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Asghedom v. United States

United States District Court, N.D. Alabama, Southern Division

October 24, 2018

BINIAM ASGHEDOM, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OF OPINION

          L. SCOTT COOGLER UNITED STATES DISTRICT JUDGE

         This 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.

         I. Background

         For 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.

         On 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 plastic bags.

         On 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.

         Through 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.

         On June 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.

         II. Discussion

         In 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 citations omitted).

         Asghedom 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.

         Claims 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.

         In 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. at 690.

         Where a 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 692.

         A. Alleged failure to call defense witnesses or hire a fingerprint expert

         Asghedom's 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 reasons.

         First, 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).

         Second, to the extent that Ms. Briles, an experienced trial attorney, was involved in any decision regarding whether or not to call a witness, [1] 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).

         These 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, [2] 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.

         In any 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 choices:

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 Cir. 2014).

         Here, 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.

         For the foregoing reasons, Asghedom is not due to relief on his first claim of ineffective assistance of counsel.

         B. Alleged failure to allow Asghedom to testify in his own defense

         Asghedom's 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 ...

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