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United States v. Payton

United States District Court, E.D. Michigan, Southern Division

November 30, 2016

UNITED STATES OF AMERICA, Plaintiff-Respondent,
v.
ARTHUR PAYTON, Defendant-Petitioner. Criminal No. 12-20043

          ORDER DENYING MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE [#90]; ORDER DENYING MOTION FOR EVIDENTIARY HEARING AND APPOINTMENT OF COUNSEL [#97]; ORDER DISMISSING CIVIL CASE NO. 16-10425; AND ORDER DENYING CERTIFICATE OF APPEALABILITY

          Denise Page Hood Chief Judge, United States District Court.

         On November 5, 2012, following a trial by jury, Petitioner Arthur Payton was convicted of one count of conspiracy to commit bank robbery and four counts of aiding and abetting bank robbery. Judge Lawrence P. Zatkoff, who presided over the trial, imposed a sentence against Petitioner of 60 months on Count One and 120 months on each of Counts Two through Five, all counts to run consecutive to each other for a total of 540 months. (Doc. No. 71) Petitioner filed a timely appeal of his sentence, and the Sixth Circuit Court of Appeals vacated Petitioner's sentence and remanded the case to Judge Zatkoff by order dated June 12, 2014, with a mandate issued on July 10, 2014. (Doc. Nos. 81 and 82, respectively)

         After Judge Zatkoff recused himself, this case was randomly reassigned to the undersigned on October 24, 2014. (Doc. No. 86) On February 26, 2015, Petitioner's re-sentencing hearing was conducted and the Court imposed a sentence of 60 months on Count 1 and 240 months on Counts 2-5, to run concurrent with Count 1. (Doc. No. 89) Petitioner did not appeal his re-sentence, but on February 5, 2016, he filed the instant Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255. (Doc. No. 90) Petitioner contends that his trial and appellate counsel were ineffective. The Government filed a response, and Petitioner filed a reply. (Doc. Nos. 101 and 102, respectively) On March 11, 2016, Petitioner filed a Motion for Evidentiary Hearing and Appointment of Counsel. (Doc. No. 97) The Government has not filed a response to the Motion for Evidentiary Hearing and Appointment of Counsel, though it did state in its response to the Motion to Vacate that the Motion to Vacate “should be summarily denied without an evidentiary hearing.” (Doc. No. 101, PgID 1424)

         I. BACKGROUND

         Petitioner was indicted and later convicted with respect to aiding and abetting four bank robberies during October and November of 2011 and with conspiracy to commit bank robbery. At trial, the Government introduced evidence that Petitioner organized and coordinated the robberies and that he recruited co- defendant Nancy Barta (“Barta”), a drug-addict and prostitute, to physically rob the banks. Evidence also was introduced that Petitioner: (a) promised Barta $1, 000 per bank robbed; (b) handled all of the planning for the robberies; (c) scouted the banks; established escape routes and “rendezvous” locations; (d) provided Barta with a disguise for each robbery (wig, sunglasses, large sweatshirt, gloves and a large bag); (e) dropped Barta off about one block away from the bank; (f) told Barta what to do once she was inside the bank; (g) drafted the demand notes used in the robberies; (h) reunited with Barta at the agreed upon rendezvous point where he received the money; and (i) divided up the proceeds as he saw fit.

         Petitioner was twice convicted of bank robbery/aiding and abetting prior to this case. On June 2, 2004, Petitioner pleaded guilty before the undersigned to seven counts of bank robbery/accessory in violation of 18 U.S.C. §2113(a) (“2002 Robberies”) and received a 120 month sentence. During a confession to law enforcement officials and his subsequent plea colloquy, Petitioner admitted that: (1) he met and recruited female drug-addicted prostitutes in need of money to rob the seven banks; (2) he met them on Michigan Avenue and/or Grand River Avenue in Detroit; (3) he told them a story to make them believe that robbing banks was not risky and promised them $1, 000 for each bank robbed; (4) he drove each of the women to the banks for the robberies; (5) he provided the women with disguises; (6) he gave them instructions on what to do once inside the bank; and (7) he was responsible for dividing up the proceeds between himself and each of the women. See Dkt. 52, ex. 2-4. Two of the physical bank buildings Petitioner robbed in 2002 are banks involved in this case, though they now different names.

