United States of America v. Bethune

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
BRANDON BETHUNE,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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Case No. 1:24-cv-848
Case No. 1:21-cr-536
Judge J. Philip Calabrese
OPINION AND ORDER
After a jury found Petitioner Brandon Bethune guilty of knowing possession of
ammunition as a felon, the Court sentenced him to a total prison term of 100 months.
Mr. Bethune exhausted his remedies on direct appeal and now—proceeding pro se—
moves to vacate, set aside, or correct his sentencing under 28 U.S.C. § 2255, arguing
ineffective assistance of counsel in violation of his Sixth Amendment rights. 	For
reasons that follow, the Court DENIES Petitioner’s motion.
FACTUAL AND PROCEDURAL BACKGROUND
A. 	Arrest and Indictment
In the early afternoon on March 20, 2021, Cleveland Police Department officers
responded to a radio call from Margo White, the mother of one of Mr. Bethune’s
children, regarding domestic violence threats. (ECF No. 48, ¶ 6, PageID #246.) White
reported that when Mr. Bethune dropped off baby food at 8:00 a.m. that morning, she
and Mr. Bethune had an argument. (Id., ¶ 7, PageID #246.) During that argument,
Mr. Bethune threatened Ms. White with a firearm, pointing it at her while saying,
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“There’s a bullet lodged in the chamber.” 	(Id.) Ms. White told the responding police
officers that Mr. Bethune was in her apartment, and she consented to a search of her
apartment so that the officers could locate and detain Mr. Bethune. (Id., ¶ 8, PageID
#246.)
When the officers entered the apartment, they encountered Mr. Bethune, who
initially refused to identify himself. 	(Id.) 	After the officers identified Mr. Bethune
anyway, they tried to detain and arrest him, but Mr. Bethune resisted. 	(Id.) As the
officers placed Mr. Bethune in handcuffs, he informed them that he had a firearm in
his waistband. (Id.) One of the officers located a .380 ACP Hi-Point Model CF firearm
in Mr. Bethune’s waistband and secured it. (Id.; ECF No. 58, PageID #502 & #530.)
The officer determined that the firearm did not contain a magazine and further
determined—upon attempting to clear the chamber—that the firearm was inoperable
because an FC 9mm Luger round was lodged in the chamber and would not eject.
(ECF No. 58, PageID #504 & #533.)
After the other officers successfully handcuffed Mr. Bethune, they tried to lead
him downstairs, but Mr. Bethune “was still trying to give [them] a little fight.” (Id.,
PageID #377.) When the officers were finally able to get Mr. Bethune downstairs and
outside, he struggled against the officers’ attempts to conduct a pat-down search of
his person outside the police car. (Id., PageID #380–81.) Although the pat-down at
the police car did reveal Mr. Bethune’s phone, keys, and some money, the officers
were not able to complete the pat-down because of “the way he was struggling
and . . . fighting back.” 	(Id., PageID #381.) 	The officers seated Mr. Bethune in the
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police car despite his continued combativeness and transported him to the county jail.
(Id., PageID #389.) 	Once inside the jail, Mr. Bethune “bec[ame] irate again” and
resumed “issuing verbal threats” toward the officers. 	(Id., PageID #396 & #450.)
Cuyahoga County Sheriff’s Department Corporal Brian Ciurlik, who was on
security duty at the county jail, stepped in to de-escalate the situation—as was
standard practice—and took custody of Mr. Bethune, informing the police officers
that the Sheriff’s Department would “handle it from here.” 	(Id., PageID #392 &
#475–78.) 	Then, Corporal Ciurlik performed a pat-down search of Mr. Bethune,
during which he located a magazine containing four live rounds in Mr. Bethune’s
right pocket. (Id., PageID #478.) The magazine fit the make and model of the firearm
found on Mr. Bethune’s person. (Id., PageID #542–43.) Three of the live rounds were
.380 ACP ammunition—the same caliber as the firearm found on Mr. Bethune’s
person. 	(Id., PageID #526–27.) 	The last round of ammunition in the magazine was
an FC 9mm Luger round—the same kind of round as the one lodged in the chamber
of Mr. Bethune’s firearm. 	(Id., PageID #530–31.) 	Corporal Ciurlik passed the
magazine to Cuyahoga County Sheriff’s Department Corporal Antonio Brunello for
brief safekeeping until he was able to retrieve possession of it, never losing sight of
the magazine in the process. (Id., PageID #478–79.) Corporal Ciurlik then retrieved
the magazine from Corporal Brunello, placed it with the rounds into an evidence bag,
conveyed the bag to his supervising sergeant, and wrote a report. (Id., PageID #479.)
In June 2021, a task force officer with the Bureau of Alcohol, Tobacco, Firearms
and Explosives submitted an affidavit that served as the basis for the criminal
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complaint in this case. (ECF No. 1-1, PageID #2–5.) The task force officer’s affidavit
erroneously stated that the firearm that officers confiscated from Mr. Bethune during
his arrest “was loaded with four bullets” when, in fact, the ammunition was not
loaded in the firearm but rather found separately. (Id., ¶ 5, PageID #2.) On July 14,
2021, a grand jury indicted Mr. Bethune for knowingly possessing four rounds of
ammunition as a felon. (ECF No. 10, PageID #33–34.)
