Opinion
Nos. 4:01-CR-177-A, 4:04-CV-740-A.
February 11, 2005
MEMORANDUM OPINION and ORDER
Came on to be considered the motion of Andreco Lott ("Lott") under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence. Having reviewed the motion, the response of United States of America, Lott's reply, the record, and applicable authorities, the court concludes that the motion should be denied.
Lott's reply is entitled "Response to Government's Opposition to Motion under 28 U.S.C. § 2255."
I. Background
On October 17, 2001, Lott was charged in 17 counts of a 27-count indictment. He was charged in: Count 1 with conspiracy to commit bank robbery, in violation of 18 U.S.C. § 371; Counts 2 and 4 with bank robbery, in violation of 18 U.S.C. §§ 2113 (a); Counts 3, 5, 9, 13, 17, 19, 21, and 23 with using and carrying a firearm during a crime of violence, each in violation of 18 U.S.C. §§ 924(c) (1) (A) (I); and Counts 8, 12, 16, 18, 20, and 22 with robbery, each in violation of 18 U.S.C. §§ 1951 (a) and (b). Before trial, the court, on the government's motion, dismissed counts 8, 9, 12, 13, 22, and 23. On December 6, 2001, a jury found Lott guilty of the offenses charged in Counts 1, 2, 3, 4, 5, 18, 19, 20, and 21, and found him not guilty of the offenses charged in Counts 16 and 17. Lott was sentenced on March 22, 2002, to 1, 111 months of imprisonment and to a five-year term of supervised release, and he was ordered to pay restitution in the amount of $87,359.85. His conviction was affirmed on April 8, 2003, and his petition for writ of certiorari was denied on October 6, 2003. The instant motion under 28 U.S.C. § 2255 was filed on October 8, 2004. Because the certificate of service is dated October 4, 2004, Lott's motion apparently is timely.
II. Grounds of the Motion
As his first ground for relief, Lott lists sixteen claims of ineffective assistance of counsel, which the court has consolidated into twelve claims for convenience. Specifically, Lott argues that his counsel was deficient for failing to:
1. Interview and investigate alibi witnesses;
2. Raise at trial and on appeal that in-court identification procedures were impermissibly suggestive;
3. File a severance motion;
4. Request cautionary instructions for witnesses;
5. Object that the government vouched for the credibility of its witnesses;
6. Object to the court's constructive amendment of the indictment;
7. Object to sentencing enhancements;
8. Object to or raise on appeal that the evidence was insufficient to support Lott's convictions;
9. Raise on appeal that a fatal variance violated his right to be tried on the indictment for Count 18;
Lott's motion lists sixteen claims of ineffective assistance of counsel, with five relating to insufficient evidence. For convenience, the court has consolidated the claims relating to insufficient evidence, numbered 8, 9, 11, 12, and 13 in Lott's motion, into a single issue.
10. Make pretrial motions for discovery;
11. Raise Batson issue during trial or on appeal; and
12. Allow Lott to testify on his own behalf.
In addition, Lott's motion also claims that due process was violated when the prosecutor allegedly vouched for the credibility of witnesses and that evidence was insufficient to convict him of certain counts.
On page 2 of his supporting memorandum of law, Lott lists prosecutorial misconduct as issue XV. However, his motion does not make such a claim, his memorandum does not discuss it further, and the court does not consider the issue to have been raised in his motion.
III. Standard of Review
After conviction and exhaustion, or waiver, of any right to appeal, courts are entitled to presume that a defendant stands fairly and finally convicted. United States v. Frady, 456 U.S. 152, 164 (1982); United States v. Shaid, 937 F.2d 228, 231-32 (5th Cir. 1991). A defendant can challenge his conviction or sentence after it is presumed final on issues of constitutional or jurisdictional magnitude only, and may not raise an issue for the first time on collateral review without showing both "cause" for his procedural default and "actual prejudice" resulting from the errors. Shaid, 937 F.2d at 232. Section 2255 does not offer recourse to all who suffer trial errors. It is reserved for transgressions of constitutional rights and other narrow injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice. Id. at 232 n. 7 (citing United States v. Capua, 656 F.2d 1033, 1037 (5th Cir. Unit A Sept. 1981)). In other words, a writ of habeas corpus will not be allowed to do service for an appeal. Davis v. United States, 417 U.S. 333, 345 (1974).IV. Ineffective Assistance of Counsel
A. Legal Standard
To prevail on a claim of ineffective assistance of counsel, petitioner must show (1) deficiency — that his counsel's performance fell below an objective standard of reasonableness and (2) prejudice — that there is a reasonable probability that, but for his counsel's unprofessional errors, the result of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 692-93 (1984). In evaluating a counsel's performance, a court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. In determining prejudice, a reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at 694. Both prongs of theStrickland test must be met to demonstrate ineffective assistance. Id. at 697. Here, the record is clearly adequate to fairly dispose of the claims of ineffective assistance. Hence, further inquiry is unnecessary. Baldwin v. Maggio, 704 F.2d 1325, 1329 (5th Cir. 1983).
