Dinwiddie v. USA

Filing 22

MEMORANDUM AND ORDER..IT IS HEREBY ORDERED that Dennis Dinwiddie's motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 [# 1] is denied.IT IS FURTHER ORDERED that that this Court will not issue a certificate of appealabil ity, as Dinwiddie has not made a substantial showing of thedenial of a federal constitutional right. A separate Judgment in accordance with this Memorandum and Order is entered this same date. Signed by District Judge Catherine D. Perry on 9/23/14. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
DENNIS DINWIDDIE,
Movant,
vs.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 1:12CV33 CDP

MEMORANDUM AND ORDER
Movant Dennis Dinwiddie is currently incarcerated at the Terra Haute
Federal Correctional Complex in Terra Haute, Indiana. A jury convicted
Dinwiddie on four counts related to a conspiracy to distribute marijuana and the
murder of Sergio Burgos. This matter is before me on Dinwiddie‟s motion to
vacate, set aside, or correct sentence under 28 U.S.C. Section 2255. Dinwiddie
alleges several grounds for relief, including a claim that he was deprived of his
right to testify at trial. I held an evidentiary hearing on that claim. The remaining
grounds for relief each allege failure by trial counsel to introduce evidence that
would establish Dinwiddie‟s innocence of the various crimes for which he was
convicted.
Based on the evidence, the arguments of counsel, and the briefs filed on the
§ 2255 motion, I conclude that Dinwiddie‟s motion is meritless. The evidence

indicates that Dinwiddie was aware of his constitutional right to testify at trial, but
that he followed the prudent advice of his counsel and declined to exercise that
right. In addition, because the evidence against him is overwhelming and because
the uncalled witnesses would have been subject to impeachment, Dinwiddie was
not prejudiced by his counsel‟s other alleged failures. The motion will be denied.
I.

Background

I.A. Procedural History
Following a four-day jury trial, Dinwiddie was convicted of conspiracy to
distribute marijuana in excess of 50 kilograms (Count I), a Travel Act1 violation
resulting in death (Count II), possession of a firearm in furtherance of a drug
trafficking crime that resulted in murder (Count III), and being a felon in
possession of a firearm (Count IV). I sentenced him to incarceration terms of 360
months on Count I and life on Counts II and IV, to be served concurrently. I also
sentenced Dinwiddie to life imprisonment on Count III, to be served consecutively
to the other counts.2 The Court of Appeals for the Eighth Circuit affirmed his
conviction and sentence on August 25, 2010. United States v. Dinwiddie, 618 F.3d
821 (8th Cir. 2010). Dinwiddie then filed his § 2255 motion.
On August 19, 2014, I held a hearing to receive evidence as to whether
Dinwiddie knew of his constitutional right to testify. Dinwiddie appeared with
1
2