B. 	Pretrial Hearings
On August 24, 2021, at the first status conference in the case, the United States
informed the Court that all discovery had been turned over to Mr. Bethune’s defense
attorney. 	Defense counsel raised the issue of the amount of ammunition found on
Mr. Bethune—specifically noting that Mr. Bethune believed there had been just one
bullet on his person—and asked the Court for more time to review the discovery.
Based on these discussions and to allow for more time to review the discovery, the
Court continued the status conference until October 2021.
On two separate occasions in status conferences on October 13, 2021 and
November 30, 2021, the United States informed the Court that it had produced all
discovery. 	When the Court asked defense counsel to confirm, deny, or otherwise
correct the assertion 	that all discovery 	had been 	turned over in 	these status
conferences, she responded in the affirmative both times.
During the final pretrial conference on March 17, 2022, the Court asked
Mr. Bethune if he was satisfied with the representation he had received from defense
counsel. Mr. Bethune replied that he was. At the conclusion of the hearing, the Court
gave Mr. Bethune the opportunity to ask any question he wanted. Mr. Bethune told
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defense counsel that he did not have anything, and she informed the Court of the
same.
C. 	Jury Trial
At trial, the United States presented the testimony of the police officers who
arrested and patted down Mr. Bethune outside the police car, Cuyahoga County
Sheriff’s Department corporals—including Corporal Ciurlik—who booked and patted
down Mr. Bethune at the county jail, and the ATF officer who submitted an affidavit
for Mr. Bethune’s criminal complaint. 	(ECF No. 58, PageID #347–580.) 	The police
officers and Sheriff’s Department corporals testified about video evidence and their
DNA and fingerprinting procedures; and the officer who swore out the erroneous
affidavit testified to its inaccuracy and about the ATF’s DNA and fingerprinting
procedures. (Id.)
Video evidence. 	As part of its direct examination of the CPD officers, counsel
for the United States presented video footage of Mr. Bethune’s arrest from the police
officers’ body cameras, including footage of the pat-down of Mr. Bethune outside the
police car and of the officers’ struggle with Mr. Bethune upon arrival at the county
jail. 	(Id., PageID #380–86 & #433–55.) 	The United States did not present body
camera footage of the Sheriff’s Department corporals’ 	final pat-down 	search 	of
Mr. Bethune inside the county jail. 	Responding to a jury question after cross-
examination, one of the corporals testified that the county jail does have cameras in
the area where the final pat-down search occurred. (Id., PageID #486.)
DNA and fingerprinting procedures. 	After the United States presented no
DNA or fingerprint evidence, defense counsel interrogated the two police officers who
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performed the pat-down of Mr. Bethune outside the police car about the procedures
for DNA and fingerprinting. 	(Id., PageID #409–412 & #460–463.) 	After the first
police officer stated that he had no role in ordering DNA or fingerprinting analysis,
the other officer testified that he did, but that it was not typical procedure to order
fingerprints for ammunition that is found on a person. 	(Id., PageID #465.) 	Both
officers testified that they had no doubt about the individual to whom the firearm
belonged. (Id., PageID #417 & #460.)
Likewise, the ATF officer testified on direct and cross-examination that the
policy of the police and medical examiner in cases involving the possession of firearms
is not to submit evidence for DNA or fingerprint testing. 	(Id., PageID #547 &
#561–66.) The ATF officer emphasized that this principle is “even more true . . . when
it’s recovered on someone’s person [that] possession is already established” and that
“[y]ou don’t need to waste a resource such as DNA or fingerprints when it’s on a
person.” 	(Id., PageID #547.) 	In 	the ATF officer’s 	view, 	the “totality 	of the
circumstances with the chain of custody” led him to believe that Mr. Bethune did
possess the ammunition.
The erroneous affidavit. Both the United States and defense counsel asked the
ATF officer why his affidavit erroneously stated that the firearm “was loaded with
four live rounds.” 	(Id., PageID #561.) 	The ATF officer testified that when he
submitted his affidavit and testified before the grand jury, he was operating under
the assumption—consistent with his training and experience—that the firearm had
been loaded with the magazine and ammunition because he received them loose in
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the same evidence bag. (Id., PageID #551 & #563.) The ATF officer explained that,
although he later learned the actual circumstances of the magazine’s separate
identification one or two months after Mr. Bethune’s indictment, there was still no
basis for ordering fingerprint or DNA analysis under the applicable policies. 	(Id.,
PageID #562–66 & #570–74.)
Following the conclusion of the government’s case-in-chief, the defense rested.
(Id., PageID #604.) 	After jury instructions and deliberations, the jury returned a
verdict of guilty. (Id., PageID #671.)
D. 	Sentencing and Direct Appeal
During Mr. Bethune’s sentencing hearing on August 2, 2022, the Court asked
Mr. Bethune if he was satisfied with the representation he received from defense
counsel. 	(ECF No. 59, PageID #683.) 	Mr. Bethune responded, “Somewhat, your
Honor, I mean not to say—somewhat, yes.” (Id., PageID #684.) Asked to clarify if he
was satisfied enough to proceed with sentencing, Mr. Bethune then answered, “Yes.”
