Opinion
Criminal Case No. 4:99-CR-175-P and (Civil Action No. 4:02-CV-008-P)
May 31, 2002
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636 (b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions, and Recommendation of the United States Magistrate Judge are as follows:
I. FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE
This is a motion to vacate by a federal prisoner pursuant to 28 U.S.C. § 2255.
B. PARTIES
The Movant, Brenson Stovall, Reg. No. 4009-077, is a federal prisoner incarcerated in the Federal Correctional Institution located at Beaumont, Texas. The Respondent is the United States of America.
C. PROCEDURAL HISTORY
On August 11, 1999, Stovall was charged in a three-count indictment with a July 26, 1999 robbery, using and carrying a firearm during the robbery, and brandishing a firearm during the robbery. 18 U.S.C. § 924 (c)(1)(A)(i)-(ii), 1951. (1 R. at 21-23.) A superceding, 16-count indictment was returned on September 16, 1999, charging Stovall with five separate robberies, occurring on November 3, 1996, November 21, 1997, January 29, 1998, December 18, 1998, and July 26, 1999, as well as corresponding firearm violations during the robberies. Id. §§ 924(c)(1)(A)(i)-(iii), 1951. (Id. at 89-97.) The grand jury returned a second superceding indictment on December 21, 1999, which corrected two of the alleged dates. (Id. at 110-18.) On February 3, 2000, a jury convicted Stovall of the robberies and firearm charges alleged in counts 1-12, but acquitted him of the crimes charged in counts 13-16, which involved the December 18, 1998 robbery. (Id. at 243-45.) On April 26, 2000, the trial court sentenced Stovall to concurrent 72-month terms for the four robberies (counts 1, 4, 7, and 10) and a consecutive 84-month term for brandishing a firearm during the July 26, 1999 robbery (count 3). (2 R. at 265.) The trial court also sentenced Stovall to 20-year terms of imprisonment for using and carrying a firearm during the November 3, 1996 robbery, the November 21, 1997 robbery, and the January 28, 1998 robbery (counts 5, 8, and 11), to run consecutively to the robbery sentences. (Id.) The trial court further ordered Stovall to pay $57,555.66 in restitution. (Id. at 268.)
On September 20, 2000, Stovall filed a pro se motion for new trial based on "newly discovered evidence" that trial counsel had advised him not to testify even though he would have testified that he had no knowledge of a weapon or use of a weapon that affected interstate commerce. (1 Supplemental R. at 2.) He further argued that he "discovered" on July 28, 2000 that the indictment did not specify a particular weapon, which violated Apprendi. (Id. at 2-3.) The trial court denied Stovall's motion on October 5, 2000 because Stovall's allegations did not implicate newly-discovered evidence, which rendered his new trial motion untimely. FED. R. CRIM. P. 33. (Id. at 22-24.)
Apprendi v. New Jersey, 530 U.S. 466 (2000).
Through counsel, Stovall timely appealed the trial court's judgment. (2 R. at 272.) Stovall argued that the trial court erred by not suppressing his statement to law enforcement, the trial court erred by not dismissing the case for lack of jurisdiction and venue, the government failed to prove the loss amounts associated with the robberies, and the jury's verdict was inconsistent. (Gov't 2/26/2002 Resp. at 2.) The Fifth Circuit Court of Appeals affirmed the trial court's judgment, and the Supreme Court denied certiorari. United States v. Stovall, No. 00-10486, 252 F.3d 1355 (5th Cir. Mar. 26, 2001) (unpublished table opinion), cert. denied, 122 S.Ct. 192 (2001).
Stovall separately appealed the denial of his pro se motion for new trial, claiming that counsel was ineffective for failing to object to the indictment and for advising him not to testify at trial. (Id. at 3.) The Fifth Circuit Court of Appeals dismissed the appeal as frivolous. United States v. Stovall, No. 00-11197, 273 F.3d 1101 (5th Cir. Aug. 23, 2001) (unpublished table opinion).
Stovall has filed a motion for post-conviction relief with supporting memorandum of law and an amended motion. The government has filed a response to both the original motion and the amended motion. Stovall has filed a reply.
D. Issues
Stovall argues that counsel was constitutionally ineffective because he failed to:
1. object to the trial court's lack of jurisdiction to sentence him on grounds and enhancement penalties not alleged in the indictment, which violated Apprendi, and
2. object to the trial court's failure to group counts 3, 5, 8, and 11 for sentencing.
