                     UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF COLUMBIA

_____________________________
                              )
UNITED STATES OF AMERICA,     )
                              )
          v.                  )    Criminal Action No. 03-249 (RWR)
                              )
CHARLES KING, JR.,            )
                              )
          Defendant.          )
_____________________________ )

                          MEMORANDUM OPINION

     Petitioner Charles King, Jr. filed an opposed motion to

vacate, set aside, or correct his sentence and judgment under 28

U.S.C. § 2255, and to conduct an evidentiary hearing arguing that

his trial and appellate counsel provided ineffective assistance.

He also moved to have counsel appointed to represent him in

pursuing the § 2255 motion.1    Because the record of this case

shows that King is entitled to no relief and the interests of

justice do not require appointment of counsel, King is not

entitled to an evidentiary hearing and his § 2255 and appointment

of counsel motions will be denied.    King has also moved to amend

his § 2255 motion.    Because King’s claim is time-barred, his

motion to amend will be denied.




     1
        King also wanted counsel to help him pursue his motion
under Federal Rule of Criminal Procedure 41(g) for a return of
property. That Rule 41(g) motion has since been granted, making
moot the argument that help is needed in pursuing the Rule 41(g)
motion.
                                -2-

                            BACKGROUND

      In May 2003, United States Park Police officers stopped King

because he was “operating a vehicle without a front license

plate.”   Presentence Investigation Report (“PSR”) ¶ 4.    During

the stop, the officers noticed that King appeared to be nervous.

The officers asked King to get out of his car and they patted him

down.   The officers also searched King’s car.    The officers

recovered over $7,000 in cash from King’s person and pieces of

cocaine base and a loaded .45 caliber handgun from King’s car.

Id.   King was indicted on two counts.    Count One charged King

with possession with intent to distribute 50 grams or more of

cocaine base in violation of 21 U.S.C. §§ 841(a)(1),

841(b)(1)(A)(iii).   Count Two charged King with using, carrying,

and possessing a firearm during a drug trafficking offense in

violation of 18 U.S.C. § 924(c)(1).

      King entered a plea of not guilty.    His first trial in

October 2003 ended in a mistrial.     His second trial concluded

with the jury finding King guilty on both counts on December 18,

2003.   On July 2, 2004, King was sentenced to imprisonment for

the minimum term of 151 months then required by the U.S.

Sentencing Guidelines on Count One, and a consecutive sentence of

60 months’ imprisonment, the minimum consecutive sentence

required by statute, on Count Two.     Barry Johnson represented

King in both trials and at his sentencing.
                                 -3-

     King filed timely a notice of appeal and, through his

counsel, Frances D’Antuono, filed an appellate brief arguing that

denying King’s motion to suppress the evidence the officers

recovered from the pat down and search of King’s vehicle was an

error.   King further argued that applying mandatory sentencing

guidelines at sentencing was error under United States v. Booker,

543 U.S. 220 (2005).    The D.C. Circuit affirmed King’s conviction

but held that a Booker error had been committed, and remanded the

case to determine whether the error was prejudicial.     United

States v. King, 198 Fed. App’x 11, 12 (D.C. Cir. 2006).     On

remand, this court found that King had been prejudiced by the

Booker error.    On November 13, 2008 King was resentenced to

imprisonment for a term of 121 months on Count One and the

mandatory minimum consecutive term of 60 months’ imprisonment on

Count Two.    Am. Judgment in a Criminal Case at 3.   D’Antuono

represented King on his direct appeal and at his resentencing.

     King filed a pro se motion under 28 U.S.C. § 2255 to be

resentenced on Count One and for his conviction to be vacated or,

alternatively, that he be resentenced on Count Two.     Mem. of Law

in Support of King’s 28 U.S.C. § 2255 (“Pet’r Mem.”) at 11; Am.

28 U.S.C. § 2255 Mot. (“Am. Pet’r Mem.”) at 6.    King contends

that Johnson and D’Antuono were constitutionally ineffective in

three ways.    First, King argues that the government failed to

produce sufficient evidence that the cocaine base recovered from
                                 -4-

King’s vehicle was smokable cocaine as required by United States

v. Brisbane, 367 F.3d 910 (D.C. Cir. 2004).     Pet’r Mem. at 3.