(Id.) After the United States requested a sentence of 120 months’ incarceration and
defense 	counsel requested a sentence 	of 100 months’ 	incarceration, 	the Court
sentenced Mr. Bethune to a total prison term of 100 months. (Id., PageID #693, #696
& #703.) Mr. Bethune appealed. 	Several weeks after Mr. Bethune filed his appeal,
defense counsel passed away.
On appeal, Mr. Bethune argued that the Court’s decision to deny him a
downward adjustment for acceptance of responsibility violated the Fifth and Sixth
Amendments of the United States Constitution. 	United States v. Bethune, No. 22-
3688, 2023 WL 4204532, at *1 (6th Cir. June 27, 2023). The Sixth Circuit held that
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Mr. Bethune failed to establish plain error and affirmed his 100-month sentence. Id.,
at *3.
E. 	Section 2255 Petition
In May 2024, Mr. Bethune filed this motion under 28 U.S.C. § 2255 to vacate,
set aside, or correct his sentence. 	(ECF No. 63-1.) 	His sole claim is ineffective
assistance of counsel against his trial counsel, alleging that she failed to:
(1) 	“challenge the defective affidavit of arrest warrant” and “[the]
defective indictment”;
(2) 	“submit magazine and bullet casings for fingerprint and DNA
testing”;
(3) 	subpoena certain witnesses to the pat-down search;
(4) 	subpoena Corporal Ciurlik’s “body cam footage of his pat-down
search” and surveillance video footage from the “inmate booking
area” and the “dress out room area”;
(5) 	subpoena 	the 	Sheriff’s 	Department’s 	“policy 	and 	procedure
[regarding whether] body cam must be turned on while officers
are dealing with hostile inmates” and “question Corporal Ciurlik”
at trial regarding such policy and procedure;
(6) 	provide 	Mr. 	Bethune with 	certain 	written 	incident 	reports,
introduce those reports “into the court record as evidence,” and
“cross-exam[ine] 	witnesses 	at trial on 	their written 	incident
reports”; or
(7) 	“have 	Ciurlik 	answer 	[a] 	specific 	question” 	from 	the 	jury
regarding whether there was footage from the jail that would
show the pat-down search.
(Id., PageID #730–39.)
Petitioner contends that, but for these failings that rendered defense counsel’s
representation “prejudicially ineffective,” the charges against him might have been
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dismissed. 	(Id., PageID #740–41.) Petitioner requests that the Court grant him an
evidentiary hearing and grant his Section 2255 petition. (Id., PageID #742.)
GOVERNING LEGAL STANDARD
Under 28 U.S.C. § 2255(a), a federal prisoner may move to vacate, set aside, or
correct his judgment of conviction and sentence. To challenge his conviction, Section
2255 requires the federal prisoner’s claim to fall into one of four circumstances:
[1] [T]he sentence was imposed in violation of the Constitution or laws
of the United States, or [2] that the court was without jurisdiction to
impose such sentence, or [3] that the sentence was in excess of the
maximum authorized by law, or [4] is otherwise subject to collateral
attack[.]
28 U.S.C. § 2255(a).
A petitioner seeking to challenge his conviction under Section 2255 “must
demonstrate the existence of an error of constitutional magnitude which had a
substantial and injurious effect of influence on the guilty plea or the jury’s verdict.”
Griffin 	v. 	United 	States, 330 	F.3d 733, 	736 (6th 	Cir. 	2003) (citing 	Brecht 	v.
Abrahamson, 507 U.S. 619, 637 (1993)). “Relief is warranted only where a petitioner
has shown ‘a fundamental defect which inherently results in a miscarriage of justice.’”
Id. (quoting Davis v. United States, 417 U.S. 333, 346 (1974)).
The Court liberally construes the allegations of a pro se Section 2255 petition.
McCormick v. Butler, 977 F.3d 521, 528 (6th Cir. 2020) (quoting Franklin v. Rose, 765
F.2d 82, 85 (6th Cir. 1985)). 	“But the liberal-construction rule does not ‘abrogate
basic pleading essentials,’ such as the requirement that a [Section] 2255 petitioner
state the factual bases underpinning every claim for relief.” Jimenez v. United States,
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2022 WL 2610337, at *3 (6th Cir. July 8, 2022) (internal citation omitted). 	Even if
liberally 	construed, 	“conclusory 	allegations 	alone, 	without 	supporting 	factual
averments, are insufficient to state a valid claim under [Section] 2255.” 	Gabrion v.
United States, 43 F.4th 569 (6th Cir. 2022) (quoting Jefferson v. United States, 730
F.3d 537, 547 (6th Cir. 2013)).
When a factual dispute arises in a Section 2255 proceeding, a court must hold
an evidentiary hearing “unless the motion can be ‘conclusively determined either by
the motion itself or by the files and records in the trial court.’” 	MacLloyd v. United
States, 684 Fed. Appx. 555, 559 (6th Cir. 2017) (quoting Machibroda v. United States,
368 U.S. 487, 494 (1962)). A petitioner is not entitled to an evidentiary hearing if he
fails to allege any facts that, if true, would entitle him to federal habeas relief. 	See
McSwain v. Davis, 287 F. App’x 450, 458 (6th Cir. 2008); Amr v. United States, 280
F. 	App’x 	480, 	485 	(6th 	Cir. 	2008) (holding 	that 	an 	evidentiary 	hearing 	was
“unnecessary” where there was “nothing in the record to indicate that [the petitioner]
would be able to prove his allegations” at a hearing). 	Nor is a hearing necessary
where a petitioner’s claims “cannot be accepted as true because they are contradicted
by the record, inherently incredible, or [are] conclusions rather than statements of
fact.” 	Valentine v. 	United States, 488 F.3d 325, 334 (6th 	Cir. 2007) (quoting
Arredondo, 178 F.3d at 782).
