, Attorney Iverson testified that in a typical case he “would
have discussed the plea offer” with his client, 5/24/17 Tr. 92, including “the terms ofthe
plea offer,” id. at 100, “possible penalties,” id. at 102, “what are the maximum penalties,”
id., and “what his co-defendant would do or not do.” Ia’. at 103. Attorney Iverson had
“some recollection of some conversations with [Defendant Knight] about the case. . . going
over some of the strengths and weaknesses about the evidence[,] what [they] expected the
evidence to be at trial, talking to [Knight] about some of the weaknesses in defenses, what
[he] thought would be the strength of the government’s case, [and] why [he] thought [they]
wouldn’t prevail on certain issues.” 5/24/17 Tr. 100-01. Iverson specifically recalled
Defendant Knight being “hopeful that Mr. Peters would not cooperate with the government
or would not testify” against him.” 5/24/17 Tr. 112~13. When asked if he had discussed
the nature of the wired plea offer with his client, Iverson did not “have an independent
recollection of explaining to [Knight] wired [pleas]; and that [ ] he can’t get the deal unless
his co-defendant takes the deal.” 5/24/17 Tr. 103.
After reviewing a transcript of the February 19, 2013 hearing, Iverson recalled that
“[a]t that time” of the hearing, “we were not accepting the plea offer, m’am no. If we were
accepting it, l would have spoken up and said, we don’t want to go forward with a
preliminary hearing, we want the plea offer.” 5/24/ 17 Tr. 111, 115-16. Iverson testified
“that was the decision my client and l had made-my client had made” after “discuss[ing]
his options.” 5/24/17 Tr. 110-11. He insisted, “I don’t make the decision.” 5/24/17 Tr.
110. Once Defendant Knight was indicted in federal court, Iverson testified that he
“wouldn’t have been his lawyer at that point,” regardless of Knight’s satisfaction with his
representation, “because I’rn not admitted in Federal Court. And once it leaves D.C.
Superior Court, it’s not my case anymore, and that’s the end of my representation.” 5/24/17
Tr. 115.
Testimonv of Defendant Knight
Defendant Knight testified that, had he been given an adequate opportunity, he
would have taken the plea offer extended to him in Superior Court. 5/24/17 Tr. 40. Knight
recalled that during Attorney Iverson’s initial visit to him on January 31, 2013 for “close
to 20 minutes,” 5/24/ 17 Tr. 16, 53, they discussed the hearing the next day and the
possibility of getting “some type [of] release.” 5/24/17 Tr. 54. At the time, Defendant
Knight admitted that being released was his “whole focus.” 5/24/ 17 Tr. 17. He recalled
asking Attorney Iverson about possible alternatives to incarceration such as “a halfway
8
house, some type of bond or ankle bracelet, even PR possibly on the charges that [he] was
facing.” 5/24/17 Tr. 17.5
During the preliminary hearing the next day, Defendant Knight testified that Iverson
told him that “the case was going to be postponed.” 5/24/ 17 Tr. 18. This news made
Defendant Knight “upset” because he was “trying to get home” and wanted Attorney
Iverson to “push forward.” 5/24/ 17 Tr. 18. Attorney Iverson told Knight to “calm down”
and conveyed that the Government had made a plea offer for one count of assault with a
dangerous weapon (ADW). 5/24/ 17 Tr. 18-19. When Defendant Knight asked his counsel
“how much time do they want for that‘?,” Iverson responded, “[t]en years.” 5/24/ 17 Tr. 19,
56. Defendant Knight testified that his response was: “l’ve been locked up for three days,
I’m not copping to that shit.” 5/24/ 17 Tr. 19, 56~57. According to Defendant Knight, he
and Attorney Iverson did not discuss any other details of the maximum or minimum
penalties, sentencing guidelines, or other potential charges during that February 1, 2013
hearing 5/24/17 Tr. 19-20.
Defendant Knight testified that the next time he saw his attorney was the day of the
February 19, 2013 hearing. 5/24/17 Tr. 24. In the cell block before the hearing, Attorney
Iverson asked Knight if he would “agree to another postponement,” but Knight refused
because he “didn’t agree to the first one and [Iverson] didn’t come up to the jail to see
[him] during the last postponement.” 5/24/17 Tr. 25. Defendant Knight re-emphasized
that the “only thing [he] wanted to do was see [his] wife have [his] son.” 5/24/ 17 Tr. 25.
