No. 7:14-CR-105-FL No. 7:19-CV-15-FL
MEMORANDUM AND RECOMMENDATION
This matter comes before the court on the government's motion to dismiss [DE-160] Petitioner Kristopher Owen Daniels's amended motion under 28 U.S.C. § 2255 to vacate, set-aside, or correct his sentence [DE-149, -152, -155]. Petitioner responded to the government's motion. [DE-163]. These motions are referred to the undersigned for a memorandum and recommendation to the district court. See 28 U.S.C. § 636(b)(1)(B); Fed. R. Crim. P. 59(b)(1). For the reasons stated below, it is recommended that the government's motion to dismiss be allowed and Petitioner's § 2255 motion be denied.
On September 13, 2016, Petitioner was found guilty by a jury verdict as to counts one, two, three, and four of a four-count superseding indictment. [DE-65, -110]. Count one charged possession with intent to distribute a quantity of cocaine base and a quantity of marijuana in violation of 21 U.S.C. § 841(a)(1). [DE-65] at 1. Count two charged using and carrying a firearm during and in relation to a drug trafficking crime and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). Id. at 1-2. Counts three and four charged possession of a firearm by a felon in violation of 18 U.S.C. §§ 922(g) and 924. Id. at 2.
On December 6, 2016, Petitioner appeared before the district court, represented by counsel, for sentencing. [DE-119, -139]. The court sentenced Petitioner to a term of imprisonment of 92 months on each of counts one, three, and four, to be served concurrently, and a term of 60 months on count two, to be served consecutively, producing a total term of 152 months. [DE-130]. Petitioner filed a notice of appeal on December 6, 2016. [DE-121]. On October 3, 2017, the Fourth Circuit Court of Appeals affirmed the criminal judgment. [DE-143].
On January 29, 2019, Petitioner filed pro se a motion to vacate, set aside, or correct his sentence pursuant to § 2255. [DE-149]. The motion did not substantially follow the form appended to the Rule Governing § 2255 Proceedings, so the clerk directed Petitioner to correct his motion. [DE-151]. On February 21, 2019, Petitioner filed a corrected motion. [DE-152]. In Ground One, Petitioner alleged ineffective assistance of counsel for failing to object to count two of the indictment as impermissibly duplicitous, failing to object to the court's jury instruction regarding count two, and failing to request a unanimity instruction as to count two to cure its duplicity. Id. at 4. In Ground Two, Petitioner alleged ineffective assistance of counsel for failing to present insanity as a defense. Id. at 5. On March 18, 2019, Petitioner filed a document which the court labelled as an amended motion, but which appears to be a memorandum in support of his original motion, as it raises the same grounds but offers legal argument. [DE-155]. On May 24, 2019, the government filed its motion to dismiss for failure to state a claim upon which relief can be granted [DE-160], to which Petitioner filed a response on June 13, 2018 [DE-163].
II. LEGAL STANDARDS
A. 28 U.S.C. § 2255
After conviction and exhaustion, or waiver, of any right to appeal, courts and the public can presume that a defendant stands fairly and finally convicted. See United States v. Frady, 456 U.S. 152, 164-65 (1982). However, 28 U.S.C. § 2255 provides a means for a defendant convicted of a federal offense to collaterally attack a conviction or sentence on four grounds: (1) the sentence was imposed in violation of the Constitution or the laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). "[T]hus § 2255 relief is not limited to constitutional error in a conviction or sentence." United States v. Mikalajunas, 186 F.3d 490, 495 (4th Cir. 1999). However, where a petitioner seeks relief from a nonconstitutional error, "the scope of review . . . is more limited than that of constitutional error; a nonconstitutional error does not provide a basis for collateral attack unless it involves a fundamental defect which inherently results in a complete miscarriage of justice, or is inconsistent with the rudimentary demands of fair procedure." Id. "In a § 2255 proceeding, the burden of proof is on petitioner to establish his claim by a preponderance of the evidence." Toribio-Ascencio v. United States, Nos. 7:05-CR-97-FL, 7:08-CV-211-FL, 2010 WL 4484447, at *1 (E.D.N.C. Oct. 25, 2010) (citing Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958)).
