Atkins v. United States of America
MEMORANDUM OPINION. Signed by Judge R David Proctor on 6/20/2016. (AVC)
2016 Jun-20 PM 04:37
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
UNITED STATES OF AMERICA,
This matter is before the court on Petitioner Archie Atkins’s Motion to Vacate, Set Aside,
or Correct Sentence Pursuant to 28 U.S.C. § 2255. (Doc. #1). The Government has responded
to the Motion (Doc. # 3). Atkins has replied (Doc. # 6), and amended his Motion (Docs. # 7 and
8). The Government has responded to the amended motion (Doc. # 8), and Atkins has again
replied (Doc. # 10).
On May 3, 2010, at about 11:25 a.m., Atkins and co-defendant Arthur Terrell Williams
robbed an individual employed by Birmingham Armored, Inc., as he was walking to his armored
vehicle. The victim had just picked up U.S. Currency and checks totaling $153,990.09
($52,288.74 in U.S. Currency and $101,701.35 in checks) from the Jefferson County Department
of Revenue Satellite Office and was transporting it to Regions Bank for deposit. Atkins and
Williams took the two money bags from the victim at gunpoint. Atkins and Williams tried to
physically force the victim into a 2006 Ford Taurus, AL Tag # 14635AN, that was being driven
by defendant Darrell Wilkins. The victim resisted, and as a result, defendant Williams took the
victim’s duty weapon, a Glock 9mm semi-automatic pistol, from the victim’s holster. Williams
testified under oath at Atkins’s trial that both he and Atkins possessed guns during this robbery
and that Atkins actually pointed his gun at the victim during the robbery. (2:11-CR-74-RDP Doc.
# 98 at 221-231).
Atkins pleaded not guilty to committing a Hobbs Act robbery of an armored car driver
and brandishing a firearm during the commission of this crime of violence. He also pleaded not
guilty to being felon in possession of ammunition several days after the robbery occurred. A jury
returned guilty verdicts against Atkins on all three counts. (Doc. # 47).
Attorney Scott Brower represented Atkins during the trial phase. The court sentenced
Atkins on January 5, 2012, and Judgment was entered on January 9, 2012. (Doc. # 90). Atkins
appealed (Doc. # 91).
Attorney Susan James represented Atkins during the sentencing hearing
and on appeal. The Eleventh Circuit Court of Appeals affirmed the conviction on March 8,
2013. (Doc. # 103). On November 4, 2013, Atkins filed the current Motion under 28 U.S.C. §
In his initial Motion, Atkins claims his counsel were ineffective in four ways: (1) his trial
attorney failed to object to certain persons being selected to serve on the jury, (2) his sentencing
and appellate attorney failed to raise an issue based on Alleyne v. United States, 133 S. Ct. 2151
(2013), regarding the brandishing of a firearm (3) his appellate attorney failed to appeal an
objection to his sentencing guidelines calculation; and (4) his sentencing and appellate attorney
failed to raise an issue based on Alleyne regarding his criminal history point calculation. (Doc. #
In his amended Petition, Atkins claims that he deserves a new trial based upon United
States v. Davis, 2014 WL 25099917 (11th Cir. Jun. 11, 2014). All four of Movant’s additional
claims revolve around the finding in Davis that, from the date of the decision moving forward, a
search warrant is necessary to obtain cell location site information from a defendant’s cell phone
A federal prisoner may file a motion to vacate his or her sentence “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 personal jurisdiction to impose such a sentence, or that the sentence was in
excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28
U.S.C. § 2255, & 1. It is well settled that “to obtain collateral relief, a prisoner must clear a
significantly higher hurdle than would exist on direct appeal.” United States v. Frady, 456 U.S.
152, 166 (1982).
Here, Petitioner seeks relief on the ground that he received ineffective
assistance of counsel.
Ineffective assistance of counsel claims are governed by the standard set forth in
Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the Supreme Court established a
two-prong test for adjudicating ineffective assistance of counsel claims. Both prongs of the test
must be met for Petitioner to succeed. Id. at 687. First, Petitioner must show that counsel’s
performance was deficient, i.e., the performance was outside the range of professionally
competent assistance. Id. The proper measure of an attorney’s performance is “reasonableness
under prevailing professional norms.”
Id. at 688. Unless a petitioner can rebut the “strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance,” he cannot show that counsel’s performance was constitutionally deficient. Id. at 689.
“The test has nothing to do with what the best lawyers would have done. Nor is the test even
what most good lawyers would have done. [The court asks] only whether some reasonable
lawyer … could have acted, in the circumstances, as defense counsel acted ….”
