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United States v. Lowe

July 7, 2009

UNITED STATES OF AMERICA
v.
LARNELL LOWE, PETITIONER



The opinion of the court was delivered by: (Chief Judge Kane)

MEMORANDUM

Before the Court is Petitioner Larnell Lowe's ("Lowe") pro se motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255, filed without a supporting brief. (Doc. No. 221.) The Government filed a brief in opposition to the motion (Doc. No. 227), to which Lowe has responded (Doc. No. 229). The motion is ripe for disposition. For the following reasons, the motion will be denied.

I. BACKGROUND

A. Procedural Background

On April 7, 2004, a federal grand jury returned an indictment charging Lowe with firearm and carjacking offenses. (Doc. No. 1.) On August 11, 2004, the grand jury issued a superseding indictment adding a Notice of Special Findings and charging Lowe with the same offenses as those set forth in the original indictment, as follows: possession and use of a firearm during and in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c) (Counts I and III), carjacking in violation of 18 U.S.C. § 2119 (Counts II and IV), and conspiracy to possess and use firearms during and in furtherance of crimes of violence in violation of 18 U.S.C. § 924(o) (Count V). (Doc. No. 44.) Lowe pleaded not guilty to all charges.

On November 3, 2004, following a two day trial, the jury returned a verdict finding Lowe guilty of all charges. (Doc. No. 101.) Five days later, Lowe moved for a judgment of acquittal (Doc. No. 104), which was denied by the Court in a memorandum and order issued on March 25, 2005 (Doc. No. 141). On March 28, 2005, Lowe was sentenced to 504 months, consisting of 120 months on Counts II, IV, and V to be served concurrently, 84 months on Count I to be served consecutively, and 300 months on Count III to be served consecutively. (Doc. No. 146.) After Lowe's conviction was upheld on appeal (See Doc. No. 216); see also United States v. Lowe, 222 F. App'x. 220, 224, (3d Cir. 2007), he timely filed the present motion to vacate.

B. Factual Background

The events underlying this case are two assaults, robberies, and car thefts that occurred in the early morning hours of January 1, 2004 in Harrisburg, Pennsylvania. Shortly after midnight, Grady Walker, a 19-year-old resident of the "Uptown" section of Harrisburg, had driven his 1993 red Buick Century to the Calabash Restaurant at 13th and Derry Streets. (Trial Tr. 24-25.) He was accosted by six or seven males after leaving the restaurant, one of whom he identified as Lowe. (Trial Tr. 27.) After Lowe placed a revolver to his head, Walker was taken into an alleyway beside the restaurant where at gunpoint he was relieved of his cell phone, cash, a .45 magnum pistol, and the keys to his car. (Trial Tr. 28-30, 35, 63.) Walker identified several individuals as being involved in this assault and robbery, including Lowe and co-defendants, Philip Walker and Brian Pendelton.*fn1 Several of the individuals involved in the assault were carrying firearms, and one of them, Shawn Cameron, held a short barreled shotgun against Walker's face during the robbery. (Trial Tr. 32-33.) Lowe himself loaded his revolver with bullets in the alleyway during the assault. (Trial Tr. 42-43.) After acquiring his car keys and asking what kind of car he drove, one of the assailants took Walker's Buick Century. (Trial Tr. 28-29.) Lowe fled after the attack. (Trial Tr. 157-159.)

Also on January 1, 2004, a short time after the robbery and assault of Grady Walker, Bryant Mathes ("Mathes") and his fiance, Angela Terry ("Terry"), were driving in Mathes's Honda Accord on their way to a party in the area of 18th and Mulberry Streets in Harrisburg, about a fifteen minute walk from the Calabash restaurant. (Trial Tr. 76-77.) As they parked, Lowe, Philip Walker, Brian Pendelton, Andre Pendelton, James Cousin, and Hassan Cousin were walking down the same street; they spotted the couple exiting the Honda and Lowe said "let's get them." (Trial Tr. 159-160; 196-198.) The group ran up to the car and Lowe placed a handgun in Terry's face. Lowe then instructed her to place her hands on the car, demanded her purse, and grabbed her cell phone. (Trial Tr. 67-69.) On the driver's side of the car, Phillip Walker and Brian Pendelton approached Mathes, put guns in his face, and one punched him in the mouth. (Trial Tr. 79.) The assailants demanded to know where Mathes's keys were and retrieved them from his pockets, also taking his diamond ring, watch, and a quantity of cash. (Trial Tr. 163; 181-182; 198.) One or more of the individuals involved in the robbery then drove away in Mathes's Honda. Lowe fired one or more gunshots into the air following the assault and robbery as he fled the scene on foot. (Trial Tr. 83; 160.) After the Honda was recovered, Mathes was contacted and identified several items in the car that did not belong to him or Terry, including the cell phone taken from Grady Walker in the first carjacking. (Trial Tr. 38; 140-41.)

