United States v. Clark (382 F. Supp. 3d 1, 2019)

PAUL L. FRIEDMAN, United States District Judge

This matter is before the Court on defendant Floyd Clark's motion [Dkt. No. 114] to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, as amended by the supplement to defendant's motion [Dkt. No. 132]. The United States opposes the motion. Upon careful consideration of the parties' papers, the relevant legal authorities, the evidentiary hearing held on June 20, 2016, the motions hearing held on January 10, 2019, and the entire record in this case, the Court will deny Mr. Clark's motion [Dkt. No. 114] as to the claims of new evidence and ineffective assistance of counsel, and will hold the motion in abeyance with respect to the claim concerning the constitutionality of Mr. Clark's sentence under 18 U.S.C. § 924(c), as presented in Mr. Clark's supplement [Dkt. 132]. A separate Order giving effect to this opinion will issue this same day.

I. PROCEDURAL HISTORY

On May 6, 2009, two men carjacked, robbed, and kidnapped Michael Walker at gunpoint in Washington, D.C. On May 18, 2010, after hearing testimony from Mr. Walker, a grand jury returned a nine-count indictment charging defendant Floyd Clark in connection with the attack. The indictment included the following charges: one count of kidnapping, in violation of 18 U.S.C. § 1201(a)(1) ; two counts of using, carrying, possessing, or brandishing a firearm during a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) ; one count of carjacking, in violation of 18 U.S.C. § 2119(2) ; one count of carjacking while armed, in violation of D.C. Code §§ 22-2803 and 22-4502 ; two counts of possession of a firearm during the commission of a crime of violence, in violation of D.C. Code § 22-4504(b) ; one count of armed robbery, in violation of D.C. Code §§ 22-2801 and 22-4502 ; and one count of unlawful possession of a firearm by an individual under felony indictment, in violation of 18 U.S.C. § 922(n).

In December of 2010, Mr. Clark was tried on these charges before a jury in this Court. At trial, Mr. Walker testified that he and Mr. Clark were in the narcotics business together. According to Mr. Walker, Mr. Clark and another man abducted Mr. Walker, robbed him of valuable possessions, and hit him in the face with a gun. Mr. Clark and the other assailant demanded $ 150,000, physically restrained Mr. Walker, and took him to various locations in Washington, D.C. and Maryland in an unsuccessful attempt to procure the money. Mr. Walker was able to escape and call the police. See Dec. 8, 2010 Trial Tr. at 51-143. Mr. Walker's second assailant has never been identified.

Mr. Walker was the government's chief witness against Mr. Clark at trial - indeed, he was the only witness to provide direct evidence identifying Mr. Clark as one of the perpetrators of the attacks. On December 13, 2010, a jury convicted Mr. Clark on all counts of the indictment. See Verdict Form. The Court subsequently granted the United States' motion to vacate Mr. Clark's conviction on Count Four, one of the Section 924(c) counts. See Amended Judgement; Aug. 11, 2011 Sentencing Tr. at 29. On August 11, 2011, the Court sentenced Mr. Clark to an aggregate term of 284 months in prison, including a mandatory sentence of 84 months on the remaining 924(c) count, followed by five years of supervised release. See Judgment at 1-5; Aug. 11, 2011 Sentencing Tr. at 48. On May 16, 2014, the D.C. Circuit affirmed the convictions, except with respect to the sentence for the Section 924(c) conviction (Count Two), which was remanded to this Court for resentencing. See United States v. Clark, 565 F. App'x 4, 5 (D.C. Cir. 2014). On September 29, 2014, the Court resentenced Mr. Clark to 60 months in prison on the Section 924(c) conviction. See Sept. 29, 2014 Resentencing Tr. at 3-6; Amended Judgment at 3. Mr. Clark's new aggregate term of imprisonment was 260 months. See id. Mr. Clark appealed the resentence but later moved to dismiss his appeal, which motion the D.C. Circuit granted. See Notice of Appeal; Order Granting Voluntary Dismissal.

On April 2, 2015, Mr. Clark filed the initial pro se motion now before this Court, a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. See Section 2255 Mot. at 1, 4-6 [Dkt. No. 114]. The Court sua sponte determined that it was in the interest of justice to appoint counsel for Mr. Clark pursuant to 18 U.S.C. § 3006A. Order Appointing Counsel at 1. Thereafter, Mr. Clark's counsel replied to the government's opposition to the Section 2255 motion, see Section 2255 Second Reply, and also filed a June 2016 supplement to the Section 2255 motion that added a new claim, see Section 2255. Mot. Supp. at 1-2 [Dkt. No. 132]. As amended, Mr. Clark's motion asserts four total grounds for relief, three of which the Court resolves today. First, Mr. Clark argues that an August 1, 2014 affidavit from Mr. Walker recanting his trial testimony constitutes newly discovered evidence that the sentence was imposed in violation of the Constitution or laws of the United States or was otherwise subject to collateral attack. See Section 2255 Mot. at 4. Second, Mr. Clark argues that his trial counsel's failure to object to a sentencing enhancement for obstruction of justice, or his decision to withdraw that objection, constituted ineffective assistance of counsel in violation of the Sixth Amendment to the United States Constitution. See Sec. 2255 Mot. at 5. Third, Mr. Clark contends that the decision of his appellate counsel not to include the sentencing enhancement as a basis for appeal likewise constituted ineffective assistance of counsel. See Sec. 2255 Mot. at 6. These three claims were presented in Mr. Clark's initial pro se motion and are resolved by today's opinion and order. In the supplement to his initial motion, Mr. Clark also raises a fourth basis for relief, which must be deferred to another day: whether his sentence on Count Two for violating 18 U.S.C. § 924(c) is now unconstitutional following the Supreme Court's decisions in Johnson v. United States, --- U.S. ----, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), and Sessions v. Dimaya, 584 U.S. ----, 138 S.Ct. 1204, 200 L.Ed.2d 549 (2018). See Section 2255 Mot. Supp. at 1-2.

In March of 2016, the Court granted Mr. Clark's request for an evidentiary hearing on the Section 2255 motion. See March 1, 2016 Minute Order. Before the evidentiary hearing, however, Mr. Clark filed a motion to admit in evidence Mr. Walker's recanting affidavit under an exception to the rule against hearsay. See Hearsay Mot. at 1. Mr. Clark argued that, if Mr. Walker invoked his Fifth Amendment privilege against self-incrimination and refused to testify at the evidentiary hearing, Mr. Walker's affidavit should be admitted in lieu of his testimony as a statement against interest under Rule 804(b)(3) of the Federal Rules of Evidence. See id. at 2-3.

At the evidentiary hearing on June 20, 2016, Mr. Walker asserted his Fifth Amendment privilege against self-incrimination and refused to testify either to the substance of the recanting affidavit or the circumstances of its creation. The Court concluded that it lacked the power to grant Mr. Walker immunity for his testimony, and the government declined to offer him immunity. See June 20, 2016 Hr'g. Tr. at 25-33.

