Donald v. USA
Filing
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MEMORANDUM OPINION AND ORDER; 1)Magistrate Judge Hanly A. Ingram's 92 Report and Recommendations as to Patrick Andrew Donald is ADOPTED IN FULL AND INCORPORATED by reference; 2)Def Patrick Andrew Donald's 93 Objections to the Rec ommended Disposition are OVERRULED; 3)Def, Donald's 78 Motion to Vacate (2255) and 81 Amended Motion to Vacate (2255) as to Patrick Andrew Donald are DENIED and this matter is DISMISSED WITH PREJUDICE from the Court 9;s docket; 4)Def Donald's 81 Motion for an evidentiary hearing is DENIED; 5)Court declines to issue a Certificate of Appealability; 6)Judgment in favor of the U.S. shall issue this date.. Signed by Judge Danny C. Reeves on 11/30/2015.(LST)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
(at Covington)
UNITED STATES OF AMERICA,
Plaintiff/Respondent,
V.
PATRICK ANDREW DONALD,
Defendant/Movant.
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Criminal Action No. 2: 12-026-DCR
and
Civil Action No. 2: 15-7395-DCR
MEMORANDUM OPINION
AND ORDER
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This case is pending for consideration of Defendant Patrick Andrew Donald’s
original and amended motion to vacate, set aside, or correct his sentence under 28 U.S.C. §
2255. [Record Nos. 78, 81] Pursuant to 28 U.S.C. § 636(b)(1)(B), the Court referred the
motions to United States Magistrate Judge Hanly A. Ingram for issuance of a report and
recommendation.
On October 21, 2015, Magistrate Judge Ingram issued his report,
recommending that Donald’s motions be denied. [Record No. 92] Donald has now filed
objections to Magistrate Judge Ingram’s Recommended Disposition. [Record No. 93]
After conducting a de novo review of the portions of the report to which Donald
objects, the Court will adopt Magistrate Judge Ingram’s Recommended Disposition, deny
Donald’s motions, and dismiss this matter.1
1
The Court also declines to issue a Certificate of Appealability. A Certificate of
Appealability may issue “only if the applicant has made a substantial showing of the denial of a
constitutional right.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); 28 U.S.C. § 2253(c)(2).
When the denial of a motion filed under § 2255 is based on the merits, the defendant must
demonstrate that “reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
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I.
On September 24, 2012, Donald pled guilty to unarmed bank robbery in violation of
18 U.S.C. § 2113(a). [Record Nos. 41 and 62] In the plea agreement, Donald admitted that
he and another individual robbed Security Trust Bank in Maysville, Kentucky, on May 16,
2012.2 [Record No. 58, pp. 1-2]
Donald was represented by Frank Murgo, an appointed attorney, at the sentencing
hearing held on February 25, 2013. [Record No. 75, p. 2] The primary issue at sentencing
was whether “a dangerous weapon was otherwise used,” warranting a four-level
enhancement under the United States Sentencing Guidelines, § 2B3.1(b)(2)(D).3 During the
hearing, the United States authenticated and introduced a tape of the bank’s security footage
depicting the robbery. [Record No. 75, p. 6-8] However, the United States did not play the
video. Instead, the United States called Allison McGuire, Vanessa Stahl, and Sherry Rice,
the tellers who were victims and witnessed the robbery. All of the tellers testified that,
Donald has not made a substantial showing that he was denied his constitutional rights.
Likewise, Donald has not shown that jurists of reason would find it debatable whether the Court
was correct in its procedural rulings. Reasonable jurists would not debate the denial of Donald’s
§ 2255 petition or conclude that the issues presented are adequate to deserve encouragement to
proceed further. Id.
2
Magistrate Judge Ingram’s report states that Donald admitted in his plea agreement that
“[t]he other robber clanked on the counter with something metallic and insinuated he had a gun.”
[Record No. 92, p. 7-8] However, Donald contested that particular fact during rearraignment,
and the Court agreed to make a factual determination at the sentencing hearing. [Record No. 71,
p. 33-34] This minor discrepancy does not substantively detract from Magistrate Judge Ingram’s
findings.
3
Donald’s total offense level was 24, and his recommended guideline range was 77 to 96
months of imprisonment. Without the four-level enhancement, Donald’s total offense level
would be 20, and his recommended guideline range would be reduced to 51-63 months of
imprisonment.
