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United States v. Lassend

United States District Court, D. Massachusetts

July 11, 2017

UNITED STATES of AMERICA
v.
KIRK LASSEND, Defendant.

          MEMORANDUM AND ORDER ON MOTIONS TO VACATE SENTENCE

          F. Dennis Saylor IV United States District Judge

         This is a proceeding to vacate and correct a sentence pursuant to 28 U.S.C. § 2255. In 2011, Kirk Lassend was found guilty by a jury of two charges: possession of a firearm by a convicted felon and possession of ammunition by a convicted felon, both in violation of 18 U.S.C. § 922(g)(1). On April 10, 2012, he was sentenced pursuant to the “residual clause” of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), to a term of imprisonment of 235 months.

         Lassend seeks to vacate his sentence on six grounds: (1) ineffective assistance of counsel; (2) unlawful search and seizure; (3) defective indictment; (4) failure of the prosecution to disclose evidence favorable to the defendant; and (5) the unconstitutionality of the residual clause of the ACCA, as determined by the Supreme Court in Johnson v. United States, 135 S.Ct. 2551 (2015) (“Johnson II”); and (6) the district court's lack of jurisdiction over the criminal proceeding. For the reasons stated below, the motion will be denied.

         I. Background

         A. The Underlying Arrest and Conviction

         On July 12, 2010, witnesses placed two separate calls to a 911 operator reporting that a man was walking up and down Day Street in Fitchburg, Massachusetts, with a gun and firing shots into the air. (Tr. at 3:32; Tr. at 5:33). At trial, both callers identified Lassend as the man they saw with the gun. (Tr. at 3:33; Tr. at 5:36). Several police officers from the Fitchburg Police Department arrived at the scene and observed a man (Lassend) who matched the description provided by the callers exiting an apartment building. (Tr. at 3:61-64). The officers placed Lassend in handcuffs and conducted a pat frisk, recovering an ammunition clip (or magazine) from his pocket. (Tr. at 3:68-70). The officers then searched the common hallway of the apartment building Lassend had just exited and found a firearm underneath a plastic bag in an unlocked closet in the hallway. (Tr. at 3:71-72).

         The officers then walked a short distance to Lassend's apartment, where he lived with his girlfriend. (Tr. at 3:76-77). The girlfriend was present at the apartment, and the officers asked for her consent to “search the apartment to check to make sure there's nobody inside that's hurt.” (Tr. at 3:78). She consented, and the officers performed a search of the apartment (the basement unit in a multi-apartment building). (Id.). The officers encountered a locked door in the kitchen that Lassend's girlfriend helped them open. (Tr. at 3:78-79). The door led into a storage area in the basement, where the officers recovered a holster that appeared to fit the firearm they had just recovered and an additional ammunition clip. (Tr. at 3:79-80).

         The officers also conducted a search of Day Street, and recovered a 9mm shell casing, consistent with the ammunition found in the clip recovered from Lassend's pocket. (Tr. 3:109; 4:138). Lassend was searched upon booking at the Fitchburg Police station, and officers recovered a live 9mm round from his person. (Tr. at 3:183-84). The ammunition clip recovered from Lassend's pocket and the ammunition clip recovered from his apartment were both found to fit the firearm officers recovered at the scene. (Tr. 4:81-89).

         On September 8, 2010, Lassend was indicted on charges of being a felon in possession of a firearm and ammunition, both in violation of 18 U.S.C. § 922(g)(1). On October 21, 2011, after a five-day jury trial, at which Lassend was represented by attorney Raymond O'Hara, he was convicted on both counts.

         B. The Pre-Sentence Report and Sentencing

         Following Lassend's conviction, the United States Probation Department prepared a pre-sentence report (“PSR”). According to the PSR, Lassend was “subject to the Armed Career Criminal provisions at 18 U.S.C. § 924(e) and the guidelines at U.S.S.G. § 4B1.4 as: (1) the offense of conviction is a violation of 18 U.S.C. § 922(g); and (2) the defendant has at least three prior convictions for a violent felony or a serious drug offense or both, committed on occasions different from one another.” (PSR ¶ 31). The PSR identified the following prior convictions as predicate offenses under the Armed Career Criminal statute: (1) a 1992 New York conviction for “Robbery in the First Degree: Forcible Theft Armed with Deadly Weapon”; (2) a 1997 New York conviction for “Robbery in the First Degree: Display of What Appears to [be a] firearm”; (3) a 1998 New York conviction for “Assault in the Second Degree”; and (4) a 2010 Massachusetts conviction for “Assault and Battery by Dangerous Weapon, Assault by Dangerous Weapon.” (PSR ¶¶ 38, 39, 40, 43, 48). Based on his status as an Armed Career Criminal, Probation determined that Lassend's criminal history category was VI and that his guideline imprisonment range was 235 to 293 months.

         On March 2, 2012, the Court sentenced Lassend to a term of imprisonment of 235 months, to be followed by a five-year term of supervised release.

