Citations
- 638 F. Supp. 2d 514
Full opinion text
MEMORANDUM OF OPINION AND ORDER
THORNBURG, District Judge.
THIS MATTER is before the Court on Petitioner’s motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255, filed November 16, 2004.
I. PROCEDURAL HISTORY OF THIS ACTION
Included in the prayer for relief of Petitioner’s motion are requests for discovery and an evidentiary hearing, along with a motion for leave to file amendments to the petition. In addition to his § 2255 petition, Petitioner also filed motions for leave to interview jurors and for the production of records from the Buncombe County Department of Social Services (“DSS”). The undersigned required the Government to file response to these motions/requests. See Order, filed November 22, 2004. Thereafter, Petitioner’s counsel requested “necessary funds to retain the assistance of experts.” Petitioner’s Motion for Funds for Expert Assistance, filed December 21, 2004.
Considering the Petitioner’s motions and the Government’s response, the undersigned denied each of the above requests, except that Petitioner was allowed to file amendments to his § 2255 motion without the Court deciding whether such amendments would relate back to the date of filing. See Order, filed January 31, 2005; see also, Petitioner’s Amendment to Motion to Vacate, and Supplemental Memorandum, filed April 28, 2005; Second Amendment to Motion to Vacate, filed under seal July 17, 2006.
In May 2005, the undersigned granted the Petitioner’s motion for Government funds to retain the services of a private investigator. Petitioner’s Motion for Private Investigator, filed April 28, 2005; Order, filed May 12, 2005 (granting motion and limiting expenditure to $1,000 plus reasonable expenses); see also, Order, filed August 19, 2005 (reentering the May 12, 2005, Order for lack of service of the original order on Petitioner’s counsel). Thereafter, the Petitioner filed a motion for an extension of time to file further amendments and supplemental materials supporting his § 2255 motion along with a motion for an ex parte hearing on the issue of experts. Petitioner’s Motion for Extension of Time to File Supplemental Materials, filed November 16, 2005; Petitioner’s Motion for Ex Parte Hearing to Seek Additional Funds for Private Investigator and Other Necessary Expert Assistance, filed December 5, 2005. By Orders entered on June 16, 2006, the Court denied the Petitioner’s motions for an ex parte hearing and additional funds for experts and new deadlines were provided for the filing of additional claims by the Petitioner and responses by the Government. Order, filed under seal June 16, 2006; Order, filed June 16, 2006.
Petitioner then filed renewed motions for the appointment of experts. See Petitioner’s Motions to Appoint Experts (fingerprint expert, forensic audiology, forensic anthropology), filed under seal July 17, 2006; see also, Petitioner’s Explanation regarding Renewed Motions, filed under seal August 4, 2006. The Court again denied the relief sought. Order, filed under seal August 15, 2006.
The Government’s response to the § 2255 petition was filed on November 15, 2006; Petitioner’s reply thereto was filed January 16, 2007. Government’s Response in Opposition to Petitioner’s Motion to Vacate Conviction (“Government’s Response”), filed November 15, 2006; Petitioner’s Reply to Government’s Response (“Petitioner’s Reply”), filed January 16, 2007. The ease is, therefore, ready for disposition.
II. PROCEDURAL HISTORY OF THE UNDERLYING CRIMINAL CASE
On October 31, 1994, Karen Styles disappeared from a hiking trail in the Pisgah National Forest. United States v. Jackson, 327 F.3d 273, 279 (4th Cir.), cert. denied, 540 U.S. 1019, 124 S.Ct. 566, 157 L.Ed.2d 434 (2003). Three weeks later, her body was discovered by a hunter. Id. She had been killed by a single bullet to the head and had suffered ten stun-gun wounds to her body, nine of which were inflicted close to the pubic area. Id. Officers found a spent Remington .22 caliber rifle casing near the body which they ultimately traced to a local K-Mart. Id. The records maintained by the K-Mart showed that a .22 rifle and ammunition had been sold to the Petitioner on October 28, 1994. Id. at 279-80. After voluntarily accompanying police to the Buncombe County Sheriffs Department for an interview on December 20, 1994, the Petitioner confessed twice to murdering Styles.' Id. at 280.
The State of North Carolina prosecuted the Petitioner on charges of first degree murder, first degree kidnaping and first degree rape. Id. After a jury trial, the Petitioner was found guilty on all counts and the jury recommended the death penalty. The trial court, following the jury’s recommendation, sentenced Petitioner to death on November 6, 1995. Id. On appeal, the North Carolina Supreme Court reversed the Petitioner’s conviction and ordered a new trial based on its conclusion that the police violated the Petitioner’s right not to be interrogated after he invoked the right to counsel. State v. Jackson, 348 N.C. 52, 497 S.E.2d 409, cert. denied, 525 U.S. 943, 119 S.Ct. 365, 142 L.Ed.2d 301 (1998).
After the reversal and remand for a new trial, the State of North Carolina entered into a plea agreement with the Petitioner on March 3, 2000, pursuant to which he pled guilty to second degree murder, first degree rape, and second degree kidnaping. Jackson, 327 F.3d at 281. The plea bargain included a stipulated prison sentence of 31 years with credit for five years already served. Id.
On October 2, 2000, the United States obtained an indictment, superseded on November 6, 2000, charging the Petitioner with using a firearm during and in relation to crimes of violence, that is, murder, kidnaping and aggravated sexual abuse, in violation of 18 U.S.C. §§ 924(c), 924(j)(l), and 7(3). Bill of Indictment, filed October 2, 2000; see also, Superseding Indictment, filed November 6, 2000. The Petitioner’s jury trial began on April 30, 2001. The guilt phase of the trial lasted six days with the jury unanimously finding that the Petitioner committed the crimes of kidnaping, aggravated sexual abuse, murder with malice aforethought and with premeditation during the perpetuation of kidnaping and sexual abuse, and in so doing, used a firearm. Verdict Sheet, filed May 7, 2001. The sentencing phase of the trial lasted two more days with the jury answering the Special Verdict Form with a unanimous verdict of death. Special Verdict Form Regarding the Punishment to be Imposed on the Defendant, filed May 9, 2001. On May 14, 2001, the undersigned imposed the judgment of death. Judgment and Order, filed May 14, 2001.
