Newton v. United States of America

Filing 5

Copy of MEMORANDUM OPINION AND ORDER denying 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) filed in 4:19-cr-816-1. COA is denied. (Signed by Judge Sim Lake) Parties notified. (glc4)

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( United States District Court Southern District of Texas ENTERED May 09, 2024 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION UNITED STATES OF AMERICA, Nathan Ochsner, Clerk § § Plaintiff/Respondent, § § v. § S YE NEWTON, § CRIMINAL NUMBER H-19-816-01 (CIVIL ACTION NO. H-24-0121) § § Defendant/Petitioner. § MEMORANDUM OPINION AND ORDER Sye Newton ("Petitiorier~) was convicted of bank robbery and brandishing a firearm in furtherance of a crime of violence in this court. 1 The court sentenced Petitioner to 360 months in custody. 2 Pending before the court are Petitioner's Motion for Evidentiary Hearing in Support of Alibi Employment Records ( "Motion for Hearing Re Alibi") (Docket Entry No. 187), Petitioner's ·Title 28 U.S.C. § 2255 Writ of Habeas Corpus ("Petitioner's§ 2255 Motion") (Docket Entry No. 191), and the United States' Answer to 28 U.S.C. § 2255 Motion and Motion for Summary Judgment ("Government.- s MSJ") (Docket 1 Indictment, Docket Entry No. 1, pp. 1-2; Verdict of the Jury Form ("Verdict"), Docket Entry No. 78, pp." 1-2 . . for purppses .. of identificati Verdict on all page numbers reference the pagination imprinted at the top of the page by the court's Electronic Case Filing ("ECF") system. 2 Judgm~nf in a Criminal Case, Docket Enfry No. 128, p. 2. Entry No. 204) . 3 For the reasons stated below, Pet:itioner' s Motion - - for Hearing Re Alibi and Petitioner's§ 22~5 MotioThwill-be denied, the G~vernment' s MSJ. will be granted, and the _accompanying civil action will be dismissed with prejudice. I. A. Background Petitioner's Indictment, Trial, and Sentencing Petitioner was inciict~d on November 6, 2019, on one count of bank robbery in violation of 18 U.S.C. §§ 2113(a) and (d) and one count of brandishing a firearm during a violation of 18 U.S.C. § 924 (c) (1) (A) (ii) . 4 crime - of violence in The Indictment alleged that on March 25, 2019, Petitioner took $15,742 from an IBC Bank in Houston, Texas, and that Petitioner brandished a firearm in the process. 5 At trial witnesses testified about a March 25, 2019, robbery at an IBC Bank at 8203 South Kirkwood Drive in Houston, The robber - wearing a hijab - had a gun in his hand. 7 Texas. 6 The robber yelled for bank patrons to· get down and obtained i:nOney from each of 3 The court Government." • 4 hereafter refers to the United States as "the Iridict~eni, Docket Eritry No. 1, pp. 1-2.· 6 Transcript of Jury· ·Trial • Proceedings _:_ Day ·1> of Two ("Day •1 Trial Transcript"), Docket Entry-No. 168, p .. 78 lines 9-10, p. 80 lines 17-25,- p·: 82 lines 18~25, p. 86 lines 6-25, p. 91 lines -9-1-4, p. 118 lines 21-22, p. 119 lines 18-21, p. 126 lipes 8-23, p. 131 lines 18~19, p. 132 lines 6-17, p. 136 lines 4-25, 137 lines 1-8. t. ~Id. at· 86lines 14·~20;, p. 124 lines 11-12;·p.-134 lines 10~18; Government's Exhibit 4, Docket Entry No. 136-2. -2- th~ tellers at, gunpoint~ 8 Witnesses identified the robber-as a male based on.his voice and face. 9 _ After the robber left the bank, one patrcin want outside, saw the robber, and- began following him bT car. 10 • The patron testified that he saw the robber take off his disguise arid throw it in a dumpster. 11 female. 12 The patron saw the robber get int-6 a car with a The patron followed them to a Valero gas station and took a photo of the car - a Eord_Escape with iic~ri$e plate FCP 0317. 13 After some further pursuit, the patron retrirned to the Valero and showed the photo of the car to a nearby officer. 14 Two days later a Houston Police Department ("HPD") patrol officer respor1ded to a nearby. complaint· about •an i1legally <parked car - a'Ford Escape with license plate FCP 0317. 15 The officer ran 8 Day 1 Trial_ Transcript,· Docket Entry No. 168, p. 8 6 lines 2325, p.·- 126 lines· 4-23, p~ 127 lines 8-11, p.