Opinion
Civil Action No. 04-826, Criminal No. 01-630.
March 21, 2005
ORDER — MEMORANDUM
AND NOW, this 21st day of March, 2005, upon consideration of Defendant David Lawton's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (Crim. Docket No. 311), the Government's response thereto, and the Hearing held in open Court on December 22, 2004, IT IS HEREBY ORDERED that the Motion is DENIED. As Defendant has failed to make a substantial showing of the denial of a constitutional right, there is no basis for the issuance of a certificate of appealability.
On March 14, 2002, following a jury trial, David Lawton was convicted of conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. §§ 1951(Count I); Hobbs Act robbery, and aiding and abetting, in violation of 18 U.S.C. §§ 1951, 1951(b)(1), 1951(b)(3), and 18 U.S.C. § 2 (Count II), and carrying a firearm during and in relation to a crime of violence, and aiding and abetting, in violation of 18 U.S.C. § 924(c)(1)(A) and 18 U.S.C. § 2 (Count III). The charges arose from the armed robbery of Richard's Jewelers in Fairless Hills, Pennsylvania by the Defendant and his brother, Lawrence Lawton, on October 24, 1996. On March 24, 1997, Lawrence Lawton pled guilty to the robbery of Richard's Jewelers and confessed to the robbery of 13 other jewelry stores on the East Coast. (Def.'s Mem. at 4.) As part of his confession, Lawrence Lawton provided the Federal Bureau of Investigation ("FBI") with information about each of those robberies, but did not identify his brother as his accomplice. (Id. at 4-5.) Instead, he told the FBI that his accomplice was named "John Rodriguez." (Id.) He also told the FBI that he used fake guns in the robberies. (Id.) As part of his plea agreement with the Government, Lawrence Lawton turned a BB gun over to the FBI which he claimed was used in the Richard's Jewelers robbery. (Id. at 5.) The Government believed Lawrence Lawton and dismissed the charge of using and carrying a firearm as part of Lawrence Lawton's plea agreement. (Id. at 4.)
In 2001, the FBI received information that David Lawton had committed the Richard's Jewelers robbery with his brother and he was indicted for that robbery. (Id. at 5.) During David Lawton's trial, Richard Hutter, the owner of Richard's Jewelers, testified that he believed he was robbed by individuals with real firearms, that he was experienced with firearms, that he had a clear view of the firearms used in the robbery at close range, and that he heard one of the robbers say: "we ought to blow him away so there's no witnesses." United States v. Lawton, No. 02-2726, 2003 WL 1889623, at * 1 (3d Cir. Apr. 17, 2003) (internal quotation omitted).
On June 13, 2002, Defendant was sentenced to 70 months imprisonment on Counts I and II, to be served concurrently, and 60 months imprisonment on Count III, to be served consecutively to his sentence on Counts I and II, three years of supervised release, a special assessment of $300, and restitution in the amount of $64,820.30. Defendant appealed his conviction to the United States Court of Appeals for the Third Circuit. On appeal, Defendant challenged the sufficiency of the evidence underlying his conviction for carrying a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A) (the "Section 924(c)(1)(A) count"), arguing that the Government had not proved possession of a weapon beyond a reasonable doubt.Id. The Third Circuit denied Defendant's appeal on April 17, 2003, affirming the judgment of the District Court and finding that the jury's verdict on the Section 924(c)(1)(A) count was sufficiently supported by the evidence. Id. at *2.
Defendant has moved for relief pursuant to 18 U.S.C. § 2255, which provides as follows:
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 the court which imposed the sentence to vacate, set aside or correct the sentence. 28 U.S.C. § 2255. "Section 2255 does not provide habeas petitioners with a panacea for all alleged trial or sentencing errors." United States v. Rishell, Civ.A. Nos. 97-294-1, 01-486, 2002 WL 4638, at *1 (E.D. Pa. Dec. 21, 2001) (citation omitted). In order to prevail on a Section 2255 motion, the movant's claimed errors of law must be constitutional, jurisdictional, "a fundamental defect which inherently results in a complete miscarriage of justice," or "an omission inconsistent with the rudimentary demands of fair procedure." Hill v. United States, 368 U.S. 424, 428 (1962).
Defendant challenges his judgment of conviction on two grounds: (1) his counsel was ineffective in failing to argue to the jury that Richard Hutter was unable to properly identify Defendant from a photo array at trial and (2) that his counsel was ineffective in connection with Defendant's direct appeal for failing to establish that there was insufficient evidence to support the jury's verdict on the Section 924(c)(1)(A) count. In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court held that criminal defendants have a Sixth Amendment right to "reasonably effective" legal assistance, id. at 687, and determined that a defendant claiming ineffective assistance of counsel must show the following:
Defendant asserted two additional grounds for relief in his Motion: prosecutorial misconduct in the use of perjured testimony at trial and the denial of Defendant's Sixth Amendment right to have his indictment returned in open Court, recorded in the record and signed by the grand jury foreman. Defendant withdrew these two grounds, through counsel, during the December 22, 2004 Hearing.
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.Id. In order to meet his burden of proving ineffectiveness, a "defendant must show that counsel's representation fell below an objective standard of reasonableness." Id. at 688. Defendant must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment.
