United States District Court, D. Kansas
MEMORANDUM AND ORDER
J. THOMAS MARTEN, Chief District Judge.
Defendant Raymond L. Rogers brings a Motion to Vacate, Set Aside, or Correct his sentence pursuant to 28 U.S.C. § 2255 (Dkt. 146). He subsequently filed an identical Motion for Summary Judgment (Dkt. 160). Because review of defendant's motion and the accompanying court record conclusively show that he is not entitled to relief, this Court denies the motion without an evidentiary hearing.
I. Factual and Procedural Background
The following factual account is taken from the jury trial record as well as the facts established by the Tenth Circuit on appeal. See United States v. Rogers, 520 Fed.Appx. 727 (10th Cir. Apr. 5, 2013). On the morning of December 1, 2010, three black males entered a branch of the Equity Bank in Wichita, Kansas. All three wore masks and gloves and two of them brandished handguns. One of the armed men covered the lobby area and provided lookout while the other two jumped the counter, ordered the bank's staff to get on the ground, and proceeded to empty the teller drawers. The two men then ordered the employees to open the vault and threatened to shoot if the employees did not comply. The men were able to obtain $102, 743 in cash and subsequently fled the scene in a stolen SUV. Unbeknownst to the men, the cash contained "bait money, " which is comprised of bills whose serial numbers have been pre-recorded by bank staff, and "dye-packs, " which are bundles of cash that contain a canister of tear gas and red dye that is activated when it is removed and when it passes through a special "activation zone" within the bank itself.
A few moments after the robbery, a nearby motorist spotted the stolen SUV, noticed that it was filled with red smoke, and called 911. When officers arrived on scene, they discovered that the occupants had abandoned the SUV. The vehicle contained a large sum of cash that was stained with red dye as well as residual smoke from the release of the dye.
At some point thereafter, officers got word that law enforcement was engaged in a car pursuit of a second stolen SUV. The vehicle contained three passengers. This SUV pulled into an apartment complex and two individuals bailed out of the vehicle while it was still moving. The driver left the SUV at some point thereafter.
Police pursued the three individuals, who had split up, through the apartment complex. The driver was apprehended after being shot by police. Upon hearing screaming from one of the buildings, officers entered building 12 of the complex, located the source of the screaming, and apprehended the first passenger in apartment 1211. Police then started clearing apartments, searching for the third individual.
Eventually, the officers came to apartment 1217. While removing five individuals from the unit, police "saw a black male stick his head out from the southwest bedroom corner or southwest bedroom into the hallway and look real quick and then go back into the... bedroom." Dkt. 129, at 60. Police handcuffed this individual, who was later identified as defendant.
At the time of his apprehension and arrest, defendant wore a white t-shirt stained with red dye near his midsection. Forensics determined that the dye on the shirt was consistent with the dye contained in the bank dye-pack. A search of apartment 1217 uncovered $62, 300 in cash wrapped in two bags in the bathroom's toilet tank. Some of the bills were stained with red dye and some were bait money from Equity Bank. Inside the stolen SUV, which had ultimately crashed into other vehicles parked at the apartment complex, police found a dye-stained bag, envelopes from Equity Bank, and several thousand dollars in dye-stained bills, including bait money. The officers also found a wool cap with holes cut in it and two loaded semiautomatic handguns-an Intratec AB-10 and a Bersa.
On December 7, 2010, defendant, along with his two co-defendants, was charged by the grand jury with one count of bank robbery, one count of possessing and brandishing a firearm in furtherance of the bank robbery, and being a felon in possession of a firearm (Dkt. 12). On June 21, 2011, defendant was charged in a superseding indictment with additional counts of bank robbery, possessing and brandishing a firearm in furtherance of the bank robbery, and being a felon in possession of a firearm (Dkt. 54). The superseding indictment was dismissed on November 29, 2011 (Dkt. 91).
On December 1, 2011, a jury convicted defendant of robbing a federally-insured bank in violation of 18 U.S.C. § 2113(a); brandishing a firearm during the robbery in violation of 18 U.S.C. § 924(c)(1)(A); and possessing a firearm after a felony conviction in violation of 18 U.S.C. § 922(g)(1) (Dkt. 103). On April 16, 2012, defendant was sentenced by this court to 234 months imprisonment. Defendant directly appealed his conviction and sentence on the count of bank robbery to the United States Court of Appeals for the Tenth Circuit. See Rogers, 520 Fed.Appx. 727. The court affirmed his conviction and sentence. Defendant did not file a petition for writ of certiorari to the United States Supreme Court.
On December 2, 2013, defendant filed a Motion to Vacate, Set Aside, or Correct a sentence pursuant to 28 U.S.C. § 2255 (Dkt. 146). He filed two motions to supplement his petition on December 16, 2013 (Dkt. 148), and March 18, 2014 (Dkt. 155). In his petition and supplements, defendant claims ineffective assistance of both trial and appellate counsel based on the following alleged errors:
1. Failure to challenge the lawfulness of the search and arrest
2. Failure to seek dismissal based on the Speedy Trial Act
3. Failure to move for dismissal of the original indictment based on vindictive prosecution and/or prosecutorial misconduct
4. Failure to investigate and interview witnesses
5. Failure to raise a fair cross-section claim
6. Failure to allow defendant to testify on his own behalf
7. Failure to object to the bank robbery jury instruction (number 18)
8. Failure to object to the aiding and abetting jury instruction (number 21)
9. Failure to move for dismissal of Count Two (brandishing a firearm during the course of a bank robbery) on the basis that Count One (bank robbery) was not a qualifying predicate "crime of violence"
10. Failure to challenge the 84-month sentence on Count Two (brandishing a firearm during the course of a bank robbery) on the basis of Apprendi and Alleyne
11. Failure to challenge the sufficiency of the evidence in Count Two (brandishing a firearm during the course of a bank robbery) and Count Three (felon in possession)
12. Failure to raise a cumulative error claim
Dkts. 146, 148, 155.
