Evans v. USA

Filing 11

MEMORANDUM AND ORDER re: 1 MOTION to Vacate, Set Aside or Correct Sentence filed by Petitioner Mario T. Evans. For the foregoing reasons, this Court denies all of the claims contained in Petitioner's Motion under 28 U.S.C. § 2255 to Va cate, Set Aside, or Correct Sentence. IT IS FURTHER ORDERED this Court will not issue a certificate of appealability because Evans has not made a substantial showing of the denial of a federal constitutional right. Signed by District Judge Stephen N. Limbaugh, Jr on 6/15/18. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
MARIO EVANS,
Movant,
vs.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 1:17CV00221 SNLJ

MEMORANDUM AND ORDER
This matter is before the Court on a motion under 28 U.S.C. § 2255 to vacate, set
aside or correct sentence by Mario Evans, a person in federal custody. On December 4,
2014, Evans was found guilty of the offense of Felon in Possession of a Firearm and, on
April 7, 2015, this Court sentenced Evans to the Bureau of Prisons for a term of 221
months, a sentence within the sentencing guideline range. Evans’ § 2255 action, which is
based on several allegations of ineffective assistance of counsel, is fully briefed and ripe
for disposition.
I. STATEMENT OF THE CASE
A. Preliminary proceedings
On October 17, 2013, Movant Mario Evans (“Evans”) was indicted by a federal grand
jury in the Southeastern Division of the Eastern District of Missouri for being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) and 924(e).1 Doc. 1 (Case
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Evans was also indicted for possessing marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1),
and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c). The
government later dismissed these charges prior to trial.

No. 1:13-CR00090 SNLJ). Evans made his initial appearance before Magistrate Judge
Lewis Blanton on November 27, 2013. Doc. 5. Judge Blanton appointed attorney Jason
Tilley to represent Evans in the case at that time. Doc. 7. On January 26, 2014, Mr. Tilley
filed a waiver of the right to file pretrial motions on Evans’ behalf. Doc. 21. On February
4, 2014, Evans appeared before Judge Blanton with Mr. Tilley for the purpose of making
a record of Evans’ decision to waive pretrial motions. During the proceeding, Evans
informed Judge Blanton that he did not want to waive pretrial motions and that he wanted
a new attorney. Doc. 23. After determining that irreconcilable differences had developed
between Evans and Mr. Tilley, Judge Blanton appointed attorney Stephen C. Wilson to
represent Evans from that point forward. Docs. 24-26.
Mr. Wilson subsequently filed a motion to suppress on Evans’ behalf, alleging Fourth
Amendment violations related to the seizure of a firearm from Evans’ vehicle. Doc. 29.
After the motion was filed, Judge Blanton retired and the case was referred to Magistrate
Judge Abbie Crites-Leoni.
B. Motion to Suppress Hearing
The suppression hearing was held on April 8, 2014. Before the hearing, Mr. Wilson
asked to address a preliminary matter concerning Evans’ request to have Judge CritesLeoni recuse herself from the case. (Transcript of Evidentiary Hearing, “EH Tr.,” Doc.
39, p. 5). Mr. Wilson stated that he had a discussion with Evans, who expressed concern
about Judge Crites-Leoni presiding over his case because she was recently appointed to
the bench after serving a number of years with the United States Attorney’s Office
(USAO). Mr. Wilson also noted that, while employed with the USAO, Judge Crites2

