United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND ORDER
Osteen, Jr., District Judge
Ricky Douglas Crawford, Jr., a federal prisoner, brings a
Motion to Vacate, Set Aside, or Correct Sentence pursuant to
28 U.S.C. § 2255. (Doc. 60.)
case, Petitioner was found guilty of one count of armed bank
robbery in violation of 18 U.S.C. § 2113(a) and (d), and
one count of carry and use of a firearm, by discharging,
during and in relation to a crime of violence in violation of
18 U.S.C. §§ 924(c)(1)(A)(iii). (See Doc. 21.) He
was subsequently sentenced to 382 months imprisonment as a
career offender. (Doc. 31.) Petitioner's career offender
enhancement was based on prior North Carolina convictions of
common law robbery and assault with a deadly weapon with
intent to kill inflicting serious injury. (Presentence Report
(Doc. 26) ¶ 22.) Petitioner appealed his Judgment to the
United States Court of Appeals for the Fourth Circuit, and
that court affirmed. (Docs. 51, 55.)
11, 2016, Petitioner submitted his § 2255 Motion. (Doc.
60.) In his § 2255 Motion, Petitioner raises four
grounds for relief, challenging his convictions and sentence
based on (1) prosecutorial misconduct; (2) ineffective
assistance of counsel by both his trial and appellate
counsel; (3) his contention that his prior conviction for
common law robbery is no longer a crime of violence under the
Guidelines; and (4) his contention that his conviction for
armed bank robbery is not a crime of violence, and thus
cannot support his § 924(c) conviction. (Id.)
Petitioner also filed a Memorandum, (Doc. 61), which
elaborates on each of his grounds for relief.
court previously stayed this matter pending the decision in
Beckles v. United States, 580 U.S., 137 S.Ct. 886
(2017). Based on the decision in that case, the stay was
lifted and the briefing was completed. After Petitioner filed
his original § 2255 Motion, he filed additional
Amendments and Supplements, (Docs. 62, 66, 74, 75). In
addition, Petitioner later filed a Motion to Amend, (Doc.
77), Motion for Judgment on the Pleadings, (Doc. 78), and
Motion for Appointment of Counsel, (Doc. 80).
Original § 2255 Motion
Petitioner's original § 2255 Motion, he presents
four grounds for relief.
Ground One - Prosecutorial Misconduct
Ground One, Petitioner contends that the prosecutor in his
case engaged in misconduct on multiple occasions during his
trial. In his § 2255 Motion, Petitioner alleges that
[The] Prosecutor . . . read aloud to the jury a letter
allegedly written by the [Petitioner] during his rebuttal,
compelling [the Petitioner] to be a witness against himself.
Prosecutor introduced Shunta L. Frazier as a witness
(jail-house informant) to recall a conversation between him
and the [Petitioner], which was misleading the jury to
believe it was a confession. Prosecutor called an alleged
accomplice as a witness, Shiheem Williamson, the statements
against interest were not supported by corroborating
circumstances as required. Prosecutor did not provide any
proof that the [Petitioner] gained knowledge of a
confederates intent to carry or use a gun, other than [the]
alleged accomplice's testimony.
(Motion (Doc. 60) ¶ 12 (Ground One).)
it appears that Petitioner brings four individual claims of
prosecutorial misconduct. Petitioner's first claim
appears to be challenging the prosecutor's remarks during
his rebuttal argument. “Our circuit has a two-pronged
test for determining whether a prosecutor's misconduct in
closing argument so infected the trial with unfairness as to
make the resulting conviction a denial of due process.
Specifically, a defendant must show  that the
[prosecutor's] remarks were improper and  that they
prejudicially affected the defendant's substantial rights
so as to deprive [him] of a fair trial.” United
States v. Wilson, 135 F.3d 291, 297 (4th Cir. 1998)
(internal citations and quotations omitted). In this case,
Petitioner argues that the prosecutor engaged in misconduct
by reading aloud a letter that was written by Petitioner and
addressed to Shiheem Williamson, who was Petitioner's
cousin and alleged accomplice. (Memorandum (Doc. 61) at 7.)
Petitioner alleges that the reading of this letter to the
jury amounted to compelling him to be a witness against
himself and thus violated his Fifth and Sixth Amendment
rights. (Id.) However, Petitioner does not provide
any basis to find that the prosecutor's reading of the
letter that had previously been admitted into evidence was
improper. Furthermore, Petitioner cannot show that reading
the letter during closing arguments prejudicially affected
Petitioner's substantial rights so as to deprive him of a
fair trial. The letter had already been introduced into
evidence in full prior to this statement, and even absent the
letter, there was other substantial evidence introduced to
establish Petitioner's guilt. Finally, the court gave
curative instructions to the extent that any part of the
prosecutor's statement implied any type of burden
shifting. (See Trial Tr., Vol. 4 (Doc. 43) at 58-64.) For all
of these reasons, this claim fails as a matter of
next alleges that the testimony of a jailhouse informant,
Shunta Frazier, misled the jury to believe that Petitioner
confessed. (See Motion (Doc. 60) ¶ 12.) It appears that
Petitioner alleges that Mr. Frazier was an agent for the
government or a confidential informant placed in his cell to
improperly elicit information from him. (See Memorandum (Doc.
