Wallace v. U.S.

• Decision Date: 12 December 2007
• Docket Number: C.A. No. 04-363-L.
• Citation: 526 F.Supp.2d 277
• Parties: Nickoyan WALLACE v. UNITED STATES of America.
• Court: U.S. District Court — District of Rhode Island

Page 277

526 F.Supp.2d 277

Nickoyan WALLACE v. UNITED STATES of America.

C.A. No. 04-363-L.

United States District Court, D. Rhode Island.

December 12, 2007.

COPYRIGHT MATERIAL OMITTED

Nickoyan Wallace, New York, NY, Pro Se.

Lee Vilker, Esq., U.S. Attorney's Office, Providence, RI, for Defendant.

MEMORANDUM AND ORDER

RONALD R. LAGUEUX, Senior District Judge.

This matter is before the Court on remand from the United States Court of Appeals for the First Circuit, which granted Petitioner Nickoyan Wallace's application for a certificate of appealability ("COA"). Wallace had sought the COA to review this Court's ruling on his amended Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (motion to vacate), in which, after granting relief on his claim for re-sentencing, this Court declined to reach certain claims asserted by Wallace. In its order of remand the Court of Appeals directed this Court to address the other claims presented by Wallace in his motion to vacate sentence. See Nickoyan Wallace v. United States, No. 06-1981, Judgment at 2 (1st Cir. February 16, 2007). This Court now addresses those claims.

I. BACKGROUND AND TRAVEL

On September 25, 2000 two armed men robbed D & B Guns, a federally licensed firearms dealer located on North Main Street in Providence. While pointing guns at the store owner and a clerk, the men took several guns from display cases inside the store and then fled on foot. The store clerk later identified Wallace as one of the two robbers. On October 5, 2000, Wallace was arrested in a third-floor apartment at 181 Pleasant Street in Providence, located approximately one mile from D & B Guns. The apartment was rented by Wallace's brother and accomplice in the robbery, Timi Wallace ("Timi").¹ In a search of the apartment police found, hidden in a shower compartment, five of the six guns that had been stolen, and as well as other firearms, hundreds of rounds of ammunition, and a Florida driver's license containing Wallace's picture, but with false information therein. Police also found $5,000 in cash, wrapped in aluminum foil in the pocket of a pair of jeans.

On October 18, 2000, Wallace was indicted on charges of: (1) obstruction of interstate commerce by robbery of certain firearms in violation of 18 U.S.C. § 1951; (2) conspiracy to so obstruct; (3) robbery of firearms from a federally-licensed dealer, in violation of 18 U.S.C. § 922(u) and 18 U.S.C. § 2; and (4) brandishing a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii).

The first jury trial, in which Wallace was represented by attorneys Thomas F. Connors and Joseph J. Voccola, ended in a mistrial. At that trial, the Government's witnesses included the store owner, Dorm DiBiasio, the store clerk, Donna Gallinelli, Wallace's friend, Lisa Gallant, and a prison informant, Willie Preston.

At his second trial, at which he was represented by Attorney Francis J. Flanagan, Wallace was found guilty by a jury on all four charges. Witnesses included DiBiasio, Gallinelli and Preston but not Lisa Gallant, who was not called by either the Government or the defense. Additional facts concerning the proceedings are discussed infra, in connection with Wallace's claims.

The Presentence Investigative Report ("PSR") calculated a total offense level of 29, which included two points for obstruction of justice based on Wallace's false testimony at trial concerning his involvement in the offense (see USSG § 3C1.1), with a criminal history category of II.² The Court imposed a total sentence of 204 months (17 years) imprisonment, followed by three years of supervised release.

Wallace appealed, represented by appointed counsel Jon R. Maddox. On August 21, 2003, the Court of Appeals affirmed Wallace's conviction on all counts. United States v. Wallace, 71 Fed.Appx. 868 (1st Cir.2003). Further review was denied by the U.S. Supreme Court on March 22, 2004. In re Wallace, 541 U.S. 934, 124 S.Ct. 1704, 158 L.Ed.2d 393 (2004).³

The instant motion to vacate sentence was filed on August 11, 2004. In his motion Wallace raised eleven separate grounds for relief, including claims of ineffective assistance of counsel, prosecutorial misconduct and challenges to certain sentencing adjustments. These claims are discussed in further detail infra. In its response, the Government objected to all of these claims.

