Opinion
8:99CR114.
May 2, 2002
MEMORANDUM AND ORDER
Before the court is Filing No. 68, Manek Trotter's motion pursuant to 28 U.S.C. § 2255 (§ 2255) to set aside, vacate or correct sentence. In her motion, Trotter argues that her sentence should be set aside because of ineffective assistance of counsel. In Filing No. 72, the government answered Trotter, denying her claims. Upon review of the defendant's § 2255 motion, I conclude the motion should be denied.
Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Court states the following regarding initial review:
(b) Initial consideration by judge. The motion, together with all the files, records, transcripts, and correspondence relating the judgment under attack, shall be examined promptly by the judge to whom it is assigned. If it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the movant be notified. Otherwise, the judge shall order the United States Attorney to file an answer or other pleading within the period of time fixed by the court or to take such other action as the judge deems appropriate.
BACKGROUND
On August 18, 1999, the government filed an indictment, Filing No. 16, charging Trotter and Walter Poydras with three counts of bank robbery and two counts of brandishing a weapon during a crime of violence. Trotter pleaded guilty to Counts II and III of the indictment. Included in the petition to enter a plea of guilty, Filing No. 48, Trotter noted that she understood the maximum punishment as 20 years for Count II and seven years for Count III to be served consecutive to Count II. During the negotiation of her plea agreement, Trotter was represented by counsel.On March 9, 2000, this court sentenced Trotter to 70 months on Count II, charging her with the bank robbery, and 84 months on Count III, charging her with brandishing a weapon during a crime of violence. During the plea colloquy, the court asked Trotter, "And there was a gun involved, is that right?" Trotter responded, "Yes, there was." Filing No. 67 at 11:14-16. At sentencing, Trotter's attorney objected to the probation officer's designation of a criminal history category III and the insignificant reduction for acceptance of responsibility. Trotter's attorney did not file a direct appeal of her sentence.
On September 20, 2000, Trotter submitted a letter to this court requesting reconsideration of her sentence. On October 3, 2000, Trotter filed the present motion. Filing No. 68. In support of her motion, Trotter claims that she entered into a plea of guilty "unknowingly and unintelligently" as a result of ineffective assistance of counsel. Filing No. 68 at 5. Specifically, Trotter claims that her attorney failed to inform her of the elements constituting a violation of 18 U.S.C. § 924(c).
ANALYSIS
Procedural Default
A defendant who files a motion pursuant to § 2255 has the burden of establishing by a preponderance of the evidence that she is entitled to relief. David v. United States, 134 F.3d 470, 474 (1st Cir. 1998); Holloway v. United States, 960 F.2d 1348, 1354 (8th Cir. 1992). 28 U.S.C. § 2255 provides in part:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move that court which imposed the sentence to vacate, set aside or correct the sentence.
If the defendant failed to raise the claims on direct appeal, the claims are procedurally defaulted. Reid v. United States, 976 F.2d 446, 447-48 (8th Cir. 1993). Here, Trotter did not file a direct appeal.
However, a petitioner may avoid procedural default if she can show cause for the failure to raise an issue on appeal and actual prejudice from such failure. Matthews v. United States, 114 F.3d 112, 113 (8th Cir. 1997); see also United States v. Frady, 456 U.S. 152, 162-65 (1982). One method of showing cause and prejudice that may excuse a procedural default is a claim of ineffective assistance of counsel. See Edwards v. Carpenter, 529 U.S. 446, 451 (2000) (noting that the "assistance must have been so ineffective as to violate the Federal Constitution").
Ineffective Assistance of Counsel
In Trotter's supporting brief, she argues that her counsel was ineffective at the change of plea hearing and sentencing. Specifically, Trotter contends that counsel's inadequacy caused her to enter into a plea unintelligently and unknowingly.
To prevail on a claim of ineffective assistance of counsel, the defendant must show the performance of her attorney was deficient and the deficient performance prejudiced her defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996). To make the first portion of this showing, defendant must show her "counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. To make the second portion of this showing, defendant must show "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.
When the court assesses an attorney's alleged deficient performance, it must determine whether the attorney provided reasonably effective assistance. Id. at 687. While representation of a criminal defendant entails certain basic duties such as the duty of loyalty, the duty to avoid conflicts of interest, the duty to advocate the client's cause, the duty to consult with the defendant on important decisions, the duty to keep the defendant informed of important developments, and the duty to apply such skill and knowledge as will render the trial a reliable adversarial testing process, the court's evaluation of an attorney's conduct must be considered under all circumstances. Id . at 688. Judicial scrutiny of counsel's performance must be highly deferential. Id. at 689. Actual ineffective assistance claims alleging a deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice.
