United States District Court, Middle District of Alabama, Southern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
WALLACE CAPEL, JR. UNITED STATES MAGISTRATE JUDGE
This matter is before the court on a motion by Steven Michael Capshaw (“Capshaw”) to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.
On April 16, 2010, a jury found Capshaw guilty of using or causing the use of a facility of interstate commerce (a telephone) with intent to commit murder-for-hire, in violation of 18 U.S.C. § 1958. On December 2, 2010, the district court sentenced Capshaw to 120 months in prison.
Capshaw appealed, raising the following claims in the Eleventh Circuit:
1. The Government did not present sufficient evidence that, independent of Government intervention, he used a telephone in the commission of the offense.
2. To the extent the Government established that he used a telephone, the jurisdictional element was “manufactured” by the Government.
3. At sentencing, his offense level should not have been increased for obstruction of justice based on his trial testimony.
Ex. X at 1.
On September 7, 2011, the Eleventh Circuit Court of Appeals issued an opinion affirming Capshaw’s conviction and sentence. United States v. Capshaw, 440 F. App’x 738 (11th Cir. 2011). Capshaw filed a petition for a writ of certiorari in the United States Supreme Court, which that court denied on January 12, 2012. Capshaw v. United States, 132 S.Ct. 1121 (2012).
On June 19, 2012, Capshaw, proceeding pro se, filed a motion under 28 U.S.C. § 2255 asserting the following as grounds for relief:
1. His arrest on a criminal complaint deprived him of his right to due process, because–
(a) there was unnecessary delay in his being brought before a magistrate judge after his arrest; and
(b) the affidavit that was submitted in support of the criminal complaint contained a false statement.
2. His conviction was obtained through an unlawful search and seizure in violation of his Fourth Amendment rights, specifically through–
(a) an unlawful inventory search of his vehicle;
(b) an unlawful warrantless search of cell phone records;
(c) a false statement in the affidavit that was submitted in support of obtaining the warrant to search his residence;
(d) an error in the address listed on the warrant to search his residence; and
(e) the warrantless search of the contents of his wallet after his arrest.
3. His counsel rendered ineffective assistance by–
(a) failing to challenge his arrest on a criminal complaint based on the delay in his being brought before a magistrate;
(b) failing to argue that the affidavit submitted in support of the criminal complaint contained a false statement;
(c) failing to challenge the inventory search of his vehicle;
(d) failing to challenge the warrantless search of his and other individuals’ cell phone records;
(e) failing to challenge the validity of the affidavit submitted in support of obtaining the warrant to search his residence and the erroneous address listed on the search warrant;
(f) failing to properly impeach trial witnesses;
(g) failing to challenge the authenticity of recordings admitted in evidence at trial;
(h) failing to have him present during jury selection;
(i) failing to object to the Government attorney’s reference to post-arrest correspondence between Capshaw and his son;
(j) failing to challenge the admission of a camouflage cap at trial;
(k) failing to challenge the reasonableness of his sentence;
(l) failing to obtain a plea agreement;
(m) failing to object to Brady and Giglio violations by the Government;
(n) failing to challenge the chain of custody as to evidence seized from his vehicle;
(o) failing to adequately prepare for trial and pursuing a flawed strategy;
(p) failing to obtain a transcript of his detention hearing for use to impeach witnesses at trial; and
(q) “abandoning” him after the appeal process.
Doc. No. 1 at 3-20.
On November 12, 2012, Capshaw filed an amendment to his § 2255 motion, asserting a claim that his right to a public trial was violated when jury selection was closed to the public. Doc. No. 18.
The Government maintains that Capshaw’s claims are either procedurally barred or without merit and that, consequently, he is not entitled to any collateral relief. See Doc. Nos. 10 & 20. Capshaw has replied in opposition to the Government’s submissions. See Doc. Nos. 13 & 22. After due consideration of Capshaw’s § 2255 motion, the submissions supporting and opposing the motion, and the record in this case, the court concludes that an evidentiary hearing is not required and that, pursuant to Rule 8(a), Rules Governing Section 2255 Proceedings in the United States District Courts, the § 2255 motion should be denied.
II. TRIAL EVIDENCE
Because an understanding of the factual background of this case is useful in understanding some of Capshaw’s present claims, this court quotes the summary of the pertinent trial evidence set forth by the Eleventh Circuit in its opinion affirming Capshaw’s conviction.
