United States District Court, E.D. Virginia, Richmond Division
John A. Gibney, Jr. United States District Judge
Waiter Brooks, a federal inmate proceeding pro se, submitted this motion under 28 U.S.C. §2255 to vacate, set aside, or correct his sentence ('*§ 2255 Motion, " ECF No. 98).
Brooks contends that he experienced ineffective assistance of counsel and prosecutorial misconduct in conjunction with his trial and sentencing. Specifically, Brooks demands relief because:
Claim One: "[(a)] Counsel did not impeach the government witnesses that falsely testified at trial, [(b)] neither did counsel have the motion of discovery of evidence investigated, which gave rise to the grand jury's indictment, [(c)] Counsel did not prepare any kind of sound trial strategy on the defendant's behalf." (§ 2255 Mot. 4.)
Claim Two: "Counsel failed to do a thorough investigation of my case period. Instead, all counsel did was request for me to take a plea bargain, or make a plea with the Government. Counsel did not interview any witnesses or co-defendants or the first people the CSI reported it to, because the investigation was not about Brooks it was about someone else." (Id.)
Claim Three: "[(a)] Counsel didn't challenge the drug seizure or chain of custody during the defendant's trial. Drugs had tested at 95% uncertain, plus contained cotton, two brown powder substances and one rock substance, [(b)] Counsel allowed prosecution to show false photocopies of one package of drugs to the jury that wasn't turned over to the defendant during the discovery. The lab report states that there were three packages I don't know where the DA got their evidence." (Id. at 4-5.)
Claim Four: "[(a)] DA Young deliberately showed the juries misleading drug photo evidence against defendant to obtain a conviction. The only photo evidence of the seized drugs from Jackson given to the defendant was from the initial arrest. The pictures that the defendant was given only show a napkin in an ashtray and paper trash bag. [(b)] Counsel failed to subpoena my witnesses whose names I gave her. She informed me that she could get in touch with them but never did." (Id. at 5.)
Claim Five: "Counsel never challenged the defendant's false arrest, the defendant should have had an extradition hearing. The defendant was taken from Washington D.C. at gun point to Virginia against his will." (Id. at 7.)
Claim Six: "[(a)] Trial counsel was ineffective for not challenging the sufficiency of the Indictment 1 to 22, Number 21 was missing making the Indictment flawed, [(b)] as well as Agent Larry Lidsky giving hearsay testimony from Keif Jackson to the grand jury [(c)] along with falsifying drug evidence along with Nysha Jackson's grand jury testimony especially after Nysha admitted she lied doing the investigation report, concurring meeting Brooks take [sic]." (Id.)
Claim Seven: "Counsel failed to expose the lies by the witnesses to the jury with all the witnesses' investigation reports." (Id.)
Claim Eight: "Counsel violated attorney client privilege at the hearing on April 9th, 2012, when counsel stated that the defendant lied to him concerning the case." (Id.)
Claim Nine: "Counsel failed to report in August 2012 that Agent Larry Lidsky along with four FBI agents and both Captains of Northern Neck Regional Jail, Captain Turner, & Captain Hinkle, searched the defendant's cell as well as an inmate by the name of Lawson taking all of the defendant's legal documents in connection to his case so that the defendant could not properly prepare an adequate defense." (Id.)
Claim Ten: "[(a)] Counsel didn't challenge defendant's Pre-Sentence Report nor objected to defendant's role in the offense from the spring of 2008, and September 2008. When documented government evidence disputes that claim. Nor did counsel object to the points I received for the role or managing Nysha Jackson, [(b)] Nor did counsel object to the wrong code on the work sheet, [(c)] Nor did counsel object to defendant's bribery. When Jackson stated he refused Brooks's and Bushrod's offer. Then two years later after he was smuggling he approached Brooks, [(d)] Counsel failed to challenge the drugs transaction connection to the defendant, when the lab actual drug amount was (0.31 g) when 95% was uncertain and it contained caffeine. In all reality, the total weight of the actual drugs during the 6 transactions would be well under 5 grams total. Therefore placing defendant's points under 12." (Id.)
Claim Eleven: "Counsel's abuse of discretion was clear when he never came to see the defendant and filed the defendant's appeal brief after defendant told counsel not to file it. Counsel filed a brief without the consent of the defendant and neither did the defendant get a chance to review it." (Id. at 8.)
Claim Twelve: "Counsel failed to challenge defendant not being properly identified and the right to choose what law of venue that he would like to be represented under, thus his conviction is unconstitutional and the plaintiffs are in clear violation of the United States of America 8th and 14th Amendments by not giving the defendant equal protection of the law." (Id.)
The Government has responded, asserting that Brooks's claims lack merit. (ECF No. 108.)
Brooks has filed a reply. (ECF No. 110.) Brooks has also filed a Petition to Supplement his § 2255 Motion with two additional claims, which the Court will construe as a Motion to Amend. (Mot. Amend, ECF No. 109.) The Court will GRANT the Motion to Amend and consider the merits of the following two claims:
Claim Thirteen: "Prosecutor was extremely deficient in [his] performance by failing to investigate each and every alleged detail with substance to ensure a fair court proceeding. And [he] failed to investigate code, statutes, and titles to ascertain its validity. He charged the petitioner under a nonexistent title such as Title 21. Title 21 did not proceed through the proper channel such as the Senate and the House of Representatives to attain approval from Congress. Title 21 was fabricated by the Executive Branch of Government. The Executive Branch does not have legislative power to enact unicameral legislation. The President of the United States of America did not certify or ratify this document; therefore, Title 21 is invalid and unconstitutional. Prosecutor decided to charge, indict, and convict petitioner under a noncongressional title which deprives Petitioner of his liberty interest rights." (Id. at 1-2.)
Claim Fourteen: "The Judge gave the jury misinstruction regarding the drug quantity because the lab report was uncertain." (Id. at 2.)
As explained further below, Brooks's claims are conclusory and entirely lacking in merit.
I. PROCEDURAL HISTORY
On February 7, 2012, a grand jury charged Brooks with conspiracy (Count One), conspiracy to distribute and to possess with intent to distribute heroin (Count Two), five counts of providing contraband in prison (Counts Three through Seven), and three counts of use of a communication facility to commit a felony (Counts Eight through Ten). (Superseding Indictment 1-10, ECF No. 25.) On April 12. 2012, a jury found Brooks guilty of all ten counts of the Superseding Indictment. (ECF No. 55.)
On September 13, 2012, the Court entered judgment against Brooks and sentenced him to a total of 240 months of imprisonment. (J. 3, ECF No. 81, ) The United States Court of Appeals for the Fourth Circuit affirmed this Court's judgment. United States v.Brooks, 523 F.App'x 992, 996 (4th Cir. ...