Following the evidentiary hearing, and upon consideration of the full record, the Court granted Mr. Clark's motion to admit Mr. Walker's recanting affidavit under Rule 804(b)(3) of the Federal Rules of Evidence. The Court found that the affidavit amounted to a statement against Mr. Walker's interest and that the circumstances under which the statement was made offered evidence of its reliability. See United States v. Clark, 325 F.Supp.3d 191 (D.D.C. 2018). In so doing, the Court offered no view on the truth of the statements contained within the recanting affidavit. That matter lies at the heart of the Section 2255 motion, which is now ripe for the Court's decision.

II. NEW EVIDENCE CLAIM: FACTUAL BACKGROUND

A. The Evidence at Trial

At trial, the government presented four lay witnesses who observed aspects of the crime: the victim Michael Walker, Yonata Kalbi, Christel Antoine, and Carmen Isler. The government also presented testimony from law enforcement personnel: Detective Elmer Baylor, Jr. of the Metropolitan Police Department of the District of Columbia ("MPD"), MPD Officers Michael DePrince and Tony Nwani, and FBI Special Agent Chad Fleming. Malcolm Drewery, a courtroom deputy clerk at the Superior Court of the District of Columbia, testified as an expert witness. The government also presented testimony from two women with whom Mr. Clark has children: Leslie Warner and Mercedy's [sic] Phillips. The defense did not offer any witnesses.

1. Michael Walker's Testimony

At trial, Michael Walker testified that he and Mr. Clark began selling crack cocaine together around August or September of 2008: Mr. Clark served as an intermediary between Mr. Walker and the street-level dealers, identifying purchasers and facilitating transactions. See Dec. 8, 2010 Trial Tr. at 57-61. Mr. Walker said that Mr. Clark called him on May 6, 2009 to suggest that they meet at a shopping center in Southeast Washington, D.C. to discuss a buyer interested in purchasing $ 30,000 of narcotics, a larger transaction than those Mr. Clark customarily facilitated for Mr. Walker. See id. at 65-67, 70. Mr. Walker drove his wife's car, a red 2008 Toyota Highlander, to Benco Shopping Center at East Capitol Street and Benning Road, S.E. See id. at 68-71, 96. When Mr. Walker arrived at the shopping center he received a call from Mr. Clark, who was using a phone number unfamiliar to Mr. Walker. Mr. Clark revised the meeting location to Queens Stroll, S.E., a nearby street formerly known as Drake Place. Id. at 61-62. Upon arriving there, Mr. Walker saw Mr. Clark standing beside a black SUV. Mr. Clark entered the front passenger seat of Mr. Walker's car, and Mr. Walker then received another call from the unfamiliar phone number. Mr. Clark explained that it was the prospective buyer of drugs, who had been waiting in the black SUV.

Shortly thereafter, Mr. Walker testified, the prospective buyer entered the rear seat of Mr. Walker's car. See Dec. 8, 2010 Trial Tr. at 74-76. When Mr. Walker questioned Mr. Clark about the prospective buyer, Mr. Clark pulled a large chrome semiautomatic gun from under his shirt and told Mr. Walker, "you know what time it is." See id. at 78-83. Mr. Clark ordered Mr. Walker into the rear seat of the Toyota Highlander, and the prospective buyer drove the car to a nearby alley. There, Mr. Clark tore Mr. Walker's gold chain from his neck and took his watch, money, and wallet. Mr. Clark attempted to place a bag over Mr. Walker's head, which Mr. Walker specifically identified as a "Downtown Locker Room Bag." Id. at 82. Mr. Walker refused to comply. A police officer later testified that he recovered certain articles consistent with this account from the 2008 Red Toyota Highlander belonging to Mr. Walker's wife. See Part II.A.3, infra.

Mr. Walker further testified that, after Mr. Clark and the other man robbed him, the two assailants began demanding substantial sums of money from Mr. Walker - about $ 150,000. See Dec. 8, 2010 Trial Tr. at 81-83. While Mr. Clark held Mr. Walker at gunpoint in the rear seat of the Highlander, the other man drove Mr. Walker's car to various locations where they suspected Mr. Walker was keeping money. See Dec. 8, 2010 Trial Tr. at 83-104. Believing that Mr. Walker must keep money in a safe at his home, the men first drove to Mr. Walker's house in Southeast Washington. Upon arriving there, Mr. Walker saw his wife at the door watching his young nephew play in the yard. See id. at 83-84. Mr. Walker attempted to dissuade the men from entering his home by stating that a police officer lived next door (he testified at trial that an officer owned the property but did not live there). When Mr. Clark continued to threaten entry, Mr. Walker explained that his safe sat on the back porch, rather than inside the house. Id. at 85-86. As the three men drove around the block to another parking lot, Mr. Clark threatened to kill Mr. Walker's wife if the safe did not contain sufficient money. Knowing that the safe contained no money, Mr. Walker "switched up" his story again to claim that he had money at a nearby bank. Mr. Clark refused to go to the bank for fear of being caught, saying "I know what you trying to do." See id. at 84-86.

Next, Mr. Walker testified, the two assailants drove him to another parking lot. Mr. Walker attempted to escape from the car, but Mr. Clark struck him with his gun above the left eye, causing substantial bleeding. Mr. Walker testified that Mr. Clark also hit him on the knee, forced him to lie down on the floor between the back seat and the front seat, and pinned him down with the seat in a way that prevented any movement. See Dec. 8, 2010 Trial Tr. at 86-89. In substantial pain, Mr. Walker told his assailants that he had money stored in a private unit at a storage facility on Kenilworth Avenue in Bladensburg, Maryland, and that he would give them $ 75,000 of the $ 125,000 he had stored there. At trial, Mr. Walker indicated that this too was a ruse: the facility came to mind because a family member had a unit at a nearby U-Haul facility, but Mr. Walker did not have a unit at the storage facility or otherwise have access to money there. Even so, Mr. Clark directed the other assailant to drive to the storage facility. Id. at 89-90.

Mr. Walker warned his assailants that entering the facility with his face covered in blood was likely to arouse suspicion, so he requested that they "clean [him] up." Dec. 8, 2010 Trial Tr. at 90-91. At this request, Mr. Walker heard Mr. Clark and the other man discussing a stop at 7-Eleven or CVS to get bandages and water. The car stopped and at least one person got out, though Mr. Walker was still pinned to the floor of the car and could not see directly. Id. at 91-93. Another witness, an employee of a 7-Eleven in the area of the attack, later offered testimony that also speaks to this portion of the events. See Part II.A.2, infra.