Thus, according to King, Johnson was ineffective by not moving

for a judgment of acquittal and for failing to raise the issue at

sentencing, id. at 4, and D’Antuono was ineffective because she

failed to raise this issue in King’s direct appeal, id. at 11

n.5.   Second, King argues that Count Two in the indictment is

duplicitous.   Id. at 7.   Thus, Johnson was ineffective for not

challenging the indictment, id. at 9, and D’Antuono was

ineffective for not raising this issue on direct appeal, id. at

11 n.5.   Third, King argues that D’Antuono was ineffective at his

resentencing because D’Antuono did not argue that 18 U.S.C.

§ 924(c) does not carry a 5-year minimum mandatory sentence in

King’s case.   Am. Pet’r Mem. at 2.    King also asserts that

§ 924(c) does not allow courts to impose a 5-year minimum

mandatory sentence where the related drug-trafficking offense

carries a higher minimum sentence.     Id. at 3-6, 6 n.5.   The

government opposes, arguing that even if trial and appellate

counsel’s performances were deficient in the three ways that King

alleges, King “cannot show prejudice from his trial and appellate

counsel’s alleged deficiencies because his claims are either

belied by the record or have no legal basis.”     Gov’t Opp’n at 10.

King also filed a motion to amend his § 2255 motion to add a new,

unrelated claim.
                                 -5-

                            DISCUSSION

     In a § 2255 motion, a petitioner can move the sentencing

court to “vacate, set aside or correct the sentence” if “the

sentence was imposed in violation of the Constitution or laws of

the United States, . . . or [if] the sentence was in excess of

the maximum authorized by law[.]”      28 U.S.C. § 2255(a).   The

burden lies on the petitioner to prove the violation by a

preponderance of the evidence.   United States v. Pollard, 602 F.

Supp. 2d 165, 168 (D.D.C. 2009).

     “A judge need not conduct an evidentiary hearing before

denying a petition for relief under § 2255 when ‘the motion and

the files and records of the case conclusively show that the

prisoner is entitled to no relief.’”      United States v. Morrison,

98 F.3d 619, 625 (D.C. Cir. 1996) (quoting 28 U.S.C. § 2255)

(noting that it is within the court’s discretion whether to hold

a hearing when it is the same court that presided over the

petitioner’s criminal proceedings).

I.   MOTION TO AMEND § 2255 MOTION

     In April 2012, King moved to amend his § 2255 motion to

include a claim that his trial counsel provided ineffective

assistance by not fully and adequately explaining the plea the

government offered and the potential consequences of proceeding

to trial.   Mot. to Amend 28 U.S.C. § 2255 Petition ¶¶ 2–4.      King

rejected the plea and was ultimately convicted and sentenced to a
                                -6-

longer period than the plea offer provided for.    Id. ¶¶ 2–5.

King’s motion will be denied because it is untimely.

      Initial § 2255 motions2 are subject to a one-year statute of

limitations.   28 U.S.C. § 2255(f).   The limitation period runs

from the later of:

      (1) the date on which the judgment of conviction becomes
      final; [or]

      . . .

      (3) the date on which the right asserted was initially
      recognized by the Supreme Court, if that right has been
      newly recognized by the Supreme Court and made
      retroactively   applicable  to   cases  on   collateral
      review . . . .

Id.   Here, King’s sentence became final on November 28, 2008,

when the time period for filing a timely appeal expired.    See

Fed. R. App. P. 4(b)(1)(A), 26(a) (2008).    King did not file his

amended § 2255 claim until 2012, more than one year after his

conviction became final.   However, King argues that his amended

claim is not time-barred because it relates to a right newly

recognized by the Supreme Court made retroactively applicable.

Mot. to Amend 28 U.S.C. § 2255 Petition ¶ 15.    Specifically, King

contends that his new claim arises from Lafler v. Cooper, 132 S.

Ct. 1376 (2012), which the Supreme Court decided on March 21,

2012.   Id. ¶¶ 16–17.


     2
       King’s amended motion is an initial motion and not a
second or successive motion. See Littlejohn v. Artuz, 271 F.3d
360, 362 (2d Cir. 2001) (“[M]otions to amend a habeas petition
should not be construed as second or successive petitions.”).
                                 -7-

     The D.C. Circuit has yet to fashion a framework to determine

when or whether the Supreme Court has “newly recognized” a right

under 28 U.S.C. § 2255(f)(3).3   Regardless of the test adopted,

the Supreme Court cannot be said to have “newly recognized” a

right where it is doing no more than applying its preexisting

precedent.   United States v. Hopkins, 268 F.3d 222, 225 (4th Cir.

