Carthen v. United States of America (INMATE 3)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

TREMANE DARNELL CARTHEN, )

)

Petitioner, )

)

v. ) CASE NO. 2:19-CV-593-WKW-KFP

) (WO)

UNITED STATES OF AMERICA, )

)

Respondent. )

RECOMMENDATION OF THE MAGISTRATE JUDGE

Before the Court is federal prisoner Tremane Darnell Carthen’s Motion to Vacate,

Set Aside, or Correct Sentence under 28 U.S.C. § 2255. Doc. 1.1 For the reasons discussed

below, the Magistrate Judge RECOMMENDS that Carthen’s § 2255 Motion be DENIED

without an evidentiary hearing and that this action be DISMISSED with prejudice.

I. BACKGROUND

On September 8, 2016, a jury found Carthen guilty of one count of conspiracy to

commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a) (Count 1); three counts of

Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a) (Counts 2, 4, and 6); three counts

of brandishing a firearm during a crime of violence, in violation of 18 U.S.C.

§ 924(c)(1)(A)(ii) (Counts 3, 5, and 7); and one count of being a felon in possession of a

1 References to document numbers of the pleadings, motions, and other materials in the Court file in this

§ 2255 action, as assigned on the docket sheet by the Clerk of Court, are designated as “Doc.” References

to document numbers assigned by the Clerk in the underlying criminal case (CASE NO. 2:15-CR-511-

KKD) are designated as “Crim. Doc.” Pinpoint citations are to the pages of the electronically filed

documents in the Court’s CM/ECF filing system, which may not correspond to pagination on the “hard

copy” of the document presented for filing.

firearm, in violation of 18 U.S.C. § 922(g)(1) (Count 8).2 After a sentencing hearing on

December 5, 2016, the district court sentenced Carthen to 685 months (57 years and one

month) in prison, consisting of one month as to Counts 1, 2, 4, 6, and 8 to run concurrently

to each other and consecutively to the 84 months imposed as to Count 3; and 300 months

as to Counts 5 and 7 to run consecutively to each other and all other counts. Doc. 1-2 at 3.

Carthen appealed, arguing that (1) the district court erred in denying his motion for

judgment of acquittal challenging the sufficiency of the government’s evidence; (2) the

district court erred in permitting coconspirator Kevin Martin to testify about hearsay

statements attributed to Carthen and coconspirator Scottie Groce; and (3) the district court

misapplied 18 U.S.C. § 924(c)’s mandatory minimum sentencing scheme in his case. On

October 25, 2018, the Eleventh Circuit issued an opinion affirming Carthen’s convictions

and sentence. See United States v. Carthen, 906 F.3d 1315 (11th Cir. 2018).

On August 12, 2019, Carthen, acting pro se, filed this § 2255 motion asserting the

following claims:

1. The government’s evidence was insufficient to connect him to the

robbery conspiracy or to prove the “affecting interstate commerce”

element of Hobbs Act robbery.

2. The district court misapplied 18 U.S.C. § 924(c)’s mandatory

minimum sentencing scheme because his three § 924(c) convictions

stemmed from the same incident.

3. The district court erred in excluding proposed evidence to impeach

testimony by coconspirator Kevin Martin.

2 Carthen was indicted with Scottie Groce and Kevin Martin in November 2015 for crimes arising out of

their robbery of three Alabama gas stations in July 2014. Carthen and Groce were tried together. The

government’s key witness at trial was their coconspirator, Martin, who agreed to testify after entering a

guilty plea.

4. He “never received an evidentiary hearing for the cases he was

[implicated] in by his codefendants in the district court.”

5. The district court’s denial of his motion to sever his trial from that of

coconspirator Scottie Groce deprived him of his right to confront

Groce.

6. The government failed to provide a warrant for one of the gas station

robberies.

7. He was not afforded a detention hearing.

8. His § 924(c) convictions are invalid, given the Supreme Court’s

holding in United States v. Davis, 139 S. Ct. 2319 (2019).

9. Bill Wayne Lewis, Jr., the attorney who represented him in

proceedings that took place before trial but withdrew as his counsel

before trial, rendered ineffective assistance by operating under a

“conflict of interest” stemming from Mr. Lewis’s sister’s position as

the lead deputy district attorney in Carthen’s prosecution at the state

level.

10. Trial counsel Richard K. Keith rendered ineffective assistance by

failing to (a) move for a continuance to ensure he was prepared for trial

after Mr. Lewis withdrew as Carthen’s counsel; (b) move to suppress

the government’s DNA evidence; and (c) seek severance of his trial

from that of coconspirator Groce.

11. Appellate counsel Roianne Houlton Conner rendered ineffective

assistance by failing to (a) provide him with a complete transcript of

the sentencing hearing and (b) argue the sufficiency of the

government’s evidence to support his conspiracy conviction and

Hobbs Act robbery convictions.

Doc. 1 at 4-20.3

3 Carthen’s claims overlap in places and are sometimes repetitive, and they are not always presented in a

clear and logical fashion. For organizational and analytical purposes, the Court has recast some of the claims

in a more appropriate presentation.

On May 5, 2021, Carthen filed an amendment to his § 2255 motion essentially

reasserting his argument that his § 924(c) convictions are invalid under the Supreme

Court’s holding in Davis. Doc. 36.

II. LEGAL STANDARD

The grounds for collateral attack on final judgments under 28 U.S.C. § 2255 are

limited. A prisoner may have relief under § 2255 if the court imposed a sentence that (1)

violated the Constitution or laws of the United States, (2) exceeded its jurisdiction, (3)

exceeded the maximum authorized by law, or (4) is otherwise subject to collateral attack.

