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United States v. Blackman

United States District Court, E.D. Virginia, Alexandria Division

June 17, 2015



LEONIE M. BRINKEMA, District Judge.

Khalil Blackman ("Blackman" or "movant"), proceeding pro se, has timely filed a Motion to Vacate Conviction under 28 U.S.C. § 2255 ("Motion to Vacate"), in which he raises numerous claims of ineffective assistance of counsel and prosecutorial misconduct. The government has filed an opposition to the motion and attached a declaration from Blackman's trial counsel; Blackman has filed a reply brief. Having reviewed the entire record, the Court finds no merit to Blackman's motion, which will be dismissed without the need for an evidentiary hearing.


A. Factual Background

In early 2011, Blackman entered into a conspiracy with three other individuals, Avery Bines, James Acker, and Michael Sylvester, to commit armed robbery. Tr. Bench Trial 162-63 (Feb. 4, 2013) [Dkt. No. 52]. Over the next ten months, Blackman and his co-conspirators planned and committed three armed robberies of delivery truck drivers working for Mark IV Transportation & Logistics, which served as a transportation contractor for Apple, Inc. Following each robbery, Blackman acted as the "fence"-the individual responsible for disposing of the stolen goods.

The first robbery took place in February 2011. Bines and Blackman waited in a van across the street from a Mark IV warehouse where a delivery truck was scheduled to be loaded with Apple products. Id. at 57, 107. Acker, armed with a gun, and Sylvester approached the Mark IV driver, forced the driver inside his truck at gunpoint, and ordered him to drive a short distance to a predetermined location, while Acker still held the gun to the driver's head. Id. at 57, 108. Bines and Blackman followed them to the scheduled meeting place and proceeded to unload the stolen products into the van while Acker bound the delivery truck driver and Sylvester acted as lookout. Id. at 58, 166-68. Blackman sold the stolen items and gave his co-conspirators their shares of the proceeds. Id. at 58, 169-70.

The second robbery took place in June 2011. Blackman again participated in the planning discussions, which included the planned use of a firearm. Id. at 59-60, 170-72. On the day of the robbery, Bines, Acker, and Sylvester tailed a Mark IV delivery truck to the Fair Oaks Mall in Fairfax County, Virginia. Id. at 60-61, 172-73. The truck driver made his delivery inside the mall and then left the mall premises. Id. at 24. Shortly thereafter, Sylvester intentionally drove the conspirators' vehicle into the Mark IV truck. Id. at 62-63, 173-74. When the Mark IV driver exited his truck to see what had happened, Acker forced him back into the truck at gunpoint, and Sylvester drove the truck to a second location. Id. at 25-27, 63-64. At that second location, Acker bound the truck driver's hands and Sylvester kept watch over the truck driver while Acker and Bines unloaded the Apple products. Id. at 29, 64, 179. Blackman later sold the stolen Apple goods and compensated his co-conspirators accordingly. Id. at 65-67, 180-82.

The final, and largest-scale, robbery took place in October 2011. In preparation, Blackman rented a U-Haul truck to transport the goods that they intended to steal, and Acker recruited three other individuals to aid in the robbery. Id. at 67-68, 185. All of the conspirators except for Blackman were present during the actual robbery. Id. at 68. During the course of the robbery, one of the conspirators struck the Mark IV driver in the head with a firearm to subdue him while some of the other conspirators unloaded goods from the delivery truck into the U-Haul truck. Id. at 69-70, 145-48, 186-187. Once again, Blackman fenced the stolen goods. Id. at 70-71, 189-90.

B. Procedural History

As a result of these events, Blackman, Acker, Bines, and Sylvester were arrested on a criminal complaint. Each of Blackman's three co-conspirators entered plea agreements under which they waived indictment, pleaded guilty to a one-count criminal information, [1] and agreed to cooperate with the government. The charge to which each pleaded guilty carried a mandatory minimum sentence of seven years imprisonment. Each conspirator received, among other penalties, a sentence of ten years imprisonment.[2] See United States v. Acker, No. 1:12-cr-291 (E.D.V.A. judgment entered Oct. 15, 2012); United States v. Sylvester, No. 1:12-cr-334 (E.D.V.A. judgment entered Oct. 15, 2012); United States v. Bines, No. 1:12-cr-293 (E.D.V.A. judgment entered Sept. 28, 2012).

In contrast, Blackman apparently declined a pre-indictment plea deal, retained Jonathan A. Simms ("Simms") as trial counsel, see Def.'s Mot. Vacate, Ex. 2, and was indicted on two counts on December 6, 2012. Count One charged him with conspiring from January 2011 to June 2012 to commit robbery, in violation of 18 U.S.C. § 1951(a). Indictment 1-4 [Mt. No. 14]. Count Two charged him with using, carrying, and brandishing a firearm during and in relation to a crime of violence from January 2011 through June 2012, in violation of 18 U.S.C. §§ 2 and 924(c). Id. at 5. Following the return of his indictment, Blackman declined two plea offers, waived a jury trial, and a one-day bench trial was held on February 4, 2013. The Court found Blackman guilty of both counts. Tr. Bench Trial 305. Blackman was sentenced on May 17, 2013, to 36 months on Count One and the mandatory minimum of 84 consecutive months on Count Two, for a total sentence of ten years imprisonment, the same term of imprisonment received by each of his co-conspirators. Blackman also received three years of supervised release on Count One and five years of supervised release on Count Two, to run concurrently. Lastly, he was ordered to pay a total of $136, 601.03 in restitution plus a $200 special assessment; no forfeiture was imposed.

Blackman was represented on appeal by Marvin D. Miller ("Miller").[3] His appeal raised two issues. First, he argued that there was no evidence that he aided and abetted the brandishing of a weapon during a crime of violence and, therefore, should not have been convicted on Count Two. Second, he argued that there was insufficient evidence to prove that there was one conspiracy encompassing all three robberies (Count One) rather than three separate conspiracies. The government cross-appealed the Court's decision not to impose a forfeiture judgment. In a published opinion, the Fourth Circuit affirmed both convictions, finding that the evidence of guilt was sufficient. See United States v. Blackman, 746 F.3d 137 (4th Cir. 2014). Specifically, the court held that Blackman's conviction on Count Two was appropriate under Pinkerton v. United States, 328 U.S. 640 (1946), which provides that a defendant is "liable for substantive offenses committed by a co-conspirator when their commission is reasonably foreseeable and in furtherance of the conspiracy, " and that "the evidence was plainly sufficient" to support his conviction on this count. Blackman, 746 F.3d at 141 (internal quotation marks omitted). The Fourth Circuit also found that "the evidence detailing the overlap of actors, methods, and aims in the three robberies was plainly sufficient to support the district court's finding of a single conspiracy" as charged in Count One. Id. at 142, n.1. The Fourth Circuit reversed only on the issue of forfeiture, remanding with directions for the Court to enter a forfeiture money judgment for $136, 601.03. See id. at 145.


In his Motion to Vacate, Blackman raises a number of claims falling into two broad categories. First, he claims that his Sixth Amendment rights were violated due to the ineffective assistance of both his trial and appellate counsel. Second, he claims that ...

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