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Donahue v. United States

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

April 5, 2019



          Max O. Cogburn United States District Judge.

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

         I. BACKGROUND

         Petitioner was indicted along with co-defendants Osman White, Roderick Hardin, Leo McIntyre, Jr., Abdul White, and Otis Sutton in a Hobbs Act conspiracy. The charges pertaining to Defendant are: Count (1), conspiracy to commit Hobbs Act robbery; Count (2), Hobbs Act robbery and aiding and abetting the same; and Count (4), money laundering conspiracy. (3:12-cr-13, Doc. No. 71). The Government moved to dismiss Count (4) before trial, which the Court granted. (3:12-cr-13, Doc. No. 144); see (minute order of December 3, 2012, granting the Motion to Dismiss).

         The facts of the case as recited by the Fourth Circuit Court of Appeals are as follows:

Scott Beaver owned Beaver Honda and Salvage, a business that sold cars and used auto parts all over the United States and beyond. The Beaver family home and the business shared a single address. On one side of the road were the house and the car lot, separated by a fence. Directly across the road were the salvage yard and garage. Beaver's wife, who also worked for the business, sometimes prepared paperwork and conducted telephone sales and purchases from inside the house.
Instead of putting his money in a bank, Beaver chose to keep it in a safe in his laundry room. In the evening after work, Beaver would bring the proceeds from the business into the house for storage in the safe. He estimated that he had $1.5 million in the safe. He kept the cash from his business in the safe in part because he felt like it was safer there than stored in a bank or invested, and in part for convenience because he used it “for transactions.” Although the business had a checking account, occasionally Beaver would retrieve cash from inside the house to pay people who performed work for him.
Donahue met Beaver when Donahue was employed by Eric Wilson in Wilson's automobile glass business. Wilson and Donahue performed work for Beaver, exchanging glass windshields at Beaver's car lot. Donahue knew that Beaver kept cash from the business inside his house. Wilson preferred being paid in cash, and often he and Donahue waited in the house or on the front porch as Beaver retrieved money to pay them for their windshield work. Sometimes, when the two men waited in the living room, Beaver headed towards the laundry room, returning with their cash. Donahue and Wilson occasionally discussed that Beaver was worth several million dollars, and Donahue remarked “quite a few times” about how much money Beaver kept in the safe.
Donahue conspired with others to rob Beaver's safe. The robbery was carried out on July 21, 2011, by two of the co-conspirators. The robbers forced Beaver, his wife, their two young daughters, Beaver's adult grandson, and Beaver's preschool-age great grandson, into the Beavers' home and demanded that Beaver show them the safe. After Beaver opened the safe, the robbers took the cash; it took several trips to carry it all to their vehicle. They began counting the money after they left the scene, but they stopped counting after $1.5 million. The funds were subsequently divided amongst the coconspirators.

United States v. Donahue, 607 Fed.Appx. 233, 233-34 (4th Cir. 2015).

         Petitioner's co-defendants entered guilty pleas[1] and two of them, Osman White and Roderick Hardin, testified at Petitioner's trial. They explained that Petitioner had several robbery targets, the first being the Beaver family. The group recruited individuals to obtain a car, weapons, and carry out the robbery which was executed by Hardin and Sutton. The Government played several recorded phone conversations among the conspirators, both before and after the Beavers' robbery. Osman White and Hardin testified that Petitioner was the point man for the robbery and provided information about the Beavers, their home, their dog, their schedule, and a large amount of cash expected to be found in their safe. The recorded conversations, which contained codes for robberies and the robbery participants, discussed the Beavers' robbery, other prospective targets, and the splitting of proceeds with Petitioner having received between $13, 000 and $19, 000.

         Petitioner testified in his own defense. (3:12-cr-13, Doc. No. 290 at 111). He explained that the recorded conversations were about Osman coming to work with Petitioner in his auto glass business and that his reference to a windfall referred to his business picking up, not the Beavers' robbery. He testified that he did not discuss any kind of robbery with Osman, Hardin, Abdul, McIntyre, or Sutton at any time, or believe that they were going to rob the Beavers. (3:12-cr-13, Doc. No. 290 at 160).

         Defense counsel argued in closing that the cooperating co-defendants were not credible because they were “playing a game with the system” by pleading guilty and cooperating with the Government. (3:12-cr-13, Doc. No. 291 at 21).

         A jury found Petitioner guilty of Counts (1) and (2). (3:12-cr-13, Doc. No. 173). The Court sentenced him to 188 months, concurrent, followed by three years of supervised release. (3:12-cr-13, Doc. Nos. 253, 283). Petitioner argued on direct appeal that the evidence was insufficient to support his convictions. The Fourth Circuit affirmed. United States v. Donahue, 607 Fed.Appx. 233 (4th Cir. 2015). The United States Supreme Court denied certiorari on October 5, 2015. Donahue v. United States, 136 S.Ct. 187 (2015).