Leoni was supervised by Assistant United States Attorney Larry Ferrell, who was
representing the government in Evans’ case. EH Tr., p. 5. Mr. Wilson then stated, “On his
behalf, I am going to raise that point at this time that he thinks he may not get a fair
shake.” EH Tr., p. 5. Mr. Wilson further stated that Evans was “concerned about that and
wished to make an objection.” EH Tr., p. 5.
The government responded that Judge Crites-Leoni had properly disqualified herself
in cases in which she participated or had knowledge during her tenure with the USAO.
The government expressed its understanding that this was the policy and practice that had
been followed in the district with previous magistrate judges and was the appropriate
procedure to follow. EH Tr., p. 6-7. The government further stated that, as an AUSA,
Judge Crites-Leoni did not participate in the investigation or have any involvement,
participation or knowledge of Evans’ case during its existence in the USAO. EH Tr., p. 6
Accordingly, the government took the position that disqualification was not necessary.
EH Tr., p. 6.
Judge Crites-Leoni then explained her relationship to the parties and her obligation to
judge the matter impartially:
Mr. Evans, I can’t blame you for having the concern that you have. I want you to
know that there are very special rules regulating how cases are assigned in this
district, as they are across the country. My last day in the office was January 31st of
this year in the U.S. Attorney’s office.
It may be interesting for you to know that I’ve actually had a relationship with
your attorney Mr. Wilson for longer than I’ve had with the U.S. Attorney’s office. Mr.
Wilson was one of the first defense attorneys that I practiced with in this area. So I
would say it’s fair to say I have a relationship with both of the attorneys in this case.
There is nothing about those relationships that will influence me as far as whether
or not I listen to all the evidence in the case and consider that in making any decision
with regard to the motion that you filed.
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In part of the selection process for this job there were a lot of questions about
whether or not I would be fair in addressing cases where both the U.S. Attorney’s
office and the Defendant had issues. And in the examination of that question I think it
was very clear that I have a new role now.
I did work at the U.S. Attorney’s office. I do have a prior working relationship
with Mr. Wilson in many state cases as well as federal cases, but my role here is to
listen to all the evidence from both sides, and I promise you that’s what I’m going to
do.
EH Tr., p. 7-8.
At the end of the explanation, Judge Crites-Leoni asked, “Do you feel better, Mr.
Evans, about how I’m going to treat your case?” Evans responded, “Yes, ma’am.” EH
Tr., p. 8. The court concluded by stating, “That’s how I intend to treat everyone in this
court, so that’s my promise to you. That’s my promise to these men here representing
both the Government and you.” EH Tr., p. 8-9. After these assurances, Evans expressed
no further concern about Judge Crites-Leoni’s ability to be impartial.
Judge Crites-Leoni then heard testimony relevant to Evans’ motion to suppress the
firearm and other items recovered from his vehicle. The government called Brent
Douglas, a police officer for the Charleston, Missouri Police Department. Officer
Douglas testified that the City of Charleston has a population of approximately 5,000
people and has a very high crime rate. Crimes ranging from murders, drug dealings, and
shootings occur on a frequent basis. EH Tr., p. 57. The highest crime area in this town is
a six-block area, which includes a vacant carwash where Evans’ vehicle was parked on
the night in question. EH Tr., p. 56-59.
Officer Douglas testified that on August 2, 2013, at approximately 11:45 p.m., he
noticed a vehicle parked behind the vacant carwash without its lights on. EH Tr., p. 594

