Bruce v. U.S.A.

• Decision Date: 05 July 2001
• Docket Number: No. 99-4337,99-4337
• Citation: 256 F.3d 592
• Parties: (7th Cir. 2001) JAMES W. BRUCE, Petitioner-Appellant, v. UNITED STATES OF AMERICA, Respondent-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 592

256 F.3d 592 (7th Cir. 2001)

JAMES W. BRUCE, Petitioner-Appellant, v. UNITED STATES OF AMERICA, Respondent-Appellee.

No. 99-4337

In the United States Court of Appeals For the Seventh Circuit

ARGUED MARCH 6, 2001

DECIDED July 5, 2001

Appeal from the United States District Court for the Southern District of Indiana, Evansville Division. No. 98 C 171--Richard L. Young, Judge.

Before FAIRCHILD, CUDAHY and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

James W. Bruce appeals the denial of his motion for post-conviction relief under 28 U.S.C. sec. 2255. He alleges that his trial counsel was ineffective for having failed to investigate and call two alibi witnesses who could have exonerated him of involvement in two armed bank robberies. Specifically, Mr. Bruce contends that the district court improperly denied him an evidentiary hearing to resolve certain factual disputes concerning the reasonableness of counsel's performance. For the reasons set forth in the following opinion, we reverse the judgment of the district court and remand the case for proceedings consistent with this opinion.

I BACKGROUND

A.

Mr. Bruce, along with a confederate, Murray Woodworth, was convicted of various counts in connection with four armed bank robberies. Those convictions were later affirmed by this court. See United States v. Bruce, 109 F.3d 323 (7th Cir. 1997). We shall assume familiarity with that opinion and repeat here only those matters necessary for an understanding of the issue now before us.

At trial, the Government attempted to show that Mr. Bruce and Woodworth followed a similar pattern in robbing four Evansville, Indiana, banks between October 1993 and February 1995. According to the Government's view, shortly before each robbery, Woodworth purchased an older vehicle and affixed to it a stolen license plate. These vehicles then were used to flee the victimized banks, but quickly were abandoned for other transportation. The prosecution also suggested that common characteristics other than the cars linked the robberies; the perpetrators carried rifles or shotguns, wore similar clothing such as trench coats or ski masks, and chose late Thursday or Friday afternoon for each holdup. The Government developed its theory at trial by presenting the following circumstances surrounding each holdup.

For the first robbery, Woodworth purchased a 1978 black Lincoln Continental. The following day, October 29, 1993, a Friday, he and Mr. Bruce, disguised in full-face Halloween masks and long trench coats and wielding assault rifles, entered an Old National Bank branch at 2:40 p.m. and robbed the tellers of $91,500. The two men then returned to the Lincoln, drove it a short distance, and abandoned it for another car. Affixed to the abandoned Lincoln was a stolen Indiana license plate.

For the second robbery, Woodworth purchased a 1977 Dodge van. One week later, on September 2, 1994, a Friday, at 3:00 p.m., Woodworth and Mr. Bruce, using the van, robbed two Mid-West Federal Savings employees of $13,050 as they were attempting to fill an ATM machine. Woodworth was armed with a shotgun during the holdup. Mr. Bruce and Woodworth drove a short distance from the crime scene and then left the van, bearing a stolen Kentucky license plate, for other transportation.

The third robbery occurred several weeks later. On Thursday, October 27, 1994, at 2:45 p.m., the two men--one wearing a black ski mask and trench coat and carrying a handgun, the other holding an assault rifle--robbed another Old National Bank branch of $62,456. They absconded in a brown Oldsmobile Cutlass, but soon abandoned the vehicle. Woodworth had purchased this car the previous day. It bore a stolen Ohio license plate.

The fourth robbery started out in a similar fashion. On February 8, 1995, Woodworth purchased an old blue van and bolted to it a stolen Indiana license plate. The following day (a Thursday) at 2:45 p.m., Mr. Bruce and he drove the van to another Old National Bank branch. Donning disguises (one of the men was also wearing a trench coat) and armed again with an assault rifle, they made off with $54,963. This time, however, their second vehicle broke down. Desperate for transportation, they paid $2,850 in cash for a blue pickup truck from an off-duty Henderson, Kentucky, police officer. The officer became suspicious when he noticed that the men were carrying shopping bags full of clothes, and one bag had a Minnesota license plate sticking out on top. The officer contacted the Evansville police, and, less than an hour later, police found Mr. Bruce and Woodworth parking the pickup in a storage facility. The two men had cash from the bank, assault rifles, loaded handguns and ammunition, and a bag with disguises worn during the robbery earlier that day. Police later discovered more ammunition, police scanners, and six 12-gauge shotgun shells in a Henderson, Kentucky, motel room in which the two men had been staying.

