                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


 UNITED STATES OF AMERICA,

           v.                                             Criminal No. 04cr355-05 (CKK)
                                                             (Civil Action No. 14-270)
 BRYAN BURWELL,

    Defendant.


                          MEMORANDUM OPINION AND ORDER
                                  (May 22, 2017)

       On January 15, 2015, March 12, 2015, and February 16, 2016, the Court issued

Memorandum Opinions and accompanying Orders addressing each of Bryan Burwell’s claims

raised in his [822] Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (“§

2255 motion”) which the Court ultimately denied in its entirety. Presently before the Court is

Burwell’s pro se [953] Motion Under Federal Rule of Civil Procedure 59(e). In his motion,

Burwell requests that the Court reconsider its decision not to issue a Certificate of Appealability

after denying his § 2255 motion. 1 Specifically, Burwell argues that the Court should reconsider

its ruling with respect to three issues: (1) its determination to credit the testimony of Burwell’s

trial counsel over that of Burwell and his purported alibi witness; (2) Burwell’s challenge to the

jury instructions related to his 18 U.S.C. § 924(c) conviction in light of the holding of the Supreme

Court of the United States (“Supreme Court”) in Rosemond v. United States, -- U.S. --, 134 S. Ct.

1240 (2014); and (3) Burwell’s challenge to his conviction under § 924(c) in light of the holding



       1
         Burwell explains that he “is not requesting a re-review of the merits, but instead
challenges the full aspect of denying a Certificate of Appealability (‘COA’).” Def.’s Mot. for
Reconsideration at 1. As such, the Court shall consider Burwell’s arguments as related to its
decision not to issue a Certificate of Appealability with respect to its denial of Burwell’s § 2255
motion.
of the Supreme Court’s holding in Johnson v. United States, -- U.S. --, 135 S. Ct. 2551 (2015).

       Upon a searching review of the pleadings, 2 the relevant legal authorities, and the record as

a whole, the Court finds no grounds to disturb its previous ruling declining to issue a Certificate

of Appealability as laid out in its [948] Order and accompanying [949] Memorandum Opinion

regarding its credibility determinations. However, the Court shall hold in abeyance Burwell’s

request for the issuance of a Certificate of Appealability on Burwell’s challenge to the jury

instructions in light of the Supreme Court’s holding in Rosemond and his claim regarding the

applicability of the Supreme Court’s decision in Johnson until further briefing is complete.

Accordingly, the Court shall DENY IN PART and HOLD IN ABEYANCE IN PART Burwell’s

[953] Motion Under Federal Rule of Procedure 59(e). In addressing the instant motion, the Court

has focused on the narrow issues raised by Burwell in the motion and shall not re-address the other

issues discussed at length in its Memorandum Opinions of January 15, 2015, March 12, 2015, and

February 16, 2016, which the Court INCORPORATES as part of this opinion.

       Here, Burwell requests that the Court reconsider and alter its decision not to issue a

Certificate of Appealability after denying his § 2255 motion pursuant to Federal Rule of Civil

Procedure 59(e). Rule 59(e) permits a party to file “[a] motion to alter or amend a judgment”

within “28 days after the entry of the judgment.” Fed. R. Civ. P. 59(e). Motions under Rule 59(e)

are “disfavored” and the moving party bears the burden of establishing “extraordinary

circumstances” warranting relief from a final judgment. Niedermeier v. Office of Baucus, 153



       2
         While the Court renders its decision today on the record as a whole, its consideration
has focused on the following documents: Def.’s Mot. Under Fed. R. Civ. P. 59(e) (“Def.’s
Mot.”), ECF No. [953]; Govt.’s Opp’n to Def.’s Pro Se Mot. for Reconsideration (“Govt.’s
Opp’n”), ECF No. [957]; Def.’s Traverse to Govt.’s Response (“Def.’s Reply”), ECF No. [959].
                                                2
F. Supp. 2d 23, 28 (D.D.C. 2001). Rule 59(e) motions are “discretionary and need not be granted

unless the district court finds that there is an intervening change of controlling law, the availability

of new evidence, or the need to correct a clear error or prevent manifest injustice.” Firestone v.

Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (internal quotation marks omitted). Rule 59(e)

does not provide a vehicle “to relitigate old matters, or to raise arguments or present evidence that

could have been raised prior to the entry of judgment.” Exxon Shipping Co. v. Baker, 554 U.S.

