ORAL ARGUMENT NOT YET SCHEDULED

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_________________________________________________________________

No.

_________________________________________________________________

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

xxxxxxxxxxxxxxxxxxx, Defendant-Appellant.

_________________________________________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

________________________________________________________________

BRIEF OF DEFENDANT-APPELLANT

xxxxxxxxxxxx

_________________________________________________________________

A.J. Kramer

Federal Public Defender

Sandra G. Roland

Assistant Federal Public Defender

Counsel for Defendant-Appellant

625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500

District Court

Cr. No.

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

Pursuant to Rule 11(a)(1) of the General Rules of this Court, Defendant-Appellant, Claudius A.xxxxxxxxx, hereby states as follows:

A. Parties and Amici:

The parties to this appeal are Defendant-Appellant, Claudius A.xxxxxxxxx, and Plaintiff-Appellee, The United States of America. Appellant's case went to trial with his co-defendants in United States v. Michael Blackwood, et. al., (Criminal No. 88-130). Those former co-defendants are not parties to this appeal. There are no intervenors or amici.

B. Rulings Under Review:

This is an appeal by Mr.xxxxxxxxx of the ruling by the district court, the Honorable John H. Pratt, on August 27, 1993, denying Mr.xxxxxxxxx's motion for a new trial on the ground of ineffective assistance of counsel (A. at 75). That ruling has not been reported.

C. Related Cases:

This Court heard appellant's direct appeal in the consolidated case, United States v. Michael Blackwood, et. al., Appeal No. 88-3113, and affirmed his conviction in an unpublished memorandum on June 11, 1990.

TABLE OF CONTENTS

TABLE OF AUTHORITIES v

STATUTES AND RULES 1

JURISDICTION 1

ISSUES PRESENTED 1

STATEMENT OF THE CASE 2

A. Proceedings Below 2

B. Statement Of Facts 4

i. The Facts Established At Trial 4

ii. The Motion To Suppress Statements 7

iii. The Post-Conviction Motion Pursuant To 28

U.S.C. § 2255 10

SUMMARY OF ARGUMENT 11

ARGUMENT 12

I. THE DISTRICT COURT ERRED IN DENYING WITHOUT A

HEARING MR.xxxxxxxxx'S MOTION PURSUANT TO 28 U.S.C. § 2255 12

A. Standard of Review 12

B. Introduction 12

C. The District Court Erred In Denying Mr.xxxxxxxxx's Section 2255 Motion Without A

Hearing 14

II. TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO OBTAIN A RULING FROM THE DISTRICT COURT ON THE VOLUNTARINESS OF MR.xxxxxxxxx'S POST-ARREST STATEMENTS AND BY FAILING TO INFORM MR.xxxxxxxxx OF HIS RIGHT TO TESTIFY AT THE HEARING ON THE MOTION TO SUPPRESS THE STATEMENTS 18

A. Standard Of Review 18

B. Trial Counsel Rendered Ineffective Assistance By Failing To Obtain A Ruling From The Trial Court On The Voluntariness Of The Statements 18

C. Trial Counsel Rendered Ineffective Assistance By Failing To Inform Mr.xxxxxxxxx Of His Right To Testify At The Hearing On The Motion To Suppress The Statements 21

D. Had Mr.xxxxxxxxx's Trial Counsel Rendered Effective Assistance Of Counsel The Statements Would Have Been Suppressed 23

CONCLUSION 26

CERTIFICATE OF LENGTH 27

CERTIFICATE OF SERVICE 27

TABLE OF AUTHORITIES

CASES

Atkins v. Attorney General, 932 F.2d 1430 (11th Cir. 1991) 17

Culombe v. Connecticut, 367 U.S. 568 (1961) 23

Foster v. Delo, 11 F.3d 1451 (8th Cir. 1993) 22

Hutcherson v. United States, 351 F.2d 748 (D.C. Cir. 1965) 20

*Jackson v. Denno, 378 U.S. 368 (1964) 11, 19, 23, 25

Johnson v. Zerbst, 304 U.S. 458 (1938) 12

Kimmelman v. Morrison, 477 U.S. 365 (1986) 13, 17

*Machibroda v. United States,

368 U.S. 487 (1962) 11, 14, 16, 17

McMann v. Richardson, 397 U.S. 759 (1970) 13

*Mincey v. Arizona, 437 U.S. 384 (1978) 12, 22, 23, 25

Miranda v. Arizona, 384 U.S. 436 (1966) 19

Nixon v. Newsome, 888 F.2d 112 (11th Cir. 1989) 17

Pennsylvania v. Muniz, 496 U.S. 582 (1990) 19

Profitt v. Waldron, 831 F.2d 1245 (5th Cir. 1987) 17

*Rock v. Arkansas, 483 U.S. 44 (1987) 11, 22

Shotwell Manufacturing Co. v. United States,

371 U.S. 341 (1963) 21

*Strickland v. Washington, 466 U.S. 668 (1984) 13, 18, 25, 26

Thomas v. Lockhart, 738 F.2d 304 (8th Cir. 1984) 17

United States v. Barbour, 813 F.2d 1232 (D.C. Cir. 1987) 13

United States v. Gray, 878 F.2d 702 (3d Cir. 1989) 17

United States v. Kelly, 790 F.2d 130 (D.C. Cir. 1986) 12

* Cases chiefly relied upon are marked with an asterisk

United States v. Loughery, 908 F.2d 1014 (D.C. Cir. 1990) 17

*United States v. McCord, 509 F.2d 334 (D.C. Cir. 1974),

cert. denied, 421 U.S. 930 (1975) 14-15, 16

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

cert. denied, 113 S. Ct. 322 (1992) 11, 14

*United States v. Powe, 591 F.2d 833 (D.C. Cir. 1978) 20, 21, 25

United States v. Smith, 551 F.2d 348 (D.C. Cir. 1976) 11, 21

Walker v. Wilmot, 603 F.2d 1038 (2d Cir. 1979),

cert. denied, 449 U.S. 885 (1980) 12, 22

STATUTES

18 U.S.C. § 924(c) 2

18 U.S.C. § 3501 19

21 U.S.C. § 841(a)(1) 2

21 U.S.C. § 841(b)(1)(A)(iii) 2

21 U.S.C. § 841(b)(1)(C) 2

21 U.S.C. § 841(b)(1)(D) 2

28 U.S.C. § 2255 passim

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_________________________________________________________________

No.