B. Analysis
1. Failure to interview and investigate alibi witnesses
Lott alleges that counsel was ineffective because he failed to interview and investigate numerous witnesses. Allegations of counsel's failure to investigate "must allege with specificity what the investigation would have revealed and how it would have altered the outcome of the trial." Lockett v. Anderson, 230 F.3d 695, 713 (5th Cir. 2000) (quoting United States v. Green, 882 F.2d 999, 1003 (5th Cir. 1989)). Complaints of uncalled witnesses are not favored on collateral review because allegations of what the witnesses would have testified to are largely speculative. Evans v. Cockrell, 285 F.3d 370, 377 (5th Cir. 2002). For Lott "to demonstrate the requisite Strickland prejudice, [he] must show not only that [the] testimony would have been favorable, but also that the witness[es] would have testified at trial." Evans, 285 F.3d at 377 (quoting Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985)).
Even assuming Lott's proposed witnesses would have testified as he alleges, Lott has not demonstrated that there is a reasonable probability that the results of his case would have been different if the witnesses had testified. Therefore, Lott has failed to show that he has been substantially prejudiced by any actions of his counsel regarding his proposed witnesses.
2. Failure to raise at trial and on appeal that in-court identification procedures were impermissibly suggestive
Lott claims that his counsel failed to object to impermissibly suggestive identification procedures and that counsel should have raised this issue on appeal. However, he fails to explain how any identification procedures were suggestive. Conclusory allegations are insufficient to prove claims of ineffective assistance of counsel. Miller v. Johnson, 200 F.3d 274, 282 (5th Cir. 2000). Moreover, the record shows that counsel moved for acquittal under Rule 29, based on misidentification by witnesses, and counsel argued the issue of misidentification to the jury during closing argument. Trial Tr. at 536, 610. Lott has failed to show that counsel was deficient.
3. Failure to file a severance motion
Lott contends that counsel was ineffective for failing to file a motion for severance. As a general rule, co-defendants who are indicted together should be tried together. United State v. Simmons, 374 F.3d 313, 317 (2004). To demonstrate reversible error, a defendant must show "clear, specific, and compelling prejudice that resulted in an unfair trial." Id. Such prejudice "must be of a type 'against which the trial court was unable to afford protection.'" Id.
Contrary to Lott's assertion that the indictment charged separate crimes against separate defendants, Lott and Diggs were both charged in Counts 8, 9, 12, and 13, which were dismissed before trial. Furthermore, they were both charged with committing similar crimes with other co-defendants.
Lott has not shown that any event involving his co-defendant Diggs caused substantial prejudice. Had Lott's counsel moved for a severance based on the reasons Lott now asserts, the court would have denied the motion. Moreover, the jury's finding of not guilty on Counts 16 and 17 shows that the jury was able to consider each count separately. See United States v. Richards, 204 F.3d 177, 194 (5th Cir. 2000) (stating that "acquittals as to some defendants on some counts support an inference that the jury sorted through the evidence and considered each defendant and each count separately") (citations omitted). Therefore, Lott has failed to show that his counsel was ineffective for failing to file a severance motion, or that he was prejudiced thereby.
4. Failure to request cautionary instructions about witnesses
Lott next claims that his counsel failed to request cautionary instructions regarding the testimony of his co-defendants. The Fifth Circuit has held that a "defendant is entitled to a special cautionary instruction on the credibility of an accomplice or a government informer if he requests it and the testimony implicating the accused is elicited solely from the informer or accomplice." United States v. Garcia, 528 F.2d 580, 587-88 (5th Cir. 1976). Otherwise, "it is within the trial judge's discretion to instruct the jury to accept an accomplice's testimony with caution." United States v. Nolte, 440 F.2d 1124, 1126-27 (5th Cir. 1971).
Here, the evidence against Lott did not come solely from an accomplice, and Lott was not entitled to the specific instruction he now requests. Moreover, the court instructed the jury regarding witness credibility, Trial Tr. at 626-27, and the court is unpersuaded that there is a reasonable probability that, if the court had given the particular instruction requested by Lott, the result of the trial would have been different.
