UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA, :
:
:
xxxxxxxxxxxxxx, :
:
Defendant. :
MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE
AND INCORPORATED MEMORANDUM OF FACTS AND LAW
Defendant xxxxxxxx, through counsel, respectfully moves this Court, pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct the sentence he received in this case. As grounds for his Motion, Mr. xxxxxxxx states as follows:
1. This Motion is based upon all the files, records and proceedings in this case.
2. On October 17, 1990, a five-count indictment was filed against Mr. xxxxxxxx, charging him in three counts with distribution of more than 50 grams of cocaine base, in one count with using a telephone to facilitate one of those offenses, and in the final count with distributing narcotics within 1000 feet of a school.
3. Two trials on these counts resulted in hung juries, and mistrials were declared. The third trial commenced on January 21, 1993, before the Honorable Oliver Gasch. On January 25, 1998, the jury found petitioner guilty of all counts of the indictment.
4. On April 29, 1993, Mr. xxxxxxxx was sentenced to 235 months incarceration, to be followed by ten years supervised release, and a special assessment of $250.00.
5. On appeal, the United States Court of Appeals for the District of Columbia Circuit affirmed the convictions in an unpublished opinion. United States v. xxxxxxxx, 52 F.3d 1123 (D. C. Cir. 1995) (per curiam). A copy of the Opinion is attached. (Exhibit A)
6. On September 30, 1996, petitioner filed a pro se Motion to Vacate, Set Aside or Correct Sentence, claiming that his counsel was ineffective for failing to object to errors in petitioner's sentencing. That motion was conceded by the government, and on May 27, 1997, by Order of this court, this office was assigned to represent Mr. xxxxxxxx.
7. Mr. xxxxxxxx was resentenced on August 1, 1997 to a term of 188 months, to be followed by a period of 10 years supervised release, and a special assessment of $250.00. 8. There have been no petitions, applications, motions or proceedings filed or maintained by Mr. xxxxxxxx in any other federal court with respect to the judgment entered in this case.
9. For the reasons set forth below, Mr. xxxxxxxx prays that this Court set aside his convictions and sentence in this case.(1)
MEMORANDUM OF FACTS AND LAW
I. INTRODUCTION
Cleveland xxxxxxxx challenges as illegal the sentence imposed upon him in the instant case, on the grounds that he was denied the effective assistance of counsel at trial and on appeal when his counsel failed to object to hearsay introduced at trial, in violation of Mr. xxxxxxxx's rights under the Confrontation Clause of the Sixth Amendment, and when his appellate counsel failed to raise the admission of the hearsay statements as "plain error."
II. MR. xxxxxxxx'S TRIAL COUNSEL WAS INEFFECTIVE IN
FAILING TO OBJECT TO HEARSAY TESTIMONY AND HIS
APPELLATE COUNSEL WAS INEFFECTIVE IN FAILING TO
RAISE THE ISSUE AS PLAIN ERROR.
Throughout Mr. xxxxxxxx's trial, the government elicited hearsay testimony which was unobjected to by trial counsel. In the Appendix to this Motion, the transcript sections which reflect the hearsay testimony are included. On appeal, counsel for Mr. xxxxxxxx raised two issues, whether the evidence against him was sufficient to support the convictions and whether the trial court abused its discretion in failing to grant a mistrial. Appellate counsel failed to raise, as plain error, that Mr. xxxxxxxx's trial counsel did not object to the inadmissible hearsay testimony.
As a preliminary matter, there is no question that the testimony complained of in the instant motion is hearsay testimony. Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." FED.R.EVID. 801(c). The admission of the hearsay not only violated evidentiary rules, but implicated Mr. xxxxxxxx's confrontation rights as well. The Supreme Court has held that "hearsay rules and the Confrontation Clause are generally designed to protect similar values." California v. Green, 399 U.S. 149, 155 (l970). Moreover, "the Confrontation Clause reflects a preference for face-to-face confrontation at trial, and . . . a primary interest secured by the provision is the right to cross examination." Ohio v. Roberts, 448 U.S.56, 62 (1980).