61. Officer Douglas was familiar with the carwash and that it was in the process of
condemnation. EH Tr., p. 60. Burglaries in the area were common at the time, so Officer
Douglas turned into the first driveway right behind the building. EH Tr., p. 61-62. Officer
Douglas pulled in behind the parked car, stopped, and got out. EH Tr., p. 63.
Officer Douglas then noticed another car parked in an open bay of the vacant
carwash. EH Tr., p. 63-64. Using his flashlight to illuminate the vehicle, Officer Douglas
observed Evans standing on the driver’s side of the vehicle. Officer Douglas had been
proceeding toward the car in front of him when Evans came from behind the driver’s side
of the vehicle parked in the open bay. EH Tr., p. 64-65. Evans met Officer Douglas ten to
fifteen feet before Officer Douglas could get to the parked vehicle in front of him. EH
Tr., p. 65.
With the use of his flashlight, Officer Douglas recognized the subject as Evans. EH
Tr., p. 66. Officer Douglas knew Evans from previous arrests and was familiar with his
arrest record, which included arrests for violent crimes such as assault and armed
criminal action. EH Tr., p. 62, 66-68, 122-124). Officer Douglas and Evans met between
the patrol car and the car that Officer Douglas first observed parked on the parking lot.
Officer Douglas positioned himself where he could watch both the vehicle parked on the
lot and the vehicle that was parked in the open bay until a backup officer arrived. EH Tr.,
p. 69. Officer Douglas considered himself to be in a dangerous situation. EH Tr., p. 6970.
Officer Wesley McDermott arrived a short time later. Officer Douglas then went over
to the vehicle that was parked in the open bay to verify that no other individuals were
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hiding in it. EH Tr., p. 70. From where he stood, Officer Douglas could not tell if there
was anyone in the vehicle. EH Tr., p. 70. Officer Douglas proceeded to shine his
flashlight into the open bay area where the car was located. As he approached the bay,
Officer Douglas stepped to the right side of the parked vehicle and used his flashlight to
illuminate the interior. EH Tr., p. 70-71. Officer Douglas observed a large amount of
marijuana in the front passenger seat and a silver handgun. EH Tr., p. 70-73. When
Officer Douglas saw the items located in the car, he placed Evans under arrest. EH Tr., p.
74. The handgun and marijuana were later seized and placed in evidence at the police
station.
During a search incident to arrest, officers found a digital scale and a set of car keys in
Evans’ pockets. EH Tr., p. 76. The car keys were later confirmed to operate the vehicle in
the carwash bay where the firearm was located in the front seat. EH Tr., p. 82. During the
booking procedure at the police station, Evans inquired about the nature of his charges.
After being advised he was arrested for being a felon in possession of a firearm, Evans
stated: “How are you going to charge me with a gun, it doesn’t even work, I just got it
yesterday.” EH Tr., p. 83-84.
During the suppression hearing, the court also heard extensive testimony that the
vacant carwash grounds were open for public use and exposed to public view. EH Tr., p.
27-50, 85-95.
At the conclusion of the hearing, Judge Crites-Leoni took the matter under
advisement. After extensive briefing by the parties, Judge Crites-Leoni filed a twenty-two
page Report and Recommendation concluding that Evans’ Motion to Suppress should be
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denied. See Doc. 54. Evans subsequently filed objections to the Report and
Recommendation, claiming Judge Crites-Leoni erred in denying his motion to suppress.
Doc. 55. Evans also renewed his objection to Judge Crites-Leoni’s failure to recuse
herself. Id. On August 18, 2014, this Court reviewed and overruled defendant’s
objections to the Report and Recommendation. Doc. 56.
C. Jury Trial
Evans elected to proceed to trial on the charge of being a previously convicted felon
in possession of a firearm, which took place on December 4, 2014. Following voir dire,
the parties were given an opportunity to challenge jurors for cause, at which time Mr.
Wilson asked the district court to strike the panel and declare a mistrial because there
were no African Americans on the jury panel. Jury Trial Transcript (“JT Tr.”), Doc. 109,
p. 87. After hearing arguments from the parties, the district court denied the request.
The case then proceeded to trial. The government’s evidence primarily consisted of
the testimony of Officer Douglas and Officer McDermott, who described the events of
the night of August 2, 2013 ultimately resulting in the recovery of the firearm from
Evans’ vehicle. JT Tr., p. 122-216. At the conclusion of the government’s case, this Court
ensured that Evans understood his rights with respect to the decision whether to testify on
his own behalf. The following discussion occurred outside the presence of the jury:
THE COURT: Mr. Evans, I need to ask you a number of questions and advise you of
your rights to testify or not to testify. *** Mr. Evans, you have a right to testify in this
case, as you know. And if you decide to do that, the Government lawyers will be
