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Freeman v. United States

United States District Court, W.D. North Carolina, Statesville Division

May 16, 2018

DARIUS DONNELL FREEMAN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          Robert J. Conrad, Jr. United States District Judge.

         THIS MATTER is before the Court on Petitioner's Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255, (Doc. No. 1).

         I. BACKGROUND

         Petitioner was charged in the underlying criminal case with: Count (1), armed bank robbery and aiding and abetting; Count (2), using, carrying, and brandishing a firearm in relation to a crime of violence (Count (1)); Count (3), carjacking; and Count (4), using, carrying, and brandishing a firearm in relation to a crime of violence (Count (3)). (5:13-cr-83, Doc. No. 1).

         Petitioner moved to suppress the photo lineup identification of him by carjacking victim Princess Wilson because the identification procedure was unnecessarily suggestive. (5:13-cr-83, Doc. No. 28). At the suppression hearing, Detectives Justin Todd, Todd Stutts, Michael Peacock, and Corey Richard, testified that they did not show Wilson images of the bank robbery suspects before Wilson viewed a photo lineup of the carjacking suspects. However, Detective Todd admitted that he received an email from Detective Stutts several days before the photo identification stating: “I talked to Ms. Wilson today. She states that she has viewed the bank robbery pictures and is 100% positive the suspect with the bandage on his face is the one that carjacked her….” (5:13-cr-80, Doc. No. 64 at 34). Wilson testified at the suppression hearing that she had not seen any images of the bank robbery suspects, either through police or the media, before she viewed the photo lineup and identified Petitioner as the person who carjacked her. (5:13-cr-80, Doc. No. 64 at 56). The Court denied Petitioner's motion to suppress because it found by a preponderance of the evidence that the photo identification procedure was not unnecessarily suggestive, stating “there was no evidence that law enforcement presented her with the bank robbery photos before the lineup was conducted … and consequently, there was not a taint and the matter of identification then becomes a matter for the trial and cross-examination.” (5:13-cr-80, Doc. No. 64 at 83).

         At trial, defense counsel questioned Detectives Stutts about the email memorializing his conversation with Wilson in which she reported having seen images of the robbers before the photo identification. (5:13-cr-80, Doc. No. 67 at 120-21). In closing argument, defense counsel noted that there was evidence that Wilson told Detective Stutts she had seen images of the bank robbers prior to the photo identification then denied it at trial, and “something … doesn't add up in [Wilson's] testimony.” (5:13-cr-80, Doc. No. 68 at 28).

         The jury found Petitioner guilty of all four counts and he was sentenced to a total of 447 months' imprisonment. (5:13-cr-80, Doc. No. 47, 80).

         One of Petitioner's claims on direct appeal was that the Court erred in denying his motion to suppress because the photographic lineup was unduly suggestive. The Fourth Circuit found that no clear error had occurred:

During the suppression hearing, [Wilson] testified that she did not see photographs of the bank robbery until after the photo lineup. But a few days before the photo lineup, a detective who had spoken with the victim on the telephone sent an email to another detective saying that ‘[the victim] states that she has viewed the bank robbery pictures and is 100% positive [one of the robbers] is the one that carjacked her.' … Freeman argues that the victim's testimony is contradicted by the email. But even allowing this point, there is no evidence that police showed the victim the robbery pictures. These photos had been displayed by local news media, and all four of the police officers who testified at the suppression hearing swore that they did not show the victim any bank robbery pictures before the photo lineup. Therefore, we conclude that the district court did not clearly err in finding the identification was not impermissibly tainted, and did not err in denying Freeman's motion to suppress.

United States v. Freeman, 680 Fed.Appx. 181, 183 (4th Cir. 2017).

         The Fourth Circuit also rejected Petitioner's other claims and affirmed the conviction and sentence on February 24, 2017. Id.

         Petitioner filed the instant § 2255 Motion to Vacate on January 4, 2018. He argues that counsel was ineffective for failing to object to Wilson's false testimony at the suppression hearing and at trial that she had not seen photographs of the bank robbery suspects prior to the photo lineup identification, which was contradicted by the email between Detectives Stutts and Todd. The prosecutor knew or should have known that the testimony was false and chose not to correct it. Had Ms. Wilson informed the Court that she indeed viewed the bank robbery suspects before the photo lineup, the court would have had no choice but to disqualify Ms. Wilson's identification of the Petitioner. He argues that, but for counsel's deficient performance, there is more than a probability of a different trial outcome

         II. STANDARD OF REVIEW

         A federal prisoner claiming that his “sentence was imposed in violation of the Constitution or the 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 ...


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