UN!TED sTATEs DISTRICT CoURT ED
FoR THE i)lsrnicr oF coLuMnlA

DEC 2 1 2009

U.S. D‘PSTR{CT COUHT

UNITED STATES OF AlVlERlCA,
v. Criminal N0. 03-550 (JDB)'

ROBERT NICHOLAS SPADARO,

Petitioner.

\/\./\/\/\J\/;\./'\../\_/

lVlEl\/IOR.ANDUM OPINION

Robert Spadaro has filed a petition to vacate. set aside, or correct his sentence pursuant to
28 ll.S.C`. § 2255. l~le offers three grounds for his petition: he was not competent to assist in
preparing his defense; he received an incomplete competency evaluation, thereby denying him
due process; and his counsel was prejudicially ineffective in violation of the Sixth Amendment.
Upon careful consideration ofthe parties' memoranda, and for the reasons detailed below, the
Cotirt denies Spadaro's petition.

BACKGROUNI)

Spad'.tro is currently in federal custody serving a l86~month sentence for interstate
stall<ing in violation of 18 U.S.C. §§ 2261(21)(1)& 226l(b)(3); using_ earrying, and possessing a
firearm during a crime of violence in violation of 18 U.S.C. § 924(0); assault with intent to kill
while armed in violation ofD.C. Code §§ 22-401 & -4502; and possession ofa firearm during a

crime of violence or dangerous offense in violation of D.C. Code. § 22-4504(b). Following his

' Although the parties filed some iiiforiiiatioii in this case under seal. nothing referenced
in this opinion properly continues to be subject to sealing. Hence, the Court has determined that
this opinion can be placed on the public record

conviction. Spadaro filed a motion for a new trial. alleging ineffective assistance ofcounsel, and
arguing that he involuntarily waived his right to counsel and that his conduct at trial should have

ct)iiviiiceci the court to rescind that waiver. This Court denied Spadaro's motion after holding an

evidentiary hearing. and the Court ofAppeals affirmed both that denial and Spadaro's conviction.

His habeas petition pursuant to section 2255 followed a year later.
ANALYSIS
l. Spadaro's Competency Grounds for Habeas Relief
Spadaro failed to raise his first two grounds for habeas reliefon direct review.

Acct)rtliiigly. he has procedurally defaulted the claims that he was not competent to assist with
his defense and that he received an incomplete competency evaluation. § Bousley v. United

States, 523 U.S. 6}4. 622 (1998). "Where a defendant has procedurally defaulted a claim by

failing to raise it on direct review. the claim inay be raised in habeas only ifthe defendant can
first clemonstrate either 'cause' and 'actual prejudice.' or that he is 'actually innocent."' id

(citzitions oniitted); accord l\/ltirray v. Carrier. 477 U.S. 478. 485 (l986). Spadaro does not

contend that he is actually innocent. and therefore he must show cause and actual prejudice to
raise his conipeteiicy-rel'ated claims here.

"Cattse" for habeas purposes "ordinarily turn[s] on whether the prisoner can show that
some objective factor external to the defense impeded counsel's efforts to comply with the
lrelevant] procedural rule." l\/ltirrav. 477 U.S. 211488; accord l\/lcClesl<ev v. Zant, 499 U.S. 467.
493-94 (l99l). For example, the petitioner may demonstrate "that the factual or legal basis for a
claim was not reasonably available to counsel. or that 'some interference by officials' made

compliance impracticable." l\/ltirray_ 477 U.S. at 488 (citations omitted); see also Reed v. Ross,

468 U.S. l. 16(1984).

Spadaro, however, offers no reason for why he has raised his two competency-related
claims for the first time in his habeas petition. lie does not contend that these arguments were
factually or legally unavailable to him at the time ofhis direct appeal -- and certainly that was not
the case. Nor does he suggest that he wats precluded from raising them by any other
impediineiits. lndced. the only explanation he offers for waiting to raise these claims is his belief
that the coinpetcncy-related grounds are "each . . . more appropriately raised in a Section 2255
proceeding," Pet'r's l\/lot. to Vacate ("Pet`r's l\/Iot.") [Docl<et Entry 155], at 5. But Spadaro's
beliefcannot substitute for the governing law. and his failure to raise these claims on direct
reviewf precludes him from doing so in habeas. §§ Bousley. 523 U.S. at 622.3
ll. ineffective Assistance of Counscl

