Gregory Sullivan v. United States

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0787n.06
Case Nos. 11-5138/12-5461
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Oct 16, 2014
GREGORY SULLIVAN, )
DEBORAH S. HUNT, Clerk
)
Petitioner-Appellant, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
UNITED STATES of AMERICA, ) DISTRICT OF KENTUCKY
)
Respondent-Appellee. )
)
Before: BATCHELDER and McKEAGUE, Circuit Judges; OLIVER, District Judge.*
ALICE M. BATCHELDER, Circuit Judge. Petitioner Gregory Sullivan appeals the
district court’s denials of his 28 U.S.C. § 2255 motion to vacate his conviction and his motion to
alter or amend that decision. In addition to challenging the district court’s judgments, Sullivan
has filed motions here, including a motion to supplement the record with additional materials
that were not before the district court or to remand for the district court to admit those materials.
The government also moved for a remand concerning Sullivan’s motion to supplement. For the
reasons that follow, we DENY the motions; AFFIRM the judgments in part and REVERSE in
part; and REMAND to the district court for resentencing consistent with this opinion.
I.
This case has a lengthy and tangled procedural history, much of which is pertinent to the
disposition of this appeal and is, therefore, described here in some considerable detail. Before
*
The Honorable Solomon Oliver, Jr., Chief United States District Judge for the Northern District of Ohio,
sitting by designation.
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proceeding, however, it bears mention that while Sullivan (when filing pro se) and his counsel
(appointed for this appeal) make allusions to “actual innocence,” there is no such showing here.
Rather, confronted with a forest of evidence against him, Sullivan and counsel have taken
aim at a few stray branches, at which they hack away virulently in an apparent hope that we
might mistake these branches for the forest itself. But the forest of evidence is overwhelming –
the prosecutor proved Sullivan was guilty, the jury rendered a unanimous guilty verdict, and the
district court sentenced Sullivan less harshly than it could have. Sullivan and his counsel have
their own reasons for persisting in a never-ending litany of motions and amendments, but at
some point that must come to an end.
A.
Between December 1999 and June 2002, Gregory Sullivan robbed 12 banks in northern
Kentucky, of a total of $107,425. When he was caught, the federal prosecutor charged him with
ten counts of bank robbery, in violation of 18 U.S.C. § 2113(a), two counts of armed bank
robbery, in violation of 18 U.S.C. § 2113(a) and (d), and two counts of use of a firearm during
and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). Sullivan
entered not-guilty pleas on all counts and the prosecutor tried the case to a federal jury.
At trial, the prosecutor produced 25 eyewitnesses to describe the robber and the
robberies. More importantly, 15 of those eyewitnesses – at least one for every robbery –
specifically identified Sullivan as the robber. The prosecutor corroborated the testimony with
independent evidence, such as surveillance video, and a shirt and ball cap recovered from
Sullivan’s possession that matched certain witness descriptions. The police had lifted Sullivan’s
fingerprint from one of the robberies and had matched the description of the getaway car to a
Camaro Z-28 registered to Sullivan’s wife. Another police officer testified that his encounter
with Sullivan on October 11, 2000 – the same day as one of the robberies – was memorable
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because Sullivan had a large amount of cash, in $20 and $50 bills. A Boone County Child
Support Officer testified that, on October 25, 2000 – the day of another robbery – Sullivan made
a $3,000 cash payment, in $50 and $100 bills. And several witnesses linked Sullivan to “bait
bills” from another robbery. Finally, two jail-house informants testified that Sullivan had
boasted about his committing the robberies, describing himself as the “Bandana Bandit.”
Sullivan called two witnesses in his defense and testified himself. He asserted that he did
not use any bank and relied solely on cash, that he had not robbed the banks, and that all of the
prosecution witnesses were mistaken or lying. Sullivan did not provide an explanation for how
he had obtained the cash or an alibi for any of the 12 robberies, nor did any other witness.
The jury convicted Sullivan on all 14 counts. The district court ordered a Presentence
Report (PSR) for sentencing and, relying on the report’s information, sentenced Sullivan to
572 months in prison (the high end of the then-mandatory range) and $107,425 in restitution.1
Sullivan appealed here, claiming that the evidence was insufficient to convict him of
three of the robberies; the photo lineup had been unduly suggestive; and the government had
failed to disclose certain exculpatory evidence, namely discarded fiber and hair samples taken
from a bandana worn by the robber during one robbery and copies of the suspect-description
forms completed by some eyewitnesses shortly after certain robberies. We rejected these claims
and affirmed his conviction. See United States v. Sullivan, 431 F.3d 976 (6th Cir. 2005).
