Mouzon v. United States, CV 119-130

CourtUnited States District Courts. 11th Circuit. United States District Court (Southern District of Georgia)
PartiesROBBIE LEE MOUZON, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
Docket NumberCV 119-130
Decision Date28 September 2020


CV 119-130


September 28, 2020

(Formerly CR 116-048)


Petitioner Robbie Lee Mouzon filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence, as well as multiple motions to amend and supplement the original motion. The Court REPORTS and RECOMMENDS the motions to amend and supplement be DENIED, (doc. nos. 19, 23, 26, 29), the § 2255 motion be DENIED, this civil action be CLOSED, and a final judgment be ENTERED in favor of Respondent.


A. Pretrial Proceedings

1. Indictment and Penalty Certification

In an indictment returned on July 6, 2016, a grand jury in the Southern District of Georgia charged Petitioner and one co-defendant in a seven count indictment as follows: Count One, conspiracy to commit robbery of a commercial business; Count Two, conspiracy to use and carry a firearm during crimes of violence as charged in Counts Three and Five; Count Three, robbery of a commercial business - Speedee Cash; Count Four, carrying, using

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and brandishing a firearm during a crime of violence as charged in Count Three; Count Five, robbery of a commercial business - Jeweler's Bench; Count Six, carrying, using and brandishing a firearm during a crime of violence as charged in Count Five; and, Count Seven, possession of a firearm by a convicted felon. United States v. Mouzon, CR 116-048, doc. no. 1 (S.D. Ga. July 6, 2016) (hereinafter "CR 116-048").

The Count One and Count Two conspiracy charges each carried a possible prison sentence of not more than twenty years. Id., doc. no. 2. The robbery charges in Counts Three and Five each carried a possible prison term of not more than twenty years. Id. at 2. Counts Four and Six, each charged under 18 U.S.C. § 924(c), carried a possible prison term for a first conviction of not less than five years if possessed or seven years if brandished, consecutive to any other sentence imposed. Id. Upon a second or subsequent conviction, the § 924(c) charges carried a possible term of imprisonment of not less than twenty-five years consecutive to any other sentence imposed. Id. The Count Seven felon in possession charge carried a possible term of imprisonment of not more than ten years. Id. The Court appointed attorney Kenneth D. Crowder to represent Petitioner. Id., July 27, 2016 doc. entry.

2. Pretrial Motions

Mr. Crowder filed pretrial motions, including a motion pursuant to Brady v. United States, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972), for disclosure of exculpatory and impeachment material. In particular, Mr. Crowder sought case and court files from Aiken, Lexington, Newberry, and Richland counties in South Carolina regarding dismissed charges filed against Petitioner, including from a trial in Lexington County in which Petitioner's federal co-defendant testified and Petitioner was acquitted. Id., doc. no. 22. The Court held a hearing on the Brady/Giglio motion and denied the motion on the basis the government was not obligated to provide files not in the possession of the prosecution team or

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to provide public information which, with reasonable diligence, could be obtained by the defense on its own. Id., doc. no. 34.

Chief United States District Judge J. Randal Hall then set the matter for a pretrial conference. Id., doc. no. 35. Upon learning Petitioner's co-defendant had reached an agreement to plead guilty, Mr. Crowder moved for a continuance, explaining the guilty plea materially altered the case, and although counsel had been conferring with Petitioner, inspecting the physical evidence, obtaining state court transcripts and researching and seeking witnesses, more time was needed to prepare. Id., doc. no. 39. Judge Hall granted the continuance, and shortly thereafter, Petitioner requested to "dismiss" Mr. Crowder and be appointed new counsel. Id., doc. nos. 44, 45. The undersigned held an ex parte hearing on Petitioner's motions, now made publicly available for these § 2255 proceedings. Id., doc. no. 116 (Ex Parte Tr.); (doc. no. 11).

Petitioner confirmed he had no problems with Mr. Crowder on a personal level, but he was concerned about Mr. Crowder's prior work for the federal government and his law partner's friendship with the prosecutor. Ex Parte Tr. 4-6. He also disagreed with a defense strategy that included agreeing to factual stipulations for trial but not filing a motion to suppress concerning an "insufficient warrant" that was not signed. Id. at 5, 7-8, 10, 21. Petitioner contended the warrant was insufficient under state law, and therefore Mr. Crowder should have challenged it under federal law. Id. at 11. Mr. Crowder explained he and Petitioner had multiple discussions about the warrant, and he had also discussed filing a motion to suppress with defense counsel for the co-defendant who was the driver of the vehicle, who would have likely had the best chance of challenging the search. Id. at 13-14. Although Petitioner disagreed with Mr. Crowder's legal analysis, counsel explained he believed filing the motion to suppress Petitioner requested would be frivolous and run the risk of incurring

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sanctions from the Court. Id. at 14. The Court found no basis for substitution of counsel, recognizing there was no conflict of interest and there had been no breakdown in communication, and informed Petitioner he could (1) hire his own attorney, (2) continue with Mr. Crowder, or (3) represent himself. CR 116-048, doc. no. 52. Petitioner elected to continue with Mr. Crowder. Id.