Spadaro asserts that his trial counsclt Robert 'fucl<er. was prejudicially ineffective for two
rcatsoiis. l"irst. 'l`tlcl<er failed to file a inotion describing Spadaro's inability to assist in his
defense §e_e Pet'r's l\/lot. at 4; Pet'r's l\/lem. in Supp. of l\/lot. to Vacate ("Pet'r's l\/fem,") [Docket
l:`§iitry' 155|, at l l. And second, Tucl<er allegedly made the decision to proceed to trial without
consulting Spadaro. §§ Pet'r's l\/lot. at 4; Pet'r's l\/Iem. at ll .

"'l`t) prove constitutionally defective representation. the defendant must show (l) 'that
counsel's performance was tieficieiit.' and (2) `that the deficient performance prejudiced the

tlel`ciisc."` United States v. Cassell. 530 F.3d lOOC). l()l l (D.C. Cir. 2008) (quoting Stricl<land v.

2 Because Spadaro has not sliow'ri cause for his procedural default, the court need not
consider whether he suffered actual prejudice as a result ofthe alleged errors. _CL United States
\'. l"rttd\'. 456 U.S. l52. 168 (1982) ("[W]e find it ttnnecessary to determine whether [defendantl
has sliow'n cause. because we are cc)iifident he suffered no actual prejudice ofa degree sufficient
to justify collateral relief, . . .").

Wasliiiigtoii, 466 U.S. 668, 687 (l984)). To show deficient performance, the defendant must
establish "'that ct)uiisel`s representation fell below an objective standard of reasonableness . . .

tinder prevailing jarofessional tiornis."` Kiiowles v. l\/lirzavztiice. l29 S. Ct. l4l l. l42() (2()09)

 

(t}ttotiiig Stricl<lttiid. 466 lsl.S. at 687-88); see also United States v. Gwyn, 481 F.3d 849, 853
(D.C. Cir. 20()7). ".ludicial scrutiny ofcounsel's performance inust be highly deferential," and
"|“aj fair assessment of attorney performance requires that every effort be made to eliminate
distorting effects ofhindsight, to reconstruct the circumstances of counsel's challenged conduct,
and to evaluate the conduct from counsel's perspective at the time." Stricl<land, 466 U.S. at 689.
'l`he burden is on the defendant to prove his attorney's conduct was "tinreasonable tinder
jirevztiliiig professional iiorms and that thc challenged action was not sound strategy."
Kinnnelnian v. l\/Iorrison. 477 U.S. 365. 384 (1986).

'l`o establish that counsel's deficient performance was prejudicial, a petitioner must
"`deiiioiistiate that there is a re'ason'able probability that. but for counsel's unprofessional errors.
the result ofthe proceeding would have been tliffererit.'"  530 F.3d at l0l l (quoting
lt’nitetl States v. lili, 379 F.3d l()l6, 1019 (D.C. Cir. 20()4)). "A reasonable probability is a
probability stifficieiit to undermine confidence in the otttconie"; a defendant "need not show that
counsel's deficient conduct more likely than not altered the outcome in the case." Stricl<land, 466
U.S. at 693-94 But. "[i]t is not enough for the defendant to show that [counsel's] errors had
sonie conceivable effect on the otitcoine ofthe proceeding," because "[v]irtually every act or
ornissioii ofcounsel would meet this test." id at 693. Rather. a defendant must establish that
"cotinsel's conduct so undermined the proper functioning of the adversarial process that the trial

cttnnot be relied on as having produced a just result." I_CL at 686.