Finally, where, as here, the district court judge considering a Section 2255
motion also conducted the trial, “the judge may rely on his or her recollections of the
trial.” Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999).
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Petitioner exhausted his appellate remedies and timely filed this motion under
Section 2255. His sole claim for federal habeas relief is ineffective assistance of trial
counsel. 	A claim that an attorney’s ineffective assistance deprived a criminal
defendant of his Sixth Amendment right to counsel alleges an error of constitutional
magnitude cognizable in a Section 2255 proceeding. See Pough v. United States, 442
F.3d 959, 964 (6th Cir. 2006). Petitioner alleges that defense counsel’s representation
was constitutionally ineffective because she failed to (1) challenge the errors in the
arrest warrant and indictment, (2) submit the magazine and bullet casings for DNA
testing, (3) subpoena witnesses, (4) subpoena video footage of his pat-down at the
county jail, (5) subpoena and cross-examine on policies related to body cameras, (6)
provide him certain reports, and (7) cross-examine Corporal Ciurlik on whether there
was footage of the pat-down in the jail. (ECF No. 63-1, PageID #730–40.)
ANALYSIS
To prevail on his claim of ineffective assistance of counsel, Petitioner must
satisfy the two-pronged test that the Supreme Court established in Strickland v.
Washington, 466 U.S. 668 (1994). 	See, e.g., Wingate v. United States, 969 F.3d 251,
255 (6th Cir. 2020) (citation omitted).
First, Petitioner must show that his defense attorney’s conduct was “deficient.”
Strickland, 466 U.S. at 687. Specifically, Petitioner must show that counsel’s errors
were 	so 	serious 	that she failed 	to 	“function[] 	as 	the ‘counsel’ 	that the 	Sixth
Amendment guarantees to Petitioner.” Id. at 687–88. Counsel enjoy a presumption
that they discharge their duties in a sufficiently effective manner and exercise
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reasonable professional judgment based on the circumstances at the time. 	Id. at
689–90. To establish error, Petitioner must overcome this “strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.”
Id. 	This means that courts should “resist the temptation to rely on hindsight . . . in
the context of ineffective assistance of counsel claims.” 	Carson v. United States, 3 F.
App’x 321, 324 (6th Cir 2001).
Second, 	Petitioner 	must 	show 	that 	any 	deficiencies 	in 	his 	counsel’s
performance were “prejudicial” to his defense. Id. at 690. In other words, Petitioner
must show that his counsel’s decisions “were so serious as to deprive [him of] a fair
trial, a trial whose result is reliable.” Id. at 687; see also Monea v. United States, 914
F.3d 414, 419 (6th Cir. 2019). 	Like the first 	Strickland element, establishing
prejudice also presents a difficult burden because it requires Petitioner to show a
“reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” 	Strickland, 466 U.S. at 694. 	“A reasonable
probability is a probability sufficient 	to undermine confidence in the [original]
outcome.” Id.
A successful ineffective assistance claim requires Petitioner to establish both
elements. 	Strickland, 466 U.S. at 687, 697. 	Therefore, failure to establish either
element will cause Petitioner’s claim to fail.
I. 	Failure to Challenge Errors in ATF Officer’s Affidavit or Indictment
Petitioner’s first ground for relief is that defense counsel’s performance was
constitutionally 	ineffective 	because 	she 	“failed 	to 	file 	[a] 	motion 	to 	challenge
Bethune’s arrest warrant” and “failed to file [a] motion to challenge Bethune’s grand
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jury indictment.” (ECF No. 63-1, PageID #738–39.) He explains that defense counsel
should have challenged the arrest warrant and indictment because the ATF officer’s
affidavit for probable cause erroneously described the gun found on Petitioner’s
person as “loaded with four bullets.” 	(Id.; ECF No. 1-1, ¶ 5, PageID #2.) 	Petitioner
notes that he asked defense counsel to “file a motion to suppress the defective [ ]
arrest warrant, defective [ ] grand jury indictment, and magazine and bullets,” but
she did not do so. (ECF No. 63-1, PageID #740.)
Although prejudice is the second element under Strickland for an ineffective
assistance of counsel claim, “[c]ourts 	need not address the first element if the
petitioner cannot prove prejudice. In fact, if it is easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient prejudice, that course should be followed.”
Monea, 914 F.3d at 419 (cleaned up).
Petitioner is correct that the ATF officer’s affidavit erroneously described the
gun found on Petitioner’s person as “loaded with four bullets.” (ECF No. 1-1, PageID
#5.) 	However, 	Petitioner fails to allege facts sufficient to show a “reasonable
probability” that, but for counsel’s failure to challenge the affidavit or the indictment,
“the result of the proceeding would have been different.” Strickland, 466 U.S. at 694.
