United States v. Graves

UNITED STATES OF AMERICA v. LACEY GRAVES, Appellant

No. 13-3142

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Submitted: March 26, 2015

May 28, 2015

NOT PRECEDENTIAL

On Appeal from the United States District Court for the Eastern District of Pennsylvania

(D.C. No. 2-06-cr-00095-01)

District Judge: Honorable Jan E. DuBois

Submitted Under Third Circuit LAR 34.1(a)

March 26, 2015

Before: GREENAWAY, JR., KRAUSE, and GREENBERG, Circuit Judges.

OPINION^*

KRAUSE, Circuit Judge.

Lacey Graves, who was convicted by a jury of bank robbery, appeals the District Court's decision to deny his motion to vacate his sentence pursuant to 28 U.S.C. § 2255. We will vacate the District Court's order in part, affirm in part, and remand for further consideration in light of our recent decision in United States v. Wright, 777 F.3d 635 (3d Cir. 2015).

I.

Graves was tried three times for bank robbery, in violation of 18 U.S.C. § 2113(d), and for use of a firearm during the commission of a violent felony, in violation of 18 U.S.C. § 924(c). The District Court declared a mistrial in the first two trials after the jury failed to reach a verdict. At the third trial, the jury found Graves guilty of the bank robbery charge and acquitted him of the firearm charge, and the District Court sentenced him to a term of 180 months' imprisonment, a term of supervised release of five years, restitution of $6,421, and a special assessment of $100. Graves appealed the conviction, and we affirmed. See United States v. Graves, 373 F. App'x 229, 232-34 (3d Cir. 2010).

Graves subsequently filed a motion under 28 U.S.C. § 2255, arguing that his trial counsel did not provide effective assistance, as defined by Strickland v. Washington, 466 U.S. 668 (1984), because they failed to call Leslie Neal as a witness and failed to make a motion to suppress items seized from Neal's home.¹ The District Court denied Graves'§ 2255 motion, but granted a certificate of appealability on the suppression issue. We expanded the certificate of appealability to include counsel's failure to call Neal as a witness. We will address these two Strickland issues in turn.

The District Court had jurisdiction under 18 U.S.C. § 3231 and 28 U.S.C. § 2255, and we have jurisdiction pursuant to 28 U.S.C. § 1291. In a § 2255 proceeding, we exercise plenary review over the District Court's legal conclusions and apply a clear error standard to its findings of fact. United States v. Travillion, 759 F.3d 281, 289 (3d Cir. 2014).

II.

To prove ineffective assistance of counsel, a criminal defendant must show (1) that counsel's performance was deficient, and (2) that the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687. Our review of counsel's performance "must be highly deferential" so as "to eliminate the distorting effects of hindsight," and we therefore "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. To establish prejudice, "[t]he 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." Id. at 694.

A.

First, Graves argues that he was deprived of his right to effective assistance because counsel failed to call his girlfriend, Leslie Neal, as a witness. The District Court held that this Strickland claim failed because Graves' counsel "made a strategic decisionnot to call Neal as a witness" and that "[t]his decision was not so unreasonable as to be constitutionally deficient." United States v. Graves, 951 F. Supp. 2d 758, 775 (E.D. Pa. 2013). We agree.

Strickland requires that a defendant "overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." 466 U.S. at 689 (internal quotation marks omitted). If the Government "can show that counsel actually pursued an informed strategy (one decided upon after a thorough investigation of the relevant law and facts)," the effectiveness of counsel's assistance is "virtually unchallengeable." Thomas v. Varner, 428 F.3d 491, 500 (3d Cir. 2005).

The Government argues, convincingly, that Graves' counsel opted not to call Leslie Neal as a witness because her testimony harmed Graves' case more than it helped. Graves' counsel had observed Neal's testimony at the first two trials and determined that she lacked credibility as a witness. Neal had testified previously that, on the day of the robbery, she dropped Graves at a Walmart near the bank and drove to meet a drug dealer to purchase marijuana for Graves. Unable to find the drug dealer and wanting to know the time, she pulled into the bank parking lot, covered her head with a scarf to protect herself from the rain, and looked through the bank's glass doors in search of a clock on the wall.² The Government offered the alternative explanation that Neal had parked in the bank's parking lot, covered her face with a scarf to obscure her identity, and peered into the bank's windows to case the bank for Graves' robbery. In support, the Government offered the eyewitness testimony of a bank teller who had been so unnerved by Neal's behavior that she had tried to copy down Neal's license plate number.

