Bell v. USA - 2255
Filing
2
MEMORANDUM OPINION. Signed by Judge Peter J. Messitte on 12/8/2014. (kns, Deputy Clerk)(c/m 12/11/14)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
GIOVANNI
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DEC - 9 2014
BELL, pro se
v.
UNITED STATES OF AMERICA
Respondent
o._tnf~~ePl/fV
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Petitioner
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MEMORANDUM
rf,_..=...-:---Civil No. PJM 13-1682
Crim. No. PJM 07-0160
OPINION
Giovanni Bell, pro se, has tiled a Motion to Vacate, Set Aside, or Correct Sentence under
28 U.S.c. 92255 [Paper Nos. 262,264 and 276]. Having considered the Motion and the
Government's Opposition, the Court will DENY the Motion.
I.
A Grand Jury returned a Superseding Indictment charging Bell with: (1) conspiracy to
commit bank robbcry; (2) bank robbery; (3) using, carrying and brandishing a tireann during and
in relation to a crime ofviolencc; (4) felon in possession of lire arms; and (5) violent felon in
possession of body armor. A petit jury subsequently convicted him on all counts.!
Bell was sentenced to life imprisonment, five years of supervised release and ordered to
pay $65,499 in restitution. He'is serving his time at the United States Penitentiary, Hazelton, in
Bruceton Mills, West Virginia.
On December I, 2011, the Fourth Circuit affirmed this Court's final judgment and on
April 23, 2012, the Supreme Court denied Bell's petition for wTit of certiorari.
Ian the conspiracy count, Bell was found guilty along ,,,,'jthhis two co-defendants (Richol Griner and Jude Eligwe)
and two others (Timothy Slobig and Kevin James).
On April 12,2013, Bell filed a Motion for Extension of Time to file the present Motion.
On April 19,2013, he filed a second Motion for Extension of Time. In both of these motions,
Bell cited a prison lockdown and restricted access to the law library as justifications for the
extensions, as well as restricted access to his case files by his defense attorney. The Government
objected to both motions. Bell filed a more substantive Motion to Vacate on June 11,2013. On
July 2, 2013, the Court issued an Order construing Bell's Motions for Extension of Time as his
MOlion to Vacate, and his June 11,2013
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filing as a supplement to that Motion.
II.
Having reviewed Bell's petition, which, to be sure, is somewhat murk/,
the Court has
distilled Bell's claims to be the following: that the Court erred (1) when it admitted certain
photographs into evidence; (2) when it denied Bell's Motion to Suppress evidence obtained from
an allegedly illegal search and seizure; and (3) when it refused to suppress a statement made by
Bell in a purported violation of his Fifth Amendment rights. He also alleges ineffective
assistance of counsel with respect to each alleged Court error.
In response, the Government argues that all of Bell's grounds for relief are either timebarred, procedurally barred, procedurally defaulted, or otherwise without merit. For the reasons
set forth below, the Court agrees with the Government and Bell's Motion to Vacate will be
DENIED.
III.
The Court considers first whether Bell's Motion to Vacate is timely.
'On October 24, 2014, Bell filed a document styled as a Motion for Leave to Amend the Motion to Vacate, but
which the Court will construe as a motion for leave to file a sur-reply. The sur-reply largely rehashes arguments
advanced in Bell's other briefs.
Bell raises a myriad of other issues, all of which could have been pursued on direct appeal. If these issues were in
fact raised on appeal, they are procedurally barred; if they were not raised on appeal, they are procedurally
defaulted. In any event. Bell does not elaborate as to how counsel may have been ineffective for failing to raise
these issues.
3
2
A.
The Government
of equitable
argues that the Motion is untimely and that application
tolling is inappropriate.
Allhough
the Court has already considered
of the doctrine
this argument
and rejected it, the Court engages the issue again in this Opinion.
AS 2255 Motion to Vacate must be liled within one year of the date the judgment
conviction
becomes
final. 28 U.S.c.
S 2255(1).
A judgment
the date the Supreme Court denies a petition for certiorari,
court of appeals' judgment
affirming
his conviction.
of conviction
is considered
after a petitioner
Uniled Slales
(4th Cir. 2001).
This time limit is subject to equitable
United Slales
1'.
of
final on
seeks review of the
Segers. 27 I FJd
PrescolI, 221 F.3d 686, 688 (4th Cir. 2000).
