Peoples v. United States of America

Filing 23

OPINION; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, sdb)

Peoples v. United States of America

Doc. 23

UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF MICHIGAN S O U T H E R N DIVISION

J A M E S CARNELL PEOPLES, M o v a n t, File No. 1:09-CV-682 v. H O N . ROBERT HOLMES BELL U N IT E D STATES OF AMERICA, R e sp o n d e n t. / OPINION T h is matter comes before the Court on Movant James Carnell Peoples's motion under 2 8 U.S.C. § 2255 to vacate, set aside, or correct the sentence imposed upon him by this C o u rt. (Dkt. No. 1, Mot. to Vacate.) Movant has also filed the following motions: to p r o c e e d in forma pauperis, (Dkt. No. 2), for discovery, (Dkt. No. 6), to issue subpoenas, (D k t. No. 7), to compel Counsel to respond to interrogatories, (Dkt. No. 8), to amend the o rig inal § 2255, (Dkt. No. 10), to receive status of the 60 day order to respond, (Dkt. No. 15), f o r extension of time to reply, (Dkt. No. 16), to receive notice of motion for discovery, (Dkt. N o . 17), and for judicial notice. (Dkt. No. 20.) For the reasons that follow, his motion to a m e n d will be denied, his § 2255 motion will be denied, and the remaining motions will be d is m is s e d as moot.

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I. M o v a n t was indicted on February 9, 2006, for knowingly possessing firearms in or a f f e c tin g commerce in violation of 18 U.S.C. §§ 922(g)(1), 921(a), and 924(a)(2). (File No. 1 :0 6 -C R -0 0 3 1 , Dkt. No. 1, Indict.) Movant was convicted on June 6, 2006, (File No. 1:06C R -0 0 3 1 , Dkt. No. 50, Jury Verdict), and was sentenced to 120 months imprisonment f o llo w e d by three years supervised release. (File No. 1:06-CR-0031, Dkt. No. 81, Sent.) M o v a n t's conviction was affirmed on appeal on August 25, 2008. United States v.

M a y b e r r y, 530 F.3d 506, 515 (6th Cir. 2008). Movant filed this § 2255 petition on July 24, 2 0 0 9 , asserting three claims: (1) ineffective assistance of counsel in the district court p ro c e e d in g s; (2) ineffective assistance of counsel in allowing the illegal arrest and illegally o b tain e d evidence at trial; and (3) ineffective assistance of counsel on appeal for failing to ra is e three sentencing issues. (Dkt. No. 1.) Movant subsequently filed a motion to amend h is original § 2255, as well as several other motions. (Dkt. Nos. 2, 6-8, 10, 15-17, 20.) II. A prisoner who moves to vacate his sentence under § 2255 must show that the sen tenc e was imposed in violation of the Constitution or laws of the United States, the court w a s without jurisdiction to impose such sentence, the sentence was in excess of the m a x im u m authorized by law, or it is otherwise subject to collateral attack. 28 U.S.C. § 2255. T o prevail on a § 2255 motion "a petitioner must demonstrate the existence of an error of c o n stitu tio n a l magnitude which had a substantial and injurious effect or influence on the

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g u ilty plea or the jury's verdict." Humphress v. United States, 398 F.3d 855, 858 (6th Cir. 2 0 0 5 ) (quoting Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003)). Non-

c o n s titu tio n a l errors are generally outside the scope of § 2255 relief. United States v. C o field , 233 F.3d 405, 407 (6th Cir. 2000). A petitioner can prevail on a § 2255 motion a lleging non-constitutional error only by establishing a "fundamental defect which inherently re su lts in a complete miscarriage of justice, or, an error so egregious that it amounts to a v i o l a t io n of due process." Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999) (q u o tin g United States v. Ferguson, 918 F.2d 627, 630 (6th Cir.1990) (internal quotations o m itte d )) . As a general rule, claims not raised on direct appeal are procedurally defaulted and m a y not be raised on collateral review unless the petitioner shows either: 1) "cause" and " a ctu a l prejudice"; or 2) "actual innocence." Massaro v. United States, 538 U.S. 500, 504 (2 0 0 3 ); Bousley v. United States, 523 U.S. 614, 621-22 (1998); United States v. Frady, 456 U .S . 152, 167-68 (1982). An ineffective assistance of counsel claim, however, is not subject to the procedural default rule. Massaro, 538 U.S. at 504. An ineffective assistance of c o u n se l claim may be raised in a collateral proceeding under § 2255, whether or not the p e titio n e r could have raised the claim on direct appeal. Id. A court is generally required to grant a hearing to determine the issues and make f in d in g s of fact and conclusions of law on a § 2255 motion "[u]nless the motion and the files a n d records of the case conclusively show that the prisoner is entitled to no relief. . . ." 28