Sullivan had also claimed ineffective assistance of trial counsel, but we declined to decide that
1
The PSR tabulated Sullivan’s total offense level at 32 and criminal history at III, which produced a
sentencing range of 151-188 months. But by statute, the two counts regarding the use of a firearm during and in
relation to a crime of violence required consecutive sentencing, to each other and all other counts, which added
84 and 300 months, respectively. See 18 U.S.C. §§ 924(c)(1)(A)(ii) (brandishing) & 924(c)(1)(C)(i) (second or
subsequent such offense). The final range was 535-572 months. The PSR also recommended an upward departure
because the Guidelines maximum was five robberies, leaving seven robberies unaccounted for in this calculation.
Sullivan had obtained new counsel for sentencing (who remained Sullivan’s counsel for his direct appeal)
and that counsel filed an objection to the upward departure, stating that “given [Sullivan’s] age, the amount of
924(c) time he is going to serve, and the amount of time he is going to receive as a result of the bank robberies . . .
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claim on the record then before us, preferring instead to follow our ordinary practice of directing
a defendant to file ineffective-assistance-of-counsel claims in a post-conviction proceeding under
28 U.S.C. § 2255. Sullivan did not raise a Blakely/Booker claim concerning his sentence.2
B.
On September 24, 2007, Sullivan filed pro se a “Motion Under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence.” On December 10, 2007, he replaced that motion with
an amended § 2255 motion (his first amended § 2255 motion), also pro se, in which he alleged
several constitutional violations. (1) Sullivan claimed that his trial counsel was ineffective for
failing to compel discovery of over 50 FBI 302 reports, reports of other suspects, bank videos,
local police department reports, and witness statements, or to conduct an adequate investigation;
failing to call the fingerprint expert; failing to call two purported alibi witnesses (i.e., the
Miniards); failing to object to the magistrate judge’s recommendation about his motion to
suppress witness identifications; and for allowing him to attend the evidentiary hearing wearing
his prison garb. (2) He claimed that his appellate counsel was ineffective for failing to consult
him to obtain his consent to the issues to be raised on appeal; failing to raise unspecified but
“relevant factual claims”; failing to investigate the purported alibi witnesses; filing the
ineffective-assistance-of-trial-counsel claim on direct appeal; and for filing the original (since
dismissed) § 2255 motion prematurely. (3) He claimed that he was entitled to resentencing
he is looking at a life sentence. I don’t see any efficacy in departing upward given the fact that he will be in his mid-
eighties when released. Therefore, it follows that the sentence is adequate.” The PSR noted this objection.
2
On September 23, 2004, Sullivan’s counsel moved the district court to vacate his sentence pursuant to
28 U.S.C. § 2255, claiming, among other things, that the court’s addition of four offense levels in calculating his
sentencing guidelines violated Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S.
296 (2004). Because the direct appeal was pending, the government responded that the motion was premature and
moved to dismiss. On November 1, 2004, the court agreed and rejected the premature § 2255 motion, dismissing it
without prejudice. Despite our thorough review of the record, we found no docket entry or other evidence of any
attempt by Sullivan or his counsel to amend his direct appeal to add an Apprendi/Blakely claim or a claim pursuant
to United States v. Booker, 543 U.S. 220 (2005) (filed Jan. 12, 2005). We decided his appeal on December 22,
2005.
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pursuant to United States v. Booker, 543 U.S. 220 (2005). (4) He claimed that the prosecution
had withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963),
specifically the hair samples and witness statements he had raised on direct appeal and the
aforementioned FBI and police reports. (5) He claimed that he had not consented to a magistrate
judge’s presiding over his suppression hearing and that the hearing itself was therefore illegal.
(6) He claimed that his trial and appellate counsels’ cumulative errors had denied him a fair trial.
And he requested an evidentiary hearing on all of these claims. The government responded on
March 10, 2008, opposing each of these claims and denying the need for any hearing.
On July 28, 2008, the magistrate judge issued a Report and Recommendation (“R&R”)
finding Sullivan’s claims meritless and advising the district court to deny the motion in its
entirety. The magistrate judge concluded the R&R with the following warning, particularly
pertinent to Sullivan: “Particularized objections to this Report and Recommendation must be
filed within ten days of the date of service or further appeal is waived. A general objection that
does not ‘specify the issues of contention’ is not sufficient to satisfy the requirement of a written
and specific objection. Poorly drafted objections [and] general objections . . . are insufficient to
preserve the right of appeal” (case citations omitted here). Neither party filed objections.
Over the next two years, Sullivan obtained five extensions of time to file a response,
specifically to file “objections” to the R&R.3 Ultimately, Sullivan had until March 29, 2010, to
file his objections but he never did so. Instead, on March 26, 2010, he moved to amend his first
3
On August 7, 2008, Sullivan filed pro se a handwritten “Request for Enlargement of Time for Objections
to the Magistrates [sic] Report and Recommendation,” which the district court granted. On October 27, 2008,
Sullivan filed pro se a handwritten “Second Request for Enlargement of Time for Objections to the Magistrates [sic]
Report and Recommendation,” also granted. On January 13, 2009, Sullivan filed pro se a motion which included in
part a “third and final request for an extention [sic] of time for petitioner to object to the magistrates [sic] report and
recommendation to petitioner’s 28 USC 2255,” again granted. On March 27, 2009, Sullivan filed pro se a
handwritten “Objections to the Magistrates [sic] Report and Recommendation Petitioner’s Request for an
Enlargement of time Until he is Medically Cleared from Federal Medical Center Butner, North Carolina, at Least
Six More Months,” also granted. And on September 14, 2009, Sullivan filed his fifth and final “Request for
Enlargement of Time for Objections to Report and Recommendation,” which the district court also granted.