         Petitioner filed the instant § 2255 Motion to Vacate on July 14, 2016, raising the following claims: (1) prosecutorial misconduct; (2) trial errors; (3) illegal restitution; and (4) ineffective assistance of trial counsel. (Doc. No. 1). The Court ordered the Government to show cause why relief should not be granted on Claims (1) and (4) and found that Claims (2) and (3) are not colorable. (Doc. No. 2). The Government filed a Response arguing that the prosecutorial misconduct claims are procedurally barred and meritless, and that Petitioner failed to establish ineffective assistance of counsel.


         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 imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a).

         Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that courts are to promptly examine motions to vacate, along with “any attached exhibits and the record of prior proceedings . . .” in order to determine whether the petitioner is entitled to any relief on the claims set forth therein. In many cases, an evidentiary hearing is required to determine whether or not counsel was ineffective for misadvising a petitioner about a plea offer. See generally United States v. Witherspoon, 231 F.3d 923, 926-27 (4th Cir. 2000); 28 U.S.C.A. § 2255(b). After examining the record in this matter, the Court finds that the arguments presented by Petitioner can be resolved without an evidentiary hearing based on the record and governing case law. See Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).


         (1) Prosecutorial Misconduct

         Petitioner contends that the prosecutor engaged in misconduct during trial by: (a) vouching for a witness and disparaging Petitioner's character during opening; (b) calling key government witnesses to testify at trial in orange prison garb; (c) vouching during closing; and (d) attempting to shift the burden of proof.

         As a preliminary matter, this claim is procedurally defaulted from § 2255 review. “Habeas review is an extraordinary remedy and will not be allowed to do service for an appeal.” Bousley v. United States, 523 U.S. 614, 621 (1998) (internal citations omitted) (“the voluntariness and intelligence of a guilty plea can be attacked on collateral review only if first challenged on direct review.”); United States v. Sanders, 247 F.3d 139, 144 (4th Cir. 2001). In order to collaterally attack a conviction or sentence based upon errors that could have been but were not pursued on direct appeal, a petitioner must show cause and actual prejudice resulting from the errors of which he complains or he must demonstrate that a miscarriage of justice would result from the refusal of the court to entertain the collateral attack. See United States v. Frady, 456 U.S. 152, 167-68 (1982); United States v. Mikalajunas, 186 F.3d 490, 492-93 (4th Cir. 1999); United States v. Maybeck, 23 F.3d 888, 891-92 (4th Cir. 1994). Actual prejudice is then shown by demonstrating that the error worked to petitioner's “actual and substantial disadvantage, ” rather than just creating a possibility of prejudice. See Satcher v. Pruett, 126 F.3d 561, 572 (4th Cir. 1997) (quoting Murray v. Carrier, 477 U.S. 478, 494 (1986)). To establish cause based upon ineffective assistance of counsel, a petitioner must show that the attorney's performance fell below an objective standard of reasonableness and that he suffered prejudice as a result. See Murray, 477 U.S. at 488; Strickland, 466 U.S. at 687. In order to demonstrate that a miscarriage of justice would result from the refusal of the court to entertain the collateral attack, a petitioner must show actual innocence by clear and convincing evidence. See Murray, 477 U.S. at 496.

         Construing the pro se pleading liberally, Petitioner appears to allege that ineffective assistance of counsel is “cause” for excusing his procedural default of these claims. However, this contention fails because these claims are meritless and counsel was not ineffective for failing to raise them. Therefore, the prosecutorial misconduct claims are procedurally defaulted from § 2255 review and, alternatively, fail on the merits for the reasons that follow.

         To establish prosecutorial misconduct, a defendant must demonstrate: (1) that the conduct of the prosecutor was improper, and (2) that the improper conduct prejudicially affected his substantial rights so as to deprive him of a fair trial. See United States v. Mitchell, 1 F.3d 235, 240 (4th Cir. 1993). “[I]t ‘is not enough that the prosecutors' remarks were undesirable or even universally condemned.'” Darden v. Wainwright, 477 U.S. 168, 180 (1986) (quoting the lower court's opinion). Improper remarks by a prosecutor violate the Constitution only if the remarks “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Darden, 477 U.S. at 181 (quoting Donnelly v. DeChristoforo, 416 U.S. 637 (1974)). “Courts must conduct a fact-specific inquiry and examine the challenged comments in the context of the whole record.” Bennett v. Stirling, 842 F.3d 319, 323 (4th Cir. 2016).

         (a) Opening Statement

         The prosecutor's opening statement should be an objective summary of the evidence reasonably expected to be produced and the prosecutor should not use the opening statement as an opportunity to “poison the jury's mind against the defendant” or “to recite items of highly questionable evidence.” United States v. DeRosa, 548 F.2d 464, 470 (3d Cir. 1977) (quoting Government of Virgin Islands v. Turner, 409 F.2d 102, 103 (3d Cir. 1969)). The direct expression of an advocate's opinion as to the veracity of a witness is prohibited. United States v. Moore, 710 F.2d 157, 159 (4th Cir. 1983). Although a prosecutor is not permitted to vouch for a witness' credibility, the prosecutor may submit that the jury may make conclusions based on the evidence. See United States v. Strickland, 702 Fed.Appx. 154 (4th Cir. 2017).

