UNITED STATES DISTRICT COURT F I L E D

FOR THE DISTRICT OF COLUMBIA MAY 2 ¢' 2011
) g|¢rk, u_s, District & Bankruptcy
UN[TE]) STATES ()F AMER]CA ) courts for the D\str\ctof columbia
)
v. )
) Criminal No. 05-441 (RCL)
) Civil Action No. 10-1797 (RCL)
JEROME H. JONES, )
Defendant/Petitioner. )
)

MEMORANDUM OPINION & ORDER

Before the Court is defendant Jerome Jones’ pro se Motion [32] to Vacate Defendant’s
Conviction and Sentence Pursuant to 28 U.S.C. § 2255. Upon consideration of the motion, the
government’s opposition [46], the reply thereto [49], the entire record herein, and the applicable
law, the Court will DENY defendant’s motion for the reasons set forth beloW.

I. FACTUAL AND PROCEDURAL BACKGROUND

On August l6, 2006, defendant entered a conditional guilty plea to one count of Unlawful
Possession of a Fireann and Ammunition by a Person Convicted of a Crime Punishable by
Imprisonment for a Term Exceeding One Year, in violation of 18 U.S.C. § 922(g)(l). Defendant
requested-first in December, and again in January--that the Court continue his sentencing until
after the completion of his trial in D.C. Superior Court. On January 29, 2007, defendant was
convicted in Superior Court of one count of possession of a prohibited weapon, one count of
simple assault, and one count of obstruction of justice. These convictions raised defendant’s
Criminal History Category from Level V to Level VI, thereby increasing his guideline range
from 77 to 96 months (Total Offense Level 22, Criminal History Category V) to 84 to 105

months (Total Offense Level 22, Criminal History Category Vl).

Defendant was sentenced in this case on February 7, 2007. At sentencing, his attorney
requested that the Court use the Presentence investigation Report, which set the Criminal History
Category at V. The Court, in light of defendant’s record, sentenced him to 84 months of
incarceration and 3 years of supervised release. On October 23, 2009, the U.S. Court of Appeals
for the District of Columbia affirmed defendant’s conviction and sentence. See United States v.
Jones, 584 F.2d 1083 (D.C. Cir. 2009).

Defendant’s instant motion asks the Court to vacate his conviction and sentence based on
ineffective assistance of counsel. He asserts that his trial attorney performed deficiently by (l)
failing to argue that his indictment, plea agreement, conviction, and sentence resulted from
"vindictive prosecution;" (2) failing to prevent the postponement of his sentencing; and (3)
providing "misleading advice to plead guilty and that a sentence of no higher than 60 months
would be given." Defendant’s Motion 3, Oct. 2l, 2010 [32].

II. LEGAL STANDARD

Under 28 U.S.C. § 2255, a prisoner in custody under sentence of a federal court may
move the sentencing court to vacate, set aside, or correct its sentence if the prisoner believes that
"the sentence was imposed in violation of the Constitution or laws of the United States, or that
the court was without jurisdiction to impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. §
2255(a). Relief under § 2255 is an extraordinary remedy in light of society’s legitimate interest
in the finality of judgments. Indeed, "[t]o obtain collateral relief a prisoner must clear a
significantly higher hurdle than would exist on direct appeal." United States v. Frady, 456 U.S.
l52, 166 (l982). Nonetheless, "unless the motion and the files and records of the case

conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt

2

hearing thereon." 28 U.S.C. § 2255(b). District courts have discretion in determining whether a
defendant’s claims are too "vague, conclusory, or palpably incredible" to require a hearing. The
defendant bears the burden of proving his claims by a preponderance of the evidence. United
States v. Simpson, 475 F.2d 934, 935 (D.C. Cir. l973).

