United States v. Curtis ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CARLOS CURTIS
Petitioner,
Crimina1 Action No. 03-533
v. Civil Action No. 08-805
UNITED STATES OF AMRICA
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Respondent.
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MEMORANDUM OPINION
This matter comes before the Court on Petitioner's Motion
Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence
[Dkt. No. l2l]. Petitioner Carlos Curtis, a prisoner proceeding
pro §§ in this matter,1 petitions this Court to set aside or
correct his sentence pursuant to 28 U.S.C § 2255.2 Upon
consideration of the Motion, Opposition, and the entire record
herein, for the reasons discussed below, Petitioner's motion is
denied.
1 Petitioner refused the Court’s offer to appoint counsel to
represent him in this Motion [Dkt. No. l36].
2 Section 2255 reads in pertinent parts
A prisoner in custody under sentence of a court
established by Act of Congress claiming the right
to be released upon the ground that the sentence
was imposed ill violation of 'the Constitution or
laws of the United States, or that the court was
without jurisdiction to impose such sentence, or
that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to
collateral attack, may move the court which imposed
the sentence to vacate, set aside or correct the
sentence,
I. BACKGROUND
On March 31, 2004, a nine-count superseding indictment was
filed in the United States District Court for the District of
Columbia, charging petitioner with sex trafficking of children
(Counts 1 and 2); transportation of minors for prostitution (Counts
3 and 4); coercion or enticement of a minor (Count 5);
transportation of a person for prostitution (Count 6);
l transportation of child pornography (Count 7); acts relating to
material constituting or containing child pornography (Count 8);
and tampering with a witness (Count 9).
The Government provided testimony from two child victims, A.P.
and C.B., that was corroborated by testimony from A.P.'s
grandmother, C.B.’s stepmother, and Michael Goodwin, an associate
of the Petitioner, The Government also presented physical evidence
that included pornographic photographs of A.P., receipts from
motels discussed during testimony, and evidence of Petitioner's
prior convictions of child prostitution to demonstrate his intent.
Gn July 2, 2004, after hearing testimony from eleven
Government witnesses over five days, a jury found Petitioner guilty
of Counts 1-4, 6 and 8, and acquitted Petitioner on Counts 7 and
9.3 On March l7, 2006, this Court found Petitioner to be a career
criminal and sentenced him to concurrent life terms of imprisonment
on each count, followed by concurrent supervised release terms of
3 The Court dismissed Count 5 at the close of the Government’s
case.
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five years for Counts 1 and 2 and three years for the remaining
counts. Petitioner filed a direct appeal claiming that his prior
bad acts should not have been permitted as evidence under Rule
404(b) of the Federal Rules of Evidence, and that the Court
incorrectly classified him as a career criminal. On March 20,
2007, the Court of Appeals rejected these challenges and affirmed
the convictions. United States v. Curtis, 481 F.3d 836 (D.C. Cir.
2007).
II. ANALYSIS
On May 5, 2008, Petitioner filed the present Motion claiming
that he was convicted with a defective indictment in violation of
Rules 6(c) and (f) of the Federal Rules of Criminal Procedure, and
that his trial and appellate counsel were constitutionally
ineffective.
A. Petitioner Has Not Estab1ished that the Grand Jury
Indictment Was Defective.
In order to claim that he was convicted with a defective
indictment because of ineffective counsel, without having raised
that issue on direct appeal, Petitioner must establish two
elements. First, he must establish “cause” for why he did not
previously raise this claim. Second, he must establish that
“actual prejudice” would result by denying the claim. §§g Bousley
v;_Qni;g;L§;a;es, 523 U.S. 614, 622 (1998); United States v. FradV,
456 U.S. l52, 167-68 (1982); United States v. Pettigrew, 346 F.3d
1139, 1144 (D.C. Cir. 2003); United States v. Da1e, 140 F.3d 1054,
1056 (D.C. Cir. l998).
Petitioner’s defective indictment claim based on ineffective
counsel fails on multiple procedural grounds. First, there is a
“presumption of regularity . . . in the grand jury process.”
United States v. Mechanik, 475 U.S. 66, 75 (O’Connor, J.,
concurring). Since Petitioner fails to provide any explanation for
“cause,” i.e., why he failed to raise this claim on appeal, the
Court need not consider whether he will suffer “actual prejudice,”
if his petition is denied. United States v. Fradv, 456 U.S. 152,
168 (l982).
