United States District Court, E.D. Michigan, Southern Division
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
J. TARNOW SENIOR UNITED STATES DISTRICT JUDGE.
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 . 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).
thereafter, on June 27, 2016, Petitioner filed this Motion to
Vacate His Sentence Pursuant to 28 U.S.C. § 2255 .
The United States responded on August 18, 2016 .
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  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  on March
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
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.
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
Ineffective Assistance of Trial Counsel
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.
Counsel's Failure to Investigate and Obtain Relevant
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.
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.
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?
Q. RJ is Raynard Crowe?
Q. Yes? Could you say yes or no, please, for ...