United States v. Needham, CRIMINAL ACTION NO. 11-185

CourtUnited States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Western District of Louisiana
Decision Date13 September 2018
Docket NumberCRIMINAL ACTION NO. 11-185,CIVIL ACTION NO. 14-2356




September 13, 2018




Before the Court is a motion to vacate under 28 U.S.C. § 2255 filed by Defendant Gerald Needham ("Needham"). [Record Document 103]. Needham raises several issues, mostly concerning allegedly ineffective assistance of his trial and appellate counsel. [Record Document 106]. Because Needham has not demonstrated his entitlement to habeas relief, the motion is DENIED.

I. Background

In April 2011, three people were murdered in an appliance store in Bossier City, Louisiana. [Record Document 40 at 1]. After Needham was identified as the assailant, an arrest warrant was issued along with a search warrant for Needham's house. [Id. at 4-5]. A search uncovered several kinds of ammunition in various locations in his home. [Id. at 6]. Needham was arrested for the triple murder and, after executing a Miranda waiver, denied involvement in the homicides, but admitted ownership of the ammunition. [Id. at 8]. The state brought murder charges, which were dismissed once the federal court issued a warrant to arrest Needham for

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being a felon in possession of ammunition. [Id. at 9]. After the federal arrest warrant was executed, Needham denied owning the ammunition, but admitted knowing the location of some of it. [Id. at 10-11]. Needham moved to suppress the ammunition and all of his incriminating statements. [Record Document 25]. This Court denied that motion. [Record Document 40].

A jury found Needham guilty of one count of illegal possession of ammunition by a convicted felon. [Record Document 64]. This Court departed from the Sentencing Guidelines after finding that the applicable criminal history category did not adequately account for Needham's extensive criminal record. [Record Document 85 at 2]. Needham appealed, raising three claims of error: insufficiency of the evidence, invalidity of the arrest warrant, and the upward departure. See United States v. Needham, 546 F. App'x 353, 354-55 (5th Cir. 2013) (per curiam). The Fifth Circuit affirmed. Id. at 357.

II. The Instant Motion

Needham asserts various grounds of error in his § 2255 motion. [Record Documents 103 and 106]. He begins by claiming that the evidence presented at trial was insufficient to establish beyond a reasonable doubt that he knowingly possessed the ammunition. [Record Document 106 at 2]. He then argues that the Government violated the Federal Rules of Evidence by referring to his arrest for the triple homicide and showing a video of that arrest. [Id. at 5]. The majority of his motion concerns a series of ineffective-assistance-of-counsel claims. [Id. at 2]. He claims that his trial counsel, Alex Washington ("Washington"), provided ineffective assistance by waiving Needham's right to be present at private questioning of venire members, by waiving Needham's right to be present at all critical phases of the trial, and by failing to object to the

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introduction of Needham's arrest for homicide and the video of that arrest. [Id. at 3-4, 6]. Needham also asserts that the cumulative error doctrine requires awarding him a new trial. [Id. at 7]. Finally, he alleges that his appellate counsel was ineffective for failing to raise on appeal each of the claims raised in the instant motion. [Id. at 8-9].

The Government has answered, arguing that Needham's attorneys provided effective assistance, that the sufficiency-of-the-evidence claim was disposed of on direct appeal, and that claims related to the admission of prejudicial evidence are procedurally barred. [Record Document 113-1 at 5-11]. After noticing that Needham had represented to this Court that he had timely filed a reply brief but that this brief was never received by the clerk's office, the Court granted Needham additional time to refile. [Record Documents 117 and 118]. Needham did not take advantage of this Court's offer.1

III. Standard of Review

A federal prisoner may test the legality of his detention by "mov[ing] the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a) (2012); see United States v. Grammas, 376 F.3d 433, 436 (5th Cir. 2004) (quoting Kuhn v. United States, 432 F.2d 82, 83 (5th Cir. 1970)). Where there has been such a "denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him

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or grant a new trial or correct the sentence as may appear appropriate." 28 U.S.C. § 2255(b). Relief under § 2255 is "reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice." Kinder v. Purdy, 222 F.3d 209, 213 (5th Cir. 2000) (quoting United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992)). A district court may deny a § 2255 motion without conducting any type of evidentiary hearing if the defendant fails to "present[| 'independent indicia of the likely merits of [his] allegations.'" United States v. Reed, 719 F.3d 369, 373 (5th Cir. 2013) (quoting United States v. Cavitt, 550 F.3d 430, 442 (5th Cir. 2008)). A hearing is also unnecessary if the issues were raised on direct appeal or do not describe a constitutional violation. United States v. McCollom, 664 F.2d 56, 59 (5th Cir. 1981) (citing Buckelew v. United States, 575 F.2d 515 (5th Cir. 1978)).