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amended § 2255 motion (i.e., to file a second amended § 2255 motion) and to recall the July 28,
2008, R&R. And on March 30, 2010, Sullivan moved to strike his March 26 motion and
substitute a different motion for leave to amend his first amended § 2255 motion and recall the
R&R. On August 4, 2010, the district court issued a Memorandum Opinion denying Sullivan’s
motions, adopting the R&R, and denying Sullivan’s first amended § 2255 motion.
The district court did not, however, enter a separate “judgment” – on the docket or
otherwise – as is required by Federal Rule of Civil Procedure 58(a) to render it entered and final.
Consequently, this judgment was considered “entered” only after 150 days had passed from entry
of the decision. That was January 1, 2011. See Fed. R. Civ. P. 58(c)(2)(B); Fed. R. App. P.
4(a)(7)(A)(ii). Thus it was later determined that Sullivan’s appeal from this judgment was timely
and this August 4, 2010, judgment is the first of two judgments that he challenges here.
C.
On August 31, 2010, Sullivan moved to alter or amend the district court’s August 4
decision and renewed his motion for an evidentiary hearing. The district court denied that
motion on November 24, 2010, explaining that, in view of Sullivan’s clear understanding that he
was to file objections to the R&R and his failure to do so, he had waived or defaulted on his right
to appeal the judgment adopting the R&R. The court also declined to apply equitable tolling
and, after analyzing Sullivan’s claims of ineffective assistance of counsel, found those claims
insufficient to overcome his waiver or default. The court denied a hearing as moot.
This November 24, 2010, judgment, which was also considered “entered” and final after
150 days, is the second of the two judgments that Sullivan challenges here. These two
judgments are the district court’s final decisions on Sullivan’s first amended § 2255 motion.
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D.
Sullivan next filed three successive motions (the “December 2010 motions”). On
December 1, 2010, despite the fact that the district court had already ruled on his § 2255 motion,
Sullivan moved again for leave to amend that first amended § 2255 motion and file his second
amended § 2255 motion. On December 6, 2010, Sullivan moved the district court to reconsider
its November 24 decision and, on that same day, moved the court yet again for leave to amend
the first amended § 2255 motion and file his second amended § 2255 motion.
On January 27, 2011, Sullivan filed a notice of appeal (Sixth Circuit No. 11-5138) and
correspondingly moved the district court to hold that notice in abeyance until it had ruled on his
pending motions. On February 18, 2011, Sullivan moved the district court for a certificate of
appealability (COA) on several issues and sub-issues. On May 18, 2011, the district court
granted Sullivan a COA as to one issue: whether an evidentiary hearing was warranted on
Sullivan’s claim that he was entitled to resentencing pursuant to Booker or Apprendi. On June 8,
2011, the court denied Sullivan’s motion to hold the notice of appeal in abeyance.
On June 28, 2011, we thoroughly considered the timeliness of Sullivan’s appeal and,
ultimately finding it timely, accepted his appeal from both the August 4 and November 24, 2010,
decisions, but remanded for the district court to rule on Sullivan’s three December 2010 motions
(i.e., the two motions to further amend his § 2255 motion and his motion to reconsider the
November 24 decision). When the district court did not rule, Sullivan petitioned for a writ of
mandamus to compel the district court to rule. On September 22, 2011, we denied that petition
with the caveat that Sullivan could renew the petition in six months if the district court had still
not ruled. On November 7, 2011, the district court denied the motions, holding that the motions
to amend were both time barred and substantively meritless and the motion to reconsider was
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unpersuasive. On March 13, 2012, Sullivan moved the district court to enter final judgment and
rule on his request for a COA, which it did on March 14, 2012, denying any COA on any issue.4
E.
Sullivan appealed again on April 6, 2012 (Sixth Circuit No. 12-5461) and moved to
expand his COA to encompass several issues, some of which were raised to the district court 5
and others of which were not.6 Sullivan also filed two additional motions to expand the COA to
include the district court’s denial of his motions to further amend his § 2255 motion, to recall the
R&R, and to assert additional claims based on various documents he had received from the
government in 2010 and 2011 via the Freedom of Information Act (FOIA). Additionally,
Sullivan then sought to expand the COA to add claims that the government was in violation of
FOIA for withholding further documents. Finally, he sought to include his challenge to the
district court’s orders denying his motions to amend or reconsider its decisions.