"[A]n ineffective assistance-of-counsel claim may be brought in a collateral proceeding
under § 2255, whether or not the petitioner could have raised the claim on direct appeal."
Massaro v. United States, 538 U.S. 500, 504 (2003). To prevail on a claim of ineffective
assistance of counsel, a defendant must establish (l) that counsel’s performance was deficient-
that is, that counsel "made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed by the Sixth Amendment," and (2) that counsel’s "deficient performance prejudiced
the defense." Stricklana’ v. Washz'ngton, 466 U.S. 668, 687 (1984). "Unless a defendant makes
both showings, it cannot be said that the conviction . . . resulted from a breakdown in the
adversary process that renders the result unreliable." Id.

To establish that counsel’s performance was deficient, a defendant must show that
"counsel’s representation fell below an objective standard of reasonableness." Id. at 688. The
defendant must overcome the "strong presumption that counsel’s conduct [fell] within the wide
range of reasonable professional assistance." Ia’. at 689. To establish that counsel’s deficient
performance prejudiced the defense, the 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." Id. at 694. "A reasonable probability is a probability sufficient to undermine
confidence in the outcome." Ia’.

III. DISCUSSION

A. Defendant has not shown vindictive prosecution and therefore cannot establish
that his attorney was deficient in failing to raise that claim.

Defendant asserts that his attomey was deficient in failing to argue that his indictment,
plea agreement, conviction, and sentence resulted from "vindictive prosecution." Specifically, he
claims that he was "threatened with federal prosecution [in] this instant matter if he did not
cooperate . . . or in the altemative plead to [Assault with a Deadly Weapon]" in a murder case in
Superior Court. Mot. 10. He contends that he was indicted on the federal charge in this case
because he insisted on going to trial in the Superior Court case. Id.

A prosecutorial action is vindictive "only if designed to penalize a defendant for invoking
legally protected rights." United States v. Meyer, 810 F.2d 1242, 1245 (D.C. Cir. 1987). A
defendant can establish a presumption of vindictiveness by showing "a reasonable likelihood
[that] vindictiveness exists." United States v. Gary, 291 F.3d 30, 34 (D.C. Cir. 2002). In other
words, the defendant must show that the prosecutor’s decision was "more likely than not"
attributable to vindictiveness. Alabama v. Smith, 490 U.S. 794, 802 (1989); Gary, 291 F.3d at 34.
lf the presumption arises, the government can rebut it with objective reasons for its conduct.
United States v. Goodwin, 457 U.S. 368, 374 (1982).

In Blackledge v. Perry, 417 U.S. 21, 28 (1974), the Supreme Court recognized a
presumption of vindictiveness where a prosecutor retaliates against a convicted defendant who
asserts his statutory right to a trial de novo "by substituting a more serious charge for the original
one." The presumption does not apply, however, where the prosecutor’s conduct is attributable to
legitimate reasons. Goodwin, 457 U.S. at 374; see also Bordenkircher v. Hayes, 434 U.S. 357,
364-65 (1978) (allowing a prosecutor to threaten a felony charge if the defendant did not plead

guilty to a misdemeanor charge where there was no dispute that the felony charge was justified

by the evidence). Indeed, "[n]othing in Blackledge presumed to give the defendant a free ride for
separate crimes he may have committed, or to prevent a prosecutor from bringing new charges as
a result of changed or altered circumstances which properly bear on prosecutorial discretion."
United Slates v. Grijj'in, 617 F.2d 1342, 1348 (9th Cir. 1980).

Here, the government did not act vindictively by pursuing a federal charge that was
supported by the evidence. Rather, the government_in light of changed circumstances and in
the exercise of its prosecutorial discretion-brought a charge that would yield a conviction and
sentence commensurate with its assessment of defendant’s criminal conduct. Because the
government had legitimate reasons for charging defendant in this case, defendant cannot show
vindictive prosecution. He therefore cannot establish that his attorney was deficient in failing to
raise that claim at trial.

B. Defendant has failed to establish that he was prejudiced by the postponement of
his sentencing.

Defendant asserts that his attomey performed deficiently by failing to prevent the
postponement of his sentencing in this case. He argues that his attomey should not have
requested that the Court continue his sentencing until after the completion of his trial in Superior
Court, as this "exposed [him] to a greater sentence [than] what he plea bargained for and was
expecting to receive." Mot. 12. As the record indicates-and as defendant concedes-defendant
himself requested that his sentencing be continued. Defendant’s Reply 7-8, May 2, 2011 [49];
Government’s Opposition 17-18, Apr. 21, 2011 [46]. Defendant contends, however, that his
counsel "acted on impulse, ‘without thinking’ of future consequences for her client in deciding to

forego sentencing.” Reply 7~8.

