Opinion
No. 2:02 cv 194 (arising from 2:99 cr 086)
May 14, 2002
ORDER
On April 29, 2002, Carter commenced this proceeding by filing a motion as authorized by 28 U.S.C. § 2255. In 28 U.S.C. § 2255, Congress allows a federal prisoner to "move the court which imposed the sentence to vacate, set aside or correct the sentence." The Rules Governing Section 2255 Proceedings provide that once the motion is properly docketed, the district judge shall give the motion preliminary consideration. See R.GOV.SEC. 2255 PROC. 4. The district court "shall make an order for . . . summary dismissal" with respect to any/all claims for relief clearly lacking merit. See id. at 4(b). Rule 4(b) requires the district court to order the United States Attorney to submit an answer only if claims remain after completion of the preliminary consideration. See id. For the reasons set forth below, the court finds "the motion and the files and records of the case conclusively show that" Carter is not entitled to relief. The court, therefore, DENIES the 28 U.S.C. § 2255 motion.
28 U.S.C. § 2255, ¶ 2.
I. BACKGROUND
On May 20, 1999, a grand jury sitting in Hammond, Indiana, issued a ten-count indictment against Carter, Nathaniel Rimpson, III, Charles Scott, and Carl Buggs. Carter and his cronies were charged in Count 1 with conspiracy to violate the Hobbs Act, 18 U.S.C. § 1951. Count 8 of the Indictment charged Carter, Buggs, and Scott with a substantive violation of the Hobbs Act, alleging that on February 26, 1998, they interfered with interstate commerce by robbing a commercial establishment known as "The Store," located on 500 West 5th Avenue in Gary, Indiana. In Count 9, the grand jury charged the same three defendants with carrying a firearm during the course and in relation to the robbery of "The Store." See 18 U.S.C. § 924(c).
"The Hobbs Act prohibits any robbery or extortion or attempt or conspiracy to rob or extort that `in any way or degree obstructs, delays or affects commerce or the movement of any article or commodity in commerce.'" United States v. Bailey, 227 F.3d 792, 797 (7th Cir. 2000) (quoting 18 U.S.C. § 1951(a)).
All four defendants proceeded to trial. The court received five days of testimony. On July 26, 1999, the jury empaneled for the case returned guilty verdicts against all defendants on all counts, except for Count 10, in which the jury found Rimpson not guilty. On February 8, 2002, the court convened a sentencing hearing for Carter, after which the court imposed a sentence of fifty-seven months on Counts 1 and 8 (to be served concurrently), along with a consecutive sixty month sentence for the conviction on Count 9. of the four defendants, Carter received the least prison time. The court also required Carter to submit to three years of supervised release on each of the three counts (to be served concurrently), imposed an assessment of $300.00, and ordered Carter to pay restitution to his victims in the amount of $13,306.00. The Clerk entered the judgment and commitment order on February 9, 2000.
Carter lodged an appeal, which the Court of Appeals consolidated with the appeals of his three co-defendants. The panel of circuit judges assigned to the case issued an order affirming the convictions in all respects. See United States v. Buggs, et al., Nos. 00-1060 et al., (7th Cir. May 2, 2001) (unpublished order). The court concluded its order by stating "[t]he trial was fair and the convictions are well supported." Id. at 5. Carter did not file a petition for a writ of certiorari.
