UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

) UNITED STAT ES O F AMERICA ) ) v. ) Crim . No. 01-0311 (TF H) ) GENO W. JENK

INS, ) ) P etitioner . ) )

MEMORAN DUM OP INION Pending be fore the Court is Petit ioner’s Pro Se Motion to Vacate , Set Aside or Corre ct Sentence pursuant to 28 U.S.C. § 2255. After c are ful consider ation of Petitioner’s motion, Petitioner’s supporting memorandum, a nd the entire rec ord her ein, the Court will deny the motion for the r easons e x plained below. I. BACKG ROUND Offic ers f rom the nar cotics bra

nch of the Metropolitan Police Depa rtment’s (“ MPD”)

narc otics strike forc e executed a sear ch wa

rra nt issued by

the D.C. Superior Court at 1418 S St., S.E. in W ashing ton, D.C. on the morning of August 1, 2001. See Def .’s Mot. in L imine (Aug . 31, 2004) at 1 [Dkt. No. 31]. The office rs found Petitioner Ge no W. J enkins in a bedr oom closet with “numer ous items of contraba nd” ( id. ; Tr. 164:4-17, Jan. 4, 2005) on his person, to wit: “ten-pa cks of ziplock bag g ies filled with a white powde r, that later proved to be heroin.” Def ’s. Appea l Br. at 6-7, No. 05- 3067 (D.C. Cir. Apr. 28, 2006) ( citing A pp. 66, 69, 70). On Nove mber 6, 2001, a Gra nd J ury returne d a super cedingindictment char g ing Jenkins with five counts of drugor firea rm offe nses. J enkins was trie d on those cha rg es in J anuar

y 2005. On J anuar

y 12, 2005, afte r hear ing f our day s of testimony

and deliber atingfor at least two day s, a jury acquitted Jenkins onfour c ounts and found him g uilty on Count Two: possession with i ntent to distribute less than ten g rams of he roin in violation of 21 U.S.C. § 841(a)(1) and § 841(b) (1)( c). O n April 6, 2005, J enkins was se ntence d to 262 months i n prison for that of fense , to be followed by

six y ear s of supervised r elea se. On F ebrua ry 11, 2008, J enkins submitted the pendingpetition, alleg ing ineffe ctive assistanc e of c ounsel. II. DISCUSS ION A. Legal Stand ard A def endant may

“move the c ourt which imposed [his] sentenc e to vac ate, se t aside, or

corr ect the se ntence ” on the grounds that it “was imposed in violation of the Constituti on or the laws of the United States, or that the cour t was without jurisdiction to i mpose such a se ntence , or that the sentenc e wa s in ex cess of the maxim um authorized by law, or is other

wise subject to collater al attac k.” 28 U.S.C. § 2255. But re lief under § 2255 is "a

n extraordinary

reme dy .” Cassell v. United States , 2006 U.S. Dist. L EXI S 53600 (D.D.C. J uly 19, 2006) (c itations omi tted). “The person se ekingto vaca te his sentence shoulders the burde n of sustaininghis contentions by a preponde ranc e of the evidenc e.” Thorpe v. United States , 445 F. Supp. 2d 18, 21 (D.D .C. 2006) (citing United States v. Simpson , 475 F.2d 934, 935 ( D.C. Cir. 1973)). To preva il on an ineffe ctive assistanc e of c ounsel claim, Petitioner must show both defic ient perf

ormanc e and r esulting pr ejudice. T hat is, he must demonstrate that his attorne y ’s

err ors wer e so ser ious that they deprive d him of the rig ht to counsel as guara nteed by the Six th Amendment. Strickland v. W ashington , 466 U.S. 668, 688 (1984). “T his means that counse l's conduct must have fallen be low an objec tively rea sonable standa

rd, that is, it musthave be en below pre vailing pr ofessional norms.” United States v. Motta-Vargas , 2010 U.S. Dist. L EXI S 44355 (D.D.C. Apr . 30, 2010) (L amber th, C.J .) (c itation omit ted). “ J udicial scrutiny of counse l's

