IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA WESTERN DIVISION
LARRY LEON BRYANT ) ) Petitioner, ) ) vs. ) 7:23-cv-08016-LSC ) (7:19-cr-00314-LSC-JHE) UNITED STATES OF AMERICA ) ) Respondent. )
MEMORANDUM OF OPINION I. Introduction Larry Leon Bryant (“Bryant” or “Petitioner”) has filed with the Clerk of this Court, a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (Doc. 1.) The Government has responded in opposition to the motion. (Doc. 12.) For the reasons set forth below, Bryant’s § 2255 motion is dIuI.e toB baec dkegnrioeudn adn d this action dismissed without an evidentiary hearing. A. Facts
Officers received a call from the brother of the defendant (“Madison”), stating that his brothers’ vehicle was reported stolen earlier that evening. (Cr. 1 19 1 Doc. 50 at 6.) Madison said him and the defendantI dlo. cated the stolen vehicle on the roadway and fired shots toward the driver. ( ) When police arIrdi.v ed at the scene, they recovered a firearm from the waistband of Madison. ( at 7.) After being questioned, Madison told officers that his brother also had a
firearm, but MaIddi.son took it from him and hid it in the center console of one of their vehicles. ( ) BryaIndt. later admitted to having a firearm and stated that he fired it inB s.e lTf-rdieafle annsde. S(en)t e ncing
2 Bryant was charged in a superseding indictment filed on July 30, 2019 with felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). (Cr. Doc. 12.) A jury returned a guilty verdict against Bryant on October 8, 2019. (Cr.
Doc. 34.) On August 27, 2020, judgment was entered, and the defendant was sentenced to a total term of 262 months. (Cr. Doc. 51.) Bryant appealed his sentence, and it was affirmed by the Eleventh Circuit on June 3, 2022. (Cr. Doc.
71.)
1 “Cr. Doc.” refers to an entry on the docket sheet in the underlying criminal case, No. 7:19- cr-00314-LSC-JHE. Rehaif v. United 2States Government requested a superseded indictment to conform with finding in , which established that the Government was required to prove that Petitioner had knowledge of his relevant disqualifying statu2s und1e9r 18 U.S.C. § 922(g)(1). (Doc. 12 at 2.) C. § 2255 Proceedings
3 On April 28, 2023, Bryant executed his § 2255 motion, which was entered by the Clerk on June 5, 2023. Bryant asserts the following grounds upon which § 225 5 relief should be granted:
1. Ineffective Assistance of Trial Counsel at Trial – Petitioner alleges that trial counsel made errors in failing to adequately investigate and present certain evidence that would have supported a justification defense. (Doc. 2 at 5–14.)
2. Ineffective Assistance of Trial Counsel at SentencinIgd . – Petitioner alleges that trial counsel erred in not contesting the Government’s use of certain predicate convictions at sentencing. ( at 14–15.)
Anders 3. Ineffective Assistance of Appellate Counsel – Petitioner alleges that counsel was ineffective for filing an brief and failing to Id raise issues with sentencing under 18 U.S.C. 924(e) (the “ACCA”) and jury instructions given at trial. ( .)
4. Due Process – Petitioner alleges that his Fifth Amendment rights were violated because the jury instructions did not include Id awareness of felon status as an element and because the ACCA was wrongfully applied at sentencing. ( . at 16-17.) For the reasons outlined below, this Court finds that the § 2255 motion is due tIoII .b e dTisimmeislsinede.s s
3 The Eleventh Circuit applies the “mailbox rule” to deem a prisoner’s § 2255 motion to have been filed upon the “date that he delivered it to prison authorities for mailing, presumptively,… the day that he signed it.” Jo3nes1 v9. United States, 304 F.3d 1035, 1038 n.7 Judgment was entered against Petitioner on August 27, 2020. (Cr. Doc.
51.) He appealed that decision, and it was affirmed on June 3, 2022. (Cr. Doc. 71.) Petitioner signed his § 2255 petition on April 28, 2023. (Doc. 2.) Because Petitioner filed his § 2255 motion within one year ofS tehee date that the judgment
of his conviction became final, the motion is timely. 28 U.S.C. § 2255(f)(1). Petitioner is bringing his first § 2255 motion, so it is not “second or successive” within the meaninSge eofi dt.he Anti-Terrorism and Effective Death
PIVe.n altSyt Aanctd oafr 1d9 o9f6 R (e“AviEeDwP A”). at §§ 2255(h), 2244(b)(3)(A).