Petitioner's co-defendant entered his guilty plea on February 13, 2017, and Judge Hall set Petitioner's trial for April 24, 2017. Id., doc. nos. 49-51, 53.

B. Trial

Mr. Crowder laid out the road map for the defense in his opening argument: (1) no one could identify Petitioner as the masked robber; (2) the extensive amount of time that had passed between the 2012 robberies and the 2017 trial undermined the credibility of witness testimony and evidence; and (3) the testimony of Petitioner's co-defendant, Mr. Saylors, offered pursuant to a plea agreement that reduced his sentence, should be viewed with skepticism. CR 116-048, doc. no. 117 ("Trial Tr."), pp. 89-94. Indeed, the trial testimony confirmed the robberies of Speedee Cash and Jeweler's Bench both occurred, as charged in the indictment, on November 7, 2012, but no employee of either business could identify Petitioner as the masked man who pointed a gun and demanded money. Id. at 96-98, 101, 108-11, 121-25, 149, 155, 163, 168, 172. An employee of a neighboring business to Jeweler's Bench saw a man she could not identify jump into the passenger side of a waiting vehicle, and she identified the car - a white Chevrolet HHR - for law enforcement. Id. at 177-80, 189.

Jason Vinson, at the time a sergeant in the Criminal Investigations Unit of the Richmond County Sheriff's Office ("RCSO"), testified at trial that he responded to the first robbery at Speedee Cash, and while there, heard a dispatch concerning the Jeweler's Bench

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robbery and a description of the getaway car. Id. at 204-09. Sgt. Vinson drove to Bobby Jones Expressway and, within two to three minutes, began following a white HHR on the expressway approximately one mile from the second robbery. Id. at 212-13. As the car exited onto I-20, Sgt. Vinson saw the front seat passenger, whom he identified as Petitioner, holding a "large black firearm" and attempting to remove clothing. Id. at 214-18, 228.

Sgt. Vinson activated his lights and sirens and followed the HHR, which was moving erratically at speeds exceeding 100 mph while traveling into South Carolina. Id. at 215-17. Sgt. Vinson followed the HHR into a subdivision in Belvedere and saw Petitioner jump from the moving car and attempt to limp off with nothing in his hands. Id. at 216-20, 227-28. Sgt. Vinson followed the HHR, driven by Mr. Saylors, forced the car off the road and into a parking lot, and arrested Mr. Saylors. Id. at 216-20. Sgt. Vinson waited for the crime scene unit to arrive, then traveled a short distance to a location where an Aiken County investigator had found Petitioner crouching behind a business. Id. at 221, 225-26, 348-49. Sgt. Vinson identified Petitioner as the man he saw jumping out of Mr. Saylors' car, and during his trial testimony, described a short conversation he and Petitioner had about the car chase. Id. at 226-27. Sgt. Vinson then returned to the location of Mr. Saylors' car, which was later towed and secured by Aiken County officers. Id. at 228-29.

On cross-examination, Mr. Crowder challenged Sgt. Vinson's recollection of the car chase and asked about any reports the officer may have reviewed to prepare for trial. Id. at 232-33, 241. Sgt. Vinson admitted the contemporaneous incident report he prepared was not in the file and was no longer available; he had no explanation for the missing report. Id. at 233-34, 237. Rather, the reports Sgt. Vinson reviewed were a blending of the reports of several officers who worked on the case and were not as detailed as the contemporaneous report he

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prepared. Id. at 234-37. Mr. Crowder's cross-examination challenged Sgt. Vinson's recollection of the events on the day of the robberies, given the passage of time and absence of his contemporaneous report. Id. at 229-57. For example, Mr. Crowder queried:

Q: And you're seeing all of this as you're driving 45-50 miles an hour on 520.
A: Yes, sir.
Q: With that much distance.
A: Yes, sir.
Q: Through tinted windows in rush hour four and a half years ago? You recall with clarity the man is taking off the shirt and he's got a gun in his hand?
A: I do because that's how I knew I was behind the right car.

Id. at 243-44.

RCSO Deputy Brandon Beckman served as the chief investigator for the two robberies, and he executed a search warrant for the HHR in Aiken,...

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