Opinion
CIVIL ACTION NO. 1:07-CV-1216-ODE, CRIMINAL ACTION NO. 1:04-CR-193-ODE.
February 5, 2008
MOTION TO VACATE 28 U.S.C. § 2255.
ORDER AND OPINION
Movant, a federal prisoner, challenges herein the constitutionality of his firearm conviction and resulting 327-month sentence in this Court. Now before the Court are the Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence [72], with Memorandum of Fact and Law in Support [72], Movant's Affidavit [74], the Government's Response [82], and Movant's Reply [83].
I. PROCEDURAL HISTORY
A. Indictment and Trial
On August 10, 2004, a federal grand jury returned a first superseding indictment [15] charging Movant with violating 18 U.S.C. § 922(g) by being a convicted felon in possession of a firearm. The indictment included "Special Findings" that "the offense involved the use and possession of a firearm in connection with other felony offenses, those being Aggravated Assault and Attempted Armed Robbery." Represented by his attorney, Ms. Nicole Evans-Lambert, Movant proceeded to trial on October 5-7, 2004. (Trial Tr. [64-66].)
At trial, Officer Carl Wolcott of the Atlanta Police Department testified that, just after midnight on March 5, 2004, he and fellow officer Kewana Cottrell were patrolling in his unmarked police vehicle. Officer Wolcott heard a gunshot and stopped his vehicle. When he looked up, he observed a man lying on the ground, at a distance of fifty to seventy-five feet directly in front of him, "with two figures standing over the top of him." As Officer Wolcott exited his vehicle, he heard the man on the ground call for help, stating that he had been shot and was being robbed. The two suspects then fled on foot, running straight towards, and past, Officer Wolcott's police vehicle. Officer Wolcott pursued them on foot, but one of the suspects escaped into a wooded area. Movant, however, stayed on the roadway, and, after turning onto a side street, dropped his handgun and kicked it down the street. As Movant retrieved the gun, he tumbled onto the ground and came up holding it by the barrel, with Officer Wolcott standing "two paces away from him" with his own handgun drawn. Movant then "threw [his gun] over his shoulder." (Trial Tr. at 52-55.) Officer Wolcott testified that he never lost sight of Movant during the chase, and as he gained control of Movant, he could "see the gun poking up through the leaves that were on the ground" a few feet away. (Id. at 59-61.) The chase lasted approximately ten seconds. Officer Boyd of the Atlanta Field Investigation Team retrieved the handgun approximately five seconds thereafter. (Id. at 66-67.)
Officer Boyd testified that as soon as he arrived at the scene of the arrest and exited his vehicle with his flashlight, he saw a firearm "five feet above [Movant], just lying right there on the brush." He retrieved the handgun and turned it over to Officer Wolcott. (Trial Tr. at 138-40, 142.) Michael Neel, a technician for the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), testified that the shell casing and bullet fragment (Government Exhibits 5 and 6) recovered at the scene of the assault, where Officers Wolcott and Cottrell first saw Movant standing over the victim, came from the firearm (Government Exhibit 1) recovered at the scene of Movant's arrest. (Id. at 223-24, 243-44; see id. at 60-61, 146-53, 210-13.)
The victim of the assault, Sadaqua Holmes, identified Movant in court as the man who shot him in his right thigh on March 5, 2004, around midnight, while Movant was attempting to rob him. (Id. at 177-78, 183.) Mr. Holmes denied having known Movant prior to that night. (Id. at 183-84.) When the prosecutor asked Mr. Holmes if he remembered his response to ATF Agent Srivastava's question about who shot him (posed to him during the agent's visit to his home on October 4, 2004, two days earlier), Mr. Holmes testified that the agent "showed me some pictures, and I identified [Movant]." (Id. at 186.) On cross-examination, Mr. Holmes responded affirmatively when asked whether "the only reason [he] said that [Movant] was the one who shot [him] is because [he] knew that [the police] had somebody in custody." (Id. at 192.) In light of that cross-examination testimony, the Court allowed the Government to present evidence of the photographic array that Agent Srivastava presented to Mr. Holmes on October 4, 2004. (Id. at 197-99.) Mr. Holmes testified that, with no hesitation, he had selected Movant from the array of six photographs that the agent had shown him. (Id. at 200-03; see id. at 214-19.)
The jury convicted Movant of knowingly possessing a firearm, in violation of 18 U.S.C. § 922(g), and made a special finding that he "use [d] or possess[ed] a firearm in connection with a felony offense." (Jury Verdict [51] Special Findings [52].)
B. Sentencing
Movant's probation officer recommended that, because Movant had two prior violent felony convictions and one prior drug trafficking conviction, he be sentenced as an armed career criminal (ACC), and that, based on the jury's special findings, he be assigned an offense level of 34 and a criminal history category of VI — yielding a sentencing range of 262-327 months. (Presentence Investigation Report (PSR) ¶¶ 18, 30 Part D.) Movant objected that the probation officer's reliance upon his prior convictions and the jury's special findings violated his rights under Blakely v. Washington, 542 U.S. 296 (2004), but this Court overruled his objections because "the Eleventh Circuit has made it clear that the Guidelines are still in effect fully" in this Circuit. (PSR ¶¶ 17 19, Objections; Sentencing Hr'g Tr. [67] at 2.) On December 22, 2004, this Court sentenced Movant to a term of imprisonment of 327 months, the maximum in his Sentencing Guidelines range. (J. [58].)