See 28 U.S.C. § 2255. See also McKay v. United States, 657 F.3d 1190, 1194, n.8 (11th

Cir. 2011). “Relief under 28 U.S.C. § 2255 ‘is reserved for transgressions of constitutional

rights and for that narrow compass of other injury that could not have been raised in direct

appeal and would, if condoned, result in a complete miscarriage of justice.’” Lynn v. United

States, 365 F.3d 1225, 1232 (11th Cir. 2004) (citations omitted). If a court determines a

prisoner is entitled to § 2255 relief, it “shall vacate and set the judgment aside and shall

discharge the prisoner or resentence him or grant a new trial or correct the sentence as may

appear appropriate.” 28 U.S.C. § 2255(b). The petitioner, not the government, bears the

burden to establish that vacatur of the conviction or sentence is required. Beeman v. United

States, 871 F.3d 1215, 1221–22 (11th Cir. 2017).

III. DISCUSSION

A. Claims Raised and Resolved on Direct Appeal

1. Sufficiency of the Evidence

Carthen claims the government’s evidence was insufficient to connect him to the

robbery conspiracy or to prove the “affecting interstate commerce” element of Hobbs Act

robbery.4 Doc. 1 at 7. This claim is barred from § 2255 review.

On direct appeal, Carthen argued that the district court erred in denying his motion

for judgment of acquittal challenging the sufficiency of the government’s evidence to

support his conspiracy conviction5 and Hobbs Act robbery convictions.6 The Eleventh

Circuit reviewed Carthen’s claim and found that it lacked merit. See Carthen, 906 F.3d at

1319–20.

“The district court is not required to reconsider claims of error that were raised and

disposed of on direct appeal.” United States v. Nyhuis, 211 F.3d 1340, 1343 (11th Cir.

2000); see also United States v. Rowan, 663 F.2d 1034, 1035 (11th Cir. 1981). If a claim

4 The Hobbs Act provides that “[w]hoever in any way or degree obstructs, delays, or affects commerce or

the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires

so to do . . . shall be fined under this title or imprisoned not more than twenty years, or both.” 18 U.S.C. §

1951(a). The Act broadly defines “commerce” as being “commerce within the District of Columbia, or any

Territory or Possession of the United States; all commerce between any point in a State, Territory,

Possession, or the District of Columbia and any point outside thereof; all commerce between points within

the same State through any place outside such State; and all other commerce over which the United States

has jurisdiction.” 18 U.S.C. § 1951(b)(3).

5 The charged conspiracy was a conspiracy to commit Hobbs Act robbery.

6 Carthen did not challenge his felon-in-possession-of-a-gun conviction on appeal. See Carthen, 906 F.3d

at 1321 n.3.

has been raised on direct appeal and decided adversely to a defendant, it cannot be

relitigated in a collateral attack under § 2255. Nyhuis, 211 F.3d at 1343.

Carthen cannot relitigate his claim regarding the sufficiency of the evidence to

support his conspiracy conviction and Hobbs Act robbery convictions. Because this issue

was decided against him by the Eleventh Circuit on direct appeal, his present claim is

procedurally barred from § 2255 review.7

2. Misapplication of § 924(c)’s Mandatory Minimum

Sentencing Scheme

Carthen argues that the district court misapplied 18 U.S.C. § 924(c)’s mandatory

minimum sentencing scheme in sentencing him to a total of 57 years on his three § 924(c)

convictions.8 Doc. 1 at 8, 10. He maintains that the three § 924(c) convictions stemmed

from “the same incident” but that the district court improperly considered them to be

successive convictions for purposes of § 924(c)(1)(C)(i) and (D)(ii), which resulted in a

large increase in his sentence. Doc. 1 at 8.

7 As part of this claim, Carthen asserts that the government did not prove the “affecting interstate

commerce” element of Hobbs Act robbery. Doc. 1 at 7. Sufficient proof of this element of Hobbs Act

robbery was implicit in the Eleventh Circuit’s denial of Carthen’s claim challenging the sufficiency of the

evidence supporting his conspiracy conviction and Hobbs Act robbery convictions. In any event, as

discussed below in Part III.D.3 of this Recommendation, the government presented ample evidence to

satisfy the “affecting interstate commerce” requirement for Hobbs Act robbery.

8 When Carthen was sentenced in 2016, § 924(c)’s sentencing scheme had a “stacking” provision.

Defendants convicted of brandishing a firearm during a crime of violence under § 924(c) were subject to a

minimum sentence of seven years in prison on their first conviction, 18 U.S.C. § 924(c)(1)(A)(ii), and to a

minimum sentence of 25 years in prison for every conviction after that, 18 U.S.C. § 924(c)(1)(C)(i). These

sentences may not run concurrently with each other or with any other prison sentence. 18 U.S.C. §

924(c)(1)(D)(ii). Because Carthen was convicted of three counts under § 924(c) for brandishing a firearm

during a Hobbs Act robbery, the district court calculated he was subject to the following mandatory

minimum prison sentences for those convictions: one sentence of seven years and two sentences of 25

years, or a total of 57 years, on the § 924(c) counts. The district court sentenced him to this minimum for

those convictions.

Carthen presented this same argument on direct appeal. The Eleventh Circuit

reviewed his claim and found it to be without merit.9 See Carthen, 906 F.3d at 1321–22.