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during the robbery, Donald’s accomplice pounded an object on a counter that produced a
heavy, metallic sound. They believed the object was a gun. Two tellers testified that the
accomplice pounded the counter with his right hand while his hand and the object remained
in the pocket of his sweater. Stahl admitted that she could not clearly see the accomplice’s
hands from where she was standing. Id. at 37. However, Rice testified that she saw an
object coming out of his sweater pocket shaped like a cylinder. Id. at 49. All three testified
that they perceived the pounding as a threat.
On cross-examination, each witness denied that they were verbally threatened by the
robbers. During arguments to the Court, attorney Murgo noted that the government had
failed to play the video of the crime. Id. at 61. Murgo urged the Court to view the film and
then gave a detailed explanation of the robbery. Id. According to Murgo, the video did not
contain footage of the accomplice banging an object on the counter as testified by the
government’s witnesses. And Murgo again noted that neither robber made any direct threats
during the course of the robbery. Id. at 63, 71.
The Court determined that viewing the full video was unnecessary. Based on the
testimony provided during the hearing, the Court concluded that Donald’s accomplice
“otherwise used a dangerous weapon,” resulting in application of a four-level enhancement
to the defendant’s base offense level. Id. at 74. Thereafter, Donald was sentenced to 96months imprisonment, followed by three years of supervised release. [Record No. 62]
Donald appealed the enhancement issue to the Sixth Circuit.
[Record No. 63]
However, on August 1, 2014, the Sixth Circuit affirmed this Court’s decision, holding that
“[t]he facts of this case amply support the district court’s determination that the weapon was
‘otherwise used’ in the commission of the robbery.” [Record No. 76, p. 5]
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On March 23, 2015, Donald filed his initial motion to vacate, set aside, or correct his
sentence under 28 U.S.C. § 2255. [Record No. 78] Pursuant to Magistrate Judge Ingram’s
order, Donald filed a signed version of the motion on May 15, 2015. [Record No. 81]
Donald contends that he received ineffective assistance of counsel because his attorney: (1)
failed to object to the Court’s decision not to view the video, (2) failed to object to the
tellers’ presentation of allegedly false testimony, and (3) failed to adequately cross-examine
the three tellers. [Record Nos. 81 and 81-1]. Donald also argues that the government
violated his due process rights by presenting false testimony to the Court. Id. Finally, the
defendant requests an evidentiary hearing.4 [Record No. 81-1, pp. 18-19]
After reviewing these arguments and the record of this proceeding, Magistrate Judge
Ingram correctly concluded that Murgo’s representation of Donald was not deficient.
Likewise, the magistrate judge properly determined that the government violate Donald’s
due process rights by allegedly presenting false testimony.
II.
Under 28 U.S.C. § 2255, a federal prisoner may bring a habeas action to argue that
the imposition of his sentence violated the United States Constitution or federal law, the
court lacked jurisdiction, his sentence exceeded the maximum penalty authorized by law, or
the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). To prevail on a
4
Subsection (b) of 28 U.S.C. § 2255 provides that the district court shall grant a prompt
hearing “[u]nless the motion and the files and records of the case conclusively show that the
prisoner is entitled to no relief.” Donald primarily seeks an evidentiary hearing for the Court to
view the video of the robbery. [Record No. 81-1, p. 14, Record No. 93, p. 7] However, the
video is in the record and has been reviewed. Because the issues Donald raises can be resolved
based on the record alone, the Court will also deny his motion for an evidentiary hearing.
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claim of constitutional error, a defendant “must establish an error of constitutional magnitude
which had a substantial and injurious effect or impact on the proceedings.” Watson v. United
States, 165 F.3d 486, 488 (6th Cir. 1999).
III.
Donald argues that the government engaged in misconduct when it failed to correct
allegedly false testimony of the tellers, thereby violating his constitutional due process rights.
[Record No. 81-1, p. 12] In Napue v. Illinois, 360 U.S. 264, 269 (1959), the Supreme Court
held that a defendant’s due process rights are violated when the government obtains a
conviction using evidence it knows to be false.
“The same result obtains when the
[government], although not soliciting false evidence, allows it to go uncorrected when it
appears.” Id.
