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Maday v. United States

United States District Court, N.D. Illinois, Eastern Division

May 26, 2017

ROBERT MADAY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          Ruben Castillo, United States District Court Chief Judge

         Robert Maday ("Petitioner") challenges his federal convictions for bank robbery, escape, and related offenses in a petition filed pursuant to 28 U.S.C. § 2255. (R. 1.) For the reasons stated below, the petition is denied.

         In August 2009, Petitioner pled guilty to multiple bank robberies in a case assigned to U.S. District Judge Robert W. Gettleman. United States v. Maday, 799 F.3d 776, 777 (7th Cir. 2015). While he was in custody awaiting sentencing in that case, he was transported by two county police officers to face sentencing in state court for several unrelated crimes. Id. During the trip, he overpowered the officers and escaped from their custody; while at large he "committed a rich mixture of federal and state offenses, including bank robbery, . .. carjacking, and using or carrying a gun in connection with the other offenses." Id. He was prosecuted in state court for the carjacking and in this Court for bank robbery and related offenses. Id. After a five-day jury trial, Petitioner was convicted of five separate offenses: escaping from federal custody in violation of 18 U.S.C. § 751 (Count One); using, carrying, and brandishing a weapon during and in relation to his escape in violation of 18 U.S.C. § 924(c) (Count Two); aggravated bank robbery in violation of 18 U.S.C. § 2113 (Count Three); using, carrying, and brandishing a weapon during and in relation to the bank robbery in violation of 18 U.S.C. § 924(c) (Count IV); and possessing a firearm after a felony conviction in violation of 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(e)(1) (Count V). United States v. Maday, No. 11 CR 847, R. 134. He was ultimately sentenced to a combined prison term of 62 years in the case assigned to this Court and the case assigned to Judge Gettleman. Maday, 799 F.3d at 778.

         He appealed in both cases, and the U.S. Court of Appeals for the Seventh Circuit consolidated the two cases for hearing and decision. Id. at 776-80. In both cases, Petitioner's appointed attorneys moved to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that they were unable to identify any non-frivolous issue for appeal. Id. at 776-77. Among other potential issues, counsel in the case assigned to this Court explored whether Petitioner could challenge the sufficiency of the evidence on Count IV pertaining to whether he had carried a gun during the bank robbery. United States v. Maday, Appeal No. 14-2154, R. 23 at 20-22. Ultimately, counsel determined that an argument on this ground would be frivolous. Id. Petitioner filed apro se response to counsel's Anders brief, arguing that the evidence was insufficient to sustain the jury's verdict on Count IV because the bulge under his shirt was a hat, not a gun, and in his view the government had failed to prove otherwise. Id., R. 27 at 14-21. Petitioner relatedly argued that the prosecutor engaged in misconduct by mischaracterizing the testimony of the bank tellers regarding whether they ever actually saw a gun during the robbery. Id. The Seventh Circuit agreed with counsel that this argument was frivolous. Maday, 799 F.3d at 777. The court affirmed Petitioner's conviction and sentence imposed by this Court in all respects.[1] Id. at 776-80. The U.S. Supreme Court denied his petition for certiorari. Maday v. United States, 136 S.Ct. 1688 (2016).

         In March 2017, Petitioner filed his Section 2255 petition asserting four claims: (1) actual innocence with respect to Count IV; (2) prosecutorial misconduct; (3) ineffective assistance of counsel; and (4) "custody" issues. (R. 1, Pet.) The government filed a response arguing that Petitioner has failed to establish an entitlement to relief under Section 2255. (R. 7, Resp.) Thereafter, Petitioner filed a reply in support of his petition. (R. 9, Reply.)

         LEGAL STANDARD

         Under Section 2255, a federal prisoner can seek to vacate his sentence on "the ground that the sentence was imposed in violation of the Constitution or laws of the United States ... or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). Relief under Section 2255 "is available only in extraordinary situations, such as an error of constitutional or jurisdictional magnitude or where a fundamental defect has occurred which results in a complete miscarriage of justice." Blake v. United States, 723 F.3d 870, 878-79 (7th Cir. 2013).

