UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
) UNITED STATES OF AMERICA, ) ) v. ) Criminal Action No. 04-344 (RWR) ) CARROLL WASHINGTON, ) ) Defendant. ) )
MEMORANDUM OPINION AND ORDER
Defendant Carroll Washington (also known as Wayne Watson)
was sentenced in 2006 after a jury found him guilty of unlawful
possession of a firearm and ammunition by a felon, in violation
of 18 U.S.C. § 922(g)(1), and unlawful possession with intent to
distribute ecstacy, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(C). He has now filed a motion to vacate his conviction
under 28 U.S.C. § 2255 and a motion to appoint counsel. Because
the interests of justice do not require appointment of counsel
under the circumstances presented here, the defendant’s motion to
appoint counsel will be denied.
BACKGROUND
In 2004, Metropolitan Police Department Officer Teixiera and
another officer stopped Washington’s car and searched it. The
officers found a weapon under the floormat of the driver’s seat
and a bag with suspected ecstacy inside the car. United States
v. Watson, 391 F. Supp. 2d 89, 90 (D.D.C. 2005). Washington was
charged in a three-count indictment with being a felon in - 2 -
possession of a firearm and ammunition, possessing with intent to
distribute ecstacy, and using, carrying, and possessing a firearm
during a drug trafficking offense. Washington moved to suppress
the physical evidence recovered during the stop. The motion was
denied upon a finding that there was probable cause for the
officers to conduct a traffic stop and reasonable suspicion to
conduct a limited search for weapons. New counsel was appointed
and moved to reopen the suppression hearing. That motion was
also denied. Id. at 95. A jury found Washington guilty of the
felon in possession of a firearm and ammunition charge and the
ecstacy charge. Washington appealed his conviction on the sole
ground that the search of his car violated the Fourth Amendment,
and the D.C. Circuit affirmed his conviction. United States v.
Washington, 559 F.3d 573, 576, 578 (D.C. Cir. 2009). Washington
now moves to vacate his conviction under 28 U.S.C. § 2255,
arguing that Officer Teixiera coerced his confession and that he
received ineffective assistance of counsel from his two
attorneys, Jonathan Jeffress and Jennifer Wicks. (Mot. to
Vacate, Dkt. # 122 at 5-6.) He has also moved to appoint counsel
to assist him in pursuing his claims.
DISCUSSION
There is no constitutional right to appointment of counsel
in habeas proceedings. Brown v. Cameron, 353 F.2d 835, 836, n.1
(D.C. Cir. 1965). However, a court may appoint counsel for a - 3 -
§ 2255 petitioner if the interests of justice so require. 28
U.S.C. § 2255(g); 18 U.S.C. § 3006A(a)(2); see also In re
Kirkland, No. 01-3010, 2001 WL 476183, at *1 (D.C. Cir. Apr. 13,
2001) (denying appointment of counsel in a § 2255 case because
the “interests of justice [did] not warrant appointment of
counsel”). To determine whether appointing counsel is in the
interests of justice, a court must consider 1) the petitioner’s
likelihood of success on the merits, 2) the ability of the
petitioner to articulate his claims pro se in light of the
complexity of the legal issues involved, and 3) the factual
complexity of the case and whether the petitioner has the ability
to investigate undeveloped facts. See United States v. Waite,
382 F. Supp. 2d 1, 2 (D.D.C. 2005) (noting that the D.C. Circuit
has not interpreted the interests of justice standard in the
context of a § 2255 petitioner and surveying other circuits’
approaches); see also United States v. Campbell, Criminal Action
No. 92-213 (TFH), 2006 WL 997827, at *2 (D.D.C. Apr. 17, 2006).
A petitioner is unlikely to succeed on the merits if he has
raised previously and unsuccessfully identical claims. Engberg
v. Wyoming, 265 F.3d 1109, 1122 (10th Cir. 2001).
Washington is unlikely to succeed on the merits of his
claims. Any argument that Officer Teixiera coerced Washington’s
confession is likely procedurally barred, as Washington could
have raised this issue at trial or on direct appeal but failed to - 4 -
do so. See Hodges v. United States, 282 F.2d 858, 863 (D.C. Cir.
