                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
____________________________
                              )
UNITED STATES OF AMERICA      )
                              )
          v.                  ) Criminal Action No. 06-153 (RWR)
                              )
EDWARD KELLY, JR.,            )
                              )
          Defendant.          )
____________________________ )

                       MEMORANDUM OPINION

     Defendant Edward Kelly, Jr. pled guilty in 2006 under a plea

agreement to one count of unlawful possession with the intent to

distribute cocaine, see 21 U.S.C. § 841(a), (b)(1)(C), and one

count of using, carrying, and possessing a firearm during a drug-

trafficking offense, see 18 U.S.C. § 924(c)(1).   He now moves

under 28 U.S.C. § 2255 to vacate his sentence, arguing that the

government was collaterally estopped from prosecuting him for

these offenses in the District of Columbia (“D.C.”) since, in

earlier proceedings in the District of Maryland, he was acquitted

of similar drug and gun charges.   Kelly also asserts an

ineffective assistance of counsel claim challenging the failure

of the attorney representing him in the district court1 to

research and raise the collateral estoppel defense.   The

government opposes the motion on the ground that Kelly’s claims


     1
       Kelly notes that his appellate counsel did not know to
raise the collateral estoppel issue on direct appeal (Def.’s Mot.
at 6), but Kelly’s motion and supporting memorandum complain of
ineffective assistance of only his counsel in the district court
(id. at 5; Def.’s Mem. at 6, 14-20).
                                   - 2 -

are meritless.      Because Kelly’s claims are unsubstantiated, the

motion will be denied.2

                                BACKGROUND

       The D.C. Circuit opinion affirming Kelly’s conviction

describes the facts relevant here.         United States v. Kelly, 552

F.3d 824, 827-29 (D.C. Cir. 2009).         “[T]he FBI began intercepting

and recording Kelly’s telephone conversations” in June of 2004

and, in September of that year, “obtained[] warrants to search

Kelly’s vehicle and his girlfriend’s apartment [in] D.C.”        Id. at

827.       Agents executing the warrant at the apartment on

September 2, 2004 “discovered . . . a backpack containing two

plastic bags that held 497.1 grams of cocaine hydrochloride and

. . . a loaded Glock 9-millimeter handgun.”        Id.

       Kelly was indicted in federal court in Maryland but

acquitted of “(1) conspiracy to distribute and possess with

intent to distribute cocaine and cocaine base between November

2000 and December 2004 in the District of Maryland, the District

of Columbia and elsewhere . . . ; (2) using a communication

facility in furtherance of a narcotics conspiracy . . . ; and (3)

using and possessing a firearm in furtherance of conspiracy to

distribute and possess with intent to distribute cocaine and


       2
       The government also argues that Kelly’s ineffective
assistance claim is procedurally barred since he raised the
argument on direct appeal. Whether Kelly’s argument is new or
merely re-frames the argument he made on direct appeal need not
be decided since it nevertheless lacks merit.
                                 - 3 -

cocaine base on September 2, 2004 in the District of Maryland[.]”

Id. at 829 & n.3 (emphasis added).       Later, a federal grand jury

in D.C. handed down a 3-count indictment against Kelly.      He pled

guilty to Count One which charged unlawful possession in D.C. of

cocaine on September 2, 2004 with the intent to distribute it,

and to Count Three which charged using, carrying and possessing a

firearm in D.C. on September 2, 2004 during the drug trafficking

offense charged in Count One.    Id. at 827.

     At Kelly’s plea hearing, “Kelly alerted the [court] to the

fact that he had been charged with another section 924(c)

violation in Maryland and that he believed it was the same

section 924(c) violation as the one to which he was then pleading

guilty.”    Id. at 828.   This court concluded that “there may not

be a double jeopardy problem” because “the predicate crime for

each section 924(c) count was different.”      Id. at 829 (citation

omitted).   After Kelly’s counsel agreed, Kelly “advised the court

that he was ready to plead guilty . . . ‘voluntarily and of his

own free will.’”   Id.    Kelly’s guilty plea was accepted, and he

was sentenced to consecutive terms of 50 and 60 months'

imprisonment on the drug and gun counts, respectively.      Id.

     While the D.C. Circuit affirmed Kelly’s conviction on direct

appeal, Kelly now attacks his sentence collaterally under § 2255.

He argues that the principle of collateral estoppel barred his

prosecution in D.C., and that he received ineffective assistance
                              - 4 -

of counsel because his attorney failed to file a pretrial motion

asserting collateral estoppel and did not move for a continuance

of the plea hearing in order to prepare such a motion.    (See,

e.g., Def.’s Mem. at 6, 15-17.)