C. Direct Appeal
Still represented by Ms. Evans-Lambert, Movant appealed his conviction and sentence to the Eleventh Circuit, claiming that this Court erred by (1)-(2) admitting into evidence the victim's identification of Movant in a photographic array without conducting an in camera hearing regarding the array's admissibility, (3) charging the jury on criminal attempt, (4) failing to resolve Movant's objections to the PSR, and (5) violating Movant's rights under Blakely and United States v. Booker, 543 U.S. 220 (2005), by increasing his sentence based on factors neither admitted by Movant nor proved beyond a reasonable doubt. (Gov.'s Resp. at 2 Appellate Br. at 1.) See United States v. Sanders, 162 Fed. Appx. 861, 863 (11th Cir. 2006). On January 9, 2006, the Eleventh Circuit affirmed Movant's conviction and sentence. Sanders, 162 Fed. Appx. at 866. On May 22, 2006, the Supreme Court denied Movant's petition for certiorari review. (Mem. of Fact and Law in Support of Mot. to Vacate [72] (hereinafter Movant's Mem.) at 4.)
The Supreme Court decided Booker on January 12, 2005, after Movant was sentenced but before he filed his initial appellate brief in the Eleventh Circuit. (See J. [58]; Gov.'s Resp. [82], Attach., Direct Appeal Br. of Appellant, filed May 23, 2005 (hereinafter Appellate Br.).)
D. Motion to Vacate
On May 16, 2007, Movant executed the instant motion to vacate, pro se, raising the following claims of ineffective assistance of counsel: in camera Booker
Pursuant to the "mailbox rule," a pro se prisoner's pleading is deemed filed on the day he signs and submits it to prison authorities for mailing. See Houston v. Lack, 487 U.S. 266, 276 (1988); Washington v. United States, 243 F.3d 1299, 1301 (11th Cir. 2001).
II. 28 U.S.C. § 2255 REVIEW
A federal prisoner may file a motion to vacate his or her sentence "upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255 ¶ 1. It is well settled that "to obtain collateral relief, a prisoner must clear a significantly higher hurdle than would exist on direct appeal." United States v. Frady, 456 U.S. 152, 166 (1982).
A. The Right to an Evidentiary Hearing
An evidentiary hearing is not warranted if "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255 ¶ 2. See Diaz v. United States, 930 F.2d 832, 834 (11th Cir. 1991) (noting that, although prisoner seeking collateral relief is entitled to evidentiary hearing if relief is warranted by facts he alleges, which court must accept as true, hearing is not required if record conclusively demonstrates that no relief is warranted).See also Lynn v. United States, 365 F.3d 1225, 1239 (11th Cir. 2004) (noting that prisoner seeking collateral relief "is not entitled to an evidentiary hearing . . . when his claims are merely conclusory allegations unsupported by specifics").
B. The Law of Ineffective Assistance of Counsel
1. Trial Counsel
The Supreme Court set forth the standard for evaluating a claim of ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 668 (1984). The analysis involves two components, but a court need not address both if the movant "makes an insufficient showing on one." Id. at 697. First, the court determines "whether, in light of all the circumstances, the identified acts or omissions [of counsel] were outside the wide range of professionally competent assistance." Id. at 690. The court should be "highly deferential" in scrutinizing counsel's performance and "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. In other words, the movant "must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. (Internal quotations omitted). "Given the strong presumption in favor of competence, the movant's burden of persuasion-though the presumption is not insurmountable-is a heavy one." Chandler v. United States, 218 F.3d 1305, 1314 (11th Cir. 2000) (en banc). Second, a federal habeas court determines whether counsel's challenged acts or omissions prejudiced the movant, i.e., whether "there is a reasonable probability," one "sufficient to undermine confidence in the outcome," that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694.
When a defendant challenges on direct appeal an error to which his counsel failed to object, the defendant must establish that the error amounted to a plain error. It would be nonsensical if a petitioner, on collateral review, could subject his challenge of an unobjected-to error to a lesser burden by articulating it as a claim of ineffective assistance.Gordon v. United States, 496 F.3d 1270, 1277-78 (11th Cir. 2007) (citation omitted) (noting that "[p]lain error consists of (1) error, (2) that is plain, and (3) that affects substantial rights"). Moreover, even if plain error has occurred, counsel's failure to object does not constitute "ineffective assistance per se." Id. at 1279 (noting that "the `deficient performance' standard of an ineffective assistance claim will not always be satisfied by the failure to object to an obvious error").
2. Appellate Counsel
"A first appeal as of right . . . is not adjudicated in accord with due process of law if the appellant does not have the effective assistance of an attorney." Evitts v. Lucey, 469 U.S. 387, 396 (1985). However, appellate counsel "need not advance every argument, regardless of merit, urged by the appellant." Id. at 394. A neglected claim satisfies the test for ineffective assistance only if the claim would have had "a reasonable probability of success on appeal." Heath v. Jones, 941 F.2d 1126, 1130-31, 1132 (11th Cir. 1991) (noting that the Supreme Court, inJones v. Barnes, 463 U.S. 745, 751-52 (1983), held that "the Sixth Amendment does not require appellate advocates to raise every non-frivolous issue" and suggested that "effective advocates `winnow out' weaker arguments even though the weaker arguments may be meritorious," and, in Smith v. Murray, 477 U.S. 527 (1986), "recognized that even though a non-appealed issue might have been successful, the appellate advocacy had to be judged in its entirety").
III. DISCUSSION
A. The Photographic Array (Claims One-Three)
Movant has raised three claims of ineffective assistance of trial counsel with respect to the photographic array, based on counsel's (1) failure to object to testimony about the array, (2) method of cross-examining Mr. Holmes, and (3) failure to request an in camera hearing regarding the array's admissibility. (Movant's Mem. at 12-14.)
