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Wall v. United States

United States District Court, D. Delaware

July 11, 2017

CAROLYN WALL, Movant/Movant,
v.
UNITED STATES OF AMERICA, Respondent/Plaintiff. Civ. No. 15-361-SLR

          Carolyn Wall. Pro se movant.

          Jennifer K. Welsh. Assistant United States Attorney, United States Department of Justice, Wilmington, Delaware. Counsel for respondent.

          MEMORANDUM OPINION

          ROBINSON, Senior District Judge

         I. INTRODUCTION

         Carolyn Wall ("movant") is a federal inmate currently confined at the USP Hazelton in West Virginia. Movant timely filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. (D.I. 134) The government filed an answer in opposition. (D.I. 142) For the reasons discussed, the court will deny movant's § 2255 motion without holding an evidentiary hearing.

         II. BACKGROUND

From July 2010 through March 2011, a number of fraudulent checks were presented to stores such as Wal-Mart, Best Buy, and Target across Delaware, Pennsylvania, Maryland, and New Jersey. The New Castle County Police Department connected these incidents to [movant] and executed two search warrants of her townhouse. During these searches, the police found blank checks; counterfeit checks; documents with names, dates of birth, and Social Security numbers; printouts of bank names, addresses, and routing numbers; and check-writing computer software. Over the course of the nine-month scheme, [movant] caused losses of over $100, 000.
A grand jury returned a thirty-count indictment charging [movant] with conspiracy to commit wire fraud, in violation of 18 U.S.C. § 1349; wire fraud, in violation of 18 U.S.C. § 1343; identity theft, in violation of 18 U.S.C. § 1028(a)(7); access device fraud, in violation of 18 U.S.C. § 1029(a)(3) and (c)(1)(a)(i); fraudulent use of Social Security numbers, in violation of 42 U.S.C. § 408(a)(7)(B); and aggravated identity theft, in violation of 18 U.S.C. § 1028A.
[Movant] has never contested that she engaged in the fraudulent scheme. In fact, in a proffer with the government, she admitted to making fake checks and using other people's Social Security numbers. Her defense, instead, relied primarily on duress. Prior to trial, [movant] filed a motion to admit the expert testimony of psychologist Dr. Catherine Barber.
According to the motion, Dr. Barber would "present testimonial evidence of the effect that longstanding physical and mental abuse, neglect and manipulation have had on [movant], which made [movant] a target of coercion by various unindicted family members" and by Shawn Dyton, a man with whom she was romantically involved. Despite its focus on duress, [movant's] motion also mentioned in passing that Dr. Barber's testimony would be used "to negate the mens rea of the charged offenses."
* * * *
At trial, the District Court ultimately excluded Dr. Barber from testifying as to duress because it found that [movant] had failed to establish a proper foundation. The jury convicted [movant] on all counts.

United States v. Wall, 593 F.App'x 128, 130 (3d Cir. 2014).

         On September 24, 2013, the court sentenced movant as follows: (1) on counts one through twenty-five, twenty-seven, and twenty-nine, to concurrent terms of fifty-seven months of imprisonment, followed by three years of supervised release for counts one through twenty-five, twenty-seven, and twenty-nine; and (2) on counts twenty-six, twenty-eight, and thirty, twenty-four months of imprisonment (to run consecutive to the fifty-seven month sentence), followed by one year of supervised release. (D.I. 107) Movant appealed, arguing that she should have been permitted to introduce Dr. Barber's expert testimony of her alleged "psychotic features" and hallucinations to rebut the government's proof of specific intent to defraud. (D.I 108; D.I. 122) The Third Circuit rejected the argument and affirmed movant's judgment of conviction. See Wall, 593 F.App'x at 131.

         III. DISCUSSION

         Movant timely filed her pro se motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255, asserting the following four claims: (1) she was denied her right to a speedy trial; (2) a proffer statement was improperly used against her at trial; (3) two case agents were not sequestered during trial testimony; and (4) certain trial evidence was tainted due to an unreasonable search and seizure.