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U .S .C . § 2255. Section 2255 does not require a full blown evidentiary hearing in every in sta n c e . "Rather, the hearing conducted by the court, if any, must be tailored to the specific n e e d s of the case, with due regard for the origin and complexity of the issues of fact and the th o ro u g h n e ss of the record on which (or perhaps, against which) the section 2255 motion is m a d e ." Smith v. United States, 348 F.3d 545, 550-51 (6th Cir. 2003) (quoting United States v . Todaro, 982 F.2d 1025, 1030 (6th Cir. 1993)). No evidentiary hearing is required if the p e titio n e r's allegations "cannot be accepted as true because they are contradicted by the re c o rd , inherently incredible, or conclusions rather than statements of fact." Valentine v. U n ite d States, 488 F.3d 325, 333 (6th Cir. 2007) (quoting Arredondo v. United States, 178 F .3 d 778, 782 (6th Cir. 1999)). Where the judge considering the § 2255 motion also c o n d u c te d the trial, the judge may rely on his or her recollections of the trial. Blanton v. U n ite d States, 94 F.3d 227, 235 (6th Cir. 1996). III. M o v a n t seeks relief based on three distinct claims of ineffective assistance of counsel: (1 ) ineffective assistance of counsel in the district court proceedings; (2) ineffective a ss is ta n c e of counsel in allowing the illegal arrest and illegally obtained evidence at trial; and ( 3 ) ineffective assistance of counsel on appeal for failing to raise three sentencing issues. (D k t. No. 1.) Movant also filed a motion to amend his original § 2255, which this Court will d en y. (Dkt. No. 10.)

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T h e motion to amend Movant's § 2255 motion was filed on October 7, 2009, (Dkt. N o . 10), outside of the statute of limitations under section 2255(f). An amendment may be f ile d outside of that time limit if the amendment "relates back" to the "conduct, transaction, o r occurrence" that forms the basis of the claim or claims in the original motion. Fed. R. Civ. P . 15(c); See Mayle v. Felix, 545 U.S. 644 (2005). Movant asserts that his motion to amend r e la te s to the original motion because they are both ineffective assistance of counsel claims. ( D k t. No. 19.) However, the specific conduct that constitutes the alleged ineffective a ss is ta n c e of counsel in the amended motion is different that the basis for the claims in the o rig in a l motion. Movant claims in the motion to amend that Counsel failed to remove B o w m a n as a witness in the proceedings, despite his being a "loose cannon." (Dkt. No. 10.) T h is is wholly unrelated to the previous claims regarding ineffective assistance of Counsel f o r failing to file pre-trial motions, not moving to suppress evidence, and in failing to raise is s u e s on appeal. Movant's claim does not relate back because it does "arise from the same c o re facts as the timely filed claims, and . . . depend[s] upon events separate in `both time and typ e ' from the originally raised episodes." Mayle, 545 U.S. at 657 (2005). Movant's motion to amend his § 2255 motion will be denied. The original § 2255 motion was timely filed and th e Court will address the original claims. To make out a claim of ineffective assistance of counsel, a movant must show that c o u n se l's representation fell below an objective standard of reasonableness and that co u n s e l's deficient performance prejudiced movant. Strickland v. Washington, 466 U.S. 668,

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6 8 7 -8 8 (1984). "The benchmark for judging any claim of ineffectiveness must be whether c o u n se l's conduct so undermined the proper functioning of the adversarial process that the tria l cannot be relied on as having produced a just result." Id. at 686. Movant's first claim is that Counsel was ineffective during the district court p ro c e e d i n g s by failing to file pre-trial motions or obtain clarification regarding the a d m is s ib ility of evidence related to the armed robberies and failing to challenge the " u n d e rc h a rg e d indictment." (Dkt. No. 3.) Movant asserts that Counsel did not challenge the a d m iss ib ility of the evidence under Fed. R. Evid. 404(b). Movant argues that Counsel should h a v e sought an evidentiary hearing on the matter to determine the admissibility of the e v id e n c e, and that the evidence about the armed robberies should have been excluded b e c au s e Movant was not charged with the armed robberies themselves. However, Movant sta tes in his brief, and the court of appeals also noted, that background evidence is proper if it has a "causal, temporal or spatial connection with the charged offence." (Dkt. No. 3, at 5); M a y b e r r y , 530 F.3d at 515. The general rule is that "the prosecution is entitled to prove its c a se by evidence of its own choice." See Old Chief v. United States, 519 U.S. 172, 186 (1 9 9 7 ). The Court did address the evidence as it related to the armed robberies and found th a t it was admissible under Rule 404(b) because it tended to prove the charges contained in th e indictment ­ that Movant was in possession of the guns. Mayberry, 530 F.3d at 514-15 (ho lding the evidence was properly admitted).

