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Benn v. United States

United States District Court, M.D. North Carolina

July 29, 2019

ALTON BENN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          L. Patrick Auld, United States Magistrate Judge

         This case comes before the undersigned United States Magistrate Judge for recommended rulings on Petitioner's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (“Section 2255 Motion”) (Docket Entry 254), [1] Amended Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (“Amended Section 2255 Motion”) (Docket Entry 258), and Motion for Leave to File Supplemental Pleading (“Supplement Motion”) (Docket Entry 310). For the reasons that follow, the Court should deny each of these motions.

         INTRODUCTION

         On July 5, 2012, this Court (per now-Chief United States District Judge Thomas D. Schroeder) entered a Judgment against Petitioner imposing a prison term of 440 months (see Docket Entry 141 at 2), after a jury verdict finding him guilty of conspiracy to distribute 280 grams or more of cocaine base and five kilograms or more of cocaine hydrochloride in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A) (see Docket Entry 109 at 2, 4-5). Petitioner appealed, but the United States Court of Appeals for the Fourth Circuit affirmed. See United States v. Benn, 572 Fed.Appx. 167 (4th Cir. 2014).[2] He thereafter timely filed the Section 2255 Motion (Docket Entry 254), raising these seven claims:

1) “Ineffective Assistance of Counsel for Failing to Properly Explain the Terms and Conditions of Plea Agreement” (id., ¶ 12(Ground One));[3]
2) “Ineffective Assistance of Counsel for Failing to File Pre[-]Trial Objections and Defenses to a Defect in Instituting the Prosecution” (id., ¶ 12(Ground Two));
3) “Ineffective Assistance of Counsel for Failing to Object to Dismissal of a Complaint by the Government [in] Violation of Fed. R. Crim. P. 48(a)” (id., ¶ 12(Ground Three));
4) “Ineffective Assistance of Counsel for Failing to Contest the Permittance [sic] of Testimony by Government Witness Testifying to Allegedly Destroy [sic] Video Footage” (id., ¶ 12(Ground Four));
5) “Ineffective Assistance of Counsel for Failing to Inform [sic], Explain, or Discuss Trial Strategy with Petitioner before and during Trial” (id., ¶ 12(Ground Five));
6) “Ineffective Assistance of Counsel for Failing to Impeach Key Government Witnesses with Other Available Evidence that Demonstrate [sic] [They] Had Lied” (id., ¶ 12(Ground Six)); and
7) “Ineffective Assistance of Counsel for Failing to Inform the Court that [Trial Counsel] Was on Medication and It Was Affecting [His] Skills as an Attorney” (id., ¶ 12(Ground Seven)).

         The Section 2255 Motion includes some information to support each of those claims and states that Petitioner will submit a subsequent “Memorandum of Law.” (See id., ¶ 12(Ground One) -(Ground Seven).) A short time later, he filed:

1) the Amended Section 2255 Motion (Docket Entry 258), which simply re-states the seven claims set forth in the Section 2255 Motion (in near-verbatim fashion as to Grounds One through Three and with minor modifications as to Grounds Four through Seven) (compare Docket Entry 254, ¶ 12 (Ground One) - (Ground Seven), with Docket Entry 258, ¶ 12 (Ground One) - (Ground Seven));
2) a Memorandum of Law, which elaborates on these seven claims (see Docket Entry 259 at 5-55);[4] and
3) Exhibits A through M, which consist of affidavits from Petitioner and two family members, as well as law enforcement and court documents (see Docket Entry 259-1 at 1 (identifying each)).

         The United States responded in opposition (see Docket Entry 306)[5] and Petitioner replied (see Docket Entry 319).[6] Petitioner also filed the Supplement Motion (Docket Entry 310), seeking leave to add an eighth claim, described in the accompanying Notice as “Ineffective Assistance of Counsel at Sentencing” (Docket Entry 311 at 2). The United States opposed the Supplement Motion on grounds of untimeliness and lack of merit. (See Docket Entry 377 at 4-8.)

         The Court (per the undersigned Magistrate Judge) set an evidentiary hearing and conditionally appointed counsel (pending review of updated affidavit). (See Text Order dated June 26, 2018; see also Docket Entry 355 (designating counsel); Text Order dated July 25, 2018 (granting Petitioner's Motion to Continue Evidentiary Hearing (Docket Entry 357)); Docket Entry 363 (confirming appointment of counsel based on Financial Affidavit (Docket Entry 362)); Oral Order dated Aug. 31, 2018 (granting Petitioner's Motion to Continue Evidentiary Hearing (Docket Entry 361)).) After taking evidence (see Docket Entries 376, 378, 379), the Court (per the undersigned Magistrate Judge) deferred oral argument pending preparation of transcripts (as Petitioner requested) (see Docket Entry 376; Text Order dated Dec. 21, 2018; see also Text Order dated Jan. 3, 2019 (granting Petitioner's Motion to Continue (Docket Entry 380))). The parties subsequently addressed all outstanding evidentiary matters via Stipulation (Docket Entry 382; see also Docket Entry 383 at 2 (confirming that Stipulation “resolve[d] any need for . . . issuance of subpoenas”) and their counsel presented oral argument (see Docket Entry 383 at 3-31).[7]

         DISCUSSION

         Petitioner possessed a federal constitutional right to effective assistance of counsel in his federal criminal case. See U.S. Const. amend. VI; McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970). To make out an ineffective assistance claim, Petitioner must prove that his counsel's performance fell below a reasonable standard for defense attorneys and that prejudice resulted. See Strickland v. Washington, 466 U.S. 668, 687-94 (1984). “Surmounting Strickland's high bar is never an easy task. . . . [T]he standard for judging counsel's representation is a most deferential one.” Harrington v. Richter, 562 U.S. 86, 105 (2011) (internal quotation marks omitted); see also United States v. Galloway, 749 F.3d 238, 241 (4th Cir. 2014) (“To meet th[e prejudice] element of an ineffective assistance claim, [the defendant] would have to show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different and that the result of the proceeding was fundamentally unfair or unreliable.” (internal quotation marks omitted)).