Trial counsel had an obligation to render to Mr. xxxxxxxx the effective assistance of counsel, including making the appropriate objections to inadmissible evidence. Strickland v. Washington, 466 U.S. 668 (1984); Mason v. Scully,16 F.3d 38 (2d Cir. 1994). Appellate counsel has an obligation to raise all cognizable issues on appeal. Smith v. Murray, 477 U.S. 527 (1986); Evitts v. Lucey, 469 U.S. 387 (1985).
The hearsay admissions combined to deprive Mr. xxxxxxxx of a fair trial. Federal Bureau of Investigation (FBI) agent Deborah Martin was permitted to testify about the results of an investigation of a subject by the name of Marshallack Ellis, an investigation which eventually led to the arrest of Mr. xxxxxxxx. I, 38-41.(2) She testified about the dealings between Mr. xxxxxxxx and an undercover police officer and about conversations between them. Id., 42, 44, 55, 57, 60, 61, 62, 63-65; II, 4-11, 15. She identified a videotape and documents. Id., 47, 53-55. It was clear from her testimony that she had no first-hand knowledge of the matters about which she testified.
FBI agent Rodney Andress testified about dealings between the undercover officer and defendant xxxxxxxx. III, 8, 10-11, 14, 16, 19. It was likewise clear from his testimony that he was not testifying from his first-hand knowledge.
The government introduced Mr. xxxxxxxx's Immigration and Naturalization file without laying any foundation for its admission, and without objection from his counsel. III, 76-78. The goverment used the file to corroborate the testimony of its other witnesses.
All of this hearsay testimony had the effect of bolstering the testimony of the most damaging witness against Mr. xxxxxxxx, Agent Gloria Winston, who was the undercover officer with whom Mr. xxxxxxxx was reported to have engaged in the drug transactions which formed the basis for the first three counts of the indictment. The government was allowed to replay her testimony several times over by the admission of this hearsay testimony of other agents who had no first-hand knowledge of the events or conversations that transpired between her and Mr. xxxxxxxx. The effect of the admission of the hearsay was to create the fiction that Agent Winston's version of the events was corroborated by these other witnesses. The admission of the hearsay evidence was very damaging to Mr. xxxxxxxx. His counsel was derelict in failing to object to the evidence and his appellate counsel was derelict in failing to challenge the evidence on appeal.
CONCLUSION
Pursuant to Rule 8 of the Rules Governing Section 2255 Proceedings, Mr. xxxxxxxx requests that an evidentiary hearing be conducted at which proof may be offered concerning the issues raised in his motion and memorandum. After an evidentiary hearing is held, the Court should vacate Mr. xxxxxxxx's convictions and sentence or grant such other and further relief as it deems appropriate.
Respectfully submitted,
A.J. KRAMER
FEDERAL PUBLIC DEFENDER
Reita Pendry
Assistant Federal Public Defender
625 Indiana Avenue, N.W. #550
Washington, D. C. 20004
(202)208-7500
Certificate of Service
I certify that a copy of the Motion to Vacate, Set Aside or Correct Sentence was served upon Robert Okun, Chief, Special Proceedings Branch, U.S. Attorney's Office, 555 4th Street, NW, this 27th day of July, 1998.
Reita Pendry
1. Pursuant to the pertinent instructions accompanying the Model Form for Motions Under 28 U.S.C. § 2255, prescribed by the Rules Governing Section 2255 Cases in the United States District Courts, we have set forth in our memorandum the pertinent facts and applicable law in support of our motion. However, in discussing the facts relating to our legal claims, we do not mean to suggest that an evidentiary hearing on these claims is unnecessary. To the contrary, because our allegations involve factual, as well as legal issues, a full hearing on this motion is required.
2. The trial transcripts are numbered sequentially by days, with roman numerals. I: Jan. 21, 1993 (Exhibit B); II: Jan. 22, 1993 (Exhibit C); III: Jan. 25, 1993 (Exhibit D).