allowed to cross-examine you. You know that, don’t you?
EVANS: Yes, sir.
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THE COURT: But the point is you do have the opportunity at this time to testify and
tell your side of the story. On the other hand, you have the right not to testify. And if
you decided not to testify, the jury will not be allowed to hold it against you that you
decided not to testify. Do you understand that, too?
EVANS: Yes.
THE COURT: And that’s the instruction that I read to the jury earlier, as you recall.
EVANS: Yes.
THE COURT: So have you talked with … your lawyer about this?
EVANS: Yes.
THE COURT: And have you come to a decision?
EVANS: Yes.
THE COURT: And this is your free and voluntary decision then?
EVANS: Yes.
THE COURT: And what is it then?
EVANS: I will testify.
JT Tr., p. 245-46.
Evans proceeded to testify in his own defense, telling the jury that he had no
knowledge of the firearm discovered in his vehicle. JT Tr., p. 253-330. At the conclusion
of the one-day trial, the jury returned a verdict finding Evans guilty of being a previously
convicted felon in possession of a firearm. Doc. 75. On April 7, 2015, Evans was
sentenced to a term of 221 months imprisonment. Doc. 91. Evans subsequently filed a
timely notice of appeal. Doc. 93.
D. Direct Appeal
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Mr. Wilson was permitted to withdraw from the case after trial. The United States
Court of Appeals for the Eighth Circuit subsequently appointed attorney Carter Collins
Law to represent Evans in his direct appeal. Ms. Law filed a brief on Evans’ behalf
specifically raising three issues on appeal. First, Evans renewed his argument that the
search of his vehicle violated the Fourth Amendment. Next, Evans maintained that
Magistrate Judge Crites-Leoni should have recused herself before the suppression
hearing. Finally, Evans asserted that the all-white venire panel violated his Sixth
Amendment right to trial by an impartial jury. The government filed its brief in response
to Evans’ claims.
After the issues had been fully briefed by the parties, the Court of Appeals heard oral
argument on January 15, 2016. On July 27, 2016, the Court of Appeals issued a
unanimous published opinion addressing and denying all of Evans claims. See United
States v. Evans, 830 F.3d 761 (8th Cir. 2016). Evans subsequently petitioned the United
States Supreme Court for a writ of certiorari, which was denied on January 23, 2017.
Evans v. United States, 137 S.Ct. 839 (2017).
E. Petition for Post-Conviction Relief Pursuant to § 2255
Evans has now filed a motion under 28 U.S.C. ' 2255, claiming that Attorney Stephen
C. Wilson rendered ineffective assistance of counsel. Evans raises several allegations of
ineffective assistance, most of which were raised and decided on direct appeal. Evans’
claims are without merit.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
In order to prevail on a claim alleging ineffective assistance of counsel, the Movant
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has the burden of proving his or her claims for relief by a preponderance of the evidence.
The Supreme Court of the United States set forth the standard to apply in such cases in
Strickland v. Washington, 466 U.S. 668 (1984). There, the Supreme Court held that a
Movant must plead and prove two related but independent issues. First, the defendant
must show that counsel’s performance was deficient. This requires showing that counsel
made errors so serious that counsel was not functioning as the “counsel” guaranteed by
the Sixth Amendment. Strickland, 466 U.S., at 687. Second, the defendant must show
that the deficient performance prejudiced the defense. This requires showing that
counsel’s errors were so serious as to deprive the defendant of a fair trial, i.e., a trial
whose result is reliable. Id.
Regarding the first prong of the Strickland test, the proper standard for attorney
performance is that of reasonably effective assistance. As the Supreme Court explained,
“[w]hen a convicted defendant complains of the ineffectiveness of counsel’s assistance,
the defendant must show that counsel’s representation fell below an objective standard of
reasonableness.” Id., at 687-88. Recognizing the complexity and variety of issues that
defense counsel must confront and address in any given case, the Supreme Court refused
to adopt a standard that would implement an exhaustive set of detailed guidelines to
evaluate attorney performance. Instead, the proper measure of attorney performance is
simply reasonableness under prevailing professional norms. Id. The Supreme Court
instructed:
Judicial scrutiny of counsel’s performance must be highly deferential. It is all too
tempting for a defendant to second-guess counsel’s assistance after conviction or
adverse sentence, and it is all too easy for a court, examining counsel’s defense after it
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has proved unsuccessful, to conclude that a particular act or omission of counsel was
unreasonable. A fair assessment of attorney performance requires that every effort be
made to eliminate the distorting effects of hindsight, to reconstruct the circumstances
of counsel’s challenged conduct, and to evaluate the conduct from counsel’s