18 U.S.C. § 1952(a).
Criminal Case No. 4:06-CR-134-CDP-2.

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privately retained counsel for the hearing, where he testified and elicited testimony
in support of his claim. The government offered the testimony of one of
Dinwiddie‟s trial attorneys.
I.B. Factual Background
Dennis Dinwiddie and Michael Meador were convicted in separate trials of
conspiracy to distribute marijuana that resulted in the murder of Sergio Burgos.
Their appeals were consolidated, and the Eighth Circuit set forth the facts
supporting their respective convictions:
Sergio Burgos Gonzales (Burgos) was part of a conspiracy to
distribute marijuana with Dinwiddie and Meador. Burgos shipped
marijuana from Texas via express mail services to Dinwiddie in
Tennessee and Meador in Missouri. After the marijuana was
distributed, Burgos visited Dinwiddie and Meador to collect payment.
On January 25, 2006, Burgos shipped approximately fifty
pounds of marijuana to Dinwiddie. Police intercepted the shipment
and made a controlled delivery in Clarksville, Tennessee, while
surveilling the residence to which the delivery was made. Police
observed Dinwiddie outside of the residence, holding what appeared
to be a packing slip from the delivery. Police approached him, asking
him if he possessed any weapons or drugs. Dinwiddie said no and
consented to a search of his person and vehicle. During the search,
police recovered from Dinwiddie‟s pants pocket a packing slip from
one of the packages in the shipment that had just been delivered.
When asked about his involvement in the shipment, Dinwiddie stated
that he was a middleman for Burgos. Police confiscated the
marijuana, but did not make any arrests.
Less than a week later, Dinwiddie, Meador, and Burgos met in
Tennessee at which time they concocted a plan wherein Meador
would travel to Texas with Burgos to purchase more marijuana.
Dinwiddie provided Meador with $10,000 for the transaction. During
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the trip, Burgos expressed anger at Dinwiddie and speculated that
Dinwiddie might have stolen the drugs that were seized as a result of
the controlled delivery. In Texas, Meador gave Burgos the $10,000 to
purchase marijuana and Burgos took the money, promising to do so.
Burgos, however, did not return with the marijuana.
Meador informed Dinwiddie that Burgos had left with the
money and failed to return with the drugs as planned. Meador
traveled to Tennessee and was picked up by Dinwiddie in Memphis.
As they drove together to Clarksville, Dinwiddie expressed anger at
Burgos. Meador indicated that he could locate Burgos and agreed to
arrange a future meeting between Dinwiddie and Burgos. After
returning to Missouri, Meador spoke with Burgos and told him that
they could continue doing business without Dinwiddie. In March
2006, Burgos shipped a package of marijuana to Meador in Missouri.
Shortly thereafter, Burgos met Meador to collect his payment.
Looking forward, they agreed that Burgos would personally bring 200
pounds – a larger than normal amount – of marijuana to Meador in
April.
On April 21, 2006, Burgos arrived at Meador‟s grandmother‟s
house in New Madrid, Missouri, with 200 pounds of marijuana,
accompanied by an associate, Raul Cruz. Meador and Michael
Jeremy Hunt, an associate of Meador‟s, immediately began preparing
the marijuana for distribution to local customers and began
distribution that night, collecting $40,000. The plan was for Burgos to
return to the house the following morning to receive payment for the
marijuana. Meador called Dinwiddie to tell him that Burgos was in
Missouri. Dinwiddie acquired a .45 caliber handgun from his
girlfriend, Genalle Brown; recruited Lawan James, an old friend, to
accompany him; and proceeded to New Madrid.
When Dinwiddie met Meador in New Madrid, they discussed
the February 2006 incident in which Burgos absconded with
Dinwiddie‟s $10,000. Meador encouraged Dinwiddie to confront
Burgos. Meador and Dinwiddie then drove to the hotel at which
Burgos was staying. Meador cautioned Dinwiddie not to confront
Burgos at the hotel because of the risk that Burgos might escape.
Dinwiddie complied and returned to Meador‟s grandmother‟s house,
where, at Meador‟s direction, he concealed his car behind the house to
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hide it from Burgos‟s sight. At Dinwiddie‟s request, Meador retrieved
his grandmother‟s .32 caliber handgun and gave it to James.
When Burgos and Cruz approached the house the following
morning, Meador directed Dinwiddie, James, and Hunt to hide so that
Burgos would not flee at the sight of them. Meador and Hunt hid in
the bathroom. When Burgos entered the house, he called for Meador.
Dinwiddie confronted Burgos, pistol-whipped him, and forced him
into the bedroom, where Dinwiddie demanded to know where the
$10,000 was and why Burgos had disappeared with the money.
Burgos said that he had acted out of fear, that his cousin Mario had
made off with money, and that it could not be returned. An argument
ensued between Dinwiddie and Burgos about the intercepted drug
shipment.
Dinwiddie asked Burgos if he had called him a “bitch,” as
Meador had related. Dinwiddie then shot Burgos once in the groin.
Burgos beseeched Dinwiddie to spare his life. According to James,
Dinwiddie replied, “Who‟s a bitch now?,” and shot Burgos again, this
time in the head. Dinwiddie then ordered James to shoot Burgos.
James, using the .32 caliber handgun provided by Meador, shot
Burgos once in the back.
Frightened by the commotion, Meador and Hunt broke out of
the bathroom window and retrieved guns from a neighboring house.
Meador acquired a shotgun and Hunt picked up a carbine. Meador
directed Hunt to keep the carbine trained on Dinwiddie when he
exited the house. Meador told Hunt to shoot Dinwiddie if he made an
aggressive move. Dinwiddie and Meador spoke and the guns were
put down.
At Dinwiddie‟s direction, James and Cruz loaded Burgos‟s
body into Burgos‟s car. Dinwiddie, James, and Cruz drove to a
nearby location and discarded Burgos‟s body in a road-side ditch.
Meador and Hunt cleaned up the room in which Burgos had been
murdered, burning bloody linens and Burgos‟s and Cruz‟s cell
phones. Dinwiddie gave some of Burgos‟s marijuana to James and
Meador gave some of Burgos‟s marijuana to Hunt. Meador told Hunt
to lay low for a while and that they could resume the marijuana
business with Dinwiddie in the future. Dinwiddie and James
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discarded the handguns by throwing them out the window while
driving back to Tennessee. During this ride, James asked Dinwiddie
about Dinwiddie‟s order to shoot Burgos. According to James,
Dinwiddie replied, “Everybody had to play their part.”
Burgos‟s body was found by police shortly after it was
discarded. Police connected Burgos to Dinwiddie based upon a report
filed by the Texas Department of Public Safety regarding the
intercepted drug shipment in January. Investigators located Hunt at
his sister‟s house in Dyersburg, Tennessee. Hunt, fearful for his life,
spoke candidly to police about the murder and identified Dinwiddie as
one of the perpetrators. Shortly thereafter, Meador learned that Hunt
had spoken to police. Meador then went to police in St. Genevieve,
Missouri, to talk about the murder. Meador was less than candid,
telling police that a group of unknown Haitians had murdered Burgos
and denying any personal association with the killers.
Upon being arrested, James cooperated with investigators and
explained what had happened in New Madrid. He led police to the
area in Missouri where he and Dinwiddie had discarded the handguns
used to kill Burgos. After a multi-day search, police recovered a .45
caliber handgun. Subsequent forensic analysis matched a .45 caliber
shell found at the murder scene to the recovered handgun. Police
obtained a search warrant for Dinwiddie‟s residence and an arrest
warrant for Dinwiddie. At Dinwiddie‟s residence, police recovered a
pair of blue jeans with blood stains and an April 22, 2006, receipt for
gas from a truck stop in Missouri.
Dinwiddie, 618 F.3d at 827–29.
II.

