UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

Four men from Philadelphia—Nathaniel Pembrook, David Briley, Shaheed 

Calhoun, and Orlando Johnson—traveled to Michigan where, on April 22, 2014, they 

attempted to rob Medawar Jewelers in Grand Rapids and then successfully robbed 

Tapper’s Jewelry in West Bloomfield. A gun was used during both robberies. 

Following a jury trial, the men were convicted of Hobbs Act conspiracy, Hobbs Act 

robbery, and two counts of brandishing a firearm during and in relation to a crime of 

violence. One of the gun counts was subsequently vacated and all four men were 

resentenced. David Briley now seeks post-conviction relief, claiming his trial counsel 

was ineffective for failing to adequately pursue an alibi defense that would have put 

Briley in Philadelphia at the time of the robberies. As Briley’s claim lacks merit, the 

motion is DENIED. 

UNITED STATES OF AMERICA, 

 Plaintiff, 

 

v. 

 

D2- DAVID BRILEY, 

 Defendant. 

Case No. 14-20525 

Honorable Laurie J. Michelson 

OPINION AND ORDER DENYING DAVID BRILEY’S MOTION TO 

VACATE JUDGMENT UNDER 28 U.S.C. § 2255 

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I.

This case involved lengthy pretrial proceedings and a multi-week trial. In 

affirming the convictions, the Sixth Circuit provided an extensive summary of the 

evidence. The Court will repeat most of it here for helpful background and in aid of 

analyzing prejudice to Briley from the absence of an alibi defense: 

FBI Agent Brian Max began his investigation of two similar Michigan 

jewelry-store robberies—separated by a drive of five hours and 150 

miles—with a “tower dump” for the cell-phone towers near the two 

stores. A “tower dump” is a chronological list of every phone number that 

used the tower for any purpose (voice call, text, internet connection, etc.) 

regardless of provider (e.g., Verizon, AT&T). Agent Max found that a 

phone number ending “1434”—assigned to a recently activated, prepaid 

cell phone with no name on the account—had used a tower or towers 

near each of the robberies at times corresponding to those robberies. 

Agent Max then obtained the “call detail records” (a list of all calls to 

and from that number, with dates, times, and tower locations) for the 

#1434–phone and tracked its path from Philadelphia (April 21, 2014) to 

Milwaukee; to New Buffalo, Michigan, for an overnight stay; to 

Plainfield Township, near the Medawar Jewelry store, 40 minutes 

before the first robbery (about 11:50 a.m.); to West Bloomfield Township, 

near the Tapper’s Jewelry store, 15 minutes before the second robbery 

(5:00 p.m.); then back to Philadelphia the next day (April 23, 2014). 

Plainfield Township is less than two hours’ drive north of New Buffalo; 

West Bloomfield Township, near Detroit, is less than three hours’ drive 

from Plainfield Township. 

Agent Max discovered three more phone numbers (ending 0033, 7819, 

and 1574) that followed the same pattern. These four numbers had also 

contacted each other repeatedly during the trip, including, for example, 

dozens of times in the hour before the Medawar robbery. Of particular 

interest, a call from the #0033–phone to Enterprise car rental made a 

record of “Shaheed” Calhoun’s renting a white Volkswagen Passat from 

a location at the Philadelphia train station on April 11 and returning it 

there on April 23 after driving it 3,463 miles. Calhoun had provided 

Enterprise his Pennsylvania driver’s license and paid with his credit 

card. 

In addition to Agent Max’s cell-tower and phone-records investigation, 

the FBI also had witness statements and surveillance videos from the 

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robberies. At 12:30 p.m. on April 22, 2014, four men rushed into the 

Medawar Jewelry store, one suspiciously carrying a large bag. Another 

had a hammer and began striking the glass jewelry cases (which did not 

break) while a third ordered an employee at gunpoint to open a safe. 

