Gregory Sullivan v. United StatesGregory Sullivan v. United States
CONCLUSION
Although we hold that the magistrate judge‘s conduct in this case did not require recusal under
Gregory SULLIVAN, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee.
No. 11-5138.
United States Court of Appeals, Sixth Circuit.
Oct. 16, 2014.
ALICE M. BATCHELDER, Circuit Judge.
Petitioner Gregory Sullivan appeals the district court‘s denials of his
I.
This case has a lengthy and tangled procedural history, much of which is perti
Rather, confronted with a forest of evidence against him, Sullivan and counsel have taken aim at a few stray branches, at which they hack away virulently in an apparent hope that we might mistake these branches for the forest itself. But the forest of evidence is overwhelming—the prosecutor proved Sullivan was guilty, the jury rendered a unanimous guilty verdict, and the district court sentenced Sullivan less harshly than it could have. Sullivan and his counsel have their own reasons for persisting in a never-ending litany of motions and amendments, but at some point that must come to an end.
A.
Between December 1999 and June 2002, Gregory Sullivan robbed 12 banks in northern Kentucky, of a total of $107,425. When he was caught, the federal prosecutor charged him with ten counts of bank robbery, in violation of
At trial, the prosecutor produced 25 eyewitnesses to describe the robber and the robberies. More importantly, 15 of those eyewitnesses—at least one for every robbery—specifically identified Sullivan as the robber. The prosecutor corroborated the testimony with independent evidence, such as surveillance video, and a shirt and ball cap recovered from Sullivan‘s possession that matched certain witness descriptions. The police had lifted Sullivan‘s fingerprint from one of the robberies and had matched the description of the getaway car to a Camaro Z-28 registered to Sullivan‘s wife. Another police officer testified that his encounter with Sullivan on October 11, 2000—the same day as one of the robberies—was memorable because Sullivan had a large amount of cash, in $20 and $50 bills. A Boone County Child Support Officer testified that, on October 25, 2000—the day of another robbery—Sullivan made a $3,000 cash payment, in $50 and $100 bills. And several witnesses linked Sullivan to “bait bills” from another robbery. Finally, two jail-house informants testified that Sullivan had boasted about his committing the robberies, describing himself as the “Bandana Bandit.”
Sullivan called two witnesses in his defense and testified himself. He asserted that he did not use any bank and relied solely on cash, that he had not robbed the banks, and that all of the prosecution witnesses were mistaken or lying. Sullivan did not provide an explanation for how he had obtained the cash or an alibi for any of the 12 robberies, nor did any other witness.
The jury convicted Sullivan on all 14 counts. The district court ordered a Presentence Report (PSR) for sentencing and, relying on the report‘s information, sentenced Sullivan to 572 months in prison (the high end of the then-mandatory range) and $107,425 in restitution.1
Sullivan appealed here, claiming that the evidence was insufficient to convict him of three of the robberies; the photo lineup had been unduly suggestive; and the government had failed to disclose certain exculpatory evidence, namely discarded fiber and hair samples taken from a bandana worn by the robber during one robbery and copies of the suspect-description forms completed by some eyewitnesses shortly after certain robberies. We rejected these claims and affirmed his conviction. See United States v. Sullivan, 431 F.3d 976 (6th Cir.2005). Sullivan had also claimed ineffective assistance of trial counsel, but we declined to decide that claim on the record then before us, preferring instead to follow our ordinary practice of directing a defendant to file ineffective-assistance-of-counsel claims in a post-conviction proceeding under
B.
On September 24, 2007, Sullivan filed pro se a “Motion Under
On July 28, 2008, the magistrate judge issued a Report and Recommendation (“R & R“) finding Sullivan‘s claims meritless and advising the district court to deny the motion in its entirety. The magistrate judge concluded the R & R with the following warning, particularly pertinent to Sullivan: “Particularized objections to this Report and Recommendation must be filed within ten days of the date of service or further appeal is waived. A general objection that does not ‘specify the issues of contention’ is not sufficient to satisfy the requirement of a written and specific objection. Poorly drafted objections [and] general objections ... are insufficient to preserve the right of appeal” (case citations omitted here). Neither party filed objections.