_4_

A. Counsel's Failure to File a l\/lotion Regarding Spadaro's Competencv
Spadaro contends that 'il`ttcker "w'as prejudicially ineffective for failing to file a motion
regarding l\/lovaiit's incompetence to assist in preparing his defense." Pet'r's l\/Iern. at l l.
Spadaro. however. cannot carry his burden to demonstrate that Tucker's performance was
deficient. The record reflects that in l)eceniber 2004 -- six months prior to trial -- Tucker filed a
statement with the Court documenting 'l`ticker's concerns with Spadaro's mental condition. §_e__e_
Resp't's Opia`ii to Pet'r's Mot. to Vacate ("Resp't's Opp'n"). F.xhibit 2 (Counsel's F.x Parte
Stateinetit). ln that statement -- filed without Spadaro's knovvledgei ~- Tucker notified the Court
of his beliefthat "l\/lr. Spadaro's thought processes and demeanor have deteriorated to the extent
that l believe a serious question does exist concerning his ability to meaningfully cooperate and
work with counsel." l_d. at 9. Tucker further related that although Spadaro "is technically
conipeteiit to stand trial. [he] is nonetheless so mentally ill, irrational. paranoid and marginally
conipetent as to call into question his 'ability' to make decisions in his best interest." l_d_. at l2.
'l`ticker's ex parte statenient. then. shared with the Court precisely the information that

Spadaro asserts 'l`ticker failed to share: that he was incompetent to assist in preparing his defense.
l~`tirtlier. 'l`ticker`s observations regarding Spadaro's competency were not confined to Tucker'se_x
p_a_ij§ stateineiit. Rather, on a number of occasions 'l`ucker related his belief that Spadaro's mental
state precluding him from assisting counsel. See, e.g., Trial 'l`r. vol. 4, l75:l-2, .lune IO, 2005

("'l`liis man does not have a clue as to what's going on."); Trial Tr. vol. 5, 238:l5-l7. .lune l3.

§ 'fucker filed the statement without his client's knowledge because he believed "that
filing a inotion to determine his contpetency might be counterproductive to [his] already fragile
relationship to the point that it would be virtually impossible to obtain any cooperation from
liim." Counsel's Ex Parte Statement at l.

2005 ("l don't think he is actually competent to be representing hiinself based on what I'm seeing
liere."). Because 'l`ucker in fact did exactly what Spadaro now alleges he failed to do, Spadaro
cannot now claim that Tucker's performance "fell below an objective standard of
reasonableness." Knowles. 129 S. Ct, at 1420 (quotation omitted).

B. Counsel's Decision To l’roceed to Trial Without Consulting Spadaro

Spadaro also contends that Tucker was prejudicially ineffective because Tucker himself
"malde| the decision to go to trial instead of pleading guilty." Pet'r's l\/Iem. at 12; see also Pet'r's
l\/lem.. Aff. of Robert Spadaro. ij 4 ("One day. Counsel caine into the interview room,
'acconipaiiied by paralegal. Cotirtiie_v l\/loore. and announced "vve're going to trial.");igL at ‘ll 5
("Cotiiisel 'allow'ed me no input into his decision . . . ."i). But Spadaro's statements at trial
contradict these assertions.

Dtiring the early stages oftrial. Spadaro decided to forego counsel and represent himself
When iiiaking this decision_ litiwever. Spadaro noted that he was satisfied with the representation
he had received:

l\/lr. Spadaro: l would like to have a chance to express what 1 consider to be the

truth. and it is the truth. l\/fr. Tucker and l\/Is. .lahn and their associate, l\/Is.

Cotirtney l\/Ioore, have been very excellent

ln fact. l\/lr. Tucker and 1 have a different approach to how to handle this

case. but l certainly appreciate the fact that he's willing to act as advisory capacity

|sic].
'l`ri'al Tr. vol. 3. 10:4-10. .lune 9. 2005 (emphasis added). ln explaining his decision to represent
hiinself` to the C`otirt. Spadaro never suggested that he had been forced to go to trial. lndeed.
Spadaro's most vigorous disagreement with 'l`ticker was about trial strategy. §e_e @; see also

Resp't's (i)pp'n. Exhibit 4 (Spadaro's l,etter ofNov. 23, 2006 to the Federal Public Defender) ("1

ended up representing myself because 1 wanted all the research free and 1 knew my case was
hopeless so 1 figured that 1 might as well have some fun_ it was worth it."). And the Court
siniilarly t)bserved that Spadaro believed his representation was satisfactory':

/\t no time did Dr. Spadaro indicate that he was interested in the appointment of

substitute counsel, and he repeatedly affirmed that his decision [to represent

hiniself] was based on considerations other than the quality of his representation.

which again he had described as excellent.

