United States District Court, W.D. North Carolina, Charlotte Division
MEMORANDUM OF DECISION AND ORDER
MARTIN REIDINGER, District Judge.
THIS MATTER comes before the Court on consideration of Petitioner's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 [Doc. 1]; the Government's Answer to Petitioner's Motion to Vacate [Doc. 6]; the Government's Motion to Dismiss [Doc. 7]; and Petitioner's "Motion Requesting Discovery" [Doc. 9]. For the reasons that follow, Petitioner's motion for discovery will be denied, and his § 2255 motion will be granted in part and denied in part.
A. Offense Conduct
On December 1, 2008, Petitioner robbed the First Citizens Bank located on 424 Indian Trail Road in Indian Trail, North Carolina. Prior to committing this robbery, Petitioner conducted surveillance of the bank to gain an understanding of the routines of the bank employees as they arrived for work. Petitioner also conducted surveillance of one particular bank employee at her home. On December 1, 2008, Petitioner drove to that employee's home on the morning of December 1st and waited for her husband to leave for work. After her husband was gone, Petitioner forced his way into the back door and bound the bank employee and her two children with duct tape. Petitioner then forced the bank employee into her car and drove her to First Citizens Bank, threatening to kill her children if she did not cooperate. After forcing the kidnapped employee to open the bank and disable the alarm, Petitioner had to wait for another employee to arrive as it required two employees to access the vault. In order to conceal his identity, Petitioner covered the surveillance equipment with black duct tape. Once another employee arrived, Petitioner brandished a firearm and ordered the bank employees to open the vault. Petitioner retrieved cash from the vault and then drove the kidnapped bank employee back to her home where he dropped her off and then abandoned her vehicle. The bank reported a loss of $25, 374 from the robbery. [Criminal Case No. 3:09-cr-00060 ("CR"), Doc. 38: Presentence Report ("PSR") at ¶ 6].
On January 14, 2009, Petitioner concealed himself near the entrance to the Truliant Federal Credit Union located at 9524 Monroe Road in Charlotte, and waited for employees to arrive for work. Petitioner forced one of the employees into the bank as she attempted to open the door. Petitioner displayed what appeared to be a gun and secured the female employee and another employee that was already in the bank with duct tape. Before Petitioner could place tape over the video surveillance equipment an accomplice, later identified as Johnny Arroba, entered the bank. Petitioner and Arroba then covered the surveillance equipment with duct tape and forced the tellers to access the vault where they began taking cash from the teller drawers. After hearing a knock on the front door of the credit union, Petitioner and Arroba exited the back door of the bank and drove away in a sport utility vehicle. The credit union reported a loss of $22, 223.59 from the robbery. [Id. at ¶ 7].
On February 24, 2009, Petitioner approached a Bank of America branch located at 2823 South Boulevard in Charlotte. Petitioner knocked on the glass, presented what appeared to be a Bank of America identification card, and informed the manager, using Bank of America terminology, that he was there for business purposes. The female manager unlocked the front door in an effort to identify Petitioner and then withdrew into the bank and attempted to relock the front door. Petitioner, however, forced his way into the bank and engaged in a physical altercation with the manager. The altercation abruptly ended after Petitioner displayed what appeared to be a handgun. The female manager was then bound with duct tape and Petitioner covered the surveillance cameras with tape. Petitioner later confronted three employees just as they arrived for work and likewise bound them with duct tape. Petitioner then forced employees with access to the vault to open it and Petitioner gathered the cash that was contained in the vault. The bank reported a loss from the robbery in the amount of $100, 669.00. [Id. at ¶ 8].
Petitioner was arrested on February 27, 2009. After waiving his Miranda rights, he confessed to committing the Bank of America robbery three days earlier on South Boulevard and acknowledged displaying a fake gun during the robbery. A search warrant was executed at Petitioner's residence and cash was recovered which was consistent with the loss reported by Bank of America. During this same interview, Petitioner confessed to committing the December 1st robbery of the First Citizens Bank on Indian Trail Road. He further admitted that he had carried out surveillance prior to the robbery and, in particular, that he conducted surveillance at the bank employee's home in preparation for the robbery.