Over the next two years, Sullivan obtained five extensions of time to file a response, specifically to file “objections” to the R & R.3 Ultimately, Sullivan had until March 29, 2010, to file his objections but he never did so. Instead, on March 26, 2010, he moved to amend his first amended
The district court did not, however, enter a separate “judgment“—on the docket or otherwise—as is required by
C.
On August 31, 2010, Sullivan moved to alter or amend the district court‘s August 4 decision and renewed his motion for an evidentiary hearing. The district court denied that motion on November 24, 2010, explaining that, in view of Sullivan‘s clear understanding that he was to file objections to the R & R and his failure to do so, he had waived or defaulted on his right to appeal the judgment adopting the R & R. The court also declined to apply equitable tolling and, after analyzing Sullivan‘s claims of ineffective assistance of counsel, found those claims insufficient to overcome his waiver or default. The court denied a hearing as moot.
This November 24, 2010, judgment, which was also considered “entered” and final after 150 days, is the second of the two judgments that Sullivan challenges here. These two judgments are the district court‘s final decisions on Sullivan‘s first amended
D.
Sullivan next filed three successive motions (the “December 2010 motions“). On December 1, 2010, despite the fact that the district court had already ruled on his
On January 27, 2011, Sullivan filed a notice of appeal (Sixth Circuit No. 11-5138) and correspondingly moved the district court to hold that notice in abeyance until it had ruled on his pending motions. On February 18, 2011, Sullivan moved the district court for a certificate of appealability (COA) on several issues and sub-issues. On May 18, 2011, the district court granted Sullivan a COA as to one issue: whether an evidentiary hearing was warranted on Sullivan‘s claim that he was entitled to resentencing pursuant to Booker or Apprendi. On June 8, 2011, the court denied Sullivan‘s motion to hold the notice of appeal in abeyance.
On June 28, 2011, we thoroughly considered the timeliness of Sullivan‘s appeal and, ultimately finding it timely, accepted his appeal from both the August 4 and November 24, 2010, decisions, but remanded for the district court to rule on Sullivan‘s three December 2010 motions (i.e., the two motions to further amend his
Ε.
Sullivan appealed again on April 6, 2012 (Sixth Circuit No. 12-5461) and moved to expand his COA to encompass several issues, some of which were raised to the district court and others of which were not.5 Sullivan also filed two additional motions to expand the COA to include the district court‘s denial of his motions to further amend his
Because Sullivan was raising new claims and attempting to introduce new evidence—such as the FOIA documents—the government moved to remand this case to the district court for an evidentiary hearing in which it could contest or explain the new allegations. Sullivan responded that this court should treat his motions as alternatively requesting authorization to file a second or successive
On December 12, 2012, we granted in part Sullivan‘s motion to expand his COA, holding that the COA was granted “only to those issues raised in Sullivan‘s motion to dismiss and amended motion to dismiss,” meaning his original
F.
With the COA questions resolved, we consolidated his appeals and, on March 11, 2013, appointed counsel for Sullivan. On April 9, 2013, we set a briefing schedule for this appeal.
Then, on July 8, 2013, despite the clear statement in our December 12 order expressly limiting the COA, Sullivan‘s counsel moved to supplement the record with the documents that Sullivan had obtained via FOIA, or to remand for the district court to do so. The government opposed the motion, arguing that those documents are “misleading, incomplete, and not exculpatory,” and “fail to establish a legitimate Brady claim.”6 After multiple extensions
G.
With briefing complete, we heard argument on March 20, 2014. We find that the arguments made on appeal and the motions raised herein are now ready for decision.
II.
Five particular doctrines govern our analysis in this appeal. To minimize repetition and focus our analysis concisely, we set forth the legal standard for each doctrine here at the outset and apply them to Sullivan‘s factual claims individually in the subsections that follow.