1. Counsel's Failure to Object to the Photographic Array Testimony
Prior to trial, counsel expressed concern that the photographic array might have been "suggestive" because there was evidence that Mr. Holmes may have known Movant before the shooting, so that "there [was] a good chance that the government knew that the only person [Mr. Holmes] would recognize in that array would be" Movant. (Trial Tr. at 15-16.) The prosecutor informed the Court that the Government did not intend to introduce evidence of the array during the trial. (Id. at 16-17.) Accordingly, Movant claims that trial counsel provided ineffective assistance by failing to object to (a) Mr. Holmes's testimony about the array during direct examination, and (b) the prosecutor's later introduction of the array itself into evidence. (Movant's Mem. at 12.) The Government responds that this claim fails because trial counsel did object to the testimony at issue, although this Court overruled the objection. (Gov.'s Resp. at 11.)
In fact, trial counsel did not object to Mr. Holmes's first mention of the photographic array, during direct examination, later stating that she "didn't want to disrupt." (Trial Tr. at 189.) However, because that first mention of the array was brief, with no followup by the prosecutor, it was a reasonable strategy for trial counsel, by foregoing an objection, not to draw the jury's attention to it. Later, at a bench conference, trial counsel did object to any further testimony about the array. (Id. at 198-99.) The prosecutor responded by arguing that trial counsel, during her cross-examination of Mr. Holmes, had "put in the jury's mind that [he identified Movant] . . . because he [saw him] . . . sitting there as opposed to having knowledge that [Movant] . . . shot him." (Id. at 197-98.) Noting that there was no evidence that Mr. Holmes had known Movant prior to the shooting, the Court overruled trial counsel's objection to the array evidence. (Id. at 198-99.)
In sum, trial counsel's attempts to restrict the jury's exposure to information about the array constituted a reasonable trial strategy, which this Court is not inclined to second guess. See Chandler, 218 F.3d at 1314 (noting "strong presumption" that defense attorney's performance was competent). Movant's claims in this regard fail.
2. Counsel's Cross-Examination of Mr. Holmes
Movant claims that trial counsel's cross-examination of Mr. Holmes, wherein she attempted to raise doubts about his courtroom identification of Movant, in effect opened the door for the prosecutor to rehabilitate Mr. Holmes's testimony by introducing evidence of the photographic array. (Movant's Mem. at 13.) The Government responds that a defense counsel's choice of cross-examination questions is the type of strategic decision that a federal court should seldom, if ever, second guess, and that Movant has failed to show that "counsel's decision to cross-examine the victim was deficient under prevailing norms." (Gov.'s Resp. at 11-13.)
This Court agrees. Mr. Holmes's courtroom identification of Movant as his assailant was damaging testimony. It certainly was not an unreasonable strategy for trial counsel to attempt to throw that identification into doubt by any means available and then, later, attempt to prevent the prosecutor from introducing evidence of the photographic array (and, if necessary, attempt to discredit that earlier identification as well). See Chandler, 218 F.3d at 1314. This claim also fails. 3. Counsel's Failure to Request an In Camera Hearing
Movant claims that trial counsel was ineffective for failing to seek an in camera hearing regarding the admissibility of the photographic array. (Movant's Mem. at 13-14.) The Government responds that, even if trial counsel's performance was deficient, Movant cannot show how he was prejudiced thereby because an in camera hearing is in order only under unusual or especially prejudicial circumstances, and no such circumstances were present at Movant's trial. The Government also notes that the Eleventh Circuit determined on direct appeal that this Court's failure to hold an in camera hearing sua sponte did not constitute plain error. (Gov.'s Resp. at 13-14.)
Because the Eleventh Circuit held that this Court "did not plainly err by not conducting an in camera hearing," Sanders, 162 Fed. Appx. at 864, Movant cannot prevail on the instant claim.See Gordon, 496 F.3d at 1278 (stating that error underlying claim of ineffective assistance of counsel must constitute plain error). Accordingly, Movant's final claim regarding the photographic array also fails.
B. Counsel's Stipulation that Movant Was a Convicted Felon (Claim Four)
Movant next claims that trial counsel provided ineffective assistance by stipulating that Movant was a convicted felon, thereby assisting the prosecutor. (Movant's Mem. at 14.) The Government notes that Movant does not argue that he was not a convicted felon at the time of the § 922(g) offense, and further notes that the Supreme Court has held that it would be an abuse of discretion for a federal district court to reject a § 922(g) defendant's stipulation regarding his status as a convicted felon. (Gov.'s Resp. at 14-15.) See Old Chief v. United States, 519 U.S. 172, 174 (1997) (stating that "admit[ting] the full record of a prior judgment, [with] the name or nature of the prior offense[,] raises the risk of a verdict tainted by improper considerations, . . . when the purpose of the evidence is solely to prove the element of prior conviction").
The Court notes that Movant's criminal history includes aggravated battery (for shooting a victim in the testicles), aggravated assault (for assaulting several victims with a handgun), and robbery (for stealing various items, including an automobile, at gunpoint). (PSR Part B.) Accordingly, Movant not only was not prejudiced by trial counsel's stipulation, he benefitted from it because the stipulation foreclosed the introduction of evidence regarding one of the foregoing convictions, which would have made Movant's § 922(g) conviction more, not less, likely. This claim also fails. See Strickland, 466 U.S. at 694.
