United States District Court, W.D. North Carolina, Statesville Division
J. Conrad, Jr. United States District Judge.
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).
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).
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).
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).
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).
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).
Fourth Circuit also rejected Petitioner's other claims
and affirmed the conviction and sentence on February 24,
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
STANDARD OF REVIEW
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 ...