5 On cross, Knight testified that he also told Attorney Iverson that he was concerned his
supervised release might be revoked in an unrelated federal case. 5/24/ 17 Tr. 53-54.
9
Defendant Knight testified that the first time he learned of potential federal court
charges was at the hearing itself, when the Government attorney stood up to tell the
Superior Court judge that the plea deal had been rejected. 5/24/ 17 Tr. 27; see also id. at
22-24 (testifying that the prosecutor mentioned offenses that were “different from what
[his] attorney told him”). On cross, Defendant Knight admitted that he never told his
attorney he wanted to accept the plea deal because he “[didn’t] know if the [prosecutor]
[was] telling the truth” and “l\/lr. Iverson never brought plea deal to [him] of that
magnitude.” 5/24/ 17 Tr. 58-59. Knight also admitted that at no point did he ask for more
time to consider the Government’s plea offer. 5/24/17 Tr. 59. After the February 19, 2013
hearing, Defendant Knight testified that he still wanted Attorney Iverson to “move
forward” to “see where the case was going” so that he could be released to see his newborn
son. 5/24/ 17 Tr. 60. Defendant Knight also testified that he subsequently rejected another
plea deal offered to him in his federal court case. 5/24/ 17 Tr. 65-66.
On May 15, 2013, shortly after he was indicted in federal court, Defendant Knight
testified that he sent a letter to D.C. Bar Counsel complaining about Attorney lverson’s
conduct in the Superior Court. 5/24/ 17 Tr. 30~31; see also Defendant Knight’s Motions
Hearing Exhibit 1, May 2013 Letter to Bar Counsel. Chief among Knight’s complaints
was that he only saw Attorney Iverson before court on February l and 19, 2013, but at no
time in between. 5/24/17 Tr. 30~31. The letter also stated that Iverson “tried to fast-talk
[him] on a plea deal in D.C. Superior Court, in open court” but that he “refused.” 5/24/ 17
Tr. 30.
10
Testimonv of D.C. Jail Custodian of Records
The D.C. Jail Custodian of Records, Jennifer Postell, testified about the legal visit
sheets logging Attorney Iverson’s visit to the D.C. Jail from 9:56 pm (21:56) on January
31, 2013, to 3150 pm (15:50) on February 1, 2013, to see Defendant Knight. 5/24/17 Tr.
74. Describing why the length of the logged visit was so different from Attorney Iverson
and Defendant Knight’s testimony, l\/Is. Postell explained that if an attorney does not hand
back the log sheet, the “computer will automatically kick the visit out after 24 hours.”
5/24/ 17 Tr. 74. l\/Is. Postell admitted that the sheet “doesn’t state for sure. . .that [defendant]
was seen.” 5/24/17 Tr. 77.
Testimony of Attorney Knight
Defendant Thorpe’s attorney, David Knight (“Attorney Knight”), testified that he
has worked in the D.C. Public Defenders’ Office since graduating law school in 2009, and
was practicing primarily in Superior Court in 2013 when he was appointed to be Thorpe’s
counsel on January 29, 2013. 9/20/17 Tr. 50-51. Attorney Knight testified that he visited
Defendant Thorpe that same day in the cellblock to introduce himself and let him know
“how that day would go” at Thorpe’s initial appearance 9/20/ 17 Tr. 53-54. Between then
and the February l, 2013 hearing, Attorney Knight testified that he also met With Thorpe
at the D.C. Jail to discuss “allegations of what happened,” “what a preliminary hearing
would be like, and his potential chances of getting released at the preliminary hearing.”
9/20/ 17 Tr. 55. On the day of the hearing, Attorney Knight and Defendant Thorpe
discussed “the fact that a plea offer had been made and discuss[ed]...that the government
was offering to continue the preliminary hearing so [Thorpe] could consider the plea offer.”
ll
9/20/ 17 Tr. 57. Defendant Thorpe “agreed that it was okay to continue the preliminary
hearing so [they] could have a fuller conversation about the plea offer.” 9/20/ 17 Tr. 57.