Legal Standards

Under 28 U.S.C. § 2255, a federal prisoner may seek relief on the ground
that “the sentence 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
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subject to collateral attack. . . .” 28 U.S.C. § 2255. Claims based on a federal
statute or rule, rather than on a specific constitutional guarantee, can be raised “on
collateral review only if the alleged error constituted a fundamental defect which
inherently results in a complete miscarriage of justice.” Reed v. Farley, 512 U.S.
339, 354 (1994) (quotations omitted). A motion pursuant to § 2255 “is „intended
to afford federal prisoners a remedy identical in scope to federal habeas corpus.‟”
United States v. Wilson, 997 F.2d 429, 431 (8th Cir. 1993) (quoting Davis v.
United States, 417 U.S. 333, 343 (1974)).
To succeed on a claim of ineffective assistance of counsel, the litigant must
prove (1) that counsel‟s performance was deficient in that “counsel made errors so
serious that counsel was not functioning as the „counsel‟ guaranteed by the Sixth
Amendment” and (2) that counsel‟s “deficient performance prejudiced the
defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). To prove
Strickland‟s first prong, deficient performance, a movant must demonstrate that
“counsel‟s representation fell below an objective standard of reasonableness.” Id.
at 688. When evaluating counsel‟s performance, a court “must indulge a strong
presumption that counsel‟s conduct falls within the wide range of reasonable
professional assistance.” Id. at 689. In addition, the objective reasonableness of
counsel‟s performance is assessed “in light of professional norms prevailing when

