United States v. Morrow, Criminal No. 04cr355-01 (CKK)
| Decision Date | 30 April 2015 |
| Docket Number | Criminal No. 04cr355-01 (CKK) |
| Parties | UNITED STATES OF AMERICA, v. MIQUEL MORROW, Defendant. |
| Court | United States District Courts. United States District Court (Columbia) |
On July 15, 2005, Miquel Morrow ("Morrow") was convicted by a jury in this Court of: conspiracy to conduct and participate, directly and indirectly, in the affairs of an enterprise, through a pattern of racketeering activity ("Count I"), including the armed robbery of the Bank of America located at 5911 Blair Road, N.W., Washington, D.C., on or about January 22, 2004 ("Racketeering Act 1"), the armed robbery of the Riggs Bank located at 7601 Georgia Avenue, N.W., Washington, D.C., on or about March 5, 2004 ("Racketeering Act 2"), the armed robbery of the Industrial Bank located at 2012 Rhode Island Avenue, N.E., Washington, D.C., on or about June 12, 2004 ("Racketeering Act 3"), the armed robbery of the SunTrust Bank located at 5000 Connecticut Avenue, N.W., Washington, D.C., on or about June 29, 2004 ("Racketeering Act 4"), the armed robbery of the Chevy Chase Bank located at 3601 St. Barnabas Road, Silver Hill, Maryland, on or about May 10, 2004 ("Racketeering Act 5"), the armed robbery of the Chevy Chase Bank located at 5823 Eastern Avenue, Chillum, Maryland, on or about May 27, 2004 ("Racketeering Act 6"), the assault with intent to kill while armed of Edwin Arrington on or about April 23, 2004 ("Racketeering Act 7"), and assault with intent to kill while armed of Edwin Arrington on or about May 15, 2004 ("Racketeering Act 9"); conspiracy to commit offensesagainst the United States, that is, armed robberies of banks the deposits of which were then insured by the Federal Deposit Insurance Corporation ("Count II"); armed robbery of Bank of America on or about January 22, 2004 ("Count III"); using and carrying a firearm during and in relation to a crime of violence on or about January 22, 2004 ("Count IV"); armed robbery of Riggs Bank on or about March 5, 2004 ("Count VII"); using and carrying a firearm during and in relation to a crime of violence on or about March 5, 2004 ("Count VIII"); armed robbery of Industrial Bank on or about June 12, 2004 ("Count X"); using and carrying a firearm during and in relation to a crime of violence on or about June 12, 2004 ("Count XI"); unlawful possession of a firearm on or about June 12, 2004, by a person convicted of a crime punishable by imprisonment for a term exceeding one year ("Count XII"); armed robbery of SunTrust Bank on or about June 29, 2004 ("Count XV"); using and carrying a firearm during and in relation to a crime of violence on or about June 29, 2004 ("Count XVI"); unlawful possession of a firearm on or about June 29, 2004, by a person convicted of a crime punishable by imprisonment for a term exceeding one year ("Count XVII"); and assault with intent to kill while armed of Edwin Arrington on or about May 15, 2004 ("Count XIX"). Presently before the Court is Morrow's pro se [774] Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence and [832] Motion for Appointment of Counsel. Upon a searching review of the parties' submissions,1 the relevant authorities, and the record as a whole,the Court finds no grounds for setting aside Morrow's conviction and sentence at this time. Given that the Court has determined that a hearing is not necessary in this matter, the Court finds that the interests of justice do not require that the Court appoint Morrow counsel in this matter and, accordingly, his request is denied. Accordingly, the Court shall DENY Morrow's [774] Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence and [832] Motion for Appointment of Counsel.
On August 3, 2004, a federal grand jury indicted Morrow and six other codefendants in connection with a string of bank robberies that occurred in the District of Columbia and Maryland.2 Indictment, ECF No. [10]. The United States Court of Appeals for District of Columbia Circuit ("D.C. Circuit") described the factual scenario:
[Morrow and his codefendants] indulged in a violent crime spree throughout the District of Columbia metro area that lasted for nearly a year and a half. Appellants, who began by cultivating and selling marijuana, evolved into a ring that committed armed bank robberies, using stolen vehicles to travel to the targeted banks and make their escapes. By the summer of 2004, the robbers had developed a signature style. The gang wore bullet-proof vests, masks, and gloves, and relied on superior fire power, preferring to use military weapons like AK-47s instead of handguns because they surmised the metropolitan police "wouldn't respond" when Appellants "robb[ed] banks with assault weapons." The gang made use of several stolen vehicles, strategically placed along the get-away-route, for each robbery. The robbers would serially abandon the vehicles, often torching them in an attempt to destroy any forensic evidence that might be left behind.
