UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,
v.  Criminal Case No. 07-007 (GK)
ANDRE DREW, o
Defendant.
MEMORANDUM OPINION

Defendant has filed a Motion, Pursuant to 20 U.S.C. § 2255, to Vacate, Set Aside, or Correct
Sentence [Dkt. No. 82]. Upon consideration of the Motion, the Govemment’s Opposition [Dkt. No.
85], Defendant’s Reply [Dkt. No. 87], and the entire record in this case, the Court concludes, for the
following reasons, that the Motion will be denied.
I. PROCEDURAL BACKGROUND

On February 22, 2006, Defendant was indicted in the Superior Court for the District of
Columbia in Case No. 2005-FEL-7l74 on multiple counts of child sexual abuse and using a minor
in a sexual performance. Defendant was represented in that case by Brandi Harden, Esq. On
December l, 2006, Ms. Harden filed a Motion to Withdraw citing irreconcilable differences with
Defendant, and on December 7, 2006, the Superior Court granted her Motion. On January 22, 2007,
Defendant filed a pro se Motion to Dismiss, alleging that Ms. Harden’s representation had been
ineffective and, therefore, the case should be dismissed.

On Januaiy 3 1, 2007, a Federal Grand Jury charged Defendant by indictment with one count
of Enticing a Minor in Sexual Conduct for the Purpose of Production (l 8 U.S.C. § 225 l(a)) (Count
l); two counts of First Degree Child Sexual Abuse (D.C. Code § 22-3 008) (Counts 2 and 3); and one

count of Second Degree Child Sexual Abuse (D.C. Code § 22-3009) (Count 4). On January 31,

 

2007, the Superior Court dismissed without prejudice the case against Defendant on the
understanding that he had been indicted in this Court.

Two experienced criminal defense lawyers were appointed to represent Defendant in the
criminal proceedings in this case. Counsel filed multiple pre-trial Motions on Defendant’s behalf
including a Motion to Suppress Evidence and Statements. At a Motions Hearing on May l, 2007,
the United States agreed that it would not use Defendant’s statements in its case-in-chief. 5/1/07 Tr.
43. The Govemment also agreed that the search of Defendant’s apartment had been illegal, that it
would not use in its case-in-chief the pornographic photos of D.B. and A.B. that were recovered
during that search, and that it would not use the evidence recovered on the same day from
Defendant’s car. I_d_. at 5 l. However, the Govemment did not concede that the evidence that was
produced by Defendant’ s brother pursuant to a subpoena dl_i_c_e§ t_eg@ was improperly obtained. Ld.
at 53-57. At a pre-trial hearing a few days later, the Court agreed with the Government’s position.
5/7/07 Tr. 35. Therefore, Defendant’s Motion to Suppress Evidence and Statements was denied in
part as moot and denied in part on the merits.

On May 8, 2007, Defendant’s jury trial began. lt concluded on May l5, 2007, when the jury
found Defendant guilty on Count 1 (Enticing a Minor in Sexual Conduct for the Purpose of
Production) and Count 2 (First Degree Child Sexual Abuse). The jury deadlocked on Count 3 (First
Degree Child Sexual Abuse) and Count 4 (Second Degree Child Sexual Abuse) and the Court
declared a mistrial on these counts.

On September l6, 2007, the Court sentenced Defendant to 327 months of imprisonment on
Count 1 and to a consecutive term of 216 months of imprisonment on Count 2. Thereafter,

Defendant noted an appeal asserting error by the Court, Govemment misconduct, and ineffective

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assistance of trial counsel. On May 19, 201 1, the United States Court of Appeals for the District of
Columbia Circuit rejected all of Defendant’s claims and affirmed his convictions. United States v.
l, 422 F. App’x 1 (D.C. Cir. 201 1). Defendant’s Petition for a Writ of Certiorari was denied on
October 1, 2012. Drew v. United States, 133 S.Ct. 369 (2012).

On August 27, 2012, Defendant filed the present, timely, Section 2255 Motion.
II. APPLICABLE LEGAL PRINCIPLES

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 it 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. "It is settled that a § 2255
motion is not meant to be a substitute for a direct appeal and that ‘it does not encompass all claimed
errors in conviction and sentencing."’ United States v. Pollard, 959 F.2d 1011, 1028 (D.C. Cir.),
(quoting United States v. Addonizio. 442 U.S. 179, 184-85 (1979)), Lt. A:gied_, 506 U.S. 915
(1992) .

