MEMORANDUM AND ORDER
CARLOS MURGUIA, District Judge.
This case is before the court on defendant Demetrius R. Hargrove's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. 432). Defendant raises several claims of ineffective assistance of counsel, including that counsel was ineffective for failure to move for dismissal of Counts One and Two, failure to properly cross-examine witnesses, and failure to adequately use expert witnesses. Defendant has failed to show that his counsel's actions were objectively unreasonable. But, even if the court found counsel's actions were unreasonable, defendant was not prejudiced because defendant has not shown that there is a reasonable probability that, but for counsel's errors, the results of the proceeding would have been different. The government provided many witnesses and substantial evidence which, even had certain testimony been disregarded, could still have led a reasonable jury to find defendant guilty of the crimes charged. Defendant is not entitled to habeas relief.
I. Factual Background
On February 19, 1998, police found the bodies of Elmer Berg and Misty Castor in Berg's car in a park in Kansas City, Kansas. Both were shot twice from close range. Castor was three months pregnant when she died. At trial, Shawn Wright testified that Berg was approximately $500-$600 in debt to defendant because defendant fronted Berg crack cocaine. Wright was also in drug debt, and he testified that defendant had threatened his life if he did not pay for the drugs. In addition, Clarence Burnett testified that while both defendant and Burnett were imprisoned, defendant gave detailed information about the double murder. According to Burnett, defendant wanted revenge against Christopher Trotter for testifying against him in a preliminary hearing. Defendant was planning on implicating Trotter for the double murder by writing letters in Trotter's name, describing the murders in detail.
Defendant's girlfriend, Micaela Graham, testified that on the day of the double murder, she drove with defendant to Trotter's house and stayed in the house while Trotter and defendant left with her car. Later that day, she overheard defendant speaking with Trotter about going to a club as an alibi. She also testified that defendant said that he kept giving Berg more and more chances. According to Graham, defendant also mentioned to her that he was sorry about Castor, and that Berg should not have brought her with him. Graham agreed to testify against defendant because she claimed that Castor's and Berg's spirits kept visiting her at night. Graham admitted to having anxiety disorders and taking medication for them.
After Berg and Castor were murdered, Tyrone Richards began telling people that he believed that defendant committed the murders. Joshua Hunt testified that defendant and Trotter were hiding in the bushes, waiting for Richards as Hunt and Richards arrived at Hunt's house. Defendant and Trotter finally caught Richards at his mother's house. After picking up Richards, defendant and Trotter were pulled over by police. Trotter was arrested, but defendant was not. Both defendant and Trotter were charged with kidnapping Richards, who was to testify at that trial.
Richards was found shot to death in the back of his car in Kansas City, Kansas. His hands and feet were bound by duct tape and telephone cords. Gertrude Jones testified to witnessing defendant, identified as "Diamond, " accost Richards at gunpoint. She said that she saw defendant force Richards into the basement. When originally questioned by police, Jones lied, citing fear for her and her children's safety. She also admitted she had been on drugs in violation of her probation agreement. Defendant's counsel also noted discrepancies between the hairstyle of the person Jones described and the hairstyle of defendant.
Maurice Peters, Trotter's cousin, testified that defendant wanted him to kill a federal witness, Shedrick Kimbrell. Instead of shooting Kimbrell, Peters pretended to pull the trigger. Peters told defendant that the gun got jammed.
II. Procedural History
A grand jury charged defendant with a superseding five-count indictment. Count One was the premeditated murder of Elmer Berg through the use of a firearm in violation of 18 U.S.C. § 924(j)(1) and § 1111. Count Two was identical to Count One, but involved the premeditated murder of Misty Castor. Count Three was the premeditated murder of Tyrone Richards with the intent to prevent him from attending and testifying at an official proceeding in violation of 18 U.S.C. § 1512(a)(1)(A). Count Four was aiding and abetting the attempted premeditated murder of Shedrick Kimbrell with the intent to prevent him from attending and testifying at an official proceeding in violation of 18 U.S.C. § 1512(a)(1)(A). Count Five was conspiracy to commit the premeditated murder of Kimbrell with the intent to prevent him from attending and testifying at an official proceeding in violation of 18 U.S.C. § 1512(a)(1)(A) and § 371.