In August 2009, Defendant Capshaw’s wife, Sandra Capshaw (“Sandra”), told him that she wanted a divorce and then moved out of the family home into an apartment. Although Capshaw had very infrequent contact with his sister, Karen Whitaker, Capshaw called Karen in early October 2009 and asked to meet her at the Farm Center. Karen then called her daughter (and Capshaw’s niece), Nathina Whitaker, and asked her to be at the Farm Center meeting too.
At the meeting, Defendant Capshaw told his sister Karen that he and his wife Sandra were getting a divorce and that he wanted his wife taken out of the picture. At some point, Karen’s daughter, Nathina, arrived. Karen explained to Nathina that Defendant Capshaw wanted to kill his wife and asked Nathina whether she knew anyone who would do it, or if she would be willing to do it herself.
There is conflicting evidence as to whether Nathina agreed to participate in the plot. Nathina testified that: (1) she told her mother and Capshaw they were crazy; (2) she left, and afterward, Capshaw tried to contact her numerous times by phone; and (3) Nathina did not return his calls. However, there is also evidence in the record that Nathina accepted $2500 from Capshaw.
Meanwhile, on October 28, 2009, police, acting on a tip, contacted Nathina and interviewed her about a possible murder-for-hire plot. Nathina agreed to cooperate with their investigation. The next morning, while investigators conducted video and audio surveillance, Nathina went to her mother Karen’s house to talk about Capshaw’s wanting to kill his wife. Karen told Nathina to call Capshaw.
That afternoon, with investigators recording, Nathina called Defendant Capshaw on a cell phone and told him she had “somebody that can do that for you.” Capshaw suggested they meet at Lowe’s, where Capshaw was working. After the call ended, Nathina’s boyfriend, Tate O’Neal, volunteered to pose as the “hitman” and go with Nathina to Lowe’s.
Nathina and O’Neal were wired with video and audio recording devices and, while under police surveillance, went to Lowe’s and met with Defendant Capshaw. O’Neal and Capshaw discussed Sandra’s apartment and possible payment. Capshaw agreed to call O’Neal after he got off work to arrange a second meeting to show O’Neal the area around Sandra’s apartment.
Later that evening, Defendant Capshaw called O’Neal at the cell phone number Nathina had used to call Capshaw earlier. Capshaw told O’Neal he was ready to meet. O’Neal stalled Capshaw until he could report to investigators, at which point O’Neal returned Capshaw’s call in the presence of law enforcement and while the call was recorded. Capshaw and O’Neal arranged to meet at Nurse-Temps, another place where Capshaw worked.
O’Neal and his car were equipped with video and audio recorders. Then, O’Neal drove to Nurse-Temps and picked up Capshaw. Following Capshaw’s directions, O’Neal drove to Sandra’s apartment complex. Capshaw pointed out Sandra’s apartment, a secluded place for O’Neal to park his car, routes for an easy getaway and a nearby motel where O’Neal could go to clean up after the murder. Capshaw gave O’Neal Sandra’s work schedule and said he did not care how O’Neal killed Sandra as long as she was dead. When O’Neal suggested using a gun with a silencer, Capshaw suggested using a knife or machete, which would be quieter. When they drove back to Capshaw’s car, Capshaw gave O’Neal a knife and a box of latex gloves.
Defendant Capshaw testified in his own defense and denied that he was involved in a plot to kill his wife. According to Capshaw, Nathina threatened to harm Capshaw and his son unless Capshaw paid her for killing Sandra. Capshaw admitted giving Nathina money on multiple occasions to ensure that nothing happened and claimed his meetings with Nathina and O’Neal were to gather enough information to go to the police. Capshaw contended he gave O’Neal the knife and gloves “to get something in [O’Neal’s] vehicle” so the police would know Capshaw was telling the truth. Defendant Capshaw claimed he was on his way to the police to report the plot when he was arrested.
United States v. Capshaw, 440 F. App’x 738, 740-41 (11th Cir. 2011).
A. Substantive Claims in § 2255 Motion
Capshaw’s § 2255 motion includes substantive claims that his arrest on a criminal complaint deprived him of his Fifth Amendment right to due process (Doc. No. 1 at 6-12)and that his conviction was obtained through a search and seizure that violated his Fourth Amendment rights (Doc. No. 1 at 3-6). These are claims that Capshaw could have raised on direct appeal, but did not.
