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Cartman v. United States

United States District Court, N.D. Georgia, Atlanta Division

January 19, 2018

ANTHONY VINCENT CARTMAN, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER AND FINAL REPORT AND RECOMMENDATION MOTION TO VACATE 28 U.S.C. § 2255

          LINDA T. WALKER CHIEF JUDGE.

         Movant is a federal prisoner who, pro se, challenges under 28 U.S.C. § 2255 his judgment of conviction. (Doc. 291.) [1] Respondent filed a brief opposing the motion, (doc. 301), and Movant filed a reply, (doc. 305). Movant also filed a motion for leave to expand the record with unidentified affidavits. (Doc. 307.) For the reasons discussed below, the undersigned denies the motion to expand the record and recommends that the § 2255 motion and a certificate of appealability be denied.

         I. Background

         In December 2010, a grand jury indicted Movant and three co-defendants for crimes regarding the illegal purchase of firearms. (Doc. 1.) The original indictment charged Movant with one count of conspiring with his co-defendants to knowingly cause false representations to be made with respect to information required to be kept in the records of a federal firearms licensee ("FFL") and seven counts of knowingly causing such false representations to be made. (Id.)

         Movant was a fugitive at the time the indictment issued. Law enforcement arrested him in New York in August 2011, and he first appeared before this Court on August 22, 2011. (Docs. 79, 80.)

         On May 8, 2012, two weeks before trial began, a grand jury issued a superseding indictment. (Doc. 151.) That indictment charged Movant with the same crimes as the original indictment and added five counts of unlawful possession of a frearm by a convicted felon. (Id.) The firearms at issue in those five counts were the same ones at issue in the counts charging false representations in the records of the FFLs. (Id.) All of the firearms at issue in this case were Taurus handguns. (Id.)

         The conspiracy count alleged a violation of 18 U.S.C. § 371, the federal conspiracy statute. (Doc. 151 at 1-9.) The Court refers to that charge as simply the conspiracy charge. The seven counts of causing false representations to be made in FFL records alleged violations of 18 U.S.C. § 924(a)(1)(A), which makes such conduct a crime, and 18 U.S.C. § 2, which prohibits aiding and abetting the commission of a crime. (Id. at 9-13.) The Court refers to those charges as the "FFL Charges." The five counts of unlawful possession of guns by a felon alleged violations of 18 U.S.C. § 922(g), which makes such possession a crime. (Id. at 14-16.) The Court refers to those charges as the "Possession Charges." Attorney Samuel Little was appointed to represent Movant in this case. (Doc. 82.) When Movant quickly expressed reservations about Little and a possible desire to proceed pro se, the undersigned held hearings in September 2011. (Docs. 243, 273.) At the second of those hearings, Respondent's counsel informed Movant and the Court that Respondent intended to seek a superseding indictment that would add the Possession Charges and significantly increase the maximum sentence if Movant was convicted. (Doc. 273 at 3-4.) Movant stated at that hearing that he wanted Little to represent him. (Id. at 7-8, 12.)

         In February 2012, Movant filed documents pro se suggesting that he wanted new counsel, so the undersigned held another hearing. (Doc. 244.) Movant indicated at that hearing that he wanted to continue with Little as his lawyer. (Id. at 13-14.)

         Two weeks before trial in May 2012, Little filed a motion to withdraw because Movant refused to communicate with him. (Doc. 149.) The Court held a lengthy hearing on that motion on May 9, 2012. (Doc. 245.) The Court concluded that Little would continue to represent Movant and later issued an Order explaining why, under Faretta v. California, 422 U.S. 806 (1975), the Court found that Movant had not validly waived his right to counsel. (Id.; Doc. 248 at 4-21.) The trial was then conducted from May 21, 2012, to May 24, 2012. (Docs. 217 through 219.)

         In the Order just referenced, the Court summarized the trial evidence:

[Movant] was tried before a jury, convicted, and sentenced to 137 months in prison. The facts of the case were fairly simple. As found by the jury, [Movant], along with his co-conspirator, Tchaka Shields, exploited two women with whom [Movant] was romantically involved, to make straw purchases of firearms in the Atlanta area. [Those women were Casita Q. Washington and Erron Denise Love.] Movant could not legitimately make these purchases, as he was a convicted felon, having previously been convicted of conspiracy to distribute crack cocaine and of being a felon in possession of a firearm.
The evidence indicated that [Movant] and his co-conspirator [Shields] purchased these guns in order to sell them in the Boston area, which they did. Based on this conduct, [Movant] was convicted of causing false representations as to the true purchaser of firearms to be recorded in a federal firearms transaction record, as well as being a felon in possession of these firearms. [Movant's] three co-defendants pled guilty reasonably quickly after the filing of the indictment. [Movant], however, remained a fugitive for eight months, and his proceedings began thereafter.