Because collateral review is not a substitute for direct appeal, the grounds for collateral attack on final judgments pursuant to 28 U.S.C. § 2255
are limited. A petitioner is entitled to 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 theS emeaximum authorizeUd nbiyte lda wSt, aotre s( 4v).
iPsh oiltlhipesrwise subject to collateral attack. 2U8n Uit.eSd.C S. t§a t2e2s5 v5. W; alker , 225 F.3d 1198, 1199 (11th Cir. 2000); , 198 F.3d 811, 813 n.5 (11th Cir. 1999). “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, 4 19 Lynn v. United States result in a complete miscarriage of juRsitcichea.r’”d s v. United States , 365 F.3d
1225, 1232 (11th Cir. 2004) (quoting , 837 F.2d 965, 966 (11th Cir. 1988)). In litigation stemming from a § 2255 motion, “[a] hearing is not required
on patently frivolous claims or those which are based upon unsupported generalizations. Nor is a hearing required whHeorlem tehse v[.m Uonviatendt’ sS]t aaltleesgations are affirmatively contradicted by the reGcouredr.r”a v. United States , 876 F.2d
1545, 1553 (11th Cir. 1989) (quoting , 588 F.2d 519, 520- 21 (5th Cir. 1979)). However, it is appropriate for the court to conduct an evidentiary hearing if, “accept[ing] all of the [movant’s] alleged facts as true,” tDhiea zm vo. vUannitt ehda sS “taaltleesge[d] facts which, if proven, would entitle him toA rgealine fv.”.
Dugger , 930 F.2d 832, 834 (11th CirF. u1t9ch9 1v). D(quugogteirng , 835 F.2d 1337, 1338 (11th Cir. 1987) and , 874 F.2d 1V4.8 3, D14is8c5u (s1s1iothn Cir. 1989)).
A. Merits of Bryant’s § 2255 Motion i. Ineffective Assistance of Co unsel
Petitioner asserts three grounds of ineffective assistance of counsel in his § 2255 pleadings. These assertions are meritless and due to be dismissed 5 19 without a hearing. An ineffective assistance of counsel claim has two
components: (1) the petitioner “must show that the counsel’s performance was deficient” and (2) the peSttirtiicoknlaern d“ mv. uWsta sshhionwgt othnat the deficient performance prejudiced the defense.” , 466 U.S. 668, 687 (1984). To
satisfy the first component, “the defendant must show that Idcounsel’s representation fell below an objective standard of reasonableness.” . at 688. The second component is satisfied only when the defendant shows that “there
is a reasonable probability that, but for counsel’s uIndprofessional errors, the result of the proceeding would have been different.” . at 694. In exaImd.i ning counsel’s performance, the Court should be “highly deferential.” at 689. The Court must make “every effort . . . to eliminate the
distorting effects of hindsight, to reconstruct the circumstances of counsel’s challengedI dc.onduct, and to evaluate the conduct from counsel's perspective at the time.” The Court must also “indulge a strong presumption that counseIdl’.s
cseoen dBuecllt vfa. lClso wneithin the wide range of reasonable professional assistance.” ; , 535 U.S. 685, 702 (2002) (holding that “tactical decision[s] about which competent lawyers might disagree” do not qualify as objectively
unreasonable). A petitioner who seeks to overcome this presumption does not carry his burden by offering bare accusations and complaints, but rather “must 6 19 identify the acts or omissions of counsel thatS tarriec kallalengded not to have been the
result of reasonable professional judgment.” , 466 U.S. at 690. Where a petitioner fails to show that his counsel’s performance fell below an objective Ssteaen Hdoalrladd oafy r ve.a Hsaolneaybleness, the court need not address the issue
of prejudice. , 209 F.3d 1243, 1248 (11th Cir. 2000). Where the court does consider this prong, the petitioner must show that counsel’s errors were prejudicial anSdtr i“cdkelapnridve[d] the defendant of a fair trial, a trial
whose result is reliable.” , 466 U.S. at 687. This burden is met by establishing by a reasonable probability that the Wouitlclioammes vo. fT thhree aptrtoceeding would have been diffeSrternictk blaunt dfor counsel’s errors. , 529 U.S. 362, 391–93 (2000); , 466 U.S. at 691.