_________________________________________________________________

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

CLAUDIUS A.xxxxxxxxx, Defendant-Appellant.

_________________________________________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

________________________________________________________________

BRIEF OF DEFENDANT-APPELLANT

CLAUDIUS A.xxxxxxxxx

________________________________________________________________

STATUTES AND RULES

Pursuant to Rule 28(f), Federal Rules of Appellate Procedure and D.C. Circuit Rule 28(a)(5), the pertinent statutes are set forth in the Addendum to this brief.

JURISDICTION

The District Court had jurisdiction under 28 U.S.C. § 2255. A timely notice of appeal having been filed within the 60-day period of Rule 4(a), Federal Rules of Appellate Procedure, this Court has jurisdiction under 28 U.S.C. § 2253.

ISSUES PRESENTED

I. Whether the district court erred in denying without a hearing Mr.xxxxxxxxx's motion pursuant to 28 U.S.C. § 2255.

II. Whether trial counsel for Mr.xxxxxxxxx rendered ineffective assistance of counsel by failing to seek a ruling from the district court on the voluntariness of Mr.xxxxxxxxx's statements to a law enforcement officer and by failing to advise Mr.xxxxxxxxx of his right to testify at the hearing on the motion to suppress, where the statements were not made voluntarily and should have been suppressed.

STATEMENT OF THE CASE

A. Proceedings Below

In April, 1988, the grand jury returned a four-count indictment charging Mr.xxxxxxxxx and his co-defendants ⁽¹⁾ with possession with intent to distribute cocaine (21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C)), with possession with intent to distribute more than 50 grams of cocaine base (21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii)), with possession with intent to distribute marijuana (21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D)), and with using a firearm in relation to drug trafficking (18 U.S.C. § 924(c)).

On May 17, 1988, a hearing was held on Mr.xxxxxxxxx's motion to suppress statements. On the next day, the district court, the Honorable John H. Pratt, orally denied the motion and Mr.xxxxxxxxx proceeded to a jury trial. On May 27, 1988, a jury found Mr.xxxxxxxxx guilty of all charges. On July 26, 1988, Mr.xxxxxxxxx was sentenced to 192 months imprisonment.

Mr.xxxxxxxxx then filed an appeal which was heard by this Court in United States v. Michael Blackwood, et. al., Appeal No. 88-3113. The Court affirmed his conviction in an unpublished memorandum on June 11, 1990. Mr.xxxxxxxxx was represented at trial and on appeal by Robert T. Durkin, Jr.

After his conviction was affirmed, on May 1, 1992, Mr.xxxxxxxxx filed a pro se motion in the district court, pursuant to 28 U.S.C. § 2255. The district court appointed the Federal Public Defender to assist Mr.xxxxxxxxx in his application. On March 25, 1993, new counsel filed a supplemental motion raising the issue whether Mr.xxxxxxxxx's Sixth Amendment right to the effective assistance of counsel was violated when his attorney failed to obtain a ruling from the district court on the voluntariness of Mr.xxxxxxxxx's statement to a law enforcement officer, and failed to advise Mr.xxxxxxxxx of his right to testify at the suppression hearing where the statement was involuntary and should have been suppressed. See Motion For Post-Conviction Relief Pursuant To 28 U.S.C. § 2255, A. at 10. The government filed a response to Mr.xxxxxxxxx's motion on June 21, 1993 (A. at 34).

The district court denied the motion without a hearing on August 27, 1993 (A. at 75). Thereafter, Mr.xxxxxxxxx filed a timely notice of appeal from the district court's denial of his motion pursuant to 28 U.S.C. § 2255 and this appeal ensued.

B. Statement Of Facts

i. The Facts Established At Trial

On March 7, 1988, the Metropolitan Police Department executed a search warrant at xxx Rock Creek Church Road, N.W., and seized eight weapons, approximately 200 grams of cocaine base, 486 grams of cocaine hydrochloride, assorted drug paraphernalia, and marijuana (Tr. V at 202, 205-209; VI at 158). ⁽²⁾ Using a battering ram, the officers broke down first the front door, and later, the back door of the house (Tr. III at 45). The officers moved through the house armed with weapons and wielding large protective shields (Tr. III at 101). The officers arrested all eight people who were in the house at the time of the raid.

The house was a row house with a basement and three upper floors (Tr. III at 100). The landlord, Francis Ayodeji, testified that the house was run as a nine-room rooming house that he rented through newspaper advertisements. Each bedroom was rented separately and each room had a lock on the door (Tr. V at 40). The government called three witnesses to establish the residency in the house of some of the defendants: Officer Nancy Brown testified about statements made in response to her questions about residency, and the landlords, Mr. and Mrs. Ayodeji, each testified about rental agreements with some of the defendants. ⁽³⁾

According to Officer Brown, in response to her questioning Mr.xxxxxxxxx identified himself as "Clyde Mason" and said that he had been living in the house with his girlfriend, Donna, for five months (Tr. I at 15-16, 19; IV at 46). The landlords, Mr. and Mrs. Ayodeji, contradicted that testimony about Mr.xxxxxxxxx's residency. According to them, Mr.xxxxxxxxx had asked to rent a room, but the Ayodejis did not have rooms available at the time (Tr. V at 18, 99). Muriel Ayodeji testified that she had seen Mr.xxxxxxxxx in the house on one occasion about one month before his arrest, and once after his arrest (Tr. V at 17).

