ALAN J. BAVERMAN, Magistrate Judge.
Movant, Adolphus Dixon, has filed a 28 U.S.C. § 2255 motion to vacate, set aside, or correct his federal sentence entered under the above criminal docket number. The matter is before the Court on the § 2255 motion, [Doc. 101], Movant's motion for an evidentiary hearing, [Doc. 102], and Respondent's response, [Doc. 106]. For the reasons discussed below, Movant's motion to vacate and motion for an evidentiary hearing are due to be denied.
The grand jury for the Northern District of Georgia charged Movant with five counts of armed robbery, 18 U.S.C. § 1951; five counts of brandishing a firearm during a crime of violence, 18 U.S.C. § 924(c)(1)(A)(ii); and one count of attempted bank robbery, 18 U.S.C. § 2113. [Doc. 17.] Movant pleaded not guilty and proceeded to trial represented by Anna Blitz and Jeffrey Ertel. [Docs. 25, 64.] The jury found Movant guilty on all counts. [Doc. 70.] On January 8, 2010, the Court imposed ten concurrent life terms of imprisonment and one concurrent 240-month term of imprisonment. [Doc. 81.] Movant directly appealed, represented by Ms. Blitz and Mr. Ertel, and, among other things, contested the district court's rejection of his gender-based Batson
In his § 2255 motion, Movant presents the following six grounds for relief:
Section 2255 of Title 28 allows a district court to vacate, set aside, or correct a federal sentence that was imposed in violation of the Constitution or laws of the United States or was imposed by a court without jurisdiction, exceeds the maximum sentence authorized by law, or is otherwise subject to collateral attack. 28 U.S.C. § 2255. Section 2255 relief is limited. A § 2255 motion "may not be a surrogate for a direct appeal," and a defendant "must assert all available claims on direct appeal." Lynn v. United States, 365 F.3d 1225, 1232 (11
The Court will grant a hearing on a motion to vacate unless "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." Gordon v. United States, 518 F.3d 1291, 1301 (11
After the jury selection process, Movant argued that "the government exercised five of its six peremptory strikes on the panel, six of seven total against women. And we think that makes out a prima facie case of gender discrimination and request[] that the government be required to give gender-neutral reasons." [Doc. 90 at 79.] The Court stated, "by my calculation, you would need for the panel makeup to match the jury box, you would need at least seven to twelve jurors to be female, which there are. There are eight jurors of the twelve in the box that are female. . . . Make your proffer as to why you exercised each strike as to each female juror." [Id. at 80.] The government inquired whether the Court had found that Movant had made a prima facie case of gender discrimination, and the Court responded, "I really do not find so, but I am going to ask you to state for the record gender-neutral reason for your strike." [Id.]
The government stated that it struck (1) Juror Seven because she had a science background and dealt with a lot of sewage, (2) Juror Eight because she was unemployed and seemed disinterested when answering questions, (3) Juror Twenty because she worked in telecommunications, and (4) Juror Fifteen because she said her sister had a drug problem and she worked for Avon. [Id. at 80-81.] Movant objected that the reasons were pre-textual — arguing that other potential jurors had scientific backgrounds and other potential jurors were unemployed. [Id. at 81, 84.]
The Court stated, "I don't find . . ., with seven of the twelve jurors being female. . ., I don't find a pattern of excluding female jurors." [Id. at 83.] The Court also stated that it noted and accepted the government's explanation and that it denied Movant's motion/challenge. [Id. at 84.]
On direct appeal, Movant argued that the trial court erred in overruling his Batson challenge to the prosecution's use of discriminatory peremptory strikes against women during jury selection. Brief of Appellant at 17, United States v. Dixon, No. 10-10313-EE (11
The government argued that Movant's claim failed because he never had established a prima facie case of gender discrimination. See Reply Brief of Appellant at 1, Dixon, No. 10-10313-EE (11
The Eleventh Circuit found that—
Dixon, 401 Fed. Appx. at 493.
Movant argues in Grounds One and Two of his § 2255 motion that trial and appellate counsel performed ineffectively by failing to raise a "comparative analysis" argument — comparing the jurors that the prosecution struck with jurors the prosecution allowed to serve — to show that the prosecution used discriminatory peremptory strikes during jury selection.
