BROWN v. United States

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

CURTIS DELAY BROWN, )

Petitioner,

) Criminal Docket 2:12-cr-00224

V. Civil Docket 2:17-cv-01339

)

)

UNITED STATES OF AMERICA. )

OPINION

Mark R. Hornak, Chief United States District Judge

Before his jury trial on a federal felon-in-possession of a firearm charge, Petitioner Curtis

Delay Brown told his lawyer about two (2) witnesses who were willing to testify in his defense.

Brown’s lawyer interviewed those potential witnesses, weighed the content and credibility of their

potential testimony, and ultimately decided against calling them at Brown’s trial. Instead, Brown’s

lawyer argued to the jury that the Government failed to prove Brown’s guilt beyond a reasonable

doubt—a strategy that he believed Brown’s proposed witnesses might undermine.

In the end, the jury convicted Brown, who now brings a Motion to Vacate Sentence under

28 U.S.C. § 2255. Brown argues that by not calling his two (2) proposed witnesses, his attorney

provided ineffective assistance of counsel. After reviewing the Record and holding an evidentiary

hearing, the Court cannot agree with Brown’s claim. Brown’s attorney made an informed strategic

decision not to call the two (2) potential defense witnesses at trial. And the Court must give

Brown’s attorney’s informed strategy a “virtually unchallengeable” presumption that it fell within

the wide range of reasonable professional conduct. Because Brown cannot overcome that strong

presumption of reasonableness, his Motion to Vacate Sentence (ECF No. 221), is DENIED.

I. BACKGROUND & FACTUAL FINDINGS

In August 2012, a federal grand jury returned a one-count indictment charging Curtis Delay

Brown with unlawfully possessing a firearm under 18 U.S.C. § 922(g)(1). (Indictment, ECF No.

19.) Represented by Assistant Federal Public Defendant Akin Adepoju, Brown took his case to

trial and a jury found him guilty. (ECF No. 97.)! After sentencing, Brown directly appealed his

conviction claiming that the district judge incorrectly admitted harmful prior acts evidence under

Federal Rule of Evidence 404(b). During that appeal, the Government confessed error, leading the

Third Circuit to vacate Brown’s conviction. (ECF No. 136.) On remand, still represented by

Adepoju, Brown again took his case to a jury. As in Brown’s first trial, the jury returned a guilty

verdict. (ECF No. 169.) The Court then sentenced Brown to 180 months of imprisonment followed

by two (2) years of supervised release. (ECF No. 182.) The Third Circuit later affirmed Brown’s

conviction and sentence. (ECF Nos. 198 and 199.)

Within one (1) year of his conviction becoming final, Brown filed a pro se Motion to

Vacate Sentence under § 2255. (ECF No. 209.) Brown’s pro se motion lodged several claims of

ineffective assistance by his trial attorney. (/d.) Later, after obtaining counsel, Brown filed a

supplemental § 2255 motion that dropped some of the ineffective assistance claims Brown raised

in his pro se motion. (ECF Nos, 221 and 222.)

Brown’s supplemental motion raised two (2) ineffective assistance claims.” First, he

claimed that Adepoju was ineffective for “failing to properly investigate, subpoena and call at trial

known and available material eyewitnesses” who would have testified on Brown’s behalf. (ECF

No. 22.) Second, the cumulative effect of trial counsel’s ineffectiveness in failing to present

' Docket citations are to Brown’s criminal docket at 2:12-cr-224.

2 Brown’s supplemental petition also included a claim that Adepoju improperly dissuaded Brown from taking the

stand at trial. But Brown’s post-conviction counsel later withdrew that claim. (ECF Nos. 233 and 234.)

evidence in defense requires a new trial. (/d.) Because Brown’s ineffective assistance claims rely

heavily on his trial counsel’s alleged strategy—something not readily reflected in the Record—the

Court ordered an evidentiary hearing.

Brown’s arrest stemmed from a joint federal and state law enforcement raid of an

unlicensed nightclub that Brown owned and operated. During that raid, police alleged that they

saw Brown stuff something in the seat cushions of a couch near where he was standing. Police

recovered a handgun from the couch cushions and arrested Brown for unlawful possession of a

firearm. At the time of the raid, Brown’s club was dark and chaotic. Both of Brown’s proposed

witnesses were at the nightclub on the night of the raid and offered to testify that Brown did not

have a firearm that evening.

