United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (Denying Petitioner's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255)
HENRY E. HUDSON, District Judge.
Petitioner Christopher Timbers ("Petitioner"), a federal inmate who proceeds pro se, was convicted by a jury of this Court on December 21, 2010 of conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act ("RICO"), in violation of 18 U.S.C. §§ 1961-1968; conspiracy to commit violence in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(6); and violence in aid of racketeering, in violation of 18 U.S.C. §§ 1959(a)(3) and (2). On April 8, 2011, the Petitioner was sentenced to 87 months of imprisonment on Counts One and Three, to be served concurrently. He was also sentenced to 36 months on Count Two, to run concurrently with the sentence imposed on Counts One and Three. Petitioner's convictions were affirmed by the United States Court of Appeals for the Fourth Circuit on August 2, 2012. Werth v. United States, 493 F.Appx. 361, 364 (4th Cir. 2012). His Petition for Certiorari was denied by the United States Supreme Court on February 19, 2014. The Petitioner is currently serving his sentence at Federal Correctional Institute Elkton, Lisbon, Ohio.
The Petitioner's case is again before this Court on his Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255, which he has filed pro se. Although the petition embraces claims of ineffective assistance of counsel, inadequacy of the indictment, and misapplication of sentencing guideline enhancements, the central focus of his petition is a reargument of the strength of the government's case. Many of Petitioner's claims have been specifically rejected by the Fourth Circuit in its unpublished per curium opinion of August 2, 2012. See Werth, 493 F.Appx. 361, 365-70. Moreover, this Court's analysis begins by recognizing the well-settled principle that unless a claim alleges a lack of jurisdiction or constitutional error, the scope of collateral review is limited. Stone v. Powell, 428 U.S. 465, 477 n.10 (1976). As Chief Justice Rehnquist noted in Brecht v. Abrahamson, "the writ of habeas corpus has historically been regarded as an extraordinary remedy, a bulwark against convictions that violate fundamental fairness.... Accordingly, it hardly bears repeating that an error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment." 507 U.S. 619, 633-34 (1993) (internal quotation marks and citations omitted). Errors of law do not typically provide a basis for habeas relief under 28 U.S.C. § 2255 unless it constitutes "a fundamental defect which inherently results in a complete miscarriage of justice." United States v. Timmreck, 441 U.S. 780, 783 (1979).
Petitioner's first claim challenges the sufficiency of the government's evidence to support his conviction for conspiracy to violate RICO, charged in Count One. Petitioner also contends that the charging language in Count One failed to properly plead a violation of 18 U.S.C. § 1962(d). Although Petitioner was afforded an opportunity to raise the issue of the adequacy of the indictment on direct appeal, he failed to do so. As a result, Petitioner is barred from raising the claim in a subsequent § 2255 proceeding. See United States v. Frady, 456 U.S. 152, 165 (1982). Defenses and objections based on defects in the institution of the prosecution or in the indictment may be raised only by motion before trial. Fed. R, Crim. P. 12(b)(3)(A), (B). And failure to do so constitutes a waiver thereof. Fed. R. Crim. P. 12(e). As the Fourth Circuit further explained, "[ujnless an indictment is so facially defective as to fail to charge an offense, it may not be challenged on a motion to vacate sentence.... [It] is properly a matter for direct appeal." Hall v. United States, 410 F.2d 653, 659 (1969) (internal citations omitted).
Even if properly reviewable on a § 2255 challenge, this Court would find the charging language to be more than adequate. The allegations in Count One track the statutory elements of RICO. There is no necessity, as Petitioner contends, for the United States to delineate the specific elements of state and federal statutes underlying the allegation of extortion as a predicate act of racketeering. See United States v. Glecier, 923 F.2d 496, 499-500 (7th Cir. 1991), cert, denied, 502 U.S. 810 (1991). There is also no requirement for an indictment to particularize the specific predicate acts committed by the defendant in furtherance of the conspiracy. The indictment in this case described in considerable detail the structure, operation, membership, and objectives of the Outlaws motorcycle gang, of which the Petitioner was a part. It alleged that the organization, in pursuing its agreed upon goals, engaged in criminal acts involving murder, attempted murder, assault, robbery, extortion, arson, and obstruction of justice, to maintain control over its geographic areas of dominance. The indictment in this case was more than adequate to advise him of the nature of the charge and afford him an opportunity to craft his defense.
