Filing 13

ORDER granting in part and denying in part 1 Motion to Vacate Sentence per 28 USC 2255 and 2 supplemental Motion to Vacate Sentence per 28 USC 2255. Signed by District Judge Barbara B. Crabb on 5/20/10. (krj)

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IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------U N IT E D STATES OF AMERICA, O PIN IO N AND ORDER Plaintiff, 0 9 - cv -6 6 6 - b b c 0 4 - c r -1 6 5 - j c s v. A D R IA N J. BELL, D efendan t. --------------------------------------------D efendan t Adrian J. Bell has filed a timely motion for post conviction relief, co n ten din g that he was denied the effective assistance of counsel at his trial. His motion raises a number of issues, including counsel's alleged failure to challenge the admissibility of statem ents and evidence and to object to the makeup of the jury pool. Two of the issues arise out of the Supreme Court's decision in Begay v. United States, 128 S. Ct. 1581 (2008), clarifying the nature of crimes that qualify as "violent felonies" under the Armed Career C r im in al Act provisions of 18 U.S.C. 924(e)(2)(B). I conclude that defendant's motion m u st be denied as to all of his claims except his challenge to the use of his conviction for second degree sexual assault of a child as a qualifying offense for his armed career criminal 1 status. He is correct when he argues that such a conviction is not a predicate offense under 924(e). Without it, defendant has only two qualifying prior convictions, one short of the n u m b er needed under 924. Therefore, he is entitled to resentencing without the armed career criminal enhancement. BACKGROUND O n October 13, 2004, the grand jury returned an indictment charging defendant with th e illegal possession of a Glock 17 9mm pistol and a Marlin .22 caliber rifle after having been convicted previously of a felony. The incident leading to the indictment took place in th e early morning hours of October 2, 2004, when the Madison police received a call rep o rtin g the sound of shots fired in the vicinity of 2222 Allied Drive. Officer Ryan Gibson respo nd ed to the call, As he walked up the driveway between 2222 and 2230 Allied Drive, h e picked up four shell casings, later identified as having been fired from a Glock pistol foun d in defendant's apartment at 2230 Allied Drive. Meanwhile, other officers obtained a search warrant for Apartment 5, which they executed the same morning. In the course of execu tin g the warrant, the police removed three people from the apartment, including d efen dan t. During the ensuing search, they collected evidence in the form of a Glock pistol an d pellet gun wrapped in a white t-shirt under a loveseat and a sawed-off Marlin rifle lying on top of a pair of blue jeans in a bedroom closet. 2 D efendan t was taken to the West district police station, where Detective Ann Turner read him a copy of the search warrant and advised him of his rights. In the report she filed subsequ ently, she said that she read defendant his rights and that his first comment was, "I sh o uld probably talk to my attorney." After she told him it was his choice, he said, "I'll talk to a point until I decide to stop." (Defendant disputes the statements in the report. He says that he stated "unequivocally": "`I should probably talk to my attorney" and should not have been questioned further.) Defendant told Detective Turner that he had been involved in an argument with so m eo n e named Mario in his driveway. Turner asked defendant whether he had any guns in his apartment. He told her he had a pellet gun and a sawed-off BB rifle and that the rifle w as in a closet in his bedroom. When Turner told him that a Glock had been recovered in th e apartment, defendant told her that it was his brother's gun. B etw e en his arrest on October 2, 2004 and his trial on February 28, 2005, defendant w as represented by four different lawyers. The court appointed new counsel for him two tim es after he developed irreconcilable conflicts with each of the first two. On the second o ccasio n , February 2, 2005, the court appointed Federal Defender Dean Strang to represent defendan t and continued the trial date. Strang was assisted at trial by Assistant Federal D efender Michael Lieberman. Defendant was found guilty at trial. On May 9, 2005, Judge Shabaz sentenced him 3 to a term of 285 months after finding that his offense level was 34 and his criminal history category was VI because of his status as an armed career criminal under 924(e). (Without this enhancement, the criminal history category would have been V.) Before sentencing, defendan t objected to the use of his previous convictions for a controlled substance offense and second degree sexual assault of a child to establish his status as an armed career criminal u nd er 924(e)(2)(B)(i) and (ii). He argued that the controlled substance offense did not have a maximum penalty of ten years, as required under the statute, and that the sexual assault charge did not qualify as a violent felony because it did not have as an element the u se, attempted use or threatened use of physical force against the person or any element of no n-con sent. The probation officer agreed with defendant that the controlled substance offense was not a predicate offense, but maintained its position that second degree sexual assault of a child was a violent felony. Judge Shabaz adopted the probation office's recom m enda tions. Defendant did not object to the use of his prior convictions for armed burglary and child abuse - intentional harm. In denying defendant's challenge to the use of the second degree sexual assault con viction , Judge Shabaz relied on United States v. Shannon, 110 F.3d 382 (7th Cir. 1997). In that case, the court of appeals had found from the charging documents and judgment of con viction that sexual intercourse with a 13-year-old child is a crime of violence because it presents a serious risk of physical injury. 