United States v. Donald
| Decision Date | 30 November 2015 |
| Docket Number | Criminal Action No. 2: 12-026-DCR,Civil Action No. 2: 15-7395-DCR |
| Parties | UNITED STATES OF AMERICA, Plaintiff/Respondent, v. PATRICK ANDREW DONALD, Defendant/Movant. |
| Court | U.S. District Court — Eastern District of Kentucky |
This case is pending for consideration of Defendant Patrick Andrew Donald's original and amended motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. [Record Nos. 78, 81] Pursuant to 28 U.S.C. § 636(b)(1)(B), the Court referred the motions to United States Magistrate Judge Hanly A. Ingram for issuance of a report and recommendation. On October 21, 2015, Magistrate Judge Ingram issued his report, recommending that Donald's motions be denied. [Record No. 92] Donald has now filed objections to Magistrate Judge Ingram's Recommended Disposition. [Record No. 93]
After conducting a de novo review of the portions of the report to which Donald objects, the Court will adopt Magistrate Judge Ingram's Recommended Disposition, deny Donald's motions, and dismiss this matter.1
On September 24, 2012, Donald pled guilty to unarmed bank robbery in violation of 18 U.S.C. § 2113(a). [Record Nos. 41 and 62] In the plea agreement, Donald admitted that he and another individual robbed Security Trust Bank in Maysville, Kentucky, on May 16, 2012.2 [Record No. 58, pp. 1-2]
Donald was represented by Frank Murgo, an appointed attorney, at the sentencing hearing held on February 25, 2013. [Record No. 75, p. 2] The primary issue at sentencing was whether "a dangerous weapon was otherwise used," warranting a four-level enhancement under the United States Sentencing Guidelines, § 2B3.1(b)(2)(D).3 During the hearing, the United States authenticated and introduced a tape of the bank's security footage depicting the robbery. [Record No. 75, p. 6-8] However, the United States did not play the video. Instead, the United States called Allison McGuire, Vanessa Stahl, and Sherry Rice, the tellers who were victims and witnessed the robbery. All of the tellers testified that,during the robbery, Donald's accomplice pounded an object on a counter that produced a heavy, metallic sound. They believed the object was a gun. Two tellers testified that the accomplice pounded the counter with his right hand while his hand and the object remained in the pocket of his sweater. Stahl admitted that she could not clearly see the accomplice's hands from where she was standing. Id. at 37. However, Rice testified that she saw an object coming out of his sweater pocket shaped like a cylinder. Id. at 49. All three testified that they perceived the pounding as a threat.
On cross-examination, each witness denied that they were verbally threatened by the robbers. During arguments to the Court, attorney Murgo noted that the government had failed to play the video of the crime. Id. at 61. Murgo urged the Court to view the film and then gave a detailed explanation of the robbery. Id. According to Murgo, the video did not contain footage of the accomplice banging an object on the counter as testified by the government's witnesses. And Murgo again noted that neither robber made any direct threats during the course of the robbery. Id. at 63, 71.
The Court determined that viewing the full video was unnecessary. Based on the testimony provided during the hearing, the Court concluded that Donald's accomplice "otherwise used a dangerous weapon," resulting in application of a four-level enhancement to the defendant's base offense level. Id. at 74. Thereafter, Donald was sentenced to 96-months imprisonment, followed by three years of supervised release. [Record No. 62]
Donald appealed the enhancement issue to the Sixth Circuit. [Record No. 63] However, on August 1, 2014, the Sixth Circuit affirmed this Court's decision, holding that "[t]he facts of this case amply support the district court's determination that the weapon was 'otherwise used' in the commission of the robbery." [Record No. 76, p. 5] On March 23, 2015, Donald filed his initial motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. [Record No. 78] Pursuant to Magistrate Judge Ingram's order, Donald filed a signed version of the motion on May 15, 2015. [Record No. 81] Donald contends that he received ineffective assistance of counsel because his attorney: (1) failed to object to the Court's decision not to view the video, (2) failed to object to the tellers' presentation of allegedly false testimony, and (3) failed to adequately cross-examine the three tellers. [Record Nos. 81 and 81-1]. Donald also argues that the government violated his due process rights by presenting false testimony to the Court. Id. Finally, the defendant requests an evidentiary hearing.4 [Record No. 81-1, pp. 18-19]
After reviewing these arguments and the record of this proceeding, Magistrate Judge Ingram correctly concluded that Murgo's representation of Donald was not deficient. Likewise, the magistrate judge properly determined that the government violate Donald's due process rights by allegedly presenting false testimony.
