The opinion of the court was delivered by: Charles R. Butler, Jr. Senior United States District Judge
This matter is before the Court on a motion to vacate, set aside or correct sentence and a motion to amend the motion to vacate, set aside or correct sentence. (Docs. 510 & 531.) Both motions were filed by counsel on behalf of petitioner Marcus Sanders, a person in federal custody. The government has filed responses in opposition to both motions. (Docs. 521 & 535.) In addition, both parties have submitted additional affidavits as required by the Court's order dated October 2, 2007. (Doc. 539.) After considering all of petitioner's claims and the government's response in light of the evidence and documents on filed, the Court finds that petitioner is not entitled to relief.
Events Giving Rise to Murder Indictment
Petitioner Marcus Sanders was initially indicted in the Southern District of Alabama in Criminal Number 95-00176 for his involvement in 1997 drug conspiracy. Sanders went to trial on those charges and was acquitted in April 1998. Before he could be released after his acquittal, Sanders was arrested on an information filed in this district charging him with a 1996 drug conspiracy. An indictment was subsequently returned charging Sanders and several co-defendants with conspiracy to possess with intent to distribute cocaine, possession of cocaine with intent to distribute and attempt to possess cocaine with intent to distribute (collectively referred to as "the 1996 conspiracy"). In January 1999, Sanders and two co-defendants, Robert "Sonny" Gibson, Sr. and Jacqueline Peransi, went to trial on the 1996 conspiracy. Gibson and Peransi were convicted on some counts, but the jury was unable to reach a verdict on any of the charges against Sanders. The Court declared a mistrial as to Sanders, set the case for retrial, and released Sanders on bond with electronic monitoring. Sanders returned to his home in the Detroit, Michigan area.
Sanders returned to court for jury selection on April 5, 1999. At jury selection, the government read a list of its potential witnesses, one of whom was Sonny Gibson. After his conviction, Gibson had agreed to testify on behalf of the government and was released pending sentencing. Because the trial itself was not scheduled to commence until April 19, 1999, Sanders returned to Michigan following jury selection.*fn1 On Saturday, April 17, 1999, Sonny Gibson was shot and killed at a gas station in Oak Park, Michigan. On Monday, April 19, 1999, Marcus Sanders failed to appear for trial, and a bench warrant was issued for his arrest. Murder Indictment and Trial
On July 31, 1999, after several months as a fugitive, Sanders was captured in Michigan. He was returned to the Southern District of Alabama for further proceedings, and in August 1999 a federal grand jury in this district issued a superseding indictment, charging Sanders with two counts of murder*fn2 in addition to the charges arising from the 1996 drug conspiracy. One of Sanders' friends, Leslie Kelly, was also charged with murder as an aider or abettor. The United States Attorney filed a notice of intent to seek the death penalty against Sanders. Attorneys Richard Morgan of Detroit and Dennis Knizley of Mobile, who had represented Sanders in both previous trials, were appointed to represent Sanders on the capital murder charges. Local attorney Gordon Armstrong was also appointed to assist with the defense.
Sanders' capital murder trial commenced on July 10, 2000.*fn3 At trial, the government presented the following evidence. At approximately 12:30 p.m. on April 17, 1999, Sonny Gibson was pumping gas at a busy gas station/convenience store in broad daylight when a black Cadillac Escalade drove up next to him. The driver of the Escalade shot Gibson in the head and drove away slowly. Several people witnessed the shooting. One of them, Jerry Hamilton, a customer who was inside the convenience store, was able to provide a detailed description of the shooter to a police artist.*fn4 The resulting sketch bore a striking resemblance to Marcus Sanders. Hamilton subsequently identified Marcus Sanders from a photo lineup and also testified at trial that Sanders was the shooter. In addition, several witnesses described the shooter as a black male and the vehicle as a black Escalade. A few days before the shooting, Detroit police had stopped a black Escalade driven by Marcus Sanders.*fn5 Around 1:00 p.m. on the day of the murder, co-defendant Leslie Kelly took a black Escalade to a car wash near the scene of the shooting and left it be detailed.*fn6 Later that day, Marcus Sanders called a friend and had her pick up the Escalade from the car wash.
The government also presented evidence that Sanders knew Gibson was cooperating with the government and was not happy about it. Vicki Gibson, the victim's daughter, testified that Sanders had telephoned Sonny Gibson's house in February 1999. Vicki Gibson answered the telephone and spoke with Sanders at that time. Sanders told her that he knew her father was going to testify and that he had read the statement her father gave to the police. Sanders told Vicki Gibson that her father should not testify. There was also testimony from Baurilio Darius regarding a threat Sanders made about Sonny Gibson. Darius, a friend of Jackie Peransi, had attended the January 1999 trial of Sanders, Peransi and Gibson. Darius became friendly with Sanders' girlfriend, Toni Yancey, who also attended the trial. Darius, who lived in Miami, kept in touch with Yancey regarding the ongoing legal proceedings.*fn7 In March 1999, Sanders answered the telephone when Darius called. When Darius mentioned that Gibson was going to testify against Sanders, Sanders threatened to kill Gibson, saying he would put a bullet in Gibson's head.
Defense counsel's strategy at trial was to cast doubt on the government's evidence.*fn8 In cross examining Hamilton, the defense pointed out that Hamilton and his family were receiving money from the government as part of the witness protection program. The defense also brought in witnesses, who either witnessed the shooting or saw the shooter in the area. These witnesses could not identify Sanders and disagreed with the sketch artist's rendering of the shooter. One of them was certain that Sanders was not the shooter. Hamilton's school-aged sons--also witnesses to the shooting--were called to testify on behalf of the defense. Defense counsel demonstrated that the boys had vacillated in their statements and were unable to identify Sanders as the shooter. The defense was also able to point out weaknesses in the government's evidence regarding Sanders' threats. For instance, as the daughter of the victim, Vicki Gibson naturally harbored some bias. Also, Braulio Darius--the witness who testified about an overt threat--had never even met Sanders when Sanders made a threat to kill a witness during their first telephone conversation.
