Williams v. United States of America
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Dwan Orlando Williams amended petition to vacate, set aside or correct his sentence pursuant to 28 U.S.C. ' 2255 Doc. # 17 is DENIED. IT IS FURTHER ORDERED that Williams request for discovery i s DENIED. IT IS FURTHER ORDERED that this Court will not issue a certificate of appealability as Williams 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. Signed by District Judge Rodney W. Sippel on 3/20/2013. (RAK)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
DWAN ORLANDO WILLIAMS,
UNITED STATES OF AMERICA,
Case No. 4:09 CV 1893 RWS
MEMORANDUM AND ORDER
This matter is before me on Dwan Orlando Williams’ Motion to Vacate, Set Aside, or
Correct Sentence by a Person in Federal Custody under 28 U.S.C. ' 2255. For the reasons set
forth below, the motion will be denied.
On May 15, 2008, Dwan Orlando Williams (“Williams”) was indicted on one count of
possession with the intent to distribute in violation of 21 U.S.C. §841(a)(1), one count of
possession of a firearm in connection with a drug trafficking crime 18 U.S.C. §924(c), and one
count of being a felon in possession of a firearm in violation of 18 U.S.C. §922(g)(1). On
September 2, 2008, Williams pleaded guilty to being a felon in possession of a firearm, and the
prosecution agreed to dismiss the other two counts.
The following facts are established by Williams’ plea agreement entered in the underlying
On April 6, 2008, officers with the Saint Louis Metropolitan Police Department were investigating
a report of the defendant standing in front of the location of 5730 Highland selling drugs. Police
officers responded to the locations of 5730 and 5732 Highland located within the City of Saint
Louis which is, therefore, necessarily located within the federal jurisdiction of the Eastern District
of Missouri. The officers conducted surveillance upon arrival.
During surveillance, officers observed defendant standing in front of 5730 Highland. Two
separate individuals walked up to defendant and engaged in brief conversations. Following the
each [sic] conversation, defendant walked to the west side of the 5730 Highland residence
in-between 5732 Highland, bent over, retrieved an object, and returned to the individual. A
hand-to-hand transaction then occurred.
Defendant then entered a vehicle. One of the officers approached defendant. Another officer
responded to the area in the gangway where defendant was seen walking and retrieving items.
The officer located three chunks of crack cocaine wrapped in plastic in the gangway. A .32
caliber semi-automatic pistol was also located. The pistol was loaded with six rounds in the
magazine and one round in the chamber. The items were seized.
Defendant was placed under arrest and advised of his Miranda rights. Defendant stated that he
understood his rights. Defendant then made voluntary statements indicating his possession with
the intent to distribute the cocaine base (crack) and his knowing possession of the firearm. A
subsequent search of defendant located $548 in various United States currency.
The suspected controlled substances were submitted to the Saint Louis Metropolitan Police
Department Laboratory for analysis by an expert criminalist. The suspected narcotics were
determined to be cocaine base (crack), a Schedule 2 narcotic controlled substance, weighing 1.59
grams. The cocaine base (crack) is Acrack@ defined in Section 2D1.1, Note D.
The firearm was analyzed by an expert firearms examiner with the Saint Louis Metropolitan Police
Department Crime Laboratory. It was determined to by a Unique make, 17 model, .32 Auto
caliber semi-automatic pistol bearing serial number 410000. The pistol was manufactured in
France. Therefore, it traveled through foreign and interstate commerce to make its way to
Missouri and defendant=s possession. The firearm was test fires and deemed operable. The
examined handgun is a Afirearm@ as defined under federal law.
By virtue of his guilty plea, defendant admits that he has previously been convicted of at least one
felony crime and that, despite that fact, knowingly possessed a firearm.
Lastly, following defendant=s arrest, defendant filed a complaint with the Saint Louis Metropolitan
Police Department=s Internal Affairs Division making certain allegations against the officers
involved in defendant=s arrest. The allegations contained in that complaint were false. As a
result of defendant=s guilty plea, defendant acknowledges and confirms that those allegations were
Case No. 4:08CR298 RWS [Doc. # 47, pp. 11-12].