The Petitioner appealed and on March 18, 2003, the Fourth Circuit Court of Appeals affirmed the Petitioner’s conviction and sentence. Jackson, 327 F.3d at 279. The Fourth Circuit made the following rulings in the direct appeal:
1. The trial court did not err in denying the Petitioner’s motion to dismiss the indictment for prosecutorial vindictiveness in light of the circumstances surrounding the State and federal prosecutions;
2. The trial court did not err in denying the Petitioner’s motion to dismiss based on double jeopardy grounds;
3. The Petitioner’s constitutional rights were not violated when the trial court struck a venire member who gave ambiguous answers to questions about his beliefs on the death penalty;
4. The trial court did not err by refusing to declare a mistrial based on the alleged prosecutorial misconduct of calling a witness who gave possibly fabricated testimony and the Government did not engage in prosecutorial misconduct by calling the witness;
5. It was not reversible error to admit the expert testimony of Dr. Robert Stratbucker as to stun-gun evidence;
6. Any error in the admission of evidence of other acts was harmless;
7. The trial court did not abuse its discretion by excluding testimony concerning the mental condition of the Petitioner’s sister during the sentencing phase of the trial;
8. The trial court abused its discretion in permitting the Government to show the entire videotaped interview of the Petitioner during the sentencing phase in rebuttal of mitigation evidence; however, the error was harmless;
9. Trial counsel did not render ineffective assistance of counsel by making the comment during closing argument that “justice in this case says death;”
10. The trial court did not err by allowing the jury to consider multiple intent factors, and thus, did not unconstitutionally skew the weighing process towards the death penalty;
11. The statutory aggravating circumstance of “substantial planning and premeditation” was not unconstitutionally vague;
12. The jury instructions during the sentencing phase did not violate the Federal Death Penalty Act or the Eighth Amendment;
13. The indictment was not defective for failing to allege the aggravating circumstances necessary for the imposition of the death penalty; and
14. The trial court did not err in denying the Petitioner’s motion to be returned to State custody to finish his pre-existing sentence before being subjected to the federal sentence of death.
III. STANDARDS OF REVIEW
Section 2255 provides:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, ... 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.
28 U.S.C. § 2255(a). In order to obtain relief pursuant to this statute, a petitioner must show the “ ‘existence of an error of constitutional magnitude which had a substantial and injurious effect or influence on the guilty plea or the jury’s verdict.’ ” Humphress v. United States, 398 F.3d 855, 858 (6th Cir.2005) (quoting Griffin v. United States, 330 F.3d 733, 736 (6th Cir.2003)). The bulk of the Petitioner’s claims here are related to ineffective assistance of counsel. Where the claims relate to other allegations of error, the standard of review is stated within the discussion of that claim.
A. Ineffective assistance of counsel.
Most of the Petitioner’s claims relate to ineffective assistance of counsel at the trial level. In considering Petitioner’s claims that he did not receive adequate assistance of counsel,
[f]irst, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as. to deprive the defendant of a fair trial, a trial whose result is reliable.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Unless a defendant makes both showings, his claim of ineffective assistance of counsel must fail. Id. Thus, a defendant must show that counsel’s performance fell below objective standards of reasonableness and that, but for his conduct, there was a reasonable probability the result would have been different. Id. at 688, 104 S.Ct. 2052; Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Fields v. Attorney Gen. of State of Md., 956 F.2d 1290 (4th Cir.1992). If the defendant fails to make the first showing, there is no need to consider the second. Strickland, 466 U.S. at 697,104 S.Ct. 2052.
In addition, the Petitioner also argues that trial counsel’s conduct was per se prejudicial.
Generally, to establish ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient, and counsel’s performance prejudiced the defense. However, prejudice need not be shown in certain limited situations. [United States v. Cronic, 466 U.S. 648, 659-60, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) ] notes four situations where courts have found per se ineffectiveness: (1) where there has been a “complete denial of counsel;” (2) where the accused is denied the presence of counsel at “a critical stage” such as arraignment; (3) “[when] counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing;” and (4) where circumstances are so prejudiced against the defendant that competent counsel could not render effective assistance.
Conklin v. Schofield, 366 F.3d 1191, 1201 (11th Cir.2004) (other citations omitted). In the Fourth Circuit, the factors are slightly modified as follows: prejudice is presumed when (1) there was no lawyer present during a critical stage; (2) the attorney failed to subject the prosecution’s case to meaningful adversarial testing and thus might as well have been absent; and (3) even competent counsel could not provide effective assistance under the circumstances. Lenz v. Washington, 444 F.3d 295, 303-04 (4th Cir.2006); Glover v. Miro, 262 F.3d 268, 275 (4th Cir.2001) (“‘[Although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial.’ ” (quoting Cronic, 466 U.S. at 659, 104 S.Ct. 2039)). Here, the Petitioner alleges that his attorneys “faced circumstances in which competent counsel could not render assistance and failed entirely to subject the government’s case as to guilt and sentence to meaningful adversarial testing.” Petitioner’s Supplemental Memorandum, supra, at 2 (citing Bell v. Cone, 535 U.S. 685, 696, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002)); see also, Petitioner’s Motion to Vacate, supra, at 4-5 (also citing Bell and Cronic).
“Cronic was meant to cover those cases in which prejudice was to be assumed [whereas] Strickland would address cases in which prejudice needed to be shown.” Van v. Jones, 475 F.3d 292, 308 (6th Cir.2007), cert. denied, — U.S. —, 128 S.Ct. 708, 169 L.Ed.2d 557 (2007). “In [those] rare cases [under Cronic ], it is appropriate to presume that the deficient performance resulted in prejudice without requiring any demonstration that the deficiency prejudiced the defense.” Malcom v. Houston, 518 F.3d 624, 627 (8th Cir.), cert. denied, — U.S.—, 129 S.Ct. 397, 172 L.Ed.2d 291 (2008). “When [the Supreme Court] spoke in Cronic of the possibility of presuming prejudice based on an attorney’s failure to test the prosecutor’s case, [the Court] indicated that the attorney’s failure must be complete.” Bell, 535 U.S. at 696-97, 122 S.Ct. 1843. As for the fourth factor listed in Cronic, “[t]he presumption of prejudice afforded under Cronic is limited ... to those cases where defendant was subject to a pretrial and trial process so fundamentally flawed that no lawyer of any quality could provide constitutionally adequate counsel.” Johnson v. Bradshaw, 205 Fed.Appx. 426, 433 (6th Cir.), cert. denied, — U.S.—, 128 S.Ct. 83, 169 L.Ed.2d 64 (2007). “A finding of per-se prejudice under any of these [Cronic ] prongs is ‘an extremely high showing for a criminal defendant to make.’ ” Glover, 262 F.3d at 275 (quoting Brown v. French, 147 F.3d 307 313 (4th Cir.1998)).