On October 9, 2014, defendant filed a Motion for Summary Judgment alleging ineffective assistance of counsel claims identical to assignments of error 1, 7, and 11 of his § 2255 Motion (Dkt. 160). Based on a review of the record, this Court finds Petitioner's assignments of error in both motions to be without merit.
II. Legal Standard
Under § 2255(a),
[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released 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, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
According to Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts,
[t]he judge who receives the motion must properly examine it. If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion... If the motion is not dismissed, the judge must order the United States attorney to file an answer, motion, or other response within a fixed time, or to take other action the judge may order.
The court must hold an evidentiary hearing on a § 2255 motion "unless the motion and files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b). The petitioner must allege facts that, if proven, would warrant relief from his conviction or sentence. See Hatch v. Okla., 58 F.3d 1447, 1471 (10th Cir. 1995), cert. denied, 517 U.S. 1235 (1996). An evidentiary hearing is not necessary where a § 2255 motion contains factual allegations that are contradicted by the record, inherently incredible, or when they are conclusions rather than statements of fact. See id. (stating that "the allegations must be specific and particularized, not general or conclusory"); see also United States v. Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994) (rejecting ineffective assistance of counsel claims that were merely conclusory in nature and without supporting factual averments).
A district court may grant relief under § 2255 if it determines "that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack." 28 U.S.C. § 2255(b). "Review under § 2255 is not an alternative to appellate review for claims that could have been presented on direct appeal but were not." United States v. Magleby, 420 F.3d 1136, 1139 (10th Cir. 2005), cert. denied, 547 U.S. 1097 (2006). The petitioner may overcome this procedural bar by showing either of "two well recognized exceptions." United States v. Cervini, 379 F.3d 987, 990 (10th Cir. 2004), cert. denied, 544 U.S. 904 (2005). "First, the movant must show good cause for not raising the issue earlier and actual prejudice to the movant's defense if the issue is not considered." United States v. Molina, 2013 U.S. Dist. LEXIS 174618, at *12 (D. Kan. Dec. 13, 2013) (citing Cervini, 379 F.3d at 990). Cause may "be established by showing that counsel rendered constitutionally ineffective assistance." United States v. Wiseman, 297 F.3d 975, 979 (10th Cir. 2002) (internal citations omitted). Second, a petitioner must show that the "failure to consider the federal claims will result in a fundamental miscarriage of justice." Molina, 2013 U.S. Dist. LEXIS 174618, at *12 (citing Cervini, 379 F.3d at 990); see also Bousley v. United States, 523 U.S. 614, 621-22 (1998) (holding that a showing of actual innocence meets the fundamental miscarriage of justice prong).
Defendant requests this Court set aside the jury's guilty verdict and his sentence based on numerous alleged errors due to ineffective assistance of counsel. In instances where defendant makes the same claim against both his trial and appellate counsel, the alleged errors will be discussed together.
A. Ineffective Assistance of Counsel
In general, to succeed on a claim of ineffective assistance of counsel, a petitioner must meet the two-prong test set forth in Strickland v. Washington. 466 U.S. 668 (1984). Under Strickland, a petitioner claiming ineffective assistance of counsel must prove that: (1) his counsel's representation was constitutionally deficient because it fell below an objective standard of reasonableness, and (2) the deficiency prejudiced the petitioner because it deprived him of the right to a fair trial. Id. at 687-88. To prevail on the first prong, a petitioner must demonstrate that the omissions of his counsel fell "outside the wide range of professionally competent assistance." Id. at 690. This standard is "highly demanding." Kimmelman v. Morrison, 477 U.S. 365, 382 (1986). Strategic or tactical decisions on the part of counsel are presumed correct, unless they were "completely unreasonable, not merely wrong, so that [they] bear no relationship to a possible defense strategy." Fox v. Ward, 200 F.3d 1286, 1296 (10th Cir. 2000) (quoting Hatch, 58 F.3d at 1459). The reasonableness of the challenged conduct must be evaluated from counsel's perspective at the time of the alleged error. See Edens v. Hannigan, 87 F.3d 1109 (10th Cir. 1996). "[E]very effort should be made to eliminate the distorting effects of hindsight." Id. at 1114 (quoting Strickland, 466 U.S. at 689).
With regard to the second prong, a petitioner "must show there is a reasonable probability that, but for his counsel's professional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. A reasonable probability is a "probability sufficient to undermine confidence in the outcome." Id. This requires the court to focus on "the question [of] whether counsel's deficient performance render[ed] the result of the trial unreliable or the proceeding fundamentally unfair." Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). In cases where a petitioner pleads guilty, the Supreme Court has held that prejudice can only be shown if there is "a reasonable probability that, but for counsel's errors, [the petitioner] would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985). Courts reviewing an attorney's ...