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the representation took place.” Sinisterra v. United States, 600 F.3d 900, 906 (8th
Cir. 2010).
Even if sufficient proof exists with respect to the first prong, relief may only
be obtained if a petitioner also proves that the deficient performance prejudiced the
case (the second prong). Strickland, 466 U.S. at 697. A movant must demonstrate
that “there is a reasonable probability that, but for counsel‟s unprofessional errors,
the result of the proceeding would have been different.” Id. at 694. This showing
of a “reasonable probability” of a different outcome is less than a preponderance of
the evidence but greater than just a possibility; it “is a probability sufficient to
undermine confidence in the outcome.” Paul v. United States, 534 F.3d 832, 837
(8th Cir. 2008). The Court may address the two Strickland prongs in any order,
and if a petitioner fails to make a sufficient showing of one prong, the Court need
not address the other prong. See Strickland, 466 U.S. at 697; Fields v. United
States, 201 F.3d 1025, 1027 (8th Cir. 2000) (“If we can answer „no‟ to either
question, then we need not address the other part of the test.”).
III.

Discussion

Dinwiddie formally raises four grounds for relief, each of which implicates
his rights to due process and effective assistance of counsel. As his first ground,
Dinwiddie alleges his defense counsel failed to introduce testimony that Dinwiddie
was not guilty of conspiring to distribute marijuana in excess of 50 kilograms and
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possession of a firearm in connection with a drug trafficking crime. Dinwiddie‟s
second ground states that his counsel failed to introduce testimony to demonstrate
that although Dinwiddie did possess a firearm on April 22, 2006, that possession
was unconnected to a drug trafficking crime. The third ground for relief alleges
failure to introduce testimony that the firearm possessed by Dinwiddie was not
used to cause the death of Sergio Burgos. The fourth ground for relief states that
Dinwiddie‟s counsel failed to introduce testimony that Dinwiddie did not act with
the requisite mens rea, assuming Dinwiddie did possess a firearm and that firearm
was used to cause the death of Sergio Burgos. Dinwiddie also informally raises a
fifth ground – deprivation of his right to testify – that I will discuss first.
III.A. Dinwiddie‟s Testimony
A defendant‟s right to testify in his own defense is guaranteed under the Due
Process Clause of the Fourteenth Amendment, the Compulsory Process Clause of
the Sixth Amendment, and the Fifth Amendment‟s privilege against selfincrimination. See Rock v. Arkansas, 483 U.S. 44, 51–53 (1987). “Because the
right to testify is a fundamental constitutional guarantee, only the defendant is
empowered to waive the right.” Frey v. Schuetzle, 151 F.3d 893, 898 (8th Cir.
1998) (quoting United States v. Bernloehr, 833 F.2d 749, 751 (8th Cir. 1987). The
waiver of this right must be made knowingly and voluntarily. Id. Voluntary
waiver may be found where a defendant remains silent when his attorney rests
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without having called the defendant to testify. Id. (citing Bernloehr, 833 F.2d at
751–52).
In the Government‟s response brief, it noted that Dinwiddie opted not to
testify at trial. In reply, Dinwiddie stated that he had wanted to testify but was
prohibited from doing so by his counsel. Because it was unclear from the record
whether Dinwiddie knew of his right to testify and voluntarily waived that right, I
held an evidentiary hearing on the issue.
At the hearing, Dinwiddie testified that he had numerous conversations with
his counsel and that it was their joint intention, up to the close of defendant‟s
evidence, that he would testify at trial. When he discovered that his counsel were
refusing to call him to the stand, Dinwiddie became frustrated and it became
necessary for his attorneys to ask his father, Grover Dinwiddie, to convince
Dinwiddie not to testify. After Grover Dinwiddie returned to his seat, Dinwiddie
again told his counsel that he wanted to testify, but he ultimately remained silent
after the defense rested because he did not know he could say anything to the court
and did not want to be “rude” in court. Dinwiddie further testified that he did not
know he had a constitutional right to testify until he was notified of the evidentiary
hearing in this § 2255 proceeding.
On cross-examination, the government contradicted Dinwiddie‟s present
testimony with his second affidavit, in which Dinwiddie claimed that before trial,
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he was told he could not testify: “That before trial and during trial when I told my
trial counsels Michael Gorla and Jennifer Herndon that I wanted and needed to
give testimony on my own behalf, I was told „No! I didn‟t need to testify.‟” ECF
Doc. 15-2, ¶ 6.
One of Dinwiddie‟s trial attorneys testified for the government. He stated
that he and his co-counsel had numerous conversations with Dinwiddie about
whether he would testify, and they recommended before trial that Dinwiddie not
testify, because
Mr. Dinwiddie‟s record was not very good. There was a number of
convictions that we thought put him in a bad light in front of the
jury. . . . Another reason was that we had investigated what we
believed his story to be, and we were unable to back it up, . . .
Evidentiary Hearing Transcript, p. 36–37. The trial counsel also testified that it is
his general practice to advise his clients of their right to testify and that he was sure
this topic arose during the course of his meetings with Dinwiddie. Finally, he
recalled that at the close of evidence, he and his co-counsel recommended to
Dinwiddie that he not testify and Dinwiddie concurred with their recommendation.
I find Dinwiddie‟s counsel to be credible. Based on the facts and arguments
presented at the evidentiary hearing, I conclude that Dinwiddie was informed of his
right to testify and deferred to his attorneys‟ recommendation not to testify.