C. Plea Offer (Claim Five)
Movant claims that trial counsel provided ineffective assistance by "failing to advise him of any plea offer of the government and further by failing to advise him as to the consequences of a conviction by jury verdict as opposed to pleading, nor of the benefits of pleading guilty." (Movant's Mem. at 15.) Movant also asserts that trial counsel was ineffective for "failing to advise [him] to plead guilty, . . . discuss the application of the sentencing guidelines[, or] . . . meaningfully advise [him] of the st[r]ength of the government's case." Movant claims that, had trial counsel done so, he would have pleaded guilty. (Id. at 17-18; see also Movant's Aff. ¶¶ 3-4.) He seeks relief on this claim or, in the alternative, an evidentiary hearing. (Movant's Mem. at 18.) Because "the record is silent" regarding the allegations set forth in this claim, "the Government respectfully submits that an evidentiary hearing is needed, but only as to these three specific issues," namely, "whether trial counsel informed [Movant] that the Government had made a plea offer, whether trial counsel informed [him] of the consequences of a conviction by jury verdict, and whether trial counsel advised [him] of the benefits of pleading guilty." (Gov.'s Resp. at 16.)
"Counsel has an obligation to consult with his client on important decisions and to keep him informed of important developments in the course of the prosecution," and his failure to inform his client of an existing plea offer may "constitute ineffective assistance." Diaz, 930 F.2d at 834. However, when the record reveals that a movant was aware of a plea offer, he "must show that there is a reasonable probability that, but for counsel's errors, he would . . . have pleaded guilty and would [not] have insisted on going to trial." Coulter v. Herring, 60 F.3d 1499, 1504 (11th Cir. 1995) (alterations in original). Evidence of a movant's pre-conviction desire to plead guilty provides some support for such a claim. See Diaz, 930 F.2d at 835. However, a movant's "after the fact testimony concerning his desire to plead, without more, is insufficient to establish" that he was prejudiced by "counsel's alleged advice or inaction."Id. See also Cook v. United States, 189 Fed. Appx. 927, 931 (11th Cir. 2006) (unpublished opinion) (holding that movant's "after the fact" assertion — that but for counsel's erroneous advice regarding extent of charges against him, he would have pleaded guilty — was insufficient to show prejudice).
At present, there is no evidence before the Court, other than the statements in Movant's affidavit, that the Government offered Movant the opportunity to plead guilty or that Movant expressed any interest in doing so prior to his trial. As noted above, a prisoner seeking collateral relief "is not entitled to an evidentiary hearing . . . when his claims are merely conclusory allegations unsupported by specifics." Lynn, 365 F.3d at 1239. Accordingly, in lieu of an evidentiary hearing, the Court will order the Government to present affidavits from the prosecutor and defense counsel at Movant's trial, which affidavits shall contain all of the relevant information to which these attorneys have access regarding the plea negotiations, if any, in this case. The Court notes that, because Movant alleges that trial counsel's advice, or lack thereof, regarding a possible guilty plea constituted ineffective assistance, Movant has waived his attorney-client privilege with respect to any discussions between himself and counsel in this regard. See, e.g., Johnson v. Alabama, 256 F.3d 1156, 1178 (11th Cir. 2001) (stating that, "[b]y alleging that his attorneys provided ineffective assistance of counsel in their choice of a defense strategy, [petitioner] put at issue — and thereby waived — any privilege that might apply to the contents of his conversations with those attorneys to the extent those conversations bore on his attorneys' strategic choices").
D. Right to Testify (Claim Six)
Movant claims that trial counsel provided ineffective assistance by "failing to constitutionally advise him about his rights [sic] to testify and further by failing to allow him to testify when he wanted to testify," and also by failing to "advise him that the decision whether or not to testify was his and his alone." (Movant's Mem. at 19; see Movant's Aff. ¶¶ 5-8.) The Government responds that a § 2255 movant "is not entitled to an evidentiary hearing if his claims are merely conclusory allegations unsupported by specifics or [are] contentions that in the face of the record are wholly incredible," or if his "proposed testimony, in light of both parties' trial evidence, would not have created a reasonable probability that the trial's outcome would have been different." (Gov.'s Resp. at 16-17 (citing Franklin v. United States, 227 Fed. Appx. 856, 859-60 (11th Cir. 2007) (unpublished opinion).)
Although Movant has not proffered the testimony that he would have given if allowed to testify, the Government argues that the evidence of his guilt — including the testimony of Officer Wolcott, who "positively identified [Movant] at trial as the man he saw standing over the victim . . . [and running] from the scene of the crime . . . [with] a gun in his hand, . . . [and as the man whom] he arrested after a chase that lasted approximately 10 seconds" — was so overwhelming that no testimony Movant might have given would have created a reasonable probability of a different outcome at his trial. Accordingly, the Government asserts, even assuming, arguendo, that trial counsel's performance was deficient, Movant cannot establish that he was prejudiced by counsel's failure to allow him to testify. (Gov.'s Resp. at 17-18.)
"[A] criminal defendant has a fundamental constitutional right to testify in his or her own behalf at trial. This right is personal to the defendant and cannot be waived either by the trial court or by defense counsel." Nichols v. Butler, 953 F.2d 1550, 1552 (11th Cir. 1992) (en banc). "[I]t is primarily the responsibility of defense counsel to ensure that the defendant's right to testify is protected by advising the defendant of his right to testify or not to testify, the strategic implications of each choice, and that it is ultimately for the defendant himself to decide." Id. at 1553 (emphasis added) (internal quotations omitted). "Absent such advice, the defendant cannot effectively waive his right to testify." McGriff v. Dep't of Corr., 338 F.3d 1231, 1237 (11th Cir. 2003). If defense counsel "refused to accept the defendant's decision to testify and refused to call him to the stand, or . . . never informed the defendant of his right to testify and that the final decision belongs to the defendant alone," the first prong of the Strickland test is satisfied, i.e., counsel's performance was deficient. Gallego v. United States, 174 F.3d 1196, 1197 (11th Cir. 1999). See Nichols, 953 F.2d at 1553.