471, 485 n.5 (2008) (quoting C. Wright & A. Miller, Federal Practice and Procedure § 2810.1 (2d

ed. 1995)).

        In his original § 2255 motion, Burwell raised 12 ineffective assistance of counsel claims

related to counsel allegedly: (1) failing to challenge the violation of his statutory right to a speedy

trial prior to trial; (2) failing to raise double jeopardy and multiplicity challenges to the indictment

prior to trial and failing to move to dismiss based on this challenge during trial; (3) failing to raise

a Confrontation Clause challenge to certain evidence during trial and on appeal; (4) generally

providing a “poor overall performance” at trial; (5) failing to allow Burwell to exercise his right

to testify at trial; (6) failing to challenge government misconduct at trial and on appeal; (7) failing

to give an effective closing argument at trial; (8) failing to request an informant jury instruction at

trial; (9) failing to request a theory-of-defense instruction at trial; (10) failing to request polling of

the jury at trial; (11) failing to properly challenge juror misconduct and bias at trial and on appeal;

and (12) failing to conduct pre-trial interviews of potential defense witnesses. Further, Burwell

claimed for the first time in his reply to his § 2255 motion that the jury instructions related to Count

XI, using and carrying a firearm during and in relation to a crime of violence on or about June 12,

2004, were erroneous in light of the recent holding of the Supreme Court in Rosemond. Finally,

                                                    3
Burwell filed a supplement to his § 2255 after briefing was complete and an evidentiary hearing

was held arguing that his conviction under Count XI should be vacated in light of the Supreme

Court’s recent holding in Johnson.       As previously mentioned, the Court ultimately denied

Burwell’s claims in their entirety. In the instant motion for reconsideration, Burwell asserts three

grounds that he argues warrant reconsideration and the issuance of a Certificate of Appealability

as outlined above. The Court shall address each argument in turn.

       A. Burwell’s Challenge to Court’s Credibility Determinations

       Burwell first contends that the Court incorrectly credited his trial counsel’s account of a

private conversation with Burwell in reaching its determination on one of Burwell’s ineffective

assistance of counsel claims. Specifically, Burwell argued that his trial counsel was ineffective

for failing to question defense witness Reon Holloway at trial regarding Burwell’s whereabouts

on May 27, 2004, a date of the robbery of the Chevy Chase Bank in Chillum, Maryland. Burwell

was charged in the indictment with Racketeering Act 6 under Count I (“RICO conspiracy charge”),

related to this bank robbery but was not separately charged with any counts related to this robbery.

Both Burwell and Burwell’s trial counsel provided affidavits to the Court regarding this issue.

After reviewing the affidavits and the additional briefing on this issue, the Court determined that

it was necessary to appoint counsel to represent Burwell and hold an evidentiary hearing.

Specifically, the Court noted that there was factual dispute regarding whether Burwell informed

his trial counsel that Holloway was a potential alibi witness for the date of May 27, 2004, and the

Court found that an evidentiary hearing was necessary “in order to have the most complete record

on which to rule . . . .” Order (Sept. 19, 2015), at 8, ECF No. [939].

       After considering the record as a whole, including the evidence and testimony presented

                                                  4
during the evidentiary hearing, the Court ultimately held that Burwell’s trial counsel’s

“performance did not fall below an objective standard of reasonableness because [trial counsel]

was not informed that Holloway could present alibi testimony on Burwell’s behalf for the May 27,

2004, bank robbery.” Mem. Op. (Feb, 16, 2016), at 33, ECF No. [949]. In reaching this

determination, the Court specifically credited trial counsel’s testimony over that of Burwell and

Holloway with respect to the issue of whether trial counsel was ever told that Holloway could

provide alibi testimony for Burwell regarding the May 27, 2004, bank robbery. Burwell now

contends that the Court erred by “simply taking the lawyer’s side because Burwell cannot provide

more information from a conversation that took place in private . . . .”           Def.’s Mot. for

Reconsideration at 2. While the Court did credit Burwell’s trial counsel’s account over Burwell’s,

the Court expanded the record and provided each side with an opportunity to present evidence.