E. DISCUSSION 1. Ineffective Assistance of Counsel
The Sixth Amendment guarantees a defendant the right to the effective assistance of counsel. U.S. CONST. amend. VI. A claim of ineffective assistance of counsel is measured under a two-pronged standard by which a petitioner must show (1) that counsel's performance was deficient in that the errors made were so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment and (2) prejudice by demonstrating that there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). To determine deficient performance, a reviewing court must strongly presume that trial counsel rendered adequate assistance and that the challenged conduct was the product of a reasoned trial strategy. Id. at 690.a. Apprendi violation
Stovall argues that counsel was ineffective for failing to ensure that he was sentenced only on issues that had been pleaded in the indictment and found true by a jury. In other words, Stovall contends that the trial court had no jurisdiction to sentence him to 20-year consecutive terms for using and carrying a firearm during three of the robberies because the indictment did not "give fair notice of enhancement penalties and specific type of firearm." (Mot. to Vacate Supp. Mem. at 1.) He contends this violated Apprendi.
Stovall additionally argued that the trial court lacked jurisdiction to sentence him on count 3, which charged him with brandishing a firearm during one of the robberies. (Mot. to Vacate Supp. Mem. at 1.) However, he agrees there is no Apprendi violation with this count. (Movant Reply at 1.) Thus, this claim has been abandoned, and this court will not address it.
In brief, the United States Supreme Court in Apprendi held that, with the exception of prior convictions, any fact that increases the penalty for a crime beyond the maximum statutory penalty must be submitted to the jury and proved beyond a reasonable doubt. Apprendi, 530 U.S. at 490; see also United States v. Nordby, 225 F.3d 1053, 1057 (9th Cir. 2000) (commenting that Apprendi is the latest in a series of cases in which the Supreme Court has expressed a heightened concern that the determination of sentencing factors' by a judge using a preponderance-of-the-evidence standard implicates the accused's right to due process under the Fifth Amendment and right to a jury trial under the Sixth Amendment).
But Apprendi is not applicable on collateral review. Claims under Apprendi are barred under the rule announced in Teague v. Lane, 489 U.S. 288 (1989). Teague generally prohibits the application of new rules of criminal procedure on collateral review. Id. at 310. There are two exceptions to the Teague bar, however. Id. at 307. "First, a new rule should be applied retroactively if it places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe. Second, a new rule should be applied retroactively if it requires the observance of those procedures that . . . are "implicit in the concept of ordered liberty." Id. (quoting Mackey v. United States, 401 U.S. 667, 692-93 (1971)). Whether an Apprendi challenge raised in an initial § 2255 motion is barred pursuant to Teague is an open question in the Fifth Circuit. However, the District Courts in the Northern District of Texas have held that Apprendi is not of watershed magnitude and that Teague bars petitioners from raising Apprendi claims on collateral review. E.g., United States v. Lovell, Nos. 3:98-CR-0344-R, 3:00-CV-1866-R 2001 WL 1076124, at *2 (N.D. Tex. Sept. 10, 2001); United States v. McNairy, Nos. 3:99-CR-364-P, 3:01-CV-0355-P, 2001 WL 649684, at*3 (N.D. Tex. June 8, 2001); United States v. Jones, Nos. 3:98-CR-0303-P, 3:01-CV-0050-P, 2001 WL 493171, at *2 (N.D. Tex. May 8, 2001); accord McCoy v. United States, 266 F.3d 1245, 1258 (11th Cir. 2001); United States v. Moss, 252 F.3d 993, 997 (8th Cir. 2001), cert. denied, 122 S.Ct. 848 (2002).
The Fifth Circuit has held that Apprendi is not applicable in a second or successive motion to vacate. In re Tatum, 233 F.3d 857, 859 (5th Cir. 2000). The Court also noted in its opinion that the Supreme Court has not yet made Apprendi retroactively applicable on collateral review. Id. at 858.
But see United States v. Clark, 260 F.3d 382 (5th Cir. 2001) (remanding a case to the district court to reconsider its ruling denying . . . an amendment to [defendant's] § 2255 motion based on futility in light of Apprendi). This court, however, does not find Clark determinative of the issue of the retroactivity of Apprendi on collateral review. See Lovell, 2001 WL 1076124, at *2. Until the Supreme Court specifically holds that Apprendi is applicable on collateral review, this court will follow the unpublished precedent of the Northern District of Texas. Tyler v. Cain, 533 U.S. 656 (2001).