Ordinarily, if an available claim is not advanced on direct appeal, it is deemed procedurally barred in a § 2255 proceeding. See Mills v. United States, 36 F.3d 1052, 1055-56 (11th Cir. 1994); Greene v. United States, 880 F.2d 1299, 1305 (11th Cir. 1989). A petitioner can avoid this procedural bar only by showing both cause for the failure to raise the claim on direct appeal and actual prejudice arising from that failure. See United States v. Frady, 456 U.S. 152, 167-68 (1982); Mills, 36 F.3d at 1055.
Capshaw suggests that the ineffective assistance of his appellate counsel is the cause for his failure to raise these claims on direct appeal. See Doc. No. 1 at 6 & 12. What is more, he presents independent claims of ineffective assistance of trial counsel predicated on these same allegations regarding his arrest on a criminal complaint and the allegedly unlawful searches and seizures. See Doc No. 1 at 13-14. This court will therefore address the underlying substantive claims in the context of Capshaw’s related claims of ineffective assistance of counsel. These and all of Capshaw’s ineffective-assistance claims are reviewed below in this Recommendation (see Part III.B).
B. Ineffective Assistance of Counsel
A claim of ineffective assistance of counsel must be evaluated against the two-part test announced in Strickland v. Washington, 466 U.S. 668 (1984). First, a petitioner must show that “counsel’s representation fell below an objective standard of reasonableness.” Id. at 689. Second, the petitioner 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 694. See Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000).
Scrutiny of counsel’s performance is “highly deferential, ” and the court indulges a “strong presumption” that counsel’s performance was reasonable. Chandler, 218 F.3d at 1314 (internal quotation marks omitted). The court will “avoid second-guessing counsel’s performance: It does not follow that any counsel who takes an approach [the court] would not have chosen is guilty of rendering ineffective assistance.” Id. (internal quotation marks and brackets omitted). Thus, “[g]iven the strong presumption in favor of competence, the petitioner’s burden of persuasion – though the presumption is not insurmountable – is a heavy one.” Id.
As noted, under the prejudice component of Strickland, a petitioner must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different” Strickland, 466 U.S. at 694. A “reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. The prejudice prong does not focus only on the outcome; rather, to establish prejudice, the petitioner must show that counsel’s deficient representation rendered the result of the trial fundamentally unfair or unreliable. See Lockhart v. Fretwell, 506 U.S. 364, 369 (1993) (“[A]n analysis focusing solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective.”). “Unreliability or unfairness does not result if the ineffectiveness of counsel does not deprive the defendant of any substantive or procedural right to which the law entitles him.” Id. at 372.
Unless a petitioner satisfies the showings required on both prongs of the Strickland inquiry, relief should be denied. Strickland, 466 U.S. at 687. Accordingly, once a court decides that one of the requisite showings has not been made, it need not decide whether the other one has been. Id. at 697; Duren v. Hopper, 161 F.3d 655, 660 (11th Cir. 1998).
A criminal defendant’s right to effective assistance of counsel continues through direct appeal. See Evitts v. Lucey, 469 U.S. 387, 396 (1985). Ineffective assistance of appellate counsel may be shown if the movant can “establish . . . that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker. . . . Generally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome.” Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994).
The Supreme Court has held a criminal defendant’s appellate counsel is not required to raise all nonfrivolous issues on appeal. Jones v. Barnes, 463 U.S. 745, 751-54 (1983). In so holding, the Court noted, “[e]xperienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues.” Id. at 751-52. Therefore, it is difficult for a defendant to show his counsel was ineffective for failing to raise certain issues on appeal, particularly if counsel did present other strong issues. Smith v. Robbins, 528 U.S. 259, 287-88 (2000).
1.Arrest on Criminal Complaint
Capshaw contends that his trial and appellate counsel rendered ineffective assistance by failing to challenge his arrest on a criminal complaint based on unnecessary delay in his being brought before a magistrate judge. Doc. No. 1 at 12-13; see also Doc. No. 1 at 7. He also argues that trial and appellate counsel were ineffective for failing to challenge the validity of the affidavit submitted in support of the criminal complaint on the ground that it contained a false statement regarding the settled-upon price for the murder-for-hire. Id. at 13; see also Id . at 7-10.