--i36 lines ·20_:25, p. 137 lines 1-8; Govern~ent's Exhibit 4, Docket Entry No. 136-2. ,· 9 Day 1 Trial Transcript, Docket Entry No. 18, •p.' 126 lines 1-3. Althou·gh the -robber was ~itness testified that she got a closeup view when he stooped to-pick up his glasses. Id'.· p. 89 lines 15-21, 25, p. 90 lines 1-6. 168, p. 8 8 lines 1 7weai<ing. ahijab, .one of the robber's face ·at-.38 1-ines "18-25, 10 rd. at 13 9 lines 2-3, 18-20, p. 142 lines 5-7. 11 Id. at 142 lines 9-10. 12 Id. at 144 lines 5-14. 13 Id. at 148 lines 24-25, p. 148 lines ·4-9, p. 149 lines 21-25, p. _ 150 lin~s .1, 14-15·;-, Government~ s E_xhibi t - Eti.• • -Docket Ent_ry No. 136-3. 14 Day 1·Tr{~f Transcript, Docket Entry No. 10~25; p~ 155 lines 1-2. 15 Icf. at 171 line~ -13-:22, p. 17 3 lines 3-8. -3- lGS, p. 154 lines 7-.. \ the plate, which brought up a suspicious hit and a case number. 16 The_ offlcer had. the v~hicle towed t~ ~-- secure· evi:cf~nce lo't'·; 17 ~fter obtaining~ sear~h warrant, an HPD investigator examined < - the car and ' • .·,; found numerous personal items inside, including a consular records request with Petitioner's name on it and a case of 9-millimeter ammunition . 18 various parts fingerprints. of the The officer collected fingerprints from car, some of which matched Petitioner's 19 After Petitioner was located and arrested in San Antonio, HPD robbery detectives During the ~Obbeiy. 2 ! interviewed Petitioner on August interview, Petitioner conf_essed to 12, 2019. 20 committing the In the.process Petitioner mentioned datails' about the ~Id.· at 174 lines 1~4. 17 l:d. • at 175 lines 12-20. 18 Id. at 180 lines 8-10, 22-25, p .• 181 lines 1-2; Consular ~ital Record Search Request, Docket Entry No. 137; Government's Exhibit 12, D~ck~t Eritry No. 137-2; Government's-Ex~ibit 13, 6otket Entry;No. 137-3. ~Day i_Trial Transcript, Docket Entry No. 168, p. 192 lines 20~14, p: 193 lines 19-25, p. 194 lines 1-8; p. 217 lines 13-~5; p. 218 lines 1--:.12; Government's Exhibit 15, _Docke.t Entry No. 137--:-4; Govern.merit's Exhibit 1'6, • Docket Entry No.· 137-5'. ,:,. • ·of Jury Trial Proceedings _: Day :f of Two, Docket Entry_No. 169, p. 6 lines ~-5 and lines.13--:16, p. 36 lines 19-20, p.· • ·37 lines· ·24-25, - p. • '- 38 lines 1-6;-. Sye Ne~·iton· Statement~ Government's Exhibit 18, Docket Entry .No.. • 138. • . . . ' . . ' . •. . . -~ . . : ...:_~ . ·:. ' 20 rrra~s'cl'.:"ipt' • ,.. : , ' 21 Sye m~wton Statement, Government's Exhibit 1: 11: 01 (time stamped 3:10:26 p.m.-3:11:41 p.m.) .. -4- 18, L 09: 46- robbery tha:t: th~, c:ietec.tives. had not disclosed to h-{:;n,_- includipg the amount- of money •stolen~ 22 Tl)e jury fciupd Petitioner .guilty on '..boti/ 'cqui1ts. 23 The court sentenced Petitioner to 276 months in cu~tody as to Count One and 84 months as to Count Two, to run consecutively for a total of 360 months in custody. 24 B, Petitioner's Appeal Petitioner appealed his convictions to the_ Fifth Circut t. Petitioner argued that the evidence in the car should have been suppressed because the search warrant was insuffici~nt and that his cbnfes~ion was the product of police coercion. pnited States v. . . Newt~n~ No. 22...:-20375, 2023 WL 8074220, at *1 (5fh Cir. Nov._ 21; 2623) (per curiam). The Fifth Circuit rejected bo-:::.h arguments and affirmed Petiti6n~~'s 66n~ictions. C. Id. ~t *1-2: The Partie$' Pending Motions On November 3, 2023, Petitioner filed his Motion for Hearing Re Alibi. 25 Petitioner argues that he has new evidence to show that he was in El Paso on the date of the robbery. 26 22 Petitioner states Id. at 1:18:0.5-1-:18:.35 (time stamped 3:J,8-:4:5'.-p.m. -4:19_:15 p .m,.).. 23 • ... 2 V~rdict-, Docket Entry No. 7 8, pp. 1-2. ~judgment in a Criminal Case, Docket Entry Ni'5·,:· 128~ ,• r· 25 -- - • Motfc:in •:for Hearin·g Re Alibi 1 Aff t' ,-,f bocket Entry Ne. 187 ida-.ii of Sye Newto~ •in Support bf M~tiorI.-toi Eviden,tia~y Hearing Ba~ed on Alibi.Ernployment Record, Docket Entry No. 187-1, p. 1-15, pp. 3~4 ii 11-14: ••• -·. 26 that ··he .wc3.s w_orking for a temp agency ,"Family En¢eavors/:Intrepid Stafffng- Services, ",,.under the .ali9-s Micah_ Newton, ,Jr. 27 • In. support i' Petit~b~er·attaches:what·purports to:be~~n email frorri. Ehdeavors confirm'ing : that ' they employed someone under the name qf Micah Newton from September 25, 2018, through January 1, 2020, on an "as needed" basis, but the email does not.specify the location of Micah Newton's job or state whether he worked on MC:~rch 25,: 2019. 