         ANALYSIS

         I. Actual Innocence of Count IV

         In his first claim, Petitioner asserts that he is actually innocent of Count IV because he did not in fact have a gun during the robbery; he claims that the bulge under his shirt seen by the bank tellers was a baseball cap, not a gun. (R, 1, Pet. at 4; R. 5, Mem. at 1-8.) This identical argument was included in his counsel's Anders brief and in Petitioner's pro se response brief, and the Seventh Circuit determined that the argument was frivolous. Maday, 799 F.3d at 777; see also Maday, Appeal No. 14-2154, R. 23 at 21-22; id., R. 27 at 14-21. A Section 2255 petitioner is not permitted to "relitigate in a collateral proceeding an issue that was decided on his direct appeal." White v. United States, 371 F.3d 900, 902 (7th Cir. 2004). It makes "no difference" that the issue was presented in connection with a motion to withdraw under Anders: "Presented is presented, whether in an Anders brief or in any other format; and if an appeal is dismissed as frivolous, that is a binding adjudication that the claims presented in it had no merit at all, rather than an invitation to refile." Id. Because this claim was already raised on direct appeal, Petitioner cannot relitigate the claim in this proceeding "absent changed circumstances." Varela v. United States, 481 F.3d 932, 935 (7th Cir. 2007). He has not identified any changed circumstances that would allow him to relitigate the claim and, therefore, he is precluded from raising this claim.

         Even if the claim could be considered, it is frivolous, as the Seventh Circuit concluded on direct appeal. In considering the sufficiency of the evidence, the Court must "view the evidence in the light most favorable to the government" and can "overturn a conviction only if the record contains no evidence from which a reasonable juror could have found the defendant guilty." United States v. KohlU 847 F.3d 483, 489 (7th Cir. 2017) (citation omitted). Because of this high standard, a defendant challenging the sufficiency of the evidence bears a "nearly insurmountable" burden. Id. (citation omitted).

         There is more than enough evidence in the record to support the jury's verdict on Count IV. Among other evidence, one of the transporting officers testified at trial that Petitioner stole his and his partner's loaded guns during his escape. Maday, No 11 CR 847, Trial Tr. at 213-17, 229-41. One of the bank tellers testified that she saw something "bulging out" from Petitioner's shirt, which appeared to her to be "the back handle of the shape of the gun, " Id. at 364-65. Another teller testified that Petitioner announced during the robbery that he had a gun. Id. at 383. At the time of his arrest a few hours after the robbery, police discovered a gun in Petitioner's waistband and another on the floor of the vehicle he was driving. Id. at 430-32. Petitioner also confessed to agents of the Federal Bureau of Investigation ("FBI") after his arrest that he had a gun with him during the bank robbery. Id. at 529-30. Viewing this evidence in the light most favorable to the government, it was certainly enough for a rational jury to conclude that Petitioner had a gun during the robbery. See Kohli, 847 F.3d at 489.

         Petitioner does not deny that he stole the officers' guns during his escape or that he had the guns with him when he decided to rob the bank; however, he claims that he "left the guns in the car" when he went inside the bank. (R. 5, Mem. at 8.) The Court is not required to simply credit Petitioner's self-serving statements about how he conducted the bank robbery. Instead, the Court must "view the evidence in the light most favorable to the government" at this stage. Kohli, 847 F.3d at 489 (citation omitted).

         Petitioner also argues that "enhanced color images" of the bank surveillance video printed by a family friend and submitted with his petition lend support to his argument that it was a baseball cap, rather than a gun, tucked in his waistband. (R. 5, Mem. at 1-10, 14 & Exs. A-F.) He believes this evidence is so definitive that "[i]f a jury of 1, 000 people were shown the digitally enhanced imagery . . . [and] asked does the bulge look like A) a gun, or B) a baseball cap, 1, 000 people would say a baseball cap." (R. 5, Mem. at 10.) To the extent Petitioner is trying to assert a free-standing claim based on "newly discovered evidence, " rather than simply challenging the sufficiency of the evidence presented at trial, such a claim does not entitle him to relief under Section 2255, See Masarik v. United States, 630 F.App'x 630, 631 (7th Cir.), cert. denied,136 S.Ct. 2470 (2016) ("Newly discovered evidence may relieve a prisoner from a procedural default, and thus permit litigation on genuine constitutional or statutory claims, but new evidence is not itself a basis for ...


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