Opinion
NO. 3-98-CR-0370-T, NO. 3-02-CV-2132-M
December 12, 2003
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Defendant Mark Julian Edmonds, by and through his court-appointed counsel, has filed a motion to correct, vacate, or set aside his sentence pursuant to 28 U.S.C. § 2255. For the reasons stated herein, the motion should be denied.
I.
Defendant was convicted of unlawful receipt of ammunition by a felon in violation of 18 U.S.C. § 922(g)(1) and 924(e)(1). Punishment was assessed at 327 months confinement followed by supervised release for a period of five years. His conviction and sentence were affirmed on direct appeal. United States v. Edmonds, No. 00-10488 (5th Cir. Mar. 13, 2001). The United States Supreme Court denied a petition for writ of certiorari. United States v. Edmonds, 121 S.Ct. 601 (2001). Defendant now seeks post-conviction relief under 28 U.S.C. § 2255.
While his petition for writ of certiorari was pending before the Supreme Court, defendant filed a pro se motion for relief from judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. The magistrate judge has recommended that this motion be denied. United States v. Edmonds, No. 3-98-CR-370-M (N.D. Tex. Feb. 7, 2003), obj. pending.
II.
In three grounds for relief, defendant contends that he received ineffective assistance of counsel because his lawyer: (1) failed to raise a meritorious speedy trial claim on direct appeal; (2) did not timely file a motion for rehearing; and (3) failed to object to the calculation of his offense level under the sentencing guidelines.
At the conclusion of the evidentiary hearing, defendant orally informed the court of his desire to assert additional claims that were abandoned by counsel in his amended section 2255 motion. However, defendant is not entitled to hybrid representation in this proceeding. Nor does he have a constitutional right to compel his court-appointed lawyer to press certain claims if counsel, as a matter of professional judgment, decides not to present those points. See Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct 3308, 3313, 77 L.Ed.2d 987 (1983).
A.
Defendant argues that he received ineffective assistance of counsel on appeal because his lawyer did not challenge his conviction based on a violation of the Speedy Trial Act. According to defendant, such a claim likely would have been a "dead bang" winner and, if successful, would have prevented his prosecution on federal ammunition charges.1.
The Sixth Amendment to the United States Constitution guarantees the effective assistance of counsel at all critical stages of a criminal proceeding. This includes the effective assistance of counsel on appeal. See Penson v. Ohio, 488 U.S. 75, 79-80, 109 S.Ct. 346, 349-50, 102 L.Ed.2d 300 (1988). In order to obtain post-conviction relief due to ineffective assistance of appellate counsel, a defendant must satisfy the two-prong test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Smith v. Robbins, 528 U.S. 259, 285, 120 S.Ct. 746, 764, 145 L.Ed.2d 756 (2000). The defendant first must demonstrate that counsel's performance fell below an objective standard of reasonableness. Id., 120 S.Ct. at 764, citing Strickland, 104 S.Ct. at 2064. Defendant then must show how this deficiency prejudiced his appeal. Id., citing Strickland, 104 S.Ct. at 2068.
"The Constitution does not require appellate counsel to raise every nonfrivolous ground that might be pressed on appeal." Ellis v. Lynaugh, 873 F.2d 830, 840 (5th Cir.), cert. denied, 110 S.Ct. 419 (1989). Instead, counsel should winnow out weaker arguments and focus on "one central issue if possible, or at most on a few key issues." Jones v. Barnes, 463 U.S. 745, 751-52, 103 S.Ct. 3308, 3313, 77 L.Ed.2d 987 (1983). Where, as here, counsel files a merits brief but fails to raise a particular claim or claims, it will be difficult for a defendant to demonstrate that his attorney was incompetent. Smith, 120 S.Ct. at 765. "[O]nly when ignored issues are clearly stronger than those presented will the presumption of effective assistance of counsel be overcome." Id., quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986).
2.
A brief recitation of the procedural history of the underlying criminal case is necessary to the disposition of this claim. On June 25, 1997, Garland police officers were dispatched to investigate a residential burglary. Defendant was found two blocks from the crime scene and matched the description of the suspect. Officers detained him for questioning and searched a bag in his possession. Among the items found in the bag were a shotgun and four shotgun shells. Defendant, who was a suspect in two other burglaries, was arrested and held in state custody pending the disposition of the other burglary cases.