Certificate of Appealability (COA). Our “[a]ppellate review of a petitioner‘s
Procedural Default. A petitioner must raise his claims on direct appeal, “[o]therwise, the claim is procedurally defaulted” for purposes of
Cause and Prejudice to Overcome Procedural Default. “Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in [a
To prove ineffective assistance of appellate counsel, Sullivan must show both deficient performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). Notably, appellate “counsel has no obligation to raise every possible claim and the decision of which among the possible claims to pursue [on appeal] is ordinarily entrusted to counsel‘s professional judgment,” and “[c]ounsel‘s performance is strongly presumed to be effective.” McFarland v. Yukins, 356 F.3d 688, 710 (6th Cir.2004) (citations omitted). “[O]nly when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of [appellate] counsel be overcome.” Joshua v. DeWitt, 341 F.3d 430, 441 (6th Cir.2003).
More specifically, the “process of winnowing out weaker arguments on appeal and focusing on those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy.” Smith v. Murray, 477 U.S. 527, 536 (1986) (quotation marks omitted); Jones v. Barnes, 463 U.S. 745, 751-52 (1983) (“Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues.“).
Waiver of the Right to Appeal from the Magistrate Judge‘s R & R. The “failure to object to the magistrate‘s report and recommendation prior to the district court‘s adoption of such report constitutes
But “this rule is procedural and not jurisdictional, [so we] may excuse compliance with it in the interests of justice.” Thomas, 474 U.S. at 155 (citing plain error by the district court as a possible basis for excuse). We apply this excuse infrequently and under only “exceptional circumstances,” Murphy v. Reed, 22 Fed.Appx. 390, 391 (6th Cir.2001), such as a change in the law, Souter v. Jones, 395 F.3d 577, 585 (6th Cir.2005), an obstacle to filing the objections, Smith v. Woods, 505 Fed.Appx. 560, 564 (6th Cir.2012), or an otherwise sufficient showing of “excusable neglect or good cause,” Corsetti v. Tessmer, 41 Fed.Appx. 753, 755 (6th Cir.2002).
Second or Successive
To obtain that certification, the petitioner “must make a prima facie showing that: (1) there is newly discovered evidence that, if proven and viewed in light of the evidence as a whole, sufficiently establishes that no reasonable factfinder would have found him guilty; or (2) a new rule of constitutional law applies to his case that the Supreme Court has made retroactive to cases on collateral review. Any claim that was presented in a prior
A. Brady Violation
“[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87 (1963).
In her appellate brief, Sullivan‘s counsel points to numerous documents allegedly withheld in violation of Brady, specifically concerning: the results of a photo array (Mary Ann Vowels); fingerprint evidence; local police reports (concerning alternative suspects and other robberies); internal FBI reports (opining that different perpetrators committed different robberies, and that the robber had brown eyes), certain witness statements (Kara Fields, Karen Gomes, Paula Hopkins, and other unnamed witnesses), and documentation about the “bait bill.”
The government argues that Sullivan has procedurally defaulted his claims concerning some of these documents because he failed to raise them on direct appeal. On October 30, 2003, and again on November 26, 2003, Sullivan‘s appellate counsel filed notices with the district court memorializing specific lists of evidentiary documents he had received from the government on September 26, 2003, and November 10, 2003, respectively. Included on these lists were certain documents that Sullivan‘s current counsel relies on here, including: the Boone County Police report of the photo array shown to Mary Ann Vowels and her response; witness statements from Karen Fields, Karen Gomes, and numerous other witnesses; several local police reports concerning suspects, robberies, and fingerprint evidence, and at least two FBI reports.
Sullivan‘s current counsel concedes that the government provided this information, specifically the Boone County Police report of the photo array shown to Mary Ann Vowels and her response, but also explains that “[t]he descriptions of the documents in the inventory list filed by appellate counsel were not detailed enough, however, to confirm disclosure status with respect to every document,” and that she was unsuccessful in her attempts to contact Sullivan‘s appellate counsel for further clarification. The government‘s brief does not dispute this.