The officers seized contraband from each of the upper three floors of the house. With the exception of Mr.xxxxxxxxx, each of the defendants was apprehended in close proximity to contraband. From two of the third floor bedrooms the officers seized cocaine, a scale, ziplock bags, cutting agents, ammunition, marijuana, a holster, a police scanner, and a briefcase with personal papers bearing the name of co-defendant Wayne Davis (Tr. IV. at 96-99; Tr. VI at 15-16, 23-24, 29-30). From the third floor bathroom the officers seized a revolver (Tr. III at 112).

From the second floor front left bedroom the officers seized two pistols from inside a dresser, two warm coffee pots filled with creamy white substances, a hot plate, cocaine, crack cocaine, ammunition, a scale, personal papers bearing the name of co-defendant Stephen xxxxxxx, and a driver's license bearing the name of Clive Mason (Tr. IV at 118, 121, 125, 129; V at 204; VI at 32). Co-defendants Stephen xxxxx, Ian xxxxxxxx, and Ron Barrington xxxxxxx were seized from this room. (Tr. III at 161-162; IV at 4). From the first floor of the house the officers seized a pistol, two scales, 2 ledger books and a holster (Tr. IV at 99; V at 202; VI at 37).

Finally, the government introduced testimony about the conduct of some of the defendants from which it asked the jury to draw inferences of guilty participation. When the raid began, co-defendant Ron Peter xxxx was observed by officers to dive head-first through the closed window of the third floor rear bedroom. He then re-entered the house through the window and was seized coming out of the third floor bathroom, from which a revolver was recovered (Tr. IV at 117; VI at 30). Co-defendant Wayne xxxxx was observed to drop firearms out of the window from which Mr. xxxxxxx had attempted to flee (Tr. IV at 17, 43, 110). The officers seized from the ground at the rear of the house two semiautomatic guns and a revolver (Tr. IV at 110-111; V at 198-199, 201).

Mr.xxxxxxxxx was seized from a second floor bedroom when the officers forced him out of the room with a flashbang grenade (Tr. III at 164). The officers did not recover any contraband from Mr.xxxxxxxxx or from the room in which he was found (Tr. IV at 197).

ii. The Motion To Suppress Statements

Mr.xxxxxxxxx's trial attorney did not move to suppress statements, but his motion to adopt all motions filed by other counsel was granted by the district court. Attorney Leroy Nesbitt, on behalf of co-defendant Ron Peter xxxxxxxxx, filed a motion to suppress statements on voluntariness and Miranda grounds (A. at 28). The district court conducted an evidentiary hearing on the motion to suppress statements concerning all of the defendants.

Officer Brown testified that during the raid the officers threw a "flashbang grenade" into the bedroom where Mr.xxxxxxxxx was located. She testified that the grenade caused the glass to be "blown out of the window and the carpet was burned off the floor, or blown off the floor" (Tr. I at 39). According to Officer Brown, when a flashbang grenade is detonated it "sounds like an explosion" (Tr. I at 38). ⁽⁴⁾

After the explosion, Officer Nancy Brown entered the house and found all of the defendants lined up on the floor face down on their stomachs, handcuffed with their hands behind their backs, and "with their faces covered" by cloth (Tr. I at 9, 11, 27). They had been placed in that position by the other officers (Tr. I at 9). Officer Brown estimated that they had been in that position for about "ten minutes, maybe" (Tr. I at 31).

Officer Brown questioned each of the defendants as they lay on the floor (Tr. I at 12). The defendants all were under arrest at the time of her questions, but had not been advised of their rights (Tr. I at 11). One at a time, Officer Brown lifted the cloth off of each of the defendant's faces while she asked each of them "their name, their address, their date of birth, social security number . . . where they were staying in town, if they gave an out-of-town address, and later on, . . . their height and weight" (Tr. I at 11, 12).

Mr.xxxxxxxxx was the sixth person to have his head momentarily uncovered for the questioning (Tr. I at 14-17). Officer Brown testified that he identified himself as "Clyde Mason" and said "that he lived at xxx Rock Creek Church Road for about five months and that he lived in the second-floor front bedroom." (Tr. I at 17). Officer Brown testified that he also told her something about "Africa Donney" but she "d[id]n't really remember" why (Id.). Brown admitted that she had also written the name "Donna" in the margins of her notes, but she had difficulty remembering "Donna's" significance. ⁽⁵⁾ She testified that "I think he said that he lived in that room with his girlfriend, but I didn't indicate anything further and that's why I am not sure what that note means exactly" (Tr. I at 18).

Officer Brown estimated that she questioned Mr.xxxxxxxxx "twenty to thirty minutes" after the grenade had been thrown at him (Tr. I at 40). She testified that Mr.xxxxxxxxx did not appear to have any difficulty hearing her questions (Tr. I at 37). Officer Brown admitted that her questions were designed to determine where each of the defendants lived because that information might connect a defendant to the contraband found in the house (Tr. I at 21). She was aware that if a defendant said he lived at the house that information could be used against him (Tr. I at 22). When Mr.xxxxxxxxx was later advised of his rights at the police station, he refused to waive them (Tr. I at 48-49). Mr.xxxxxxxxx did not testify at the hearing.

Although voluntariness was raised in the pleading filed by Attorney Nesbitt, Mr. Durkin did not ask the district court to rule on the question of voluntariness of Mr.xxxxxxxxx's statements. Thus, the district court never reached that issue in ruling only that the dictates of Miranda were not violated because the "interrogation was clearly part of the booking process and did not require a prior Miranda warning" (Tr. II at 12).

iii. The Post-Conviction Motion Pursuant To 28 U.S.C.§ 2255.

