Alfred Wingate, Jr. v. United States, 969 F.3d 251

Background

Alfred Wingate was convicted after an eight‑day joint trial of bank robbery (18 U.S.C. § 2113), two pharmacy robberies (18 U.S.C. § 2118), three § 924(c) firearms counts, two § 922(g) counts, and a conspiracy count; sentence totaled 684 months; direct appeal affirmed.
Wingate filed a § 2255 motion alleging ineffective assistance of trial counsel (chiefly for not cross‑examining certain witnesses and not moving to suppress a photo lineup) and that §§ 2113 and 2118 are not "crimes of violence" under § 924(c)(3)(A).
District court denied the § 2255 motion but granted a certificate of appealability (COA); this appeal followed.
Key trial evidence included bank and pharmacy security video, identification of Wingate and his maroon minivan by co‑conspirators and the victim Cavitt, Wingate’s fiancée’s recognition and cash deposit, Wingate’s photo ID in the van, and Cavitt’s pretrial photo‑lineup identification.
Wingate argued counsel was ineffective for failing to cross‑examine some witnesses and for not challenging the photo lineup; he also argued the robbery statutes do not meet § 924(c)’s elements clause.

Issues

Issue	Wingate's Argument	Government's Argument	Held
Ineffective assistance — failure to cross‑examine additional witnesses (Citizens Bank)	Counsel omitted cross‑examination of three witnesses who could have denied seeing Wingate at the scene, creating prejudice	Evidence (security video, co‑conspirator IDs, van identification, fiancée testimony) was overwhelming; additional cross‑examination would not change outcome	No prejudice; failure to cross‑examine those three witnesses did not undermine confidence in verdict
Ineffective assistance — failure to cross‑examine additional witnesses (Ferndale Pharmacy)	Counsel failed to cross‑examine nine witnesses; could have impeached Reid (Wingate’s son) or undermined IDs	Multiple independent indicia placed Wingate at scene (van, ID in van, chase/arrest, fiancée ID, Cavitt testimony); cross‑examination would not likely produce acquittal	No prejudice; omissions not likely to produce different result
Ineffective assistance — failure to move to suppress photo lineup / in‑court ID (Medicap)	Pretrial lineup was unduly suggestive (alleged influence from coworker describing a robber as a "Rick Ross" lookalike), so counsel should have moved to suppress Cavitt’s ID	Record shows Cavitt had a good look, no evidence coworker contaminated Cavitt, lineup fillers were similar; no substantial likelihood of misidentification	Photo lineup and in‑court ID were not impermissibly suggestive; counsel not ineffective under Strickland
Whether §§ 2113 and 2118 qualify as "crime[s] of violence" under § 924(c)(3)(A) and COA threshold	Intimidation element can encompass nonviolent conduct (e.g., erratic junkie behavior) and thus need not always involve threatened physical force	Precedent (McBride and related decisions) holds intimidation equals threatened use of physical force; statutes' elements cover threats of force	COA defect waived by government; on merits, both § 2113 and § 2118 qualify as crimes of violence under § 924(c)’s elements clause; affirm denial of § 2255

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (1984) (two‑prong ineffective assistance test)
Padilla v. Kentucky, 559 U.S. 356 (2010) (discussion of Strickland’s burdens)
United States v. Dado, 759 F.3d 550 (6th Cir. 2014) (Strickland prejudice analysis; evaluating totality of evidence)
United States v. McBride, 826 F.3d 293 (6th Cir. 2016) (holding "intimidation" involves threatened use of physical force under an elements‑clause analysis)
Johnson v. United States, 559 U.S. 133 (2010) (defining "physical force" as violent force capable of causing pain or injury)
Sexton v. Beaudreaux, 138 S. Ct. 2555 (2018) (standard for impermissibly suggestive identifications)
Gonzalez v. Thaler, 565 U.S. 134 (2012) (COA statutory requirement is mandatory but nonjurisdictional)
Moncrieffe v. Holder, 569 U.S. 184 (2013) (categorical approach—focus on statutory elements)