"A court need not first determine whether counsel’s performance was deficient before
examining the prejudice suffered by the defendant as a result of the alleged deficiencies."
Strickland, 466 U.S. at 670. Here, the Court finds that defendant has failed to establish that he
was prejudiced by the postponement of his sentencing. In the sentencing context, a showing of
prejudice requires a reasonable probability that, but for counsel’s errors, the outcome of
sentencing would have been different. Deltoro-Aguilera v. United States, 625 F.3d 434, 437 (8th
Cir. 2010). As noted above, defendant’s convictions in Superior Court raised his Criminal
History Category from Level V to Level VI, thereby increasing his guideline range in this case
from 77 to 96 months (Total Offense Level 22, Criminal History Category V) to 84 to 105
months (Total Offense Level 22, Criminal History Category Vl). The Court sentenced defendant
to 84 months, which falls within the guideline range for Criminal History Category V. Because
the Court had the discretion to sentence defendant anywhere within the applicable guideline
range-as well as to depart from the guideline range as appropriate-there is no way to tell what
sentence the Court would have given him on his original sentencing date.l lt is merely
speculative to conclude that defendant, had he been sentenced prior to his trial in Superior Court,
would have received a sentence of less than 84 months in this case. Defendant therefore cannot
establish a reasonable probability that, but for his attomey’s request to postpone sentencing, the
outcome of his sentencing would have been different.

C. Defendant has failed to establish that his attorney was deficient in advising him
on his guilty plea and potential sentence.

l Indeed, defendant indicated in his plea letter that he understood that "the sentence to be
imposed is a matter solely within the discretion of the Court." Plea Agreement 2, Aug. 16, 2006
[16]. He further indicated during his plea colloquy that he understood the Court’s authority, in
some circumstances, to "impose a sentence that’s more severe or less severe than the sentence
called for by the guidelines." Opp’n 5.
6

Defendant asserts that his attomey performed deficiently by providing "misleading
advice to plead guilty and that a sentence of no higher than 60 months would be given." Mot. 3.
The record, however, indicates that defendant’s attomey made no such promises. Defendant
indicated in his plea letter that "absolutely no promises, agreements, understandings, or
conditions have been made or entered into in connection with my decision to plead guilty except
those set forth in this plea agreement." Plea Agreement 4, Aug. 16, 2006 [l6]. He further
indicated in his plea colloquy that no one had made any prediction or promise as to what
sentence the Court would give him. Opp’n 14.

l\/loreover, defendant stated in his plea colloquy that he understood that the maximum
sentence for his charge was ten years in prison and that he had discussed his possible sentence
under the sentencing guidelines with his attorney. Id. at 14-15. He also stated that he understood
that the Court would not determine his guideline range until after his presentence report had been
prepared and reviewed. Id. at 15. Thus, defendant’s plea agreement and swom statements
demonstrate that his attomey neither misled him nor made any promises regarding his sentence.
He has therefore failed to establish that his attomey was deficient in advising him on his guilty
plea and potential sentence.

IV. CONCLUSION

Defendant has failed to make the requisite showing for each of his three claims of
ineffective assistance of counsel. The Court thus finds that he is not entitled to relief under 28
U.S.C. § 2255. Furthermore, because the motion, files, and records in this case "conclusively
show that the prisoner is entitled to no relief," no evidentiary hearing is required. 28 U.S.C. §

225 5(b). Accordingly, it is hereby

ORDERED that defendant’s Motion [32] to Vacate Defendant’s Conviction and Sentence

Pursuant to 28 U.S.C. § 2255 is DENIED.

»l
so oRDI;REI) this ’V* fray of May 2011.

goal c~%»/,a/F'?<~

Rov@ C. LAMBERTH
Chief Judge
United States District Court