Appellant filed a motion pursuant to 28 U.S.C. § 2255, alleging, inter alia, that Mr.xxxxxxxxx was deprived of his Sixth Amendment right to the effective assistance of counsel when his attorney failed to obtain a ruling from the district court on the voluntariness of Mr.xxxxxxxxx's statements to a law enforcement officer and failed to advise Mr.xxxxxxxxx of his right to testify at the suppression hearing, where the statement was involuntary and should have been suppressed. The district court denied the motion on August 27, 1993, without a hearing.

SUMMARY OF ARGUMENT

The district court erred by denying without a hearing Mr.xxxxxxxxx's motion pursuant to 28 U.S.C. § 2255 because the motion raised "'detailed and specific' factual allegations whose resolution require[d] information outside of the record or the judge's 'personal knowledge or recollection.'" United States v. Pollard, 959 F.2d 1011, 1031 (D.C. Cir.), cert. denied, 113 S.Ct. 322 (1992), quoting Machibroda v. United States, 368 U.S. 487, 495 (1962).

Mr.xxxxxxxxx's trial counsel rendered ineffective assistance of counsel by failing to seek a ruling from the district court on the voluntariness of Mr.xxxxxxxxx's post-arrest statements to a law enforcement officer. Jackson v. Denno, 378 U.S. 368 (1964). Trial counsel's omission cannot be said to have been "the product of deliberate and informed decision," United States v. Smith, 551 F.2d 348, 353 (D.C. Cir. 1976), or born of strategic considerations.

Mr.xxxxxxxxx's trial counsel further rendered ineffective assistance of counsel by failing to advise Mr.xxxxxxxxx of his right to testify at the hearing on the motion to suppress statements where his testimony was crucial to the question of the voluntariness of his statements. Rock v. Arkansas, 483 U.S. 44 (1987); Walker v. Wilmot, 603 F.2d 1038 (2d Cir. 1979), cert. denied, 449 U.S. 885 (1980).

But for counsel's unprofessional omissions, the result of the proceeding would have been different. The effect of the grenade exploded at Mr.xxxxxxxxx, and the humiliating and frightening circumstances of being placed on his stomach on the floor, with this hands cuffed behind his back, and with a cloth placed over his head, had the effect of intimidating and coercing him into acquiescing to the officer's questioning. Mincey v. Arizona, 437 U.S. 384 (1978). Where there was little evidence supporting the government's theory that Mr.xxxxxxxxx jointly, constructively possessed the contraband in the house, the officer's testimony that Mr.xxxxxxxxx claimed to live at the house was critical to obtaining a conviction against him. If Mr.xxxxxxxxx's statements were not admitted against him, a reasonable probability exists that the jury would have acquitted him of all charges.

ARGUMENT

I. THE DISTRICT COURT ERRED IN DENYING WITHOUT A HEARING MR.xxxxxxxxx'S MOTION PURSUANT TO 28 U.S.C. § 2255.

A. Standard of Review

This court reviews the trial court's decision whether to hold an evidentiary hearing for abuse of discretion. United States v. Kelly, 790 F.2d 130 (D.C. Cir. 1986).

B. Introduction

The Sixth Amendment establishes a right to counsel in criminal proceedings. Johnson v. Zerbst, 304 U.S. 458, 463 (1938). "The right to counsel is a fundamental right of criminal defendants; it assures the fairness, and thus the legitimacy, of our adversary process." Kimmelman v. Morrison, 477 U.S. 365, 373 (1986). To ensure that defense counsel upholds the adversarial process established by the Sixth Amendment, the right to counsel is defined as the right to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984), citing McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970). When a criminal defendant does not receive the effective assistance of counsel, the adversarial process has been compromised, and a reviewing court should reverse the judgment.

Ineffective assistance has been rendered when 1) counsel's representation fell below an objective standard of reasonableness; and 2) there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Kimmelman, 477 U.S. at 375; Strickland, 466 U.S. at 694. Counsel's performance is deficient if it does not rise to the level of reasonably effective assistance. Id. at 687. A court measures the reasonableness of counsel's performance against prevailing professional norms. United States v. Barbour, 813 F.2d 1232, 1234 (D.C. Cir. 1987). A defendant has been prejudiced by his or her counsel's ineffectiveness if there is a reasonable probability that the result of the trial would have been different but for counsel's deficient representation. Strickland, 466 U.S. at 694. On a scale of evidentiary burdens, a reasonable probability is shown by less than a preponderance of the evidence. See Id. at 693-694.

Mr.xxxxxxxxx's attorney, Robert T. Durkin, rendered ineffective assistance when he failed to obtain a ruling from the district court on the voluntariness of Mr.xxxxxxxxx's statements to a law enforcement officer and when he failed to advise Mr.xxxxxxxxx of his right to testify at the suppression hearing, where the statements were involuntary and should have been suppressed. But for Mr. Durkin's unprofessional errors, the result of the hearing on Mr.xxxxxxxxx's motion to suppress his statements, as well as the outcome of the trial itself, would have been different.

C. The District Court Erred In Denying Mr.xxxxxxx's Section 2255 Motion Without A Hearing

The trial court abused its discretion by denying appellant's Section 2255 motion without holding a hearing. Section 2255 requires a hearing before denial of a motion made pursuant to that provision "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255 (emphasis added). Thus, an evidentiary hearing must be held where "the § 2255 motion raises 'detailed and specific' factual allegations whose resolution requires information outside of the record or the judge's 'personal knowledge or recollection,'" United States v. Pollard, 959 F.2d 1011, 1031 (D.C. Cir.), cert. denied, 113 S.Ct. 322 (1992), quoting Machibroda v. United States, 368 U.S. 487, 495 (1962), unless the claims are "vague, conclusory, or palpably incredible." Machibroda, 368 U.S. at 495. See also United States v. McCord, 509 F.2d 334, 352 n.65 (D.C. Cir. 1974) ("[a]ny factual allegations which, if taken as true, establish a substantial violation of the right to effective assistance of counsel will require a hearing"), cert. denied, 421 U.S. 930 (1975).

