United States District Court, Western District of Pennsylvania
Gustave Diamond, United States District Judge
Presently before the court is petitioner Vernon Stevey's ("Stevey") pro se Motion Under 28 U.S.C. §2255 to Vacate, Set Aside or Correct Sentence (the "§2255 motion") (Document No. 242) and Addendum to §2255 Motion (the "Addendum") (Document No. 251). For the reasons set forth below, Stevey's §2255 motion will be denied.
On December 14, 2005, a grand jury returned a six-count superseding indictment against Stevey, William Michalowski
and Eric Weaver. All three individuals were charged with the following: robbing
the Irwin Bank and Trust in Greensburg, Pennsylvania on February 14, 2005, in
violation of 18 U.S.C. §2113(a) (Count One); armed bank robbery of the Irwin
Bank and Trust on February 14, 2005, in violation of 18 U.S.C. §2113(d) (Count
Two); and using, carrying and brandishing a firearm during and in relation to a
crime of violence on February 14, 2005, in violation of 18 U.S.C. §§924(c)(1)(A)(ii) and 2 (Count Three). In addition, Stevey and Michalowski were charged with the following: robbing the Parkvale Savings Bank in Wexford, Pennsylvania on February 16, 2005, in violation of 18 U.S.C. §2113(a) (Count Four); armed bank robbery of the Parkvale
Savings Bank on February 16, 2005, in violation of 18 U.S.C. §2113(d) (Count
Five); and using, carrying and brandishing a firearm during and in relation to
a crime of violence on February 16, 2005, in violation of 18 U.S.C, §§924(c)(1)(A)(ii) and 2 (Count Six).
Stevey subsequently filed a motion to suppress eyewitness identification. Following a hearing, this court denied Stevey's suppression motion, ruling that the photo array and identification procedure were not suggestive and, even assuming otherwise, the identification still was sufficiently reliable in light of the totality of the circumstances in this case.
A jury trial followed, after which Stevey was convicted of all six counts of the superseding indictment. Stevey was then sentenced by this court to a total term of 439 months imprisonment, followed by a five-year term of supervised release. He also was ordered to pay restitution in the total amount of $27, 915 jointly and severally with his co-defendants.
Stevey filed a timely appeal to the United States Court of Appeals for the Third Circuit raising the following issues: (1) whether the evidence was sufficient to establish that he was one of the actors who committed the bank robbery at Irwin Bank and Trust; (2) whether the conviction stemming from the bank robbery of the Irwin Bank and Trust was against the weight of the evidence because Eric Weaver's testimony was not credible; and (3) whether the evidence was sufficient to establish that he was one of the actors who committed the bank robbery at Parkvale Savings Bank. The Third Circuit affirmed this court's judgment of conviction and sentence, finding that the record substantially supported the jury's decision to convict Stevey on all counts related to the armed robbery of each bank.
Stevey now has filed a timely §2255 motion seeking relief on the following grounds:
(1) R. Damien Schorr, who was Stevey's first court-appointed counsel, was ineffective in representing him at the suppression hearing in this case because:
• he failed to call key witnesses;
• he failed to make objections to various evidence;
• he failed to gather certain evidence; he should not have called an expert witness, but instead should have focused on interviewing other witnesses; he failed to properly challenge the photo array that was used in connection with the eyewitness' identification of Stevey;
• he failed to have Stevey present in the courtroom during that portion of the hearing when the eyewitness testified;
(2) William C. Kaczynski, who was his second court-appointed counsel, was ineffective in representing Stevey at trial because:
• he failed to sequester police officers; he failed to make appropriate objections to ...