2001) (“[I]t is axiomatic that a new right cannot be ‘initially

recognized’ when the Court has merely applied its precedent to a

particular factual setting.”); cf. Teague v. Lane, 489 U.S. 288,

301 (1989) (“[A] case announces a new rule if the result was not

dictated by precedent existing at the time the defendant’s

conviction became final.”).

     Lafler did not announce a new right.   In Lafler, the Supreme

Court considered “how to apply Strickland’s prejudice test where


     3
       Teague v. Lane, 489 U.S. 288 (1989), considers the
corresponding provision in 28 U.S.C. § 2254 which allows a state
prisoner to raise a claim even though “the applicant has failed
to develop the factual basis of a claim in State court
proceedings” if the claim relies on “a new rule of constitutional
law, made retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable[.]” 28 U.S.C.
§ 2254(e)(2) (emphasis added). Because that provision is limited
to constitutional claims, it is narrower than the § 2255(f)(3)
newly-recognized-right standard. See United States v. Lopez, 248
F.3d 427, 430–31 (5th Cir. 2001) (holding that § 2255(f)(3)
“comprehends statutory rights as well” as constitutional rights);
United States v. Valdez, 195 F.3d 544, 546 (9th Cir. 1999)
(noting that “under § 2255(3), the right ‘initially recognized’
by the Supreme Court need not be a constitutional one”),
abrogated on other grounds by Dodd v. United States, 545 U.S. 353
(2005). The D.C. Circuit has yet to consider whether, despite
the differences in the statutes, the Teague framework applies to
initial § 2255 motions.
                                  -8-

ineffective assistance results in a rejection of the plea offer

and the defendant is convicted at the ensuing trial.”     Lafler,

132 S. Ct. at 1384.    It is well-established that Strickland v.

Washington, 466 U.S. 668 (1984), laid out the “constitutional

standards for effective assistance of counsel.”     Lafler, 132 S.

Ct. at 1383–84.    To establish Strickland prejudice, “[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.”     Strickland, 466 U.S. at

694.    In Hill v. Lockhart, the Supreme Court held that “the two-

part Strickland v. Washington test applies to challenges to

guilty pleas based on ineffective assistance of counsel.”      Hill

v. Lockhart, 474 U.S. 52, 58 (1985).     In Hill, the Court

explained that in the plea context, the Strickland prejudice

requirement “focuses on whether counsel’s constitutionally

ineffective performance affected the outcome of the plea

process.”    Id. at 59.   Applying Strickland and Hill where

counsel’s deficient performance caused the defendant to reject a

plea offer, the Lafler Court held that to establish prejudice in

this context,

       a defendant must show that but for the ineffective advice
       of counsel there is a reasonable probability that the
       plea offer would have been presented to the court (i.e.,
       that the defendant would have accepted the plea and the
       prosecution would not have withdrawn it in light of
       intervening circumstances), that the court would have
       accepted its terms, and that the conviction or sentence,
       or both, under the offer’s terms would have been less
                                -9-

      severe than under the judgment and sentence that in fact
      were imposed.

Lafler, 132 S. Ct. at 1385.   Because the holding in Lafler was

dictated by Supreme Court precedent, it is not a new right and

King’s motion to amend his § 2255 motion will be denied as

untimely.4

II.   INEFFECTIVE ASSISTANCE OF COUNSEL

      The Sixth Amendment provides criminal defendants the right

to be represented by counsel.   U.S. Const. amend. VI.    Implicit

in this guarantee is that counsel will provide effective

assistance of counsel.   McMann v. Richardson, 397 U.S. 759, 771

n.14 (1970) (“[T]he right to counsel is the right to the

effective assistance of counsel.”).   To establish that

representation was constitutionally deficient, King must show

(1) that counsel’s representation fell below an objective

standard of reasonableness, and (2) that there is a reasonable

probability that, but for counsel’s errors, the result of the

proceeding would have been different.     Strickland, 466 U.S. at

687–88.   The two-part Strickland test also applies to challenges

of ineffective assistance of appellate counsel.     Smith v.