There were no customers in the store. The other employees, quickly 

recognizing the robbery, hid in the break room with the lights out, 

watching on closed-circuit video while the owner retrieved his own 

handguns. When the owner yelled for the robbers to leave because he 

was armed, one robber—armed with a handgun—instead pursued him. 

When that robber entered the break room, the owner shot at him, hitting 

him in the arm. At that, the robbers fled, one dripping blood from the 

gunshot wound. They were gone by the time police responded to the 911 

call, but witnesses described a black, new model Chrysler Town & 

Country minivan. Police tracked blood drops to a location behind the 

store and exterior security videos had recorded the minivan parked 

there for an hour before the robbery with two of the robbers milling 

about nearby. No employee was injured in the robbery nor was anything 

of significant value stolen. The loss was $2,252 in damage to the store. 

None of the victims was able to identify any of the robbers, either 

immediately or later at trial. 

At 5:15 p.m. that same day, three men wearing masks and gloves 

entered the Tapper’s Jewelry store near Detroit, and ordered the 

employees and customers down on the ground. The first robber had a 

handgun and forced the security guard to the ground while the other 

two ordered an employee to open the case of Rolex watches. One robber 

held a bag while the other filled it with watches. This robbery lasted two 

minutes. An employee had tripped a silent alarm, but the robbers were 

gone before the police arrived. Exterior surveillance video, beginning an 

hour before the robbery, recorded the simultaneous arrival of the black 

Chrysler minivan and a white Volkswagen Passat. One man got out of 

the minivan; two exited the Passat. They separately went into a nearby 

shopping mall and returned without ever acknowledging each other, but 

upon their return, the man from the van got into the Passat and the two 

from the Passat got into the van. The first man moved the Passat to park 

it facing the Tapper's entrance. The van moved behind the store and 

three men wearing hoodies and gloves got out. Moments later, the same 

three ran back to the van with two bags and drove off. No one was 

injured during the robbery. The robbers made off with 123 Rolex 

watches, worth $853,957.8 None of the victims was able to identify any 

of the robbers, either immediately or later at trial. 

Further investigation led to a security video from a Comfort Inn in New 

Buffalo on April 21, the day before the robberies, which had recorded the 

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simultaneous arrival of the Passat and the minivan at about 10:30 p.m. 

The driver of the Passat rented three rooms, the cars pulled around to 

park, and six men got out of the two cars and shared the three rooms. A 

few minutes after arriving, three men took the Passat and then the 

minivan across the street for gas at a Shell station, as recorded on the 

Shell station’s surveillance video. The Comfort Inn video also recorded 

four men leaving the motel the next morning at about 9:00 a.m., and 

those men were recognizable in the jewelry stores’ videos as the men in 

the hotel videos. 

The cell-tower records had also placed the four suspected cell phones 

near this New Buffalo location and the call-detail records helped put 

names to three of the numbers: Calhoun to #0033 based on the 

aforementioned call to Enterprise as well as calls to his mother and 

girlfriend; Johnson to #1434 based on calls to his girlfriend (over 100 

calls); and Briley to #7819 based on calls to his ex-wife, current 

girlfriend, daughter, and mother. The Shell station attendant, Sue 

Graff, later picked Calhoun and Briley from a police photo array. 

Johnson had given the #1434–phone to a friend in Philadelphia, who 

gave it to the FBI when questioned and who also identified Johnson in 

the videos from the Shell station and Tapper’s. 

Briley was most evident in the videos from both the hotel and Tapper’s 

because of a distinctive outfit. 

Meanwhile, the blood drops at Medawar Jewelry produced Pembrook’s 

name from the DNA database. Police tracked him to a Philadelphia 

hospital at which he had arrived at 4:00 a.m. on April 23 for removal of 

the bullet from his arm. He left a day or so later, but had called Briley 

from the phone in his hospital room before leaving. Ballistic tests 

matched the removed bullet to the store owner’s gun. Philadelphia police 

arrested Pembrook and sent him back to Detroit where he declined to 

cooperate and instead—using another inmate’s phone passcode—called 

his girlfriend with a covert warning to the other robbers that the police 

were onto them. 

