USA v. Daniel Hatcher

Filing

Opinion issued by court as to Appellant Daniel Lamar Hatcher. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam.

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Date Filed: 09/25/2013

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-14359
Non-Argument Calendar
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D.C. Docket No. 2:09-cr-00081-MEF-SRW-1

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DANIEL LAMAR HATCHER,
a.k.a. Doo Doo,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
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(September 25, 2013)
Before CARNES, Chief Judge, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:

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Daniel Hatcher appeals the district court’s denial of his motion for a new
trial based on a claim of ineffective assistance of counsel. Hatcher, who was
convicted by a jury of conspiracy and distributing crack cocaine, rests his
ineffective assistance argument on an apparent communication breakdown with his
trial counsel and the fact that his counsel (1) requested evidence of a previous drug
transaction that the prosecution was not aware of at the time, (2) neglected to
explore whether the government had introduced into evidence the full amount of
drugs found at the crime scene, and (3) failed to cross-examine a government
witness to Hatcher’s satisfaction.
I.
Hatcher was indicted on one count of conspiracy to distribute crack cocaine
and one count of distribution of crack cocaine, in violation of 21 U.S.C.
§§ 841(a)(1) and 846. At trial, the government presented substantial evidence of
his guilt. It played audio recordings of phone calls between Hatcher and Clifford
Ellis, a government informant, arranging a drug purchase on November 5, 2008. It
played an audio recording of the actual controlled buy that took place between
Hatcher and Ellis that same day, and Ellis testified in court about his phone
conversations with Hatcher and the drug transaction itself. Officer Michael
Drummond testified to seeing Hatcher get out of the white sedan in which the drug
sale took place, drop the money used in the deal, and take off running when the
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police arrived. Other officers corroborated the fact that Hatcher had fled the scene.
Finally, the government called a DEA lab analyst who testified that the substance
taken from the white sedan tested positive as crack cocaine and weighed more than
50 grams. Hatcher was eventually found guilty on both counts alleged in the
indictment.
After his conviction, Hatcher filed a pro se motion for a new trial claiming
ineffective assistance of counsel. The district court denied that motion, reasoning
that Hatcher could not establish the required prejudice because of the
overwhelming evidence of guilt. Hatcher later filed another pro se motion
requesting additional time to appeal the denial of his earlier motion and renewing
his request for new counsel. After a hearing on that motion, the district court
granted Hatcher’s request for a new trial and new counsel in “the interest of
justice” under Rule 33 of the Federal Rules of Criminal Procedure. The district
court based its decision on the “strained relationship” between Hatcher and defense
counsel, Donnie Bethel, which resulted in a “lack of communication” between
Hatcher and Bethel. In its order, the district court noted that it was not granting the
new trial based on ineffective assistance of counsel because the performance of
Hatcher’s counsel had not been deficient or prejudicial.
The government appealed and we vacated the district court’s order. United
States v. Hatcher, No. 10-13544, slip op. 1 (11th Cir. Sept. 23, 2011). We noted
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that we were unable to find any case in which we upheld the grant of a new trial
when a communication breakdown between a defendant and his attorney did not
result in ineffective assistance of counsel. Id. at 18. We expressed serious
reservations about whether the record revealed anything other than adequate
representation, but we remanded the case to the district court for further findings
and explanation of the decision to grant Hatcher a new trial. Id. at 27. On remand,
the district court found that counsel’s conduct and the communication breakdown
between Hatcher and Bethel did not amount to ineffective assistance of counsel.
Accordingly, Hatcher’s motion for a new trial was denied. He now appeals that
decision.
II.
We review a district court’s denial of a motion for a new trial under Federal
Rule of Criminal Procedure 33 for an abuse of discretion. United States v. Campa,
459 F.3d 1121, 1151 (11th Cir. 2006). While we generally do not review
ineffective assistance of counsel claims on direct appeal because there has often
been an insufficient opportunity to develop the record, we will review such claims
in instances where the record is sufficiently developed. United States v. Andrews,
953 F.2d 1312, 1327 (11th Cir. 1992). This is one such instance.
To prevail on his ineffective assistance of counsel claim, Hatcher must show
that (1) his counsel’s performance was deficient, and (2) the deficiency prejudiced
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him. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984).
Deficient performance requires a showing that counsel’s conduct fell below an
objective standard of reasonableness. United States v. Verbitskaya, 406 F.3d 1324,
1337–38 (11th Cir. 2005). To establish prejudice “[t]he defendant must show that
there is 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,
104 S.Ct. at 2068.
Hatcher argues that the actions of his counsel amounted to ineffective
assistance of counsel. First, he complains of Bethel’s request that the prosecution
turn over evidence of an earlier drug transaction between Hatcher and Ellis, which
the prosecution did not know about at the time. In Hatcher’s first appeal, however,
we determined that the district court was correct in finding that Bethel’s request for
this evidence was reasonable and therefore unsupportive of a claim of deficient
performance. Because we are bound by that decision under the law of the case
doctrine, see United States v. Tamayo, 80 F.3d 1514, 1520 (11th Cir. 1996),
Hatcher’s attempt to reassert this argument is unavailing.
Hatcher then rests his claim of ineffective assistance on three other grounds.
First, he objects to Bethel’s decision not to challenge the prosecution’s failure to
produce a small portion of the drugs found at the crime scene. Second, he claims
Bethel failed to effectively cross-examine Officer Drummond. Third, Hatcher
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contends that his claimed communication breakdown with Bethel is sufficient by
itself to establish ineffective assistance of counsel. Hatcher’s arguments are
unpersuasive.
Hatcher’s claim of ineffective assistance necessarily fails because, even
assuming that defense counsel’s performance was deficient, he cannot demonstrate
prejudice in light of the overwhelming evidence of guilt presented at trial. See
Andrews, 953 F.2d at 1327. The government introduced audio recordings of
phone calls between Hatcher and Ellis arranging the drug transaction, as well as an
audio recording of the controlled buy that led to Hatcher’s arrest. Ellis identified
Hatcher’s voice on those recordings in court and identified Hatcher as the man who
sold him drugs on November 5, 2008. Officer Drummond testified that he
witnessed Hatcher exit the vehicle where the transaction took place, drop money
on the ground, and take off running. Two other officers testified that they saw
Hatcher flee the parking lot with officers in hot pursuit just before Hatcher was
stopped and arrested. The government also presented evidence that the drugs Ellis
purchased in the controlled buy tested positive as crack cocaine and weighed more
than 50 grams. Considering this overwhelming evidence of guilt, Hatcher cannot
demonstrate a reasonable probability that the result of his trial would have been
different if his counsel had performed as Hatcher now urges.

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Because Hatcher has failed to show ineffective assistance of counsel, the
district court did not abuse its discretion in denying his request for a new trial.
AFFIRMED.

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