B. Rule 12(b)(6)
The purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal sufficiency of the complaint, not to resolve conflicts of fact or to decide the merits of the action. Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999). However, the "'[f]actual allegations must be enough to raise a right to relief above the speculative level' and have 'enough facts to state a claim to relief that is plausible on its face.'" Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599, 616 n.26 (4th Cir. 2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)); see also Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) ("While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations."). "[A] plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of a cause of action's elements will not do." Twombly, 550 U.S. at 555 (citations omitted). In considering a motion to dismiss, the court assumes the truth of all facts alleged in the complaint and the existence of any fact that can be proved, consistent with the complaint's allegations. Erickson v. Pardus, 551 U.S. 89, 94 (2007). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Revene v. Charles Cty. Comm'rs, 882 F.2d 870, 872 (4th Cir. 1989) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). Moreover, a court "need not accept the legal conclusions drawn from the facts" nor "accept as true unwarranted inferences, unreasonable conclusions, or "arguments." Eastern Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000).
The Government contends that the petition was not timely filed because it was received by the court on January 29, 2019, which is more than one year and ninety days from the date the Court of Appeals judgment was entered. Gov't's Resp. [DE-161] at 2. Petitioner responds that his limitations period expired one year and ninety days from the date the Court of Appeals mandate was issued. Pet'r's Reply [DE-163] at 2. The court disagrees with both parties' calculation of when the limitations period expired.
The limitations period in this case expired one year and ninety days after the Court of Appeals denied Petitioner's motion for rehearing. A petition under § 2255 must be filed within one year from "the date on which the judgment of conviction becomes final." 28 U.S.C. § 2255(f)(1). A conviction becomes final when the Supreme Court "affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires." Clay v. United States, 537 U.S. 522, 527 (2003). The time for filing a certiorari petition typically expires ninety days from the date the Court of Appeals judgment was entered. Sup. Ct. R. 13. However, if a petition for rehearing is filed in the Court of Appeals, then the time for filing a certiorari petition expires ninety days from the date the rehearing is denied or, if rehearing is granted, then the date of the subsequent entry of judgment. Id.
Here, the judgment of the Court of Appeals was entered on October 3, 2017. The Government contends that that is the date from which the limitations period is calculated. Gov't's Resp. [DE-161] at 2. However, Petitioner filed a petition for rehearing, and the Court of Appeals denied his petition on November 7, 2017. [DE-146]. Accordingly, the time for filing a petition for certiorari in the Supreme Court expired ninety days from November 7, 2017, which was February 5, 2018. See Sup. Ct. R. 13. Petitioner's conviction therefore became final on February 5, 2018. See Clay, 537 U.S. at 527. The time for filing a petition under § 2255 expired one year later, on February 5, 2019. See 28 U.S.C. § 2255(f)(1). The petition was received by the court on January 29, 2019, so it was filed within the limitations period.
Petitioner additionally contends that his petition was timely filed because even if it was received by the court after the limitations period, he timely submitted it to prison authorities. A prisoner's legal filing is deemed filed on the date it is submitted to prison authorities. Houston v. Lack, 487 U.S. 266, 267 (1988). Petitioner's motion is dated December 31, 2018, it was postmarked January 23, 2019, and it was received by the court on January 29, 2019. [DE-149]. It is unknown when Petitioner submitted his motion to prison authorities, but it must have been on or before the postmark date of January 23, 2019. Accordingly, it was timely filed before the limitations period expired on February 5, 2019.
B. Ineffective Assistance of Counsel
Petitioner seeks relief under § 2255 due to ineffective assistance of counsel for failing to challenge count two of the indictment as being impermissibly duplicitous, failing to request a unanimity instruction to cure count two's duplicity, and failing to present insanity as a defense at trial. Pet'r's Mem. [DE-155] at 2-9; Pet'r's Resp. [DE-163] at 1-3.
To demonstrate ineffective assistance of counsel, a petitioner must show that counsel's representation was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish deficient performance, the petitioner must overcome a '"strong presumption' that counsel's strategy and tactics fall 'within the wide range of reasonable professional assistance.'" Burch v. Corcoran, 273 F.3d 577, 588 (4th Cir. 2001) (quoting Strickland, 466 U.S. at 689). A complete breakdown of communication between a client and his attorney or an irreconcilable conflict of interest would amount to defective representation. United States v. Nicholson, 475 F.3d 241, 252 (4th Cir. 2007). However, "mere tactical differences" do not render counsel's performance ineffective. United States v. Handy, 568 F. App'x 88, 90 (3d Cir. 2014); see also United States v. Taylor, 652 F.3d 905, 908 (8th Cir. 2011) ("disagreement with counsel's tactical decisions is not justifiable dissatisfaction"). If counsel's performance is "within prevailing professional norms," tactical decisions are not challengeable. United States v. Conner, 456 F. App'x 300, 306 (4th Cir. 2011).
