Opinion
No. 96 C 8461/87 CR 874-2
February 9, 2000
MEMORANDUM OPINION AND ORDER
Petitioner Steven R. Keith ("Keith") and codefendant Donald Bennett ("Bennett") were convicted by a federal jury of conspiracy, bank robbery, and firearms charges stemming from their involvement in several bank robberies. Their convictions and sentences were affirmed on direct appeal. Keith now challenges his sentence under 28 U.S.C. § 2255 on several grounds.
BACKGROUND
Keith and Bennett were indicted in December 1987 for their bank robbery spree. Each was charged with one count of conspiring to take money by force from federally insured banks and savings and loans in violation of 18 U.S.C. § 371. (Count 1). Keith also was charged with four counts of armed bank robbery in violation of 18 U.S.C. § 2113 (Counts 4, 6, 8, 11) and four counts of using a firearm during the commission of a crime of violence in violation 18 U.S.C. § 924 (c) (Counts 5, 7, 10, 13). Bennett was charged with five counts of violating § 2113 and five counts of violating § 924(c) (Bennett robbed an additional bank without Keith). At the close of their March 1989 trial, the jury convicted both defendants on all counts. Keith received a sentence of 38 years and 4 months in prison, which included a 40-month term on Counts 1 and 11, 35 years for Counts 5, 7, 10 and 13 (5 years for Count 5 and ten years each for Counts 7, 10, and 11), and 5 years each on Counts 4, 6 and 8 (concurrent with each other and to Counts 1 and 11). Bennett received a 50-year total sentence. Both defendants appealed.
On appeal, Keith challenged his conviction on three grounds: (1) that his motion to suppress was improperly denied; (2) that the enhanced penalty provision in § 924(c) does not apply to separate offenses charged in the same indictment; and (3) that the evidence was not sufficient to convict him. Bennett also argued that the district court erred in finding him competent to stand trial. The Seventh Circuit affirmed their convictions in all respects. United States v. Bennett, 908 F.2d 189 (7th Cir. 1990). Shortly after the appeal, Keith moved to correct his sentence to properly reflect that several counts were not covered by the Sentencing Guidelines. (See Docket #184, November 8, 1990). This motion was granted and the sentence corrected to reflect a nonguidelines sentence for the appropriate counts. (See Docket #185, November 8, 1990). No appeal was taken from the resentencing.
Bennett has been an active, if unsuccessful, litigant in raising post-conviction challenges to his conviction and sentence. See, e.g., Bennett v. United States, 19 F.3d 21 (7th Cir. 1994) (unpublished); Bennett v. United States, 119 F.3d 468 (7th Cir. 1997); Bennett v. United States, 119 F.3d 470 (7th Cir. 1997); United States v. Bennett, 172 F.3d 952 (7th Cir. 1999).
Approximately six years after his direct appeal, Keith filed this motion pursuant 18 U.S.C. § 2255. Keith raised three claims in his original petition and supporting memorandum: (1) that the 16 1/2 month delay from indictment to trial violated the speedy trial requirement of the 6th Amendment and prejudiced his case by depriving him of a witness that died in the interim; (2) that the court abused its discretion in denying him a severance because his codefendant's defense was antagonistic to his own and his codefendant's erratic outbursts prejudiced his case; and (3) that multiple convictions under 924(c) were unsupportable because there was only one underlying predicate offense (the conspiracy to rob banks).
The government responded that the claims were procedurally defaulted, that Keith made no showing of cause or prejudice, that there was no indication in the court docket that Keith ever asked for a severance, and that the claims were specious on the merits.
In his reply, Keith claimed that the request for a severance was made by oral motion (but provides no docket or record cite) and raised three new claims: (1) that he was denied the right to allocution when resentenced; (2) that the 924(c) convictions are based on errant jury instructions and cannot stand under the Bailey standard of "use"; and (3) that he received ineffective assistance of counsel as evidenced by counsel's failure to object to the 924(c) jury instructions and failure to raise the severance issue on appeal.
DISCUSSION
A. General Standards
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 a sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.28 U.S.C. § 2255.