1'.
tolling as an "extraordinary
181, 186
At least once Circuit has held that district courts lack jurisdiction
to extend the time to
file a S 2255 motion to vacate, unless the motion to extend is accompanied
motion to vacate.
1'.
of a S 2255 petition until a petition is actually tiled).
on April 23, 2012.
However,
recognizing
and restricted
or preceded
by the
See Green v. Uniled Slales, 260 F.3d 78, 82-83 (2d Cir. 200 I); United Stales
Leon, 203 F.3d 162, 164 (2d Cir. 2000) (federal court lacks jurisdiction
occurred
remedy."
Denial of Bell's petition for certiorari
His S 2255 Petition, therefore,
that Bell was representing
to consider timeliness
was due on April 22, 2012.
himselt~ that there had been a prison lockdown
access to the prison. library, and construing
his pleadings
liberally, see Haines v.
Kemer, 404 U.S. 5 I 9,520-2 I (1972), the Court accepted his Motions to Extend as his
Motion to Vacate, as supplemented
The Court therefore
by his June II pleading.
found Bell's Motion to Vacate to have been timely filed.
IV.
The Court next considers
whether Bell's claims are procedurally
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defaulted.
S 2255
A.
A claim which could have been but was not raised on a petitioner's direct appeal may not
be raised in a
S 2255
petition unless there is demonstrable cause for the petitioner's failure to
raise the claim in that appeal, and actual prejudice is shown to have resulted from the alleged
error. Uniled Slales v. Frady, 456 U.S. 152, 168-70 (1982). "The existence of cause for a
procedural default must turn on something external to the defense, such as the novelty of the
claim or a denial of effcctive assistance of counsel." Uniled Slales v. Mikalajllnas, 186 F.3d 490,
493 (4th Cir. 1999). The standard for prejudice is that the alleged error that led to the issue not
being brought on appeal worked to the petitioner's "actual and substantial disadvantage,
infecting his entire trial with erroL" Frady, 456 U.S. at 170.
B.
Bell's first asserted ground for relief is that the Court erred in admitting certain
photographs into evidence, namely surveillance photographs taken during the bank robbery. He
claims the jury was told that he was the subject of the photographs. In Bell's third asserted
ground for relief, he says that the Court wrongfully admitted as evidence his incriminating
statements to the police that he claims were coerced in violation of his 5th Amendment rights.
Bell did not raise these grounds on direct appeal, which he clearly could have done, but says now
he did not do so due to ineffective assistance apparently of both trial and appellate counsel.
While these arguments may be raised by way of an ineffective assistance claim, which the Court
discusses iI?fra, they are otherwise unquestionably procedurally defaulted. In any event,
however, Bell has also failed to demonstrate that reasonable prejudice resulted from the failure to
raise the claim earlier; he has not shown that it so "infected [his] entire trial with error of
constitutional dimensions", id., given the other overwhelming evidence introduced against him.
4
V.
The Court next considers whether Bell's claims are procedurally barred.
A.
A petitioner cannot re-raise arguments in a
S 2255
motion that were already raised on
direct appeal. Withrow v. Williams, 507 U.S. 680, 721 (1993) (Scalia, J., concurring); Uniled
Slales v. Linder, 552 r.3d 391,396-97 (4th Cir. 2009). Furthermore, a petitioner may not raise
successive claims in as 2255 Motion to Vacate by asscrting different legal theories in support of
the same objection. Sanders v.
u.s., 373 U.S.!.
15-16 (1963).
B.
In his second and third grounds he asserts for relief: Bell alleges that the Court erred by
failing to suppress inadmissible evidence. In his second ground, Bell says that the Court
erroneously admitted evidence that was obtained based on a warrantless search and seizure of his
apartment. His theory is that the police used information obtained during this warrantless search
(including Bell's true identity, and the presence of contraband in the house) to intimidate him
into making incriminating statements. Those statements were then incorporated into the aflidavit
upon which the second, warranted search relied. In his third ground, Bell says that the Court
erroneously admitted evidence that was obtained through coercive means. His theory is that the
police threatened him with a taser in the fingerprint room, inducing him to make incriminating
statements. Those statements were then incorporated into the aflidavit upon which the second,
warranted search relied. Bell argues that all evidence obtained as fruit of the warrantless search
as well as the coercive questioning - in particular, the evidence obtained through the warranted
search - were therefore infected with inadmissibility
5
However, Bell clearly raised both of these arguments on direct appeal, where they were
rejected. Attempting to repackage them now as different claims affords Bell no relief The
arguments are procedurally barred because they are based upon the same claims previously
raised on appeal.