28 Petitioner also filed an "Admission of Micah Newton.:" which states: 1. I plead the fifth amendment as to having any knowledge that Sye Newton 1:1sed or may. _have used , my personal information includirig my name, Social Security number, date of birth in the month of September 2018 .. 2. I do admit that I never suubmi tted · a,ny employment forms to ''Endeavors"· ([or] .. any other temp agencies in· the .San Antonio, TX area) to work with FEMA c:ompanies in the months of-September andOctober·2018 . . 3. :,r admit that T have never been employed -j,s· a direct· care worker or in any capacity for· temp agenc~2s employed ·by FEMA camps· in the. year 2018 through 2019 :o.'r any• other ·year. 4. I ad.rnit that it has come to my attention Sye Newton . , rriay have used my . pers-onal information' <to obtain employment . by said agencies during the •, months • of September through October 2018 . 29 • Petitioner's § Petitioner argues 2255 Motion was ·filed on January 11, 2024. 30 ( 1) that Petit,ioner' s trial co1i1:isel Cordt. Akers 28 Correspondence Re: employment,· reference che_ck, Docket Entry No. 187-1, p. _ 6:,, 29 Admission ,of Micah Newton, • Docket Entry No. 186. 30 Peti tioner' s § • 2255 '-Motion, • Docket 'Entry No.•; •191 '.: was ineffective in failing to investigate and present his El Paso alibi at-- triai, • •(2-) ··'that Akers invest1gate -a:nd was dev~lorr an- ls·sue courthouse cafeteria, (3) ineffective ln - failing to o{ • jifro-r:: m.fscoriduct in the that Akers was ineffective in advising Petitioner not to testify at trial, (4) that Petitioner is actually innocent based on his new alibi evidence, and (5) that his sentence improperly considered prior convictions that are currently being collaterally· attacked. 3 i The Government filed a motion to compel Akers to provide an affidavit addressing Petitioner's assistance of counsel. 32 allegations of ineffective The court granted the motion-, 33 and Akers provided an affidavit stating: I. •- General Response . At ho: point in the proceeding, -trial or• pretrial-, did counsel go a~ainst Mr. Newton's wishes oi refuse to .do anything he requested; In the multiple meiitings with Newton, strategy was always discussed along with the pros '. and cons of each course of action. • The only ::strategies • that caused :significant disagreement between counsel and defehdant were 11) Mr. Newton~s decision tb file multiple pro se lawsuits against Vanessa Gilmore, the judge presiding over his trial, . and both prosecutors, and: (2) Mr. Newton's decision on multiple occasions to proceed pro se.. In these discussions, counsel advised defendant of the dangers of doing so, and defendant each time changed his mind; 31 Id.- at 2, _4. 32 Uni ted ·States' Motion for an Order Directing Counsel to Provide :an Affidavit arid Motion to Amend Scheduling Order, Docket_ Entry No. 198, p. 1. 33 Order Directing Counsel to Provide an Affidavit and Amending Scheduling•order,•Docket Etitry No. 199~ p. 2~ -7- Multiple times 'during "the triai, · Newtoh expressed ·that he·had "never had a real trial lawyer represent him before" and thanked counsel profusely'. for his repres~ntation. He wrote counsel multip'ie· not,.es thanking , him after··cross examinations and closing argufhent, which counsel kept. See Exhibit 1. Mr .. Newton vias a [ t] rio point upset with counsel's performance or,·: strategic decisions until the verdict was read. II. Alibi Defense The evidence against Mr. Newton was stro11g. A blaqk male dressed in a hij ab robbed a bank at gu:npoint. IA witness identified the license plate of the'vehicle in which.the disguised bank robber·escaped. This vehicle was found abandoned blocks away from ·the bank. It contained~ among other things, Sye Newton's fingerprints. It also contained several homemade board games, which Newton claimed ownership of to the police, several pieces of his identifying information, and several ly.rics, poems a.nd writings. Mr. Newton likewise claimed ownership and