Indeed, the ATF officer was cross-examined on the issue, and the jury asked questions
about it as well. But the jury still returned a guilty verdict.
First, even if defense counsel filed a motion to challenge the affidavit for
probable cause in this case, such as a motion for a hearing under Franks v. Delaware,
438 U.S. 154 (1978), the Court sees no “reasonable probability that . . . the result of
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the proceeding would have been different.” 	Strickland, 466 U.S. at 694. In Franks,
the Supreme Court held that the Fourth Amendment requires a hearing where (1)
the defendant “makes a substantial preliminary showing that a false statement
knowingly and intentionally, or with reckless disregard for the truth, was included
by the affiant in the warrant affidavit” and (2) “the allegedly false statement is
necessary to the finding of probable cause.” 	Franks, 438 U.S. at 155–56. 	The
substantial preliminary showing “must overcome the presumption that the affidavit
was valid.” United States v. Rodriguez-Suazo, 346 F.3d 637, 648 (6th Cir. 2003). “[A]
truthful showing of probable cause ‘does not mean “truthful” in the sense that every
fact recited in the warrant affidavit is necessarily correct.’” United States v. Hawkins,
969 F.2d 169, 177 (6th Cir. 1992) (quoting Franks, 438 U.S. at 165). Instead, “it is to
be ‘truthful’ in the sense that the information put forth is believed or appropriately
accepted by the affiant as true.” Id. (quoting Franks, 438 U.S. at 165) (citations and
alterations omitted).
Insofar as Petitioner alleges that defense counsel should have challenged the
affidavit because the ATF officer erred in his statement that the firearm was “loaded
with four live rounds,” he does not show that the ATF officer did not believe or
appropriately accept the information as true. 	Indeed, as the ATF officer admitted
during his testimony at trial, he submitted his affidavit for probable cause under the
mistaken assumption that the firearm had been loaded with the magazine and four
bullets because he received them in the same evidence bag.
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Second, even if defense counsel had filed a motion to dismiss the indictment
because of an error in the grand jury proceeding or a defect in the indictment or
information, the Court finds no “reasonable probability that . . . the results of the
proceeding would have been different.” 	Strickland, 466 U.S. at 684. 	“[A]s long as
there is some competent evidence to sustain the charge issued by the grand jury, an
indictment will not be dismissed solely on the basis that other evidence presented to
the grand jury may have been false or misleading.” United States v. Labbous, 82 F.3d
419, at *2 (6th Cir. 1996) (cleaned up). Petitioner points to the ATF officer’s erroneous
testimony before the grand jury that the firearm found on his person was “loaded
with four bullets” as the reason defense counsel should have filed a motion to dismiss
the indictment. But there is no reason to think that the circumstances of the precise
location of the bullets allegedly found on his person—whether inside or outside the
firearm—would have affected the grand jury’s decision to indict on the charge of
possession of ammunition.
Third, Petitioner was not prejudiced by the alleged error of failing to challenge
the affidavit or the indictment because the United States used no evidence obtained
directly from the ATF officer’s affidavit, or the ATF officer’s testimony to the grand
jury, to secure Mr. Bethune’s conviction at trial. Instead, when counsel for the United
States called the ATF officer to testify at trial, the prosecutor asked him how he
received custody of the firearm and ammunition, how he assumed the firearm had
been loaded with the ammunition when he received them loose in the same evidence
bag, and why he did not submit them for DNA and fingerprint testing. (ECF No. 58,
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PageID #544–60). On cross-examination, defense counsel also asked the ATF officer
about his errant affidavit and testimony to the grand jury that “the firearm was
loaded with four live rounds.” 	(Id., PageID #560.) 	The ATF officer testified that,
when he submitted his affidavit and testified before the grand jury, he was operating
under the erroneous assumption that the firearm found on Mr. Bethune’s person had
been loaded with the magazine and rounds because he received them in the same
evidence bag. 	(Id., PageID #551 & #563.) 	Further, he testified that he learned the
actual facts approximately one to two months after Mr. Bethune’s indictment. 	(Id.,
PageID #563.) 	Petitioner has not overcome the “strong presumption” that defense
counsel’s decision not to seek a Franks hearing, but instead to cross-examine the ATF
officer about his affidavit on the witness stand, can “be considered sound trial
strategy.” Strickland, 466 U.S. at 689.
Fourth, and relatedly, the United States presented its case at trial only on the
theory 	that 	the 	Cuyahoga 	County 	Sheriff’s 	Department 	corporal 	found 	the
ammunition on Mr. Bethune’s person in the final pat-down at the county jail. At no
time during the trial did the United States suggest that any police officer found the
ammunition loaded in the firearm confiscated from Mr. Bethune’s person. 	In its
opening statement, the United States told the jury that it would hear evidence that
while conducting a pat-down of Mr. Bethune as part of the intake process at the
county jail, a corporal with the Cuyahoga County Sheriff’s Department found a
firearm magazine containing four rounds of ammunition in Mr. Bethune’s right pants
pocket. 	(ECF No. 58, PageID #344.) 	During direct examination, the United States
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also 	questioned 	the police 	officers, 	the 	corporals 	from 	the Cuyahoga Sheriff’s
Department, and the ATF officer about where the ammunition was found. 	(Id.,
PageID #386, #426, #449, #478, #505 & #551.) 	Each testified that the ammunition
was found not in the firearm confiscated from Mr. Bethune’s person, but instead
during the later pat-down search at the county jail. (Id.)
