United States v. Green

493 F.Supp.3d 296

UNITED STATES of America

v.Tristan GREEN, Defendant

CRIMINAL NO. 1:11-CR-361

United States District Court, M.D. Pennsylvania.

Signed October 7, 2020

Eric Pfisterer, Daryl Ford Bloom, U.S. Attorney's Office, Harrisburg, PA, for United States of America.

MEMORANDUM

Christopher C. Conner, United States District Judge

In August 2012, a jury convicted defendant Tristan Green of one count of armed bank robbery in violation of 18 U.S.C. § 2113(d) and one count of carrying, using, and brandishing a firearm during that armed bank robbery in violation of 18 U.S.C. § 924(c)(1)(A). Green moves the court pro se pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct sentence based on perceived errors by the court, the government, and Green's counsel prior to and during trial. Green has also filed a supplemental motion, through appointed counsel, seeking to vacate his Section 924(c) conviction based on the United States Supreme Court's decision in United States v. Davis, 588 U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019).

I. Factual Background & Procedural History

The charges in this case arose from the September 16, 2011 robbery of the Fulton Bank located in Etters, Pennsylvania. The evidence adduced at trial established that two masked men wielding firearms robbed the bank before fleeing the scene in a black Chevy Blazer. Authorities stopped the Blazer approximately one and a half hours after the robbery. Green's codefendant, Willie Elmore, was driving the vehicle and taken into custody. A search of the Blazer revealed a large amount of cash and printed MapQuest directions to 1478 Whiteford Road in York, Pennsylvania, the address where Green's grandparents resided and which Green listed as his residence on his driver's license. Two eyewitnesses, Dawn Foose and Julia Korick, informed authorities that one of the robbers had briefly lowered his mask during the robbery. During separate photographic lineups, Foose and Korick identified Green as the robber who lowered his mask; neither identified Elmore.

On December 20, 2011, the grand jury returned a two-count indictment charging Green and Elmore with armed bank robbery and carrying, using, and brandishing firearms in furtherance of that bank robbery. The court appointed John A. Abom, Esquire, whom we refer to as "trial counsel," to represent Green. Trial counsel promptly moved to suppress the eyewitness identifications, arguing that the photographic arrays were unnecessarily suggestive because Green was the only individual whose photograph displayed parted hair and thick braids or dreadlocks and the only individual depicted in light-colored clothing. After an evidentiary hearing, we denied Green's motion.

Green and Elmore proceeded to trial on August 14, 2012. After three days of evidence, the jury returned a guilty verdict against both defendants on both counts. Green moved for a new trial, arguing primarily that the eyewitness testimony was "so unreliable" as to prevent any rational juror from finding Green guilty beyond a reasonable doubt. (Doc. 111 ¶¶ 3(a), 4(a); Doc. 121 ¶ 7(a)). We denied that motion, finding that the independent eyewitness identifications were sufficient to support the jury's verdict.

Because Green was designated a career offender and had been convicted of a Section 924(c) offense, his Guidelines imprisonment range was 360 months to life. The court sentenced Green to 360 months’ imprisonment, consisting of a 276-month term on Count 1 and an 84-month mandatory-minimum term on Count 2, required by statute to run consecutively to the term imposed on Count 1. Green's conviction and sentence were affirmed on direct appeal. See United States v. Green, 543 F. App'x 266 (3d Cir. 2013) (nonprecedential).

Green timely filed the instant pro se Section 2255 motion, challenging actions taken (and not taken) by trial counsel, government counsel, and the court. Green subsequently filed a supplemental Section 2255 motion through appointed counsel, invoking the Supreme Court's decision in Johnson v. United States, 576 U.S. 591, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). Proceedings were then stayed at appointed counsel's request while a series of cases stemming from Johnson ¹ unfolded at the Supreme Court. In the interim, Green filed a pro se motion to expand the record, asking the court to consider "expert" opinion evidence concerning the skin tone of the robbers seen in the bank's surveillance footage. On March 13, 2020, appointed counsel filed a second supplemental motion under Section 2255, this time relying on the Supreme Court's decision in Davis. Green's pro se motions and counseled motions are now fully briefed and ripe for disposition.