authorship of these notes and lyrics to law ehforcement. At least one of these writings contained· rap lyrics about disguising in a hijab to rob banks -.the very~same modus operandi 6f the individual who robbed thi~ b~nkr .when Mr." Newton ·was arrested· some time', later, he waived h1s Miranda:.rights and provide [d] law :E:nforcement with full· confessibrt. that lasted··several~ hours 'and included. information· only Someone involved. with the robbery would know, such as the exact amount of money stolen. Upon Counsel being ~ppointed and meetint defendant after -the· public - defender was removed, Mr. •Newton told defense colinsel that he was not· robbing the b~:;;1k, but was in Las Vegas staying with his mother. Counsel called his mother and inquired, and-was told that she wop-ld have to investigate the:. dates b'a.sed on which ~ fi-re tonics'· she n.a.d made during that time; becaus·e •she could r:emember the type of potion she wa.s making when he was th?,re. . Aftera number of conversations with defendant's mother yielded no fruit,- Newton exp'lained to counsel. that his: that he· was in Las. Vegas was· false, . and that he· made that claim because he did not yet trust defense counsel . . :Counsel· revi·ewed ~multiple notes of conversations with prior counsel Dennis Hester, where~rt he spoke with Mr. Newton, ,Alisa Pear-son,: and others who claimed that Newton was in fact ih San Antonio ~hen the ~obbery was col:nmi tted. · Newton then told defense counsel that ,he ·was near the robbery, but ,was not the bank robber nor was·he in the getaway car; .. He-stated ·that there was some sort of agreement between his girlfriend, Alisa Pearsori, the bank manager, and her ex..:.boyfriend . that resul t.ed in the robbing of the bank. • He was not• involved,· but he was present for conversations about it and witnessed it. Later, Newton told · defense counsel that he was actua1ly somewhere else. He stated that he was in El· Paso working for an unnamed company under his brother's name, Micah Newton. Counsel responded that [this alibi] would take three factors to pi~sent as a defense: (1) • Micah Newton's cooperation and- statement that· he was not employed there,· (2) records from the company showing Micah was empioyed there, and (3) employment records that matched that Ne~iton was in fact in El Paso at the exact day of the robbery. Counsel contacted Micah Newton, ·who stated he would check into the matter. He then refused to return phone calls. Counsel strategically made the decision not to subpoena· Micah Newton as. a witness when he wa's possibly adverse to·defendant and would not testify voluntarily. Counsel then discussed with defendant that if a RU:le 16 subpoena.was filed andno·helpful records wer'ereturnedi as defense counsel suspected, then the Government would have proof that he was not where he claims he'\~as; in the event defendant elected-to testify·at trial ~~a decision defendant would not discuss with counsel . ui'l.til trial commenced-. - When trial neared, counsel asked defendant if· he wished • counsel to. file subpoenas .andY • contin'Cle investigating the El Paso alibi or if his energies shouid be spent preparing fo·r trial and if the El Pas.:b alibi :w{:is a red herring. Defendant responded that c6~hsel wo~id not· find any evidence regarding his being ii1· El Pasq, that it was a waste of time, and counsel should focus preparing c~oss examinations. Counsel took t~is to me~n that Newton was abandoning his claim that he was livi0g in El Paso at the time of the robbery as he had.abandon~d his other claims of separate alibis with ~ourisel. ! ~ . • I pn · Counsel. was satisfied that a strategy pr~sehting any sdrt • of alibi defense at trial would· cause<oan instant loss ·of credibility •with the jury;· It was·dJ.cided, and -9- agreed.:..p~ by de'fendarit, that. focusing as much as possible on .a false confession and holes in the. investJg·ation w·as ~e~en~a~t's ·be~t· po~~ibie· €rial stritigy ~~iven the mountinc,J _eyid,e_nce aga,inst hirn. :pr. De.fendarit's Testimoriy at"Trial ·.:::t ._._: ! ' , .'.' .