B.

Mr. Bruce and Woodworth were charged with four counts of armed bank robbery, 18 U.S.C. sec.sec. 2113(a) & (d); one count of conspiracy to commit armed bank robbery, 18 U.S.C. sec.sec. 371, 2113(a) & (d); and four counts of using a firearm during and in relation to a crime of violence, 18 U.S.C. sec. 924(c). Each was also individually charged with one count of possession of a firearm by a felon, 18 U.S.C. sec. 922(g)(1). An attorney was appointed defense counsel for Mr. Bruce.

Defense counsel obtained a severance of the counts relating to the fourth robbery from all of the other counts. Following a trial on the counts relating to the fourth robbery, defense counsel obtained another severance that separated the counts pertaining to the first three robberies from the felon-in-possession counts. The felon-in-possession counts subsequently were dismissed by the Government.

In July 1995, Mr. Bruce and Woodworth went to trial on the charges relating to the February 9, 1995, robbery. The prosecution presented three days of testimony. Defense counsel presented no witnesses and chose only to cross-examine certain prosecution witnesses. The jury found both men guilty of armed robbery and of the use of a firearm during and in relation to a crime of violence.

The court then scheduled a second trial for February 5, 1996, on the remaining counts. On February 2, 1996, at Mr. Bruce's request, his defense counsel moved for a continuance on the ground that Mr. Bruce had identified potential exculpatory witnesses, and counsel needed time to locate them and to arrange for their appearances. The district court denied that motion on February 4, 1996, but stated that "[i]f a witness should materialize . . . Defendant Bruce will have the opportunity to move this Court to suspend proceedings until the jury can hear the alibi testimony." Trial Court ("TC") R.68 at 3.

The following morning, immediately before trial was scheduled to begin, Mr. Bruce sought permission to address the court. At his defense counsel's urging, Mr. Bruce told the court that counsel had ignored his requests to investigate certain alibi witnesses. Mr. Bruce stated that his defense counsel had visited him the previous week and "got real belligerent with me over a letter that I wrote him and explained to him that I needed my witnesses here in court." TC R.88, Vol.I (2/5/96) at 11. The court asked Mr. Bruce some general questions about witnesses he wished to call and then announced that it would not entertain any delays to the start of the second trial.

In this second trial, the Government presented its case largely through eyewitness identification of Mr. Bruce as one of the two masked perpetrators of the robberies. In Mr. Bruce's defense, his defense counsel called only one alibi witness, William Turberville. Turberville testified that Mr. Bruce dated his daughter, Betty Thompson, from December 1993 until his arrest. Turberville said he was with Mr. Bruce at the Michigan State Fair on September 5, 1994, and he believed that he was working with Mr. Bruce at a Michigan motel on September 2, 1994, the date of the second robbery. The jury was apparently not persuaded by Turberville's testimony; it returned a verdict against Mr. Bruce and Woodworth on all remaining counts. Mr. Bruce received stiff sentences for those convictions--a total of 901 months' imprisonment.

C.

Nearly two years later, Mr. Bruce filed a pro se motion under sec. 2255 to set aside his convictions based on ineffective assistance of defense counsel. He requested an evidentiary hearing. Mr. Bruce alleged that his trial defense counsel, who also had served as counsel on direct appeal, was ineffective for failing to investigate the proposed testimony of his alibi witnesses. The district court¹ ordered Mr. Bruce to supplement his motion with additional facts supporting his claim. In response, Mr. Bruce proffered the affidavits of Betty Thompson and Edward Barton (a former co-worker), who claimed to have been with Mr. Bruce on the days that two of the bank robberies occurred. According to Mr. Bruce, these witnesses were "very crucial to this case" because they would have given "credible testimony" of his "whereabouts," and no jury "would convict the defendant while hearing testimony of witnesses who were with the defendant on the dates in question." Post Conviction ("PC") R.2 at 9. In her affidavit, Thompson asserted that Mr. Bruce could not have committed a bank robbery in Indiana on September 2, 1994, because he was with her at the Michigan State Fair that day. She further stated that she contacted defense counsel about this matter in January 1996, one month before Mr. Bruce's second trial. Similarly, Barton stated through his affidavit that Mr. Bruce was with him on October 29, 1993 (the date of the first bank robbery), laying floor tile at a friend's house. Barton further asserted that he had been contacted by Mr. Bruce's mother while Mr. Bruce was awaiting trial and that he had contacted defense counsel to inform him...