Mr. Walker further testified that, after the stop at 7-Eleven, the assailants drove him to a storage facility on Kenilworth Avenue in Bladensburg, Maryland. Mr. Walker's testimony describes the location variously as a U-Haul or U-Storage facility. See Dec. 8, 2010 Trial Tr. at 89, 94. There, the assailants allowed Mr. Walker to sit up in the back seat of the car. According to Mr. Walker, Mr. Clark wiped Mr. Walker's face with water to clean off blood, bandaged his head, and "said he was sorry." Id. at 95. Mr. Clark gave one of his own shirts to Mr. Walker because Mr. Walker's shirt was stained with blood. See id. After Mr. Clark bandaged his head, Mr. Walker asked to sit and collect himself for several minutes because his ankle was hurting after being pinned down. He testified that, in reality, he was planning to escape from his assailants on foot. Id. at 95-96. Mr. Walker was permitted to rest for about ten minutes, after which Mr. Clark and Mr. Walker exited the car and went into the office of the storage facility. Id. at 97.

Mr. Walker testified that, once inside the office of the storage facility, he and Mr. Clark encountered a young woman at the desk. Mr. Walker told her that he wanted access to his storage unit and identified himself using his real name. Dec 8, 2010 Trial Tr. at 98. When the woman told Mr. Walker that no unit was rented to someone of his name, Mr. Walker fabricated an explanation to Mr. Clark: that he had a private "off-the-books" storage unit, and that only an employee named Pat could open it. See id. at 100. Continuing his attempt to deceive Mr. Clark, Mr. Walker asked when the next shift would begin, but the woman indicated she was working the day's final shift and that no one else would be working that day. As the two men were leaving the office, Mr. Clark asked the desk attendant if anyone named "Pat" was actually an employee at the U-Store facility; Mr. Walker believes the attendant said no. See id. at 100. Another witness, the storage facility desk attendant, later offered testimony about this portion of the events. See Part II.A.2, infra.

As Mr. Clark and Mr. Walker exited the office, Mr. Walker ran across Kenilworth Avenue to an apartment complex called Kenilworth Towers. He entered the complex's office and asked a person working there if he could use the phone. Mr. Walker testified that he called the police but hung up immediately in order to call his wife and instruct her to lock the doors of their home, fearing that his assailants would return to his house. He called 911 again, and shortly thereafter the police and an ambulance arrived and took Mr. Walker to the hospital. See Dec. 8, 2010 Trial Tr. at 103-04. A resident manager at Kenilworth Towers later offered testimony concerning Mr. Walker's conduct at the apartment complex. See Part II.A.2, infra.

Mr. Walker testified that, when the police first arrived at Kenilworth Towers Apartments on the day of the attack, he spoke with Detective Elmer Baylor, Jr. of the Metropolitan Police Department of the District of Columbia. See Dec. 8, 2010 Trial Tr. at 104, He initially told Detective Baylor that he had been abducted near "51st and Fitch Streets." See id. at 132; see also Dec. 9, 2010 Trial Tr. at 197; Defense Ex. 4 (stipulating the placement of a surveillance camera "at 51st and Fitch Streets, Southeast"). He described his two assailants but stated that he did not know their identities. See Dec. 8, 2010 Trial Tr. at 132. Later, Mr. Walker revised the location of his abduction and told the prosecutor and the detectives that he did in fact know one of the assailants, whom he identified as someone named "Floyd." See id. at 106. Mr. Walker testified that he eventually learned "Floyd's" last name through a Department of Public Works employee who worked at the impound lot where the Red 2008 Toyota Highlander was impounded after the attack. See id. at 107-08, 132-33. Based on the first and last name given by Mr. Walker, police showed Mr. Walker a single photo of Floyd Clark. See id. at 108. Mr. Walker confirmed that the man depicted in the photograph - the defendant - was one of his two assailants.

At trial, Mr. Walker explained that he professed ignorance of his attacker's identity in his initial report to the police because he had planned to kill Mr. Clark. He discarded this plan and decided to identify Mr. Clark to the police after speaking to his wife. See Dec 8, 2010 Trial Tr. at 105. Mr. Walker admitted at trial that he had lied to the police during his initial encounter when he denied knowing his attacker. See id. at 139. Shortly thereafter, however, he testified that "Actually, I never lied. I don't feel I lied." See id.

After he identified Mr. Clark to the police, Mr. Walker testified before a grand jury. Dec. 8, 2010 Trial Tr. at 125 (discussing Government Exhibit 1). Although Mr. Walker testified at trial pursuant to an agreement immunizing him from prosecution for certain crimes, no such agreement was in place at the time of his grand jury testimony concerning the crimes. See id. at 126-31. Following Mr. Walker's testimony, the grand jury indicted Mr. Clark.

2. Testimony of Lay Witnesses

Yonata Kalbi, Christel Antoine, and Carmen Isler observed Mr. Walker and another man on May 9, 2010. Although none of them identified Mr. Clark, their testimony corroborated certain other aspects of Mr. Walker's description of the attack.

Mr. Yonata Kalbi, the store manager of a 7-Eleven, testified that he was working at the cash register of a 7-Eleven located at 4199 Kenilworth Avenue in Bladensburg, Maryland on May 6, 2009. See Dec. 8, 2010 Trial Tr. at 150-53. Mr. Kalbi testified that on that day a man came into the store who appeared to be in a hurry: He came directly to the register and tried to cut the line. The man bought a box of bandages and left without his change. See id. at 154, 156-57, 170. Mr. Kalbi provided video surveillance footage taken during this interaction to the police a few days later. See id. at 161-63. At trial, Mr. Kalbi reviewed the surveillance footage and still frame images taken from it. He identified himself and pointed out the man who bought bandages. See Dec. 8, 2010 Trial Tr. at 159-61 (citing Gov't Ex. 66). Mr. Kalbi further testified that the man in the surveillance footage "looks like" the man who bought bandages on May 6, 2009. See id. at 163-67 (discussing Gov't Ex. 7). At trial, Mr. Kalbi was not asked to identify Mr. Clark as the man who bought the bandages.

Ms. Christel Antoine worked at the Kenilworth Avenue U-Store facility on May 6, 2009. That day, two men entered her store who were acting "unusual," in that they did not come straight to the counter and did not make eye contact with Ms. Antoine at first. See Dec. 9, 2010 Trial Tr. at 11. One man was wearing a hat but the other was not. See id. at 13. The man without the hat asked her to access an account for "Michael," which is Mr. Walker's first name. See id. at 13, 16. Ms. Antoine responded that the system did not have a unit belonging to someone of that name. See id. at 14. The man with the hat seemed agitated during the exchange, and the two men began to leave. See id. at 17. The man with the hat returned to ask if someone named "Pat" worked there, and Ms. Antoine said no. See id. at 18. After the man with the hat left the U-Store, the man without the hat started to run across the street toward Kenilworth Towers, and a red car picked up the man with the hat. See id. at 18-19.

A detective showed a photo array to Ms. Antoine and asked her to identify anyone who looked familiar. See Dec. 9, 2010 Trial Tr. at 19-20. She testified that she "got a better look" at the man without the hat because he had made eye contact with her when asking for the storage unit. See id. at 20-21. She explained that the two men looked like brothers. See id. at 22. She selected one photograph, No. 6, but could not determine precisely which one of the men it depicted - she thought it looked like the man without the hat. See id. at 22-23. A police witness later confirmed that the photo array contained a picture of Mr. Clark, but that the photograph Ms. Antoine selected was not Mr. Clark's photo. See id. at 146. In fact, the individual Ms. Antoine selected was incarcerated at the time that the two men visited the U-Store. See id. at 146-49.