We agree with Sullivan‘s counsel that the inventory lists are not sufficiently detailed to include every document she relies on, but it certainly includes some, specifically the documents regarding witnesses Mary Ann Vowels, Karen Fields, and Karen Gomes. Consequently, Sullivan has procedurally defaulted on any Brady claims concerning these documents because his appellate counsel, who had these documents, did not raise these claims on direct appeal.8
2.
Sullivan‘s current counsel seeks to excuse this procedural default based on her assertion that Sullivan‘s appellate counsel was constitutionally ineffective, specifically for (1) including an ineffective-assistance-of-counsel claim even though such claims are generally not cognizable on direct appeal and (2) failing to include all of the potential Brady evidence, inasmuch as the court considers such evidence cumulatively so “there is no strategic upside, and all strategic downside, in failing to raise all arguments in support of a Brady claim.” We cannot agree.
The decision of which among the possible claims to pursue on appeal is entrusted to counsel‘s professional judgment, which is presumed to be effective unless the ignored issues are clearly stronger than those presented. McFarland, 356 F.3d at 710; Joshua, 341 F.3d at 441. Sullivan‘s first contention is that his current Brady claim was clearly stronger than the ineffective-assistance-of-trial-counsel claim, but that misses the point—it is not enough that the ignored claim was stronger than one of the claims actually presented; to overcome the presumption
As for Sullivan‘s second contention—that counsel was ineffective for failing to raise all of the possible Brady evidence—that is unsupported by, and contradictory to, established law, which holds that “selecting,” “winnowing,” and “focusing” arguments “is the hallmark of effective appellate advocacy.” Smith, 477 U.S. at 536; Jones, 463 U.S. at 751. We therefore decline Sullivan‘s proposition that counsel‘s failing to include all of the potential Brady evidence is necessarily ineffective assistance because the court considers such evidence cumulatively.
Sullivan cannot excuse his procedural default on this claim.
3.
As for the remainder of the documents allegedly withheld in violation of Brady, Sullivan raised those in his
Sullivan‘s current counsel contends that Sullivan‘s pro se motion to amend his
Finally, counsel urges us to excuse Sullivan‘s waiver because the district court reviewed the R & R “on the merits rather than resting on waiver.” We do not agree that the district court reviewed these Brady claims on the merits, but even if it had, this is not the type of “exceptional circumstance” that would justify excusing compliance. See, e.g., Murphy, 22 Fed.Appx. at 391; Souter, 395 F.3d at 585; Smith, 505 Fed.Appx. at 564; Corsetti, 41 Fed.Appx. at 755.
Sullivan has waived appeal of the district court‘s denial of his Brady claims.
4.
Sullivan‘s current counsel has urged us to supplement the record and admit hundreds of pages of alleged Brady material that Sullivan obtained via FOIA. Because we find that Sullivan waived appeal of the district court‘s denial of his Brady claim, the substance of his requested supplement is irrelevant to disposition of this appeal, so we deny this motion as moot.9
At different points, both parties have moved for a remand to the district court for an evidentiary hearing. Under
6.
When the government opposed Sullivan‘s motion to supplement the record, Sullivan requested that we treat his motions as alternatively seeking authorization to file a second or successive
First, “[a]ny claim that was presented in a prior
Moreover, Sullivan must show that his newly discovered evidence could not have been discovered earlier through the exer
B. Motion to Amend the § 2255
In the appellate brief, Sullivan‘s current counsel argues that the district court erred by denying his motion(s) to amend his
C. Ineffective Assistance of Trial Counsel
In the appellate brief, Sullivan‘s current counsel argues five ways in which Sullivan‘s trial counsel rendered constitutionally ineffective assistance, claiming that he: (1) failed to find alibi witnesses; (2) failed to obtain government documents (the same documents underlying the Brady claim); (3) failed to investigate fingerprint evidence and improperly relied on his expert‘s opinion that there was nothing exculpatory therein; (4) failed to object to the magistrate judge‘s ruling on the photo array recommending denial of the motion to suppress eye witness identification; and (5) failed to investigate the “bait bills” and their surrounding circumstances. She also argues that these failings constitute cumulative error when taken altogether.