Police eventually arrested the other three suspects and sent them to 

Detroit for prosecution. When the police arrested Calhoun, he had in his 

wallet the credit card and driver’s license used to rent the Passat. When 

the police arrested Briley, his cell phone had a picture of him wearing 

the same outfit he was wearing in the Shell station surveillance video. 

The jury convicted all four defendants on all counts and the district court 

sentenced each of the four to 33 years in prison—one year each for the 

robbery, conspiracy, and felon-in-possession counts, to run concurrently, 

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and 32 years for the two § 924(c) convictions (seven for the first and a 

mandatory 25 for the second, to run consecutively). 

United States v. Pembrook, 876 F.3d 812, 816–19 (6th Cir. 2017), judgment vacated 

on sentencing grounds, Briley v. United States, 139 S. Ct. 65 (2018). 

Following changes in the law, Hobbs Act conspiracy is no longer a crime of 

violence. See United States v. Davis, 139 S. Ct. 2319 (2019) (holding that 

§ 924(c)(3)(B)’s residual clause is unconstitutionally vague). Thus, Defendants’ 

convictions under 18 U.S.C. § 924(c) for having a gun during the Medawar robbery 

were vacated. (See ECF No. 233.) Briley was then resentenced to 169 months’ 

imprisonment on the remaining counts of conviction. (ECF No. 290.) 

II.

On January 14, 2022, Briley filed a pro se motion under 18 U.S.C. § 2255 to 

vacate his judgment. (ECF No. 305.) He raised one issue: that his trial counsel was 

ineffective under Strickland v. Washington, 466 U.S. 668 (1984), for failing to 

investigate and produce alibi witnesses and evidence that would have put Briley in 

Philadelphia on the day of the Michigan jewelry store robberies. (Id.) More 

specifically, Briley claimed he had dinner at Copa’s Bar and Grill in Philadelphia 

with his friend James “Steve” Player and Player’s then-fiancée, Sreeta Reddy, the 

night before Player went into the hospital. (Id. at PageID.4660.) The dinner, suggests 

Briley, had to have been on April 21, 2014, because there are hospital records showing 

that Player was admitted on April 22, 2014. (Id. at PageID.4684; ECF No. 329-1.) So 

he told his lawyer to get in touch with Player and Reddy. (ECF No. 305, PageID.4660.) 

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Briley believes his counsel waited too long to do so and was deficient for failing to 

investigate or call them as trial witnesses. (Id. at PageID.4660–4661.) 

Briley claimed another “woeful act of neglect”—his counsel’s failure to use at 

trial a day planner from his former employer, Jerri Brooks, which would have shown 

Briley was doing some renovation work at her home in Philadelphia during the time 

of the Michigan robberies. (Id. at PageID.4661–4662.) 

The government opposed Briley’s motion. (ECF No. 315.) The government 

provided notes and memos from Briley’s trial counsel and the Philadelphia lawyer 

that counsel hired to investigate Briley’s alibi defense. (Id.) These materials, argued 

the government, demonstrate that counsel was not ineffective. (Id.) For instance, the 

materials revealed that the investigator reviewed Brooks’ day-planner in November 

2015. (ECF No. 315-2.) This review made clear that Brooks had altered some dates 

and entries in 2014 to make it appear Briley was working in Philadelphia during the 

time of the robberies. (Id.) He advised Briley’s trial counsel that Brooks created “an 

ex post facto journal written so as to appear to have been created 

contemporaneously.” (ECF No. 315-2, PageID.4738.) (The materials also revealed 

that Brooks was the mother of one of Briley’s good friends.) The investigator followed 

up with Brooks. She acknowledged that she had “re-created” and “transcribed” the 

journal the day she gave it to him to review. (Id.) In turn, he told her that using the 

journal would be worse than having no proof at all and he asked her to try to find 

something else to corroborate the dates of Briley’s work on her home. (Id.) She told 

him “she would try but that it would be doubtful.” (Id.) 