At the post-conviction evidentiary hearing, four (4) witnesses testified: Brown, Adepoju,

and the two (2) proposed witnesses that Adepoju did not call at trial—Eugene Fulmore and Jerald

Robinson. Here are the Court’s factual findings for each witness’ relevant testimony, based on its

careful consideration of that testimony both as stated in the context of all of the admissible

evidence, and with the benefit of the Court’s personal observation of their testimonial demeanor:

A. Eugene Fulmore—Potential Witness

The first witness that Brown argues his attorney should have called during trial is Eugene

Fulmore. Brown and Fulmore first met in 2004, when Fulmore took his car to an auto repair

business Brown operated. (ECF No. 269, at 11:14-12:18.) At the time of Brown’s second trial,

Fulmore, a Marine Corps veteran, worked for an airplane refueling service and had no criminal

record. (/d.) Fulmore and Brown struck up a friendship after their introduction in 2004, and

eventually joined the same motorcycle club—Sin City Cycles. (/d. at 12:18-25.)

Fulmore was at Brown’s nightclub on the night of the raid. U/d. at 13:15—15:15.) Fulmore

testified that Brown was in the “VIP section” when the police showed up. (/d.) And he described

the VIP section as somewhat elevated above the rest of the nightclub. V/d.) But Fulmore also

testified that he was not in the VIP section with Brown when the police first entered the building.

Ud.) And he testified that the lighting was “real dim.” (/d.) What’s more, Fulmore testified that he

was twenty (20) feet away from Brown when he first saw the police. V/d. at 15:16-19.) Fulmore

told the Court that he approached Brown as the police came closer, and that he did not see Brown

move during that time. (/d. at 15:20-16:23.) In fact, Fulmore was adamant that he never saw Brown

move or hold a firearm during the police raid. (/d. at 17:15—18:24.)

Fulmore then testified about his interactions with Brown’s trial attorney—Akin Adepoju.

Fulmore remembered meeting with Adepoju ahead of Brown’s first trial. Ud. at 22:3—23:11.)

Adepoju took Fulmore’s full account of the night the police arrested Brown. (/d.) Then Adepoju

told Fulmore he would be in touch if he needed Fulmore as a witness at Brown’s trial. (/d. at

23:12—24:24.) But Fulmore testified that Adepoju never called him to appear as a witness on

Brown’s behalf.

At the post-conviction evidentiary hearing, the United States cross examined Fulmore on

his connection to Brown. Fulmore admitted that he frequented Brown’s illegal bar. U/d. at 26:18-

22.) And testified that the VIP section was in “total darkness” during the raid. (/d. at 27:17-19.)

Fulmore also acknowledged that he was not in the VIP section with Brown when the police said

they found a handgun Brown stuffed in the couch cushions. (/d. at 41:6-7.) And in response to the

Court’s follow-up questioning, Fulmore noted that he had two (2) beers before he arrived at

Brown’s nightclub on the night of the raid. Ud. at 42:14—24.)

B. Jerald Robinson—Potential Witness

The second potential witness Brown argues his lawyer should have called is Jerald

Robinson. Like Fulmore, Robinson first met Brown when he took his car to Brown’s auto repair

shop. Ud. at 51:20-24.) Eventually, Robinson began working at Brown’s nightclub as a security

guard—which mostly consisted of patting down patrons for weapons and other contraband at the

front door. (/d. at 53:10—54:6.) Robinson testified that he arrived at Brown’s nightclub sometime

after 10:30 PM on the night of the raid. (/d. at 53:3-8.)

Robinson told the Court that he patted down roughly forty (40) or fifty (50) patrons that

evening. (/d. at 53:10—12.) And Robinson told the Court that he took immense pride in his security

work. As he put it: “[Patrons] would oftentimes say whenever I did a pat-down, I violated you. I

wanted you to feel violated in order for you to feel safe because . . . if you had a pill sandwiched

in between your but [sic] cheeks, once I came up, I would find it.” (/d. at 54:16—20.) Robinson

credited his thorough pat down techniques with minimizing violence at the establishments where

he worked. (/d. at 54:13-15.)

