United States v. Wallace

UNITED STATES OF AMERICA v. TIMI WALLACE, Petitioner.

Cr No. 00-122 S

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

January 24, 2017

MEMORANDUM AND ORDER

WILLIAM E. SMITH, Chief Judge.

Before the Court is Petitioner Timi Wallace's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 ("Motion").¹ (ECF No. 258.) For the reasons that follow, the Motion is DENIED in its entirety.

I. Background and Travel²

On October 18, 2000, Petitioner and his brother Nickoyan Wallace were indicted on charges relating to the September 25, 2000 armed robbery of a firearms store, D & B Guns, in Providence, Rhode Island. On October 15, 2004, following a jury trial, Petitioner was convicted on charges of robbery (Count I), conspiracy to commit armed robbery (Count II), theft of firearms from a federally licensed firearms dealer (Count III), and brandishing a firearm during and in relation to a crime of violence (Count IV). He was sentenced on January 21, 2005, to 300 months' imprisonment.

In his first appeal, Petitioner challenged both his conviction and his sentence. With respect to his conviction, Petitioner raised four errors by the prosecution and the Court. As to his sentence, Petitioner argued that this Court erred in its calculation of the applicable guidelines range under the United States Sentencing Guidelines ("Guidelines"), its application of the Guidelines' factors to justify an upwarddeparture from the Guidelines range,³ and the overall reasonableness of his sentence. Petitioner's conviction was affirmed, but the First Circuit remanded to this Court for resentencing to correct errors in the application of the Guidelines' factors for an upward departure from the applicable Guidelines range.

On May 25, 2007, Petitioner was resentenced to a 294 month term of imprisonment. Petitioner appealed again, raising a number of challenges to the sentence imposed by this Court on remand. The First Circuit affirmed the sentence.

Petitioner filed the instant Motion on July 6, 2011.

II. Overview

Petitioner raises fifteen grounds for relief including claims related to due process, ineffective assistance of counsel, prosecutorial misconduct, jurisdiction, and sentencing. As many of his claims overlap, they will be grouped accordingly.

With the exception of Ground Fifteen, Petitioner states that "[n]one of the claims presented in the foregoing [Motion] ha[ve] [been] so presented before any federal court, and that was a result of counsel's failure to so raise the issues." (Mot. 11, ECF No. 258.) With the exception of Ground Fifteen,this Court primarily addresses the claims for the limited purpose of determining whether Petitioner's counsel was ineffective.

III. Discussion

A. Law

1. Section 2255

Generally, the grounds justifying relief under 28 U.S.C. § 2255(a) are limited. A court may grant relief when it finds either that a conviction and/or sentence was entered without proper jurisdiction, a constitutional error, or a fundamental error of law. United States v. Addonizio, 442 U.S. 178, 185 (1979). "[A]n error of law does not provide a basis for collateral attack unless the claimed error constituted 'a fundamental defect which inherently results in a complete miscarriage of justice.'" Id. (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). Moreover, § 2255 is not a substitute for direct appeal. Knight v. United States, 37 F.3d 769, 772 (1st Cir. 1994) (citing Addonizio, 442 U.S. at 184-85).

2. Strickland

"The Sixth Amendment guarantees defendants the right to effective assistance of counsel." Lema v. United States, 987 F.2d 48, 51 (1st Cir. 1993) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). However, "[t]he Constitution doesnot guarantee a defendant a letter-perfect defense or a successful defense; rather, the performance standard is that of reasonably effective assistance under the circumstances then obtaining." United States v. Natanel, 938 F.2d 302, 309-10 (1st Cir. 1991).

A defendant who claims that he was deprived of his Sixth Amendment right to effective assistance of counsel must demonstrate: (1) "that counsel's performance fell below an objective standard of reasonableness;" and (2) "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 687-88, 694; see also United States v. Manon, 608 F.3d 126, 131 (1st Cir. 2010). In assessing the adequacy of counsel's performance, a defendant "'must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment,' and the court then determines whether, in the particular context, the identified conduct or inaction was 'outside the wide range of professionally competent assistance.'" Manon, 608 F.3d at 131 (quoting Strickland, 466 U.S. at 690). With respect to the prejudice requirement, a "reasonable probability is one sufficient to undermine confidence in the outcome. . . . In making the prejudice assessment, [the court] focuses on thefundamental fairness of the proceeding." Id. (internal quotations omitted). "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686.

Strickland instructs that "[j]udicial scrutiny of counsel's performance must be highly deferential." Id. at 689. The court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). Moreover, "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Id. at 691. Finally, "[a] fair assessment of attorney performance requires that every effort 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.

B. Claims of Error

1. Grounds One and Two

Petitioner alleges in Ground One that his Fifth and Sixth Amendment rights to due process were violated because the indictment failed "to charge the offense of 'aiding and abetting' as an offense [or] material element of the crime[s] charged in counts I, III, and IV of the indictment. . . ." (Mot. 5, ECF No. 258.) Relatedly, Petitioner claims in Ground Two that the Court "impermissibly amended the indictment by reciting the statute to the jury after they gave notice that the indictment did not charge it; and for instructing them on said uncharged offense." (Id. at 6.) In both claims of error, Petitioner asserts that counsel was "ineffective for failing to raise the[se] issue[s]" at trial and on appeal. (Id. at 5, 6.)

Counts I, III, and IV of the indictment and superceding indictment all alleged violations of 18 U.S.C. § 2, which provides that:

(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.

(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.

Petitioner argues, however, that "[r]eference to 18 U.S.C. § 2 is not enough," and that the indictment was fatally flawed because it failed to "mention the words 'aiding and abetting' (18 U.S.C. § 2(a)) or 'willful' (18 U.S.C. § 2(b)), etc." (Aff. of Mem. in Supp. of Habeas Corpus per § 2255 ("Mem.") 6, ECF No. 258-2.)

To support his argument, Petitioner cites In re Winship, among other cases, for the general rule that "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." 397 U.S. 358, 364 (1970). (Mem. 3, ECF No. 258-2.) However, the First Circuit has held that "[a]n aider and abettor charge is implicit in all indictments for substantive offenses, so it need not be specifically pleaded for an aiding and abetting conviction to be returned." United States v. Footman, 215 F.3d 145, 153-54 (1st Cir. 2000) (quoting United States v. Sabatino, 943 F.2d 94, 99-100 (1st Cir. 1991)); see also United States v. Keene, 341 F.3d 78, 84 (1st Cir. 2003) ("[A] charge of aiding and abetting is implicit in indictments for substantive offenses.") (citing Footman, 215 F.3d at 153-54). Therefore, Petitioner's claim that the indictment was defective is rejected.

In addition, Petitioner's statement that he only became aware that he was also being charged with "aiding and abetting" when the jury asked about the charge is specious. Both the original and superceding indictments alleged a violation of 18 U.S.C. § 2. In its opening remarks, this Court noted that Petitioner was charged with aiding and abetting. (Trial Tr., Vol. 1 11.)⁴ The Government also referred to aiding and abetting during its closing argument. (Trial Tr., Vol. 3 116.) Finally, in its instructions to the jury, the Court included an instruction on the elements of aiding and abetting. (Id. at 179.)

Turning to Ground Two, the Court's response to the jury's question about the aiding and abetting statute⁵ was also proper. The Court repeated the question for the record, explained whereaiding and abetting appeared in the superceding indictment, re-read its instructions to the jury on aiding and abetting, and provided some explanation. (Trial Tr., Vol. 4 2-6.) Neither the Government nor the defendant objected to the Court's response. (Id. at 6.)

The First Circuit has already addressed—and rejected—the arguments Petitioner makes to this...