United States v. Burwell
253 F. Supp. 3d 283
| D.D.C. | 2017Background
- Bryan Burwell, convicted on RICO and related counts including 18 U.S.C. § 924(c) (Count XI), filed a 28 U.S.C. § 2255 motion raising multiple ineffective-assistance claims and later arguments based on Rosemond and Johnson.
- The district court denied Burwell’s § 2255 motion in full and declined to issue a Certificate of Appealability (COA).
- Burwell moved under Fed. R. Civ. P. 59(e) for reconsideration limited to the court’s refusal to grant a COA on three issues: (1) credibility finding favoring trial counsel about an alleged private conversation concerning an alibi witness; (2) jury instructions for the § 924(c) conviction in light of Rosemond v. United States; and (3) applicability of Johnson v. United States to his § 924(c) conviction.
- The court found no basis to disturb its credibility determination after an evidentiary hearing and denied a COA on that claim.
- The court held Burwell’s Rosemond and Johnson challenges in abeyance, appointed counsel for the Rosemond issue, and ordered further briefing (following Chief Judge Howell’s standing orders for Johnson-related claims).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Credibility of counsel’s testimony about private conversation re: alibi witness (Holloway) | Burwell: court wrongly credited counsel over him; private convo prevents further proof | Govt: court conducted evidentiary hearing, weighed affidavits and testimony, credited counsel | Denied COA; court affirmed its credibility findings after evidentiary hearing |
| Jury instructions for § 924(c) conviction under Rosemond | Burwell: instructions failed to require proof of advance knowledge a co‑defendant would be armed per Rosemond | Govt: Rosemond may be substantive and retroactive to original § 2255 but claim was procedurally defaulted and may not affect outcome | Held in abeyance; counsel appointed for Burwell; ordered supplemental briefing on whether to grant COA |
| Applicability of Johnson to § 924(c) conviction | Burwell: Johnson renders his § 924(c) conviction invalid | Govt: Johnson addresses ACCA residual clause and is inapplicable to § 924(c); claim procedurally barred | Held in abeyance pending further briefing under Chief Judge Howell’s standing orders |
| Motion for relief under Rule 59(e) standard | Burwell: seeks reconsideration of COA denial (not merits) | Govt: Rule 59(e) requires extraordinary circumstances; not a vehicle to relitigate | Partly denied (credibility); partly held in abeyance (Rosemond, Johnson) |
Key Cases Cited
- Rosemond v. United States, 134 S. Ct. 1240 (2014) (aiding and abetting § 924(c) requires advance knowledge a confederate would use or carry a gun)
- Johnson v. United States, 135 S. Ct. 2551 (2015) (invalidated ACCA residual clause)
- Welch v. United States, 136 S. Ct. 1257 (2016) (Johnson announced a substantive rule retroactive on collateral review)
- Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008) (Rule 59(e) is not for relitigation or raising arguments available earlier)
- Firestone v. Firestone, 76 F.3d 1205 (D.C. Cir. 1996) (Rule 59(e) relief requires intervening change of controlling law, new evidence, or clear error)