U.S. v. Hilliard, 04-1033.

• Decision Date: 28 December 2004
• Docket Number: No. 04-1033.,04-1033.
• Citation: 392 F.3d 981
• Parties: UNITED STATES of America, Appellant, v. Corey HILLIARD, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

392 F.3d 981

UNITED STATES of America, Appellant, v. Corey HILLIARD, Appellee.

No. 04-1033.

United States Court of Appeals, Eighth Circuit.

Submitted: November 19, 2004.

Filed: December 28, 2004.

Daniel C. Tvedt, argued, Asst. U.S. Atty., Cedar Rapids, IA, for appellant.

John Broz, argued, Cedar Rapids, IA, for appellee.

Before WOLLMAN and HEANEY, Circuit Judges, and HOLMES¹, District Judge.

HEANEY, Circuit Judge.

Following his conviction and two direct appeals, Corey Hilliard was sentenced to four months in prison, four months in a community care facility, and three years of supervised release for aiding and abetting the illegal transfer of firearms, in violation of 18 U.S.C. §§ 2 and 922(a)(5). He filed a motion pursuant to 28 U.S.C. § 2255 seeking to have his conviction vacated. The district court² granted the motion, holding that Hilliard's trial counsel was ineffective for not timely filing a motion for a new trial. The government appeals, arguing that Hilliard failed to prove he was prejudiced by his lawyer's failure to file a new trial motion. We affirm.

BACKGROUND

In 1994 and 1995, Eddie James and Larry Baskerville were involved in the illegal distribution of firearms. Baskerville had a permit to buy firearms, and purchased a substantial number of them from gun shows and pawn shops in Iowa. James and Baskerville then resold the guns, without a license to do so, to people in the Chicago area. See United States v. James, 172 F.3d 588 (8th Cir.1999) (affirming James's conviction for illegally transferring firearms).

The government's case against Hilliard alleged that he was essentially the "steerer," or a person that helped James and Baskerville find buyers for their guns. On about September 17, 1994, Baskerville purchased firearms, and he and James then left for Chicago to sell them. James suggested that they stop by and see Hilliard, who lived in Chicago. Baskerville and Hilliard did not know one another, but Hilliard was close friends with James. Once they arrived at Hilliard's apartment, Baskerville asked to use Hilliard's phone to call some potential customers. Hilliard mentioned that an acquaintance of his, Walter Meeks, might want to buy a gun. Meeks had previously mentioned to Hilliard that he wanted a gun that was "legal" for his own protection. (Trial Tr. at 228.)

According to the testimony of James, Hilliard was under the impression that Baskerville was a licensed firearms dealer because Baskerville kept a receipt book, the guns were all new and in boxes, and, importantly, because James himself affirmed that Baskerville was a legitimate dealer. Hilliard's testimony reflected this understanding. In response to a question about Hilliard's introduction to Baskerville, Hilliard responded:

Well, the first time I met Larry [Baskerville], he was with Ed [James], and they were in Chicago, and it was just a regular conversation between them as far as "What's happening?" What you doing? What's up? He tried to introduce me to Larry, which was this guy who said that he had a license to sell guns, and he was in Chicago selling guns, whatever, you know—

(Id. at 225-26 (emphasis added).) Hilliard testified that before September 17, he had never met Baskerville, had no prior dealings in gun sales, and did not own a gun.

Baskerville followed up on Hilliard's comment that Meeks may want to buy a gun. Hilliard drove with Baskerville and James over to Meeks's house. Hilliard introduced Meeks to Baskerville, and told Meeks that Baskerville could sell him the type of pistol he wanted. Baskerville then sold Meeks firearms. Hilliard did not share in any of the proceeds or derive any other benefit from the deal. According to Hilliard, Baskerville and James returned to Chicago on September 18. They sought to return to Meeks's house, but did not remember the way. Hilliard drove with Baskerville and James in order to assist them in finding Meeks's house. Once there, Hilliard and James played pool while Baskerville and Meeks conducted their business.

Baskerville's testimony diverged at crucial points from the testimony of Hilliard and James. He testified that on September 17 and 18, 1994, he and James came to Chicago and sold guns directly to Hilliard. Hilliard and James testified that Hilliard did not buy any guns from Baskerville and that no guns ever entered Hilliard's residence. James further testified that there was never any agreement for Hilliard to sell any guns.