- •:' - • Defendant claims that defense counsel was deficient when he counseled Newton not to testify at trial. Mr .. Newton had several convictions for assaults, firearms offenses, and robbery, some of which.could have been admissible against him at trial - one of which included holding ariother inmate hostage while,in custody in Delaware. Likewise, the Government had not placed the rap lyrics describ::j_ng the.offense into evidence. It was discussed between counsel and ,defendant that those exhibits may become admissible in cross examination arid be detrimental to his defense. Likewise, defendant had filed several prose motions for release from.detention, none of which included any alibi but instead focused on defendant's pending patents and board game d~velopment. This · used very.well against defendant on cross examination. Finally,-there were enough pieces of testimony and evidence that we.te not played, discussed with; .or· shown to the jury that defenie counsel strategically believed it would be smarter to rest behind the government and focus on the burden of proof rather than give them an opportunity for any rebuttal. It was :decided; ~ery rhut0ally with defendant, that d~fendant should not elect to testify in his own behalf as part of trial strategy and allow the jury~o focus· on the possibility of reasonable doubt.· Defer1d2n:t agreed: . IV. Failure to Investigate Jury Misconduct· Defendant claims that counsel failed to'investigate j uty • misconduct .. • • The information imparted defense counsel:regarding the alleged jury misconduct was ·that Mr.· Newton's family. overheard a juror in the· cafeteria say the phrase . "these young· people . think they .slick" without any .context•;.· Mr. Newton claimed to defense counsel that this was (1) • age discrimination, and (2). improper deliberations in his ca-Se before deliberations began. Counsel did not, ·and does not; believe that this statement amounti to jury misconduct. The jurors were not observed to be discussing the case, theeviderice,· or -10- the parties. The "young people think they slick" comment, if made, supposedly overheard by Mr. Newton's family members could have very well been talking about other matters with no context or relevance to the case. Counsel believed· and does believe that presenting that as a motion for new trial.or as grounds for examining the jury for possible misconduct would amount to a fraud on the Court and a violation of counsei's duty of candor to the Court. When counsel imparted this to defendant, he elected· to represent himself and filed his own motions, as he had done so throughout representation. He was then sentenced to 360 months' incarceration. 34 The Government's MSJ was filed on April 10, 2024. 35 The Government argues that Petitioner's claims are inadequately pled, procedurally defaulted, and frivolous. 36 On May 7, 2024, Petitioner filed Sye Newton's Reply to United States Answer to 28 U.S.C .. § 2255 Motion and Motion for Summary Judgment (Docket Entry No. 206). II. A. Legal Standard Title 28 U.S.C. § 2255 28 U.S. C. § 2255 (a) states that a prisoner sentenced by a federal court may move that court "to vacate, set aside or correct the sentence" "upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States . . or "A defendant can is otherwise subject to collateral attack." challenge a final conviction, but only on issues of constitutional or jurisdictional magnitude." United States v. Willis, 273 F.3d 34 Affidavit of Cordt Akers, Docket Entry No. 200, pp. 2-8. 35 Government's MSJ, Docket Entry No. 204. 36 Id. at 14. -11- 592, 595 -(5th Cir. 2001). "[T] o obtain collateral relief a prisoner must clear a significantly.higher hurdle 'than would exist on direct appeal." United States v. Frady, 102 S. Ct. 1584, 1593 (1982); The court "may not consider an issue disposed of in [the defendant's] previous appeal at the§ 2255 stage.~ United States v. (per curiam). Goudeau, 512 F. App'x 390, 393 (5th Cir. 2013) Similarly, a dejendant generally may not raise claims in a§ 2255 motion that he has procedurally defaulted. United Vargas-Soto, 35 F.4th 979, 993 (5th Cir. 2022). States "In general, v. [i]t is well settled that where a defendant has procedurally defaulted a claim by.failing to raise it on direct-review, the claim may be raised in a demonstrate § 2255 either (1) 'actually innocent' United States v. motion of only if. the that that-. he the was convicted." (.5th Cir. • 1999) To show cau·se, "the movant Torres, some can- first cc;1.use_ and prejudice, - or .