U.S. v. Holbrook

• Decision Date: 11 May 2009
• Docket Number: No. 2:01CR10023.,2:01CR10023.
• Citation: 613 F.Supp.2d 745
• Parties: UNITED STATES of America v. Agnes HOLBROOK, Defendant.
• Court: U.S. District Court — Western District of Virginia

613 F.Supp.2d 745

UNITED STATES of America v. Agnes HOLBROOK, Defendant.

No. 2:01CR10023.

United States District Court, W.D. Virginia, Big Stone Gap Division.

May 11, 2009.

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Jennifer R. Bockhorst, Assistant United States Attorney, Abingdon, VA, for the United States.

Agnes Holbrook, Pro Se Defendant.

OPINION AND ORDER

JAMES P. JONES, Chief Judge.

Agnes Holbrook, a federal inmate, brings this pro se Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C.A. § 2255 (West Supp.2008). She challenges her convictions and sentence for possession of a firearm after having been convicted of a misdemeanor crime of domestic violence, in violation of 18 U.S.C.A. § 922(g)(9) (West 2000), and making a false statement in order to obtain a firearm in violation of 18 U.S.C.A. § 922(a)(6) (West 2000). The government has responded and asserts that the defendant's § 2255 motion should be denied as to all claims.¹ Upon review of the record, I find that one of the claims must be set down for an evidentiary hearing and the remainder of the claims denied.

I

A. FACTS SURROUNDING OFFENSES.

In addressing Holbrook's initial appeal, the United States Court of Appeals for the Fourth Circuit summarized the facts in her case as follows:

The charges against Holbrook in this case arise out of the March 24, 2001, shooting death of her husband, Larry. In the months prior to March 2001, Holbrook and Larry had separated and had become embroiled in a bitter divorce. Both had filed motions for protective orders against each other on numerous occasions, Larry had started a relationship with another woman, Stephanie Gibson, and he had told several individuals that he was removing Holbrook as a beneficiary of his government benefits and life insurance policies. On February 19, 2001, Holbrook purchased a .22 caliber pistol from a federally licensed firearms dealer in Pennington Gap, Virginia. In filling out the required screening paperwork, Holbrook indicated that she never had been convicted of a misdemeanor crime of domestic violence, an offense that disqualifies persons from possessing firearms, see 18 U.S.C.A. § 922(g)(9). In fact, she previously had been convicted of assaulting her former husband, Clay Phillips, with a knife. Because Holbrook committed this prior offense when her name was Agnes Bernice Phillips, the record check performed by the dealer did not reveal the conviction, and the dealer sold her the firearm. After test-firing the pistol several days after purchasing it, Holbrook determined that the gun was in need of repairs and had a friend return it to the dealer.

A few weeks later, on March 5, 2001, Holbrook lost her job. Her employer the Department of Social Services for Lee County, Virginia, forced her to resign after discovering that she had lied on her job application about her criminal history. Holbrook believed that her employer had made this discovery as the result of a tip from Larry.

That same day, Holbrook set out to acquire a second firearm. Almost immediately after resigning from work, Holbrook called a friend, Jason Gibson (the estranged husband of Larry Holbrook's paramour, Stephanie Gibson), to inquire about obtaining a firearm. Gibson eventually took Holbrook to the residence of his cousin, Steve Wuderman, who sold Holbrook a .357 magnum hand-gun. Wuderman was not a licensed firearms dealer. Holbrook test-fired the weapon, made payment arrangements, and left the Wuderman residence with Gibson.

On March 24, 2001, Holbrook used the .357 magnum to shoot and kill Larry in a dispute in the bedroom of her home. The precise details of the shooting remain somewhat a mystery because Holbrook was the only witness to the shooting, and, as explained below, her version of events has changed significantly over time. Some facts about the events of that date, however, are undisputed. First, record evidence indicates that on the date of the shooting, Larry had been seen in a light-hearted mood, and he had told someone that he was going to pick up his kids to go play ball. Second, although it is unclear from the evidence why Larry drove to Holbrook's residence on March 24, the evidence does show that Larry had a firearm in his car when he arrived at the Holbrook residence and that he left that firearm in the car when he went inside. Finally, evidence in the record shows that Holbrook did not call the police until shortly after 6:00 pm, although neighbors testified that they heard a single gun shot between 4:00 pm and 4:45 pm.