At trial, Ms. Antoine identified herself in the video surveillance footage from the U-Store. See Dec. 9, 2010 Trial Tr. at 23-26 (citing Gov't Ex. 8). She also pointed out the man without the hat who asked about a unit belonging to "Michael," as well as the man with the hat who came back in to ask if "Pat" worked there. See id. at 31-32. She was not asked to identify either man in the video as Mr. Clark.

Ms. Carmen Isler was the resident manager of Kenilworth Apartments across Kenilworth Avenue from the U-Store. See Dec. 8, 2010 Trial Tr. at 174-75, 177-78. At trial, she testified that on May 6, 2009, a man with a bandage on his forehead walked into the office looking "nervous." See id. at 179-80. He was talking about "a car or something." See id. at 182. He made a call to the police, and possibly more calls, using the courtesy phone. See id. at 183. The police arrived a short time later. See id. at 183.

3. Circumstantial Evidence

Mr. Walker offered the only direct evidence implicating Mr. Clark as one of the perpetrators of the crimes. The government argued, however, that additional facts constituted circumstantial evidence of Mr. Clark's guilt, most notably Mr. Clark's refusal to comply with two court orders requiring him to submit to DNA tests and hair samples and his purported efforts to evade arrest for the attack of Mr. Walker.

a. Physical Evidence and Refusal of DNA Sample

Officer Michael DePrince of the Metropolitan Police Department was a member of the mobile crime scene unit on May 6, 2009. Dec. 9, 2010 Trial Tr. at 104. He processed a red 2008 Toyota Highlander belonging to Mr. Walker's wife, from which he recovered a number of items: a plastic bag from Downtown Locker Room, see id. at 111 (citing Gov't Ex. 4); a gold-colored metal link, see id. at 113-14 (citing Gov't Ex. 6); a shirt from the rear drivers' side of the car that appeared to be stained with dried blood, see id. at 103, 106-07 (discussing Gov't Ex. 1); a car's floor mat, stained with what appeared to be dried blood, see id. at 108-09 (discussing Gov't Ex. 2); a box of Band-Aid brand bandages, see id. at 110-11 (discussing Gov't Ex. 3); and a Deer Park brand plastic water bottle from the rear seat, see id. at 112-13. Officer DePrince was not able to recover any usable fingerprints from the car, id. at 114, but he did collect "trace evidence" that could be tested for DNA, including skin cells, fibers, and hairs, see id. at 104.

Special Agent Chad Fleming of the Federal Bureau of Investigation's Violent Crime Task Force testified that his unit was responsible for investigating certain robberies, kidnappings, and wanted fugitives in Washington, D.C. and for booking certain arrestees. Beginning in early 2010, arrestees processed at the FBI's Washington Field Office had their fingerprints taken and were given a buccal swab (a sample of the cells from the cheek or mouth) to collect DNA for forensic analysis. See Dec. 8, 2010 Trial Tr. at 185-87. Special Agent Fleming helped to process the arrest of Mr. Clark on April 20, 2010, at which time he took fingerprints and a buccal swab from Mr. Clark. See id. at 185-86, 192-94. Mr. Clark agreed to provide the samples, though it "took a little convincing" from Special Agent Fleming. Id. at 192.

Officer Tony Nwani of the Metropolitan Police Department worked on forensics for the MPD mobile crime lab. See Dec. 8, 2010 Trial Tr. at 205. Several months after Mr. Clark's arrest, Officer Nwani met with Mr. Clark to attempt to collect further samples. He first attempted to collect DNA and hair samples from Mr. Clark on September 3, 2010. See id. at 207-08. Officer Nwani showed Mr. Clark an August 30, 2010 order of this Court that authorized collection of the samples. See id. at 209-10; see also DNA Order (indicating that the order was signed on August 30, 2010 and filed on August 31, 2010). The order does not have a seal or long-form signature; instead, the order issued from "Paul L. Friedman, United States District Judge," immediately above which appear the characters "/s/". See id. at 225-31. Mr. Clark refused to provide DNA and hair samples, noting that he had previously given a saliva swab and head hair. See id. at 208.

At trial, the parties stipulated that a hearing was held on September 16, 2010. At the hearing, the parties stipulated, the Court advised Mr. Clark that its August 30, 2010 order requiring provision of DNA samples was valid but that the Court would nevertheless re-issue a certified copy of that order. The parties further stipulated that Mr. Clark was told during the hearing that he risked prosecution and incarceration if he failed to provide DNA and hair samples. See Dec. 8, 2010 Trial Tr. at 228-229.

Officer Nwani testified that he made another attempt to collect samples from Mr. Clark on October 7, 2010, during which Mr. Clark's counsel was present. See Dec. 8, 2010 Trial Tr. at 213. Officer Nwani presented the re-issued order authorizing the collection. See id. at 213-14, 220 (referring to Gov't Ex. 11). The order features the Court's long-form signature, rendered in handwriting script. See id. at 225-26. Through counsel, Mr. Clark again refused to provide DNA or a hair sample. See id. at 218-19 (citing Gov't Ex. 12, Refusal Form).

At a pre-trial hearing on October 18, 2010, the Court held Mr. Clark in contempt of court and ordered him to be incarcerated until he complied with the order to provide samples, or until he faced trial. See Contempt Order at 1-2. Mr. Clark never provided the samples, and contempt was lifted only on December 8, 2010 at the commencement of trial. December 8, 2010 Minute Entry. As a consequence, Mr. Clark did not receive a time served deduction from his sentence for the 49 days he served while in contempt of court. See Defendant's First Memorandum in Aid of Sentencing at 3-4; Aug. 11, 2011 Sentencing Tr. at 30-31.

b. Purported Efforts to Evade Arrest

Mr. Malcom Drewery, a courtroom deputy clerk in the Superior Court of the District of Columbia, testified as an expert witness that defendants in the Superior Court receive oral and written notice of court appearances and are warned of the penalties for failing to appear. See Dec. 9, 2010 Trial Tr. at 82-83. Mr. Drewery testified that Mr. Clark appeared as required in the Superior Court for charges on felony case number 2008 CF212922, which is unrelated to the instant case, from June 2008 to April 2009. He failed to appear, however, for a June 15, 2009 trial in that case. See id. at 85-94 (citing Gov't Ex. 19, a copy of the court file 2008 CF2012922).

