UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) UNITED STATES OF AMERICA, ) ) v. ) Criminal Action No. 04-344 (RWR) ) CARROLL WASHINGTON, ) ) Defendant. ) )

MEMORANDUM OPINION AND ORDER

Defendant Carroll Washington (also known as Wayne Watson)

was sentenced in 2006 after a jury found him guilty of unlawful

possession of a firearm and ammunition by a felon, in violation

of

(g)(1), and unlawful possession with intent to

distribute ecstacy, in violation of

(a)(1) and

(b)(1)(C). He has now filed a motion to vacate his conviction

under

and a motion to appoint counsel. Because

the interests of justice do not require appointment of counsel

under the circumstances presented here, the defendant’s motion to

appoint counsel will be denied.

BACKGROUND

In 2004, Metropolitan Police Department Officer Teixiera and

another officer stopped Washington’s car and searched it. The

officers found a weapon under the floormat of the driver’s seat

and a bag with suspected ecstacy inside the car. United States

v. Watson,

(D.D.C. 2005). Washington was

charged in a three-count indictment with being a felon in - 2 -

possession of a firearm and ammunition, possessing with intent to

distribute ecstacy, and using, carrying, and possessing a firearm

during a drug trafficking offense. Washington moved to suppress

the physical evidence recovered during the stop. The motion was

denied upon a finding that there was probable cause for the

officers to conduct a traffic stop and reasonable suspicion to

conduct a limited search for weapons. New counsel was appointed

and moved to reopen the suppression hearing. That motion was

also denied.

. A jury found Washington guilty of the

felon in possession of a firearm and ammunition charge and the

ecstacy charge. Washington appealed his conviction on the sole

ground that the search of his car violated the Fourth Amendment,

and the D.C. Circuit affirmed his conviction. United States v.

Washington,

(D.C. Cir. 2009). Washington

now moves to vacate his conviction under

,

arguing that Officer Teixiera coerced his confession and that he

received ineffective assistance of counsel from his two

attorneys, Jonathan Jeffress and Jennifer Wicks. (Mot. to

Vacate, Dkt. # 122 at 5-6.) He has also moved to appoint counsel

to assist him in pursuing his claims.

DISCUSSION

There is no constitutional right to appointment of counsel

in habeas proceedings. Brown v. Cameron,

(D.C. Cir. 1965). However, a court may appoint counsel for a - 3 -

§ 2255 petitioner if the interests of justice so require.

(g); 18 U.S.C. § 3006A(a)(2); see also In re

Kirkland, No. 01-3010,

, at *1 (D.C. Cir. Apr. 13,

2001) (denying appointment of counsel in a § 2255 case because

the “interests of justice [did] not warrant appointment of

counsel”). To determine whether appointing counsel is in the

interests of justice, a court must consider 1) the petitioner’s

likelihood of success on the merits, 2) the ability of the

petitioner to articulate his claims pro se in light of the

complexity of the legal issues involved, and 3) the factual

complexity of the case and whether the petitioner has the ability

to investigate undeveloped facts. See United States v. Waite,

(D.D.C. 2005) (noting that the D.C. Circuit

has not interpreted the interests of justice standard in the

context of a § 2255 petitioner and surveying other circuits’

approaches); see also United States v. Campbell, Criminal Action

No. 92-213 (TFH),

, at *2 (D.D.C. Apr. 17, 2006).

A petitioner is unlikely to succeed on the merits if he has

raised previously and unsuccessfully identical claims. Engberg

v. Wyoming,

(10th Cir. 2001).

Washington is unlikely to succeed on the merits of his

claims. Any argument that Officer Teixiera coerced Washington’s

confession is likely procedurally barred, as Washington could

have raised this issue at trial or on direct appeal but failed to - 4 -

do so. See Hodges v. United States,

(D.C. Cir.

1960) (stating that while “a conviction by the use of a coerced

confession rests upon fundamental error[,] [t]he usual way to

seek correction is by appealing from the conviction[,]” and

failure to take that course typically precludes a collateral

attack on that basis). Washington’s arguments that he received

ineffective assistance of counsel because Jeffress failed to make

a suitable record or to impeach adequately Officer Teixiera at

the suppression hearing are unlikely to succeed on the merits

since those arguments already have been rejected. See Watson,

(rejecting Washington’s argument that

Jeffress’ strategic choices reflected ineffectiveness and noting

that no additional cross examination could have changed the

Court’s conclusion that Officer Teixiera’s testimony was credible

with respect to the facts that justified the search of

Washington’s car). Finally, Washington’s argument that he

received ineffective assistance of counsel because Wicks failed

to call Officer Teixeira at trial to impeach his credibility is

unlikely to succeed on the merits. Washington has made no

plausible factual showing supporting his conjecture about

successful impeachment or demonstrating that such testimony would

have had any effect on the admissibility of the firearm and

ecstacy discovered during the search. See Washington,

(concluding that the search of Washington’s car did not - 5 -

violate the Fourth Amendment). Washington is therefore unlikely

to be able to show that he suffered prejudice from Wicks’ failure

to call Officer Teixiera. See Strickland v. Washington,

(1984) (holding that to succeed on an ineffective

assistance of counsel claim, “[t]he 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”).

Nor does Washington’s motion allege that any further fact

investigation is necessary. And, even if the absence of

citations to legal authority in Washington’s standard § 2255 form

suggests that aid articulating his legal claims might assist him,

cf. Waite,

(noting that the defendant was a

college graduate and that her § 2255 motion cited legal authority

and articulated lucidly supporting arguments for her claim), the

other factors weigh against appointing counsel here. The

interests of justice do not require appointment of counsel under

the circumstances. See 18 U.S.C. § 3006A(a)(2).

CONCLUSION AND ORDER

Because the interests of justice do not warrant appointment

of counsel to assist petitioner in filing a § 2255 motion, it is

hereby

ORDERED that the defendant’s motion [124] for appointment of

counsel be, and hereby is, DENIED. It is further - 6 -

ORDERED that the government file by June 6, 2011 a response

to the defendant’s § 2255 motion.

SIGNED this 5th day of May, 2011.

__________/s/_______________ RICHARD W. ROBERTS United States District Judge