5. Failure to object when the government allegedly vouched for the credibility of its witnesses
Lott claims that his counsel failed to object that the prosecutor vouched for the credibility of the government's witnesses during opening statement and closing argument. Except to the extent an attorney bases an opinion on the evidence in a case, he may not express his personal opinion on the credibility of witnesses. United States v. Garza, 608 F.2d 659, 663 (5th Cir. 1979).
Having reviewed the statements identified by Lott, see Mem. Supp. Mot. at 22-23, within the context of the closing argument and rebuttal, see Trial Tr. at 595-98, 618, the court concludes that all of the statements involved arguments that the evidence showed the witnesses were truthful. Such arguments based on the evidence are proper. See Garza, 608 F.2d at 663.
Within the discussion of this issue in his supporting memorandum, Lott alleges that the government elicited testimony regarding guilty pleas of his testifying co-defendants, without a cautionary instruction. However, Lott's motion does not raise any claim regarding such testimony, and the court is not considering the issue.
6. Failure to object to the Court's constructive amendment of the indictment
Lott claims that his counsel failed to object that the court constructively amended Counts 18 and 20 of the indictment by instructing the jury that it did not have to find that Lott knew his actions would affect interstate commerce. A "constructive amendment" occurs when the jury is permitted to convict a defendant based on an alternative basis permitted by the statute, but not charged in the indictment." United States v. Partida, 385 F.3d 546, 557 (5th Cir. 2004).
Counts 18 and 20 charge violations of 18 U.S.C. § 1951, which does not require that the defendant "knowingly" affected commerce. See United States v. Gupton, 495 F.2d 550, 551 (5th Cir. 1974). The intent element of the offense is satisfied when the government proves that the defendant's intentional behavior was likely to have the natural effect of obstructing commerce.Id. Therefore, the Court's instructions did not authorize conviction of an offense not alleged in the indictment, and there was no constructive amendment. See Partida, 385 F.3d at 558.
7. Failure to object to sentencing enhancements
Lott asserts that counsel should have objected, under Apprendi v. New Jersey, 530 U.S. 466 (2000), and Jones v. United States, 526 U.S. 227 (1999), to sentencing enhancements for "serious bodily injury" and "amount of lost money." Because Lott was sentenced within the statutory maximum, he fails to state an error under Apprendi or Jones, and the "[f]ailure to raise meritless objections is not ineffective lawyering; it is the very opposite." Clark v. Collins, 19 F.3d 959, 966 (5th Cir. 1994).
8. Failure to object to or raise on appeal that the evidence was insufficient to support Lott's convictions
In his claims numbered 8, 9, 11, 12, and 13, Lott contends that his counsel failed to object and raise on appeal that the evidence was insufficient to sustain his convictions. First, regarding claim 8, Lott contends that "the record is void of any evidence that [he] at any time used or carried a firearm during and in relation to any crime as charged in Counts 3, 5, [and] 21" or that he aided and abetted the use or carrying of a firearm. Mem. Supp. Mot. at 33. However, the record belies his claims. As to Count 3, involving the robbery of Norwest Bank, a bank employee testified that Lott used a firearm during that robbery. Trial Tr. at 396. As to Count 5, involving the robbery of First State Bank, a employee testified that the robbers used firearms during the commission of that offense. Trial Tr. at 386. Finally, as to Count 21, Jerome Foster ("Foster") testified that Lott participated in the robbery of the Winn Dixie, in which Foster, Telasa Clark, and Jovon Holcombe all carried guns. Trial Tr. at 288-89.
Insufficient evidence is not a valid objection. The court assumes Lott is arguing that his counsel should have made a motion for acquittal under Federal Rule of Criminal Procedure 29(a).
Regarding claim 11, Lott contends that no reasonable jury would have found him guilty of any of the offenses "absent the many errors that took place in" his trial and absent the testimony of the co-defendants. Mem. Supp. Mot. at 40-41. His conclusory allegation is insufficient to prove ineffective assistance of counsel. Miller, 200 F.3d at 282. Moreover, a defendant may be convicted on the uncorroborated testimony of a co-conspirator who has accepted a plea bargain, unless the co-conspirator's testimony is incredible. United States v. Booker, 334 F.3d 406, 410 (5th Cir. 2003). Testimony is incredible as a matter of law only if "it relates to facts that the witness could not possibly have observed or to events which could not have occurred under the laws of nature." Booker, 334 F.3d at 410 (quoting United States v. Bermea, 30 F.3d 1539, 1551 (5th Cir. 1994)). The jury was therefore entitled to rely on the testimony of his co-conspirators.