In Petitioner’s § 2255 motion, whether trial counsel rendered effective performance is a mixed question of law and fact which requires the application of legal principles to the historical facts of the case. Strickland, 466 U.S. at 698, 104 S.Ct. 2052. “[T]he § 2255 motion ... will be ruled upon by the same district judge who presided at trial. The judge, having observed the earlier trial, should have an advantageous perspective for determining the effectiveness of counsel’s conduct and whether any deficiencies were prejudicial.” Massaro v. United States, 538 U.S. 500, 506, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003).
B. Affidavits from attorneys.
In support of his motion, the Petitioner has submitted affidavits from six attorneys who have opined as to the effectiveness of representation provided by Eric Foster, Steven Lindsay and David Belser, each of whom were involved in the representation of the Petitioner.
Donald H. Beskind, averred:
In my opinion, Mr. Jackson’s trial lawyers did not provide constitutionally competent representation in the way they litigated the issue of the admissibility of the testimony from Dr. Stratbucker.
In my opinion, trial counsel’s inadequate understanding of the relevant scientific and technical principles involved, failure to obtain or consult with a competent expert in the field, and failure to litigate under the factors identified in Daubert [v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) ], particularly in a case where their client was charged with a crime that carried a possible death sentence, was woefully inadequate representation.
In my opinion, competent counsel would have known or learned that even if the evidence was inadmissible before the jury; such evidence was admissible before a judge considering whether to admit evidence about the defendant’s sister.
Exhibit 6, Affidavit of Donald H. Beskind, attached to Petitioner’s Supplemental Memorandum, ¶¶ 5,11,19.
C. Frank Goldsmith, Jr., averred:
Under the circumstances, competent counsel would have sought a continuance.
From the information provided to me, I do not believe Mr. Lindsay and Mr. Foster made any concerted effort [to resolve the case through a plea bargain] .... Competent counsel would have, jointly and separately, spent considerable time [trying to convince the Petitioner to plead guilty].
In my opinion, this lack of reasonably thorough preparation on [the stun gun issue] amounts to ineffective assistance of counsel.
The failure to tell the client [about the strategy of conceding guilt] and get his consent to these actions was ineffective. Competent counsel would have [filed a motion for appropriate relief in state court].... It was ineffective assistance of counsel to make this challenge in the wrong court.
To the extent that defense counsel were concerned about the introduction of the videotaped interviews of their client by the government mental health experts, defense counsel rendered ineffective assistance- of counsel in failing to develop and present to the jury the lay and expert evidence that was necessary in order to present their client’s mental condition to the jury and to meet the expected testimony from the government’s expert.
[T]rial counsel was ineffective in not presenting ... mitigating evidence.
In my opinion, the failures of Mr. Lindsay and Mr. Belser outlined above amounted to the ineffective assistance of counsel for Mr. Jackson. None of these acts of commission or omission is supported by an objectively reasonable basis.
Exhibit 15, Affidavit of C. Frank Goldsmith, Jr., attached , to id., ¶¶4-9, 12, 15.
Attorney Thomas F. Loflin, III, also provided an affidavit. See Exhibit 28, Affidavit of Thomas F. Loflin, III, attached to id. In December 2006, Loflin was suspended from the practice of law for a three year period; the suspension was stayed pending his compliance with certain conditions. See www.ncbar.com/discipline. The Court excludes his affidavit.
Susan T. Parke, who is the wife of David Belser, one of Petitioner’s trial attorneys, also provided an affidavit. See Exhibit 34, Affidavit of Susan T. Parke, attached to id., ¶ 3. Although Parke refers to the Petitioner in her affidavit as “our client,” Parke was not appointed to represent the Petitioner. In fact, David Belser requested the Court appoint Parke as a jury selection expert and the motion was denied. Belser thereafter submitted a voucher seeking payment for Parke’s services as a jury selection expert. That claim for her services was denied since her request for appointment had been denied. Although Parke has provided an affidavit in which she opines as to the effectiveness of both her husband and Steve Lindsay, the undersigned rejects her opinion for the reasons stated infra.
Claire Rauscher provided an affidavit in which she opined that the Petitioner’s attorneys in the second state court prosecution rendered ineffective assistance of counsel. Exhibit 36, Affidavit of Claire Rauscher, attached to id.
Sean P. Devereux, also provided an affidavit in which he opined as follows:
In my opinion, Richard Jackson’s lawyers were ineffective in failing to seek a postponement of his trial.
I am dumbfounded by Mr. Lindsay’s failure to prepare for the government’s evidence about the stun gun....
The failure to anticipate and prepare to meet the stun gun evidence amounts to grossly deficient representation.
It was ineffective assistance of counsel to make this challenge [to the state guilty plea] in the wrong court.
Defense counsel’s decision to forego the use of all expert mental health testimony was unreasonable.... To the extent that defense counsel were concerned about the introduction of the videotaped interviews of their client by the government’s mental health expert, defense counsel rendered ineffective assistance of counsel in failing to address their concerns.
Mr. Jackson’s only effective advocate [David Belser] had 38 days to meet this onslaught. The result was a fiasco, no more than a semblance of capital trial.
Exhibit 85, Affidavit of Sean P. Devereux, attached to id., ¶¶ 6, 11, 13, 15, 16, 27.
The Petitioner has not identified in what capacity these affidavits are offered. If the Petitioner intends to offer testimony through these attorneys’ affidavits as lay witnesses, then their testimony is “limited to those opinions or. inferences which are ... not based on .'.. specialized knowledge within the scope of Rule 702[,]” that is, their opinions are not offered as expert testimony. Fed.R.Evid. 701 & 702. However, each attorney has offered his or her expert opinion as a lawyer as to whether or not the trial attorneys for the Petitioner rendered ineffective assistance of counsel. As a result, these legal opinions may not be accepted as lay testimony. Hirst v. Inverness Hotel Corp., 544 F.3d 221 (3d Cir.2008). It, therefore, appears that the Petitioner has offered the affidavits of these expert witnesses under the guise of lay witness testimony. Id. at 227 (Rule 701(c) was added to “eliminate the risk that the reliability requirements set forth in Rule 702 will be evaded through the simple expedient of proffering an expert in lay witness clothing ... by simply calling an expert witness in the guise of a layperson.”). The Court rejects the affidavits as lay witness testimony.