Carter commenced this post-conviction proceeding by filing a pro se motion pursuant to 28 U.S.C. § 2255. Carter tendered the completed 28 U.S.C. § 2255 motion papers to the proper prison authorities at FCI Pekin (Illinois) on April 29, 2002. Under the "mailbox rule" established in Houston v. Lack, 487 U.S. 266 (1988), Carter's 28 U.S.C. § 2255 motion is deemed filed on April 29, 2002, the date upon which he surrendered custody of the motion papers to the designated officials within the Bureau of Prisons. See Jones v. Bertrand, 171 F.3d 499, 502 (7th Cir. 1999) (extending rule of Houston v. Lack to 28 U.S.C. § 2254 proceedings); see also Rutledge v. United States, 230 F.3d 1041, 1051 (7th Cir. 2000), cert. denied 531 U.S. 1199 (2001); Brennan v. Lamanna, No. 98 C 8020, 1999 WL 1009872, at *1, n. 3 (N.D.Ill. Oct. 18, 1999) ("Brennan's section 2255 petition is deemed filed the day he signed it and gave it to prison officials for mailing."). Carter therefore timely filed the motion within one year of the date upon which his conviction became final. See 28 U.S.C. § 2255, ¶ 5, as amended by Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996) (establishing one-year statute of limitations). In the motion, Carter advances the following five claims: (A) the court constructively amended Counts 1 and 8 of the Indictment by giving Court's Jury Instruction No. 20; (B) Count 8 of the Indictment is duplicative because it charges two offenses; (C) Count 1 charges Carter with the crime of conspiracy, and Count 8 charges him with an attempted robbery, which are not crimes under the Hobbs Act; (D) the Government's interstate commerce theory fails to support a conviction; and (E) he received ineffective assistance of counsel.
II. DISCUSSION
"[R]elief under 28 U.S.C. § 2255 is reserved for extraordinary situations." Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996) (citing Brecht v. Abrahamson, 507 U.S. 619, 633-34 (1993)). Pursuant to 28 U.S.C. § 2255, the court may grant relief if the movant can demonstrate flaws in his conviction or sentence "which are jurisdictional in nature, constitutional in magnitude, or result in a complete miscarriage of justice." Boyer v. United States, 55 F.3d 296, 298 (7th Cir. 1995), cert. denied 516 U.S. 904 (1995). A 28 U.S.C. § 2255 proceeding, however, "is not to be used as a substitute for a direct appeal." United States v. Barger, 178 F.3d 844, 848 (7th Cir. 1999) (citing Theodorou v. United States, 887 F.2d 1336, 1339 (7th Cir. 1989)). The doctrine of procedural default precludes the district court from considering certain claims that the defendant should have presented on direct appeal.
The United States Supreme Court has espoused a philosophy that post-conviction relief should occur only in the rarest of circumstances.
Once the defendant's chance to appeal has been waived or exhausted, . . . [the court is] entitled to presume he stands fairly and finally convicted, especially when, as here, he already has had a fair opportunity to present his federal claims to a federal forum. Our trial and appellate procedures are not so unreliable that we may not afford their completed operation any binding effect beyond the next in a series of endless postconviction collateral attacks. To the contrary, a final judgment commands respect.
United States v. Frady, 456 U.S. 152, 164-65 (1982) (O'Connor, J.).
[T]here are three types of issues that a section 2255 motion cannot raise: (1) issues that were raised on direct appeal, absent a showing of changed circumstances; (2) nonconstitutional issues that could have been but were not raised on direct appeal; and (3) constitutional issues that were not raised on direct appeal, unless the section 2255 petitioner demonstrates cause for the procedural default as well as actual prejudice from the failure to appeal.
Belford v. United States, 975 F.2d 310, 313 (7th Cir. 1992) (emphasis eliminated), overruled on other grounds by Castellanos v. United States, 26 F.3d 717, 719 (7th Cir. 1994); accord United States v. Walters, No. 96CR180-1, 2001 WL 527443, at *2 (N.D.Ill. May 16, 2001) (citing Frady, 456 U.S. at 166-68). With these principles in mind, the court turns to those five grounds upon which Carter moves this court for relief.
A.
First, Carter alleges the court constructively amended Counts 1 and 8 of the Indictment by giving Court's Jury Instruction No. 20. (See Mot. at Part 12.A.) According to Carter, this action violated his right to have the allegations against him presented to the grand jury before being burdened with answering those charges. See U.S. CONST. amend. V ("No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.").