IV. Law and Analysis

A. Timeliness

With certain exceptions not relevant here, a § 2255 motion must be made within one year of the date on which the movant's conviction became final. 28 U.S.C. § 2255(f). Following an unsuccessful appeal after which the defendant does not seek a writ of certiorari, a conviction becomes final when the time expires for filing the writ. Clay v. United States, 537 U.S. 522, 525 (2003). A writ of certiorari must be filed within ninety days of the entry of judgment. Id. (citing Supreme Court Rule 13(1)). The Fifth Circuit denied Needham's appeal on April 22, 2013. Needham, 546 F. App'x at 353. Thus, his time to petition for certiorari expired on July 21, 2013. Because he filed his § 2255 motion on July 17, 2014, his motion is timely.

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B. Sufficiency of the Evidence

Because the Government proceeded under a theory of Needham's constructive possession of the ammunition, Needham argues that the evidence presented at trial was insufficient to establish his knowledge beyond a reasonable doubt. [Record Document 106 at 2]. "It is settled in this Circuit that issues raised and disposed of in a previous appeal from an original judgment of conviction are not considered in § 2255 Motions." United States v. Kalish, 780 F.2d 506, 508 (5th Cir. 1986) (citing United States v. Jones, 614 F.2d 80, 82 (5th Cir. 1980)). As the Fifth Circuit heard and rejected Needham's sufficiency-of-the-evidence claim on appeal, Needham, 546 F. App'x at 354-55, this Court cannot now consider it. His motion is denied as to this claim.

C. Presence During Voir Dire

Needham argues that Washington provided ineffective assistance of counsel by waiving Needham's right to participate in the voir dire of individual venire members that took place in the robing room. [Record Document 106 at 3]. Because the triple homicide and Needham's subsequent federal weapons charge had received substantial media coverage, the Court conducted extensive voir dire of venire members who reported having heard about or having discussed either the homicide or Needham's federal case. [Record Documents 57 at 2 and 96 at 67-176]. In addition, the Court engaged in ordinary sorts of private voir dire questions regarding jurors' criminal histories, health concerns, and attitudes towards law enforcement. [Record Document 96 at 67-176]. Ultimately, twenty-six of the fifty-one venire members were questioned privately. [Id.].

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Given Needham's criminal history and at the request of the United States Marshals Service, the Court ordered that Needham was to be secured in leg irons during the trial. [Record Document 56]. In order to reduce the risk that these restraints would prejudice the jury, Needham was always seated before the jurors entered the courtroom and was only escorted from the courtroom after they had exited. [Record Document 96 at 67]. In light of security concerns Needham's presence in the robing room would have raised, the Court and counsel agreed that individual voir dire would take place without Needham's presence. [Record Document 97-1 at 208-09]. Washington expressly waived Needham's right to be present, and Needham did not object at that time. [Id. at 209]. Needham now claims that he told his attorney that he wished to be present at the entire voir dire, [Record Document 106 at 3], but Washington's affidavit reflects that he discussed the proposed individual voir dire procedure with Needham and that Needham voiced no objection, [Record Document 113-2 at 1-2].

1. Standard for Ineffective Assistance of Counsel

A § 2255 motion is an acceptable vehicle through which to raise initial claims of ineffective assistance of trial or appellate counsel. Massaro v. United States, 538 U.S. 500, 503-04 (2003). To successfully state an ineffective-assistance-of-counsel claim, a movant must demonstrate that his attorney's performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). The movant bears the burden of proof. See id. If he fails to establish either prong of the Strickland test, then counsel's performance was constitutionally effective. Id.; see also Tucker v. Johnson, 115 F.3d 276, 280 (5th Cir. 1997) (citing Strickland, 466 U.S. at 697).

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As to the first deficient-performance...

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