UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________ ) UNITED STATES OF AMERICA, ) ) v. ) ) Criminal Action No. 14-151 (CKK) JEFFREY HENRY WILLIAMSON, ) ) Defendant. ) _________________________________ )

MEMORANDUM OPINION

On December 16, 2014, Jeffrey Henry Williamson was convicted by a jury of

threatening to assault and murder a Federal Bureau of Investigation (FBI) agent with intent to

retaliate against the agent on account of his performance of official duties, in violation of

(a)(1)(B). Mr. Williamson represented himself at trial, with appointed standby

counsel. Mr. Williamson appealed his conviction and was again appointed counsel. Although

appointed counsel submitted arguments on Mr. Williamson’s behalf, the D.C. Circuit also

permitted Mr. Williamson to file a pro se supplemental brief raising any additional issues he

would like the Circuit to consider. The Circuit issued its decision on August 10, 2018, affirming

Mr. Williamson’s conviction and sentence, but remanding the case back to District Court Judge

Rosemary M. Collyer to provide Mr. Williamson with access to the jury commission records.

United States v. Williamson,

(D.C. Cir. 2018).

On remand, Judge Collyer appointed counsel to assist Mr. Williamson in

reviewing the jury commission records and his counsel requested and received discovery

pertaining to the jury commission records from the Jury Office. Judge Collyer set a deadline for

any motions pertaining to the jury commission records of November 22, 2019 and that date came

and went with no filing from Mr. Williamson’s counsel. See 10/31/2019 Minute Order.

1 Meanwhile, Mr. Williamson moved pro se under

for the Court to vacate, set

aside, or correct his sentence. See Mot. Under

(2255 Mot.) [Dkt. 348]. He

filed numerous § 2255 motions, supplements, motions for discovery, motions for expansion of

the record, and motion for a hearing. 1 Judge Collyer denied Mr. Williamson’s motions on

January 27, 2020. See Mem. Op. [Dkt. 379]; Order [Dkt. 380]. Mr. Williamson moved for a

certificate of appealability and to amend or correct the record and Judge Collyer denied those

motions as well. See 3/3/2020 Order [Dkt. 386]; 3/10/2020 Order [Dkt. 388]. Mr. Williamson

filed a notice of appeal of the Court’s denial of a certificate of appealability on March 18, 2020

and that appeal is currently pending with the D.C. Circuit.

Almost three weeks after Mr. Williamson filed his notice of appeal, one month

after Judge Collyer’s decision on the request for a certificate of appealability, two and a half

months after Judge Collyer’s decision on Mr. Williamson’s § 2255 motion, and four and a half

months after the deadline to submit a motion pertaining to the jury commission records, counsel

for Mr. Williamson filed a motion to dismiss, or, in the alternative, motion to vacate, set aside or

correct the sentence. See Mot. to Dismiss for Denial of Right of Inspection Under

(f) or, in the alternative, Mot. to Vacate, Set Aside of Correct Sentence Pursuant to

[Dkt. 392]. The case was reassigned to this judge after Judge Collyer’s

1 See First Suppl. to 2255 Mot. [Dkt. 358]; Second Suppl. to 2255 Mot. [Dkt. 359]; Third Suppl. to 2255 Mot. [Dkt. 360]; Fourth Suppl. to 2255 Mot. [Dkt. 366]; Reply in Supp. of 2255 Mot. [Dkt. 370]; Mot. to Take Judicial Notice [Dkt. 356]; First Mot. for Discovery [Dkt. 362]; Second Mot. for Discovery [Dkt. 363]; Third Mot. for Discovery [Dkt. 365]; First Mot. for Expansion of the Record [Dkt. 367]; Second Mot. for Expansion of the Record [Dkt. 368]; Third Mot. for Expansion of the Record [Dkt. 369]; Mot. for Evidentiary Hearing [Dkt. 372]; Fourth Mot. for Expansion of the Record [Dkt. 373]; Fifth Mot. for Expansion of the Record [Dkt. 374]; Mot. for Funds for National Experts on Ethics & Legal Duties of Prosecutors [Dkt. 375]; Fourth Mot. for Discovery [Dkt. 376]; Sixth Mot. for Expansion of the Record [Dkt. 377]; Seventh Mot. for Expansion of the Record [Dkt. 378].

2 retirement. Rather than opposing the motion, the United States asks the Court to transfer the

motion to the D.C. Circuit as a second or successive § 2255 motion; and counsel for Mr.

Williamson failed to file a timely response to the government’s motion. See United States’ Mot.

to Transfer Def.’s Mot. to the D.C. Circuit as a Second or Successive Mot. Brought Under

[Dkt. 394]. The motion will be transferred to the D.C. Circuit.