Ms. Leslie Warner is the mother of one of Mr. Clark's children. See Dec. 9, 2010 Trial Tr. at 38. Ms. Warner testified that she saw Mr. Clark in the spring of 2009. Mr. Clark told her that he was moving to Georgia without specific explanation, but Ms. Warner testified that Mr. Clark had "always talked about Georgia," had suggested he needed to take care of some business there, and had indicated that members of his family lived there. See id. at 43-44, 58, 69. In 2008, Ms. Warner testified, Mr. Walker was using a phone number with area code 404, a Georgia area code. Id. at 59. When he left for Georgia, Mr. Clark promised Ms. Warner that he would return for the birth of their son, but he was not present for the birth on July 26, 2009. See id. at 38. He returned in the fall of 2009 and borrowed Ms. Warner's car. Ms. Warner testified that, one day, Mr. Clark failed to pick her up from work as promised, instead accusing her of sending the police after him. Mr. Clark abandoned the car, and when Ms. Warner recovered it police approached her to ask about Mr. Clark. Id. at 46-51.

Ms. Mercedy's [sic] Phillips is the mother of two of Mr. Clark's children. See Dec. 9, 2010 Trial Tr. at 69. She is a corrections officer. See id. She has known Mr. Clark for many years and told police that she communicated with Mr. Clark on a phone number beginning with area code 404. See id. at 71-73; see also id. at 59 (indicating that 404 is a Georgia area code). Ms. Phillips ended her romantic relationship with Mr. Clark in May 2008. See id. at 74.

Detective Elmer Baylor, Jr. of the Metropolitan Police Department testified that he suspected that Mr. Walker was lying during their initial encounter, during which Mr. Walker claimed that he did not know who attacked him. See Dec. 9, 2010 Trial Tr. at 193-95. Once Mr. Walker identified Floyd Clark as one of his assailants, Detective Baylor attempted without success during the spring and summer of 2009 to locate Mr. Clark and arrest him. See Dec. 9, 2010 Trial Tr. at 152-54. On October 14, 2009, Detective Baylor received a tip that Mr. Clark was in the Washington, D.C. area. See id. at 156. Detective Baylor went to Ms. Warner's residence in Bowie, Maryland, where he saw her SUV and set up surveillance that night. See id. at 157. Detective Baylor began tailing the SUV the next day after he received a tip from a team member that Mr. Clark may have been driving it. See id. at 160. He determined that Mr. Clark was not driving the SUV but noticed a second person in the passenger seat with the seat all the way down. See id. at 161. When Officer Baylor made eye contact with the driver, he "abruptly" pulled off the street and onto another course. Id.

Detective Baylor tried to follow the SUV but lost sight of it. See Dec. 9, 2010 Trial Tr. at 161. He soon found the car "abandoned" on North Capitol Street between V Street and Rhode Island Avenue. See id. at 162. Mr. Clark returned to the SUV about two hours later. He saw a man who resembled the image of Floyd Clark. See id. at 163-64. Detective Baylor called for backup in order to arrest Mr. Clark, but lost sight of him again. See id. at 165-66. When Leslie Warner later entered the SUV, police officers approached and asked about Mr. Clark. See id. at 166.

The government offered photographs of the location where the SUV was found and a demonstrative exhibit tracking the route of the SUV. See id. at 166-68 (discussing Gov't Exs. 31 and 32). The government also offered Exhibits 21 and 22, pictures of Mr. Clark from 2009. See id. at 190-91. Finally, the government introduced Exhibit 13, AT & T phone records from Mr. Clark's account for a phone number with area code 404, a Georgia area code.

B. The Recanting Affidavit

Mr. Clark filed the instant Section 2255 motion pro se on April 2, 2015, more than four years after his conviction at trial. The first ground cited for vacating his sentence was newly discovered evidence: an August 2014 letter to Mr. Clark from Ronetta Johnson, Chief Investigator at Above and Beyond Investigating, LLC, containing a witness statement from Mr. Walker. The statement was handwritten in black ink by Ms. Johnson, amended in several respects by Mr. Walker in blue ink, and signed on each page by Mr. Walker in blue ink and Ms. Johnson, as witness, in black ink. The final page of the statement contains a certification that Mr. Walker had read the statement and that "this statement is true, correct, and complete to the best of my knowledge," below which is Mr. Walker's signature in blue ink. See Recanting Affidavit at 12. Ms. Johnson signed as witness in black ink, and the statement is notarized. Id.

Mr. Walker's statement recants the central aspect of his trial testimony: his identification of Mr. Clark as one of the two men who attacked him on May 6, 2009. In the affidavit Mr. Walker says that, in fact, he "did not know who" committed the crimes against him, and that he said as much to the police when they arrived at Kenilworth Towers shortly after his escape.

See Recanting Affidavit at 4. The recanting affidavit explains that "I changed my story to the police and named Floyd because I wanted to seek revenge against him because I was mad since finding out about an allegation that he was having an [sic] sexual encounter with my wife...." Id. at 4-5. The affidavit contains a second motive as well: Mr. Walker alleges that

the police encouraged me to come up with a story and gave me a couple of days to do so. I made up a lot of details to make the story sound believable that Floyd was the suspect. I was being threatened by the police to help them make a case. I was on probation, so the police told me that they could see to it that my judge revoked my probation....

Id. at 6-7. Mr. Walker did not elaborate on which of the "many details" he made up, but the affidavit is unambiguous in its primary thrust: "I know for a fact that Floyd did not commit any crimes at all against me." See id. at 10. In explaining why he later decided to recant his trial testimony, Mr. Walker remarked that he

felt bad since Floyd was convicted but I could not change my story since going to the grand jury.... Once I found out that Floyd really did not sleep with my wife, I wanted to correct this wrong but was scared to do so. I have told my wife that I was going to make it right, which is why I am coming forward now.

See Recanting Affidavit at 10-12.

Shortly before the evidentiary hearing on Mr. Clark's Section 2255 motion, Mr. Clark filed a motion to admit the affidavit itself in evidence, anticipating that Mr. Walker might decline to testify at the hearing. See Hearsay Mot. at 2.

C. The Evidentiary Hearing

On June 20, 2016, the Court held an evidentiary hearing on the Section 2255 motion and heard oral argument on Mr. Clark's motion to admit hearsay. As Mr. Clark anticipated, Mr. Walker invoked his Fifth Amendment privilege against self-incrimination and refused to answer questions about his purported recantation for fear that doing so could expose him to criminal liability for perjury. See June 20, 2016 Hr'g Tr. at 10-12, 21-25. The Court concluded that Mr. Walker properly invoked the privilege as to both the substance of the recantation and the circumstances surrounding his decision to sign the affidavit. See id. at 16-18, 25-26. The Court determined that it lacked authority to grant use immunity to Mr. Walker absent a request from the United States, a request the government refused to make. See United States v. Clark, 325 F.Supp.3d 191, 194 (D.D.C. 2018) ; June 20, 2016 Hr'g Tr. at 28, 32-33. The Court then heard testimony from three witnesses regarding the affidavit and regarding Mr. Walker's statements to them concerning the affidavit.

