Almon v. U.S., CIV.A. 9:02-0217-08.

Citation302 F.Supp.2d 575
Decision Date09 February 2004
Docket NumberNo. CIV.A. 9:02-0217-08.,No. CRIM. 9:98-CR-1194.,CIV.A. 9:02-0217-08.,CRIM. 9:98-CR-1194.
CourtUnited States District Courts. 4th Circuit. United States District Court of South Carolina
PartiesCarl Antonio ALMON, Petitioner, v. UNITED STATES of America, Respondent.

Carl Antonio Almon, Marianna, FL, pro se.

Nancy C Wicker, U.S. Attorneys Office, Columbia, SC, for respondent.

ORDER

BLATT, Senior District Judge.

INTRODUCTION

This matter is before the Court on the pro se Petitioner's request for writ of habeas corpus, pursuant to 28 U.S.C. § 2255. The Petitioner was convicted by a jury in June 1999 of a single count of assaulting a postmaster with intent to rob and steal property of the United States, and in doing so jeopardizing the life of the postmaster with a knife, in violation of 18 U.S.C. § 2114. The Petitioner was sentenced to 100 months' imprisonment, followed by a three-year period of supervised release, as well as with restitution in the amount of $603.00.

The Petitioner obtained a second attorney after sentencing and appealed his conviction and sentence, raising four issues: sufficiency of the evidence against him, a constructive amendment to the indictment, improper Government statements during closing arguments, and ineffective assistance of counsel. The Fourth Circuit Court of Appeals rejected the first three contentions, declined to take up the ineffective assistance of counsel argument, and affirmed the Petitioner's conviction on November 13, 2000. The Petitioner's request for certiorari review by the United States Supreme Court was denied on March 19, 2001.

The Petitioner then filed this action on January 23, 2002. The petition alleges five clear assignments of error and other less-specific arguments. The Government moved for summary judgment on March 14, 2002. After being given notice of the procedure for summary judgment and being advised of his duty to respond to the motion, see Roseboro v. Garrison, 528 F.2d 309 (4th Cir.1975), the Petitioner moved for and was granted an extension of time in which to respond. The response, which also requests summary judgment be granted in his favor, has been filed and this matter is now ripe for decision.1

DISCUSSION
Habeas Corpus Petition

In general, 28 U.S.C. § 2255 requires a defendant to prove by a preponderance of the evidence 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." This is the proof needed to allege a constitutional error. "The scope of review of non-constitutional error is more limited than that of constitutional error; a non-constitutional error does not provide a basis for collateral attack unless it involves `a fundamental defect which inherently results in a complete miscarriage of justice,' or is `inconsistent with the rudimentary demands of fair procedure.'" United States v. Mikalajunas, 186 F.3d 490, 495-96 (4th Cir.1999).

Most of the claims alleged by the Petitioner, however, could have been raised on appeal, but were not, subjecting them to a different standard of review:

In order to collaterally attack a conviction or sentence based upon errors that could have been but were not pursued on direct appeal, the movant must show cause and actual prejudice resulting from the errors of which he complains or he must demonstrate that a miscarriage of justice would result from the refusal of the court to entertain the collateral attack. The existence of cause for a procedural default must turn on something external to the defense, such as the novelty of the claim or a denial of effective assistance of counsel. And, in order to demonstrate that a miscarriage of justice would result from the refusal of the court to entertain the collateral attack, a movant must show actual innocence by clear and convincing evidence.

United States v. Mikalajunas, 186 F.3d at 492-93 (citations omitted).

The Petitioner raises several arguments, which may be divided into certain general topics for purposes of discussion. Each will be addressed in turn.

- Unreasonable Search and Seizure

The Petitioner alleges generally that he was denied constitutional rights in the form of "unreasonable searches and seizures without probable cause." However, the Petitioner fails to provide any specific evidence or other proof relating to this ground in his petition or in his response to the Government's motion. In addition, the validity of the search of the Petitioner's home was raised and thoroughly discussed prior to trial via a lengthy motion to suppress hearing, and the Petitioner failed to raise the issue before the Court of Appeals. After a review of the entire record, the Court concludes that, with respect to this claim, the Petitioner has totally failed to demonstrate the cause, prejudice, or inherent fundamental miscarriage of justice required to vacate his conviction. See Mikalajunas, 186 F.3d at 492-93.

