United States District Court, W.D. North Carolina, Charlotte Division
Cogburn United States District Judge.
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).
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).
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
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).
co-defendants entered guilty pleas 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
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).
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).
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.
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
SECTION 2255 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 imposed the
sentence to vacate, set aside or correct the sentence.”
28 U.S.C. § 2255(a).
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).
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.
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.
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
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).
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.
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).
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
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
(3:12-cr-13, Doc. No. 287 at 162) (emphasis added).
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).
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.
victim Shirley Beaver's cross-examination, defense
counsel Winiker asked whether she would recognize her
business' website if she saw it. The prosecutor objected,
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).
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 ...