Moreover, the Petitioner has merely attached these affidavits as exhibits; there has been no effort to qualify these attorneys as experts in the defense of death penalty cases. Fed.R.Evid. 702. Assuming the attorneys do qualify as experts, “testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” Fed.R.Evid. 704(a). “ ‘That said, an expert witness cannot give an opinion as to [his or] her legal conclusion; i.e., an opinion on an ultimate issue of law.’’ ” Nationwide Transp. Fin. v. Cass Info. Sys. Inc., 523 F.3d 1051, 1058 (9th Cir.2008) (quoting Hangarter v. Provident Life & Accident Ins. Co., 373 F.3d 998, 1016 (9th Cir.2004)). “[0]pinion testimony that states a legal standard or draws a legal conclusion by applying law to the facts is generally inadmissible.” United States v. McIver, 470 F.3d 550, 562 (4th Cir.2006). That is precisely what each attorney has done in his or her affidavit by opining that trial counsel rendered ineffective assistance of counsel. As a result, the undersigned will exclude these affidavits. See, e.g., Newland v. Hall, 527 F.3d 1162, 1207 (11th Cir.2008) (affidavits from trial counsel and other attorneys regarding what constitutes effective assistance in capital cases are not dispositive and have little weight); United States v. Barile, 286 F.3d 749, 760 (4th Cir.2002) (role of the district court is to distinguish opinion testimony that embraces the ultimate issue of fact from opinion that states a legal conclusion, that is, specialized legal meaning); United States v. Chapman, 209 Fed.Appx. 253 (4th Cir.2006) (district court did not err in excluding expert testimony concerning securities law), cert. denied, 550 U.S. 949, 127 S.Ct. 2286, 167 L.Ed.2d 1117 (2007); McIver, 470 F.3d at 562 (collecting cases); DiBella v. Hopkins, 403 F.3d 102, 121 (2d Cir.2005) (testimony that defendant’s conduct was extortion excluded); Archuleta v. Lemaster, 37 Fed.Appx. 391, 393 (10th Cir.2002) (expert testimony as to whether trial counsel provided ineffective assistance rejected as advising the court about the proper application of existing law to the facts and the ultimate issue of trial counsel’s effectiveness); United States v. Wilson, 133 F.3d 251 (4th Cir.1997) (district court should not have allowed expert opinion as to what the law means or how it is interpreted).
C. The necessity for an evidentiary hearing.
“If [a § 2255] motion is not dismissed, the judge must review the answer, any transcripts and records of prior proceedings, and any materials submitted ... to determine whether an evidentiary hearing is warranted.” Rule 8, Rules Governing Section 2255 Proceedings for the United States District Courts. In this case, the Petitioner has expanded the record to voluminous proportions. He has filed multiple amendments to the motion and exhibits in support thereof. In addition, the expansive record of the proceedings, including the pleadings, pretrial, and trial transcripts, have been placed before and reviewed by the Court.
“A hearing is required when a movant presents a colorable Sixth Amendment claim showing disputed material facts and a credibility determination is necessary to resolve the issue.” United States v. Coon, 205 Fed.Appx. 972, 973 (4th Cir.2006) (citing United States v. Witherspoon, 231 F.3d 923, 925-27 (4th Cir.2000)) (other citations omitted). A hearing is not required unless the Sixth Amendment claim shows “disputed facts involving inconsistencies beyond the record [.]” United States v. Robinson, 238 Fed.Appx. 954, 955 (4th Cir.2007) (citing United States v. Magini, 973 F.2d 261, 264 (4th Cir.1992)) (emphasis added). Conclusory allegations contained within affidavits do not require a hearing. Strong v. Johnson, 495 F.3d 134, 139—40 (4th Cir.2007). And, trial counsel’s statements in affidavits filed years after the trial (in which counsel in effect “fall on their swords”) do not create credibility issues when “trial counsel’s documented contemporaneous statements show the contrary.” United States v. Streater, 70 F.3d 1314, 1321 (D.C.Cir.1995). “Thus, no hearing is required if the petitioner’s allegations ‘cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact.’ ” Arredondo v. United States, 178 F.3d 778, 782 (6th Cir.1999) (quoting Engelen v. United States, 68 F.3d 238 240 (8th Cir.1995)); Brown v. United States, 261 Fed.Appx. 865, 869 (6th Cir.2008) (“the record itself offered sufficient evidence to contradict the petitioner’s claims”). In addition, “[w]here, as here, the judge considering the § 2255 motion also conducted the trial, the judge may rely on his ... recollections of the trial.” Arredondo, 178 F.3d at 782 (citing Blanton v. United States, 94 F.3d 227, 235 (6th Cir.1996)).
As the Court which presided over all pretrial proceedings as well as the trial of the action, the undersigned is uniquely qualified to compare the contentions of ineffective assistance of counsel with the contemporaneous conduct and statements of counsel. Moreover, concerning the other issues raised in this, motion, it is clear from the pleadings, files and records that the Petitioner is not entitled to any relief; therefore, the undersigned has concluded that a hearing is not required. “ ‘A § 2255 motion ‘can be dismissed without a hearing if (1) the petitioner’s allegations, accepted as true, would not entitle the petitioner to relief, or (2) the allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than ; statements of fact.’ ’ ” United States v. Regenos, 405 F.3d 691, 694 (8th Cir.2005) (quoting Sanders v. United States, 341 F.3d 720, 722 (8th Cir.2003) (quoting Engelen, 68 F.3d at 240)).
IV. DISCUSSION
A. Ineffective assistance of trial counsel.
The Petitioner has argued both that counsel were per se ineffective and also that they were ineffective under the Strickland standard.* The Court addresses each instance of alleged ineffectiveness below. The Court finds that trial counsel at no point during their representation rendered per se ineffective assistance of counsel. The Court also finds, pursuant to the Strickland standard, that trial counsel at no point during their representation rendered deficient performance. As a result, it is unnecessary for the Court r to address whether the Petitioner has been prejudiced by counsel’s deficient performance.
1. Lack of experience of trial counsel; inadequate preparation for trial; failure to request a continuance.
On October 19, 2000, Steve Lindsay (Lindsay) was appointed to represent the Petitioner. On October 26, 2000, Eric Foster (Foster) was appointed as the second attorney in this capital case. Lindsay filed an affidavit in connection with this motion in which he averred, -in part:
I asked Magistrate Judge Cogburn to appoint second counsel who had experience in capital litigation.... I specifically requested that David Belser be appointed as co-counsel. Magistrate Judge Cogburn told me he wanted to expand the number of attorneys with capital experience who would accept federal appointments.... Instead, he appointed Eric J. Foster on 26 October 2000.
