United States v. Collin Hawkins

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4410
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
COLLIN HAWKINS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap. James P. Jones,
District Judge. (2:10-cr-00004-JPJ-PMS-1)
Submitted: June 20, 2013 Decided: June 28, 2013
Before WYNN and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Collin Hawkins, Appellant Pro Se. Debbie H. Stevens, OFFICE OF
THE UNITED STATES ATTORNEY, Abingdon, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Collin Hawkins, a prisoner at United States
Penitentiary Lee (“USP Lee”), appeals the district court’s
judgment sentencing him to 188 months’ imprisonment for
willfully conniving and assisting in a riot at USP Lee in
violation of 18 U.S.C. § 1792 (2006), forcibly resisting an
employee of the Bureau of Prisons in violation of 18 U.S.C.
§ 111(a)(1), possession of a prohibited object designed and
intended to be used as a weapon in violation of 18 U.S.C.
§ 1791(1)(2), (d)(1)(B) (2006), and felony contempt of a court
order in violation of 18 U.S.C. § 401(3) (2006). Hawkins pled
guilty to the felony contempt charge and was convicted of the
other charges after a bench trial. Hawkins was acquitted on a
second charge of possession of a prohibited object.
On appeal, Hawkins argues that his due process rights
were violated when the Government destroyed video tape evidence
and the weapon that he was accused of possessing, that his due
process rights were violated when the Government knowingly
allowed its witnesses to make false statements, that his trial
counsel was ineffective, that the district court erred when it
denied his Fed. R. Crim. P. 29 motion for acquittal, that the
district court erred when it denied his Fed. R. Crim. P. 33
motion for a new trial, and that his guilty plea was not knowing
and voluntary. We affirm.
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First, Hawkins contends that the Government violated
his due process rights by destroying exculpatory evidence. The
duty to preserve evidence arises when the evidence “possess[es]
an exculpatory value that was apparent before the evidence was
destroyed, and [is] of such a nature that the defendant would be
unable to obtain comparable evidence by other reasonably
available means.” California v. Trombetta, 467 U.S. 479, 488-89
(1984). However, the failure to preserve even potentially
exculpatory evidence does not automatically constitute a due
process violation. It is only when the “defendant can show bad
faith on the part of the police[] [that] failure to preserve
potentially useful evidence” amounts to the denial of due
process. Arizona v. Youngblood, 488 U.S. 51, 58 (1988). Bad
faith “requires that the officer have intentionally withheld the
evidence for the purpose of depriving the plaintiff of the use
of that evidence during his criminal trial.” Jean v. Collins,
221 F.3d 656, 663 (4th Cir. 2000).
Hawkins argues that the Government acted in bad faith
when it reviewed video footage of the incident and chose to
preserve only that footage it deemed to have investigatory
value. We conclude that Hawkins has not met the high bar for a
failure to preserve evidence claim. Multiple witnesses at trial
testified to the events in question, relevant video footage was
preserved and presented at trial, and there simply was no
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indication that the video that was destroyed included any
footage that was exculpatory or otherwise inconsistent with the
video that was retained. Hawkins also argues that the
Government failed to preserve evidence of the weapon he was
accused of possessing. A photograph of the weapon was admitted
into evidence, however, and a correctional officer testified at
trial to the weapon’s nature. There is no basis to conclude,
then, that production of the actual weapon would have been
clearly exculpatory. Therefore, we conclude that Hawkins has
failed to establish a claim for failure to preserve evidence.
Next, Hawkins argues that his due process rights were
violated when the Government knowingly allowed its witnesses to
make false statements. Due process is implicated if the
prosecution presented testimony it knew to be false. See
Giglio v. United States, 405 U.S. 150, 153 (1972). The knowing
use of false evidence or perjured testimony constitutes a due
process violation when there is “any reasonable likelihood that
the false testimony could have affected the judgment of the
jury.” United States v. Agurs, 427 U.S. 97, 103 (1976).
Defendants bear the burden of showing the testimony was actually
perjured and the prosecution used it with contemporaneous
knowledge it was false. United States v. Roane, 378 F.3d 382,
401 (4th Cir. 2004). We note that Hawkins was tried before a
district judge, drastically reducing the likelihood that the
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fact finder was misled. Further, the purportedly false
statements that Hawkins alleges are no more than typical
testimonial inconsistencies, some of which were addressed before
the fact finder at trial and were resolved against him.
Next, Hawkins contends that his trial counsel was
ineffective. Claims of ineffective assistance of counsel are
generally not cognizable on direct review. United States v.