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III.B. Grounds One through Four
Dinwiddie alleges that his constitutional rights were violated and his counsel
was deficient for failing to introduce testimony showing that:
(1)

“Mr. Dinwiddie was not guilty of a conspiracy to distribute 50
kilograms or more of marijuana, as charged in Count One, and
did not possess a firearm in connection with a drug trafficking
crime, as charged in Count Three.”

(2)

“[W]hile Mr. Dinwiddie possessed a firearm on April 22, 2006,
he did not possess that firearm in connection with any drug
trafficking crime, as charged in Count Three.”

(3)

“[W]hile Mr. Dinwiddie possessed a firearm on April 22, 2006,
that particular firearm was not used to cause the death of Sergio
Burgos.”

(4)

“[W]hile Mr. Dinwiddie possessed a firearm on April 22, 2006,
if that firearm was used in any way to cause the death of Sergio
Burgos, Mr. Dinwiddie did not act with malice aforethought or
in a way for the jury to infer malice aforethought.”

Dinwiddie supports these grounds with a recording made between himself and one
of the investigating detectives as well as with affidavits of uncalled witnesses.
III.B.1. Dinwiddie’s Recording
Dinwiddie points to a recording he made of a conversation between himself
and Detective Tim Anderson, who was one of the Tennessee police officers
involved in intercepting and making the controlled delivery of fifty pounds of
marijuana. This recording was made some time after the January 25, 2006,
interaction between Detective Anderson and Dinwiddie, a recording of which was
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introduced at trial as Government‟s Exhibit 24. Exhibit 24 included a conversation
between Dinwiddie and Sergio Burgos regarding marijuana shipped to Dinwiddie‟s
sister and ultimately seized by the police. Dinwiddie contends that had the
recording of his conversation with Detective Anderson been admitted into
evidence, it would have impeached Anderson, because it shows that Anderson
“believed the seized marijuana was not Mr. Dinwiddie‟s.”3 Dinwiddie says that his