For all of the foregoing reasons, Petitioner is not entitled to relief on the basis
of defense counsel’s alleged ineffectiveness in failing to challenge the affidavit or the
indictment.
II. 	Failure to Obtain DNA or Fingerprint Testing of Magazine and Bullets
Petitioner’s 	second 	ground 	for 	relief 	is 	that 	defense 	counsel 	rendered
ineffective assistance because she “failed to submit [the] magazine and bullet casings
to [the] lab for fingerprints and/or DNA testing.” (Id., PageID #738.)
As an initial matter, Petitioner does not clearly elaborate how, but for defense
counsel’s alleged error in failing to submit the magazine or ammunition for DNA or
fingerprint testing, there is a “reasonable possibility that . . . the result of the
proceeding would have been different.” 	Strickland, 466 U.S. at 694. 	Mr. Bethune
was charged with being a felon in possession of ammunition. Therefore, it was not
necessary that the government prove that he owned the ammunition, or even that he
previously touched the ammunition. 	For the purposes of 18 U.S.C. § 922(g)(1), the
United States needed to prove only that the defendant possessed the ammunition,
either through actual or constructive possession. 	See United States v. Murphy, 107
F.3d 1199, 1208 (6th Cir. 1997).
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More importantly, it is clear that defense counsel intended to use the absence
of any DNA or fingerprint evidence to discredit the investigation at trial. 	On cross-
examination of two of the police officers who arrested Mr. Bethune, and later on cross-
examination of the affiant ATF officer, defense counsel asked about the procedures
for DNA testing and fingerprinting. 	(ECF No. 58, PageID #409–12, #460–63, &
#565–66.) 	In her closing argument, defense counsel asked, “Do you think that
scientific tests take that long anymore? No. 	They could have easily [finger]printed
this magazine. . . . These officers created this problem, but you know what? 	They
have taken you for granted. 	You weren’t important enough for them to do their job
thoroughly.” (Id., PageID #638.) Later in her closing, defense counsel reemphasized
her point:
[ATF] Agent Norman says ‘it’s our policy. We don’t [DNA or fingerprint]
test the simple possession cases.’ But that’s only if you find the evidence
on the person, at the time. 	And again, I agree, it isn’t necessary if you
do, but they did not. What would it have taken for [ATF] Agent Norman
to submit that magazine for one simple test? 	Nothing. 	Particularly
when it wasn’t with [Mr. Bethune] at the time.
(Id., PageID #641.) 	Petitioner has not overcome the “strong presumption” that
defense counsel’s decision to leverage the absence of DNA testing and fingerprinting
can “be considered sound trial strategy.” 	Strickland, 466 U.S. at 689. 	Defense
counsel’s legitimate trial strategy of emphasizing purported 	deficiencies in the
investigation is “entitled to deference in the absence of any evidence that it was
unreasonable.” 	United States v. Mickel, No. 1:20-cr-159, 2024 WL 2081020, at *7
(N.D. Ohio May 9, 2024). 	“Trial counsel’s tactical decision to attack the lack of
thoroughness of the officers’ investigation and not to do their investigation for them
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by seeking DNA on her own cannot be said to be unreasonable.” Common v. United
States, No. 1:12-cr-82, 2018 WL 4604018, at *4 (E.D. Tenn. Sept. 25, 2018). Therefore,
the record conclusively shows that Mr. Bethune is not entitled to relief based on
defense counsel’s alleged ineffectiveness in deciding not to obtain fingerprint and
DNA testing of the magazine or ammunition.
III. 	Failure to Subpoena Witnesses of the Pat-Down Search at the Jail
Petitioner’s third ground for relief is that defense counsel rendered ineffective
assistance because she “failed to subpoena witnesses [to the] pat-down on Bethune at
the county jail.” 	(ECF No. 63, PageID #730.) 	Specifically, Petitioner argues that
defense counsel “failed to subpoena Corporal Brunello to testify at [the] trial to what
he had witnessed of the pat-down search of Bethune by Corporal Ciurlik and w[h]ere
the pat-down took place in the jail.” (Id., PageID #732.) Petitioner also faults defense
counsel for “fail[ing] to subpoena the officer who was in-charge of [the] dress out room
and who issues clothe[s] out to inmates.” (Id., PageID #738.) He notes that he asked
defense counsel to subpoena these witnesses, but “to no avail.” (Id., PageID #738.)
On one hand, “the decision to call a witness is a ‘classic question[ ] of trial
strategy that merit[s] Strickland deference,” Givhan v. United States, No. 22-5098,
2022 WL 18670368, at *3 (6th Cir. 2022) (citation omitted). Therefore, “complaints
about uncalled witnesses are disfavored.” Mikel, 2024 WL 2081020, at *10 (citations
omitted). 	Moreover, “a defense counsel has no obligation to call or even interview a
witness whose testimony would not have exculpated the defendant.” 	Millender v.
Adams, 376 F.3d 520, 527 (6th Cir. 2004) (quotation marks and citation omitted).
