United States v. Garvin

UNITED STATES OF AMERICA v. LAMAR KEITH GARVIN, Petitioner.

Criminal No. 3:13CR141

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division

March 19, 2019

MEMORANDUM OPINION

Lamar Keith Garvin, a federal inmate proceeding pro se, submitted this motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence ("§ 2255 Motion," ECF No. 102). In his § 2255 Motion, Mr. Garvin asserted that he was entitled to relief upon the following grounds:

Claim One "Lawyer was ineffective for failing to communicate plea offer to me from the Government during the plea window." (§ 2255 Mot. 4.)¹

Claim Two Counsel failed to provide effective assistance during the plea process because: (a) counsel failed to provide Mr. Garvin with advice as to what sentence he would receive if he pled guilty versus what sentence he would receive if he went to trial (b) counsel failed to explain to Mr. Garvin that he could plead to some counts and pursue a trial on other counts. (Id. at 5.)

Claim Three "Lawyer was ineffective at my sentencing hearing and had an actual conflict of interest . . . ." (Id. at 6.)

Claim Four "Lawyer was ineffective for failing to investigate for an obvious defense." (Id. at 8.)

Mr. Garvin later moved to add a fifth claim pursuant to Johnson v. United States, 135 S. Ct. 2551 (2015):

Claim Five In the wake of Johnson v. United States, 135 S. Ct. 2551 (2015), Mr. Garvin's convictions for use of a firearm during the commission of a crime of violence (Count 2 and 4) must be vacated.

(ECF No. 121, at 1.)

Mr. Garvin's first four claims contend that his counsel, Craig Sampson, Esq., provided ineffective assistance of counsel that caused Mr. Garvin to, inter alia, forego a favorable plea agreement and coerced Mr. Garvin into involuntarily pleading to crimes of which he is innocent. Mr. Garvin's claims are without merit. For example, with respect to Claim One, the record reveals that Mr. Garvin's stubborn refusal to timely acknowledge his guilt and accept the attendant sentences, rather than any ineffective assistance, prevented Mr. Garvin from receiving the benefit of the Government's initial plea offer.

I. INITIAL PROCEDURAL HISTORY

A. The Robberies

Between September 12, 2012 and March 25, 2013, Mr. Garvin and other coconspirators robbed several jewelry stores in Maryland and Virginia. (ECF No. 70 ¶ 6.)² "[Mr.] Garvin was considered the 'front man' in all the robberies except for the Zales Jewelers in Spotsylvania, Virginia. [Mr.] Garvin would walk into the stores, make conversations with the clerk, and have them open a case. The coconspirators would then come into the stores carrying or brandishing firearms." (Id. ¶ 7.) The Presentence Report reveals the following with respect to these robberies:

Zales Jewelry Store - Baltimore County, Maryland

On September 12, 2012, Mr. Garvin and Michael Anthony Richardson robbed the Zales Jewelry store in Owings Mills, Maryland. (Id. ¶ 9.) Although Richardson brandished a gun, it was not a real gun. (Id. ¶¶ 7, 9.)

Kay Jewelers Store - Henrico County, Virginia

On November 13, 2012, Mr. Garvin, Michael Anthony Smith, and another individual robbed the Kay Jewelers Store in Henrico, Virginia, "while brandishing a firearm." (Id. ¶ 11.)

Zales Jewelry Store - Spotsylvania, Virginia

On January 12, 2013, Mr. Garvin, Richardson, and Veronica Smith, attempted to rob a Zales Jewelry Store in Fredericksburg, Virginia. (Id. ¶ 13.) Richardson was armed with a handgun. (Id.) The jewelry store "clerk jumped the counter and subdued Richardson causing him to drop the firearm." (Id.) Smith and Mr. Garvin fled, grabbing the dropped firearm and a ring that belonged to the store. (Id.)

Littman Jewelers - Short Pump, Virginia

On February 18, 2013, Mr. Garvin and two coconspirators robbed Littman Jewelers in Short Pump, Virginia. (Id. ¶ 19; ECF No. 43, at 2-3.) "The two coconspirators brandished firearms during the robbery." (ECF No. 70 ¶ 19.)

Finks Jewelers - Stony Point, Virginia

On March 25, 2013, Mr. Garvin and two coconspirators robbed a Finks Jewelers in the Stony Point Fashion Park in Richmond, Virginia. (Id. ¶ 21.) Two of the coconspirators brandished firearms. (Id.)

B. The Initial Charges

On August 20, 2013, Mr. Garvin and Veronica Smith were named in a two-count Indictment. (ECF No. 13.) Count One charged Mr. Garvin and Smith with the attempted Hobbs Act robbery of the Zales Jewelry Store in Spotsylvania, Virginia, on January 12, 2013. (Id. at 1.) Count Two charged Mr. Garvin and Smith with use and carry of a firearm during and in relation to the crime of violence that was the subject of Count One. (Id. at 2.)

