FRANK D. WHITNEY, Chief District Judge.
On February 17, 2009, Petitioner was charged by bill of indictment with one count of being a felon-in-possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), with said offense to have occurred on August 15, 2008. (3:09-cr-00017, Doc. No. 1). On January 19, 2010, while this charge was pending, the Government filed a superseding indictment which included the 2009 Section 922(g) charge (Count One), and three additional charges. In Count Two of the superseding indictment, Petitioner was charged with the possession of a Savage model 350, 12 gauge shotgun that had a barrel of less than 18 inches and had not been registered as required by the National Firearms Registration and Transfer Record, all in violation of 26 U.S.C. §§ 5841, 5861(d) and 5871. In Count Three, Petitioner was charged with multiple instances of obstruction of justice, with such offenses occurring between March 10, 2009, and April 20, 2009, based on his alleged effort to impede the prosecution of the § 922(g) charge in the original indictment, in violation of 18 U.S.C. § 1503. In Count Four, Petitioner was charged with attempting to corrupt, persuade and influence the testimony of another person in an official proceeding, in violation of 18 U.S.C. § 1512(b)(1). (
On May 4, 2010, Petitioner's case came on for a jury trial on the four charges in the superseding indictment. The evidence at trial tended to show that Petitioner shot his girlfriend, Tishean Reid, with the Savage model 12-gauge shotgun following a domestic dispute. Reid suffered serious injuries to one of her arms and her chest. At the time of the shooting, Reid's two minor children were present, one of which was mentally disabled. After the shooting, Petitioner ran from the residence and yelled for assistance. Police responded and encountered Petitioner who initially provided law enforcement with an alias. Petitioner later revealed his true identity and denied any knowledge of, or involvement in the shooting and Petitioner declined to allow officers to search the residence where the shooting occurred. Police spoke with T.D.
The Government also presented evidence of phone calls that were recorded at the Mecklenburg County jail between Petitioner and Reid that occurred while Petitioner was awaiting trial. Through these calls, Petitioner asked Reid to lie about Petitioner's knowledge that the shotgun had been located in the residence, and he even attempted to influence Reid to say that the shotgun was brought to the residence by T.D. after he found it on a nearby playground. Petitioner then changed the story to reflect that upon finding the shotgun in the residence, he became angry and the gun later accidentally discharged. Petitioner and Reid also discussed other possible scenarios to explain the shooting which included a story that the shooter was an unnamed perpetrator of an armed robbery; or that it was a retaliatory shooting by an individual named T. In furtherance of this scheme to corrupt the prosecution, Reid provided an affidavit that was filed with the Court that recanted previous statements she made during the investigation, including her admission to law enforcement that Petitioner was the individual that shot her in her residence. In seeking to exonerate Petitioner, Reid explained that she initially identified Petitioner as the shooter, after she "reacted out of anger" following the shooting because Petitioner stated that he would leave her.
On May 6, 2010, Petitioner was convicted on all four charges and Petitioner was sentenced to concurrent terms of 120-months on Counts One, Two and Three, and a term of 168-months' imprisonment for his conviction on Count Four.
Pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings, sentencing courts are directed to promptly examine motions to vacate, along with "any attached exhibits and the record of prior proceedings" in order to determine whether a petitioner is entitled to any relief. The Court has considered the record in this matter and applicable authority and concludes that this matter can be resolved without an evidentiary hearing.
In his first claim, Petitioner contends that he is actually innocent of his § 922(g) offense because the prior § 922(g) conviction, which he sustained in 2005, is now invalid based on his contention that the underlying offenses that supported the 2005 conviction are no longer valid, felony convictions based on the Fourth Circuit's en banc decision in
Petitioner raised this same claim on direct appeal and it was denied. The Fourth Court reasoned as follows:
Petitioner's first claim for relief will be denied because the Fourth Circuit has already ruled against him on this very claim.
Here, Petitioner raises claims of ineffective assistance of counsel.
The Sixth Amendment to the United States Constitution provides that all defendants charged with a crime have the right to effective assistance of counsel. In order to prevail on a claim of ineffective assistance of counsel, a petitioner must show that: (1) "counsel's representation fell below an objective standard of reasonableness," and (2) the deficient performance was prejudicial to the defense.
Petitioner "bears the burden of proving
Petitioner claims that his trial counsel was ineffective in failing to challenge the sufficiency of the superseding indictment. (3:13-cv-00215, Doc. No. 1 at 24). Specifically, Petitioner argues that Counts Three and Four failed to provide him with proper notice of what person he was attempting to corruptly influence or what proceeding he was allegedly attempting to obstruct. "The sufficiency of an indictment should be determined by practical, as distinguished from purely technical, considerations. Does it, under all of the circumstances of the case, tell the defendant all that he needs to show for his defense, and does it so specify that with which he is charged that he will be in no danger of being a second time put in jeopardy? If so, it should be held good."