Further, Petitioner was required by Rule 12(b)(3)(B) of the
Federal Rules of Criminal Procedure to raise the defective
indictment claim before trial. Since a timely objection was not
made by Petitioner before trial, as required by the Rule, it is
proper to dismiss any potential Rule 6 challenge “on the ground
that it was not timely brought.” United States v. Wilson, 434 F.2d
494, 496 (D.C. Cir. 1970).
Petitioner's remaining two arguments are unpersuasive. First,
Petitioner's argument that his indictment contained irregularities
is without factual support. Petitioner argues that his indictment
does not affirmatively demonstrate that each juror concurred with
the indictment as required by Federal Rule of Criminal Procedure
6(c). The Rule states that the foreperson will “sign all
indictments” and “record the number of jurors concurring in every
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indictment and will file the record with the clerk of the court,
but the record may not be made public unless the court so orders.”
Fed. R. Crim. P. 6(c). The record does not show any
inconsistencies with the Rule: Petitioner's superseding indictment
was submitted by the foreperson and stamped “FILED IN OPEN COURT;”
and there is no indication that Petitioner requested the Court to
order the jurors’ concurrences be made public. See United States
v. Glasser, 116 F.2d 690, 695 (7th Cir. 1940) (where an indictment
was filed in open court, in the presence of judges and court
officers, and endorsed by the grand jury, it sufficiently appeared
that the indictment was properly returned). Further, “[f]ailure of
the foreman to sign or endorse the indictment is an irregularity
and is not fatal.” Fed. R. Crim. P. 6(c) advisory committee's
note; See also Frisbie v. United States, 157 U.S. 160 (l895).
Therefore, even if Petitioner's trial counsel had raised these
arguments prior to trial, he would not have prevailed on them, and
Petitioner would have suffered no prejudice.
Second, Petitioner argues that his indictment is analogous to
a flawed indictment and relies on Gaither v. United States, 413
F.2d 1061 (D.C. Cir. 1969). In that case, the indictment was
defective because the grand jury voted only to “present” the
defendants with the charge of grand 1arceny, but did not “pass on
the actual terms of an indictment,” which were drafted by the
prosecutor and signed by the foreperson. Id. at 107l. In
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contrast, the record in this case lacks “any evidence that
[Petitioner's] indictment was returned in the way described in
Gaither.” DeVincent v. United States, 602 F.2d 1006, 1009 (lst
Cir. l979).
B. Petitioner’s Trial Counse1 Was Not Ineffective.
To prevail on his claim of ineffective assistance, Petitioner
must demonstrate two elements. First, he must show that counsel
was deficient by making “errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Second, he must show that counsel's deficiency
“prejudiced the [Petitioner].” Strickland v. Washington, 466 U.S.
668, 687 (1984). To demonstrate deficient performance, Petitioner
“must identify the acts or omissions of counsel” that could not be
considered “reasonable professional judgment . . . in light of all
the circumstances” such that the “acts or omissions were outside
the wide range of professionally competent assistance.” ld; at
690.
Trial counsel is a highly experienced Federal Defender and has
competently appeared before this Court on numerous occasions.
Nonetheless, the Petitioner cites the following examples of
ineffective assistance at trial: (a) counsel “prevented” him from
testifying; (b) counsel “failed” to present Petitioner’s defense of
innocence; (c) counsel told the jury in opening statements that
Petitioner would testify but he did not testify; (d) counsel failed
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to raise the grand jury “irregularities” in a pre-trial motion; (e)
counsel did not request the Court to instruct the jury that it
could draw no adverse inference from Petitioner’s failure to
testify; and (f) counsel failed to request jury instructions that
jury notes were not evidence.
Despite the Petitioner’s claim of ineffective assistance, the
Court finds that counsel performed well within “the wide range of
professionally competent assistance.” lg; Additionally, any
concern about “prejudice” stemming from counsel's performance would
be minimized by the Government’s strong case against Petitioner.
Id. at 687.
