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United States v. Lawrence

United States District Court, Third Circuit

September 30, 2013

MARK LAWRENCE, Defendant Criminal Action No. 06-83



Before the Court is Defendant Mark Lawrence’s Motion to Vacate, Set Aside, or Correct his Sentence Pursuant to 28 U.S.C. § 2255. For reasons that follow, the Court finds that the grounds pursuant to which Defendant brings his Motion lack merit. Consequently, the Court will deny the Motion without an evidentiary hearing.[1]

I. Background

On February 28, 2006, a grand jury indicted Defendant for one count of being a felon in possession of a firearm.[2] On April 10, 2007, a superseding indictment charged three additional counts of violation of the same statute. Defendant was thereafter tried by jury beginning June 12, 2007, and was convicted of three out of the four counts on June 14, 2007.

From the indictment, the evidence introduced at trial, and the jury verdict, it appears that the jury found the following facts.[3] On December 7, 2005, officers of the Philadelphia Police Department were patrolling near Mr. Lawrence’s residence at 1017 45th Street, Philadelphia, PA, in the Eastern District of Pennsylvania.[4] As they passed by, Mr. Lawrence, driving a white Dodge Magnum, sped out from a parking space in front of the building.[5] The police officers gave chase, and Mr. Lawrence continued to speed through busy intersections without regard to traffic laws.[6] Mr. Lawrence crashed into a parked car near 48th Street and Merion Avenue, [7] abandoned his car, and was apprehended shortly thereafter by police officers on foot.[8]

After Mr. Lawrence was captured, Detective Joseph McDermott, one of the policemen who chased Mr. Lawrence, obtained the consent of Dione Mitchell to search a closet at the home she shared with Mr. Lawrence.[9] The closet contained three firearms, a Beretta 9mm pistol, a Taurus .25 caliber pistol, and a Beretta .40 caliber pistol.[10] Ms. Mitchell told Det. McDermott that she had purchased the Taurus for herself and the .40 caliber Beretta for Mr. Lawrence on November 21, 2005.[11] The 9mm Beretta was registered to Eric Connor, an acquaintance of Mr. Lawrence.[12] From these facts, the jury could have reasonably concluded that Mr. Lawrence obtained possession of the 9mm Beretta from Mr. Connor and the Taurus from Ms. Mitchell, and that Ms. Mitchell gave him the .40 caliber weapon, as she testified. Mr. Lawrence was convicted of being a felon in possession of these three firearms in violation of 18 U.S.C. §922(g).[13]

After trial, this Court held a sentencing hearing at which it concluded by a preponderance of the evidence that Mr. Lawrence had, prior to his arrest for violating § 922(g), possessed or used a firearm in the aggravated assault of Justin Thompson.[14] Mr. Thompson was shot by someone wielding the .40 caliber Beretta that Ms. Mitchell bought for Mr. Lawrence, and a confidential informant told the police that Mr. Lawrence was the shooter. Moreover, one witness informed the police that immediately after the shooting someone drove off in a Dodge Magnum. At the conclusion of the sentencing hearing, the Court found that on the basis of Mr. Lawrence’s criminal history—not challenged here—and sentencing enhancements based first on reckless endangerment during flight occurring during the high-speed car chase and second on the Thompson assault, the appropriate Sentencing Guidelines range was 97 to 121 months. Mr. Lawrence was sentenced to 98 months’ imprisonment and a fine of $5, 000.

Mr. Lawrence appealed, raising only two sentencing issues not relevant here.[15] The Third Circuit affirmed, and Mr. Lawrence now seeks relief pursuant to § 2255, raising numerous claims that his constitutional and statutory rights have been violated. In brief, he alleges that he was denied effective assistance of trial and appellate counsel in violation of the Sixth Amendment, that his right to a speedy trial was violated, that his sentence was wrongly enhanced because of the Thompson assault, and that the trial Court wrongly admitted evidence that Mr. Lawrence had committed crimes not charged in the indictment.

II. Standard of Review

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a prisoner serving a sentence in federal custody may petition the court which imposed the sentence to vacate, set aside, or correct the sentence by asserting 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.”[16] Relief under AEDPA is extraordinary and “generally available only to protect against a fundamental defect which inherently results in a complete miscarriage of justice or an omission inconsistent with the rudimentary demands of fair procedure.”[17]

III. Discussion

Mr. Lawrence alleges four grounds for granting his § 2255 motion. The first is that counts two through four of the superseding indictment were multiplicitous; the second, that his rights to a speedy trial were violated; the third, that he received ineffective assistance of trial and appellate counsel; the fourth, that the District Court committed various errors at trial and sentencing by hearing evidence related to bad acts of Mr. Lawrence not charged in the indictment.[18] Mr. Lawrence abandoned the first, second, and fourth grounds on direct appeal.[19]They are thus procedurally defaulted unless Mr. Lawrence can excuse the default by showing both cause for the default and prejudice from it.[20] Mr. Lawrence argues that the cause for his default was that his counsel was ineffective for failing to preserve his claims. Therefore, the court analyzes his ineffective assistance of counsel claims first because unless Mr. Lawrence can prevail on any of those claims, he will not be entitled to relief on the defaulted grounds.