Bryant asserts that his trial counsel provided ineffective assistance during the trial and at his sentencing and that his appellate counsel also provided ineffeact. ivIne eafsfseicsttaivnec eA osnsi astpapnecael. o(Df Tocr.i 2a la Ct o5u, 1n4se.)l at Trial
Bryant alleges that counsel was ineffective at trial because counsel did not sufficiently investigate or present evidence related to 911 call transcrIidp. ts,
body and traffic camera footage, and the criminal record of the car thief. ( at 12.) However, this Court finds that counsel acted reasonably regarding such 7 19 evidence and, that even if he did not, any alleged error did not prejudice
Bryant’s defense. Moreover, even under the set of facts Bryant perpetuates, he cannot establish a justification defense, thus, it is impossible for him to establish the second pi.r ongA lolfe igneedff Eecrtriovers a Rsseislatatendce t oof E cvoiudnesnecl.e
1. 911 Calls
Bryant alleges that counsel was ineffective in how he investigated anIdd.
presented the 911 calls that Bryant made related to the theft of his vehicle. ( at 11.) First, Bryant alleges that the Government did not provide all the 911 calls he made on the day of the inIdci.dent and that counsel was ineffective for not requesting the additional calls. ( at 11.) Outside of Bryant’s assertion that the
police failed to turn over all the relevant 911 calls, there is nothing in the record that supports the existence of additional 911 calls. In fact, during cross examination, counsel asked the police lieutenant working at the call center
whether there were any missing calls made by Bryant. (Cr. Doc. 65 at 79–80.) Alternatively, Bryant alleges that all the calls were provided and that his attorney made an error by not playing the recordings for the jury at trial. (Doc.
20 at 1-2.) Bryant did testify as to the contents of all the 911 calls that he made at trial, however. (Cr. Doc. 66 at 109.) 8 19 Because counsel asked the lieutenant whether there were any missing
calls and presented evidence of the 911 calls through Bryant’s testimony, Bryant’s allegations fail to establish that counsel acted unreasonably. Therefore, he fails to establish the first prong of ineffective assistance of counsel
as it relates to the 911 calls. Moreover, even if this Court found that counsel acted unreasonably, the alleged error regarding the 911 calls did not prejudice Bryant’s defense because the jury still heard his testimony as to the contents of
the calls. 2. Body and Traffic Camera Footage
Bryant also alleges that counsel was ineffective because he did not press the government to turn over additional body and traffic camera footage for
investigation. (Doc. 20 at 3.) Bryant speculates that the Government had additional footage that showed him aIdct.ing in self-defense but provides no actual evidence to support this claim. ( ; doc. 2 at 12-14.) He also alleges that
the Government doctored footage in the video presented at trial and that if the full video had been shown the jury would have seen him acting in self-defense. (Doc. 2 at 12-14.) However, counsel viewed the entire video and did not note
anything to support Bryant’s self-defense claim. (Doc. 12-1 at 4.)
9 19 Because Counsel reasonably relied on the numerous traffic and body
camera videos that the Government provided and did not present video that, in his opinion, failed to support a justification defense, Bryant failed to establish the first prong of ineffective assistance as it relates to the camera footage. (Docs.
12 at 9, 12-1 at 3.) Further, even if counsel was unreasonable, any alleged error relating to the video did not prejudice Petitioner’s defense because he testified as to the events he claims would have been depicted in the video. (Cr. Doc. 66
at 125.) 3. Thief’s Criminal Record
In addition, Bryant alleges that counsel was ineffective because he did not sufficiently research the criminal record of the car thief and file a motion to
suppress his testimony. (Doc. 2 at 12.) As the Government notes, this issue is irrelevant because the thief did not testify at trial. (Doc. 12 at 8) Moreover, this testimony would not support Bryant’s justification argument as nothing in the
record indicates that Bryant knew the identity of the car thief during the episode. Because of the reasons above, counsel was reasonable in not pursuing the thief’s criminal history and, even if he acted unreasonably, his failure to do
so did not prejudice Piie. titiIomnepro’ss sdiebfielnitsye .o f Justification Defense
10 19 In addition to failing to establish ineffective assistance of counsel through
the evidentiary issues raised above, Bryant also fails to establish the second prong of ineffective assistance of counsel because, even if all the facts are as he alleges, he could not have established a justification defense.
Justification iUn. St.h ve. cDoenletevxeat uoxf felon in possession of a firearm should be applied narrowly. , 205 F.3d 1292, 1297 (2000). In order to establish justification, a defendant needs to prove:
(1) that the defendant was under unlawful and present, imminent, and impending threat of death or serious bodily injury; (2) that the defendant did not negligently or recklessly place himself in a situation where he would be forced to engage in criminal conduct; (3) that the defendant had no reasonable legal alternative to violating the law; and (4) that there was a direct causal relationship between the criminal action and the avoidance of the threatened Id harm.
