United States v. Deiter

• Decision Date: 24 May 2018
• Docket Number: No. 17-2159,17-2159
• Citation: 890 F.3d 1203
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Walter Lee DEITER, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

890 F.3d 1203

UNITED STATES of America, Plaintiff–Appellee,

v.Walter Lee DEITER, Defendant–Appellant.

No. 17-2159

United States Court of Appeals, Tenth Circuit.

FILED May 24, 2018

Submitted on the briefs:^* Leah M. Stevens–Block, Sheehan & Sheehan, P.A., Albuquerque, New Mexico, for Defendant–Appellant.

James D. Tierney, Acting United States Attorney, and James R.W. Braun, Assistant United States Attorney, Office of the United States Attorney, Albuquerque, New Mexico, for Plaintiff–Appellee.

Before PHILLIPS, McKAY, and O'BRIEN, Circuit Judges.

O'BRIEN, Circuit Judge.

This case raises a run-of-the-mill ineffective assistance of counsel claim. It also presents an interesting Johnson II claim—whether aiding and abetting ( 18 U.S.C. § 2 ) federal bank robbery ( 18 U.S.C. § 2113(a) ) qualifies as a "violent felony" under the elements clause of the Armed Career Criminal Act (ACCA). See Johnson v. United States (Johnson II) , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015).

I. Background

On November 12, 2009, at 12:38 a.m., police officers from the Albuquerque, New Mexico, Police Department were dispatched to an apartment complex to investigate a 911 domestic violence call. Upon their arrival, they saw Walter Lee Deiter and his wife, D'Leah Harris, in the middle of the street. When Deiter and Harris saw the officers, they separated, each walking in the opposite direction. Deiter proceeded toward the apartment complex; Officer Patricia Whelan followed him. When Deiter went behind a staircase, Whelan temporarily lost sight of him; he emerged a few minutes later on the second-story open breezeway.

Whelan told Deiter to come down and talk to her. He refused and appeared "nervous[,] ... looking kind of up and down the breezeway of the second floor." (R. Vol. 2 at 199.) When she again told him to come down, he complied. But before doing so, he made a "squatting, bending motion" which led Whelan to believe he had "dropped" something illegal. (Id . at 201, 206.) She could not see what was dropped because a three- to four-foot tall wall obstructed her view.

Once Deiter came down the stairs, Whelan asked Officer Sammy Marquez to determine what had been dropped. As Marquez proceeded up the steps to the second-story breezeway, Deiter took off running. Whelan and Officer Glenn St. Ong chased him. St. Ong brought him to the ground with his taser. Marquez arrived and held his legs down while Whelan handcuffed him. Once he was secured, Marquez went to where Deiter was seen on the second-story breezeway; on the floor he found a holster containing a loaded .22 caliber revolver. Forensic testing revealed Deiter's DNA on both the holster and firearm. The firearm also contained a small amount of DNA from an unidentified source.

A jury convicted Deiter of being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1). That offense normally carries with it a maximum sentence of 10 years imprisonment. See 18 U.S.C. § 924(a)(2). The district judge, however, concluded the ACCA applied because Deiter had two prior convictions for a "serious drug offense" and one prior conviction for a "violent felony." See 18 U.S.C. § 924(e). Relevant here, she concluded his 1988 conviction for aiding and abetting bank robbery in violation of 18 U.S.C. §§ 2113(a) and 2 constituted a "violent felony." This conclusion exposed him to a mandatory minimum 15–year sentence (180 months), see 18 U.S.C. § 924(e)(1), and increased his guideline range from 92–115 months to 210–262 months. The judge sentenced him to 180 months. We affirmed on direct appeal. See United States v. Deiter , 576 Fed.Appx. 814 (10th Cir. 2014) (unpublished).

At the time of Deiter's sentencing in January 2014, an offense was a "violent felony" under the ACCA if it (1) "has as an element the use, attempted use, or threatened use of physical force against the person of another" (the elements clause), (2) "is burglary, arson, or extortion, [or] involves use of explosives" (the enumerated offense clause), or (3) "otherwise involves conduct that presents a serious potential risk of physical injury to another" (the residual clause). 18 U.S.C. § 924(e)(2)(B). On June 26, 2015, the United States Supreme Court decided the residual clause is unconstitutionally vague. Johnson II , 135 S.Ct. at 2557, 2563. It left intact, however, the elements and enumerated offense clauses. Id . at 2563. On April 18, 2016, it made Johnson II 's holding retroactive to cases on collateral review. Welch v. United States , ––– U.S. ––––, 136 S.Ct. 1257, 1265, 194 L.Ed.2d 387 (2016).