Defendant pleaded not guilty to all charges and proceeded to a twenty-one day jury trial. Before trial, defendant filed a motion in limine regarding Trotter's testimony at the preliminary hearing. Defendant sought to prevent the government from reading the transcript of the testimony into evidence. The court denied the motion, concluding that the admission would not violate defendant's rights under the Confrontation Clause of the Sixth Amendment. During trial, defendant also filed multiple motions relating to Graham's testimony. He requested that Graham produce her mental health records and moved to strike Graham's testimony. The court denied both requests.
At the close of evidence, the court dismissed Count Four. The government requested the death penalty should defendant be found guilty of Counts One, Two, or Three. The jury found defendant guilty of Counts One, Two, Three, and Five and found the defendant should be sentenced to life imprisonment on Counts One, Two, and Three, and sixty months on Count Five. All of the sentences were to run concurrently.
Defendant appealed to the Tenth Circuit. He raised four issues on appeal: (1) the court erred in allowing the testimony of Micaela Graham without a mental examination; (2) the court erred in permitting the use of the state court preliminary hearing testimony from Christopher Trotter; (3) the court erred in permitting evidence regarding a handgun found in a storm drain; and (4) the court erred in refusing to dismiss Counts One and Two. The Tenth Circuit affirmed the District Court's rulings. Defendant then filed the instant pro se motion under 28 U.S.C. § 2255.
III. Legal Standard
28 U.S.C. § 2255 allows "a prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack [to] move the court which imposed the sentence to vacate, set aside or correct the sentence." Not every asserted error of law can be raised in a § 2255 motion. Davis v. United States, 417 U.S. 333, 346 (1974). The appropriate inquiry is whether the claimed error of law was a "fundamental defect which inherently results in a complete miscarriage of justice." Id. (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). The court also looks at whether the motion presents exceptional circumstances, making the need for the remedy is apparent. See id.
Section 2255 motions are not available to test the legality of matters that should have been raised on direct appeal. United States v. Warner, 23 F.3d 287, 291 (10th Cir. 1994) (citing United States v. Cook, 997 F.2d 1312, 1320 (10th Cir. 1993)). A defendant's failure to present an issue on direct appeal bars him from raising the issue in his § 2255 motion, unless he can show cause excusing his procedural default and actual prejudice resulting from the errors of which he complains or can show that a fundamental miscarriage of justice will occur if his claim is not addressed. Id. In addition, issues that have been previously considered and disposed of on direct appeal are barred from a § 2255 motion. Id. at 291.
The court must hold an evidentiary hearing unless the motion and files and records of the case conclusively show that the prisoner is entitled to no relief. United States v. Galloway, 56 F.3d 1239, 1240 n.1 (10th Cir. 1995). The burden is with the defendant to allege facts that, if proven, would entitle him or her to relief. See Hatch v. Oklahoma, 58 F.3d 1447, 1471 (10th Cir. 1995). The allegations must be specific and particularized, not general or conclusory. Id. The court is not required to fashion defendant's arguments for him where his allegations are merely conclusory in nature and lack supporting factual averments. United States v. Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994).
A. Ground One
Defendant contends that his trial counsel was ineffective for failing to move for a dismissal of Counts One and Two of the indictment. Defendant argues that Counts One and Two, violations of 18 U.S.C. § 924(j), rely on 18 U.S.C. § 924(c) and 21 U.S.C. § 841-both of which have five-year statutes of limitations. Defendant claims that counsel was ineffective for failing to get the counts dismissed because they are barred by the applicable statute of limitations.
To prove ineffective assistance of counsel, defendant must show that (1) counsel's representation fell below objective standards of reasonableness and (2) counsel's deficient performance prejudiced defendant. Roe v. Flores-Ortega, 528 U.S. 470, 476-77 (2000) (citing Strickland v. Washington, 466 U.S. 668, 688 (1984)). The court must judge the reasonableness of counsel's challenged conduct on the facts of the particular case. Id. Judicial scrutiny of counsel's performance is highly deferential. Id. In addition, counsel's performance must have been completely unreasonable-not merely wrong. Boyd v. Ward, 179 F.3d 904, 914 (10th Cir. 1999). To show prejudice, the defendant is required to ...