In particular, relief on collateral attack is available only where there has been an error that
is jurisdictional or constitutional or there is "a fundamental defect which inherently results in a
complete miscarriage of justice" or "an omission inconsistent with the rudimentary demands of fair
procedure." Hill v. United States, 368 U.S. 424, 428 (1962). Accordingly, "in a § 2255 collateral
challenge, in order to gain relief under any claim, [a defendant] is obliged to show a good deal more
than would be sufficient on direct appeal from his sentence." mg 959 F.2d at 1020 (emphasis

in original).

Finally, claims which have been previously raised and rejected on direct appeal will not
normally be entertained in a Section 2255 Motion. Reed v. Farley, 512 U.S. 339, 358 (1994); l
States v. Jackson, No. 98-3010, 1998 WL 389111, at *1 (D.C. Cir. June 26, 1998).

III. DEFENDANT’S SECTION 2255 CLAIMS

A. Several of Defendant’s Claims Must Be Denied Because They Were Rejected By
Our Court of Appeals on Direct Appeal

Specifically, three of Defendant’s ineffective assistance of counsel claims (claims relating
to counsel’s purported failure to assert a Fourth Amendment challenge, and a claim relating to
counsel’s purported failure to call Detective Palchak and A.B. to testify) and Defendant’s claim of
Court error (relating to the Court’s refusal to allow the defense to call Detective Palchak to testify
about A.B.’s statements) were raised and rejected on direct appeal. Because Defendant has not
pointed to any change in the law since his direct appeal that would allow him to re-visit these claims
on collateral attack, the claims must be summarily denied. §e_e United States v. Greene, 834 F.2d
1067, 1070 (D.C. Cir. 1987), §§ i, 487 U.S. 1238 (1988) ("[A] federal prisoner cannot raise
collaterally any issue litigated and adjudicated on direct appeal from his conviction, absent an
intervening change in the law.").

B. Defendant Has Failed to Show Any Prejudice Resulting From His Claims of
Ineffective Assistance of Counsel

1. Failure to Show Prejudice
As is well known, Strickland v. Washington, 466 U.S. 668, 687 (1984), set forth the
requirements for prevailing on ineffective assistance of counsel claims. First, Defendant must prove
that counsel’s performance was deficient; and second, that counsel "made errors so serious that

counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment."

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Ld. at 687. In particular, the Defendant must prove that counsel’s deficient performance "prej udiced
the defense." I;d. The Court must view counsel’s performance from a highly deferential viewpoint
and must "indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance." Ld. at 689.

In order to establish prej udice, a defendant must prove that "there is a reasonable probability
that, but for counsel’ s unprofessional errors, the result of the proceeding would have been different."
Ld. at 694. The Defendant carmot make such a showing in this case.

The Government’s evidence was extremely compelling. The minor child, D.B., was 13 years
old when he testified. He first met Defendant when he was only eight years old. D.B. testified at
length as to how the Defendant developed a relationship with him by taking him to a local go-kart
track, playing video games with him in the bedroom of Defendant’s home, playing strip poker with
other friends of D.B. at the Defendant’s home, and drinking vodka and smoking marijuana with the
Defendant in his bedroom.

After losing track of each other, D.B. met the Defendant again when he was 12 years old and
their “friendship" resumed. The Defendant allowed D.B. to drive his car, bought him gifts, gave him
a cellphone, and gave him $100 towards the purchase of a dirt bike, which was then kept at
Defendant’s home. D.B. testified that during this time, he had sex with the Defendant who
sometimes gave him money after doing so. He testified that he and the Defendant engaged in oral
sex. Although the sex acts generally occurred in Defendant’s bedroom, D.B. testified that he and
the Defendant once had sex in an alley near the Anacostia Metro Station. In total, D.B. estimated

that he and the Defendant had sex 15-20 times.

On one occasion, Defendant offered D.B. and his 13 year old friend, A.B., $500 to pose for
photographs. The Defendant then went to Rite Aid and purchased a disposable camera and returned
to his bedroom with the camera. Defendant directed the boys to remove all their clothing and told
them how they should pose. These poses included oral sex and intercourse between the two boys.
Several of these photographs were introduced into evidence as Govemment Exhibits 2-11.

Ultimately, Defendant went to a CVS Store located at 660 Rhode island Avenue, N.E., and
requested a one-hour development of the pictures on the disposable camera. At least two CVS
employees looked at the photographs after they were developed and refused to give them to the
Defendant when he returned to claim them. The Govemment introduced a videotape showing
Defendant dropping off the camera and returning to collect the photographs.

The Govemment also introduced the envelope that Defendant completed at the time he
dropped off the camera. The supervisor who refused to retum the photographs to the Defendant later
notified the Metropolitan Police Department ("MPD") that someone had submitted graphic
photographs for development and tumed over the photographs, negatives, envelope, and surveillance
videotape to officers of the MPD.

