Opinion
Criminal Action No. 99-143, Civil Action No. 02-768.
January 20, 2005
MEMORANDUM
In this habeas corpus petition filed under 28 U.S.C. § 2255, Eugene A. Ramsey, Jr. makes claims of ineffective assistance of counsel in connection with his trial for bank robbery in 1999. I find that Mr. Ramsey has not demonstrated that his counsel was ineffective. Therefore, I will deny the petition.
I. BACKGROUND
Eugene A. Ramsey, Jr. was convicted on June 15, 1999 of one count of armed robbery and one count of using, carrying and brandishing a firearm during a crime of violence. The Honorable Jay C. Waldman sentenced Mr. Ramsey to sixty-six months imprisonment on the bank robbery charge and a consecutive term of eighty-four months on the using, carrying, and brandishing a firearm during a crime of violence charge. Judge Waldman imposed the sentence on December 6, 1999. The judgment was subsequently affirmed by the Third Circuit on September 25, 2001. This Section 2255 habeas petition was filed on April 7, 2003, after the defendant made an initial Section 2255 filing on February 13, 2002 using the wrong form. Mr. Ramsey was granted additional time to use the correct form. On October 9, 2003, the Honorable Clarence C. Newcomer granted the petition in part and denied it in part. Judge Newcomer denied the claim that Mr. Ramsey was sentenced in error and determined that a hearing would be appropriate on the claims of ineffective assistance of counsel.
Mr. Ramsey contended that Judge Waldman erred in sentencing him on both the armed bank robbery charge and the using, carrying, and brandishing a firearm charge on the basis that the use of the firearm was an element of the bank robbery. According to Mr. Ramsey, he was sentenced twice for the same conduct. Defendant appeared to rely on United States v. Simpson, 435 U.S. 6 (1978), which held that a defendant may not be sentenced under both Section 2113(d) and Section 924(c) offenses. However, Congress amended Section 924(c) in 1984 to statutorily overruleSimpson and Busic v. United States, 446 U.S. 398 (1980). The current state of the law regarding sentences imposed on Section 2113(d) and Section 924(c) offenses was well summarized by the Honorable William H. Yohn, Jr. in United States v. Brown, Criminal Action No. 94-64-01, 1997 W L 325805 (E.D.Pa. June 6, 1997).
A hearing was held on the ineffective assistance of counsel portion of this habeas petition on September 8, 2004. At the request of counsel, each side was given time to submit proposed findings of fact and conclusions of law. This time was extended at the request of petitioner's counsel, and, at this point, all papers have been submitted.
The factual background of these crimes has been presented to and reviewed by a jury, Judge Waldman, and the United States Court of Appeals for the Third Circuit. On February 4, 1999, a black male, approximately 40 to 45 years of age, described as approximately six feet tall and weighing approximately 200 pounds, robbed a bank at 803 Eastern Germantown Pike in Norristown, Pennsylvania. The amount taken was approximately $45,000.00, and the subject displayed and used a firearm. Seven fully-operable surveillance cameras captured on film the face of the bank robber. The videotape from the cameras enabled law enforcement officers to obtain several clear photographs of the bank robber. A photograph was broadcast on television on February 4, 1999. On February 5, 1999, several anonymous telephone calls to law enforcement officials identified Eugene J. Ramsey, Jr. as the bank robber. Mr. Ramsey was also known to an FBI agent who was investigating the crime, and this agent, John Schaefer, identified the individual in the bank surveillance photo as Mr. Ramsey. Several employees of the bank were approached by Mr. Ramsey during the robbery, which lasted less than four minutes.
On February 8, 1999, Mr. Ramsey was interviewed by Plymouth Township Detective Jeffrey McGee. Detective McGee examined the contents of a bag in Mr. Ramsey's possession and found a quantity of money inside. Detective McGee asked Mr. Ramsey how much money was in the bag, and he responded "$70,000.00." When asked where he got the money, Mr. Ramsey replied, "The Broncos."
There is no issue in this case regarding the search of Mr. Ramsey's bag or the interview about its contents.
Two employees of the bank positively identified Mr. Ramsey from a photo array. Moreover, an assistant manager, who was not shown the photo array, also identified Mr. Ramsey in court as the man who robbed the bank.
II. DISCUSSION
To successfully present an ineffective assistance of counsel claim, a petitioner must first establish that counsel's performance was deficient. Jermyn v. Horn, 266 F.3d 257, 282 (3d Cir. 2001). "This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed defendant by the Sixth Amendment." Strickland v. Washington, 466 U.S. 668, 687 (1984). The petitioner must show that "counsel's representation fell below an objective standard of reasonableness," meaning "reasonableness under prevailing professional norms." Id. at 688. In evaluating counsel's performance, "every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. at 689. "There is a `strong presumption' that counsel's conduct was reasonable." Jermyn, 266 F.3d at 282. The petitioner "must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Strickland, 466 U.S. at 689.