(2) crime 163 for F.3d (internal quotation marks bmitted). ~must . shoy.J petitioner objective which he 909;· factor 911 e-xternal: :to the is defense impeded counsel'. s. •efforts to comply with the [relevant] - procedural rule.'" Vargas'-Soto, 35 F.4th at 993 (quoting DaviJa v. Davis, 137 $._. CL 2058; 2065 (2017)). A court must grant an evidentiary hearing on·-a. § 2255 • motion I I "[u]nless the motion and the· files and records of the conclusively show that the prisoner is entitled to no relief." base 28 U;S.C; § 2255(b) .• "When facts are at issue in a§ 2255 proceeding, -12- a hearing is required if trial ~ourt's (1) the ~ecordJ personal. knowledge or as supplemented by the ·recollection, does not ·conclusively negate the facts alleged in-support Qf the claim fo~ § 2255 relief, and (2) the movant would be entitled to postconviction relief as a legal matter if his factual allegations are true." United· States v. Anderson, 832 F. App'x 284, 287 (5th Cir. 2020) (per curiam). A petitioner's "conclusory assertions do not support the request for an evidentiary hearing." United States v. Auten, 632 F~2d 478, 480 (5th Cir. 1980). Instead, a petitioner must likely merit produce "independent indicia of the of her allegations, typically in the form of one or more affidavits from reliable third parties." United States v. Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998); United States v. Edwards, 442 F~3d 258, 264 B. (Sth•.cir. 2006). Ineffective Assistance of Counsel "[A] claim for ineffective assistance of counsel is properly made in a § 2255 motion because it raises an issue of constitutional magnitude and, as a general rule, cannot be raised on direct appeal." (5th Cir. 2003) United States v. Conley, 349 F.3d 837, 839 n.1 (internal quotation marks omitted). To prevail_ on an ineffective assistance of counsel claim, a convicted defendant must show (1) that defense counsel's performancie was defici~nt and (2) that the deficient performance prejudiced the Strickland v. Washington, 104 S. Ct. 2052, 2064 (1984) -13- defendant. Performance is deficient if the defendant's lawyer "made errors so serious that [he] was not functioning as the 'counsel' . - . . . '. guarantee·d the· defendant by the Sixth Amendment." must indulge a Id. "[A] court strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." at 2065. law Id. "[S]trategic choices made after thorough investigation of and facts relevant unchallengeable." plausible options are virtually Id. at 2066. To show prejudice a reasonable to probability "defendant must show that there is a that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 2068. - For a trial· error, the defendant must show that counsel's errors were "'so serious as to deprive the defendant of a fair trial~ a trial whose result is reliable.'" Harrington v. Richter, 13L S. Ct. 770, 787-88 (2011) III. A. Analysis Akers' Investigation of Petitioner's El Paso Alibi Petitioner argues that his convictions must be vacated because Akers . failed trial. 37 to investigate_ and present his El Paso alibi at "[T]he failure to investigate everyons whose name_ happens to be mentioned by the assistance." defendant does not sugg:est ineffective United States v. Cockrell, 720 F.2d 1423, 1428 (5th ~Petitioner's.§ 2255 Motion, Docket Entry No. 191, PP~ 2-3. -14- \\ . Cir. 1983). "[T] he prese11ta-t;:ion .of testimonial evidence is • a matter of trial strategy[.]" 500 Schwander v. Blackburn, 750 F,2d 494, (5th Cir. 1985). Although Petitioner attaches a statement by Micah Newton and a purported record of Petitioner's employment start and end dates, Petitioner presents no evidence (other than his ciwn affidavit) that he was working in El Paso on the specific day· of the robbery. Akers states that Petitioner presented multiple, contradictory alibis to him and that Petitioner ultimately agreed that pursuing the El Paso alibi was a waste of time. Akers was deficient in failing El Pas6 alibi therefore fails. prejudice. The. • evidence overwhelming. to Petitioner's claim that investigate and present his Moreover, Petitioner cannot show against Petitioner ·".