On the night of the raid, Robinson testified that he patted down Brown before Brown

entered the nightclub. (/d. at 56:12—57:15.) Yet Robinson admitted that he did not know whether

Brown had been in the nightclub earlier that evening, and if so, whether Brown went through

security screening during that entry. (/d. at 69:15—18.) Robinson told that Court that subjecting the

owner of an establishment to the same security screening as everyone else was standard procedure

at the bars and clubs where Robinson worked. (/d. at 56:12—57:15) This is because the owner wants

to set a good example for employees—showing that everyone has to go through the security

screening. (/d.) And Robinson testified that Brown did not have any weapons with him when he

went through security to enter the building—since Robinson personally searched him. (/d.) When

the police raided Brown’s nightclub, Robinson testified that he was not present in the nightclub.

(Id. at 67:11-12.) So Robinson did not witness the police arrest Brown or recover the handgun

Brown allegedly possessed.

Like Fulmore, Robinson told the Court that he met with Adepoju ahead of Brown’s trial.

(Id. at 58:8-61:3.) Robinson testified that Adepoju interviewed him, took his detailed statement

about the night of the raid, and told Robinson to come to the courthouse for the day of Brown’s

first trial. (/d.) Robinson testified, however, that he was not present for Brown’s second trial. (/d.)

On cross examination, Robinson acknowledged that he was not the only security guard

working the door on the night of the raid. (/d. at 69:13—14.) And while Robinson testified to his

rigorous pat down techniques, he pointed the finger at the performance of the other security guards

to explain how the police nonetheless found thirty-three (33) caches of methamphetamine, a

knotted bag of crack cocaine, eight (8) baggies of marijuana, and six (6) baggies of heroin in the

club during the raid. (/d. at 68:13-25.)

C. Akin Adepoju—Trial Defense Counsel

With consent from all parties, Akin Adepoju testified by video conference during the post-

conviction evidentiary hearing. (/d. at 9:1-18.) Although he is currently an Assistant Federal

Public Defender in the District of Delaware, Adepoju served in that same capacity in this District.

(Id. at 77:24-20.) In his time as an Assistant Federal Public Defender in Pittsburgh, Adepoju

represented criminal defendants “in all matters starting from . . . pretarget letter[s] . . . grand jury

all the way through trials, initial appearances, verdicts, [and] sentencing.” (/d. at 78:13—20.)

Adepoju also testified that he worked in the trial and capital habeas unit while in this District. (/d.)

Adepoju represented Brown from 2012 through 2015—which included Brown’s first trial,

successful appeal, and second trial. (/d. at 78:21-79:19.) During that representation, Adepoju

remembered undertaking thorough trial preparation. Part of this preparation involved interviewing

potential defense witnesses—including Fulmore and Robinson.

Adepoju recalled interviewing Fulmore twice. The first happened over the phone before

Brown’s first trial. The second time at the Federal Public Defenders’ Office ahead of Brown’s

second trial. (/d. at 80:8-82:1.) Adepoju remembered Fulmore telling him during the first

interview that “he was working” at Brown’s establishment on the night of the raid. Ud. at 82:6—

14.) And that Fulmore “‘said he didn’t see [the police approach Brown] directly.” (/d.)

Ahead of Brown’s second trial, Adepoju recalled Fulmore meeting with him, Brown,

Brown’s daughter, and another Assistant Federal Public Defender in Adepoju’s office. (/d. at 83:2—

11.) During that meeting Adepoju went over trial preparation questions with Fulmore to gauge

whether he would be a compelling witness. (/d. at 83:12—84:1.) During that second interview,

Fulmore told Adepoju that he did not see Brown with a handgun the night of the raid, that he was

not personally in the VIP section at the time of the raid, and that he never saw Brown move the

way the police claimed. (/d. at 84:4-85:12.) Adepoju did not subpoena Fulmore for either trial, but

that was because Brown could easily get in contact with him and he appeared more than willing to

testify. Ud. at 85:20-86:21.)

Adepoju’s interview with Robinson proceeded along the same lines as his second interview

with Fulmore. Adepoju, Brown, Robinson, and another Assistant Federal Public Defender met at

Adepoju’s office in downtown Pittsburgh. U/d. at 87:6—-21.) In essence, Adepoju recalls Robinson

telling him the same story that Robinson told the Court during the evidentiary hearing: that

Robinson was working security the night of the raid; that he patted down Brown that evening and

did not find a gun; and that he was not personally present when the police arrested Brown.

