Wingate v. United States

969 F.3d 251

Alfred Ross WINGATE, Jr., Petitioner-Appellant,

v.UNITED STATES of America, Respondent-Appellee.

No. 18-2381

United States Court of Appeals, Sixth Circuit.

Argued: May 1, 2020

Decided and Filed: August 5, 2020

ARGUED: Andrew Kim, GOODWIN PROCTER LLP, Washington, D.C., for Appellant. Patricia Gaedeke, UNITED STATES ATTORNEY'S OFFICE, Detroit, Michigan, for Appellee.

ON BRIEF: Andrew Kim, William M. Jay, GOODWIN PROCTER LLP, Washington, D.C., for Appellant. Patricia Gaedeke, Kenneth R. Chadwell, UNITED STATES ATTORNEY'S OFFICE, Detroit, Michigan, for Appellee.

Before: BOGGS, GRIFFIN, and LARSEN, Circuit Judges.

LARSEN, Circuit Judge.

Alfred Wingate was charged with multiple counts of federal robbery and firearm crimes in connection with a conspiracy to rob a bank and two pharmacies. After an eight-day jury trial, he was convicted on all counts. This court affirmed his conviction on direct appeal. Wingate then filed a § 2255 motion to vacate his sentence, asserting that his counsel was ineffective and that the federal bank robbery and pharmacy robbery statutes are not crimes of violence under 18 U.S.C. § 924(c) ’s elements clause. The district court rejected both claims, and we AFFIRM.

I.

Alfred Ross Wingate, Jr. was charged with nine counts relating to three robberies: one count of bank robbery in violation of 18 U.S.C. § 2113(a), two counts of pharmacy robbery in violation of 18 U.S.C. § 2118(a), three counts of using or carrying a firearm during a federal crime of violence in violation of 18 U.S.C. § 924(c), two counts of being a felon in possession of a firearm (Wingate was on parole for second-degree murder at the time of the robberies) in violation of 18 U.S.C. § 922(g), and one count of conspiracy to commit the previously mentioned crimes in violation of 18 U.S.C. § 371. Nearly all of the indicted co-conspirators pleaded guilty; only Wingate and Raynard Crowe went to trial. After an eight-day joint trial, the jury convicted Wingate on all nine counts, but acquitted Crowe of the charges related to one of the pharmacy robberies. The district court sentenced Wingate to a total of 684 months’ imprisonment. Both men appealed, and we affirmed. United States v. Crowe , 614 F. App'x 303, 314 (6th Cir. 2015).

Wingate subsequently filed a § 2255 motion, arguing that his trial counsel was ineffective and that his convictions for bank and pharmacy robbery were improperly classified as crimes of violence under § 924(c). The district court denied Wingate's § 2255 motion but granted a certificate of appealability on all claims. Wingate now appeals.

II.

A.

We review the denial of a § 2255 motion de novo. Rodriguez-Penton v. United States , 905 F.3d 481, 486 (6th Cir. 2018). That same de novo standard also applies to "claim[s] of ineffective assistance of counsel, which [are] mixed question[s] of law and fact." Id. We review the district court's factual findings for clear error. McPhearson v. United States , 675 F.3d 553, 558 (6th Cir. 2012).

To prevail on an ineffective-assistance-of-counsel claim, Wingate must satisfy the two-pronged test announced in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "Surmounting Strickland ’s high bar is never an easy task." Padilla v. Kentucky , 559 U.S. 356, 371, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). First, Wingate "must show that counsel's representation fell below an objective standard of reasonableness." Strickland , 466 U.S. at 687–88, 104 S.Ct. 2052. Second, he must show prejudice, that is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. A "reasonable probability" is one "sufficient to undermine confidence in the outcome." Id.

We may address Strickland ’s prongs in any order, and we need not address both prongs "if [Wingate] makes an insufficient showing on one." Id. at 697, 104 S.Ct. 2052. Here, Wingate argues that trial counsel was ineffective for failing to cross-examine more of the government's witnesses and for "failing to move to suppress the identification obtained as a result of a suggestive photo lineup." Wingate cannot demonstrate prejudice, so we do not address the performance prong.

B.

Wingate was convicted of robbing three institutions: a Citizens Bank branch, the Ferndale Pharmacy, and a Medicap Pharmacy. He claims that his trial counsel provided him with ineffective assistance on each count. We organize our analysis by robbery.

