The opinion of the court was delivered by: Arthur J. Schwab United States District Judge
MEMORANDUM OPINION REGARDING PETITIONER ANTHONY ASKEW'S MOTION TO VACATE SENTENCE (DOC. NO. 222) AND RELATED MOTIONS
Before the Court is petitioner Anthony Askew's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct a Sentence by a Person in Federal Custody ("Motion to Vacate") (Doc. No. 222), with integral memorandum of law in support, and several related motions, towit: Motion for the Appointment of Counsel (Doc. No. 223); Motion for Leave to Proceed in Forma Pauperis (Doc. No. 224); Motion for Discovery Pursuant to Federal Rules of Civil Procedure 26 and Brady Motion (Doc. No. 227); Motion for Summary Judgment (Doc. No. 256) pursuant to Federal Rules of Civil Procedure 56; and a Motion for Evidentiary Hearing (Doc. No. 264).
After careful consideration of the Motion to Vacate, the government's response thereto, petitioner's traverse reply, and the files and entire record in the case, this Court finds that certain of petitioner's allegations, even if accepted as true, do not entitle him to relief, and that other of his allegations cannot be accepted as true because they are contradicted by the record. Accordingly, there is no need to conduct an evidentiary hearing, and the Court will deny the Motion to Vacate and, with the exception of the motion for leave to proceed in forma pauperis, will deny the related motions as moot or without merit.
In 2002 and 2003, there was a series of armed robberies at numerous financial institutions in Western Pennsylvania that followed a remarkably similar pattern. The modus operandi of these bank robberies was that two masked men would enter the bank, each with gun drawn, one of the men would cover the employees and patrons while the other jumped over the counter and riffled the drawers for cash, and then the two men would run to a waiting stolen vehicle and flee the scene. The 18 count Superseding Indictment filed on March 2, 2004 charged four persons with various offenses stemming from six of these bank robberies, as follows:
* Dollar Bank in Fox Chapel, Pennsylvania; August 1, 2002. Counts One through Three charged Anthony Williams and Maurice Askew with bank robbery, armed bank robbery and carrying and brandishing a firearm in furtherance of the armed bank robbery, in violation of 18 U.S.C. §§ 2113(a), 2113(d) and 924(c)(1)(A)(ii), respectively.*fn1
* Dollar Bank, Penn Hills, Pennsylvania; September 3, 2002. Counts Four through Six charged Anthony Williams and Maurice Askew with bank robbery, armed bank robbery and carrying and brandishing a firearm in furtherance of the armed bank robbery, in violation of 18 U.S.C. §§ 2113(a), 2113(d) and 924(c)(1)(A)(ii), respectively.
* USAir Credit Union, Moon Township, Pennsylvania; September 21, 2002. Counts Seven through Nine charged Anthony Williams and Anthony Askew (Maurice Askew's brother) with bank robbery, armed bank robbery and carrying and brandishing a firearm in furtherance of the armed bank robbery, in violation of 18 U.S.C. §§ 2113(a), 2113(d) and 924(c)(1)(A)(ii), respectively.
* S&T Bank, Plum Borough, Pennsylvania; November 21, 2002. Counts Ten through Twelve charged Anthony Williams and Anthony Askew with bank robbery, armed bank robbery and carrying and brandishing a firearm in furtherance of the armed bank robbery, in violation of 18 U.S.C. §§ 2113(a), 2113(d) and 924(c)(1)(A)(ii), respectively.
* National City Bank, New Kensington, Pennsylvania; December 3, 2002. Counts Thirteen through Fifteen charged Anthony Williams and Anthony Askew with bank robbery, armed bank robbery and carrying and brandishing a firearm in furtherance of the armed bank robbery, in violation of 18 U.S.C. §§ 2113(a), 2113(d) and 924(c)(1)(A)(ii), respectively.
* S&T Bank, Murrysville, Pennsylvania; July 8, 2003. Counts Sixteen through Eighteen charged Anthony Williams, Anthony Askew and Nicole Harris with bank robbery, armed bank robbery and carrying and brandishing a firearm in furtherance of the armed bank robbery, in violation of 18 U.S.C. §§ 2113(a), 2113(d) and 924(c)(1)(A)(ii), respectively. Anthony Williams was the gunman who jumped the counter and took the cash while one or the other of the Askew brothers stood guard in each robbery. Nicole Harris was the driver of the getaway car for the S&T bank robbery on July 8, 2003. Williams and Harris entered into plea agreements with the government and testified against the Askew brothers at their jury trial in May/ June 2004. The jury found the Askews guilty as charged on all counts of the Superseding Indictment, and this Court sentenced the two men as follows:
Maurice Askew (Counts One through Six): Defendant was committed to the custody of the U.S. Bureau of Prisons for a term of imprisonment of 468 months, calculated as follows: 84 months at each of Counts One, Two, Four and Five, to be served concurrently to each other; 84 months (7 years) at Count Three, to be served consecutively to the preceding term of imprisonment; and 300 months (25 years) at Count Six, to be served consecutively to the preceding terms of imprisonment. Additionally, the Court sentenced Maurice Askew to a term of Supervised Release of 3 years at each of Counts One and Four, to run concurrently, and a term of 5 years at each of the remaining counts, to run concurrently, a special assessment of $600.00, and restitution.