1960) (stating that while “a conviction by the use of a coerced
confession rests upon fundamental error[,] [t]he usual way to
seek correction is by appealing from the conviction[,]” and
failure to take that course typically precludes a collateral
attack on that basis). Washington’s arguments that he received
ineffective assistance of counsel because Jeffress failed to make
a suitable record or to impeach adequately Officer Teixiera at
the suppression hearing are unlikely to succeed on the merits
since those arguments already have been rejected. See Watson,
391 F. Supp. 2d at 94-95 (rejecting Washington’s argument that
Jeffress’ strategic choices reflected ineffectiveness and noting
that no additional cross examination could have changed the
Court’s conclusion that Officer Teixiera’s testimony was credible
with respect to the facts that justified the search of
Washington’s car). Finally, Washington’s argument that he
received ineffective assistance of counsel because Wicks failed
to call Officer Teixeira at trial to impeach his credibility is
unlikely to succeed on the merits. Washington has made no
plausible factual showing supporting his conjecture about
successful impeachment or demonstrating that such testimony would
have had any effect on the admissibility of the firearm and
ecstacy discovered during the search. See Washington, 559 F.3d
at 575 (concluding that the search of Washington’s car did not - 5 -
violate the Fourth Amendment). Washington is therefore unlikely
to be able to show that he suffered prejudice from Wicks’ failure
to call Officer Teixiera. See Strickland v. Washington, 466 U.S.
688, 694 (1984) (holding that to succeed on an ineffective
assistance of counsel claim, “[t]he defendant must show that
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different”).
Nor does Washington’s motion allege that any further fact
investigation is necessary. And, even if the absence of
citations to legal authority in Washington’s standard § 2255 form
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
) UNITED STATES OF AMERICA, ) ) v. ) Criminal Action No. 04-344 (RWR) ) CARROLL WASHINGTON, ) ) Defendant. ) )
MEMORANDUM OPINION AND ORDER
Defendant Carroll Washington (also known as Wayne Watson)
was sentenced in 2006 after a jury found him guilty of unlawful
possession of a firearm and ammunition by a felon, in violation
of 18 U.S.C. § 922(g)(1), and unlawful possession with intent to
distribute ecstacy, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(C). He has now filed a motion to vacate his conviction
under 28 U.S.C. § 2255 and a motion to appoint counsel. Because
the interests of justice do not require appointment of counsel
under the circumstances presented here, the defendant’s motion to
appoint counsel will be denied.
BACKGROUND
In 2004, Metropolitan Police Department Officer Teixiera and
another officer stopped Washington’s car and searched it. The
officers found a weapon under the floormat of the driver’s seat
and a bag with suspected ecstacy inside the car. United States
v. Watson, 391 F. Supp. 2d 89, 90 (D.D.C. 2005). Washington was
charged in a three-count indictment with being a felon in - 2 -
possession of a firearm and ammunition, possessing with intent to
distribute ecstacy, and using, carrying, and possessing a firearm
during a drug trafficking offense. Washington moved to suppress
the physical evidence recovered during the stop. The motion was
denied upon a finding that there was probable cause for the
officers to conduct a traffic stop and reasonable suspicion to
conduct a limited search for weapons. New counsel was appointed
and moved to reopen the suppression hearing. That motion was
also denied. Id. at 95. A jury found Washington guilty of the
felon in possession of a firearm and ammunition charge and the
ecstacy charge. Washington appealed his conviction on the sole
ground that the search of his car violated the Fourth Amendment,
and the D.C. Circuit affirmed his conviction. United States v.
Washington, 559 F.3d 573, 576, 578 (D.C. Cir. 2009). Washington
now moves to vacate his conviction under 28 U.S.C. § 2255,
arguing that Officer Teixiera coerced his confession and that he
received ineffective assistance of counsel from his two
attorneys, Jonathan Jeffress and Jennifer Wicks. (Mot. to
Vacate, Dkt. # 122 at 5-6.) He has also moved to appoint counsel
to assist him in pursuing his claims.