Ms. Ronetta Johnson, Chief Investigator at Above and Beyond Investigations, LLC, testified that one of Mr. Clark's family members contacted her to indicate that Mr. Walker was willing to speak to her about Mr. Clark's case. See June 20, 2016 Hr'g Tr. at 36-38, 44-45, 49. Soon thereafter, on August 1, 2014, Mr. Walker came to her office for an interview. Ms. Johnson testified that she drafted the recanting affidavit for Mr. Walker based on their conversation, after which Mr. Walker reviewed the statement, made revisions, and signed each page. Ms. Johnson stated that she did not suggest any changes to Mr. Walker, that he signed the affidavit voluntarily, and that she gave no advice concerning the expiration of any statute of limitations for perjury. Ms. Johnson further testified that she had the affidavit notarized that same day by a notary in her office building. See United States v. Clark, 325 F.Supp.3d at 197. See also June 20, 2016 Hr'g Tr. at 36-52.

Mr. Michael Hailey, supervisor of the Witness Security Section of the U.S. Attorney's Office for the District of Columbia, testified that Mr. Walker called the U.S. Attorney's Office in February of 2015 to express concerns for his safety. Mr. Walker said that a friend of Mr. Clark's had approached Mr. Walker in a barbershop and told him that Mr. Clark's case was "up for appeal" and that Mr. Walker could change his story. Mr. Hailey further testified that, during their meeting, Mr. Walker said that the investigator visited his home to take a statement and that the investigator advised Mr. Walker on the statute of limitations for perjury. Mr. Hailey testified that, by Mr. Walker's account, he read and signed the recantation drafted by the investigator "knowing that what he had signed was not the truth." United States v. Clark, 325 F.Supp.3d at 194-95. See also June 20, 2016 Hr'g Tr. at 57-62.

Mr. Tommy Miller, lead criminal investigator for the Criminal Investigations and Intelligence Unit of the U.S. Attorney's Office for the District of Columbia, testified that he met on June 15, 2016 with Mr. Walker, Mr. Walker's counsel, and Assistant U.S. Attorney James Sweeney. Mr. Miller testified about Mr. Walker's comments on the affidavit in that meeting: that the affidavit reflected "the investigator's words, not [Mr. Walker's];" that "[t]he investigator wrote [the statement] on her own" without information from Mr. Walker; and that Mr. Walker signed the statement written by the investigator without reading it. According to Mr. Miller, Mr. Walker explained in the June 2016 meeting that his recanting affidavit was false and that it was indeed Mr. Clark who had attacked him on May 6, 2009. Mr. Walker said that he signed the affidavit because he wanted leniency for Mr. Clark and did not want him to serve any additional time. United States v. Clark, 325 F.Supp.3d at 195. See also June 20, 2016 Hr'g Tr. at 73-78.

The Court decided to admit the affidavit under the hearsay exception for statements against interest made by unavailable declarants that are supported by corroborating circumstances indicating their trustworthiness. United States v. Clark, 325 F.Supp.3d at 198 (citing FED. R. CIV. P. 804(b)(3)). In so ruling, however, the Court emphasized that its decision to admit the affidavit did not constitute a finding that Mr. Walker's affidavit is more credible than his trial testimony or more credible than what he told the two representatives of the U.S. Attorney's Office. See id. at 196. Nor did the Court need to decide whether to credit Ms. Johnson's testimony or the testimony of Mr. Hailey and Mr. Miller regarding the conversations they had with Mr. Walker, or whether the recanting affidavit is sufficiently persuasive to entitle Mr. Clark to Section 2255 relief. See id. For the reasons described in the Court's opinion of September 18, 2018, the affidavit was supported by corroboration sufficient to admit it under Rule 804(b)(3), as were Mr. Walker's statements to Mr. Hailey and Mr. Miller. See United States v. Clark, 325 F.Supp.3d at 198. In deciding to admit the affidavit, the Court specifically reserved the central questions for later resolution: the question of "the truth of what is asserted by [Mr. Walker's] hearsay statement[ ], the credibility of witnesses, and the weight to be accorded evidence." See id. The Court now turns to these questions.

III. NEW EVIDENCE CLAIM: ANALYSIS

A. Legal Standard

1. Standards for Rule 33 New Trial Motions and Section 2255 Collateral Attacks

The parties' papers raise the possibility that Mr. Clark's Section 2255 motion may be time-barred. See Section 2255 Opp'n at 10, n. 3; Section 2255 Second Reply at 14-15. It is not. Rule 33 of the Federal Rules of Criminal Procedure provides that a court may vacate a judgment and grant a new trial "if the interest of justice so requires." FED. R. CRIM. P. 33(a). The Rule also provides that "[a]ny motion for a new trial grounded on newly discovered evidence must be filed within 3 years after the verdict or finding of guilty." FED. R. CRIM. P. 33(b)(1). Mr. Clark was found guilty in December of 2010 and filed the instant motion - which relies in part on claims of new evidence (the recanting affidavit) - in April of 2015. If the Rule 33 time limit applies, therefore, Mr. Clark's new evidence claim is time-barred. By contrast, Section 2255 motions must be filed within a one-year period that begins to run, as relevant here, on "the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence." 28 U.S.C. § 2255(f)(4). It can be inferred from Ms. Johnson's testimony that she first became aware of Mr. Walker's possible recantation only shortly before she met with him on August 1, 2014, and Mr. Clark only received Mr. Walker's affidavit in August of 2014. He filed the instant motion in April of 2015, well within the one year allowed by Section 2255. The United States does not affirmatively argue that the Rule 33 time bar must apply. See Section 2255 Opp'n at 10, n. 3. And, indeed, the Rule 33 time limit does not bar Mr. Walker's petition.

One early D.C. Circuit case suggests that Section 2255 motions based on the recantation of a witness's trial testimony may be subject to the Rule 33 three-year time limit. In United States v. Kearney, 682 F.2d 214, 218-19 (D.C. Cir. 1982), the court of appeals - without elaboration - characterized a defendant's Section 2255 motion as "basically a motion for a new trial based on newly discovered evidence filed pursuant to Fed. R. Crim. P. 33." The court noted that the motion was "not filed in the timely fashion as required by that rule," but found it "not necessary to rely on [the Rule 33 time bar]" to deny the motion because it affirmed the District Court's denial of the Section 2255 motion on its merits. Id. See also United States v. Fields, 2006 WL 148739, *2, 2006 U.S. Dist. LEXIS 2849, *5-6 (D.D.C. Jan. 18, 2006) (finding that defendant's Section 2255 motion based on recantations was time-barred under Rule 33, apparently because Rule 33 by its terms broadly embraces "any motion for a new trial grounded on newly discovered evidence") (quoting FED. R. CRIM. P. 33 ). Neither Kearney nor Fields offers an explanation for why the Rule 33 limitations period should be superimposed onto Section 2255 motions.