Attorney Knight testified that he met with Thorpe “[a]t least twice” between February 1
and February 19, 2013, 9/20/ 17 Tr. 58, and would have “talk[ed] more extensively about
the plea offer and possible sentences” at those meetings, id. at 76-77_, as well as the fact
that “the plea was a wire[d]” one, id. at 60, “mean[ing] that every defendant has to take
whatever plea offer they were made for you to take your own plea.” [d. at 61. Attorney
Knight also specifically recalled telling Defendant Thorpe about the possibility of federal
charges, although he “was not in a position to really tell him what exactly those charges
would look like or how much time they would carry.” 9/20/17 Tr. 62.
Prior to the February 19, 2013 hearing, Attorney Knight recalled having a
conversation with co-defendant’s counsel, Attorney lverson, about the wired plea. Id. at
63. His “understanding from [Iverson] was that he did not expect [Defendant] Knight to
take the plea.” 9/20/ 17 Tr. 63. Attorney Knight testified that he took Attorney lverson “at
his word” when he told him “he [didn’t] think his client [was] going to take a plea” and did
not “try to convince him about how to counsel his client.” 9/20/ 17 Tr. 107. Afterwards,
Attorney Knight recalled that he also “spoke to the government about trying to unwire the
plea and they said no.” 9/20/ 17 Tr. 64. Attorney Knight admitted that he never asked the
Government for another plea deal because the prosecutor had already made clear that they
were unwilling to offer a non-wired plea. 9/20/ 17 Tr. 71. He then “went back to see l\/lr.
Thorpe” in the cell block to update him on these developments-that “Mr. Iverson. . .didn’t
expect [Defendant] Knight to accept the plea” and that the Government was unwilling to
12
unwire the plea. 9/20/ 17 Tr. 64. Attorney Knight wanted to “talk[] about what [Thorpe’s]
options were based on that information.” 9/20/ 17 Tr. 64. Attorney Knight recalled that it
was his impression from Attorney Iverson that Defendant Knight “may have had...time
hanging over his head in another jurisdiction, and. . .was concerned about getting additional
time.” 9/20/17 Tr. 68.
Attorney Knight testified that, at that point and time, both attorneys were “under the
impression that [Defendant] Knight was running the show.” 9/20/17 Tr. 71. Attorney
Knight believed that his own client, Defendant Thorpe, was “open to the plea,” 9/20/ 17 Tr.
64, but was concerned about Defendant Knight’s “reaction,” id. at 64~65, and did not want
to appear “hot.” Ia’. at 66, 89-90. As a result, Attorney Knight recalled that he and
Defendant Thorpe decided to “represent in court that [Defendant Thorpe] wasn’t rejecting
the plea, [but] he wasn’t saying he was accepting the plea.” 9/20/ 17 Tr. 65-67. Had
Defendant Knight taken the plea, Attorney Knight believed his client also “would have
also taken the plea.” 9/20/17 Tr. 86~87.
Testimony of Defendant Thorpe
Defendant Thorpe testified that Attorney Knight rnet with him to discuss the plea
offer several times between the February 1 and February 19, 2013 hearings in the Superior
Court. 9/20/ 17 Tr. 13~14. He recalled that Attorney Knight explained the nature of the
“wired” plea, specifically “saying that both co-defendants had to take it or no one could
take it at the time.” 9/20/ 17 Tr. 14. Defendant Thorpe also testified that his attorney
“discussed the potential Sentencing Guidelines for the ADW plea offer” and the charges
Thorpe would be facing if he did not accept the plea bargain. 9/20/17 Tr. 15. While he
13
“wanted to take [the plea],” Defendant Thorpe testified that he “also wanted to talk to [his]
family and let them know at the time that this decision l was getting ready to make. . .to let
them know that it was a possibility that l was about to do some more time.” 9/20/ 17 Tr.
15-16. Because of that, he did not instruct Attorney Knight to tell the Government he was
accepting the plea at that time. 9/20/17 Tr. 16. At the February 19, 2013 hearing,
Defendant Thorpe testified that Attorney Knight whispered in his ear that “the government
was no longer extending the plea bargain, and it was coming off the table.” 9/20/ 17 Tr. 19.