Relying on Johnson II , Deiter filed a 28 U.S.C. § 2255 motion, claiming his prior bank robbery conviction could not be deemed a "violent felony" supporting the ACCA enhancement. He also argued trial counsel was ineffective for (1) failing to challenge his ACCA sentence and (2) reading a transcript of Whelan's belt tape recorder to the jury which contained an incriminating statement from a witness.

The judge denied the motion. She decided any error in counsel's decision to read the transcript to the jury was not prejudicial in light of the overwhelming evidence against him. She also concluded Deiter's prior bank robbery conviction qualified as a "violent felony" under the elements clause of the ACCA.¹ She did, however, grant a certificate of appealability (COA).

II. Discussion

A. Ineffective Assistance of Counsel

After Deiter was arrested, Whelan canvassed the apartment complex for witnesses. While doing so, she activated the tape recorder on her belt. The recorder captured the following exchange with an unidentified resident at the apartment complex:

WITNESS: I was sitting on my bed watching a movie and I didn't open the door or anything. I looked in the—I just heard him yelling and I looked out the peep hole and he was yelling at her (inaudible) and all this other stuff and he had a gun at this point . I didn't go outside or anything. I didn't want to get involved.

OFFICER [WHELAN]: Yeah. All you heard was yelling then?

WITNESS: Yeah, really loud.

OFFICER: Did you hear any specific words of what was being said?

WITNESS: He said something about, you know, (inaudible) her up and making sure she was okay or something like that. I couldn't really understand what he said because they were upstairs.

OFFICER: Yeah.

WITNESS: So I don't really know anything expect they were yelling and I was laying here trying to go to sleep and they woke me up.

OFFICER: Okay. Did anybody get hit, anything like that?

WITNESS: No. I just saw him. He went upstairs and then (inaudible).

OFFICER: Okay. Crazy night in your apartment building.

(D. Ct. Doc. 143–4 at 9–10 (emphasis added).)

Prior to trial, Deiter moved to exclude the transcript of this exchange, arguing the witness' statements were hearsay and he could not cross-examine the witness because her identity was unknown. The government did not oppose the motion. The judge agreed with the parties but decided the transcript could be used, if necessary, for impeachment purposes.

During cross-examination, defense counsel asked Whelan whether she recalled speaking to a witness who had observed something that night. When Whelan responded no, counsel sought to refresh her recollection with the belt tape transcript. After counsel clarified that he did not seek to admit the transcript into evidence, the judge permitted him to read the transcript to the jury. Counsel did so and then inquired whether Whelan had asked the witness for a name or address. Whelan admitted the transcript did not reveal such a request.

Deiter says defense counsel's decision to read the transcript to the jury amounted to ineffective assistance of counsel.² According to him, there was no need to read it to refresh Whelan's memory or to attack the quality of her investigation; defense counsel could have refreshed her memory by providing her with a copy of the transcript. Counsel's poor choice, Deiter claims, was not only unnecessary, but prejudicial, because the transcript was the only evidence from any witness that positively placed a man, presumably Deiter, in possession of a firearm at the scene. Had counsel not read the transcript to the jury, it would never have been privy to the information contained therein as both parties had agreed not to rely on the transcript.

Ineffective assistance of counsel requires two showings: (1) "counsel's performance was deficient," and (2) "the deficient performance prejudiced the defense." Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish deficient performance, a defendant must show "counsel's representation fell below an objective standard of reasonableness." Id . at 688, 104 S.Ct. 2052. We assess the reasonableness of counsel's performance in light of "the facts of the particular case, viewed as of the time of counsel's conduct." Id . at 690, 104 S.Ct. 2052. Our review is "highly deferential," because "counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id . at 689–90, 104 S.Ct. 2052.

To establish prejudice, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id . at 694, 104 S.Ct. 2052. The focus of the inquiry is "whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair." Lockhart v. Fretwell , 506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993) ; see also Strickland , 466 U.S. at 687, 104 S.Ct. 2052 (the prejudice prong "requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable").

The judge did not reach the reasonableness of defense counsel's actions because Deiter suffered no prejudice:

While Mr.

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