A criminal defendant possesses a Sixth Amendment right to "reasonably effective" legal assistance. Strickland v. Washington, 466 U.S. 668, 687 (1984). To show constitutionally ineffective assistance of counsel, a movant must establish that (1) counsel's representation was deficient and (2) counsel's deficient representation prejudiced him. Id. at 690-92. The Court may resolve an ineffective assistance claim based on either of the above prongs. Bottoson v. Moore, 234 F.3d 526, 532 (11
A three-part test exists for resolving Equal Protection challenges to peremptory strikes. "First, the party challenging the peremptory strike must establish a prima facie case of discrimination." Cent. Ala. Fair Hous. Ctr., Inc. v. Lowder Realty Co., 236 F.3d 629, 636 (11
Id. at 636 (citation omitted). In establishing a prima facie case of discrimination, relevant circumstances also may include comparisons between stricken and non-stricken jurors, which show that persons accepted as jurors have the same qualities as stricken jurors. Capers v. Singletary, 989 F.2d 442, 447 (11
Cent. Ala. Fair Hous. Ctr., Inc., 236 F.3d at 636 (citation omitted).
Here, although the Court requested and accepted the government's proffered explanation, it first found that Movant had failed to make a prima facie case. Further, the Eleventh Circuit Court of Appeals found no error in the Court's determination that Movant had failed to make a prima facie case. Accordingly, the Court does not now inquire into whether counsel was ineffective in regard to the second or third steps of the Batson challenge, see id., but instead inquires into counsel's performance in regard to raising a comparative-analysis argument to establish a prima facie case of discrimination, see Capers, 989 F.2d at 447.
Movant raises in his § 2255 motion nothing significant that counsel did not raise either before trial or on appeal in comparing the stricken and non-stricken jurors. Thus, the only question is whether Movant has shown that counsel was deficient in failing to press the comparative argument as part of his prima facie showing and whether, if he had, there is a reasonable probability that it would have changed the outcome. Movant fails to do so.
Before trial, the Court was aware of the comparisons articulated by Movant on the jurors' unemployment and scientific backgrounds and, nonetheless, did not recede from its ruling that Movant had failed to make a prima facie case.
Movant and Christopher Smith both were charged for armed robbery and brandishing a firearm, in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii), 1951, and 2, based on the robberies of Family Dollar stores on Moreland Avenue, Martin Luther King Jr. Drive, and Cascade Road, in Atlanta, Georgia. [Doc. 17 at 1-5.] Movant also was indicted for armed robbery and brandishing a firearm, in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 1951, based on the robberies of Super IGA Foods, on Moreland Avenue, and Rite Aid, on Memorial Drive, also in Atlanta, Georgia. [Id. at 3-6.]
At trial, Nicole Malone, a customer at the Martin Luther King Jr. store testified to seeing a gun during the robbery and described it as a "revolver" — "it had a big barrel and I just remember saying I got to get out of here because I don't want to feel that on my back. . . . I continued to walk out of the store with my baby." [Doc. 90 at 176-77, 181-82.] Patricia Sapp, an employee at the Martin Luther King Jr. store, also described the gun used during the robbery as a revolver. [Id. at 151.] Darce Loggins, cashier at the Moreland Avenue store, testified that Movant pointed a gun at his face at a distance of about one or two feet and that he dropped the change that he was holding, put his hand up, and stepped back, at which point Movant jumped the counter and began taking money from the register. [Id. at 131.] Shavonte Ferrell, Assistant Manager at the Moreland Avenue store, testified that she saw the gun and that she then opened the "drop box" and gave Movant the money. [Id. at 111-12.] Jonathan Lowe, cashier at the Cascade Avenue store, testified that "they had put the gun on me," that he backed up from his cash register because he did not want to get shot, and that one of the robbers took the money from his register. [Doc. 91 at 25-26.] Romedia Walter, cashier at Super IGA Foods, testified that, just as she was about to give the robber change from his purchase, he pulled a gun on her and told her to back up and move; that she backed up and moved; and that he took the money from her register. [Id. at 37, 43.] Chiara Warren, cashier at Rite Aid, testified that when Movant showed her his gun, she did not think he was playing and "just did what he told me . . . so I wouldn't get hurt or anything." [Id. at 167.]
Smith — who pleaded guilty — testified that Movant participated in the Family Dollar store robberies, that Movant possessed a firearm during the Moreland Avenue robbery, that Movant gave him the firearm during the Martin Luther King Jr. Drive robbery, and that he, Smith, possessed and used the firearm during the Cascade Road robbery. [Doc. 92 at 26-27, 32, 35, 46-47.] Smith agreed that the gun was a .38 revolver, which held bullets. [Id. at 54, 86-87.]