· at trial was Not only did Petitioner confess to committing the robbery, but in doing so he mentioned details of the robbery that the·police h~d not disclosed to him. neither deficient performance nor Becau~e Petitioner can show prejudice, his ineffective assistance o16ounsel claim fails. B. Akers' Investigation_ of Alleged Juror Miscondu.ct Petitioner argues that Akers was ineffective in failing to investigate and seek a new trial based on juror misconduct in the courtroom cafeteria. 38 Al though Akers declined to present the juror's alleged statement to the court, Petitioner previously filed ' 38 Id. at 2. motions for a new trial and_for acquittal based on~the statement. 39 At ·sentencing, the ~curt considered the juror's alleged statement and rejected Petitioner's request for a new trial or evidentiary hearing on the matter. 40 Given the vague nature of the statement and the limited circumstances in which juror testimony may be considered, it was r~asonable for Akers to not pursue the matter. Moreover, because there_. is .. no iri,dication tha_t the . ~tateme9-t 101.a,s -~pgyt the case or that it affected the jury's deliberations or verdict, cannot show that Akers' decision prejudiced him. Petitioner· Because Petitioner can show neither deficient perfot~ance nor prejudice, his ineffective assistance of counsel claim fails. C. Akers' Advice That Petitioner Not Testify at Trial Petitioner argues that Akers was ineffectivi in advising him to not testify at trial. 41 out, But as Akers and the Gbvernment pciint doing so would have opened the door for the Government to introduce portions of Petitioner's prejudicial criminal history and potentially other evidence - including written lyrics found in the _,;· car about disguising in a hijab to rob banks. Petitioner therefore cannot show that Akers' advice not to testify was deficient or that 39 Rule 33. Motion for New Trial, Docket Entry :·No. 89; [Motion for] Evidentiary Hearing in Support of Motion· for Acquittal or Alternativeiy New Triai, Docket Entry No. 90. %Sentencing Transcript, Do_cket Entry No. 164, p. 3 lines 12• 25, p ;·' 4· lines 1-9. 41 Peti tioner' s § 2255 Motion, Docket Entry No. 191, p. 4. -16- it prejudiced Petitioner. Petitioner's ineffe6tive assistan~e of couns~l claim therefore fails. D, Petitioner's Actual Innocence Claim In support of Petitioner's Motion for Hearing Re ·Alibi, Petitioner presents new evidence that he argues shows that he was in El Paso on the date of the robbery. In Petitioner's § 2255 Motion, Petitioner argues that his new alibi evidence shows that he is actually innocent of the robbery. Courts do "not consider habeas relief based on 'freestanding claims of actual innocence.'" Floyd v. Vannoy, 894 F.3d 143, 155 (5th Cir. 2018) (quoting In re Swearingen, 556 F.3d 344, 348 (5th Cir. "Instead, 2009)). a successful actti~l-inn6c~n6e claim provid~s a 'gate~iy' for the petitioner to proceed on the merits" bf an•·error that would 'otherwise· be time barred. House·v. Belli 126 S. Ct. 2064, 2066 (2006)). Id. (quoting As explairied above, Petitioner's claim that Akers was ineffective for rtot investigating the El Pa~o alibi ~ails~ Petitioner dbes not argct~ that any-other error· in the prosecution or trial caused the unavailability Of this new.evidence. Construing 'Petitioner's Motion for· Hearing 'Re Alibi as q motion for a hew,trial under Feder::al Rul§:: qf_Cr;i:minal Procedure 33, the •motion fails on the merits because the •evidence is weak, 42 ~The evidence, read liberally, shows only statt and end dates of Petitioner's purporte'd employm~nt, does not spet::ify the lo6ation of said employment, and gives ,r10 indica.tion that· there is· more detailed documentation available. -17- i~corisistent 0ith the other al~bis Petitiorier preJented to ikeis, ._, ,.. . . .• and conclusively refuted by the overwhelr~_ing evidence presented at trial. 