Regarding claim 13, Lott asserts that counsel failed to challenge the sufficiency of the evidence supporting a conviction for conspiracy to rob First State Bank and Norwest Bank. However, there was testimony that Lott, Adrium Clark, Telasa Clark, and other individuals, robbed both of the banks, as well as the Winn Dixie store, and there was evidence that the robberies were planned ahead of time. E.q., Trial Tr. at 346-48, 352-53, 523, 526. Counsel was not deficient for failing to challenge the sufficiency of the evidence, because a lawyer cannot have been deficient for declining to raise frivolous legal issues. Koch v. Puckett, 907 F.2d 524, 527 (5th Cir. 1990);Sones v. Hargett, 61 F.3d 410, 415 (5th Cir. 1995).
Lott also asserts, in claim 9, that counsel should have raised on appeal that there was insufficient evidence to convict him on Counts 18 and 19, because the evidence indicated that he robbed an armored car rather than a Greyhound bus station. However, Count 18 charged Lott with taking property belonging to Greyhound from the armored car's guard, and there is no dispute that the guard had just picked up money and other property from Greyhound.
In claim 12, Lott asserts that counsel should have raised on appeal that the government failed to prove he was part of any conspiracy or to prove that he committed any robbery. This assertion is without merit. Three co-defendants testified that they committed one or more of the robberies with Lott. E.g., Trial Tr. at 288, 335, 356, 503. Two other witnesses identified Lott as one of the robbers at First State Bank and Greyhound. Trial Tr. at 381, 433. Another witness wrote part of the license plate of the vehicle belonging to the man he saw running from the Greyhound robbery. Trial Tr. at 440. Of the numbers he wrote, four of the six were the same as, and in the same order as, those on Lott's license plate. Trial Tr. at 528. And Lott's cell-phone record revealed calls to co-defendants' cell phones that were consistent with testimony of co-defendants regarding their communications with co-conspirators. Trial Tr. at 521-526.
Lott has not shown that counsel failed to raise any issue upon which he was likely to prevail. See Ellis v. Lynaugh, 873 F.2d 830, 840 (5th Cir. 1989). Therefore, Lott has failed to show counsel was deficient. See Koch, 907 F.2d at 527.
9. Failure to appeal a fatal variance between the indictment and the evidence on Count 18
Lott contends that his counsel failed to raise on appeal that a fatal variance violated his Fifth Amendment right to be tried only on the indictment returned by the grand jury. To prove a fatal variance, a defendant "must show (1) an actual variance between the allegations in the indictment and the proof at trial and (2) prejudice flowing from the variance that affected his substantial rights." United States v. Carbajal, 290 F.3d 277, 291 (5th Cir. 2002).
Lott asserts that Count 18 charged him with affecting interstate commerce by robbing a Greyhound bus station, but that the evidence showed that an armored car was robbed rather than Greyhound. However, Count 18 actually charged Lott with taking property belonging to Greyhound from the presence of the armored car's guard. Therefore, there was no variance between the indictment and the evidence, and Lott has failed to show that counsel was deficient for failing to raise the issue on appeal.
10. Failure make pretrial motions for discovery
Lott claims that his counsel failed to file motions for pretrial discovery, including police reports and letters that were allegedly written between co-defendants Adrium and Telasa Clark. The record shows that Lott's claim is without merit.
First, the court ordered that no defendant file a discovery motion unless the government failed to provide discovery after being requested to do so. Because there is no evidence that the government refused to provide any discovery, Lott has not shown that counsel was allowed to file a discovery motion.
Second, the record shows that the government did provide discovery. Counsel for the government told the court that he believed he had provided all of the required discovery, Trial Tr. at 13, and neither defendant contradicted the government. In addition, Lott's counsel states in his affidavit that all discovery materials were produced, and that he is unaware of any missing documents. App. to Gov't Resp. at 4.
Although Lott alleges that counsel has admitted that he did not receive discovery materials from the government, he provides no evidence of that admission. In Lott's Exhibit 32, counsel states that the government did not provide him with the city police reports. However, there is no evidence that the government possessed the reports, and counsel does not claim that it did. Moreover, Lott has failed to show that, had the reports been admitted at trial, there is a reasonable probability that the result would have been different.