DISCUSSION
There is no constitutional right to appointment of counsel
in habeas proceedings. Brown v. Cameron, 353 F.2d 835, 836, n.1
(D.C. Cir. 1965). However, a court may appoint counsel for a - 3 -
§ 2255 petitioner if the interests of justice so require. 28
U.S.C. § 2255(g); 18 U.S.C. § 3006A(a)(2); see also In re
Kirkland, No. 01-3010, 2001 WL 476183, at *1 (D.C. Cir. Apr. 13,
2001) (denying appointment of counsel in a § 2255 case because
the “interests of justice [did] not warrant appointment of
counsel”). To determine whether appointing counsel is in the
interests of justice, a court must consider 1) the petitioner’s
likelihood of success on the merits, 2) the ability of the
petitioner to articulate his claims pro se in light of the
complexity of the legal issues involved, and 3) the factual
complexity of the case and whether the petitioner has the ability
to investigate undeveloped facts. See United States v. Waite,
382 F. Supp. 2d 1, 2 (D.D.C. 2005) (noting that the D.C. Circuit
has not interpreted the interests of justice standard in the
context of a § 2255 petitioner and surveying other circuits’
approaches); see also United States v. Campbell, Criminal Action
No. 92-213 (TFH), 2006 WL 997827, at *2 (D.D.C. Apr. 17, 2006).
A petitioner is unlikely to succeed on the merits if he has
raised previously and unsuccessfully identical claims. Engberg
v. Wyoming, 265 F.3d 1109, 1122 (10th Cir. 2001).
Washington is unlikely to succeed on the merits of his
claims. Any argument that Officer Teixiera coerced Washington’s
confession is likely procedurally barred, as Washington could
have raised this issue at trial or on direct appeal but failed to - 4 -
do so. See Hodges v. United States, 282 F.2d 858, 863 (D.C. Cir.
1960) (stating that while “a conviction by the use of a coerced
confession rests upon fundamental error[,] [t]he usual way to
seek correction is by appealing from the conviction[,]” and
failure to take that course typically precludes a collateral
attack on that basis). Washington’s arguments that he received
ineffective assistance of counsel because Jeffress failed to make
a suitable record or to impeach adequately Officer Teixiera at
the suppression hearing are unlikely to succeed on the merits
since those arguments already have been rejected. See Watson,
391 F. Supp. 2d at 94-95 (rejecting Washington’s argument that
Jeffress’ strategic choices reflected ineffectiveness and noting
that no additional cross examination could have changed the
Court’s conclusion that Officer Teixiera’s testimony was credible
with respect to the facts that justified the search of
Washington’s car). Finally, Washington’s argument that he
received ineffective assistance of counsel because Wicks failed
to call Officer Teixeira at trial to impeach his credibility is
unlikely to succeed on the merits. Washington has made no
plausible factual showing supporting his conjecture about
successful impeachment or demonstrating that such testimony would
have had any effect on the admissibility of the firearm and
ecstacy discovered during the search. See Washington, 559 F.3d
at 575 (concluding that the search of Washington’s car did not - 5 -
violate the Fourth Amendment). Washington is therefore unlikely
to be able to show that he suffered prejudice from Wicks’ failure
to call Officer Teixiera. See Strickland v. Washington, 466 U.S.
688, 694 (1984) (holding that to succeed on an ineffective
assistance of counsel claim, “[t]he defendant must show that
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different”).
Nor does Washington’s motion allege that any further fact
investigation is necessary. And, even if the absence of
citations to legal authority in Washington’s standard § 2255 form
suggests that aid articulating his legal claims might assist him,
cf. Waite, 382 F. Supp. 2d at 2 (noting that the defendant was a
college graduate and that her § 2255 motion cited legal authority
and articulated lucidly supporting arguments for her claim), the
other factors weigh against appointing counsel here. The
interests of justice do not require appointment of counsel under
the circumstances. See 18 U.S.C. § 3006A(a)(2).
CONCLUSION AND ORDER
Because the interests of justice do not warrant appointment
of counsel to assist petitioner in filing a § 2255 motion, it is
hereby
ORDERED that the defendant’s motion [124] for appointment of
counsel be, and hereby is, DENIED. It is further - 6 -
ORDERED that the government file by June 6, 2011 a response
to the defendant’s § 2255 motion.
SIGNED this 5th day of May, 2011.
__________/s/_______________ RICHARD W. ROBERTS United States District Judge