The petitioner must also show that he was prejudiced by counsel's errors. Id. at 693. The petitioner must demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome."Id.
A. The Trial Strategy
Mr. Ramsey's Section 2255 habeas petition asserts that his court-appointed attorney, Christopher D. Warren, Esquire, was ineffective for failing to pursue the alibi that he proposed, i.e., that the money found on him was from the sale of a home in Macon, Georgia and a settlement from Liberty Mutual Insurance Company. According to Mr. Ramsey, his counsel should have investigated his whereabouts at the time of the crime and his contention that the funds found on him were legally obtained. Mr. Ramsey argues that Attorney Warren was ineffective for failing to interview and call Mr. Ramsey's son and sister in support of his alibi. Mr. Ramsey further argues that Attorney Warren was ineffective for failing to cross-examine FBI Agents Andrew Lash and John Schaefer about their alleged bias against him. According to Mr. Ramsey, the agents investigated him in connection with another bank robbery in 1997. After those charges were dropped, the agents were "out to get him."
[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.
The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. In particular, what investigation decisions are reasonable depends critically on such information. For example, when the facts that support a certain potential line of defense are generally known to counsel because of what the defendant has said, the need for further investigation may be considerably diminished or eliminated altogether. And when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable. In short, inquiry into counsel's conversations with the defendant may be critical to a proper assessment of counsel's investigation decisions, just as it may be critical to a proper assessment of counsel's other litigation decisions. . . .Strickland, 466 U.S. at 690-91.
The record in this case reveals that Attorney Warren's trial strategies were made after a thorough investigation of the law and facts of this case. Counsel was aware of Mr. Ramsey's proposed alibi and did, indeed, elicit testimony from Mr. Ramsey during the course of the trial that the money found on Mr. Ramsey was legally obtained by him from the sale of a house in Georgia and from a settlement from Liberty Mutual Insurance Company. The record further reveals that Attorney Warren elicited testimony regarding Mr. Ramsey's whereabouts at the time of the crime. Specifically, both Mr. Ramsey and Mr. Ramsey's friend, Ernest Henry, testified that Mr. Ramsey was with Mr. Henry on the day of the robbery until about 1:30 p.m., when Mr. Henry dropped Mr. Ramsey off at a location approximately two miles from the bank. Because Mr. Ramsey did not have access to transportation after he was dropped off and would have had to walk, it would have taken Mr. Ramsey at least forty minutes to get to the bank, which was robbed at 2:00 p.m. Therefore, according to Attorney Warren, because Mr. Ramsey could not have arrived at the bank by 2:00 p.m., he could not have been the robber. Because counsel clearly pursued Mr. Ramsey's proposed alibi and investigated his whereabouts at the time of the robbery, this court finds that Mr. Ramsey's arguments that his counsel was ineffective for failing to pursue his alibi and for failing to investigate his whereabouts must fail.
[Attorney Warren:] Now, you've obviously heard the testimony about the money that was found in your possession?
[Mr. Ramsey:] Right.
[Attorney Warren:] Can you tell us where you got that money from?
[Mr. Ramsey:] I got that money from the sale of a home that I have in Georgia and from Liberty Mutual Insurance Company.
[Attorney Warren:] Why did you keep it in cash?
[Mr. Ramsey:] Because I had a crepancy (sic) with the bank when I bought the home and I took some money out of the bank because of a crepancy (sic) about bloat. Buying the house you have to put so much money down and pay for it within a year or two, but that wasn't the agreement. I didn't know much about real estate at that time.
N.T., 6/15/99, at 61.
At the September 8, 2004 hearing, Attorney Warren indicated that the one person Mr. Ramsey specified that he wanted called as a witness was Ernest Henry, who was, in fact, called as a witness. Counsel credibly indicated that Mr. Ramsey did not direct that he call Mr. Ramsey's son and sister as witnesses. Moreover, counsel stated that he was not aware of any other witnesses who could have supported Mr. Ramsey's alibi. Because Mr. Ramsey never clearly indicated to Attorney Warren that he wanted his son and sister to be called as witnesses, and because counsel was not aware of any other witnesses who could have supported Mr. Ramsey's alibi, this court finds that counsel was not ineffective for failing to call Mr. Ramsey's son and sister as witnesses.