C. Standard of Review

Under 28 U.S.C. § 2255, a federal prisoner may move the sentencing court to vacate, set aside, or correct the prisoner's sentence on the grounds 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. In the interests of finality and conservation of resources, however, a district court may decline to reconsider an issue already litigated and decided adversely to the criminal defendant at his trial and on direct appeal. United States v. Orejuela, 639 F.2d 1055, 1057 (3d Cir. 1981). In evaluating a § 2255 motion, "the court must accept the truth of the movant's factual allegations unless they are clearly frivolous on the basis of the existing record." United States v. Booth, 432 F.3d 542, 545-46 (3d Cir. 2005) (quoting Government of the Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989)).

III. DISCUSSION

A. Ineffective Assistance

Lowe raises several issues regarding with his Sixth Amendment right to counsel, arguing that his counsel rendered ineffective assistance. To assess whether Lowe's counsel was constitutionally ineffective, the Court applies the standard set out by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, "a criminal defendant may demonstrate that his representation was constitutionally inadequate by proving: (1) that his attorney's performance was deficient, i.e., unreasonable under prevailing professional standards; and (2) that he was prejudiced by the attorney's performance." Booth, 432 F.3d at 546 (citing Forte, 865 F.2d at 62). The first prong requires that the defendant identify counsel's challenged acts or omissions, Strickland. 466 U.S. at 690, and show that counsel's representation fell below an objective standard of reasonableness. United States v. Lilly, 536 F.3d 190, 196 (3d Cir. 2008) (citing Strickland, 466 U.S. at 688.) Judicial scrutiny is highly deferential under the first prong, and courts "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Booth, 432 F.3d at 546 (quoting Strickland, 466 U.S. at 688-89)). To establish prejudice for the second prong, the defendant must prove that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.

When evaluating a claim of ineffectiveness under Strickland, the Court may consider the prejudice prong before examining the performance of counsel prong "because this course of action is less burdensome to defense counsel." Lilly, 536 F.3d at 196 (quoting Booth, 432 F.3d at 546)).

1. Failure to Raise Intent Element

In ground one of his petition, Lowe argues that his counsel was ineffective because:

At trial, defense attorney failed to argue the "intent" element of the carjacking statute, which specically [sic] states . . . with the intent to cause the death or serious bodily injury shall be chared [sic] under this act. Here the government failed to prove that this Petitioner cause [sic] a death or cause [sic] serious bodily injury. Therefore the evidence was insufficient. (Doc. No. 221 at 5.) Lowe admits in his petition that he raised the underlying sufficiency of evidence issue on his appeal to the Third Circuit, which held:

Finally, Lowe argues that the evidence was insufficient to prove that the carjacking participants intended to cause death or serious bodily injury to Grady Walker if he did not surrender his car. In [United States v. Lopez, 271 F.3d 472, 486 (3d Cir. 2001)] we held that where 'the defendants insisted [the victim] give them her keys in the course of a robbery and assault,' there was sufficient evidence of an intent to cause death or serious harm. In this case, there was evidence that the attackers repeatedly asked Grady Walker for his keys while pointing a gun at him. This evidence was sufficient to prove that the attackers intended to cause death or serious bodily injury if Grady Walker did not surrender his keys.

United States v. Lowe, 222 F. App'x. 220, 224 (3d Cir. 2007). The United States argues that the Third Circuit's determination on the underlying substantive legal issue, now being raised as grounds for ineffective assistance of counsel, constitutes the law of the case and is not subject to consideration because "the Third Circuit rather than this Court would enjoy the prerogative of overruling its own earlier decision." (Doc. No. 227 at 12-13.) Lowe does not offer any argument on this issue in his brief in response to the Government. (See Doc. No. 229.)

