United States District Court, W.D. Louisiana, Shreveport Division
ELIZABETH ERNY FOOTE UNITED STATER DISTRICT JUDGE.
the Court is a motion to vacate under 28 U.S.C. § 2255
filed by Defendant Gerald Needham ("Needham").
[Record Document 103]. Needham raises several issues, mostly
concerning allegedly ineffective assistance of his trial and
appellate counsel. [Record Document 106]. Because Needham has
not demonstrated his entitlement to habeas relief, the motion
April 2011, three people were murdered in an appliance store
in Bossier City, Louisiana. [Record Document 40 at 1]. After
Needham was identified as the assailant, an arrest warrant
was issued along with a search warrant for Needham's
house. [Id. at 4-5]. A search uncovered several
kinds o f ammunition in various locations in his home.
[Id. at 6]. Needham was arrested for the triple
murder and, after executing a Miranda waiver, denied
involvement in the homicides, but admitted ownership of the
ammunition. [Id. at 8]. The state brought murder
charges, which were dismissed once the federal court issued a
warrant to arrest Needham for being a felon in possession of
ammunition. [Id. at 9]. After the federal arrest
warrant was executed, Needham denied owning the ammunition,
but admitted knowing the location of some of it.
[Id. at 10-11]. Needham moved to suppress the
ammunition and all of his incriminating statements. [Record
Document 25]. This Court denied that motion. [Record Document
found Needham guilty of one count of illegal possession of
ammunition by a convicted felon. [Record Document 64]. This
Court departed from the Sentencing Guidelines after finding
that the applicable criminal history category did not
adequately account for Needham's extensive criminal
record. [Record Document 85 at 2]. Needham appealed, raising
three claims of error: insufficiency of the evidence,
invalidity of the arrest warrant, and the upward departure.
See United States v. Needham, 546 Fed.Appx. 353,
354-55 (5th Or. 2013) (per curiam). The Fifth Circuit
affirmed. Id. at 357.
The Instant Motion
asserts various grounds of error in his § 2255 motion.
[Record Documents 103 and 106]. He begins by claiming that
the evidence presented at trial was insufficient to establish
beyond a reasonable doubt that he knowingly possessed the
ammunition. [Record Document 106 at 2]. He then argues that
the Government violated the Federal Rules of Evidence by
referring to his arrest for the triple homicide and showing a
video of that arrest. [Id. at 5]. The majority of
his motion concerns a series of
ineffective-assistance-of-counsel claims. [Id. at
2]. He claims that his trial counsel, Alex Washington
('Washington"), provided ineffective assistance by
waiving Needham's right to be present at private
questioning of venire members, by waiving Needham's right
to be present at all critical phases of the trial, and by
failing to object to the introduction of Needham's arrest
for homicide and the video of that arrest. [Id. at
3-4, 6]. Needham also asserts that the cumulative error
doctrine requires awarding him a new trial. [Id. at
7]. Finally, he alleges that his appellate counsel was
ineffective for failing to raise on appeal each of the claims
raised in the instant motion. [Id. at 8-9].
Government has answered, arguing that Needham's attorneys
provided effective assistance, that the
sufficiency-of-the-evidence claim was disposed of on direct
appeal, and that claims related to the admission of
prejudicial evidence are procedurally barred. [Record
Document 113-1 at 5-11]. After noticing that Needham had
represented to this Court that he had timely filed a reply
brief but that this brief was never received by the
clerk's office, the Court granted Needham additional time
to refile. [Record Documents 117 and 118]. Needham did not
take advantage of this Court's offer.
III. Standard of Review
federal prisoner may test the legality of his detention by
"mov[ing] the court which imposed the sentence to
vacate, set aside or correct the sentence." 28 U.S.C.
§ 2255(a) (2012); see United States v. Grammas,
376 F.3d 433, 436 (5th Or. 2004) (quoting Kuhn v. United
States, 432 F.2d 82, 83 (5th Cir. 1970)). Where there
has been such a "denial or infringement of the
constitutional rights of the prisoner as to render the
judgment vulnerable to collateral attack, the court shall
vacate and set the judgment aside and shall discharge the
prisoner or resentence him or grant a new trial or correct
the sentence as may appear appropriate." 28 U.S.C.
§ 2255(b). Relief under § 2255 is "reserved
for transgressions of constitutional rights and for a narrow
range of injuries that could not have been raised on direct
appeal and would, if condoned, result in a complete
miscarriage of justice." Kinder v. Purdy, 222
F.3d 209, 213 (5th Cir. 2000) (quoting United States v.