Despite its observation in Kearney, the D.C. Circuit has never required application of the Rule 33 time bar to Section 2255 motions. Indeed, it would seem inappropriate to do so, as the differing purposes of Rule 33 and Section 2255 counsel against imposing the Rule 33 time limit on colorable Section 2255 claims. Although the two mechanisms have substantial overlap, Rule 33 is clearly a step in the criminal proceeding, while Section 2255 is "arguably an independent civil action." 3 CHARLES A. WRIGHT & SARAH N. WELLING , FED. PRAC. & PROC. CRIM. § 591 (4th ed. 2011). Rule 33 predated Section 2255 and contains broader grounds for relief: whenever the "interest of justice" requires. See id. Rule 33 was originally intended to correct "certain problems ... involved in the ending of a term of court and the start of another." See Duggins v. United States, 240 F.2d 479, 483 (6th Cir. 1957). "It was not [ Rule 33 's] purpose to meet the problems involved in habeas corpus proceedings or a collateral attack upon a judgment." Id. Conversely, it is those very proceedings and attacks with which Section 2255 is concerned. A proceeding under 28 U.S.C. § 2255 is "an independent and collateral inquiry into the validity of the conviction." Rubenstein v. United States, 227 F.2d 638, 642 (10th Cir. 1955). Such an independent inquiry appropriately commands a limitations period different from the period governing direct attack of the judgment. Current practice cautions against recharacterizing Section 2255 and Rule 33 motions without granting movants the opportunity to amend. See 3 WRIGHT & WELLING § 591. The substance of the grounds for relief determine whether a motion should be considered under Rule 33 or Section 2255. Id.

In short, Rule 33 and Section 2255 offer different mechanisms of relief for different kinds of claims. "Constitutional challenges to a conviction arising from conduct at trial ... are generally brought pursuant to § 2255." United States v. Campbell, 2004 WL 5332322, at *2, 2004 Lexis 30260, at *5-6 (D.D.C. Aug. 23, 2004) (quotations omitted). That is precisely the type of challenge that Mr. Clark purports to assert: "a Fifth Amendment Claim that he has been deprived of his liberty without due process of law based upon the recantation of the testimony of the only witness who directly incriminated him at trial." See Section 2255 Second Reply at 15. In United States v. Campbell, Judge Hogan faced the similar question of whether to apply the Rule 33 time bar to a claim styled as a Section 2255 motion. The motion argued a potential violation of prosecutors' constitutional obligation to disclose exculpatory evidence. See United States v. Campbell, 2004 WL 5332322, at *1, 2004 Lexis 30260, at *1. The court opted to "construe the motion as one brought pursuant to 28 U.S.C. § 2255." Id. at *2, 2004 Lexis 30260, at *5-6. That is because "[m]otions nominally under a Rule of Criminal Procedure, but raising arguments within the scope of § 2255, must be treated as collateral attacks." Id. (quoting United States v. Canino, 212 F.3d 383, 384 (7th Cir. 2000) ). Mr. Clark has characterized his motion as a Section 2255 motion, and that description is appropriate in light of the relief sought. The Court will not apply the Rule 33 time bar to the motion.

2. Section 2255 Motions Based on New Evidence of Recantations

Under 28 U.S.C. § 2255, a federal prisoner may move to vacate, set aside, or correct a sentence that was "imposed in violation of the Constitution or laws of the United States, ... [or] was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). "The circumstances under which such a motion will be granted, however, are limited in light of the premium placed on the finality of judgments and the opportunities prisoners have to raise most of their objections during trial or on direct appeal." United States v. Henry, 821 F.Supp.2d 249, 253 (D.D.C. 2011). Furthermore, "the recognized difficulties imposed on the government in re-prosecuting criminal cases long after" the relevant events must be balanced against granting new trials. United States v. Kearney, 682 F.2d at 219. Section 2255 is "not a substitute for direct appeal, so petitioner must show a good deal more than would be sufficient [to warrant relief] on a direct appeal." United States v. Mahdi, 172 F.Supp.3d 57, 63 (D.D.C. 2016) (quoting United States v. Pollard, 959 F.2d 1011, 1020 (D.C. Cir. 1992) ); see also United States v. Henry, 821 F.Supp.2d at 253.

This showing is particularly important for Section 2255 motions premised on recantations. Of course, courts must give due consideration to any colorable claim based on recanted testimony, "out of a concern for the possibility that the integrity of the trial's truth-finding function was compromised through a fraud on the Court." See Avalos v. United States, 2014 WL 12709022 at *2 (E.D. Va., Aug. 19, 2014). Even so, "[i]n this Circuit, recanting affidavits and witnesses are looked upon with the utmost suspicion by the courts." United States v. Mahdi, 172 F.Supp.3d at 68 (quoting United States v. Kearney, 682 F.2d at 219 ). Recantations attract suspicion from courts because, where a trial witness later recants sworn testimony, "the witness is either lying now, was lying then, or lied both times." See United States v. Earles, 983 F.Supp. 1236, 1239 (N.D. Iowa 1997). The "stability and finality of verdicts would be greatly disturbed if courts were too ready to entertain testimony from witnesses who have changed their minds, or who claim to have lied at the trial." Id. at 1248 (quoting United States v. Grey Bear, 116 F.3d 349, 350 (8th Cir. 1997) ). In fact, a motion for a new trial based on this kind of evidence often may be decided on the record alone, without an evidentiary hearing. See United States v. Kearney, 682 F.2d at 219 (quoting United States v. Ward, 544 F.2d 975 (8th Cir. 1976) ) ("[T]he necessity for a hearing is diminished in cases involving challenged testimony where the trial judge has had an opportunity to observe the demeanor and weigh the credibility of the witness at trial.")

Courts in this Circuit will find that Section 2255 petitioners are eligible for relief based on a witness recantation only if two requirements are met. First, the Court must be "reasonably well satisfied" that the witness's trial testimony was in fact false. See United States v. Henry, 821 F.Supp.2d at 258. The petitioner bears the burden of providing credible evidence that allows the Court to reach this conclusion. See id. (citing United States v. Mackin, 561 F.2d 958 (D.C. Cir. 1977) ). Second, the "proponent of post-conviction relief bears the further burden of showing that, absent the recanted testimony, a new trial would probably produce an acquittal." United States v. Henry, 821 F.Supp.2d at 260 (quoting United States v. Williams, 233 F.3d 592, 593 (D.C. Cir. 2000) ) (quotations omitted). See also United States v. Kearney, 682 F.2d at 220 ; United States v. Mahdi, 172 F.Supp.3d at 68.

B. The Recanting Affidavit Cannot Support the Section 2255 Motion

Applying the two-prong test that is used in the D.C. Circuit, the Court finds that a new trial conducted without Mr. Walker's recanted testimony would "probably result in an acquittal." See United States v. Henry, 821 F.Supp.2d at 260. The Court nevertheless must deny Mr. Clark's Section 2255 motion insofar as it is based on Mr. Walker's recanting affidavit, because it cannot be "reasonably well satisfied" that the trial testimony linking Mr. Clark to the crime was false. See id. at 258-60. This conclusion is dispositive, as both prongs of the test must be satisfied. If the recantation were sufficient to establish the falsity of the trial testimony, however - for example, under a standard more lenient than requiring courts to be "reasonably well satisfied" of the trial testimony's falsity - the outcome of Mr. Clark's motion would be different.