I felt I could trust Mr. Foster with research and motions as he had been a law clerk to a federal judge.
Over time, the relationship between Mr. Foster and me became extremely strained. I felt as if I was having to handle everything in this case and micro-manage Mr. Foster all the while “training” him as instructed by Magistrate Cogburn. It became apparent that there had been a breakdown between Mr. Foster and our client[.] It came to a point where I advised the district court that I had not and could not adequately supervise Mr. Foster and did not believe Mr. Foster had adequate experience to serve as co-counsel in a capital prosecution as complicated as this case.
[I] asked the district court to replace Mr. Foster.
Mr. Foster moved to withdraw,- and the district court granted the motion. David G. Belser was appointed to replace Mr. Foster on 23 March 2001.
Mr. Foster was allowed to withdraw and the district court appointed Mr. Belser as co-counsel and continued the trial for a short time. We told the district court that it would be virtually impossible for Mr. Belser to be prepared as trial was still only five weeks away. The district court communicated to Mr. Belser and me that no other continuance of the trial date would be allowed. I believed that a motion to continue would have been denied and that even making it would have angered the district court.
Exhibit 27, Affidavit of Steven P. Lindsay, attached to Petitioner’s Supplemental Memorandum, ¶¶2-3, 8, 12-14 (emphasis added).
The docket record (contemporaneously maintained by the Clerk) reveals that on March 20, 2001, Lindsay filed a motion to continue the case from the April 9, 2001, trial setting, citing the recent appointment of new counsel (Belser) and the impossibility of Belser'being “properly prepared” for an April 9 trial setting. Petitioner’s Motion to Continue, filed March 20, 2001. On March 21, 2001, the motion was allowed and the case was continued “from its peremptory setting of April 9, 2001” to a peremptory setting of April 30, 2001. Order, filed March 21, 2001 (citing 18 U.S.C. §§ 3161(h)(8)(A), (B)(i), & (B)(iv)). Lindsay specifically requested the appointment of Belser who agreed to and accepted the appointment with full knowledge that the case was peremptorily set for trial on April 30, 2001. Lindsay averred that he and Belser requested the continuance from the April 9, 2001, trial setting, received a continuance to an April 30, 2001, setting, and did not believe another continuance would have been granted. Lindsay Affidavit, supra, ¶ 14. Thus, Lindsay’s sworn statement that, “[w]e told the district court that it would be virtually impossible for Mr. Belser to be prepared as trial was still only five weeks away,” is contrary to the representations made to the Court at the time. Allegations made in support of a § 2255 motion need not be accepted “when trial counsel’s documented contemporaneous statements show the contrary.” Streater, 70 F.3d at 1321; Arredondo, 178 F.3d at 782 (allegations which are contradicted by the record do hot warrant relief); Regenos, 405 F.3d at 694.
The Court has also considered the affidavit of David Belser concerning his failure to move for a continuance of the trial date. In that affidavit, Belser acknowledged, among other things, that he has significant experience in capital cases.
I was appointed [to represent the Petitioner] on 23 March 2001 to replace [Eric] Foster, who had been allowed to withdraw. At the time I discussed begin (sic) appointed, I told the judge that I could not be fully prepared by the established trial date of 9 April 2005 (sic). The judge continued the trial to 30 April 2005 (sic) and it is my recollection that he told Steve Lindsay and me there would be no further continuances and indicated if I did not accept the appointment, he would find someone else. I agreed to be appointed because Mr. Lindsay, who had first been appointed to represent Mr. Jackson, asked me to accept the appointment because he needed an experienced lawyer to help him due to the complexity of this case. We began jury selection only thirty-eight (38) days after I was appointed. I simply did not have enough time to prepare for the trial.... I should have moved for a continuance. But I did not do so because the judge had made it very clear from the outset of my involvement that the case would not be continued.
I have litigated countless criminal trials and a large number of capital cases. I have never felt as unprepared as I was in this case due to the inadequate time to get ready for trial[.]
Exhibit 4, Affidavit of David Belser, attached to Petitioner’s Supplemental Memorandum, ¶¶ 3,14, 24 (emphasis added).
Thus, Belser states he agreed to accept appointment in this capital case with full knowledge that the trial would begin 38 days after his appointment. Id. ¶ 3. He does not allege that he told the Court that he could not be ready by April 30, 2001; indeed, he states only that he advised the Court that he could not be “fully prepared” by the April 9, 2001, trial date. Id. And, he acknowledges that he agreed to be appointed. Id. (“I agreed to be appointed because Mi. Lindsay ... asked me ... because he needed an experienced lawyer to help him[.]”). Despite the assurances provided to the Court at the time of appointment, Belser now claims he was rushed into trial. However, Belser admits in his affidavit that from the date of his appointment, if not before, he was well aware of the April 30, 2001, trial date and that the Court would grant no further continuances. Belser’s allegations made in support of Petitioner’s § 2255 motion need not be accepted “when trial counsel’s documented contemporaneous statements show the contrary.” Streater, 70 F.3d at 1321; Arredondo, 178 F.3d at 782; Regenos, 405 F.3d at 694.
In fact, Belser’s contemporaneous statements in open court are telling. On April 6, 2001, a hearing was held on the Government’s motion to strike the Petitioner’s notice of intent to offer expert testimony relating to mental disease or defect bearing upon guilt and punishment. Transcript of Motions Proceeding held April 6, 2001, filed August 6, 2001. At that hearing, Belser made the following statements to the Court:
I think we should deal as a threshold issue with one of the government’s main objections to the notice, that they believe it is part of a strategy to delay the trial. I can tell the court that if the court allows us to file — use expert witnesses in the guilt phase — it will not necessitate the continuance of the trial. I do not plan to file a motion to continue on this basis or any other basis including my own involvement in the case for nearly six weeks. I will not file a motion to continue. We are ready to proceed on April the 30th.
And, again, I want to reiterate, the bottom line is we do not intend to move to continue the case on this or any other basis. We will be here to try the case on whatever issues the court allows us to do on April the 30th.
Id. at 2,14 (emphasis added).
