Opinion
CRIMINAL NO. MJG-11-0095
03-14-2016
UNITED STATES OF AMERICA v. JOHN I. FRANKLIN, Jr., et al.
MEMORANDUM AND ORDER RE: § 2255 MOTIONS
The Court has before it Petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct a Sentence By a Person in Federal Custody [ECF No. 268], Petitioner's Supplemental Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct a Sentence By a Person In Federal Custody [ECF No. 285] and the materials submitted relating thereto.
I. BACKGROUND
On February 10, 2012, Defendant John Franklin ("Franklin") was convicted by a jury on all six counts of the Indictment charging him in regard to two carjackings perpetrated on August 14, 2010. The charges are:
1. Conspiracy to commit carjacking (18 U.S.C. § 371)
2. Carjacking (18 U.S.C. § 2119(1)).
3. Firearm possession and brandishing in furtherance of a crime of violence. (18 U.S.C. § 924(c)(1)(A)(ii)).
4. Carjacking (18 U.S.C. § 2119(1)).
5. Firearm possession and brandishing in furtherance of a crime of violence (18 U.S.C. § 924(c)(1)(A)(ii)).Superseding Indictment [ECF No. 115].
6. Firearm possession by a felon (18 U.S.C. § 922(g)(1)).
On April 13, 2013, Franklin was sentenced to a total of 414 months of incarceration, consisting of:
Counts 1, 2, 4 and 6 - 30 months each, concurrent
Count 3 - 84 months consecutive
Count 5 - 300 months consecutive Judgment [ECF No. 173].
On November 6, 2013, the United States Court of Appeals for the Fourth Circuit affirmed the conviction and sentence. United States v. Franklin, 545 F. App'x 243 (4th Cir. 2013).
By the instant Motion, timely filed, pursuant to 28 U.S.C. § 2255, Petitioner seeks to have his conviction and sentence vacated.
II. ORIGINAL MOTION
A. Asserted Grounds
Petitioner contends he is entitled to relief because:
1. On arraignment, he was not correctly advised as to mandatory minimum sentences.
2. He was denied the effective assistance of trial counsel.
3. He was denied the effective assistance of appellate counsel.Mot. 2-4, ECF No. 268.
4. He can rely on the decision in Rosemond v. United States, --- U.S. ----, 134 S. Ct. 1240 (2014).
5. The post-trial conviction of a police officer witness constitutes new evidence.
These assertions shall be addressed in turn.
B. Discussion of Asserted Grounds
1. The Magistrate Judge's Arraignment Error
Petitioner was arraigned before a visiting Magistrate Judge. Prior to advising Petitioner of the potential sentences he faced, the Magistrate Judge stated;
I am going to go through the charges and explain them to you in a summary fashion and also the maximum penalties. And [Prosecutor] I would ask you that if I make any errors, please bring them to my attention so - I know these are all summary and I may be leaving something out.Tr. 3:6-10, Mar. 11, 2011, ECF No. 188.
She did, in fact, leave something out; the omission was material and was not brought to her attention by the prosecutor.
The Magistrate Judge stated in regard to the charges of firearm possession and brandishing in furtherance of a crime of violence, 18 U.S.C. § 924(c)(1)(A)(ii):
Counts 3 and 5 charge possession of a firearm in furtherance of a crime of violence. Those counts carry a maximum life sentence plus a mandatory minimum 7 years in prison. So between 7 years and life plus a fine of $250,000 and a term of 5 years supervised release and a $100 special assessment.Id. at 3:21-4:1.
This statement was misleading to Petitioner. Specifically, it did not inform Petitioner that if he was convicted on both Counts 3 and 5, he faced a mandatory minimum sentence of 32 years, 7 years on one of the counts and 25 years consecutive on the other.
The Government contends that Petitioner is procedurally barred from asserting the Magistrate Judge's arraignment error in the instant motion. The Government states in this regard: that "it is only Petitioner's ineffective assistance of counsel claim that opens the door to the present post-conviction consideration of his plea. Therefore, the issue to be resolved here is whether Petitioner can substantiate an ineffective assistance of counsel claim based on the alleged sentencing misinformation given at trial." Gov't Resp. 8, ECF No. 275.
The Court finds that even if the arraignment error issue were not procedurally barred, it would not be a basis for relief for Petitioner absent a showing of prejudice. The essential question here present is not whether Petitioner was misinformed about the pertinent mandatory minimum sentence at the time of arraignment but at the time he decided to reject a plea agreement calling for a 12-year sentence. Thus, the arraignment issue melds into Petitioner's contention that trial counsel was ineffective because he did not advise Petitioner of the potential 32-year mandatory minimum sentence.