On November 4, 1998, defendant was indicted by a federal grand jury on one count of possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1) and 924(e)(1). Defendant had an initial appearance in federal court on November 20, 1998 and was arraigned on December 3. 1998. Thereafter, on December 14, 1998, counsel filed a motion to suppress the gun and ammunition seized by state law enforcement authorities. A suppression hearing was held on January 4. 1999. After considering the evidence and additional submissions by the parties, the trial court granted the motion on April 28, 1999. Eight days later, the government filed a motion for reconsideration. Defendant responded to the motion on May 19, 1999. On July 8, 1999, the trial court granted the government's motion for reconsideration, withdrew its prior order, and denied the motion to suppress. The case was originally set for trial on August 2, 1999, but was postponed three times until December 6, 1999.
These postponements were the result of two continuances requested by defendant and circumstances requiring the appointment of substitute counsel.
On November 17, 1999, defendant filed a motion to dismiss the indictment because he was not tried within 70 days of his initial appearance as required by the Speedy Trial Act, 18 U.S.C. § 3161, et seq. At the time the motion was filed, 362 days had elapsed since defendant first appeared in federal court. However, the judge excluded certain periods of delay in computing the time within which trial must commence. This included: (1) the time from December 14, 1998 to April 28, 1999, a period of 135 days, while defendant's motion to suppress was under advisement; (2) the time from May 6, 1999 to July 8, 1999, a period of 63 days, while the government's motion for reconsideration was pending; and (3) the time from July 28, 1999 to November 22, 1999, a period of 117 days, due to multiple continuances requested by the defendant. Based on these calculations, the trial court found no speedy trial violation because "only 53 days of non-excludable time have elapsed since Edmonds first appeared before the Court[.]" United States v. Edmonds, No. 3-98-CR-370-T, op. at 4 (N.D. Tex. Nov. 22, 1999).
The case proceeded to trial on December 6, 1999. When the jury was unable to reach a unanimous verdict, the court declared a mistrial and dismissed the indictment on December 7, 1999. The next day, the government filed a three-count superseding indictment charging defendant with: (1) possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1) and 924(e)(1); (2) receipt of ammunition by a felon in violation of 18 U.S.C. § 922(g)(1) and 924(e)(1); and (3) receipt and possession of an unregistered firearm in violation of 26 U.S.C. § 5845(a) (e), 5861(d), and 5871. Following a jury trial on February 14-16, 2000, defendant was convicted of unlawful receipt of ammunition, a charge not contained in the earlier indictment. The jury acquitted him of all other charges. On May 4, 2000, the trial court sentenced defendant to 327 months confinement followed by supervised release for a period of five years. A final judgment was entered on May 11, 2000.
Defendant appealed his conviction and sentence. Through his attorney, defendant raised two claims on direct appeal: (1) the trial court erred in denying his motion to suppress; and (2) the superseding indictment was multiplicitous and the result of vindictive prosecution. Both claims were summarily denied by the Fifth Circuit. United States v. Edmonds, No. 00-10488 (5th Cir. Mar. 13, 2001). Although counsel attempted to file a motion for rehearing, it arrived one day late and was rejected by the clerk. ( See Def. Sec. Am. Mot., Exhs. 6 7).
3.
In his first ground for relief, defendant criticizes his attorney for failing to raise a speedy trial claim on direct appeal. The Speedy Trial Act requires that a defendant be tried within 70 days of indictment or of the day he first appears before a federal judicial officer, whichever is later. 18 U.S.C. § 3161(c)(1). If more than 70 days elapse between this date and the trial, the "indictment shall be dismissed on motion of the defendant." Id. § 3162(a)(2). However, certain delays are excluded by statute from this calculation. See id. § 3161(h). One such provision excludes "delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion." Id. § 3161(h)(1)(F). "Once a hearing has been held on a motion and all necessary additional materials submitted to the court, or once a motion not requiring a hearing is filed along with necessary supporting materials, § 3161(h)(1)(J) limits the excluded period to thirty days." United States v. Bermea, 30 F.3d 1539, 1566 (5th Cir. 1996), cert. denied, 115 S.Ct. 1113 (1995), and cert. denied, 115 S.Ct. 1825 (1995) (citing cases). See also United States v. Grosz, 76 F.3d 1318, 1324 n. 6 (5th Cir.), cert. denied, 111 S.Ct. 167 (1996) (pendency of motion held "under advisement" does not automatically toll speedy trial clock under 18 U.S.C. § 3161(h)(1)(F)).