         Ground One: Ineffective Assistance as to Plea Agreement

         Ground One of the Section 2255 Motion asserts that Petitioner's trial counsel rendered ineffective assistance by “failing to properly explain the terms and conditions of [a] plea agreement.” (Docket Entry 254, ¶ 12(Ground One) (standard capitalization applied); accord Docket Entry 258, ¶ 12(Ground One).) As its “[s]upporting facts, ” Ground One recites:

In this case the government offered [] Petitioner a plea agreement. I[n] said agreement the government offer [sic] to use only one of [] Petitioner's priors for [21 U.S.C.] §851. This was if he agreed to the plea agreement. Petitioner's attorney informed him that the government did have the authority to use only one prior if [the government] w[as] aware of other priors and had to use them all. Counsel further stated that being that [Petitioner] had two priors he would receive a mandatory life sentence if he accepted the plea. This explanation caused [] Petitioner to reject the plea and proceed to trial. Without this erroneous explanation, Petitioner contends that he would have accepted the offered plea.

(Docket Entry 254, ¶ 12(Ground One)(a) (emphasis in original).)[8] The Court should deny relief on this claim.

         “A conspiracy involving . . . [280 grams or more of cocaine base or five kilograms or more of cocaine hydrochloride] normally carries a mandatory minimum sentence of 10 years. However, if the defendant [commits such offense] after a prior conviction for a felony drug offense has become final, and the government provides the defendant with the required notice, the mandatory minimum sentence increases to 20 years.” United States v. Washington, 574 Fed.Appx. 262, 263 (4th Cir. 2014) (internal citations, emphasis, and quotation marks omitted) (citing Sections 841(b)(1)(A) and 851(a)). “The statutory mandatory minimum is raised to life imprisonment if the defendant sustains the conviction after two convictions for felony drug offenses have become final. In order to enhance the defendant's sentence based on his prior convictions, however, the Government must file an information pursuant to [Section] 851 ‘stating in writing the previous convictions to be relied upon.'” United States v. Coppedge, 454 Fed.Appx. 202, 205 (4th Cir. 2011) (quoting Section 851(a)(1)); see also United States v. Clarke, 237 Fed.Appx. 831, 833 (4th Cir. 2007) (“When the government seeks an enhanced sentence under [Section] 841, it must file an information pursuant to . . . [Section] 851 . . . stating the prior convictions it will rely on . . . .”).

         Accordingly, pursuant to Section 851, the United States may choose the prior convictions (if any) upon which it will rely and thereby may “determine whether a particular defendant will be subject to the enhanced statutory maximum[s of Section 841(b)(1)] . . . .” United States v. LaBonte, 520 U.S. 751, 762 (1997); see also Id. (describing “such discretion [(A) as] similar to the discretion a prosecutor exercises when he decides what, if any, charges to bring against a criminal suspect, ” (B) as “an integral feature of the criminal justice system, and [(C) a]s appropriate, so long as it is not based upon improper factors”); United States v. Forney, 442 Fed.Appx. 27, 29 (4th Cir. 2011) (acknowledging authority of United States to withdraw “one of the two notices of [the defendant's] prior felony drug convictions, ” even absent claim “that either of the previous convictions [was] invalid”); United States v. Bennett, No. 2:11CR191, 2012 WL 5512280, at *2 (M.D. Ala. Nov. 14, 2012) (unpublished) (“[A] defendant sentenced for trafficking certain drugs (including crack) is subject to escalating mandatory-minimum sentences . . . depending on his criminal history and the quantity of drugs for which he is held responsible. . . . [T]he law affords prosecutors the discretion to decide the extent to which that criminal history will be placed before the court. Therefore, in the case of a defendant with several prior convictions, the government is essentially granted sole discretion of choosing whether a mandatory-minimum sentence of as high as life . . . is to apply.” (internal citation omitted)).

         Consistent with the foregoing authority, the record reflects that (in late July 2011) the United States did make a plea offer to Petitioner, which (A) included an “agree[ment] not to file an enhancement pursuant to [Section] 851, related to [a second] prior conviction” (Docket Entry 306-4 at 2; see also Id. at 9 (“The United States . . . agrees not to file an Information of Prior Conviction regarding [Petitioner's] February 2l, l995 conviction for possession of crack cocaine. The United States will file an Information of Prior Conviction . . . regarding [his] October 12, 1999 conviction of possession of a control[led] dangerous substance with intent to distribute, second degree.”), and which (B) documented that (as a result of the agreement to give notice of only one prior conviction under Section 851) Petitioner would receive “a term of imprisonment of not less than twenty years and not more than life” (id. at 7-8). However, the record contains no credible evidence to support the bald accusation in Ground One that Petitioner's trial counsel misinformed Petitioner about the discretion of the United States to limit the No. of prior convictions in a notice under Section 851 and/or the sentencing exposure Petitioner faced under the plea agreement offered to him. Conversely, many reasons exist to conclude just the opposite.

         First, the provisions for filing information(s) of prior conviction(s) codified in Section 851 came into effect in 1970, see Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub. L. 91-513, Title II, Pt. D, § 411, 84 Stat. 1269-70, and Congress revised Section 841 to include mandatory minimums of imprisonment for 20 years and life based on the filing of Section 851 notices in 1986, see Anti-Drug Abuse Act of 1986, Pub. L. 99-570, Title I, § 1002, 100 Stat. 3207-2. Petitioner's trial counsel, in turn, began representing criminal defendants no later than 1974, see, e.g., State v. Best, 23 N.C.App. 507, 509, 209 S.E.2d 364, 365 (1974) (listing Petitioner's trial counsel as attorney for “defendant appellant”), appeal dismissed, 286 N.C. 416, 211 S.E.2d 797 (1975), and, in the quarter-century from 1986 to his handling of Petitioner's case in 2011, regularly represented defendants charged with serious federal drug crimes, see, e.g., United States v. Bailey, 434 Fed.Appx. 195, 196 (4th Cir. 2011) (identifying Petitioner's trial counsel as attorney “for Appellant” who “pled guilty to possession with intent to distribute cocaine base”); United States v. Robinson, 227 Fed.Appx. 289, 289 (4th Cir. 2007) (same); United States v. Marshal, 39 Fed.Appx. 903, 903 (4th Cir. 2002) (same); United States v. Sang, No. 95-5622, 89 F.3d 831 (table), 1996 WL 316479 (4th Cir. June 12, 1996) (unpublished) (same); United States v. Mills, 995 F.2d 480, 482 (4th Cir. 1993) (naming Petitioner's counsel as attorney for defendant convicted of “conspiracy to distribute multiple kilograms of cocaine”); United States v. Dorta, 783 F.2d 1179, 1180 & n.1 (4th Cir. 1986) (same).

