JAN E. DuBOIS, District Judge.
After two mistrials, Lacey Graves was convicted of armed bank robbery in violation of 18 U.S.C. § 2113(d). Presently before the Court is Graves's Motion under 28 U.S.C. § 2255. The motion presents two issues: First, whether trial counsel was ineffective for failing to move to suppress evidence obtained pursuant to facially invalid search warrants - the search warrants did not identify or incorporate by reference the items to be seized. Second, whether trial counsel was ineffective for failing to call Leslie Neal - a government witness at Graves's first and second trials - as a defense witness at Graves's third trial.
Because the record did not conclusively show that Graves was not entitled to relief, the Court held an evidentiary hearing on April 5, 2012. Following the hearing, the Court ordered additional briefing addressing the decisions in Groh v. Ramirez , 540 U.S. 551 (2004) and Doe v. Groody , 361 F.3d 232 (3d Cir. 2004). These cases involve search warrants that did not incorporate descriptions of either the items to be seized (in Groh) or the persons to be searched (in Groody) that were contained in a separate document. For the reasons set forth below, Graves's § 2255 motion is denied.
After two mistrials, Graves was convicted in November 2007 of armed bank robbery in violation of 18 U.S.C. § 2113(d). According to the government's theory of the case at trial, Graves, with a mask and sunglasses covering his face, entered a Univest Bank, displayed a handgun, vaulted over the teller counter, and stole $6, 421 in cash. Eyewitnesses and physical evidence linked Graves to the crime:
A. The Eyewitnesses
Several bank employees who were working on the day of the robbery testified as to what they saw.
(a) Kimberly Krapf and Tara Detweiler Saw a Suspicious Woman and a Red Isuzu Rodeo
Branch manager Kimberly Krapf noticed a suspicious woman standing by the front entrance of the bank with a scarf over her head and face, looking into the glass lobby doors. (Trial Tr. 11/6/2007, at 38-39.) The woman later drove away in a red Isuzu Rodeo. (Id. at 40, 99.) Before the car left the parking lot, Krapf alerted other employees to the suspicious activity, one of whom, Tara Detweiler, wrote down the license plate number of the Isuzu (although she was off by one letter). (Id. at 39-40, 101-102; Trial Tr. 11/7/2007, at 34.) Later investigation by FBI Special Agent Kenneth Vincent revealed that the vehicle was registered to Graves. (Trial Tr. 11/7/2007, at 32-34.)
(b) Kimberly Buckley Saw the Robber
Shortly after the suspicious woman's departure, the bank's assistant manager Kimberly Buckley looked out the window of the bank's break room and saw an African-American man approaching the bank. (Trial Tr. 11/6/2007, at 158-65.) She was able to look at him through open window blinds for one to two seconds before he covered his face with his umbrella. (Id. at 182-83.) It was dark and raining outside. (Id. at 183.) In observing the bank's surveillance monitors, she saw him enter the bank, jump over the teller counter, and take money out of a teller's drawer. (Id. at 185-87.)
Five days later, Special Agent Vincent showed Buckley a photo array that he had prepared with eight photos: one of Graves and seven "fillers." (Id. at 195; 11/7/2007, at 45, 49-50.) All eight photos were presented to Buckley at one time on one sheet of paper. (Trial Tr. 11/7/2007, at 50; see also Government Trial Exhibit 14.) Special Agent Vincent told Buckley that the person she saw may not be among the pictures in the array. (Trial Tr. 11/7/2007, at 50.) The lighting behind Graves's photo was slightly brighter than the lighting behind the fillers. (See Government Exhibit 14.) From this array, Buckley identified Graves as the person she observed from the break room. (Trial Tr. 11/7/2007, at 170-171.) She also identified Graves in court. (Id. at 171.)
The defense called Dr. Soloman Fulero, an expert on eyewitness identifications to counter Buckley's testimony. He testified that there are three stages of memory: acquisition, retention, and retrieval, or in other words, "[p]utting it in, keeping it, and getting it back out." (Id. at 137.) The defense attacked each of these stages of Buckley's memory through Dr. Fulero's testimony.
With respect to acquisition, Dr. Fulero testified that a dark rainy day could negatively affect a person's ability to accurately remember an event. (Id. at 143-44.) He also testified regarding cross-racial identifications. He stated that people tend to be less accurate at identifying a person of a different race than their own. (Id. at 140-42.) For example, a white witness will not be as accurate identifying an African-American as he or she would be identifying another white person. (Id. at 141-42.)
Regarding retention, Dr. Fulero testified that memory fades rapidly, though not steadily. He stated, "[P]eople are going to forget most of what they're going to forget within the first roughly eight hours or so." (Id. at 146.)
