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Crowe v. United States

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

April 16, 2019

Raynard Versatile Crowe, Petitioner,
v.
United States of America, Respondent.

         OPINION AND ORDER GRANTING IN PART AND DENYING IN PART PETITIONER'S MOTIONS TO VACATE HIS SENTENCE PURSUANT TO 28 U.S.C. § 2255 [237, 270]; ORDERING THAT MR. CROWE BE RESENTENCED; ORDERING THE PROBATION OFFICER TO PREPARE A NEW PRESENTENCE REPORT; ORDERING THE PARTIES TO FILE NEW SENTENCING MEMORANDA; DENYING MR. CROWE'S REQUEST FOR AN EVIDENTIARY HEARING; AND DENYING A CERTIFICATE OF APPEALABILITY

          ARTHUR J. TARNOW SENIOR UNITED STATES DISTRICT JUDGE.

         On March 21, 2013, a jury convicted Petitioner Raynard Versatile Crowe of conspiracy, bank robbery, pharmacy robbery, using or carrying a firearm during a crime of violence, and felon in possession of a firearm [Dkt. #159]. The Court sentenced Mr. Crowe to 535 months (44 years and 7 months) in prison on June 26, 2013 [183]. The Court of Appeals for the Sixth Circuit affirmed his conviction and sentence on June 8, 2015. See United States v. Crowe, 614 Fed.Appx. 303 (6th Cir. 2015). The Supreme Court denied Mr. Crowe's petition for a writ of certiorari on March 9, 2016. See Crowe v. United States, 136 S.Ct. 1364 (2016).

         Shortly thereafter, on June 27, 2016, Petitioner filed this Motion to Vacate His Sentence Pursuant to 28 U.S.C. § 2255 [237]. The United States responded on August 18, 2016 [245]. Petitioner filed a No. of supplemental materials in support of his original motion between August 26, 2016 and December 21, 2016 [246, 247, 248, 250, 251]. On January 24, 2019, the Court issued an Order [279] denying the Johnson component of Petitioner's Motion, assigning Mr. Crowe counsel, and ordering the United States to respond to his ineffective assistance of counsel and prosecutorial misconduct claims. The respondent filed its supplemental brief [281] on March 15, 2019.

         Factual Background

         The Court adopts the Sixth Circuit's recitation of the facts:

Crowe and [co-defendant Alfred] Wingate were tried for offenses arising from three separate robberies, the first of which occurred at the Citizens Bank in Grosse Pointe Woods, Michigan in May 2011. Six days before the robbery, Crowe opened an account, listing a false address on the application. He recruited Wingate and four others to assist, providing two of them with guns.
On May 18, Crowe, Wingate, and one of their co-perpetrators arrived at Citizens Bank in a minivan belonging to Wingate's fiancée. Crowe entered the bank and withdrew $10 from his account. Crowe then relayed information about the situation inside the bank to Wingate and another co-perpetrator who were waiting outside. A short time later, Wingate and the coperpetrator entered the bank and pulled masks over their faces. Surveillance cameras captured their unmasked faces before they entered. Each pulled out a handgun. The co-perpetrator held a gun to the head of one of the two bank tellers and Wingate-pointing his gun- jumped over the counter to retrieve the money. A customer entered the bank during the robbery and the coperpetrator, pointing the gun at the customer, forced him onto the ground. The two men left the bank with $45, 350 in cash. Crowe later divided the money among all those who had helped with the robbery. The next day, a police officer discovered $1, 543 in cash in Crowe's possession. Days later, Wingate's fiancée deposited $3, 000 in cash that she had received from Wingate.
[Mr. Crowe was acquitted of all charges relating to the second robbery.]
Crowe and Wingate reassembled the group with some new members and planned the third robbery: that of the Ferndale Pharmacy on July 11, 2011. Their main objective was to steal prescription drugs. Crowe gave a firearm to at least one of the group members for use in the robbery. Shortly before closing time, Wingate entered the pharmacy with one of the new coperpetrators, both carrying guns. Crowe remained across the street. Wingate went around the counter to obtain the drugs. At gunpoint, he ordered an employee to put prescription drugs into Wingate's bag. The employee dialed 911 and kept the call connected, with the cell phone in her pocket, while the robbery took place. Meanwhile, the other assailant placed the employees on the ground and tied their hands with zip ties. Carrying the bag filled with drugs, Wingate and the other man went toward the back door. Police officers arrived as they were exiting and, though the two men tried to run, they were soon arrested. Crowe escaped and fled the state but was later arrested in Arizona.

Crowe, 614 Fed.Appx. at 305-06.

         Analysis

         To succeed on a motion to vacate, set aside, or correct sentence, a movant must allege “(1) an error of constitutional magnitude; (2) a sentence imposed outside the 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) (quoting Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003)). Petitioner contends that he was deprived of his Sixth Amendment rights to a fair trial by the inadequacy of his trial and appellate counsel and the misconduct of the prosecuting attorney.

         I. Ineffective Assistance of Trial Counsel

         Mr. Crowe alleges a violation of his constitutional right to the effective assistance of counsel. To establish ineffective assistance of counsel, the movant must show that his counsel rendered deficient performance and thereby prejudiced the movant's defense so as to render the outcome of the proceedings unreliable. See Strickland v. Washington, 466 U.S. 668, 687 (1984). The first Strickland prong requires the movant to show that his counsel's representation “fell below an objective standard of reasonableness.” Id. at 687. The second prong requires showing of prejudice: “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.” Id. at 698.

         A. Counsel's Failure to Investigate and Obtain Relevant Telecommunications Records

         Mr. Crowe argues that his defense counsel was inadequate because he did not obtain exculpatory telecommunication records pertaining to the July 11, 2011 Ferndale pharmacy robbery. In addition to testimony against him, and video of his car at the crime scene, Mr. Crowe had to defend against inculpatory evidence derived from his cell-phone, No. 313-412-1414. Cell-site data from his phone that indicated that he was in the vicinity of the robbery, and data from co-perpetrator's Christian Reid's phone that shows a phone call made the moment the police arrived on the scene. Mr. Crowe's defense was that his partner, Shurita Kennedy, had access to both his truck and his cell phone.

         Pursuant to her plea agreement, Shurita Kennedy testified against Mr. Crowe at trial. Defense counsel cross-examined her on her use of Mr. Crowe's cell-phone, and established that she “sometimes used that phone and…drove that car.” (Dkt. 194, pg. 82). Defense counsel returned to the cell phone later in the cross-examination and conducted the following colloquy.

Q. Okay. And you -- the cell phone, the one that you sometimes used after you --
A. I mean, I didn't use it like that. I ended up buying me another cell phone. So ...
Q. Right. But you in fact used that cell phone. You said you used it to make calls.
A. Yeah.
Q. Right. The one you used to make calls. You know, would you just say to RJ, hey, I want to borrow the phone or would you just take it or how would it work?
It --
Q. RJ is Raynard Crowe?
A. Mm-hmm.
Q. Yes? Could you say yes or no, please, for ...

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