Groves v. USA
Filing
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OPINION AND ORDER: DENYING Motion for Certificate of Appealability (filed in criminal case 3:06cr69) and GRANTING the implied request for leave to appeal in forma pauperis. Signed by Judge Robert L Miller, Jr on 10/1/12. (cc: USCA - in criminal case 3:06cr69)(jld)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
DEVON GROVES,
Petitioner
vs.
UNITED STATES OF AMERICA,
Respondent
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CAUSE NO. 3:11-CV-89 RM
(Arising out of 3:06-CR-69 RM)
OPINION AND ORDER
Devon Groves was convicted of unlawful possession of a firearm and
ammunition following a jury trial in 2007, and was sentenced to an aggregate
term of 240-months. After his conviction was affirmed on appeal, and his petition
for certiorari was denied, United States v. Groves, 559 F.3d 637 (7th Cir. 2009),
cert. denied, 130 S.Ct. 1750 (Mar. 8, 2010), Mr. Groves filed a pro se petition
under 28 U.S.C. § 2255, contending that his trial and appellate counsel provided
ineffective assistance and asking the court to vacate his sentence and reconsider
its ruling on his motion to suppress. On October 5, 2011, the court issued an
opinion and order denying all but one of Mr. Groves’s claims, and appointed
counsel to represent Mr. Groves with respect to the remaining claim. [Doc. No.
160].1 The court denied Mr. Groves’s motion to reconsider the October 5 order on
August 6, 2012 [Doc. No. 210], and denied his remaining claim on August 17
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69.
All documents referenced in this opinion can be found in criminal Cause No. 3:06-CR-
following an evidentiary hearing [Doc. No. 211]. Mr. Groves’s motion for a
certificate of appealability and implied request for leave to proceed in forma
pauperis on appeal [Doc. No. 216] currently pends before the court.
Issuance of a certificate of appealability requires the court to find that Mr.
Groves has made “a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). Only one of the multiple claims asserted comes close to
meeting that burden: Mr. Groves’ claim that trial counsel was ineffective because
he didn’t challenge to the use of a 1995 burglary conviction at sentencing.2
When Mr. Groves was sentenced, the law provided that classification of a
prior conviction depended upon “the facts contained in the charging document
and the statutory definition of the charged offense,” United States v. Hoults, 240
F.3d 647, 650 (7th Cir. 2001); United States v. McGee, 408 F.3d 966, 988 (7th Cir.
2005), and the information charged Mr. Groves with burglary of a dwelling — a
crime of violence under § 4B1.2. Courts use a modified categorical approach
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Resolution of Mr. Groves one remaining claim turned on the credibility of the
witnesses at the evidentiary hearing in August. The court credited the testimony of trial counsel
over that of Mr. Groves, and found that:
[Trial counsels’] [f]ailure to notify the government of a client’s uncommunicated
wish to accept a plea offer does not fall below an objective standard of
reasonableness. Even if it did, Mr. Groves hasn’t shown the prejudice required by
Strickland because he hasn’t persuaded the court that he actually would have
pleaded guilty before the court.
[Doc. No. 211 at p. 15].
The court also rejected Mr. Groves’ belated argument that Missouri v. Frye, 132 S. Ct. 1399
(2012) and Lafler v. Copper, 132 S. Ct. 1376 (2012) imposed a duty on trial counsel to discuss the
possibility of a plea even if he insisted that he was innocent and wanted to go to trial. The
argument was raised for the first time at the evidentiary hearing, and wasn’t properly before the
court. Even if it had been, the cases cited didn’t “provid[e] support for the proposition that an
attorney fails constitutional muster by not insisting on discussing plea bargaining with a client
who demands trial.” [Doc. No. 211 at pp. 15-20].