2perf

ormanc e must be hig hly

defe rential," and cour

ts "must indulge a strongpresumption that counsel' s conduct fa lls withi n the wide r ang e of r easona ble profe ssional assistance." Id. As the Supreme Court has r ecognized, “there are countless way s to provide ef fec tive assistance in any g iven ca se," id. , and abse nt consideration of counsel’s overall perf ormanc e, it would be " all too easy for a court, e x amining c ounsel' s defe nse af ter it has prove d unsucce ssful, to conclude that a particula r ac t or omission of counsel was unr easona ble." Id

. In addition to demonstrating attorney err or, Petitioner must show the sine qua non to a collater al attac k on a criminal conviction: resulting pr ejudice. Spec ifically , he must demonstrate, in light of “ the totality

of the e vidence befor e the judg e or jury ,” a r easona ble proba bility that the outcome of his ca se would have been dif fer ent but for the e rror . Strickland, 466 U.S. at 695; Hill v. Lockhart , 474 U.S. 52, 57-58 (1985). To satisfy the pre judice prong , the har

m must be such "that counsel' s err ors wer e so ser ious as to deprive the defe ndant of a fair tr ial, a trial whose result is reliable." Lockhart v. Fre twell , 506 U.S. 364, 369 (1993) (quoting Strickland , 466 U.S. at 687). A " rea sonable proba

bility " is one "suf

ficient to under

mine confide nce" in the verdic t. Id. at 694-5 (“ the question is whether there is a rea sonable proba bility that, absent the e rror s, the fac tfinder would ha

ve had a rea sonable doubt re spectingg uilt”); see H ill , 474 U.S. at 59; Lockhart v. Fre twell , 506 U.S. 364, 366 (the pre judice must be such " that counsel' s err ors wer e so serious as to depr ive the def endant of a fa ir trial, a tria l whose re sult is reliable." (citation omitted)); see also United States v . Bowie , 198 F.3d 905, 908- 909 (D.C. Cir. 1999) (notingthat “re asonable probability ” nee d not be g reater than f ifty perc ent). I f the pe titioner fails to make such a showing , a cour

t may dispose of an ine ffe ctive assistanc e cla im without deciding whe ther counsel wa s constitutionally ineffe ctive. Id. at 697. Wit h this burden in mind, the Court turns to P etitioner’s c laim.

3B. P etitioner ’s Ineff ect ive Assistance Claim Petitioner asserts thre e intertwine d g rounds for his inef fec tive assistance of counse l claim. First, he c omplains that his attorney , I dus J . Daniel, Jr. failed to objec t to the gove rnment’s use of his 1978 armed r obbery

and assa ult with a dang erous we apon convic tions to i mpeac h his testimony under F eder al Rule of Evidenc e 609(b) . Mot. at 3. Second, Petitioner claims that Daniel f ailed to investig ate a

nd proper ly

interview Petitioner, a

rguing that had he done so, Daniel would have le arne d that the prior c onviction evidence could have been e x cluded unde r Rule 609(b). Mot. at 7. F inally , Petitioner alleg es that Da niel failed to a dequate ly

prepa re Petitioner to testify beca use Da niel g ave Petitioner “ the impression . . . that he would not be c onfronted by his prior convic tions.” Mot. at 11.

i. Failure to Raise an Objection to Evide nce of a Prior Conviction Rule 609 restricts the a dmissibi lity of prior c onviction evidence to impeach a witness if ten y ear s have e lapsed since the later of the witness’s c onviction or his relea se fr om confineme nt resultingfrom the c onviction. Fed. R. Evid. 609(b) (2004). I f, howe ver, the court de cides that the evidenc e’s pr obative value outweig hs its prejudicial eff ect, the c ourt may

allow it to be prese nted. Id. The propone nt of 609(b) e vidence over te n y ear s old must give the a dverse party “suff icient advanc e wr itten notice of intent to use such e vidence to provide the a dverse party with a fa ir opportunity

to contest the use of

such evide nce.” Id . Petitioner claims that, though his pa role

revoc ation resulted in his rec onfinement, more than ten year s had passe d since his last rele ase from prison for

those offe nses. Mot. at 5. Petitioner argues that Da niel should have objec ted under Rule 609( b) whe n the g overnme nt filed notice of its intent to impeach him with this evidenc e, and that the failure to do so resulted in the pre sentation of evide nce that unduly prejudice d him. Mot. at 5, 11.