A 2255 motion is not a substitute for an appeal. An argument that was not raised on direct appeal cannot be presented for the first time in a 2255 motion absent a showing of cause for the failure to raise the issue sooner and a showing of actual prejudice resulting from the claimed constitutional violation. Menzer v. United States, No. 98-4816, 2000 WL 10261 at *4 (7th Cir. Jan. 6, 2000); Wright v. United States, 139 F.3d 551, 552 (7th Cir. 1998). The court may dismiss the petition without a hearing if it is evident from the motion, any attached exhibits, and the prior proceedings in the case that the movant is not entitled to any relief. Menzer, 2000 WL 10621 at *5
B. Claims Raised in Original Petition and Supporting Memorandum
Keith raised three claims in his original petition: (1) speedy trial violation; (2) improper denial of a severance; and (3) improper multiple 924(c) convictions based on the same predicate offense. The court concludes that all three claims have been waived by Keith's failure to raise them on direct appeal. Moreover, as noted by the government, Keith has made no attempt in his materials to establish cause or prejudice that would warrant relieving him of the consequences of his procedural default. Keith's one line explanation on page 6 of his original petition that he relied on counsel and was unaware of the law is inadequate to establish cause or prejudice and is far too undeveloped an "argument" to warrant analysis by the court. See generally United States v. Martinez, 169 F.3d 1049, 1053 (7th Cir. 1999) (the court need not address arguments that are undeveloped). In addition, to the extent Keith's claim of ineffective assistance of counsel in his reply brief can be read as an attempt to establish cause and prejudice, it is waived because he did not raise the argument until his reply brief. See United States v. Joiner, 847 F. Supp. 604, 606-7 (N.D. Ill. 1994). Lastly, the court notes that, even if the claims had not been defaulted, they would fail.
First, Keith's speedy trial claim appears baseless. In assessing a possible violation of the 6th Amendment's requirement of a speedy trial, the Supreme Court has set forth a four factor analysis: (1) whether the delay before trial was uncommonly long; (2) whether the criminal defendant or the prosecution is more to blame for the delay; (3) whether, in due course, the criminal defendant asserted his right to a speedy trial; and (4) whether the criminal defendant suffered prejudice as a result of the delay. Doggett v. United States, 505 U.S. 647, 651 (1992). Courts have generally found a delay of a year is "presumptively prejudicial" and warrants triggering the four factor analysis. Id. at 652n. 1.
Given the complexity of the case, the number of witnesses, and the significant pretrial issues that needed to be addressed, it is debatable whether even the first factor is met. Further, even if the first factor were deemed satisfied, Keith falls short on the others. As to factor two, there were a plethora of pretrial motions by both Keith and Bennett. While Keith argues that he should not be held accountable for Bennett's pretrial motions, the record shows he moved to explicitly join them. (Docket # 24, January 14, 1988). As for the assertion of his rights, his motion to dismiss counts 8 and 10 for a speedy trial violation did not come until approximately a week before trial. Lastly, Keith's only claim of prejudice is that he lost the testimony of Gladys Brown, who died before his trial. The government notes that its highly unlikely Ms. Brown could have provided useful testimony. (See Government Response, Exhibit A). More significantly, Keith's own affidavits indicate that, at best, Ms. Brown would have testified cumulatively to his other available alibi witnesses.
Second, trying Keith and Bennett in a single trial was entirely appropriate. "Particularly in conspiracy cases,' there is a strong interest in trying defendants who have been jointly indicted in a single trial.'" United States v. Blassingame, 197 F.3d 271, 286 (7th Cir. 1999) (internal cite omitted). A joint trial has the advantages of: (1) reducing the waste of prosecutorial and judicial time; (2) reducing the burdens on witnesses who otherwise would have to testify at multiple trials; and (3) reducing the chance a defendant will attempt to create reasonable doubt by foisting the blame on an absent co-conspirator. Id. A petitioner challenging the denial of a severance has a heavy burden. To prevail, the defendant must show that he suffered actual prejudice from the denial of a severance; it is not enough to show that he simply would have had a better chance for an acquittal in a separate proceeding. Id. (must show he was unable to obtain fair trial in joint proceeding).
Keith's arguments cannot carry this heavy burden. Keith and Bennett's defenses were not antagonistic. As noted on direct appeal, Keith maintained that he was not Bennett's accomplice, and Bennett testified that his accomplice was a third party and not Keith. See 908 F.2d at 192. Bennett's testimony clearly supported Keith's defense. Further, Keith's comments about Bennett's erratic behavior get him nothing. The Seventh Circuit affirmed this court's conclusion that Bennett was competent to stand trial, see 908 F.2d at 195, and the appellate court reviewed the same record Keith now cites to.
Lastly, Keith claims that his multiple 924(c) convictions cannot stand because they are based upon a single predicate offense. Keith is correct about the legal principle, see United States v. Cappas, 29 F.3d 1187 (7th Cir. 1994) (multiple 924(c) convictions cannot be based on the same predicate offense), but he completely disregards the record in his case. As abundantly clear from the indictment and jury instructions, Keith's four 924(c) convictions are not based on the one conspiracy count; they are based on the use of firearms in four individual armed robberies (Counts 4, 6, 8, 11). The one instruction Keith challenges, which he focuses upon in isolation, merely instructs the jury that Keith, if found to be part of the conspiracy, is responsible for co-conspirator Bennett's use of firearms during two of the robberies. See generally Woodruff v. United States, 131 F.3d 1238, 1243 (7th Cir. 1997) (Bailey decision did nothing to alter the rules of co-conspirator liability for 924(c) violations). In sum, Keith's claim is baseless because the four 924(c) convictions are based on four predicate crimes of violence.