As to the prejudice component, a petitioner must show "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. It is not necessary to determine whether counsel performed deficiently if the claim is readily dismissed for lack of prejudice. Id. at 697 (explaining "a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies" or "to address both components of the inquiry if the defendant makes an insufficient showing on one").
Petitioner contends that his attorney rendered ineffective assistance of counsel by failing to challenge the indictment as duplicitous. Pet'r's Mem. [DE-155] at 3-5. "An indictment is duplicitous if it charges two offenses in one count, creating 'the risk that a jury divided on two different offenses could nonetheless convict for the improperly fused double count.'" United States v. Robinson, 855 F.3d 265, 269 (4th Cir. 2017) (quoting United States v. Robinson, 627 F.3d 941, 957 (4th Cir. 2010)). In other words, if a single count in an indictment contains two offenses, some members of a jury may convict for one offense, and other members may convict for the other offense. See Robinson, 855 F.3d at 269. If that were the case, the defendant would be found guilty of the count listed in the indictment even though a unanimous jury did not find him guilty of either offense. See id. Duplicitous charges therefore run afoul of the Sixth Amendment right to a unanimous jury verdict. Id. However, an indictment is not duplicitous if it lists multiple ways of committing one offense, for "a jury can disagree on the means by which a defendant committed an offense, so long as it unanimously agrees that each element of the offense is satisfied." Robinson, 855 F.3d at 270 (citing Richardson v. United States, 526 U.S. 813, 817 (1999)).
Here, Petitioner contends that his indictment was impermissibly duplicitous because it charged the elements of count two conjunctively, i.e., that Petitioner knowingly used and carried a firearm during and in relation to a drug trafficking crime and possessed a firearm in furtherance of a drug trafficking crime, while the jury instructions listed the elements disjunctively, i.e., that the jury ought to return a guilty verdict if it found that Petitioner used, carried, or possessed a firearm. Pet'r's Mem. [DE-155] at 3-5. Petitioner argues, in effect, that some members of the jury may have found that he used or carried a firearm during and in relation to the drug crime, and others may have found that he possessed a firearm in furtherance of the drug crime; if that were the case, Petitioner contends, he would be guilty of count two without a unanimous jury verdict for either scenario. Id.
The court instructed the jury:
Now, Count 2 charges that on or about May 31st of 2014, in this district, the defendant knowingly used and carried a firearm during and in relation to a drug trafficking crime for which he may be prosecuted in a court of the United States as charged in Count 1 and did possess said firearm in furtherance of a drug trafficking crime in violation of Title 18 United States Code 924(c)(1)(A), which in pertinent part provides: Any person who, during and in relation to any drug trafficking crime for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall be guilty of an offense against the United States.Tr. [DE-138] at 78:2-22.
There are three essential elements of this offense charged in Count 2, each of which the Government must prove beyond a reasonable doubt: Number 1, the defendant committed the drug trafficking crime as alleged in Count 1; number 2, during and in relation to the commission of the crime, he knowingly used or carried a firearm or possessed a firearm; and number 3, the use or carrying of such firearm was during and in relation to the drug trafficking crime or the possession of that firearm was in furtherance of that crime.
In United States v. Mingo, the Fourth Circuit observed that at that time, it had not yet decided whether § 924(c) criminalizes two offenses or lists two ways of committing one offense. 237 F. App'x 860, 864 (4th Cir. 2007). In Mingo, the Court assumed without deciding that § 924(c) criminalizes two offenses, and it held that because the evidence showed that the defendant committed all the acts listed in the indictment, the verdict should stand despite the conjunctive language in the indictment. Id. at 865. One year later, the Fourth Circuit held that § 924(c) does create two separate offenses. United States v. Woods, 271 F. App'x 338, 343 (4th Cir. 2008) (joining the Sixth, Eighth, and Tenth Circuits). Still, in other cases where a § 924(c) indictment uses conjunctive language but jury instructions use disjunctive language, courts follow Mingo's lead and examine whether the evidence was sufficient to find that the defendant committed each of the acts listed in the indictment. See Bennett v. United States, No. 1:10-CR-210-1, 2015 WL 12914353, at *4 (M.D.N.C. June 29, 2015) (holding that even if a § 924(c) indictment were duplicitous, a § 2255 petitioner's claim that his counsel rendered ineffective assistance by failing to object to the indictment fails because the petitioner "pled guilty, thereby admitting all relevant elements."), adopted by 2015 WL 12911761 (M.D.N.C. Aug. 4, 2015); United States v. Nichols,, No. 7:07-CR-6, 2015 WL 1000727, at *10 (W.D. Va. Mar. 5, 2015); Booker v. United States, No. 3:11-CR-258-2, 2014 WL 7339186, at *7 (W.D.N.C. Dec. 23, 2014); Roberson v. United States, No. 5:07-CR-314-FL, 2010 WL 7800171, at *5 (E.D.N.C. Apr. 27, 2010), adopted by 2011 WL 5101573 (E.D.N.C. Oct. 26, 2011); see also Turner v. United States, 396 U.S. 398, 420 (1970) ("The general rule is that when a jury returns a guilty verdict on an indictment charging several acts in the conjunctive, as Turner's indictment did, the verdict stands if the evidence is sufficient with respect to any one of the acts charged").