Case 2:14-cr-20525-LJM-MKM ECF No. 331, PageID.4924 Filed 04/12/23 Page 6 of 18
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The government also argued that, even if the Court found deficient 

performance in the handling of the alibi defense, Briley failed to demonstrate 

prejudice. (ECF No. 315, PageID.4732–4734.) 

The Court appointed counsel for Briley and ordered an evidentiary hearing. 

(ECF No. 319.) The Court heard testimony from (1) William Swor—Briley’s trial 

counsel, (2) Steven LaCheen—the Philadelphia lawyer hired by Swor to investigate 

the alibi defense, (3) Sreeta Reddy—Player’s fiancée and Briley’s proffered alibi 

witness, and (4) Keniysha Kirkland—Briley’s daughter. (ECF No. 328.) Jerri 

Brooks—the creator of the day-planner—did not testify. The parties also submitted 

supplemental briefing after the hearing. (ECF Nos. 329, 330.) 

III.

 A federal prisoner may challenge his sentence by way of a motion filed 

pursuant to 28 U.S.C. § 2255. To prevail, Briley must show that the sentence imposed 

is “in violation of the Constitution or laws of the United States,” or “is otherwise 

subject to collateral attack.” 28 U.S.C. § 2255(a). “A prisoner seeking relief under 28 

U.S.C. § 2255 must allege either: ‘(1) an error of constitutional magnitude; (2) a 

sentence imposed outside the statutory limits; or (3) an error of fact or law that was 

so fundamental as to render the entire proceeding invalid.’” Short v. United States, 

471 F.3d 686, 691 (6th Cir. 2006) (quoting Mallett v. United States, 334 F.3d 491, 

496–97 (6th Cir. 2003)). 

Briley’s § 2255 motion only contends that the ineffective assistance of his trial 

counsel violated his Sixth Amendment right to a fair trial. This requires a showing 

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that: (1) “counsel’s performance was deficient,” and (2) “the deficient performance 

prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 694 (1984). Deficient 

performance means his lawyer’s representation fell below an objective standard of 

reasonableness. Id. at 694. Prejudice means there is “a reasonable probability that, 

but for counsel’s unprofessional errors, the result of the proceeding would have been 

different.” Id. 

The Court will address each prong in turn. 

A.

Counsel has a duty to investigate defenses. Wiggins v. Smith, 539 U.S. 510, 

527–28 (2003). “Counsel’s failure to investigate a defense may constitute ineffective 

assistance . . . particularly when an attorney fails to investigate a plausible alibi 

defense.” Cope v. United States, 385 F. App’x 531, 533 (6th Cir. 2010). “[I]n the context 

of asking whether counsel adequately investigated his client’s defense, the ultimate 

inquiry is whether the choice not to conduct additional investigation was ‘reasonable[] 

in all the circumstances, applying a heavy measure of deference to counsel’s 

judgments.’” Bigelow v. Haviland, 576 F.3d 284, 287 (6th Cir. 2009) (quoting 

Strickland, 466 U.S. at 691). “[S]trategic choices made after thorough investigation 

of law and facts relevant to plausible options are virtually unchallengeable; and 

strategic choices made after less than complete investigation are reasonable precisely 

to the extent that reasonable professional judgments support the limitations on 

investigation.” Strickland, 466 U.S. at 690–91. 

Case 2:14-cr-20525-LJM-MKM ECF No. 331, PageID.4926 Filed 04/12/23 Page 8 of 18
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1.

Briley’s trial counsel, William Swor, credibly testified about his handling of the 

alibi defense. 

Briley acknowledges that Swor is “a recognized, well regarded and experienced 

attorney who has practiced extensively in the Eastern District of Michigan.” (ECF 

No. 329, PageID.4895.) Swor was retained to represent Briley in December of 2014. 

