United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OF OPINION
SCOTT COOGLER UNITED STATES DISTRICT JUDGE
Court has for consideration Petitioner Biniam Asghedom's
(“Asghedom's”) motion to vacate, set aside,
or correct his sentence pursuant to 28 U.S.C. § 2255.
The United States has responded in opposition to the motion.
For the following reasons, the motion is due to be denied as
without merit, and no evidentiary hearing is warranted.
some period of time prior to October 2010, Drug Enforcement
Administration (“DEA”) agents had been
investigating the drug trafficking activities of individuals
associated with a residence at 108 Page Avenue in Birmingham,
Alabama. Part of the investigation had focused on Asghedom,
from whom agents had made two undercover purchases of
cocaine. On each occasion on which undercover buys were made,
Asghedom was driving a black GMC pickup truck registered to
Sharia Harris. On other occasions when agents had him under
surveillance, Asghedom was always driving the same truck. In
late October or early November 2010, agents attached a
self-contained, battery powered GPS tracking device to the
undercarriage of the truck.
December 1, 2010, DEA agents were conducting physical
surveillance of Asghedom and located him in the area of 108
Page Avenue, driving the black GMC pickup truck. Later that
evening, while continuing to conduct surveillance, a
detective with the Birmingham Police Department saw Asghedom
fail to signal a lane change. Accordingly, Asghedom was
pulled over for the traffic violation. During the stop,
Asghedom was asked for consent to search the vehicle, which
he gave. Under the beverage holder in the center console of
the vehicle, officers recovered a large clear plastic bag
containing several smaller clear plastic bags each holding
what was later determined through testing to be cocaine
hydrochloride with a net weight of 495.9 grams. Underneath
the plastic bags, officers also found an amount of cash
totaling $14, 650. Asghedom was arrested. Two fingerprints
that matched Asghedom were later lifted from one of the
November 27, 2012, Asghedom was charged in a one-count
indictment with possession with the intent to distribute
cocaine. Asghedom retained Rita Briles, and later Steven D.
Eversole and Adam Bollaert of the Eversole Law Firm, as his
counsel. Ms. Briles filed two motions to suppress evidence on
Asghedom's behalf, which were each denied after
evidentiary hearings were held. Trial commenced on March 3,
2014. The following day, the jury returned a verdict of
guilty on the one-count indictment in which Asghedom was
charged. After trial, Mr. Eversole and Mr. Bollaert each
sought and were permitted to withdraw as counsel. This Court
sentenced Asghedom to a term of imprisonment of 120 months.
Judgment was entered on August 1, 2014. Ms. Briles then
sought and was permitted to withdraw as counsel.
different retained counsel, Asghedom appealed his conviction
and sentence. On March 29, 2016, the Eleventh Circuit decided
Asghedom's appeal, affirming his conviction and sentence.
The mandate was issued on April 27, 2016. On July 26, 2016,
Asghedom filed a notice of writ of certiorari with the
Supreme Court. On October 3, 2016, the Supreme Court denied
Asghedom's writ of certiorari.
13, 2017, Asghedom signed the present § 2255 motion,
which was filed into the record on June 19, 2017. On October
17, 2017, the Court issued an order to show cause to the
United States. On October 20, 2017, the United States filed a
motion for a more definite statement regarding Asghedom's
§ 2255 motion. The Court granted the United States's
motion, directing Asghedom to provide a more definite
statement of his claims for relief. Asghedom filed his
supplement to his § 2255 motion on November 28, 2017.
The United States then responded in opposition to the motion.
litigation stemming from a § 2255 motion,
“‘[a] hearing is not required on patently
frivolous claims or those which are based upon unsupported
generalizations. Nor is a hearing required where the . . .
[movant's] allegations are affirmatively contradicted by
the record.'” Holmes v. United States, 876
F.2d 1545, 1553 (11th Cir. 1989) (quoting Guerra v.
United States, 588 F.2d 519, 520-21 (5th Cir. 1979)).