He also understood that the Government “was [sic] seeking District Court charges.”
9/20/17 Tr. 20. He realized that this put him “in a worst [sic] predicament than [he] already
was [in].” 9/20/ 17 Tr. 20~21. Defendant Thorpe admitted on cross that he was arrested in
the instant case only 21 days after being released from federal prison for another conviction
on December 31, 2012. 9/20/17 Tr. 26-27.
After the testimony presented at these three post-conviction evidentiary hearings,
defendants asked for an extension of time to file their ineffective assistance motions, which
l granted. Defendant Knight submitted his motion on February 2, 2018, Knight Motion to
Vacate Conviction Based on lneffective Assistance of Superior Court Counsel (“Knight
Mot.”) [Dkt. # 127], and Defendant Thorpe submitted his motion on February 9, 2018.
Thorpe Motion to Vacate Conviction Based on lneffective Assistance of Superior Court
Counsel (“Thorpe Mot.”) [Dkt. # 128]. The Government responded on April 2, 2018.
l\/lemorandum in Opposition by USA (“Govt. Opp.”) [Dkt. # 130]. After requesting
additional extensions, defendants finally filed their replies on April 29, 2018, Thorpe Reply
in Support of lneffective Assistance Motion (“Thorpe Reply”) [Dkt. # 134], and May 24,
14
2018, Knight Reply in Support of lneffective Assistance Motion (“Knight Reply”) [Dkt. #
136], respectively.
STANDARD OF REVIEW
The parties agree that defendants’ claims_that inadequate assistance of counsel
caused them to reject a plea offer in the Superior Court--are governed by the usual standard
applicable to lAC claims raised on direct appeal. See Missourz` v. Frye, 566 U.S. 134, 140
(2012); Stricklancl v. Waslzl'nglon, 466 U.S. 668, 687, 694 (1984); United States v. Gray-
Burrz`ss, 251 F. Supp. 3d 13, 17 (D.D.C. 2017) (applying Strz'cklano’ standard following
remand of IAC claims after direct appeal). “[T]he negotiation of a plea bargain is a critical
phase of litigation for purposes of the Sixth Amendment right to effective assistance of
counsel.” Frye, 566 U.S. at 141 (internal citation omitted).
To raise a colorable claim for ineffective assistance of counsel, a defendant must
allege facts sufficient to “show two things: (1) that counsel’s performance was deficient,
and (2) that the deficient performance prejudiced the defense.” ln re Sealea’ Case, 901 F.3d
397, 404 (D.C. Cir. 2018) (quoting United States v. Anclerson, 632 F.3d 1264, 1268 (D.C.
Cir. 2011)); see also Slrz`cklcmd, 466 U.S. at 687. The defendant shoulders the burden of
proof as to both elements. See, e.g., Knowles v. Mz`rzayance, 556 U.S. 111, 122 (2009)
(“[A] defendant must show both deficient performance by counsel and prejudice in order
to prove that he has received ineffective assistance of counsel[.]”).
Under Strz'cklana”s deficiency prong, I must determine whether counsel acted
“reasonabl[y] under prevailing professional norms . . . considering all the circumstances.”
Strz`ckland, 466 U.S. at 688; see Paclz`lla v. Kentucky, 559 U.S. 356, 366 (2010) (deficiency
15
is “necessarily linked to the practice and expectations of the legal community”). Yet as
our Circuit Court has observed, “the standard for constitutionally effective representation
is not overly rigorous.” United States v. Catlelt, 97 F.3d 565, 570 (D.C. Cir. 1996); see
also Hz'nton v. Alal)ama, 571 U.S. 263, 272 (2014) (attorney performance need only “meet[
] . . . a minimal standard of competence”). “Judicial scrutiny of counsel’s performance
must be highly deferential,” and courts must be vigilant against the “all too tempting” lure
“to second-guess . . . counsel’s defense after it has proved unsuccessful.” Strz`cklana’, 466
U.S. at 689. There are, after all, “countless ways to provide effective assistance in any
given case.” Ia’. Therefore, a court must proceed cautiously with the “presumption that,
under the circumstances, the challenged action might be considered sound trial strategy.”