4 D efendan t appealed his sentence, arguing among other things that the court erred in relying on Shannon to find that his second degree sexual assault of a child conviction was a predicate offense under 924(e)(2). The court of appeals denied that claim, reaffirming its decision in Shannon, and it rejected all but one of defendant's other claims. It sent the case back to the district court to provide defendant an opportunity for a competency determ inatio n that had been denied him when he sought one at the time of sentencing. He w as examined first by Dr. Christina Pietz, who concluded that he was malingering and that h e was competent to be resentenced. After defendant asked for an independent evaluation, he was seen by Dr. Kent Berney, who reached the same conclusion that defendant was m alingering but who said that the malingering prevented him from forming an opinion about defendan t's competency. A competency hearing was held on August 13, 2007 before United States Magistrate Ju dge Stephen L. Crocker, who found defendant competent to be resentenced. Resentencing to o k place on September 12, 2007. Once again, Judge Shabaz imposed a sentence of 285 m on ths. Defendant appealed again, arguing that the judge had erred in finding him competent to be resentenced and that his sentence was unreasonable. The court of appeals disagreed w i th both arguments and affirmed his sentence. Defendant filed a petition for a writ of certio rari, which was denied on November 3, 2008. He filed this motion on November 2, 5 20 09 . OPINION D efendan t has raised five claims in his 2255 motion, all going to the alleged ineffectiveness of counsel, both trial and appellate. (1) Counsel failed to challenge the use of defendant's armed burglary conviction as a qualifying offense for armed career criminal statu s; (2) counsel failed to challenge the use of defendant's second degree sexual assault of a child conviction as another qualifying offense for armed career criminal status; (3) counsel failed to suppress evidence of statements defendant made to law enforcement after he had invoked his Fifth Amendment right to counsel; (4) counsel failed to object to the com po sition of the jury pool and panel; and (5) counsel failed to move to suppress evidence seized by law enforcement officers. As I noted at the outset, only the second of these claims has any merit. 1. Trial counsel's failure to challenge use of armed burglary conviction as predicate offense It is not always clear which lawyer defendant is contending was ineffective in connection with each claim. For example, in this claim, defendant says that "counsel" was in effective for failing to challenge the use of defendant's burglary conviction as a qualifying offense for armed career criminal status. Dft.'s M., dkt. #1, at 4. One might assume that 6 he is referring to the lawyers who represented him at his trial and at his first sentencing, because they did not object to the use of this conviction as a predicate offense. However, his objections to the government's response, dkt. #9, indicate that his argument is with his app ellate counsel for not challenging the burglary conviction as a predicate offense. Because trial counsel never objected to the use of the burglary offense for sentence enhancem ent purposes, the only form in which appellate counsel could have argued the issue o n appeal was to allege the ineffectiveness of trial counsel in not raising the issue. Arguing ineffectiveness on direct appeal is almost always a bad decision because of the constraints o n the review of counsel's work. Appellate counsel cannot delve into trial counsel's reasons for not raising the issue, but must confine the challenge to the evidence of record. If the only issue is appellate counsel's ineffectiveness, defendant loses on this claim. N o competent appellate counsel would have raised on appeal the issue of trial counsel's alleged error or omission in not challenging the use of the burglary conviction. Rather, cou nsel would have reserved the issue for a post conviction motion. Massaro v. United S tates, 538 U.S. 500, 504 (2003) ("in most cases a motion brought under 2255 is preferable to direct appeal for deciding claims of ineffective assistance"; trial record is rarely d evelo p ed for object of litigating claim of ineffectiveness and is often incomplete or inad equ ate for purpose.). Defendant would have lost in any event, because there is no merit to the underlying 7 a r gu m e n t that his armed burglary conviction could not be a predicate offense under 92 4(e), even though he was only 16 when he was convicted. . Defendant says that the crime did not involve the burglary of a residence but a night tim e burglary of a K-Mart store; it was error for the court to consider a conviction of a juvenile as a violent felony; and defendant was not an active participant in the burglary but m erely sat in the car and served as a lookout. None of these objections undermines Judge S haba z's use of the armed burglary conviction for enhancement purposes. First, the distinction between the burglary of a commercial building and a residence is not relevant in determining