Because the claim was raised on direct appeal and decided adversely to Carthen, it cannot

be relitigated in this § 2255 action. Nyhuis, 211 F.3d at 1343; Rowan, 663 F.2d at 1035.

In making this claim, Carthen references to the First Step Act and suggests that the

district court’s application of § 924(c)’s mandatory minimum sentencing scheme,

commonly called “stacking,” violates the First Step Act. Doc. 1 at 10. Congress enacted

the First Step Act on December 21, 2018, making statutory penalties enacted under the Fair

Sentencing Act retroactive for covered offenses. See First Step Act, § 404. Before the First

Step Act, § 924(c) contained the “stacking” provision about which Carthen complains,

where, with a second or subsequent conviction under § 924(c), even if charged in the same

indictment, a defendant was to be sentenced to a consecutive term of imprisonment of not

less than 25 years. 18 U.S.C. § 924(c)(1)(C)(i). Section 403(a) of the First Step Act

amended this language so that the 25-year mandatory minimum on a second § 924(c)

violation only applies if the first § 924(c) conviction has become final. See First Step Act

9 In addressing this claim, the Eleventh Circuit stated:

Mr. Carthen disputes the District Court’s calculation. He correctly notes the twenty-five-

year minimum sentence only applies to “second or subsequent conviction[s].” 18 U.S.C. §

924(c)(1)(C)(i). But he incorrectly argues he did not receive any “second or subsequent

conviction” within the meaning of the statute because his three convictions “stem[med]

from the same incident.” This argument is foreclosed by binding precedent. See United

States v. Bowers, 811 F.3d 412, 430 n.12 (11th Cir. 2016) (“This Court previously held,

and the Supreme Court later confirmed, that additional § 924(c) counts charged in the same

indictment are second and subsequent for the purposes of § 924(c)(1)(A)(ii).”). The District

Court therefore did not miscalculate the mandatory minimum sentence.

906 F.3d at 1321–22.

§ 403(a). But § 403(b) explained that the amendments only apply “if a sentence for the

offense has not been imposed as of [the] date of enactment” of the First Step Act: December

21, 2018. Id. § 403(b). Carthen was sentenced in December 2016. Because the plain

language of § 403 of the First Step Act prohibits retroactive application, the First Step Act

does not provide authority to reduce Carthen’s sentence on his § 924(c) convictions in this

§ 2255 proceeding.10

3. Exclusion of Impeachment Testimony

Carthen contends that the district court erred in excluding proposed evidence to

impeach trial testimony by coconspirator Kevin Martin. Doc. 1 at 18–19, 20.

Although Carthen did not present this claim in his own appellate brief, the claim

was presented to the Eleventh Circuit in the same appeal by his coconspirator Scottie

Groce. The Eleventh Circuit reviewed the claim and found it to be without merit. See

Carthen, 906 F.3d at 1320–21.

The rationale the Eleventh Circuit applied in rejecting Groce’s claim—that the

excluded testimony was extrinsic evidence inadmissible under Fed. R. Evid. 608(b)—

would have applied equally to this claim had it been asserted by Carthen in his appeal. A

district court may not grant § 2255 relief inconsistent with the law of the case established

by the appellate court’s decision. Butcher v. United States, 368 F.3d 1290, 1299–1300. It

10 Further, a § 2255 motion would not be the appropriate vehicle for Carthen to seek a sentence reduction.

That is because § 2255 allows a prisoner to ask the Court to vacate or set aside his sentence on the ground

that “the sentence was imposed in violation of the Constitution or laws of the United States, . . . the court

was without jurisdiction to impose such sentence, or that the sentence [exceeded] the maximum authorized

by law.” 28 U.S.C. § 2255. But when Carthen’s sentence was imposed, the district court was required by

law to impose the 25-year mandatory-minimum sentence for each of his subsequent § 924(c) convictions.

Thus, § 2255 provides him no relief.

is beyond the purview of this Court to review the Eleventh Circuit’s ruling. The law of the

case doctrine “bars relitigation of issues that were decided, either explicitly or by necessary

implication, in an earlier appeal of the same case.” United States v. Jordan, 429 F.3d 1032,

1035 (11th Cir. 2005). Accordingly, this Court will not review Carthen’s claim regarding

the exclusion of impeachment testimony.

4. Lack of Hearing On Existence of Conspiracy

Carthen contends he “never received an evidentiary hearing for the cases he was

[implicated] in by his codefendants in the district court.” Doc. 1 at 10, 20.

Carthen does not elaborate on this claim, but he seems to suggest he was entitled to

a separate hearing where the government would have been required to prove the existence

of a conspiracy before coconspirator Kevin Martin could testify about hearsay statements

in furtherance of the conspiracy made by Carthen and coconspirator Scottie Groce. On

direct appeal, Carthen argued that the district court erred in permitting Martin to testify

about hearsay statements attributed to him and Groce without the government first

presenting independent evidence proving the existence of a conspiracy. See Carthen, 906

F.3d at 1320. The Eleventh Circuit reviewed this claim and found that, in light of the ample

independent evidence confirming Martin’s trial testimony about the conspiracy involving

Carthen, the district court did not plainly err in admitting Martin’s trial testimony. Id. Thus,

the argument that a separate hearing was required before Martin could testify at trial about

Carthen and Groce’s hearsay statements in furtherance of the conspiracy was decided

against Carthen, whether explicitly “or by necessary implication,” Jordan, 429 F.3d at

