4 F. Supp. 3d 114
D.D.C.2013Background
- In May 2003 Park Police stopped Charles King, Jr.; officers recovered >$7,000 on his person, chunks of cocaine base from his car, and a loaded .45 handgun. King was charged with possession with intent to distribute 50+ grams of cocaine base (21 U.S.C. § 841(b)(1)(A)(iii)) and a § 924(c) firearm offense.
- King was convicted at a second trial in December 2003 and originally sentenced under mandatory Guidelines to 151 months on the drug count plus a consecutive 60 months on the § 924(c) count; the D.C. Circuit affirmed but found Booker error and remanded for resentencing.
- On remand (2008) King was resentenced to 121 months on the drug count plus a consecutive 60 months on the § 924(c) count. King filed a pro se § 2255 motion claiming ineffective assistance by trial counsel (Johnson) and appellate/resentencing counsel (D’Antuono) on three grounds and sought appointed counsel.
- King’s three ineffective-assistance claims: (1) counsel failed to press that the government did not prove the cocaine base was smokable/crack (relying on United States v. Brisbane); (2) counsel failed to challenge Count Two as duplicitous under § 924(c); (3) counsel failed to argue that § 924(c) does not require a mandatory consecutive 5-year sentence where a higher mandatory minimum applies.
- Court denied an evidentiary hearing and relief: King failed to show prejudice under Strickland on the Brisbane claim (court found sufficient evidence that the substance was smokable/crack); the duplicitous-indictment claim would likely have failed and was barred if not raised pretrial; and Abbott v. United States foreclosed King’s § 924(c) consecutive-sentence theory. King’s motion to amend to add a Lafler-based plea claim was denied as time-barred.
Issues
| Issue | King’s Argument | Government’s Argument | Held |
|---|---|---|---|
| Whether counsel was ineffective for not arguing Brisbane (that gov’t failed to prove crack/smokable cocaine) | King: evidence did not show substance was crack; counsel should have moved for acquittal/raised at sentencing or on appeal | Govt: trial record contained sufficient evidence (officer descriptions, DEA form, chemist report, expert testimony) | Court: Denied — no Strickland prejudice; record supports smokable/crack finding |
| Whether Count Two (§ 924(c)) was duplicitous and counsel ineffective for not moving to dismiss | King: § 924(c) lists distinct offenses (use/carry vs. possess in furtherance) so single count is duplicitous | Govt: § 924(c) is disjunctive and may be charged conjunctively; motion must be raised pretrial | Court: Denied — motion likely would have been denied; appellate counsel not deficient because claim should have been raised pretrial |
| Whether counsel was ineffective for not arguing § 924(c) does not mandate a consecutive 5-year term when a higher mandatory minimum exists | King: Second Circuit decisions support his view that § 924(c) should not add a 5-year consecutive term where another offense carries a greater minimum | Govt: Supreme Court precedent controls; Abbott rejects King’s theory | Court: Denied — Abbott requires mandatory consecutive § 924(c) sentence; no prejudice |
| Whether King’s proposed amendment adding a Lafler-based plea claim is timely | King: Lafler (2012) recognized new plea-right theory and justifies amendment | Govt: Lafler merely applied preexisting Strickland/Hill principles; amendment untimely | Court: Denied — Lafler did not announce a new right; claim time-barred |
Key Cases Cited
- United States v. Brisbane, 367 F.3d 910 (D.C. Cir. 2004) (interpreting “cocaine base” to require smokable form such as crack)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-part test for ineffective assistance of counsel)
- Lafler v. Cooper, 566 U.S. 156 (2012) (application of Strickland in plea-rejection context; prejudice requires reasonable probability the plea would have been accepted and resulted in lesser outcome)
- Abbott v. United States, 131 S. Ct. 18 (2010) (§ 924(c) mandatory consecutive sentence not displaced by higher mandatory minimum on another count)
- United States v. Eli, 379 F.3d 1016 (D.C. Cir. 2004) (post-Brisbane affirmance that evidence supported finding drugs were crack/smokable)