         First, Petitioner contends that the prosecutor vouched for the confidential informant's veracity in the opening statement as follows:

You'll hear from law enforcement that a break came in the case. That a tip came in from a confidential informant who had worked with Special Agent Rodney Blacknall in the past. You'll hear that this informant, whose name is Waymon Fleming, called and said, ‘I heard there was a robbery where a lot of money was taken and I think my cousin might have been involved in that.'
You will learn through presentation of the government's evidence that Agent Blacknall referred Mr. Fleming to Lieutenant Chad Moose with the Rowan County Sheriff's Department since the robbery had occurred in Rowan County. That's where the Beavers lived. And you'll hear Mr. Fleming ended up being a very reliable confidential informant. He was correct, there had been a robbery and a lot of money had been taken and his cousin, a man named Leo McIntyre, Jr., was involved in that robbery.

(3:12-cr-13, Doc. No. 287 at 159-60) (emphasis added).

         Taken in context, the passage at issue submits that the jury should conclude that the information the confidential informant provided to police was credible because it was supported by the evidence. See Strickland, 702 Fed.Appx. at 154 (prosecutor did not engage in improper vouching or bolstering where it relied on the trial evidence to suggest, rather than assure, that a law enforcement witness was credible); see also United States v. Taylor, 900 F.2d 779, 782 (4thCir. 1990) (it was “doubtful” that the prosecutor's statement that the confidential informant “is not lying in this business” was a direct expression of the attorney's opinion on credibility).

         Second, Plaintiff argues that the prosecutor disparaged him through his association with Osman White as follows:

The evidence will show that Roderick Hardin confessed. That Roderick Hardin told law enforcement everything. You will learn through testimony and presentation of documents and other evidence that Roderick Hardin told law enforcement how this whole scheme came about.
And the web grew more tangled. Because Roderick Hardin told law enforcement that this was planned from the Mecklenburg County jail. That a gentleman named Osman White - and I use that term ‘gentleman' loosely - was in the Mecklenburg County jail on drug charges. And Osman White had known defendant Tim Donahue for a long time. Tim Donahue was from the Rowan County area. Tim Donahue worked in the glass business.
And you're going to hear from Osman White. You're going to hear from the horse's mouth what happened. You're going to hear that Tim Donahue, the defendant in this case, approached Osman White and said, We should commit some robberies. I can't do it because I know these people.

(3:12-cr-13, Doc. No. 287 at 162) (emphasis added).

         Osman White was incarcerated when the Government called him as a witness at Petitioner's trial. See (3:12-cv-13, Doc. No. 289 at 92). The prosecutor's comment that acknowledged Osman White's incarceration was not improper because the fact of his imprisonment was known to the jury. The fact that Osman White knew Petitioner, and that both were incarcerated at the time of trial, was properly before the jury and was not unduly inflammatory. Even if the comment was improper, it was isolated and did not render the trial fundamentally unfair. Compare United States v. Johnson, 415 Fed.Appx. 495 (4th Cir. 2011) (argument that “when you put the devil on trial, you've got to go to hell to get your witnesses, ” was improper because the attempt to defend its use of certain witnesses also made an inherent emotional characterization of the defendant, however, this single remark did not render the trial fundamentally unfair).

         (b) Leading

         The essential test of a leading question is whether it suggests to the witness the specific tenor of the reply desired by counsel so that such a reply is likely to be given irrespective of an actual memory. United States v. Durham, 319 F.2d 590, 592 (4th Cir. 1963). The evil to be avoided is that of supplying a false memory for the witness. Id. The extent to which the use of leading questions may be indulged or limited is a matter primarily for the discretion of the trial judge and an appellate court will intervene only if there is a clear abuse of discretion. Generally, abuse of discretion is not found in the absence of prejudice or clear injustice to the defendant. Id.

         During victim Shirley Beaver's cross-examination, defense counsel Winiker asked whether she would recognize her business' website if she saw it. The prosecutor objected, stating:

It's unclear at what point in time - this is not the website. This appears to be some sort of printout of portions of the website. It's unclear - it appears that these were printed on December 3rd, 2012, which is far after the robbery.

(3:12-cr-13, Doc. No. 288 at 81) (emphasis added).

         The Court excused the jury and defense counsel argued that “the United States has clearly telegraphed to the witness potential responses in this speaking objection….” (3:12-cv-13, Doc. No. 288 at 84). The Court overruled the objection and defense counsel asked the witness whether she recognized the website printout and the witness agreed that the information ...

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