Mr.xxxxxxxxx's claims clearly required an evidentiary hearing to resolve the issues raised in his post-conviction motion, in support of which he submitted a sworn affidavit attesting to the following facts:

(1) Mr. Durkin did not inform Mr.xxxxxxxxx that he had the right to testify at the suppression hearing;

(2) Mr.xxxxxxxxx would have chosen to testify at the hearing if he had been aware of his right to do so;

(3) Mr.xxxxxxxxx would have testified to the following facts:

i) The police exploded a grenade in the room in which he stood, which sounded like the house "was tearing apart."

ii) After the explosion, without knowing how he arrived there, Mr.xxxxxxxxx found himself lying handcuffed on his stomach in a hallway with a cloth covering his head.

iii) At the time that Mr.xxxxxxxxx was questioned by Officer Brown, minutes after the grenade had exploded, his ears were ringing, he heard a clicking in his head, he could barely hear at all, he could barely understand what was said to him, his eyes were foggy and burning, he felt dizzy, and his heart was racing.

iv) As Mr.xxxxxxxxx lay with his head covered and his wrists bound, he believed that he was going to be killed.

v) He did not tell Officer Brown that he lived at 742 Rock Creek Church Road nor did he tell her that he had lived at the address for five months. Rather, he told Officer Brown that he had come to the address to visit his friend, Donna Sloey, whom he had known for five months.

(A. at 32). Clearly, these allegations were "detailed and specific," were not within the district court's "personal knowledge or recollection," and were not "vague, conclusory or palpably incredible." Machibroda, 368 U.S. at 495. If true, Mr.xxxxxxxxx's allegations establish a violation of the right to effective assistance of counsel. McCord, 509 F.2d at 352 n.65.

Furthermore, because the government contested Mr.xxxxxxxxx's allegations set forth in his motion and accompanying affidavit and because the record as it stands can "cast no real light" on the truthfulness or falsity of those allegations, Machibroda, 368 U.S. at 494-495, a hearing is necessary to resolve the factual disputes. Although the government failed to file counteraffidavits, it did assert in its responsive pleading that "[c]ontrary to defendant's assertion, Mr. Durkin advises the government that he and defendant did indeed discuss the possibility of his testifying at the motions hearing, . . . [and] defendant and Mr. Durkin decided that defendant would not testify." (Government's Response at 12; A. at 45). In addition, the government asserted that "[d]efendant never indicated to Mr. Durkin that he had had any trouble hearing or understanding the questions or that he was still feeling any effects of the flashbang grenade at the time he was being questioned." (Id.). ⁽⁶⁾ The only way to resolve the conflict was to hold a hearing where both appellant and his trial counsel could testify and be subject to cross-examination. The district court erred by not doing so.

II. TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO OBTAIN A RULING FROM THE DISTRICT COURT ON THE VOLUNTARINESS OF MR.xxxxxxxxx'S POST-ARREST STATEMENTS AND BY FAILING TO INFORM MR.xxxxxxxxx OF HIS RIGHT TO TESTIFY AT THE HEARING ON THE MOTION TO SUPPRESS THE STATEMENTS.

A. Standard Of Review

Generally, this court's review of whether counsel was ineffective presents a mixed question of law and fact. Strickland v. Washington, 466 U.S. 668, 698 (1984). The trial court's factual findings concerning counsel's effectiveness will be accepted unless they lack evidentiary support, but the trial court's legal conclusions will be reviewed de novo. Here, the trial court made no factual findings.

B. Trial Counsel Rendered Ineffective Assistance By

Failing To Obtain A Ruling From The Trial Court On

The Voluntariness Of The Statements

Mr.xxxxxxxxx's trial counsel rendered ineffective assistance by failing to adequately litigate and to obtain a ruling from the trial court on the question of the voluntariness of Mr.xxxxxxxxx's statements to Officer Brown. The issue of voluntariness was raised in the motion to suppress adopted by Mr. Durkin. Yet, despite the evidence elicited at the evidentiary hearing concerning the dramatic use of police force against Mr.xxxxxxxxx immediately prior to the questioning by Officer Brown, Mr. Durkin failed to raise the issue at the hearing, and failed to obtain a ruling from the court. ⁽⁷⁾ Mr.xxxxxxxxx's statements were admitted in the government's case-in-chief.

Any reasonably competent attorney should be aware of the procedures designed to guard against the admission of involuntary statements in criminal trials. Almost thirty years ago the Supreme Court established procedures to ensure that every defendant would have a "fair hearing and a reliable determination on the issue of voluntariness," Jackson v. Denno, 378 U.S. 368, 376-77 (1964), before a defendant's statement was admitted into evidence. Subsequent to Jackson, Congress codified the requirement that a judge determine whether a statement was voluntarily given before admitting it into evidence:

In any criminal prosecution brought by the United States or by the District of Columbia, a confession . . . shall be admissible in evidence if it is voluntarily given. Before such confession is received in evidence, the trial judge shall, out of the presence of the jury, determine any issue as to voluntariness.

18 U.S.C. § 3501. Finally, this Court has reiterated the necessity of litigating and obtaining a judicial determination on the issue of voluntariness prior to admission of any statement made by the defendant to law enforcement officers. See Hutcherson v. United States, 351 F.2d 748, 755 (D.C. Cir. 1965)(setting forth procedure to "insure a reliable and clear-cut determination of the voluntariness of the confession, including the resolution of disputed facts upon which the voluntariness issue may depend"); United States v. Powe, 591 F.2d 833 (D.C. Cir. 1978).