1035, in the Eleventh Circuit’s ruling in Carthen’s appeal. Consequently, this Court will

not review Carthen’s conclusory claim that he was entitled to a hearing on “the cases he

was implicated in” through his coconspirator’s trial testimony.11

B. Substantive Claims Not Raised on Direct Appeal

Carthen asserts three substantive claims not presented in his direct appeal: (1) the

district court’s denial of his motion to sever his trial from that of coconspirator Scottie

Groce deprived him of his right to confront Groce (Doc. 1 at 20); (2) the government “failed

to provide a warrant” for one of the gas station robberies (Doc. 1 at 10, 20); and (3) he was

not afforded a detention hearing (Doc. 1 at 20).12

Generally, if an available claim is not advanced on direct appeal, it is deemed

procedurally defaulted in a § 2255 proceeding. Mills v. United States, 36 F.3d 1052, 1055–

56 (11th Cir. 1994); Greene v. United States, 880 F.2d 1299, 1305 (11th Cir. 1989). A

petitioner can avoid this procedural bar only by showing both cause for failing to raise the

claim on direct appeal and actual prejudice arising from that failure. See United States v.

Frady, 456 U.S. 152, 167–68 (1982); Mills, 36 F.3d at 1055. Carthen offers no grounds as

cause excusing his failure to raise these issues in his direct appeal, and he shows no actual

prejudice resulting from these matters. Therefore, these claims are procedurally barred

from review.

11 If Carthen means something different by this claim in his § 2255 motion, it is procedurally defaulted as

not having been presented on direct appeal. See Greene v. United States, 880 F.2d 1299, 1305 (11th Cir.

1989). Also, because he did not demonstrate both cause for the failure to raise the claim on direct appeal

and actual prejudice arising from that failure, he does not avoid this procedural bar. See United States v.

Frady, 456 U.S. 152, 167–68 (1982).

12 Carthen asserts each of these claims in an entirely conclusory fashion.

C. Validity of Carthen’s § 924(c) Convictions In Light of Davis

Carthen claims his three § 924(c) convictions under Counts 3, 5, and 7 of the

indictment for brandishing a firearm during a crime of violence are invalid under the U.S.

Supreme Court’s holding in United States v. Davis, 139 S. Ct. 2319 (2019), because the

predicate crime for each conviction—Hobbs Act robbery—is not “a crime of violence.”

Doc. 1 at 16–17; Doc. 36. This claim lacks merit.

Before the Supreme Court’s Davis decision, a “crime of violence” under 18 U.S.C.

§ 924(c)(3)(A) and (B) was an offense that is a felony and (A) “has as an element the use,

attempted use, or threatened use of physical force against the person or property of

another,” or that (B) “by its nature, involves a substantial risk that physical force against

the person or property of another may be used in the course of committing the offense.”

The former clause is referred to as the “use-of-force” or “elements” clause, and the latter

clause as the “residual clause.” Davis, 139 S. Ct. at 2324.

In Davis, which was decided in June 2019, the Supreme Court extended its holdings

in Johnson v. United States, 576 U.S. 591 (2015), and Sessions v. Dimaya, 138 S. Ct. 1204

(2018), to 18 U.S.C. § 924(c) and held that § 924(c)(3)(B)’s residual clause, like the

residual clauses in the Armed Career Criminal Act and 18 U.S.C. § 16(b), is

unconstitutionally vague. Davis, 139 S. Ct. at 2324–25, 2336. The Eleventh Circuit has

since held that Davis announced a new rule of constitutional law that applies retroactively

to cases on collateral review. In re Hammond, 931 F.3d 1032, 1038–40 (11th Cir. 2019).

Although Davis effectively voided § 924(c)(3)(B)’s residual clause, it left

§ 924(c)(3)(A)’s use-of-force clause intact. The predicate crime of violence for each of

Carthen’s § 924(c) convictions under Counts 3, 5, and 7 of the indictment was a Hobbs Act

robbery, specifically as charged in Counts 2, 4, and 6 of the indictment.13 Nothing in the

Supreme Court’s holding in Davis regarding the unconstitutionality of § 924(c)(3)(B)’s

residual clause—and nothing in the holdings of Johnson or Dimaya—invalidates Hobbs

Act robbery as a “crime of violence” under § 924(c)(3)(A)’s use-of-force clause. Also,

binding Eleventh Circuit precedent holds that Hobbs Act robbery is categorically a crime

of violence under § 924(c)(3)(A)’s use-of-force clause.14 See In re Saint Fleur, 824 F.3d

1337, 1340–41 (11th Cir. 2016). That binding precedent is dispositive of Carthen’s claim,

which entitles him to no relief.15

Carthen states, incorrectly, that the predicate crime for at least one of his § 924(c)

convictions was conspiracy to commit Hobbs Act robbery, which is not “a crime of

violence” for purposes of § 924(c). Doc. 1 at 16. Although conspiracy to commit Hobbs

Act robbery is not a crime of violence for purposes of § 924(c), see, e.g., Brown v. United

13 Count 3 of the indictment alleged that the predicate crime of violence for that § 924(c) count was the

Hobbs Act robbery charged in Count 2 (Crim. Doc. 4 at 2–3); Count 5 alleged that the predicate crime of

violence for that § 924(c) count was the Hobbs Act robbery charged in Count 4 (Crim. Doc. 4 at 4–5); and

Count 7 alleged that the predicate crime of violence for that § 924(c) count was the Hobbs Act robbery

charged in Count 6 (Crim. Doc. 4 at 5–6).