As discussed herein, Petitioner's ability to obtain relief on a claim of ineffective assistance of counsel is two-fold, that is, he must establish both that his counsel was ineffective in not challenging the sufficiency of the indictment, and that he was prejudiced by the failure to challenge this alleged deficiency. Petitioner fails in both respects.
In Count Three of the superseding indictment it is alleged that from on or about March 10, 2009 to April 20, 2009, while within Mecklenburg County, Petitioner "did corruptly influence, obstruct and impede and endeavored to influence[,] obstruct and impede the due administration of justice in United States v. Neal, No. 3:09CR17 . . ." In Count Four, it is alleged that in Mecklenburg County, between March 10, 2009, and April 30, 2009, Petitioner "knowingly did and attempted to corruptly persuade another person with intent to influence the testimony of that person in an official proceeding . . ." (3:09-cr-00017, Doc. No. 60: Superseding Indictment).
Petitioner blankly contends that the superseding indictment failed to properly notify him of the nature of the testimony or the identity of the person whom he allegedly tried to corruptly influence, "[t]hereby providing Petitioner with no clear picture of what conduct he needed to defend himself" or of what proceeding he was trying to improperly influence. (3:13-cv-00215, Doc. 1 at 24). While it is true that the person he tried to corruptly influence is not identified by name in the indictment, it is of no moment because the record makes clear that Petitioner knew the identity of the person named in the superseding indictment and that he knew what proceeding he was trying to convince her to corruptly influence.
For example, on March 3, 2010, Petitioner's counsel filed a motion to dismiss the superseding indictment on Speedy Trial grounds. During the hearing on this motion, counsel notes that a potential witness, Ms. Tishean Reid, was charged in a criminal complaint by the Government with obstruction of justice in this district, and Ms. Reid is repeatedly identified during the hearing as Petitioner's girlfriend at the time of the shooting. The discussions during the hearing also included frequent references to Ms. Reid's belief that the Government was deliberately pressuring her with criminal prosecution based on her efforts to change her initial statements to law enforcement that Petitioner was that one that shot her.
Petitioner was present for this hearing that was conducted on March 29, 2010, which was more than a month before his trial began; therefore had he been confused about the identity of the person that he was attempting to corruptly influence, or confused as to the identity of the proceeding that he was attempting to influence, Petitioner — who was no stranger to filing pro se motions — could surely have raised this issue long before now. (3:09-cr-0017, Doc. No. 116: Tr. of Speedy Trial Hearing).
Based on the foregoing, the Court finds that it is simply frivolous for Petitioner to contend that he did not know who he was charged with trying to convince to obstruct justice or that he did not know what "official proceeding" was at issue. Accordingly, he has failed to demonstrate any right to relief under
Petitioner next argues that his counsel was ineffective by failing to properly convey a plea offer to him which could have led to a guilty plea to Count One of his original indictment. (3:13-cv-00215, Doc. No. 1 at 31). Petitioner's trial counsel, Mr. Forrester, who incidentally was his fourth counsel appointed in the criminal proceeding, was appointed on November 20, 2009, which is roughly two months before the grand jury returned the superseding indictment.
Prior to the return of the superseding indictment, Petitioner contends that Mr. Forrester presented him with a plea agreement which provided that if he would agree to plead guilty to the § 922(g) charge in his original indictment, he would be sentenced to 10-years' imprisonment upon conviction. Petitioner asserts that he was interested in the offer but asked Mr. Forrester if he could obtain a lesser sentence. Petitioner contends that his counsel rebuffed that inquiry and said "that was the best he could get." (
Petitioner also argues that after presenting him with the plea agreement, counsel failed to advise him of the advisory nature of the Guidelines or that he could have received a reduction in his Guidelines range based on acceptance of responsibility and therefore a sentence below the ten-year projected sentence. Petitioner argues that had his counsel correctly advised him of his potential penalties, he would have admitted his guilt to the § 922(g) charge and that he would have likely received a lesser sentence.
The Supreme Court has expressly recognized that a defendant has the right to "effective counsel during plea negotiations."
In response to Petitioner's § 2255 motion, the Government states without equivocation that it would have pursued the ten-year statutory maximum if Petitioner had pled guilty to Count One "given the egregious facts of this case, which involved [Petitioner] shooting his girlfriend in front of her disabled son and asking the other son to hide the gun only a few years after an earlier federal felon-in-possession conviction . . ." (3:13-cv-00215, Doc. No. 9: Response at 19). Thus, notwithstanding the advisory nature of the Guidelines or counsel's other alleged errors, the Government would still have expressed its position at sentencing that Petitioner should receive the statutory maximum on the § 922(g) offense. Moreover, during sentencing the Government argued for a sentence of 168-months for conviction on Count Four.