3

The transcript of this conversation was attached as an exhibit to Dinwiddie‟s reply brief. ECF
Doc. 15-3. It included the following exchange:
Dinwiddie: You know, I (inaudible) Y‟all basically know I ain‟t done
anything.
Det. Anderson: Well . . . You kind of put yourself into it . . . . Listen,
listen. If I, if I thought you were responsible for it, we wouldn‟t be talking. We
wouldn‟t be here right now.
Dinwiddie: I understand. I‟d probably be locked up.
Det. Anderson: Right.
Dinwiddie: And that‟s what, that‟s why I ain‟t understanding then. Why
is it that he got to be charged with (inaudible) when y‟all know I ain‟t did
anything, when y‟all know I‟m not responsible.
Det. Anderson: You‟re not responsible for the 50 pounds, but you are
involved in the conspiracy conduct.
Dinwiddie: Well, well, my sister asked me to check out.
Det. Anderson: Because you knew what it was.
Dinwiddie: I didn‟t know what it was. You seen that yesterday. . . .
Det. Anderson: You said yesterday, you know what Sergio done. You
knew the 25th that he was sending the boxes up here.
Dinwiddie. But I did not know what anything was.
...
Det. Anderson: [W]ell, you told us before that [Dinwiddie interrupts] that
you could make, you could talk to him and he would say how much it was and
what it was.
Dinwiddie: Right. I, I said I could talk to him and find out what was
going on, what‟s in it, and that‟s, which is cool. You know, I cooperate, and
everything. But . . . you all know that I don‟t have anything to do with it. My
sister will even tell y‟all that I don‟t have anything to do with it.
Det. Anderson: Here‟s . . . part of my other thing. You‟re still, I don‟t
believe that you‟re still being 100% honest with us on everything that you know.
...

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recording was not admitted at trial “either because it was not available or because
of the ineffective assistance of counsel.”
Assuming the evidence was available, the decision not to introduce the
recorded conversation was a strategic one. Counsels‟ “strategic choices made after
thorough investigation of law and facts . . . are virtually unchallengeable[.]”
Strickland, 466 U.S. at 690. “We presume attorneys provide effective assistance,
and will not second-guess strategic decisions or exploit the benefits of hindsight.”
Payne v. United States, 78 F.3d 343, 345 (8th Cir. 1996).
Even had the conversation been admitted, there is little reason to believe that
its admission would have changed the outcome. The unadmitted evidence must be
considered alongside the evidence admitted at trial. See McCauley-Bey v. Delo, 97
F.3d 1104, 1106 (8th Cir. 1996) (“[T]he testimony of the uncalled witness is not
considered in a vacuum.”). Detective Anderson testified at length about his initial
interaction with Dinwiddie. On that day, Dinwiddie told Detective Anderson that
he knew “Sergio” was responsible for sending the packages, and agreed to

Det. Anderson: In normal cases, your sister and you would have both
been downtown yesterday in interviews in our office and, you know, writing out
statement, and we would have been wrapping this thing up. But because you can
help us put the dope back with the person who is responsible for sending it up
here, we didn‟t do that.
Dinwiddie: Okay, but just, let me know that y‟all know that it‟s not mine.
Det. Anderson: I don‟t believe that 50 pounds of dope is yours.
Dinwiddie: Thank you.
Det. Anderson: Alright? That‟s why you‟re here today and that‟s why
that, you know, that I want you to help us. I do believe that you knew about it.