Benton, 523 F.3d 424, 435 (4th Cir. 2008). However, we can
entertain such claims on direct appeal if it conclusively
appears from the record that defense counsel did not provide
effective representation. United States v. Richardson, 195 F.3d
192, 198 (4th Cir. 1999). In order to succeed on a claim of
ineffective assistance of trial counsel, a defendant must show
that counsel’s performance fell below an objective standard of
reasonableness and that the deficient performance was
prejudicial. Strickland v. Washington, 466 U.S. 668, 687
(1984). Under the first prong of Strickland, there is a strong
presumption that counsel’s performance fell within the wide
range of reasonable professional assistance. Id. at 689. The
reviewing court must evaluate the reasonableness of counsel’s
performance within the context of the circumstances at the time
of the alleged errors, rather than with the benefit of
hindsight. Id. at 690. “Conclusory allegations are
insufficient to raise cognizable claims of ineffective
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assistance of counsel.” United States v. Demik, 489 F.3d 644,
646 (5th Cir. 2007) (alterations omitted); United States v.
Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994).
To satisfy the second prong of Strickland, the
defendant “must show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability
is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694. The defendant bears the
burden of establishing prejudice and, if the defendant cannot
meet his burden, the performance prong need not be considered.
Id. at 697. Upon review of the record, we conclude that
Hawkins’ counsel effectively presented his preferred defense at
trial and challenged Government witnesses on key points in his
defense. Therefore, because the record does not conclusively
show that counsel was ineffective, we decline to consider this
issue on direct appeal.
Hawkins next claims that the district court erred when
it denied his Fed. R. Crim. P. 29 motion for a judgment of
acquittal as to his willfully conniving and assisting in a
prison riot charge based on insufficiency of the evidence. We
review the denial of a Rule 29 motion de novo. See United
States v. Cloud, 680 F.3d 396, 403 (4th Cir.), cert. denied, 133
S. Ct. 218 (2012). When a Rule 29 motion was based on a claim
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of insufficient evidence, the verdict must be sustained “if
there is substantial evidence, taking the view most favorable to
the Government, to support it.” United States v. Whitfield, 695
F.3d 288, 310 (4th Cir. 2012) (internal quotation marks and
citations omitted), cert. denied, 133 S. Ct. 1461 (2013).
Substantial evidence is “evidence that a reasonable finder of
fact could accept as adequate and sufficient to support a
conclusion of a defendant’s guilt beyond a reasonable doubt.”
United States v. King, 628 F.3d 693, 700 (4th Cir. 2011)
(internal quotation marks omitted).
Upon review of the record, we conclude that
substantial evidence existed to show that Hawkins participated
in a prison riot. The district court credited the Government’s
witnesses who testified that Hawkins had been involved in
fighting other inmates, that he resisted attempts to restrain
him, that he sought to return to the melee, and that once the
fighting was concluded he made verbal signals to other inmates,
indicating his affiliation with one of the groups that had
engaged in the riot. We find this evidence sufficient to
support Hawkins’ conviction.
Hawkins also argues that the district court erred when
it denied his Fed. R. Crim. P. 33 motion for a new trial based
on newly discovered evidence. We review a district court’s
denial of a Rule 33 motion for a new trial for abuse of
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discretion. United States v. Smith, 451 F.3d 209, 216 (4th Cir.
2006). To receive a new trial based on newly discovered
evidence, a defendant must show that: (1) the evidence is newly
discovered; (2) he has been diligent in uncovering it; (3) the
evidence is not merely cumulative or impeaching; (4) the
evidence is material to the issues involved; and (5) the
evidence would probably produce an acquittal. United States v.
Fulcher, 250 F.3d 244, 249 (4th Cir. 2001). The trial court
“should exercise its discretion to award a new trial sparingly
. . .” Smith, 451 F.3d at 216-17 (internal quotation marks
omitted).
Hawkins contends that he discovered a dozen new
witnesses willing to testify to his version of events. However,
we conclude that the district court did not err when it denied
his motion. Based on Hawkins’ representations, none of these
witnesses would testify to new evidence. Rather, their purpose
would simply have been to bolster the version of events that
Hawkins had already presented at trial. Therefore, their
testimony would be merely cumulative.
Lastly, Hawkins contends that his guilty plea to the
felony contempt charge was not knowing and voluntary because he
had been misadvised as to the maximum sentence for violation of
18 U.S.C. § 401(3) (2006). That statute reads, in relevant
part: “A court of the United States shall have power to punish
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by fine or imprisonment, or both, at its discretion, such
contempt of its authority as . . . Disobedience or resistance to
its lawful writ, process, order, rule, decree, or command.” 18
U.S.C. § 401(3) (2006). Hawkins was informed at the Fed. R.
Crim. P. 11 hearing that there was no maximum sentence for
violation of § 401(3). This is an accurate statement of the
maximum sentence. See Richmond Black Police Officer’s Ass’n v.
City of Richmond, 548 F.2d 123, 128 (4th Cir. 1977) (“18 U.S.C.
§ 401(3) does not contain statutory maximums regarding penalties
which may be imposed.”). Therefore, we conclude that Hawkins’
guilty plea was knowing, voluntary, and effective.
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the material before this
court and argument will not aid the decisional process.
AFFIRMED
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