Opinion
Case No. 99-10023-01-JTM, Case No. 99-10023-02-JTM, Case No. 99-10023-04-JTM, Case No. 01-3476-JTM, Case No. 03-3493-JTM, Case No. 01-3316-JTM
April 9, 2004
MEMORANDUM AND ORDER
Several motions are before the court in this criminal matter arising from a series of armed robberies in Wichita, Kansas in 1998. The court granted defendants' severance motions on May 1, 2000 (Dkt. No. 83). Defendants J.D. McClenton (Dkt. No. 95, May 17, 2000), Leo Graham (Dkt. No. 110, July 5, 2000), and Cornelius Graham (Dkt. No. 98, May 16, 2000) pled guilty to certain charges in exchange for a plea agreement with the United States, and judgment was entered against each defendant respectively (McClenton, Dkt. No. 126, August 22, 2000; Leo Graham, Dkt. No. 138, October 11, 2000; Cornelius Graham, Dkt. No. 125, August 18, 2000). On December 7, 2000, following a trial by jury, defendant Robert Turner was convicted of two counts of interfering with commerce in violation of 18 U.S.C. § 1951 and of carrying a firearm in connection with these crimes of violence, in violation of 18 U.S.C. § 924(c)(1)(A), and Turner was sentenced March 7, 2001. (Dkt. No. 181). None of the existing motions before the court presents any substantial question of law or fact; all of the motions are hereby denied.
Robert Turner
Defendant Robert Turner has moved to vacate the sentence imposed, pursuant to 28 U.S.C. § 2255, alleging ineffective assistance of counsel, in that "leave way [sic] that was given the to government, by during the trial procedures and process." (Dkt. No. 214, at 6). He further alleges that the court had no jurisdiction over the armed robberies in question, "because the money taken was not in route [sic], but rather stationary at the stores." ( Id., at 7). He also argues that the fingerprint testimony introduced against him was not scientifically reliable, and that he should not have received a sentence enhancement for a prior crime of violence (in this case, a prior escape from state custody).
In Turner's direct appeal, the Court of Appeals concluded that any error in admission of fingerprint testimony was not prejudicial error, since there was other evidence (the eyewitness testimony of the Food-4-Less night manager, the testimony of defendant Turner's brother that Turner asked him to lie about an alibi, and referred to the Wichita robberies as "our" robberies) of sufficient strength that any error in the admission of the evidence was harmless. (Dkt. No. 210, at 9-10). The Court of Appeals further found that this court did not err in concluding that Turner's prior escape was a crime of violence of purposes of USSG § 4B1.2(a) (2000). (Dkt. No. 210, at 12). The Court of Appeals referenced its earlier decision in United States v. Springfield, 196 F.3d 1180, 1185 (10th Cir. 1999) (omitting internal quotations and citations): "We have held categorically that an escape always constitutes conduct that presents a serious potential risk of physical injury to another, for the purposes of the. . . career offender provisions of the sentencing guidelines."
Turning to the new arguments presented in Turner's motion, the court finds that the defendant presents no valid justification of vacating the sentence imposed. A claim of ineffective assistance of counsel, in violation of the Sixth Amendment, requires a showing both that counsel's performance was deficient, and that the effect of the deficient performance was making errors so serious as to deprive the defendant of a fair trial. Strickland v. Washington, 466 U.S. 668 (1984). The first factor is shown by proof that counsel's errors were so serious she was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment, thereby falling below an objective standard of reasonableness. Id. at 687. The second factor is present only if there is a reasonable probability that but for the errors of counsel, the result of the proceeding would have been different. Id. at 694.
Turner here meets neither prong. Defendant points to no particular instance or instances of "leeway" wrongly allowed to the government in proving its case, and the court upon reviewing the matter finds no such occurrence. To the contrary, defendant's counsel was a competent and experienced attorney who vigorously presented Turner's defense. The government's presentation of its case exceeded no legal boundaries: any additional objections by the defense would have been overruled. It is not deficient performance for counsel to refrain from objecting to admissible evidence. Further, as noted in the Court of Appeals ruling denying Turner's direct appeal, substantial evidence of Turner's guilt exists; this evidence is of sufficient degree that this court holds that (even assuming the correction of some otherwise deficient performance by counsel) no reasonable likelihood exists that the outcome of the case would have been any different.
Defendant's argument that there was no federal jurisdiction because the money was not actually en route at the time of the robberies has no merit. The Tenth Circuit has repeatedly held in similar cases that federal jurisdiction exists even if there is merely a de minimis effect on commerce; the government is not required to show defendant's actions had a substantial effect on interstate commerce. See e.g., United States v. Battle, 289 F.3d 661 (10th Cir.), cert. denied, 537 U.S. 856 (2002); United States v. Bolton, 68 F.3d 396, 398 (10th Cir. 1995) ( quoting United States v. Zeigler, 19 F.3d 486, 489 (10th Cir.), cert. denied, 513 U.S. 1003 (1994)); see also United States v. Malone, 222 F.3d 1286, 1295 (10th Cir.), cert. denied, 531 U.S. 1028 (2000).