Ultimately, Adepoju testified that he decided the best approach involved not calling either

Fulmore or Robinson as witnesses at Brown’s trials. (/d. at 89:24.) Instead, Adepoju believed that

the Government failed to present a compelling case, so a defense that the Government did not

prove Brown’s guilt beyond a reasonable doubt offered the best hope of an acquittal. (/d. at 89:5—

23.) Adepoju also testified that he explained his thinking behind not calling Fulmore or Robinson

as witnesses to Brown. (/d. at 89:19—90:2.)

Adepoju testified that he believed calling Fulmore or Robinson would cause more harm

than good for his “beyond a reasonable doubt” defense. (/d. at 90:1—2.) Part of that strategy hinged

on the fact that the Government’s case was weaker at the second trial after the trial judge excluded

certain harmful Rule 404(b) evidence admitted during the first trial. /d@. at 90:21-91:19, 106:11—

107:3, 111:19-24.) So the strategy of attacking the Government’s case presented a real possibility

of success.

But Adepoju sensed a serious danger in calling either Fulmore or Robinson. Both potential

witnesses “would have been cross-examined [which would make clear] that both of them not only

have relationships with Mr. Brown but they had been employed by him in some capacity.” (/d. at

90:5—13.) And Adepoju was concerned that a jury would not believe Robinson’s testimony that

Brown, as the owner of the club, actually went through security every time he entered the building.

That risk of cross examination did not just mean Robinson or Fulmore’s testimony would

be unhelpful. Rather, Adepoju determined that their testimony could affirmatively harm Brown’s

chances in front of a jury. (/d. at 94:9-95:18.) That is because, in Adepoju’s experience as an

Assistant Federal Public Defender, putting forward witnesses with credibility problems risked

turning the jury against Brown. (/d.) And Adepoju’s experience taught him that once the defendant

starts putting witnesses on the stand, they need to be “really good witnesses.” (/d. at 114:19-

115:23.) Otherwise, the defense runs the risk of appearing dishonest to the jury. (/d.)

Adepoju testified that he thoroughly considered what Robinson and Fulmore told him

about the night of the raid during his interviews with both men. (/d. at 115:24-118:21.) And that

he compared that information to Brown’s own statements about the raid. (/d.) But in the end, he

determined that the highest likelihood of success would be attacking the Government’s proof, and

not presenting defense witnesses whose testimony would be subject to damaging cross

examination. (/d.) And Adepoju testified that Brown did not fight him on his decision not to call

either Robinson or Fulmore. (/d.)

D. Curtis Delay Brown—Petitioner

At the post-conviction evidentiary hearing, Brown took the stand and recalled Adepoju

representing him during both of his trials. 7d. at 131:19-20.) Brown also recounted the night of

the raid. He remembered going through security and being patted down by Robinson. (/d. at

132:14—-133:23.) And he strenuously denied having a firearm with him at the nightclub that

evening. (/d.)

Brown described the VIP section where he was at the time of the raid as “‘an elevated two-

step area.” (/d. at 135:5—-136:11.) He remembered going to get drinks before heading to the VIP

section and remaining there until the police arrested him. (/d.) What’s more, Brown testified that

he did not know everyone in the VIP section that night because many of the patrons were part of

a party that rented the club for the evening. (/d. at 136:4—11.)

Brown also described the moments when the police raided the establishment. (/d. at

136:16—140:10.) The police moved toward the VIP section and told Brown to raise his hands. (/d.)

He recalled the police recovering a handgun stuffed between the couch cushions in the VIP section.

(/d.) Though he denies the gun was his, Brown stated that the police arrested him for possession

of a firearm. (U/d.)

Ahead of his first trial, Brown remembers speaking with Adepoju about potential

witnesses. (/d. at 140:11—141:5.) And he recalls identifying Fulmore and Robinson as people who

could testify on his behalf. (/d.) He also recalls being present for Adepoju’s pretrial interviews

with both Robinson and Fulmore. (/d. at 141:6~-142:3.) During those interviews, Brown recalls

Fulmore and Robinson providing essentially the same statements that they testified to during the

post-conviction hearing. And he remembered believing that both Robinson and Fulmore would

make good witnesses because neither had a criminal record. (/d. at 142:23-143:17.)