Moreover, even if this court were to review Stovall's Apprendi claim with regard to counts 5, 8, and 11, he is not entitled to relief because the claim lacks merit. "It is clear in this circuit that where an enhancement does not increase the defendant's sentence above the statutory maximum, there is no Apprendi violation." United States v. Wilson, 249 F.3d 366, 380 (5th Cir. 2001). The trial court sentenced Stovall to consecutive 20-year terms of imprisonment on counts 5, 8, and 11. Because that sentence does not exceed the maximum allowable for the indicted offense and, indeed, was the mandatory minimum sentence, Stovall's sentence was lawful and does not offend Apprendi. United States v. Miranda, 248 F.3d 434, 444 (5th Cir. 2001); United States v. Keith, 230 F.3d 784, 787 (5th Cir. 2000), cert. denied, 531 U.S. 1182 (2001).
Deal v. United States, 508 U.S. 129, 130-32 (1993); United States v. Quinn, 18 F.3d 1461, 1467 (9th Cir.), cert. denied, 512 U.S. 1242 (1994). (6 Tr. at 5.)
Likewise meritless are Stovall's claims that the indictment did not confer jurisdiction on the trial court because it did not sufficiently notify him of the enhancement consequences of the use-of-a-firearm counts or of the specific type of firearm. An indictment is sufficient if it contains the elements of the offense charged, it fairly informs the defendant of the charge he must defend against, and there is no further risk of prosecution for the same offense. United States v. Lankford, 196 F.3d 563, 569 (5th Cir. 1999), cert. denied, 529 U.S. 1119 (2000). The essential elements of using or carrying a firearm during a crime of violence are that the defendant committed the underlying offense and he knowingly used or carried a firearm during and in relation to that crime. United States v. Dean, 59 F.3d 1479, 1489 (5th Cir. 1995). Stovall's sentence was not increased because of the type of weapon used during the robberies; thus, a specific identified firearm is not an essential element and need not be named in the indictment. Cf. Castillo v. United States, 530 U.S. 120, 121 (2000) (holding when sentence enhanced based on the type of firearm, it is a separate aggravated crime that must be alleged with specificity). Further, the indictment was not defective for failing to specifically allege the available punishment range on counts 5, 8, and 11. Stovall received all the notice he was due in the indictment.
Because Stovall's sentence did not violate Apprendi and because the indictment was not defective, counsel had no basis to object. Thus, this court cannot find that counsel's performance was deficient in this respect. United States v. Patten, 40 F.3d 774, 776-77 (5th Cir. 2000); see also Carter v. Johnson, 131 F.3d 452, 464 (5th Cir. 1997) (holding counsel not deficient for failing to request competency hearing where there was no indication of incompetency), cert. denied, 523 U.S. 1099 (1998); Lauti v. Johnson, 102 F.3d 166, 170 (5th Cir. 1996) (holding counsel not deficient for failing to object to proper jury instruction), cert. denied, 521 U.S. 1126 (1997); Marshall v. Cabana, 835 F.2d 1101, 1103 (5th Cir. 1988) (holding counsel not deficient for failing to make meritless argument).
b. Group counts for sentencing
Stovall next asserts that counsel was ineffective for failing to object to the trial court's failure to group counts 3, 5, 8, and 11 for sentencing. (Am. Mot. to Vacate at 1.) Count 3 charged Stovall with brandishing a firearm during one of he robberies, while counts 5, 8, and 11 charged him with using and carrying a firearm during the other three robberies. The grouping of any term of imprisonment that is imposed to run consecutively to any other term of imprisonment is prohibited. U.S. SENTENCING GUIDELINES MANUAL §§ 3D1.1 (b), 3D1.2 cmt. n. 1 (2001). Thus, these counts could not be grouped. See 18 U.S.C. § 924 (c)(1)(D)(ii). As such, any objection by counsel on this basis would have been meritless and futile. Counsel cannot be held defective in these circumstances. Patten, 40 F.3d at 776-77.
II. RECOMMENDATION
Stovall has failed to make a showing of the denial or infringement of his constitutional rights. The motion to vacate should be denied.
III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS, AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636 (b)(1), each party to this action has the right to serve and file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is hereby extending the deadline within which to file, not merely place in the mail, specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until June 21, 2002. Failure to file specific written objections within the specified time shall bar a de novo determination by the district court of any finding of fact or conclusion of law and shall bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any unobjected to, proposed factual findings and legal conclusions accepted by the District Court. See Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until June 21, 2002 to serve and file, not merely place in the mail, written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, the response shall be filed within seven (7) days of the filing date of the objections.
It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions, and recommendation, is returned to the docket of the United States District Judge.