The opinion of the court was delivered by: Chief United States District Judge Collier
Petitioner Stephen Kendricks ("Kendricks") has filed a pro se motion and amended motion for post-conviction relief pursuant to 28 U.S.C. § 2255 (Court File Nos. 1 & 4). Kendricks was convicted by a jury on all nine counts of an indictment including two counts of armed bank robbery, one count of conspiracy to commit bank robbery, and six counts of weapon charges.
It plainly appears from the motion and the records of this case that the movant is not entitled to any relief. Rule 4(b) of the Rules Governing Section 2255 Proceedings in the United States District Courts. The Court determines the government shall not file an answer, an evidentiary hearing is not necessary, and Kendricks' § 2255 motion will be DENIED for the reasons which follow.
I. NON-DISPOSITIVE MOTIONS
Kendricks filed a pro se petition for a writ of habeas corpus which was opened as Civil Action Number 1:06-cv-159. Kendricks filed an incomplete motion under 28 U.S.C. § 2255 motion (Court File No. 1) along with a motion requesting an extension of time to file an amended motion once his state charges are resolved (Court File No. 2). The Court directed Kendricks to file any amendment to his § 2255 motion on or before December 21, 2006 (Court File No. 3). In compliance with the Court's order, Kendricks subsequently filed a timely amended § 2255 motion but failed to identify the document as an amended § 2255 motion in Civil Case Number 1:06-cv-159. Thus, rather than filing the motion in his pending case as an amended § 2255 motion in Civil Action Number 1:06-cv-159, the motion was opened as a new case, Civil Action Number 1:06-cv-268.
Pursuant to FED. R. CIV. P. 42(a) the District Court is afforded discretion concerning the purposes and scope of consolidation. Therefore, pursuant to FED. R. CIV. P. 42(a) these cases will be consolidated. All future filings in this action shall be filed in Civil Action Number 1:06-cv-159.
The Clerk will be DIRECTED to CONSOLIDATE these cases, file this document in both cases, and send the United States and the defendant involved in this case copies of this order and all relevant documents.
A federal prisoner may file a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence on the ground that the sentence was imposed in violation of the United States Constitution. To obtain relief under § 2255 based on an alleged constitutional error, Kendricks bears the burden of establishing an error of constitutional magnitude which had a substantial and injurious effect or influence on the criminal proceedings. Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993); Hill v. United States, 368 U.S. 424, 428 (1962); Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003); Watson v. United States, 165 F.3d 486, 488 (6th Cir.1999). To warrant relief under § 2255, Kendricks is required to show a fundamental defect in the criminal proceedings which inherently results in a complete miscarriage of justice or an egregious error that rises to the level of a violation of constitutional due process. Davis v. United States, 417 U.S. 333, 346 (1974); Griffin, 330 F.3d at 736; Gall v. United States, 21 F.3d 107, 109 (6th Cir.1994).
On August 15, 2001, a federal grand jury filed a five-count indictment charging Kendricks in two of the five counts. In Count One Kendricks was charged, along with two co-defendants, with armed bank robbery in violation of 18 U.S.C. § 2113(a) and (d) and 2(a) and (b). In Count Two Kendricks was charged, along with two co-defendants, of discharging a firearm during and in relation to the bank robbery charged in Count One in violation of 18 U.S.C. § 924(c)(1)(A)(iii) and 2 (a) and (b). A nine count superseding indictment was subsequently filed on December 19, 2001, charging Kendricks in all nine counts. Kendricks was charged with aiding and abetting other named and unnamed parties as follows: Count One--conspiracy to commit armed bank robbery in violation of 18 U.S.C. § 2113 (a) and (d); Count Two--armed bank robbery in violation of 18 U.S.C. § 2113(a) and (b) and 2(a) and (b); Count Three--threatened to destroy SunTrust Bank with an explosive device in violation of 18 U.S.C. § 844(e) and 2(a) and (b); Count Four--discharged a firearm during the bank robbery charged in Count Two in violation of 18 U.S.C. § 924(c)(1)(A)(iii) and 2(a) and (b); Count Five--brandished a firearm, a short-barreled, 16 gauge shotgun, during the bank robbery charged in Count Two in violation of Title 18 U.S.C. § 924(c)(1)(A)(ii) and 2(a) and (b); Count Six--possessed a firearm, a short-barreled, 16 gauge shotgun, during the bank robbery charged in Count Two in violation of 18 U.S.C. § 924(c)(1)(B)(I) and 2(a) and (b); Count Seven--possessed a shotgun having a barrel length of approximately nine and fifteen-sixteenths inches which had not been registered to them in the National Firearms Registration and Transfer Record as required by Chapter 53, Title 26, United States Code, in violation of 26 U.S.C. § 5861(d) and 5871 and 18 U.S.C. § 2(a) and (b); Court Eight--armed bank robbery in violation of 18 U.S.C. § 2113(a) and (d) and 2(a) and (b); and Count Nine--discharged a firearm while committing the bank robbery as charged in Count Eight in violation of 18 U.S.C. § 924(c)(1)(A)(iii) and 2(a) and (b).