Ia’. (internal quotation omitted). Rebutting this presumption is “never an easy task.”
Paclz`lla, 559 U.S. at 371; see also Strz`cklana’, 466 U.S. at 690 (“[S]trategic choices made
after a thorough investigation of law and facts relevant to plausible options are virtually
unchallengeable[.]”).
“To show prejudice from ineffective assistance of counsel where a plea offer has
lapsed or been rej ected,” defendants must “show a reasonable probability that the end result
of the criminal process would have been more favorable” had they accepted the plea. Frye,
566 U.S. at 147 (emphasis added); see also Lafler v. Cooper, 566 U.S. 156, 163 (2012)
(“ln the context of pleas[,] a defendant must show the outcome of the plea process would
have been different with competent advice.”). Speculative alternative outcomes will not
suffice; Stricklana’ requires a “reasonable probability” that is “sufficient to undermine
confidence in the outcome.” 466 U.S. at 669. This entails showing not only a “reasonable
16
probability” that a defendant “would have accepted the earlier plea offer,” but also “a
reasonable probability neither the prosecution nor the trial court would have prevented the
offer from being accepted or implemented.” Frye, 566 U.S. at 146. Where a plea is wired,
this means each defendant must “show a reasonable probability that either the government
would have waived that condition or his co-defendant would have been willing to plead
guilty on the government’s terms.” Benitez v. United States, 60 A.3d 1230, 1237 (D.C.
2013). “This further showing is of particular importance because a defendant has no right
to be offered a plea, nor a federal right that the judge accept it.” Frye, 566 U.S. at 148~49
(internal citations omitted).
“Surmounting Strz'cklana’ 's high bar is never an easy task.” Paclz`lla, 559 U.S. at 371.
Because “[f]ailure to make the required showing of either deficient performance or
sufficient prejudice defeats the ineffectiveness claim,” Strz`cklanal, 466 U.S. at 700, courts
need not “address both components of the inquiry if the defendant makes an insufficient
showing on one.” Ia’. at 697; see also Unitea’ States v. Gwyn, 481 F.3d 849, 854 (D.C. Cir.
2007) (finding that where defendant “suffered no prejudice from trial counsel’s [alleged
deficiency], we need not decide whether counsel’s performance in this respect was
objectively unreasonable”). lt follows that in most cases it will be “very difficult for a
convicted defendant to prevail on a claim of ineffective assistance of counsel.” United
States v. Moore, 703 F.3d 562, 574 (D.C. Cir. 2012).
ANALYSIS
The allegations in this case arise from the conduct of defendants’ Superior Court
counsel in plea negotiations that took place between February 1, 2013 and February 19,
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2013. Defendants allege that Attorney Iverson provided ineffective assistance of counsel
in advising Defendant Knight about the consequences of rejecting the Government’s wired
plea offer, and that both defendants suffered prejudice as a result.
1 begin by observing, as l did during defendants’ post-conviction evidentiary
hearings, “that there is no case in the Supreme Court, D.C. Circuit, there is no Bar Counsel
opinion in our circuit, that we know of, that addresses what constitutes effective assistance
of counsel in this type of situation,” where two defendants were offered a wired plea in
Superior Court, rejected it, and ultimately faced conviction on federal charges. 5/25/ 17 Tr.
34. Following the two-part test in Strz`cklana’, l must first determine (1) if defendants’
Superior Court counsel performed deficiently during plea negotiations; and (2) if so,
whether defendants suffered prejudice as a result.
A. Deficiency of Attorney Iverson in Advising Defendant Knight of
Consequences of Rejecting Plea Offer
Defendant Knight argues that his Superior Court counsel’s performance was
deficient in namely one respect-that his counsel did not fully advise him of the
consequences of rejecting the government’s initial plea offer. Knight Mot. at 6-7.
Defendant Knight argues that the only time Iverson discussed the plea offer with him was
at counsel’s table during the February 1, 2013 hearing in the Superior Court. Ia’. at 3.