Because Donald did not raise this issue during his direct appeal, Magistrate Judge
Ingram properly concluded that the claim is procedurally defaulted. [Record No. 92, p. 7] In
Harbison v. Bell, 408 F.3d 823, 830 (6th Cir. 2005), the defendant made a similar argument
in a habeas petition that the government violated his due process rights by withholding
material exculpatory evidence. The Sixth Circuit held that, because Harbison failed to raise
the issue on direct appeal, the claim was procedurally defaulted unless he demonstrated
“either ‘cause’ and actual ‘prejudice,’ or that he is ‘actually innocent.’” Id. (quoting Bousley
v. United States, 523 U.S. 614, 622 (1998)).
Donald has not demonstrated prejudice because he has not proven that the tellers gave
false testimony or that the government knew their testimony was false. Donald claims in his
objections that “the tellers provided testimony ‘blatantly contradictory’ to videotape
evidence.” [Record No. 93, p. 2] However, after reviewing all of the video footage from the
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robbery, the Court disagrees with Donald’s claim. The security footage contains video of the
relevant time frame from eight different camera angles, both inside and outside of the bank.
[Record No. 61, Exhibit 1] Donald and his accomplice only appear in two of eight angles,
aside from two showing them entering and exiting the bank. The accomplice’s hands are in
his pockets for most of the robbery as the tellers testified. Donald is correct that the security
footage does not clearly show his accomplice pounding on the counter. However, neither
angle shows the entire counter, nor is there any sound. Additionally, the picture is black and
white and is not particularly clear. Donald’s accomplice could have pounded on the counter
without the video capturing the motion. In short, the video does not contradict the tellers’
testimony and Donald has not identified any relevant inconsistent statements. All of the
tellers gave similar accounts of the robbery in general as well as the specific actions of
Donald’s accomplice.
Magistrate Judge Ingram also correctly notes that Donald has also not made a claim
of actual innocence. [Record No. 92, p. 8] Donald asserts in his objections that he has made
such a claim. [Record No. 93, pp. 2-3] However, Donald misunderstands the nature of this
claim. “To establish actual innocence, [a habeas] petitioner must demonstrate that, ‘in light
of all the evidence,’ ‘it is more likely than not that no reasonable juror would have convicted
him.’” Bousley, 523 U.S. at 623 (quoting Schlup v. Delo, 513 U.S. 298, 327-28 (1995)).
Donald is not claiming that he did not commit the robbery. Instead, he claims that he is
actually innocent of otherwise using a dangerous weapon. [Record No. 93, p. 7] The fact
that Donald’s accomplice used a dangerous weapon was the basis for the four-level
enhancement to the defendant’s base offense level.
Simply put, Donald was neither
convicted nor was his sentence enhanced based on his person possession or use of a
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dangerous weapon. Because Donald has not asserted an actual and viable claim of actual
innocence, he cannot avoid procedural default regarding this issue.
IV.
Donald also claims that his appointed attorney, Frank Murgo, provided ineffective
assistance, thereby violating his constitutional right to counsel. [Record No. 81] To prevail
on this claim, Donald must prove that his counsel’s performance was deficient and that the
deficient performance resulted in prejudice. Strickland v. Washington, 466 U.S. 668 (1984);
Fautenberry v. Mitchell, 515 F.3d 614, 623 (6th Cir. 2008). “The proper standard for
attorney performance is that of reasonably effective assistance, as measured by prevailing
professional norms.” Fautenberry, 515 F.3d at 623 (citations and internal quotation marks
omitted).
Essentially, Donald must show that his attorney “made errors so serious that counsel
was not functioning as the ‘counsel’ guaranteed by the Sixth Amendment.” Strickland, 466
U.S. at 687; Jells v. Mitchell, 538 F.3d 478, 491 (6th Cir. 2008). To establish prejudice,
Donald must “demonstrate that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Regalado v.
United States, 334 F.3d 520, 525 (6th Cir. 2003) (citation and internal quotation marks
omitted).
A.
The Videotape
Donald contends that Murgo should have objected when the Court did not view the
videotape of the robbery. Donald claims that Murgo’s failure to do so prejudiced him by
preventing him from raising the issue on direct appeal. [Record No. 81-1, p. 9]
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The Court agrees with the magistrate judge’s analysis regarding this issue. Murgo’s
failure to make futile objections does not constitute deficient performance. [Record No. 92,
p. 10] Murgo encouraged the Court to view the video and then gave a lengthy explanation of
the video’s contents. Murgo argued during the sentencing hearing that the video did not
depict the accomplice pounding on the counter as the tellers testified. However, as noted
above, the video footage does not exculpate Donald or prove that his accomplice did not
pound on the counter. It only indicates that the bank’s security footage did not clearly
capture all of the accomplice’s actions.