A. Ground Three: Ineffective Assistance of Counsel Claims

Ineffective assistance of counsel claims are evaluated pursuant to the two-pronged test established by the Supreme Court in Strickland v. Washington.[21] Under Strickland, counsel is presumed to have acted reasonably and to have been effective unless a defendant can demonstrate (1) that counsel’s performance was deficient and (2) that the deficient performance prejudiced defendant.[22] Counsel’s performance is only deficient when it is “outside the wide range of professionally competent assistance.”[23] Prejudice occurs upon a showing that there is a reasonable possibility that but for counsel’s deficient performance the outcome of the underlying proceeding would have been different.[24] For example, “[a]n attorney cannot be ineffective for failing to raise a claim that lacks merit, ” because in such cases the attorney’s performance is not deficient and would not have affected the outcome of the proceeding.[25] Similarly, an ineffective assistance of counsel claim is not established upon the showing that an error had an effect on the proceedings; rather, a defendant must show that there is a reasonable probability that the outcome would have been different in the absence of such errors.[26] A court may address the prongs of Strickland in any order as both must be satisfied to entitle a defendant to relief.[27]

1.Claims Involving Trial Counsel
a. Defendant’s Claim that Trial Counsel Was Ineffective for Failing to Raise and Preserve the Issue that Counts Two, Three, and Four were Multiplicitous.

Defendant asserts that Counts Two, Three, and Four as charged in the Superseding Indictment were multiplicitous and should have been charged in a single count, and thus trial counsel erred by failing to object. The Government argues that counsel was not ineffective because the counts were not multiplicitous.

“Multiplicity is the charging of a single offense in separate counts of an indictment.”[28]The constitutional risk presented by a multiplicitous indictment is that the court will violate the Fifth Amendment’s Double Jeopardy Clause by sentencing the defendant to multiple sentences for the same offense.[29] A determination of multiplicity rests on whether “the legislature intended to make separately punishable the different types of conduct referred to in the various counts.”[30]

In United States v. Kennedy, [31] the Third Circuit vacated the district court’s decision to merge two counts of the indictment, both charging Defendant with being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1).[32] The district court reasoned that the counts were multiplicitous because both of the firearms were seized by the same group of police officers in the same operation from cars that were located “within eyeshot of one another.”[33] The Third Circuit held, however, that whether a defendant’s possession of firearms is considered a single offense is not based solely on their location at the time of seizure by law enforcement.[34] Where firearms are “acquired at different times, ” possession of such firearms may be charged in separate counts of the indictment under § 922(g) without being multiplicitous.[35] “What matters is the defendant’s ‘course of . . . treatment of the firearms, ’ which ‘may not be viewed in a frozen, momentary state immediately prior to the seizure.’”[36]

Defendant’s argument is based on a mistaken belief that the fact that the firearms were seized by Detective McDermott from the same location at the same time alone establishes a single offense.[37] Here, the evidence could have led the jury reasonably to determine that Defendant received the three guns that he was convicted of possessing at three different times: Dionne Mitchell purchased the .25 caliber Taurus for herself and the Beretta .40 caliber pistol for Mr. Lawrence, [38] while the Berretta 9mm pistol was registered to Eric Connor.[39] Each of these three firearms therefore appears from the record to have come into Mr. Lawrence’s possession in a different way, allowing a separate count for the possession of each. Even if the argument that the possession charges should have been merged were colorable, it is too weak to support a claim that counsel was ineffective not to raise it because Mr. Lawrence has failed to adduce any case law in support of the argument.[40]

b. Defendant’s Claim that Trial Counsel’s Lack of Preparation Prejudiced Him.

Defendant contends that his trial counsel failed to conduct pre-trial investigation and that his lack of preparation prejudiced Mr. Lawrence. He argues that a reasonable investigation would have uncovered a clerk at the Firing Line, where Ms. Mitchell bought the guns involved in Counts Three and Four of the indictment, who had never seen Mr. Lawrence.[41] But any failure to adduce this testimony can hardly be said to prejudice Mr. Lawrence. The clerk’s statement that he did not see Mr. Lawrence is tangential to ...

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