Capshaw asserts that there was unnecessary delay between his arrest on the criminal complaint and his presentment before a magistrate judge, which he says violated the Federal Rules of Criminal Procedure and deprived him of his right to due process. Doc. No. 1 at 12-13; see also Doc. No. 1 at 7. He maintains that his trial and appellate counsel were ineffective for failing to raise this claim. Id.
Federal Rule of Criminal Procedure 5 requires that “[a] person making an arrest within the United States must take the defendant without unnecessary delay before a magistrate judge, or before a state or local judicial officer as Rule 5(c) provides[.]” Fed. R. Crim. P. 5(a)(1)(A). Rule 5(c) provides that “[i]f the defendant is arrested in the district where the offense was allegedly committed[, ] . . . the initial appearance must be in that district; and . . . if a magistrate judge is not reasonably available, the initial appearance may be before a state or local judicial officer.” Fed. R. Crim. P. 5(c)(1)(A) - (B). The purpose of Rule 5 “is to have a judicial officer advise the defendant of his constitutional rights and thereby to prevent administrative dete[n]tion without probable cause and to reduce the opportunity for third-degree practices.” United States v. Mendoza, 473 F.2d 697, 702 (5th Cir. 1973). The only remedy the Eleventh Circuit has recognized for a violation of Rule 5 is the suppression of evidence obtained as a result of the violation. See United States v. Carruthers, 458 F. App’x 811, 818 (11th Cir. 2012) (citing Mendoza, 473 F.2d at 702).
The record indicates that on Friday, October 30, 2009, Douglas W. Carr, a special agent with the FBI, submitted an affidavit in support of a federal criminal complaint to U.S. Magistrate Judge Charles S. Coody, presenting facts in support of Capshaw’s arrest for plotting to have his estranged wife, Sandra Capshaw (“Sandra”), murdered by another person in return for payment. Ex. A at 1-6. Judge Coody found that the affidavit presented probable cause for petitioner Capshaw’s arrest and authorized his arrest. Id.; see also Case No. 1:09cr188-MEF, Doc. No. 3.
Capshaw was arrested in his car in Dothan, Alabama, on the afternoon of October 30, 2009, at around 12:15 p.m. TTr.-Vol. II at 165, 169. He was questioned by law enforcement agents that afternoon, sometime after 2:00 p.m. Id. After waiving his Miranda rights, he denied any involvement in a plan to have his wife killed. On Monday, November 2, 2009, the first business day after his arrest, Capshaw was transported to the United States District Courthouse in Montgomery, Alabama, where he was brought before a magistrate judge for an initial appearance. See Case No. 1:09cr188-MEF, Doc. Nos. 4 & 5.
Capshaw fails to specify the evidence due to be suppressed because of the alleged violation of Fed. R. Crim. P. 5. More significantly, he fails to demonstrate that there was an unnecessary delay that violated Rule 5. Capshaw was arrested on the criminal complaint on a Friday afternoon in Dothan, Alabama, and was brought before a magistrate judge in Montgomery, Alabama, the following Monday, the first business day after his Friday arrest. Although he appears to suggest that he might have been more quickly brought before a state or local judicial officer, see Fed. R. Crim. P. 5(c), Capshaw was arrested in the Middle District of Alabama, and a federal magistrate judge was “reasonably available” for his initial appearance.
Capshaw demonstrates no basis for his trial and appellate counsel to argue that his rights were violated by unnecessary delay between his arrest on the criminal complaint and his presentment before the magistrate judge. Nor does he demonstrate how he was prejudiced by his counsel’s failure to raise this issue. Consequently, he is not entitled to any relief based on this claim of ineffective assistance of counsel.
False statement in affidavit
Capshaw next asserts that Special Agent Carr’s affidavit submitted in support of the criminal complaint falsely stated that Capshaw and Timothy “Tate” O’Neal had agreed on a price of $3, 000 for O’Neal to carry out the murder of Sandra, to be paid once Capshaw received a payout from Sandra’s life insurance policy. Doc. No. 1 at 7-10; see Ex A at 5. According to Capshaw, there was no evidence that he and O’Neal agreed on an amount to be paid for the planned murder. Capshaw maintains that the allegedly false statement by Agent Carr ...