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XAVIER v. U.S.

June 6, 2005.

FRANKLIN XAVIER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.



The opinion of the court was delivered by: DAVID HERNDON, District Judge

MEMORANDUM AND ORDER

I. Introduction

Before the Court is Franklin Xavier's petition/motion for relief under 28 U.S.C. § 2255 submitted by his counsel, Attorney Andrew M. Cohen. (Doc. 1.) Petitioner argues he is entitled to relief under § 2255 because his Trial and Appellate Counsel provided ineffective assistance in violation of his Sixth Amendment right to counsel. Specifically, Xavier claims his Trial and Appeal Counsel should have done more to oppose the Government's submission of a videotape containing an admission by him. The Government has responded in opposition to the petition. Based on the following, the Court denies Xavier's petition/motion. II. Background

  On June 22, 2001, the Grand Jury returned a two-count superseding indictment against Franklin Xavier. (Doc. 1, Ex. 2.) Count 1 charged Xavier with forcibly assaulting and resisting United States Aviation Security Officer William A. Pierce on May 1, 2000, in violation of 18 U.S.C. § 111. (Doc. 1, Ex. 2.) Count 2 charged Xavier with threatening on May 1, 2000, to murder United States Senior Aviation Enforcement Officer David Lowery and his immediate family in violation of 18 U.S.C. § 115(a)(2) and (b)(4). (Doc. 1, Ex. 2.) Xavier pled not guilty to the charges, and a bench trial was held before this Judge on October 15, 2001. (Doc. 1, p. 2.) Evidence and testimony given at trial showed generally that Xavier, a practicing Rastafarian who wears his hair in dreadlocks, was a prisoner in the process of being transported on May 1, 2000, when he attacked and threatened security officers who tried to search his hair in accordance with prisoner transport procedures. (R. at 70-71, 84, 91-92, 95, 147-150.)

  During its case in chief, the Government presented evidence along with testimony from Officer William Dean May, Jr., Officer William Pierce, Officer David Lowery, and Physician's Assistant David T. Abbott. (R. at 2, 22-112.) The Government showed that on May 1, 2000, Xavier was to be transported by the United States Bureau of Prisons (BOP) to Mid America Airport among a group of other Marion Penitentiary inmates. (R. at 25, 33.) At Mid American Airport, Xavier was to be placed aboard a flight operated by the Justice Prisoner and Alien Transportation System (JPATS). (R. at 44, 51-52.) After being transferred at the airport from BOP's custody to the custody of the United States Marshals Service (USMS) for a routine search, Xavier began cursing profanely at members of the USMS and saying they were not going to search his hair. (R. at 36, 52, 54, 56, 80-83.) A member of the USMS approached Xavier and showed him that he would wear rubber gloves while searching his hair, at which point Xavier kicked Officer William Pierce in the lower portion of his leg as Officer Pierce attempted to place his right foot on the chain between the restraints attached to Xavier's legs. (R. at 36-37, 63, 70-71, 84, 95.) Xavier was subsequently taken to the ground of the tarmac, searched, and further restrained by Senior Aviation Enforcement Officer David Lowery. (R. at 57, 84-85.) In the course of being taken down to the tarmac, Xavier incurred injuries causing abrasions and later swelling. (R. at 93, 109-110.) Officer Lowery sustained a bruised right knee and was subsequently diagnosed with an internal derangement of his left knee. (R. at 101.)

  After additional restraints were placed on Xavier, he was boarded onto the JPATS plane. (R. at 57, 86.) Once inside the aircraft, Xavier was cargo strapped to three seats in the rear portion of the plane to prevent him from injuring anyone. (R. at 58, 87.) While being restrained, Xavier threatened USMS members that he would kill them and their family, find out where they live, and chop up their children with a machete. (R. at 58.) During a subsequent flight between Sioux Falls and Oklahoma City, Xavier was no longer agitated or shouting when Officer Lowery took a photograph of him. (R. at 90.) When Officer Lowery went back to check on Xavier some time later, Xavier told Lowery in a collected fashion that he would kill Lowery, his wife, and his children. (R. at 91-92.)

