Opinion
Criminal Action No. 01-20021-01-KHV.
June 16, 2004
MEMORANDUM AND ORDER
On June 7, 2001, a jury found defendant guilty of being a felon in possession of a firearm and ammunition. This matter is before the Court on defendant's Motion Pursuant To 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (Doc. #82) filed September 29, 2003. On May 10, 2004, the Court overruled defendant's motion on a number of issues, but ordered an evidentiary hearing on the issue of whether trial counsel had advised defendant that he had the ultimate decision whether to testify at trial. See Memorandum And Order (Doc. #94) at 20. On June 7, 2004, the Court held an evidentiary hearing. Defendant and Terrence J. Campbell, defendant's trial counsel, testified at the hearing. After carefully considering the testimony and the parties' briefs, the Court overrules defendant's motion to vacate in its entirety.
Defendant argues that counsel did not inform him that he had the ultimate decision whether to testify. See Defendant's Statement Of Facts at 3-4, attached to defendant's Motion To Vacate (Doc. #82). Counsel's advice whether defendant should testify is a matter of trial strategy. See Hooks v. Ward, 184 F.3d 1206, 1219 (10th Cir. 1999). "Although counsel should always advise the defendant about the benefits and hazards of testifying and of not testifying, and may strongly advise the course that counsel thinks best, counsel must inform the defendant that the ultimate decision whether to take the stand belongs to the defendant, and counsel must abide by the defendant's decision on this matter." Brown v. Artuz, 124 F.3d 73, 79 (2d Cir. 1997); see United States v. Dryden, 166 F.3d 1222, 1998 WL 930582, at *1 (10th Cir. Apr. 22, 1998). The limited issue in this case is whether trial counsel advised defendant that he had the ultimate decision whether to testify.
Campbell testified that he advised defendant that he had the right not to testify and that he had the ultimate decision whether to testify. This testimony was highly credible, and although defendant testified that Campbell did not so advise him, the Court cannot credit defendant's testimony on this issue. In effect, defendant testified that Campbell coerced him to testify against his wishes. Based on the history of this case and defendant's testimony, the Court cannot credit such an allegation. Defendant has routinely challenged the decisions of defense counsel and challenged them as ineffective. The record contains no credible evidence that Campbell coerced defendant to testify, contrary to his wishes.
In addition to his testimony and demeanor on the witness stand, the Court notes that it enhanced defendant's sentence two levels for obstruction of justice based on his testimony at trial. See Transcript Of Sentencing (Doc. #69) at 29. Defendant's record in this case is not one of honesty and candor.
Even if trial counsel had failed to advise defendant that he had the ultimate decision whether to testify, the alleged error was not prejudicial. Defendant opines that because the jury deliberated for more than a day and returned a verdict only ten minutes after hearing a read back of his testimony, his testimony made the difference. Defendant has not specifically alleged, however, why the verdict would have been different without his testimony. From the Court's perspective, the jury would not have deliberated so long if defendant had not testified. The probable scenario is that without defendant's testimony, given the police testimony and the lack of any witness to corroborate defendant's version of events, the jury would have promptly concluded that defendant was guilty. Defendant's testimony undoubtedly prolonged the deliberations, but the Court has no reason to believe that it changed the result. Accordingly, any alleged error by trial counsel in failing to advise defendant that he had the ultimate decision whether to testify was not prejudicial. See Strickland v. Washington, 466 U.S. 668, 687, 694 (1984) (defendant must show "reasonable probability" that but for counsel's error, result of the proceeding would have been different).
IT IS THEREFORE ORDERED that defendant's Motion Pursuant To 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By a Person In Federal Custody (Doc. #82) filed September 29, 2003 be and hereby is OVERRULED.