A constructive amendment of an indictment violates the Fifth Amendment. See United States v. Willoughby, 27 F.3d 263, 266 (7th Cir. 1994). "A constructive amendment to an indictment occurs when either the government (usually during its presentation of evidence and/or its argument), the court (usually through its instructions to the jury), or both, broadens the possible bases for conviction beyond those presented by the grand jury." United States v. Cusimano, 148 F.3d 824, 829 (7th Cir. 1998); United States v. Floresca, 38 F.3d 706, 710 (4th Cir. 1994). Yet, "not every variation from the verbiage of the indictment, either in terms of proof or jury instructions, constitutes a constructive amendment." United States v. He, 245 F.3d 954, 960 (7th Cir. 2001), cert. denied 122 S.Ct. 377 (2001); United States v. Baker, 227 F.3d 955, 960 (7th Cir. 2000), cert denied 531 U.S. 1151 (2001); accord Willoughby, 27 F.3d at 266 ("[It] is important to note that not all variations in proof that contradict or supplement verbiage in the indictment rise to the level of constructive amendments."). "To constructively amend the indictment, the jury instructions must go `beyond the parameters of the indictment in that it establishes offenses different from or in addition to those charged by the grand jury.'" He, 245 F.3d at 961 (quoting Baker, 227 F.3d at 960); accord United States v. Pigee, 197 F.3d 879, 886 (7th Cir. 1999).
Count 1 of the Indictment charged Carter for his role in the conspiracy to violate the Hobbs Act. In Count 1, the grand jury charged (as pertinent here) that Carter and his cohorts conspired to "unlawfully . . . affect commerce . . . by robbery as that term is defined in Title 18, United States Code, Section 1951, in that the defendants did unlawfully take and obtain personal property consisting of United States currency." (Indmt. Ct. 1, ¶ 5.) In Count 8, the grand jury indicted Carter for a substantive violation of the Hobbs Act. Count 8 alleged Carter, Buggs, and Scott "did unlawfully . . . affect commerce . . . by robbery as that term is defined in Title 18, United States Code, Section 1951, in that the defendants . . . did unlawfully take and obtain property consisting of United States currency." (Id. at Ct. 8, ¶ 2.)
After presentation of the evidence and closing arguments, the court instructed the jury on the definition of "robbery" and "property" as the Hobbs Act uses those terms. Court's Instruction Number 19 stated: "Robbery means the unlawful taking or obtaining of personal property from the person or in the presence of another, against his or her will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his or her person or property, or property in his or her custody or possession." The court's next instruction told the jury "[t]he term `property' includes United States currency and firearms." (Court's Instr'n. No. 20.)
Carter contends that since the Indictment only charged Carter and his cronies with stealing United States currency, the court constructively amended Counts 1 and 8 of the Indictment by adding the word "firearms" to the definition of "property" in Court's Instruction No. 20.. This argument is unavailing. Counts 1 and 8 of the Indictment reference the Hobbs Act ( 18 U.S.C. § 1951), and in each Count, the grand jury made frequent mention of the statutory definitions. Moreover, Court's Instruction Nos. 19 and 20 closely track both the statutory language, see 18 U.S.C. § 1951(b)(1) (defining "robbery"), and the Seventh Circuit's Patterned Jury Instructions, see pages 295 and 298 (1999 ed.). Court's Instruction Nos. 19 and 20, therefore, were in conformity with applicable law. Cf. He, 245 F.3d at 961 ("The district court's definitions . . . did not alter the essential meaning of those words, and the jury instructions as a whole track the statutory prerequisites . . . which were set out in the indictment.").
Inclusion of the word "firearms" in Court's Instruction No. 20 was innocuous. The record is replete with evidence that Carter and his cohorts walked out of "The Store," Loco's Barber Shop, and other commercial establishments with bags of cash. The court is unable to find even one sliver of evidence in the record that would suggest the defendants stole firearms, or even that any of their target establishments maintained firearms as part of their inventory. Carter's extensive briefing on the issue similarly fails to point to any testimony linking the defendants' criminal activities with the stealing of firearms. It is clear the petit jury found beyond a reasonable doubt that Carter was involved in robberies of United States currency, and the record supports such a verdict. Inclusion of the word "firearms" was merely superfluous, and did "not create a risk of conviction for an uncharged offense." Willoughby, 27 F.3d at 266.