(Doc. 248 at 1-2.)

         Only Respondent presented evidence at trial. That evidence consisted of twenty-one witnesses, documentation of all the gun purchases, three of the guns, photos of a few of the other guns, maps of the area where seven of the guns were recovered, written and electronic communications between Movant and Washington and Love, Love's and Washington's written statements to law enforcement, and other documents. (See Doc. 217 at 2; Doc. 218 at 2-3; Doc. 219 at 2; Doc. 257.) The witnesses were Washington and Love, the three FFLs from whom the guns were purchased or attempted to be purchased, managers of the five locations where the guns were purchased at gun shows, five Boston police officers who recovered five of the guns, a Massachusetts State Trooper who recovered one of the guns, a Rhode Island State Trooper who recovered one of the guns, two DeKalb County police officers, a Facebook employee who authenticated electronic messages between Movant and Love, and the agent from the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") who led the case investigation. (Docs. 217 through 219.) The ATF agent, Jason Stricklin, testified twice and sat with Respondent's counsel throughout the trial. (Doc. 218 at 159-70; Doc. 219 at 20-62.)

         The first two FFL charges in the superseding indictment were for Love's and Washington's attempted purchase of guns at The Gun Store in Doraville, Georgia. (Id. at 9-10.) Love testified that on March 11, 2009, Movant gave her money to buy guns from that store and accompanied her to the store. (Doc. 218 at 191-94; Doc. 257-1.) Washington testified that on March 12, 2009, Movant took her to the store, gave money to Shields that Shields later gave her, and asked her to buy guns for Shields. (Doc. 218 at 60-64, 90-91; Doc. 257-2.) The FFL at The Gun Store testified that the store refused to sell guns to Love and Washington on those occasions. (Doc. 218 at 29-30.) That FFL then reported the attempted purchases to the ATF, which initiated the investigation that led to this case. (Id. at 30-32.)

         The other five FFL charges were for Love's and Washington's successful purchases of guns from gun shows. Washington testified that she went to a gun show with Movant on March 14, 2009, where she bought three guns Movant selected with money that Movant gave her. (Doc. 218 at 64-66, 83, 89, 94; Docs. 257-5, 257-6, 257-19.) Washington gave those guns to Movant. (Doc. 218 at 90.) Movant asked Washington to buy more guns after that date, telling her that he and Shields could make money by selling the guns on the street. (Id. at 66-67.) Washington refused. (Id.)

         Around the same time, in April and May 2009, Movant told Washington that he had traveled to Boston and that he had an automobile accident in Boston. (Id. at 72-73.) In September 2009, while he was in jail in Cherokee County, Georgia, Movant wrote Washington a letter, which she testified she received.[2] (Id. at 74-7 5, 86, 93; Doc. 257-8.) In that letter, which was admitted as evidence at trial, Movant told Washington he needed more money for when he got out of jail, was waiting on money from "that boston accident, " and that he "[g]otta hit the gun show and fill two orders." (Doc. 257-8 at 1.)

         Love testified that she went to four gun shows and bought a total of fifteen guns at those shows at Movant's request. (Doc. 218 at 188, 194, 212, 232.) Love purchased three guns at each of three gun shows on March 21, 2009, April 18, 2009, and April 26, 2009. (Id. at 187-91, 194-98.) Movant and Shields accompanied Love on those three occasions, Shields gave Love the money and told her which guns to buy, and Love gave the guns to Shields upon exiting the gun shows. (Id.; Docs. 257-12 through 257-16.) Love purchased six guns at a gun show on May 3, 2009, accompanied by only Shields. (Doc. 218 at 198-200; Docs. 257-17, 257-18.) Love never saw any of the fifteen guns after giving them to Shields outside the gun shows. (Doc. 218 at 199-200.)

         Love testified that she went to Boston with Movant and Shields, in Movant's van, on three to four occasions between March and May 2009 and that each trip lasted three to four days. (Doc. 218 at 200, 224.) Before making those trips, Movant told Love they were going to Boston so Shields could show the guns to people there. (Id. at 201.) Love did not see any guns on any of those trips and was not with Movant throughout the time in Boston. (Id. at 201-04, 228-30.) Movant took duffel bags on those trips, but Love did not know what was in those bags. (Id.)

         Law enforcement officials from Massachusetts testified that they recovered in Boston, during traffic stops or in response to police reports, five of the guns Love bought and one of the guns Washington bought, and records confirmed they were the same guns. (Id. at 97-149, 153-58; Docs. 257-7, 257-15, 257-19.) A law enforcement official from Rhode Island testified that he recovered another of the guns Love bought in a traffic stop in Rhode Island, and records confirmed it was the same gun. (Doc. 218 at 149-53; Doc. 257-14.)

