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Stevens v. United States

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

July 13, 2015

KEVIN STEVENS, JR., Petitioner,
v.
UNITED STATES OFAMERICA, Respondent. Original Criminal No. 2:LLCR73

MEMORANDUM OPINION AND FINAL ORDER

REBECCA BEACH SMITH, Chief District Judge.

This matter comes before the court on the Petitioner's, Kevin Stevens, Jr., pro se Amended Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence ("Motion"); filed on February 23, 2015. ECF No. 365.[1]

On January 16, 2015, the Petitioner filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 18 U.S.C. § 2255, subject to defect for failure to include two copies. ECF No. 359. On February 1, 2015, the court instructed the Petitioner to correct the defect within thirty (30) days. ECF No. 360. The Petitioner complied with this instruction on February 23, 2015, by submitting two copies of the operative Motion, which slightly amended his original submission. See ECF No. 365. On that same day, the Petitioner also filed a Motion for Leave of Court to Add to Original Pleadings ("Motion for Leave to Amend"); because the instant Motion differed slightly from the original motion, and the Petitioner "was unable to locate his original copy that he sent in" and the operative Motion added "a demonstrat[ion] of a closing argument that Counsel coul[d] have used in support." ECF No. 362. The court granted the Petitioner's Motion for Leave to Amend, see Order of Feb. 27, 2015, ECF No. 364, [2] and thus will proceed on the Motion filed February 23, 2015. On June 22, 2015, the Petitioner filed a Second Motion for Leave to Amend Original § 2255 Motion Pursuant to Federal Rule of Civil Procedure 15(c) ("Second Motion for Leave to Amend"). ECF No. 372. The court granted the Second Motion for Leave to Amend, see Order of June 24, 2015, ECF No. 373, and has considered the additional arguments contained therein in rendering this Opinion.[3]

I. BACKGROUND

The Petitioner and co-defendant Xavier Holley ("Holley") were tried by a jury. After a four-day jury trial, the Petitioner and Holley were both found guilty, on July 13, 2012, of all five counts of the Second Superseding Indictment. Count One charged the Petitioner with Conspiracy to Interfere with Commerce by Violence, in violation of 18 U.S.C. § 1951; Count Two charged the Petitioner with Attempt to Interfere with Commerce by Robbery, in violation of 18 U.S.C. §§ 1951-52; Count Three charged the Petitioner with Use and Carry of a Firearm During a Violent Crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i) & (c)(2); Count Four charged the Petitioner with Attempt to Interfere with Commerce by Robbery, in violation of 18 U.S.C. §§ 1951-52; and Count Five charged the Petitioner with Use of a Firearm Causing Death During a Violent Crime, in violation of 18 U.S.C. §924(c)(1)(A) & (j)(1)-(2). Second Superseding Indictment at 1-6, ECF No. 210.[4]

The Petitioner was sentenced on October 23, 2012, to the following: life imprisonment on Count Five; two hundred forty (240) months imprisonment on Count One, to be served concurrently; two hundred forty (240) months imprisonment on Count Two, to be served concurrently; sixty (60) months imprisonment on Count Three, to be served consecutively to all other counts; and two hundred forty (240) months imprisonment on Count Four, to be served concurrently. Stevens J. at 2, ECF No. 285. In effect, the Petitioner was sentenced to life plus sixty (60) months imprisonment.[5]

The Petitioner now challenges his conviction and sentence based on two claims of ineffective assistance of counsel. For the reasons set forth herein, the Motion is DENIED. [6]

A. Nature of the Crime

The conduct leading to the Petitioner's ultimate conviction stems from a failed attempt to rob the Gold Shop, a business in Portsmouth, Virginia. Second Superseding Indictment at 2. The Gold Shop specialized in the sale of jewelry and the purchase of precious metals from customers. Tr. of July 11, 2012 ("Day 2 Transcript"), at 92, ECF No. 318.[7] Evidence presented at trial established that on October 6, 2010, co-defendant Ronald Gober II ("Gober") drove the Petitioner and co-defendants Montarius Murry ("Murry") and Holley to the Gold Shop, using co-defendant Raneisha Sifford's ("Sifford") automobile. Id. at 227-30, 233-37.[8] Murry and the Petitioner, who was carrying a gun given to him by Holley, entered the Gold Shop with the intention of robbing the business. Tr. of July 12, 2012 ("Day 3 Transcript"), at 6-10, ECF No. 319. During the course of the robbery attempt, the Petitioner shot and killed Robert Nelson, a part-time employee of the Gold Shop. Id. at 10-13; 133-134; Day 2 Tr. at 142-47.

B. Pre-Trial Procedural History

1. TheFirst Indictment and Initial Appearances

On May 4, 2011, the Petitioner, along with three co-defendants - Murry, Holley, and Sifford - were charged in a five-count Indictment. ECF No. 6.[9] The Petitioner and Murry were originally charged with Counts One through Five; Holley was charged with Counts One, Four, and Five; and Sifford was charged with Counts One through Three. Id.[10] Count Five, the felony murder charge, is the key charge here, as it carried a sentence of death or life imprisonment, 18 U.S.C. § 924(j)(1), [11] and lies at the center of one of the Petitioner's claims of ineffective assistance of counsel. See Mot. at 4.[12]

The Petitioner and co-defendants Murry and Holley all made their initial appearances together on May 6, 2011, at which point they were informed of the charges against each of them and the statutory maximum sentences they could receive. See Minute Entry for Proceedings Held Before Mag. J. Miller on May 6, 2011. The Petitioner, Murry, and Holley were then arraigned together on these same charges on May 25, 2011. See Minute Entry for Proceedings Held Before Mag. J. Miller on May 25, 2011.

The Petitioner claims that, in his first substantive conversation with defense counsel, Emily Munn and David Good, he was asked whether he was willing to testify against Murry, whom, at the time, the United States believed to be the shooter. Mot. at 4. The Petitioner said that he was unsure at that point, ...


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