United States District Court, E.D. Virginia, Alexandria Division
O' Grady United States District Judge.
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
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.
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
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.
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).
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.
Ineffective Assistance of Counsel - Objections During
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).
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.
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 ...