Because Sullivan was raising new claims and attempting to introduce new evidence –
such as the FOIA documents – the government moved to remand this case to the district court for
an evidentiary hearing in which it could contest or explain the new allegations. Sullivan
responded that this court should treat his motions as alternatively requesting authorization to file
a second or successive § 2255 motion or a remand to permit him to amend his first amended
§ 2255 motion to raise new claims or expand his prior claims in light of the FOIA materials.
4
While this order would appear to negate the district court’s earlier grant of a COA on the issue of whether
an evidentiary hearing was warranted on Sullivan’s claim that he was entitled to resentencing pursuant to Booker or
Apprendi, any such effect is rendered irrelevant by our subsequent grant of a COA that includes that claim.
5
For example, Sullivan cited the issues raised in his first amended § 2255 motion: the government had
withheld Brady evidence that numerous eyewitness identifications were unreliable; that trial counsel was ineffective
by failing to conduct a reasonable pre-trial investigation, compel further discovery, hire a fingerprint expert, or
investigate and compel testimony from alibi witnesses; that counsels’ cumulative errors deprived him of a fair trial;
and that the district court improperly refused to hold an evidentiary hearing on these claims.
6
For example, Sullivan accused the government of withholding evidence that images of the robber from
security cameras were digitally altered; his fingerprint at the bank was planted; others committed the robberies; one
of the bait bills was planted to frame him; and evidence was destroyed, altered, suppressed, or fabricated.
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On December 12, 2012, we granted in part Sullivan’s motion to expand his COA, holding
that the COA was granted “only to those issues raised in Sullivan’s motion to dismiss and
amended motion to dismiss,” meaning his original § 2255 motion (Sept. 24, 2007) and his first
amended § 2255 motion (Dec. 10, 2007), on which he has relied exclusively since that time, and
which the district court denied in judgments dated August 4 and November 24, 2010.
F.
With the COA questions resolved, we consolidated his appeals and, on March 11, 2013,
appointed counsel for Sullivan. On April 9, 2013, we set a briefing schedule for this appeal.
Then, on July 8, 2013, despite the clear statement in our December 12 order expressly
limiting the COA, Sullivan’s counsel moved to supplement the record with the documents that
Sullivan had obtained via FOIA, or to remand for the district court to do so. The government
opposed the motion, arguing that those documents are “misleading, incomplete, and not
exculpatory,” and “fail to establish a legitimate Brady claim.” After multiple extensions of time,
on August 9, 2013, Sullivan’s counsel finally replied, asserting that the documents would
warrant an evidentiary hearing on a Brady claim for three of the 12 robberies. We deferred
decision on that motion, referring it to this panel as part of this appellate judgment.
G.
With briefing complete, we heard argument on March 20, 2014. We find that the
arguments made on appeal and the motions raised herein are now ready for decision.
II.
Five particular doctrines govern our analysis in this appeal. To minimize repetition and
focus our analysis concisely, we set forth the legal standard for each doctrine here at the outset
and apply them to Sullivan’s factual claims individually in the subsections that follow.
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Certificate of Appealability (COA). Our “[a]ppellate review of a petitioner’s § 2255
motion is limited to those issues specified in the certificate of appealability.” Dunham v. United
States, 486 F.3d 931, 934 (6th Cir. 2007). If we were to consider claims beyond the scope of the
certificate of appealability, it would contravene our prior (Dec. 12, 2012) order. See id.
Procedural Default. A petitioner must raise his claims on direct appeal, “[o]therwise, the
claim is procedurally defaulted” for purposes of § 2255 review. Peveler v. United States,
269 F.3d 693, 698 (6th Cir. 2001) (citing Bousley v. United States, 523 U.S. 614, 621 (1998)).
Cause and Prejudice to Overcome Procedural Default. “Where a defendant has
procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in
[a § 2255 motion] only if the defendant can first demonstrate either cause and actual prejudice,
or that he is actually innocent.” Bousley, 523 U.S. at 622 (quotation marks omitted). Here,
Sullivan argues cause and prejudice based on ineffective assistance of his appellate counsel.
To prove ineffective assistance of appellate counsel, Sullivan must show both deficient
performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). Notably,
appellate “counsel has no obligation to raise every possible claim and the decision of which
among the possible claims to pursue [on appeal] is ordinarily entrusted to counsel’s professional
judgment,” and “[c]ounsel’s performance is strongly presumed to be effective.” McFarland v.
Yukins, 356 F.3d 688, 710 (6th Cir. 2004) (citations omitted). “[O]nly when ignored issues are
clearly stronger than those presented, will the presumption of effective assistance of [appellate]
counsel be overcome.” Joshua v. DeWitt, 341 F.3d 430, 441 (6th Cir. 2003).
