Martin v. U.S.
| Decision Date | 10 September 2001 |
| Docket Number | No. 01-C-020.,No. 98-CR-62.,01-C-020.,98-CR-62. |
| Citation | 161 F.Supp.2d 975 |
| Parties | Henry L. MARTIN, Petitioner, v. UNITED STATES of America, Respondent. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Henry Martin, petitioner pro se.
Rebecca Dallet, Special Assistant U.S. Attorney, Milwaukee, WI, for respondent.
DECISION AND ORDER
Henry Martin, a prisoner in federal custody, has filed a motion pursuant to 28 U.S.C. § 2255 for relief from his conviction and sentence. Martin was convicted by a jury of bank robbery. The court sentenced him to 62 months of imprisonment, a $4,000.00 fine, and restitution of $1,212.00. His conviction was affirmed by the Seventh Circuit and the United States Supreme Court denied a writ of certiorari. See United States v. Martin, 189 F.3d 547 (7th Cir.1999), cert. denied, 528 U.S. 1097, 120 S.Ct. 840, 145 L.Ed.2d 705 (2000). He then filed this motion asking for collateral relief. Martin alleges that the attorney who represented him at trial and on appeal was ineffective.1 After briefing had begun on the motion, Martin successfully moved to amend his motion to add more claims. The government has responded to the amended motion and has denied that Martin is entitled to any relief. The issues raised have been fully briefed.
I. FACTS
The Court of Appeals for the Seventh Circuit set forth the facts of this case as follows:
At 6:53 p.m., on March 19, 1998, a woman (later identified as Lisa McElwee) entered a Tri City National Bank branch in Brown Deer, Wisconsin and displayed a note which read: "give me your money, not bait," and verbally repeated the command. [FN1] She made off with $1,212, ran into the parking lot, and got into a black car driven by a man. Witnesses testified that the man opened the driver's side door and after she dove into the car over his lap he shut the door, waved to her pursuers, and then sped away. About an hour after the robbery, Henry Martin went to the police and told them that he had been driving in the parking lot near the bank when a woman jumped into his car and forced him to drive her away. The getaway car was his, and to preempt police tracking his license number he presented this carjacking explanation.
FN1. Bait money is real money that tellers keep in their money drawers in case of robbery. The serial numbers of the bills are prerecorded so that the authorities might later determine where the money is spent. Pulling out the bait money also triggers a silent alarm and this money frequently contains a dye capsule which splatters an indelible dye on the money and the thief.
On March 25, 1998, the Milwaukee police arrested McElwee and Martin while they were sitting in Martin's car after purchasing some heroin. When confronted with a photograph from the bank surveillance camera, McElwee admitted that the picture was of her and told the police that Martin was the driver of the getaway car. She related that she had known Martin for seven years, had previously worked with him at the Social Development Commission, and since 1993 she and Martin frequently would consume heroin together. When the police showed Martin the surveillance photograph he responded that the robber depicted in it was the woman who hijacked his car, but that McElwee was not that person. Subsequently, a grand jury indicted Martin and McElwee for one count of bank robbery in violation of 18 U.S.C. §§ 2113(a) & 2.
McElwee entered into a plea agreement, testified against Martin at his trial, and related how the robbery transpired. On the day of the robbery, Martin picked her up at her house and they went and consumed heroin together. Later, as they were sitting in his car, they hatched their plot after hearing on the radio about a successful bank robbery. McElwee testified that Martin eventually drove her to the bank which she robbed, and that they escaped in his car. They drove to McElwee's mother's house where they counted the money. Martin then told McElwee that he was going to tell the police that a woman shoplifter jumped into his car and forced him to drive away, as he was afraid that someone had seen his license plate. So about an hour after the robbery, Martin went to the police station to report that he had been a victim of a carjacking near the Tri City National Bank. The police immediately doubted his story. They obtained fingerprints from his car which matched those taken during a prior arrest of McElwee. The police then examined a photograph of McElwee from police records and learned that her facial profile matched pictures of the robber taken by the Tri City Bank surveillance cameras.
As the evidence overwhelmingly conflicted with Martin's version of events, he was forced to abandon his initial story and finally admitted at trial that he drove McElwee to the bank, that she robbed the bank, and that the woman who jumped into his car was McElwee.