At his change of plea hearing, Williams was placed under oath and swore to testify
truthfully, subject to the penalties of perjury. I held the following colloquy with Williams about
THE COURT: Have you had enough time to discuss your case with your lawyer?
MR. WILLIAMS: Yes, sir.
THE COURT: Is there anything you think your lawyer should have done but did not do in
MR. WILLIAMS: No, sir.
Case No. 4:08CR298 RWS [Doc. # 39, p. 6].
Williams then told me that he read the plea agreement and reviewed it with his counsel
before he signed it:
THE COURT: Did you read this document [plea agreement] before you signed it?
MR. WILLIAMS: Yes, sir.
THE COURT: Go over it with your lawyer?
MR. WILLIAMS: Yes, I did.
THE COURT: Did he answer all your questions?
MR. WILLIAMS: Yes, he did.
THE COURT: Do you believe you understand what’s in this document?
MR. WILLIAMS: Yes.
THE COURT: Is everything in here true?
MR. WILLIAMS: Yes, it is.
Case No. 4:08CR298 RWS [Doc. # 39, p. 9].
Later in the hearing Williams told me he believed the prosecution could prove Count III
beyond a reasonable doubt:
THE COURT: [If] you don’t believe the United States could prove all those things beyond a
reasonable doubt, you should not plead guilty today. Do you understand that?
MR. WILLIAMS: Yes.
THE COURT: If you don’t believe it, I have no interest in accepting your guilty plea today either.
Do you understand that?
MR. WILLIAMS: Yes.
Case No. 4:08CR298 RWS [Doc. # 39, p. 17].
Williams also acknowledged that he was waiving his right to contest his conviction or
sentence in any post-sentence proceeding, except for claims of prosecutorial misconduct or
ineffective assistance of counsel. On November 21, 2008, I sentenced Williams to 95 months of
imprisonment followed by two years of supervised release.
On November 16, 2009, Williams’ filed his ' 2255 motion. On January 11, 2010, I
granted Williams’ motion to appoint counsel. On June 29, 2010, Williams= court-appointed
counsel filed an amended petition.1 On November 7, 2011, Williams filed a “Pro Se
Supplemental Amendment of Petition to Vacate, Set Aside Or Correct, Sentence, Pursuant to 28
U.S.C. ' 2255.”2
Grounds For Relief
In Williams= amended petition filed by court-appointed counsel on June 29, 2010, he
AIt is well-established that an amended complaint supersedes an original complaint and
renders the original complaint without legal effect.@ In re Wireless Telephone Federal Cost
Recovery Fees Litigation, 396 F.3d 922, 928 (8th Cir. 2005). Accordingly, I will not consider the
grounds for relief asserted in Williams’ pro se complaint [Doc. # 1], and will only address the
ineffective assistance of counsel claims contained in Williams’ amended complaint.
Williams requested and was appointed counsel to represent him, so he is not entitled to
also represent himself pro se. “A district court has no obligation to entertain pro se motions filed
by a represented party.” Abdullah v. United States, 240 F.3d 683, 686 (8th Cir. 2001).
Accordingly, I decline to rule on Williams’ “supplemental” motion.
asserted two distinct claims of ineffective counsel: (1) APlea counsel=s failure to investigate
impeachment evidence related to an Internal Affairs investigation of Officers Sharp, Rush, and
Matthews [sic] fell below a reasonable standard of competence and rendered Williams= plea
involuntary@; and (2) APlea counsel=s failure to investigate witnesses including Crystal Charleston,
Corey Rodgers, and Kenya Holt, diminished Williams= estimation of the viability of his defense
and thereby rendered his plea involuntary in violation of the Fifth and Sixth Amendments to the
United States Constitution.@
A. Ineffective Assistance of Counsel Claims
The Sixth Amendment guarantees a criminal defendant the right to effective assistance of
counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). To state a claim for ineffective
assistance of counsel, Williams must demonstrate: (1) that his counsel Amade errors so serious that
counsel was not functioning as the >counsel= guaranteed the defendant by the Sixth Amendment,@
and (2) that his counsel=s Aperformance prejudiced the defense.@ Id. at 687. The court need not
address both components if Williams makes an insufficient showing on one of the prongs.
Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995).
To prove the first prong, Williams must show that Acounsel=s representation fell below an
objective standard of reasonableness.@ Strickland, 466 U.S. at 688. When evaluating counsel=s
performance, Aa court must indulge a strong presumption that counsel=s conduct falls within the
wide range of reasonable professional assistance.@ Id. at 689. And, to Aeliminate the distorting
effects of hindsight,@ courts examine counsel=s performance from counsel=s perspective at the time
of the alleged error. Id.
To prove the second prong, Williams Amust show that the deficient performance prejudiced
the defense.@ Id. at 687. Here, in the context of a guilty plea, Williams Amust show that there is a
reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would
have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). Where the alleged
error of counsel is a failure to investigate, the assessment will Adepend in large party on a
prediction of whether the evidence would have changed the outcome of a trial.@ Id.
In his first claim, Williams argues that his counsel was ineffective in failing to investigate
impeachment evidence concerning Officers Shell Sharp, James Rush, and Michael Mathews. In
2009, Sharp became the target of a St. Louis Metropolitan Police Department Internal Affairs
investigation into police misconduct. In April 2009, the St. Louis Post Dispatch reported on
allegations that Sharp had falsified information on applications for search warrants. In August
2009, the St. Louis Post Dispatch reported that during the preceding year the circuit attorney=s
office dismissed at least twenty-two cases in which Sharp had been involved. In 2010, U.S
Attorney’s Office stated that it could no longer vouch for the credibility of Sharp. See, e.g.,
Holmes v. United States, No. 4:08–CV–1142 CEJ, 2011WL4445702, at *1 (E.D.Mo. Sept. 26,
Despite the subsequently discovered evidence of Sharp=s abhorrent conduct, Williams has
not shown that counsel=s performance was unreasonable at the time of representation. Even if any
of the arresting officers were subject to an Internal Affairs investigation at the time of Williams’
guilty plea, there is nothing to suggest that counsel knew or should have known of such an
investigation. The media reports of Sharp=s misconduct were not published until eight months
after Williams pleaded guilty. As a result, at the time of the alleged error, counsel had no
legitimate reason to explore the possibility that Internal Affairs was investigating the arresting
officers, so his failure to do so was not objectively unreasonable.
Assuming counsel=s failure explore the possibility that Internal Affairs was investigating
the arresting officers was unreasonable, Williams has failed to show that it prejudiced his defense.
At best, an investigation might have uncovered evidence that impeached Sharp. Yet such
impeachment evidence would have involved Sharp falsifying information when applying for
search warrants. This case did not involve a search warrant. More importantly, the
prosecution=s case was not limited to Sharp=s testimony. Sharp=s partner, Rush, participated in
every critical part of Williams= arrest. Rush witnessed Williams engage in hand-to-hand
transactions. Rush seized the gun, drugs, and money as evidence. Williams told Rush he
possessed the gun and drugs, and Rush took Williams written statement, in which he states A...the
police stopped me and found a pistol in the gangway that was never used by me. I got the gun
from a smoker. The dope was found because I was trying to pay a few bills.@ [Doc. # 23-5].
Williams has failed to allege any specific information that counsel could have discovered that
would have discredited Rush. Williams does argue that Mathews has also been accused of
misconduct regarding applications for search warrants, but Mathews did not participate in
Williams’ arrest, rather he was merely listed as an “assisting officer” on the incident report created
by Rush. Accordingly, Williams has not shown there is a reasonable probability that, had counsel
investigated his arresting officers, he ultimately would not have pleaded guilty and would have
insisted on going to trial. As a result, Williams’ first claim of ineffective counsel fails.
In his second claim, Williams argues his counsel was ineffective in failing to interview the
three potential eye-witnesses to his arrest: Crystal Charleston, Corey Rodgers, and Kenya Holt.