(ECF No. 328, PageID.4818.) Other lawyers worked on the case with him. Two of 

those lawyers, Yassaman Hajivalizadeh and Elizabeth Young, had an initial meeting 

with Briley on December 9, 2014 and prepared a summary for Swor. (ECF No. 328, 

Gov’t Ex. 1.) 

According to the summary, Briley raised an alibi. He told counsel he was in 

Philadelphia on April 21 and 22, 2014. (Id.) He told them he went to Copa’s with his 

friend Steve Player and Player’s fiancée, Sreeta Reddy. (Id.) He also recalled running 

into his daughter, Keniysha, that same evening. (Id.) He recounted that the next day, 

April 22, 2014, he got his hair cut (by co-defendant Nathanial Pembrook’s uncle) and 

had dinner at his aunt’s house (co-defendant Shaheed Calhoun’s mother). (Id.) He did 

not mention a hospital visit to see Player. (Id.) 

Swor was “concerned” about the alibi defense. (ECF No. 328, PageID.4822.) He 

thought the dates and times being provided eight months after the incident appeared 

“too perfect” and “too precise.” (Id.) These were “caution signs.” (Id.) But it was 

foundation for further inquiry. (Id.) 

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During the representation, Swor met with Briley’s daughter (Keniysha), to 

discuss her father’s case. Swor did not recall her mentioning that she ran into her 

father on the night of April 21, 2014. (Id. at PageID.4823.) Keniysha likewise testified 

that she was “unsure” if she told Swor that she ran into her father that evening. (Id. 

at PageID.4824–4825.) Most significant, in August 2015, Swor retained another 

experienced criminal defense lawyer from Philadelphia, Steve LaCheen, to 

investigate the alibi defense and interview potential alibi witnesses. (Id. at 

PageID.4825–4826, 4866.) Swor prepared a factual summary for LaCheen titled 

“Background Information and Questions for alibi witnesses” that he believed was 

sent no later than October 29, 2015. (ECF No. 328, Gov’t Ex. 2.) The summary 

identified Player, Reddy, and Brooks. (Id.) It detailed Briley’s claim that Player was 

admitted to the hospital, that Briley was with Reddy at the hospital on April 22, 2014, 

and that Briley did some handiwork for Brooks between April 18 and April 24, 2014. 

(ECF No. 328, PageID.4834.) 

LaCheen then went to work. From late October or early November 2014 

through at least November 18, 2014, he tried, without success, to find Player. He 

interviewed Briley’s friend, Steve Brown, and another individual who did not have 

any alibi testimony to provide. (ECF No. 328, Gov’t Ex. 4.) He also interviewed Reddy 

and Brooks. He had telephone conversations with Swor and also sent him written 

summaries of his interviews and efforts. (ECF No. 328, Gov’t Exs. 3–8.) 

During LaCheen’s interview with Reddy, she recalled being with Briley at the 

Copa’s Bar and Grill one night. (Id. at Gov’t Ex. 4.) She thought it was the night 

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before Player ended up in the hospital. (Id.) But she also thought this was August 22, 

2014—not April 2014. (Id.) She told LaCheen that she would look for any photographs 

she may have taken of Player at the hospital and would search her memory for anyone 

else who may have seen them at Copa’s. (Id.) Notably, she did not mention being with 

Briley at the hospital. (Id.) 

LaCheen made several unsuccessful attempts to follow up with Reddy and did 

not hear back from her until November 16, 2014. (Id. at Gov’t Exs. 5, 8.) She advised 

that “she tried but came up empty.” (Id. at Gov’t Ex. 8.) LaCheen sent an email to 

Swor lamenting, “it is becoming increasingly more clear that any support for the 

hoped-for-alibi defense, if it ever existed at all, has evaporated.” (Id.) The next day, 

which was also the start of jury selection, LaCheen received the doctored journal from 

Brooks. (Id. at Gov’t Ex. 6.) This was reported to Swor on November 18, 2014. (Id.) 