43 • Petitioner's Motion -for ·Hearing Re Alibi will therefore be denied, and Petitioner's actual innocence claim fails. E. Petitioner's Sentencing as a Career Qffender Petitioner argues that his sentence must be corrected because two "underlying state convictions relied upon by this court for I sentencing enhancement are Petitioner states these that challenged ai;f convictions unconstitutional [ . J " 44 are being attacked in• the Middle Dist.rict of Pennsylvania, identify the convictions. 45 collaterally but he does not As the Government suggests, Petitioner appears to be renewing a challenge he previously made to using t~~ convictions referenced in '1['1[ 34-36 of the PSR to a:pply the_ career offender guideline. 46 This claim was raised in this court at sentencing and could have been pursued in Petitioner's direct appeal. Petitioner· ha~· therefbre ~procedurally defaulted this claim. 43 Petitioner's alibi evidence, if credible, would at most show the start and-•· end date of Petitioner's empioymerit - riot that Petitioner was working in El Paso on the exact date of the robbery. Moreover, the employment date range cannot bE! completely acc11rate given that Petitioner was arrested in this case months before the supposed end date. 44 Petitione·r' s § 2255 Motion, Docket Entry No> 191~ p.· 1. 46 Government's MSJ, Docket Entry No. 204, p. 1-2; Affidavit in Support of Objection to Presentence Investigation Report, Docket Entry No.' 123, pp . .2.,..3. -18- Moreover, Petitioner has not cited cases holding that a prior conviction may not be considered in guidelines ca~culation merely because a co],lateral attack is pending' against the prior conv:(ction. Petiti~ner~~ challenge to his sentence therefore fa{ls. IV. Certificate of Appealability Rule 11 of the Rules Governing Section 2255 Proceedings states that a district appealability applicant." court when "must it issue enters a or final deny order a certificate adverse to of the A certificate of appealability will not issue unless the applicant makes "a substantial constitutional right," 28 U. S ..c. § showing of the denial of a 2253 (c) (2), which requires an applicant to demonstrate "that 'reasonable jurists would find the district court's assessment of the constitutional claims debatable 2565 (2004) (quoting Slack v. McDaniel, 120 S. Ct. 1595, 1604 (2000)). Under or wrong. ' " Tennard v. Dretke, 124 S. Ct. 2552, that controlling.standard this requires apetitio'ner to show "that reasonable jurists could debate whether (or, for that matter, agree that) the p~titibn should bave been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Miller-El v. Cockre11, 123 s·. Ct. 1029r 1039 (2003). (internal quotation marks omitted):.· A· district court may deny a certificate of,. appealability, sua sponte, without requiring further briefing or argument: Alexander - v •• Johnson, curiam) . 211 F. 3d . 8 95, 8 98 ( 5th Cir. See 2000} · (per The cbl!rt concludes .that reasonable j u"rists could not -19- find any of Petitioner's· clai~s meritorious, so a c~rtifi6ate· of appealability will be denied. V. Conclusion and Order Petitioner's new evidence in support of his El Paso alibi does not warrant an evidentiary hearing or a new trial. Motion Records for Evidentiary Hearing (Docket Entry No. in Support 187) is Petitioner's of Alibi therefore Employment DENIED. As to Petitioner's§ 2255 Motion, Petitioner has failed to establish or has procedurally defaulted each of his conviction and sentence. claims challenging his Therefore, Petitioner's Title 28 U.S.C. § 2255 Writ of Habeas Corpus (Docket Entry No. 191) is DENIED, the United States' Motion for Summary Judgment (Do~ket Entry No. 204) is GRANTED, No. and H-24-0121) the accompanying civil action will be dismissed wit.h prejudice. (Civil Action Because the record concl~sively sho~s that Petitioner is not:entitled to any .. . . relief, the court need not grant an evidentiary hearing. reasonable Because jurists could not find any of Petitioner's ass·erted claims meritorious, a certificate of appealabil'i t~~ is DENIED. The Clerk shall provide a copy of this Memorandum Opinion and Order to th~ partie~. SIGNED at Houston, Texas,· on this the· 9th· day of May,· 2024. 7 SIM LAKE SENIOR UNITED .STATES DISTRICT JUDGE -20-

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