- Double Jeopardy, Self-Incrimination and Deprivation of Life/Liberty

Likewise, the Petitioner generally claims in his petition that his conviction was obtained "in violation of the protection against double jeopardy." He provides no evidence to support this claim, including what other charge or prosecution would serve to invoke double jeopardy on the present conviction.2 In addition, the Petitioner failed to raise this issue on appeal. As he has failed to demonstrate the proper cause, prejudice or miscarriage of justice, this claim is dismissed.

The Petitioner also claims summarily that he was unconstitutionally "forced to be a witness against himself and deprived of his life and liberty." The Petitioner chose not to testify at his trial, and he does not submit any evidence to support his claim that his right against self-incrimination was infringed.3 Likewise, aside from his general challenge to the propriety of his conviction and sentence, the Petitioner alleges no specific incident of deprivation of life or liberty. Additionally, neither of these grounds was raised on appeal. To the extent not otherwise addressed by this Order, these claims are likewise dismissed.

- Speedy Trial Act

The Petitioner argues for the first time in this petition that he was denied a speedy trial, as defined by 18 U.S.C. § 1361. He asserts that he "did not motion [sic] nor did he file any motion for continuance or any motion that would have toll [sic] the trial. Even if defendant would have filed several motions, this could not have stopped the speedy trial clock." He did not raise this issue on appeal, and thus the "cause and prejudice" standard is applicable.

Even under any standard, however, the Petitioner was not deprived of a speedy trial. The Speedy Trial Act requires trial to begin within 70 days from the latter of the date of indictment or the date of first appearance. 18 U.S.C. § 3161(c)(1). The date of indictment or appearance does not count. See United States v. Stoudenmire, 74 F.3d 60, 63 (4th Cir.1996). Here, the Petitioner was indicted on November 20, 1998, and was arraigned on December 4, 1998. Thus, the 70-day period began on December 5, 1998.

The Speedy Trial Act excludes from calculation "any period of delay resulting from ... any pre-trial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion." 18 U.S.C. § 3161(h)(1)(F). The Petitioner filed a motion to suppress on January 8, 1999, which was not resolved until March 29, 1999. The United States Supreme Court has held that this period of exclusion is total, without regard to any discussion as to whether this period is "reasonable." See Henderson v. United States, 476 U.S. 321, 326-27, 106 S.Ct. 1871, 90 L.Ed.2d 299 (1986). Thus, this entire period of 80 days is excluded.

The Act also excludes from its calculation any delay resulting "from any interlocutory appeal." 18 U.S.C. § 3161(h)(1)(E). The Petitioner filed an interlocutory appeal of the denial of his motion to suppress on April 7, 1999. The Fourth Circuit dismissed this appeal for failure to prosecute on May 27, 1999, a period of 50 days.

The Petitioner's trial began on June 21, 1999. The number of days which passed for Speedy Trial Act purposes is therefore calculated as follows:

                  December 5, 1998 through January 7, 1999 =  34 days
                  March 30, 1999 through April 6, 1999 =       8 days
                  May 28, 1999 through June 20, 1999 =        24 days
                  _____________________________________       _______
                  TOTAL =                                     66 days
                

This period is within the 70 days permitted by the Act.

Moreover, the Petitioner did not object (and the Court finds it would not have been reasonable to object) to the continuance of the trial from the March 1999 term of court to the May 1999 term, so that the motion to suppress could be properly analyzed and discovery could be appropriately conducted. Thus, the Petitioner has not demonstrated a violation of the Speedy Trial Act, and this claim is dismissed.4

- Defective Indictment

In his response to the Government's motion, the Petitioner claims for the first time that the indictment against him was defective. The Petitioner argues that "the indictment charged with [sic] robbery and was never amended or superseded to charge assault or attacking as convicted. There were [sic] no lesser crime or charge presented to the jury. The charge of attacking does not fit under the robbery statute." He further urges that "the indictment failed to state which assault is charged or convicted defendant of[,] leaving the jury to second-guess what assault, what attack took place." After arguing the sufficiency of the evidence against him (which will be discussed below), the Petitioner concludes by claiming that "the indictment failed to name a crime or the objects, mail matters, money or any thing of value that...

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