With respect to the second, or prejudice, prong of the Strickland test:
The testimony of a criminal defendant at his own trial is unique and inherently significant. The most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself. When the defendant testifies, the jury is given an opportunity to observe his demeanor and to judge his credibility firsthand. . . . [T]he most important witness for the defense in many criminal cases is the defendant himselfNichols, 953 F.2d at 1553 (emphasis added) (citations and internal quotations omitted). In Nichols, the Eleventh Circuit concluded that the defendant had satisfied the prejudice prong of the Strickland test because the question of his guilt
was a very close case; the only evidence that Nichols was the person involved in the robbery was the eyewitness identification of him by a store employee who had glimpsed him only briefly. If Nichols had testified, he could have presented his version of the events of that evening in his own words. The jury would then have been able to weigh his credibility against that of the store employee's perception. Moreover, Nichols' testimony would have been supported by the exculpatory testimony of [another defense witness].Id. at 1554.
Here, by contrast, there does not appear to be any testimony that Movant could have given at his trial that would have created a reasonable probability of a different outcome. In other words, there is no likelihood that Movant was prejudiced by trial counsel's allegedly deficient performance. See Strickland, 466 U.S. at 694. Mr. Holmes, the victim, identified Movant as the man who shot him and attempted to rob him. Officer Wolcott, the arresting officer, identified Movant as the man who fled the crime scene and whom he apprehended shortly thereafter holding a handgun, having never lost sight of him in the interim. The handgun was retrieved from a spot a few feet away, where, according to Officer Wolcott, Movant had tossed it, and an ATF technician matched the handgun to the shell casing and bullet fragment retrieved from the crime scene. (See generally Trial Tr.) In light of this overwhelming evidence of Movant's guilt, there is no reasonable probability that this case might be one of mistaken identity, as in Nichols, or that, for any other reason, Movant's exercise of his right to testify would have altered the outcome of his trial. Accordingly, Movant's claim of ineffective assistance of counsel for allegedly denying his right to testify is denied.
E. Cumulative Error (Claim Seven)
Movant next claims that trial counsel's cumulative errors — especially her acts and omissions regarding the photographic array — rendered his trial fundamentally unfair, in violation of his due process rights. Movant asserts that, but for this accumulation of errors, there is a reasonable probability that the outcome of his trial would have been different. (Movant's Mem. at 20.) The Government responds that the Due Process Clause mandates a fair trial, not a perfect trial, and that it is apparent from the record that Movant received a fundamentally fair trial. (Gov.'s Resp. at 19.) The Court agrees. See United States v. Hall, 455 F.3d 508, 520 (5th Cir. 2006) (persuasive authority noting "that in the absence of specific demonstrated error, a defendant cannot, by definition, show that cumulative error of counsel deprived him of a fair trial"). Accordingly, Claim Seven also fails.
F. Prosecutorial Misconduct (Claim Eight)
Movant next claims that trial counsel was ineffective when she did not object to the prosecutor's misconduct in failing to instruct Mr. Holmes not to testify about the photographic array and in failing to rectify the effect of that testimony. (Movant's Mem. at 21.) As noted above, however, Mr. Holmes first mentioned the array in passing, in response to the prosecutor's question on a related but different point, and it may have been wiser for trial counsel to do nothing rather than to object and draw the jury's attention to that testimony. Moreover, trial counsel did object to the prosecutor's request, during the ensuing bench conference, to introduce further evidence regarding the array. Accordingly, there is no reasonable probability that the outcome of Movant's trial would have been different had trial counsel objected to the prosecutor's alleged misconduct. This claim also fails. See Strickland, 466 U.S. at 694.
G. Waiver of Claims on Direct Appeal (Claims Nine-Ten)
Movant next claims that Ms. Evans-Lambert, who also represented him on appeal, provided ineffective assistance as appellate counsel by raising the following claims for the first time in the appellate reply brief, thereby waiving them: (1) the photographic array was "unduly suggestive," and (2) this Court committed Booker error by applying the Sentencing Guidelines in a mandatory fashion. (Movant's Mem. at 24.) See Sanders, 162 Fed. Appx. at 864 n. 3 (concluding that this Court "did not abuse its discretion in allowing the Government to rehabilitate the victim's testimony by introducing into evidence the photographic lineup and the victim's prior identification," but declining to address Movant's claim that "the photographic lineup was `unduly suggestive,' as he raises this argument for the first time in his reply brief"); id. at 865 (declining to address Movant's claim that this Court "committed statutory Booker error by applying the Guidelines in a mandatory fashion, as he raises this argument for the first time in his reply brief, and his initial brief was filed after our decision in Shelton"); see also United States v. Shelton, 400 F.3d 1325, 1329-31 (11th Cir. 2005) (discussing Booker error).
1. Photographic Array
As to the alleged ineffective assistance of appellate counsel with respect to the photographic array, the Government responds that the array was not unduly suggestive and that, even if it was, the identification was reliable based on the five factors set forth by the Supreme Court in Manson v. Brathwaite, 432 U.S. 98, 114-15 (1977), namely, the witness's opportunity to view the suspect at the crime scene, his degree of attention, the accuracy of his prior description of the suspect, his level of certainty during the identification procedure, and the amount of time that elapsed between the crime and the identification. (Gov.'s Resp. at 24-27.) The Government also argues that Movant was not prejudiced by the admission of the array into evidence because Movant's identity was established independently via the courtroom identifications of Mr. Holmes and Officer Wolcott. (Id. at 27-28.)
