Austin v . United States CV-02-001-M 04/18/03 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Chad E . Austin, Petitioner

v. Civil N o . 02-001-M Opinion N o . 2003DNH072 United States of America, Respondent

O R D E R

Petitioner was convicted by a jury of bank robbery (

(a) and ( d ) ) ; use of a firearm during a crime of

violence (

(c)); being a felon in possession of a

firearm (

(g)(1)); interstate transportation of

stolen property (

); and interstate transportation

of a stolen motor vehicle (

). His convictions

were affirmed, but the case was remanded for re-sentencing at

Total Offense Level 2 7 , rather than 2 8 , under the Sentencing

Guidelines. United States v . Austin,

(1st Cir. 2001).

Petitioner was re-sentenced to a combined period of imprisonment

of 222 months. Despite advice to the contrary, petitioner exercised his

right to serve as his own counsel during the trial. See Faretta

v . California,

(1975). He now seeks habeas

relief under

, on four grounds: 1 ) ineffective

assistance of standby counsel, in that counsel failed to effect

service of trial subpoenas on two witnesses petitioner says were

material to his defense; 2 ) the sequestration order in effect

during his trial was violated in that a witness called by the

prosecution, Missy Lara (a/k/a Marilyn LaFond), was in the

courtroom during part of the trial; 3 ) evidence potentially

helpful to petitioner was destroyed prior to trial, specifically,

notes made by an F.B.I. agent while interviewing one of

petitioner’s hostage victims,1 as well as a photograph of the

hostage scene that petitioner says would have helped establish

his defense of “police corruption”; 4 ) ineffective assistance of

appellate defense counsel (for not raising the grounds asserted

in 1 through 3 above); and 5 ) the government’s failure to provide

him with transcripts of all trial proceedings before his direct

1 After robbing the bank in New Hampshire, petitioner led police on a wild car chase to Massachusetts, where he invaded a townhouse, taking a father and two small children hostage. He was apprehended in Massachusetts and faced related criminal charges in that jurisdiction as well.

2 appeal, which deprived him of the opportunity to raise the claims

described above. None of these grounds are meritorious.

Ineffective Assistance of Standby Counsel

Petitioner knowingly and intelligently waived his right to

the assistance of appointed counsel and insisted upon

representing himself. Therefore, he cannot complain about the

quality of his own defense. See United States v . Manjarrez,

(1st Cir. 2002). Standby counsel was appointed to

assist petitioner, but only to the extent petitioner chose to

avail himself of counsel’s advice. Petitioner asserts that

standby counsel failed to effect service of subpoenas on two

witnesses he wanted to present at trial. Petitioner does not say

how those witnesses might have helped in his defense, but he does

name them: Keri Curley and Aaron Gildart.

Presumably, petitioner would stand on his representations

prior to trial, when he sought subpoenas for Curley and Gildart.

The record discloses that due to late subpoena requests filed by

petitioner, and difficulties in locating and serving Curley (who

3 was apparently not in New Hampshire at the time) and Geldart,

standby counsel was not able to effect service:

My client and I have – my standby client and I have a problem. I’ll address it with him at lunch. I understand. I don’t think I’ve done a good job explaining it to the Court. He thinks that everybody on the list that he handwrote out that was appended to his subpoena motion were served. They were not. Maybe it’s my fault. I served the ones based upon the discussion that we had last Wednesday in camera. I thought those were the only ones he wanted. I guess I misunderstood, but it’s not going to be possible. We can’t get those people here by Friday.

Transcript, Doc. N o . 6 4 , p . 4 1 ; see also Transcript, Doc. N o . 6 4 ,

p. 24.

Assuming petitioner can bring an ineffective assistance of

counsel claim against standby counsel for failure to effect

timely service of subpoenas issued under Fed. R. C r . P. 17(b),

his conclusory statements do not support his claim that counsel’s

standby performance was either deficient or that he was

prejudiced by that performance. See Strickland v . Washington,

6 8 , 697 (1984)(petitioner must demonstrate that

counsel’s representation fell below an objective standard of

4 reasonableness, and that he was prejudiced by counsel’s deficient

performance). Here, neither aspect of the two-part Strickland

test is met.

First, that the two witnesses identified by petitioner were

not timely or effectively served was not entirely the fault of

counsel. Petitioner’s self-representation naturally resulted in

a great deal of confusion about what subpoenas he was seeking and

why. See, e.g., Transcript, Documents N o . 61 and 6 4 .