Robbins, 528 U.S. 259, 285 (2000); United States v. Agramonte,

366 F. Supp. 2d 83, 86 (D.D.C. 2005).



     4
       Cf. In re Perez, 682 F.3d 930, 932-34 (11th Cir. 2012)
(holding that Lafler v. Cooper did not announce a new rule of
constitutional law under 28 U.S.C. § 2255(h)).
                                -10-

     To establish the performance prong, the petitioner must show

that counsel did not provide reasonable service under the

“prevailing professional norms” given the circumstances.

Strickland, 466 U.S. at 688.    Prevailing professional norms are

demonstrated by reference to “an attorney’s ethical duties,

including those which require counsel to bring skill and

knowledge to the case and to provide zealous representation.”

Best v. Drew, Criminal Action No. 01-262 (RWR), 2006 WL 2035652,

at *3 (D.D.C. July 18, 2006).    In determining whether counsel’s

representation fell below an objective standard of

reasonableness, “every effort [must] be made to eliminate the

distorting effects of hindsight[.]”    Strickland, 466 U.S. at 689.

“[A] court must indulge a strong presumption that counsel’s

conduct falls within the wide range of reasonable professional

assistance . . . [since] [e]ven the best criminal defense

attorneys would not defend a particular client in the same way.”

Id. at 689; accord id. (“Judicial scrutiny of counsel’s

performance must be highly deferential.”).    To establish that

appellate counsel was incompetent in not raising a particular

issue on direct appeal, “a defendant fights a particularly

difficult battle, as he bears the burden of ‘showing that a

particular nonfrivolous issue was clearly stronger than issues

that counsel did present.’”    United States v. Brisbane, 729 F.

Supp. 2d 99, 118 (D.D.C. 2010) (quoting Smith, 528 U.S. at 288).
                               -11-

     As to the prejudice prong, the petitioner must “show that

there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have

been different.”   Strickland, 466 U.S. at 694.    In the trial

context, the defendant must show that “counsel’s errors were so

serious as to deprive the defendant of a fair trial, a trial

whose result is reliable.”   Id. at 687.    In the sentencing

context, the defendant may establish prejudice by showing that

there is a reasonable probability that counsel’s errors caused an

increase in the defendant’s sentence.     See Glover v. United

States, 531 U.S. 198, 203–04 (2001).

     Courts have discretion to order their analysis of the two

prongs and resolve an ineffective assistance of counsel claim on

the basis of lack prejudice to the petitioner without examining

counsel’s performance under the first prong.     Strickland, 466

U.S. at 697.

     A.   Failure to raise Brisbane issue

     According to King, Brisbane, 367 F.3d 910, required the

government to prove that King possessed smokable cocaine or crack

cocaine to meet its burden to prove that King violated 21 U.S.C.

§ 841(b)(1)(A)(iii).   Pet’r Mem. at 4.    King argues that the

government did not prove that the cocaine base recovered from his

vehicle was crack cocaine and that trial counsel was ineffective

because he did not move for judgment of an acquittal under
                                -12-

Federal Rule of Criminal Procedure 29 on this ground and did not

object to King being sentenced under § 841(b)(1)(A)(iii).      Id. at

4, 6.   King also asserts that appellate counsel rendered

ineffective assistance of counsel by failing to raise this

argument in King’s direct appeal.      Id. at 11 n.5.   King asserts

that he was prejudiced by counsel’s deficient performances

because it would have likely been found that Brisbane required

that the government prove that the recovered cocaine base was

either smokable cocaine or crack cocaine.      Id. at 6-7.   Had the

government not met this burden, King argues, his statutory

sentencing range and his sentencing guidelines range would have

been lower.   Id.   The government counters that even if counsel’s

performances were deficient, the government “presented more than

sufficient evidence” at trial that King possessed crack cocaine.

Gov’t Opp’n at 14.   As such, the government maintains, King

cannot show that he was prejudiced.      Id.

     Brisbane was decided on May 11, 2004 -- five months after

King was convicted and two months before King was sentenced.

When King was standing trial in 2003, Rule 29 provided that a

motion for a judgment of acquittal may be filed in two instances.

First, the defense may move for a judgment of acquittal before

the offense is submitted to the jury.      Fed. R. Crim. P. 29(a)

(2003).   Second, the defense may move for a judgment of acquittal

“within 7 days after a guilty verdict or after the court
                                -13-

discharges the jury, whichever is later[.]”     Fed. R. Crim. P.