More specifically, the “process of winnowing out weaker arguments on appeal and
focusing on those more likely to prevail, far from being evidence of incompetence, is the
hallmark of effective appellate advocacy.” Smith v. Murray, 477 U.S. 527, 536 (1986) (quotation
marks omitted); Jones v. Barnes, 463 U.S. 745, 751-52 (1983) (“Experienced advocates since
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time beyond memory have emphasized the importance of winnowing out weaker arguments on
appeal and focusing on one central issue if possible, or at most on a few key issues.”).
Waiver of the Right to Appeal from the Magistrate Judge’s R&R. The “failure to object
to the magistrate’s report and recommendation prior to the district court’s adoption of such report
constitutes a waiver of a right to appeal the district court’s order.” United States v. Walters,
638 F.2d 947, 949 (6th Cir. 1981). In this case, the July 28, 2008, R&R was emphatically clear
on this point, asserting: “Particularized objections to this Report and Recommendation must be
filed within ten days of the date of service or further appeal is waived [and] [a] general objection
that does not specify the issues of contention is not sufficient to satisfy the requirement of a
written and specific objection” (quotation marks omitted), citing United States v. Sullivan,
431 F.3d 976, 984 (6th Cir. 2005),7 Thomas v. Arn, 728 F.2d 813, 814-15 (6th Cir. 1984), aff’d
474 U.S. 140, 155 (1985), and Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995), among others.
But “this rule is procedural and not jurisdictional, [so we] may excuse compliance with it
in the interests of justice.” Thomas, 474 U.S. at 155 (citing plain error by the district court as a
possible basis for excuse). We apply this excuse infrequently and under only “exceptional
circumstances,” Murphy v. Reed, 22 F. App’x 390, 391 (6th Cir. 2001), such as a change in the
law, Souter v. Jones, 395 F.3d 577, 585 (6th Cir. 2005), an obstacle to filing the objections,
Smith v. Woods, 505 F. App’x 560, 564 (6th Cir. 2012), or an otherwise sufficient showing of
“excusable neglect or good cause,” Corsetti v. Tessmer, 41 F. App’x 753, 755 (6th Cir. 2002).
7
Notably, this was the opinion from Sullivan’s own direct appeal, in which we held that “Sullivan’s failure
to object to the magistrate judge’s Report and Recommendation constitutes a waiver of his right to appeal the
admission of the identification evidence. . . . This court has repeatedly held that a defendant must file such
objections in order to preserve the issue for appeal.” Sullivan, 431 F.3d at 984 (citations omitted).
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Second or Successive § 2255 Motions. Before a petitioner may file a second or
successive § 2255 motion, he must obtain a certification from the court of appeals authorizing
the district court to consider the motion. 28 U.S.C.A. § 2255(h) (citing § 2244(b)(3)(A)).
To obtain that certification, the petitioner “must make a prima facie showing that:
(1) there is newly discovered evidence that, if proven and viewed in light of the evidence as a
whole, sufficiently establishes that no reasonable factfinder would have found him guilty; or
(2) a new rule of constitutional law applies to his case that the Supreme Court has made
retroactive to cases on collateral review. Any claim that was presented in a prior § 2255 motion
must be dismissed.” In re Liddell, 722 F.3d 737, 738 (6th Cir. 2013) (citations omitted).
A. Brady Violation
“[T]he suppression by the prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt or to punishment, irrespective
of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87 (1963).
In her appellate brief, Sullivan’s counsel points to numerous documents allegedly
withheld in violation of Brady, specifically concerning: the results of a photo array (Mary Ann
Vowels); fingerprint evidence; local police reports (concerning alternative suspects and other
robberies); internal FBI reports (opining that different perpetrators committed different
robberies, and that the robber had brown eyes), certain witness statements (Kara Fields, Karen
Gomes, Paula Hopkins, and other unnamed witnesses), and documentation about the “bait bill.”
1.
The government argues that Sullivan has procedurally defaulted his claims concerning
some of these documents because he failed to raise them on direct appeal. On October 30, 2003,
and again on November 26, 2003, Sullivan’s appellate counsel filed notices with the district
court memorializing specific lists of evidentiary documents he had received from the government
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on September 26, 2003, and November 10, 2003, respectively. Included on these lists were
certain documents that Sullivan’s current counsel relies on here, including: the Boone County
Police report of the photo array shown to Mary Ann Vowels and her response; witness
statements from Karen Fields, Karen Gomes, and numerous other witnesses; several local police
reports concerning suspects, robberies, and fingerprint evidence, and at least two FBI reports.
Sullivan’s current counsel concedes that the government provided this information,
specifically the Boone County Police report of the photo array shown to Mary Ann Vowels and
her response, but also explains that “[t]he descriptions of the documents in the inventory list filed
by appellate counsel were not detailed enough, however, to confirm disclosure status with
respect to every document,” and that she was unsuccessful in her attempts to contact Sullivan’s
appellate counsel for further clarification. The government’s brief does not dispute this.