         Pursuant to 28 U.S.C. § 2255, a federal prisoner may move the sentencing court to vacate, set aside, or correct his sentence on the grounds that the sentence was imposed in violation of the Constitution or 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.

         28 U.S.C. § 2255. The relief sought under 28 U.S.C. § 2255 is reserved for extraordinary circumstances. See Brecht v. Abrahamson, 507 U.S. 619 (1993). If a movant fails to raise a claim on direct appeal, that claim is procedurally defaulted and cannot thereafter be reviewed pursuant to 28 U.S.C. § 2255 unless the movant demonstrates cause for the default and prejudice resulting therefrom, or that he is actually innocent. See Bousley v. United States, 523 U.S. 614, 616, 621-23 (1998). To establish cause for a default, a movant must demonstrate that "some objective factor external to the defense impeded counsel's efforts to raise the claim." United States v. Essig, 10 F.3d 968, 979 (3d Cir. 1993), abrogated on other grounds as explained in United States v. Peppers, 482 F.App'x 702, 704 n.5 (3d Cir. 2012). Significantly, an attorney's failure to preserve or raise a claim on direct appeal can constitute cause for a movant's procedural default only if counsel's failure amounts to constitutionally ineffective assistance of counsel. See Hodge v. United States, 554 F.3d 372, 379 (3d Cir. 2009). To establish prejudice, a movant must show "that the errors at [his] trial.. . worked to [his] actual and substantial disadvantage, infecting [his] entire trial with error of constitutional dimensions." United States v. Frady, 456 U.S. 152, 179 (1982). Notably, if the movant fails to demonstrate cause, a court is not required to determine if the movant was prejudiced by the default. See Smith v. Murray, 477 527, 533 (1986).

         The record in this case reveals that movant defaulted all four claims because she did not raise them to the Third Circuit on direct appeal. She attempts to establish cause by blaming defense counsel for not helping her "address these issues" on appeal. (D.I. 135 at 12) In order for defense counsel's actions to provide cause for movant's default, those actions must amount to constitutionally ineffective assistance of counsel. Ineffective assistance of counsel arguments are reviewed pursuant to the two-pronged standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). Under the first Strickland prong, movant must demonstrate that "counsel's representation fell below an objective standard of reasonableness, " with reasonableness being judged under professional norms prevailing at the time counsel rendered assistance. Strickland, 466 U.S. at 688. Under the second Strickland prong, movant must demonstrate "there is a reasonable probability that, but for counsel's error the result would have been different." Id. at 694. Additionally, in order to sustain an ineffective assistance of counsel claim, movant must make concrete allegations of actual prejudice and substantiate them or risk summary dismissal. See Wells v. Petsock, 941 F.2d 253, 259-60 (3d Cir. 1991); Dooley v. Petsock, 816 F.2d 885, 891-92 (3d Cir. 1987). Although not insurmountable, the Strickland standard is highly demanding and leads to a "strong presumption that the representation was professionally reasonable." Strickland, 466 U.S. at 689.

         For the following reasons, the court concludes that defense counsel's failure to present claims one through four on direct appeal does not establish cause for movant's default of the four claims, because defense counsel's actions did not amount to constitutionally ineffective assistance.

         A. Claim One: Speedy Trial Violation

         Movant contends that defense counsel's pursuit of psychiatric evaluations to determine if movant was competent to stand trial created a conflict between counsel and movant, and the resulting "delayed process stripped away [movant's] right to a speedy trial [in violation of her] Sixth Amendment [right] under the constitution." (D.I. 134 at 16) Given movant's focus on the amount of time defense counsel spent in pursuit of psychiatric evaluations, the court construes movant's speedy trial argument as focused on two distinct periods: (1) the 158 day period from defense counsel's oral motion for a determination of mental competency to stand trial, made during a February 16, 2012 teleconference (D.I. 30), through July 23, 2012, when a competency and status hearing occurred; and (2) the eighty-seven day period from defense counsel's motion for continuance of trial filed on January 18, 2013, with the purpose of obtaining a psychological evaluation and report (D.I. 56), through April 15, 2013, the first day of trial. The total "delay" attributable to the pursuit of psychological evaluations equals 245 days.

