587 F. App'x 935
6th Cir.2014Background
- Gregory Sullivan was convicted by a jury of 12 bank robberies (14 counts including two 924(c) firearm counts) based on multiple eyewitness identifications, surveillance, physical evidence (fingerprint, clothing), cash transactions, bait-bill links, and jailhouse informant statements; he was sentenced to 572 months and restitution.
- Sullivan appealed and this Court affirmed his convictions on direct appeal but deferred an ineffective-assistance-of-trial-counsel claim to collateral review.
- Sullivan filed a pro se § 2255 motion and an amended § 2255 raising Brady, ineffective assistance (trial and appellate), Booker/Apprendi sentencing error, and related claims; the magistrate recommended denial, Sullivan failed to file timely specific objections, and the district court adopted the R&R and denied relief.
- Sullivan pursued multiple motions to amend, to supplement with FOIA materials, and multiple appeals; this Court limited the Certificate of Appealability (COA) to issues raised in the original and first amended § 2255 motions.
- On appeal the Sixth Circuit affirmed denial of collateral relief as to the conviction-related claims (Brady, ineffective trial counsel, motions to amend, motions to supplement), found waiver/default bars, denied supplementation/remand, but held appellate counsel was ineffective for failing to raise Booker on direct appeal and remanded for resentencing under advisory Guidelines.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Brady disclosure of exculpatory materials | Sullivan: prosecution withheld multiple reports, witness statements, FBI/local reports and photo-array results that undermine identifications | Government: many documents were previously disclosed; claims procedurally defaulted or meritless; FOIA materials are incomplete/misleading | Waiver/procedural default affirmed for most Brady claims; supplementation with FOIA materials denied as moot; no relief granted on Brady claims |
| Ineffective assistance of appellate counsel re: Booker/Apprendi | Sullivan: appellate counsel’s failure to raise Booker/Apprendi on direct appeal was ineffective and constitutes cause to excuse procedural default | Government: procedural default; but concedes ineffective assistance may apply | Court finds appellate counsel’s omission to raise Booker was objectively unreasonable; prejudice presumed; procedural default excused; resentencing ordered |
| Ineffective assistance of trial counsel (investigation, alibi, fingerprint expert, ID suppression) | Sullivan: trial counsel failed to investigate, secure documents, call alibi witnesses, challenge IDs, and investigate bait bills; cumulative error | Government: claims were raised in § 2255 but waived by failure to object to R&R; many issues are strategic choices and not clearly stronger than those raised on appeal | Court finds these claims waived/defaulted by Sullivan’s failure to object to R&R; no evidentiary hearing; relief denied |
| Motion to supplement record / remand for FOIA evidence | Sullivan: new FOIA-acquired documents warrant supplementation or remand for evidentiary hearing and could support Brady or a second § 2255 | Government: FOIA docs are incomplete, not exculpatory; seek remand to litigate new evidence | Court denies supplementation and remand as moot (Brady claims waived) and declines to authorize a successive § 2255 motion; also denies remand for evidentiary hearing on those materials |
Key Cases Cited
- Brady v. Maryland, 373 U.S. 83 (1963) (suppression of favorable evidence violates due process)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-part test for ineffective assistance)
- United States v. Booker, 543 U.S. 220 (2005) (mandatory Guidelines held unconstitutional; advisory scheme required)
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (fact that increases penalty must be submitted to jury)
- Blakely v. Washington, 542 U.S. 296 (2004) (Apprendi principle applied to state sentencing scheme)
- Bousley v. United States, 523 U.S. 614 (1998) (procedural default may be excused for cause and prejudice or actual innocence)
- Jones v. Barnes, 463 U.S. 745 (1983) (appellate counsel need not raise every nonfrivolous argument)
- Smith v. Murray, 477 U.S. 527 (1986) (winnowing weaker issues is hallmark of effective appellate advocacy)
- Cullen v. Pinholster, 563 U.S. 170 (2011) (limits supplementation of state-court records in federal habeas review)
- United States v. Sullivan, 431 F.3d 976 (6th Cir. 2005) (Sullivan direct-appeal opinion affirming convictions)
- In re Liddell, 722 F.3d 737 (6th Cir. 2013) (standards for authorizing successive § 2255 motions)
- Ballard v. United States, 400 F.3d 404 (6th Cir. 2005) (failure to raise Booker on direct appeal may be unreasonable appellate performance)