On November 4, 2013, Mr. Garvin was arrested by the United States Marshal's fugitive task force. (ECF No. 70 ¶ 23.) In the process of being transported to this Courthouse, Mr. Garvin made several incriminating statements to federal agents. Agent Sensabaugh read Mr. Garvin his Miranda rights, and Mr. Garvin indicated that he understood those rights. (Jan. 13, 2014 Tr. 10.) Agent Sensabaugh informed Mr. Garvin that two of his coconspirators were in custody and "were making statements against him," (Jan. 13, 2014 Tr. 18), and they had video evidence of the "use of a firearm in the robberies. To which [Mr. Garvin] immediately replied, I never used a gun." (Jan. 13, 2014 Tr. 18-19.) Agent Sensabaugh explained to Mr. Garvin that "there was video evidence of him walking into a jewelry store, bending down and picking up the gun that his co-conspirator had dropped." (Jan. 13, 2014 Tr. 19.) Mr. Garvin "immediately replied, 'I never pointed a gun at anyone. Never brandished it.'" (Jan. 13, 2014 Tr. 19.)³ Mr. Garvin also told Agent Sensabaugh that he turned to armed robberies to pay back someone he owed for a drug-related debt. (Jan. 13, 2014 Tr. 21-22.) Agent Sensabugh then asked Mr. Garvin about the "the progression of merchandise" that Mr. Garvin stole. (Jan. 13, 2014 Tr. 22.) Mr. Garvin "interjected, 'What do you mean? Why I went from rings to Rolex?'" (Jan. 13, 2014 Tr. 22.) Mr. Garvin then explained it was significantly more profitable to steal the Rolexes. (Jan. 13, 2014 Tr. 23.)

On November 5, 2013, Craig Sampson, Esq., was appointed to represent Mr. Garvin. (ECF No. 27.) On November 13, 2013, Mr. Garvin was arraigned on the original Indictment. (ECF No. 30.) Mr. Garvin was informed that he faced up to twenty years of imprisonment for Count One and five years to life imprisonment for Count Two. The matter was set for a jury trial on January 13, 2014.

On December 30, 2013, Mr. Garvin, by counsel, filed a Motion to Suppress his statements to the ATF agents. (ECF No. 35.)

On January 13, 2014, the Court conducted a hearing on the Motion to Suppress. (ECF No. 40.) The Court denied the Motion to Suppress with respect to the statements set forth above. (Id.)

On January 21, 2014, Mr. Garvin was named in a seven-count Superseding Indictment. (ECF No. 43.) Counts One and Two in the Superseding Indictment charged the same conduct that was the subject of Counts One and Two of the original Indictment. (ECF No. 43, at 1-2.) Count Three charged Mr. Garvin with the Hobbs Act robbery of the Kay Jewelers on November 13, 2012. (Id. at 2.) Count Four charged Mr. Garvin with using, carrying, and brandishing a firearm duringand in relation to the crime charged in Count Three. (Id.) Count Five charged Mr. Garvin with the Hobbs Act robbery of the Littman Jewelers on February 18, 2013. (Id. at 2-3.) Count Six charged Mr. Garvin with the Hobbs Act robbery of the Finks Jewelers on March 25, 2013. (Id. at 3.) Count Seven charged Mr. Garvin with conspiracy to commit Hobbs Act robbery from September 12, 2012 through March 25, 2013. (Id. at 4.) On January 30, 2014, Mr. Garvin was arraigned on the Superseding Indictment. (ECF No. 47.) The matter was set for a jury trial on May 12, 2014. (Id.)

C. Mr. Garvin's Guilty Plea and Sentencing

On May 12, 2014, on the morning of trial, Mr. Garvin refused to change out of his jail clothes into civilian clothes and sought to discharge Mr. Sampson as counsel. (May 12, 2014 Tr. 3-5.) The Court denied his request. (May 12, 2014 Tr. 10.) After the jury was seated and Mr. Garvin heard the Government's opening statement, Mr. Garvin changed his mind and decided to plead guilty to the charges in the Superseding Indictment. (See Aug. 15, 2014 Tr. 28-29.)

Prior to sentencing, Mr. Garvin moved to withdraw his plea and have new counsel appointed. (ECF No. 74.) After hearing from the parties and Mr. Garvin, the Court denied Mr. Garvin's motions. (ECF No. 81.) Thereafter, the Court sentenced Mr. Garvin to thirty years and one day of imprisonment. (ECF No. 83, at 3.) The sentence consisted of five years on Count Two and twenty-five years on Count Four, to be served consecutively, and a term of one day on Counts One, Three, Five, Six, and Seven to run concurrently with each other. (Id.)

After an unsuccessful appeal, (ECF No. 94), Mr. Garvin filed his present § 2255 Motion.

II. ALLEGED INEFFECTIVE ASSISTANCE OF COUNSEL

A. Claim One

In Claim One, Mr. Garvin contends that:

My attorney, Mr. Sampson, never communicated to me or showed me the plea thatthe prosecutor said she gave [to] Mr. Sampson to give to me at my sentencing hearing, nor did he communicate a plea of any kind to me, he only told me, "if I plead guilty to Counts One and Two I would get 15 years."

(§ 2255 Mot. 4.) As explained below, the record, including Mr. Garvin's own submission, reflect that he was well aware of the prosecution's initial plea offer, that Mr. Sampson provided competent advice with respect to that offer, but that Mr. Garvin refused the offer while it was available because he obstinately believed he should not spend but a few years in jail for his crimes.

1. The Initial Plea Offer

During the sentencing proceedings, the prosecutor outlined the plea offer that had been available to Mr. Garvin. The prosecutor had "offered to Mr. Garvin that he could plead guilty to the Spotsylvania robbery, which was the...