1.
Counsel raises the fifth of these arguments—trial counsel‘s failure to investigate the “bait bills“—for the first time here on appeal; Sullivan did not raise it in his initial
2.
Sullivan raised the first four arguments and the cumulative-error argument in his first amended
For the same reasons set out previously with respect to the Brady claim, we reject the contention that Sullivan‘s motion to amend his
Sullivan has waived appeal of the district court‘s denial of these claims.
3.
In the appellate brief, Sullivan‘s counsel claims that she has “at the least made sufficient factual allegations of deficient performance to require an evidentiary hearing.” But, as with the Brady claims, because we find that Sullivan waived appeal of the district court‘s denial of these claims, he is conclusively entitled to no relief and therefore to no evidentiary hearing.
Sullivan has elsewhere asserted that we should consider his motions as alternatively requesting authorization to file a second or successive
D. Resentencing
Sullivan seeks resentencing because he was originally sentenced under the mandatory guidelines sentencing system that the Supreme Court declared unconstitutional in United States v. Booker, 543 U.S. 220 (2005). More importantly, the Supreme Court issued Booker while Sullivan‘s case was pending on direct appeal and, therefore, Booker applied to him. Id. at 268.
1.
The district court held that Sullivan‘s appellate counsel had procedurally defaulted on this claim for failing to raise it on direct appeal. This is both factually and legally correct—Sullivan procedurally defaulted this claim for purposes of
2.
Sullivan‘s current counsel argues—and the government agrees—that appellate counsel‘s failure to raise this claim on direct appeal was ineffective assistance of counsel sufficient to constitute cause and prejudice, and overcome procedural default. See Bousley, 523 U.S. at 622.
To prove ineffective assistance, Sullivan must show both deficient performance and prejudice, see Strickland, 466 U.S. at 687, and in assessing deficient performance, we “must take care not to second-guess [counsel‘s] strategic decisions,” Jackson v. Bradshaw, 681 F.3d 753, 760 (6th Cir.2012) (citing Strickland, 466 U.S. at 689). Recall that Sullivan‘s appellate counsel had also been his counsel for sentencing, during which he had successfully objected to the PSR‘s recommendation for an upward departure to account for the seven robberies that were excluded from the mandatory guidelines calculations. In fact, counsel had concluded his written objection by asserting that the guideline-mandated “sentence is adequate.” It is therefore possible that he omitted the resentencing claim from direct appeal as a strategic decision to avoid the possibility of reviving the threat of an upward departure at resentencing under a new advisory guidelines scheme. Or it could be that he decided to omit this claim (challenging a sentence that he considered “adequate“) and focus on stronger arguments.
Nonetheless, we have held that counsel‘s failure to raise Booker‘s change in federal sentencing law, while the case was on direct appeal, is objectively unreasonable. Ballard v. United States, 400 F.3d 404, 408-09 (6th Cir.2005). Moreover, prejudice is presumed, United States v. Barnett, 398 F.3d 516, 529 (6th Cir.2005), and rebutted in only rare cases, United States v. Mooneyham, 473 F.3d 280, 295 (6th Cir.2007). Consequently, Sullivan‘s appellate counsel was ineffective and that ineffectiveness serves to overcome the procedural default.
III.
For the forgoing reasons, we DENY each of the motions raised here; we AFFIRM the judgments of the district court as to all aspects of Sullivan‘s conviction; we REVERSE the judgment of the district court that Sullivan procedurally defaulted his Booker-based sentencing claim; and we REMAND to the district court for resentencing consistent with this opinion.
Suzanne A. DERBABIAN; Edward Derbabian, Plaintiffs-Appellants,
v.
BANK OF AMERICA, N.A., Successor to BAC Home Loans Servicing, LP, formerly known as Countrywide Home Loan Servicing, LP; Countrywide Home Loans, Inc., Defendants-Appellees.
No. 14-1253.
United States Court of Appeals, Sixth Circuit.
Oct. 17, 2014.