Attorney Warren also indicated at the September 8 hearing that he was aware of the FBI's investigation of Mr. Ramsey in connection with a 1997 bank robbery. Although counsel decided not to cross-examine Agents Lash and Schaefer about their alleged bias against Mr. Ramsey, this court finds that counsel's decision was made after a thorough investigation of the law and facts and was not unreasonable. To cross-examine Agents Schaefer and Lash about a possible bias against Mr. Ramsey would, more than likely, have led to references to the 1997 bank robbery investigation. The introduction of this information about possible prior bad acts would have been prejudicial to Mr. Ramsey. Moreover, this court finds that counsel effectively crossexamined Agents Schaefer and Lash regarding whether Mr. Ramsey was correctly identified from the bank surveillance videotape and whether the FBI adequately investigated this case.
B. The Bank Surveillance Videotape
Mr. Ramsey also argues that Attorney Warren was ineffective for failing to object under United States v. Starks, 515 F.2d 112 (3d Cir. 1975), to the admissibility of the bank surveillance videotape. Mr. Ramsey further argues that his counsel was ineffective for failing to request that the bank surveillance photographs produced from the videotape be digitally enhanced. InStarks, the Third Circuit listed seven criteria for the admission of recordings: (1) that the recording device was capable of taking the activity now offered in evidence; (2) that the operator of the device was competent to operate the device; (3) that the recording is authentic and correct; (4) that changes, additions, or deletions have not been made in the recording; (5) that the recording had been preserved in a manner that is shown to the court; (6) that the persons recorded are identified; and (7) that the activity elicited was made voluntarily and in good faith, without any kind of inducement. Id. at 121 n. 11.
The authenticity of the videotape was never an issue in this case. Attorney Warren certainly was not ineffective for failing to raise an issue with no merit. Mr. Ramsey has shown no reason at all for Attorney Warren to have questioned the accuracy and authenticity of the tape. Mr. Ramsey has not presented any evidence that the bank surveillance video camera was not capable of videotaping the bank robber, the videotape was inauthentic or incorrect, changes, additions, or deletions were made to the videotape, the videotape was not preserved in a manner that was shown to the court, the persons recorded were not identified, or that the activity recorded was not made voluntarily or in good faith. Furthermore, Mr. Ramsey has not provided any evidence that any of the photographs produced from the bank surveillance videotape were unclear. Accordingly, this court finds that Mr. Ramsey has not established that his counsel was ineffective for failing to object to the admissibility of the bank surveillance videotape or for failing to request that any bank surveillance photographs be digitally enhanced.
C. The Photo Array
Mr. Ramsey also argues that Attorney Warren was ineffective for failing to object to the admissibility of the photo array at trial because the array contained a photo of him taken by Agents Lash and Schaefer when they were investigating whether he robbed a bank in 1997. "A due process violation can result when an identification procedure is so suggestive that it undermines the reliability of the resulting identification. Allowing a jury to consider an identification that is tainted by such a procedure can constitute reversible error entitling the defendant to a new trial." United States v. Lawrence, 349 F.3d 109, 115 (3d Cir. 2003). Thus, showing a witness a photo array can constitute a violation of due process when officers "attempt to emphasize the photograph of a given suspect, or when the circumstances surrounding the array unduly suggest who an identifying witness should select." Id. A court must examine the totality of the circumstances to determine whether the array's suggestiveness was a violation of due process. Id. The defendant has the burden of proving that the identification of the suspect was impermissibly suggestive. Id.
In this case, Mr. Ramsey has not presented any evidence that the procedure through which he was identified was impermissibly suggestive. Mr. Ramsey has not introduced evidence that his photograph was emphasized or that the circumstances surrounding the photo array unduly suggested that he should be selected as the bank robber. There was no reference on the photo, or in any discussion of the photo, to the fact that it was generated as part of an earlier investigation. Accordingly, Mr. Ramsey's claim that his counsel was ineffective for failing to object to the admissibility of the photo array at trial must fail.
III. CONCLUSION
Mr. Ramsey has not overcome the strong presumption that his counsel's conduct was reasonable. Because Mr. Ramsey has not established that his trial counsel was ineffective, his Section 2255 habeas petition is denied. An appropriate order follows.
ORDER
AND NOW, this 20th day of January, 2005, upon consideration of Eugene A. Ramsey's petition to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255, the government's response, and arguments and testimony taken at the September 8, 2004 hearing, it is hereby ORDERED that:
1. The petition to vacate, set aside, or correct sentence is DENIED.
2. There is no probable cause to issue a Certificate of Appealability.