Over objection, the Govemment was allowed to introduce evidence, and the parties
stipulated, that Defendant was convicted in 1984 in the Superior Court of the District of Columbia
of sodomy on a 17-year old male.

Based upon the strength of the Govemment’s evidence, in particular the photographs of the
two boys introduced as exhibits and the credibility of D.B., the Court concludes that none of the

alleged errors of trial counsel, even if proven, could establish "a fundamental defect which inherently

results in a complete miscarriage of justice" or "an omission inconsistent with the rudimentary
demands of fair procedure." LIQ, 368 U.S. at 428.
2. Failure to Show "Deficient Performance"

Initially, it should be noted that three of the Defendant’s ineffective assistance of counsel
claims were raised and rejected on his direct appeal to the Court of Appeals. There has been no
change in the law since the issuance of the Court of Appeals opinion denying the direct appeal and,

therefore, the claims are to be summarily rejected.‘ Greene, 834 at 1071.

Finally, the remainder of Defendant’s ineffective assistance of counsel claims must be denied
because they are extremely vague and/or lack merit.

For example, Defendant argues that his counsel failed to "investigate case law." However,
he fails to cite a single case that his counsel should have discovered, or presented, or that would have
made a different verdict reasonably probable. Defendant also argues that counsel should have
"effectively" presented "the issue of transfer" of his Superior Court case to the District Court. He
does not identify what that "issue" was, and certainly has not shown the relevance of the Superior
Court proceedings, which were dismissed, to this case. Defendant makes the very serious charge that
his counsel "lied" during his opening statement. He offers no evidence to sustain or support such
an accusation. Finally, Defendant argues that counsel was ineffective for "failing" to "place" him
on the stand -- presumably to testify. The record shows that in response to the Court’s inquiries

during trial as to whether he wished to testify, Defendant made it clear that he did not wish to; nor

‘ Defendant inaccurately makes certain factual assertions about counsel’ s failure to take

certain actions. However, the record is clear that counsel Ld seek to suppress the evidence seized
from Defendant’s home, car, and brother. The record also reflects that counsel sought to have the
Detective testify about A.B.’ s statements, but was not permitted to do so because the Court sustained
the Government’s objection to such testimony.

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does he submit any statement or affidavit setting forth what his testimony would have been; nor does
he realize that if he had testified, he would have been confronted on cross-examination with the
damning statements that were contained in the videotape statement he gave to the police on the day
of his arrest.

C. Defendant’s Remaining Claims Lack Merit

Defendant argues that the search of his home violated the Fourth Amendment; that the
Govemment failed to establish that the pomographic photographs he took of the two young boys
were transported in interstate commerce; and that this Court lacked jurisdiction over Count 2 of the
indictment because it is a D.C. Code offense. Defendant failed to raise any of these claims in his
direct appeal and, therefore, they are, at this time, procedurally barred. United States v. Frady, 456
U.S. 152, 164 (1982) ("[O]nce the defendant’s chance to appeal has been waived or exhausted, . .
. we are entitled to presume he stands fairly and finally convicted, especially when . . . he already
has had a fair opportunity to present his federal claims to a federal forum.").

The only one of these claims that needs to be addressed is the Defendant’s argument that the
Govemment failed to establish that the photographs Defendant took were transferred in interstate
commerce or that he intended for the photographs to be transferred in interstate commerce. Under
the relevant statute, 18 U.S.C. § 2251(a), the necessary interstate commerce element may be satisfied
by a showing that "the visual depiction was produced using materials that have been mailed, shipped,
or transported in interstate commerce." United States v. Griffith, 284 F.3d 338, 346-47 (2d Cir.),
_c_ce;t_. c_le_nigd, 537 U.S. 986 (2002). The Govemment satisfied this essential element of the offense

by presenting evidence that the film in the camera that Defendant used to photograph the two young

boys was made in Japan and shipped to the United States in interstate commerce. Therefore, there
is no question that the statutory requirement was met.

Defendant also argues that the Court lacked jurisdiction over Count 2 because it was a D.C.
Code offense. That is simply not the law. D.C. Code 1 1-502(3) "empowers the U.S. District Court
for the District of Columbia to try a local criminal offense if the offense ‘is joined in the same
information or indictment with any Federal offense."’ United States v. Kember, 648 F.2d 1354,
1359 (D.C. Cir. 1980).

For all the reasons stated, the Court concludes that Defendant’s Motion must be denied.

./"' // l 
Apri14, 2013 CZ`  

Gladys Kessle
United States District Judge

Copies via ECF to all counsel of record

 