  An important part of the Government's evidence and testimony for purposes of this 2255 petition is a videotape of the conversation between Xavier and BOP Physician's Assistant David Abbott as well as Abbott's testimony about what Xavier told him. (R. at 107-09.) During the trial, BOP Physician's Assistant David Abbott testified that he examined Xavier in the Receiving and Discharge section of the Federal transfer Facility in Oklahoma City upon Xavier's arrival. (R. at 105.) Abbott stated that after Xavier was processed into the institution at Oklahoma City, Abbott completed a standard processing form for recording prisoners' injuries. (R. at 106-07.) Abbott testified that while completing the processing assessment form, Xavier told him that officers had wanted to examine his hair and that Xavier would have allowed this had the individuals worn gloves. (R. at 108.) Xavier then told Abbott that the officers called him a punk "and so [he] kicked them." (R. at 108.) Abbott stated that his assessment and Xavier's statements were not only documented on a form but also recorded on videotape which constituted a fair and accurate recording of the exchange. (R. at 108.) The videotape was consistent with Abbott's testimony and was admitted into evidence without any objection from Xavier's Trial Counsel (R. at 108-09.) Later, during the Defense's case in chief, Xavier stated that he knew at the time he was being videotaped. (R. at 181.)

  Following the close of the Government's case, Attorney Moorman presented the Defendant's case in chief. (R. at 116-86.) Attorney Moorman called three witnesses to testify as well as Xavier. (R. at 116-86.) Defense witnesses Lawyer Walker, Ellis McHenry, and Jesus Macias all testified (1) that they were prisoners being transported with Xavier the day of the charged incidents (R. at 117, 127, 142-43), (2) that they did not see Xavier kick anyone (R. at 126, 129, 144), and (3) that they did not hear Xavier make any threats to anyone (R. at 120, 132, 144). During his own testimony, Xavier testified that he did not kick anyone or make any threats. (R. at 150, 152, 156.)

  Following the Defense's case in chief, the Government put on Officer Jeff Larson as a rebuttal witness. (R. at 187.) Over Attorney Moorman's objection, the Court allowed Officer Larson to testify that Xavier was confrontational with officers on the day of the incident, evidenced specifically by Xavier's statement that all U.S. Marshals are "Nazis." (R. at 187-89.)

  After Officer Larson's testimony, both the Government's Attorney and Defense Attorney Moorman presented closing arguments that were equal in detail and length. (R. at 190-204.) The Court then recessed to consider the testimonies, evidence, and arguments. (R. at 204-05.) Upon return, the Court issued its findings of facts and concluded Xavier was guilty of the two charged counts. (R. at 205-08.)

  On November 1, 2001, a little more than two weeks after the trial, the Court allowed Attorney Moorman to withdraw as Defense Counsel and appointed Attorney James A. Gomric in his place. (Doc. 28 in 01-CR-30038-DRH.) On November 2, 2004, Attorney Moorman filed a motion seeking leave to file a post trial motion instanter. (Doc. 1, Ex. 3; Doc. 30 in 01-CR-30038-DRH.) The Court denied the motion as being filed late since it was submitted more than seven days after the trial. (Doc. 1, Ex. 4; Doc. 33 in 01-CR-30038-DRH.)

  On March 1, 2002, the court sentenced Xavier to a term of 36 months on Count 1 and a term of 60 months on Count 2, with the two sentences to run concurrently. Xavier's Appeal Counsel, James Gomric, then appealed based only on two sentencing issues, and the Seventh Circuit affirmed this district court's decision. United States v. Xavier, 310 F.3d 1025 (7thp> Cir. 2002).

  In a signed affidavit attached to the Government's response (Doc. 19, Ex. F),*fn1 Attorney Moorman claims he received a copy of the videotape at Xavier's request believing it would show Xavier was injured. (Moorman Aff. ¶¶ 7, 13). Moorman also asserts that he reviewed the videotape two or three times before trial, including once with Xavier. (Moorman Aff. ¶ 8.) Moorman states though that he did not notice Xavier's brief ...


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