In United States v. King, 628 F.3d 693, 700 n.3 (4th Cir. 2011), the Fourth Circuit observed that Woods was an "unpublished non-precedential opinion [that] can establish no basis for a finding of plain error."
Here, the evidence presented at trial showed that on May 31, 2014, Defendant's mother's boyfriend called 911 and reported that Defendant was wielding a gun and threatening to kill him. United States v. Daniels, 710 F. App'x 577, 581 (4th Cir. 2017). When police arrived, an officer approached Defendant, and Defendant fled on foot. Id. Defendant was stopped by a fence, and police observed him throw items into a nearby bush. Id. The officers arrested Defendant and immediately thereafter searched the bush; they found a plastic bag containing 23.094 grams of crack cocaine and a loaded handgun. Id. Defendant surrendered to the officers another bag containing 5.32 grams of marijuana split into two smaller plastic bags, and when officers searched Defendant's person, they discovered $2,100 in cash. Id. Police obtained a warrant to search Defendant's home, and they discovered another firearm, ammunition, and marijuana seeds. Id.
The Fourth Circuit has already determined that the evidence was sufficient to support a conviction on count two. Id. at 582. Police did not directly see Defendant use, carry, or possess a firearm, but they observed Defendant throw an object into a bush, and a search of the bush immediately thereafter revealed a firearm. Id. at 581. The jury determined that there was sufficient circumstantial evidence to convict Defendant, and the Fourth Circuit agreed. Id. at 582. Because there was sufficient evidence presented at trial to show that Defendant committed the acts listed in the indictment, the jury verdict should stand even though the indictment used conjunctive language. See Mingo, 237 F. App'x at 864; Roberson, 2010 WL 7800171, at *5. The indictment was not duplicitous such that it denied Defendant his Sixth Amendment right to a unanimous jury. Accordingly, defense counsel did not render ineffective assistance in failing to challenge the indictment as duplicitous.
2. Unanimity Jury Instruction
Petitioner contends that his attorney rendered ineffective assistance of counsel by failing to request an unanimity jury instruction to cure the alleged duplicity in count two of the indictment. Pet'r's Mem. [DE-155] at 5-8. A duplicitous indictment may be cured by appropriate jury instructions. See Coleman v. United States, No. 3:10-CR-238-RJC-DSC-1, 2018 WL 5315216, at *11 (W.D.N.C. Oct. 26, 2018) (holding that any duplicity in the indictment was cured when the court instructed the jury that it must unanimously find the defendant guilty of using a firearm or possessing a firearm); Molina-Sanchez v. United States, No. 312-CR-316-FDW-DSC-2, 2018 WL 490551, at *5 (W.D.N.C. Jan. 19, 2018) (same). However, as discussed above, the Fourth Circuit has already determined that there was sufficient evidence presented at trial to support a jury verdict on each of the offenses charged in the indictment; therefore, the indictment was not unconstitutionally duplicitous. Accordingly, no jury instruction regarding unanimity was required, and defense counsel did not render ineffective assistance in failing to request one.
3. Insanity Defense
Petitioner contends that his attorney rendered ineffective assistance of counsel by failing to present an insanity defense at trial. Pet'r's Mem. [DE-155] at 8-9. An evidentiary hearing was held on the issue on October 18, 2019. At the hearing, Petitioner's father, Owen Daniels ("Mr. Daniels"), testified that he retained Geoffrey Hosford to represent Petitioner. Petitioner was evaluated twice for competency, and he was found to be incompetent in the first evaluation and competent in the second. Mr. Daniels testified that Petitioner asked him to inform Mr. Hosford that Petitioner wanted to pursue an insanity defense, and Mr. Daniels delivered that message after Petitioner's arraignment. When he told Mr. Hosford that Petitioner wanted to present an insanity defense, Mr. Hosford responded that it would not be allowed.