For Carter to prevail on his theory, he would need to demonstrate that the evidence adduced at trial was sufficient to convict Carter of robbing firearms. If Carter could carry this burden, it would suggest that the jury could have convicted Carter of an offense (robbing firearms) not presented to the grand jury. What is more, in order to show that including the word "firearms" was something more than harmless error, Carter would need to show that the record was insufficient to support a conviction for robbery of United States currency.
Moreover, it appears procedural default bars Carter from raising this issue whatsoever. If Carter presented this claim to the Court of Appeals on direct appeal, Carter must now demonstrate a change in circumstances. See Olmstead v. United States, 55 F.3d 316, 319 (7th Cir. 1995) (quoting Taylor v. United States, 798 F.2d 271, 273 (7th Cir. 1986), cert. denied, 479 U.S. 1056 (1987)). Carter's extensive briefing does not point to any changed circumstances, and the court finds none readily apparent. Similarly, if Carter did not raise this claim on direct appeal, Carter has the burden in this proceeding of demonstrating good cause for failing to raise it, plus actual prejudice. See Mankarious v. United States, 282 F.3d 940, 943 (7th Cir. 2002) ("An issue not raised on direct appeal is barred from collateral review absent a showing of both good cause for and actual prejudice resulting from the failure to raise it."); Garrott v. United States, 238 F.3d 903, 905 (7th Cir. 2001) ("In order to present such a claim for the first time in this collateral proceeding Garrott would have to establish both `cause' and `prejudice.'"), cert. denied, 532 U.S. 1072 (2001). Carter has not addressed the cause and prejudice issues. Even if Carter could show good cause, he suffered no prejudice. As previously stated, inclusion of the word "firearms" was merely superfluous, and the district court is confident that if the Court of Appeals had considered this issue, it would still have affirmed Carter's conviction. See United States v. Buggs, et al. at 5 ("[T]he convictions are well supported.").
Having reviewed the unpublished order affirming Carter's conviction and sentence, it remains manifestly unclear whether he raised the constructive amendment issue. After addressing unrelated issues, the Court of Appeals noted that "the defendants have advanced other arguments, none requires discussion." United States v. Buggs, et al., Nos. 00-1060 et al., at 5.
B.
Carter next argues that Count 8 is duplicative because it charges two offenses, both the crime of robbery, and the inchoate crime of attempt. (See Mem. at 9.) A court may dismiss a count within an indictment that suffers from duplicity. See United States v. Buchmeier, 255 F.3d 415, 421 (7th Cir. 2001). The prohibition on duplicity in an indictment is based upon FED.R.CRIM.P. 8(a), which prescribes "a separate count for each offense." Claims of duplicity, although perhaps violative of FED.R.CRIM P. 8(a), do not, without more, implicate the criminal defendant's constitutional rights. See United States v. Starks, 515 F.2d 112, 116-17 (3d Cir. 1975) (describing "vice of duplicity" in a prosecution for Hobbs Act violations).
"[N]on-constitutional errors which could have been raised on appeal but were not, are barred on collateral review — regardless of cause and prejudice." Bontkowski v. United States, 850 F.2d 306, 313 (7th Cir. 1988) (citing Kaufman v. United States, 394 U.S. 217 (1969)); accord Arango-Alvarez v. United States, 134 F.3d 888, 891 (7th Cir. 1998). The Court of Appeals has repeatedly entertained challenges to indictments based upon duplicity. See, e.g., United States v. Buchmeier, 255 F.3d at 421 (appealing denial of motion to dismiss for duplicity); United States v. Hammen, 977 F.2d 379, 382 (7th Cir. 1992) ("Hammen first contends the indictment was duplicitous."); United States v. Mosley, 786 F.2d 1330, 1333 (7th Cir. 1986) ("Mosley seeks to raise claims of . . . duplicity of the indictment for the first time on appeal."). Whether Carter actually raised the claim on appeal is irrelevant. All that matters is that Carter could have presented the issue on direct appeal. Carter is therefore barred from pursuing the duplicity claim in this proceeding.