1. The Court Cannot be "Reasonably Well Satisfied" That the Trial Evidence was False

The Court cannot be confident enough in the recanting affidavit to be "reasonably well satisfied" that Mr. Walker's testimony at trial was false. In the context of Section 2255 motions based on such new evidence, the "reasonably well satisfied" prong is an exacting standard that defendants rarely attain. See United States v. Mahdi, 172 F.Supp.3d at 67-68 (quoting United States v. Kearney, 682 F.2d at 219 ) ("In this Circuit, recanting affidavits and witnesses are looked upon with the utmost suspicion by the courts."). Recent recantation cases from this Circuit show a fact-specific inquiry in which judges consider a diverse array of factors to determine whether a particular recantation meets the "reasonably well satisfied" test. For example, in United States v. Henry, the court considered seven separate factors: the degree to which the recanted testimony had already been tested by cross examination at trial; the opportunity the court had to observe the recanting witness's demeanor at trial and the evidence corroborating the trial testimony; whether there was some explanation for the recanting witness's knowledge of facts about the crime other than having observed them directly; the length of time between the trial testimony and the recantation; the possibility that the recanting witness would appear in court to testify about the recantation; whether the threat of a perjury prosecution would effectively encourage the recanting witness to be truthful; and the nature of the relationship between the recanting witness and the defendant. See 821 F.Supp.2d at 258-60. Similarly, in United States v. Mahdi, the court denied a Section 2255 motion after weighing the degree to which the recanted testimony was corroborated by other evidence; the recanting affiant's motive to falsify and his explanation for recanting; and the lengthy period between the trial testimony and the recantation. See 172 F.Supp.3d at 67-70.

Upon considering the relevant factors in the instant case, the Court simply cannot be reasonably well satisfied that Mr. Walker's trial testimony was false. First, Mr. Walker waited almost four years after trial before deciding to recant, and courts are justifiably skeptical of the motives of affiants who wait many years before recanting. Such a lengthy delay "cast[s] doubt on the veracity of his recantation." See United States v. Henry, 821 F.Supp.2d at 259 (referring to gap of "more than four-and-a-half-years"). See United States v. Mahdi, 172 F.Supp.3d at 69 ("the Court finds that [recanting witness's] identification of [another person] as the ... shooter eleven years after the trial is totally unbelievable" where the recanting witness had admitted to perjuring himself in the past and where the court doubted his explanation for recanting).

Second, Mr. Walker's trial testimony has already been subjected to rigorous cross examination and argument. Although the trial jury could not have analyzed Mr. Walker's recantation, it did hear Mr. Walker admit to lying to the police about the identity of the attacker and his reasons for equivocating. See Dec. 8, 2010 Trial Tr. at 139; id. at 106-08, 132. And the jury learned of his prior convictions for crimes involving dishonesty (forgery and obtaining money by false pretenses). Id. at 61. Despite this knowledge, the jury still gave Mr. Walker's testimony enough weight to convict Mr. Clark. Mr. Walker has now invoked his Fifth Amendment privilege against self-incrimination, so there is little reason to believe that he will be available for cross examination on the details of his recantation (or its subsequent withdrawal).

Third, the relationship between Mr. Clark and Mr. Walker is longstanding and, on some of the evidence, has been reasonably close. Before asserting his Fifth Amendment privilege, the one substantive matter to which Mr. Walker did testify during the 2016 evidentiary hearing on the affidavit is that he and Mr. Clark were "childhood friends" and have known each other "at least over 20 years." See June 20, 2016 Hr'g Tr. at 10. They lived in the same neighborhood. Dec. 8, 2010 Trial Tr. at 62. The two men were in business together - the drug business - and they saw each other several times a week. Mr. Walker had Mr. Clark's number saved on his phone, and on at least some days they spoke multiple times. See id. at 66-69. Mr. Walker agreed that he had developed a "significant relationship with the defendant," and implied that in 2008, the year before the attack, it was a "serious, really serious" business relationship. See id. at 63. Their families knew each other well enough that Mr. Walker's wife was a babysitter for Mr. Clark's daughter. See Recanting Affidavit at 6. In the recanting affidavit, Mr. Walker admits that Mr. Clark "was close to me." Id.

This close personal and professional relationship between Mr. Clark and Mr. Walker, enduring over an extended period of time, casts doubt on the veracity of the recanting affidavit. The evidence admits of two possibilities. If the Court credits the recanting affidavit, Mr. Walker knew that Mr. Clark did not commit the crime but was angry enough at Mr. Clark to falsely implicate him and lie about it while under oath at trial. If the Court credits the trial testimony, Mr. Walker knew Mr. Clark committed the crime and was angry enough at him to lie to the police, decide to kill Mr. Clark, and begin discussing these plans with others. See Dec. 8, 2010 Trial Tr. at 105-106. In either event, the Court finds that a relationship existed that may have interfered with Mr. Walker's desire to respect the law and speak truthfully about Mr. Clark. It is sufficiently close to cast doubt on the candor of Mr. Walker's statements on this matter. Cf. United States v. Henry, 821 F.Supp.2d at 260 (explaining that "[c]ourts have routinely found that recantations by family members are entitled to lesser weight," and noting the "close relationship" between the defendant and the recanting witness, defendant's nephew).

Fourth, the Court considers whether the trial testimony that Mr. Walker now recants was corroborated by other evidence from the trial. Unlike the recanted testimony in Henry and Mahdi, Mr. Walker's trial testimony was not directly buttressed by the testimony from other witnesses at Mr. Clark's trial. Cf. United States v. Henry, 821 F.Supp.2d at 259 (noting that the court could not be reasonably well satisfied that the trial testimony was false because it was "corroborated by independent testimony offered by several other witnesses" who observed events at issue in the recanted trial testimony); United States v. Mahdi, 172 F.Supp.3d at 69 (noting that, where two other eyewitnesses identified the defendant as the gunman who killed the victim, "extensive corroboration of [recanting witness's] trial testimony convinces the Court that his original account of the [victim's] murder was truthful"). In this case, by contrast, Mr. Walker was the only witness to identify Mr. Clark as one of the assailants.

To be sure, the testimony of other witnesses at trial did corroborate the fact that Mr. Walker was the victim of a crime and many details of that crime. For example, Officer DePrince's testimony tends to corroborate some of Mr. Walker's claims about the early phase of the events: that a Red Toyota Highlander was involved (Officer DePrince processed a red 2008 Toyota highlander after the attacks); that an assailant tore a gold chain from Mr. Walker's neck (a gold link was recovered from the Highlander); that the assailant tried to mask him with a bag from Downtown Locker Room (Office DePrince recovered a bag from that store); and that the attack bloodied Mr. Walker's shirt to the extent that he ha