Accordingly, the matter shall be addressed herein in regard to Petitioner's ineffective assistance of counsel contentions.
2. Ineffective Assistance of Trial Counsel
In order to prevail on a claim that counsel's representation violated his Sixth Amendment right to effective assistance of counsel, Petitioner must show (1) "that counsel's representation fell below an objective standard of reasonableness," and (2) "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). "A reasonable probability is a probability sufficient to undermine confidence in the outcome [of the proceedings]." Id. at 694.
Thus overcoming a presumption that counsel's conduct (i. e. representation of the criminal defendant) was reasonable. See Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
If, on a § 2255 motion, the motion and the files and records of the case do not conclusively show that the prisoner is not entitled to relief, the court must make findings of fact and conclusions of law regarding the issues presented. 28 U.S.C. § 2255. As discussed herein, several of Petitioner's ineffective assistance of counsel claims are based upon statements allegedly made to him by trial counsel. The Government has not presented evidence refuting Petitioner's affidavit regarding these statements. Hence, in considering whether the record conclusively shows that Petitioner cannot prevail, the Court must assume that these statements were made as set forth in Petitioner's affidavit.
As discussed herein, the record does not conclusively show that Petitioner cannot prevail on his ineffective assistance of counsel claims regarding his rejection of an offered plea agreement. Of course, the Court is not determining that these contentions are meritorious. However, Petitioner is entitled to an evidentiary hearing regarding these claims.
a. Rejection of the Plea Agreement Offer Claims
The Government does not appear to dispute that Petitioner rejected the offer of a plea agreement that would have resulted in a sentence of 12 years of incarceration. Petitioner claims that he was denied the effective assistance of counsel in regard to his rejection of the plea agreement.
In Lafler v. Cooper, --- U.S. ----, 132 S. Ct. 1376 (2012), a defendant charged with assault with intent to commit murder and other charges was offered a plea agreement that included a recommendation for a sentence of 51 to 85 months. Id. at 1383. Counsel advised the Defendant to reject the offer because, counsel said, the prosecution could not establish intent to commit murder. Id. In Lafler, the prosecution conceded "that counsel's advice with respect to the plea offer fell below the standard of adequate assistance of counsel guaranteed by the Sixth Amendment . . . ." Id. The Defendant proceeded to trial, was convicted and received a sentence of 185 to 360 months. Id.
The Lafler Court stated:
Defendants have a Sixth Amendment right to counsel, a right that extends to the plea-bargaining process. During plea negotiations defendants are "entitled to the effective assistance of competent counsel." . . . In this case all parties agree the performance of respondent's counsel was deficient when he advised respondent to reject the plea offer on the grounds he could not be convicted at trial.
. . . .
The question for this Court is how to apply Strickland's prejudice test where ineffective assistance results in a rejection of the plea offer and the defendant is convicted at the ensuing trial.
To establish Strickland prejudice a defendant must "show that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been different." In the context of pleas a defendant must show the outcome of the plea process would have been different with competent advice.Id. at 1384 (citations omitted).
Thus, the question presented is whether trial counsel's advice pertinent to the plea agreement was constitutionally deficient and, if so, whether, absent the erroneous advice, Petitioner would have accepted the offered plea agreement.
i. The Mandatory Minimum Sentence Contention
As discussed above, the visiting Magistrate Judge conducting the arraignment advised Petitioner that he faced mandatory minimum sentences of 7 years on each of Counts 3 and 5 but did not advise him that if he was convicted on both Counts 3 and 5, the mandatory minimum sentence would be 32 years. Petitioner states in his affidavit that trial counsel did not advise him of the potential 32-year mandatory minimum sentence and that, had he done so, Petitioner would have accepted a plea agreement that would have resulted in a 12-year sentence. Pet'r Aff. ¶¶ 2-3, ECF No. 268-1.
The Government does not offer any evidence contradicting Petitioner's affidavit but asserts that it is "self-serving." Gov't Resp. 12, ECF No. 275. Of course, it is self-serving; but it is the only evidence of record regarding what he was told by trial counsel.
The Court does not find that the record, as it now exists, conclusively refutes Petitioner's statement that he was uninformed by trial counsel of the mandatory minimum sentence he faced if convicted on both Counts 3 and 5 at trial. Nor does the record now conclusively establish that a failure to provide this information would, in context, have been below the standard for effective assistance of counsel. If it had been below that standard, it would be necessary to determine if, having been given the correct advice, Petitioner would have accepted the plea agreement that he rejected.