After a six-day jury trial, Kendricks was convicted of Count One through Count Nine, and subsequently sentenced by this Court to a term of 500 months imprisonment to be followed by five years of supervised release. Kendricks filed a direct appeal which was affirmed by the Sixth Circuit Court of Appeals on April 13, 2005. The mandate issued on July 13, 2005. See United States v. Kendricks, 127 Fed.Appx. 836 (6th Cir. 2005) (unpublished), rehearing en banc denied July 5, 2005. When a federal criminal defendant pursues a direct appeal to the court of appeals, his judgment of conviction becomes final for § 2255 purposes upon the expiration of the 90-day period in which the defendant could have petitioned for certiorari to the Supreme Court, even when no certiorari petition has been filed. Clay v. United States, 537 U.S. 522, 525 (2003). Kendricks timely filed the instant § 2255 motion on or about July 7, 2006.
The following recitation of the facts is from the Presentence Investigation Report ("PSI")*fn1
SUNTRUST BANK, Cleveland, Tennessee
13. On July 9, 2001, three men, wearing masks and gloves, later identified as William Kelly, Adam Snyder and Tyrone Griffin, entered the SunTrust Bank located on 25th Street in Cleveland, Tennessee. Kelley was carrying a handgun, Griffin was carrying a sawed-off shotgun and Snyder had a bag for the money and a box. Snyder placed the box on the teller counter and stated that it was a bomb, and they could blow up the bank. (The bomb was two spray paint cans taped together with a pager.) He then vaulted the teller counter as Kelly fired a round from his weapon. The bullet hit a metal tray on the teller counter, and Snyder later believed that Kelly may have been shooting at him. Snyder began emptying two teller drawers as Kelly and Griffin forced employees and customers to the floor. One bank employee was trying to crawl beneath her desk for safety, and Griffin pulled her out into the open by her hair and pointed the gun at her back. Another employee stated that Kelley had pointed the weapon at the back of her head. Customers and employees stated that all three men were constantly shouting profanities and screaming that they were going to kill them.
14. Snyder emptied two teller drawers, avoiding dye packs and bait money. A total of $28,607 was taken from the teller drawers. The three left the bank and got into the car driven by Stephen Kendricks. The car had been stolen by Kendericks and parked in Cleveland to use in the robbery. They drove two blocks and abandoned the stolen car, getting away in Kelley's vehicle. They drove to a hotel in East Ridge where they divided the money between the four of them.
15. (The government believes that Snyder, Kelley and Kendricks had been involved in a previous bank robbery in Dalton, Georgia. Snyder and Kelley have pleaded guilty to this bank robbery. Kendricks is currently set for trial in the Northern District of Georgia. The Cleveland robbery was the first bank robbery involving Griffin.)
FIRST TENNESSEE BANK, Chattanooga, Tennessee
16. In the early morning hours of August 3, 2001, Jonathan Smith (not involved in any other bank robbery) was picked up by Steve Kendricks who was driving a Chevrolet Impala. The pair drove around and eventually visited Kendricks' mother where she was working at a Favorite Market in the St. Elmo neighborhood. While at the Favorite Market, Kendricks purchased a tool resembling a screw driver. Kendricks and Smith then left the store, drove to a location on St. Elmo Avenue and called Tyrone Griffen. Griffen, driving an El Camino, joined the pair about thirty minutes later. After talking in the parking lot of a church and discussing robbing a bank, Kendricks and Griffen left in the El Camino to steal a car. When they returned to where Smith was waiting with the Impala, one was driving the El Camino and the other was driving a dark colored Buick with the passenger side window broken out. the pair drove the cars to a nearby side street and parked the Buick. Griffen then returned Smith home after they agreed to meet in the morning at a room Kendricks had rented at the Suburban Lodge on Brainerd Road.