These statements made in the weeks prior to trial were contemporaneous as opposed to the allegations contained in Belser’s sworn affidavit, made in the context of hindsight and to support a § 2255 motion. Strickland, 466 U.S. at 689, 104 S.Ct. 2052 (Trial counsel’s conduct must be evaluated from “counsel’s perspective at the time” with the court making “every effort ... to eliminate the distorting effects of hindsight[.]”). Belser’s contemporaneous statements show not only that he felt he was adequately preparing for trial, but also that he did not believe a continuance was necessary in order to be prepared for trial. His assurance to the Court that “[w]e are ready to proceed on April the 30th” is a far cry from his recent revelation that “I have never felt as unprepared as I was in this case due to the inadequate time to get ready for trial[.]” Newland, 527 F.3d at 1207 (trial counsel’s admissions of error in a habeas petition are not controlling); Wilson v. United States, 2007 WL 2237673 (D.Ariz.2007) (contemporaneous statements carry substantial weight); Dzinchveladze v. United States, 2007 WL 549439 (S.D.N.Y.2007) (contemporaneous statements credited over representations made by counsel in § 2255 petition); Montag v. United States, 2003 WL 22075759 (D.Minn.2003) (contemporaneous evidence credited over accusation in § 2255 petition). Belser agreed to the appointment as counsel and entered this case with full knowledge of the trial date, and assured the Court at the time that he was prepared for the April 30, 2001, trial date.
Although Belser and Lindsay now assign issues which they could have explored had they pursued a continuance, the discussion within this decision shows that their conduct at the time of trial did not fall below objective standards of reasonableness. United States v. Hedgepeth, 418 F.3d 411, 423 (4th Cir.2005) (A district court’s denial of a continuance is reviewed for “abuse of discretion;” even if such an abuse is found, the defendant must show that the error “specifically prejudiced” his case in order to prevail.); Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir.2000) (“To state the obvious: the trial lawyers in every case could have done something more or something different. So, omissions are inevitable. But, the issue is not what is possible or ‘what is prudent or appropriate, but only what is constitutionally compelled.’ ” (quoting Burger v. Kemp, 483 U.S. 776, 794, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987), quoting Cronic, 466 U.S. at 665 n. 38, 104 S.Ct. 2039)). In fact, the affidavits filed by counsel constitute little more than hindsight and appear to be intentional attempts to obtain a reversal. Strickland, 466 U.S. at 689, 104 S.Ct. 2052 (“A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”); Marquard v. Sec’y for Dep’t of Corr., 429 F.3d 1278, 1304 (11th Cir.2005) (“ ‘[Because counsel’s conduct is presumed reasonable, for a petitioner to show that the conduct was unreasonable, a petitioner must establish that no competent counsel would have taken the action that his counsel did take.’” (quoting Chandler, 218 F.3d at 1315)). “ ‘It is common practice for petitioners attacking their death sentences to submit affidavits[.]’ ” Id. at 1305 (quoting Waters v. Thomas, 46 F.3d 1506, 1513-14 (11th Cir.1995)); Newland, 527 F.3d at 1207 (trial counsel’s concession of error is not controlling); Gilliam v. Sec’y for Dep’t of Corr., 480 F.3d 1027, 1034 (11th Cir.2007) (it is not dispositive that trial counsel refuses to characterize his decision as strategic), cert. denied, — U.S. —, 128 S.Ct. 1697, 170 L.Ed.2d 367 (2008). However, even when the affidavits are those of former counsel, a petitioner must meet the high burden of showing that “no competent counsel would have taken the action” that was taken. Chandler, 218 F.3d at 1315; see also Burket v. Angelone, 208 F.3d 172, 190 (4th Cir.2000) (“The standard is therefore not what later courts with the benefit of hindsight believe should have been accomplished in earlier proceedings, but instead whether counsel at the time acted within the liberal bounds of competent representation.”).
Lindsay has not averred that he told the Court he would be unprepared for trial on April 30, 2001. Belser has not averred that he informed the Court that he could not be ready for trial on April 30, 2001. The only averment is that Belser could not be “fully prepared” on April 9, 2001v And, the representations made to the Court by both counsel at a hearing on April 6, 2001, that they would be ready for trial on April 30 are directly contrary to the allegations now made years after the fact and in an attempt to obtain habeas relief. “To prove abridgment of his Sixth Amendment right to effective assistance of counsel based upon the district court’s allegedly wrongful denial of continuance, [the Petitioner] must prove first that the district court abused its discretion in denying the continuance motion and second that the denial ‘specifically prejudiced’ his case.” United States v. Stewart, 256 F.3d 231, 244 (4th Cir.2001). Thus, the cases do not support a finding that the Court would have abused its discretion had a continuance been denied. Id. Nor has the Petitioner shown that the lack of a continuance specifically prejudiced his case. In fact, every cited example of omission was either refuted on the record at the time or is refuted now by a review of the extensive work done by counsel prior to trial which is discussed infra. The Petitioner has not shown ineffective assistance under either the per se or the traditional Strickland standard.
Moreover, Belser’s contemporaneous attorney voucher disclosed that he spent 123 hours interviewing witnesses, 131.1 hours consulting with investigators and experts, 217.5 hours reviewing records, and 145.75 hours doing legal research and writing. Attorney Voucher, filed August 27, 2001. It is also interesting to note that Belser moved for leave to file the vouchers under seal or with redactions. Ex Parte Motion to Seal Payment Vouchers, filed under seal August 17, 2001. Finding no good cause to justify sealing the attorney voucher, Belser’s request was denied and the voucher was filed as part of the public record. See Order, filed August 27, 2001. The amount of time spent in trial preparation as shown by the voucher is contemporaneous evidence of record.
The Court finds that trial counsel had adequate time to prepare for trial and were not ineffective by failing to move for a further continuance. The Court makes this finding both as to the allegation of per se ineffectiveness and pursuant to the Strickland standard.
There is also an allegation that Foster was ineffective due to a lack of experience. On March 14, 2001, Lindsay made the following statements during an ex parte hearing attended by Foster.
THE COURT: This morning in the argument, ... there was some mention about Mr. Foster acting in a training capacity of some sort. And this being a capital case, ... if the Court should consider further as to whether there should be a more experienced attorney involved or whether we should pursue this farther or just what the situation is.... I don’t want any questioning hereafter by the defendant on some motion about ineffective assistance of counsel, and they almost routinely do that whether counsel’s appointed or retained, and I thought I would make inquiry about that.
LINDSAY: I want to be fair with everybody involved in this litigation. When I was first contacted or talked to Magistrate Cogburn about becoming involved in this case, I knew at that time that there were going to be a limited number of lawyers who could become ... involved just because, for example, Mr. Stewart was one of the trial counsels Mr. Jackson had before and there would be a reluctance to appoint him in this case.... I had talked to Magistrate Cogburn about appointing Mr. Devereux as co-counsel.... Mr. Devereux indicates that his family attends church with the Styles family[.] I had asked for David Belser to be appointed and a conversation I had with Judge Cog-burn was that he would not do that[.]