VI.
Finally, the Court considers Bell's two claims of ineffective assistance of counsel.
A.
The two-part test set forth in Strickland \'. Washington, 466 U.S. 668 (1984) governs
ineffective assistance of counsel claims. A convicted defendant must show that (1) counsel's
"performance fell below an objective standard of reasonableness, and (2) that [the defendant]
was prejudiced by the deficiency because it created a reasonable probability that but for
counsel's errors, the result of the proceeding would have been different."
United States \'. Hoyle,
33 FJd 415, 418 (4th Cir. 1994). In an ineffective assistance claim, the defendant bears the
burden of proof as to both prongs, both of which must be carried to entitle him to relief. See
Strickland, 466 U.S. at 697 ("there is no reason for a court dcciding an ineffective assistance
claim ... to address both components of the inquiry if the defendant makes an insufficient
showing on one."); see, e.g., Booth-El \'. Nuth, 288 F.3d 571, 583 (4th Cir. 2002) (denying an
ineffective assistance of counsel claim because thc defendant could not demonstrate that
counsel's conduct prejudiced him).
To be considered ineffective, counsel's performance must fall outside ofa "wide range of
reasonable professional assistance." Strickland, 466 U.S. at 668. The range, it must be said, is
quite wide. Even where counsel has introduced incriminating information or damaging
testimony and counsel's actions may be found "unreasonable," the first prong under Strickland,
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the errors may still not amount to prejudice under that case. See Harding
1'.
Siernes, 380 F.3d
1034, 1044-45 (7th Cir. 2004). Appellate counsel on appeal is not required to raise all possible
issues on direct appeal, and will not be considered ineffective on those grounds alone. Jones
1'.
Barnes, 463 U.S. 745,751-54 (1983). Among other things, counsel is generally not considered
deficient ifhe exercises discretion to discard weaker arguments on appeal. Id. at 751-54.
B.
Bell asserts that his appellate counsel was ineffective because he did not raise the issue of
the admissibility of the surveillance photographs on appeal. Appellate counsel was hardly
unreasonable in failing to revive this issue. The photographs were presented to the jury as
photographs of a bank robbery in progress depicting an unknown subject. The prosecutor was
free to argue that the subject in the photographs was Bell and the jury was free to accept or reject
that argument. Indeed it is not known whether the jury believed the subject to be Bell, since
there was ample other evidence tying him to the robbery. In any event, the Court properly left
the question of the identity of the person in the photographs to the jury. Neither trial nor
appellate counsel mis-stepped on this matter. That is, Bell's appellate counsel cannot be in any
way faulted for discarding this argument on appeal. See Jones, 463 U.S. at 754. Counsel could
reasonably select the "most promising issues for review," id. at 752-53, and discard totally
unpromising issues such as this, along the way.4
4 In his document
styled as a Motion for Leave to Amend the Motion to Vacate, Bell attaches a letter that Bell wrote
to his appellate counsel purporting to instruct appellate counsel to incorporate the issue of the admissibility of the
photographs into the appeal, and to include certain facts regarding the alleged warrantless search. Bell's letter
instructs appellate counsel to do so in order prevent these issues from being barred at a later date because they were
nol raised in a direct appeal. Bell cites this letter in support of his ineffective assistance claim. However, a criminal
defense attorney is obligated to follow his client's wishes only with regard to the fundamental issues that l11ust be
personally decided by the client; e.g., pleading guilty, waiving a jury, taking the stand, and appealing a conviction or
sentence. See United States v. Chapman, 593 F.3d 365, 369 (4th Cir. 20 I0). The client's expressed disagreement
with counscl's tactical dccisions cannot somehow convert the mattcr into onc that must be decided by the client. See
id. As the Court has previously held, counsel's decision not to abide by the wishes of his client has no necessary
bearing on the question of professional competence; indeed, in some instances, listening to the client rather than to
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c.
Bell's second ineffective assistance claim is that trial counsel cited inadmissible
information with respect to firearms found during the police search of Bell"s apartment. Here,
Bell appears to refer to trial counsel's opening argument, where he conceded that "[Bell is] guilty
of possession of those guns that were in his apartment."; Bell appears to conclude that trial
counsel's argument, and the Government's subsequent references to this argument, necessarily
constituted an admission into evidence of Bell's allegedly coerced statement to the police. Not
so. In the transcript eited by Bell, neither the Government nor Bell's trial counsel make any
the dictates of professional judgment may itself constitute incompetence. /laynes v. Uniled Slales, 451 F. Supp. 2d
713,718 (D. Md. 2006) (quoting u.s. v. McGill, II F.3d 223, 227 (1st Cir.1993)).