However, it is appropriate for the Court to conduct an
evidentiary hearing if, “‘accept[ing] all of the
. . . [movant's] alleged facts as true, '” the
movant has “‘allege[d] facts which, if proven,
would entitle him to relief.'” Diaz v. United
States, 930 F.2d 832, 834 (11th Cir. 1991) (internal
raises five claims, each alleging ineffective assistance of
counsel by one of his trial attorneys, Ms. Briles: 1) she was
ineffective for failing to call witnesses at trial and
failing to hire a fingerprint expert; 2) she was ineffective
for failing to allow Asghedom to testify on his own behalf at
trial; (3) she was ineffective for asking questions during
cross-examination that opened the door to evidence of
Asghedom's involvement in a larger criminal enterprise;
(4) she was ineffective for failing to object to the
Court's treatment of a juror question; and (5) she was
ineffective for failing to examine material evidence prior to
trial, namely the plastic bag containing the cocaine on which
Asghedom's latent fingerprints were discovered. Asghedom
is clear that his allegations of ineffective assistance of
counsel are directed solely at Ms. Briles, and not at any of
the other attorneys he hired.
of ineffective assistance of counsel may be raised for the
first time in a § 2255 motion and are therefore not
subject to procedural bar. Massaro v. United States,
538 U.S. 500, 504 (2003). Post-conviction relief will not be
granted on a claim of ineffective assistance of trial counsel
unless the petitioner can show not only that counsel's
performance was deficient but also that such deficient
performance prejudiced his defense. Strickland v.
Washington, 466 U.S. 668, 687 (1984). More specifically,
the petitioner must show that: (1) his counsel's
representation fell below an objective standard of
reasonableness; and (2) there is a reasonable probability
that, but for his counsel's unprofessional errors, the
result of the proceeding would have been different.
Id. at 687-88.
applying this framework, the Court should be “highly
deferential” in evaluating counsel's performance
and must bear in mind that “a fair assessment of
attorney performance requires that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct
the circumstances of counsel's challenged performance,
and to evaluate the conduct from counsel's perspective at
the time.” Id. at 689. The Court must also
indulge a strong presumption that counsel's performance
falls within the “wide range of reasonable professional
assistance.” Id.; see Bell v. Cone,
535 U.S. 685, 702 (2002) (holding that “tactical
decisions about which competent lawyers might disagree”
do not qualify as objectively unreasonable). A petitioner who
seeks to overcome this presumption does not carry his burden
by offering bare accusations and complaints, but rather
“must identify the acts or omissions of counsel that
are alleged not to have been the result of reasonable
professional judgment.” Strickland, 466 U.S.
petitioner fails to show that his counsel's performance
fell below an objective standard of reasonableness, the court
need not address the issue of prejudice. See Holladay v.
Haley, 209 F.3d 1243, 1248 (11th Cir. 2000). Where the
court does consider this prong, the petitioner must show that
counsel's errors were prejudicial and deprived the
defendant of a “fair trial, a trial whose result is
reliable.” Strickland, 466 U.S. at 687. This
burden is met by establishing by a reasonable probability
that the outcome of the proceeding would have been different
but for counsel's errors. Williams v. Threatt,
529 U.S. 362, 391-93 (2000); Strickland, 466 U.S. at
Alleged failure to call defense witnesses or hire a
first claim, that his trial counsel was ineffective for
failing to call any witnesses on his behalf or hire a
fingerprint expert to refute the United States's
fingerprint expert's testimony, fails for several
Asghedom has failed to identify with specificity any
witnesses who should have been called but were not, aside
from stating generally that family members and friends could
have testified as to his good character and “legitimate
activities.” His mere allegation that his counsel
should have called witnesses is insufficient to sustain his
burden of demonstrating that his counsel was ineffective in a
§ 2255 proceeding. See Beeman v. United States,
871 F.3d 1215, 1222 (11th Cir. 2017) (noting that petitioners
bear the burden of proof under § 2255).
to the extent that Ms. Briles, an experienced trial attorney,
was involved in any decision regarding whether or not to call
a witness,  her decisions in that regard will be given
deference because the decision to call a witness, including
an expert witness, is the “epitome of a strategic
decision.” Waters v. Thomas, 46 F.3d 1506,
1512 (11th Cir. 1995). Indeed, calling any witness on behalf
of Asghedom would have opened that witness up to being
cross-examined by the United States, which could have brought
forth inculpatory evidence. The Supreme Court and the
Eleventh Circuit have found that strategic choices made by
counsel are “virtually unchallengeable.”
Strickland, 466 U.S. at 690; Provenzano v.
