U.S. v. Shipp, Case No. 04-CR-0214-CVE.

Decision Date09 October 2008
Docket NumberCase No. 04-CR-0214-CVE.,Case No. 08-CV-0277-CVE.
Citation628 F.Supp.2d 1312
PartiesUNITED STATES of America, Plaintiff, v. Vauda Virgle SHIPP, Jr., Defendant.
CourtU.S. District Court — Northern District of Oklahoma

Chad Adrian Greer, United States Attorney's Office, Tulsa, OK, for Plaintiff.

Vauda Virgle Shipp, Jr., EL Reno, OK, Pro Se.

Robert Russell Nigh, Jr., Brewster & De Angelis PLLC, Tulsa, OK, for Defendant.

OPINION AND ORDER

CLAIRE V. EAGAN, Chief Judge.

Now before the Court is defendant Vauda Virgle Shipp, Jr.'s motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 (Dkt. # 132).1 In his § 2255 motion, defendant also requests appointment of counsel and an evidentiary hearing.2 Id. at 12. Section 2255 provides that "[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 law of the United States ... 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." 28 U.S.C. § 2255(a).

Background

On December 9, 2004, the Grand Jury returned an indictment charging Vauda Virgle Shipp, Jr. with possession of a firearm after a felony conviction in violation of 18 U.S.C. § 922(g)(1). Dkt. # 1. The indictment contained sentencing allegations that Shipp committed the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense and that the offense involved between three and seven firearms.3 Dkt. # 1, at 3. On April 13, 2005, Paul Brunton, the Federal Public Defender, was appointed to represent Shipp. Dkt. # 6. On June 13, 2005, Brunton was permitted to withdraw due to an overwhelming caseload. Dkt. # 14, at 1. Robert Nigh, Jr., a member of the Criminal Justice Act ("CJA") panel, was appointed as substitute counsel. Dkt. # 16. The case proceeded to trial by jury. On September 14, 2005, a jury found Shipp guilty of the charged § 922(g)(1) offense. Dkt. # 60. Sentencing was set for December 12, 2005.

On December 6, 2005, Shipp filed a pro se "Motion to Recuse" asking to remove Nigh as defense counsel due to his allegedly deficient performance.4 Dkt. # 65. On December 8, 2005, Nigh filed an objection to the presentence report objecting, inter alia, to the classification of Shipp as an armed career criminal.5 Dkt. # 69. The sentencing hearing was continued to allow Nigh to withdraw from the case, and CJA panel attorney Frank Lockhart was subsequently appointed to represent Shipp. Dkt. # 75. On February 9, 2006, Lockhart filed a second sentencing memorandum, adopting Nigh's prior objections to the presentence report and making additional challenges to Shipp's classification as an armed career criminal.6 Dkt. # 81. Simultaneously, Lockhart filed a motion for new trial based on the alleged ineffective assistance of Nigh in failing to investigate, discover, and present at trial evidence which would have purportedly impeached the testimony of government's witnesses. Dkt. # 82, at 2.

The sentencing judge overruled both of Lockhart's post-trial motions and, on February 15, 2006, sentenced Shipp to 188 months imprisonment, followed by a five year term of supervised release and a fine of $1,000. Dkt. # 82. Shipp appealed his conviction and sentence to the Tenth Circuit Court of Appeals.7 On June 11, 2007, the Tenth Circuit issued its decision affirming Shipp's conviction and sentence. Id. Shipp did not file a petition for writ of certiorari. Shipp's conviction became final 90 days later when his time to file a petition for writ of certiorari expired. See Clay v. United States, 537 U.S. 522, 527, 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003).

On September 17, 2007, Shipp filed a second motion for new trial.8 Dkt. # 115. The motion was denied on October 19, 2007.9 Dkt. # 123. The order denying a new trial was affirmed by the Tenth Circuit. Dkt. # 134, 137.

Shipp filed the instant § 2255 motion on May 8, 2008, within the one year statute of limitations provided by § 2255. This is defendant's first § 2255 motion. The Court finds that Shipp's motion is timely and that it has jurisdiction to proceed to determine the merits.