On April 22, 2009, the Grand Jury in this District returned a Superseding Bill of Indictment charging Petitioner with ten counts relating to the three bank robberies. [CR Doc. 19: Superseding Bill of Indictment]. Specifically, Petitioner was charged with three counts of bank robbery, in violation of 18 U.S.C. § 2113(a); three counts of the use of a firearm during a bank robbery, in violation of 18 U.S.C. § 2113(d); one count of forcing another to accompany him during a bank robbery, in violation of 18 U.S.C. § 2113(e); and three counts of possession of a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c). [Id.].
B. Plea Agreement and Guilty Plea
On July 24, 2009, Petitioner entered into a written plea agreement with the Government and agreed to plead guilty to two counts relating to the robbery of the First Citizens Bank (Counts Two and Three, charging § 2113(d) & (e), respectively), one count relating to the attempted robbery of Trulient Federal Credit Union (Count Six, charging § 2113(d)), and one count relating to the robbery of Bank of America (Count Nine, charging § 2113(d)). [CR Doc. 24: Plea Agreement]. In exchange for Petitioner pleading guilty to these counts, the Government agreed to dismiss the remaining counts. [Id.]. As part of the agreement, Petitioner waived his right to contest his conviction or sentence on appeal or in a post-conviction proceedings, except for claims of ineffective assistance of counsel or prosecutorial misconduct. [Id. at ¶ 20].
On July 29, 2009, Petitioner appeared before U.S. Magistrate Judge David S. Cayer for his Plea and Rule 11 hearing. After being placed under oath, Petitioner affirmed that he understood the charges to which he was pleading guilty; that he understood the maximum penalties he faced upon conviction; that he was pleading guilty because he was in fact guilty of the charged offenses; that his decision to plead guilty was not the product of any coercion, threats, or promises other than those agreements which were set forth in the plea agreement; that he consented to the terms of the plea agreement; that he was entirely satisfied with the services of his attorney; and that he had sufficient to time to discuss any possible defenses to the charges to which he was pleading guilty. The Court's questions during the Rule 11 hearing, along with Petitioner's answers to them, were recorded and presented to Petitioner in writing to review. Petitioner agreed with the accuracy of the recorded answers and he signed the Acceptance and Entry of Guilty Plea form. After finding that Petitioner's decision to plead guilty was knowing and voluntary, the Court accepted Petitioner's plea of guilty. [CR Doc. 26: Acceptance and Entry of Guilty Plea; CR Doc. 54: Tr. of Rule 11 Hearing].
On April 7, 2010, Petitioner appeared for his sentencing hearing. Petitioner re-affirmed the answers he gave at the Rule 11 hearing, and this Court affirmed the Magistrate Judge's previous finding that Petitioner's guilty plea was knowingly and voluntarily entered and therefore accepted Petitioner's guilty plea. [CR Doc. 55: Sentencing Tr. at 3-7]. The Court imposed concurrent 108-month sentences for Counts Six and Nine. The Court then imposed concurrent terms of 300-months' imprisonment for Counts Two and Three, which were to run consecutively to the 108-month sentences. [Id. at 38]. The Court entered the Judgment on April 28, 2010. [CR Doc. 45: Judgment in a Criminal Case].
Petitioner appealed to the United States Court of Appeals for the Fourth Circuit on April 29, 2010. Petitioner's appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), explaining that her review of the recorded yielded no meritorious issues for appeal, but counsel questioned the reasonableness of Petitioner's sentence. The Court rejected counsel's argument and affirmed Petitioner's sentence. See United States v. Arellano, 436 F.App'x 152 (4th Cir. 2011) (unpublished). In so holding, the Court of Appeals specifically found that this Court did not abuse its discretion in determining that the facts surrounding Petitioner's crimes made this case exceptional, thereby warranting an above-guidelines sentence. ...