Anthony Askew (Counts Seven through Eighteen): Defendant was committed to the custody of the U.S. Bureau of Prisons for a term of imprisonment of 1124 months (over 93 years), calculated as follows: 140 months at each of Counts Seven and Eight, Ten and Eleven, Thirteen and Fourteen, and Sixteen and Seventeen, to be served concurrently to each other; 84 months (7 years) at Count Nine, to be served consecutively to the preceding terms of imprisonment; 300 months (25 years) at each of Counts Twelve, Fifteen and Eighteen, to be served consecutively to the preceding terms of imprisonment and to each other. Additionally, the Court sentenced Anthony Askew to a term of Supervised Release of 3 years at each of the bank robbery counts, to run concurrently, and a term of 5 years at each of the armed bank robbery and brandishing of firearms counts, to run concurrently, a special assessment of $1200.00, and restitution.
On November 5, 2004, this Court entered an Order correcting the Askews' sentences: Anthony's concurrent sentences of 140 months imprisonment and three years supervised release at Counts Seven, Ten, Thirteen and Sixteen were vacated, as were Maurice Askew's concurrent sentences of 84 months imprisonment and three years supervised release at Counts One and Four.
Sentences for bank robbery under 18 U.S.C. § 2113(a) could not be imposed in addition to the sentences on the armed bank robbery under 18 U.S.C. § 2113(d) involving the same bank. See United States v. Cesare, 581 F.3d 206, 207 (3d Cir. 2009) ("The federal bank robbery statute makes each aspect of a bank robbery a separate offense. Therefore, bank robbery, 18 U.S.C. § 2113(a), is a lesser included offense of armed bank robbery, 18 U.S.C. § 2113(d). Because each count charged a crime defined by the statute, the District Court erred by imposing separate sentences for each -- even though it ordered the terms of imprisonment to be served concurrently.") (citing Government of Virgin Islands v. Dowling, 633 F.2d 660, 668 (3d Cir. 1980).
For both Askew brothers, the main driver behind their substantial
terms of imprisonment was the statutory consecutive sentences mandated
by Congress because they brandished firearms in furtherance of the
armed bank robberies. See 18 U.S.C. § 924(c)(1)(A)(ii).*fn2
18 U.S.C. § 924(c) provides, in relevant part:
(c)(1)(A) Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime . . . uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime -- . . . (ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years . . .
18 U.S.C. § 924(c)(1)(A).
Additionally, section 924(c)(C)(i) provides that in the case of a second or subsequent conviction under this subsection, the person "shall be sentenced to a term of imprisonment of not less than 25 years." 18 U.S.C. § 924(c)(C)(i).
The United States Court of Appeals for the Third Circuit consolidated the Askews' separate appeals, and affirmed the convictions and judgments of sentence in an opinion and order entered on October 26, 2006. (Doc. No. 218). On direct appeal, the Court of Appeals rejected the following issues raised by AnthonyAskew: (i) the district court erred in not suppressing the evidence seized from his apartment on July 8, 2003, the day of the armed robbery of the S&T Bank, Murrysville, Pennsylvania (as set forth in Counts Sixteen through Eighteen of the indictment, charging Anthony Williams, Anthony Askew and Nicole Harris) during the execution of the search warrant because the supporting affidavit did not establish probable cause for the search; (ii) the district court erred in allowing the government to introduce trial testimony of a positive voice identification by Mr. Wayne Fischer, who had been present during the July 8, 2003 S&T Bank robbery; (iii) the evidence was insufficient to sustain the convictions; and (iv) the joinder of Anthony's and Maurice's charges on separate bank robberies for trial was improper and the district court erred in refusing to sever their trials pursuant to Fed.R.Crim.P. 8(b).
As to the sufficiency of the evidence, the Court of Appeals for the Third Circuit outlined the evidence against the brothers:
The only issue at trial was the identity of the people who committed the charged crimes. All other elements in connection with the charged crime were stipulated prior to the close of the trial. Anthony Williams tied Anthony Askew to each of the bank robberies the latter was charged with. Williams testified that, as to each of those robberies, Anthony Askew had stolen a car the night before the robbery, and the next day Williams and Anthony Askew drove to the respective bank in the stolen car. Once at the bank, they entered carrying firearms, and Williams jumped over the teller counter to get the money from tellers while Anthony Askew controlled the lobby area at gunpoint. According to Williams, they fled in the stolen car, which they then abandoned.