While the United States Constitution and United State Code require a trial court to make the determination of voluntariness, it is the obligation of defense counsel to bring the issue to the attention of the court:f course, our adversary system places primary reliance on the defendant and defense counsel to raise the issue of the voluntariness of a confession. . . . The trial judge typically does not play an inquisitorial role in our legal system, and is limited to consideration of the testimony presented in open court in discovering how a confession was obtained.

United States v. Powe, 591 F.2d at 842. ⁽⁸⁾

It cannot be said that Mr. Durkin's failure to obtain a ruling from the district court on voluntariness was "the product of deliberate and informed decision, not oversight or inadvertence." United States v. Smith, 551 F.2d 348, 353 (D.C. Cir. 1976) (footnote omitted). Where the statements tend to incriminate the defendant, failure to obtain a determination from the court on such a fundamental and "jealously guarded constitutional principle," United States v. Powe, 591 F.2d 833, 839 (D.C. Cir. 1978), quoting Shotwell Mfg. Co. v. United States, 371 U.S. 341, 348 (1963), cannot be dismissed as a "strategic consideration." Powe, 591 F.2d at 842 n.29. Indeed, here the government has admitted that the omission was not the result of a strategic decision ("it did not occur to [Mr. Durkin] . . . to raise the 'voluntariness' issue with the Court at the hearing") (Government's Response at 13; A. 46). Had Mr.xxxxxxxxx's attorney provided effective assistance on his behalf, the issue of whether his statements were made voluntarily would have been fully litigated, counsel would have sought a ruling from the trial court, and those statements would have been excluded.

C. Trial Counsel Rendered Ineffective Assistance By Failing To Inform Mr.xxxxxxxxx Of His Right To Testify At The Hearing On The Motion To Suppress The Statements

Mr. Durkin failed to advise Mr.xxxxxxxxx that he had the right to testify on his own behalf at the hearing on the motion to suppress the statements. See Affidavit of Claudiusxxxxxxxxx, A. at 33. Without question, a defendant has the right to testify at a pretrial suppression hearing. Walker v. Wilmot, 603 F.2d 1038 (2nd Cir. 1979), cert. denied, 449 U.S. 885 (1980). See also Rock v. Arkansas, 483 U.S. 44 (1987) (Due Process Clause, Compulsory Process Clause, and privilege against self-incrimination guarantee criminal defendant right to testify on his or her own behalf); Foster v. Delo, 11 F.3d 1451 (8th Cir. 1993) (trial counsel ineffective for failing to advise defendant of his right to testify during penalty phase). Indeed, a defendant's testimony is often crucial when the issue to be decided concerns the defendant's subjective state of mind, i.e., whether the defendant's statements were the "product of his free and rational choice." Mincey v. Arizona, 437 U.S. 385, 401 (1978). Mr.xxxxxxxxx's testimony would have supported his claims that his statements were involuntary, see A. at 33, and that Mr. Durkin failed to advise him of his right to testify, thereby constituting ineffective assistance of counsel. ⁽⁹⁾

D. Had Mr.xxxxxxxxx's Trial Counsel Rendered Effective Assistance Of Counsel The Statements Would Have Been Suppressed

A statement which is the not the "product of an essentially free and unconstrained choice by its maker," Culombe v. Connecticut, 367 U.S. 568, 602 (1961), offends due process and is inadmissible against a defendant for any purpose. Jackson v. Denno, 378 U.S. 368 (1964). A determination of whether a statement was involuntary requires careful evaluation of all the circumstances of the questioning. Mincey v. Arizona, 437 U.S. 384 (1978).

Here, a careful evaluation of the circumstances surrounding the questioning reveals a tremendous show of police power aimed at Mr.xxxxxxxxx. The effect of the extraordinary force brought to bear on Mr.xxxxxxxxx was to intimidate him and coerce him into acquiescing to the officers' demands, including answering whatever questions Officer Brown put to him.

Mr.xxxxxxxxx was the target of a flashbang grenade. When he did not respond to the officers' commands to leave the room that he was in, the officers threw a grenade into the small room. The purpose of throwing the grenade at Mr.xxxxxxxxx was to "disorient" him (Tr. III at 52-53). The explosion caused by the grenade blew out the glass in the windows and burned the rug from the floor (Tr. I at 39). The explosion was so powerful that an officer who was standing out in the street had to "duck[] under the car to keep from being hit by flying glass" (Tr. IV at 168).

It worked. Mr.xxxxxxxxx was disoriented and terrified by the explosion (A. at 33). Following the explosion Mr.xxxxxxxxx acquiesced to all of the officers' demands. As one officer testified, Mr.xxxxxxxxx "came out and he came out very quickly and laid directly down" (Tr. III at 179). He was handcuffed and laid face down on the floor. Cloth was placed over Mr.xxxxxxxxx's head so that he could not see. While Mr.xxxxxxxxx lay in this position, Officer Brown momentarily lifted the cloth to question him. Mr.xxxxxxxxx did not -- and could not -- object.

Mr.xxxxxxxxx's statements, as testified to by Officer Brown, reflect that he was confused and incoherent at the time that he made them. Officer Brown testified that Mr.xxxxxxxxx told her that he had lived in the house for five months, and that he mentioned two people, "Africa Donney" and "Donna." (Tr. I at 17-18). Brown could not remember why he spoke about those people, or what exactly he said, but she thought that Mr.xxxxxxxxx "said that he lived in that room with his girlfriend" (Id.). As Mr.xxxxxxxxx's attached affidavit attests, he meant to relate to Officer Brown that a woman with whom he was romantically involved, Donna Sloey, lived at the house (A. at 33). ⁽¹⁰⁾ Mr.xxxxxxxxx, however, lived in New York (A. at 33). That Mr.xxxxxxxxx was so disoriented and befuddled that he could not coherently relate such a simple fact illustrates that the statement was not the product of a rational mind. See Mincey, 437 U.S. at 398-399 (fact that defendant was "evidently confused and unable to think clearly" since his answers were "not entirely coherent" supported claim that his statements were involuntary).