Similarly, the second facet of Petitioner's first claim, which in effect seeks to relitigate the sufficiency of the evidence to support his conviction on Count One, is also barred from review under § 2255. On direct appeal, the Fourth Circuit found substantial evidence to support his conviction. The appellate court took particular note that the trial evidence revealed that Petitioner conspired to commit a number of predicate acts in aid of the racketeering enterprise. These consisted of conspiracy to distribute controlled substances and tampering with witnesses. With respect to Petitioner's claim that the evidence failed to implicate him directly in any act of extortion, the Fourth Circuit rejected this argument, noting that "this level of personal involvement is not necessary to prove guilt on predicate offenses sufficient to uphold a RICO conspiracy conviction." Werth, 493 F.Appx. at 370 n.6.
The evidence offered by the United States at trial portrayed the Petitioner as a significant participant in the operation of the Outlaws motorcycle gang. The organization used force and violence to expand their control of territory, forcibly eliminate competing motorcycle organizations, solicit smaller motorcycle clubs into the membership, and require various fees and assessments for organization participation. (Trial Tr. at 47-50, 932-33, 1034; ECF Nos. 937, 939, 940.) On several occasions in which the Outlaws sought out other rival motorcycle gangs for the purpose of removing them from territory controlled by the Outlaws, Petitioner wasp resent and participated. (Trial Tr. at 146-49; 1745-46; ECF Nos. 939, 943.)
The third element of Petitioner's first claim appears to be the product of a misunderstanding of the law. Initially, Petitioner prefaces his argument by restating that there was insufficient evidence to support his conviction for conspiracy to violate RICO. For the reasons articulated above, this argument lacks merit. Alternatively, Petitioner argues that his Fifth Amendment rights were violated when the Court imposed sentencing guidelines enhancements for possession of a firearm during a confrontation at the Cockades Bar in Petersburg, Virginia, on March 14, 2009, pursuant to United States Sentencing Guidelines Manual ("U.S.S.G.") § 2B3.2(b)(3)(A)(iii), and for bodily injury to a victim during that incident, under U.S.S.G. § 2A2.2(b)(3)(A). Central to his argument is the fact that Petitioner was acquitted of the charge of possession of a firearm in furtherance of a crime of violence, Count four. The plausible evidence offered at trial revealed that the petitioner possessed a firearm on several occasions during his participation in the conspiracy.
Petitioner's acquittal on Count four does not preclude application of the enhancement under an advisory sentencing regime. In Rita v. United States, the United States Supreme Court squarely rejected plaintiffs argument that sentencing-related facts underlying guideline enhancements are required, under the Sixth Amendment, to be made by a jury. 551 U.S. 338, 352 (2007). As the Court noted, "[t]his Court's Sixth Amendment cases do not automatically forbid a sentencing court to take account of factual matters not determined by a jury and to increase the sentence in consequence." Id.
Even though the Petitioner was charged in Count Four with possession of a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. §§ 924(c) and 2, he further maintains that the sentencing enhancement violated his Sixth Amendment right "to be informed of the nature and cause of the accusation of possessing a firearm during the commission of the crime of extortion was violated." (Petr.'s Mem. in Support at 10, ECF No. 1020.) Petitioner states that "[t]he indictment failed to give Timbers sufficient notice that he would have to defend himself against a charge that he possessed a firearm while committing a crime of extortion." (Id.) In the detailed description of the methods and means used to affect the conspiracy to engage in racketeering activities, the indictment clearly mentions the possession and use of firearms.
Turning to Claim Two, Petitioner contends that his
rights under the 6th Amendment and Due Process Clause of the United States Constitution were violated. Because the element of "Assault with a Dangerous Weapon" was not present in the conduct presented to the jury. Thus there was insufficient evidence to support a guilty verdict beyond a reasonable doubt to the crime as charged in Count Three of the indictment.
(Petr.'s Mem. in Supp. at 14.) Count Three charged violence in aid of racketeering.
As the United States correctly points out, this claim is foreclosed by its prior review by the Fourth Circuit. Because this claim was addressed and rejected on direct appeal, it cannot be relitigated under § 2255 absent new facts or evidence of a favorable change in the governing substantive law. United States v. Roane, 378 F.3d 382, 396 n.7 (4th Cir. 2004); Boeckenhaupt v. United States, 537 F.2d 1182, ...