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UNITED STATES v. HUNTER

September 2, 1997

UNITED STATES OF AMERICA, Respondent,
v.
JOHN T. HUNTER, Jr., Petitioner.



The opinion of the court was delivered by: ASPEN

 MARVIN E. ASPEN, Chief Judge:

 In January 1995 petitioner John T. Hunter, Jr., was convicted of conspiring to rob banks, of robbing sixteen banks, and of using or carrying a firearm during each of those robberies. See 18 U.S.C. §§ 371, 2113(a), (d), and 924(c)(1). His conviction was affirmed on appeal. See United States v. Hunter, 86 F.3d 679 (7th Cir.), cert. denied, 136 L. Ed. 2d 339, 117 S. Ct. 443 (1996). Hunter now moves pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentences for using or carrying firearms, § 924(c)(1), raising a number of constitutional and statutory arguments. For the reasons set forth below, the motion is denied.

 I. Procedural Default

 A federal prisoner may move to vacate, set aside, or correct a sentence if he proves that "the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law." 28 U.S.C. § 2255. A petition under § 2255, however, may not be used to circumvent or substitute for a direct appeal. See United States v. Frady, 456 U.S. 152, 165, 71 L. Ed. 2d 816, 102 S. Ct. 1584 (1982). Accordingly, "errors not raised on direct appeal may not be raised in a § 2255 motion unless the defendant can demonstrate either: (1) both good cause for his failure to raise the claims on direct appeal and actual prejudice from the failure to raise those claims, or (2) that the district court's refusal to consider the claims would lead to a fundamental miscarriage of justice." McCleese v. United States, 75 F.3d 1174, 1177 (7th Cir. 1996) (citing Reed v. Farley, 512 U.S. 339, 114 S. Ct. 2291, 129 L. Ed. 2d 277 (1994)).

 Hunter did not assert any of the arguments in the instant petition in his direct appeal to the Seventh Circuit, so these arguments are defaulted unless one of the two exceptions applies. Hunter believes he qualifies for the cause and prejudice exception because his trial and appellate counsel were constitutionally ineffective. *fn1" To prove ineffective assistance, the defendant "must establish that his attorney's performance fell below an objective standard of reasonableness and that he was prejudiced by his attorney's error such that the result of the proceeding was rendered fundamentally unfair or unreliable." Mason v. Godinez, 47 F.3d 852, 855 (7th Cir. 1995) (citing Lockhart v. Fretwell, 506 U.S. 364, 113 S. Ct. 838, 842, 122 L. Ed. 2d 180 (1993) and Strickland v. Washington, 466 U.S. 668, 687-88, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984)). Ineffective assistance of counsel, if proven, can constitute "cause" for a procedural default. See United States ex rel Simmons v. Gramley, 915 F.2d 1128, 1132 (7th Cir. 1992) (citing Murray v. Carrier, 477 U.S. 478, 488, 91 L. Ed. 2d 397, 106 S. Ct. 2639 (1986)). Whether there was prejudice for purposes of avoiding a procedural default is intertwined with the question of whether a petitioner has shown ineffective assistance of counsel: both require us to determine whether counsel's putative errors affected the outcome. Accordingly, we discuss Hunter's claims below and conclude that they are meritless; as a result, not only has he failed to show prejudice--and thus fails to avoid procedural default of his constitutional claims--but in the alternative, his claims would fail on the merits even absent a procedural bar.

 II. Discussion

 Hunter argues that the ineffectiveness of his trial and appellate counsel manifested itself in their failure to object to (or appeal from) five different errors at trial: *fn2" (1) improper jury instructions regarding liability under § 924(c); (2) unreliable photo-spread identifications and related in-court testimony regarding his participation in various robberies; (3) unconstitutional restrictions on his ability to cross-examine witnesses; (4) violation of the Double Jeopardy Clause; and (5) the unconstitutionality of U.S.S.G. § 2K2.4. We consider each argument in turn.