In the context of guilty pleas and claims of ineffective assistance of counsel, in order for the defendant to show prejudice, she must show that "there is a reasonable probability that, but for counsel's errors, [s]he would not have pleaded guilty and would have insisted on going to trial." Thomas v. United States, 27 F.3d 321, 325 (8th Cir. 1994) (quoting Hill v. Lockhart, 474 U.S. 52, 58-59 (1985)). Trotter claims that counsel failed to inform her that § 924(c) required that she actually use the weapon during the commission of the crime. Because of counsel's inadequate representation, Trotter argues that her plea of guilty to a violation of § 924(c) was made unintelligently and unknowingly.
Section 924(c) provides the following:
Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime . . . for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime. . . .
(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years.18 U.S.C. § 924(c). Trotter's claim that a conviction under § 924 required proof of actual use is unavailing. In addition to actual use, a defendant can be liable under § 924(c) as either an aider or abetter or under a theory of constructive possession. A codefendant can be convicted of a firearm charge in an armed robbery even if she was not the individual brandishing the weapon. See United States v. Simpson, 979 F.2d 1282, 1285 (8th Cir. 1992) (codefendant convicted of firearm charge under aider and abetter theory); see also, United States v. Moore, 936 F.2d 1508, 1524-25 (7th Cir. 1991) (codefendant who drove getaway car during bank robberies held liable under § 924 under aiding and abetting theory).
An aiding and abetting charge "is an alternative charge in every count, whether explicit or implicit." United States v. Clark, 980 F.2d 1143, 1145 (8th Cir. 1992).
To aid and abet a violation of § 924, the defendant must, "before or at the time the crime was committed," (1) "have known the crime" of use of a weapon was being committed; (2) "have knowingly acted in some way for the purpose of [causing], [encouraging], [aiding] the commission of the use of a weapon"; and (3) "have [intended] [known]" that the weapon be used in furtherance of the crime. Eighth Circuit Model Jury Instructions, 5.01. Trotter claims that she did not know Poydras planned to use a weapon during the robbery. Her claim is supported by the record. In the plea agreement, Trotter states, "[U]nfortunately [one] of the group had a gun I was unaware of." Filing No. 48 at 8. The probation officer, however, misquoted her statement in the presentence report. It reads, "[U]nfortunately, one of the group had a gun I was aware of." Presentence Report at 5. Trotter's attorney did not object to the misstatement.
However, these errors were not prejudicial to Trotter. Her knowledge can be inferred from presence during Poydras's use of a firearm. See United States v. Taylor, 226 F.3d 593, 597 (7th Cir. 2000). Even if Trotter did not know Poydras intended to use a weapon before the robbery, her presence while Poydras brandished the gun is evidence of her knowledge of the firearm.
A defendant must also act with the intent to further the crime. Trotter acted to further the use of the weapon when she continued to participate in the robbery, including attempting to retrieve the money from the robbery subsequent to Poydras brandishing the gun. See United States v. Morrow, 977 F.2d 222, 231 (6th Cir. 1992) (defendant was a beneficiary of the firearm being present). It would be illogical to find that Trotter did not intend the use of a firearm after she continued to take part in the armed robbery. See United States v. Woods, 148 F.3d 843, 846 (7th Cir. 1998) (a defendant "cannot knowingly aid an armed bank robbery, but merely intend to aid an unarmed bank robbery.").
Thus, Trotter's claim that her attorney's failure to inform her of the applicable law constituted ineffective assistance is without merit. Trotter fails to show a reasonable probability that without the errors alleged, she would have pleaded not guilty and would have insisted on a trial. See Thomas v. United States , 27 F.3d 321, 325 (8th Cir. 1994). Accordingly, Trotter's § 2255 motion is hereby dismissed.
THEREFORE, IT IS ORDERED:
(1) Defendant's motion to vacate sentence and conviction pursuant to Title 28 U.S.C. § 2255, Filing No. 68, is denied;
(2) This action is summarily dismissed with prejudice pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings in the United States District Courts; and
(3) A separate judgment of dismissal with prejudice will be entered in accordance with this Memorandum and Order.