Brown testified that he was dissatisfied with Adepoju after the first trial for not calling

Robinson or Fulmore as witnesses. (/d. at 157:17—159:16.) But when he considered getting a

different lawyer, he found that he could not afford to hire private counsel. (/d.) So Adepoju

remained his attorney for the second trial. (/d.) Ahead of the second trial, Brown testified that

Adepoju told him to have Robinson and Fulmore on standby in case he needed them to testify. Ud.

at 147:15—-148:23.) But Adepoju later told Brown not to call either Robinson or Fulmore, because

he did not need them as witnesses. (/d.) And though Brown testified that Adepoju threatened to

withdraw as counsel when Brown pushed for Robinson and Fulmore to testify over Adepoju’s

advice, Adepoju did not testify to any such conversation. (/d. at 162:19-164:1.) But Brown did

testify that Adepoju was “adamant” that the right decision was to not call Robinson or Fulmore as

witnesses. (/d. at 156:11-15.)

Il. STANDARD OF REVIEW

Under 28 U.S.C. § 2255, a prisoner in federal custody may collaterally attack a sentence if

“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.” 28 U.S.C. § 2255(a). An

evidentiary hearing is required for a § 2255 motion unless the filings and Record of the case

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conclusively show that the petitioner has no right to relief. /d. § 2255(b); see also Gov't of the V.I.

v. Forte, 865 F.2d 59, 62 (3d Cir. 1989).

II. DISCUSSION

The Sixth Amendment guarantees every criminal defendant “the Assistance of Counsel for

his defence.” U.S. Const. amend. VI. Of course, a disinterested person with a law degree would

not advance the interests behind the Sixth Amendment’s right to counsel. So the Supreme Court

held that the Sixth Amendment requires that counsel provide “effective” assistance. See Strickland

v. Washington, 466 U.S. 668 (1984).

The Supreme Court’s Strickland decision provides the two-pronged legal standard for

examining ineffective assistance of counsel claims. First, the Court asks whether “counsel’s

representation fell below an objective standard of reasonableness.” See id. at 688. Second, the

Court asks whether the defendant suffered any prejudice as a result of counsel’s deficient

performance. See id. at 693 (“Even if a defendant shows that particular errors of counsel were

unreasonable... the defendant must show that they actually had an adverse effect on the

defense.”). To obtain relief under the Strickland standard, the petitioner must establish both prongs.

See Buehl v. Vaughn, 166 F.3d 163, 169 (3d Cir. 1999). So when a petitioner’s claim fails on one

prong, the court need not examine the other. See Mathias v. Superintendent Frackville SCI, 876

F.3d 462, 477 (3d Cir. 2017).

For Stricklana’s first prong—whether counsel provided deficient performance—“[t]he

proper measure of attorney performance remains simply reasonableness under prevailing

professional norms.” Strickland, 466 U.S. at 688. The Supreme Court set a high bar: petitioners

must show “counsel made errors so serious that counsel was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth Amendment.” Jd. at 687. And a court examining counsel’s

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performance “must judge the reasonableness of counsel’s challenged conduct on the facts of the

particular case, viewed as of the time of counsel’s conduct.” /d. at 690.

In recent years, the Supreme Court has reminded clients, counsel, and courts that a defense

attorney’s tactical choices are the final word on many matters of trial management. See, e.g.,

McCoy v. Louisiana, 138 S. Ct. 1500, 1509 (2018). One such trial choice assigned to counsel is

deciding what witnesses to call. See Gonzalez v. United States, 553 U.S. 242, 249 (2008). Though

counsel must still undertake a reasonable investigation into the facts of the case before making

trial decisions. See Wiggins v. Smith, 539 U.S. 510, 521-23 (2003).

In Strickland, the Supreme Court made clear that its decision was not meant as a

mechanism to second-guess all of defense counsel’s trial decisions. Strickland, 466 U.S. at 689.

To the contrary, the Supreme Court mandated courts apply “a strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance; that is, the defendant

must overcome the presumption that, under the circumstances, the challenged action ‘might be

considered sound trial strategy.’” Jd. (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). As

part of this discussion, the Supreme Court identified two (2) types of strategic decisions. First, the

Court stated that defense counsel’s “strategic choices made after thorough investigation of law and

facts relevant to plausible options are virtually unchallengeable.” /d. at 690. Second, the Court

noted that “strategic choices made after less than complete investigation are reasonable precisely

to the extent that reasonable professional judgments support the limitations on investigation.” /d.

at 690-91.