Thus, the Court finds it necessary to make factual determinations regarding the mandatory minimum sentence contention.
ii. The Conspiracy Advice Contention
Petitioner claims that trial counsel "told me I should go to trial because they could beat the conspiracy charge and without a conspiracy conviction the government had no case against me." Pet'r Aff. ¶ 6, ECF No. 268-1. The Government offers no evidence to contradict Petitioner's affidavit and may be agreeing that the advice was given. In either event, the record does not conclusively refute Petitioner's contention that the advice was given and was erroneous because competent counsel would not have advised him that he could prevail on the conspiracy charge.
It is not clear if the Government is assuming that the advice was given or actually agrees that it was given as Petitioner states.
Since, as it appears must be assumed for present purposes, Petitioner had been given deficient advice regarding the prospect of acquittal on the conspiracy charge, the Court must consider whether he would have accepted the offer had competent advice been provided to him. It must be noted that acquittal on the conspiracy charge could well result in acquittal on all charges on which he was subject to conviction as a co-conspirator on a Pinkerton theory.
328 U.S. 640 (1946).
The record does not conclusively establish that Petitioner cannot prevail on the "conspiracy advice" claim. Thus, the Court finds it necessary to make factual determinations regarding the "conspiracy advice" contention.
b. Police Report Impeachment
Petitioner claims that counsel "failed to impeach the relevant witnesses with a police report of the description of the alleged suspects, none of which matched me." Pet'r Aff. ¶ 7, ECF No. 268-1.
The Court finds that trial counsel made a reasonable tactical decision to eschew impeaching Mr. Sean Gallion-Thomas regarding his identification of Petitioner as one of the individuals present in his car when his car was carjacked. Any defense effort to deny Petitioner's presence at the time would have been ineffective and likely counterproductive. To the extent that there may have been any viable defense theory at all, it would not be based upon the purported absence of Petitioner from the scenes of the crimes.
The record conclusively shows that there is no reasonable probability that trial counsel's use of the description would have resulted in a verdict more favorable to Petitioner.
c. Jury Instruction Conference
Petitioner contends that trial counsel provided constitutionally ineffective assistance when they did not advise Petitioner of his right to be present during the jury instruction conference. However Petitioner had no such right.
Rule 43(b)(3), Federal Rules of Criminal Procedure, provides that a defendant need not be present at a proceeding that "involves only a conference or hearing on a question of law."
The record conclusively shows that Petitioner cannot prevail on the jury instruction conference contention.
d. Jury Instruction
Petitioner contends that trial counsel provided constitutionally ineffective assistance when they failed to request a jury instruction that Petitioner could not be found guilty of aiding and abetting the 924(c) charges if the Government failed to prove that Petitioner had advance knowledge that one of the other assailants was in possession of a firearm. This contention is based upon the Supreme Court decision in Rosemond v. United States, --- U.S. ----, 134 S. Ct. 1240 (2014). In Rosemond, the Supreme Court granted certiorari "to resolve the Circuit conflict over what it takes to aid and abet a § 924(c) offense." Id. at 1245. The Court held that "the District Court erred in instructing the jury, because it did not explain that Rosemond needed advance knowledge of a firearm's presence" to be convicted as an aider and abettor. Id. at 1251.
The critical problem with this ineffective assistance of counsel claim is that the jury verdict was rendered on February 10, 2012, and the Supreme Court did not grant certiorari in Rosemond until May 28, 2013, more than a year later and did not issue its decision until March 5, 2014, two years after the trial of the instant case was concluded.
There has been no plausible showing of ineffective assistance of counsel for not having anticipated that, some two years later, a Supreme Court decision would have given them a basis to request an instruction requiring proof that Petitioner had advance knowledge that a firearm would be present at the carjackings.
The record conclusively shows that Petitioner cannot prevail on the jury instruction contention.
e. Out of Court Identification
Petitioner claims that trial counsel provided constitutionally ineffective assistance when they failed to request that an out-of-court identification be suppressed when the District Court gave counsel that opportunity.
In this case, the essence of the defense strategy - and the only plausible defense strategy - was to acknowledge that Petitioner was present at the time of the carjackings but that he did not participate in the crimes. The victim of the first carjacking made an out-of-court photo array identification of Petitioner that the Court would have suppressed. However, Petitioner's counsel did not want suppression of the evidence but chose to utilize it in cross-examination of the victim. The Court finds no reason to fault this tactical decision.
The record conclusively shows that Petitioner cannot prevail on the out-of-court identification contention.
3. Ineffective Assistance of Appellate Counsel
a. Jury Instruction conference
Petitioner contends that appellate counsel provided constitutionally ineffective assistance when she failed to argue that Petitioner's rights were violated when the jury instruction conference was held out of his presence and without any waiver of his presence.