Movant argues that trial and appellate counsel performed ineffectively because — although no handgun was recovered and there was no photographic array for witnesses to use in identifying the handgun — counsel did not attempt to discredit government witnesses' false statements regarding the handgun, question witnesses as to whether they "felt" that the gun was real or a toy, or argue that there was no proof to show that the handgun was real as opposed to being a toy. [Doc. 102 at 14-15.] Movant asserts, without explanation, that there is a reasonable probability that the result of the proceedings would have been different but for the deficiency of counsel. [Id.]
The standard for ineffective assistance reviewed earlier applies. It is a crime to brandish a "firearm" during and in relation to a crime of violence. 18 U.S.C. § 924(c)(1)(A)(ii). "A `firearm' [under § 924(c)] is any weapon `which will or is designed to or may readily be converted to expel a projectile by the action of an explosive,' the `frame or receiver of any such weapon,' or `any firearm muffler or firearm silencer.'" United States v. Hunt, 187 F.3d 1269, 1270 (11
Movant does not clearly identify the witness statements that, allegedly, were false; provides nothing to show that any particular statement at trial regarding the gun was false; and does not propose any viable challenge that counsel could have launched to discredit the testimony regarding the use of a gun during the robberies. Absent the proffer of any workable challenge that counsel could have raised, at trial or on appeal, Movant fails to show that counsel was deficient.
Further, there was ample evidence showing that the device used in Movant's crimes was a firearm and not a toy. See Hunt, 187 F.3d at 1271. It is readily apparent from the victims' various reactions to the gun — quickly leaving the store to avoid danger, putting hands up, backing away from cash registers and allowing the robber to take money, opening a drop box and giving money to the robber, and doing whatever the robber said to avoid getting hurt — that any defense questioning on whether the victims/witnesses "felt" the gun was real or a toy would have confirmed that they did believe the gun was real. In light of the testimony by numerous witnesses — that they saw a gun during the robberies, the witnesses'/victims' demonstrated belief that the gun was real, and the testimony that the gun was a "revolver" or a ".38 revolver" and that it held bullets and had a "big barrel," [Doc. 90 at 181-82; Doc. 92 at 54] — there is no reasonable probability that an argument by counsel that there was no proof to show that the gun was actually real and that it may simply have been a toy would have changed the jury's conclusion that Movant's crime involved the use of a firearm. Movant fails to show ineffective assistance of counsel on this issue.
In Ground Four, Movant argues that the government violated the Constitution by using discriminatory peremptory strikes against women during jury selection. [Doc. 102 at 16-20.] In Ground Five, Movant argues that the district court erred in overruling his Batson challenge to the prosecution's use of peremptory strikes against women. [Doc. 102 at 21-25.]
A habeas court cannot grant "collateral relief on a matter raised on direct appeal." Gilbert, 640 F.3d at 1331. As stated earlier, on direct appeal Movant argued that this Court erred in overruling his challenge to the government's use of peremptory strikes. Brief of Appellant at 17, Dixon, No. 10-10313-EE. The Eleventh Circuit Court of Appeals found no error in the Court's decision, and the Eleventh Circuit's opinion forecloses Movant's repeated challenge to the Court's decision and the government's use of its strikes. Movant may not revisit these issues in a § 2255 proceeding.
Movant argues that trial and appellate counsel performed deficiently by failing to argue that no firearm was ever recovered from Movant, his residence, or his vehicle, and that counsel's deficiency prejudiced him. [Doc. 102 at 26-28.]
The Strickland standard again applies. As stated earlier, "[t]he government need not offer the gun itself into evidence" for a jury to find that a defendant used a firearm while committing a crime of violence under § 924(c)(1). Hunt, 187 F.3d at 1271. Based on the evidence before the jury that a firearm was possessed and used during the robberies at issue, there is no reasonable probability that the outcome would have been different if counsel had argued, at trial or on appeal, that the actual gun had not been located or submitted into evidence.
Pursuant to Rule 11 of the Rules Governing § 2255 Cases, "[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant. . . . If the court issues a certificate, the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2)." Section 2253(c)(2) states that a certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." To satisfy that standard, a movant must demonstrate that "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Lott v. Attorney Gen., 594 F.3d 1296, 1301 (11
Jimenez v. Quarterman, 555 U.S. 113, 118 n.3 (2009) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
It is recommended that a COA is unwarranted because it is not debatable that Movant has failed to show ineffective assistance of counsel and that his Batson challenge has already been decided on direct appeal and may not be relitigated. If the Court adopts this recommendation and denies a COA, Movant is advised that he "may not appeal the denial but may seek a certificate from the court of appeals under Federal Rule of Appellate Procedure 22." Rule 11(a), Rules Governing Section 2255 Proceedings for the United States District Courts.
For the reasons stated above,
The Clerk of Court is