Agent Srivastava testified at trial that the array identification procedure began when he gave Mr. Holmes a "photo line-up admonition form," which Mr. Holmes read and apparently understood. (Trial Tr. at 214-15.) Agent Srivastava then gave Mr. Holmes six photographs and "told him to take his time . . . and to pick the individual who shot him if he could identify him." (Id. at 215.) Agent Srivastava did not tell Mr. Holmes which photograph to choose or put any marks on the photographs. Mr. Holmes chose Movant's photograph within "three to four seconds at most." (Id. at 216-17.) The five photographs, other than Movant's, that were used to complete the array were chosen using a computer software system that selects photographs based on their similarity to the target photograph, relying upon operator inputs as to race, sex, and other basic characteristics. If a photograph selected by the computer system is not suitable, it is replaced, and the process continues until a suitable set of photographs is assembled. (Id. at 218-19.) On cross-examination, Agent Srivastava testified that the photographic array was generated in March 2004 from Movant's arrest photograph taken on March 5, 2004, not from Mr. Holmes's October 4, 2004, description of his two assailants as "short, dark skinned, black males." (Id. at 219-21.)
The Eleventh Circuit "employs a two-step analysis in assessing the constitutionality of a trial court's decision to admit an out-of-court identification. First, [it] must determine whether the original identification procedure was unduly suggestive. If [it] conclude[s] that it was suggestive, [it] then must consider whether, under the totality of the circumstances, the identification was nonetheless reliable." United States v. Diaz, 248 F.3d 1065, 1102 (11th Cir. 2001) (citation omitted). "Factors to be considered in determining whether the identification was reliable include: (1) opportunity to view; (2) degree of attention; (3) accuracy of the description; (4) level of certainty; and (5) length of time between the crime and the identification." Id.
This Court concludes that the procedure employed to elicit Mr. Holmes's identification of Movant from the photographic array was not suggestive, and Movant has failed to allege any basis for concluding otherwise. See United States v. Walker, 199 Fed. Appx. 884, 886-87 (11th Cir. 2006) (unpublished opinion) (rejecting claim that "district court erred in admitting the out-of-court identification testimony . . . without holding an evidentiary hearing because the photographic array presented to the witness was unduly suggestive," and noting that "photographic array included six similar looking African-American males" and "[t]here was no evidence that officers directed the victim's attention to [appellant's] photograph, and, although there are some differences between each photo, nothing unreasonably suggested that [appellant] was the actual suspect in the offense"). Moreover, even if the photographic array procedure in this case was unduly suggestive, Mr. Holmes's identification of Movant was still reliable, given Mr. Holmes's opportunity to observe Movant at the crime scene, his level of attention at the time, and his level of certainty during the identification procedure. (See Trial Tr. at 179-80 (containing Mr. Holmes's testimony that, on the night in question, Movant first asked him if he knew where he "could get some weed," then "pulled out the gun," shot him in the leg, put the gun to his head, and demanded his money).) Accordingly, Movant was not prejudiced by appellate counsel's failure to claim in the initial appellate brief that the photographic array was "unduly suggestive," for, had appellate counsel timely raised that claim, there is no reasonable probability that the outcome of Movant's appeal would have been different. See Strickland, 466 U.S. at 694.
2. Statutory Booker Error
The Government accedes to Movant's second argument regarding appellate counsel's alleged ineffectiveness, stating that, had appellate counsel claimed statutory Booker error in the initial appellate brief, there is a reasonable probability that the Eleventh Circuit would have vacated Movant's sentence and remanded to this Court for resentencing. The Government notes that there is no indication in the record that this Court would have imposed the highest possible sentence within Movant's Sentencing Guidelines range "had the Guidelines not been mandatory." (Gov.'s Resp. at 28-30.)
The Government also suggests, despite Movant's failure to raise any such claim in his motion to vacate, that appellate counsel erred by basing Movant's Blakely claim solely on the use of Movant's prior convictions to enhance his sentence. (Id. at 29-30 n. 3.) The Government states that appellate counsel improperly supported Movant's Blakely claim by arguing that the Supreme Court's holding in Almandez-Torrez v. United States, 523 U.S. 224 (1998) — that a district court may use a defendant's prior conviction to enhance his sentence even if the government did not allege and prove that conviction to a jury — is no longer good law. Instead, the Government asserts, appellate counsel should have argued that the increase in Movant's offense level based on "facts not found by the jury," namely, "the nature of the specific crime associated with the gun possession," was Blakely error. The Government contends that Movant might have prevailed on this alternate Blakely claim because the Eleventh Circuit would not have mistakenly concluded that, even if Movant's sentence was enhanced based on extra-verdict facts, any such error was harmless inasmuch as Movant was sentenced as a "career offender." In turn, the Government argues, the Eleventh Circuit "may well have been more receptive to considering . . . [Movant's] statutory [Booker] claim," even though it "was raised for the first time in his reply brief." (Gov.'s Resp. at 29 n. 3.)