In calculating the 70-day period under the Speedy Trial Act, the trial court excluded 135 days from December 14, 1998 to April 28, 1999 during which defendant's motion to suppress was pending, Edmonds, No. 3-98-CR-370-T, op. at 3. The court also excluded from its calculations the 63-day period from May 6, 1999 to July 8, 1999 during which the government's motion for reconsideration was under advisement. Id. This was error. The Act limits to 30 days any extension "reasonably attributable to any period . . . during which any proceeding concerning the defendant is actually under advisement by the court." 18 U.S.C. § 3161(h)(1)(J); see also United States v. Jones, 56 F.3d 581, 583-84 (5th Cir. 1995). Thus, the speedy trial clock only should have been tolled from December 14, 1998 to February 8, 1999, 30 days after the hearing on defendant's motion to suppress, and from May 6, 1999 to June 18, 1999, 30 days after defendant filed his response to the government's motion for reconsideration. Because the trial court improperly tolled this period for 79 more days until the motion to suppress was decided on April 28, 1999, and for 20 more days until the motion for reconsideration was decided on July 8, 1999, defendant's speedy trial rights were violated.
An evidentiary hearing was held on December 11, 2003 to determine why counsel did not raise a speedy trial claim on direct appeal. At this hearing, William Hughey, who represented defendant at trial and on appeal, offered no strategic or tactical reason for failing to appeal on this ground. In fact, Hughey candidly admitted that his failure to raise a speedy trial claim was an "oversight." The government offered no controverting evidence. Instead, it argues that even if defendant's speedy trial rights were violated, such error does not vitiate his conviction for unlawful receipt of ammunition, a charge not contained in the earlier indictment. Defendant counters that because both the original firearm count and the superseding ammunition count arose out of the same criminal episode, the ammunition count could not have survived dismissal of the first indictment.
Assuming arguendo that the double jeopardy clause precludes multiple prosecutions for unlawful possession of a firearm and unlawful receipt of ammunition where the guns and ammunition were obtained at the same time, this bar would apply to defendant only if the earlier indictment had been dismissed with prejudice. The court is not convinced that such a sanction was warranted in this case. The decision whether to dismiss an indictment with or without prejudice for a speedy trial violation is "left to the guided discretion of the district court." United States v. Taylor, 487 U.S. 326, 335, 108 S.Ct. 2413, 2418, 101 L.Ed.2d 297 (1988), citing 18 U.S.C. § 3162(a)(1). Given the seriousness of the offense and the absence of any intentional or dilatory conduct on the part of the government, it is highly unlikely that either the trial court or the court of appeals would have dismissed the earlier indictment with prejudice. Thus, the government would have been allowed to reprosecute the defendant on the firearm count and bring a new ammunition charge in a superseding indictment.
At least six circuits, including the Fifth Circuit, have held that the simultaneous possession of firearms and ammunition cannot stand as distinct units of prosecution under 18 U.S.C. § 922(g)(1). See United States v. Keen, 96 F.3d 425, 433 (9th Cir. 1996); United States v. Hall, 77 F.3d 398, 402 (11th Cir. 1996); United States v. Berry, 977 F.2d 915, 919 (5th Cir. 1992); United States v. Throneburg, 921 F.2d 654, 656-57 (6th Cir. 1990); United States v. Pelusio, 725 F.2d 161, 168-69 (2d Cir. 1983); United States v. Oliver, 683 F.2d 224, 233 (7th Cir. 1982). But see United States v. Peterson, 867 F.2d 1110, 1115 (8th Cir. 1989) (upholding multiple convictions under 18 U.S.C. § 922(g)). Although separate convictions are lawful where the government proves that the defendant received firearms and ammunition at different times or stored them in different locations, the facts of this case do not support such a conclusion. At trial, defendant testified that his brother-in-law showed him a shotgun which he believed to be an antique. Because defendant knew he was not allowed to possess a firearm, he agreed to help his brother-in-law sell the gun to someone at work. Defendant admitting giving his brother-in-law permission to use his bag to carry the gun. When asked about the shotgun shells, defendant responded:
I didn't know anything about the shells. When I told [the brother-in-law] he could use my bag to carry the gun, I went ahead in the bedroom and to gather my belongings for my day at work. That's when I assumed that the gun was put in the bag because when I came out of the bedroom, put it on his shoulder. We were ready to go. It was never discussed. The shells were never brought to my attention.