The jury deliberated for approximately 6 hours before announcing they were deadlocked. Because the hour was late, the Court sent the jurors home for the weekend. When they returned on Monday morning, the Court gave them a modified Allen charge. Later that day the jury reached a unanimous verdict, finding Sanders guilty as to both murder counts. At the sentencing phase, the jury rejected the death penalty and returned the only other sentence possible--life imprisonment.*fn9
Events at Trial Relevant to § 2255 Claims Absence of Toni Yancey's Testimony
Toni Yancey, Marcus Sanders' live-in girlfriend and mother of his young child, was sometimes referred to as Sanders' common-law wife. In preparation for trial, the defense filed a notice of alibi defense, identifying Ms. Yancey as a possible alibi witness. The first notice stated that Ms. Yancey was with Sanders at a Detroit mall at the time of the shooting. An amended notice was filed on April 19, 2000 stating that Sanders was at home with Ms. Yancey in West Bloomfield, Michigan at the time of the shooting and that they went together to the mall later that afternoon. Despite the notice of alibi defense, Ms. Yancey did not testify at trial.
In his affidavit submitted in support of the § 2255 motion, Sanders does not address why counsel failed to call Ms. Yancey. He states that he "demanded that both of my defense attorneys call Ms. Toni Yancey as my alibi witness at trial. . . . [,] [but] [b]oth of my attorneys refused to call Ms. Toni Yancey as an alibi witness in my defense at trial." (Sanders' Aff., Doc. 511, ¶¶ 13-14.) In his affidavit, Mr. Knizley recalled that the defense made a collective decision not to call Ms. Yancey for strategic reasons and that Sanders took part in that decision. According to Mr. Knizley, the defense felt that calling a weak alibi witness--i.e., a biased witness for whom there was no corroboration--could undermine their attack on the credibility of the eyewitness identification testimony. Mr. Knizley states that "[c]ollectively a decision was made not to call Mrs. Yancey. Mr. Sanders did rely upon the advice of counsel in making such decision, but was not deprived of his right to call Mrs. Yancey. Mr. Sanders did not insist upon the calling of Mrs. Yancey nor did he voice any objection to counsel's advice as to whether or not the alibi witness should be called." (Knizley Aff., Doc. 540-2, at 2.) Mr. Morgan confirms that the decision not to call Yancey was strategic, stating: "I did not choose to call Toni Yancey for the reason that I did not believe that the jury would believe her. Based upon that I thought it was best that we not call Ms. Yancey." (Morgan Aff., Doc. 541,¶ 3.) While Mr. Morgan agrees with Sanders' assertion that he refused to call Ms. Yancey, he modifies that statement by saying that "I advised and persuaded him, that I thought it was in his best interest that we not call Ms. Yancey." (Id. ¶ 4.)
During the murder investigation, Ms. Yancey was twice called to testify under oath as part of the investigation into Gibson's murder. At the time Yancey gave a sworn statement to the prosecuting attorney in Michigan, she was represented by Mr. Morgan. (Doc. 521-2.) When questioned about Sanders whereabout during the time of the murder, Yancey exercised her Fifth Amendment privilege against self-incrimination. (Id. at 5.) Ms. Yancey was also invoked the Fifth Amendment when called to testify before a grand jury in this district. (Tr. 1307.)
At the murder trial, the defense entered into two stipulations with the government. The first was about defense counsel's receipt of Gibson's statement prior to the April 1999 jury selection date. That stipulation was presented to the jury as follows: Ms. Bedwell: Counsel has agreed to stipulate that the statement provided to Agent Mixon by Mr. Gibson was provided to counsel for Mr. Sanders on February 22nd of 1999.
Mr. Knizley: Judge, that correspondence was sent reflecting that the corresponded -- that statement was with the correspondence.
The Court: And a stipulation, ladies and gentlemen, is an agreement that the parties have reached without any admission of guilt involved. It's just an admission that this fact that was just related to you is a fact that you can consider in evidence without the necessity of a witness having to testify to it.
The parties also entered into a second stipulation regarding Sanders' knowledge of his potential sentence for the 1996 drug conspiracy charges. The defense and the government agreed that Sanders had been informed by the United States Probation Office in November 1998 "that the potential Federal sentencing guideline range he faced in the drug charges pending against him here was from  months to  months to  months." (Tr. 777-78.)
Sanders appealed his conviction and was represented on appeal by court-appointed counsel, Arthur Madden. Sanders raised three issues on appeal: (1) exclusion of expert testimony on eyewitness identification; (2) denial of defendant's motion to suppress out-of-court identification; and (3) double jeopardy with respect to substantive drug offense convictions. None of these claims were successful, and Sanders' conviction was affirmed in an unpublished opinion dated May 13, 2002. A petition for writ of certiorari was denied by the United States Supreme Court on January 21, 2003.
A motion for § 2255 relief was filed on January 20, 2004. The motion, which was filed on petitioner's behalf by attorneys David Steingold and Tracie Dominique Palmer, raises four claims:
A. Ineffective assistance of counsel due to failure to call Toni Yancey as an alibi witness;
B. Ineffective assistance of counsel due to the stipulation regarding counsel's receipt of Gibson's statement:
C. Ineffective assistance of counsel due to a conflict of interest that arose during trial; and
D. The cumulative effect of counsel's multiple errors denied petitioner due ...