As to the existence of letters between co-defendants Adrium Clark and Telesa Clark, counsel raised the issue in a motion for new trial, which the court denied. Counsel again raised the issue on appeal to the Fifth Circuit, which affirmed the court's ruling and stated in part:
Lott and Diggs next argue that the district court erred in denying a new trial because the Government failed to disclose material evidence in violation of Brady v. Maryland. They suggest that the Government should have disclosed FBI Agent Michael Elsey's testimony regarding co-defendant Telasa Clark's false statements. While it is doubtful that the Government actually failed to disclose Elsey's testimony, even assuming arguendo that the Government did fail to disclose it, the substantial trial evidence strongly corroborating co-defendant Clark's statements as to Lott's and Diggs's guilt indicates that Elsey's testimony would not have been material to either conviction.United States v. Lott, 66 Fed. Appx. 523, 2003 WL 21015835, (5th Cir. 2003) (unpublished) (internal citation omitted). Therefore, Lott has failed to show that his counsel was deficient or that he was substantially prejudiced thereby.
11. Failure to raise Batson issue at trial or on appeal
Lott asserts that his counsel failed to object to the jury selection based on Batson v. Kentucky, 476 U.S. 79 (1986). In fact, counsel made two Batson objections. He objected to the jury panel having only two African-Americans. Trial Tr. at 24. The court overruled the objection, because there was no evidence that improper procedures were used to select the panel. Id. After the jury was seated, counsel made a second objection, id. at 85, which was overruled because the government did not strike any African-Americans. Id. at 86. Therefore, Lott has failed to show any deficient conduct on the part of his counsel.
12. Failure to allow Lott to testify on his own behalf
Lott alleges that his counsel would not allow him to testify on his own behalf. The two-prong Strickland test for ineffective assistance of counsel applies where counsel prevents a defendant from exercising his right to testify. Sayre v. Anderson, 238 F.3d 631, 634-35 (5th Cir. 2001). A defendant's "self-serving conclusory statement that his testimony would have resulted in an acquittal, standing alone, falls far short of satisfyingStrickland's prejudice element." Id. at 635.
Although there is evidence that Lott agreed not to testify,see App. to Gov't Resp. at 2., he alleges that he wanted to testify about "the Home Depot, etc. robberies, but did not want to testify about the First State Bank and Winn-Dixie robberies." Mem. Supp. Mot. at 53. However, if Lott had taken the stand, he would not have been allowed to testify only on the subjects of his choosing. "To allow a defendant to testify with impunity on matters he chooses and in a manner he chooses is a 'positive invitation to mutilate the truth a party offers to tell.'"United States v. Beechum, 582 F.2d 898, 908 (5th Cir. 1978) (quoting Fitzpatrick v. United States, 178 U.S. 304, 316 (1900)). Had he testified, the court might have allowed him to be cross-examined him on any relevant matter, including his prior criminal history and other robberies he was suspected of committing. See App. to Gov't Resp. at 2.
In addition, Lott was acquitted of the Home Depot robbery, and the absence of his testimony did not prejudice him regarding that charge. Having reviewed the remainder of Lott's proposed testimony, see Mem. Supp. Mot. at 54-55, the court is unpersuaded that there is a reasonable probability that such testimony would have changed the result of Lott's trial. Therefore, Lott fails to show that any of counsel's conduct was deficient or that he was prejudiced thereby.
In his reply, Lott includes a section entitled "XIV. Government's Failure to Responsed [sic] to Insufficient Instruction for Aiding and Abetting." Reply at 38. However, his motion to vacate does not raise a claim regarding insufficient instruction for aiding and abetting, and the court is not considering the issue.
C. Conclusion
For the reasons discussed, the court concludes that Lott has failed to show that (1) his counsel's performance fell below an objective standard of reasonableness and (2) that there is a reasonable probability that, but for his counsel's unprofessional errors, the result of the proceedings would have been different.See Strickland, 466 U.S. at 687-88, 692-93. Any errors of counsel were merely trial errors and did not result in a fundamental miscarriage of justice. See Capua, 656 F.2d at 1037.
V. Remaining Claims
In addition to the claims of ineffective assistance of counsel, Lott's motion also lists the following grounds: (1) in ground 5, that due process was violated when the prosecutor allegedly vouched for the credibility of witnesses; (2) in ground 11, that the evidence was insufficient to support the jury verdicts for Counts 1, 2, 4, 18, and 20; and (3) in ground 13, that evidence was insufficient to support a conviction for conspiracy to rob First State Bank and Norwest Bank. Because Lott has not raised these issues previously, he may not raise them for the first time on collateral review without showing both "cause" for his procedural default and "actual prejudice" resulting from the errors. Shaid, 937 F.2d at 232. Because his ineffective assistance claims fail, as discussed above, Lott has not shown cause for his failure to raise the issues at trial or on direct review. Therefore, Lott's remaining claims are procedurally barred. Moreover, if such claims were not barred, they still would be denied on the merits. Accordingly,
VI. ORDER
The court ORDERS that Lott's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 be, and is hereby, denied.