United States District Court, W.D. North Carolina, Asheville Division
MEMORANDUM OF DECISION AND ORDER
REIDINGER 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. 1] and Petitioner's Application
to Proceed in District Court Without Prepaying Fees or Costs
was charged in the underlying criminal case with one count of
Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a)
(Count One); one count of knowingly and unlawfully
discharging a firearm in furtherance of a crime of violence
(Hobbs Act robbery), in violation of 18 U.S.C. §
924(c)(1)(A)(iii) (Count Two); and one count of being a felon
in possession of a firearm, in violation of 18 U.S.C. §
922(g)(1) (Count Three). [Criminal Case No. 1:15-cr-00007
(“CR”), Doc. 1: Indictment].
Government presented evidence at trial that a man holding a
.45 firearm with his face covered by a purple scarf, wearing
Adidas sneakers and a red hooded jacket entered a Bojangles
restaurant on the night of August 2, 2014. He confronted a
customer and a front counter worker. He stepped up on the
counter, jumped over, and then went to the back room with the
restaurant manager. The robber discharged his firearm in the
restaurant's office and left a short time later with the
contents of the safe. Employees pressed the restaurant's
silent alarm and called 911. Employees and the customer saw
the robber run out of the Bojangles towards nearby dumpsters.
arrived within seconds of receiving the dispatch for the
robbery in progress and searched the area immediately around
the restaurant. They found Petitioner hiding in bushes near
the dumpsters with two bags in the immediate area. A brown
paper grocery bag contained clothing including a red hooded
jacket, a purple scarf, and a pair of Adidas tennis shoes. A
black Nike drawstring bag contained a large amount of U.S.
currency, a .45 handgun, and a cell phone. A second cell
phone was found on the ground. Both cell phones contained
images of Petitioner and each contained information
associated with him (voice mails, emails, text messages,
surveillance video from inside the store was admitted into
evidence and published to the jury. None of the witnesses
inside the restaurant could positively identify Petitioner at
trial because the robber's face was covered. However, a
customer testified that Petitioner “definitely looked
like the guy” who committed the robbery. [CR Doc. 60 at
49: Tr. Transcript]. Police testified that Petitioner's
hands tested positive for gunshot residue and that the Adidas
sneakers in the bag found in the bushes near him matched the
soleprint on the Bojangle's counter. A gun casing from
the Bojangle's manager's office was from a
counsel presented a theory of misidentification and
insufficient evidence due to shoddy police work. [CR Doc. 60
at 26-29: Tr. Transcript]. Counsel argued that the Government
had presented only circumstantial evidence with no direct
evidence positively identifying Petitioner as the robber. [CR
Doc. 62 at 153-57: Tr. Transcript]. Counsel also repeatedly
emphasized that there was no DNA evidence connecting
Petitioner to the robbery. [Id. at 155, 159].
Specifically with respect to the purple scarf and hat found
at the scene, counsel argued as follows:
They want you to believe that my client used that, that he
put it over his face or his mouth to conceal himself. Really?
Don't you think that if he had breathed into it or if
there was moisture there would have been DNA evidence?
Don't you think they would have had that analyzed? And if
so, if anything hinted or pointed towards Gordie Penson,
don't you think you would have heard that in this case?
The absence of that kind of evidence, I say to you, is
[Id. at 164].
Don't you think that the federal government, with its
limitless resources and crime labs and technicians …
could have analyzed that and found some trace, some latent
bit of evidence, if indeed it belonged to Gordie Penson? But
they didn't do that. They made a decision early in this
investigation, long before the trial of this case, not to dig
any deeper. What's wrong with this picture?
[Id. at 165].
jury found Petitioner guilty on all counts. [CR Doc. 36:
Verdict Sheet]. The Court sentenced Petitioner to a total of
161 months' imprisonment. [CR Doc. 46: Judgment].
filed a timely appeal. Petitioner argued on direct appeal
that: (1) the Court plainly erred by failing to require the
Government to comply with the Court's discovery order and
disclose exculpatory evidence in accordance with Brady v.
Maryland, 373 U.S. 83 (1963); (2) the Government
committed prosecutorial misconduct by making comments during
closing argument about Petitioner's possible ownership of
a cell phone found near the scene of the robbery that were
improper and prejudiced him; and (3) the Government presented
insufficient evidence to identify him as the robber so the
Court erred by submitting the case to the jury; and (4) trial
counsel was ineffective for failing to object to the
foregoing errors which resulted in plain error review on
appeal. The Fourth Circuit found that no plain error occurred
with regards to claims (1)-(3) and it declined to review
claim (4) because no ineffective assistance of counsel was
conclusively established by the record. United States v.
Penson, 684 Fed.Appx. 297 (4th Cir. 2017). With respect
to Plaintiff's claim of insufficient evidence, the Fourth
Circuit found that the evidence presented at trial showed
within minutes of the robbery, officers found Penson hiding
in trees and bushes on the property of the restaurant that
was robbed; eyewitnesses saw Penson leave the restaurant and
run toward the trees and bushes; officers found a bag
containing a .45-caliber pistol near Penson and ammunition
inside the restaurant's office; Penson tested positive
for gunshot residue on his hands at the time of his arrest;
officers found near Penson a large amount of cash and
clothing consistent with the eyewitnesses' ...