4On J anuar y 3, 2005, the g overnme nt filed an Ame ndment to its “Notice of Intent to

1 I mpeac h Def

endant With His P rior Convictions Pursuant to Fed. R. Evid. 609." [Dkt. No. 53.] There in, the g overnme nt describe d five prior D.C. Superior Court convictions, four of which

car ried c onsecutive se ntence s. Specifica lly , the notice mentioned Jenkins’ 1978 convictions on three firea

rms-re lated off

enses, a 1988 conviction for attempted distribution of heroin, and a 1991 conviction for unla

wful distribution of heroin. The notice explains t hat J enkins’ par ole was 2 revoke d in 1998 and furthe r states that “ [w] hen def endant wa s relea se fr om prison and par oled in November

2000, his remainingparole term wa s for [his 1988 and 1991 convictions]” which

car ried c onsecutive se ntence s. Acc ordingto the Presentenc e Report (“PSR”), Jenkins’ parole on 3 the 1978 convictions wa s revoke d in 1998, such that he wa s confined on those char g es until November

2000. PSR

at 8. On January

4, 2005, the g overnme nt filed “Notice of Applica bility of Enhanc ed Penalties a

nd Information Conce rningDef endant’ s Prior Convictions.” [ Dkt. No. 55.] The notice ref

err ed to only

J enkins’ 1988 and 1991 he roin convictions. “As pa rt of the Rule 609(b) time calculation, two important dates must be considere d: (1) for the pur

poses of de termining whether a convic tion is m ore tha

n ten year s old, the question is whether ten y ear s has expired at the time the witness testifies at trial . . . and (2) under the rule, "r elea se of the w itness from conf inement" means a

t the end of imprisonment, not the termination of a pe riod of probation . . . .” United States v. Pe ttifor d , 238 F.R.D. 33, 37 (D .D.C. 2006) (citations omitted). Since Jenkins was confined until 2000 on the convic tions at issue here, a nd

The filingindicates that a copy of the notice was ser

ved upon Jenkins’ attorney , I dus 1 Daniel, Jr. On Dec ember

30, 2004. The 1991 c onviction is specifica lly ref ere nced in Count 1 of the Super cedingIndictment 2 At sentenc ing, the Court adopted the PSR withoutchang e. 3 5his trial was in 2005, the prior c onviction evidence proff ere d by the g overnme nt did not fall within the scope of the Rule. Mr. Danie l cer tainly cannot be faulted f

or fa iling to ra ise a mer itless objection. Moreove r, eve n if one of the convictions was within the scope of the rule , Daniel’ s decision not to object and to que stion J enkins about it would not constitute an err or to the extent it was pa rt of a sound tria l strateg y . See U nited States v. My les , 10 F. Supp. 2d 31, 38 (D.D .C. 1998) (de scribingthat decision to question defe ndant on prior of fense as par

t of eff ort to “portra

y [hi m] as for

thrig ht and ca

ndid about his past, and implicitly , the cha rg es for which he w as being tried.”) ; but see also Jame s v. United States , 217 Fe d. Appx. 431, 436 (6th C ir. 2007) (“ The failure to object to clea

rly inadmissable evidenc e of pr ior convictions is not shielded as ‘strateg y ’ . . . .”). Indeed, de spite Petiti oner’ s complaint that the jury “lea rned that [ he] was convicte d of Armed Robber

y and Assault with a da

ng erous we apon in 1978" (Pet’r’ s Mot. Mem. at 3 [Dkt. No. 79-1]), the jury

acquitted him on ea ch fire arm c ount. I n light of the se fa cts, the Court ca nnot conclude that Petitioner has met his burden of demonstratingthat his counsel was in a ny way defic ient. Even if Petitioner c ould demonstrate a failure to object under

