United States District Court, W.D. Pennsylvania
GUSTAVE DIAMOND, District Judge.
Presently before the court is a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. §2255 filed by Russell Wayne McNeill III ("petitioner"). For the following reasons, petitioner's motion will be granted in part and denied in part. Petitioner's conviction and sentence only at Count 7 of the Indictment will be vacated. In all other respects, petitioner'S motion will be denied.
On October 24, 2006, a grand jury returned a nine-count indictment against petitioner charging him at Counts 1, 3 and 5 with the armed robberies of, respectively, a Uni-Mart convenience store, the Casa Del Sol II pizza shop and the Vallina's Market grocery store, all in violation of 18 U.S.C. §1951 (a); at Counts 2, 4, and 6 with carrying and brandishing a firearm during and in relation to the armed robberies charged in Counts 1, 3 and 5, respectively, all in violation of 18 U.S.C. §924(c)(1)(A)(i) and (ii); at Count 7 with bank robbery in violation of 18 U.S.C. §2113(a); at Count 8 with armed bank robbery in violation of 18 U.S.c. §2113(d); and, at Count 9 with carrying and brandishing a firearm during and in relation to the armed bank robbery charged in Count 8 in violation of 18 U.S.c. §924(c)(1)(A)(i) and (ii).
Petitioner was represented at all stages of the criminal proceedings, from initial appearance through appeal, by court-appointed attorney Charles M. Schwartz, Esq. Prior to trial, Attorney Schwartz filed a number of pretrial motions on behalf of petitioner, including: (1) a motion to dismiss the Hobbs Act counts,  and consequently each of the related firearms counts, for lack of jurisdiction as to the interstate commerce element; (2) a motion to sever the bank robbery counts from the Hobbs Act and related firearms counts; (3) a motion to suppress evidence relating to petitioner's identification from a photographic array; (4) a motion to suppress DNA evidence; and, (5) a motion to suppress evidence seized as a result of a vehicle search.
Following a hearing, the court issued an opinion denying all of petitioner's pretrial motions. In particular, as to the motion to dismiss the Hobbs Act counts, the court rejected petitioner's argument that any effect that the three robbed businesses had on interstate commerce would be "merely tentative and collateral." The court noted that the Hobbs Act requires only a de minimus effect on interstate commerce, see United States v. Urban, 404 F.3d 754 (3d Cir. 2005), and denied petitioner's motion without prejudice to raise the issue after the government had an opportunity to prove at trial that the businesses had at least a de minimus impact on interstate commerce.
Petitioner proceeded to trial where the evidence against him was overwhelming as to all four robberies. In total, the government called 24 witnesses and its evidence included, inter alia, eyewitness testimony, surveillance videos, photographic identifications and DNA evidence, as well as the testimony of Matthew Thomas Buckels, petitioner's getaway driver. Faced with this damning evidence, Attorney Schwartz's trial strategy involved conceding guilt on the bank robbery charges but contesting the Hobbs Act robberies by arguing that the government had failed to show that the businesses involved had the requisite impact on interstate commerce.
At the conclusion of the four-day trial, the jury rejected petitioner's defense and found him guilty of all nine counts charged in the indictment. Petitioner subsequently was sentenced to a term of imprisonment of 1, 062 months (88 ½ years), consisting of 78 months at each of counts 1, 3, 5, 7, and 8, all to be served concurrently, and 84 months (7 years) at count 2, and 300 months (25 years) at each of counts 4, 6 and 9, all required by statute to be served consecutively to each other and to the terms imposed at counts 1, 3, 5, 7 and 8. See 18 U.S.C. §§924(c)(1)(A)(ii), (c)(1)(C)(i) and (c)(1)(D)(ii).
Petitioner filed a direct appeal to the United States Court of Appeals for the Third Circuit, which affirmed petitioner's judgment of conviction and sentence, and the United States Supreme Court ultimately denied petitioner's motion for a writ of certiorari.
The charges in this case arose from several investigations conducted by various police departments and the FBI into a string of robberies committed in late April of 2006.
The first robbery, resulting in the charges at counts 1 and 2, occurred on April 27, 2006, at a Uni-Mart in Avella, Pennsylvania. After entering the store and obtaining some food items, petitioner approached the counter and asked the female teller for a pack of cigarettes. He then pulled out a handgun and ordered a female customer to her knees, threatening to "put one in [her] leg." Petitioner then left the store with cash, the food items and the cigarettes totaling $122.07. Officers were able to retrieve two surveillance video tapes and some still photos and later were able to determine that the robber of the Uni-Mart matched the description of the robber of Washington Federal Bank in Hickory, Pennsylvania, that occurred two days later. The victims subsequently identified petitioner as the robber through surveillance video and photographs.
Also on April 27, 2006, petitioner robbed the Casa Del Sole II pizza shop in Indianola, Pennsylvania, resulting in the charges set forth at counts 3 and 4. Officers learned that petitioner had entered the pizza shop, pulled out a semi-automatic handgun and demanded money. An employee turned over some cash from the register, then, upon petitioner's demand for more, gave him a bank deposit bag containing $85 for a total of $150. Petitioner angrily left when the employee indicated there was no more. Pizza shop employees identified petitioner through a photographic array and surveillance videos.