He also admitted the obvious: he had concocted the carjacking story. Martin denied, however, that he knew McElwee was going to rob the bank and stated that he played no role in planning the robbery and did not receive any of the money.
With his credibility severely damaged, a major part of Martin's defense was that he had no need to rob a bank, as he had been receiving severance pay, his wife had a good job, and he had plenty of art, jewelry, and electronic goods which he could have liquidated.
United States v. Martin, 189 F.3d 547, 548-49 (7th Cir.1999), cert. denied, 528 U.S. 1097, 120 S.Ct. 840, 145 L.Ed.2d 705 (2000).
Given these facts, the jury found that Martin had participated in the bank robbery. The only issue raised by Martin on direct appeal was whether he was prejudiced as a result of being questioned by the trial court about his finances. The court of appeals affirmed his conviction on the ground that the court had not unfairly prejudiced the Defendant by its attempt to clarify the Defendant's prior testimony which was ambiguous and unclear concerning his motive to rob the bank. See Id. at 554-55.
Section 2255 provides a means of collaterally attacking a conviction or sentence; however, the grounds for the collateral attack are narrowly limited. See United States v. Addonizio, 442 U.S. 178, 184, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979). A motion under section 2255 will be granted only if the petitioner can show a "fundamental defect which inherently results in a complete miscarriage of justice" or "an omission inconsistent with the rudimentary demands of fair procedure." Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1862). Similarly, errors of fact will not provide a basis for relief unless the errors were of the most fundamental character, so as to render the proceeding itself irregular and invalid. Addonizio, 442 U.S. at 186, 99 S.Ct. 2235.
The Supreme Court has "long and consistently affirmed that a collateral challenge may not do service for an appeal." United States v. Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). A petitioner's failure to raise a particular error either at trial or on direct appeal generally precludes the assertion of that error for the first time in a collateral attack under section 2255. See United States v. Taglia, 922 F.2d 413, 418 (7th Cir.), cert. denied sub nom. McDonnell v. United States, 500 U.S. 927, 111 S.Ct. 2040, 114 L.Ed.2d 125 (1991). If a petition is predicated upon information known by the defendant and his counsel at the time of the trial or at a point at which an appeal could have been taken, such knowledge is fatal to a section 2255 claim. See e.g., Doe v. United States, 51 F.3d 693 (7th Cir.), cert. denied, 516 U.S. 876, 116 S.Ct. 205, 133 L.Ed.2d 139 (1995).
Where, as here, a section 2255 motion rests upon issues not raised at trial or on direct appeal and the government has raised a procedural default defense, the petitioner bears the burden of demonstrating that "cause" excused the procedural default and that "actual prejudice" resulted from the errors at issue.2 United States v. Frady, 456 U.S. 152, 167, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). "[T]he existence of cause for a procedural default must ordinarily turn on whether some objective factor external to the defense impeded counsel's effort to comply with the ... procedural rule." Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). The Supreme Court has explained that:
Objective factors that constitute cause include "interference by officials" that makes compliance with [the exhaustion requirement] impracticable, and "a showing that the factual or legal basis for a claim was not reasonably available to counsel." In addition, constitutionally "ineffective assistance of counsel ... is cause." Attorney error short of ineffective assistance of counsel, however, does not excuse a procedural default.
McCleskey v. Zant, 499 U.S. 467, 493-94, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991) (quoting Murray, 477 U.S. at 486-88, 106 S.Ct. 2639). See also Kelly v. United States, 29 F.3d 1107, 1112 (7th Cir.1994). To establish prejudice, the petitioner must show, not merely that the error created a possibility of prejudice, but that the error worked to his actual and substantive disadvantage, infecting the proceedings with error of constitutional dimensions. See Frady, 456 U.S. at 170, 102 S.Ct. 1584.
In this case, Martin claims that the cause of his failure to raise the instant issues on appeal was that he was denied effective assistance of counsel at trial and on appeal.3 A defendant has a Sixth Amendment right to "reasonably effective counsel." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish a claim for ineffective assistance of counsel, a defendant
[f]irst ... must show that counsel's performance was...
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