Cornelius Graham
Defendant Cornelius Graham has filed two motions which are now before the court. First, Graham filed a Motion for Extension of Time (Dkt. No. 193), seeking an extension of time to file a petition for relief pursuant to 28 U.S.C. § 2255. Subsequently, the defendant filed his motion for relief pursuant to § 2255. (Dkt. No. 204).
Claims for relief pursuant to § 2255 must be filed within one year of the date a defendant's sentence becomes final. Here, the direct appeal of defendant Cornelius Graham was dismissed on his own request on December 8, 2000. As the government correctly argues, since Graham filed no timely motion seeking a writ of certiorari, the limitations period on seeking relief under § 2255 began on the date his appeal was dismissed, and therefore ended December 8, 2001. See United States v. Burch, 202 F.3d 1274, 1276 (10th Cir. 2000). The government has opposed defendant's motion because Graham's motion is devoid of any attempt to demonstrate extraordinary or exceptional circumstances justifying such relief. The court need not decide the matter. December 8, 2001 was a Saturday. Graham's § 2255 motion (Dkt. No. 204) was filed Monday, December 10, 2001, the next business day after the date the motion was due. See Fed.R.Civ.P. 6(a). Defendant's motion to extend is denied as moot.
Defendant's § 2255 motion argues that the court misapplied the sentencing guidelines and incorrectly applied an upward departure. The defendant's motion will be denied. The court heard Cornelius Graham's plea on May 16, 2000, taking up the matter upon Graham's request to change his prior plea of not guilty, and his statement that he had entered into a plea agreement with the United States.
Under that agreement, the government dismissed the other charges against the defendant and would recommend a sentence at the low end of the guideline range. In exchange, Graham agreed to plead guilty. He also explicitly waived any "right to challenge his sentence or the manner in which it was determined in any collateral attack, including but not limited to a motion brought under Title 28, United States Code, Section 2255." (Dkt. No. 97, at 2, ¶ 3).
The court approved Cornelius Graham's plea of guilty (Dkt. No. 98) only after specifically and separately determining that the plea was voluntary in each important respect. This included obtaining the oral affirmation from Cornelius Graham that he understood by his plea that he was waiving his right to appeal and his right to file a collateral attack on any lawful sentence the court might impose. The defendant's waiver of his appeal and collateral attack rights was knowing and voluntary.
The sentence imposed upon defendant Cornelius Graham was not the statutory maximum. The sentence was not imposed because of his race. Defendant's counsel — an experienced and capable attorney who obtained dismissal of other serious charges by means of the plea agreement — was not ineffective in his representation of defendant. No grounds exist in the present case which would justify relieving the defendant of his knowing and voluntary waiver of his collateral attack rights. See United States v. Cockerham, 237 F.3d 1179 (10th Cir. 2001). Defendant Cornelius Graham's motion is denied.
Leo Graham
The court denied defendant-petitioner Leo Graham's 28 U.S.C. § 2255 Petition on November 20, 2001 (Dkt. No. 202). The court rejected Graham's argument that his plea of guilty was wrongly induced because he was not informed of the Interstate Agreement on Detainers Act (IADA). The court concluded that "[s]ince the rights provided by the IADA are not constitutional in character, Graham's claims of violations of his constitutional rights in the present case must be rejected." Id., at 1. The court stressed that as a general rule, in the absence of special circumstances, "violations of the IADA are not a basis for collateral attack on a conviction. Id., citing Greathouse v. United States, 655 F.2d 1032, 1034 (10th Cir. 1981).
The current motion of the defendant-petitioner (Dkt. No. 203) filed December 10, 2001 seeks amendment of the court's earlier order and requests additional findings of fact. The court finds that defendant-petitioner's motion should be denied. The court's earlier order appropriately resolves the issues in the case; the court finds no basis in either defendant-petitioner's original Petition or in the current motion for concluding that his constitutional rights, including the right to effective assistance of counsel, were violated. The court has reviewed the record, transcripts, and pleadings, and finds that defendant received effective assistance of counsel as defined in Strickland v. Washington, 466 U.S. 668 (1984).
IT IS ACCORDINGLY ORDERED this 9th day of April, 2004 that the pending defendants' motions (Def. Cornelius Graham, Dkt. Nos. 193, 204; Def. Leo D. Graham, Jr., Dkt. No. 203; Def. Robert Turner, Dkt. No. 214) are hereby denied.