perspective at the time. Because of the difficulties inherent in making the evaluation,
a court must indulge a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action might be considered
sound trial strategy.
Strickland, 466 U.S., at 689 (citations and internal quotation marks omitted). The
Supreme Court further instructed that a reviewing court “should recognize that counsel is
strongly presumed to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment.” Id., at 690.
The second prong of the Strickland test requires a Movant to prove that he or she was
prejudiced by counsel’s deficient performance. An error by counsel, even if
professionally unreasonable, does not warrant setting aside the judgment of a criminal
proceeding if the error had no effect on the judgment. Id., at 691. The Supreme Court
observed that “not every error that conceivably could have influenced the outcome
undermines the reliability of the result of the proceeding.” Id., at 693. Thus, it is not
enough for the defendant to show that errors had some conceivable effect on the outcome
of the proceeding. Rather, the defendant “must show 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. A reasonable probability is a probability sufficient to undermine
confidence in the outcome. Ibid.
In evaluating an ineffectiveness claim, a reviewing court is not required to address
both prongs of the Strickland test if the defendant makes an insufficient showing on one.
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As the Supreme Court instructed, a reviewing court need not determine whether
counsel’s performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies. “The object of an ineffectiveness claim
is not to grade counsel’s performance. If it is easier to dispose of an ineffectiveness claim
on the ground of lack of sufficient prejudice, … that course should be followed.” Id., at
697. Thus, if a reviewing court determines the alleged errors would have had no impact
on the result of the proceeding, the claim of ineffectiveness must fail. See also Fields v.
United States, 201 F.3d 1025, 1027 (8th Cir. 2000) (describing two-fold Strickland test as
inquiry into “[w]hether counsel’s performance was in fact deficient and, if so, whether
the defendant was prejudiced by the inadequate representation. If we can answer ‘no’ to
either question, then we need not address the other part of the test.”).
When evaluating counsel’s performance, the court “must indulge in a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” Strickland, 466 U.S., at 689. Counsel’s performance is considered
objectively, and gauged “whether it was reasonable ‘under prevailing professional
norms’ and ‘considering all the circumstances.’” Fields, 201 F.3d at 1027 (quoting
Strickland, 466 U.S., at 688). Counsel’s challenged conduct is viewed as of the time of
his representation and “we avoid making judgments based on hindsight.” Fields, 201
F.3d at 1027. Again, a reviewing court’s “scrutiny of counsel’s performance must be
highly deferential.” Strickland, 466 U.S., at 689.
Need for evidentiary hearing and burden of proof
A motion filed under 28 U.S.C. § 2255 should be denied without an evidentiary
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hearing when the court records conclusively show that the movant is not entitled to relief.
The statute provides, in pertinent part:
Unless the motion and the files and records of the case conclusively show that the
prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon.
28 U.S.C. § 2255(b).
Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States
District Court further provides:
The motion, together with all the files, records, transcripts, and correspondence
relating to the judgment under attack, shall be examined promptly by the judge to
whom it is assigned. If it plainly appears from the face of the motion and any annexed
exhibits in the prior proceedings in the case that the movant is not entitled to relief in
the district court, the judge shall make an order for its summary dismissal and cause
the movant to be notified.
A district court has discretion in determining whether to hold an evidentiary hearing
when a petition is brought under Section 2255, and the petitioner bears the burden of
establishing the need for such a hearing. “A district court may deny an evidentiary
hearing where (1) accepting the petitioner’s allegations as true, the petitioner is not
entitled to relief, or (2) ‘the allegations cannot be accepted as true because they are
contradicted by the record, inherently incredible, or conclusions rather than statements of
fact.’” Guzman-Ortiz v. United States, 849 F.3d 708, 715 (8th Cir. 2017) (quoting United
States v. Sellner, 773 F.3d 927, 929-30 (8th Cir. 2014)). An evidentiary hearing is
unnecessary where the files and records conclusively show petitioner is not entitled to
relief. See, e.g., Walker v. United States, 810 F.3d 568, 580 (8th Cir. 2016).
III. DISCUSSION
In his motion under 28 U.S.C. § 2255, Evans alleges Attorney Stephen C. Wilson
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rendered ineffective assistance of counsel. Evans specifically raises six allegations of
ineffectiveness, which are summarized as follows:
Ground One:

Fourth Amendment claim alleging Mr. Wilson failed “to adequately
defend against an illegal search and seizure.”

Ground Two:

Sixth Amendment claim alleging Mr. Wilson failed “to adequately
contest the lack of any African-Americans on the jury panel.”

Ground Three:

Fifth Amendment claim alleging the district court did not properly
inquire as to whether he understood his right to testify.

Ground Four:

Claim that Mr. Wilson failed to make a proper record regarding
Evans’ request for Judge Crites-Leoni to recuse herself.

Ground Five:

General claim that Mr. Wilson failed to object and or / adequately
cross-examine government witnesses at the suppression hearing.

Ground Six:

General claim that Mr. Wilson “utterly failed to investigate and
prepare [the] case either for a hearing on his motion to suppress or
for trial.”

Grounds One, Five and Six
Grounds One, Five, and Six all relate to Evans’ dissatisfaction that he did not prevail
on his motion to suppress the handgun seized from his vehicle. The Fourth Amendment
claims in this case have been exhaustively litigated.
As set forth previously, Attorney Jason Tilley was initially appointed to represent
Evans in this case. After reviewing the facts and circumstances surrounding Evans’ arrest
and the search of his car, Mr. Tilley recommended that Evans should waive pretrial
motions. Evans apparently agreed with this assessment at the time, and a formal notice
was filed to that effect. See Doc. 21. At the waiver hearing, however, Evans changed
course and informed the magistrate judge that he wanted Mr. Tilley replaced with a new
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attorney. Doc. 23. After determining that irreconcilable differences had developed
between Evans and Mr. Tilley, the magistrate judge appointed Mr. Wilson to represent
Evans. Docs. 24-26.
Mr. Wilson complied with Evans’ wishes and filed a motion to suppress based on
alleged Fourth Amendment violations. A full hearing was conducted before Judge CritesLeoni, after which the parties submitted detailed written briefs. Docs. 43, 51. Judge
Crites-Leoni subsequently filed a thorough twenty-two page Report and
Recommendation, recommending that the district court deny Evans’ motion. Doc. 54.
Mr. Wilson then filed written objections to the Report and Recommendation. Doc. 55.
After careful review, this Court overruled the objections and adopted the Report
and Recommendation. Doc. 56. Mr. Wilson then properly preserved Evans’ Fourth
Amendment claims for appeal during the jury trial. Following Evans’ conviction, a timely
notice of appeal was filed. Doc. 93.
The United States Court of Appeals for the Eighth Circuit then appointed attorney
Carter Collins Law to handle Evans’ appeal. The Fourth Amendment claims were
thoroughly briefed by the parties. The Court of Appeals then heard oral argument of the
claims. In a unanimous published decision, the Court of Appeals directly addressed
Evans’ claims on the merits and concluded that the law enforcement officers complied
with Fourth Amendment guarantees. United States v. Evans, 830 F.3d 761 (8th Cir.
2016).
It is well-settled that “[c]laims that ‘were raised and decided on direct appeal cannot
be relitigated on a motion to vacate pursuant to 28 U.S.C. § 2255.’” United States v. Lee,
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715 F.3d 215, 224 (8th Cir. 2013) (quoting Davis v. United States, 673 F.3d 849, 852 (8th
Cir. 2012)); Dall v. United States, 957 F.2d 571, 572 (8th Cir. 1992). See also Baranski v.
United States, 515 F.3d 857 (8th Cir. 2008) (holding that Fourth Amendment claim could
not be raised in § 2255 motion because it had been raised and decided on direct appeal).
Accordingly, Evans’ claims will be denied.
Grounds Two and Four
Similarly, Evans’ claims for relief in both Grounds Two and Four were fully briefed
and argued before the Court of Appeals. The Court of Appeals subsequently denied
Evans’ claims on the merits. See Evans, 830 F.3d at 768-71. For the reasons stated above,
they may not be relitigated in this proceeding.
Ground Three
Evans specifically alleges that the district court failed to
engage[] in the typical colloquy with Evans as the defendant prior to Evans taking the
stand in his own behalf, in order to inquire as to whether Evans fully understood his
Fifth Amendment rights to testify, or to decline to testify, or whether Evans had
adequate time to discuss this issue with his lawyer, so as to make a finding that he was
testifying in a knowing and voluntary way.
Evans’ Motion to Vacate, at 10.
This claim must be denied, as it is completely refuted by the record. At the conclusion
of the government’s case, this Court ensured that Evans understood his rights with
respect to the decision whether to testify on his own behalf. The following discussion
occurred outside the presence of the jury:
THE COURT: Mr. Evans, I need to ask you a number of questions and advise you of
your rights to testify or not to testify. *** Mr. Evans, you have a right to
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in this case, as you know. And if you decide to do that, the Government lawyers will
be allowed to cross-examine you. You know that, don’t you?
EVANS: Yes, sir.
THE COURT: But the point is you do have the opportunity at this time to testify and
tell your side of the story. On the other hand, you have the right not to testify. And if
you decided not to testify, the jury will not be allowed to hold it against you that you
decided not to testify. Do you understand that, too?
EVANS: Yes.
THE COURT: And that’s the instruction that I read to the jury earlier, as you recall.
EVANS: Yes.
THE COURT: So have you talked with … your lawyer about this?
EVANS: Yes.
THE COURT: And have you come to a decision?
EVANS: Yes.
THE COURT: And this is your free and voluntary decision then?
EVANS: Yes.
THE COURT: And what is it then?
EVANS: I will testify.
JT Tr., p. 245-46.
The record conclusively demonstrates that this Court sufficiently explained Evans’
rights with respect to his decision whether to testify. Accordingly, this point will be
denied without an evidentiary hearing.
CONCLUSION
For the foregoing reasons, this Court denies all of the claims contained in
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Petitioner’s Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence.
IT IS FURTHER ORDERED this Court will not issue a certificate of
appealability because Evans has not made a substantial showing of the denial of a
federal constitutional right.
Dated this 15th day of June, 2018.

_____________________________________
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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