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On the other hand, a “lawyer’s Strickland duty ‘includes the obligation to
investigate all witnesses who may have information concerning his or her client’s
guilt or innocence.’” Ramonez v. Berghuis, 490 F.3d 482, 487 (6th Cir. 2007) (quoting
Towns v. Smith, 395 F.3d 251, 258 (6th Cir. 2005)). The Sixth Circuit holds that trial
counsel performs deficiently when she chooses not to present witness testimony based
on 	unreasonably 	inadequate 	investigation 	and 	preparation. 	See 	English 	v.
Romanowski, 602 F.2d 714 (6th Cir. 2010) (holding that, although counsel’s ultimate
decision not to call a specific witness was not an unreasonable trial strategy, it
constituted 	deficient performance 	because the decision 	was 	based on 	counsel’s
unreasonable decision not to investigate and interview the witness prior to trial);
Combs v. Coyle, 205 F.3d 269, 288 (6th Cir. 2000). 	“Counsel has a duty to make
reasonable investigations or to make a reasonable decision that makes particular
investigations unnecessary.” Rayner v. Mills, 685 F.3d 631, 640 (6th Cir. 2012) (citing
Strickland, 466 U.S. at 691).
Additionally, where the petitioner 	predicates 	an ineffective assistance 	of
counsel claim on a failure to call a witness, he “must provide the substance of the
missing witnesses’ potential testimony.” Clark v. Waller, 490 F.3d 551, 557 (6th Cir.
2007). 	Otherwise, 	the petitioner 	cannot establish 	that his counsel performed
deficiently, or that he was actually prejudiced. Id.
Here, Petitioner does not specifically allege that defense counsel failed to
adequately investigate the case and prepare for trial, such as by failing to interview
the witnesses he says she erred in not calling to the stand. Nor does he state how the
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testimony of Corporal Brunello or the officer who was in charge of the dress-out area
would have exculpated him. Rather, Petitioner argues that Corporal Brunello could
have “testif[ied] at trial to what he had witnessed of the pat-down search of Bethune
by Corporal Ciurlik.” (ECF No. 63-1, PageiD #732.) 	Based on the record, the Court
does not see, and Petitioner does not offer, a reason to believe that the testimony of
Corporal Brunello and the other officer in charge of the dress-out area would have
contradicted or undermined that of their colleagues. Accordingly, these claims fail to
establish ineffective assistance of counsel.
IV. 	Failure to Subpoena Video Footage of the Pat-Down Search
Petitioner’s fourth ground for relief is that defense counsel’s representation
was constitutionally ineffective because she failed to subpoena various pieces of body
camera and security video footage from the county jail, which he argues would have
shown Officer Ciurlik’s pat-down search of Mr. Bethune. 	(Id., PageID #730–38.)
Specifically, Petitioner alleges that defense counsel rendered ineffective assistance of
counsel because she failed to:
[1] “subpoena Corporal Ciurlik[’s] body cam footage of his pat-down search of
Bethune in the intake booking area and/or intake dress out room area”;
[2] “subpoena the video footage of [the] inmate booking area to see if Corporal
Ciurlik patted-down Bethune and removed a magazine from his right front
pocket”; and
[3] “subpoena video footage of [the] intake dress out room area to see if Corporal
Ciurlik entered the room to pat-down Bethune and remove a magazine from
his right front pocket.”
(Id., PageID #732–35.) Petitioner claims that he asked defense counsel to subpoena
such video footage, but she did not do so. (Id., PageID #738.)
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During pretrial case management, the Court discussed discovery several times
with the United States and defense counsel. 	Each time the Court gave the United
States and defense counsel an opportunity to raise issues related to discovery they
declined to do so, aside from defense counsel’s requests for more time to review the
discovery with her client. 	During two separate status conferences before trial, the
United States informed the Court that it had produced all its discovery. 	When the
Court asked defense counsel to confirm, deny, or otherwise correct the assertion that
all discovery had been turned over, she confirmed on both occasions. And during the
final pretrial conference, Mr. Bethune informed the Court that he was satisfied with
defense counsel’s representation.
In cross-examination, defense counsel asked Corporal Ciurlik if he wore a body
camera, to which Corporal Ciurlik replied, “Yes, ma’am, we do.” (ECF No. 58, PageID
#487.) Throughout closing argument, defense counsel emphasized that the jury had
not seen evidence showing the magazine’s complete chain of custody and advanced
the theory that the United States “expect[ed the jury] to convict [Mr. Bethune] on
their word alone.” (ECF No. 58, PageID #638; see also id., PageID #639 (“Again, they
want you to convict Brandon because they say so.”).) 	The record indicates that
defense counsel elected not to subpoena additional video footage so that she could use
the absence of such footage to highlight a deficiency in the prosecution’s investigation
and to cast doubt that the United States carried its burden of proof beyond a
reasonable doubt—a tactical decision that is not manifestly unreasonable.
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Courts 	“apply[] 	a 	heavy 	measure 	of 	deference 	to 	counsel’s 	judgments”
regarding trial strategy. Strickland, 466 U.S. at 691. “To the extent that [Petitioner]
believes his counsel should have undertaken a different strategy in conducting the
investigation and determining how best to advocate on [his] behalf, these are tactical
decisions that cannot form the basis for an ineffective assistance claim.” 	Buell v.