We agree with Sullivan’s counsel that the inventory lists are not sufficiently detailed to
include every document she relies on, but it certainly includes some, specifically the documents
regarding witnesses Mary Ann Vowels, Karen Fields, and Karen Gomes. Consequently,
Sullivan has procedurally defaulted on any Brady claims concerning these documents because
his appellate counsel, who had these documents, did not raise these claims on direct appeal.
2.
Sullivan’s current counsel seeks to excuse this procedural default based on her assertion
that Sullivan’s appellate counsel was constitutionally ineffective, specifically for (1) including an
ineffective-assistance-of-counsel claim even though such claims are generally not cognizable on
direct appeal and (2) failing to include all of the potential Brady evidence, inasmuch as the court
considers such evidence cumulatively so “there is no strategic upside, and all strategic downside,
in failing to raise all arguments in support of a Brady claim.” We cannot agree.
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The decision of which among the possible claims to pursue on appeal is entrusted to
counsel’s professional judgment, which is presumed to be effective unless the ignored issues are
clearly stronger than those presented.8 McFarland, 356 F.3d at 710; Joshua, 341 F.3d at 441.
Sullivan’s first contention is that his current Brady claim was clearly stronger than the
ineffective-assistance-of-trial-counsel claim, but that misses the point – it is not enough that the
ignored claim was stronger than one of the claims actually presented; to overcome the
presumption of effectiveness, the ignored claim must have been clearly stronger than all of those
other claims that were actually presented. Moreover, Sullivan’s contention is inapposite
inasmuch as he did raise a Brady claim on direct appeal, albeit a different one, and is
unpersuasive because we did not deny that ineffective-assistance claim on direct appeal, but
deferred it to his § 2255 motion and he continues to press the legitimacy of that claim even here.
As for Sullivan’s second contention – that counsel was ineffective for failing to raise all
of the possible Brady evidence – that is unsupported by, and contradictory to, established law,
which holds that “selecting,” “winnowing,” and “focusing” arguments “is the hallmark of
effective appellate advocacy.” Smith, 477 U.S. at 536; Jones, 463 U.S. at 751. We therefore
decline Sullivan’s proposition that counsel’s failing to include all of the potential Brady evidence
is necessarily ineffective assistance because the court considers such evidence cumulatively.
Sullivan cannot excuse his procedural default on this claim.
3.
As for the remainder of the documents allegedly withheld in violation of Brady, Sullivan
raised those in his § 2255 motion, the magistrate judge rejected those claims in the R&R, and the
8
Sullivan’s appellate counsel raised five claims in his direct appeal: (1) a Sixth Amendment claim
concerning his request to substitute counsel; (2) an insufficient-evidence claim concerning three of the robberies;
(3) a claim that the photo lineup had been unduly suggestive; (4) a Brady claim concerning discarded fiber and hair
samples and eyewitness interview forms; and (5) an ineffective-assistance-of-trial-counsel claim. We rejected the
first four and declined to decide the ineffective-assistance claim. Sullivan, 431 F.3d at 978.
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district court adopted the R&R, thereby rejecting those claims in its judgment. Because Sullivan
did not file objections to the R&R, he waived his right to appeal. See Walters, 638 F.2d at 947.
Sullivan’s current counsel contends that Sullivan’s pro se motion to amend his § 2255
and to recall the R&R suffices as “objections,” despite the fact that it raised no objections and
instead merely announced that he had acquired new evidence which he intended to introduce.
But, based on our thorough review of the R&R, the district court’s judgments, and Sullivan’s
motions, we reject such a reading as unreasonable and wholly unsupportable. We also agree
with the district court’s findings that Sullivan had actual notice of the requirements, understood
that he was to file objections but failed to do so, and was not reasonable in his alleged ignorance.
Finally, counsel urges us to excuse Sullivan’s waiver because the district court reviewed
the R&R “on the merits rather than resting on waiver.” We do not agree that the district court
reviewed these Brady claims on the merits, but even if it had, this is not the type of “exceptional
circumstance” that would justify excusing compliance. See, e.g., Murphy, 22 F. App’x at 391;
Souter, 395 F.3d at 585; Smith, 505 F. App’x at 564; Corsetti, 41 F. App’x at 755.
Sullivan has waived appeal of the district court’s denial of his Brady claims.
4.
Sullivan’s current counsel has urged us to supplement the record and admit hundreds of
pages of alleged Brady material that Sullivan obtained via FOIA. Because we find that Sullivan
waived appeal of the district court’s denial of his Brady claim, the substance of his requested
supplement is irrelevant to disposition of this appeal, so we deny this motion as moot.9
9
Counsel relies on Thompson v. Bell, 373 F.3d 688, 691 (6th Cir. 2005), rev’d on other grounds by 545 U.S. 794
(2005), for the proposition that we “have the inherent equitable power to supplement the record on appeal where the
interests of justice require.” Counsel noted that the Supreme Court reversed this opinion on other grounds, without
reaching this particular proposition, but failed to mention that Thompson concerned a § 2254 habeas petition for
relief from a state-court conviction, for which the Supreme Court has since rejected explicitly the possibility of
supplementing the record in federal court. See Cullen v. Pinholster, 563 U.S. --, 131 S. Ct. 1388 (2011).