According to Knight, he was disappointed to find out the potential sentence was 10 years
because his wife was about to have a baby. Ia’. Defendant Knight argues that even though
Attorney Iverson told him that he would come talk to him at the jail, he received no visits
from counsel between February 1 and February 19, 2013, when the Government rescinded
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the plea offer. Ia’. Defendant Knight alleges that he “was not informed about maximum
penalties, minimum penalties, the Voluntary Superior Court Guidelines, or potential
additional charges.” Ia’. at 7-8. l\/loreover, Knight argues that he “was not aware of the
plea details or risk of a federal trial,” z`al. at 7, pointing to Attorney Iverson’s testimony that
he himself was surprised at the possibility that charges could be brought in federal court.
Id. at 4.
The Government argues that the record shows that Attorney Iverson’s counsel was
effective Govt. Opp. at 27-28. While he could not recall the exact details of his
conversations with Defendant Knight, Attorney Iverson testified that, in a typical case, he
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would discuss the charge, the “possible’ and “maximum” penalties, whether the
government had placed any limits on itself, the Voluntary Sentencing Guidelines, and what
his clients could expect if they accepted the plea. 5/24/17 Tr. 101-02, 132. The
Government argues that Defendant Knight has not presented conclusive,
contemporaraneous evidence that Attorney Iverson departed from this general practice
Govt. Opp. at 28.
The standard under Stricklana’ is what was “reasonable under prevailing
professional norms . . . considering all the circumstances.” Strz'cklana’, 466 U.S. at 688;
see Paalz'lla, 559 U.S. at 366 (deficiency is “necessarily linked to the practice and
expectations of the legal community”). ln the context of plea rejections, our Circuit has
advised that these norms could include advising a defendant on the “worst-case scenario if
he rejected the plea and went to trial.” United States v. Aguz'ar, 894 F.3d 351, 361 (D.C.
Cir. 2018) (remanding for evidentiary hearings on IAC motion). Yet even in Aguz'ar, our
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Circuit emphasized that the defendant would need to proffer “contemporaneous evidence”
of counsel’s deficiencies in advising him ofthe consequences of rejecting a plea offer. Ia’.
(citing Lee v. United States, 137 S. Ct. 1958, 1967 (2017)).
The question therefore before me is: whether Defendant Knight has shown
“contemporaneous evidence” that his counsel failed to raise the specter of potential federal
charges to inform the decision to reject the plea offer. The record is, admittedly, somewhat
confused on this point. On the one hand, Attorney Iverson testified that he would normally
have informed defendants of something like federal charges in the course of plea
discussions with his client. 5/24/17 Tr. 103, 107~08. Yet on the other hand, Attorney
Iverson could not specifically recall telling Defendant Knight about any of the details of
the plea, including that it was wired, the potential guidelines range, and the possibility of
federal charges. 5/24/ 17 Tr. 132-35. Perhaps more tellingly, Iverson admitted to being
“surprised” when the prosecutor raised the possibility of federal charges at the February
19, 2013 hearing, 5/24/17 Tr. 133, because that was the first he had heard of federal
charges. 5/24/17 Tr. 132-33. Defendant Knight himself insists that he never knew he
could be tried in federal court. 5/24/ 17 Tr. 27~28.
While l take defendant’s testimony with a grain of salt, l find that it is bolstered here
by contemporaneous complaints of Attorney Iverson’s performance filed shortly after the
federal indictmentl Defendant Knight’s Motions Hearing Exhibit 1, May 2013 Letter to
Bar Counsel. The letter details two crucial pieces of evidence in particular: (1) that Iverson
never visited defendant between February 1 and February 19, 2013, and (2) that Iverson
supposedly tried to “fast talk him” into a plea deal at counsel’s table Even allowing for
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the latitude that courts must give to counsel in every case, l find that this evidence, when
coupled with counsel’s testimony that he was unaware of the possibility of federal charges,
strongly suggests that counsel did not adequately advise defendant the “worst-case scenario
if he rejected the plea and went to trial.” Agaz'ar, 894 F.3d at 361. l therefore find that
Attorney Iverson’s performance was deficient in advising Defendant Knight of the
potential consequences of rejecting the plea.
