Singer v. U.S.
| Decision Date | 24 October 1994 |
| Docket Number | No. 94-3039,94-3039 |
| Citation | 38 F.3d 1216 |
| Parties | NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Timothy SINGER, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Before: MILBURN and DAUGHTREY, Circuit Judges; and WEIS, Senior Circuit Judge. *
Petitioner Timothy L. Singer appeals the district court's denial of his motion to vacate sentence filed pursuant to 28 U.S.C. Sec. 2255. On appeal, the issues are (1) whether the district court erred in concluding that petitioner's conviction under 18 U.S.C. Sec. 844(h)(1) was proper; (2) whether the district court erred in concluding that petitioner's conviction under 18 U.S.C. Sec. 241, Count 1 of the indictment, was not unlawful because his conduct, "cross burning," was not constitutionally protected under the First Amendment; and (3) whether the jury instructions given at petitioner's trial were so defective as to deny petitioner a fundamentally fair trial. For the reasons that follow, we affirm.
On August 12, 1993, at approximately 9:30 p.m., two black males were walking down Ute Avenue in Massillon, Ohio, playing loud music on a "boom box" radio. Petitioner was backing his car out of his carport and on to Ute Avenue. Petitioner, his girlfriend, Carol Johnson, and at least one other person were occupants in petitioner's car. Someone in petitioner's car then yelled a racially derogatory remark to the two black males; namely, "will you damn niggers turn that mother f****** music down." J.A. 50. A fight ensued between the two black males and the white passengers in the automobile, which resulted in one of the black males striking petitioner in the mouth with a brick.
At some point during the altercation, one of petitioner's neighbors telephoned the police. When the police arrived at the scene, the two black youths fled. Petitioner was enraged and yelled racial epithets such as "you mother f****** niggers come out now." J.A. 52. The police left the scene after unsuccessfully attempting to calm petitioner down.
Approximately an hour later, petitioner walked over to his neighbors who were sitting on their front porch. He stated that he had a half-stick of dynamite and a handgun in his pocket and was going to "blow up all those mother f****** niggers." J.A. 52, 68-69.
Shortly thereafter, Todd J. Gresser, petitioner's co-defendant, arrived at petitioner's house. Petitioner and Gresser constructed a cross, nine feet tall, and placed it near a fence that separated the houses of two black families who lived across the street from petitioner. Petitioner and Gresser then ran across the street yelling additional racially derogatory remarks and threats such as J.A. 71. As petitioner and Gresser entered petitioner's front yard, there was a loud explosion which rattled windows in the neighborhood, and the cross was engulfed in flames.
The following morning, words such as "die nigger KKK," "KKK rules," "KKK" and "f*** you nigger," J.A. 61, 73, 74, were spray painted on the homes of black families in the immediate vicinity of petitioner's home. Petitioner and Gresser had been heard shouting these same threats both before and after the cross burning.
On September 21, 1989, a federal grand jury returned a three count indictment against petitioner and his co-defendant, Todd J. Gresser. In Count 1 of the indictment, petitioner was charged with conspiring to injure, oppress, threaten, and intimidate black citizens in the free exercise of their right to hold and occupy their dwellings without injury, intimidation, or interference because of their race or color in violation of 18 U.S.C. Sec. 241. Count 2 charged petitioner with employing force or threat of force to willfully injure, intimidate, and interfere with black citizens in the occupation of their dwellings because of their race or color in violation of 42 U.S.C. Sec. 3631(a). Count 3 charged petitioner with willfully using fire to commit the felony of conspiring to violate the civil rights of black citizens in violation of 18 U.S.C. Secs. 2 and 844(h)(1).
On January 22, 1990, a jury found petitioner guilty on all counts. On April 30, 1990, petitioner was sentenced to 27 months incarceration and three years supervised release.
Subsequently, on May 4, 1990, petitioner filed a timely direct appeal to this court, challenging the sufficiency of the evidence to support the convictions and the calculation of the offense level relied on to determine his sentence. On May 28, 1991, this court affirmed petitioner's convictions; however, we vacated the sentence and remanded the case for recalculation of petitioner's offense level and resentencing. See United States v. Gresser, 935 F.2d 96 (6th Cir.), cert. denied, Singer v. United States, 112 S.Ct. 239 (1991). On remand, petitioner's sentence was increased to 37 months incarceration.