5 Bell asserts that Bell's trial counsel used Bell's allegedly coerced statement, in which Bell admitted to possessing
guns in his apm1ment, in trial counsel's opening argument. See Tr. 84: 16-23, ECF No. 187.
Mr. Ticknor:
These were things that were in his apartment for which people. Mr. Slobig paid
him money, and that's the cold, hard, unvarnished truth. But what does that say
if, in fact, you find it. What it says is that he's guilty of possession of those guns
that were in his apartment. Fine. But it does not say and will not say that he's
guilty of a conspiracy to rob a bank or that he did rob a bank, or that he
employed,
brandished,
carried or otherwise
had a gun in relationship
to that
bank robbery.
Bell asserts that the Government then used the allegedly coerced statement in their closing. See Tr. 85:24-86:6,
No. 194.
Ms. Glatfelter:
Mr. Ticknor:
The Court:
ECF
The guns were found in the apartment just like this, laying out in the open. He
had keys to that apartment, he had the ability to control those guns. And, in fact,
in opening statement, Mr. Ticknor told you he was holdingObjection, objection to what was said in opening statement or else I'll go into it
in full.
Let's move on to something else.
Finally, Bell asserts that the Government used the allegedly coerced statement in the redirect. See Tr. 193:5-11, ECF
No. 194.
Ms. Johnston:
Mr. Ticknor:
The Court:
Ms. Johnston:
I quite frankly don't know where to begin here. Mr. Ticknor, who brought out
his linle chart for opening, forgot to tell you thaI in opening he admitted thatObjection, Your Honor.
Overruled.
He admitted in his openir.g statement that his client possessed those guns.
8
reference to the allegedly coerced statement.6 Indeed, the Court determined before trial that the
search was legal and that the fact that firearms were found would therefore be admissible.
Even
if it was incautious for counsel to concede that Bell unlawfully possessed firearms, the
evidentiary basis for counsel's concession - quite apart from any allegedly coerced statement
made by Bell- was overwhelming. Accordingly, even assuming that Bell's statement to the
police was coerced and therefore inadmissible, neither trial counsel nor the Government
introduced that inadmissible infonnation into evidence.
But regardless of counsel's performance, Bell has not demonstrated prejudice. The
totality of the evidence against him was so substantial, that there was no reasonable probability
that he would have been found innocent "but for counsel's unprofessional errors." Strickland,
466 U.S. at 694.
Where counsel has introduced incriminating infonnation or damaging
testimony, courts have found that counsel may be "unreasonable," but that unreasonableness is
non-prejudicial.
Harding v. Sterne.I', 380 FJd 1034 (7th Cir. 2004) (finding counsel's
performance unreasonable but not prejudicial where he raised his client's prior conviction for
armed robbery during re-examination);
Freeman v. Leapley, 519 N.W.2d 615 (S.D. 1994)
(finding defense counsel's introduction of an incriminating police report was unreasonable but
non-prejudicial).
Bell's claim of ineffective assistance of counsel as to this claim is rejected.
The Court observes that the Government explicitly and intentionally declined to offer Bell's allegedly coerced
statement to the police into evidence.
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VII.
For the foregoing reasons, Bell's Motion to Vacate, Set Aside or Correct Sentence Under
28 U.S.c. 9 2255 is DENIED. Bell's filing styled as a Motion for Leave to Amend the Motion to
Vacate is MOOT.
VIII.
Rule II(a) of the Rules Governing 9 2255 cases provides that the district court "must
issue or deny a certificate of appealability when it enters a final order adverse to the applicant."
A eertilicate of appealability will not issue absent "a substantial showing of the denial of a
constitutional right." 28 U.S.c. 92253(c)(2).
A prisoner satisfies this standard by demonstrating
that reasonable jurists would lind that any assessment of the constitutional claims by the district
court is debatable or wrong, and that any dispositive procedural ruling by the district court is
likewise debatable. See Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel,
529 U.S. 473,484 (2000). The Court has considered the record and finds that Bell has not made
the requisite showing here.
A separate Order will ISSUE.
ER .1. MESSITTE
ATES DISTRICT .IUDGE
December?: 2014
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