After considering that evidence, the Court described in detail in its Memorandum Opinion of

February 16, 2016, Mem. Op. (Feb. 16, 2016), at 9-33, ECF No. [949], the basis for its credibility

determinations and conclusions which the Court now incorporates herein, id. at 33-36. The Court

sees no reason to revisit its decision based on Burwell’s argument that the Court improperly

credited trial counsel’s account of the events that occurred and, as such, finds no basis to issue a

Certificate of Appealability based on this argument.

       B. Burwell’s Rosemond-Related Challenge

       Burwell next contends that Court should issue a Certificate of Appealability because the

jury instructions did not require proof that Burwell knew in advance that one of his codefendants

would be armed as required in light of the recent holding of the Supreme Court in Rosemond v.



                                                 5
United States, -- U.S. --, 134 S. Ct. 1240 (2014). 3 Pursuant to Count XI, Burwell was charged

with using and carrying a firearm during a crime of violence in violation of 18 U.S.C. § 924(c) or

aiding and abetting that offense in violation of 18 U.S.C. § 2. Superseding Indictment (Feb. 15,

2005), at 24. Burwell asserted that the jury instructions related to aiding and abetting of the offense

were erroneous in light of the holding in Rosemond. Specifically, in Rosemond, the Supreme Court

held that the government must prove a defendant aided and abetted under § 924(c) by establishing

“the defendant actively participated in the underlying drug trafficking or violent crime with

advanced knowledge that a confederate would use or carry a gun during the crime’s commission.”

134 S. Ct. at 1243. The Court denied Burwell’s claim finding first that Rosemond did not apply

retroactively and second that even if it did, Burwell himself carried a weapon during both of the

bank robberies underlying his conviction. See United States v. Burwell, 690 F.3d 500, 502 (D.C.

Cir. 2012).

       In response to the instant motion, the government noted that it did not have an opportunity

to respond to Burwell’s Rosemond argument because it was raised for the first time in his reply

brief and decided by the Court without further briefing. The government asserts that it was its

view that “Rosemond announced a substantive rule that does apply retroactively to cases presenting

a Rosemond issue in an original, rather than a second or successive, Section 2255 motion.” Govt.’s

Opp’n at 5 n.3. However, the government argues that Burwell procedurally defaulted this claim



       3
          In his motion for reconsideration, Burwell advances this as a vagueness challenge to the
RICO statute, 18 U.S.C. § 1962. However, the parties’ subsequent briefing focuses on the jury
instructions of the § 924(c) conviction in light of Rosemond. As such, the Court shall focus on the
latter argument. To the extent that the Court has mischaracterized Burwell’s argument here,
Burwell may correct the record in his supplemental briefing filed pursuant to this Memorandum
Opinion and Order.
                                                   6
because he did not argue it at trial, at sentencing, or on direct appeal. Moreover, the government

contends that Burwell cannot show his conviction or sentence was impacted by any error.

       In reaching its holding that the rule in Rosemond did not apply retroactively on collateral

review, the Court considered several district court cases supporting that view. See Aquil v. Butler,

No. CIV.A. 6:14-230-DCR, 2015 WL 1914404, at *4 (E.D. Ky. Apr. 27, 2015) (collecting cases

issued prior to the Court’s decision on January 15, 2015), appeal dismissed (Aug. 11, 2015); 4 but

see United States v. Greene, No. 14-C-431-08-CR-124, 2015 WL 347833, at *2 (E.D. Wis. Jan.

23, 2015) (holding that Rosemond does apply retroactively on collateral review). However, in

light of the government’s concession that that the rule is applicable retroactively to original § 2255

motions, the Court finds that the interests of justice require that Burwell be appointed counsel for

the purpose of representing him with his motion for reconsideration only as to his claim that the

Court should issue a Certificate of Appealability with respect to its denial of Burwell’s claim that

the jury instructions related to his 18 U.S.C. § 924(c) conviction were erroneous in light of the

holding the Supreme Court in Rosemond. 18 U.S.C. § 3006A(a)(2)(B). As such, the Court shall

issue an order appointing counsel for Burwell and shall hold this claim in abeyance pending further