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Sullivan v. United States
5.
At different points, both parties have moved for a remand to the district court for an
evidentiary hearing. Under § 2255(b), an evidentiary hearing is required “[u]nless the motion
and the files and records of the case conclusively show that the prisoner is entitled to no relief.”
28 U.S.C. § 2255(b). Because Sullivan waived appeal of the district court’s denial of his Brady
claim, the substance of his requested supplemental material is irrelevant to disposition of his
motion; he is conclusively entitled to no relief and we therefore deny these motions.
6.
When the government opposed Sullivan’s motion to supplement the record, Sullivan
requested that we treat his motions as alternatively seeking authorization to file a second or
successive § 2255 motion based on his “newly discovered” evidence. We decline to do so.
First, “[a]ny claim that was presented in a prior § 2255 motion must be dismissed,” In re
Liddell, 722 F.3d at 738, and Sullivan’s current counsel insists that “Sullivan has raised and
Given that Pinholster’s reasoning specifically addressed § 2254 proceedings, and thus it is not certain that it
would apply in a § 2255 situation, this could theoretically remain a valid proposition. Therefore, it bears mention
that counsel failed to note that Thompson – a highly unusual case to begin with – is the only opinion in the Sixth
Circuit that holds this proposition and does so under drastically different circumstances than we have here:
[W]e recognize that a number of our sister circuits have held that the courts of appeals have the
inherent equitable power to supplement the record on appeal, where the interests of justice require.
Although recent Sixth Circuit cases indicate that we have not yet embraced the notion that the
record can be supplemented under an appellate court’s equitable authority, in at least one earlier
state habeas case we have so supplemented the record. Because [1] the evidence here was
apparently negligently omitted, because [2] the evidence is so probative of Thompson’s mental
state at the time of the crime, because [3] there is no surprise to respondent as it was his counsel
who took the deposition, and because [4] this is a capital case, we believe that the circumstances
of this case merit consideration of the Sultan deposition pursuant to our equitable power to
supplement the record on appeal. . . .
Id. at 690-91 (quotation marks and citations omitted). Obviously, the facts and circumstances in Thomspon are very
different from those of this case, given that we have nothing in the present case comparable to the four unique facts
enumerated in the above passage. Moreover, Thompson supplemented the record with a single piece of evidence (a
psychiatrist’s deposition) that was presumptively relevant and reliable without inquiry into its specific substance.
Finally, it bears mention that the legal premise relied upon as support in the above passage (i.e., the earlier state
habeas case) has now also been overruled by Pinholster, thus further undermining that reasoning.
Consequently, even if our disposition of the Brady claim on procedural grounds had not rendered moot the
motion to supplement the record on appeal, we would decline to do so for lack of legal justification.
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Sullivan v. United States
preserved one Brady claim: Deprivation of a fair trial due to the government’s withholding of
numerous exculpatory reports.” If Sullivan has only one single Brady claim, which he raised in
his first amended § 2255 motion, then we cannot grant a subsequent § 2255 motion on this same
claim.
Moreover, Sullivan must show that his newly discovered evidence could not have been
discovered earlier through the exercise of due diligence. See United States v. Cottage, 307 F.3d
494, 500 (6th Cir. 2002). The district court held that “Sullivan could have taken steps to procure
this information earlier and, had he done so, could have presented this information to the court
through his prior habeas filings or through filing an objection to the R & R.” We agree and find
that Sullivan has not made a sufficient showing that he is entitled to file another § 2255 motion.
B. Motion to Amend the § 2255
In the appellate brief, Sullivan’s current counsel argues that the district court erred by
denying his motion(s) to amend his § 2255 motion. But our appellate review is limited to the
issues specified in the COA. See Dunham, 486 F.3d at 934. On December 12, 2012, we granted
Sullivan’s motion to expand his COA to only those issues raised in his original § 2255 motion
(September 24, 2007) and his first amended § 2255 motion (December 10, 2007). This
necessarily excludes his additional motions to amend. Consequently, we reject this claim.
C. Ineffective Assistance of Trial Counsel
In the appellate brief, Sullivan’s current counsel argues five ways in which Sullivan’s
trial counsel rendered constitutionally ineffective assistance, claiming that he: (1) failed to find
alibi witnesses; (2) failed to obtain government documents (the same documents underlying the
Brady claim); (3) failed to investigate fingerprint evidence and improperly relied on his expert’s
opinion that there was nothing exculpatory therein; (4) failed to object to the magistrate judge’s
ruling on the photo array recommending denial of the motion to suppress eye witness
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Sullivan v. United States
identification; and (5) failed to investigate the “bait bills” and their surrounding circumstances.
She also argues that these failings constitute cumulative error when taken altogether.