         The first of the 2002 Robberies took place less than six months after Petitioner began his term of supervised release following another conviction for substantially similar conduct in connection with six bank robberies that occurred in San Diego, California in 1993 (“1993 Robberies”). Like the women recruited for the 2002 Robberies, the women whom Petitioner recruited to execute the 1993 Robberies were drug-addicted prostitutes. Petitioner received a 120 month sentence on January 31, 1994. Following his conviction in the 1993 Robberies, Petitioner wrote to Oprah Winfrey, convincing her to put him on her show (on an episode titled “Women Coerced into Robbing Banks”). The three women Petitioner recruited for the 1993 Robberies also appeared on the show.

         After Judge Zatkoff granted the Government's motion in limine to allow evidence of the 1993 and 2002 Robberies, the Government introduced such evidence at trial by way of: (1) testimony from Victor Lauria of the Novi Police Department, who testified with respect to the 2002 Robberies and Petitioner's statements made in connection with them; (2) Petitioner's signed admission and a portion of his June 2, 2004, plea colloquy; and (3) testimony from Special Agent Brett Leatherman (“SA Leatherman”) regarding the statements Petitioner made on the Oprah Winfrey show about the 1993 Robberies.

         II. LEGAL STANDARDS

         A. 28 U.S.C. § 2255

28 U.S.C. § 2255 authorizes a federal prisoner to move the district court to vacate a sentence. 28 U.S.C. § 2255(a). A defendant seeking relief under § 2255 “must allege as a basis for relief: (1) an error of constitutional magnitude; (2) a sentence imposed outside statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid.” Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006) (citing Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003)). When raising claims alleging errors of constitutional magnitude, a defendant must show that the constitutional error had a substantial and injurious effect or influence on the proceedings. Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993); Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999). Further, relief under § 2255 requires a showing of “a fundamental defect which inherently results in a complete miscarriage of justice.” Davis v. U.S., 417 U.S. 333, 346 (1974).

         B. Ineffective Assistance of Counsel Claim

         Under the Sixth Amendment, a defendant has a right to “have the assistance of counsel for his defense.” U.S. Const. Amend. VI. A defendant under the Sixth Amendment has a right to “reasonably effective assistance of counsel.” Strickland v. Washington, 466 U.S. 668, 687 (1984). In Strickland, the Supreme Court articulated a two-prong test for ineffective counsel:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown of the adversary process that renders the result unreliable.

Id. “There is a strong presumption that legal counsel is competent, ” United States v. Osterbrock, 891 F.2d 1216, 1220 (6th Cir. 1989), and “falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. A “reviewing court must give a highly deferential scrutiny to counsel's performance.” Ward v. United States, 995 F.2d 1317, 1321 (6th Cir. 1993). Further, “[t]he reasonableness of counsel's performance is to be evaluated from counsel's perspective at the time of the alleged error and in light of all the circumstances.” Kimmelman v. Morrison, 477 U.S. 365, 384 (1986). “The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.

         III. ANALYSIS OF § 2255 MOTION

         A. Use of Transcripts During Jury Deliberations

         As the first ground for relief, Petitioner contends that trial and appellate counsel were ineffective because they failed to object to and appeal, respectively, the jury's improper use of unadmitted transcripts during deliberations.

         The Court notes that trial counsel objected to the use of the transcript during the Government's case-in-chief, when the relevant pages of the transcript were handed out to jurors to be utilized in conjunction with the playing of the recording of a conversation between Barta and Petitioner. Petitioner's counsel did stipulate that the transcript was a fair and accurate translation of the dialogue on the recording. The transcripts were collected immediately after the recording was played during the Government's case-in-chief.

         When the jury asked to see the transcript during deliberations, Judge Zatkoff permitted the playing of the relevant portion of the recording and, as occurred when the recording was played during the Government's case-in-chief, the transcripts were distributed to the jurors for their use while the recording was played. Petitioner's counsel did not renew his objection to the use of the transcripts by jurors when the recording was ...


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