Graves argues that Leslie Neal would have rebutted other witnesses' testimony and provided an alternative account of Graves' actions at the time of the robbery, relying on cases holding that the failure to call a crucial alibi witness or to investigate the existence of an alibi witness might constitute deficient performance. See, e.g., Adams v. Bertrand, 453 F.3d 428, 436-38 (7th Cir. 2006). The record here, however, does not support this argument and renders these cases inapposite. Graves' defense at the third trial focused on the unreliability of eyewitness identifications of the masked robber. Neal's testimony, assuming it was consistent with her testimony from the two previous trials, would have compromised this defense by placing Graves in close physical proximity to the bank without otherwise accounting for his actions at the time. The record therefore demonstrates that Graves' counsel opted not to call Neal based on an informed, reasoned belief that her testimony would hurt a potentially viable defense and that counsel made a reasonable strategic decision not to call her as a witness for the third trial. Counsel's decision thus cannot be deemed deficient under Strickland.

B.

Second, Graves argues that his trial counsel provided ineffective assistance because of their failure to move to suppress evidence found in Neal's home based on thesearch warrant's lack of particularity.³ That evidence included Graves' New Balance sneakers, which a forensic examiner with the Federal Bureau of Investigation with specialized training in shoeprint examinations testified could have been responsible for the footwear impressions found at the crime scene, as well as purchase receipts totaling $226.03.

The District Court held that Graves failed to prove effective assistance because, although it concluded that counsel was deficient in failing to move to suppress a facially defective warrant, Graves did not prove prejudice.⁴ Specifically, the District Court held that (1) counsel's motion to suppress would have been granted under our then-existing case law, Graves, 951 F. Supp. 2d at 766 (citing Groh, 540 U.S. at 563-65); but concluded that (2) the jury would have convicted Graves in any event on the basis of the other evidence introduced at trial, so there was no "reasonable probability that, without that evidence, Graves would not have been found guilty." Graves, 951 F. Supp. 2d at 775.

The Government asks us to affirm on the second part of the District Court's rationale, i.e., even assuming a motion to suppress had been made and granted, there was no reasonable probability of a verdict other than guilty. We cannot agree.⁵ Having elicited the testimony of the FBI expert linking the sneakers to the shoe prints found at the bank, the Government reiterated the importance of the FBI expert's testimony in its closing argument, stating that the sneakers were "valuable" evidence because they were "a match" with footprints found at the scene of the crime, though it conceded that they were not an "exclusive match."⁶ (Supp. App. 615-16.) Further, the Government used the sneakers to tie Graves to Leslie Neal, who it alleged had cased the bank and then driven off in Graves' car. The fact that Graves' sneakers were found at Neal's apartment strengthened the Government's argument that Graves entrusted Neal with casing the bank and driving his car—the same car that had been identified by a partial license plate number at the scene of the crime and that the Government asserted Neal had driven away after casing the bank. The New Balance sneakers thus played a significant role in the Government's case, and even the Government concedes on appeal that the evidence from the search of Neal's home was "certainly probative." Appellee's Br. 33.

We must evaluate the prejudicial effect of counsel's performance "in light of the totality of evidence at trial: a verdict or conclusion only weakly supported by the recordis more likely to have been affected by errors than one with overwhelming record support." Grant, 709 F.3d at 235 (internal quotation marks omitted). While the District Court may well be correct that the evidence in question did not have a "strong impact" on the trial, it was also correct that this case was a quintessential example of a "close case." Graves, 951 F. Supp. 2d at 774. Indeed, it was such a close case, with the first two trials ending with hung juries, that even a weak impact may well have altered the outcome. Thus, given the role the sneakers played in the Government's case, we conclude, contrary to the District Court, that Graves satisfied his burden to show "a reasonable probability that . . . the result of the proceeding would have been different."⁷ Strickland, 466 U.S. at...