         B. Procedural Background

         On March 7, 2012, Lassend appealed his convictions to the First Circuit. The appeal raised three issues: (1) that the court erred in failing to delay, sua sponte, jury empanelment due to a medical condition he had at the time, (2) that the court erred in its jury instructions on police investigation techniques, and (3) that the court erred in precluding him from making use at trial of evidence of a testifying police officer's prior malfeasance. The appeal was denied, and his convictions affirmed on October 23, 2013.

         On October 14, 2014, Lassend filed a motion to vacate his sentence, asserting four grounds for relief: (1) ineffective assistance of counsel; (2) unlawful search and seizure; (3) defective indictment; and (4) failure of the prosecution to disclose favorable evidence to defendant.

         On July 20, 2015, Lassend filed a pro se supplemental motion to vacate. That motion, filed following the Supreme Court's decision in Johnson II, contends that he should not have been sentenced under the ACCA because the residual clause was unconstitutional and he did not have three predicate offenses that qualified as violent felonies under the ACCA's “force clause.” Lassend filed a second supplemental motion to vacate on September 21, 2015, adding as a ground for relief that the district court lacked jurisdiction over the charged violations of federal criminal law.

         On April 8, 2016, Lassend filed a motion to have counsel appointed to represent him as to his claim for relief under Johnson II. That motion was granted, and Lassend, through counsel, filed a third supplemental motion to vacate on June 21, 2016. His third supplemental motion focused exclusively on the issue of whether he was properly sentenced under the ACCA in light of Johnson II.

         II. Analysis

         A. The Initial Motion to Vacate, Set Aside, or Correct His Sentence

         1. Ineffective Assistance of Counsel Claim

         In his initial motion, Lassend contends that his trial counsel rendered ineffective assistance at trial in violation of the Sixth Amendment. In particular, he contends that his counsel rendered ineffective assistance because he (1) never had DNA tests performed upon the firearm, (2) failed to provide all discovery to defendant for his review, (3) failed to have an investigator photograph his home or the common basement in which the holster and magazine were recovered; (4) failed to object on Fourth Amendment grounds to the admission of evidence seized from his home; and (5) failed to object to the admission of the 911 calls or to impeach the credibility of the witnesses who placed those calls.

         The standard for determining claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a petitioner must demonstrate that (1) counsel's performance “fell below an objective standard of reasonableness” and (2) counsel's performance prejudiced the defense so that there is a “reasonable probability” that the outcome would have been different absent the deficient performance. Id. at 687-88, 694-95. Reviewing courts are not required to address the two prongs in that order; if it is possible to dispose of a claim on the grounds that the petitioner did not suffer prejudice, a court does not need to address the reasonability of counsel's performance. Id. at 697.

         Under Strickland, reasonable performance on the part of the attorney is presumed, and the petitioner bears the burden of overcoming that presumption. See Id. at 689; Cirilo-Munoz v. United States, 404 F.3d 527, 530 (1st Cir. 2005). Furthermore, “judicial scrutiny of counsel's performance must be highly deferential.” Strickland, 466 U.S. at 689. If an attorney's choices or courses of action can reasonably be characterized as trial strategy and were “made after thorough investigation of law and facts relevant to plausible options, ” those decisions “are virtually unchallengeable . . . .” Strickland, 466 U.S. at 690; Sleeper v. Spencer, 510 F.3d 32, 38 (1st Cir. 2007) (quoting Yarborough v. Gentry, 540 U.S. 1, 5-6 (2003)) (stating that counsel “has ‘wide latitude in deciding how best to represent a client'”).

         Even if a petitioner can show that the attorney's performance was objectively unreasonable, he or she must also show prejudice. To do so, a petitioner must show that there is a “probability sufficient to undermine confidence in the outcome” that if it were not for counsel's deficient performance, the petitioner would have obtained a more favorable result. Strickland, 466 U.S. at 694.

         a. Failure to Conduct DNA Testing

         Lassend's claim that counsel's failure to request DNA testing of the firearm seized at the scene of his arrest fails both prongs of the Strickland test. First, it appears quite clear from the record that counsel's failure to request DNA testing was the result of sound trial strategy rather than any oversight or deficiency in representation. Faced with substantial evidence against Lassend-including eyewitness testimony, the ammunition clip and ammunition recovered from his person, and the ammunition clip and holster recovered from the storage area of his apartment-it appears that counsel did not request DNA testing so that its absence could be used in an attempt to undermine the weight and credibility of the government's evidence. (See Tr. 3:26, 5:105-10 (arguing about absence of DNA evidence)). The attorney's strategic decision fell comfortably within the range of reasonable conduct. See Strickland, 466 U.S. at 690 (noting that decisions that can reasonably be characterized as trial strategy are “virtually unchallengeable”). Second, Lassend has failed to establish that, in light of all of the other evidence against him presented at trial, DNA testing of the seized firearm would have changed the outcome of the trial.

         b. Failure to Provide Discovery

         Lassend's claim that counsel's performance was deficient because he failed to provide him with the evidence against him also fails under Strickland. He contends that counsel failed to provide him with certain photographs taken of the firearm, ammunition clips, and ammunition taken by witnesses Kelley King (a chemist) and Emily Labrecque (a trooper). It appears that counsel shared with Lassend black-and-white photocopies of photographs of all of the evidence in the case, but may not have shared color copies of all photographs taken of the evidence in the state crime laboratory. (See Tr. 5:11-12).