The Citizens Bank Robbery . Wingate's trial counsel cross-examined six of the government's nine witnesses with respect to this robbery. Wingate argues that he was prejudiced by counsel's failure to cross-examine the other three. In particular, he complains that he was harmed by his counsel's failure to ask them whether Wingate was "present at the scene of the crime or not seen by [them] at the scene." We see no prejudice.

At trial, the government showed the jury various videos pulled from the bank's security cameras. One video, taken from the bank's ATM camera, showed a "maroon" or "burgundy" minivan pulling up in front of the bank. Shurita Kennedy and Leroy Loving, two co-conspirators turned government witnesses, identified the minivan as Wingate's. The bank's security footage also showed two unmasked men getting out of the minivan and entering the bank. When shown a still frame from the video, Loving identified himself as one of the men and Wingate as the other.

Mary Long and Carol Thompson were the only two bank employees at the branch that day. Long and Thompson testified that once the two men were inside the bank, they lowered their masks to cover their faces and robbed the bank at gun point. Because of the masks, neither Long nor Thompson was able to identify the robbers beyond noting that they were both black and male. The jury was shown the bank's security video that confirmed Long's and Thompson's accounts.

While the robbery was going on, the ATM camera outside the bank recorded the arrival of parking enforcement officer, Jeanne Brys. Brys testified that she stopped to ticket the minivan, whose meter had expired. But upon seeing the minivan's handicap license plate, she declined to ticket it. She described the minivan as "maroon," "in mint condition," and "newer [with] tinted windows." Brys testified that "someone exited the bank ... and walked in front of [her] vehicle with a backpack and they were wearing a rubber glove." She said when she saw the man, she "froze for a moment," "locked [her] door," and "looked straight ahead," avoiding eye contact. She indicated that she felt unsafe because the "situation seemed suspicious," and she was wearing what looked like a police uniform but was not armed. Brys's testimony is consistent with Loving's that Wingate alone returned to the minivan.

Two other witnesses testified about the bank robbery. The first was Wingate's fiancée, Nancy Brown, who acknowledged that she would not have testified had she not been subpoenaed. She identified the minivan as hers, describing it, as had Brys, as a "nice," "burgundy," "2009 Honda Odyssey" with a handicap license plate. She further testified that Wingate had "free use" of the vehicle. She confirmed that she had deposited $3,000 in cash into her bank account just three days after the robbery. Wingate gave her that cash.

The other witness was a local police officer, Patrick Spelman. Spelman pulled Crowe over the day after the robbery and smelled marijuana in the vehicle; a search uncovered "a little more than" a gram of marijuana on Crowe and $1,543 in cash. Spelman interrogated Crowe on suspicion of being a marijuana dealer, but he ultimately released Crowe without charges.

Of these nine witnesses, the only three whom Wingate's trial counsel did not cross-examine were Spelman, Thompson, and Brys. No amount of cross-examining Spelman could have improved Wingate's case. Spelman had no interaction with Wingate at any time and could not have testified to whether Wingate was at "the scene of the crime," as Spelman was never there himself.

Thompson and Brys are alleged, at least by implication, to have had contact with Wingate. But no meaningful benefit could have been derived from cross-examining them about their inability to place Wingate at the scene of the crime. Their direct testimony already revealed that they could describe the robbers in only the most superficial fashion. The only identifying information Thompson could manage was that the masked robbers were "a different size" than Crowe. And Brys testified that she never looked directly at the man who walked in front of her car; she saw him out of the corner of her eye and could describe him only as a "black male," wearing a backpack and a rubber glove. It is not surprising, then, that the government did not rely on their identification.

The jury watched the bank's security footage that, along with other corroborating testimony, already placed Wingate and his minivan at the bank during the robbery. Considering "the totality of the evidence before the ... jury," United States v. Dado , 759 F.3d 550, 563 (6th Cir. 2014) (quoting Strickland , 466 U.S. at 695, 104 S.Ct. 2052 ), even a rigorous cross-examination of these witnesses could not have created the likelihood of acquittal necessary to undermine confidence in the jury's verdict, see Strickland , 466 U.S. at 693–94, 104 S.Ct. 2052. Wingate was not prejudiced by his counsel's failure to cross-examine Spelman, Thompson, and Brys.

The Ferndale Robbery . Wingate makes the same argument—trial counsel provided ineffective assistance by failing to cross-examine more of the government's witnesses—about the robbery of the Ferndale Pharmacy. Again, we are unpersuaded.

The government presented the following case: Aubry Allen, Crowe's cousin and a co-conspirator, testified that Crowe planned the robbery and recruited him, first as a getaway driver and then as one of the gunmen. Allen further testified that he, Wingate, and...