Petitioner incorrectly argues that counsel prevented him from
testifying. On June 30, 2004, during four different exchanges with
the Court, trial counsel explained in Petitioner’s presence that
Petitioner did not intend to testify. Tr. at 4, 6, 7, 112 (June,
30, 2004). As this Court previously explained, “[Petitioner]
had every opportunity to disagree with his counsel's
representations, if he wished to do so.” United States v. Curtis,
No. 03-CR~533(GK), 2004 WL 33l2951, at *2 (D.D.C. Dec. 7, 2005).
Furthermore, even if Petitioner could demonstrate deficient
performance, Petitioner fails to demonstrate prejudice because he
did not explain how counsel prevented him from testifying, why he
failed to notify the Court of counsel's actions, or why Petitioner
delayed raising this issue until filing the current Motion,
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Petitioner incorrectly argues that counsel's decision to not
present witnesses demonstrates that he failed to present
Petitioner’s innocence claim. Counsel attempted other defense
techniques that included challenging the credibility of Government
witness Michael Goodwin, Furthermore, Petitioner fails to identify
the witnesses, or provide any information about the content of the
potential witness testimony, that would prove his innocence.
Petitioner argues that counsel prejudiced the jury by stating
that Petitioner would testify during his opening statement, but
failed to call Petitioner as a witness at trial, However, the
Court instructed the jury that opening statements are not evidence
on three separate occasions -~ twice before opening statements and
once before closing statements. Tr. at 18 (June 23, 2004) and Tr.
at 11 (July l, 2004). The jury is presumed to follow the
instructions of the Court. United States v. Mathis, 216 F.3d 18,
25 (D.C. Cir. 2000).
Moreover, it cannot be assumed that the jury would credit the
testimony he now claims he would have given, namely that Michael
Goodwin, one of the Government’s eleven witnesses was lying,
especially since the Petitioner fails to provide any details about
what he would have said. See United States v. Terry, 366 F.3d 3l2,
316 (4th Cir. 2004) (defendant “provides no concrete evidence of
what he would have testified in exculpation” and “says only that he
would have impeached [the witness'] credibility, but omits any
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details that explain why the district court would have given his
claims any weight”). Thus, where the Government’s strong case
against Petitioner makes it “easier to dispose of an ineffective
[counsel] claim on the ground of lack of sufficient prejudice
that course should be fo11owed.” Strickland, 466 U.S. at 697.
Petitioner also argues that counsel's failure to raise grand
jury “irregularities” in a pre-trial motion constituted ineffective
counsel. This argument fails because Petitioner did not provide a
compelling explanation for “cause” and would not likely be able to
show “actual prejudice” in light of the strength of the
Government’s case. See supra, at Part I.
Petitioner’s argument that counsel did not request a jury
instruction that no adverse inference could be drawn from his
failure to testify is factually inaccurate. Counsel requested and
was granted such an instruction. Tr. at 23 (July l, 2004).
Petitioner’s argument that counsel did not request a jury
instruction that jury notes were not evidence is also factually
inaccurate. The Court instructed the jury that note-taking was
optional and that notes were “only an aid to help your memory.”
Tr. at 15 (June 23, 2004).
C. Petitioner’s Appellate Counsel Was Not Ineffective.
The Court also rejects the Petitioner’s claim of ineffective
appellate counsel. Petitioner argues that appellate counsel's
failure to raise the above-mentioned issues constituted ineffective
counsel. Appellate counsel may use professional judgment to
determine which claims to raise on appeal. Jones v. Barnes, 463
U.S. 745, 751 (l983). Appellate counsel “need not (and should not)
raise every non-frivolous claim,” but should select claims “to
maximize the likelihood of success on appeal.” Smith v. Robbins,
528 U.S. 259, 288 (2000). For the reasons discussed above, the
challenges are without merit and appellate counsel may have decided
not to raise them as a legitimate exercise of his professional
judgment. Even if Petitioner shows that appellate counsel was
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deficient, which he has not, he still must demonstrate a
reasonable probability that, but for his counsel's unreasonable
failure, he would have prevailed on his appeal.” Id. at 285. The
Government’s strong case against Petitioner makes this very
unlikely.
For the foregoing reasons, it is hereby
ORDERED, that Petitioner’s Motion Under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence is denied.
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Date G1adys Kessler
U.S. District Court Judge
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