THOMAS D. SCHROEDER, District Judge.
Petitioner Taj Maurice Pittman objects to part of the Order and Recommendation of the United States Magistrate Judge (Doc. 110),
This court reviews de novo those portions of the Magistrate Judge's Recommendation to which Pittman objects. After a careful review and for the reasons set forth below, the court now adopts the Recommendation, as modified herein, denies Pittman's § 2255 motion, and denies his motion to amend as futile.
On June 17, 2008, SunTrust Bank in Concord, North Carolina, was robbed. A SunTrust teller testified that the robber pointed a handgun at her and others and that she believed the gun was black but "might have been silver and black." (Doc. 77 at 53.) Bank surveillance footage depicts a silver, semiautomatic handgun in the robber's hands. (Gov't Ex. 74; Doc. 77 at 32-33.)
On November 7, 2008, a Wachovia Bank in Kannapolis, North Carolina, was robbed. A Federal Bureau of Investigation ("FBI") agent who investigated the robbery testified that the robber displayed a "silver/chrome" handgun during the robbery. (Doc. 75 at 75.)
On November 21, 2008, members of the Charlotte-Mecklenburg Police Department arrested Pittman for the SunTrust and Wachovia robberies. The arrest took place outside the apartment of Pittman's girlfriend, Jessica Malachi. (
The State of North Carolina held Pittman in the Cabarrus County, North Carolina, jail from his arrest until December 3, 2008, when he made bail. (Doc. 75 at 74.) The same day, an FBI agent went to Malachi's apartment to arrest Pittman pursuant to a federal warrant. (
On January 27, 2009, Pittman was arrested in Atlanta, Georgia, after robbing General Nutrition Center ("GNC") retail stores on three occasions. (
After Pittman's arrest in Atlanta, the Atlanta police and the FBI searched the vehicle in which the police found him. (
Pittman was indicted on six counts related to the bank robberies.
Pittman then filed the instant § 2255 petition, which the Magistrate Judge recommended be denied. Pittman now objects to the Magistrate's Recommendation, but only as it relates to Pittman's fourth claim.
Claim four addresses Pittman's convictions as to Counts Three and Six of Pittman's first indictment. Counts Three and Six charged him with violating 18 U.S.C. §§ 924(c)(1)(A)(ii) and 924(c)(1)(C)(i) in connection with the bank robberies. Section 924(c)(1)(A)(ii) imposes a minimum seven-year consecutive term of imprisonment on any person who brandishes a firearm "during and in relation to any crime of violence . . . for which the person may be prosecuted in a court of the United States." Section 924(c)(1)(C)(i) provides a twenty-five-year consecutive minimum sentence for a second or subsequent conviction under subsection 924(c)(1).
In claim four, Pittman alleges that his trial counsel was constitutionally ineffective because she did not move to suppress the contents of the bag found in Pittman's and Malachi's shared bathroom closet. Pittman argues that Malachi had no authority to consent to law enforcement's search of the bag. Had the court agreed and suppressed the guns, Pittman argues, his counsel could have argued that Pittman used the air pistol police found in Atlanta (instead of a firearm) to rob the banks. According to Pittman, this would create reasonable doubt that he used a real firearm while robbing the banks and thus prevent the jury from concluding that he violated §§ 924(c)(1)(A)(ii) and 924(c)(1)(C)(i).
Because the Government's first response to claim four (Doc. 100) was conclusory, this court ordered the Government to provide additional briefing (Doc. 113.) The Government filed its additional briefing on May 23, 2016. (Doc. 116.) Pittman moved for an extension of time to file a supplemental reply, which the court allowed (Doc. 123), even though replies are not allowed as a matter of course. Pittman's supplemental reply, dated September 19, 2016, was filed on September 23, 2016, and is deemed timely. (Doc. 124.) However, along with his reply brief, Pittman filed a motion for leave to amend his pending § 2255 motion to add a claim that he was denied an opportunity to raise a Fourth Amendment challenge to a January 27, 2009 arrest in Atlanta, Georgia. (Doc. 125.)
These matters are now ripe for decision.
To prevail on his claim for ineffective assistance of counsel, Pittman must show that his trial counsel's performance was deficient and that her deficiency prejudiced his case. To show prejudice, Petitioner "must demonstrate `a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' A reasonable probability is one `sufficient to undermine confidence in the outcome.'"
This is such a case. To succeed on the prejudice prong, Pittman must demonstrate a reasonable probability that (a) the court would have suppressed the contested evidence and (b) without the evidence, the jury would not have concluded that he used a firearm to commit the two bank robberies.
Here, it is far from clear that Pittman can demonstrate a reasonable probability that the evidence would have been suppressed.
Indeed, although Pittman has claimed that without the contested evidence (in particular, the two handguns), the jury would not have concluded that he used a firearm in the bank robberies, he now concedes as much in his recent supplemental reply. (Doc. 124 at 1-2 (conceding that "it is true that Pittman's trial counsel[']s failure to pursue the motion to suppress did not prejudice Pittman with respect to his 924(c) charges, because there was other evidence presented at the trial that, independantly [sic], would have influenced the jury to find Pittman guilty of the 924(c) charges").) There is in fact substantial, overwhelming evidence apart from the contents of the duffel bag that indicates that Pittman used a firearm in both robberies.