Under these circumstances, Mr.xxxxxxxxx's responses to Officer Brown's questions were not "the product of a his free and rational choice." Mincey v. Arizona, 437 U.S. at 401 (citations omitted). Rather, his will was overborne by the tremendous show of paramilitary force. He believed that if he did not cooperate with the officers in every respect he would come to harm at the hands of the police (A. at 33).

The Constitution requires a new trial, without regard to prejudice, because use of an involuntary confession so offends due process. "Due process forbids the use of an involuntary confession without regard for its truth or falsity, and even if there is ample evidence aside from the confession to support a verdict." United States v. Powe, 591 F.2d 833, 844 (D.C. Cir. 1978) (emphasis added) (footnotes omitted). See also Jackson v. Denno, 378 U.S. 368 (1964) (defendant's due process right to be free from conviction based upon a coerced confession was endangered by the failure to hold a hearing on the voluntariness issue).

Even if the Court reaches the second prong of the Strickland test by examining the record for prejudice, there exists here "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. Admission of the statements bolstered what was otherwise a weak case against Mr.xxxxxxxxx. There was little evidence to support the theory that Mr.xxxxxxxxx constructively possessed the contraband in the house: none of Mr.xxxxxxxxx's personal possessions was found in the house; with the exception of a driver's license bearing the name of "Clive Mason," no documents connected Mr.xxxxxxxxx to the house; the landlords testified that Mr.xxxxxxxxx did not live at the house; he did not actually possess any contraband; and he was apprehended in a room in which no contraband was recovered. Under those circumstances, Officer Brown's testimony that Mr.xxxxxxxxx claimed to live at the house was critical to obtaining a conviction against Mr.xxxxxxxxx.CONCLUSION

Because Mr.xxxxxxxxx's statements would properly have been suppressed as involuntary if trial counsel had sought a ruling from the district court, this Court should remand the case to the district court with instructions to suppress the statements. In the alternative, this Court should remand the case to the district court with instructions to hold an evidentiary hearing to determine whether trial counsel rendered ineffective assistance of counsel by failing to advise Mr.xxxxxxxxx of his right to testify at the hearing on the motion to suppress the statements.

Respectfully Submitted,

A.J. Kramer

Federal Public Defender

Sandra G. Roland

Assistant Federal Public Defender

625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500

CERTIFICATE OF LENGTH

I hereby certify that the foregoing brief for appellant, Claudius A.xxxxxxxxx, does not exceed the number of words permitted by Circuit Rule 28(d).

Sandra G. Roland

CERTIFICATE OF SERVICE

I hereby certify that two copies of the Brief and Addendum for Appellant, and one copy of the Appendix for Appellant have been hand delivered to the United States Attorney's Office, John R. Fisher, Esq., Appellate Division, Room 4229, 555 4th Street, N.W., Washington DC 20001, this 6th day of June, 1994.

Sandra G. Roland

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_________________________________________________________________

No.

_________________________________________________________________

APPENDIX FOR DEFENDANT-APPELLANT

CLAUDIUS A.xxxxxxxxx

_________________________________________________________________

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

CLAUDIUS A.xxxxxxxxx, Defendant-Appellant.

_________________________________________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_________________________________________________________________

A.J. Kramer

Federal Public Defender

Sandra G. Roland

Assistant Federal Public Defender

Counsel for Defendant-Appellant

625 Indiana Avenue, N.W. Suite 550

Washington, D.C. 20004

(202) 208-7500

District Court

Cr. No.

APPENDIX

TABLE OF CONTENTS

INDICTMENT 1

JUDGMENT IN A CRIMINAL CASE 5

MOTION FOR POST-CONVICTION RELIEF PURSUANT TO

28 U.S.C. § 2255 10

GOVERNMENT'S OPPOSITION TO DEFENDANT'S MOTION FOR POST-CONVICTION

RELIEF 34

DISTRICT COURT'S RULING ON DEFENDANT'S MOTION FOR

POST-CONVICTION RELIEF PURSUANT TO 28 U.S.C. § 2255 75

1. The co-defendants were Michael xxxxxxx, Ian xxxxxxxx, Ron Peter xxxxxxx, Ron Barrington xxxxxxx, Stephen xxxxxxxx and Wayne xxxxxxx.

2. The numbers preceded by "A." refer to the pages appended to this brief in Appendix for Appellant.

The numbers preceded by "Tr. I" refer to the pages in the transcript of the suppression hearing held on May 17, 1988.

The numbers preceded by "Tr. II" refer to the pages in the transcript of the suppression hearing and trial proceedings held on May 18, 1988.

The numbers preceded by "Tr. III" refer to the pages in the transcript of the trial proceedings held on May 19, 1988.

The numbers preceded by "Tr. IV" refer to the pages in the transcript of the trial proceedings held on May 20, 1988.

The numbers preceded by "Tr. V" refer to the pages in the transcript of the trial proceedings held on May 23, 1988.

The numbers preceded by "Tr. VI" refer to the pages in the transcript of the trial proceedings held on May 24, 1988.

The numbers preceded by "Tr. VII" refer to the pages in the transcript of the trial proceedings held on May 25, 1988.

The numbers preceded by "Tr. VIII" refer to the pages in the transcript of the trial proceedings held on May 26, 1988.

The numbers preceded by "Tr. IX" refer to the pages in the transcript of the trial proceedings held on May 27, 1988.

3. Co-defendant Stephen xxxxxxxx told Officer Brown that he lived at the house (Tr. IV at 36). The landlords confirmed that Mr. Ashley had been renting a room on the second floor for approximately nine months (Tr. V at 21).