Given the extent of the Government's concessions on these points, the Court feels obliged to conduct a thorough review of the bases for Movant's sentence. Based on Movant's three prior violent felony and/or serious drug offense convictions (see PSR ¶ 18), he was "subject to an enhanced sentence under 18 U.S.C. § 924(e)," and, therefore, was an armed career criminal. U.S.S.G. § 4B1.4(a). As an armed career criminal, Movant faced a Sentencing Guidelines offense level of 34 and a criminal history category of VI for his § 922(g) firearm violation if he "used or possessed the firearm . . . in connection with . . . a crime of violence, as defined in [U.S.S.G.] § 4B1.2(a)." U.S.S.G. § 4B1.4(b)(3)(A), (c)(2). Although the jury found that Movant "use[d] or possess[ed] a firearm in connection with a felony offense," it was not asked to find, and, therefore, did not specifically find, that Movant did so in connection with a crime of violence as defined in § 4B1.2(a). (See Special Findings [52].) However, it is apparent from the first superseding indictment and the jury's special findings that each of the felonies alleged against Movant in connection with his § 922(g) violation — namely, aggravated assault and attempted armed robbery — is a "crime of violence" under § 4B1.2(a). Accordingly, regardless of which crime of violence the individual jurors concluded that Movant had committed in connection with his § 922(g) violation, the jury found that he had committed at least one qualifying crime of violence in connection therewith.See, e.g., Schad v. Arizona, 501 U.S. 624, 631-32 (1991) (noting "the long-established rule of the criminal law that an indictment need not specify which overt act, among several named, was the means by which a crime was committed" and noting further that "there is no general requirement that the jury reach agreement on the preliminary factual issues which underlie [a] verdict").
Title 18 Section 924(e) provides an enhanced sentence for "a person who violates section 922(g) of this title and has three previous convictions . . . for a violent felony or a serious drug offense." Movant had at least three such convictions at the time he committed the instant § 922(g) violation, including convictions for aggravated battery in 1992, for robbery and aggravated assault in 1994, and for a second family violence battery against the same victim in 2001, each of which is punishable under Georgia law by a term of imprisonment exceeding one year. (See PSR Part B.) See also 18 U.S.C. § 924(e)(2)(B) (defining "violent felony").
U.S.S.G. § 4B1.2(a) defines a "crime of violence" as an offense "punishable by imprisonment for a term exceeding one year, that . . . has as an element the use, attempted use, or threatened use of physical force against the person of another."
In Georgia, aggravated assault is punishable by a term of imprisonment of at least one year, O.C.G.A. § 16-5-21, as is attempted armed robbery, O.C.G.A. §§ 16-4-6, 16-8-41.
Accordingly, in light of the jury's special findings, Movant was assigned an offense level of 34 and a criminal history category of VI, yielding a sentencing range of 262-327 months. (See PSR ¶¶ 18-19, 30.) See also U.S.S.G. § 4B1.4(b)(3)(A), (c)(2); Sentencing Table. Therefore, other than Movant's prior violent felony and/or serious drug offense convictions — upon which, pursuant to Almandez-Torrez, this Court properly relied, despite the lack of a jury finding to that effect — this Court arrived at Movant's sentencing range based solely upon facts found by the jury beyond a reasonable doubt. In short, the Government's suggestion that the outcome of Movant's appeal might have been different had appellate counsel taken a different approach with respect to his Blakely claim is not well-founded.
The Eleventh Circuit has held repeatedly that Blakely andBooker do not prohibit the enhancement of a defendant's sentence based on his prior convictions, even if those convictions were not proven to a jury beyond a reasonable doubt. See Shelton, 400 F.3d at 1329; see also United States v. Roundtree, No. 07-12616, 2007 U.S. App. LEXIS 27502, at * 1-3 (11th Cir. Nov. 27, 2007) (unpublished opinion) (stating that Blakely and Booker have no effect on use of prior convictions to qualify defendant as an armed career criminal).
Although, as the Government points out, the Eleventh Circuit mistakenly stated that Movant was sentenced as a career offender rather than as an armed career criminal, see Sanders, 162 Fed. Appx. at 865, the foregoing discussion demonstrates that that mistake did not affect the outcome of Movant's appeal because (1) Movant did not object at sentencing to the enhancement of his ACC offense level based on the lack of a specific jury finding regarding the felony offense that he allegedly committed in connection with his § 922(g) violation; and (2) the jury did make a finding regarding that connected offense that justified Movant's enhanced ACC offense level. Moreover, appellate counsel did argue, albeit only briefly, that the resulting sentence enhancement violated Blakely. (See Appellate Br. at 17-21.)
Moreover, with respect to Movant's Booker claim herein, the Court notes that the Eleventh Circuit has demarcated two types of Booker error:
[D]istrict courts could have made both a constitutional and a statutory error in sentencing defendants pre-Booker. The constitutional error is the use of extra-verdict enhancements to reach a guidelines result that is binding on the sentencing judge; the error is in the mandatory nature of the guidelines once the guidelines range has been determined. The statutory error occurs when the district court sentences a defendant under a mandatory guidelines scheme, even in the absence of a Sixth Amendment enhancement violation.United States v. Mathenia, 409 F.3d 1289, 1291 (11th Cir. 2005) (citation and internal quotations omitted).
If a defendant has preserved his claim of Booker error on appeal, that claim is reviewed under a harmless error standard. "A non-constitutional error is harmless if, viewing the proceedings in their entirety, a court determines that the error did not affect the [sentence], or had but very slight effect. If one can say with fair assurance . . . that the [sentence] was not substantially swayed by the error, the [sentence] is due to be affirmed even though there was error." Id. at 1292 (internal quotations omitted) (alterations in original). However, this "non-constitutional harmless error standard is not easy for the government to meet. It is as difficult for the government to meet that standard as it is for a defendant to meet the third-prong prejudice standard for plain error review." Id.