       4
          Other courts addressing the issue after this Court entered its decision also found that
Rosemond did not apply retroactively. See, e.g., Branham v. Oddo, No. 1:16-cv-0553, 2016 WL
2961387, at *3 (M.D. Pa. May 23, 2016) (concluding that the rule in Rosemond does not apply
retroactively to cases on collateral review); Outlaw v. United States, No. 1:09cr123, 2016 WL
1175250, at *4 (N.D. W.Va. Mar. 23, 2016) (same); Kerr v. United States, No. 5:08-cr-302-F-1,
2016 WL 958202, at *3 (E.D.N.C. Mar. 8, 2016), appeal dismissed, No. 16-6641, 2017 WL
374744 (4th Cir. Jan. 26, 2017) (same); Cover v. United States, No. CR 08-091-ML, 2016 WL
323607, at *3 (D.R.I. Jan. 26, 2016) (same); Nix v. Daniels, No. 215CV00066WTLDKL, 2016
WL 126415, at *2 (S.D. Ind. Jan. 11, 2016) (same); Williams v. Spaulding, No. 3:15-cv-1992,
2015 WL 8332424, at *3 (M.D. Pa. Dec. 9, 2015) (same); McCalister v. United States, No. 1:10-
CR-446, 2015 WL 5016511, at *5 (E.D. Va. Aug. 18, 2015) (same).
                                                7
briefing on this issue by Burwell, through counsel, and the government.

       C. Burwell’s Johnson-related Challenge

       Finally, Burwell argues that the Court improperly concluded that his conviction for using

and carrying a firearm during and in relation to a crime of violence on or about June 12, 2004

(“Count XI”) should be vacated in light of the Supreme Court’s recent holding in Johnson v. United

States, -- U.S. --, 135 S. Ct. 2551 (2015). The Court denied Burwell’s claim, noting that Johnson

is applicable because it addresses the unconstitutionality of enhanced sentences under the residual

clause of the Armed Career Criminal Act, codified at 18 U.S.C. § 924(e), and Burwell was

convicted under a different section of the same statute, § 924(c). Mem. Op. (Feb. 16, 2016), at 37.

Further, the Court rejected Burwell’s argument that armed bank robbery under 18 U.S.C. § 2113(a)

and (d) is not a crime of violence. Id. The government contends that the Court should reject

Burwell’s claim because: (1) it is procedurally barred; and (2) the Court correctly concluded that

Johnson is inapplicable. See generally Govt.’s Opp’n at 9-12. The Court has determined that it

shall hold in abeyance Burwell’s claim regarding the applicability of Johnson to his conviction for

the reasons described herein.

       Burwell currently has two appeals pending before the United States Court of Appeals for

the District of Columbia Circuit (“D.C. Circuit”), both of which are held in abeyance pending this

Court’s ruling on the instant motion. The first addresses this Court’s rulings on Burwell’s prior §

2255 motion, which included a Johnson-related claim, and the second requests leave to file a

second or successive motion under § 2255 in light of the Johnson decision. See United States v.

Burwell, Case No. 16-3009 (D.C. Cir.); In re: Bryan Burwell, Case No. 16-3072 (D.C. Cir.). On

June 2, 2016, Chief Judge Beryl A. Howell issued a Standing Order “appoint[ing] the Office of

                                                8
the Federal Public Defender for the District of Columbia to represent any defendant previously

determined to have been entitled to appointment of counsel, or who is now indigent, to determine

whether that defendant may qualify to seek to vacate a conviction or to seek a reduction of sentence

and to present any motions to vacate a conviction and/or for reduction of sentence in accordance

with Johnson and Welch.” 5 Since that time, Chief Judge Howell has issued three additional

Standing Orders explaining procedures for addressing Johnson-related claims on collateral review

in this jurisdiction in light of other pending Supreme Court cases that might provide further clarity

on the applicability of Johnson to other claims. Pursuant to the procedures set out in Chief Judge

Howell’s Standing Orders, Burwell, through counsel, filed a [969] Motion Under 28 U.S.C. § 2255

to Vacate, Set Aside, or Correct Sentence on June 25, 2016, indicating that Burwell challenges his

conviction in light of Johnson. As explained in the Standing Order entered on October 14, 2016,

Burwell, through counsel, shall file a supplemental motion, if any, following the Supreme Court’s

decision in Sessions v. Dimaya, No. 15-1498 (U.S.). 6 The Court has determined that it shall hold

in abeyance Burwell’s request to reconsider its ruling in relation to the Johnson issue until further

briefing is complete pursuant to Chief Judge Howell’s Standing Orders and in order to allow the

parties to brief the import, if any, of the Supreme Court’s forthcoming decision in Dimaya to

Burwell’s argument regarding the applicability of Johnson to his § 924(c) conviction.