         During that time, Petitioner's trial counsel negotiated at least one plea agreement in which the United States “agree[d] to withdraw” one of two prior convictions as to which it had given notice under Section 851, see Plea Agt. at 5, United States v. Williams, No. 1:08CR223, Docket Entry 23 (M.D. N.C. Oct. 9, 2008), thereby reducing his client's mandatory minimum prison term under Section 841(b)(1)(A) from life to “not [] less than twenty years, ” Id. at 2. Considering such (recent) past work on a plea agreement just like the one at issue here and his vast experience with federal drug cases, Petitioner's trial counsel undoubtedly knew how Section 851 operated and thus would not have (out of ignorance) misadvised Petitioner about its functioning or impact on the statutory prison term that would apply under the proposed deal.

         Nor could the Court reasonably conclude that Petitioner's trial counsel purposely gave false information to Petitioner about such matters. According to the credible, evidentiary hearing testimony of Thomas Johnson, an attorney who has practiced law “[s]ince 1989 in this [C]ourt” (Docket Entry 378 at 6), who defended one of Petitioner's co-defendants at their joint trial (see Id. at 7), and who “had a chance to see [Petitioner's trial counsel] practice over the years” (id. at 10), Petitioner's trial counsel “represent[ed] his clients zealously” (id.) and “had an excellent reputation in the defense bar” (id. at 17). Petitioner's trial counsel neither became known for zealously representing his clients nor earned an excellent reputation in the defense bar by lying to defendants about the functioning of criminal statutes and/or the mandatory sentencing implications of plea agreements.

         Other credible testimony from the evidentiary hearing also bolsters the conclusion that Petitioner's trial counsel did not (negligently or intentionally) mislead Petitioner about the plea offer. In particular, Amy Crowder, the paralegal who worked closely with Petitioner's trial counsel for more than 15 years (see Id. at 32), credibly testified that she “overheard calls” between Petitioner and his trial counsel (id. at 51), during which:

1) Petitioner's trial counsel “went over th[e plea agreement] quite a few times” (id.);
2) Petitioner's trial counsel “relay[ed] to [Petitioner]” that the “penalty . . . [he] was facing . . . [f]or the plea agreement [was a] minimum 20 [years], maximum life” (id. at 52); and
3) Petitioner's trial counsel never told Petitioner that, under the plea agreement, “he was facing a mandatory life [sentence]” (id.; accord Id. at 59).

         Contrastingly, Petitioner's testimony about the plea agreement lacked credibility. As an initial matter, unlike Attorney Johnson and Paralegal Crowder, whose “testimony on the material factual issues [was] credible, ” including because it “was matter-of-fact, not adversarial, in tone, ” Diaz v. United States, Nos. 7:09CR100D, 7:11CV43D, 2014 WL 7384974, at *5 (E.D. N.C. Dec. 29, 2014) (unpublished), and because of the absence of any “evidence that [they] had any incentive to lie, ” United States v. Solomon, 24 Fed.Appx. 148, 151 n.1 (4th Cir. 2001), Petitioner “ha[d] an obvious incentive to misstate the truth, ” Cruz-Rea v. United States, No. 3:11CV166, 2015 WL 5785744, at *2 (S.D. Ind. Sept. 30, 2015) (unpublished), as this action “represents perhaps the only remaining avenue open to [him] to potentially escape service of [his] extended prison term, ” Diaz, 2014 WL 7384974, at *8. Additionally, the credibility of Petitioner's testimony about the plea agreement “[wa]s severely, if not completely, eroded by the fact that [it] stands in direct conflict with [sworn] factual allegations in his [Section 2255 Motion], ” Id. at *7.

         Specifically, the Section 2255 Motion - the contents of which Petitioner verified “under penalty of perjury” (Docket Entry 254, Decl. ¶) - states that, “[w]ithout th[e] erroneous explanation [from his trial counsel about the ability of the United States to limit the convictions noticed under Section 851 and thus the mandatory prison term he faced under Section 841(b)(1)(A)], . . . he would have accepted the offered plea.” (Id., ¶ 12(Ground One)(a).) In contrast, at the evidentiary hearing, Petitioner testified that he would not (and indeed could not) have accepted the proposed plea agreement - which obligated him to “enter a voluntary plea of guilty to Count One of the Indictment” (Docket Entry 306-4 at 7; see also Id. at 9 (requiring Petitioner to admit that “he is, in fact, guilty” of “Count One of the Indictment”)), which (then) charged him with participating in a conspiracy from May 2007 through May 2011, with “Sean Darnell Jeffries, . . . Robert Eugene Poole, and divers other persons, . . . [t]o knowingly, intentionally and unlawfully distribute 280 grams or more of . . . cocaine base (‘crack')” (Docket Entry 10 at 1 (all-caps font omitted));[9] rather, Petitioner swore that:

1) he did “[n]ot [participate in] Sean Jeffries'[s] conspiracy” (Docket Entry 378 at 160);
2) he did “[n]ot [participate in Robert Poole's] conspiracy” (id.);
3) he only “conspire[d] with . . . Pedro and Lammel . . . [who] were in the Gwinnett County area[ of] Georgia” (id. at 162);
4) he “was guilty of something, but not what [he] was accused of” (id. at 163; see also Id. (“I was guilty of something . . . which I wasn't charged for . . . .”));
5) “the only thing [he] w[as] going to plead guilty to [wa]s something [he] had not been charged with at the point in time of the . . . potential plea” (id. at 164);
6) he would not have signed the proposed plea agreement as written, but instead “would have written exactly what [he] was guilty of on it” (id. at 167); and
7) he was “guilty of . . . [t]rafficking . . . [c]ocaine, ” but not “[c]rack” (id. at 167-68).