That testimony would, by itself, be sufficient to convict Anthony Askew of each of the robberies he was charged with committing with Williams, but there is more. Nicole Harris testified that she was the getaway driver in two of the four robberies, and that both Williams and Anthony Askew participated in the armed robbery of USAir Federal Credit Union and the S&T Bank in Murrysville. Accordingly, Anthony Askew's sufficiency argument is frivolous.
Opinion, October 26, 2006 (Doc. No. 218) at 7 (emphasis added).
As to the improper joinder issue, the Court of Appeals held as follows:
Joinder of defendants is proper where they are charged with virtually identical schemes and where all of the schemes are linked together by a common third party. . . . Here, the Askew brothers robbed banks with a common actor, Anthony Williams. The same method of operation was employed to rob the banks, and the banks were all robbed during a similar time frame. Their conduct thus formed a series of criminal activities involving a common actor, common methods, and a common time frame. There was no violation of Rule 8(b). Opinion, October 26, 2006 (Doc. No. 218) at 8.
Anthony Askew filed a timely Motion to Vacate on June 6, 2008, which is now ripe for decision.*fn3 The Motion to Vacate, supported by thorough and well argued pro se memoranda of law, raises six grounds for relief alleging ineffective assistance of counsel in violation of petitioner's Sixth Amendment right to counsel (5 of the grounds) and prosecutorial misconduct (1 ground), as follows: (i) although trial counsel challenged the search and seizure of evidence from petitioner's apartment at 1010 Maple Avenue, Turtle Creek, on the grounds that agents failed to "knock and announce" and because it was not supported by probable cause, counsel was, nevertheless, ineffective in failing to challenge the search and seizure on the basis that the copy of the search warrant left by agents in his apartment was not signed by a judicial officer; (ii) trial counsel was ineffective for failing to request a Franks hearing because the affidavit in support of the search warrant was infused with false information; (iii) trial counsel was ineffective in failing to move for severance of defendants because "it is not possible to find a connecting thread running between" the offenses alleged against petitioner and his brother Maurice on the face of the indictment; (iv) trial counsel was ineffective for failing to move to suppress, object or move for mistrial on the basis that the voice identification by Wayne Fischer was unreliable; (v) trial counsel was ineffective for failing to object to perjured testimony by Anthony Williams and Nicole Harris; and (vi) it was prosecutorial misconduct for the AUSA to introduce evidence of an unrelated prior conviction solely for the purpose of showing his propensity to commit crime. The government has filed its response at (Doc. No. 237), and petitioner has filed a traverse brief at (Doc. No. 254).
IV. Standards for Reviewing Section 2255 Petitions
A. 28 U.S.C. § 2255: Petition to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody
Section 2255 of Title 28 of the United States Code provides that:
(a) A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released 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, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
Further, section 2255 provides that unless the motion to vacate, files and records "conclusively show" that the petitioner not entitled to relief, the court shall: cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.
When a defendant brings a motion to vacate sentence pursuant to section 2255, the district court has discretion whether to conduct an evidentiary hearing. United States v. Lilly, 536 F.3d 190, 195 (3d Cir. 2008) (citing United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005)). Exercise of that discretion is constrained by section 2255, however, which requires the district court to hold an evidentiary hearing "'unless the motion and files and records of the case show conclusively that the movant is not entitled to relief.'" Id. (quoting Gov't of Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989)). This is not a high bar for a movant to meet, especially since the district court, in considering a section 2255 claim, "'must accept the truth of the movant's factual allegations unless they are clearly frivolous on the basis of the existing record.'" Id. (quoting Forte, 865 F.2d at 62).
Thus, a section 2255 motion can be dismissed without a hearing only if (1) its allegations, accepted as true, would not entitle the petitioner relief, or (2) the allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact. United States v. McCoy, 410 F.3d 124, 134 (3d Cir. 2005) (quoting Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995)). A district court's decision not to hold an evidentiary hearing may be reversed for abuse of discretion if "the files and records of the case are inconclusive on the issue of whether movant is entitled to relief . . ." Id. at 131 (citing Solis v. United States, 252 F.3d 289, 294-95 (3d Cir. 2001)).
B. Rules of Procedure for Section 2255 Proceedings
The Rules Governing Section 2255 Proceedings for the United States District Courts (hereafter "Section 2255 Rules") apply to proceedings on an application for relief under Section 2255. Habeas corpus proceedings are sui generis. United States v. Bendolph, 409 F.3d 155, 166 (3d Cir. 2005). The Federal Rules of Civil and of Criminal Procedure may be applied in section 2255 proceedings, except to the extent they are inconsistent with the Section 2255 Rules, which will prevail in the event of inconsistency. Id.; Section 2255 Rule 12 .
The Section 2255 Rules require the district court to conduct a prompt preliminary review of a motion to vacate sentence. Section 2255 Rule 4(b) states, in pertinent part:
If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party. If the motion is not dismissed, the judge must order the United States attorney to file an answer, motion, or ...