[Eric Foster] has worked very hard on this case. [H]e has done a lot of research. He has obviously done a.lot to prepare for this case. But the limitation that it has provided is the inability for me to sit down with somebody who has been through a capital case before and say: how do you think this would play in a capital setting!.] ... [Eric] Foster is working as hard as he possibly can. That doesn’t change the fact that he does not have capital experience.... I don’t want to sit here telling your Honor that he’s not doing his job because he is doing everything that he possibly can, given the limitation that he doesn’t have any capital experience. And, so, I’m not going to sit here and criticize him because he really is doing the best that he can.
THE COURT: You have indicated to the Court that it would have been more comfortable for you and less stressful for you to have the opportunity to have someone who was more experienced. Do you feel that the defendant is in any way being deprived of adequate representation in this case[?]
LINDSAY: I would say the — probably more tha[t] I’m being deprived of an opportunity for a meaningful life at this point, but that always goes along with handling capital litigation, Your Honor.... [I]s the defendant being deprived? No[.] ... [S]o he’s going to get a good trial. He’s going to get good representation. Mr. Foster is doing everything that he can. I appreciate his input on things. At the same time, the only thing I’m saying is is (sic) that there really is — I’m feeling a big burden on me because I’m the one with the capital experience .... I think I’m providing effective representation. I think he’s get ting effective representation, if that answers your Honor’s questions.
THE COURT: Yes. I have seen absolutely nothing that suggests to me that his representation is in any way being compromised. If I were making an evaluation at this point, I would say that perhaps Mr. Foster lacks some restraints that he would normally possess [in a non-capital setting] and is being certainly adequately zealous. If he had prior experience, he probably could have done more. Mostly, I can’t think of any area that has been left unexplored.... I think you are doing a splendid job. And, of course, I have been through many capital cases, two since being on the federal bench, but numerous ones at the state level and I do have a good feel for whether or not a defendant is being adequately represented. And if I felt for a minute that [the defendant wasn’t] being adequately represented], I wouldn’t hesitate to take appropriate action[.]
Transcript of Motions Proceedings held March 14, 2001, filed August 6, 2001, at 112-117 (emphasis added).
Thus, at. the time, Lindsay felt there were a limited number of attorneys available to work with him on the case, Foster was doing a good job but lacked capital experience, and the Petitioner was getting adequate, effective assistance of counsel. Moreover, the undersigned specifically inquired as to the issue of effectiveness of counsel, was reassured by Lindsay, and noted for the record that both counsel had zealously represented their client. As a result, the complaints raised now appear to amount to little more than an attempt to create issues. Streater, 70 F.3d at 1321; Arredondo, 178 F.3d at 782; Regenos, 405 F.3d at 694.
Two days after the March 14 hearing, Foster filed an ex parte motion to withdraw stating that the Petitioner had
little or no trust in [Foster], Prior to March 14, 2001, this lack of a working relationship between [Foster] and [the Petitioner] did not seem to hinder the working relationship between the two defense attorneys, as [Lindsay] had the primary responsibility of communicating with [the Petitioner], and [the Petitioner] and his family have a trusting relationship with [Lindsay].... [Foster] assures the Court that until March 14, 2001, [Foster] has had no indication that the fact that [the Petitioner] could only work with one of his attorneys did, in fact, hinder the ability of both defense attorneys to provide [the Petitioner] with adequate representation. Moreover, [Foster] before March 14, 2001, had never heard such an opinion from [Lindsay],
Having had little or no working relationship with [the Petitioner] since the beginning of the case, [Foster] has been preparing to serve as an “assistant” to [Lindsay] from the outset.
Moreover, [Foster] contacted staff members at the Center for Death Penalty Litigation, who assured him that a motion to withdraw would not be selfish, in that they have witnessed numerous capital cases in which the two defense attorneys — no matter how competent — did not get along, and the result has uniformly been a diminished defense for the defendant. As for the latter, the Court must note that the first time [Foster] became aware of [Lindsay’s] lack of confidence in [Foster’s] ability to aid the defense was two days ago, March 14, 2001.
Ex Parte Motion to Withdraw as Counsel, filed under seal March 16, 2001. By this motion, Foster alleges the Petitioner and his family trusted Lindsay and had a good working relationship with him; Foster was prepared to and did serve in the role of a research and writing assistant; and it is not unusual for capital attorneys to disagree. In fact, Foster’s motion, submitted two days after Lindsay’s statements in open court, reinforces Lindsay’s contemporaneous comments to the Court. It goes without saying that Lindsay’s representations to the undersigned during the March 14, 2001, hearing supports the conclusion that the Petitioner was receiving effective assistance of counsel. Indeed, the undersigned made that finding at the time. Nonetheless, the Court allowed Foster to withdraw and appointed Belser only after Belser agreed to take the appointment with full knowledge of the case, its stage of preparation, and the April 30, 2001, trial date.
Based on the various affidavits prepared in support of this motion, the Petitioner claims there is a presumption of prejudice, that is, that counsel’s conduct was per se prejudicial because of a lack of preparation for the trial and the short period of time Belser was involved in the case prior to trial. As noted above, the Court finds that the contemporaneous statements made by counsel on the record in open court refute that argument.
In addition, despite the characterization that Belser was in the case for only 38 days before trial, and thus, incapable of being prepared, it is noteworthy that Lindsay had represented the Petitioner since October 2000. Cronic, 466 U.S. at 649,104 S.Ct. 2039 (young real estate lawyer who had 25 days to prepare for complex mail fraud case was not per se ineffective despite limited time to investigate, prepare and interview witnesses); State v. Morgan, 359 N.C. 131, 144, 604 S.E.2d 886, 894 (2004) (“By the time attorney Elmore was appointed as second chair, attorney Young had already been involved in the case for over a year.”). Moreover, the Petitioner had confessed on two different occasions and there had been a previous state court trial; thus, the evidence was not new. Trice v. Ward, 196 F.3d 1151, 1161 (10th Cir.1999) (four months to prepare for a capital case was not per se prejudicial as defendant had twice confessed and the preparation time was less than other cases especially in light of the substantial evidence against him.).