         At other points in the evidentiary hearing, Petitioner tried to salvage Ground One by contradicting his above-quoted averments and insisting (in conclusory fashion) that (despite his denial of guilt as to the crack cocaine conspiracy charge against him), “if [his trial counsel] would have explained to [him] correctly the terms of the [proposed plea] agreement, [he] would have accepted it.” (Id. at 165; accord Id. at 166.) However, Petitioner gave still other testimony inconsistent not only with his guilt as to the charged crack cocaine conspiracy, but also with his sworn admission to participating in some other drug conspiracy and/or to trafficking in some other form of cocaine. (See Id. at 161 (“I wasn't a drug dealer.”).) Finally, when questioned about these matters, Petitioner often responded evasively. (See, e.g., Id. at 161-63 (“Q. Well, then who did you conspire with and what did you conspire to do? . . . A. Those people weren't in the courtroom nor were [they] on the indictment. Q. Who are they? A. Those people weren't in the courtroom or wasn't [sic] on the indictment. The Court: The question is: Who did you conspire with? [Petitioner]: Others. The Court: Who? [Petitioner]: They wasn't [sic] charged. . . . Q. So where did you take the[ drugs]? A. I took them out of North Carolina. Q. Where did you take them? A. I took them out of North Carolina. Q. . . . [W]here out of North Carolina did you take them? A. They wasn't [sic] in Greensboro, North Carolina.” (emphasis omitted)).) Eventually, Petitioner's subterfuge necessitated the issuance of an “instruct[ion to him] to answer the question[s] or . . . to [have] stri[c]ke[n] all of [his] testimony.” (Id. at 163.)

         Put charitably, “the testimony of [Petitioner] lacked the earmarks of credibility . . . as [it] was both evasive and internally inconsistent. . . . [From o]bserv[ing his] demeanor . . .[, ] it was apparent . . . that h[is] responses were . . . contrived.” United States v. Ponce-Duarte, No. 3:11CR97, 2011 WL 2791244, at *1 (W.D. N.C. July 14, 2011) (unpublished); see also The Adela, 73 U.S. 266, 267-68 (1867) (“The credibility of the[ witnesses'] statements was much impaired by their evasive character.”); Cruz-Rea, 2015 WL 5785744, at *2 (“[The petitioner's] version of events . . . is not credible. His testimony is internally inconsistent . . . .”); Diaz, 2014 WL 7384974, at *7 (citing, among reasons for rejecting the petitioner's account, fact that “his testimony itself was inconsistent”).[10]

         In sum, given the clear language of Section 851, the experience and reputation of Petitioner's trial counsel, the credible testimony that he correctly advised Petitioner about the sentencing implications of the plea agreement, and the total lack of credibility of Petitioner's contrary testimony, the Court should deem Ground One “wholly incredible, ” Denton v. Hernandez, 504 U.S. 25, 33 (1992), and thus “factually frivolous, ” Id. “A § 2255 motion which is facially inadequate may be summarily denied, i.e., [the Court may deny claims] stating . . . contentions which are wholly incredible . . . .” United States v. Butt, 731 F.2d 75, 77 (1st Cir. 1984) (internal quotation marks omitted); see also Almonte v. United States, No. 91Civ.6044, 1992 WL 84942, at *1 (S.D.N.Y. Apr. 10, 1992) (unpublished) (dismissing as “frivolous” Section 2255 claims based on “wholly fanciful” allegations). Under these circumstances, the Court should deny Ground One due to the frivolous nature of the factual assertions on which it depends.

         Alternatively, even if the Court chose to credit Petitioner's statement(s) that his trial counsel provided a grossly inaccurate account of the authority of the United States to identify prior convictions under Section 851 and the prison term Petitioner faced under Section 841, the record still forecloses relief on Ground One, because he cannot establish prejudice. More specifically:

To show prejudice from ineffective assistance of counsel where a plea offer has . . . been rejected because of counsel's deficient performance, defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel. Defendants must also demonstrate a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it . . . . [Lastly, defendants must] show a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time.

Missouri v. Frye, 566 U.S. 134, 147 (2012).

         As documented above, Petitioner's evidentiary hearing testimony precludes a finding of any such prejudice. Most notably, in that testimony, he steadfastly denied guilt on the charge to which the plea agreement required him to admit guilt. (See, e.g., Docket Entry 378 at 160 (denying participation in conspiracy with Jeffries and Poole), 163 (“I was guilty of something, but not what I was accused of.”), 168 (disavowing involvement with crack cocaine).) Petitioner therefore cannot “demonstrate a reasonable probability [he] would have accepted the earlier plea offer, ” Frye, 566 U.S. at 147, or “a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it, ” id.[11]

         These considerations all lead to the conclusion that Ground One fails as a matter of law.

         Ground Two: Ineffective Assistance as to Indictment

         Via Ground Two of the Section 2255 Motion, Petitioner alleged ineffectiveness by his trial counsel “for failing to file pre[-] trial objections and defenses to a defect in instituting the prosecution” (Docket Entry 254, ¶ 12(Ground Two) (standard capitalization applied); accord Docket Entry 258, ¶ 12(Ground Two)) and offered these “[s]upporting facts” for that claim:

Prior to trial, [trial] counsel informed [] Petitioner that [trial counsel] had in his possession documents to show that [the] government had knowingly submitted false statements and evidence to the grand jury. He stated that he was going to file pre-trial objections and defenses in order to get the indictment dismissed, but [he] failed to do so. Petitioner later discovered that [trial] counsel did in fact have documents to show that [the] government knowingly submitted false statements to the grand jury. By failing to file objections and defenses to a defect in instituting the prosecution, [trial] counsel was ineffective and such ineffectiveness waived [] Petitioner's opportunity to have his indictment dismissed.

(Docket Entry 254, ¶ 12(Ground Two)(a).) Petitioner cannot prevail on this ineffective assistance claim for several reasons.

         First, the foregoing conclusory allegations provide no basis for the Court to find that Petitioner's trial counsel should have and/or could have won a pre-trial motion to dismiss the indictment due to perjury before the grand jury. See, e.g., United States v. Dyess, 730 F.3d 354, 359 (4th Cir. 2013) (“[C]onclusory allegations contained in a § 2255 petition may be disposed of without further investigation by the [d]istrict [c]ourt.” (internal quotation marks omitted)).[12] Nor does the elaboration on Ground Two in Petitioner's Memorandum of Law save this ineffectiveness claim. (See Docket Entry 259 at 12-20.) To the contrary, Petitioner therein confirmed that he possesses no evidence regarding what information came before the grand jury and instead asks the Court to assume that, because the United States “adopted the state investigation . . . conducted by [Greensboro Police] Detective [Rick] Alston” (id. at 16), the grand jury necessarily relied upon “all documents and statements prepared by Detective Alston” (id.; see also Id. at 16-17 (discussing Detective Alston's Incident/Investigation Report (Docket Entry 259-1 at 8-9), Case Supplemental Report (id. at 10), Reporting Officer Narrative (id. at 11), Laboratory Services Request (id. at 13), and Request for Examination of Physical Evidence (id. at 14)).[13]