Singletary, 972 F.2d 1218, 1220 (11th Cir. 1992); see also Waters v. Thomas, 46 F.3d 1506,
1514 (11th Cir. 1995) (stating that “perfection is not the standard of effective assistance”).
Second, Petitioner must establish prejudice, such that there is a reasonable probability
that, absent counsel’s errors, the outcome of the proceeding would have been different.
Strickland, 466 U.S. at 687; Chandler v. United States, 218 F.3d 1305, 1312-13 (11th Cir. 2000).
“A reasonable probability is a probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694. Because Petitioner must meet both parts of the test, the court need
not address the performance prong if Petitioner cannot meet the prejudice prong, and vice versa.
Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000).
Failure to Strike Certain Jurors
Atkins first argues that his trial counsel was ineffective for failing to strike certain venire
members from the jury based upon their affiliation with Regions Bank. During the jury selection
process, the court asked the panel if any of them had a current or past banking relationship with
Regions Bank. Sixteen of the potential jurors answered affirmatively. (Doc. # 97, pp. 36-39).
Five of those individuals served on the jury.
In examining an attorney's performance during jury selection, this court must begin with
the strong presumption that trial counsel acted properly and that his jury selection decisions were
sound trial strategy. Harvey v. Warden, Union Corr. Inst., 629 F.3d 1228, 1245 (11th Cir. 2011)
(recognizing that trial counsel's actions during voir dire are presumed to be reasonable); Manning
ineffective-assistance-of-counsel-claim when counsel failed to strike juror who did in fact
express a bias on ground that petition failed to establish prejudice). To overcome this
presumption, Atkins bears the burden of demonstrating that trial counsel's actions were so
unreasonable that no competent attorney would have taken the actions that trial counsel took. See
Chandler v. United States, 218 F.3d 1305, 1315 (11th Cir. 2000). Atkins has failed to meet this
Atkins presumes that a person who had a relationship with Regions Bank was a “related
victims” and would have been biased against him. (Doc. # 1 at 4). This argument is without
merit. The funds at issue were stolen from a courier transporting the funds from the Jefferson
County Department of Revenue Satellite Office to Regions Bank for deposit. There was no
legal justification for movant’s counsel to move to strike all sixteen of these prospective jurors
for cause. And the fact that counsel chose to use his peremptory challenges on people other than
these five jurors was a reasonable tactical choice that trial counsel are called upon to make.
Atkins has failed to establish that trial counsel’s decision to not strike these jurors was a decision
and action that no competent counsel would have made or taken. Furthermore, he has not come
close to establishing prejudice on this claim. Therefore, his Motion is due to be denied on this
Failure to Raise an Issue Based Upon Alleyne v. United States
In his second claim, Atkins asserts that his attorney was constitutionally ineffective for
failing to argue that the court could not sentence him to a mandatory minimum sentence of seven
years for brandishing a firearm, when he was not charged in the indictment with brandishing and
when the jury did not find him guilty of brandishing. In his fourth claim, Movant claims that his
attorney was constitutionally ineffective for failing to object to his criminal history point
calculation based upon movant being on probation during the commission of the instant offense.
To support each of these claims, Atkins relies upon Alleyne v. United States, 133 S. Ct. 2151
(2013). The claims fail for at least two reasons.
First, the Supreme Court issued its opinion in Alleyne on June 17, 2013, after Atkins’s
conviction and sentence had been affirmed on appeal. The Eleventh Circuit has held that the
Supreme Court's decision in Alleyne does not apply retroactively on collateral review. See Jeanty
v. Warden, FCI–Miami, 757 F.3d 1283, 1285–86 (11th Cir. 2014) (“Alleyne does not apply
retroactively on collateral review.”). Therefore, to the extent Atkins’s Motion is based on
Alleyne, it is due to be denied.
Additionally, even if Alleyne were applied retroactively, that decision has no potential
impact on Atkins’s fourth claim. Whether a defendant was on probation during the commission
of the instant offense for purposes of calculating his criminal history category simply was not an
issue addressed by the Court in Alleyne. In addition, this sentencing guideline calculation is not
subject to proof to a jury. Prior convictions are still an exception to the rule of Apprendi. See
Alleyne, 133 S. Ct. at 2160 n.1 (declining to revisit the prior-conviction exception to Apprendi)
(citing Almendarez-Torres v. United States, 523 U.S. 244, 118 S. Ct. 1219 (1998)).