Swor testified that he ultimately made the decision not to present an alibi 

defense. (ECF No. 328, PageID.4837.) He “thought it could be harmful” and “felt it 

would be disastrous.” (Id. at PageID.4837–4838.) He worried about losing credibility 

with the jury by presenting questionable evidence. (Id. at PageID.4817, 4832, 4836.) 

LaCheen likewise testified that he believed a failed alibi was worse than no alibi. (Id. 

at PageID.4878.) 

2.

It is clear that Swor investigated Briley’s alibi defense. Thus, following the 

evidentiary hearing, Briley narrowed his claim. He now says his “case is not one in 

which his Defense Trial Counsel failed to conduct an investigation into a potential 

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alibi defense. A late investigation was conducted, but it was inadequate and 

objectively deficient under the circumstances.” (ECF No. 329, PageID.4895.) 

Briley focuses on the fact that LaCheen’s investigation did not begin until late 

October, early November. (ECF No. 329, PageID.4901.) And, says Briley, “[w]ith the 

trial starting on November 16, 2015, the abbreviated investigation of this alibi 

defense . . . meant there was not the time or ability to do the necessary amount of 

follow up with Reddy or to find Player.” (Id.) Not so. 

First, LaCheen worked primarily with one of Briley’s friends, Steve Brown, to 

try to find Player. Brown worked the “neighborhood grapevine” and also called people 

who knew Player. (ECF No. 328, Gov’t Exs. 5, 7.) They did not return his calls. Brown 

believed they did not want to get involved. (Id. at Gov’t Ex. 8.) Reddy had also lost 

touch with Player. There is nothing to suggest that, had Swor or LaCheen started the 

search earlier, they would have found Player. 

And even if they had, Player was just one piece of the alibi puzzle. No one 

disputes that he was hospitalized on April 22, 2014. The more significant issue for 

the alibi defense was whether it could be established that Briley was with him, or 

otherwise in Philadelphia, that day or the day before. At Briley’s initial meeting with 

Swor’s associates, Briley made no mention of being at the hospital on April 22, 2014. 

Reddy also made no mention of Briley being with her at the hospital. And she testified 

that Briley was not with her at the hospital. (Id. at PageID.4863.) Briley’s daughter 

testified that she got hospital records from Player and gave them to Swor. (ECF No. 

328, PageID.4849–4850; Def. Ex. 1.) It is a reasonable assumption that if Player had 

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corroborating information that Briley was with him, he would have given that to 

Briley’s daughter as well. But he did not.1 

Next, LaCheen had sufficient time to acquire relevant information from Reddy. 

He interviewed her on November 9, 2014. True, she believed she was at Copa’s with 

Briley the night before Player was hospitalized, but she thought that was August 

2014. LaCheen called her at least four more times to follow-up. (ECF No. 328, Gov’t 

Exs. 5, 8.) She finally called him back on November 16, 2014 to advise him that she 

came up empty. (Id. at Gov’t Ex. 8.) This was all reported to Swor. 

Swor also chased down the other leads given by Briley. He met with Briley’s 

daughter. Notably, she has no recollection of telling Swor that she ran into her father 

in Philadelphia on April 21, 2014. And Brooks admitted to LaCheen that she recreated journal entries from entries in her cell phone that were written in a code only 

she would understand. (Id. at Gov’t Ex. 6.) Thus, LaCheen asked her to find 

something else to corroborate that Briley was working at her home on April 21 or 

April 22, 2014, and she also failed to provide anything. (Id. at Gov’t Ex. 8.) Again, 

nothing suggests this would have been different had Swor (through LaCheen) started 

the investigation earlier. 

In sum, Swor did not forego the alibi defense because he lacked or ran out of 

time to adequately pursue it. His investigation did not turn up anything definitive to 

1 Keniysha testified that Player did not understand why Briley was going 

through this when he had proof Briley was at the hospital seeing him during the 

relevant time. (ECF No. 328, PageID.4853.) But no explanation is provided as to why 

Player did not give her or anyone else that “proof,” and why he never reached out to 

Swor. 