II. Standard of Review

A. Section 2255

Under Section 2255, a federal prisoner may move the sentencing court to vacate, set aside, or correct the prisoner's sentence. 28 U.S.C. § 2255. Courts may afford relief under Section 2255 on a number of grounds including, inter alia , "that the sentence was imposed in violation of the Constitution or the laws of the United States." Id. § 2255(a) ; see also 28 U.S.C. § 2255 Rule 1(a). The statute provides that, as a remedy for an unlawfully imposed sentence, "the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." 28 U.S.C. § 2255(b). The court accepts the truth of the defendant's allegations when reviewing a Section 2255 motion unless those allegations are "clearly frivolous based on the existing record." United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005). A court is required to hold an evidentiary hearing when the motion "allege[s] any facts warranting § 2255 relief that are not clearly resolved by the record." United States v. Tolliver, 800 F.3d 138, 141 (3d Cir. 2015) (quoting Booth, 432 F.3d at 546 ). Vague and conclusory claims, however, are insufficient to entitle a defendant to relief and require no "further investigation" by the district court. See United States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000) (citing United States v. Dawson, 857 F.2d 923, 928 (3d Cir. 1988) ); see also Sepulveda v. United States, 69 F. Supp. 2d 633, 639-40 (D.N.J. 1999) (citing Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977) ).

B. Ineffective Assistance of Counsel

A collateral attack based on ineffective assistance of counsel is governed by the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prevail on such a claim, a defendant must demonstrate that (1) counsel's representation fell below an objective level of reasonableness based on prevailing professional norms, and (2) the deficient representation was prejudicial. See id. at 687-88, 104 S.Ct. 2052. The defendant bears the burden of proving both prongs. See id. at 687, 104 S.Ct. 2052.

To determine whether counsel has satisfied the objective standard of reasonableness under the first prong, courts must be "highly deferential" toward counsel's conduct. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. There is a strong presumption that counsel's performance falls within the broad range of reasonable professional assistance. See United States v. Gray, 878 F.2d 702, 710 (3d Cir. 1989). Only a "rare claim" of ineffectiveness of counsel should succeed "under the properly deferential standard to be applied in scrutinizing counsel's performance." Id. at 711 (citing Strickland, 466 U.S. at 689-90, 104 S.Ct. 2052 ). To satisfy the prejudice prong, the defendant must establish a reasonable probability that, but for counsel's errors, the outcome of the proceeding "would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. 2052. The district court need not conduct its analysis of the two prongs in a particular order or even address both prongs of the inquiry if the defendant makes an insufficient showing in one. See Strickland, 466 U.S. at 697, 104 S.Ct. 2052 ; United States v. Lilly, 536 F.3d 190, 196 (3d Cir. 2008).

III. Discussion

Green's pursuit of collateral relief has proceeded in fits and starts over the past five years. After some procedural hurdles and a stay while the Johnson progeny developed at the Supreme Court, the following matters are before us: Green's counseled claims invoking the Supreme Court's Davis decision, (see Doc. 260), and his manifold pro se claims sounding in ineffective assistance of counsel, prosecutorial misconduct, abuse of discretion, and actual innocence, (see Docs. 186, 187, 237, 252, 253). We begin with the Davis claim.

A. Davis and Green's Section 924(c) Conviction

Green seeks to vacate his Section 924(c) conviction and the resulting consecutive, mandatory minimum sentence.² Section 924(c) establishes enhanced punishments for any person who uses or carries a firearm "during and in relation to," or who possesses a firearm "in furtherance of," a "crime of violence." 18 U.S.C. § 924(c)(1)(A). The length of the mandatory minimum term depends on whether the defendant uses, carries, or possesses the firearm (five years); brandishes the firearm (seven years); or discharges the firearm (ten years). See id. § 924(c)(1)(A)(i)-(iii). A felony offense is a "crime of violence" for purposes of Section 924(c) if it "has as an element the use, attempted use, or threatened use of physical force against the person or property of another," id. § 924(c)(3)(A), or "by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense," id. § 924(c)(3)(B). Courts refer to these clauses as the "elements clause" and "residual clause," respectively. United States v. Robinson, 844 F.3d 137, 140-41 (3d Cir. 2016), cert. denied, ––– U.S. ––––, 138 S. Ct. 215, 199 L.Ed.2d 141 (2017), abrogated on other grounds by Davis, 139 S. Ct. 2319.

As the case law concerning crime-of-violence predicates has evolved, so have Green's arguments. Green...