17. Before 8:00 a.m., Griffen returned and picked up Smith, and the two of them traveled to the Suburban Lodge to meet Kendricks. While there, Smith saw money drying and more soaking in dye remover solution. Kendricks told him that the money was from a bank robbery in Dalton, Georgia committed by Kendricks, and two other individuals. About $6,000 of dye-stained money was hidden in Kendricks' things in a plastic box. The three left the hotel in the El Camino and the Impala.
Kendricks drove the Impala to a friend's house and left the car there. The three then traveled to Brainerd Road and checked out possible locations for the bank robbery. Unable to choose a bank in that area, the trio traveled back to the St. Elmo area and rode by several banks. After two to three hours of driving around, they decided to retrieve the stolen car and get ready to rob a bank. They retrieved the stolen Buick from the side street, drove to Griffen's grandfather's house and left the El Camino. Inside the stolen car were some clothes, masks, gloves, and a duffle bag to use during the robbery that they had placed in the car the night before.
18. Kendricks, at the wheel of the stolen car, first drove to the SunTrust Bank in St. Elmo. The bank appeared to have a lot of customers, and they decided to check out another location. The First Tennessee Bank branch in St. Elmo did not appear to be busy, and Kendricks drove to the bank parking area. Smith and Griffen pulled on their masks and left the vehicle. Smith was carrying a revolver, which belonged to either Kendricks or Griffen, and Griffen was carrying the duffle bag. Upon entering the bank through the rear door, Smith fired a shot in the ceiling of the bank and yelled for everyone to get down. Customers and bank employees all laid on the floor. One customer was experiencing heart palpitations and remained seated on the floor in front of the teller windows. Griffen jumped over the teller counter and began taking money from the teller drawers. Smith kept telling him to hurry and telling the victims to stay down on the floor. During the robbery, one customer was able to crawl out the door and run to the restaurant next door and call police. After less than three minutes, Griffen jumped back over the counter, and the two left the bank.
19. As Kendricks, Griffen and Smith were driving down St. Elmo Avenue toward 37th Street, the dye pack exploded in the duffle bag containing the money. As a red cloud of smoke filled the air in the car, tear gas was also released from the dye pack. The trio could not see or breathe, and as they approached a stop sign, Griffen threw the bag out of the car window. At 37th Street, they abandoned the car. Griffen walked off down 37th Street, and Kendricks and Smith ran into some woods and sat down. When Kendricks could speak, he told Smith to take the stolen car and get the El Camino. Along the way, Smith picked up Griffen and the two of them retrieved the El Camino. Griffen hid the weapon used by Smith in the woods near his grandfather's house, and they threw their clothes in a trash can near Griffen's girlfriend's house. They returned to St. Elmo to pick up Kendricks but saw him sitting in a patrol car at the bank. They returned to Griffins' girlfriend's house and after dark, Smith went home.
20. The Federal Bureau of Investigation (FBI) arrived at the scene of the bank robbery soon after it had occurred. Local law enforcement apprehended Kendricks, who did not make a statement although he admitted to taking part in the bank robbery. The FBI interviewed witnesses, who saw the trio driving away from the bank, and associates of Kendricks', as well as reviewing police reports, and they narrowed the search to a few of Kendricks' known associates. They went to Smith's sister's house soon after the robbery looking for Smith who was still with Griffen. When Smith returned to his sister's, he learned that the FBI was looking for him. He then left his sister's and went to a cousin's house where he stayed until he turned himself in at the United States Attorney's Office in Chattanooga on August 9, 2001. At that time, he made a complete statement regarding his role in the bank robbery and his knowledge of other robberies.
21. According to bank records and the FBI, $7,411 was taken during the robbery. The entire amount was recovered. A passerby saw the bag on the side of the road and put the bag, which was still smoking from the dye and tear gas pack, on the roof of his vehicle and drove it back to the bank.
22. Following Kendricks's arrest on August 3, 2001, a receipt was located on Kendricks for the rental of a room at the Suburban Lodge on Lee Highway in Chattanooga, Tennessee, in the name of William Kelley. Law enforcement obtained a search warrant for Room 108 and found a recently-purchased stereo, three open and empty face mask bags, a bottle of De-Solv-It cleaning solution which was used to remove the dye stains from the money taken in the Dalton, Georgia bank robbery, the label from a pair of gloves, $620 in dye-stained currency soaking in ...