B. Prejudice to Defendant Knight of Counsel’s Deficient Performance
Because 1 find that Attorney Iverson’s counsel was deficient, l must now turn to
Stricklancl’s prejudice prong. The Supreme Court has advised that under Slrz'cklancl’s
prejudice analysis, the possibility of an alternative result must “be substantial, not just
conceivable.” Harrz`ngton v. Richter, 562 U.S. 86, 112 (2011). Defendant Knight argues
that he was prejudiced by counsel’s deficient performance because the potential sentence
under the D.C. Code assault with a dangerous weapon charge was much lower than
potential sentences under the federal and other D.C. Code violations Knight Mot. at 9.
Knight further argues that “there is no evidence to suggest that the judge would have
rejected the plea or that the government would have independently rescinded the offer.”
Ia’. Defendant Knight insists “he would have taken the plea at the time.” Ia’.
The Government argues that Defendant Knight’s “mere allegation” that he would
have proceeded to trial but for counsel’s alleged deficiencies is not enough to entitle him
to relief. Govt. Opp. at 31 (quoting Heacm v. Alll'son, 728 F.3d 1170, 1182 (10th Cir.
2013)). According to the Government, Knight has failed to establish prejudice because
there is no indication that he would have accepted the plea at the time of the hearing The
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Government argues that Knight “was never going to ‘cop’ to a plea...[r]ather, his sole
interest was getting released.” Govt. Opp. at 31-32.
Like many other Courts, l remain “suspicious of bald, post hoc and unsupported
statements that a defendant would have changed his plea absent counsel's errors.” See,
e.g., Heara’, 728 F.3d at 1184 (“the ultimate issue [remains] whether the defendant would
have changed his plea”) (internal citation omitted). Here, Defendant Knight’s insistence
that he would have taken the plea if he had known about the federal charges faces two
notable obstacles.
First, there is “contemporaneous evidence” that Defendant Knight was not inclined
to take the plea because he wanted to be released. Defendant Knight, by his own admission,
was wholly focused on one thing: getting released so he could go home and see his wife
and son. 5/24/ 17 Tr. 17. He did not want any additional time to consider or discuss the
plea, but instead pushed Attorney Iverson to “move forward.” 5/24/ 17 Tr. 60. Defendant
Knight’s May 2013 letter to Bar Counsel does not indicate anything to the contrary. Rather,
it indicates that Defendant Knight told Bar Counsel that when Attorney Iverson had “tried
to fast-talk [him] on a plea deal in D.C. Superior Court, in open court,” he had “refused”
the plea offer. Defendant Knight’s l\/lotions Hearing Exhibit 1, May 2013 Letter to Bar
Counsel. Complaints about fast-talking go to deficiencyj not prejudice Defendant Knight
also told Attorney Iverson he was “hopeful” the victim in the case_Edmund Peters_
would not testify against him.6 5/24/ 17 Tr. 112-13. Defendant Knight had, after all,
6 Attorney Iverson and Defendant Knight’s post-conviction testimony in inconsistent on
whether Knight thought Peters would cooperate with law enforcement Compare 5/24/17
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“known [Peters] for a while.” 5/24/ 17 Tr. 46. These are all strong indicators that
Defendant Knight was in no mind to accept the Government’s initial plea offer, even had
he been fully informed of the consequences
Second, the Government presented evidence at the post-conviction hearings that
Defendant Knight subsequently rejected a plea offer in his federal case See 6/4/ 13
Transcript, Status Hearing, 4 (prosecutor stating that “[i]t appears that defendants are not
amenable to even discussing a nontrial disposition...the defendants have indicated they
want to go to trial”). If defendants both rejected a plea offer made weeks after their federal
indictment, it borders on pure “speculation” that they were of a mind to accept a non-trial
disposition at all. United States v. Mathz`s, 503 F.3d 150, 152 (D.C. Cir. 2007).