armed career criminal status, although it matters when determ inin g whether a convicted defendant is a career offender under the guidelines. United S tates v. Thornton, 463 F.3d 693, 700 (7th 2006) ("the definition of "crime of violence" in [USSG] 4b1.2 is specifically limited to `burglary of a dwelling.' The definition of `v i o lent felony' for purposes of the [Armed Career Criminal Act] is not so limited, and includes burglaries of buildings or structures"); see also U.S. Sentencing Guidelines Manual 4B1.1, Application Note 1 (2004) (definition of violent felony in 18 U.S.C. 924(e)(2) is not identical to definition of crime of violence used in 4B1.1). Second, defendant might have a strong argument for not considering this crime a vio len t felony if it were based on a juvenile conviction. In Welch v. United States, No. 083 1 0 8 (7th Cir. May 4, 2010), Judge Posner dissented from a holding that a juvenile 8 conviction could count as a violent felony, arguing persuasively that the lack of procedural pro tection s in juvenile court make it improper to use a juvenile conviction to enhance a su bsequent sentence. The record shows, however, that defendant was not tried in juvenile court for the armed burglary charge; instead, he was "waived" into adult court, where he received the protections that might have been missing in a juvenile proceeding. Third, defendant's allegation that he did not enter the building does not relieve him o f responsibility for the armed burglary. His role as lookout made him an active participant in the crime. For all these reasons, I conclude that however this challenge was framed and whenever it might have been raised, it would not have succeeded. 2. Appellate counsel's failure to challenge conviction for sexual assault of a child as predicate offense D efendant has a far stronger argument when he contends that it was error for the sentencing court to rely on his second degree sexual assault conviction in finding him an arm ed career criminal. The Court of Appeals for the Seventh Circuit held in United States v. McDonald, 592 F.3d 808 (7th Cir. 2010), that because the crime of second degree sexual assault of a child is not one that categorically involves purposeful, violent and aggressive conduct, it does not meet the prerequisites of a "violent felony" for armed career criminal 9 statu s identified in Begay v. United States, 128 U.S. 1581, 1584-86 (2008). If defendant w ere being sentenced today, it would be error to sentence him as an armed career criminal under current Seventh Circuit law. The only question is whether he has preserved his right to raise this challenge or whether he has lost it through a procedural default. The government takes the position that defendant did not preserve the issue because he failed to raise it before the court of appeals on his second appeal, although Begay was decided while defendant's second appeal was pending. (It also argues that McDonald was decided incorrectly, but this is not an issue I can resolve. Only the court of appeals can rescind the opinion.) I am persuaded that the government's position is wrong, for several reason s. First, defendant challenged the use of his sexual assault conviction in his original app eal. The court of appeals denied the challenge on the ground that it had decided in U n ited States v. Shannon, 110 F.3d 382 (7th Cir. 1997), that the sexual assault of a 13year-old girl qualified as a crime of violence under the Sentencing Guidelines because it presents a serious risk of injury. This decision became the law of the case. I am not aware of any requirement that in order to preserve his right to challenge an aspect of his sentence or conviction, a defendant must renew a previous challenge to his sentence simply because his case has been remanded in the interim, so long as he is resentenced to the same allegedly illegal sentence. 10 S econ d, if the government is arguing that defendant had an obligation to renew his challenge once Begay was decided, I find that a questionable position. Not only was defendant's case fully briefed and ready for decision, but the vast majority of counsel would not have thought that Begay would have supported such a challenge. After all, Shannon was still the law in the circuit and in defendant's case. It is unlikely that the court of appeals w o u ld support a policy of requiring defendants whose cases have been remanded for resentencin g on some grounds to appeal all of the issues decided against them in their first app eal or risk losing the right to raise them in post conviction motions. Third, all of this discussion may be irrelevant. The Supreme Court has held that "habeas review is available to check violations of federal laws when the error qualifies as `a fundam ental defect which inherently results in a complete miscarriage of justice." Reed v. F arley, 512 U.S. 339, 348 (1994)) (quoting Hill v. United States, 368 U.S. 424, 428 (19 62 )); see also Galbraith v. United States, 313 F.3d 1001, 1006 (7th Cir. 2002). Defendant is arguing, with support from the Seventh Circuit, that his sentence was enh an ced illegally. If he is right, his punishment was imposed for an act that the law does n o t make criminal. He is not alleging simply that as a result of this error, his guideline sentence was too high; he is alleging that his classification as an armed career made his sentence more than twice the statutory maximum for the underlying crime. (The maximum pen alty for possession of a firearm as a convicted felon under 922(g) is 10 years; 11 ap plicatio n of 