I. BACKGROUND

Much has already been written about Mr. Williamson’s case by both Judge

Collyer and the D.C. Circuit and the facts will not be repeated here. See United States v.

Williamson,

(D.C. Cir. 2018); United States v. Williamson, No. 14-cr-151,

, at *1-3 (D.D.C. Jan. 27, 2020).

II. LEGAL STANDARD

A federal prisoner claiming the right to be released on the ground that “the

sentence was imposed in violation of the Constitution or laws of the United States, or that the

court was without jurisdiction to impose such sentence, or that the sentence was in excess of the

maximum authorized by law, or is otherwise subject to collateral attack, may move the court

which imposed the sentence to vacate, set aside or correct the sentence.”

(a).

Because “[s]ection 2255 is not a substitute for a direct appeal,” “in order to gain relief under any

claim, [the movant] is obliged to show a good deal more than would be sufficient on a direct

appeal from his sentence.” United States v. Pollard,

(D.C. Cir. 1992)

(citing United States v. Frady,

(1982)) (emphasis in original). The petitioner

has the burden of proof to demonstrate his right to such relief by a preponderance of the

evidence. See United States v. Simpson,

(D.C. Cir. 1973).

3 The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),

Stat. 1214 (1996), prohibits a prisoner from filing a second or successive motion

under § 2255 “unless he first obtains an order from the appropriate court of appeals authorizing

the district court to consider the petition.” In re Moore,

(D.C. Cir. 1999).

A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain— (1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

(h). A district court is without jurisdiction to consider a second or successive

§ 2255 motion filed without certification from the court of appeals. See Burton v. Stewart,

(2007); Ford v. Massarone,

(D.C. Cir. 2018) (“[T]he

requirement to obtain authorization for a second or successive habeas petition is a jurisdictional

prerequisite.”).

III. ANALYSIS

Mr. Williamson’s motion to dismiss requests the Court find that the denial of his

right to inspect the jury commission records requires a reversal of his conviction and a new trial.

Despite the fact that the D.C. Circuit specifically remanded for the District Court to provide the

jury records to Mr. Williamson, rather than ordering a new trial, counsel argues that the Court

should follow the Fifth Circuit’s decision in Government of the Canal Zone v. Davis,

(5th Cir. 1979), reversing a conviction and remanding for a new trial where the

defendant was denied a right to inspect the jury records and then decided to forego a jury trial

and proceed with a bench trial. The Fifth Circuit held that because the waiver of the right to a

4 jury trial was not informed by the information in the jury roll, the waiver was insufficient and

demanded a new trial.

After Davis, the Fifth Circuit had another opportunity to determine

the appropriate remedy when a defendant is denied the right to inspect the jury records and found

that where the defendant proceeded with a jury trial anyway and did not waive his right reversal

of the conviction was not mandated. See United States v. Potts,

(5th Cir.

2013).

Although Mr. Williamson was denied his right to inspect the jury records before

trial, he chose to proceed with a jury trial and was convicted. The D.C. Circuit did not mandate

reversal of Mr. Williamson’s conviction due to the error and this Court finds the distinction made

by the Fifth Circuit compelling. Mr. Williamson did not waive his constitutional right to a jury

trial due to the Court’s error, therefore reversal was not mandated. On remand the Court ordered

the Jury Office to provide defense counsel with the data requested, including the entire jury

wheel used to select Mr. Williamson’s jury panel. Counsel failed to timely file a motion

challenging the sufficiency of the jury selection process and even now raises no arguments about

the jury panel itself. The Court will deny Mr. Williamson’s motion to reverse his conviction and

order a new trial.

Turning to Mr. Williamson’s alternative claims, there is no question that the

motion filed by counsel on Mr. Williamson’s behalf is the second § 2255 motion filed in this

case. He argues in this motion that appellate counsel was ineffective because he conceded that

the appropriate remedy for the § 1867(f) jury records denial was remand to provide the records

and not a reversal of Mr. Williamson’s conviction. The District Court may only consider second

or successive § 2255 motions when the claim had not yet arisen at the time of the previous

motion. Mr. Williamson argued in his original § 2255 motion that appellate counsel was

5 ineffective and did not argue about his decision to concede the jury records remedy. Because

Mr. Williamson’s current motion is a second or successive § 2255 motion raising a claim that

could have been raised in his original motion, this Court has no jurisdiction to decide it absent

certification from the D.C. Circuit. Therefore, the motion will be transferred to the Circuit to

determine if review is warranted.

IV. CONCLUSION

For the reasons stated above, the United States’ motion will be granted and

Defendant’s motion will be transferred to the D.C. Circuit as a request to file a second or

successive § 2255 motion. A memorializing Order accompanies this Memorandum Opinion.

Date: May 19, 2020 /s/ Colleen Kollar-Kotelly COLLEEN KOLLAR-KOTELLY United States District Judge

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