Vaughn, 955 F.2d 367, 368 (5th Cir. 1992)). A district
court may deny a § 2255 motion without conducting any
type of evidentiary hearing if the defendant fails to
"present 'independent indicia of the likely merits
of [his] allegations/" United States v. Reed,
719 F.3d 369, 373 (5th Cir. 2013) (quoting United States
v. Cavitt, 550 F.3d 430, 442 (5th Cir. 2008)). A hearing
is also unnecessary if the issues were raised on direct
appeal or do not describe a constitutional violation.
United States v. McCollom, 664 F.2d 56, 59 (5th Cir.
1981) (citing Buckelew v. United States, 575 F.2d
515 (5th Cir. 1978)).
Law and Analysis
certain exceptions not relevant here, a § 2255 motion
must be made within one year of the date on which the
movant's conviction became final. 28 U.S.C. §
2255(f). Following an unsuccessful appeal after which the
defendant does not seek a writ of certiorari, a conviction
becomes final when the time expires for filing the writ.
Clay v. United States, 537 U.S. 522, 525 (2003). A
writ of certiorari must be filed within ninety days of the
entry of judgment. Id. (citing Supreme Court Rule
13(1)). The Fifth Circuit denied Needham's appeal on
April 22, 2013. Needham, 546 Fed.Appx. at 353. Thus,
his time to petition for certiorari expired on July 21, 2013.
Because he filed his § 2255 motion on July 17, 2014, his
motion is timely.
Sufficiency of the Evidence
the Government proceeded under a theory of Needham's
constructive possession of the ammunition, Needham argues
that the evidence presented at trial was insufficient to
establish his knowledge beyond a reasonable doubt. [Record
Document 106 at 2]. "It is settled in this Circuit that
issues raised and disposed of in a previous appeal from an
original judgment of conviction are not considered in §
2255 Motions." United States v. Kalish, 780
F.2d 506, 508 (5th Or. 1986) (citing United States v.
Jones, 614 F.2d 80, 82 (5th Or. 1980)). As the Fifth
Circuit heard and rejected Needham's
sufficiency-of-the-evidence claim on appeal,
Needham, 546 Fed.Appx. at 354-55, this Court cannot
now consider it. His motion is denied as to this claim.
Presence During Voir Dire
argues that Washington provided ineffective assistance of
counsel by waiving Needham's right to participate in the
voir dire of individual venire members that took place in the
robing room. [Record Document 106 at 3]. Because the triple
homicide and Needham's subsequent federal weapons charge
had received substantial media coverage, the Court conducted
extensive voir dire of venire members who reported having
heard about or having discussed either the homicide or
Needham's federal case. [Record Documents 57 at 2 and 96
at 67-176]. In addition, the Court engaged in ordinary sorts
of private voir dire questions regarding jurors' criminal
histories, health concerns, and attitudes towards law
enforcement. [Record Document 96 at 67-176]. Ultimately,
twenty-six of the fifty-one venire members were questioned
Needham's criminal history and at the request of the
United States Marshals Service, the Court ordered that
Needham was to be secured in leg irons during the trial.
[Record Document 56]. In order to reduce the risk that these
restraints would prejudice the jury, Needham was always
seated before the jurors entered the courtroom and was only
escorted from the courtroom after they had exited. [Record
Document 96 at 67]. In light of security concerns
Needham's presence in the robing room would have raised,
the Court and counsel agreed that individual voir dire would
take place without Needham's presence. [Record Document
97-1 at 208-09]. Washington expressly waived Needham's
right to be present, and Needham did not object at that time.
[Id. at 209]. Needham now claims that he told his
attorney that he wished to be present at the entire voir
dire, [Record Document 106 at 3], but Washington's
affidavit reflects that he discussed the proposed individual
voir dire procedure with Needham and that Needham voiced no
objection, [Record Document 113-2 at 1-2].
Standard for Ineffective Assistance of Counsel
§ 2255 motion is an acceptable vehicle through which to
raise initial claims of ineffective assistance of trial or
appellate counsel. Massaro v. United States, 538
U.S. 500, 503-04 (2003). To successfully state an
ineffective-assistance-of-counsel claim, a movant must
demonstrate that his attorney's performance was deficient
and that the deficient performance prejudiced his defense.
Strickland v. Washington,466 U.S. 668, 687 (1984).
The movant bears the burden of proof. See Id. If he
fails to establish either prong of the
Strickland' test, then ...