Rule 609, he has demonstrated a

ny resultingprejudice , beca use he c annot. Petitioner broadly states that the conviction evidenc e “c reated an atmosphere of prejudice toward [Petitioner]” and that the g overnme nt used the evide nce to e ffe ct “undue prejudice ” that had a “deva stating” eff

ect. De f.’s Mot. 3-4, 5, 6. Aside fr om these vague asse rtions, however , Petitioner cites no spec ific evide nce to show a re asonable probability that his case w ould have ha d a diffe rent re sult if the evidence

wer e excluded. See Strickland , 466 U.S. at 694. Indeed, a s mentioned above , the jury acquitted him on four of the f

ive cha rg es ag ainst him, including all fire arm c harg es. Additionally ,

6Petitioner cannot show that a n objection to proff

ere d evidenc e that fa lls withi n the tempora l scope of the rule would have be en sustained since Rule 609(b) doe s not prohibit the presentation of suc h evidenc e per se ; the rule pe rmits it i f “the court de termines, in the intere sts of justice, that the probative va lue of the c onviction supported by specific fac ts and circ umstances substantially outweig hs its prejudicial eff ect.” Fe d. R. Evid. 609(b). Moreove r, in light of the other e vidence prese nted to the jury , Petitioner’s mere claims of prejudice are insufficient to demonstrate that the jury relied on pr ior conviction evide nce to r eac h its verdict on Count Two. See United States v. Marque z , 653 F. Supp. 2d 1, 17 (D.D .C. 2009). In Marquez , the Court found that def ense c ounsel prejudice d the def endant by eff ectively makingthe g overnme nt’s case for them. B ut the g overnme nt’s case “re sted on the testimony of only two witnesses with limit ed knowledg e and que stionable cre dibilit y ” and the defe ndant’s counse l “allow[ed] the gove rnment to prese nt additional and more da mag ing e vidence ag ainst her c lient and to ef fec tively reha bilitate the cre dibilit y

of the two witnesse s ag ainst him.” Id . The de fenda nt

was e ntitled to a new trial be cause “all of the evidenc e ag ainst [hi m] was a ffe cted by counsel’s failure s; and but for those c ollapsed alltog ether .” Id . Her e, by contra st, the g overnme nt presente d a g reat deal of e vidence beyond J enkins’ prior c onvictions or his own testimony , and the Court 4 allowed e vidence g ather ed at the sc ene to be used at trial. F or example, MPD Office rs provided ey ewitness testimony , explaining that they found Jenkins halfway

in (possibly

enter ing or

rea chinginto) a bedr oom closet with small bag s filled with white powder in his pocket. Tr. 164- 65, J an. 4, 2005. Jenkins him self eve n confirme d that an off icer broug ht him int o the hallway and

I t bear s noting that on dire ct examination by his attorney

reg ardingprior off

enses, 4 J enkins stated “I

use[d] to sell drug s to support my [drug] habit.” Tr. 194:14-195:1, Jan. 6, 2005.

7J enkins “let him know that all I had in my

pocket wa s the dope.” Tr. 207-08, Jan. 6, 2005. Offic ers a lso ex plained that they observe d an open sa fe in the c loset, which purpor tedly contained, a

mong othe r thing s, a handgun, some marijuana , and a sa ndwich bagfilled with white powder . Def