14 A federal prisoner raising a claim under Davis cannot show he was sentenced under § 924(c)(3)(B)’s

residual clause if current binding precedent establishes that his predicate offense qualifies as a crime of

violence under § 924(c)(3)(A)’s use-of-force clause in § 924(c)(3)(A). See In re Pollard, 931 F.3d 1318,

1321 (11th Cir. 2019).

15 It does not matter that the predicate crimes of violence for Carthen’s § 924(c) convictions were aiding

and abetting Hobbs Act robbery. The Eleventh Circuit has repeatedly held that where the companion

substantive offense qualifies as a crime of violence under the use-of-force clause, aiding and abetting the

companion substantive offense equally qualifies as a crime of violence under the use-of-force clause. See

In re Colon, 826 F.3d 1301, 1305 (11th Cir. 2016) (specifically holding that aiding and abetting Hobbs Act

robbery is a crime of violence under § 924(c)(3)(A) because a substantive conviction of Hobbs Act robbery

is a crime of violence); see also, e.g., Steiner v. United States, 940 F.3d 1282, 1293 (11th Cir. 2019).

States, 942 F.3d 1069, 1075–76 (11th Cir. 2019), conspiracy to commit Hobbs Act robbery

was not the predicate crime for any of Carthen’s three § 924(c) convictions. Conspiracy to

commit Hobbs Act robbery was the charge in Count 1 of Carthen’s indictment. Crim. Doc.

4 at 1–2. That offense, however, was not alleged as the predicate crime of violence for any

of the § 924(c) charged against Carthen.

D. Carthen’s Claims of Ineffective Assistance of Counsel

Carthen presents various claims of ineffective assistance of trial and appellate

counsel. Doc. 1 at 4, 8, 14–15.

A claim of ineffective assistance of counsel is evaluated against the two-part test

announced in Strickland v. Washington, 466 U.S. 668 (1984). First, a petitioner must show

that “counsel’s representation fell below an objective standard of reasonableness.” Id. at

689. Second, the petitioner must show that “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.”

Id. at 694. See Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000).

Scrutiny of counsel’s performance is “highly deferential,” and the court indulges a

“strong presumption” that counsel’s performance was reasonable. Chandler, 218 F.3d at

1314 (internal quotation marks omitted). The court will “avoid second-guessing counsel’s

performance: It does not follow that any counsel who takes an approach [the court] would

not have chosen is guilty of rendering ineffective assistance.” Id. (internal quotation marks

and brackets omitted). “Given the strong presumption in favor of competence, the

petitioner’s burden of persuasion—though the presumption is not insurmountable—is a

heavy one.” Id.

As noted, under the prejudice component of Strickland, a petitioner must show that

“there is a reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.” Strickland, 466 U.S. at 694. A “reasonable

probability is a probability sufficient to undermine confidence in the outcome.” Id. The

prejudice prong does not focus only on the outcome; rather, to establish prejudice, the

petitioner must show that counsel’s deficient representation rendered the result of the trial

fundamentally unfair or unreliable. See Lockhart v. Fretwell, 506 U.S. 364, 369 (1993)

(“[A]n analysis focusing solely on mere outcome determination, without attention to

whether the result of the proceeding was fundamentally unfair or unreliable, is defective.”).

“Unreliability or unfairness does not result if the ineffectiveness of counsel does not

deprive the defendant of any substantive or procedural right to which the law entitles him.”

Id. at 372.

Unless a petitioner satisfies the showings required on both prongs of the Strickland

inquiry, relief should be denied. Strickland, 466 U.S. at 687. Once a court decides that one

of the requisite showings has not been made, it need not decide whether the other one has

been. Id. at 697; Duren v. Hopper, 161 F.3d 655, 660 (11th Cir. 1998).

A defendant’s right to effective assistance of counsel continues through direct

appeal. See Evitts v. Lucey, 469 U.S. 387, 396 (1985). To establish ineffective assistance

of appellate counsel, a movant must demonstrate “that counsel omitted significant and

obvious issues while pursuing issues that were clearly and significantly weaker[.]

Generally, only when ignored issues are clearly stronger than those presented, will the

presumption of effective assistance of counsel be overcome.” Mayo v. Henderson, 13 F.3d

528, 533 (2d Cir. 1994).

1. Ineffective Assistance: Initial Counsel’s Conflict of

Interest

Carthen claims that Bill Wayne Lewis, Jr., the attorney who represented him in the

criminal proceedings that took place before his trial but withdrew as his counsel

approximately 35 days before trial, rendered ineffective assistance by operating under a

“conflict of interest” stemming from Mr. Lewis’s sister’s position as the lead deputy district

attorney in Carthen’s prosecution at the state level. Doc. 1 at 4, 14–15.

In support of this claim, Carthen asserts:

Mr. Carthen was arrested and charged in Autauga County, where the lead

deputy district Attorney was Ms. Desirae Lewis, the sister of his first counsel

Bill Lewis. Mr. Bill Lewis was appointed to assist Mr. Carthen at an

evidentiary hearing in Elmore County for these same crimes while at the state

level. The charges were eventually dismissed around Nov. 2015 because of

the federal indictment on the same crimes. Mr. Bill Lewis filed his notice of

appearance as counsel for Mr. Carthen on Jan. 6, 2016. Mr. Lewis filed

several pleadings that were not authorized by Mr. Carthen, and failed to file

several pleadings that were warranted. Furthermore, as his closing act, Mr.