Mitchell, 274 F.3d 337, 360 (6th Cir. 2001).
V. 	Failure to Subpoena and Cross-Examine on Body Camera Policy
Petitioner argues that his counsel was ineffective in failing “to subpoena the
Sheriff’s Dep’t policy and procedure to see if body cam must be turned on while officers
are dealing with hostile inmates” and to question Corporal Ciurlik regarding that
policy and procedure during trial. 	(ECF No. 63-1, PageID #733.) 	Presumably,
Petitioner believes that Corporal Ciurlik did not comply with that policy.
This argument fails both prongs of Strickland. 	First, it was not objectively
unreasonable for defense counsel to choose to introduce doubt simply by presenting
the fact that Corporal Ciurlik wore a body camera (ECF No. 58, PageID #487),
together with the absence of body camera footage in evidence, to the jury. Defense
counsel’s 	tactical 	decision 	not 	to 	engage Corporal 	Ciurlik over 	the details 	of
Department policy—which might have confused the jury, obscured the impact of her
point, or provided him an opportunity to explain or minimize his actions—was a
legitimate trial strategy.
Second, Petitioner does not establish prejudice as a result of defense counsel’s
decision. 	The jury convicted despite the attention that defense counsel did draw to
the absence of video footage. Given the quantity of evidence presented at trial, there
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was 	not “a 	reasonable 	probability 	that,” 	but 	for 	introduction 	of 	the 	Sheriff’s
Department’s body camera policy, “the result of the proceeding would have been
different.” 	Strickland, 466 U.S. at 694. 	Therefore, Petitioner cannot maintain an
ineffective-assistance claim on this basis.
VI. 	Failure to Provide and Use Incident Reports
In his sixth ground for relief, Petitioner maintains that defense counsel did not
provide him with investigation or incident reports written by police officers and
Corporal Brunello, introduce those reports into the record as evidence, or cross-
examine officers at trial based on their written incident reports. (ECF No. 63-1,
PageID #731–34.)
Again, Petitioner does not meet his burden of showing a reasonable probability
that, but for these omissions, the result of the proceeding would have been different.
See Strickland, 466 U.S. at 694. 	If the reports had been inculpatory or consistent
with the officers’ testimony, introducing them at trial would not have benefitted
Petitioner’s defense. 	And Petitioner offers no reason to believe that the reports are
exculpatory or inconsistent with testimony at trial.
VII. 	Failure to Ask Juror Question
Finally, Petitioner contends that defense counsel “failed to have Ciurlik
answer the specific question by the court, ‘Is there footage that would specifically
show his pat-down search on Bethune in the jail.’” (ECF No. 63-1, PageID #736.)
After Corporal Ciurlik testified, the Court provided jurors an opportunity to
ask him questions of their own. 	(ECF No. 58, PageID #483–84.) 	Summarizing two
questions that jurors submitted to the Court, the Court asked: “Is there other footage
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available from that area of the jail and is there footage that would specifically show
the pat-down search that you performed?” 	(Id., PageID #486.) 	Corporal Ciurlik
responded, “The county does have cameras in those areas, and I do believe there is a
camera like right over that desk.” (Id.)
Accordingly, Corporal Ciurlik testified to the existence of footage that might
show his pat-down 	search in the jail. 	Petitioner does not explain why it was
unreasonable for defense counsel not to repeat the question, or why a repetition of
the question might have affected the outcome of the trial. 	To the extent that
Petitioner means to argue that defense counsel should have asked the question before
the Court did, his argument necessarily fails the prejudice prong of Strickland—the
question was asked. Petitioner does not suggest any reason to believe that prejudice
resulted from the witness answering that question from the Court rather than
defense counsel. Therefore, this claim for ineffective assistance fails.
CERTIFICATE OF APPEALABILITY
Without a certificate of appealability, a habeas petitioner cannot appeal a final
order in a habeas proceeding. 28 U.S.C. § 2253(c)(1). Issuance of a certificate of
appealability requires a petitioner to make “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). 	This means that the petitioner must
show that reasonable jurists would find the district court’s determination of the
relevant constitutional claims debatable or incorrect. 	Tennard v. Dretke, 542 U.S.
274, 282 (2004). 	The petitioner need not show that the appeal would succeed to be
eligible for a certificate of appealability. Miller-El v. Cockrell, 537 U.S. 322, 337
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(2003). Based on the deferential standard under Strickland, the Court doubts that
reasonable jurists would reach a contrary determination. In light of the fact-intensive
nature of claims involving ineffective assistance of counsel, however, reasonable
jurists might fairly debate the issues. Therefore, the Court GRANTS a certificate of
appealability.
CONCLUSION
The record establishes that Petitioner received representation that satisfies
his Sixth Amendment right to counsel. Accordingly, the Court DENIES Petitioner’s
motion to vacate his sentence under 28 U.S.C. § 2255 and determines that an
evidentiary hearing is not warranted. Pursuant to 28 U.S.C. § 2253, the Court
GRANTS a certificate of appealability.
J. Philip Calabrese
United States District Judge
Northern District of Ohio
SO ORDERED.
Dated: November 24, 2025
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