                           DISCUSSION

     “A prisoner in custody . . . claiming the right to be

released” may move under § 2255 to “vacate, set aside or correct”

his sentence if it was “imposed in violation of the Constitution

or laws of the United States, . . . the court was without

jurisdiction to impose such sentence, or . . . the sentence . . .

is otherwise subject to collateral attack[.]”    28 U.S.C. § 2255.

However, since “[r]elief under § 2255 is an extraordinary

remedy[,] . . . ‘a prisoner must clear a significantly higher

hurdle than would exist on direct appeal.’”   United States v.

Zakas, 793 F. Supp. 2d 77, 80 (D.D.C. 2011) (quoting United

States v. Frady, 456 U.S. 152, 166 (1982)).     Specifically, he

“must show ‘a fundamental defect, which inherently results in a

complete miscarriage of justice’ or ‘an omission inconsistent

with the rudimentary demands of fair procedure.’”3


     3
        In her concurrence in Kelly, 552 F.3d at 836, Judge
Rogers noted that the defendant had not raised a collateral
estoppel claim on direct appeal. “[I]f a petitioner procedurally
defaults on any . . . claim by failing to raise it on direct
review, the claim may be raised in habeas only if the defendant
can first demonstrate either cause and actual prejudice or that
he is actually innocent.” United States v. Thomas, 772 F. Supp.
2d 164, 167 (D.D.C. 2011) (emphasis in original) (internal
quotation marks omitted) (citing Bousley v. United States, 523
                                 - 5 -

Hoover-Hankerson v. United States, 792 F. Supp. 2d 76, 81 (D.D.C.

2011) (quoting Hill v. United States, 368 U.S. 424, 428 (1962))

(additional citation omitted).    “The defendant bears the burden

of proving his claims by a preponderance of the evidence.”

Zakas, 793 F. Supp. 2d at 80 (citing United States v. Simpson,

475 F.2d 934, 935 (D.C. Cir. 1973)).

I.   COLLATERAL ESTOPPEL

     Kelly’s § 2255 motion asserts that the government was

collaterally estopped4 from prosecuting him for using, carrying

and possessing a firearm during a drug trafficking offense in

D.C., and for possessing with the intent to distribute cocaine,

since he earlier was acquitted of conspiracy to possess with

intent to distribute cocaine and possession of a firearm during a

drug trafficking offense in the District of Maryland.   (Def.’s

Mem. at 6-7.)    However, “there is no collateral estoppel if a

different ground ‘could’ have been a rational basis for

acquittal[.]’”   United States v. Coughlin, 610 F.3d 89, 97 (D.C.

Cir. 2010) (quoting Ashe v. Swenson, 397 U.S. 436, 444 (1970)).


U.S. 614, 622 (1998)). Here, Kelly makes no claim of actual
innocence, and even if he had made an adequate showing of cause
and actual prejudice, his collateral estoppel claim lacks merit
and would fail.
     4
       “‘Collateral estoppel’ is an awkward phrase, but it stands
for an extremely important principle in our adversary system of
justice. It means simply that when an issue of ultimate fact has
once been determined by a valid and final judgment, that issue
cannot again be litigated between the same parties in any future
lawsuit.” Ashe v. Swenson, 397 U.S. 436, 443 (1970).
                                - 6 -

Kelly argues that the Maryland jury found “reasonable doubt that

[he] was aware” that he possessed the drugs in the backpack and

that in this case the government would have had to prove beyond a

reasonable doubt that he was aware that he possessed those same

drugs.   (Def.’s Mem. at 12.)

     However, the Maryland jury could have grounded its not-

guilty verdicts on an issue other than Kelly’s knowledge of his

possession of the drugs.   See, e.g., Schiro v. Farley, 510 U.S.

222, 233 (1994) (noting that there can be any number of possible

explanations for a jury’s verdict); see also Coughlin, 610 F.3d

at 96 (stating that a court’s “analysis of what the jury decided

should be conducted with realism and rationality. . . .    [W]e

will not presume that the jury acquitted on the ground most

favorable to the defendant”).   The Maryland indictment on which

Kelly was acquitted “was predicated on more than Kelly’s

[possession with the intent to distribute cocaine] in the

District on September 2, 2004[.]”   Kelly, 552 F.3d at 830 n.5.

It also charged conspiracy and required the jury to find that

Kelly had intentionally conspired with at least one other person

before it could convict on either the conspiracy or the 924(c)

count.   The Maryland indictment also charged Kelly’s possession

of the firearm in Maryland, not in D.C., and “in furtherance of

[a] predicate offense[] that [was] separate in time, place, and
                                - 7 -

scope” from that of the predicate offense identified in the

firearm count in the D.C. indictment.      Id. at 836.

