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Case 1:01-cr-00214-WYD

Document 3452

Filed 04/30/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Crim. No. 01-CR-00214-WYD Civil Action No.07-CV-00367-WYD UNITED STATES OF AMERICA, Plaintiff/Respondent, v. ALVIN GREEN, Defendant/Movant. _________________________________________________________________ REPLY TO THE ANSWER OF THE UNITED STATES TO DEFENDANT'S MOTION UNDER 28 U.S.C. § 2255 _________________________________________________________________ I INTRODUCTION Petitioner hereby reinstates and reincorporates hereat, all previous arguments made and maintains that the events which

transpired in the instant case constitute a denial of his right to effective assistance of counsel as guaranteed by the Sixth

Amendment to the United States Constitution. These errors were not merely procedural, but substantially infringed upon the

Petitioner's constitutional right to due process of law. II ARGUMENT A. TRIAL COUNSEL'S INEFFECTIVENESS.

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A reasonable attorney would not have made the decision to ignore th inconsistencies in Dachaun Davis' testimony, and the Petitioner's trial counsel was ineffective in failing to pursue that point during his cross-examination of Davis. Davis with the inconsistencies between his Confronting briefing

initial

statement and his trial testimony would have clearly shown that the Petitioner was never involved in the alleged conspiracy, and that Davis fabricated all of the information he supplied to government agents concerning the Petitioner's involvement in the conspiracy. Davis' lies in implicating the Petitioner are more than just a possible inference that the jury might have drawn from his inconsistent statements, it is the only legitimate inference that the jury could draw from his abrupt change to a story implicating the Petitioner in the charged conspiracy. No reasonable attorney would have made the "tactical" decision to ignore Davis' inconsistent testimony and not cross-examine him regarding his initial failure to identify the Petitioner as part of the conspiracy. at all. Such a decision cannot be described as "tactical"

It was simply a failure to adequately defend against Had counsel pursued the issue of Davis'

fabricated testimony.

inconsistent statements before and during the trial, the jury would have had an ample amount of reasonable doubt. The other evidence

against the Petitioner would have appeared less credible and insufficient for a guilty verdict after defense counsel had exposed Dachaun Davis as a liar.

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II.

Appellate Counsel's Ineffectiveness

No matter what the extent of the limiting instructions given by the court at the Petitioner's trial, they could not undue the incredible prejudice that he suffered as a result of being tried alongside several co-defendants. It should be noted that the

Petitioner is innocent and was never involved in a conspiracy to distribute narcotics. Being tried alongside individuals who were

guilty of that offense doomed the Petitioner to a guilty verdict, despite his innocence. The failure of the trial court to grant the

severance of the Petitioner's case from his guilty and scrambling co-defendants was potentially the key event leading up to his conviction. acquitted. If tried alone, the Petitioner of a would have he been was

Without

the

benefit

severed

trial

convicted. How could appellate counsel justifiably ignore one of if not the most important error that occurred at the Petitioner's trial? The answer is he could not justifiably ignore that issue,

and he was ineffective in failing to raise it on appeal. Furthermore, appellate counsel was ineffective for failing to raise trial counsel's ineffectiveness on appeal. Trial counsel was ineffective in failing to request a specific jury instruction regarding drug amount. The fact that trial counsel did not request a specific jury instruction was readily apparent from the trial court record, and consequently, the Petitioner was required to address that issue on direct appeal, or lose it forever. Due to

the fact that appellate counsel did not raise that issue on appeal

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and it was lost forever because of that failure, he was clearly ineffective. CONCLUSION For the above stated reasons, the Petitioner prays that his Petition for Relief Pursuant to 28 U.S.C. § 2255 be granted. minimum, this court is urged to grant an evidentiary hearing. Respectfully submitted, At a

by:

s/Vincent James Oliver Vincent James Oliver 205 S. Broadway, Suite 606 Los Angeles, CA 90012 Telephone: (213) 617-2307 Facsimile: (213) 617-2851 Counsel for Defendant/Movant ALVIN GREEN

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on April 30, 2007, I electronically filed the foregoing with the Clerk of the Court using the ECF system which will send notification of such filing to the following addresses: James C. Murphy [email protected] s/Vincent James Oliver By: Vincent James Oliver 205 South Broadway #606 Los Angeles, Ca. 90012 Telephone: (213) 617-2307 Facsimile: (213_ 617-2851 Electronic: [email protected] Counsel for Defendant/Movant ALVIN GREEN