According to Strickland, “[b]ecause advocacy is an art and not a science, and because
the adversary system requires deference to counsel’s informed decisions, strategic choices
must be respected . . . if they are based on professional judgment.” 466 U.S. at 681. In his
Objections, Donald states, “[i]n no shape or form could not using the video have been
strategic behavior.” [Record No. 93, p. 5] The Court disagrees, however. The video footage
does clearly show Donald entering the bank and throwing an empty sack over the counter.
Instead, the video depicts Donald exiting with a full sack. The video also shows Donald’s
accomplice pointing his left index finger with his thumb cocked back like a gun directly at
one of the tellers. Donald’s counsel told the Court that the video was worth watching.
However, when the Court decided this was not necessary, Murgo prudently decided that he
should not push the issue.
In his Objections, Donald cites three cases in support of this claim. [Record No. 93,
pp. 4-5] However, all are distinguishable from the facts of this case. Scott v. Harris, 550
U.S. 372 (2007), and Austin v. Redford Twp. Police Dept., 690 F.3d 490 (6th Cir. 2012),
involved civil rights claims under 42 U.S.C. § 1983, not claims of ineffective assistance of
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counsel. Both stand for the proposition that a court may not adopt a version of events
“blatantly contradicted” by videotape evidence. Scott, 550 U.S. at 380-81; Austin, 690 F.3d
at 493. But as explained earlier, the video evidence in this case does not contradict the
testimony accepted by the Court and supporting the guideline enhancement.
Donald emphasizes that neither he nor “his accomplice stated that they had a weapon
nor did they threaten the tellers verbally . . .” [Record No. 93, pp. 4-5] In support of his
argument that he should not have received a four-level enhancement, Donald cites United
States v. Wooten, 689 F.3d 570 (6th Cir. 2012), for support. However, this Court specifically
considered Wooten in making its decision. [Record No. 75, p. 60]5
It is well-settled “that a § 2255 motion may not be employed to relitigate an issue that
was already raised and considered on direct appeal absent highly exceptional circumstances,
such as an intervening change in the law.” Jones v. United States, 178 F.3d 790, 796 (6th
Cir. 1999). Donald does not raise any exceptional circumstances or change in the law.
Instead, he cites to case law already considered during his direct appeal. Wooten has no
bearing on the effectiveness of Donald’s counsel.
In summary, Donald has not shown that his counsel was deficient by failing to object
to the court’s decision not to watch the videotape. Further, Donald was also not prejudiced
by the Court’s decision not to watch the video.
B.
The Allegedly False Testimony
Donald next contends that Murgo, along with the prosecutor, deliberately presented
false evidence by allowing the three tellers to testify. [Record No. 81-1, p. 13] As discussed
5
The Sixth Circuit also discussed Wooten in its decision. [Record No. 76, p. 5]
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earlier, this claim is entirely unsupported by the record. The three sequestered tellers all
gave detailed and consistent descriptions of the robbery. Their testimony is supported, not
contradicted, by the video. Donald has not produced any evidence that the tellers’ testimony
was untruthful. Thus, he has also failed to meet his burden of showing that Murgo provided
deficient representation by failing to object to it.
C.
Cross-Examination
Finally, Donald argues that Murgo provided ineffective assistance by failing to
adequately cross-examine and impeach the three tellers. [Record No. 81, p. 7] Specifically,
he asserts that Murgo should have impeached Rice with a prior statement given to law
enforcement. [Record No. 81-1, p. 14]
Donald claims that Rice’s prior statement did not contain a description of the size and
shape of the object in the accomplice’s pocket. But Donald does not claim that Rice said
anything to police that directly contradicted the testimony given during the sentencing
hearing. Murgo’s failure to introduce a prior statement merely because it contained less detail
than later testimony does not constitute deficient conduct under the facts presented. Had
Murgo introduced the prior statement, it is not at all “reasonably likely” that the result of the
proceeding would have been different.
Donald also criticizes Murgo for not impeaching the three tellers with the videotape
evidence. But as the Court has explained previously, Murgo’s failure to show the videotape
does not constitute deficient conduct because is simply does not depict what Donald claims.