Sentcncing Tr.. 14:23-15:2, l\lov. l0. 2005.

'l`he record. then, simply does not support Spadaro's claim that Tucker's performance was
deficient Accordiiigly. the Court need not hold an evidentiary hearing on Spadaro's claim that
'l`iiclter forced him to go to trial because lie has failed to present non-self-serving affidavits "or
other evidentiary' stipport for the naked assertions contained in his niotion." United States v.

 139 1".3d 924. 933 (D.C. Cir. 1998). lndeed, Spadaro's naked assertions are belied by his
conduct and statements at trial. §§ United States v. Toms, 396 F.3d 427. 437 (D.C. Cir. 2005)
(uiirieccssary' to hold evidentiary' lieariiig \ivliere judge deciding section 2255 motion presided at
petitioner's trial and where petitioner "does not point to any information outside the record that
would have substantially assisted the district court in its disposition").

l€ven assuming, inoreover, that Tucker in fact decided to go to trial without Spadaro's
input and conciirreiice -- \vliicli would constitute deficient performance -~ Spadaro has not
established that there is a "reasonable probability" he was prejudiced by this error. Spadaro
contends that he suffered prejudice because lie did not have an opportunity to consider seriously a
government plea offer before going to trial. § Pet'r's l\/lem. at l2. Spadaro offers that had
'fticl\'ei' not decided to go to trial. Spadaro "w'otild have accepted the lgoverninent's] ten-years'
imprisonment plea tif`fer." l_d_. But Spadaro "cites no evidence to indicate that prior to his

_7-

conviction he expressed any desire to plead guilty." Diaz v. United States. 930 F.2d 832. 835
(1 lth Cir. 1991 ). lnstead. he relies only on the arguments in his memorandum supporting his
section 2255 petition. and the statements offered in his attached affidavit.

This "after the fact testimony concerning [Spadaro's] desire to plead, without more, is
iiisufficieiit to establish that but for counsel's alleged advice or inaction, he would have accepted
the plea tiffer." 1;1.;   139 F.3d at 933 ("Stiiniiiary' disposition may also be
appropriate where the defendant has failed to present any affidavits or other evidentiary support
for the iitil\'etl assertions contained iii his iiiotioii."); United States v. Piiikiiev. 543 F.2d 908, 916-
17 (1).(`. Cir. 1976) ("tiiistippt)rted zissertioiis" instifficieiit to inake out a claim for iiieffective
assistance ofcounsel). Spadaro's argument in his ineinoraiidtiin in support of section 2255 relief
"is self-scrviiig and alone insufficient to establish that, but for counsel's advice, there is a
reasonable probability that he would have accepted the plea." Toro v. Fairman, 940 F.2d 1065,
1068 (7th Cir. 1991), And absent any other evidence. the Court cannot proceed solely on the
basis of tippellaiit`s unsupported assertions  Pinkney. 543 F.2d at 917. Hence. Spadaro has
not carried his burden to demonstrate that 'l`ticker's alleged deficiencies prejudiced him.f

C()N(ILUSI()N
l"or the foregoing reasons. the C`otirt will deny Spadaro's petition to vacate. set aside. or

correct his sentence tinder 28 ll.S.C. § 2255.

l l"or the same reasons. even if Spadaro's habeas claim can be read to assert that Tucker
w as iiief`feetive because 'l`ticker did not explain "the benefits and pitfalls of going to trial
coniparetf with pleading guilty," Pet'r's l\/lem. at l2. Spadaro is unable to show a reasonable
probability‘ of prejudice   940 l".2d at 1068.

_g_

/s/ John D. Bates
J()Hl\l D. BATES
llNl'l`El) STA'fI;`S DISTRICT JUDGE

l)ate: December 21 2009

 