Lewis filed a motion to withdraw as counsel stating that he had a conflict of

interest due to his sister, Desirae Lewis serving as lead attorney in the

prosecution of Mr. Carthen at a state level. Bill Lewis withdrew from Mr.

Carthen’s case 35 days before trial.

Doc. 1 at 4.

Addressing Carthen’s claim in an affidavit filed with the Court, Mr. Lewis states:

In August of 2016, in an attempt to grow my law practice, I began discussions

with Desirae Lewis, my sister, who was a prosecutor with the Nineteenth

Judicial Circuit at the time, to add her to my firm as an associate attorney. As

I was going over her responsibilities and the current case load, I learned that

she prosecuted Mr. Carthen for the same robbery offenses in which I was

representing him on the state level. Pursuant to Rules of Professional

Responsibility, I was ethically obligated to make Mr. Carthen and the Court

aware of the situation and the fact that I had been exposed to her comments

about the case as soon as I was made aware of them.

At that time Mr. Carthen had already filed a prior motion to have me

removed from the case due to my request for him to receive a mental

evaluation. This goes to his allegations that I failed to file pleadings that

according to him were “warranted.” Based on that history, out of abundance

of caution, and after discussing the matter fully with Mr. Carthen, he agreed

that I should withdraw from the case. It certainly appears to have been a wise

decision based on his recent filing.

Doc. 11 at 1–2.

To prevail on an ineffective-assistance-of-counsel claim based on an alleged

conflict of interest, a defendant must “establish that an actual conflict of interest adversely

affected his lawyer’s performance.” Cuyler v. Sullivan, 446 U.S. 335, 348 (1980); see also

Smith v. White, 815 F.2d 1401, 1405 (11th Cir. 1987).

An “actual conflict” of interest occurs when a lawyer has “inconsistent

interests.” Smith [v. White], 815 F.2d [1401][,] 1405 [(11th Cir. 1987)]. In

order to prove that an “actual conflict” hindered petitioner’s lawyer’s

performance, petitioner “must make a factual showing of inconsistent

interests” or point to “specific instances in the record” to suggest an actual

impairment of his or her interests. Smith, 815 F.2d at 1404.

Freund v. Butterworth, 165 F.3d 839, 859 (11th Cir. 1999) (citation omitted).

This requires petitioner to make a factual showing of inconsistent interests and

“demonstrate that the attorney made a choice between possible alternative

courses of action, such as eliciting (or failing to elicit) evidence helpful to

one client but harmful to the other.” Smith v. White, 815 F.2d 1401, 1405

(11th Cir. 1987). Absent such a demonstration, the conflict remains

hypothetical and cannot form the basis for relief.

Porter v. Singletary, 14 F.3d 554, 560–61 (11th Cir. 1994) (citation omitted).

Here, Carthen demonstrates no instances in the record of adverse actions taken by

Mr. Lewis that may plausibly have stemmed from Mr. Lewis’s placing the interests of

another party—e.g., his sister, Ms. Lewis—over those of Carthen. Although Ms. Lewis

was a Deputy DA for the State of Alabama in the prosecution of related state charges

against Carthen, those state charges were dismissed by the State in October 2015 (Crim.

Doc. 151-2), before Mr. Lewis entered a notice of appearance in January 2016 to represent

Carthen in the federal case (Crim. Doc. 39). Carthen fails to show that Mr. Lewis and Ms.

Lewis engaged in collusion, shared any privileged or confidential information about

Carthen or his case, or acted in a manner demonstrating that a conflict of interest existed.

Mr. Lewis withdrew from representing Carthen when he discovered his sister’s prior

involvement in the State of Alabama’s prosecution. See Crim. Docs. 151, 161.

Because Carthen fails to show that an “actual conflict” hindered Mr. Lewis’s

performance or caused him to engage in actions (or inaction) harmful to Carthen’s defense,

he is entitled to no relief on his claim that his counsel rendered ineffective by operating

under a conflict of interest.

2. Ineffective Assistance: Trial Counsel Keith

Carthen claims that his trial counsel, Richard K. Keith, rendered ineffective

assistance by failing to (a) move for a continuance to ensure he was prepared for trial after

Mr. Lewis withdrew as Carthen’s counsel approximately 35 days before trial; (b) move to

suppress the government’s DNA evidence; and (c) seek severance of his trial from that of

coconspirator Groce. Doc. 1 at 4, 14–15.

a. Failure to request continuance

In an affidavit addressing his preparation for Carthen’s trial and whether a

continuance was needed, Mr. Keith states:

Mr. Carthen claims I should have asked for a continuance of trial as I did not

have sufficient time to properly prepare.

I spent 25.2 hours in interviews and conferences, 70.4 hours in

reviewing records, 26.7 hours in legal research and brief writing and 5.4

hours in travel time. I was fully prepared for trial.

Doc. 9 at 1.

