Dewar v. United States

Background

Donahue Dewar, representing himself, filed a petition under 28 U.S.C. § 2255 asking the court to vacate, set aside, or correct his federal sentence. A jury had convicted him of drug-distribution and firearm offenses. His sentence was later changed through appellate and sentencing proceedings, including the addition of a consecutive 60-month sentence on the firearm conviction and a later reduction of the narcotics sentences to 135 months running concurrently.

Dewar argued that his lawyers had provided ineffective assistance. He claimed that trial counsel Andrew Rubin should have called Dewar’s brother, Charles Dewar, to testify that Charles—not Dewar—had participated in recorded telephone calls about the planned drug transaction. He also challenged counsel’s handling of the firearm charge and argued that Rubin and an earlier lawyer, Bruce Barket, failed to obtain or secure a plea agreement. Finally, Dewar argued that his narcotics convictions and sentences were invalid because the jury was not asked whether he knew the specific type of controlled substance involved.

Court’s analysis and rulings

The court applied the two-part test for ineffective assistance of counsel: Dewar had to show both that his lawyer’s performance was unreasonably deficient and that the deficiency probably affected the result.

The court rejected the claim concerning Charles Dewar’s testimony. It found that deciding which witnesses to call was a reasonable trial-strategy decision. Rubin had already challenged the connection between Dewar and the recorded telephone calls, and Charles Dewar’s proposed testimony could have been seriously impeached using statements from Charles’s guilty-plea hearing. The court also stated that the trial evidence against Dewar was substantial and that he had not shown a reasonable probability of a different result.

The court rejected the claims concerning Count Five, the firearm charge. It held that the indictment tracked the language of the firearm statute and was not improperly duplicative merely because it described alternative ways of violating that statute. The court also found that Rubin had made reasonable arguments challenging the connection between the firearms and Dewar’s drug activity, including arguments about whether the guns had been planted and where they were found. The court therefore dismissed Dewar’s ineffective-assistance claim on this ground.

The court rejected the claim concerning Rubin’s handling of plea discussions. The record showed that Rubin communicated one Government plea offer to Dewar, explained the consequences of pleading guilty, and advised Dewar to accept the offer. Dewar rejected the offer because he wanted the Government to dismiss the charges against King or permit her to plead guilty without imprisonment. The court found that Dewar had not shown that Rubin acted ineffectively, that Dewar would have accepted the offer, or that the Government would have offered a better agreement.

The court did not dismiss the claim concerning Barket’s handling of a possible plea offer. The Government’s file review did not establish whether a formal offer had been made while Barket represented Dewar, and Barket had not provided information about his dealings with Dewar. The court ordered Barket to turn over his case file to the Government within 30 days, required the Government to provide a copy to Dewar and file a supplemental memorandum within 30 days after receiving the file, and set response and reply deadlines. The court stated that it could schedule a hearing if necessary.

The court also dismissed Dewar’s challenge to the narcotics convictions. Relying on Second Circuit precedent, it held that when a defendant personally and directly participates in the drug transaction underlying a conspiracy charge, the Government need not prove that the defendant knew the specific type or quantity of drug. The court therefore found no required type-specific knowledge element for Dewar’s narcotics convictions.

Disposition

The court dismissed the Petition on every ground except the claim that Barket may have been ineffective for failing to communicate whether the Government had extended a plea offer. It ordered additional investigation and briefing on that remaining claim. The court did not issue a Certificate of Appealability and certified that an appeal from the judgment on the merits would not be taken in good faith. Judge Kenneth M. Karas signed the order.