Failure of Appellate Counsel to Raise a Sentencing Issue on Appeal.
In his third claim, Atkins argues that his appellate counsel was ineffective for failing to
raise the issue of the enhancement of his sentence based upon U.S.S.G. § 2B3.1(6). That section
allows for an increase of 1 level if a firearm was taken during the robbery. In response to the
Presentence Investigation Report, movant’s counsel objected to enhancement.
addressed that objection during the sentencing hearing, specifically noting that evidence was
proffered during the trial which justified the enhancement.
Counsel is not ineffective when he fails to raise a frivolous argument on appeal. United
States v. Winfield, 960 F.2d 970, 974 (11th Cir. 1992). Stated otherwise, appellate counsel is not
ineffective for failing to raise claims “reasonably considered to be without merit.” Alvord v.
Wainwright, 725 F.2d 1282, 1291 (11th Cir. 1984). Neither does the Sixth Amendment require
appellate advocates to raise every non-frivolous issue. Heath v. Jones, 941 F.2d 1126, 1130 (11th
Because “experienced advocates ... have emphasized the importance of winnowing out
weaker arguments on appeal and focusing on one central issue if possible, or at most on a few
key issues[,] ... it is difficult for a defendant to show his counsel was ineffective for failing to
raise certain issues on appeal, particularly if counsel did present other strong issues.” Payne v.
United States, 566 F.3d 1276, 1277 (11th Cir. 2009). Appellate counsel’s choice to focus on
one stronger argument is by no means unreasonable.
Moreover, Atkins cannot establish
prejudice. To make a showing on prejudice, he must show that “the neglected claim would have
a reasonable probability of success on appeal.” Heath, 941 F.2d at 1131. Here, Movant cannot
establish prejudice because there was sufficient evidence showing that the victim’s firearm was
taken during the robbery. Choosing to not appeal this issue did not render counsel’s performance
constitutionally ineffective. Therefore, to the extent Atkins’s Motion is based on his third claim,
it is due to be denied.
Atkins’s Amended § 2255 Motion
Atkins raises four new claims of relief in his Amended Motion: (1) and (2): he deserves a
new trial because the Government used cell site location information at trial without first
obtaining a search warrant; (3) ineffective assistance of trial counsel for failing to file a motion to
suppress the cell site location information; (4) ineffective assistance of appellate counsel for
failing to raise this same issue on appeal.
Atkins bases this argument on the Eleventh Circuit’s June 2014 decision in United States
v. Davis. In that decision, the Eleventh Circuit held, as a matter of first impression, that a
provision of the Stored Communications Act (SCA) which allowed the government to obtain cell
site location information without showing probable cause violated a defendant's Fourth
Amendment rights. United States v. Davis, 754 F.3d 1205 (11th Cir.), reh'g en banc granted,
opinion vacated, 573 F. App'x 925 (11th Cir. 2014), and on reh'g en banc in part, 785 F.3d 498
(11th Cir. 2015), cert. denied, 136 S. Ct. 479, 193 L. Ed. 2d 349 (2015). That decision,
however, not only had not been issued even when Atkins was tried and sentence, but also has
now been reheard and vacated.
On rehearing, the full Eleventh Circuit held that “compelling the production of a
third-party telephone company's business records containing historical cell tower location
information” does not violate Fourth Amendment rights and is not unconstitutional. United
States v. Davis, 785 F.3d 498, 500 (11th Cir.), cert. denied, 136 S. Ct. 479, 193 L. Ed. 2d 349
(2015). Such an order does not constitute a search, and even if it was a search, obtaining the
records without a warrant was reasonable. Davis, 785 F.3d at 500. As Judge Pryor explained
in his well-reasoned concurrence, “a court order compelling a telephone company to disclose cell
tower location information would not violate a cell phone user's rights under the Fourth
Amendment even in the absence of the protections afforded by the Stored Communications Act”
because there is no legitimate expectation of privacy in the information. Davis, 785 F.3d at 519.
The information is simply a record of calls made, after the fact, which happens to contain
location information voluntarily conveyed to the provider by the subscriber when calls are placed
that were routed through nearby cell towers.
Both trial and appellate counsel acted reasonably at the time they represented Atkins on
these issues. Therefore, to the extent Atkins’s Motion is based on the now-vacated Davis
decision, it is due to be denied.
For all of these reasons, Atkins’s ineffective assistance of counsel claims fail on the
merits. A separate order will be entered.
The Clerk is DIRECTED to serve a copy of this order upon Petitioner.
DONE and ORDERED this June 20, 2016.
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?