On April 28, 2006, petitioner robbed Vallina's Market in Langeloth, Pennsylvania, resulting in the charges set forth at counts 5 and 6. A female clerk informed officers that petitioner walked into the store, displayed a gun in the waistband of his pants and demanded all the money in the register. The clerk gave him $460 and petitioner left the store. The clerk later identified petitioner as the robber of Vallina's through surveillance video and photos from other robberies.
On April 29, 2006, petitioner robbed the Washington Federal Bank in Hickory, Pennsylvania, resulting in the charges set forth at counts 7, 8 and 9. Petitioner entered the bank wearing a dark Nike baseball cap and approached a teller. He grabbed $1, 000 from the teller station then displayed a black semi-automatic handgun, pointed it at the teller and demanded more money. The teller gave petitioner the money from her drawer, as did two other tellers. Petitioner fled the scene with $5, 909, $200 of which was bait money. Officers were able to obtain a description of petitioner from the victims and other witnesses.
Using the bank surveillance videos and still photos, officers made a comparison and determined that the bank robber bore a strong resemblance to the robber of the other three businesses. Based on these videos and photos, victims from the other robberies also were able to identify petitioner as the robber of their establishments.
Petitioner's §2255 Motion
Petitioner's pending §2255 motion raises a number of grounds for relief: (1) that he was improperly sentenced for both bank robbery at count 7 and armed bank robbery at count 8; (2) that he improperly was charged with, convicted of, and sentenced for four separate §924(c) counts when he committed only a single "crime spree;" (3) that counts 2, 4, 6 & 9 are multiplicitous; (4) that he improperly was sentenced under §924(c)(1)(C) for "second or subsequent convictions" when he committed only one continuing offense; (4) that Attorney Schwartz was ineffective during plea bargaining; (5) that Attorney Schwartz was ineffective at trial, at sentencing, and on direct appeal; (6) that the court's jury instructions violated due process; and, (7) that the jury deliberations were "tainted."
The government filed a response to petitioner's motion and petitioner filed a reply. On January 7, 2015, the court held an evidentiary hearing, at which both petitioner and Attorney Schwartz testified, as to petitioner's claim that he received ineffective assistance ofcounsel during plea bargaining. The court also heard testimony regarding Attorney Schwartz's trial strategy. All of petitioner's claims now are ripe for adjudication.
As an initial matter, petitioner has raised one meritorious claim - that his conviction and sentence for both bank robbery at count 7 and armed bank robbery at count 8 violate the double jeopardy clause. The government concedes that bank robbery is a lesser included offense of armed bank robbery and that defendant's conviction and sentence at count 7 must be vacated. See United States v. Cesare, 581 F.3d 206 (3d Cir. 2009)(bank robbery is lesser included offense of armed bank robbery and the district court's entry of dual convictions for both violated double jeopardy, requiring that the conviction and sentence on the bank robbery count be vacated). Accordingly, petitioner's conviction and sentence at count 7 only will be vacated.
Upon due consideration of petitioner's other grounds for relief the court finds all to be without merit for the reasons discussed herein. In light of the testimony received at the evidentiary hearing, petitioner has failed to demonstrate that Attorney Schwartz was ineffective either in plea bargaining or in regard to his trial strategy. As to petitioner's remaining claims, the record affirmatively establishes as a matter of law that petitioner is not entitled to relief under §2255 on any of them.
Standard of Review
A federal prisoner may move the sentencing court to vacate, set aside or correct a sentence "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." 28 U.S.C. §2255(a).
As a collateral challenge, a motion pursuant to 28 U.S.C. § 2255 is reviewed much less favorably than a direct appeal of the sentence. United States v. Travillion, 759 F.3d 281, 288 (3d Cir.2014). Accordingly, relief under § 2255 is available only when "the claimed error of law was a fundamental defect which inherently results in a complete miscarriage of justice, ' and... present[s] exceptional circumstances where the need for the remedy afforded by the writ... is apparent.'" Davis v. United States, 417 U.S. 333, 346 (1974)( quoting Hill v. United States, 368 U.S. 424, 428 (1962)).
A. Grounds relating to §924(c)
Petitioner has raised a number of claims relating to his convictions and sentences on four separate counts of violating 18 U.S.c. §924(c)(1)(A). The crux of each of these claims is that he improperly was charged with, convicted of, and sentenced for four separate violations of §924(c) when all of his conduct was part of a continuous crime spree which he alleges amounts to only a single crime. However, because petitioner properly was charged with four separate predicate offenses for crimes of violence - three Hobbs Act robberies and one armed bank robbery - he also properly was charged with four separate violations of §924(c), each relating to one of those four separate predicate offenses United States v. Diaz, 592 F.3d 467, 471 (3d Cir. 2010)(the proper "unit of prosecution" for §924(c) is the underlying predicate crime)..
As an initial matter, as the government aptly notes, petitioner failed to raise any challenge to his 924(c) convictions on direct appeal. The United States Supreme Court has held that "[w]here a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either cause' and actual prejudice', or that he is actually innocent.'" Bousley v. United States, 523 U.S. 614, 622 (1998) (emphasis added). Prejudice must be substantial, such that the integrity of the entire trial was infected. See United States v. Frady, 456 U.S. 152, 170 (1982).
Here, petitioner asserts ineffective assistance of counsel as "cause" for his failure to raise any §924(c) claims on direct appeal. However, because petitioner's §924(c) claims have no merit, petitioner cannot establish that his counsel was ineffective in failing to raise them, nor the prejudice that would ...