C.
Third, Carter claims Counts 1 and 8 do not charge a statutory crime. Specifically, Carter "submits that under the Hobbs Act, conspire [sic] to obstruct and attempt to obstruct interstate commerce is [sic] not found, described, nor defined as an offense within Title 18 U.S.C. § 1951." (Mem. at 14.) Carter is apparently arguing that the Hobbs Act does not criminalize robbery conspiracies and attempted robberies. By all appearances, this is another claim Carter has defaulted; if not, it fails on the merits.
Carter takes a position in direct contravention of the statute's plain terms, a colossal undertaking to say the least. The Hobbs Act clearly criminalizes six acts: robbery, extortion, plus attempts and conspiracies to commit either of these crimes. 18 U.S.C. § 1951(a). If the result of any of these six acts produces an effect upon interstate commerce, the actor has committed a crime against the United States. See id. Count 1 of the Indictment charged Carter with conspiring to violate the Hobbs Act; and Count 8 charged him with a substantive violation of affecting interstate commerce for his role in robbing "The Store."
The Indictment does not appear to charge Carter with an attempted robbery. For purposes of addressing this claim, the court will assume the grand jury indicted him for an attempt.
Carter's reliance on United States v. Peterson, 236 F.3d 848 (7th Cir. 2001), reh'g denied, 2001 U.S. App. LEXIS 1911 (Feb. 6, 2001), is creative but unpersuasive. In Peterson, the court entertained an appeal from a conviction for Hobbs Act violations. In the opinion, the court quoted the statute, then indicated that to support a conviction under the Act, "two elements must be proven: robbery and an effect on interstate commerce." Id. at 851. Carter maintains that the use of the word "robbery" excludes the possibility that an attempted robbery (or conspiracy to commit robbery) is sufficient to satisfy the first element of a Hobbs Act offense. Carter appears to read Peterson too literally. It is true Peterson mentions robbery as the only way in which the first element of a Hobbs Act offense may be proven, but Peterson was an "element two" case; the first element was stated, but never discussed. Mr. Peterson was only arguing that his conduct did not affect interstate commerce, and therefore he could not be convicted of an offense against the United States. See id. at 851 (positing the Hobbs Act "requires the government to prove beyond a reasonable doubt that these robberies had a substantial effect on interstate commerce."). The Court of Appeals sided with Mr. Peterson, but assumed all along that he indeed committed the robberies underlying the Hobbs Act convictions. Thus, the language limiting Hobbs Act convictions to robberies, is, therefore dicta. Moreover, the Peterson opinion itself makes explicitly clear an attempted robbery is sufficient to satisfy the first element of a Hobbs Act conviction. 236 F.3d at 855 ("[I]n Bailey, we upheld a Hobbs Act conviction for attempted robbery." (citing United States v. Bailey, 227 F.3d 792 (7th Cir. 2000))). Proof of a conspiracy to commit robbery is similarly sufficient to support a conviction under the Hobbs Act. See U.S. v. Turner, 272 F.3d 380, 384 (6th Cir. 2001) ("In order to prevail under a Hobbs Act violation, the Government must prove two elements: 1) interference with interstate commerce, which is a jurisdictional issue; and, 2) the substantive criminal act, which in the instant case is a conspiracy to commit robbery." (alterations omitted)). Since this claim is clearly meritless, the court will not address the question of procedural default.
D.
Carter's fourth claim is that the Government's interstate commerce theory fails, as a matter of law, to support his convictions. Since this is a claim that Carter has already raised on appeal, he must show an intervening change in circumstances. See Belford, 975 F.2d at 313. Since he has thoroughly failed to do so, and the court's own review has unearthed nothing readily suggestive of changed circumstances, Carter is barred from raising the interstate commerce issue in this proceeding. Even if the claim was not defaulted, the issue was conclusively resolved in favor of the Government on direct appeal. See United States v. Buggs, et al. at 1 ("[T]he evidence suffices to establish that the victims were engaged in interstate commerce, which the robberies obstructed."), and 2 ("A jury rationally could conclude that the robbery `in [some] way or degree obstruct[ed]' interstate commerce." (citing 18 U.S.C. § 1951(a)) (emphasis in original)). After reviewing Carter's extensive briefing on the subject, the court finds no reason to revisit this determination.