61) at 4-6.) However, he provides no support for this
conclusory allegation. See United States v. Dyess,
730 F.3d 354, 359 (4th Cir. 2013) (“[C]onclusory
allegations contained in a § 2255 petition may be
disposed of without further investigation by the [d]istrict
[c]ourt.” (internal quotation marks omitted)).
Petitioner also argues that the prosecutor characterized the
testimony from Mr. Frazier as a “confession” by
Petitioner, which amounted to prosecutorial misconduct.
(Motion (Doc. 60) ¶12.) However, it is not clear how
such a characterization would amount to prosecutorial
misconduct. Moreover, the trial transcript does not support
Petitioner's allegation that this prior conversation
between Mr. Frazier and Petitioner was in any way
characterized as a confession. Specifically, throughout Mr.
Frazier's testimony, the prosecutor questioned Mr.
Frazier about any “conversations” he may have had
with Petitioner, but does not make any reference to a
“confession.” (See Trial Tr., Vol. 3 (Doc. 41)]
at 201-06.) Indeed, it appears that Petitioner is actually
seeking to raise an evidentiary challenge to the introduction
of Mr. Frazier's testimony in full, rather than a
prosecutorial misconduct challenge. In this regard,
Petitioner contends that Mr. Frazier's testimony was
inadmissible because it was not supported by corroborating
evidence. However, this argument also does not afford
Petitioner any relief. Petitioner does not provide any basis
for requiring corroborating evidence, and Petitioner has not
presented any reason to conclude that the testimony would be
inadmissible. Based on later arguments, Petitioner may be
contending that the evidence was admitted under Fed.R.Evid.
804(b)(3) as an exception to the general rule against hearsay
and that corroboration was therefore required. However,
Fed.R.Evid. 804(b)(3) did not apply; instead, under
Fed.R.Evid. 801(d)(2), Mr. Frazier's testimony as to
Petitioner's statements was not hearsay at all, and this
claim is meritless.
similarly contends that the prosecutor committed misconduct
by calling his alleged accomplice Shiheem Williamson to
testify when the testimony was not supported by corroborating
evidence. As with his prior contention as to Mr. Frazier,
Petitioner appears to be challenging the admissibility of Mr.
Williamson's testimony based upon the lack of
corroboration. However, the court notes that on direct appeal
to the Fourth Circuit, Petitioner raised a challenge to the
admissibility Mr. Williamson's testimony, and this
argument was rejected by the Fourth Circuit. United
States v. Crawford, 626 Fed.Appx. 405, 408 (4th Cir.
2015). Petitioner cannot challenge Mr. Williamson's
testimony on collateral review after litigating this
challenge on direct appeal. Boeckenhaupt v. United
States, 537 F.2d 1182, 1183 (4th Cir. 1976). To the
extent Petitioner's claim here differs from his challenge
to Mr. Williamson's testimony on appeal, it fails on its
merits. Petitioner again appears to claim that the testimony
needed corroboration because it was admitted under
Fed.R.Evid. 804(b)(3) as an exception to the general rule
against hearsay. However, under Fed.R.Evid. 801(d)(2),
Williamson's testimony as to Petitioner's statements
was not hearsay at all. Therefore, Petitioner's claim
fails as a matter of law and will be denied.
final contention in Ground One, Petitioner argues that the
Government did not satisfy its burden of proof because the
prosecutor did not show that Petitioner had knowledge of his
alleged accomplice's intent to use or possess the gun.
Petitioner argues that the Government did not present
sufficient evidence to prove possession or use of the gun
because there was no firearm found on Petitioner and because
the testimony of the alleged accomplice, Mr. Williamson, was
not supported by corroborating evidence. (See Memorandum
(Doc. 61) at 4.) As previously noted, Petitioner's
challenge as to Mr. Williamson's testimony fails as a
matter of law under Boeckenhaupt and is meritless in any
event. To the extent that Petitioner is challenging the
sufficiency of the evidence presented by the Government, that
claim also fails as a matter of law under Boeckenhaupt. At
the conclusion of Petitioner's trial, he brought a Rule
29 motion raising such a challenge, which was denied by the
court. (See Trial Tr., Vol. 3 (Doc. 43) at 26-27.) On direct
appeal, Petitioner challenged the denial of his Rule 29
motion, and the Fourth Circuit rejected that challenge.
Crawford, 626 Fed.Appx. at 408. As previously noted,
Petitioner cannot use § 2255 to re-litigate an issue
that has already been ruled on during direct appeal.
Therefore, Petitioner's challenges as to the sufficiency
of the evidence presented by the Government also fail as a
matter of law and will be denied.
Ground Two - Ineffective Assistance of Trial Counsel ...