Our Court of Appeals reads Strickland to “reveal[] a tiered structure with respect to

Strickland’s strategic presumptions.” Thomas v. Varner, 428 F.3d 491, 499 (3d Cir. 2005). The

lower tier is the so-called “weak presumption” that “counsel’s conduct might have been part of a

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sound strategy.” Jd. In the Third Circuit’s view, Strickland gives that “weak” presumption to

virtually all of counsel’s decisions. On the other hand, when the Government—defending a

conviction on collateral review—can show “that counsel actually pursued an informed strategy □□ .

the ‘weak’ presumption becomes a ‘strong’ presumption. /d. at 500. That “strong” presumption,

as Strickland held, is “virtually unchallengeable.” /d. (quoting Strickland, 466 U.S. at 690). Trial

counsel’s tactical decision, therefore, will not provide the basis for an ineffectiveness finding

unless counsel’s decisions were not reasonably designed to serve the defendant’s best interest.

Werts v. Vaughn, 228 F.3d 178, 190 (3d Cir. 2000) (citing Strickland, 466 U.S. at 690-91).

The Third Circuit articulated two (2) ways for a petitioner to overcome the “weak”

presumption. First, the petitioner can show that “the suggested strategy (even if sound) was not in

fact motivating counsel.” /d. at 49. In the alternative, the petitioner could show “that [defense

counsel’s] actions could never be considered part of a sound strategy.” /d. But Third Circuit has

not articulated how a petitioner can overcome the “strong” presumption—perhaps an

acknowledgment that doing so is nearly impossible.

Here, the Court’s first task is to determine whether Adepoju’s decision not to call Fulmore

and Robinson was a trial management decision assigned to the attorney. The Court easily

concludes that it is. The Supreme Court has held that calling witnesses is a decision left to counsel,

not the defendant. See Gonzalez, 553 U.S. at 249. So Adepoju was the person charged with making

the call on what witnesses to present and overarching strategy to pursue.

Next the Court asks whether Adepoju made a strategic decision not to call Fulmore and

Robinson as witnesses. Again, the answer is simple. Strickland requires reviewing courts to

presume that challenged actions might be part of a trial strategy. See Strickland, 466 US. at 689.

In Brown’s case, Strickland’s presumption aligns with the Record developed during the post-

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conviction evidentiary hearing. There, Adepoju testified that his decision not to call Fulmore and

Robinson was actually part of an overarching strategy to avoid affirmatively putting on a case and

instead chipping away at the Government’s proof. (ECF No. 269, at 93:18-98:7.) So it makes good

sense to categorize Adepoju’s decision as “strategic.”

Having concluded that Adepoju’s decision was strategic, the Court must determine whether

the “weak” presumption or “strong” presumption applies in Brown’s case. Based on the Record,

the Court easily concludes that Adepoju decided not to call Fulmore and Robinson as witnesses

after a thorough investigation of the relevant law and facts—in other words, an informed strategy.

Adepoju did exactly what Third Circuit and Supreme Court case law ask of defense

attorneys. He studied the evidence, interviewed witnesses, and developed a reasonable strategy to

defend his client at trial. All the witnesses at the evidentiary hearing testified about Adepoju

conducting witness interviews. Indeed, Adepoju credibly testified about his interviews of both

Fulmore and Robinson before Brown’s second trial. (/d. at 80:8-85:19, 87:6-89:18.) During his

interviews with both potential witnesses, Adepoju listened intently to the testimony each might

provide. (/d.) And Adepoju compared that testimony to Brown’s statement about the night of his

arrest. (/d. at 83:21-84:1, 87:22-88:11.)

Adepoju also testified that he weighed the credibility of both Fulmore and Robinson’s

potential testimony. As a result, Adepoju decided that both Fulmore and Robinson had potentially

serious credibility issues. (/d. at 90:3-17.) That is because Adepoju believed that “testimony would

have come out [that] made it clear that both of them not only have relationships with Mr. Brown

but they had been employed by him in some capacity”—something Adepoju believed a jury would

hold against Brown. (/d.)

What’s more, Adepoju determined that putting Fulmore and Robinson on the stand might

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do more than not help Brown’s chances, but rather make things much worse. (/d. at 90:3-17, 94:9-

95:18.) Adepoju testified that two (2) factors about Fulmore and Robinson caused him concern.

First, “they were not within the area where the police saw the alleged crime, the firearm, [or] the

movement.” (/d. at 94:19-21.) Second, Adepoju testified that Robinson and Fulmore were ripe for

damaging cross examination by the prosecution about their bias, personal friendship, and past

financial relationships with Brown. (/d. at 95:2—18.) And he did not think a jury would believe

Robinson’s testimony that Brown went through security every time he entered the club he owned.