The Court agrees with the Government that the sufficiency of evidence issue on the intent element was litigated at Lowe's trial and on his direct appeal and decided adversely against him, but here Lowe ostensibly raises the issue under ineffective assistance, which is permitted on collateral review under § 2255. See United States v. Palumbo, 608 F.2d 529, 533 (3d Cir. 1979). Despite this, the record conclusively demonstrates the inaccuracy of Lowe's claim that his defense attorney failed to argue the "intent" element of the carjacking statute at trial: it is raised in defense counsel's argument for amended final jury instructions (Trial Tr. 239-40), it is raised in his closing argument to the jury (Trial Tr. 296), and it is also raised in his oral (Trial Tr. 250) and written (Doc. No. 123 at 6) motion for judgment of acquittal. Further, the Third Circuit reviewed this Court's ruling on this issue under a plenary standard, indicating that the issue was properly raised at the trial and preserved for appeal. Lowe, 222 F. App'x. at 222-23. On the basis of this record, the Court finds that Lowe's factual allegation that his counsel failed to argue this element is clearly frivolous and the Court need not consider whether such a failure would constitute ineffective assistance of counsel. Further, after review of the arguments defense counsel did advance on the intent element, the Court finds that there was no ineffective assistance of counsel on this issue.

Additionally, though Lowe now raises this issue ostensibly under ineffective assistance grounds, to the extent Lowe attempts to raise the sufficiency of evidence issue on the intent element in his petition, the Court declines to reconsider the issue because relitigation is unnecessary. See Orejuela, 639 F.2d at 1057 ("Once a legal argument has been litigated and decided adversely to a criminal defendant at his trial and on direct appeal, it is within the discretion of the district court to decline to reconsider those arguments if raised again in collateral proceedings under 28 U.S.C. § 2255."); Palumbo, 608 F.2d at 533 (3d Cir. 1979). Accordingly, Lowe's petition will be denied as to ground one.

2. Failure to Move for Judgment of Acquittal

In ground two of his petition, Lowe argues that his counsel was ineffective because: "[t]rial counsel failed to motion for judgment [sic] of accquital [sic] in the Grady Walker carjacking. Where the testimony was presented indicated [sic] that this Petitioner was not present during or after the Grady Walker carjacking. Defense counsel was effective [sic]." The Government argues that these contentions are meritless because defense counsel did move for judgment of acquittal on the count charging the Grady Walker carjacking, the Third Circuit found sufficient evidence to sustain the charge against Lowe as a co-conspirator, and the evidence was sufficient to prove Lowe was a participant in the Grady Walker carjacking and was guilty as a principal. (Doc. No. 227 at 14-15.) In his response to the Government's brief, while acknowledging that his counsel orally made the three arguments in support of judgment for acquittal, Lowe maintains his position that counsel was ineffective for failure to move for a judgment of acquittal because "trial counsel does not actually state for the record, 'defense moves for a judgment of acquittal.' . . . [T]he government [also] fails to demonstrate where the court denies the defense counsel's request for a judgment of acquittal." (Doc. No. 229 at 1-2.)

Again, the record conclusively demonstrates the inaccuracy of Lowe's contentions about his counsel. Rule 29 of the Federal Rules of Criminal Procedure provides in pertinent part: "[a]fter the government closes its evidence or after the close of all the evidence, the court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction." Fed. R. Crim. P. 29(a). Lowe's counsel clearly stated on the record his motion for judgment of acquittal after the close of the evidence and before the case went to the jury: "[f]or the record, Your Honor, at this time I would like to make a motion for judgment for motion of acquittal on all the counts charged in the indictment." (Trial Tr. 250.) After hearing argument from both parties on the oral motion, the Court denied the motion: "[t]he Court finds that there is sufficient evidence of record from which a reasonable jury could conclude that the Government has established all of the crimes charged, so I will deny the motion and allow the case to proceed to the jury." (Trial Tr. 253.) After the jury verdict, defense counsel renewed his motion for judgment of acquittal with a written motion pursuant to Rule 29(c)(1) (Doc. No. 104), which was also denied by the Court (Doc. No. 141). Finally, the Third Circuit noted that "Lowe moved for a judgment of acquittal at the close of the government's case and after the verdict, on the ground that there was insufficient evidence to support the convictions" and did not review the issue under a plain error standard. See Lowe, 222 F. App'x. at 222.

On the basis of this record, the Court finds Lowe's factual allegation that his counsel failed to move for judgment of acquittal is clearly frivolous and the Court need not consider whether failing to move for judgment of acquittal under these circumstances would have constituted ineffective assistance of counsel. Further, after review of the arguments defense counsel did advance in support of the motions for judgment of acquittal, the Court finds that there was no ineffective assistance of counsel on this issue.

Additionally, both this Court, (Doc. No. 141), and the Third Circuit, Lowe, 222 F. App'x. at 223-24, have held that the evidence was sufficient to sustain the conviction for the Grady Walker carjacking. As such, to the extent Lowe attempts to raise this again in his petition, the Court declines to reconsider the issue because ...


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