Petitioner, in large measure, contributed to the apparent

misunderstanding that resulted in the failure to either obtain

subpoenas or timely serve the named witnesses. But, more

importantly perhaps, the failure of M s . Curley and M r . Geldart to

testify had no prejudicial effect whatsoever on petitioner’s

defense, such as it was.

Keri Curley worked as a teller in the bank that petitioner

robbed. It was difficult indeed to elicit from petitioner any

rational reason why he would want to call her as a witness in his

defense. He acknowledged during the hearing on his requests for

subpoenas that, if she were to testify, he expected that she

5 would identify him as having been in the the bank (or identify

physical characteristics that the robber and he both possessed).

Transcript, Doc. N o . 6 4 , p . 1 7 ; see generally id. p p . 12 - 2 4 .

Petitioner seemed to want Curley to either identify him as the

robber, or give a description of the robber that he could then

try to impeach, by showing that she had seen television and

newspaper coverage related to the robbery, including his picture,

which, he would then argue, colored her testimony and tainted her

identification. That evidence would hardly have helped

petitioner. Putting a witness on the stand for the purpose of

eliciting incriminating testimony in order to set up impeachment

of that very testimony is not a strategy likely to prove helpful

or successful.

Petitioner wanted to call M r . Geldart as a witness because

Geldart was apparently wearing clothing on the day of the robbery

that was similar in description to that worn by the robber, and

Geldart apparently otherwise fit the robber’s general

description. There was no other potential evidentiary connection

between Geldart and the robbery. Petitioner wished to suggest to

the jury that Geldart could just as easily have been the robber,

6 since Geldart was in the geographical area surrounding the bank

and fit the bank robber’s general description. Transcript, Doc.

N o . 6 1 , p p . 44-46. That evidence also would not have made any

difference in petitioner’s case, and certainly was not related to

his defense of “police corruption.” Nor would such evidence

support his suggestion that while he may have been caught in a

running gun battle while driving the getaway car, and was

apprehended with the proceeds of the robbery, it was still

possible that he got in the car only after the bank was robbed

and the “real” robber abandoned the vehicle.

Because the evidence against petitioner was overwhelming, no

prejudice to petitioner or his defense resulted from counsel’s

failure to timely serve the subpoenas at issue. Even if

counsel’s representation fell below an objective standard of

reasonableness in carrying out his standby responsibilities,

petitioner still would not be entitled to relief under

Strickland. Petitioner fit the description of the robber; he was

tied convincingly to the stolen vehicle used in the getaway; he

was tied convincingly to the weapon used in the robbery; he was

tied convincingly to the clothing worn by the robber; he was

7 followed while driving the stolen getaway car, engaged police in

a high-speed chase that included running gun battles, and was

subsequently apprehended in the yard of a townhouse to which he

was followed (where he invaded the home and took hostages); he

was caught with the proceeds of the robbery; and, he orally

admitted robbing the bank to his wife, to a hostage, and to an

FBI agent, in the presence of a state police officer, who also

heard the admission. If more was needed, evidence of

petitioner’s own written confessional statements was introduced,

in the form of a letter petitioner sent to a friend, Missy Lara

(a/k/a Marylin LaFond), after the robbery, while he was

incarcerated, in which petitioner wrote:

I mean, all I did was rob a bank and run from the pigs. I went into some punk’s house because the pigs were shooting at m e .

Had Curley testified, she would have only added identity

observations to the overwhelming evidence against petitioner.

And Geldart’s expected testimony - that he was wearing clothing

that was perhaps similar to that worn by the robber on the day in

question and happened to be in Portsmouth, New Hampshire, where

the robbery took place - would have done nothing to offset the

8 overwhelming evidence against petitioner. In short, because

petitioner’s defense, such as it was, was not adversely affected

by the failure to serve Curley and Geldart with subpoenas in a

timely fashion, petitioner cannot meet the prejudice requirement

under Strickland, and is entitled to no relief.

Violation of Sequestration Order, Spoliation of Evidence, Failure to Produce Transcripts, and Ineffective Assistance of Appellate Counsel

Petitioner says that he was prejudiced by the fact that

Marylin LaFond, his friend, failed to comply with the witness

sequestration order in effect during his trial. (She was unaware

of the order or its requirements and no one recognized her

(except perhaps petitioner) as a designated witness as she sat in

the courtroom.) M s . LaFond’s testimony was rather

straightforward: she merely related that she received a letter

from a Chad Austin, that petitioner was the only Chad Austin she

knew, and that the letter contained the admissions described

above. Petitioner’s wife testified earlier that she recognized

the handwriting in the letter as petitioner’s. LaFond could not

identify the handwriting, and readily conceded on cross-

9 examination that it was possible that someone other than

petitioner sent the letter.