1.
Counsel raises the fifth of these arguments – trial counsel’s failure to investigate the “bait
bills” – for the first time here on appeal; Sullivan did not raise it in his initial § 2255 motion or
his first amended § 2255 motion. Our appellate review is limited to the issues specified in the
COA. See Dunham, 486 F.3d at 934. Consequently, we will not consider this claim.
2.
Sullivan raised the first four arguments and the cumulative-error argument in his first
amended § 2255 motion; the magistrate judge denied them in the R&R and the district court
adopted the R&R, thereby rejecting those claims in its judgment. Because Sullivan did not file
objections to the R&R, he waived his right to appeal. See Walters, 638 F.2d at 947.
For the same reasons set out previously with respect to the Brady claim, we reject the
contention that Sullivan’s motion to amend his § 2255 motion and to recall the R&R suffices as
“objections.” We also reject counsel’s argument that we should excuse Sullivan’s waiver.
Sullivan has waived appeal of the district court’s denial of these claims.
3.
In the appellate brief, Sullivan’s counsel claims that she has “at the least made sufficient
factual allegations of deficient performance to require an evidentiary hearing.” But, as with the
Brady claims, because we find that Sullivan waived appeal of the district court’s denial of these
claims, he is conclusively entitled to no relief and therefore to no evidentiary hearing.
4.
Sullivan has elsewhere asserted that we should consider his motions as alternatively
requesting authorization to file a second or successive § 2255 motion, presumably based on
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Nos. 11-5138/12-5461
Sullivan v. United States
“newly discovered” evidence. Because the first four arguments and the cumulative-error
argument were raised in his prior § 2255 motion, we cannot grant a successive § 2255 motion on
those. See Liddell, 722 F.3d at 738. As for the fifth argument (the “bait bill”), Sullivan has not
shown that this could not have been discovered earlier through the exercise of due diligence. See
Cottage, 307 F.3d at 500. Consequently, Sullivan is not entitled to file another § 2255 motion.
D. Resentencing
Sullivan seeks resentencing because he was originally sentenced under the mandatory
guidelines sentencing system that the Supreme Court declared unconstitutional in United States
v. Booker, 543 U.S. 220 (2005). More importantly, the Supreme Court issued Booker while
Sullivan’s case was pending on direct appeal and, therefore, Booker applied to him. Id. at 268.
1.
The district court held that Sullivan’s appellate counsel had procedurally defaulted on this
claim for failing to raise it on direct appeal. This is both factually and legally correct – Sullivan
procedurally defaulted this claim for purposes of § 2255 review. See Peveler, 269 F.3d at 693.
2.
Sullivan’s current counsel argues – and the government agrees – that appellate counsel’s
failure to raise this claim on direct appeal was ineffective assistance of counsel sufficient to
constitute cause and prejudice, and overcome procedural default. See Bousley, 523 U.S. at 622.
To prove ineffective assistance, Sullivan must show both deficient performance and
prejudice, see Strickland, 466 U.S. at 687, and in assessing deficient performance, we “must take
care not to second-guess [counsel’s] strategic decisions,” Jackson v. Bradshaw, 681 F.3d 753,
760 (6th Cir. 2012) (citing Strickland, 466 U.S. at 689) (quotation marks omitted). Recall that
Sullivan’s appellate counsel had also been his counsel for sentencing, during which he had
successfully objected to the PSR’s recommendation for an upward departure to account for the
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Nos. 11-5138/12-5461
Sullivan v. United States
seven robberies that were excluded from the mandatory guidelines calculations. In fact, counsel
had concluded his written objection by asserting that the guideline-mandated “sentence is
adequate.” It is therefore possible that he omitted the resentencing claim from direct appeal as a
strategic decision to avoid the possibility of reviving the threat of an upward departure at
resentencing under a new advisory guidelines scheme. Or it could be that he decided to omit this
claim (challenging a sentence that he considered “adequate”) and focus on stronger arguments.
Nonetheless, we have held that counsel’s failure to raise Booker’s change in federal
sentencing law, while the case was on direct appeal, is objectively unreasonable. Ballard v.
United States, 400 F.3d 404, 408-09 (6th Cir. 2005). Moreover, prejudice is presumed, United
States v. Barnett, 398 F.3d 516, 529 (6th Cir. 2005), and rebutted in only rare cases, United
States v. Mooneyham, 473 F.3d 280, 295 (6th Cir. 2007). Consequently, Sullivan’s appellate
counsel was ineffective and that ineffectiveness serves to overcome the procedural default.
Sullivan is entitled to re-sentencing under the advisory guideline scheme.
III.
For the forgoing reasons, we DENY each of the motions raised here; we AFFIRM the
judgments of the district court as to all aspects of Sullivan’s conviction; we REVERSE the
judgment of the district court that Sullivan procedurally defaulted his Booker-based sentencing
claim; and we REMAND to the district court for resentencing consistent with this opinion.
20