Mr. Keith’s affidavit, and a review of the record reflecting Mr. Keith’s vigorous

defense of Carthen, establishes that Mr. Keith acted reasonably in not seeking a

continuance of Carthen’s trial for additional preparation. Further, Carthen points to no

specific instances of how Mr. Keith performed deficiently because of a lack of preparation

or how he was prejudiced by Mr. Keith’s failure to request a continuance. Failing to show

deficient performance or resulting prejudice, Carthen is entitled to no relief on this claim.

b. Failure to seek suppression of DNA evidence

At trial, Kristen Maturi, an expert witness for the government, testified that she

matched Carthen’s DNA to DNA found on gloves and a hoodie police officers discovered

near one of the gas stations robbed by Carthen and his coconspirators. Carthen maintains,

without explanation, that “the DNA evidence contained mixtures of DNA samples that

could not possibly have been identified as a positive match to Mr. Carthen by Kristen

Maturi, who was allowed to testify as an expert witness, not that she was in fact an expert

with the proper credentials to testify as an expert.” Doc. 1 at 14. According to Carthen, the

DNA evidence “should have been suppressed,” and Mr. Keith, he says, was ineffective for

failing to move for its suppression. Doc. 1 at 14.

Addressing Carthen’s allegations, Mr. Keith states:

Mr. Carthen further claims the Government’s DNA expert was not an expert,

and that the DNA testing results should have been suppressed. There were

no grounds to suppress the DNA test results and the DNA expert (Kristen

Maturi) has been declared an expert many times.

Doc. 9 at 2.

Carthen suggests no grounds upon which the DNA evidence might have been

suppressed. A defendant alleging that his counsel was ineffective for failing to move to

suppress evidence must demonstrate that, if made, the suppression motion would have been

meritorious and the result of the proceeding would likely have been different. United States

v. Matos, 905 F.2d 30, 33 (2d Cir. 1990); see, e.g., DeRoo v. United States, 223 F.3d 919,

925 (8th Cir. 2000) (defendant alleging ineffective assistance for failure to file motion must

show that motion had merit).

Carthen fails to establish prejudice resulting from Mr. Keith’s failure to move for

suppression of the DNA evidence. He also fails to show that Mr. Keith’s actions were

professionally unreasonable. He is entitled to no relief on this claim.

c. Failure to pursue severance issue

While still acting as Carthen’s counsel, Mr. Lewis moved to sever Carthen’s trial

from that of coconspirator Groce on grounds that Groce made a recorded post-arrest

confession that also implicated Carthen in the robberies and, as a consequence, Carthen

would be denied his Sixth Amendment rights under the Confrontation Clause if he was

tried jointly with Groce, where Groce’s confession could be introduced and Groce might

choose not to testify.16 Crim. Doc. 55. On similar grounds, Mr. Lewis argued in the motion

to sever that Carthen should not be tried with coconspirator Martin. Crim. Doc. 55.

Separately, Groce’s counsel moved to suppress Groce’s confession, and in July 2016 the

district court granted the motion to suppress Groce’s confession. Crim. Doc. 129, 148.

While Carthen’s motion to sever was pending, Mr. Lewis withdrew as Carthen’s counsel

and Mr. Keith assumed representation of Carthen. In August 2016, the magistrate judge

entered a recommendation that Carthen’s motion to sever should be granted as to any joint

trial with Martin but should be denied as to a joint trial with Groce. Crim Doc. 167. In

recommending that Carthen’s motion to sever be denied as to Groce, the magistrate judge

reasoned that, because Groce’s confession (with its statements implicating Carthen) had

been suppressed, it could not be introduced at any trial, and there would be no

Confrontation Clause violation or undue prejudice to Carthen in a joint trial with Groce.

Crim. Doc. 167. The district court adopted the magistrate judge’s recommendation that

Carthen’s motion to sever as to Martin be granted and denied as to Groce. Crim. Doc. 213.

Although Carthen’s claim in his § 2255 motion is vague, he appears to argue that

Mr. Keith, after replacing Mr. Lewis as his counsel, should have further pursued severance

of Carthen’s trial from that of Groce. According to Carthen, he “asked Mr. Keith to appeal

his severance hearing decision” but Keith failed to do so. Doc. 1 at 14.

16 Under Bruton v. United States, 391 U.S. 123, 129 (1968), a defendant is deprived of his Sixth Amendment

rights under the Confrontation Clause if a confession by his codefendant is introduced in their joint trial.

In his affidavit addressing Carthen’s claim, Mr. Keith states:

Mr. Carthen claims I should have appealed the Magistrate Judge’s ruling on

his severance motion. The basis for the severance was that co-defendant

Groce’s confession was incriminating against Mr. Carthen as it would have

been admissible at trial, prejudicing Carthen. However, as co-defendant’s

Groce’s statements were suppressed, there was no further ground to appeal.

. . . .

. . . When co-defendant Groce’s confession was suppressed, it removed the

grounds to sever and made any further appeal unnecessary.

Doc. 9 at 2.

As a general rule, defendants who are jointly indicted should be tried together.

United States v. Morales, 868 F.2d 1562, 1571 (11th Cir. 1989); United States v. Morrow,

537 F.2d 120, 136 (5th Cir. 1976). This is particularly true in conspiracy cases, where

charges against multiple defendants may be proven with substantially the same evidence.

United States v. Dorsey, 819 F.2d 1055, 1058 (11th Cir. 1987). Severance is only justified

when a defendant can show prejudice from which the trial court cannot provide adequate

protection. Dorsey, 819 F.2d at 1058; Morrow, 537 F.2d at 136. That a defendant may

suffer some prejudice is not enough to justify severance, as a degree of prejudice is inherent

in joint trials. United States v. Harris, 908 F.2d 728, 736 (11th Cir. 1990). A defendant’s

allegations of prejudice must be balanced against the interest of judicial economy and

concomitant policy favoring joint trials in conspiracy cases. United States v. Kopituk, 690

F.2d 1289, 1318 (11th Cir. 1982).