         That approach cannot succeed, as illustrated by this adaptation of a nearby court's ruling in an analogous situation:

[Petitioner] alleges [that his trial] counsel rendered ineffective assistance for failing to move to dismiss the indictment based on perjured testimony before the grand jury. [Petitioner] claims that [Detective Alston or some other witness who relied on Detective Alston's reports] told the grand jury [false information about evidence seized outside Petitioner's] residence . . . . However, [Petitioner] does not cite to any transcript or affidavit to indicate that anyone told the grand jury [false information] . . . . [Petitioner] does not bring to the [C]ourt's attention any evidence that [Detective Alston or any witness who relied on his reports] even testified before the grand jury. . . . Accordingly, the [C]ourt concludes that [Petitioner] has not demonstrated that [his trial] counsel acted deficiently, or that but for [his trial] counsel's failure to [file a motion to dismiss] alleg[ing] perjury before the grand jury, the result of the [case] would have been different.

Washington v. United States, 291 F.Supp.2d 418, 434-35 (W.D. Va. 2003). In other words, claims (such as Ground Two) that require “evidence of perjury before the grand jury cannot be based on speculation.” United States v. Nishimura, Cr. No. 11-153, 2012 WL 442840, at *4 (D. Haw. Feb. 10, 2012) (unpublished); see also United States v. Kalevas, 622 F.Supp. 1523, 1525 (S.D.N.Y. 1985) (“Speculation and surmise as to what occurred before the grand jury is not a substitute for fact.” (internal quotation marks omitted)).

         Further, even if Petitioner had established that the grand jury considered “documents and statements prepared by Detective Alston” (Docket Entry 259 at 16), “nothing from the record before the [C]ourt[] demonstrates that the prosecutor knowingly, deliberately, or even unintentionally sought perjured testimony; knew [Detective Alston] provided false [information]; or sought to mislead the grand jury, ” United States v. Price, Crim. No. 03-147-1, Civ. Action No. 08-145, 2008 WL 2996232, at *6 (E.D. Pa. Aug. 5, 2008) (unpublished). Simply put, Petitioner's “speculative accusations that the prosecutor solicited or suborned perjured testimony are not enough for [Petitioner] to prove that his trial counsel's performance was deficient for failing to allege prosecutorial misconduct during the grand jury proceedings.” Id.; see also Lorenzana v. United States, No. 11 Civ. 6153, 2012 WL 4462006, at *6 (S.D.N.Y. Sept. 27, 2012) (unpublished) (“[The petitioner contends his] counsel was ineffective for failing to argue that the Government committed prosecutorial misconduct. [The petitioner] argues that the Government presented perjured testimony to the Grand Jury . . . . Because [the petitioner] has not provided any facts to support his accusation, this speculative claim does not warrant scrutiny under Strickland.”).[14]

         Finally, “in order to justify dismissal of an indictment, [grand jury] perjury must be material. . . . The materiality of perjured testimony should not be presumed, and mere speculation cannot justify a court's intervention . . . .” United States v. Jack, No. 2:07CR266, 2010 WL 4718613, at *19 (E.D. Cal. Nov. 12, 2010) (unpublished). Petitioner, however, has not uncovered any material falsity in the “documents and statements prepared by Detective Alston” (Docket Entry 259 at 16) (again, assuming that such materials came before the grand jury).

         In the Memorandum of Law, Petitioner sought to prove grand jury perjury by pointing to two purported discrepancies involving six documents. (See Id. at 16-17 (citing Incident/Investigation Report (Docket Entry 259-1 at 8-9), Case Supplemental Report (id. at 10), Reporting Officer Narrative (id. at 11), Laboratory Services Request (id. at 13), Request for Examination of Physical Evidence (id. at 14), and Laboratory Report (id. at 12)).) As to the first, he argued that the Reporting Officer Narrative contains “a falsification, ” because (in discussing a trash-pull) it “state[s] that [Detective Alston] found ‘several pieces' of discarded mail addressed to [Petitioner and his wife], instead of the one piece of mail that was addressed to [his wife] as [Detective Alston] stated [in the Incident/Investigation Report] and [Case Supplemental Report].” (Docket Entry 259 at 16-17.)[15]Next, Petitioner noted that the Incident/Investigation Report catalogs the seizure of “.250” of a gram of “[c]ocaine” (Docket Entry 259-1 at 9), which the Case Supplemental Report and Reporting Officer Narrative label a “white powder” (id. at 10, 11 (all-caps font omitted from former)), and the Laboratory Services Request and Request for Examination of Physical Evidence identify as a “[p]owder substance” and “white powder substance, ” respectively (id. at 13, 14 (all-caps font omitted from latter)), whereas the Laboratory Report describes it as an “off-white hard material” consisting of “less than 0.1 gram” of “Cocaine Base” (id. at 12). (See Docket Entry 259 at 17.)

         The United States correctly has observed that, if Petitioner's trial counsel had moved to dismiss the indictment based on such “minor differences” in these reports, “it is apparent that the[ motion] would have been denied.” (Docket Entry 306 at 17.) To begin, “[m]ere inconsistency does not establish falsehood . . . .” United States v. Jones, 38 Fed.Appx. 840, 846 (4th Cir. 2002); see also United States v. Johnson, 114 F.3d 476, 483 n.4 (4th Cir. 1997) (“[T]he inconsistencies in the [evidence] upon which [the defendant] relies are by no means necessarily demonstrative of perjury.”); Asuncion v. City of Gaithersburg, Md., No. 95-1159, 73 F.3d 356 (table), 1996 WL 1842, at *2 (4th Cir. Jan. 3, 1996) (unpublished) (“[M]ere recitation of factual inconsistency is insufficient to demonstrate perjury . . . .”). Moreover, these “minor inconsistenc[ies are] . . . immaterial and did not prejudice [Petitioner].” Pope v. Netherland, 113 F.3d 1364, 1371 (4th Cir. 1997); see also United States v. Ricks, No. 86-7636, 810 F.2d 195 (table), 1987 WL 36248, at *2 (4th Cir. Jan. 14, 1987) (unpublished) (“We have examined the transcripts of the witnesses' testimony of which [the petitioner] complains and find nothing more than minor inconsistencies. . . . [The petitioner's] request for relief on this claim must fail.”). The futility of pursuing dismissal of the indictment based on immaterial variations within investigative materials defeats any ineffective assistance claim predicated on the absence of such a motion. See Oken v. Corcoran, 220 F.3d 259, 269 (4th Cir. 2000) (“[C]ounsel was not constitutionally ineffective in failing to object . . . because it would have been futile for counsel to have done so . . . .”).