United States v. Burwell, 642 F.3d 1062, 1064-65 (D.C. Cir. 2011) (citation omitted). The matterproceeded to trial in this Court, and Morrow was tried alongside five other codefendants. On July 15, 2005, a jury convicted Morrow on thirteen counts upon which he was charged in the indictment; the jury found Morrow not guilty of a fourteenth count (Count XVIII). Verdict Form, ECF No. [471].
On May 17, 2006, this Court sentenced Morrow to 240 months of imprisonment on Count I, 60 months of imprisonment on Count II, 300 months of imprisonment each on Counts III, VII, X, and XV, and 120 months of imprisonment each on Counts XII and XVII, to run concurrently to each other. The Court further sentenced Morrow to 120 months of imprisonment on Count IV, 300 months of imprisonment each on Counts VIII and XI, life imprisonment on Count XVI, and 60 months of imprisonment on Count XIX, to run consecutively to each other and to any other sentence. See Judgment in a Crim. Case, ECF No. [640]. Morrow filed a timely appeal of his conviction and on April 29, 2011, the D.C. Circuit affirmed Morrow's conviction in a published opinion. United States v. Burwell, 642 F.3d 1062 (D.C. Cir. 2011), aff'd in part en banc, 690 F.3d 500 (D.C. Cir. 2012). Morrow did not file a petition for writ of certiorari with the Supreme Court of the United States. Morrow currently is serving his sentence.
Pending before the Court is Morrow's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. Morrow's motion is premised on overarching ineffective assistance of counsel claims with respect to four stages of the proceedings, pre-trial, trial, post-trial, and appeal, by his trial counsel, Joanne Hepworth, and his appellate counsel, David B. Smith. Specifically, Morrow claims that his counsel rendered him ineffective assistance by: (1) failing to challenge the violation of his statutory right to a speedy trial prior to trial; (2) failing to raise double jeopardy and multiplicity challenges to the indictment prior to trial, failing to move to dismissbased on this challenge during trial, and failing to raise this challenge at sentencing and on appeal; (3) failing to properly advise Morrow regarding a plea offer extended by the government; (4) failing to request an informant jury instruction at trial; (5) failing to raise a Confrontation Clause challenge to certain evidence during trial and on appeal; (6) failing to properly cross-examine two government witnesses at trial; (7) failing to challenge government misconduct at trial and on appeal; (8) failing to properly challenge juror misconduct and bias at trial and on appeal; (9) failing to argue that the rule of lenity precluded the imposition of certain sentences at sentencing and on appeal; (10) failing to prepare and file a writ of certiorari with the Supreme Court of the United States. Morrow also asserts that he is entitled to relief based on intervening changes in the law.
Under 28 U.S.C. § 2255, a prisoner in custody under sentence of a federal court may move the sentencing court to vacate, set aside, or correct its sentence if the prisoner believes that the sentence was imposed "in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). The circumstances under which such a motion will be granted, however, are limited in light of the premium placed on the finality of judgments and the opportunities prisoners have to raise most of their objections during trial or on direct appeal. "[T]o obtain collateral relief a prisoner must clear a significantly higher hurdle than would exist on direct appeal." United States v. Frady, 456 U.S. 152, 166 (1982). Nonetheless, "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respectthereto." 28 U.S.C. § 2255(b).
A prisoner may not raise a claim as part of a collateral attack if that claim could have been raised on direct appeal, unless he can demonstrate either: (1) "cause" for his failure to do so and "prejudice" as a result of the alleged violation, or (2) "actual innocence" of the crime of which he was convicted. Bousley v. United States, 523 U.S. 614, 622 (1998). However, "[w]here a petitioner raises claims of ineffective assistance of counsel in a § 2255 motion, he need not show 'cause and prejudice' for not having raised such claims on direct appeal, as these claims may properly be raised for the first time in a § 2255 motion." United States v. Cook, 130 F. Supp. 2d 43, 45 (D.D.C. 2000), aff'd, 22 F. App'x 3 (D.C. Cir. 2001) (citation omitted).
A defendant claiming ineffective assistance of counsel must show (1) "that counsel's...
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