Under 28 U.S.C. § 2255, a federal prisoner may bring a habeas action to argue that the imposition of his sentence violated the United States Constitution or federal law, the court lacked jurisdiction, his sentence exceeded the maximum penalty authorized by law, or the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). To prevail on aclaim of constitutional error, a defendant "must establish an error of constitutional magnitude which had a substantial and injurious effect or impact on the proceedings." Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999).
Donald argues that the government engaged in misconduct when it failed to correct allegedly false testimony of the tellers, thereby violating his constitutional due process rights. [Record No. 81-1, p. 12] In Napue v. Illinois, 360 U.S. 264, 269 (1959), the Supreme Court held that a defendant's due process rights are violated when the government obtains a conviction using evidence it knows to be false. "The same result obtains when the [government], although not soliciting false evidence, allows it to go uncorrected when it appears." Id.
Because Donald did not raise this issue during his direct appeal, Magistrate Judge Ingram properly concluded that the claim is procedurally defaulted. [Record No. 92, p. 7] In Harbison v. Bell, 408 F.3d 823, 830 (6th Cir. 2005), the defendant made a similar argument in a habeas petition that the government violated his due process rights by withholding material exculpatory evidence. The Sixth Circuit held that, because Harbison failed to raise the issue on direct appeal, the claim was procedurally defaulted unless he demonstrated "either 'cause' and actual 'prejudice,' or that he is 'actually innocent.'" Id. (quoting Bousley v. United States, 523 U.S. 614, 622 (1998)).
Donald has not demonstrated prejudice because he has not proven that the tellers gave false testimony or that the government knew their testimony was false. Donald claims in his objections that "the tellers provided testimony 'blatantly contradictory' to videotape evidence." [Record No. 93, p. 2] However, after reviewing all of the video footage from therobbery, the Court disagrees with Donald's claim. The security footage contains video of the relevant time frame from eight different camera angles, both inside and outside of the bank. [Record No. 61, Exhibit 1] Donald and his accomplice only appear in two of eight angles, aside from two showing them entering and exiting the bank. The accomplice's hands are in his pockets for most of the robbery as the tellers testified. Donald is correct that the security footage does not clearly show his accomplice pounding on the counter. However, neither angle shows the entire counter, nor is there any sound. Additionally, the picture is black and white and is not particularly clear. Donald's accomplice could have pounded on the counter without the video capturing the motion. In short, the video does not contradict the tellers' testimony and Donald has not identified any relevant inconsistent statements. All of the tellers gave similar accounts of the robbery in general as well as the specific actions of Donald's accomplice.
Magistrate Judge Ingram also correctly notes that Donald has also not made a claim of actual innocence. [Record No. 92, p. 8] Donald asserts in his objections that he has made such a claim. [Record No. 93, pp. 2-3] However, Donald misunderstands the nature of this claim. "To establish actual innocence, [a habeas] petitioner must demonstrate that, 'in light of all the evidence,' 'it is more likely than not that no reasonable juror would have convicted him.'" Bousley, 523 U.S. at 623 (quoting Schlup v. Delo, 513 U.S. 298, 327-28 (1995)). Donald is not claiming that he did not commit the robbery. Instead, he claims that he is actually innocent of otherwise using a dangerous weapon. [Record No. 93, p. 7] The fact that Donald's accomplice used a dangerous weapon was the basis for the four-level enhancement to the defendant's base offense level. Simply put, Donald was neither convicted nor was his sentence enhanced based on his person possession or use of adangerous weapon. Because Donald has not asserted an actual and viable claim of actual innocence, he cannot avoid procedural default regarding this issue.
Donald also claims that his appointed attorney, Frank Murgo, provided ineffective assistance, thereby violating his constitutional right to counsel. [Record No. 81] To prevail on this claim, Donald must prove that his counsel's performance was deficient and that the deficient performance resulted in prejudice. Strickland v. Washington, 466 U.S. 668 (1984); Fautenberry v. Mitchell, 515 F.3d 614, 623 (6th Cir. 2008). "The proper standard for attorney performance is that of reasonably effective assistance, as measured by prevailing...
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