29(c)(1) (2003).   Brisbane was decided after December 30, 2003 --

the latest time that Johnson would have been able to file a Rule

29 motion.   Id.; Fed. R. Crim. P. 45(a).    Thus, Johnson was not

deficient in not raising this issue as grounds for a judgment of

acquittal.

     In Brisbane, the D.C. Circuit examined the definition of

“cocaine base” as used in 21 U.S.C. § 841.     George Brisbane was

convicted by a jury of distributing five or more grams of cocaine

base in violation of § 841.    367 F.3d at 910–11.   After the

government rested, Brisbane filed a motion for a judgment of

acquittal arguing that “cocaine base” in § 841 means only crack

cocaine and “that the government had not proven [that] the

substance [he distributed] was crack as alleged in the

indictment.”   Id. at 912.   The district court agreed that the

government had not proven that the substance was crack but held

that the government had still proven that Brisbane possessed

“cocaine base” in violation of § 841 because cocaine base refers

to more than just crack cocaine.    Id.   Brisbane appealed.   The

court of appeals acknowledged that “cocaine base” in § 841 is

ambiguous.   Id. at 913.   After considering the possible

interpretations of “cocaine base,” the D.C. Circuit held that to

convict a defendant of violating § 841 under a provision devoted

to “cocaine base,” the government must prove that the substance
                                  -14-

is a smokable form of cocaine, such as crack cocaine.        Id. at

913-14.5

     King suffered Strickland prejudice if there is a reasonable

probability that King’s objection to being sentenced under 21

U.S.C. § 841(b)(1)(A)(iii) would have been sustained or the court

of appeals would have vacated King’s conviction.        At trial, the

government presented evidence that the substance recovered from

King’s vehicle was crack cocaine.        Specifically, Officer

Adamchik, the arresting officer, testified that:

     [The substance found in King’s car] almost looked like
     the inside of orange peels, a real white color. . . . It
     was big chunks of something. . . . I saw clear plastic
     baggies with white chunks inside of it. That definitely
     appeared to be crack cocaine to me[.]

12/10/03 Tr. at 54, 67, 78.      Adamchik also referred to the

substance as “crack cocaine” and described it as an “off white

rock like substance” on the form he submitted with the substance

to the Drug Enforcement Agency for analysis (i.e., a “DEA-7

form”).    Gov’t Opp’n, Ex. 1.    Also, King stipulated to the

admission of a report by Charles Matkovich, a forensic chemist,

identifying the “active drug ingredient” in the substance as

“cocaine base.”    Id. at 15, Ex. 1.      Finally, Detective Tyrone

Thomas, the government’s narcotics trafficking expert, viewed the

substance and testified that in his opinion, it was “wholesale

     5
       The Supreme Court has since held that “the term ‘cocaine
base’ as used in § 841(b)(1) means not just ‘crack cocaine,’ but
cocaine in its chemically basic form.” DePierre v. United
States, 131 S. Ct. 2225, 2237 (2011).
                                 -15-

quantities of crack cocaine.”    12/11/03 Tr. at 51-54.   Detective

Thomas also offered general testimony that crack cocaine

       can be placed into a smoking device and smoked, heated,
       burnt, and the fumes would be smoked just like in a
       cigarette form, and that causes a more instant high; it
       causes a more addictive high, and it required less of the
       product itself to create this high that these drug users
       are seeking.

Id. at 45-46.

       King argues that Officer Adamchik’s testimony and the DEA-7

form are insufficient to show that the substance was crack

cocaine.    King also objects to Detective Thomas’s testimony

because Detective Thomas “was never involved in this case” and

“apparently saw the cocaine base for the first time at trial and

was only able to identify the substance in a seal-tamper proof

evidence bag because of the DEA-7 report.”     Pet’r Mem. at 5, 5

n.1.    Of course, the time to object to the admissibility of this

evidence is long past.    See Scott v. United States, 317 F.2d 908,

908 (D.C. Cir. 1963) (per curiam) (“‘[O]bjection to the

admissibility of evidence should be made at the time it is

offered and the grounds therefor stated.’” (quoting Fuller v.

United States, 288 F. 442, 445 (D.C. Cir. 1923)).     Moreover, King

does not substantiate his claim that Detective Thomas had no

basis for his identification that the substance was crack

cocaine.