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put Briley in Philadelphia from April 21–22, 2014. As LaCheen testified, none of the 

witnesses could “produce corroboration of sufficient substance to provide Mr. Briley 

with the alibi that he was seeking.” (ECF No. 328, PageID.4887.) Indeed, Swor 

received information from Keniysha, Reddy, and Brooks that called Briley’s story into 

question. And while it is true that the investigation ran up against the start of the 

trial, Swor could have tried to raise a late alibi defense had he turned up sufficient 

support. See Fed. R. Crim. P. 12.1. Instead, he made a strategic decision not to raise 

it. This is not deficient performance. Strickland, 466 U.S. at 690–91; see also Cope v. 

United States, 385 F. App’x 531, 533 (6th Cir. 2010) (finding no deficient performance 

where evidentiary record showed that trial counsel reasonably investigated alibi 

defense); Price v. United States, No. 15-20472, 2018 U.S. Dist. LEXIS 209925 (E.D. 

Mich. Dec. 13, 2018) (finding no deficient performance where the record supported 

the reasonableness of trial counsel’s strategic decision not to pursue a non-existent 

alibi defense after making a reasonable inquiry into the facts); Crowe v. United States, 

No. 11-20481, 2019 U.S. Dist. LEXIS 64743, at *14 (E.D. Mich. Apr. 16, 2019) (finding 

no deficient performance where trial counsel made strategic decision not to call 

potential alibi witnesses “whose testimony would have run counter to the weight of 

the evidence,” thereby bringing great risks to the defense). 

3.

The cases Briley cited do not warrant a different result. They are cases that 

involved virtually no investigation of an alibi defense. In Upshaw v. Stephenson, No. 

20-CV-12560, 2022 WL 2754155 (E.D. Mich. July 14, 2022), petitioner told his trial 

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counsel he was innocent and that three witnesses could provide alibi testimony. But 

counsel neglected to contact the witnesses or pursue their alibi testimony. Id. at *9. 

Replacement counsel also failed to undertake any investigation. Id. In Avery v. 

Prelesnik, 548 F.3d 434 (6th Cir. 2008), trial counsel never personally attempted to 

contact the alibi witness. He did so only through an investigator who left it up to the 

teenage witnesses to contact counsel. Id. at 438. And in United States v. Murillo, trial 

counsel “made a conclusory decision not to investigate alibi witnesses because of 

credibility concerns.” No. 07-20417, 2011 U.S. Dist. LEXIS 122541, at *25 (E.D. Mich. 

Oct. 24, 2011). 

These are not fair comparisons to Swor’s efforts to investigate Briley’s alibi 

defense. While “[a] purportedly strategic decision is not objectively reasonable when 

the attorney has failed to investigate his options and make a reasonable choice 

between them,” Towns v. Smith, 395 F.3d 251, 258 (6th Cir. 2005) (quotation 

omitted), that is not what occurred here. Swor weighed the fairly strong evidence 

linking Briley to the Michigan robberies against the consequences of presenting the 

weak alibi evidence to the jury. He was aware from his experience that an improperly 

presented alibi defense can destroy a defendant’s credibility. (ECF No. 328, 

PageID.4817.) This Court “should not second-guess counsel’s strategic decisions, and 

should presume that counsel’s conduct is reasonable.” Morris v. Carpenter, 802 F.3d 

825, 843 (6th Cir. 2015). 

Thus, absent a showing that Swor’s performance was deficient, there is no 

basis to find ineffective assistance of counsel. 

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B.

The lack of prejudice also precludes Briley’s motion. To establish prejudice, 

Briley must demonstrate a “reasonable probability” that the result of his trial would 

have been different but for Swor’s mistake. Strickland, 466 U.S. at 694. A “reasonable 

probability” is one “sufficient to undermine confidence in the outcome.” Id. 

