United States District Court, Northern District of Indiana, Fort Wayne Division
OPINION AND ORDER
Theresa L. Springmann Judge
This matter is before the Court on the Defendant’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person In Federal Custody [ECF No. 144] filed on October 19, 2011. The Defendant, Dawan A. Warren, contends that his trial counsel provided ineffective assistance during his second trial by failing to adequately prepare for trial and by pursuing an unreasonable defense strategy. For the reasons set forth in this Opinion and Order, the Defendant’s Motion will be granted in part and denied in part. As discussed below, resentencing is appropriate in this case to reflect a term of no more than the maximum sentence of 300 months on Count 1, and to reassess the Defendant’s designation as a career criminal offender.
On January 23, 2007, three males removed monies from the possession of Tower Bank, located at 4303 Lahmeyer Road, Fort Wayne, Indiana. (Loran Aff. 2, ECF No. 1.) One suspect, later identified as Dawan A. Warren, carried a black semiautomatic weapon throughout the robbery. (Id. at 2, 4.) Following a brief police investigation, the Defendant and two other suspects were detained at a nearby residence, 4217 Darby Avenue in Fort Wayne. (Id. at 5.)
On February 22, 2007, a grand jury returned a two count Indictment [ECF No. 12] against the Defendant, alleging armed bank robbery and aiding and abetting in Count 1, a violation of 18 U.S.C. § 2113(a) and (d), and 18 U.S.C. §2; and using or carrying a firearm during a crime of violence and aiding and abetting in Count 2, a violation of 18 U.S.C. §924(c), and 18 U.S.C. §2. (Gov. Resp. 1, ECF No. 150.) On March 2, the Defendant entered a plea of not guilty. (Id.) Attorney Robert W. Gevers, II, entered his appearance [ECF No. 9] as counsel for the Defendant.
The four-day jury trial commenced on June 3, 2008. The Government presented the testimony of bank employees Janice Peters [ECF No. 62] and Josephina Beck [ECF No. 61] by way of deposition read into the record. The defense presented Shyra Porter as an alibi witness [ECF No. 65]. On June 12, 2008, the Court declared a mistrial after the jury was unable to return a verdict [ECF No. 65]. The Defendant’s second trial began on October 1, 2008. The Government once again presented the testimony of Janice Peters and Josephina Beck through depositions read into the record, but the defense did not present an alibi witness [ECF No. 89]. On October 3, the jury found the Defendant guilty of armed bank robbery under 18 U.S.C. §2113(a) and (d), and using or carrying a firearm during a crime of violence under 18 U.S.C. §924(c) and 18 U.S.C. §2 [ECF No. 98]. On January 21, 2009, the Court sentenced the Defendant to 327 months of imprisonment on Count 1 and 84 months on Count 2 to be served consecutively [ECF No. 112].
After sentencing, the Defendant filed a Notice of Appeal [ECF No. 113] challenging: (1) whether this Court erred when it declared a mistrial and (2) whether there was sufficient evidence for his conviction. The Seventh Circuit subsequently affirmed the judgment of this Court on March 5, 2010 [ECF No. 139]. The Seventh Circuit denied the Defendant’s petition for rehearing [ECF No. 138] on March 5, 2010. On October 18, 2010, the Supreme Court denied the Defendant’s petition for Writ of Certiorari.
On October 17, 2011, the Defendant filed a timely, pro se Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody [ECF No. 144]. The Government filed its Response [ECF No. 150] on November 30, 2011. The Defendant filed his Reply [ECF No. 155] on February 27, 2012. On February 25, 2013, the Defendant filed a Motion to Supplement [ECF No. 157] ground two of the § 2255 Motion, and on March 15, the Defendant filed a Motion to Expand [ECF No. 158] the record to include the State’s Answer to Petition Post-Conviction Relief. The Government filed its Response [ECF No. 162], answering both the Motion to Supplement and Motion to Expand, on August 9, 2013. The Defendant filed his Reply [ECF No. 165] as to both motions on September 11, 2013. Finally, the Defendant filed a Motion for Release of Prisoner in a Habeas Corpus Proceeding [ECF No. 168] on August 7, 2014. The Government filed a Response [ECF No 169] on August 14, 2014. This matter is now ripe for resolution. This Opinion and Order addresses all pending motions.