Conversely, when a defendant has been sentenced properly, pre-Booker, under a mandatory Sentencing Guidelines scheme, as Movant was, but then raises a Booker claim at the first opportunity on direct appeal, that Booker claim is reviewed for plain error, not harmless error. See Shelton, 400 F.3d at 1326-28. "An appellate court may not correct an error the defendant failed to raise in the district court unless there is: (1) error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings." Id. at 1328-29 (citation and internal quotations omitted).
[T]he defendant's burden with respect to prejudice is to show that the error actually did make a difference. In other words, in post-Booker sentencing cases, in applying the third prong, [the Eleventh Circuit asks] whether there is a reasonable probability of a different result if the guidelines had been applied in an advisory instead of binding fashion by the sentencing judge in this case. A reasonable probability of a different result means a probability sufficient to undermine confidence in the outcome.Id. at 1332 n. 8 (rejecting "Sixth Circuit's conclusion of presumed prejudice in a similar case") (citations and internal quotations omitted).
Therefore, the Government incorrectly concedes that, had appellate counsel claimed Booker error in the original appellate brief, the outcome of Movant's appeal would have been different because the Eleventh Circuit would have applied a harmless error standard, placing the burden of proof upon the Government. (See Gov.'s Resp. at 28.) In fact, the Eleventh Circuit would have reviewed a statutory Booker claim under the plain error standard, as it did in Shelton, placing the burden of proof upon Movant.
Apparently, the Government is of the view that because Movant claimed Blakely error at sentencing based on this Court's alleged use of extra-verdict facts — namely, (1) the felony used to enhance his offense level, about which the jury "made only a general finding," without "specifically [finding] the felony of armed robbery or aggravated assault," and (2) "the nature and character of [his] prior offenses" (see PSR ¶¶ 17 19, Objections) — the Eleventh Circuit would have applied a harmless error standard to a Booker claim raised in Movant's initial appellate brief. However, at most, the claims Movant raised at sentencing could have formed the basis for appellate claims of constitutional Booker error, i.e., "the use of extra-verdict enhancements to reach a guidelines result that is binding on the sentencing judge." See Mathenia, 409 F.3d at 1291 (emphasis added). However, as the foregoing discussion demonstrates, any such claim is without merit because the only extra-verdict enhancement Movant received was based on his prior convictions, and such an enhancement survives Booker intact. See Shelton, 400 F.3d at 1329. Therefore, had Movant timely raised constitutional Booker claims on appeal, they would not have succeeded, regardless of the applicable standard of review. Moreover, because Movant did not raise a claim of statutory Booker error at sentencing — i.e., a claim that the Sentencing Guidelines should be applied in an advisory rather than a mandatory fashion — the Eleventh Circuit would have applied a plain error standard of review to such a claim even if Movant had raised it in the initial appellate brief.
Movant's statutory Booker claim, even if timely raised, would not have survived plain-error review on appeal. There is no indication in the record herein, as there was in Shelton, that this Court considered Movant's sentence to be "too severe," and there is no "reasonable probability of a different result if the guidelines had been applied in an advisory instead of binding fashion by" this Court. See Shelton, 400 F.3d at 1332. See also United States v. Rodriguez, 398 F.3d 1291, 1301 (11th Cir. 2005) (stating that in applying the third, substantial rights, prong of the plain-error test, "where the effect of an error on the result in the district court is uncertain or indeterminate — where we would have to speculate — the appellant has not met his burden of showing a reasonable probability that the result would have been different but for the error; he has not met his burden of showing prejudice; he has not met his burden of showing that his substantial rights have been affected"). Nor, given Movant's long record of violent criminal activity, does his sentence seriously affect "the fairness, integrity or public reputation of judicial proceedings," under the fourth prong of the plain-error test. See Shelton, 400 F.3d at 1333. Accordingly, Movant's claim regarding appellate counsel's waiver of his Booker claim fails because Movant can not established that he was prejudiced thereby. See Strickland, 466 U.S. at 694.
H. Validity of Movant's Prior Convictions (Claim Eleven)
Finally, Movant asserts that he has filed state habeas petitions challenging the three convictions upon which his status as an armed career criminal is based. Although he concedes that his claim — that his sentence herein should be vacated based on the possible vacatur of those convictions — is not ripe for review, he includes it in the instant § 2255 motion in order to preserve it for future review. (Movant's Mem. at 25-26.) For now, the Court holds this claim in abeyance.
IV. CONCLUSION
For the foregoing reasons, Claims One through Four and Claims Six through Ten of Movant's 28 U.S.C. § 2255 motion to vacate sentence [72] are HEREBY DENIED.With respect to Claim Five, the Government is ORDERED to file, within thirty (30) days of its receipt of this Order, affidavits from (1) Ms. Joy L. Fortson, the Assistant United States Attorney who prosecuted Movant's case, and (2) Ms. Nicole Evans-Lambert, Movant's defense counsel, setting forth all of the relevant information to which these attorneys have access regarding the plea negotiations, if any, in this case. Ms. Evans-Lambert's affidavit SHALL ALSO INCLUDE all of the information that she can provide regarding her advice to Movant about the relative benefits of pleading guilty versus proceeding to trial, the likely effect of a guilty plea on the length of his sentence, and/or the strength of the Government's case. As noted above, Movant has waived his attorney-client privilege with respect to these matters. Movant is ADVISED that he may supplement his prior affidavit regarding his Claim Five issues.
Movant's Claim Eleven is HELD IN ABEYANCE pending the resolution of Claim Five.