United States v. Gordon
Opinion of the Court
JUDGMENT
This appeal was considered on the record from the United States District Court for the District of Columbia and on the briefs and arguments of the parties. The Court has accorded the issues full consideration and has determined that they do not warrant a published opinion. See D.C. CIR. R. 36(d). For the reasons stated below, it is
ORDERED and ADJUDGED that the judgment of the district court be affirmed.
In 2008, while awaiting trial on drug charges, Weldon Gordon lured Andre Hayes, the government’s primary witness, to his mother’s home. When Hayes pulled into the driveway, Gordon murdered him. In February 2012, a jury found Gordon guilty of conspiracy to obstruct justice, witness tampering and cocaine distribution. The district court sentenced him to life in prison. On appeal Gordon argues that his conviction should be reversed because the district court deprived him of the right to choose his own attorney and the right to effective assistance of counsel.
In late October 2011, Gordon had moved for a continuance of his February 2012 trial date so that he could replace his appointed attorney, Thomas Saunders, with a privately retained attorney, Brian McDaniel. Because McDaniel was in
As to Gordon’s ineffective assistance of counsel claims, he alleges that his appointed attorney made various strategic blunders at trial, including failing to call any expert witnesses and botching several cross-examinations. But each of those supposed errors in judgment had a reasonable justification. For example, some of the questions that Gordon believes Saunders should have asked on cross-examination would have opened the door for the government to raise damaging issues on redirect. And although Saunders did not call any expert witnesses, he did move to exclude the testimony of the government’s experts and vigorously cross-examined them. These are precisely the kinds of “judgment call[s] which should not easily be condemned with the benefit of hindsight.” United States v. Mullins, 315 F.3d 449, 453 (5th Cir. 2002) (internal quotation marks omitted). ' They do not make out a Sixth Amendment violation. Gordon also claims that he was denied effective assistance of counsel because Saunders improperly waived Gordon’s appearance at a pretrial telephone conference. But the hearing involved only a question of law, and Federal Rule of Criminal Procedure 43(b)(3) explicitly states that a defendant “need not be present” at such a hearing.
Gordon has not shown that any of these supposed missteps prejudiced his case. He has not discussed what an expert witness might have said in his favor. He has not shown that he might have been acquitted if Saunders had cross-examined witnesses differently. He has not explained what he would have done at the pre-trial hearing if he had participated. In short, Gordon has not shown a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Gordon also claims that he lacked effective assistance of counsel because his
When faced with a claim of ineffective assistance of counsel on direct appeal, we sometimes remand the case to the district court to develop a record and decide the issue in the first instance. See United States v. Geraldo, 271 F.3d 1112, 1116 (D.C.Cir. 2001). In this case, however, Gordon already- had an opportunity to press these arguments before the district court. On Gordon’s own motion, we held this appeal in abeyance so that he could file a motion in the district court attacking his sentence under 28 U.S.C. § 2255. He did so, arguing that he was denied his rights to choice of counsel and effective assistance of counsel. But Gordon’s motion did not point to any “competent evidence ... raising detailed and controverted issues of fact,” and so the district court properly denied his motion without holding a hearing. Gonzalez v. United States, 722 F.3d 118, 131 (2d Cir. 2013). In short, Gordon already had his chance to allege facts and develop a record.
We affirm the judgment of the district court.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. R. 41(a).
. Gordon also alleges that Saunders made improper remarks about him and his family. The district court did not credit these allegations, and neither do we.
Reference
- Full Case Name
- United States v. Weldon GORDON
- Cited By
- 1 case
- Status
- Published