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Reese v. United States

United States District Court, E.D. Virginia, Alexandria Division

June 16, 2017

Lance Terrell Reese, Petitioner,
v.
United States of America Respondent. Civil Action No. 1:17-cv-248

          MEMORANDUM OPINION

          Liam O' Grady United States District Judge.

         This matter comes before the Court on Petitioner's Motion under 28 U.S.C. § 2255 to set aside or correct his sentence. (Dkt.No. 161). Petitioner alleges that his trial counsel provided ineffective assistance by failing to object to statements made by the Court during trial and failing to seek the recusal of the presiding judge. Petitioner also submits that the prosecution engaged in misconduct by vouching for a witness. Petitioner contends that these infirmities prejudiced him and warrant a correction to his sentence. For the reasons discussed below, the Court DENIES the Motion.

         I. Background

         On June 18, 2015, following a four-day jury trial, Petitioner was convicted of one count of conspiracy to commit arson in and affecting interstate commerce and one count of arson of the same in violation of 18 U.S.C, § 844(n) and §§ 844(i) and 2, respectively. Dkt. No. 64-65. Following the conviction, Petitioner moved to adopt his co-defendant's motion for a new trial, alleging that statements made by the Court during the trial had unduly influenced the jury. Dkt. No. 109-110. The court denied Petitioner's motion to adopt, Dkt. No. 127, and also denied the co-defendants motion for a new trial. Dkt. No. 140. In an order issued on October 6, 2015, the Court held that its comments during trial did not deny the defendants a fair trial. Id.

         Petitioner and his co-defendant appealed their convictions to the Fourth Circuit Court of Appeals. Petitioner argued before the Court of Appeals that this Court's comments during trial denied him a fair trial. The Court of Appeals affirmed Petitioner's conviction and that of his co-defendant. United States v. Reese, 659 F.App'x 741 (4th Cir. 2016) cert, denied, No. 16-8708, 2017 WL 1365780 (May 15, 2017). The Court of Appeals found that this Court's comments during trial "simply fulfill[ed] its obligation to clarify confused factual issues or misunderstandings [and] to correct inadequacies of examination or cross-examination." Id. (brackets in original) (quoting United States v. Castner, 50 F.3d 1267, 1273 (4th Cir. 1995)). The Court of Appeals also noted that this Court provided numerous instructions to the jury reminding them to rely on their own recollections instead of the observations of the judge or the lawyers. Id. at 743-44. The Court of Appeals found that these repeated instructions overcame any claim of prejudice based on the "court's isolated statements." Id.

         Following the decision of the Court of Appeals, Petitioner filed the instant motion, pro se, for relief pursuant to 28 U.S.C. §2255. Dkt. No. 161. The Court ordered the Government to respond to the motion. Dkt. No. 164. The Government has responded to the motion. Dkt. No. 166. Petitioner has filed a reply brief. Dkt. No. 170.

         II. Legal Standard

         A petitioner is entitled to relief under 28 U.S.C. § 2255 only in the extraordinary event that he demonstrates either: (!) a lack of jurisdiction by the convicting court; (2) constitutional error; or (3) legal error so grave as to belfa fundamental defect which inherently results in a complete miscarriage of justice." United States v. Addonizio, 442 U.S. 178, 185 (1979) (citing 28 U.S.C. § 2255). The petitioner bears the burden of proving his grounds for relief by a preponderance of the evidence. SeeJacobsv. United States, 350 F.2d 571, 574 (4th Cir. 1965). It is welt settled that bare, conclusory allegations are insufficient to entitle a petitioner to relief under § 2255. See, e.g., United States v. Dyess, 730 F.3d 354, 360 (4th Cir. 2013), cert, denied, 135S.Q. 47(2014).

         III. Discussion

         Petitioner raises three grounds for correction to his sentence. First, he alleges that his counsel was ineffective for failing to object to comments made by the Court during the trial. Second, Petitioner argues that his lawyer was ineffective for failing to move the Court to recuse itself due to a conflict of interest. Third, Petitioner submits that the prosecutors in the case engaged in misconduct by "vouching" for a witness. The Court addresses these claims in turn.

         A. Ineffective Assistance of Counsel - Objections During Trial

         A claim of ineffective assistance of counsel may properly be asserted for the first time in a § 2255 petition. See United States v. DeFusco, 949 F.2d 114, 120-21 (4th Cir. 1991). ''To sustain [a] § 2255 Motion based on ineffective assistance of counsel, [Petitioner] must satisfy the two-part test set forth in Strickland v. Washington, 466 U.S. 668 (1984)." United States v. Coles, No. 1:11CR512 LMB, 2013 WL 1947259, at *2 (E.D. Va. May 9, 2013). To satisfy the first part of the Strickland test, petitioner must establish that counsel failed to provide reasonably effective assistance, that is, the counsel's conduct fell below an objective standard of reasonableness in light of the circumstances at the time. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Second, petitioner must "show that there is a reasonable probability that, but for the counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. Importantly, a court need not review the reasonableness of counsel's performance if the petitioner fails to show prejudice. Quesinberry v. Taylor, 162 F.3d 273, 278 (4th Cir. 1998)(citing Strickland, 466 U.S. at 697).

         Petitioner points to five statements made by the Court over the course of the four-day trial to which his counsel did not object and which Petitioner contends prejudiced him in the disposition of the case. Three of the alleged statements occurred in front of the jury. First, during the testimony of a government witness, Horace Thompson, the Court commented on a cross-examination question by Petitioner's counsel before the witness responded. Second, the Court instructed Petitioner's counsel during closing arguments to confine his presentation to the evidence adduced al trial. Petitioner contends that this statement implied that he bore the burden to present evidence in order to prove his innocence. Third, during the government's rebuttal closing argument, co-defendant's counsel objected to a perceived mischaracterization of the evidence, to which the Court opined that its recollection of the evidence was consistent with the Government's argument. The Court immediately followed this comment with an instruction to the jury that their recollection, not that of the parties or the Court, controls. Petitioner contends that these statements unduly and impermissibly influenced the jury to convict him and his counsel was constitutionally ineffective for failing to object to the statements when they were made.

         The remaining two statements occurred outside of the presence of the jury. First, the Court admonished counsel for the co-defendant for laughing and smirking during direct testimony of a government witness. The Court advised counsel that the conduct was unprofessional and distracting to the jury. Second, the Court commented on the length of Petitioner's counsel's closing argument and the degree to which it exceeded the time he requested. The Court noted that while he did not cut counsel off, other judges in the district may not ...


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