Singletary, 148 F.3d 1327, 1332 (11th Cir. 1998).
same principles are true with regard to the alleged failure
to hire a fingerprint expert. Assuming Ms. Briles had some
involvement in decisions concerning a fingerprint expert,
Asghedom has failed to establish what information such an
expert would have uncovered and how he or she would have
contradicted the testimony of the United States's
fingerprint expert. Asghedom must ground his constitutional
claims on facts and not pure speculation. See
Beeman, 871 F.3d at 1222.
event, a decision not to hire an expert is a strategic
decision not generally subject to review in habeas
proceedings. See, e.g., Lovett v. State of
Fla., 627 F.2d 706, 709 (5th Cir. 1980). As explained by
the Eleventh Circuit in a § 2255 proceeding where the
petitioner challenged the scope of his attorneys'
investigation and the reasonableness of their strategic
Strickland makes plain that a reviewing court's
objective “is not to grade counsel's
performance.” 466 U.S. at 697, 104 S.Ct. at 2069. We do
not measure counsel against what we imagine some hypothetical
“best” lawyer would do, in part to avoid
“the distorting effects of hindsight” and in part
to avoid judicial interference with “the
constitutionally protected independence of counsel, ”
lest we “restrict the wide latitude counsel must have
in making tactical decisions.” Id. at 689, 104
S.Ct. at 2065. We instead “reconstruct the
circumstances of counsel's challenged conduct” and
“evaluate the conduct from counsel's perspective at
the time.” Id.
Underpinning Strickland, then, is the assumption
that “[t]here are countless ways to provide effective
assistance in any given case. Even the best criminal defense
attorneys would not defend a particular client in the same
way.” Id. at 689-90, 104 S.Ct. at 2065-66.
Crucially, Strickland permits attorneys to choose
between viable avenues of defense, and attorneys are not
ineffective for making a reasonable choice to take one avenue
to the exclusion of another, or for selecting a reasonable
course without considering some other, equally reasonable
course. “If a defense lawyer pursued course A, it is
immaterial that some other reasonable courses of defense
(that the lawyer did not think of at all) existed and that
the lawyer's pursuit of course A was not a deliberate
choice between course A, course B, and so on. The
lawyer's strategy was course A. And, our inquiry is
limited to whether that strategy, that is, course A, might
have been a reasonable one.” Chandler v. United
States, 218 F.3d 1305, 1315 at n. 16 (11th Cir. 2000).
LeCroy v. United States, 739 F.3d 1297, 1313 (11th
Ms. Stacy Loggins, a senior fingerprint analyst with the DEA,
testified on behalf of the United States at trial that three
latent prints were found on the plastic bag found in the
vehicle Asghedom was driving when he was arrested and that
only two of those prints were suitable for comparison, both
of which matched Asghedom. (Trial transcript, criminal doc.
75 at 126-27.) On cross-examination, Asghedom's other
counsel, Mr. Bollaert, asked Ms. Loggins if there were other
latent prints and or partial prints that were not suitable
for identification, and she admitted that there were.
(Id. at 137.) Mr. Bollaert also established that
because they were not suitable for comparison, Ms. Loggins
could not testify who they belonged to. (Id.) Thus,
through cross-examination, Mr. Bollaert elicited evidence
that prints belonging to another person could have been on
the exhibit. It very well may have been defense counsel's
strategy to poke holes in the United States's fingerprint
expert's testimony through cross-examination rather than
to engage in a “battle of the experts, ” leaving
the jury with conflicting opinions. See LeCroy, 739
F.3d at 1308. This Court's only task is to determine if
that strategy was reasonable, see id. at 1313, and
here, there is no doubt that it was.
foregoing reasons, Asghedom is not due to relief on his first
claim of ineffective assistance of counsel.
Alleged failure to allow Asghedom to testify in his own
second claim, which is that his trial counsel was ineffective
because she did not permit him to testify on his own behalf
or inform him of his right to testify, fails because it is
contradicted by this Court's questioning of him. Indeed,
this Court engaged in the following colloquy directly with
Asghedom during trial:
THE COURT: ALL RIGHT. MR. ASGHEDOM, I WANT TO DISCUSS AN
ISSUE WITH YOU THIS MORNING, AND, THAT IS, YOUR RIGHT TO
TESTIFY. WHAT COUNTRY ARE YOU FROM?
THE DEFENDANT: I WAS BORN IN ERITREA.
THE COURT: ERITREA?
THE DEFENDANT: YES, SIR.
THE COURT: BUT YOU SPEAK PERFECT ENGLISH?
THE DEFENDANT: YES.
THE COURT: I WANT TO MAKE SURE I HAVEN'T - - BECAUSE I
HAVEN'T TALKED DIRECTLY TO YOU, AND I WANT TO MAKE SURE
THAT YOU UNDERSTAND EVERYTHING.
THE DEFENDANT: YES, SIR.
THE COURT: EVERYONE HAS A RIGHT TO TESTIFY IN THEIR OWN CASE.
AND THAT RIGHT, WHILE YOU CAN GET ADVICE FROM YOUR LAWYER OR
FROM FRIENDS OR FAMILY MEMBERS OR WHOEVER YOU WANT TO ABOUT
THAT, IN THE END, THE PERSON WHO MAKES ...