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cooperate with the investigation. Dinwiddie called Burgos using Dinwiddie‟s own
phone, using a “direct connect” feature, similar to a two-way radio, which directly
dialed the name in the phone‟s contact list. Dinwiddie used the speaker feature on
his phone so that Detective Anderson could listen to and record both sides of the
conversation, and a transcript of that conversation was admitted into evidence.
Sergio referred to Dinwiddie by his first name, and after prompting by Detective
Anderson, the two had a conversation about the contents of the packages:
Dinwiddie:
Sergio:
...
Dinwiddie:
Sergio:

10-4. What‟s supposed to be, uh, the count on that box?
It will be fifty and a half total for both boxes.
[I]s it all green?
Yeah, 10-4.

At trial, Detective Anderson testified that the phrases “green” and “fifty and a half”
meant that there was approximately 50.5 pounds of marijuana between the two
boxes.
Detective Anderson‟s statement to Dinwiddie that he did not believe the
marijuana was Dinwiddie‟s was made sometime after the January 25, 2006,
exchange. It occurred during the course of an open investigation, and it was made
to Dinwiddie while Anderson was attempting to encourage his continued
cooperation against Sergio Burgos. Given that context – especially when
combined with Detective Andersons‟s explicit statement that he believed

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Dinwiddie was “involved in the conspiracy conduct” – the jury would likely have
found that Detective Anderson remained credible.
Finally, there is no prejudice if the government‟s case remains
overwhelming even after factoring in the unadmitted evidence. United States v.
Ramon-Rodriguez, 492 F.3d 930, 945 (8th Cir. 2007); McCauley-Bey, 97 F.3d at
1106. The evidence of Dinwiddie‟s direct involvement with the shipment was
bountiful. Dinwiddie appeared at the place of delivery, had the packing slip on his
person, admitted he knew that Burgos sent the package, and direct dialed Burgos
with a number already programmed into his own phone. Burgos referred to
Dinwiddie by “Dennis,” and was willing to discuss the contents of the package
with Dinwiddie. As noted by the Eighth Circuit on appeal, the evidence of the
drug conspiracy between Dinwiddie and Burgos was “overwhelming.” Dinwiddie,
618 F.3d at 831. The evidence remains overwhelming, even when considering the
content of the unadmitted recording between Dinwiddie and Detective Anderson.
Dinwiddie cannot show that he was prejudiced by his counsel‟s failure to introduce
the recording between him and Detective Anderson.
III.B.2 Affidavits
Dinwiddie also cites the version of the facts presented in his own affidavits
and the affidavits of his co-defendant, Michael Meador, and a colleague, Eric
Tharpe, as testimony that should have been introduced by his counsel at trial. The
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affidavits paint a different picture of the events surrounding Burgos‟s death and
place the blame solely on Lawan James. They say that Dinwiddie and Tharpe
followed James to Meador‟s house to assist James in the purchase of a car. When
they arrived, James had already killed Burgos as part of a failed drug purchase of
which they were not aware.
As discussed above, Dinwiddie voluntarily chose not to testify at trial based,
in part, on advice of counsel. At the hearing, one of the defense attorneys testified
as to some of the reasons why he recommended that Dinwiddie not testify. The
attorney said that he had investigated elements of Dinwiddie‟s story and could not
corroborate them. He also expressed concerns that Dinwiddie‟s criminal history
would undermine their defense, which centered on the theme that the government
witnesses should not be believed because of their own bad records and because
they benefitted from their testimony against Dinwiddie.4 Counsel‟s reasons for
advising Dinwiddie not to testify show that the advice was reasonable trial strategy
based on a professional evaluation of the case. Dinwiddie has not established that
his attorneys‟ performance was deficient for failing to elicit his own testimony.
Dinwiddie alleges that his counsel was ineffective for failing to call Michael
Meador to testify. Although Meador‟s affidavit does say he was willing to testify
4

In pre-trial, Dinwiddie‟s counsel successfully prevented the admission into evidence any record
of Dinwiddie‟s prior criminal record based on Rule 404(b) of the Federal Rules of Civil
Procedure. See Motion to Exclude Evidence, ECF Doc. 495; Order dated Feb. 2, 2009 (denying
as moot the motion to exclude after government concession on issue).