Here, Carthen fails to show that Mr. Keith’s decision not to pursue the severance

issue further was a professionally unreasonable. He demonstrates no reasonable likelihood

that further pursuit of a severance would have succeeded. Failing to demonstrate deficient

performance or prejudice, he is entitled to no relief on this claim.

3. Ineffective Assistance: Appellate Counsel Conner

Carthen claims his appellate counsel, Roianne Houlton Conner, rendered ineffective

assistance by failing to (a) provide him with a complete transcript of his sentencing hearing

and (b) argue the sufficiency of the government’s evidence to support his conspiracy

conviction and Hobbs Act robbery convictions. Doc. 1 at 8, 15.

Addressing Carthen’s claims, Ms. Conner states:

I did review the extensive transcript in this matter as well as prepared the

brief for the consideration by the 11th Circuit Court of Appeals. From the

complaint it appears that Carthen is complaining that I was ineffective in that

I did not present issues directly related to the Conspiracy issue nor the Hobbs

Act. He alleges that the government never proved that a conspiracy existed.

As was pointed out in the brief filed, the first witness that testified was Mr.

Carthen’s codefendant[,] Martin[,] who testified about Mr. Carthen’s

involvement in the robberies as well as the brandishing of the firearm.

However, I did argue the sufficiency of the evidence in issue II of the brief

that was presented to the 11th Circuit for their consideration. This was also

the issue that was presented in the oral arguments before the 11th Circuit

when they were sitting in Montgomery, Alabama.

Mr. Carthen also complained about missing pages from the sentencing

transcript. The entire transcript was sent to Mr. Carthen on at least three

occasions. I copied and paid for the transcript to be mailed to him when he

was in a facility in Pine Knot, Kentucky. A second copy containing the

transcript was sent to a facility in Atwater, California. Neither box containing

the transcripts were returned to us. The last time his mother, Ms. Doris

Jackson came by the office and we printed another complete copy of the

transcript. We assisted her in packaging the transcript and she mailed the

same. However, this package was returned from the facility marked as

“refused” and the package with its contents was returned to Ms. Jackson.

Doc. 6 at 2.

Carthen does not show that Ms. Conner failed to make reasonable efforts to provide

him with a complete transcript of his sentencing hearing. Moreover, he demonstrates no

resulting prejudice resulting from this matter. This claim entitles Carthen to no relief.

There is no factual basis for Carthen’s claim that Ms. Conner failed to argue the

sufficiency of the government’s evidence to support his conspiracy conviction and Hobbs

Act robbery convictions. It is clear from the record that Ms. Conner argued both of these

issues in Carthen’s direct appeal. This claim, too, entitles Carthen to no relief.

Carthen contends that Ms. Conner should have specifically challenged the

government’s proof of the “affecting interstate commerce” element of Hobbs Act robbery.

Doc. 1 at 15. However, a challenge to the proof of this element of Hobbs Act robbery was

implicit in Ms. Conner’s claim on appeal challenging the sufficiency of the evidence

supporting Carthen’s conspiracy conviction and Hobbs Act robbery convictions. The

Eleventh Circuit held that the government’s evidence was sufficient to support Carthen’s

convictions.

Moreover, the government presented ample evidence to satisfy the “affecting

interstate commerce” requirement. The government’s evidence showed that, in all three

robberies, the robbers stole Newport cigarettes from the gas stations. The government

presented testimony that Newport cigarettes are not manufactured in Alabama and are

manufactured in North Carolina. Proof of the theft of the gas stations’ merchandise

manufactured out of state and shipped to Alabama sufficed to show that the robberies

affected the business between the gas stations and the out-of-state manufacturers. Further,

although not expressly argued by the government at trial, some portion of the large amounts

of currency the robbers took from each gas station were proceeds derived from the sale of

fuel products drawn from outside of Alabama and then shipped to Alabama. This, too,

affected the business between the gas stations and out-of-state manufacturers. The Eleventh

Circuit has held that the government needs only to establish a minimal effect on interstate

commerce to support a violation of the Hobbs Act. United States v. Gray, 260 F.3d 1267,

1272 (11th Cir. 2001). That standard was met in Carthen’s case. Therefore, Carthen can

show no prejudice resulting from Conner’s failure to present his specific “affecting

interstate commerce” argument on appeal.

III. CONCLUSION

The undersigned Magistrate Judge RECOMMENDS that Carthen’s § 2255 motion

be DENIED without an evidentiary hearing and that this case be DISMISSED with

prejudice.

Further, it is ORDERED that the parties shall file any objections to this

Recommendation by May 27, 2022. A party must specifically identify the factual findings

and legal conclusions in the Recommendation to which each objection is made; frivolous,

conclusive, or general objections will not be considered. Failure to file written objections

to the magistrate judge’s findings and recommendations under 28 U.S.C. § 636(b)(1) shall

bar a party from a de novo determination by the district court of legal and factual issues

covered in the Recommendation and waives the right of the party to challenge on appeal

the district court’s order based on unobjected-to factual and legal conclusions accepted or

adopted by the district court except upon grounds of plain error or manifest injustice.

Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982); 11TH CIR. R. 3-1; see also Stein v.

Lanning Securities, Inc., 667 F.2d 33 (11th Cir. 1982); Bonner v. City of Prichard, 661

F.2d 1206 (11th Cir. 1981) (en banc).

DONE this 13th day of May, 2022.

/s/ Kelly Fitzgerald Pate

KELLY FITZGERALD PATE

UNITED STATES MAGISTRATE JUDGE