First, Kamesha Johnson, a girlfriend of Pittman, testified that Pittman owned a handgun. (Doc. 77 at 99, 105.) Second, after his arrest in Atlanta, Pittman admitted to an FBI agent that he had used handguns in both robberies. (Doc. 75 at 140 (SunTrust);
Pittman contends that his trial counsel could have argued that instead of using a firearm, Pittman robbed the banks using the air pistol police found in Atlanta. But there is myriad record evidence against that claim. First, Pittman confessed to using a handgun in both robberies. There is not a reasonable probability a juror could have concluded that by "handgun," Pittman meant "air" or "bb" gun. Second, the air pistol retrieved from Pittman's car in Atlanta is different in color from the gun or guns used in the two robberies. The air pistol is entirely black. (Gov't Exs. 47, 48; Doc. 77 at 8-9.) Eyewitnesses from both robberies recounted the robber wielding a silver handgun (Doc. 77, at 53 (SunTrust); Doc. 75, at 75 (Wachovia)), and SunTrust's surveillance footage depicts a silver handgun in the robber's hands (Gov't Ex. 74; Doc. 77 at 32-33). Furthermore, the handgun police recovered from Pittman's car in Atlanta is silver. (Gov't Ex. 46; Doc. 75 at 149.) Finally, the box police found in plain view on the couch in Ms. Malachi's apartment is for a Taurus handgun. (Gov't Ex. 14; Doc. 75 at 44.)
When the remaining evidence is viewed in total, there is no reasonable probability that without the contested evidence the jury would have concluded that Pittman did not use a firearm in the robberies. Pittman's objection to claim four will therefore be overruled.
Pittman moves to amend his § 2255 motion to assert a claim that he "was not given a full and fair oppertunity [sic] to timely litigate" a Fourth Amendment claim. (Doc. 125 at 1.) Pittman claims that through trial the Government had led him to believe that his January 27, 2009, arrest in Atlanta, Georgia, was based on his driving a stolen car (which he concedes he never challenged because he had obtained the car from someone else and "there was a possibility that it could have been stolen"). (
Amendments to habeas petitions are governed by Federal Rule of Civil Procedure 15(a), which provides that leave should be given "when justice so requires." However, leave should be denied when amendment would be futile.
First, Pittman's proposed new ground for relief is time-barred. This is because the proposed ground for relief is subject to the one-year limitation period imposed by the Antiterrorism and Effective Death Penalty Act of 1996, P.L. 104-132 ("AEDPA") under subsection (f)(1);
Second, despite his assertions to the contrary, Pittman had a fair and full opportunity to litigate his Fourth Amendment search and seizure claims. The trial record is clear that Pittman was aware of the facts which he complains are new to him: the allegation that he was stopped on a BOLO in Atlanta for driving a stolen car suspected of being involved in a carjacking. For example, during trial, there were multiple references to this fact. (Doc. 75 at 86 (Special Agent McCranie testifying it was a suspected "stolen vehicle");
Last, even if the proposed ground for relief were both timely and cognizable on collateral review (neither of which is the case), it would fail on the merits. Petitioner's Fourth Amendment challenge is vague, conclusory, and unsupported and fails in its entirety for these reasons alone. Even assuming that the BOLO the Atlanta police acted on was incorrect to the extent it rested on a suspicion of carjacking, as Pittman now contends, Pittman does not (and did not) challenge the truth of the BOLO's other basis that the vehicle may have been stolen. Thus, Pittman fails to indicate how his claim, even if correct, would provide him any basis for relief under the Fourth Amendment.
For all these reasons, Pittman's motion to amend (Doc. 125) will be denied as futile.
Because, as Pittman now concedes, there is not a reasonable probability that the jury would not have convicted him of the charged armed bank robberies had the court suppressed the contested evidence, he fails to establish that his counsel was constitutionally deficient. Consequently, the court adopts the Magistrate Judge's Recommendation (Doc. 110) as to all claims, as modified herein, and denies Pittman's § 2255 motion. Further, because the requested amendment to the § 2255 motion would be futile, Pittman's motion to amend will be denied.
IT IS THEREFORE ORDERED that Pittman's motion to vacate, set aside or correct sentence, as amended (Docs. 92-94) be DENIED, that his most recent motion to amend (Doc. 125) be DENIED, and that this action be DISMISSED WITH PREJUDICE. Finding neither a substantial issue for appeal concerning the denial of a constitutional right affecting the conviction nor a debatable procedural ruling, a certificate of appealability is not issued.
A judgment in accordance with this Memorandum Order will be entered contemporaneously.
Pittman concedes that Ms. Malachi gave valid consent to search her apartment and that the duffel bag was found in the couple's "shared" bathroom closet, to which Ms. Malachi had joint access. (Doc. 112, at 1; Doc. 116, at 19.) The bag was found under a pile of men's clothing in an open tub that appears to have served as a type of laundry basket. The bag had no identification on it; thus the record leaves open the possibility that it belonged to Ms. Malachi or to Pittman and Ms. Malachi jointly. The most helpful fact for Pittman is that the bag was zipped closed, which is evidence of some intended privacy.
In contrast, the Government cites five cases in which courts admitted evidence obtained through consent searches of jointly controlled spaces. (