         Even assuming that Lassend could establish that counsel's failure to provide color copies of all photographs taken in the crime laboratory was somehow unreasonable, he has failed to establish any resulting prejudice. He does not articulate how his ability to review all of the photographs-which depicted the firearm, ammunition clips, ammunition, and holster that were themselves entered into evidence-would have changed the outcome of the trial.

         c. Failure to Have an Investigator Photograph Lassend's Apartment

         Lassend has also failed to establish that counsel's failure to have an investigator photograph his apartment was either objectively unreasonable or prejudicial. he contends that his counsel should have had an investigator photograph his apartment, and, in particular, the basement storage area form which the ammunition clip and holster were recovered, in order to show that the storage area was a common area that could be accessed from entrances other than through his apartment.

         As with the lack of DNA testing, it appears that the failure to take photographs of the basement storage area was a strategic decision. Detective Sergeant Martineau was one of the officers who responded to the scene of Lassend's arrest. During his cross-examination of Martineau, defense counsel highlighted the fact that he had taken many photographs of the apartment building from which the firearm was recovered and the evidence that was recovered from the apartment, but none of the interior of the apartment or of the basement storage area. (Tr. 3:186-87). Thus, it appears that the absence of photographs of the basement area was a reasonable, strategic decision made in an attempt to weaken the weight and credibility of the government's evidence.

         Furthermore, even if Lassend could establish that the failure to photograph the basement area was unreasonable, he has not established any resulting prejudice. Detective Sergeant Martineau himself testified that the basement storage area appeared to be a common area. (Tr. 3:172). On cross-examination, defense counsel clarified and emphasized that “common area” means an area of the building that is shared by all units in the apartment building. (Tr. 3:187).

         In light of that testimony, it is unclear how the addition of photographs of the basement area would have changed the outcome of the case. Finally, even if such photographs might have caused the jury to disregard the evidence seized from the basement, there was still substantial evidence-including eyewitness testimony as well as the ammunition clip and ammunition recovered from Lassend's person and the firearm recovered nearby-on which the jury could have relied in finding him guilty.

         d. Failure to Object to Admission of Evidence Recovered from Lassend's Apartment on Fourth Amendment Grounds

It appears that Lassend also challenges the effectiveness of his counsel's performance based on his failure to object, on Fourth Amendment grounds, to the admission of the evidence seized from his apartment. He contends that the seizure of the holster and ammunition clip from the basement storage area was constitutionally improper because it exceeded the scope of the consent given for the search. He further contends that he requested that defense counsel object to the admission of that evidence, and that his failure to object was unreasonable.

         “When defense counsel's failure to litigate a Fourth Amendment claim competently is the principal allegation of ineffectiveness, [in addition to the objective unreasonableness of counsel's performance, ] the defendant must also prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence in order to demonstrate actual prejudice.” Kimmelman v. Morrison, 477 U.S. 365, 375 (1986). Here, Lassend has not established any of the required elements of such a claim.

         First, Lassend has failed to establish that his Fourth Amendment claim is meritorious. Under the “plain view” doctrine, a seizure is legitimate if: (1) “the initial intrusion that brings the police within plain view of [the seized] article is supported [by either a warrant or] one of the recognized exceptions to the warrant requirement;” (2) the incriminating nature of the seized object was “immediately apparent;” and (3) the officer who seized the object had “a lawful right of access to the object itself.” Horton v. California, 496 U.S. 128, 135-37 (1990). Here, the officers' initial intrusion, as well as their access to the seized objects, was supported by the consent of Lassend's girlfriend, who had the apparent authority to consent to the search. (Tr. 3:78). Furthermore, the incriminating nature of the holster and ammunition clip was immediately apparent in light of the facts surrounding the arrest.

         Furthermore, Lassend has failed to establish that counsel's performance was rendered ineffective due to his failure to object to the admission of the holster and ammunition clip or that his failure caused any prejudice. See Acha v. United States, 910 F.2d 28, 32 (1st Cir. 1990) (“Trial counsel was under no obligation to raise meritless claims. Failure to do so does not constitute ineffective assistance of counsel.”); United States v. Victoria, 876 F.2d 1009, 1013 (1st Cir. 1989) (“Since raising meritless points would not have affected the outcome of the trial, counsel's failure to raise them did not constitute ‘ineffective assistance.'”).

         e. Failure to Suppress 911 Calls and/or ...


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