Thereafter, Wallace sought to amend his § 2255 motion to add a claim that his counsel was ineffective for failing to challenge an "unwarranted double-counting" in the imposition of his sentence. The Government concurred that double-counting had occurred in the calculation of Wallace's sentence so as to warrant re-sentencing and requested that a revised PSR be prepared in connection with re-sentencing. See Government's Response to Petitioner's Motion for Leave to Amend's 2255[sic] ("Gov't Resp.") at 2-3. Wallace opposed the preparation of a revised presentence report.

This Court then issued a Memorandum and Order granting the motion to amend and granting § 2255 relief solely on the basis of the calculation of Wallace's sentence. See Memorandum and Order dated May 26, 2006, 2006 WL 1495518 ("Memorandum and Order"). The Court ordered that the matter be set down for resentencing; that counsel be appointed to represent Wallace at the resentencing hearing; that the U.S. Probation Office prepare a revised PSR; and that counsel be permitted to file presentence memoranda on (1) whether the Sentencing Guidelines would be mandatory or advisory at Wallace's resentencing, and (2) the extent to which this Court could impose a greater or lesser sentence than the sentence originally imposed. See id. at 11-12. In so ruling, this Court did not find it necessary to reach the other claims asserted by Wallace. Wallace's application for a COA was denied by this Court on June 21, 2006.

A resentencing hearing was held on October 25, 2006. After considering a revised presentence report (PSR) and presentence memoranda submitted by counsel, this Court again found Wallace's net offense level under the Guidelines to be 29, including a two-level adjustment for obstruction of justice based on Wallace's testimony during his trial. (See Transcript of Re-sentencing Hearing conducted on October 25, 2006 ["Re-sent Tr."] at 17-21.) With a criminal history category II, Wallace's guideline range was 97-421 months for counts 1, 2 and 3, and 84 months on count 4. This Court sentenced Wallace to 120 months imprisonment on counts 1, 2 and 3 to be served concurrently and to 84 months imprisonment on count 4, to be served consecutively, for a total of 204 months imprisonment. Wallace filed a timely appeal from this resentencing, which appeal is currently pending before the Court of Appeals.⁴

In the meantime, Wallace had applied to the Court of Appeals for a COA from this Court's ruling on his amended § 2255 petition, contending that the refusal to address Wallace's other § 2255 claims constituted an implicit denial of those claims. The Court of Appeals granted a COA, finding that this Court's grant of relief as to the sentencing claim only "neither resolved nor mooted the additional claims directed at the underlying conviction." See Wallace v. United States, No. 06-1981, Judgment at 2 (1st Cir. February 16, 2007). The Court of Appeals consequently remanded this matter and directed this Court to address all of the remaining claims asserted by Wallace in his motion to vacate. Id.

At a status hearing conducted on June 13, 2007 both Wallace and the Government declined an opportunity to file any additional papers in connection with Wallace's remaining § 2255 claims, indicating that they were content to rest on their previously filed submissions concerning those claims. The Court has reviewed all the materials filed and now this matter is ready for decision.

Remaining § 2255 Claims

Wallace's remaining § 2255 claims may be summarized as follows:

(1) Wallace claims ineffective assistance of counsel based on counsel's failure to call a potentially favorable witness at trial, to challenge identification evidence which Wallace alleges was suggestive and improper and to adequately challenge the testimony of a Government witness (see Motion to Vacate, Grounds 1, 2 and 3), and also relies on various trial and post-trial errors by counsel (Id., Grounds 7-10).

(2) He alleges prosecutorial misconduct by the Government, including inter alia soliciting and using false testimony, wrongfully using Wallace's booking photograph and Florida license photograph at trial, and making improper references to prejudicial facts not in evidence. (Id., Grounds 4, 5 and 6.)

(3) He challenges the two-point increase in his offense level for obstruction of justice as improper under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004)(Id., Ground 11).

Each of these claims will be discussed in turn.⁵

II. DISCUSSION

The pertinent section of § 2255 provides:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground 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, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255, ¶ 1.

Generally, the grounds justifying relief under 28 U.S.C. § 2255 are limited. A court may grant such relief only if it finds a lack of jurisdiction, constitutional error or a fundamental error of law. United States v. Addonizio, 442 U.S. 178, 184-185, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979). "[A]n error of law does not provide a basis for collateral attack unless the claimed error constituted a fundamental defect which inherently results in a complete miscarriage of...