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United States v. Chaplain

United States District Court, D. Nebraska

August 31, 2018

UNITED STATES OF AMERICA, Plaintiffs,
v.
EMMANUEL CHAPLAIN, Defendant.

          MEMORANDUM AND ORDER

          Laurie Smith Camp Chief United States District Judge

         This matter is before the Court for initial review of the Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (“§ 2255 Motion"), ECF No. 386, filed by the Defendant, Emmanuel Chaplain. Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts requires initial review of a defendant's § 2255 motion. Rule 4(b) states:

The judge who receives the motion must promptly examine it. If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party. If the motion is not dismissed, the judge must order the United States attorney to file an answer, motion, or other response within a fixed time, or to take other action the judge may order.

         BACKGROUND

         After a six-day jury trial, Chaplain was found guilty of the following Counts of the Superseding Indictment: Count IV (Robbery in violation of 18 U.S.C. § 1951), Count VII (Robbery in violation of 18 U.S.C. § 1951), Count VIII (Robbery in violation of 18 U.S.C. § 1951), Count IX (Brandishing a Firearm During a Crime of Violence, i.e., Robbery as charged in Count VIII), Count X (Robbery in violation of 18 U.S.C. § 1951), County XI (Robbery in violation of 18 U.S.C. § 1951) Count XII (Brandishing a Firearm During a Crime of Violence, i.e., Robbery as charged in Count XI), Count XIII (Robbery in violation of 18 U.S.C. § 1951), County XIV (Robbery in violation of 18 U.S.C. § 1951), County XVI (Felon in Possession of a Firearm), and Count XVIII (Brandishing a Firearm in Connection with a Crime of Violence, i.e., Robbery charged in Count XIII).

         On June 20, 2016, Chaplain was sentenced to 168 months on Counts IV, VII, VIII, X, XI, XIII, and XIV; seven years (consecutive) on Count IX; 25 years (consecutive) on Count XII; 120 months (concurrent) on Count XVI, and 25 years (consecutive) on Count XVIII; followed by three years of supervised release on Counts IV, VII, VIII, X, XI, XIII, XIV, XVI, and five years of supervised released on Counts IX, XII, XVIII, all to run concurrently.

         Chaplain filed a timely appeal, and his conviction and sentence were affirmed by the U.S. Court of Appeals for Eighth Circuit on July 21, 2017. His petition for rehearing was denied on October 4, 2017, and the mandate was issued on October 11, 2017.

         DISCUSSION

         Chaplain's § 2255 Motion is his first such motion and it is timely. Because each of Chaplain's claims is based on ineffective assistance of counsel, the claims are cognizable in his § 2255 proceeding. United States v. Lewis, 483 F.3d 871, 873 n.2 (8th Cir. 2007) (“In general, an ineffective assistance of counsel claim is not cognizable on direct appeal. Instead, such a claim is properly raised in a 28 U.S.C. § 2255 action.”).

         To establish ineffective assistance of counsel, Chaplain must satisfy both prongs of the test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). The performance prong requires a showing that counsel performed outside the wide range of reasonable professional assistance and made errors so serious that counsel failed to function as the kind of counsel guaranteed by the Sixth Amendment. Id. at 687-89. The prejudice prong requires a movant to demonstrate that seriously deficient performance of counsel prejudiced the defense. Id. at 687. “To establish prejudice, the defendant must demonstrate a reasonable probability that the result of the proceeding would have been different, but for counsel's deficiency.” United States v. Luke, 686 F.3d 600, 604 (8th Cir. 2012).

         Chaplain asserts his counsel was ineffective at trial, sentencing, and appeal in four respects: (1) failing to challenge the constitutionality of the residual clause of 18 U.S.C. § 924(c)(3) as void for vagueness, and failing to argue that offenses committed under 18 U.S.C. § 1951 are not crimes of violence under the force clause of § 924(c)(3) because they encompass crimes against property; (2) failing to argue (a) that 18 U.S.C. §§ 924(c), 922(g) and/or 1951 lack necessary mens rea requirements, (b) that his Fifth and Sixth Amendment rights were violated when the Court and not a jury determined whether his underlying offenses constituted crimes of violence, and (c) that his prior convictions were not crimes of violence; (3) failing to challenge the search of his person and the seizure of his saliva as a violation of his Fourth, Fifth, and Sixth Amendment rights, and the use of related testimony at trial as improper expert testimony; and (4) failing to retain an expert to compile chart summaries to refute the Government's chart summaries, and failing to object to the Government's charts or seek a limiting instruction from the Court regarding the proper use of the charts.

         I. Counsel's Failure to Challenge the Constitutionality of 18 U.S.C. § 924(c)(3)(B), and Failure to Argue that Offenses Committed under 18 U.S.C. § 1951 are not Crimes of Violence under the Force Clause of § 924(c)(3)

         Chaplain's sentences on Counts IX, XII, and XVIII, for his crimes of brandishing firearms in connection with crimes of violence, were subject to the penalties prescribed by 18 U.S.C. § 924(c), which provides, in pertinent part:

(1)(A) Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence . . . for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence . . . ...

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