’s. Appea l Br. at 6-7, No. 05-3067 ( D.C. Cir. Apr. 28, 2006) (c iting App. 56- 58). One of the offic ers at the scene , Serg eant Ma nlapaz, provided trial testimony reg ardingthe contents of the sa fe a

nd photos taken of the c ontents of the close t and safe . Tr. 160-166, Jan. 5, 2005; see also Mots. Hr’gTr. 14:16-21:15, Oc t. 26, 2004 [ Dkt. No. 75]. Other MPD and DEA witnesses also identified items re cover ed fr om the house, including$ 8, 889 in cash ( id. 41-2, 124), her oin (Tr. 19-26, Jan. 6, 2005), quinine (pur portedly used as “ cutting material” for he roin) (Tr. 200, 202:8-17, Jan. 4, 2005), “pla stic spoons for mea suring ” ( id. ), and a n identification ca

rd and other paper work be aringthe name of Wesley Geno Jenkins (Tr. 76-7, Jan. 5, 2005). In light of this evidenc e, it seems ver y probable that the jury

would have r eac hed the same verdic t even ha d no ref

ere nce be en made to J enkins’prior c onvictions. There fore , the Court cannot f ind that Mr. Daniel made the prosec ution’s case by failingto object as de fense counsel did in Marquez . Petitioner has fa iled to show prejudice beca use he ha s not shown that, “but for counsel’s unpr ofessional e rror s, the result of the pr ocee ding w ould have be en diffe rent” Strickland , 466 U.S. at 694; Cf. United States v. Hardy , 2007 U.S. Dist. L EXI S 14149 (S.D. Miss. Fe b. 28, 2007) (“Afailure by a petitioner' s counsel to ca rry through on a promised de fense does not entitle the petitioner to relief wher e the e vidence of his g uilt was overwhe lming and the defe nse wa s not likely

to have be en succ essful.”) (citing United States v. Vaque ro , 997 F.2d 78, 92 & n.11, 12 ( 5th Cir. 1993)).

8ii. Petitioner’s Rem aining Allegations Petitioner also claims that Danie l (1) fa iled to adequately prepa re him to testify

at trial, and (2) failed to prope rly

investigate his prior off

enses. Petitioner a lleg es that Da niel failed to “make rea sonable investig ations or to make a rea sonable de cision that makes par ticular investigations unnecessa

ry ,” and that a re asonable investigation would have brought to counsel’s attention the fa ct that his prior convic tions failed the Rule 609(b) time limi tation. United States v. Debango , 780 F.2d 81, 85 ( D.C. Cir. 1986); Mot. at 7. Petit ioner fur ther c ouches D aniel’s tria l prepa ration as de ficient due to the alleg ed fa ilure to discuss testimony reg ardingprior convic tions with him. Mot . 11. Petitioner aver s that he “w as under the impression–based on tr ial counsel’s repr esentations–that he would not be confr onted with his prior convictions” a nd that he would not have te stified had he be en so informe d. Id. Since the Court has found Petitioner’ s assumption that the prior convictions re fer ence d by the g overnme nt were within the scope of Rule 609( b) to be incor rec t, his remainingclaims are likewise unfounde d. Fa ced w ith a “strong presumption that counsel’s strateg y and tac tics fall ‘within the rang e of c ompetence demande d from attorne y s defe nding c riminal case s,’” Petitioner provides no evide nce of

err or beyond his claim that his attorney failed to infor

m him of anticipated que stioning re g ardinghis prior offe nses. Mot. at 12 (quoting Strickland , 466 U.S. at 689. Petitioner claims that he wa s unduly prejudice d beca

use, had he known of the g overnme nt’s intent, he would neither

have te stified nor chose n not to plead guilty . Mot. at 9. To show prejudice in pleading s, a def endant must do more than simply state that he w ould have plea d differ ently

. See Unites States v. Ramse y , 323 F. Supp. 2d 27, 42 (D.D .C. 2004) (“I f counse l is defic ient in advising a

client of the c onsequenc es of g oing to tria l as opposed to ac ceptinga plea

9offe r . . . the c lient has an inef fec tive assistance claim if he c an demonstrate that he would have pleade d differ ently

if he ha d been r epre sented by competent c ounsel”); see also U.S. v . Pollard, 602 F. Supp. 2d 165, 169 (D.D .C. 2009) (holding that a def endant, a fter ple adingg uilty , does not show prejudice by

makinga “ba

re a lleg ation that he would have plead diff ere ntly and g one to trial”) ( internal quotations omitted). In Ramsey , the def

endant se t forth seve ral re asons why he would have pleade d g uilty afte r moving to for

a mistrial, citing, a

mong othe r thing s, prior hea ringtestimony

by the def endant that if his counsel had told him his case w as unwinnable , he would have pleade d g uilty