Finally, Donald argues that Murgo should have cross-examined each of the witnesses
further regarding their feelings of being threatened. He states,
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[f]or example, Ms. McGuire[’s] candid demeanor said [sic] “He got a little
agitated, and he picked the bag up, and threw it over toward Ms. Rice’s
window. That’s when I went over and said, “Ladies, [we’re] being robbed, I
need for you all to put the money into the bag.” S. Tr. ¶19. Now this is
supposed to be such a violent robbery, with the threat of an alleged gun or
dangerous weapon. However, Mrs. Rice’s [sic] calmly and politely said to her
colleague, “I need for you all to put the money into the bag.” This do[es] not
sound like these [l]adies [were] hysterical. . . . Once again this was supposed
to be such a violent robbery, even when the bag was thrown at her, Ms. Stahl
just stared and said “Are you serious?” This do[es] not sound like a woman
who was scared to death. . . . There’s no testimony of her being scared or
threatened with a weapon.
[Record No. 81-1, p. 15]
Contrary to Donald’s assertions, Murgo thoroughly cross-examined each witness
regarding this issue.
For example, the following exchange occurred during Mungo’s
examination of McGuire:
Q. Did Mr. Donald or the other gentleman ever specifically threaten you or
anyone that you heard?
A. Not specifically words. [sic]
Q. Like “I have a gun,” did you hear him say that?
A. No.
Q. Did you hear either Mr. Donald or the other person say, “I’ve got
something in my pocket. I got a weapon. I got something that’s going to hurt
you?” Did you ever hear him say that?
A. No.
[Record No. 75, p. 23] During later examination, Murgo asked the witness, “[a]t any time
during the hesitation of Ms. Rice, did you hear Mr. – the man in front of her, other than
pounding, make a threat directed to her?” McGuire answered, “Not that I know of.” Id. at
32. Murgo asked the other tellers similar questions and received similar answers.
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Mungo also attempted to demonatrate that the tellers felt less fearful during the
robbery than they described during direct examination. During his questioning of McGuire,
Murgo observed that it sounded like she was “level-headed that day.” Id. at 25. And during
Stahl’s cross-examination, Murgo questioned, “I’m just wondering why you said, ‘Are you
serious?’ That strikes me as odd.” Id. at 41. Stahl replied, “I was busy doing paperwork so I
didn’t see them come in, so they just took me totally by surprise.” Id.
When this line of questioning did not yield the results he hoped, Murgo wisely
decided not to pursue it further. The sentencing transcript establishes that Murgo probed
many of the issues that Donald now raises. Presumably, Donald now wishes that Murgo
would have probed even further. However, Strickland, 466 U.S. at 489, provides that courts
“indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.”
Donald has not demonstrated that Murgo’s conduct fell outside an acceptable range.
In Higgins v. Renico, 470 F.3d 624, 633 (6th Cir. 2006), the Sixth Circuit concluded that the
defendant received ineffective assistance when his attorney failed to cross-examine the key
witness at trial. But Murgo’s conduct is not comparable. Murgo carefully cross-examined
all of the government’s witnesses. And as outlined by the magistrate judge, “[t]his set of
facts fails to surmount the presumption that counsel exercised reasonable professional
judgment.” [Record No. 92, p. 12] Donald did not receive the subject weapon enhancement
based on the failings of his attorney. He received the enhancement because the evidence
supported the enhancement.
V.
Based on the foregoing analysis and discussion, it is hereby
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ORDERED as follows:
1.
Magistrate Judge Hanly A. Ingram’s Recommended Disposition [Record No.
92] is ADOPTED IN FULL and INCORPORATED herein by reference.
2.
Defendant Patrick Andrew Donald’s Objections [Record No. 93] to the
Recommended Disposition are OVERRULED.
3.
Defendant Donald’s motion and amended to vacate, set aside, or correct his
sentence under 28 U.S.C. § 2255 [Record Nos. 78, 81] are DENIED, and this matter is
DISMISSED WITH PREJUDICE from the Court’s docket.
4.
Defendant Donald’s motion for an evidentiary hearing [Record No. 81-1] is
also DENIED.
5.
The Court declines to issue a Certificate of Appealability.
6.
A judgment in favor of the United States shall issue this date.
This 30th day of November, 2015.
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