E.
Last, Carter claims he received ineffective assistance of counsel. Carter points to numerous actions (or inactions) of his lawyer, Mr. Casson, that he believes amount to a denial of his Sixth Amendment right "to have the assistance of counsel for his defense." U.S. CONST. amend. VI. Carter "bears a heavy burden when seeking to establish an ineffective assistance of counsel claim." Jones v. Page, 76 F.3d 831, 840 (7th Cir. 1996) (quoting Drake v. Clark, 14 F.3d 351, 355 (7th Cir. 1994)).
Courts analyze ineffective assistance of counsel claims under the familiar, yet rigorous two-part standard. See Wright v. Walls, Nos. 01-3066 01-3157, slip op. at 6 (7th Cir. Apr. 24, 2002). First, Carter must establish that his counsel's performance fell below an objective standard of reasonableness. See Strickland v. Washington, 466 U.S. 668, 688 (1984); Hough v. Anderson, 272 F.3d 878, 890 (7th Cir. 2001) (affirming denial of habeas corpus writ). Second, Carter must demonstrate that he suffered prejudice as a result of the deficient performance. See Strickland, 466 U.S. at 687. "Prejudice occurs when there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Hough, 272 F.3d at 890. "If the defendant makes an insufficient showing on one prong of the test, a court need not consider the remaining prong." Id.
The first part of the Strickland standard requires Carter to draw the court's attention to specific instances of conduct. 466 U.S. at 690 ("A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment."). In his memorandum, Carter points to several incidents that occurred at various stages of his criminal proceeding and direct appeal. In particular, Carter contends he was deprived of counsel's assistance because Mr. Casson never filed a motion to dismiss Counts 1 and 8 for duplicity. (See Mem. at 37.) Carter also believes trial counsel "formed no objection" to various evidentiary matters, the admission of which caused a constructive amendment of the Indictment. As for the jury instructions, Carter complains that his counsel never objected or sought modification of Court's Instruction Nos. 18 and 20. (See id. at 40.) Lastly, Carter claims his counsel's argument on the interstate commerce issue was so woefully inept that he was denied a fair shake. (See id. at 42.)
Court's Instruction No. 18 is the "elements instruction" for the substantive Hobbs Act violations.
Carter has thoroughly briefed these issues and has argued his position with fervor. Yet, his ineffective assistance of counsel claim falls short of the mark. The Indictment, although not deserving of an award for draftmanship, passes muster because it fairly apprised Carter of the charges against him. Court's Instructions Nos. 18 and 20 closely track the statute, and the court took great care to remain faithful to the language of the Patterned Jury Instructions for this Circuit. On the evidentiary matters, the objections Carter, in retrospect, would have liked Mr. Casson to raise, implicate concerns of strategy, the providence of which is not well-suited to support a constitutional claim. See Wright, slip op. at 16 ("[I]t is not reasonable to judge counsel's performance based on `hindsight.'"). As for the interstate commerce issue, counsel made a compelling argument that was ultimately rejected by both the district court and the three circuit judges assigned to Carter's appeal. See United States v. Buggs, et al. at 2. What is more, the court can conceive of no argument that would have altered the result. Carter's counsel was well within the parameters of "the wide range of professionally competent assistance." Strickland, 466 U.S. at 690.
III. Conclusion
For the foregoing reasons, the record conclusively establishes that Carter is not entitled to relief. The court, therefore, DENIES Carter's 28 U.S.C. § 2255 motion. IT IS HEREBY ORDERED THAT this proceeding be DISMISSED WITH PREJUDICE. The Clerk shall enter FINAL JUDGMENT accordingly.