       Kelly has not “demonstrate[d] that the issue whose

relitigation he seeks to foreclose was actually decided in the

first proceeding.”    United States v. Coughlin, 821 F. Supp. 2d 8,

17 (D.D.C. 2011) (internal quotation marks and citation

omitted); see also Dowling v. United States, 493 U.S. 342, 350

(1990) (“The Courts of Appeals have unanimously placed the burden

[of making this showing] on the defendant[.]”).     He merely

alleges, without substantiation, that “the lone dispute at trial

was whether [he] was aware of” the drugs in his possession.

(Def.’s Mem. at 8.)   As the differences in the two predicate

offenses underlying the 924(c) charges reveal, “‘a rational jury

could have grounded its verdict upon an issue other than that

which the defendant seeks to foreclose from consideration.’”

United States v. Crooks, 804 F.2d 1441, 1446 (9th Cir. 1986)

(quoting United States v. Webbe, 755 F.2d 1387, 1388 (9th Cir.

1985)).   (See also Govt.’s Opp’n to Def.’s Mot. Under § 2255 at

14.)

       Accordingly, Kelly’s collateral estoppel claim fails.

II.    INEFFECTIVE ASSISTANCE OF COUNSEL

       Criminal defendants are entitled not only to counsel, but to

effective assistance of counsel.   Strickland v. Washington, 466

U.S. at 668, 686 (1984).   “An ineffective assistance of counsel
                                - 8 -

claim requires proof ‘(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 proceedings would have been different.’”

Hoover-Hankerson, 792 F. Supp. 2d at 81 (citing Strickland, 466

U.S. at 687–88).   “‘Judicial scrutiny of counsel’s performance

must be highly deferential’ because ‘[i]t is all too tempting for

a defendant to second-guess counsel’s assistance after conviction

or adverse sentence, and it is all too easy for a court,

examining counsel’s defense after it has proved unsuccessful, to

conclude that a particular act or omission of counsel was

unreasonable.’”    Id. at 81-82 (quoting Strickland, 466 U.S. at

689).   The defendant “must overcome the presumption that, under

the circumstances, the challenged action ‘might be considered

sound trial strategy.’”   Id. at 82 (citation omitted).    He

therefore “‘must identify the act or omissions of counsel that

are alleged not to have been the result of reasonable

professional judgment’” and a “‘court must then determine

whether, in light of all the circumstances, the identified acts

or omissions were outside the wide range of professionally

competent assistance.’”   Id. (quoting Strickland, 466 U.S. at

690).   The defendant also “must show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.   A reasonable
                                - 9 -

probability is a probability sufficient to undermine confidence

in the outcome.”   Id. (internal quotation marks and citation

omitted).

     Kelly argues that he received ineffective assistance of

counsel because his counsel neither researched nor raised the

collateral estoppel argument.   (Def.’s Mem. at 15-17.)   However,

his counsel clearly considered the issue.   Kelly concedes that

his counsel informed him in 2006 that “collateral estoppel and

double jeopardy did not apply to his case” (id. at 20), and his

counsel stated during the plea hearing in regard to the double

jeopardy5 issue that “even though it’s the same gun, it’s a

different drug trafficking offense[,]” Kelly, 552 F.3d at 829.

The disposition of his collateral estoppel claim above and the

D.C. Circuit’s rejection of Kelly’s double jeopardy claim in his

direct appeal reflect that the claims lack merit.   A defense

counsel is not obligated to raise a meritless defense.    See id.

at 831.   Further, on appeal, the D.C. Circuit found that Kelly’s

“counsel’s conduct ‘was within the range of competence demanded

of attorneys in criminal cases.’”   Id. (quoting Hill v. Lockhart,

474 U.S. 52, 56 (1985)).   Because Kelly’s counsel’s

representation did not fall below an objective standard of

reasonableness, Kelly’s claim for ineffective assistance fails.


     5
        The Double Jeopardy Clause bars any person “subject for
the same offence to be twice put in jeopardy of life or limb.”
U.S. Const. Am. 5.
                              - 10 -

                            CONCLUSION

     Kelly has shown neither that the government was collaterally

estopped from prosecuting this case nor that his counsel rendered

ineffective assistance.   His § 2255 motion will be denied.   A

final Order accompanies this Memorandum Opinion.

     SIGNED this 7th day of June, 2012.



                                      /s/
                              RICHARD W. ROBERTS
                              United States District Judge