With respect to retrieval, Dr. Fuerlo discussed the best practices to conduct photo line-ups. He stated that there were four aspects of presenting a witness a photo array that are important to increase accuracy. (Id. at 150-51.) First, the suspect should not stand out from the fillers. (Id. at 151-57.) Second, the witness should be instructed that the suspect may not be in the array. (Id. at 157-59.) Third, accuracy is increased by showing the witness the photos one at a time ("sequentially") rather than all at once ("simultaneously"). (Id. at 159-61.) Finally, the presentation should be "double blind." (Id. at 161-63.) The person presenting the photo array to the witness should not know who the suspect is so as to not subconsciously communicate the identity of the suspect to the witness. (Id.) Defense counsel argued that Buckley's photo identification was undermined based on all but the second factor. (Trial Tr. 11/8/2007, at 51-52.)
(c) Tara Detweiler Saw Part of the Robber's Face
Tara Detweiler was the teller at the register that was robbed. (Trial Tr. 11/6/2007, at 103-104.) When the robber was behind the counter, she saw through a gap between his sunglasses and mask that he had light skin and freckles or moles on his cheeks. (Id. at 108.) This description is consistent with Graves's facial features.
B. The Physical Evidence and the Warrants
Graves was arrested, and a few days later, Magistrate Judge Jacob B. Hart signed two warrants authorizing searches of Graves's Isuzu Rodeo and the residence of Graves's girlfriend, Leslie Neal. Each warrant was accompanied by a warrant application and an affidavit sworn by Special Agent Vincent. The forms of the warrant and warrant application contain spaces for filling out the information required for a valid warrant. For each search, the sections provided for describing the property to be seized were left blank. However, "Attachment B" to the affidavit accompanying each warrant contained a list of the items to be seized.
When Graves was arrested, he had between $600 and $700 in cash on his person. (Trial Tr. 11/7/2007, at 62.) Recovered from the Isuzu were, inter alia, new tool sets, automotive repair equipment, and numerous receipts for the purchase of goods and services totaling $1, 653.90. (Id. at 66-69.) Among the items seized from Neal's residence were purchase receipts totaling $226.03 and a pair of men's New Balance sneakers. (Id. at 69-70.)
When the robber vaulted over the counter, he left shoe impressions. (Trial Tr. 11/6/2007, at 203.) Michael Smith, an FBI forensic examiner specializing in shoe print examinations, compared the impressions recovered from the counter to the New Balance sneakers seized from Neal's home. (Id. at 73.) He could not state conclusively that those New Balance sneakers made the prints on the counter. (Id. at 70.) However, he concluded that the impression was consistent with the New Balance sneakers; they could have left the prints. (Id. at 70, 77.)
C. Leslie Neal's Testimony
Leslie Neal was called as a government witness at the first two trials but not at the third trial in which Graves was convicted. During the second trial, Neal testified as follows: On the day of the robbery, she and Graves drove in his Isuzu Rodeo to a Walmart in Warminster, Pennsylvania located "about five to ten minutes down the road" from the bank. (Trial Tr. 7/17/2007, at 153, 158-59.) Graves shopped at the Walmart while Neal drove to the area near the bank to meet an acquaintance of Graves to obtain marijuana. (Id. at 159-61.) Unable to find the acquaintance, Neal parked in the bank's parking lot to wait for him. (Id. at 160-62.) She then got out of the Isuzu and looked through the bank's glass doors in order to ascertain the time. (Id. at 162-63.) Neal also testified that she had purchased the New Balance sneakers after the date of the robbery, and that the day before Graves's arrest, she had given him $400 in cash to be used toward payment for their car insurance policies. (Id. at 166-68.) She further testified that on the day of the robbery, she never saw Graves wearing clothing matching the description of the bank robber, she never saw him with a gun, and she never saw him with large sums of money. (Id. at 165-66.) Neal testified at the evidentiary hearing on April 5, 2012 that, had she been called in the third trial, her testimony would have been the same. (Apr. 5, 2012 Hearing Tr. at 20-21.)
III. LEGAL STANDARD
Graves claims that his trial counsel was ineffective. "Strickland v. Washington supplies the standard for addressing a claim of ineffective assistance of counsel." United States v. Smack , 347 F.3d 533, 537 (3d Cir. 2003) (citing Strickland, 466 U.S. 668, 687 (1984)). "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686.
This standard requires a two-part inquiry. "First, the defendant must show that counsel's performance was deficient, " that is, "that counsel's representation fell below an objective standard of reasonableness." Id. at 687-88. The measure for counsel's performance under the first prong of Strickland is "whether counsel's assistance was reasonable considering all the circumstances" including "prevailing professional norms." Id. at 687-88. "Second, the defendant must show that [counsel's] deficient performance prejudiced the defense." Id. at 687.
To establish prejudice, the defendant must demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.
Graves originally claimed that his two trial attorneys were ineffective for failing to (A) move to suppress certain evidence based on a lack of particularity in the warrant, (B) call Leslie Neal to testify at the third trial, and (C) acquire and authenticate original bank surveillance tapes. However, at the evidentiary hearing, he withdrew his claim based on failing to acquire and authenticate the surveillance tapes after it was demonstrated to counsel that the originals were materially ...