Initially, Holbrook told investigators that Larry had committed suicide in front of her. The investigators' examination of the forensic evidence, however, led them to question Holbrook's truthfulness. For example, their investigation found that Larry Holbrook had no gun-powder residue on his hands and his fingerprints were not found on the weapon; Larry's body had been moved at least three times after death; and evidence indicated that the murder weapon had been wiped clean.

Later, at her first trial, and only after being confronted with the forensic evidence described above, as well as evidence linking the murder weapon to her, Holbrook admitted that she had shot Larry. According to Holbrook's trial version of events, Holbrook exited the bathroom of her home, and saw Larry standing in the hallway with her .357 magnum, which, Holbrook explained, Larry must have found in its hiding place behind her dresser mirror. Larry then threatened to kill her and a stand-off ensued. The couple ended up in the bedroom with Larry on his knees on the floor and Holbrook on the bed. When Larry laid the pistol on the bed, she grabbed the weapon and shot Larry once in the face in an act of self-defense.

At her second trial, Holbrook recanted much of this version of events, testifying that although she may have killed Larry, she had no recollection of exactly what happened.

United States v. Holbrook, 368 F.3d 415, 416-18 (4th Cir.2004), rev'd, 545 U.S. 1125, 125 S.Ct. 2934, 162 L.Ed.2d 863 (2005).

B. PROCEDURAL HISTORY.

1. The First Trial.

An April 26, 2001, Indictment charged Holbrook with violating 18 U.S.C.A § 922(g)(9) by possessing firearms after having been convicted of a misdemeanor crime of domestic violence ("MCDV") (Count One) and 18 U.S.C.A. § 922(a)(6) by making false statements to a firearms dealer in connection with her purchase of the .22 caliber pistol from the federally licensed firearms dealer (Count Two). Holbrook retained attorney Richard D. Kennedy to represent her. Attorney Kristen D. Dean was later retained as co-counsel.

Kennedy filed several pretrial motions on his client's behalf. On June 15, 2001, I ruled that Holbrook would be allowed to present evidence in support of a justification defense and I would decide, after conclusion of the evidence at trial, whether a jury instruction on justification was warranted.

At trial, Holbrook stipulated that she had been convicted of an MCDV. At the conclusion of the government's evidence, her counsel moved orally for a judgment of acquittal, which I denied. Holbrook testified in her own defense. She admitted possessing both firearms, as alleged in the Indictment. She also stated that she "had to lie" and "illegally possess a second gun" to protect herself and her children from her estranged husband. (Trial Tr. vol. 1, 21, Aug. 21, 2001.) Indeed, she admitted to all of the elements of the crimes charged. Based on the government's evidence and Holbrook's testimony, I declined to instruct the jury on a justification defense.

2. Guilty Plea to Count One.

On August 23, 2001, before the conclusion of the trial, but after I announced that I would not permit the jury to consider a justification defense, Holbrook decided to plead guilty to Count One, pursuant to a signed written Plea Agreement. Under the terms of the agreement, the government promised to dismiss Count Two; stipulated that Holbrook should be sentenced under the sentencing guideline applicable to second degree murder; and agreed to recommend full credit for acceptance of responsibility in recognition of the fact that Holbrook had gone to trial in order to preserve a defense based on justification. The Plea Agreement preserved Holbrook's right to appeal her sentence, but expressly waived her right to collaterally attack her conviction and sentence under § 2255.

A principal advantage to Holbrook from the Plea Agreement was that by agreeing to dismiss Count Two, the government limited her possible sentence to ten years, the statutory maximum for Court One. See 18 U.S.C.A. § 924(a)(2) (West 2000).

Before accepting Holbrook's guilty plea, I conducted the extensive colloquy required by Federal Rule of Criminal Procedure 11. She had already testified that she was a college graduate. Asked if she had ever been treated for mental illness, she testified that she had been treated for depression in 1996 and again in 2001. She stated that in 2001, after her husband's death, she had received four days of inpatient treatment for depression. She was prescribed medication for this condition, but after her discharge she did not have the money to go back to the doctor and did not take any medication for her depression. She denied ever being treated for substance abuse problems. Asked if she had "taken any drugs, medicine or pills within the last 4 hours," she said, "Yes." (Plea Tr. 4, Aug. 23, 2001.)² Questioned further, however, she stated that she had a prescription medication to help her sleep and that she had taken it two nights before, but had taken no medication at all on the night before the guilty plea. Her attorneys affirmed that they had no doubt as to Holbrook's competency to enter a guilty plea. She agreed that she had had an adequate opportunity to discuss with her attorneys the charges against her. Holbrook identified her Plea Agreement, with her initials on each page...