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United States v. Carter

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

January 24, 2019

UNITED STATES OF AMERICA
v.
MARION W. CARTER, JR., Petitioner.

          MEMORANDUM OPINION

          M. HANNAH LAUCK UNITED STATES DISTRICT JUDGE.

         Marion W. Carter, Jr., a federal inmate proceeding pro se, submitted this motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence ("Pro se § 2255 Motion," ECF No. 109). Carter later moved to file supplemental pleadings and to add a claim pursuant to Johnson v. United States, 135 S.Ct. 2551 (2015). (ECF No. 119.) After the Court already had served the Government, and the Government had filed its initial response, the Court appointed counsel for Carter, and directed counsel to file "any amended § 2255 Motion that includes all claims [that Carter] wishes to raise by way of § 2255." (ECF No. 122, at 1.) Subsequently, counsel filed a "Motion for Leave to File Supplemental] Claims, Supportive Facts and Memorandum of Law in Support of § 2255," that, in accordance with its prior Memorandum Order, the Court construed as the Amended § 2255 Motion ("§ 2255 Motion," ECF No. 130-1; see ECF No. 135, at 1).[1] By Memorandum Order entered on February 20, 2018, the Court explicitly stated that the § 2255 Motion supplanted all other versions of the § 2255 motion or any supplements. (ECF No. 135.) In his § 2255 Motion, Carter raises the following claims for relief:[2]

Claim One: Counsel rendered ineffective assistance by "fail[ing] to investigate the veracity of the factual statements made in the warrant affidavits in order to challenge the validity of the warrant [and] the violation of 18 U.S.C. § 1623." (§ 2255 Mot. 1.)
Claim Two: "Failure to subpoena [Carter's] alibi witness in time for trial violat[ed] his Sixth Amendment right to compulsory process and effective assistance of counsel." (Id. at6.)[3]
Claim Three: "Intimidation of alibi witness, on behalf of the Government, violated [Carter's] right under the Sixth Amendment to compulsory process." (Id. at 8.)
Claim Four: "Relief should be granted [to Carter] under the ruling of Johnson v. [United States], 135 S.Ct. 2551 (2015)." (Id. at 10.)

         The Government has responded, arguing that Carter's claims lack merit. (ECF No. 136.) Carter has filed his Reply. (ECF No. 137.)[4] The matter is ripe for disposition. For the reasons stated below, the § 2255 Motion (ECF No. 130-1) will be DENIED.

         I. PROCEDURAL HISTORY

         On April 2, 2013, Carter was named in a seven-count Superseding Indictment charging him with three counts of robbery affecting commerce, in violation of 18 U.S.C. § 1951(a) ("Hobbs Act robbery") (Counts One, Three, and Five), possession of and brandishing a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c) (Counts Two, Four, and Six), and possession of ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (Count Seven). (Superseding Indictment 1-5, ECF No. 19.) The charges resulted from a November 2, 2012 robbery of the Baskin Robbins located at 6940 Forest Hill Avenue, the November 8, 2012 robbery of Fast Auto Loans located at 6150 Midlothian Turnpike, and the November 14, 2012 robbery of the Fas Mart located at 2107 Semmes Avenue. (See id; Criminal Compl. 3-6, ECF No. 1.) Carter moved to sever Count Seven from the remaining counts. (ECF No. 24.) However, the Court denied that motion. (ECF Nos. 35, 36.) Thereafter, on May 1, 2013, Carter pled guilty to Count Seven without a plea agreement. (ECF Nos. 44, 45.) On July 26, 2013, a jury found Carter guilty of Counts One through Five and not guilty of Count Six. (ECF No. 74, 1-3.) On October 28, 2013, the Court sentenced Carter to a total of 408 months of incarceration for Counts One through Five and Seven. (J. 3, ECF No. 84.) Carter appealed, challenging the sufficiency of the evidence for Counts One through Five. See United States v. Carter, 575 Fed.Appx. 149, 149 (4th Cir. 2014). The Fourth Circuit rejected these arguments and affirmed his convictions. Id. at 150-51. On December 11, 2015, Carter initiated the instant § 2255 proceedings.

         II. INEFFECTIVE ASSISTANCE OF COUNSEL

         A. Ineffective Assistance of Counsel Standard

         To demonstrate ineffective assistance of counsel, a convicted defendant must first show that counsel's representation was deficient, and, second, that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To satisfy the deficient performance prong of Strickland, a convicted defendant must overcome the "'strong presumption' that counsel's strategy and tactics fall 'within the wide range of reasonable professional assistance.'" Burch v. Corcoran, 273 F.3d 577, 588 (4th Cir. 2001) (quoting Strickland, 466 U.S. at 689). The prejudice component requires a convicted defendant to "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. In analyzing ineffective assistance of counsel claims, the Court need not determine whether counsel performed deficiently if the claim is readily dismissed for lack of prejudice. Id. at 697.