       In sum, the Court shall deny Burwell’s request that it issue a Certificate of Appealability

on the issue of its credibility determination based on the testimony and other evidence adduced




       5
          In United States v. Welch, -- U.S. --, 136 S. Ct. 1257, 1265 (2016), the Supreme Court
held that Johnson announced a substantive rule that applies retroactively on collateral review.
        6
          Oral argument was held before the Supreme Court on January 17, 2017.
                                                   9
during the evidentiary hearing. The Court shall hold in abeyance Burwell’s request that the Court

issue a Certificate of Appealability related to Burwell’s claims that: (1) the Court erred in denying

Burwell’s claim that the jury instructions related to his 18 U.S.C. § 924(c) conviction were

erroneous in light of the holding the Supreme Court in Rosemond; and (2) the Court erred in failing

to apply the Supreme Court’s ruling in Johnson to Burwell’s conviction pursuant to 18 U.S.C. §

924(c). The Court shall appoint counsel for Burwell and require further briefing on the issue of

Burwell’s Rosemond-related claim. The Court also shall await further briefing on Burwell’s

Johnson-related claim to be completed pursuant to the Standing Orders issued by Chief Judge

Howell setting forth the procedure for briefing of such claims.

       Accordingly, it is this 22nd day of May, 2017, hereby

       ORDERED that Bryan Burwell’s [953] Motion Under Federal Rule of Civil Procedure

59(e) is DENIED IN PART and HELD IN ABEYANCE IN PART; and it is further

       ORDERED that Burwell’s request that the Court issue a Certificate of Appealability

related to his claim that his trial counsel was ineffective for failing to question defense witness

Reon Holloway at trial regarding Burwell’s whereabouts on May 27, 2004, a date of the robbery

of the Chevy Chase Bank in Chillum, Maryland, is DENIED; and it is further

       ORDERED that Burwell’s request that the Court issue a Certificate of Appealability

regarding Burwell’s challenge to the jury instructions related to his 18 U.S.C. § 924(c) conviction

in light of the holding of the Supreme Court in Rosemond v. United States, -- U.S. --, 134 S. Ct.

1240 (2014), is HELD IN ABEYANCE pending further briefing as directed below; and it is further

       ORDERED that Gregory S. Smith, Esq. is hereby appointed to represent Bryan Burwell

in relation to his request that the Court issue a Certificate of Appealability regarding his challenge

                                                 10
to the jury instructions related to his 18 U.S.C. § 924(c) conviction in light of the holding the

Supreme Court in Rosemond; 7 and it is further

       ORDERED that Burwell, through counsel, shall file a brief addressing the issue of whether

the Court should issue a Certificate of Appealability based on his challenge to the jury instructions

related to his 18 U.S.C. § 924(c) conviction in light of the holding the Supreme Court in Rosemond

by no later than June 6, 2017, and the government shall file its response, if any, to Burwell’s brief

by no later than June 20, 2017; and it is further

       ORDERED that Burwell’s request that the Court issue a Certificate of Appealability

regarding his argument that his 18 U.S.C. § 924(c) conviction should be vacated in light of the

Supreme Court’s holding Johnson v. United States, -- U.S. --, 135 S. Ct. 2551 (2015) is HELD IN

ABEYANCE pending further briefing pursuant to Chief Judge Howell’s Standing Orders

regarding Johnson-related claims; and it is further

       ORDERED that the Clerk of the Court shall mail a copy of this Memorandum Opinion

and Order to Burwell at his address of record.

       SO ORDERED.




                                                          /s/
                                                      COLLEEN KOLLAR-KOTELLY
                                                      UNITED STATES DISTRICT JUDGE



       7
         The Court confirmed Mr. Smith’s availability to be appointed to represent Burwell with
respect to this issue. The Court notes that Mr. Smith previously represented Burwell with respect
to one issue raised in his motion filed pursuant to 28 U.S.C. § 2255 in this matter and is
representing Burwell on appeal.
                                                 11