Even though these events took place in the fall of 1994, Hilliard was not charged until 1998. He was indicted on four counts of aiding and abetting the illegal transfer of firearms, in violation of 18 U.S.C. §§ 2 and 922(a)(5), and one count of conspiring to illegally transfer firearms, in violation of 18 U.S.C. § 922(a)(5). The first four counts alleged that Hilliard helped Baskerville and James sell guns through separate transactions, occurring on different days, and involving different guns;³ the conspiracy count alleged that Hilliard conspired to help Baskerville and James sell guns from a period starting in September of 1994 and ending around March of 1995.

At trial, Baskerville and James were the principal government witnesses, and Hilliard testified in his own defense. Neither Baskerville nor James could remember specifics well because of the lapse of time between the alleged acts and the trial, and did little to connect Hilliard to any of the gun sales. The government tried to establish Hilliard's involvement by introducing phone records showing that Baskerville and James often called Hilliard's pager. Hilliard and Baskerville both testified, however, that Hilliard never returned Baskerville's pages; Hilliard and James testified that Hilliard sporadically returned James's pages.

During the trial, Hilliard's counsel moved for a judgment of acquittal, which the district court reserved ruling on until the jury returned a verdict. The jury found Hilliard guilty of one count of aiding and abetting the illegal transfer of firearms to Meeks on or about September 18, 1994; he was acquitted of the other four counts, including conspiracy. The district court "remind[ed] defense counsel to check the rules for the requirements for filing post-trial motions and the time frames." (Jury Verdict Tr. at 3.) Hilliard's lawyer did not file a motion for a new trial until forty-one days after the verdict, although the Federal Rules of Criminal Procedure require the motion to be filed within seven days of the verdict. Fed.R.Crim.P. 33(b)(2). The district court dismissed the motion as untimely. At the district court's behest, Hilliard's counsel then moved to withdraw so that another attorney could determine whether to file a motion under § 2255 related to the failure to file timely post-trial motions. In considering the motion to withdraw, the district court stated "I indicated at the — when I took the jury verdict that I had grave reservations about the jury verdict, and I instructed counsel to file post-trial motions." (Tr. of Apr. 21, 2000 Hr'g, at 2.) The court spoke to Hilliard directly about the propriety of the motion to withdraw:

Mr. Hilliard, I want to make sure you understand what's happening. Your lawyer is moving to withdraw from the case. My intent is to appoint a new lawyer to represent you, [and] continue the sentencing. The new lawyer could then determine whether or not there are grounds to raise ina — what we call a 2255 proceeding. Here's what I don't want to happen, I don't want to go ahead and sentence you and then get into the issue of whether I have to postpone imposition of the sentence pending new counsel representing you and taking a look at whether it was error for [Hilliard's attorney] not to have filed a timely post-trial motion. And that's why I think new counsel should be appointed in the case, to take a look at that issue to make sure that your interests are fully protected. I'm not saying I'm going to grant relief. I'm just saying that my intent was to be able to look at the issues with a post-trial motion that was timely filed and a post-trial motion wasn't timely filed in this case, and therefore, I ruled that I lacked subject matter jurisdiction to review the matter based on an untimely filed post-trial motion. So it's my intent to try and make sure your interests are fully protected by appointing new counsel to take a look at the issues and we'll see where we go from there.

(Id. at 4-5.) Hilliard agreed it was in his best interest to have his trial attorney replaced by new counsel, and the district court accordingly granted the motion to withdraw.

On September 28, 2000, Hilliard was then given a three-year probationary sentence that included a six-month term of home confinement. The government successfully appealed the sentence, arguing the district court erred by imposing Hilliard a four-level role reduction. United States v. Hilliard, 16 Fed. Appx. 533 (8th Cir.2001) (unpublished per curiam). On remand, the district court resentenced Hilliard without the role reduction to fifteen months in prison. Hilliard then successfully appealed, and we remanded for the district court to consider whether some role reduction less than four levels was appropriate. United States v. Hilliard, No. 02-1034 (8th Cir. May 9, 2002) (unpublished interim order). The district court found a three-level reduction was appropriate, and arrived at a sentence for Hilliard of four months in prison, four months in a community corrections center, and three years of supervised release. Our court summarily affirmed pursuant to Eighth Circuit Rule 47A. United States v. Hilliard, No. 02-1034 (8th Cir. Apr. 1, 2003).

On January 6, 2003, Hilliard filed the instant § 2255 petition, arguing, inter alia, that his trial attorney was ineffective for not filing a timely motion for a new trial.⁴ The district court found that trial counsel's failure to file a timely motion for a new trial on behalf of Hilliard, simply because he mistook the filing...