         Love testified that Movant told her to falsely report to the police that the guns she purchased at the gun shows had been stolen. (Doc. 218 at 186-88, 228, 230-31.) Love reported the guns purchased on March 21, 2009 as stolen. (Id.)

         Love testified that when she bought the guns in 2009, Movant and Shields were living together in DeKalb County, apart from Love. (Id. at 185.) At that time, Love was in a close and intimate relationship with Movant going on approximately seventeen years. (Id. at 185, 189, 198.) Washington also testified that Movant lived with Shields in DeKalb County in March 2009 and that she visited Movant at his and Shields' home. (Id. at 55-56, 59-60, 69-70; Doc. 257-31.) DeKalb County police officers testified that they responded to two reports of burglary at the home where Movant and Shields lived, once in 2007 and again in 2008, and that Movant was present on the second occasion. (Doc. 219 at 4-7.)

         The jury convicted Movant of all counts of the superseding indictment. (Doc. 170.) Before sentencing, Movant filed documents demanding to proceed pro se. (Doc. 185.) In a series of Orders, the Court informed Movant it would appoint new counsel for him for sentencing if he wished, informed him of pre-sentencing procedures, and gave him additional time to make a decision on representation. (Docs. 187, 189, 202, 203, 204.)

         The Court ultimately allowed Movant to represent himself at the sentencing hearing, which occurred on February 13, 2013. (Doc. 253.) "Prior to that hearing, the [Court] read the entire trial transcript to ensure that any enhancements recommended in the PSR [Presentence Investigation Report] could be supported by the record. "[3] (Doc. 248 at 25.) Given the numerous motions Movant filed pro se before and after the sentencing hearing, the Court entered judgment on June 5, 2013, and issued an Order addressing those motions the same day. (Docs. 248, 249.)

         The Court sentenced Movant to seventeen months' imprisonment on the conspiracy charge and FFL Charges and an additional 120 months on the Possession Charges, for a total of 137 months. (Doc. 249.) The Court denied Movant's motions, including his motion for dismissal based on a violation of his right to a speedy trial. (Doc. 248.)

         Movant filed a notice of appeal. (Doc. 251.) The U.S. Court of Appeals appointed attorney David M. Stewart to represent Movant on appeal. (Docs. 277, 278.) Movant claims in his § 2255 motion that he never accepted Stewart and that he filed, pro se, his own appellate brief that raised many more issues than the brief Stewart filed. (Doc. 291-1 at 16-18, 27-31.)

         Stewart raised two issues on appeal. United States v. Cartman, 607 Fed.Appx. 888, 889 (11th Cir. 2015). Those issues were that Movant was improperly denied the right to represent himself at trial, in violation of the Sixth Amendment to the U.S. Constitution, and that his sentence was unreasonable because of the disparity between his sentence and Shields' sentence. Id. The Court of Appeals rejected both arguments, finding that Movant "did not validly waive his right to counsel, " the Court "did not err in denying [Movant] the right to self-representation, " and Movant's prison sentence "was substantively reasonable" despite being 100 months greater than Shields' sentence. Id. at 890-91.

         Movant raises several claims in his § 2255 motion. (Docs. 291, 291-1.) Movant discussed many claims multiple times throughout his lengthy motion. (Id.) The Court organizes the claims as follows, with citations to the motion:

1. Movant is actually innocent because Respondent neither alleged nor proved that there was United States territorial jurisdiction over this case or that the Court had in personam jurisdiction over Movant (Doc. 291 at 20-25, 33-41, 52-54, 63);
2. Little did not have authority to represent Movant and was forced on him just before trial (Doc. 291 at 54-56; Doc. 291-1 at 14-15, 19-25);
3. Movant's right to a speedy trial was violated because the superseding indictment issued more than seventy days after his arrest, and he was tried too soon because trial began less than thirty days after the superseding indictment issued (Doc. 291-1 at 26-27);
4. Movant was improperly denied release on bond because he did not have a history of escape (Doc. 291-1 at 12-13);
5. The evidence presented at trial was insufficient to support the convictions on the Possession Charges (Doc. 291 at 25-33, 46-49; Doc. 291-1at 1-5);
6. The Court's jury instructions were improper because they allowed for conviction of the Possession Charges even if Movant possessed the guns simultaneously and because they did not instruct the jury on the essential elements of jurisdiction and dominion, control, or ownership of guns (Doc. 291 at 42-45, 49-51, 63-65);
7. The Court violated the Federal Rules of Evidence by allowing testimony at trial from witnesses other than Washington and Love while denying Movant the opportunity to present witnesses, by allowing Love and Washington to testify about Movant's past conduct, and by admitting evidence of Movant's written communications with Washington and Love (Doc. 291-1 at 6-8, 9-11);
8. Respondent improperly vouched for ATF Agent Jason Stricklin by having him both testify and sit with Respondent's counsel during trial (Doc. 291 at 62);
9. At trial, Respondent's counsel improperly stated in his opening statement that seven guns were recovered at crime scenes and improperly referred in his closing argument to violent drug gangs (Doc. 291-1 at 9);
10. The Court erred by not conducting a hearing pursuant to Pate v. Robinson, 383 U.S. 375 (1966) to determine whether Movant was competent to represent himself at sentencing (Doc. 291-1 at 51-53);
11. The Court improperly enhanced, under the U.S. Sentencing Guidelines, Movant's sentence for trafficking guns, when Movant was not charged with, and there was no evidence of, such trafficking (Doc. 291 at 66; Doc. 291-1 at 1, 10);
12. Movant's prior convictions in two state cases were improperly used as the basis for the Possession Charges and to enhance his sentence because he was not represented by counsel in the first case (Doc. 291 at 5 8-61; Doc. 291-1 at56-61);
13. The term of court expired before judgment because more than ninety days passed between the sentencing hearing and entry of judgment (Doc. 291 at57);
14. Little rendered ineffective assistance before and during trial, including by not raising most of the claims listed above (Doc. 291 at 28, 45, 54; Doc. 291-1 at 13-16);
15. Stewart rendered ineffective assistance by not raising on appeal Little's ineffectiveness or any of the other claims listed above (Doc. 291 at 28, 54; Doc. 291-1 at 13, 16-18);
16. The Court violated Movant's constitutional right to access the courts by not docketing many of his post-trial habeas corpus filings, and the court of appeals violated that right by not accepting the appellate brief Movant personally filed (Doc. 291-1 at 27-31, 54-55, 62-66); and
17. Movant's pretrial confinement in administrative segregation at the federal prison in Atlanta was illegal and constituted cruel and unusual punishment (Doc. 291-1 at 32-37).

         Respondent contends that all those claims, except three, are procedurally defaulted because Movant did not raise them on direct appeal. (Doc. 301.) As noted above, Movant contends that he raised the claims in the appellate brief he personally filed and that any procedural default is excused by Stewart's unjustified failure to raise the claims in the appellate brief he filed.

         II. Relevant Legal Standards

         To prevail on a § 2255 motion, the movant must demonstrate that: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the Court was without jurisdiction to impose such a sentence; (3) the sentence exceeded the maximum sentence authorized by law; or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255. A sentence is subject to collateral attack when there is a fundamental defect that results in a complete miscarriage of justice. United States v. Addonizio, 442 U.S. 178, 185 (1979). "To obtain collateral relief, a [movant] must clear a significantly higher hurdle than would exist on direct appeal." United States v. Frady, 456 U.S. 152, 166 (1982).

         "Generally, if a challenge to a conviction or sentence is not made on direct appeal, it will be procedurally barred in a [] § 2255 challenge" unless the movant shows "both cause for his default as well as demonstrating actual prejudice suffered as a result of the alleged error." Black v. United States, 373 F.3d 1140, 1142 (11th Cir. 2004). "[T]o show cause for procedural default, [a § 2255 movant] must show that some objective factor external to the defense prevented [him] ... from raising his claims on direct appeal and that this factor cannot be fairly [attributed] to [his] own conduct." Lynn v. United States, 365 F.3d 1225, 1235 (11th Cir. 2004). "Actual prejudice" requires a movant to show that the alleged error "worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Reece v. United States, 119 F.3d 1462, 1467 (11th Cir. 1997). Ineffective assistance of counsel may constitute cause for a procedural default, but "[n]ot just any deficiency in counsel's performance will do[.] ... [T]he assistance must have been so ineffective as to violate the Federal Constitution." Edwards v. Carpenter, 529 U.S. 446, 451 (2000).

         To establish ineffective assistance of counsel, a§ 2255 movant must show that his counsel's performance was deficient such that it was below objectively reasonable standards, and that the deficient performance prejudiced the movant. Strickland v. Washington, 466 U.S. 668, 688, 692 (1984). As for the first prong of the test, a court should be "highly deferential" in scrutinizing counsel's performance, id. at 689, and "must indulge the strong presumption that counsel's performance was reasonable and that counsel made all significant decisions in the exercise of reasonable professional judgment, " Chandler v. United States, 218 F.3d 1305, 1314 (11th Cir. 2000). To establish deficient performance, a movant must establish that no objectively competent lawyer would have taken the action that his lawyer took or would have failed to take the action he contends the lawyer should have taken. Id. at 1315.

         Under the second prong of the test, a court determines whether counsel's challenged acts or omissions prejudiced the movant, Le., whether "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. A court need not address both ...


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