       In United States v. Eli, 379 F.3d 1016 (D.C. Cir. 2004) -- a

post-Brisbane case -- the D.C. Circuit upheld a district court’s
                               -16-

finding that the government had proven that the substance at

issue was crack cocaine.   Eli pled guilty to distributing 50

grams or more of cocaine base in violation 21 U.S.C.

§ 841(b)(1)(A)(iii).   Id. at 1017.   After being sentenced to 121

months’ imprisonment, Eli filed a motion under 28 U.S.C. § 2255

claiming that his defense counsel was constitutionally

ineffective because counsel had not disputed that the substance

Eli distributed was crack cocaine.     Id. at 1017–18.   The

district court conducted an evidentiary hearing and found that

Eli had distributed crack cocaine “beyond a reasonable doubt.”

Id. at 1018.   On appeal, the D.C. Circuit held that the district

court’s finding that the substance was crack cocaine was well

supported by the following evidence:

     First, the government chemist testified, and Eli did not
     dispute, that Eli’s drugs tested positive for cocaine
     base. Second, both the Drug Enforcement Agency’s (DEA’s)
     lab report and the U.S. Probation Office’s Presentence
     Investigation Report (to which Eli acceded) stated that
     the drugs recovered in the sales were “rock-like.”
     Third, the chemist indicated that the drugs were
     smokable.   Finally, he concluded that the drugs were
     properly identified as crack cocaine.

Id. at 1021 (internal citations omitted).

     The evidence here is similar.    As in Eli, the chemist’s

report here identified the substance as cocaine base.     The DEA-7

form identified the drugs as rock like.    Here, Officer Adamchik

also testified that the substance was in “chunks.”    Detective

Thomas testified that the substance was smokable and he offered
                               -17-

his opinion that the substance was crack cocaine.   Accordingly,

based on the record, King has not met his burden of showing that

there is a reasonable probability that but for his counsel’s

alleged deficient performance in not challenging his conviction

and sentencing under 21 U.S.C. § 841(b)(1)(A)(iii), his sentence

would have been different or his conviction would have been

overturned.

     B.   Failure to object to Count Two as duplicitous

     In Count Two of the indictment, the grand jury charged King

with violating 18 U.S.C. § 924(c) as follows:

     On or about May 17, 2003, within the District of
     Columbia, CHARLES KING, JR., did unlawfully and knowingly
     use, and carry during and in relation to, and possess in
     furtherance of, a drug trafficking offense, for which he
     may be prosecuted in a court of the United States, that
     is Count One of this Indictment which is incorporated
     herein, a firearm, that is, a Llama .45 caliber semi-
     automatic pistol.

Indictment 1-2.

     Although the count follows the statutory language, King

argues that Count Two is duplicitous because § 924(c)

criminalizes at least two separate offenses: (1) using or

carrying a firearm during and in relation to a drug trafficking

crime, and (2) possessing a firearm in furtherance of a drug

trafficking crime.   Pet’r Mem. at 8.   King contends that Johnson

was ineffective because he did not move to dismiss Count Two as

duplicitous and D’Antuono was ineffective because she did not

raise this issue in King’s direct appeal.   Id. at 7-9, 11 n.5.
                                 -18-

     Federal Rule of Criminal Procedure 12(b)(3) states that “a

motion alleging a defect in the indictment” “must be raised

before trial[.]”   Fed. R. Crim. P. 12(b)(3) (2003).   Thus, King’s

appellate counsel was not deficient because she likely could not

have raised this issue in King’s direct appeal.

     “Duplicity is the joining in a single count of two or more

distinct and separate offenses.”    United States v. Hubbell, 177

F.3d 11, 14 (D.C. Cir. 1999).    “It is well established that if a

criminal statute disjunctively lists multiple acts which

constitute violations, ‘the prosecution may in a single count of

an indictment or information charge several or all of such acts

in the conjunctive[.]’”   United States v. Brown, 504 F.3d 99, 104

(D.C. Cir. 2007) (quoting District of Columbia v. Hunt, 163 F.2d

833, 837–38 (D.C. Cir. 1947)).    Section 924(c) is such a statute.