Mr. Hosford testified that he first represented Petitioner in 2007 on various state court cases, and he never thought an insanity defense was warranted in those matters. Mr. Hosford requested a competency evaluation in the present case because he believed that Petitioner could not assist in his defense, focus, or discuss his case. Mr. Hosford testified that he did not present an insanity defense because, despite Petitioner's challenges to competency, he did not believe Petitioner was incapable of appreciating the wrongfulness of his conduct at the time of the offense. Specifically, Mr. Hosford testified that in the video of Petitioner's interrogation by law enforcement, Petitioner lucidly discussed the events leading to his arrest, and the fact that he fled from police and attempted to hide contraband showed that he appreciated the wrongfulness of his actions. Accordingly, Mr. Hosford testified, an insanity defense was not viable despite Petitioner's issues related to competency. Mr. Hosford believed that the better course of action was to argue at sentencing that leniency was warranted due to Petitioner's mental health issues.
Generally, the decision to pursue a competency evaluation or insanity defense is a matter of strategy left to the discretion of counsel. See Shelton v. United States, No. 1:11-CR-397-1, 2015 WL 4651811, at *2 (M.D.N.C. Aug. 5, 2015) (holding that even though there was "no question that Petitioner has significant problems with mental illness" and counsel knew of Petitioner's mental illness, the failure to request a competency hearing was a reasonable strategic decision, and it did not amount to ineffective assistance). If the attorney reasonably determines that presenting an insanity defense is futile and chooses not to pursue it, he is not ineffective. Knowles v. Mirzayance, 556 U.S. 111, 125 (2009) (holding that counsel was not ineffective in withdrawing an insanity defense because "[c]ounsel reasonably concluded that this defense was almost certain to lose"); United States v. Cintron, 163 F.3d 599 (4th Cir. 1998) (holding that counsel was not ineffective when counsel determined that "Cintron could not credibly assert an insanity defense").
Petitioner contends that because he was previously found incompetent to stand trial, he wanted to present an insanity defense. Pet'r's Mem. [DE-155] at 8-9. However, incompetency and insanity are distinct concepts. United States v. Green, 468 F.2d 116, 118 (4th Cir. 1972). Incompetency means that the defendant "lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense." Drope v. Missouri, 420 U.S. 162, 171 (1975). An insanity defense requires the defendant to prove by clear and convincing evidence "that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts." 18 U.S.C. § 17(a). The Fourth Circuit has held that "[i]nsanity may be argued as a defense only if evidence supporting the assertion has been presented," and where a witness's testimony concerns only the defendant's competency to stand trial and not his mental condition at the time of the offense, the insanity defense may not be argued. Green, 468 F.2d at 118.
18 U.S.C. § 4241(f) provides: "A finding by the court that the defendant is mentally competent to stand trial shall not prejudice the defendant in raising the issue of his insanity as a defense to the offense charged, and shall not be admissible as evidence in a trial for the offense charged." However, the statute has no bearing on the merits of an insanity defense or whether it should be raised. --------
Here, Mr. Hosford sufficiently explained his strategic decision not to present an insanity defense at trial. Mr. Hosford was aware that Petitioner fled from police, discarded contraband, and lucidly and coherently confessed to some crimes while denying others in a police interrogation. Mr. Hosford believed, based on that evidence, that Petitioner understood the wrongfulness of his conduct, thus an insanity defense was unwarranted. Mr. Hosford has sufficiently articulated why he believed presenting an insanity defense would have been futile, and his decision not to present the defense was reasonable. Accordingly, he did not render ineffective assistance of counsel. See Knowles, 556 U.S. at 125.
For the reasons stated above, it is RECOMMENDED that the government's motion to dismiss [DE-160] be ALLOWED and Petitioner's § 2255 petition [DE-149, -152, -155] be dismissed.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until November 5, 2019 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C. Any response to objections shall be filed within 14 days of the filing of the objections.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins , 766 F.2d 841, 846-47 (4th Cir. 1985).
Submitted, the 22 day of October 2019.
Robert B. Jones, Jr.
United States Magistrate Judge