United States District Court, E.D. Virginia, Richmond Division
JAMES R. SPENCER, Senior District Judge.
THIS MATTER is before the Court on pro se Petitioner Winston Sylvester Oliver II's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody ("§ 2255 Motion") (ECF No. 165). For the reasons set forth below, the § 2255 Motion is DENIED.
a. Factual Background
Between November 1, 2008 and November 15, 2008, Winston Sylvester Oliver, II ("Oliver") began making plans to rob the Mr. Fuel Truck Plaza ("Mr. Fuel") in Ruther Glen, Virginia of United States currency. Oliver learned from his wife, Danielle Oliver, that Mr. Fuel employees kept large amounts of money in the cash register drawers. Once Oliver learned this, he became excited and his face "lit up." Oliver began visiting Mr. Fuel in an effort to survey the business and he also questioned his wife about the location of surveillance cameras in the business.
On May 8, 2010, Warren Harold Brown ("Brown") went to Oliver's home in Chesterfield County. During the visit, Brown told Oliver that he was having money problems. Oliver told Brown to get into Oliver's blue Ford Explorer, which Brown did. At approximately 9:30 p.m., Brown and Oliver were parked at the Howard Johnson's motel, which is down the hill from Mr. Fuel. Oliver told Brown to rob Mr. Fuel. Oliver pulled a loaded revolver from underneath the front seat of the vehicle and gave it to Brown. Oliver told Brown there were no video cameras in the establishment so Brown would not get caught. Brown was initially reluctant, but eventually decided to go through with the robbery.
Brown entered Mr. Fuel and picked up a pack of crackers. He proceeded to the cash register and gave the pack of crackers to Sharon Jo Conrad ("Conrad"). After Conrad scanned the item, Brown pulled out the handgun and told Conrad to give him the money from the cash register. Conrad tried to open the register, but could not. Brown became agitated and fired the handgun, once or twice.
Theodore Edmond ("Edmond"), a customer in Mr. Fuel, saw what was happening and believed that Brown was going to kill Conrad and the other store clerk, Wanda Miss. Edmond grabbed two beer bottles, approached Brown from the rear, and hit Brown in the head with the bottles. In the ensuing struggle between Brown and Edmond, Brown shot Edmond four times as Brown fled the crime scene. As Brown ran out of the store, he fell in the parking lot and dropped the pistol and some of the bullets fell out of the cylinder of the firearm. Brown then ran back to the car where Oliver was waiting. Oliver then drove the pair back to Richmond, Virginia.
The following day, Oliver sent his wife a text message asking if she had "heard" about what happened at Mr. Fuel. Within a week of the robbery, Oliver went to visit Tina Hancock ("Hancock"). During that visit both were watching the news, and video of the Mr. Fuel robbery was played on the broadcast. While the video was playing, Oliver acknowledged that he was present during the robbery of Mr. Fuel. Oliver told Hancock that he was outside "as the driver." Hancock also heard Oliver on the phone with Brown when Oliver indicated that he was making attempts to help Brown flee the Commonwealth of Virginia. Oliver also advised Brown to stay silent as law enforcement did not know that he (Brown) had an accomplice.
b. Procedural Background
On July 12, 2011, a federal grand jury returned a four-count, superseding indictment charging Brown and Oliver with the following offenses: Conspiracy to Commit Robbery Affecting Commerce, in violation of 18 U.S.C. § 1951(a) (Count One); Using and Carrying a Firearm During and in Relation to a Crime of Violence, in violation of 18 U.S.C. § 924(c) (Counts Two and Four); and Attempted Robbery Affecting Commerce, in violation of 18 U.S.C. § 1951(a) and 2 (Count Three).
Prior to trial, Oliver filed a motion to sever his case from Brown's case, which was denied on April 28, 2011. (ECF No. 40.) Brown and Oliver also filed motions requesting that the district court dismiss the second § 924(c) charge on double jeopardy grounds. At a hearing on the motion held on September 6, 2011, the district court denied the motions. (ECF No. 91.) On August 26, 2011, Oliver filed a second motion to sever his case from Brown's case. That motion, like the first, was denied by the district court. ( Id .)
A joint jury trial commenced on September 12, 2011. Oliver was represented by Craig W. Sampson ("Sampson"). At the close of the Government's evidence, defendants Brown and Oliver moved for judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure. The district court denied the motion. On September 14, 2011, the jury found both defendants guilty as charged in the superseding indictment.
The district court ordered preparation of a presentence investigation report ("PSR") for each defendant. The probation officer assigned to the case determined that Oliver's offense level was 28, and his criminal history category was VI, which yielded an advisory guideline range of 168-210 months' imprisonment for Counts One and Three. With respect to Count Two, Oliver faced a mandatory minimum of 120 months' incarceration; on Count Four, Oliver faced a mandatory minimum of 300 months' incarceration. On January 19, 2012, the district court sentenced Oliver to approximately 52 years of imprisonment (210 months' imprisonment concurrent on counts one and three; 120 months' imprisonment consecutive on count two, and 300 months' imprisonment consecutive on count 4).
On January 25, 2012, Oliver filed a Notice of Appeal with the United States Court of Appeals for the Fourth Circuit. On March 8, 2013, the Fourth Circuit affirmed Oliver's conviction and dismissed the appeal of his sentence. United States v. Winston Oliver and Warren Brown, 513 F.Appx. 311, 2013 WL 856704 (4th Cir. Mar. 8, 2013). Thereafter, Oliver filed a writ of certiorari to the United States Supreme Court. On April 29, 2013, Oliver's petition was denied.
On September 23, 2013, Oliver filed the instant § 2255 Motion. In his § 2255 Motion, Oliver alleges eight grounds for relief:
Ground One: Ineffective assistance of counsel because counsel deprived Oliver of the right to testify
Ground Two: Counsel was ineffective for failing to file notice of an alibi defense
Ground Three: Ineffective assistance of counsel for counsel's failure to raise the defense of entrapment during trial
Ground Four: The trial court erred in admitting unreliable hearsay statements during trial
Ground Five: Statements by the prosecutor during closing argument were improper and in violation of United States v. Bruton
Ground Six: The Government improperly charged Oliver with two counts in violation of 18 U.S.C. § 924(c)
Ground Seven: Oliver's due process rights were violated because the Government allowed false ...