         As an initial matter, the court notes that movant cannot overcome the strong presumption that defense counsel's reasons for seeking psychological evaluations constituted sound trial strategy. There were two evaluations - one for competency and one for psychological conditions that might provide a trial defense. Dr. Barber's evaluation of movant revealed that she struggled with significant physiological conditions. At a pretrial hearing, Dr. Barber confirmed: "[t]o a reasonable degree of psychological certainty, psychological factors played substantial role in motivating [movant's] participation in the charged offense conduct, " and the expert concluded that movant was vulnerable and susceptible to perceived threats by Shawn Dyton, a man with whom she was romantically involved. (D.I. 113 at 82) Given movant's psychological condition, defense counsel's decision to have movant evaluated and to use her susceptibility to perceived threats by Dyton as a defense at trial constituted sound defense trial strategy.

         Additionally, movant's complaint that the 245 day "delay" caused by defense counsel's "strategy" to obtain psychiatric evaluations violated her Sixth Amendment right to a speedy trial is equally unavailing. The clearly established Supreme Court precedent governing Sixth Amendment speedy trial claims is set forth in Barker v. Wingo, 407 U.S. 514, 530 (1972). According to Barker, courts must consider four factors when determining if a defendant's speedy trial rights were violated: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of his right; and (4) prejudice to the defendant. Id. The Supreme Court has explained that "[t]he length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance." Id. Delays of one year or more trigger the analysis into the other Barker factors. Doggett v. United States, 505 U.S. 647, 652 n.1 (1992). To the extent the court should focus on the 245 day delay attributable to defense counsel's "pursuit" of psychological evaluations, there is no reason to engage in a full-blown Barker inquiry because the delay was less than a year. However, since the overall delay in this case was 711 days, the court will exercise prudence and apply the Barker balancing test to movant's speedy trial argument.

         1. Factor one: length of delay

         The 711 day time period between indictment and trial sufficiently triggers the initial presumption that movant was prejudiced by the delay. Thus, this factor weighs in movant's favor.

         2. Factor two: reason for the delay

         The Supreme Court has explained that the central inquiry with respect to factor two is "whether the government or the criminal defendant is more to blame for the delay." Doggett, 505 U.S. at 651. Generally, deliberate attempts by the government to hamper the defense by causing a delay are weighed heavily against the government. Barker, 407 U.S. at 531. However, "more neutral reason[s] such as a negligence or overcrowded courts"[1] are weighed less heavily against the government, provided there is no "showing of bad faith or dilatory purpose by the prosecution." Government of the Virgin Islands v. Pemberton, 813 F.2d 626, 628 (3d Cir. 1987). Finally, delays attributable to the parties' joint requests due to plea negotiations and/or the defendant's own requests for continuances, as well as delays attributable to extensive pretrial proceedings, are weighed against the defendant. See United States v. Corbin, 607 F.App'x. 136, 139 (3d Cir. 2015).

         The 711 day delay between movant's initial appearance on May 4, 2011 and the first day of trial on April 15, 2013 was caused by a variety of matters, including: (1) the scheduling of two trials following failed change of plea hearings; (2) pretrial motions; (3) a competency evaluation; (4) a psychological evaluation; and (5) other proceedings in which the court found that ends of justice were served by granting continuances. The exact breakdown of the delay is set forth below; the references within the breakdown to "time excluded" pertain to the properly excluded time from the seventy day time-period allotted under the Speedy Trial Act, 18 U.S.C. § 3161(c)(1).[1]

• Time excluded between May 4, 2011 and May 18, 2011, pending resolution of the government's motion for detention hearing. (D.I. 13)
• Time excluded between May 18, 2011 and June 17, 2011, pending pre-trial motions, by order of the court. (D.I. 14)
• Time excluded between June 17, 2011 and August 1, 2011 by movant's motion to continue deadline for filing pre-trial motions, ...

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