Co-defendant Ron Barrington xxxxxx told Officer Brown that he lived in New York but had just rented a room on the third floor of the house (Tr. IV at). Mr. Ayodeji testified that he had seen Ron Barrington Crossfield at the house, but that he was not a renter (Tr. V at 23-24).

According to the landlords, Ron Peter xxxxxxx had rented the rear bedroom on the second floor approximately two weeks before the raid (Tr. V at 28-29, 71. 96).

4. At trial, Sergeant Donald Exum explained that the purpose of the flashbang grenade is to "disorient a person" (Tr. III at 52). Explaining that the grenade is not lethal, Sergeant Exum testified that the grenade "is strictly for disorienting to give us an edge to enter the room" (Tr. III at 53).

When detonated, the grenade "sets off a real bright light and a loud noise which will temporarily disorient a person inside a room" (Tr. III at 52). Exum described the noise as louder than "the cherry bomb-type fireworks" that one hears at Fourth of July celebrations (Tr. III at 64).

Sergeant Vucci testified that he heard and saw the effects of the grenade from his position in the street in front of the house: "[G]lass was flying out of that window and I ducked under the car to keep from being hit by flying glass" (Tr. IV at 168).

Officer Gilbert testified at trial that the explosion from a flashbang grenade could be heard from a block away (Tr. III at 179), and that after the grenade was exploded in the room, Mr.xxxxxxxxx "came out and he came out very quickly and laid directly down" (Id.).

5. According to the landlords, Donna xxxxxxx rented a room on the second floor (Tr. V at 32). Donna xxxxxxxx moved out of the house one day before the raid (Tr. I at 34).

6. The government also argues that appellant's factual claims are "palpably incredible" since "[i]t is inconceivable to the government that, had defendant described his condition to Mr. Durkin as he has described it in his affidavit, Mr. Durkin would have foregone the opportunity of putting the defendant on the stand at the hearing in an attempt to establish that the statement was made involuntarily." (Government's Response at 12, n.12; A. at 45).

The government's inability to conceive of such ineffective representation is not rooted in reality. See, e.g., Kimmelman v. Morrison, 477 U.S. 365 (1985) (counsel ineffective for failing to file a timely motion to suppress incriminating evidence of which he was unaware because he failed to seek discovery); Atkins v. Attorney General, 932 F.2d 1430 (11th Cir. 1991) (counsel ineffective for failing to object to admission of fingerprint card which contained information about defendant's prior arrest); United States v. Loughery, 908 F.2d 1014 (D.C. Cir. 1990) (attorney abdicated responsibility to defendant who pleaded guilty by failing to advise her that recent case provided basis for dismissal of charges); Nixon v. Newsome, 888 F.2d 112 (11th Cir. 1989) (counsel ineffective for failing to impeach victim's wife by introducing her testimony from an earlier trial in which a different person was charged with the same killing); United States v. Gray, 878 F.2d 702 (3d Cir. 1989) (counsel ineffective for failing to locate and interview witnesses); Profitt v. Waldron, 831 F.2d 1245 (5th Cir. 1987) (counsel ineffective for failing to raise insanity defense where counsel knew defendant escaped from mental institution); Thomas v. Lockhart, 738 F.2d 304 (8th Cir. 1984) (counsel ineffective for failing to investigate case beyond reading prosecution file and where counsel's conduct was tainted by racial prejudice). See also Machibroda v. United States, 368 U.S. at 496 (1962) (allegations not "palpably incredible" where defendant alleged that he met privately with the Assistant United States Attorney on three occasions, that the Assistant promised him that he would receive twenty year sentence if he pleaded guilty, that Assistant extracted promise from defendant that defendant would not inform defense lawyer of the conversations, and that Assistant threatened to charge defendant with other crimes if defendant told his lawyer of the conversations).

7. The district court ruled that although Mr.xxxxxxxxx had not been advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), because Officer Brown's questions were in the nature of "booking" questions, the statements were admissible under the "routine booking question" exception to the rule of Miranda. The district court was not asked to address, and did not address, whether the statements were made voluntarily.

Routine booking questions that fall outside Miranda protections are, nevertheless, custodial interrogation, and are properly the subject of a motion to suppress on the basis of involuntariness. See Pennsylvania v. Muniz, 496 U.S. 582 (1990) (biographical questions asked for record-keeping purposes constituted custodial interrogation, but were admissible because they fell within the routine booking question exception).

8. Of course, where the circumstances of a case raise a substantial question of voluntariness it is the duty of the trial court, even absent an objection by defense counsel, to conduct further inquiry on that issue and to make a determination on the record. Powe, 591 F.2d at 847.

In Powe the issue of voluntariness was raised in the first instance on direct appeal. This Court held that while trial counsel "certainly fell short in his responsibility to safeguard his client's interests" when he failed to adequately raise the issue, it was the trial court's error in failing to intervene sua sponte to correct the "inaction of ill-prepared counsel" that necessitated a remand for an evidentiary hearing and ruling on voluntariness. Id. at 846-847.

hether the error here is attributable to defense counsel or to the trial court, Mr.xxxxxxxxx submits that he was denied due process when his involuntary statements to Officer Brown were admitted against him.

9. The government's response to appellant's Section 2255 motion can be read as an admission that if appellant's factual claims regarding the circumstances at the time of his statement are true, Mr. Durkin's failure to raise the issue of the voluntariness of the statement was ineffective ("It is inconceivable to the government that, had defendant described his condition to Mr. Durkin as he has described it in his affidavit, Mr. Durkin would have foregone the opportunity of putting defendant on the stand at the hearing in an attempt to establish that the statement was made involuntarily. (Government's Response at 12, n.12).

10. The testimony of the landlords corroborates Mr.xxxxxxxxx's assertion. Mr. and Mrs. Ayodeji testified that Donna xxxx rented a room on the second floor (Tr. V at 32). Donna xxxx moved from the house on the day before the police raid (Tr. V at 34).