924(e)(1) subjects a defendant to a mandatory 15-year sentence running con secutively to the sentence imposed for violation of 922(g).) Imposing such a sentence on someone who is not guilty of being an armed career criminal would be a complete m iscarriage of justice. Davis v. United States, 417 U.S. 333 (1974) ("There can be no room fo r doubt that [conviction and punishment for an act that the law does not make criminal] `inherently results in a complete miscarriage of justice' and `present[s] exceptional circum stances' that justify collateral relief under 2255"). Even when prisoners have lost their right to file a motion under 2255, the Court of A p peals for the Seventh Circuit has recognized that they may seek relief if they can show that they are in custody for an act that is no longer criminal. E.g., United States v. D a ven p ort, 147 F.3d 605 (7th Cir. 1998) (allowing federal prisoner to file motion under 28 U .S .C . 2241 when he was challenging sentence imposed for conduct that had been found to be non-criminal and 2255 remedy was no longer available to him). I conclude that defendant must be resentenced because he is no longer an armed career criminal under 924(e), now that the court of appeals has held in McDonald, that o ne of the three predicate crimes supporting the armed career criminal status has been held to be a non-qualifying offense. 3. Appellate counsel's failure to move to suppress evidence of statements 12 Although defendant was represented by four lawyers at the first round of proceedings i n district court, none of them filed a motion to suppress evidence of his statements to D etective Turner at the time of his arrest on October 2, 2004. Defendant has not produced an y evidence to suggest that all of these lawyers overlooked a winning motion. He has said v e ry little about the circumstances under which he talked to Turner, other than to say in som ewhat contradictory fashion that he said "unequivocally" that he should "probably" sp eak to his attorney. He does not deny Turner's statement in her report that he would "talk to a point, until [he] decide[d] to stop," as she wrote in her report. Attachment to Plt.'s Br., Dkt. #3-4. He does not say that Turner did not give him adequate advice about his rights. He cites Florida v. Powell, 130 S. Ct. 1195 (2010), but he does not say that T urner did not tell him that he had a right to have an attorney present during his interview, as she is required to do under Powell. Without any showing that he had the grounds for a viable suppression motion, defendan t has no basis for asserting that his trial counsel provided him ineffective assistance w hen none of them filed a motion to that effect. 4. Unconstitutionality of the jury pool D efendant contends that appellate counsel was ineffective for not challenging the co m p o si ti on of the jury pool as violating the Sixth Amendment. This claim fails because 13 d e f e n d a n t has not produced any evidence to support his contention that the manner in w hich the jury pool is administered violates any aspect of federal law. He says only that a "zealous advocate" "just may have been able to uncover the evidence necessary to argue an issu e of this magnitude to the Court." Dft.'s Objs. to Govt.'s Response, dkt. #9, at 11. N eith er a possibility that an investigation would uncover a problem nor the absence of any A frican American on defendant's panel is enough to show that "counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment," when he failed to raise th is issue on appeal. Strickland v. Washington, 466 U.S. 668, 687 (1984). Counsel could no t raise a viable appeal without the documentation to support defendant's claim. D efendan t has not come up with that documentation or identified a defect in the court's jury selection process. 5. Trial counsel's ineffectiveness in failing to move to invalidate search and seizure W hen defendant filed his motion for post conviction relief, he argued in an attachm ent to the main document, dkt. #1 at 14, that it was error for counsel not to move to suppress evidence. As the government has noted, defendant has not provided any evidence in support of this claim other than his own conclusory statements that the search o f his apartment was improper. It is not enough for him to suggest that the transcripts of the preliminary and final pretrial conferences show that defendant's second attorney failed 14 to file such a motion and that defendant's third attorney expressed the opinion that such a m otio n might have required an evidentiary hearing had it been filed. Defendant must pro duce evidence to support his claim that he was prejudiced by his counsel's failure to file such a motion. He has not done this, although it is his burden to do so. I conclude that this claim cannot succeed without any supporting evidence. ORDER IT IS ORDERED that defendant Adrian J. Bell's motion for post conviction relief under 28 U.S.C. 2255 is GRANTED on his claim that he is not an Armed Career Criminal u nd er 18 U.S.C. 924(e) and should not have been sentenced as one because he does not h ave prior convictions for three crimes of violence as required under the statute. Defendant is eligible for resentencing. I will ask the Federal Defender to appoint counsel to represent defendan t for that purpose. FURTHER, IT IS ORDERED that defendant's remaining claims in support of his 15 m o tio n are DENIED. E n tered this 20t h day of May, 2010. B Y THE COURT: /s/ B AR B AR A B. CRABB D istrict Judge 16

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