To the extent this claim is intended to rehash the 924(c) issue raised on direct appeal, it is foreclosed by law of the case. See generally Menzer, 2000 WL 10261 at *4 ("[T]he most compelling application of the doctrine occurs when a court of appeals has decided an issue").
C. Claims Raised in Reply Brief
Keith raised additional claims in his reply brief: (1) denial of right to allocution at resentencing; (2) Bailey-based change in law/bad jury instruction claims on the 924(c) convictions; and (3) ineffective assistance of counsel. The court concludes that these claims have been procedurally defaulted. All three claims are waived because they were not raised until Keith's reply brief. Even though pro se pleadings are construed liberally, "arguments raised for the first time in a reply brief are waived." United States v. Joiner, 847 F. Supp. 604, 606-7 (N.D. Ill. 1994) (internal cite omitted). In addition, claims (1) and (2) are defaulted because they were not raised on direct appeal. (As to claim (3), ineffective assistance claims are generally not raised on direct appeal.) As before, the court notes that the claims would likely fail even if they had not been defaulted.
As to the allocution claim, it is based upon Keith's resentencing on November 8, 1990, which resulted from Keith's motion to correct his sentence to reflect that some of the counts were not covered by the sentencing guidelines. Keith's motion was granted and his sentence so corrected.
The Bailey claim also comes up wanting. In Bailey v. United States, 516 U.S. 137 (1995), the Supreme Court narrowed the definition of "use" for purposes of finding a violation of 18 U.S.C. § 924 (c). Under Bailey, use requires "an active employment of the firearm by the defendant, a use that makes the firearm an operative factor in relation to the predicate offense." Id. at 143. Active employment includes such activities as "brandishing, displaying, bartering, striking with, firing, attempting to fire or even referring to a firearm within one's possession." U.S. v. Martinez, 169 F.3d 1049, 1055 (7th Cir. 1999). Despite the implication in Keith's brief, the Bailey decision has not rendered all prior convictions under 924(c) automatically defective. Even if the trial court gave an erroneous jury instruction (under the Bailey standard), the conviction will be affirmed "if all the evidence presented qualifies as either active-employment `use' or `carry'." United States v. Cooke, 110 F.3d 1288, 1294 (7th Cir. 1997).
In this case, the jury instructions were phrased in the alternative (used or carried). See Instructions # 37 and 38. In each bank robbery, Bennett or Bennett and Keith entered the bank and threatened the bank employees with firearms. As specifically noted on direct appeal, the defendants had "brandished" the weapons during the robberies. See 908 F.2d at 193. Under these facts, there is no doubt that defendants actively employed their weapons in the robberies, and the "use" standard in Bailey was readily met. See generally Martinez, 169 F.3d at 1055 ("use" includes brandishing and referring to weapon in one's possession). As defendants' "use" of the weapons required them to physically transport the weapons on their persons during the robberies, the "carry" standard is readily met as well. See Cooke, 110 F.3d at 1295 (no doubt that defendant who possesses a weapon on his person is "carrying"). That Bennett entered two of the banks without Keith gets Keith nothing. The Bailey decision did nothing to alter the rules of co-conspirator liability for 924(c) violations. Woodruff, 131 F.3d at 1243. See also Wright, 139 F.3d at 552 (Bailey did not limit aiding and abetting theory of criminal liability).
Lastly, Keith's ineffective assistance claim lacks merit. To prevail on an ineffective assistance of counsel claim, a petitioner bears the heavy burden of showing that "counsel's performance fell below an objective level of reasonableness and that this deficiency prejudiced his defense." Menzer, 2000 WL 10261 at * 2. As the court has noted that the two claims Keith maintains his counsel should have raised lack merit (and one of them is largely based on law decided subsequent to his criminal trial that his counsel could not have known of), he cannot show ineffective assistance.
In summary, Keith's petition is denied because all his claims are procedurally defaulted, either because he failed to raise them on direct appeal, in his opening brief, or both. In addition, Keith has not meaningfully attempted to establish cause and prejudice to excuse this default. Moreover, the claims appear baseless on the merits.
CONCLUSION
For the foregoing reasons, the Court DENIES Keith's petition pursuant to 28 U.S.C. § 2255. Keith's motion to appoint counsel and for an evidentiary hearing is also DENIED. If Keith wishes to appeal the denial of his § 2255 motion, he must file a Notice of Appeal to the United States Court of Appeals for the Seventh Circuit with the Clerk of the Court, United States District Court for the Northern District of Illinois, 219 South Dearborn Street, 20th Floor, Chicago, Illinois 60604, within sixty (60) days of the entry of judgment in this case. Any appeal of the § 2255 motion should be accompanied by a request for a certificate of appealability, including a statement as to why a certificate should issue. See 28 U.S.C. § 2253; FED. R. APP. P. 22(b).