. Ramsey , 323 F. Supp. 2d at 43. He re, Petitioner ha s failed to show a ny rea son to believe that he would have pleade d g uilty

(or that the g overnme nt would have a cce pted such a plea at the time) if he kne w that the jury

would lear

n of the prior

convictions at issue. Petitioner likewise fa ils to show that his decision to testify

actua lly prejudice d him, i.e., that without his testimony , it is reasonably probable that the re sult of trial would be diffe rent. See Strickland, 466 U.S. 668, 694; cf. United 5 States v. W

ilson , 2005 U.S. Dist. L EXI S 20113, 26-27 (D.D.C. Sept. 12, 2005). In sum, Petitioner offe rs nothing to support his alleg ation of pre judice and the strongevidenc e of guilt Petitioner reque sts an evidentiar y hear ing. Mot. at 12. The Court dec lines to hold a 5 hear ing be cause Petitioner raises no issue that r equire s consideration of information not within the re cord be fore the Court. Petitioner' s claims of attorne y err or with reg ard to Rule 609 ar e unfounded, a

nd he has shown no pr ejudice r esulting f rom the alleg ed fa ilure to inform re g arding anticipated que stioning on prior of fense s or any

other a lleg ed attorne y

err or. Ac cording ly , the Court finds that Petiti oner' s claims are speculative, and do not re quire a hear ing a bsent the require d showing of pre

judice to Petitioner. See U nited States v. Morrison , 98 F.3d 621, 626 (D.C. Cir. 1996) (" summary denial of a

§ 2255 motion is appropr iate whe n the ineff ective assistance claim is speculative." ); United States v. Say an , 968 F.2d 55, 66 ( D.C. Cir. 1992) (" When a sec tion 2255 moti on involves ineffe ctive assistanc e of c ounsel claims, no hea ringis nece ssary if the alleg ed def

iciencie s of counse l did not prejudice the de fenda nt.") ; United States v. Fe nnell , 53 F.3d 1296, 1304 ( D.C. Cir. 1995) (" Wit h two exceptions, claims of ineff ective assistance of counse l require a fa ct-findinghear ing . . . . O ne exception occ urs when the trial rec ord alone conclusively shows that the [petiti oner] is entitled to no relief." ); United States v. W ilson , 2005 U.S. Dist. L EXI S 20113, 47-48 (D.D.C. Sept. 12, 2005). 10adduce d at trial trivializes any such pre judice. Cf. United States v. McCord, 509 F.2d 334, 347 (D.C. Cir. 1974); Jame

s , 217 Fe d. Appx

. at 436 (“ Although ‘ overwhelming’ might be too stronga word to desc ribe the G overnme nt’s case , it was solid enoug h overa ll, and . . . any err or involved in the brief r efe renc e to the prior . . . c onviction was har mless as a matter

of law.” ) (quoting United States v. Sc isney , 885 F.2d 325, 327 ( 6th Cir. 1989)). III. CONCLUSION Petitioner’s motion mi sconstrues Rule 609 a nd ignor es the c onsiderable testimony and phy sical evide nce pr esente d at trial. Ac cording ly , the Court conclude s that counsel' s decisions reg ardingprior convic tion evidence proff ere d by the g overnme nt was not err oneous and that the defic iencies a lleg ed visited no prejudice upon the petitioner. Thus, pe titioner' s trial counsel did not provide ineff

ective a ssistance. F or the re asons stated he rein, Petitioner’s motion to vacate, set aside or c orre ct his sentence will be denied. An Orde r ac companies this Memora ndum Opinion.

May 24, 2010 /s/ T H O M A S F. H O G A N U N I T E D S T A T E S D I S T R I C T J U D G E

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