That LaFond was in the courtroom and heard other witnesses

testify, did not affect or color her own testimony at all, since

she merely related the fact that she received the letter and read

part of its contents. Petitioner has not identified any specific

prejudice that may have resulted due to LaFond’s presence while

other witnesses testified, and the court can find none.

Petitioner also complains about destruction of evidence

prior to trial. Specifically, he says a photograph once existed

(the government denies the claim) depicting the scene at the

townhouse he invaded. He says the photograph “displayed

children’s action figures and other children’s stuff in the area

of scattered money, gun clips and a gun.” Petitioner claims that

the photograph was somehow inconsistent with depictions of the

same scene in other police photographs, and, somehow, would have

supported his defense of “police corruption.”

10 Again, the point is without merit. Such a photograph, if it

existed, would hardly be exculpatory, and “police corruption” was

not a plausible defense in petitioner’s case, given the

overwhelming evidence against him on the merits.

In a similar vein, petitioner also complains about an FBI

agent’s pre-trial destruction of original notes taken during an

interview of one of petitioner’s hostages, Paul Hardy. However,

both Hardy and the FBI agent testified, were subject to vigorous

cross-examination, and nothing in the record suggests that the

notes would have been effective or even useful in petitioner’s

defense (the hostage’s identification of petitioner as the

assailant was unshakeable and was, of course, rather conclusively

corroborated by the fact that petitioner was apprehended at the

hostage’s house, in possession of the stolen weapon, car, robbery

proceeds, and clothing worn by the robber).

The same holds true with respect to petitioner’s trancript

claim. The transcripts were readily available to appellate

counsel and petitioner. Taking at face value petitioner’s

assertion that he did not have the volumes related to his

11 Curley/Geldart subpoena issues, and was, therefore, thwarted in

his effort to fully raise or brief those issues on direct appeal,

he still fails to describe any ground for relief. Nothing in

those transcripts suggests a viable claim regarding standby

counsel’s failure to timely serve subpoenas on Curely or Geldart.

To the contrary, the transcripts demonstrate the complete absence

of prejudice. Neither Curley’s nor Geldart’s anticipated

testimony was necessary to the presentation of an adequate

defense. Curley’s identification testimony could only further

inculpate petitioner, and Geldart’s testimony would have added

nothing to his defenses of “police corruption” and complete

innocence (of the bank robbery).

These issues ordinarily could not be raised in a § 2255

proceeding, because petitioner did not raise them on direct

appeal. See Knight v . United States,

(1st Cir.

1994)(non-constitutional, non-jurisdictional claims that could

have been, but were not, raised on direct appeal, may not be

asserted in a § 2255 motion, absent exceptional circumstances).

But, because petitioner raises them in the context of

ineffective assistance of counsel claims, they have been briefly

12 addressed on the merits relative to the prejudice aspect of the

Strickland test. See id. (failure to assert ineffective

assistance of counsel on direct appeal is not a bar to raising

that issue in a subsequent § 2255 proceeding).

Petitioner asserts that his appellate counsel was also

ineffective, because he failed to raise (most of) the issues

discussed above on direct appeal. Nothing in the petition or the

record or files supports that claim. Appellate counsel is not

required to raise any and all possible issues, and certainly is

not expected to raise issues devoid of legal merit. See Smith v .

Robbins,

(2000)(appellate counsel need not (and

should not) raise every non-frivolous claim, but rather may

select from among them in order to maximize the likelihood of

success on appeal). Since each issue identified by petitioner is

without merit, and none would have resulted in any appellate

relief had it been presented on direct appeal, he cannot meet

either part of the Strickland test. See Strickland, supra.

Appellate counsel’s performance did not fall below an objective

standard of reasonableness, and, petitioner was hardly prejudiced

13 by counsel’s failure to raise the identified issues on direct

appeal, since they are without merit.

Conclusion

Because the petition, files, and records of the case

conclusively show that petitioner is entitled to no relief, the

petition is dismissed.

. The Clerk of Court

shall close the case.

SO ORDERED.

Steven J. McAuliffe United States District Judge

April 1 8 , 2003

cc: Chad E . Austin, pro se Peter E . Papps, Esq.

14