         B. Claim One

         In Claim One, Carter alleges that counsel rendered ineffective assistance by "fail[ing] to investigate the veracity of the factual statements made in the warrant affidavits in order to challenge the validity of the warrant [and] the violation of 18 U.S.C. § 1623."[5] (§ 2255 Mot. 1.) Carter also appears to fault counsel for failing to request a hearing under Franks v. Delaware, 438 U.S. 154 (1978), based on these alleged false statements. (§ 2255 Mot. 2.) Under the section called "Supporting Facts," Carter identifies three false declarations by investigating officers in support of the warrant affidavits. (Id. at 1-2.) The first alleged false declaration involves a statement made by Detective Jack Larry to the state magistrate. (Id. at 1.) The second alleged false declaration involves the same statement repeated by Special Agent Jeffrey Clark to the federal Magistrate Judge. (Id. at 1-2.) These two alleged false declarations pertain to the availability of certain portions of the security video from the robbery of Baskin Robbins on November 2, 2012. (Id.) The third alleged false declaration pertains to whether Special Agent Clark was actually present at the execution of the search warrant at Carter's residence. (Id. at 2.)

         1. Declarations Pertaining to the Security Video

         In a somewhat vague manner, Carter contends that:

Petitioner asserts that Detective Jack Larry of the Richmond Police Department falsely declared under oath to Magistrate Edward J. Sasser on November 18, 2012, that security video provided by the Baskin Robbins store showed the suspected unknown masked robber drove an older model white Isuzu Rodeo to commit the robbery. Then on July 25, 2013, Detective Larry inconsistently declared under oath [at trial] that he never possessed such video.
Petitioner further asserts that Special Agent Jeffrey Clark of the Bureau of ATF falsely declared under oath to Magistrate Judge David J. Novak on February 8, 2013, that security video provided by the Baskins Robbins store showed the suspected unknown masked robber drove an older model white Isuzu Rodeo to commit the robbery. This is the same statement fabricated in Detective Larry's warrant affidavit.

(§ 2255 Mot. 1-2.) Carter appears to argue that Detective Larry testified at trial that he never actually possessed the Baskin Robbins security video that depicted the Isuzu Rodeo. Carter argues that counsel rendered ineffective assistance when he "failed to investigate these factual statements as requested, denying [Carter] a request for Franks Hearing." (Id. at 2.)

         a. Summary of the Record

         As a preliminary matter, because Carter's factual presentation of his claim is confusing, the Court must parse the record to ascertain exactly in what context these alleged false statements were made. With respect to the first alleged false statement made by Detective Larry, it appears that on November 18, 2012, Detective Larry applied for a search warrant of Carter's home. (ECF No. 137-1, at 1.) That search warrant requested "[a]ny clothing worn during the robbery, any paperwork use[d] to plan or carry out the robbery, [and] any firearms or ammunition." (Id.) The search warrant first described facts related to a robbery at Fas Mart on November 14, 2012 that the Court need not recount here. (Id. at 4.) As relevant to this claim, Detective Larry swore to the following:

On 11-2-2012, the Baskin Robbins located at 6940 Forest Hill Ave. contacted police and reported that the business has been robbed at gunpoint by a single masked male. Security video provided by the business showed the suspect arrived on scene approximately 20 minutes prior to the robbery. The suspect drove into the Baskin Robbins parking lot and parked in the lot. The suspect exited his vehicle and walked over to the tree line beside the business. The suspect disappears from view in the tree line then returns to his vehicle and drives away from the lot. The security camera shows the suspect is driving a white older model Isuzu Rodeo. Approximately, 20 minutes later, the suspect exits the tree line on foot and walks directly to the Baskin Robbins. The suspect's clothing can be clearly seen on the security cameras. The suspect then robs the business with a small frame handgun and runs back into the tree line disappearing from the camera footage.
On 11-8-2012, The Fast Lane Auto Loans office located at 6150 Midlothian Tpke. contacted police and reported being robbed at gunpoint by a single masked male. The security footage showed that the suspect was wearing the same clothing as the suspect who robbed the Baskin Robbins four days prior. It also showed the suspect used a small frame handgun like the one used in the Baskin Robbins robbery. After robbing the business the suspect exits on foot and flees the scene.
In the three above listed incidents, Fas Mart at 2107 Semmes, Baskin Robbins at 6940 Forest Hill, and the Fast Auto Loans [at] 6150 Midlothian Turnpike the suspect wore the same clothing and used the same small frame handgun.
After the attempted robbery at the Fas Mart, the suspect vehicle was found to be a white Honda Accord Virginia license WFY-1633. This vehicle is registered to Enterprise Rental car. Enterprise records showed the vehicle was rented by a Marion W. Carter Jr. DMV records show that Mr. Carter owns a white 1997 Isuzu Rodeo and I observed this vehicle parked next to Mr. Carter's apartment building in the 400 block of Westover Hills Blvd on 11-16-2012 and 11-18-2012. The white Honda Accord rented by Mr. Carter was also found parked in the 400 Block of Westover Hills Blvd. several hours after the attempted robbery at the Fas Mart. A search of Mr. Carter['s] criminal history also showed that he is a seven[-]time convicted felon with a conviction for robbery and use of a firearm. On 11-6-12, Mr. Carter was involved in [a] motor vehicle crash while he was driving his white 1997 Isuzu Rodeo. Mr. Carter gave his address as 478 Westover Hills Blvd Apartment 205. Mr. Carter also gave the same address to Enterprise Rental Car when he rented the white Honda Accord. Mr. Cater [sic] height and weight are listed in the DMV database and Mr. Carter's height and weight match the description given by the victim/witnesses during the robberies.
Mr. Cater [sic] gives his address as 478 Westover Hills Blvd. [A]partment 205 and two of the vehicles used in the above robberies have been found parked at this address. A search of Mr. Carter's residence is needed in ...

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