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Penson v. United States

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

February 8, 2019




         THIS 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 [Doc. 2].

         I. BACKGROUND

         Petitioner 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].

         The 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.

         Police 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, etc.).

         A 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 .45-caliber weapon.

         Defense 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 striking.

[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].

         The 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].

         Petitioner 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 that:

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' ...

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