         The Court therefore should rule Ground Two without merit.[16]

         Ground Three: Ineffective Assistance as to Complaint

         According to Ground Three of the Section 2255 Motion, Petitioner received ineffective assistance because his trial counsel “fail[ed] to object to dismissal of a complaint by the government [in] violation of Fed. R. Crim. P. 48(a).” (Docket Entry 254, ¶ 12(Ground Three) (standard capitalization applied); accord Docket Entry 258, ¶ 12(Ground Three).) The “[s]upporting facts” for that claim appear as follows:

In this case, [] Petitioner was charged in a criminal complaint and was proceeding to the necessary judicial functions when the complaint was terminated (dismissed) without any notice. The day that [] Petitioner was scheduled to go to court on the complaint, he was arraigned on an indictment. [Trial c]ounsel did not object to the dimissal [sic] even though it was not in compliance with Rule 48. So counsel never determined whether there was an actual dismissal or whether it was done in bad or in good faith. Without this determination there is no way to ascertain if the dismissal was with or without prejudice. By not determining whether there was an actual dismissal and/or such dismissal was with or without prejudice counsel was ineffective and this eror [sic] was instrumental in Petitioner's waiving of this pre-trial objection, which could determine whether or not subsequent indictments should be dismissed.

(Docket Entry 254, ¶ 12(Ground Three)(a); see also Docket Entry 259 at 24 (“Adherence, or lack thereof, to this rule can ultimately decided [sic] whether or not subsequent indictments, depending on whehter [sic] dismissal is construed with or without prejudice, will be premitted [sic] to utilize the same evidence as was used in the complaint.”), 25 (“Being that there was a complete diveregence [sic] from the rule in this matter, . . . there is a reasonable probability that counsel could have secured a dismissal with prejudice for ‘bad faith'. Such dismissal with prejudice would have thereafter placed [] Petitioner in a position to have subsequent indictments dismissed, if they were founded on the same evidence that the complaint was founded upon.”).) This claim suffers from obvious defects that mark it as frivolous.

         On May 10, 2011, the Court (per the undersigned Magistrate Judge) issued an arrest warrant for Petitioner for conspiring (from May 2007 to August 2008) to distribute five kilograms or more of cocaine hydrochloride in violation of Sections 846 and 841(b)(1)(A) (Docket Entry 2), based on a criminal complaint (Docket Entry 1), which (in a federal task force officer's incorporated affidavit) detailed Petitioner's drug activity with Sean Darnell Jeffries, Leonard Gary Williams, and others (see, e.g., Id. at 3-6).[17] Petitioner's arrest and initial appearance occurred the next day. (See Minute Entry dated May 11, 2011; Docket Entry 5.) Six days later, he came before the undersigned Magistrate Judge for preliminary and detention hearings, but “requested a continuance, ” which “[t]he Court granted . . . until 6/1/11 . . . .” (Minute Entry dated May 17, 2011.)[18] On May 31, 2011, the grand jury indicted Petitioner and Jeffries for participating (along with Williams and others) in a conspiracy (from May 2007 through May 31, 2011) to distribute 280 grams or more of cocaine base in violation of Sections 846 and 841(b)(1)(A). (See Docket Entry 10 at 1.)[19]Given that development, the Clerk's Office administratively terminated activity on the criminal complaint. See Docket Entry, United States v. Benn, No. 1:11MJ107 (M.D. N.C. May 31, 2011).

         In the simplest terms, Ground Three confuses that administrative termination by the Clerk's Office (due to the return of an indictment) with a dismissal by the United States pursuant to Federal Rule of Criminal Procedure 48(a). “A criminal complaint only authorizes a judge to issue an arrest warrant.” United States v. Heard, No. 17CR82, 2018 WL 3478901, at *2 (N.D. Iowa July 19, 2018) (unpublished) (citing Fed. R. Crim. P. 4(a)). If, as in this case, an offense carries the possibility of “imprisonment for more than one year, ” Fed. R. Crim. P. 7(a)(1), it “must be prosecuted by an indictment, ” id.; see also Heard, 2018 WL 3478901, at *2 (“A trial on a felony charge must be based on an indictment by a grand jury.”). Furthermore, the transition from arrest upon a criminal complaint to prosecution via indictment must occur rapidly (as it did here). See 18 U.S.C. § 3161(b) (“Any . . . indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested . . . .”). In sum, “the [criminal] complaint [wa]s the temporary charging document, and [wa]s superseded once the more formal charging document [i.e., the indictment, wa]s filed.” 1 Charles Alan Wright et al., Federal Practice and Procedure, Crim. § 41 (4th ed. Apr. 2019 update) (emphasis added); see also United States v. Flick, No. 1:18CR9, 2019 WL 981642, at *1 (S.D. Ind. Feb. 28, 2019) (unpublished) (“[T]he [i]ndictment supersedes the complaint.”); United States v. Freund, No. 08CR1324, 2008 WL 4693245, at *1 n.1 (N.D. Iowa Oct. 24, 2008) (unpublished) (“The [i]ndictment superseded the [c]riminal [c]omplaint.”).

         Because the United States properly superseded the criminal complaint by obtaining an indictment within 30 days of Petitioner's arrest, it neither needed to nor did seek, “with leave of court, [to] dismiss . . . [the] complaint, ” Fed. R. Crim. P. 48(a); see also Fed. R. Crim. P. 48 advisory comm. n., 1944 adoption, subdiv. (a) (“The word ‘complaint' was included [in this rule only] . . . to resolve a doubt prevailing in some districts as to whether the United States attorney may file a nolle prosequi between the time when the defendant is bound over [after an arrest] . . . and the finding [by the grand jury] of an indictment.”).[20] In any event, if a dismissal under Federal Rule of Criminal Procedure 48(a) should have happened, “the authorities are replete that such a dismissal is without prejudice, ” United States v. Chase, 372 F.2d 453, 463 (4th Cir. 1967); see also Heard, 2018 WL 3478901, at *2 (“[The d]efendant's argument is based on the faulty premise that the [criminal c]omplaint formed the basis for his trial and conviction. . . . [His] prosecution and trial would have proceeded regardless of whether th[at c]omplaint [was dismissed] . . . .”).