Ud.)

During the evidentiary hearing, Adepoju testified about his strategic thinking heading into

Brown’s second trial. Adepoju testified that he felt Brown was in a strong position after the

Government conceded that the district judge incorrectly admitted damaging Rule 404(b) evidence

during the first trial. /d. at 111:12—24.) With that harmful evidence out, Adepoju determined the

best strategy was to thoroughly cross examine the police, given how dark and chaotic the lounge

was during the raid—i.e., a “reasonable doubt” defense. (/d. at 91:1-19, 113:1-8.)

Adepoju testified that the “reasonable doubt” defense was not some brand-new concept

developed for Brown’s trial. Rather, it was an established trial tactic used by defense attorneys.

(id. at 114:19-116:3.) In his experience as an Assistant Federal Public Defender, Adepoju testified

that presenting weak witnesses during a “reasonable doubt” defense has a deleterious effect. (/d.)

In essence, Adepoju testified that if both the Government and defense put on witnesses, the jury

will go with whichever side presented the more credible witnesses. (/d.) So if the strategy is

“reasonable doubt,’ Adepoju testified that any defense witnesses need to be “really good

witnesses.” (/d.) Reasonable defense attorneys might differ on that assessment, but Adepoju’s

years as an Assistant Federal Public Defender and preparation for Brown’s case led him to that

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conclusion.

But Adepoju did not dismiss calling Robinson and Fulmore out of hand. Instead, he told

Brown to have them available on standby for the trial. In the Court’s estimation, this too counts as

strategic thinking. If Adepoju simply said “no” to calling Robinson and Fulmore it would be one

thing. But here, he interviewed each man, considered their testimony, considered their

vulnerability, and made a conditional decision not to call them as witnesses. Yet he kept the door

open to calling them if the need arose at trial. But when the Government rested, Adepoju looked

at the Government’s case and decided that calling Fulmore and Robinson would present more risk

than benefit.

Nothing in Brown’s petition or the Record suggests that Adepoju’s claimed strategy is

merely a post-hoc justification for not calling Fulmore and Robinson. To the contrary, Adepoju’s

credible testimony during the hearing affirmatively shows that his claimed strategy really was his

strategy during Brown’s second trial. The Court, therefore, concludes that Adepoju engaged in an

informed strategy when he decided what evidence to present and witnesses to call at Brown’s

second trial. As a result, his decision is entitled to a “strong” presumption of professional

reasonableness. See Varner, 428 F.3d at 499-50. A “strong” presumption, the Supreme Court says,

is “virtually unchallengeable.” Strickland, 466 U.S. at 690. And the Record does not convince the

Court that Brown made the nearly monumental showing required to override the “strong”

presumption of reasonableness. If anything, the Record suggests that Adepoju’s tactical decisions

were reasonably designed to advance Brown’s best interests. See Werts, 228 F.3d at 190. Because

the Record leaves the Court convinced that Brown cannot establish Strickland’s deficient

performance prong, the Court will not examine the prejudice prong.

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IV. CERTIFICATE OF APPEALABILITY

To appeal from a final order in a § 2255 proceeding, the petitioner must obtain a certificate

of appealability. 28 U.S.C. § 2253(c)(1)(B). A certificate of appealability “may issue only upon ‘a

substantial showing of the denial of a constitutional right.’” Michael v. Horn, 459 F.3d 411, 418

n.9 (3d Cir. 2006) (quoting 28 U.S.C. § 2253(c)(2)). When the Court denies the petition on the

merits of the claims, the petitioner must show that “reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484

(2000). Brown’s petition does not make that showing. So the Court will not issue a certificate of

appealability for Brown’s ineffective assistance of counsel claim.

V. CONCLUSION

The Court concludes that the files and Record in this case conclusively show that Brown

is not entitled to relief under § 2255. Brown is unable to meet Strickland’s requirement that his

attorney provided deficient performance. Brown’s Motion to Vacate Sentence Under 28 U.S.C.

§ 2255, is therefore DENIED, and no Certificate of Appealability shall issue, for the reasons

stated.

MarkR.Hormak =

Chief United States District Judge

Dated: March 4, 2020

ce: All counsel of record via ECF

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