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M o v a n t asserts, alternatively, that the evidence was more prejudicial than probative a n d that the evidence should have been excluded under Rule 403. The Sixth Circuit has held, h o w e v e r, that evidence of a firearm used by a defendant five days before he was found in p o s s e ss io n of a similar firearm was admissible because it "increase[d] the likelihood that the d e f en d a n t knowingly possessed the similar firearm." United States v. Chesney, 86 F.3d 564, 5 7 2 -7 3 (6th Cir. 1996). Likewise, evidence that the firearms were used by Movant to c o m p le te the alleged armed robberies increases the likelihood that Movant did possess the f i r e a r m s . Therefore, the evidence was probative on the issue of whether Movant was in p o s s e s s io n of the guns. During the jury trial, Counsel addressed the use of the evidence of the armed robberies a n d the Court stated that it would provide a stronger jury instruction on the role that the ev iden ce should play to prevent undue prejudice. (File No. 1:06-CR-00031, Dkt. No. 72, Tr. o f Jury Trial, at 9) ("I'll strengthen it up to indicate that it has ­ that there is absolutely ­ that the question of who committed the robberies is of no concern to them at all."). The Court d id provide this instruction. (File No. 1:06-CR-00031, Dkt. No. 74, Tr. of Jury Trial III, at 7 8 -7 9 .) Counsel's conduct was not deficient for failing to file any pre-trial motions to e x c lu d e the evidence because the evidence of Movant's participation in the robberies tended to prove that he was in possession of the weapons listed in the indictment and was not more p re ju d ic ia l than probative. Any motion would have been frivolous because the evidence was d e te rm in e d to be admissible, both by the district court following the objection of counsel, and

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th e court of appeals on review of this case. Mayberry, 540 F.3d at 514. A lawyer does not p e rf o rm deficiently or prejudice his or her client by failing to raise frivolous objections. See H a rr is v. United States, 204 F.3d 681, 683 (6th Cir. 2000). Rather, "[t]he defendant must s h o w that there is a reasonable probability that, but for counsel's unprofessional errors, the re su lt of the proceeding would have been different." Strickland, 466 U.S. at 694. The court o f appeals stated that even if the evidence of the robberies had been excluded, there was s u f f ic ie n t evidence to convict Movant. Mayberry, 540 F.3d at 515. Movant was not p re ju d ic e d by Counsel's failure to file pre-trial motions to exclude the evidence of the ro b b e rie s because the objection would have been frivolous and, even if the evidence had b e e n excluded, would not have affected the result of the proceeding. Movant also asserted that Counsel was ineffective in the district court proceedings b e c au s e he failed to challenge the "undercharged" offense. (Dkt. No. 1.) The Court used the t e rm undercharged to address the fact that the government would be using evidence of a g r e a te r offense­ the armed robberies ­ to prove that Movant had committed a lesser offense ­ possession of a firearm. There is no foundation in the law to challenge the validity of the c h a rg e based on the government's use of evidence implicating a greater offense. If Counsel h a d objected to the use of the evidence or the nature of the charge on the basis that the charge w a s an "undercharged" offense, it would have been frivolous. Movant was not prejudiced b e c a u s e a frivolous claim, if made, would not have altered the outcome. Therefore, because

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C o u n s e l was not unreasonable for failing to file objections regarding the "undercharged" in d ic tm e n t, and Movant was not prejudiced, Movant's first claim is denied. Movant's second claim is that Counsel was ineffective for failing to file a motion to s u p p re s s the information obtained in the December 24, 2005, arrest and search. (Dkt. No. 1.) M o v a n t asserts that the arrest was illegal, and therefore the evidence obtained during the s e a rc h should be suppressed. (Dkt. No. 1.) Movant states that at the time of the arrest, he h a d not been found to have committed a crime, and yet he was not free to leave the scene. (D k t. No. 1.) A warrantless arrest is legal when an officer has probable cause based on the to tality of the circumstances to believe that the individual is committing or did commit a f e lo n y. Illinois v. Gates, 462 U.S. 213, 230-31 (1983). Probable cause requires "reasonable g ro u n d s for belief supported by less than prima facie proof but more than mere suspicion." U n i te d States v. Padro, 52 F.3d 120, 122-23 (6th Cir. 1995). Movant was stopped while rid in g in a vehicle that had been under surveillance. The information about Movant and the o th e r passengers came from a confidential informant. Mayberry, 540 F.3d at 510. This led th e police to observe suspicious activities which confirmed the information provided. Id. at 5 1 0 -1 1 ; See Gates, 462 U.S. 213 (holding that the evidence collected via surveillance was s u f f ic ie n t to corroborate the information from an anonymous letter that provided information a b o u t the defendants). The information provided by a confidential informant­including the intended targets f o r the armed robberies, the desire to use a rental car in the robbery, and the weapons in the