A. Standard of Relief
A court may grant relief pursuant to § 2255 “upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). “[R]elief pursuant to § 2255 is an extraordinary remedy because it asks the district court essentially to reopen the criminal process to a person who already has had an opportunity for full process.” Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007) (citing Kafo v. United States, 467 F.3d 1063, 1068 (7th Cir. 2006)). “[R]elief is appropriate only for an error of law that is jurisdictional, constitutional, or constitutes a fundamental defect which inherently results in a complete miscarriage of justice.” Harris v. United States, 366 F.3d 593, 594 (7th Cir.2004) (internal quotation marks and citation omitted).
The Defendant primarily contends, among other things, that he is entitled to relief because Attorney Robert Gevers provided ineffective assistance by failing to adequately prepare for trial and failing to pursue a reasonable defense strategy. To establish ineffective assistance of counsel, a defendant must satisfy the two-prong standard set forth in Strickland. First, a defendant must establish that the representation he received “fell below an objective standard of reasonableness.” Strickland v. Washington, 466 U.S. 668, 687–88 (1984). Second, a defendant must demonstrate that the representation prejudiced his defense. Id. at 694. Prejudice is shown when “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. When assessing a defendant’s claim for ineffective counsel, the court must give strong deference to the assumption that representation of counsel was reasonable. Harrington v. Richter, 131 S.Ct. 770, 787 (2011). This presumption of acceptable counsel representation is evaluated within a “wide range of reasonable professional assistance, ” due to the vast array of legal strategies and in an effort to avoid retrospective review. Strickland, 466 U.S. at 689. As such, a defendant must demonstrate that failure by counsel was severe enough to violate the right to assistance of counsel as guaranteed under the Sixth Amendment. Harrington, 131 S.Ct. at 787.
B. Ineffective Assistance for Failure to Adequately Prepare for Trial and Present an Available Defense
First, the Defendant alleges that Attorney Gevers failed to adequately prepare for trial and present an available defense. (Mem. in Supp. of Def.’s Mot. to Vacate 4–9, ECF No. 145.) According to the Defendant, counsel was ineffective for:
(1) failing to conduct necessary and adequate pretrial investigation/preparations; (2) failing to contact, interview and call favorable defense witnesses; (3) failing to marshal, develop and use at the Movant’s trial available evidence that was favorable/helpful to the Movant’s defense case; (4) and unreasonably failed to pursue various leads as made known through discovery and discussion with the Movant.
(Id. at 5.) The Defendant asserts that counsel failed to present his alibi defense during the second trial, despite the fact that this defense was heavily relied on during the first trial and helped result in a hung jury and mistrial. (Id.) In providing this defense, the Defendant claims counsel should have made further investigations and preparations in order to present the witness testimony of Kent Cooper, Shyra Denise Porter, Steven Warren, and Shamara Davis. Shyra Porter testified during the first trial and the Defendant reasons that her like testimony would have created doubt in the minds of the jury. (Id. at 6.) The Defendant asserts that Kent Cooper and Steven Warren could have supported the testimony of Shyra Porter. (Id. at 7.) Shamara Davis testified at the trial of Joseph Lewis, one of the other suspects. (Id. at 6.) The Defendant claims he was prejudiced as there was a reasonable probability of a different outcome if the jury had been presented with the testimony of Mr. Cooper, Ms. Porter, Mr. Steven Warren, and Ms. Davis. (Id.) In response, Attorney Gevers claims that he fully disclosed to the Defendant that the Government had new evidence in the case against him and that presenting the alibi defense during the second trial was no longer appropriate. (Gov. Resp. 3, ECF No. 150.) Thus, the Government argues that the actions of Attorney Gevers fall well within the wide latitude given to acceptable “trial strategy.” (Id. at 4.)