Again, even if Swor had presented Briley’s alibi defense, it did not credibly 

establish Briley’s presence in Philadelphia. At best, a friend might have testified 

Briley was visiting him at the hospital (if the friend could have been located), that 

friend’s fiancée would have testified she believed she had dinner with Briley the night 

before the hospitalization, and the mother of another friend would have testified, 

based on journal entries she admittedly created in 2015, that Briley was doing 

renovation work on her home on April 21 and 22, 2014. 

Briley believes this would have been sufficient for the jury to reach a different 

result. He argues that “the prejudice here is not overcome by overwhelming evidence 

implicating Briley, either.” (ECF No. 329, PageID.4902.) But in doing so he 

significantly downplays that overwhelming evidence. See Pembrook, 876 F.3d at 827–

28.

Start with the cell phone evidence. The government connected Defendants to 

certain cell phones that were in contact the day of the robberies, were in the vicinity 

of the Michigan jewelry stores at the time of the robberies, and traveled from 

Philadelphia to Michigan and back to Philadelphia. (ECF No. 315, PageID.4719–

4720.) One of the phone numbers that the cell-site analysis connected to the other 

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defendants made over 100 calls to Briley’s friend, Steven Brown, to Briley’s 

stepmother, to Briley’s ex-wife, and to Briley’s daughter. (Id. at PageID.4720.) This 

phone left Philadelphia on April 21, 2014, traveled to Milwaukee and to New Buffalo, 

and made multiple calls in close proximity to Tapper’s Jewelry prior to the robbery. 

(Id. at PageID.4732.) In other words, strong evidence was presented to the jury that 

Briley’s cell phone was in Michigan on April 21–22, 2014. Additionally, Defendant 

Pembrook was shot during the Medawar robbery and left traces of blood that were 

ultimately connected to him. He did not dispute his involvement in that robbery. 

Evidence was presented at trial that Pembrook called the phone connected to Briley 

from his hospital room the day after the robberies. 

There was also strong visual evidence placing Briley in Michigan at the time 

of the robberies. Sue Graff, an employee at the Shell station convenience store in New 

Buffalo, Michigan, identified Briley from a photo array as one of the customers who 

was in the store on April 21, 2014. (Id. at PageID.4723.) The man Graff identified as 

Briley was wearing a checkered shirt that was similar to the shirt Briley was wearing 

in a photograph taken from the cell phone on his person when he was arrested. (Id. 

at PageID.4723–4724.) The jury was also shown the video of the Shell station 

customers and thus able to make their own assessment as to whether Briley was 

involved. And the government presented still frame images from the mall where 

Tapper’s Jewelry is located, showing a man who looked like Briley walking outside of 

the Tapper’s store shortly before the robberies and returning to the white Passat. (Id.) 

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Against the strength of the incriminating evidence tying Briley to the Michigan 

robberies, the uncorroborated testimony that he was instead visiting a friend in a 

Philadelphia hospital on April 22, 2014 does not render the jury’s verdict unreliable. 

So there has been no showing of prejudice either. 

IV.

For these reasons, Briley cannot establish a basis for granting his § 2255 

motion. The motion is DENIED. 

Nor does the record warrant a certificate of appealability. A court may issue a 

COA “only if the applicant has made a substantial showing of the denial of a 

constitutional right.” 28 U.S.C. § 2253(c)(2). “That standard is met when ‘reasonable 

jurists could debate whether (or, for that matter, agree that) the petition should have 

been resolved in a different manner,’” Welch v. United States, 136 S. Ct. 1257, 1263 

(2016) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or when “jurists could 

conclude the issues presented are adequate to deserve encouragement to proceed 

further,” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). For the same reasons, this 

showing has not been made. Briley’s request for a COA is DENIED.

IT IS SO ORDERED. 

Dated: April 12, 2023 

 

 s/Laurie J. Michelson 

 LAURIE J. MICHELSON 

 UNITED STATES DISTRICT JUDGE 

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