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p o s s e s s io n of Movant­were all corroborated by the surveillance. Mayberry, 540 F.3d at 5101 1 . By the time the police pulled over the car that Movant was riding in and located weapons a n d suspicious items in the vehicle, there is sufficient reason to believe that the police had p ro b a b le cause to arrest Movant. See Maryland v. Pringle, 540 U.S. 366 (2003) (finding that w h en drugs were found in a vehicle, probable cause existed to arrest all three passengers). B e c au s e there was sufficient reason to believe that there was probable cause for arresting and s e a rc h in g Movant, Counsel was not unreasonable by failing to object to the admission of the e v id e n c e. Movant did not show that he was prejudiced by Counsel's failure to object b e c a u se the objection would likely have been overruled. Therefore, Movant's second claim is denied. Movant's third claim is that Counsel was ineffective for failing to raise three s e n te n c in g issues on appeal. (Dkt. No. 1.) The issues that Movant believes should have been raised are related to the sentencing enhancements under U.S.S.G. § 2K2.1(b)(1), (4), and (5). (D k t. No. 3, Br.) The first enhancement that Movant claims should have been challenged on a p p e al was under § 2K2.1(b)(1), which permits a two-point enhancement if the number of f ire a rm s is between three and seven. U.S.S.G. § 2K2.1(b)(1). Movant incorrectly claims that th e enhancement does not apply because the firearms involved should not be aggregated b e tw e e n the separate counts. Under U.S.S.G. § 3D1.2, the counts are aggregated for p u rp o s e s of the sentencing guidelines and calculating the enhancements. U.S.S.G. § 3D1.2. M o v a n t's Counsel at sentencing did raise this objection and was overruled by the Court.

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(F ile No. 1:06-CR-31, Dkt. No. 93, Sent. Tr., 8, 9.) Any objection to the use of this e n h a n c e m e n t, had it been made on appeal, would be frivolous and the failure of Counsel to o b je c t to its application was not prejudicial to Movant. The second sentencing enhancement that Movant claims should have been addressed o n appeal was under § 2K2.1(b)(4), which applies to a firearm that is stolen. Movant claims th a t the government did not prove that the gun he was charged with possessing was stolen a n d had not yet been recovered. The record suggests otherwise. At sentencing, the g o v e rn m e n t provided evidence that the gun used to enhance the sentence, the Ruger .22 c a lib e r pistol, was stolen and was not yet recovered. (File No. 1:06-CR-31, Dkt. No. 93, S e n t. Tr., 10-16.) This Court determined that the evidence was sufficient. Id. Any objection to the application of this enhancement would have been frivolous, and, if it had been raised, w o u ld not have affected the outcome. The third sentencing enhancement that Movant claims should have been contested on a p p e al was under § 2K2.1(b)(5), the four-point enhancement that applies to a gun possessed in connection with another felony. Counsel did raise this issue at sentencing, and the Court re jec ted the objection and found that the enhancement did apply. (File No. 1:06-CR-31, Dkt. N o . 93, at 17-23.) The Court only needed to find by a preponderance of the evidence that M o v an t possessed the firearms in connection with the armed robberies, and the Court c o n c lu d e d that it had been shown. (File No. 1:060CR-31, Dkt. No. 93, at 23.) Failing to ra is e the issue on appeal did not prejudice Movant because any objection to the application

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o f this enhancement would not have been sustained. Movant's third claim of sentencing is s u e s Counsel allegedly failed to raise on appeal would have been frivolous. Therefore, the th ird claim will be denied because the failure of Counsel to raise those issues was not u n re a s o n a b le and did not prejudice Movant. The files and records in this case conclusively show that the Movant is entitled to no re lie f under § 2255. Accordingly no evidentiary hearing is required to resolve the merits of th e pending motion. For the reasons stated herein, Movant's motion to vacate, set aside or c o rr e c t his sentence pursuant to 28 U.S.C. § 2255 will be denied. Pursuant to 28 U.S.C. § 2253(c), the Court must also assess whether to issue a c e rtif ic a te of appealability to Movant. To warrant a grant of a certificate of appealability, M o v a n t "must demonstrate that reasonable jurists would find the district court's assessment o f the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2 0 0 0 ). The Sixth Circuit Court of Appeals has disapproved of the issuance of blanket d e n ia ls of a certificate of appealability. Murphy v. Ohio, 263 F.3d 466, 467 (6th Cir. 2001). R a th e r, the district court must "engage in a reasoned assessment of each claim" to determine w h e th e r a certificate is warranted. Id. Upon review of each claim, the Court does not believe th a t reasonable jurists would find its assessment of Movant's claims to be debatable or w r o n g . Accordingly, a certificate of appealability will also be denied as to each claim.

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An order and judgment consistent with this opinion shall be entered.

Date:

October 25, 2010

/s/ Robert Holmes Bell ROBERT HOLMES BELL U N IT E D STATES DISTRICT JUDGE