Additionally, Petitioner's claim that but for his counsel's sentencing advice, he would have pleaded guilty to the § 922(g) charge and therefore avoided the potentially harsher punishment following the filing of the superseding indictment is wholly belied by the record. To wit, Petitioner filed a sworn statement that in the lead-up to his trial on the charges in the superseding indictment, his attorney informed him that he would only continue as his counsel if Petitioner would "accept a plea deal." (3:09-cr-00017, Doc. No. 91 at 3 ¶ 3). Notably though, Petitioner does not contend that he instructed his counsel to pursue a plea offer or that he even wished to pursue a plea agreement after the superseding indictment was filed. Petitioner further averred in this statement that "[w]henever I called [counsel] to reaffirm my willingness to proceed to trial, he tells me to listen to myself talking and then places the phone on the table without responding." (
Additionally, there was ample testimony from law enforcement that Petitioner denied that he possessed the shotgun during the investigation, and testimony from T.D. that Petitioner did possess the shotgun. (
In sum, Petitioner presented sworn statements during his testimony at trial that he did not possess the 12-guage shotgun and sworn statements that after the superseding indictment was returned he insisted on going to trial; the Government presented substantial evidence of his efforts to convince Ms. Reid to lie during her testimony that Petitioner did not possess the shotgun which was long before the presentation of the plea agreement;
However, even though Petitioner's claim in his § 2255 motion appears baseless, the Court ordered an evidentiary hearing on this claim and appointed counsel for Petitioner because of the parties' conflicting positions on this issue. (3:13-cv-00215, Doc. No. 18). During the hearing, Mr. Forrester and Petitioner testified. After considering the foregoing, the evidence presented during the hearing, and the record in this matter, the Court finds that Petitioner's contention that his counsel stated that he would have certainly faced a 10-year mandatory-minimum term is without merit, as is his contention that he was not properly advised about the potential impact of the Guidelines on his sentence.
For instance, Petitioner freely admitted during the hearing that he lied during his criminal trial about the charges in the superseding indictment, but he nevertheless contended that he was truthful regarding his allegations that his counsel misinformed him about his sentence upon conviction on the § 922(g) charge and about the potential impact of the Guidelines on his sentence.
Petitioner next argues that he received ineffective of appellate counsel because his counsel failed to challenge this Court's ruling which denied his trial counsel's pretrial motion to dismiss on Speedy Trial grounds or under the Sixth Amendment right to a speedy trial. (3:13-cv-215, Doc. No. 1 at 35). This Court held a lengthy hearing on the motion to suppress, and received testimony from Betsy Wallace, operations manager for the Clerk's office in this District, regarding her calculation of the time under the Speedy Trial Act. After considering her testimony, the record in this matter, the applicable authority and arguments of counsel, the Court denied Petitioner's motion to dismiss as being without merit and Petitioner did not challenge this finding on appeal.
The test for ineffective assistance of appellate counsel is the same as it is for trial counsel. Specifically, "[i]n order to establish a claim that appellate counsel was ineffective for failing to pursue a claim of direct appeal, the applicant must normally demonstrate (1) that his counsel's representation fell below an objective standard of reasonableness in light of the prevailing professional norms, and (2) that there is a reasonably probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."
The Court has already ruled that Petitioner's rights under the Speedy Trial Act and the Sixth Amendment were not violated and finds no need to revisit this issue in light of the Court's prior ruling. In other words, the Court finds that Petitioner's appellate counsel was not ineffective in failing to raise this argument on appeal.
Next, Petitioner raises another claim that his trial counsel was ineffective by failing to object to this Court's "error of admitting expert testimony without conducting an inquiry into his qualifications." (3:13-cv-00215, Doc. No. 1 at 39). During the Government's case-in-chief, Detective Mike Davis testified that he recognized the voices of Petitioner and Ms. Reid after listening to telephone calls that were made while Petitioner was incarcerated. The substance of these telephone calls served as the evidentiary basis for Counts Three and Four in the superseding indictment, and Petitioner contends that the admission of Det. Davis' testimony prejudiced him. This argument is without merit because Det. Davis was not offered as an expert witness by the Government and the testimony that he provided was based on his familiarity with their voices which he gained during the investigation. Put simply, this testimony is perfectly permissible lay testimony. Lastly, the jury was allowed to hear the recordings of the jailhouse telephone calls and to judge the credibility of Det. Davis' testimony. For these reasons, and based on the overwhelming evidence of Petitioner's guilt, the Court finds that Petitioner has failed to demonstrate
In his final claim, Petitioner challenges the Court's order which required him to reimburse the Government for the costs of his court-appointed counsel. (3:13-cv-00215, Doc. No. at 43).
Based on the foregoing, the Court finds that Petitioner's § 2255 motion fails to state any claim upon which relief may be granted and the Government's motion to dismiss will therefore be granted.
The Clerk is directed to close this civil case.
SO ORDERED.