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today, see United States v. Begay, 553 U.S. 137 (2008); James v. United States,
550 U.S. 192 (2007), and “are permitted to consult ‘the terms of the charging
document, the terms of a plea agreement or transcript of a colloquy between judge
and defendant in which the factual basis for the plea was confirmed by the
defendant, or to some comparable judicial record of this information,’ in order to
determine what the defendant’s prior conviction was for (i.e., generic burglary or
some lesser offense),” when a statute covers more than one offense. United States
v. Woods, 576 F.3d 400, 404 (7th Cir. 2009) (quoting Shepard v. United States,
544 U.S. 13, 26 (2005)). The outcome remains the same under either approach.
The Guidelines define a crime of violence as “any offense under federal or
state law” that (1) has as an element the use, attempted use, or threatened use of
physical force against the person of another, or (2) is burglary of a dwelling, arson,
or extortion, involves use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to another. U.S.S.G. § 4B1.2(a).
See United States v. Angiano, 602 F.3d 828, 829 (7th Cir. 2010) (“The Guidelines
Manual makes clear that enumerated offenses, such as burglary of a dwelling “are
always classified as ‘crimes of violence,’ regardless of whether the prior offense
expressly has as an element the use, attempted use, or threatened use of physical
force against the person of another.”).
Congress included burglary among the crimes of violence in the
[Armed Career Criminal Act] because it thought that certain general
categories of property claims...so often presented a risk of injury to
persons, or were so often committed by career criminals, that they
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should be included in the enhancement statute even though,
considered solely in terms of their statutory elements, they do not
necessarily involve the use of threat of force against a person.
United States v. Patterson, 576 F.3d 431, 442 (7th Cir. 2009). That the building
in question was a dwelling was confirmed by certified court records obtained from
the St. Joseph County Clerk’s office and introduced at sentencing, including the
information filed in St. Joseph Superior Court Cause No. 71D08 9508 CF00390,
and the Order Waiving Jurisdiction Pursuant to I.C. 31-6-2-4(e) filed on August
29, 1995 in St. Joseph County Probate Court Cause No. 71J-01-9507 JD00571.
The court concluded that the offense for which Mr. Groves was convicted in 1995
involved a “crime of violence” and conduct that presented a serious potential risk
of physical injury to another within the meaning of U.S.S.G. § 4B1.2(a), and was
properly considered in determining his base offense level under the law as it
existed at sentencing; that Mr. Groves’s objection to the calculation of his base
offense level under 2K2.1(a)(2) was without merit; that the Sixth Amendment
didn’t require counsel to forecast changes or advances in the law, or “to press
meritless arguments,” Lilly v. Gilmore, 988 F.2d 783, 786 (7th Cir. 2001); see also
Fuller v. United States, 398 F.3d at 652; and that Mr. Groves hadn’t been denied
effective assistance of counsel at sentencing, or provided any legal or evidentiary
basis for reconsidering the court’s October 5 opinion and order denying his claim.
Mr. Groves hasn’t made “a substantial showing of the denial of a constitutional
right”. Accordingly, the court denies his motion for a certificate of appealability.
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The appointment of CJA counsel during previous proceedings doesn’t
automatically entitle Mr. Groves to proceed in forma pauperis on appeal. See FED.
R. APPELLATE PROC. 24(a)(3)(A). On the other hand, the denial of a certificate of
appealability doesn’t automatically require the denial of a motion to proceed in
forma pauperis because the standard for a certificate of appealability is more
demanding than the standard for determining if an appeal is taken in good faith.
Walker v. O’Brien, 216 F.3d 626, 631-632 (7th Cir. 2000).
To allow Mr. Groves to proceed on appeal in forma pauperis, the court must
decide whether “a reasonable person could suppose that the appeal has some
merit,” Walker v. O’Brien, 216 F.3d at 632, which is to say whether the appeal is
non-frivolous. See Lee v. Clinton, 209 F.3d 1025, 1027 (7th Cir. 2000). It’s close,
but the court finds that the appeal isn’t entirely frivolous.
Accordingly, the court DENIES Mr. Groves’ motion for a certificate of
appealability [Doc. No. 216], but GRANTS his implied request to proceed in forma
pauperis on appeal.
SO ORDERED.
ENTERED:
October 1, 2012
/s/ Robert L. Miller, Jr.
Judge
United States District Court
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