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 Carter Tillery'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. 85). For the reasons set forth below, the Court DENIES the § 2255 Motion.
a. Factual Background
On the morning of August 1, 2009, Anna Cho ("Cho") was working alone at the Swan Cleaners in Petersburg, Virginia. An unmasked man entered the store, pulled a gun with a "long barrel" from his back, and pointed it toward her. Cho tried to pepper spray the man. But the man said, "Stop, lady, I will shoot you. Stop lady, I will shoot you."
Cho then dropped the pepper spray, opened the cash register, and raised her hands above her head. The man turned around and locked the store's front door. Cho then emptied the cash register-totaling approximately $50 to $100-and handed it to the man.
The man then ordered Cho to collect her personal bag and go to the back room of the small store. He pointed the gun at Cho as they walked to the back room. The man demanded more money from Cho, and she emptied her purse onto the floor and also gave him $6 from her pocket.
Then Cho and the man heard someone trying to open the front door of the dry cleaner. This caused the man to hurry, repeating his request for money and then ordered Cho to "strip it." The man pointed the gun at Cho and told her to strip her clothing. She removed all of her clothing except her underpants. The man then ordered Cho to kneel onto the ground with her forehead on the floor. He tied her hands behind her back with a phone cord and some of her clothes. All the while, Cho was apologizing to the man for pepper spraying him.
The man then left Cho and began trying to open doors and cabinets throughout the store. He reappeared wearing a ski mask over his face. He told Cho to count to 100 and call the police. The man grabbed Cho's personal keys and Apple laptop computer, and then fled out the back door. In total, Cho was with the man for ten or fifteen minutes before he donned a mask.
After the robbery, sometime during August 2009, a man came into Demontray Pulliam's ("Pulliam") Petersburg barbershop and offered to sell him an Apple laptop computer for $150. Pulliam accepted this offer. Pulliam had seen this man twice before and knew the man's brother personally.
The following month, Petersburg Police Detective Roosevelt Harris ("Detective Harris") received information that a laptop had been sold at Pulliam's barbershop. Pulliam provided the laptop to Detective Harris, who realized from the serial number and desktop folders that it was Cho's stolen Apple laptop. Pulliam identified Carter Tillery ("Tillery") as the man who sold him the laptop.
Two days later, on September 25, 2009, Detective Harris showed Cho a sequential photo array, and Cho identified Tillery as the robber.
b. Procedural Background
On August 4, 2010, a federal grand jury in the Eastern District of Virginia returned a two-count indictment against Tillery, alleging: (1) Hobbs Act robbery affecting commerce, in violation of 18 U.S.C. § 1951(a) (count one); and (2) using, carrying, and possessing a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1) (count two). (ECF No. 1.) On October 19, 2010, the grand jury returned a superseding indictment alleging the same two counts but with small changes to the pleading. (ECF No. 22.)
On December 14 and 15, 2010, Tillery was tried by a jury and convicted of both counts in the superseding indictment. Tillery was represented by Robert Wagner ("Wagner"). This Court sentenced Tillery on August 1, 2011 to 240 months' imprisonment on count one and 120 consecutive months' imprisonment on count two, to be followed by five years of supervised release. ( See ECF No. 61.) Tillery filed a timely notice of appeal to the United States Court of Appeals for the Fourth Circuit (the "Fourth Circuit"). (ECF No. 60.) Tillery was represented by Vaughan Jones ("Jones") on appeal. After hearing argument, the Fourth Circuit affirmed Tillery's conviction and sentence in a published opinion. United States v. Tillery, 702 F.3d 170 (4th Cir. 2012). Tillery then filed a petition for a writ of certiorari in the United States Supreme Court, which was denied on May 13, 2013. His subsequent petition for rehearing was denied on June 24, 2013.
Tillery filed the present § 2255 Motion on April 15, 2014. In his § 2255 Motion, Tillery alleges various grounds for relief:
Ground One: Ineffective assistance of counsel, which violated Tillery's Sixth Amendment rights
Claim A: Wagner was ineffective for failing to file a motion to dismiss the indictment because the robbery did not affect interstate commerce, as required by the Hobbs Act.
Claim B: Wagner was ineffective for failing to object to the Government's constructive amendment of the indictment by adducing evidence of the victim dry cleaner's additional locations.
Claim C: Wagner was ineffective for not objecting to the Court's comments to the jury that disclosing their numerical division would result in a mistrial.
Claim D: Wagner was ineffective for failing to object because the indictment was constructively amended when he was sentenced for brandishing a sawed-off shotgun.
Claim E: Wagner was ineffective for prohibiting Tillery from testifying at trial.
Claim F: Wagner was ineffective for failing to subpoena two witnesses.
Claim G: Wagner was ineffective for failing to call Special Agent Todd Fleming about interstate commerce.
Claim H: Wagner was ineffective for not moving to suppress the identification procedure.
Claim I: Wagner was ineffective for not objecting to the stipulation agreement about the custody of the telephone cords.
Claim J: Jones was ineffective for not raising on direct appeal that the Government engaged in misconduct by asking Tillery's victim to identify the firearm used to rob her.
Claim K: Wagner was ineffective for failing to file a motion to dismiss due to selective prosecution.
Claim L: Wagner was ineffective for failing to address the Court on the reading of the Hobbs Act.
Claim M: Jones was ineffective for not raising on direct appeal the admission of two sawed-off shotguns at trial.
Claim N: Jones was ineffective for not raising on direct appeal the validity of the jury instruction on interstate commerce.
Claim O: Jones was ineffective for not immediately notifying Tillery that his law license was suspended after the appellate brief was filed.
Claim P: Jones was ineffective for failing to raise on direct appeal that "attempt" should have been charged as a separate, distinct count.
Claim Q: Lewis was ineffective for failing to file a motion for rehearing en banc at Tillery's request.
Claim R: Lewis was ineffective for failing to file a motion for rehearing en banc because the Fourth Circuit made false statements of fact.
Claim S: Lewis was ineffective for allowing the Fourth Circuit to make a false statement of fact.
Claim T: Wagner was ineffective for allowing the Government to "merge other entities" in assessing interstate commerce.
Claim U: Jones was ineffective for failing to raise ineffective assistance of counsel claims against Wagner on direct appeal.
Claim V: Wagner was ineffective for advising Tillery that his prior convictions would have been admissible for purposes of impeachment
Ground Two: Under new Supreme Court law, Tillery is no longer a career offender.
Ground Three: Tillery is "actually innocent" of the robbery because the victim dry cleaner was not engaged in interstate commerce.
The United States filed its response in opposition on May 12, 2014 ("Gov'ts Resp.") (ECF No. 90) and Tillery subsequently filed a reply on May 22, 2014 ("Reply Mem.") ...