In Strickland, the Supreme Court stated that factors such as the experience of the attorney, the inconsistency of pursued and unpursued defenses, and the potential for prejudice from taking an unpursued strategy of defense are all relevant when evaluating particular strategic decisions of counsel. 446 U.S. at 681. Importantly, counsel decisions not to investigate or pursue a particular line of reasoning are given a “heavy measure of deference.” Id. at 691. Further, if counsel has reason to believe there is no need to pursue a potential inquiry or defense due to statements made by a defendant, “the need for further investigation may be considerably diminished or eliminated altogether.” Id. A defendant carries the burden of showing the court what would have resulted from such an investigation. Hardamon v. United States, 319 F.3d 943, 951 (7th Cir. 2003); see also United States ex rel. Simmons v. Gramley, 915 F.2d 1128, 1133 (7th Cir. 1990) (A petitioner must present “a comprehensive showing as to what the investigation would have produced.”). Additionally, a defendant must show that he has been substantially prejudiced by the actions of counsel. In other words, when an error on the part of counsel results in the omission of testimony, a defendant must show with reasonable probability that but for the error, the result of the proceeding would have been different. Strickland, 446 U.S. at 694. “[I]f counsel has investigated witnesses and consciously decided not to call them, the decision is probably strategic.” United States v. Best, 426 F.3d 937, 945 (7th Cir. 2005) . Similarly, when a defendant claims counsel failed to call a particular witness, he must “make a specific affirmative showing as to what the missing evidence would have been, and prove that this witness’s testimony would have produced a different result.” Patel v. United States, 19 F.3d 1231, 1237 (7th Cir. 1994.)
Here, the Defendant asserts that Attorney Gevers provided ineffective assistance because he failed to further investigate and present the witness testimony integral to an alibi defense. The Defendant maintains that counsel should have pursued further into an investigation of the witnesses that would have testified in support of the alibi defense at the Defendant’s second trial. The Defendant believes counsel failed to thoroughly conduct pretrial investigations by not contacting, interviewing, or calling these witnesses, which resulted in counsel’s failure to put the alibi defense before the jury during the second trial. (Mem. in Supp. of Def.’s Mot. to Vacate 4– 9, ECF No. 145.) However, the record clearly supports the Government’s claim that following the Defendant’s first trial, the Government developed new evidence that contradicted the testimony given by Shya Porter during the first trial. (Gov. Resp. 3, ECF No. 150.) The Government notes that following the first trial, Attorney Gevers moved this Court for the appointment of an investigator to look into locating, questioning, and issuing subpoenas to witnesses that might be favorable to the Defendant [ECF No. 71]. Counsel made an investigation of the witnesses, but was aware that if he presented the alibi defense the Government would introduce the evidence in contradiction to Shya Porter’s testimony, discrediting her claims and the defense. (Id. at 4.) Further, Steven Warren’s criminal history made him subject to impeachment and Kent Cooper’s testimony was not relevant to the time frame of events. (Id., Gevers Aff. ¶ 2.) In his affidavit, Attorney Gevers states he believed it unwise to call Shamara Davis and associate the Defendant with the alleged getaway vehicle. (Id.) Attorney Gevers maintains these decisions were made with “the trial strategy to avoid conflicting evidence from the defense witnesses among themselves and to distance the Defendant from Mr. Lewis altogether.” (Gevers Aff. ¶ 3.) Finally, counsel expressed that these developments were “all relayed to Mr. Warren prior to the second trial.” (Id. ¶ 2.)
Even if this decision was determined to be in error, the Defendant failed to demonstrate with reasonable probability that the outcome would have been different. As Attorney Gevers proceeded forward both with an investigation of the witnesses and the understanding of the Defendant prior to the second trial, the Court finds that the decision not to call witnesses was a objectively reasonable trial strategy in light of the new evidence proffered by the Government. Additionally, the Defendant has failed to comprehensibly show he was prejudiced by these actions. Thus, because the Defendant has not ...