See 18 U.S.C. § 924(c) (providing additional punishment for “any

person who, during and in relation to any crime of violence or

drug trafficking crime . . . for which the person may be

prosecuted in a court of the United States, uses or carries a

firearm, or who, in furtherance of any such crime, possesses a

firearm” (emphasis added)).   Count Two charges each act in the

conjunctive.   Accordingly, if trial counsel had moved pretrial to

dismiss the indictment because it was duplicitous, the motion

likely would have been denied.    Therefore, King cannot meet his
                                -19-

burden to show that he was prejudiced by his trial counsel’s

performance.

     C.   Failure to object to consecutive 60-month term of
          imprisonment for 18 U.S.C. § 924(c)(1) violation

     King alleged that his trial and appellate counsel performed

deficiently by not arguing that 18 U.S.C. § 924(c)(1) does not

require that King be sentenced to “a term of imprisonment of not

less than 5 years” “in addition to” his sentence for his “drug

trafficking crime.”    Am. Pet’r Mem. at 3.   Citing United States

v. Whitley, 529 F.3d 150 (2d Cir. 2008) and United States v.

Williams, 558 F.3d 166 (2d Cir. 2009), King argues that

§ 924(c)(1)(A)(i) is more properly interpreted as requiring a

consecutive sentence only when there is no other provision that

provides for a “greater minimum sentence.”    Id. at 3–4.   Thus,

according to King, because 21 U.S.C. § 841 requires a 10-year

minimum sentence, § 924(c)(1) does not require that King be

sentenced to a 60-month consecutive sentence.    Id. at 5–6.   King

contends that he was prejudiced because had counsel raised this

issue, King would have prevailed and King would have received a

lesser total sentence.    Id.

     This argument requires little discussion.    In Abbott v.

United States, 131 S. Ct. 18 (2010), the Supreme Court explicitly

abrogated Williams.6


     6
       United States v. Tejada, 631 F.3d 614, 619 (2d Cir. 2011),
also recognized that Abbott abrogated Whitley.
                                -20-

     We hold, in accord with the courts below, and in line
     with the majority of the Courts of Appeals, that a
     defendant is subject to a mandatory, consecutive
     sentence for a § 924(c) conviction, and is not spared
     from that sentence by virtue of receiving a higher
     mandatory minimum on a different count of
     conviction. . . . He is . . . subject to the highest
     mandatory minimum specified for his conduct in
     § 924(c), unless another provision of law directed to
     conduct proscribed by § 924(c) imposes an even greater
     mandatory minimum.

Abbott, 131 S. Ct. at 23.

     In light of Abbott, King cannot show prejudice as a result

of his counsel’s alleged deficient performances.   For the same

reason, King’s contention that § 924(c) did not authorize a

mandatory minimum 5-year sentence fails.

III. APPOINTMENT OF COUNSEL

     There is no constitutional right to appointment of counsel

in habeas corpus proceedings.   Brown v. Cameron, 353 F.2d 835,

836 n.1 (D.C. Cir. 1965).   However, under the Criminal Justice

Act (“CJA”), 18 U.S.C. § 3006A, representation may be provided

“for any financially eligible person who . . . is seeking relief

under section . . . 2225 of title 28” if “the interests of

justice so require.”   18 U.S.C. § 3006A(a)(2).

     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.
                               -21-

United States v. Washington, 782 F. Supp. 2d 1, 3 (D.D.C. 2011)

(citing United States v. Waite, 382 F. Supp. 2d 1, 2 (D.D.C.

2005)).

     King was unlikely to succeed and does not succeed on the

merits of his three ineffective assistance of counsel claims for

the reasons stated above.   King’s motion does not allege that any

further fact investigation is necessary.    Moreover, King cited

legal authority throughout his § 2255 motion and articulated

lucidly supporting arguments for his claims.    Accordingly, the

interests of justice do not require appointment of counsel under

these circumstances.   See 18 U.S.C. § 3006A(a)(2).

                            CONCLUSION

     King’s amended claim is time-barred.    King failed to show

that his trial and appellate counsel rendered ineffective

assistance of counsel under Strickland.    The interests of justice

do not warrant appointment of counsel here.    Therefore, King’s

§ 2255 motion, motion to amend his § 2255 motion, motion for

appointment of counsel, and motion for initial consideration of

his motion to amend his § 2255 motion will be denied.      King’s

motion for an update of the status of his § 2255 motion will be

granted.   A separate Order accompanies this Memorandum Opinion.

     SIGNED this 9th day of December, 2013.



                                               /s/
                                      RICHARD W. ROBERTS
                                      Chief Judge