 A. Improper Jury Instructions

 Hunter's first argument is that his attorneys failed to object to an improper jury instruction regarding liability under § 924(c). *fn3" To the extent we can understand his argument, *fn4" he seems to believe that this court erroneously instructed the jury that he could be found liable for the offense of using or carrying a firearm during the commission of a crime of violence (§ 924(c)) if one of his co-conspirators committed such an offense in furtherance of the conspiracy, or if he aided or abetted another person in the commission of such an offense. See Pet.'s Br. at 5. Nowhere in his brief does Hunter dispute, as a factual matter, that he was an active participant in the bank-robbing conspiracy and that his co-conspirators violated § 924(c) by using and carrying firearms during the bank robberies. *fn5" Rather, his argument seems to be a strictly legal one--he denies that he can be charged with violating § 924(c) as either a co-conspirator or as an aider and abettor.

 It is clear that the challenged jury instruction was proper. The Seventh Circuit has expressly held that conspirators can be held liable for violations of § 924(c) by their co-conspirators. See United States v. Gironda, 758 F.2d 1201, 1211-12 (7th Cir. 1985). In Gironda, one conspirator had violated § 924(c) by carrying a firearm during a conspiracy to steal money from a bank. The court considered the doctrine articulated in Pinkerton v. United States, 328 U.S. 640, 90 L. Ed. 1489, 66 S. Ct. 1180 (1946), and interpreted it "to mean that each conspirator may be 'liable for overt acts of every other conspirator done in furtherance of the conspiracy.'" Gironda, 758 F.2d at 1211 (quoting United States v. Read, 658 F.2d 1225, 1230 (7th Cir. 1981), and collecting cases). Under this theory, the court held the co-conspirators liable under § 924(c) even though they had not personally used or carried firearms during the offense. Since Gironda, the Seventh Circuit has continued to impose liability on co-conspirators for their colleagues' violations of § 924(c). See, e.g., United States v. Monroe, 73. F.3d 129, 132 (7th Cir. 1995); United States v. Sandoval-Curiel, 50 F.3d 1389, 1394-95 (7th Cir. 1995); United States v. Gutierrez, 978 F.2d 1463, 1467-68 (7th Cir. 1992).

 It is likewise clear that a person can be held liable for aiding and abetting a violation of § 924(c). "Aiding and abetting liability under 18 U.S.C. § 2 has been routinely applied in conjunction with 18 U.S.C. § 924(c) to convict individuals of 'aiding and abetting in using or carrying a firearm.'" United States v. Golden, 102 F.3d 936, 945 (7th Cir. 1996) (quoting United States v. Price, 76 F.3d 526, 529 (3d Cir. 1996)). Hence, there was nothing improper in this court's jury instruction indicating that the jury could find Hunter liable under § 924(c) under either conspiracy or aiding and abetting theories. Hunter's trial and appellate attorneys thus committed no error in failing to object to this instruction. *fn6"

 Hunter's second argument is that his attorneys were ineffective for failing to prevent the introduction into evidence of "eyewitness photospread identifications which were unreliable," as well as the subsequent unreliable in-court testimony of those eyewitnesses. See Pet.'s Br. at 28. It is well established that when a pretrial identification procedure is "unnecessarily suggestive and conducive to irreparable mistaken identification," the procedure may deprive a defendant of due process. Stovall v. Denno, 388 U.S. 293, 301-02, 18 L. Ed. 2d 1199, 87 S. Ct. 1967 (1967). Moreover, a subsequent in-court identification of the defendant by a witness who participated in an unduly suggestive identification procedure is inadmissible if there is a "very substantial likelihood of irreparable misidentification." Neil v. Biggers, 409 U.S. 188, 198, 34 L. Ed. 2d 401, 93 S. Ct. 375 (1972). In making this second inquiry, "reliability is the linchpin in determining the admissibility of identification testimony," Manson v. Brathwaite, 432 U.S. 98, 114, 53 L. Ed. 2d 140, 97 S. Ct. 2243 (1977), and the Court has set forth a five factor test for lower courts to apply in assessing reliability, see id. But it is important to remember that suggestiveness and reliability are two distinct inquiries, and "if a defendant fails ...


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