Moreover, both Belser and Lindsay were privy to the records from the state proceedings. The names, addresses, and testimony of fact witnesses as well as the names, addresses, curriculum vitae, and testimony of expert witnesses were available to counsel. Access to this information affected the amount of time necessary for counsel to prepare for Petitioner’s federal trial. It also assisted their ability to form an opinion as to which trial strategy would most likely result in a life imprisonment versus a death sentence.
As noted from Belser’s attorney voucher and the contemporaneous pretrial motions, the quantity of work done in preparation for trial is grossly understated by the Petitioner, trial counsel, and habeas counsel. Prevatte v. French, 459 F.Supp.2d 1305, 1343 (N.D.Ga.2006), aff'd, 547 F.3d 1300 (11th Cir.2008). At the time of Petitioner’s trial, both Lindsay and Belser were experienced attorneys each of whom had handled numerous capital cases. Belser agreed to take the appointment with the knowledge that he would go to trial on April 30, 2001. Glover, 262 F.3d at 278 (“ ‘late appointment of counsel’ fails to justify ‘a presumption of ineffective assistance of counsel.’ ”) (quoting Praylow v. Martin, 761 F.2d 179, 181-83 (4th Cir.1985)). By the time of Belser’s appointment, as noted below, numerous experts had been appointed on behalf of the Petitioner. The Government maintained an open file policy during the case; thus, discovery and investigation of the factual issues was not an insurmountable task, as now represented. Prevatte, 459 F.Supp.2d at 1343 (“[T]he prosecution maintained an ‘open file,’ and defense counsel were well-aware of what the evidence against Petitioner would be.”). “Indeed, the Supreme Court has long emphasized that late appointment of counsel does not ipso facto trigger a rule of per-se prejudice.” Glover, 262 F.3d at 279.
[Reviewing courts must generally regard trials ... through a particularized and individualized lens rather than through some broad-brush presumption of prejudice. Courts should not presume prejudice where the facts show otherwise, and Strickland has the bedrock virtue of looking at prejudice to the defendant in each case.
The Court, therefore, finds that the relationship between Lindsay and Foster, the “late” appointment of Belser, and the failure of Lindsay and Belser to request a continuance was not per se prejudicial. Trice, 196 F.3d at 1161; Avery v. Alabama, 308 U.S. 444, 446, 60 S.Ct. 321, 84 L.Ed. 377 (1940) (“[T]he fact, standing alone, that a continuance has been denied, does not constitute a denial of the constitutional right to assistance of counsel.”); Chambers v. Maroney, 399 U.S. 42, 54, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). The Court also finds that trial counsel rendered effective assistance of counsel pursuant to the Strickland standard.
The Petitioner also claims that he received per se ineffective assistance of counsel due to Foster’s inexperience, Lindsay’s performance during the six months prior to the appointment of Belser, and Belser’s complete lack of preparation for trial. To the extent not already addressed above, these claims are discussed seriatim.
Regarding Foster’s alleged inexperience, Foster has appeared in this Court on numerous occasions and has represented many criminal defendants in felony cases. McFarland v. Scott, 512 U.S. 1256, 114 S.Ct. 2785, 129 L.Ed.2d 896 (1994). While this may have been his first federal death penalty case, that is not as compelling as Petitioner claims. See 18 U.S.C. § 3005 (“Whoever is indicted for [a] capital crime shall be allowed to make his full defense by counsel; and the court ... shall promptly, upon the defendant’s request, assign 2 such counsel, of whom at least 1 shall be learned in the law applicable to capital cases [.]”) (emphasis added). Lindsay is a seasoned capital litigator in both state and federal courts. United States v. Fields, 483 F.3d 313, 348 n. 32 (5th Cir.2007) (“Indeed, as a practical matter, state courts often are the only place that attorneys can gain significant capital experience.”). Moreover, the federal death penalty statute is quite young by comparison with the state statute. Id. In 14 years on the federal bench, the undersigned has presided over only three federal death penalty cases. It is thus not unusual that in the initial stages of this case, Lindsay had difficulty associating with other counsel who had federal capital experience. Nor does the fact that Foster lacked such experience render him ineffective; indeed, it may well be that the inexperienced lawyer is more cautious, less cynical, and more zealous. Cronic, 466 U.S. at 665, 104 S.Ct. 2039 (“Every experienced criminal defense attorney once tried his first criminal case.... The character of a particular lawyer’s experience may shed light in an evaluation of his actual performance, but it does not justify a presumption of ineffectiveness!.]”).
Moreover, while Foster may exude the persona of “Rumpole of the Bailey” and although the Petitioner may not have liked him, Foster was dogged and zealous in his representation of the Petitioner. Morris v. Slappy, 461 U.S. 1, 14, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983) (“[T]he Sixth Amendment [does not] guarantee! ] a ‘meaningful relationship’ between an accused and his counsel.”); accord, Plumlee v. Masto, 512 F.3d 1204 (9th Cir.), cert. denied, — U.S.—, 128 S.Ct. 2885, 171 L.Ed.2d 822 (2008); United States v. Mutuc, 349 F.3d 930, 934 (7th Cir.2003) (“The Sixth Amendment does not guarantee a friendly and happy attorney-client relationship. The fact that Fennerty and Mutuc did not get along does not translate into an inability of Fennerty to zealously defend his client!.] ... Mutual admiration societies are not constitutional guarantees and conclusory statements that Fennerty ‘took a dive’ shows antagonism toward the lawyer but, without more, does not show antagonism from the lawyer toward the client.” (citing Morris, 461 U.S. at 14, 103 S.Ct. 1610)); United States v. John Doe No. 1, 272 F.3d 116, 122 (2d Cir.2001); United States v. Burns, 990 F.2d 1426, 1437 (4th Cir.1993).
Foster is a bright attorney dedicated to pursuing the best defense available to his clients. His reputation for such representation is borne out by the pleadings he prepared in this case. Under Foster’s watch, the following were submitted for ruling on by this Court: (1) a motion for a ballistics expert, which was granted; (2) a motion for a crime scene investigator, which was denied as redundant based on the fact that the same services were to be performed by two other experts; (3) a motion for the appointment of a forensic pathologist, which was granted; (4) a motion for the appointment of a forensic anthropologist, which was denied; (5) a motion for the appointment of an expert in DNA analysis, which was denied without prejudice to renewal because the Government agreed to provide such analysis; (6) a motion for the appointment of an expert in mathematics, which was granted in part; (7) a motion for a forensic psychologist, which was granted; (8) a motion for a mitigation expert, which was granted; (9) a motion for the appointment of an expert on the issue of future dangerousness, which was granted; (10) a motion for the issuance of subpoenas, which was granted as to