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had he been subpoenaed, Meador declined to testify at his own later trial.
Dinwiddie does not establish that Meador would actually have testified, and the
decision to call Meador to the stand remains one of strategy, to which trial counsel
is given great deference. Payne, 78 F.3d at 345.
Even had Meador testified as to the story presented in his affidavit, such
testimony would have been impeached by other evidence available at trial. For
example, Meador told his half-brother, Billy Meador, that “Dee” killed Burgos.
Meador told the police an entirely different story: that unknown “Haitians” had
committed the murder. Moreover, Meador‟s story that James alone shot Burgos is
contradicted by the physical evidence, including the two differently sized shell
casings found at the scene of the crime. See Dinwiddie Trial Transcript Vol. II,
p. 127. Had Meador‟s testimony been admitted, the government‟s case against
Dinwiddie would have remained overwhelming. Dinwiddie was not prejudiced by
the failure to call Meador to testify. See Ramon-Rodriguez, 492 F.3d at 945.
The same analysis holds true for Tharpe, whose affidavit is contradicted by
three sets of interviews he gave to the police during the investigation. In an
interview taken April 28, 2006, Tharpe said that he had last talked to Dinwiddie on
Friday April 21st or Saturday the 22nd, when Dinwiddie told him he was going to
Radcliff, Kentucky to get comedy show tickets. ECF Doc. 10-2. In a second
interview conducted March 12, 2007, Tharpe said that he saw Dinwiddie in
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Clarksville, Tennessee on the Saturday the murder happened. ECF Doc. 10-3. The
next day, Tharpe again said that he and Dinwiddie were in Clarksville, Tennessee
on the day of the murder. ECF Doc. 10-4. Given the self-contradictory nature of
Tharpe‟s versions of the events and the quantity of evidence against him,
Dinwiddie was not prejudiced by the absence of Tharpe‟s testimony.
As for Dinwiddie‟s fourth ground – that he was prejudiced by the absence of
defense testimony as to his state of mind – the ground fails for the same reason as
the others: the desired testimony would have been impeached and would have
paled in the light of the overwhelming evidence against him. Billy Meador
testified that after Burgos stole $10,000 meant to purchase marijuana, Dinwiddie
said he wanted to be the one to “smoke that Mexican.” Trial Transcript Vol. I,
p. 82–83. When Dinwiddie was told Burgos was in Missouri, he acquired a
handgun, drove to that state, hid his car, and waited for Burgos in a place selected
so that Burgos could not escape. He shot Burgos in the groin and then, after
Burgos pleaded for his life, shot him in the head. Given the amount and quality of
the evidence against Dinwiddie, he was not prejudiced by the failure of his counsel
to introduce evidence that he lacked the mens rea for murder. See RamonRodriguez, 492 F.3d at 945.

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IV. Certificate of Appealability
As Dinwiddie has not made a substantial showing of the denial of a federal
constitutional right, I will not issue a certificate of appealability. See Cox v.
Norris, 133 F.3d 565, 569 (8th Cir. 1997) (citing Flinger v. Delo, 16 F.3d 878,
882–83 (8th Cir. 1994) (substantial showing must be debatable among reasonable
jurists, reasonably subject to a different outcome on appeal, or otherwise deserving
of further proceedings)).
Accordingly,
IT IS HEREBY ORDERED that Dennis Dinwiddie‟s motion to vacate, set
aside, or correct sentence under 28 U.S.C. § 2255 [# 1] is denied.
IT IS FURTHER ORDERED that that this Court will not issue a
certificate of appealability, as Dinwiddie has not made a substantial showing of the
denial of a federal constitutional right.
A separate Judgment in accordance with this Memorandum and Order is
entered this same date.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 23rd day of September, 2014.

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