Issues Raised

In his § 2255 motion, defendant claims that his appointed counsel, Lockhart, was constitutionally ineffective at the sentencing hearing and on appeal:

(1) By "failing to object to trial court's error in imposing a sentence that contravened 18 U.S.C. § 3553(a)(6)." Dkt. # 132, at 1.

(2) By failing to raise additional grounds in support of his claim that a walkaway escape conviction should not be classified as a violent felony. Dkt. # 132, at 8-10.

(3) In "compound[ing][his] mistake by declining to file Supreme Court Certiorari by telling Defendant misleading information in his May 22, 2007 letter to end all direct appeal effort." Dkt. # 132, at 1.

Analysis

The Sixth Amendment requires that a criminal defendant receive effective assistance of counsel both at trial and during a direct appeal as of right. Romero v. Tansy, 46 F.3d 1024, 1029 (10th Cir.1995) (citing Evitts v. Lucey, 469 U.S. 387, 396, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985)). To establish a claim of ineffective assistance of counsel, a defendant must show that his counsel's performance was deficient and that the deficient performance was prejudicial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Smith v. Robbins, 528 U.S. 259, 285, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000) (the Strickland test applies to appellate as well as trial counsel). A defendant can establish the first prong by "showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687, 104 S.Ct. 2052. "When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness." Id. at 688, 104 S.Ct. 2052. Review of counsel's performance must be highly deferential. Id. at 689, 104 S.Ct. 2052.

To establish the second prong, a defendant must show prejudice resulting from counsel's performance. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. That is, the "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. 2052; see also Lockhart v. Fretwell, 506 U.S. 364, 369-70, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993).

As to his first and second claims, defendant contends that Lockhart was constitutionally ineffective in failing to raise and argue two claims at sentencing and on appeal. Defendant first contends that his counsel was ineffective in failing to object to the Court's imposition of a sentence that purportedly contravened 18 U.S.C. § 3553(a)(6), which provides:

The court, in determining the particular sentence to be imposed, shall consider the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.

Defendant argues that the sentencing judge erred in applying Tenth Circuit law and sentencing him as an armed career criminal for a walkaway escape conviction, when the Ninth Circuit does not treat this type of crime as a violent felony under the ACCA. Defendant faults Lockhart for not raising this disparity at sentencing or on appeal. Defendant relies on United States v. Piccolo, 441 F.3d 1084 (9th Cir.2006), which reversed and remanded for resentencing the district court's classification of the defendant as a career offender for his prior walkaway escape conviction. In Piccolo, the Ninth Circuit held that a walkaway escape conviction does not qualify as a crime of violence under U.S.S.G. § 4B1.1 in determining career offender status. Id. at 1088.

The Court finds that defendant's first claim is without merit. Defendant was sentenced on February 15, 2006. On that date, the sentencing judge relied on longstanding Tenth Circuit precedent holding that any prior conviction for escape was a violent felony within the meaning of ACCA. See United States v. Moore, 401 F.3d 1220, 1226 (10th Cir.2005); United States v. Turner, 285 F.3d 909, 915 (10th Cir.2002); United States v. Adkins, 196 F.3d 1112, 1118 (10th Cir.1999) (McKay, J., concurring); United States v. Moudy, 132 F.3d 618, 620 (10th Cir.1998); United States v. Gosling, 39 F.3d 1140, 1142 (10th Cir.1994). These opinions were binding on this Court. Additionally, Piccolo was issued by the Ninth Circuit on April 20, 2006, two months after defendant was sentenced in February 2006. At the time of defendant's sentencing, the Ninth Circuit's opinion had not been issued and defense counsel was not ineffective in failing to raise the issue at sentencing.10

Defendant further argues that Lockhart was constitutionally ineffective in failing to assert the conflicting holding by the Ninth Circuit in Piccolo in his brief before the Tenth Circuit. Lockhart filed his opening brief with the Tenth Circuit on June 16, 2006, two months after the issuance of Piccolo. When a defendant alleges his appellate counsel rendered ineffective assistance by failing to raise an issue on appeal, the court is to consider the merits of the omitted issue. If the issue is determined to be without merit, counsel's failure to raise it does not constitute ineffective assistance of counsel. See United States v. Cook, 45 F.3d 388, 392-93 (10th Cir.1995). At the time defendant's appellate brief was filed, every federal court of appeals except for the Ninth Circuit relied on Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143...

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