On February 11, 1993, petitioner filed a motion to vacate his sentence under 28 U.S.C. Sec. 2255 asserting: (1) that the Supreme Court's decision in R.A.V. v. City of St. Paul, Minn., 112 S.Ct. 2538 (1992), mandated reversal of his conviction under 18 U.S.C. Sec. 241, because the Court in R.A.V. held that conduct such as cross burning was expressive conduct protected under the First Amendment; and (2) that his conviction under 18 U.S.C. Sec. 844(h)(1) could not be sustained because he did not commit arson. The district court denied petitioner's motion to vacate his sentence in a memorandum and order issued on December 28, 1993. This timely appeal followed.
Petitioner argues that the district court erred in finding that his conviction under 18 U.S.C. Sec. 844(h)(1) was proper. Petitioner asserts, relying on the decision of the Eighth Circuit in United States v. Lee, 935 F.2d 952 (8th Cir.1991), reh'g en banc granted and judgment rev'd in part, 6 F.3d 1297 (8th Cir.1993), cert. denied, 114 S.Ct. 1550 (1994), that 18 U.S.C. Sec. 844(h)(1) was enacted to facilitate the prosecution of crimes involving arson and that his act of cross burning was not the commission of arson.
We conclude that since this issue was decided in petitioner's direct appeal, he may not use a motion to vacate sentence under 28 U.S.C. Sec. 2255 to relitigate this issue on collateral attack. On petitioner's direct appeal, we stated in United States v. Gresser, 935 F.2d 96 (6th Cir.), cert. denied, 112 S.Ct. 239 (1991):
With regard to the third count [18 U.S.C. Sec. 844(h)(1) ] charging the use of fire to commit a felony,
* * *
The contention that [petitioner's] rage was directed only at one black youth rather than blacks in general is unpersuasive and belied by his actions ... A reasonable juror could conclude that [petitioner] instigated the cross-burning ... Moreover, construing the evidence in a light most favorable to the government, [petitioner] chose an age old symbol of racism, and ... waged his racist battle ... adjacent to the homes of his black neighbors.
* * *
These facts are sufficient to support a reasonable juror in the inference that [petitioner and his co-defendant] had a tacit conspiratorial objective to intimidate the black persons living in the vicinity of [petitioner's] home ... It matters little who actually performed the act of igniting the cross and detonating the explosives.... Thus, we hold that there was sufficient evidence to support the convictions.
Absent exceptional circumstances, such as an intervening change in the law, it is well-settled that a motion filed under Sec. 2255 may not be used to relitigate issues on collateral attack which were raised and considered on direct appeal. United States v. Prichard, 895 F.2d 789, 790-91 (10th Cir.1989) (per curiam); Barton v. United States, 791 U.S. 265, 267 (2d Cir.1986) (per curiam); Stephens v. United States, 496 F.2d 527, 528 (6th Cir.1974) (per curiam), cert. denied, 423 U.S. 861 (1975). Therefore, since the issue of the sufficiency of the evidence to support petitioner's conviction under 18 U.S.C. Sec. 844(h)(1) was considered and decided adversely to him on direct appeal, we conclude that petitioner's attempt to relitigate this issue on collateral attack is barred. 1
Furthermore, in discussing the propriety of defendant's sentence on direct appeal, we also addressed the arson issue. In challenging the sentence imposed by the district court for his violation of 18 U.S.C. Sec. 844(h)(1), "Singer argue[d] that [U.S.S.G.] section 2K1.4 d[id] not apply because his crime did not involve arson under any accepted definition of that term." Id. at 102. We rejected Singer's argument, however, relying on the reasoning of the Eleventh Circuit in United States v. Worthy, 915 F.2d 1514 (11th Cir.1990). Id. at 102-03.
Thus, even if we were to conclude that this issue had not been addressed as part of defendant's challenge to his conviction on direct appeal, we would find that this issue has been waived. See, e.g., Ratliff v. United States, 999 F.2d 1023, 1025 (6th Cir.1993) (). In this case, defendant raised the arson issue with great specificity as part of the challenge to his sentence. He did not, however, address the issue with such specificity as part of the challenge to his conviction under 18 U.S.C. Sec. 844 on direct appeal. Therefore, to the extent that defendant is attempting to raise this issue with a greater degree of specificity in challenging his conviction under 18 U.S.C. Sec. 844 in this Sec. 2255 motion, he has waived this issue.
Petitioner argues that his...
To continue reading
Request your trial