As discussed above, Petitioner had no right to be present at the jury instruction conference. See Rule 43(b)(3), Federal Rules of Criminal Procedure.
The record conclusively shows that Petitioner cannot prevail on the jury instruction conference contention.
b. Out of Court Identification
Petitioner contends that appellate counsel provided constitutionally ineffective assistance when she failed to argue that the out-of-court identification by Mr. Gallion-Thomas should have been suppressed. As discussed above, trial counsel made the tactical decision - a valid one in the view of the Court - not to seek to suppress the identification but to utilize it during cross-examination of the victim. Appellate counsel had no basis to raise the suppression issue on appeal.
The record conclusively shows that Petitioner cannot prevail on the out-of-court identification contention.
c. The Rosemond Case Motions
Petitioner contends that appellate counsel provided constitutionally ineffective assistance when she failed to request that the appeal be held in abeyance pending the Supreme Court's resolution of Rosemond or request that Franklin be allowed to supplement his petition for writ of certiorari.
Petitioner seeks to have this Court determine what would have been done by the United States Court of Appeals for the Fourth Circuit and the Supreme Court had appellate counsel, sometime after May 28, 2013 (when certiorari was granted in Rosemond), sought procedural relief, i.e., a stay of decision by the Fourth Circuit and leave to file a supplement to a petition for certiorari in the Supreme Court.
As discussed below, Petitioner contends that, without regard to the ineffective assistance of counsel contention, he is entitled to relief by virtue of the Rosemond decision.
The Court finds that oral argument will be helpful regarding the Rosemond decision issues.
4. Post-Trial Conviction of Police Officer
Petitioner contends that his constitutional rights to a fair trial were violated because a police officer who offered substantial evidence against him at trial was later convicted of committing perjury and misconduct in the course of his employment.
A police officer testified at Petitioner's trial that he recovered a cellphone belonging to the first carjacking victim, Mr. Gallion-Thomas, during a pat down of Petitioner. Petitioner has presented evidence indicating that the police officer pleaded guilty to charges of perjury and misconduct in office, sentenced to three years of incarceration, all but six months suspended, the six months to be on house-arrest. While the sentencing proceeding was held May 8, 2014, Petitioner asserts that the offenses were committed in June 2012. Petitioner contends that because of the perjury conviction of the police officer, his constitutional right to a fair trial was denied.
The Government - for some reason - did not respond at all to this contention.
Under the circumstances, the Court will require a response by the Government. However, the Court first will require a clarification of Petitioner's claim in regard to this matter. In particular, Petitioner must explain the basis upon which he contends that there was a violation of his constitutional rights in a trial ending February 2012 by virtue of perjury in an unrelated matter that was committed in June 2012 and resulted in a conviction in 2014.
5. The Rosemond Decision
Petitioner contends that, by virtue of the Supreme Court decision in Rosemond, his convictions on the § 924(c) charges must be vacated.
The Court finds that this contention warrants oral argument both as to the substantive merits of the claim and whether the decision can be applied retroactively to the instructions in the instant case.
I.e., whether the instructions given complied with the Rosemond decision. --------
III. THE SUPPLEMENTAL MOTION
On September 18, 2015, Supplemental Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, Or Correct a Sentence By a Person In Federal Custody [ECF No. 285] was filed. Petitioner seeks to rely upon the Supreme Court decision in Johnson v. United States, --- U.S. ----, 135 S. Ct. 2551 (2015).
The Government asserts that Petitioner's arguments, as a matter of statutory interpretation, are time-barred. However, Petitioner seeks to assert constitutional rights newly recognized by the Supreme Court in Johnson on June 26, 2015 and are timely pursuant to 28 U.S.C. § 2255(f)(3).
At present there are a plethora of pending cases in which prisoners are presenting collateral attacks on § 924(c) convictions based upon Johnson. Moreover, there are inconsistent judicial decisions on the issues presented and no definitive ruling by the United States Court of Appeals for the Fourth Circuit.
Under the circumstances, the issues presented warrant oral argument and supplemental briefing to be filed shortly before the oral argument.
IV. CONCLUSION
For the foregoing reasons:
1. Petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct a Sentence By a Person in Federal Custody [ECF No. 268] and Petitioner's Supplemental Motion under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct a Sentence By a Person In Federal Custody [ECF No. 285] remain PENDING.
2. Further proceedings shall be scheduled pursuant to the instant discussion.
SO ORDERED, this Monday, March 14, 2016.
/s/_________
Marvin J. Garbis
United States District Judge