Admittedly, our Circuit recently recognized that the “loss of the plea opportunity
[that] led to a trial resulting in a conviction on more serious charges [and] the imposition
ofa more severe sentence” could give rise to a colorable prejudice claim. Agul`ar, 894 F.3d
at 360. In Aguz'ar, the defendant faced a 35-year mandatory minimum as a result of
rejecting the plea. Ia’. Here, Knight ultimately faced more severe penalties than one ADW
charge to be sure,7 though not so severe as in Aguiar, but he must still prove that different
Tr. 64-65 with 5/24/ 17 Tr. 1 12-13. But, to say the least, Defendant Knight`s testimony
is at odds with other facts in the case, including that defendants robbed Peters because
Knight knew him, and that defendants tried to convince Peters and Fortune to lie to the
police afterwards
7 Here, Defendant Knight ultimately faced the prospect of Superior Court charges with a
10-year mandatory minimum and a federal charge with no mandatory minimum. The
Government concedes that the sentences defendants ultimately received_268 months for
Knight and 300 months for Thorpe-were more severe than the potential sentences they
would have received had they accepted the ADW plea. See Govt. Mot. at 31 (citing D.C.
Code § 22-402 statutory maximum for ADW of 120 months or 10 years).
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advice by counsel would have actually induced him to take the plea. Unfortunately,
Defendant Knight cannot make the showing that, had he had known of the possibility of
federal sentencing, he would have resolved not to go to trial. ln fact, the record strongly
suggests otherwise
C. Deficiency of Attorney Knight’s Conduct in the Context of a Wired Plea
Defendant Thorpe does not contend that his counsel, like Defendant Knight’s, was
deficient in advising him of the details of the plea offer; rather, Thorpe contends that his
“counsel was deficient in other respects.” Thorpe l\/lot. at 8~9. In a somewhat novel twist
on traditional IAC claims, Defendant Thorpe argues that in a wired-plea situation such as
this, his counsel was obliged to “protect against prejudice spilling over from [his] co-
defendant’s case,” similar to an attorney’s obligation to request severance during trial if
there is a risk of prejudice to his client. Ia’. at 17. To provide effective assistance,
Defendant Thorpe insists that his attorney was required to “meet[] with co-defendant’s
counsel in wired-plea situations to discuss the status, and perhaps to try to effectuate a
change of heart.” lal. at 6, 8, 10, 20; see also Thorpe Reply at 3. Thorpe seemingly
dismisses the discussions between counsel at the courthouse, in which Iverson conveyed
his “impression” that Defendant Knight would not accept the plea offer. Thorpe Mot. at
10. Defendant Thorpe contends that these efforts were insufficient Ia’. at 6. He also
suggests that his counsel should have done more to meet with the Government, above and
beyond simply asking the Government to unwire the plea. [cl. at 8.
The Government insists that Attorney Knight’s representation was more than
adequate for effective assistance of counsel. Attorney Knight discussed the plea offer with
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his client, including the Superior Court guidelines, the fact the plea offer was wired, and
the other charges Thorpe “could potentially be indicted on and how much time those
charges and offenses would carry.” 9/20/ 17 Tr. 59-60, 76-77. Unlike Attorney lverson,
Attorney Knight specifically discussed the possibility of federal charges with his client
when explaining the consequences of rejecting the plea. Govt. Opp. at 29. And of course,
he did meet with both co-counsel and the AUSA to “ask[] her if she would unwire the plea,
and she said no.” 9/20/17 Tr. 63-64, 67.
ln my judgment, Defendant Thorpe seeks to set the standard for effective counsel
very high indeed. What Thorpe asks for, in so many words, is for this Court to find
ineffective counsel if an attorney does not ultimately change a co-defendant’s mind. That
l cannot do. The record evidence shows that Attorney Knight did everything required for
effective assistance, and more. He met with his own client multiple times to explain and
discuss the plea. He met with co-counsel to discuss whether Defendant Knight would
accept the plea. He met with the Government to ask them to unwire the plea. To ask him
to do more would be the type of “post-hoc” l\/londay morning quarterbacking that this Court
cannot, and will not, engage in. Because l find that Attorney Knight’s counsel was fully
effective, l need not reach the issue of prejudice as to Defendant Thorpe.
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CONCLUSION
For the foregoing reasons, defendants’ claims that their Superior Court counsel
were constitutionally deficient are DENIED. An order consistent with this l\/lemorandum
Opinion is separately and contemporaneously issued herewith.
dam
RICHARD J. w
United States District Judge
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