(Trial Tr-II at 108-09). Defendant went on to testify that he first learned about the shells when he was stopped by the police later that day and his bag was searched. ( Id. at 109-10). In light of this evidence, the court is unable to conclude that defendant received the shotgun and ammunition at different times.
In sum, defendant has failed to demonstrate prejudice as a result of counsel's failure to raise a speedy trial claim on direct appeal. This ground for relief should be overruled.
B.
In a related ground, defendant complains that his attorney failed to timely file a motion for rehearing in the court of appeals. This claim fails for two reasons. First, there is no constitutional right to effective assistance of counsel at the rehearing stage. See Clark v. Johnson, 227 F.3d 273, 283 (5th Cir. 2000), cert. denied, 121 S.Ct. 1129 (2001); Jackson v. Johnson, 217 F.3d 360, 364-65 n. 21 (5th Cir. 2000). Second, defendant has failed to articulate a basis upon which rehearing would have been granted. The mere fact that defendant instructed his attorney to file a motion for rehearing and that the motion was filed one day late does not merit post-conviction relief.
The court notes that counsel's failure to timely file a motion for rehearing in the court of appeals did not prejudice defendant's right to seek further review by way of certiorari to the United States Supreme Court. See S.Ct. R. 13-1 (petition for writ of certiorari must be filed within 90 days from date of judgment).
C.
Finally, defendant alleges that he received ineffective assistance of counsel because his attorney failed to object to an offense level of 34 instead of 33. Defendant was sentenced as an armed career criminal tinder 18 U.S.C. § 924(e). The applicable sentencing guideline in effect at the time the offense was committed provides, in pertinent part:
(a) A defendant who is subject to an enhanced sentence under the provisions of 18 U.S.C. § 924(e) is an armed career criminal.
(b) The offense level for an armed career criminal is the greatest of:
* * * *
(3)(A) 34, if the defendant used or possessed the firearm or ammunition in connection with a crime of violence or controlled substance offense, as defined in § 4B1.2(a), or if the firearm possessed by the defendant was of a type described in 26 U.S.C. § 5845(a); or
(B) 33, otherwise.
U.S.S.G. § 4B1.4. In its presentence report, the probation department concluded that a base offense level of 34 was appropriate because "the ammunition, for which the defendant is convicted, was in the same bag as the weapon, along with items taken in other burglaries. The defendant was convicted in state court for those burglaries." (PSR at 3, ¶ 13) (emphasis added). Defendant correctly points out that he was not convicted of burglary in Texas state court. Instead, he pled guilty to criminal trespass, a Class A misdemeanor, which is not a "crime of violence." ( See id. at 5, §§ 26 27).
Defendant now criticizes his attorney for failing to object to the presentence report on this ground. However, the record shows that counsel did object to the base offense level calculation under section 4B1.4. At the sentencing hearing, counsel argued:
Your Honor, one of the objections that we would pose to the Court dealt with the possession of a weapon. I think our argument that we presented to the Court in reference to a weapon being present was the fact that evidentially it would be speculation that the alleged two burglaries that were reduced to misdemeanors, that at the point in time those particular matters were committed that Mr. Edmonds had in his possession a firearm.
In particular, one of the incidents that was alleged was actually on a date before the particular arrest than the case that's before the Court — that we're before the Court today on.
And it's still our position that evidentially there is not any supporting testimony that would support the fact that an offense was committed where Mr. Edmonds had in his possession a firearm.
(Sent. Tr. at 3) (emphasis added). The objection was overruled by the trial court. ( Id. at 4). Whatever the propriety of this ruling, it is clear that counsel timely objected to the presentence report on the ground that defendant had not been convicted of the burglaries.
The court does not mean to suggest that the trial court should have sustained this objection. In order to qualify as a level 34 offender, the defendant must use or possess a firearm or ammunition " in connection with a crime of violence." U.S.S.G. § 4B1.4(b)(3) (emphasis added). A conviction is not necessary. Defendant was charged by state authorities with burglary of a habitation, a crime of violence. It is of no consequence for sentencing purposes that he pled guilty to the lesser included offense of criminal trespass.
RECOMMENDATION
Defendant's motion to correct, vacate, or set aside sentence should be denied.