         Under these circumstances, Ground Three so clearly affords no basis for collateral relief that it qualifies as frivolous.[21]

         Ground Four: Ineffective Assistance as to Surveillance Testimony

         The Section 2255 Motion's fourth ground states that Petitioner suffered ineffective assistance because his trial counsel “fail[ed] to contest the permittance [sic] of testimony by [a] government witness testifying to allegedly destroy [sic] video footage.” (Docket Entry 254, ¶ 12(Ground Four) (standard capitalization applied); see also Docket Entry 258, ¶ 12(Ground Four) (articulating claim as “Ineffective Assistance of Counsel for Failing to Object to the Admission of Testimony which was Attempting to Prove the Content of a Video Recording”).) For its “[s]upporting facts, ” Ground Four relies on the following:

Petitioner's [trial] counsel was ineffective for failing to object to the permittance [sic] of evidence (testimony) that was used to describe events on video footage. In his trial testimony, Detective Alston testified to events from video footage without being required to produce the original footage. The Government alleged that the video footage was destroyed and evidence would not be used from said video, but [Detective] Alston's testimony alleged events that happened during the period that the recordings were being implemented. By failing to object to said testimony[, trial] counsel prejudiced Petitioner because [the] jury was permitted to hear damaging testimony about events from an allegedly destroyed footage. This testimony was key because it went over two years of video footage from a three year investigation.

(Docket Entry 254, ¶ 12(Ground Four)(a).) This claim lacks merit.

         Prior to Petitioner's trial, in a hearing before now-Chief Judge Schroeder, the United States confirmed that:

1) “at one point in time there was a pole camera [with a view of Petitioner's residence]” (Docket Entry 196 at 14);
2) the United States “ha[d] disclosed the notes that were taken as officers were reviewing the pole camera [video]” (id.);
3) prior to Petitioner's indictment, “the actual video from that pole camera was videotaped over” (id. at 14-15);
4) in its case-in-chief, the United States would not “seek to introduce information from the notes because [it] could not comply with giving [Petitioner] the actual recordings” (id. at 15);
5) “any evidence[ the United States would introduce in its case-in-chief] . . . would have to be actual direct surveillance from the officers without any aid of any pole camera” (id.); and
6) although the United States “would not intend in its case[-] in[-]chief to present anything with regard to the notes, . . . if a door [wa]s open[ed by Petitioner, the United States reserved the right to] ask[] questions [about them]” (id. at 16).

         Consistent with the commitment of the United States not to rely on the pole camera notes during its case-in-chief, in testifying at trial about the regular presence at Petitioner's residence of not only Petitioner and his wife, but also Jeffries, Williams, and others (see Docket Entry 205 at 71-73, 93-96), Detective Alston described only matters he observed during his “physical surveillance” (id. at 71 (emphasis added); see also Id. at 94 (“Q And just so we are clear, when I say ‘surveillance,' is that actual physical surveillance there at the location? A Yes, physical surveillance.”)). Petitioner's Memorandum of Law “contends that [Detective] Alston's trial testimony in [sic] this issue was based off the contents of the camera recordings of the residence.” (Docket Entry 259 at 29; see also Id. (offering Petitioner's “conclu[sion] that [Detective] Alston's testimony was not based on him actually being at [Petitioner's residence], but instead testifying to content, while the government was proving the content of recordings from the residence”).) However, Petitioner has not come forward with any evidence to support that contention/ conclusion; rather, he simply has “reasoned that it is a falsification that [Detective] Alston installed a 24 hour recording device and then sat at the very location where the device was installed for over a 1000 hours to ‘physically survey' what the device was already recording.” (Id.)[22]

         As the United States has observed, “Petitioner's conclusion [that Detective Alston testified falsely about physically surveilling Petitioner's residence] is insufficient to support a finding that [his trial counsel] was ineffective [for not objecting to that testimony].” (Docket Entry 306 at 21.) In the words of another court's adjudication of a similar ineffectiveness claim:

Petitioner has offered no evidence, outside of conclusory statements, that substantiates a claim that [the cited] testimony was false, that the government knew [the cited] testimony was false when it was offered as evidence, or that [Petitioner's trial] counsel knew that the [cited] testimony was false when he chose not to object. As such, Petitioner has given the Court no reason to find [Petitioner's trial] counsel's decision not to object to the presentation of the evidence at issue unreasonable.

Kelso v. United States, Nos. 3:06CR147, 3:13CV583, 2016 WL 6804383, at *10 (E.D. Tenn. Nov. 16, 2016) (unpublished), appeal dismissed, No. 17-5397, 2017 WL 8786157 (6th Cir. Oct. 18, 2017) (unpublished); see also McLean v. United States, Nos. 08CR789, 12CV1954, 7362, 7559, 2016 WL 3910664, at *11 (S.D.N.Y. July 13, 2016) (unpublished) (“[The petitioner's] counsel cannot be considered ineffective for failing to object to testimony that [the petitioner] has not shown to be false.”), appeal dismissed, No. 16-2702, 2016 WL 9447127 (2d Cir. Dec. 5, 2016) (unpublished).[23]

         Ground Four falls short as a result.

         Ground Five: Ineffective Assistance due to Lack of Communication

         In Ground Five of the Section 2255 Motion, Petitioner has asserted a claim for ineffectiveness by trial counsel “for failing to inform [sic], explain, or discuss trial strategy with Petitioner before and during trial.” (Docket Entry 254, ¶ 12(Ground Five) (standard capitalization applied); see also Docket Entry 258, ¶ 12(Ground Five) (listing claim as “Ineffective Assistance of Counsel for Failing to Interview Petitioner About Matters in the Case, Go Over the Discovery Material with [] Petitioner and Inform [sic] or Explain the Trial Strategy with Petitioner”).) To support that claim, Ground Five declares that:

Petitioner's [trial] counsel never discussed with [] Petitioner the trial strategy with him [sic]. [Trial c]ounsel never interviewed Petitioner about specifics of the case, nor did he go over discovery with [] Petitioner. Petitioner even requested to [trial] counsel that he wanted to go over trial strategies, but [trial] counsel always had an excuse why there was no need to or he couldn't get the materials in the jail. [Trial c]ounsel's actions prejudice [sic] [] Petitioner because there is no way [trial] counsel could have prepared an adequate defense without communicating with Petitioner.

