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United States v. Carr

February 21, 2006

UNITED STATES OF AMERICA
v.
BRIAN ERIC CARR DEFENDANT/PETITIONER.



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION

This case is before the Court on petitioner Brian Eric Carr's motion to vacate, set aside or correct his sentence for bank robbery. See 28 U.S.C. § 2255. Petitioner argues that his sentence of 262 months imprisonment should be set aside for three reasons: (1) he was deprived of his Sixth Amendment right to the effective assistance of appellate counsel; (2) his sentence is unconstitutional under Blakely v. Washington, 542 U.S. 296 (2004), and United States v. Booker, 543 U.S. 220 (2005); and (3) he received ineffective assistance of counsel at his trial. For the reasons set out below, the Court concludes that petitioner's motion should be denied.

BACKGROUND

On January 30, 2002, petitioner was arrested outside a Chevy Chase Bank in downtown Washington, D.C. Plain-clothes officers of the Metropolitan Police Department were canvassing the area following a series of bank robberies in the neighborhood. The officers observed petitioner through a window of the bank and noted that he matched the description of the suspect in the earlier thefts. Petitioner was seen handing a note to a female bank teller. In response, the teller gave petitioner a large sum of cash. Police apprehended petitioner as he exited the building, and a subsequent investigation linked him to several earlier robberies.

On July 24 and 25, 2002, a jury in this Court convicted petitioner on five counts of bank robbery, in violation of 18 U.S.C. §2113(a).*fn1 On February 7, 2003, the Court sentenced petitioner to 262 months in prison. Consistent with the then-mandatory United States Sentencing Guidelines, the Court ordered a term of imprisonment of 240 months on each of the first four counts, to run concurrently, and an additional twenty-two months on Count Five, to run consecutively to Counts One through Four. Petitioner also was sentenced to three years of supervised release and ordered to pay a special assessment of $100 on each count, totaling $500. Petitioner appealed, and the United States Court of Appeals for the District of Columbia Circuit affirmed both the conviction and the sentence on July 13, 2004. See United States v. Carr, 373 F.3d 1350 (D.C. Cir. 2004).

On October 13, 2005, petitioner filed a pro se motion to vacate, set aside or correct his sentence, pursuant to 28 U.S.C. § 2255.*fn2 Petitioner raises three arguments in support of his motion. First, he contends that his Sixth Amendment right to the effective assistance of counsel was compromised by his appellate counsel's failure to supplement his appeal with an argument based on Blakely, a case decided by the Supreme Court on June 24, 2004, three weeks before the D.C. Circuit ruled on petitioner's appeal.*fn3 Second, petitioner asserts that he was denied his Sixth Amendment right to a trial by jury -- as interpreted by Blakely and, later, Booker -- because this Court imposed a sentence based on facts that were not found by a jury beyond a reasonable doubt at a time when the United States Sentencing Guidelines were still mandatory. Finally, Carr argues that he was denied his Sixth Amendment right to the effective assistance of counsel at trial because his lawyer did not investigate the possibility of calling a handwriting or fingerprint expert to testify in support of his defense.

ANALYSIS

I. Standard of Review

A court may deny a section 2255 motion without holding an evidentiary hearing when "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255. The decision whether to hold a hearing is committed to the district court's discretion, particularly when, as here, the judge who is considering the section 2255 motion "also presided over the trial in which the defendant claims to have been prejudiced." United States v. Morrison, 98 F.3d 619, 625 (D.C. Cir. 1996); United States v. Pollard, 959 F.2d 1011, 1030 (D.C. Cir. 1992). Only where the section 2255 motion raises "detailed and specific factual allegations whose resolution requires information outside of the record or the judge's personal knowledge or recollection must a hearing be held." Pollard, 959 F.2d at 1030-31. Upon a careful review of the petitioner's motion and the entire record of this criminal proceeding, as well as its own recollection of the relevant events in that proceeding, the Court concludes that a hearing is unnecessary and that the petitioner's motion should be denied.

II. Ineffective Assistance of Appellate Counsel

Petitioner argues first that he was denied effective assistance of appellate counsel because his lawyer did not supplement the appeal with an argument that, in light of Blakely, Carr's sentence violated the Sixth Amendment because it exceeded the maximum penalty that he would have faced under the then-mandatory federal Sentencing Guidelines based "solely on ... the facts reflected in the jury verdict or admitted by the defendant." See 530 U.S. at 490 (emphasis added). Blakely, decided three weeks before Carr's conviction and sentence were affirmed on appeal, invalidated on Sixth Amendment grounds a sentence imposed under a Washington state sentencing statute that permitted an "exceptional sentence" based on a judge-found fact of "deliberate cruelty." Id. at 300. Although the holding of Blakely had no direct effect on sentences imposed under the federal Guidelines, there were immediate indications that those Guidelines were vulnerable to constitutional challenge. See id. at 305 n.9 (observing that the United States, as amicus curiae, had questioned whether the "differences between Washington's sentencing regime and the Federal Sentencing Guidelines ... [were] constitutionally significant"). Petitioner contends that his counsel on appeal committed a constitutionally significant error in failing to make a Blakely argument to the D.C. Circuit and that, were it not for that error, he might have been entitled to resentencing.

To succeed upon a claim of ineffective assistance of counsel, a criminal defendant must show both that his lawyer performed deficiently, see Strickland v. Washington, 466 U.S. 668, 687 (1984) ("lawyer made errors so serious that counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment"), and also that he was prejudiced by counsel's mistakes, see id. at 694 ("a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different"). "Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim." Id. at 700 (emphasis added).

A. Performance of Appellate Counsel

In Strickland, the Supreme Court observed that "counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690. Petitioner has not overcome that presumption here and, therefore, the decision of petitioner's counsel not to supplement the appeal based ...


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