Defendant's first ground for relief is based upon the transcript of Richard Hutter's trial testimony. During his testimony, Mr. Hutter was asked, on direct examination, about his initial identification of Defendant from a photo array shown to him by an FBI agent prior to Defendant's arrest in this case:
Q. . . . Do you recognize Government 7 for identification?
A. Yes, this is the picture array that the FBI agent showed me when he came to the store.
Q. And, was that on October the 4th of 2001?
A. Yes.
Q. And, does that array appear today the same as it did the day you saw it?
A. Yes.
Q. And, do you know from looking at that array which photograph you selected?
A. Yes.
Q. Which one?
A. Number 5.
(3/11/02 N.T. at 25, ll. 1-14.) The photograph which Mr. Hutter had identified to the FBI agent on October 4, 2001 was photograph number four. Defendant contends that his identification was a significant issue at trial, since he has facial hair, but both robbers were described as clean shaven. He argues that his counsel was, consequently, ineffective for failing to explore this misidentification at the time it was made or during summation to the jury. At the hearing on the instant Motion, both the FBI agent who had shown the photo array to Mr. Hutter and Defendant's trial counsel were asked if they heard Mr. Hutter identify the wrong photograph during trial. Neither recalled hearing that testimony. After the hearing, the Court obtained the tape of Mr. Hutter's trial testimony. On the tape, Mr. Hutter can be heard clearly identifying photograph number four as the photograph he had previously identified for the FBI agent. The tape has since been played for Defendant's current counsel, who has informed the Court that "after listening to the tape several times I am obliged to confirm that Mr. Hutter clearly answered `4' and not `5' as transcribed." (William T. Cannon, Esq. Letter dated 2/28/05.) Defendants Motion is, accordingly, denied with respect to Defendant's contention that his trial counsel was ineffective in failing to point out the "misidentification" to the jury.
Defendant's second ground for relief is based upon the Pre-Sentence Investigation Report ("PSI") prepared by the United States Probation Office and adopted by the Court at Defendant's sentencing. (6/13/02 N.T. at 4, l. 23-5, l. 1.) The PSI includes the following pertinent statement in its description of the Richard's Jewelers robbery: "[T]he owner removed the setting from his showcase and looked up to see that the men were pointing what appeared to be a .38 caliber pistol and a .9 millimeter automatic pistol at him. (It later was determined that the guns actually were a BB gun and a cap gun.)" (PSI ¶ 7.) Neither the Government nor Defendant's counsel objected to this portion of the PSI at Defendant's sentencing. Defendant contends that, since the Court adopted the PSI's factual summary of the robbery for use at sentencing, he should not have been sentenced on the Section 924(c)(1)(A) count, because violation of Section 924(c)(1)(A) requires use of a real firearm, not a BB gun or a cap gun. He argues that his counsel was ineffective for failing to raise this issue on appeal.
Defendant was convicted by a jury of carrying a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A) and 18 U.S.C. § 2 and that conviction was upheld on appeal as having been supported by sufficient evidence. To the extent that Defendant is attempting to assert a collateral challenge to the sufficiency of the evidence supporting his conviction and sentence for violation of Section 924(c)(1)(A), his challenge must fail because this claim was already rejected on direct appeal. See Withrow v. Williams, 507 U.S. 680, 721 (1993) ("[A] prior opportunity for full and fair litigation is normally dispositive of a federal prisoner's habeas claim. If the claim was raised and rejected on direct review, the habeas court will not readjudicate it absent countervailing equitable considerations; if the claim was not raised, it is procedurally defaulted and the habeas court will not adjudicate it absent countervailing equitable considerations ( e.g., actual innocence or cause and prejudice.") (citations omitted); United States v. DeRewal, 10 F.3d 100, 105 n. 4 (3d Cir. 1993) ("Section 2255 generally `may not be employed to relitigate questions which were raised and considered on direct appeal.'") (quoting Barton v. United States, 791 F.2d 265, 267 (2d Cir. 1986)). Defendant may not reassert a claim that there was insufficient evidence to support his conviction for violation of Section 924(c)(1)(A) in this Section 2255 Motion unless there are countervailing equitable considerations such as actual innocence. Defendant does not claim that he is actually innocent and, indeed, does not challenge his conviction on either the conspiracy or robbery charge. Consequently, the Court will not revisit the sufficiency of the evidence supporting Defendant's conviction for carrying a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A) and 18 U.S.C. § 2.
During the Hearing on this Motion, Defendant maintained that he is actually asserting a new claim, i.e., that his counsel was ineffective for failing to address the PSI's statement regarding the guns in his briefs on appeal. To the extent that Defendant has taken the position that his counsel was ineffective for failing to argue on appeal that Defendant should not have been sentenced for violation of Section 924(c)(1)(A) because of this mistake in his PSI, his Motion is denied. Defendant was convicted by a jury of violation of Section 924(c)(1)(A). Defendant has pointed to no authority for the proposition that a factual mistake in a PSI trumps a jury's verdict which the Court of Appeals has concluded was supported by sufficient evidence. Accordingly, the Court finds that defense counsel's failure to assert this argument on appeal did not fall below an objective standard of reasonableness and, therefore, was not ineffective. Defendant's Motion is, therefore, denied with respect to this claim.