(Docket Entry 254, ¶ 12(Ground Five); see also Docket Entry 259-1 at 3-4 (“[Trial counsel] never went over my [d]iscovery material with me in the federal case. . . . [He] never interviewed me about the specifics of the case. He never asked me the relationships between me and people who be [sic] testifying against me or co-defendants or anything related to the case in general. [He] also never discussed with me trial strategy that he would pursue. . . . [He] failed to give any explanation into how to decipher the [discovery] material in relation to trial.”); Docket Entry 378 at 100 (documenting Petitioner's evidentiary hearing testimony that trial counsel “never brought [Petitioner] any discovery to the jail”), 101 (“Q. Okay. So [your trial counsel] never came and discussed the discovery with you in the jail? A. No, sir.”), 168 (“[Petitioner and his trial counsel] did not sit down and review [the discovery] together.”), 169 (“[Trial counsel] did not review [the] discovery with [Petitioner] personally.”).)

         The Court should reject this claim. As an initial matter, “no case establish[es] a minimum No. of meetings between counsel and client prior to trial necessary to prepare an attorney to provide effective assistance of counsel . . . .” Kleba v. McGinnis, 796 F.2d 947, 954 (7th Cir. 1986); see also Murray v. Maggio, 736 F.2d 279, 282 (5th Cir. 1984) (“[B]revity of consultation time between a defendant and his counsel, alone, cannot support a claim of ineffective assistance of counsel.”); Birnie v. United States, Nos. 1:07CV1141, 1152, 2010 WL 233998, at *3 (W.D. Mich. Jan. 13, 2010) (unpublished) (“Movants emphasize their disappointment with [their] counsel's . . . lack of communication during the pretrial phase of the case. However, in evaluating a claim of ineffective assistance, subjective dissatisfaction carries no weight.” (internal quotation marks omitted)). Further, the credible record evidence shows that, contrary to Petitioner's above-quoted, conclusory allegations, trial counsel reasonably consulted with Petitioner (including about discovery and trial strategy) and otherwise reasonably prepared for (and defended him at) trial. In that regard, Paralegal Crowder credibly testified that:

1) prior to Petitioner's arrest on the instant federal charges, he came to trial counsel's office for multiple meetings and, after Petitioner's arrest on the instant federal charges, trial counsel both visited Petitioner in custody and spoke to him by telephone (see Docket Entry 378 at 33-34, 47, 49);
2) in those telephone conversations, Paralegal Crowder heard Petitioner “always want[ing] to talk about the strategies for . . . the case that [trial counsel] had already laid out or planned out; and if he had any at that time, he would always give that information to [Petitioner]” (id. at 51; see also Id. at 48 (“[Petitioner's wife] reached out to [Paralegal Crowder] a lot with questions about [Petitioner] that she wanted [Paralegal Crowder] to relay to [trial counsel] and [Paralegal Crowder] was also reaching out to [Petitioner's wife] to answer her questions . . . .”), 54-55 (“[Petitioner] would continuously ask the same questions over and over, as if he needed reassurance, whether [trial counsel] told [Petitioner], ‘This is how it is. This is our strategy and this is what we're going to do.' We may get a call back that afternoon or an e-mail or a call from his wife that she had spoken with [him] and he had more questions to ask through her to us about the strategies of the trial and the case.”));
3) Petitioner's trial counsel took “time to speak to [Petitioner] about the discovery, ” as well as “about the trial strategy” (id. at 55; see also Id. at 67-68 (affirming that Petitioner's trial counsel followed “practice” of taking laptop computer to review discovery “with inmates in the jail” and reported visiting Petitioner in custody for that purpose), 69 (stating that, at direction of Petitioner's trial counsel, she sent copies of discovery to Petitioner or his family)); and
4) of the “many multidefendant drug cases” Petitioner's trial counsel handled over the 15-plus years Paralegal Crowder worked with him, Petitioner's case “[r]anked second in the amount of time that not only [trial counsel] spent researching and working on the case, but also pacifying the family: [Petitioner], [his wife], [his] sister [], and anybody else of that family that [Petitioner] gave [trial counsel] authority to talk to” (id. at 54).[24]

         In consistent fashion, Attorney Johnson[25] credibly testified:

1) “there were numerous meetings of the lawyers [representing Petitioner and his three co-defendants] that [Petitioner's trial counsel] had input in” (id. at 16; see also Id. at 20 (“[Petitioner's trial counsel] helped get[ Attorney Johnson] up to speed with an overview of the whole case as to what [Petitioner's trial counsel] thought or where he thought it was going to go, [as well as] . . . which defendant was what and where they came in.”));
2) Petitioner's trial counsel “knew what he was doing, ” “grasp[ed ] the facts, ” and “had a very good understanding [of the discovery]” (id. at 17; see also Id. (recounting that Petitioner's trial counsel helped Attorney Johnson “get[] up to speed on the discovery because there was a volume of it”); and
3) notwithstanding the fact that “[t]he Government had strong evidence against [Petitioner], ” his trial counsel “did what he could do to potentially poke holes in that case, ” was “consistent in his trial strategy, ” and was “engaged when he had to question witnesses” (id. at 18; see also Id. at 22-23 (confirming that Petitioner's trial counsel “ask[ed] appropriate questions” and “cross-examin[ed] on matters that needed [it]”)).

         The attorneys defending Petitioner's other co-defendants (see Docket Entry 379 at 5-6, 20) likewise gave credible testimony that:

1) they participated in “strategy” sessions with Petitioner's trial counsel (id. at 6-7, 23);
2) Petitioner's trial counsel “appeared to have a pretty good command of the case” (id. at 7) and “[h]is questions appeared to be clear, well thought out, direct, [and] relevant” (id. at 9; see also Id. at 10-11 (indicating that Petitioner's trial counsel did not merely repeat questions asked by other defense attorneys), 24 (“I don't recall a time and I don't remember a time when I thought that [Petitioner's trial counsel] had failed to competently address a witness or make a motion or respond to an argument, an objection. I don't recall a time when that occurred.”)); and
3) Petitioner's trial counsel also “ha[d] discussions [with Petitioner] about issues . . . [t]hroughout the entire trial” (id. at 11; see also Id. (“In fact, that went on a lot and I remember that because there would be times they would be talking and I was ...

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