AThere is, however, no per se rule that failure to interview witnesses constitutes ineffective
assistance. Ineffective assistance cases turn on their individual facts.@ Sanders v. Trickey, 875
F.2d 205, 209 (8th Cir. 1989). In the instant case, Williams attached an affidavit from Crystal
Charleston that contains discrepancies between her eye-witness account of Williams= arrest and
Rush=s police report. [Doc. # 17-1]. Namely, Charleston claims she witnessed a police car pull
Williams= car over near the corner of Highland Avenue and Goodfellow Boulevard, which is
several residential lots west of 5730 Highland, while Rush=s report seems to indicate that Sharp
approached Williams= car on foot shortly after Williams entered the car in front of 5730 Highland.
The minor discrepancies between Charleston=s affidavit and the police report are not
sufficient to prove that Williams was prejudiced by his counsel’s failure to investigate.
Charleston does not claim to have witnessed any police misconduct or to have any evidence
exonerating Williams. Yet Williams stood before me, in open court, and admitted under oath that
he was guilty, that everything in his plea agreement was true, and that he was not coerced to plead
guilty. He also told me that he was satisfied with the representation of his attorney and that his
attorney did everything he had asked him to do. Given the prosecution’s evidence against
Williams, coupled with his decision to plead guilty, there is no basis to conclude that had counsel
attempted to interview the three witnesses, Williams ultimately would have insisted on going to
trial. As a result, Williams’ second claim of ineffective counsel also fails.
B. Rule 6(a) Discovery is not Warranted
“A habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to
discovery as a matter of ordinary course.” Bracy v. Gramley, 520 U.S. 899, 904 (1997). Rule
6(a) provides that “[a petitioner] shall be entitled to invoke the processes of discovery available
under the Federal Rules of Civil Procedure if, and to the extent that, the judge in the exercise of his
discretion and for good cause shown grants leave to do so, but not otherwise.” “Good cause”
requires a showing “that the petitioner may, if the facts are fully developed, be able to demonstrate
that he is ... entitled to [habeas] relief.” Rucker v. Norris, 536 F.3d 771 (8th Cir. 2009).
Here, Williams seeks discovery any documents related to any Internal Affairs
investigations of Officers Sharp, Rush, and Mathews. However, as discussed in detail above,
counsel had no reason to suspect that any of the officers were subjects of an Internal Affairs
investigation at the time of his representation. To the extent the Williams is requesting discovery
of documents relating to the Internal Affairs complaint that he filed after his arrest, rather than any
preexisting investigation, such complaint is irrelevant to his attempt to prove ineffective assistance
of counsel. Williams confirmed that the allegations in his complaint were false. Case No.
4:08CR298 RWS [Doc. #39, p. 17]. As Williams has not shown “good cause” to believe that a
full development of the facts would demonstrate he is entitled to relief, I will deny his request to
conduct discovery and decline to conduct an in camera review of the documents.
C. An Evidentiary Hearing is not Warranted
An evidentiary hearing need not be held if Williams= Aallegations cannot be accepted as
true because they are contradicted by the record, inherently incredible or conclusions rather than
statements of fact.@ Delgado v. United States, 162 F.3d 981, 983 (8th Cir. 1998). For the reasons
stated above, Williams= allegations do not rise to the level that would require me to hold an
D. I Will Not Issue a Certificate of Appealability
As Williams has not made a substantial showing of the denial of a federal constitutional
right, this Court will not issue a certificate of appealability. See Cox v. Norris, 133 F.3d 565, 569
(8th Cir. 1997) (citing Flieger 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).
IT IS HEREBY ORDERED that Dwan Orlando Williams’ amended petition to vacate,
set aside or correct his sentence pursuant to 28 U.S.C. ' 2255 [Doc. # 17] is DENIED.
IT IS FURTHER ORDERED that Williams’ request for discovery is DENIED.
IT IS FURTHER ORDERED that this Court will not issue a certificate of appealability
as Williams 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
RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE
Dated this 20th day of March, 2013.
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