. Here, Bryant asserts that had trial counsel better investigated the 911 calls, the body and traffic camera footage, and the thief’s criminal history, counsel would have been able to successfully assert a justification defense. (Doc. 2 at 9-13.) However, even if the facts were exactly as Bryant conveyed, his justification defense still fails. Even under Bryant’s version of events, he could not have met the second and third elements of justification. 1T1he 1s9econd element requires that the defendant did not place himsDeelfl eivne aau sxituation where he would be forced to
engage in criminal conduct. , 205 F.3d at 1297. Bryant failed the second element when he chose to search for his car and recklessly confronted the thief on Skyland Boulevard. (Cr. Doc. 65 39–42; doc. 12-3 at 10–11.)
Likewise, Bryant does not meetD ethleev etahuirxd, requirement of having no legal alternative to breaking the law. 205 F.3d at 1297. He could have reasonably waited on law enforcement to handle the situation instead of taking
matters into his own hands. (Doc. 2 at 11; cr. doc. 65 at 39–42.) Given these facts, Bryant cannot establish that his defense was prejudiced by any alleged errors made by his trial counsel, and therefore, ground one is due to be dismissed for thbi.s Arellaesgoend a Es rwreolrl.s of Trial Counsel at Sentencing
Bryant alleges that trial counsel was ineffective because he did not contest the application of the ACCA at sentencing. (Doc. 2 at 7.) Specifically, that
counsel failed to contest the Government’s treatment of the three predicate conviction s as separate convictions under the occasions clause of the ACCA. (Doc. 2 at 7-8.)
Under the ACCA, the sentence for a defendant convicted under 18 U.S.C. 922(g) automatically carries a minimum term of fifteen years when he or she 12 19 has three prior “serious drug offense” convictions that were “committed on
occasions different from one another.” 18 U.S.C. § 924(e)(1). A serious drug offense includes an offense under state law that involves the distribution ofI da. controlled substance and that carries a maximum term of at least ten years.
§ 924(e)(2)(ii). Per the occasions clause of the ACCA, if the qualifying convictions were all part of the samSeee oUcncuitrerde nSctaet, etsh evy. Waroeo dbeunn.dled and only count as one predicate conviction. 595 U.S. 360,
368-69 (2022). A single factor such as time “can decisively differentiate occasions”, and “[c]ourts . . . have nearly always treated offenses as occurIdri.ng on separateU oncicteadsi Sotnast eifs av .p Reirdseoonu tcommitted them a day or moreU anpiatertd. ”S tat east v3.7 H0a (ycniteisng , 3 F.3d 32, 35 (2d Cir. 1993));
, No. 19-12335, 2022 WL 3643740, at *5 (11th Cir. 2022) (finding that predicate offenses that occurr ed fourteen days apart one another each represented a single occasion).
Bryant asserts that counsel was ineffective because counsel did not argue that Bryant’s three predicate convictions should be treated as one for purposes of the ACCA. (Doc. 2 at 7-8.) The state of Alabama charged Bryant with three
distinct counts of Unlawful Distribution of a Controlled Substance based on events that occurred on July 18, August 2, and August 8 of 2012 and he pled 13 19 guilty to all three on February 4, 2014. (Cr. Doc. 75-2, 75-3, 75-4; doc. 2 at 5.) In
preparation for trial, counsel claims to have visited Bryant and went over the three predicate convictions that the government planned to use and how they would impact sentencing. (Doc. 12-1 at 2.) During this meeting, counsel alleges
Bryant did noItd .raise any concerns regarding the use of the convictions at sentencing. ( ) Moreover, counsel did object to the Government’s presentation of the prior convictions at sentencing by arguing that they unfairly
prejudiced Bryant’s defense. (Cr. Doc. 67 at 20.) Bryant asserts that because he was convicted for all three charges on the same day and because he had the same motivation and method for each, they should be treated as one under the ACCA. (Doc. 2 at 7.)
Because counsel acted reasonably by reviewing the convictions with Bryant and objecting at sentencing, Bryant fails to establish that counsel acted unreasonably. Therefore, Bryant fails to establish the first prong of ineffective
assistance. Moreover, even if this Court found that counsel acted unreasonably, any error did not prejudice Bryant’s defense because all the acts occurred on different days which, despite Bryant’s allegations, supports that each was a
14 19 4 distinct occurrence under the ACCA. Therefore, Bryant’s second ground is due to be dismissedc. . Alleged Error on Appeal
5 AndersB ryant alleges that his appellate counsel was ineffective in filing an brief because in doing so, counsel failed to contest the three predicate convictions used to satisfy the ACCA and the jury instructions. (Doc. 2 at 14– 15.) As explained beloi.w , tAhellseeg iesdsu Eersr aorre idnu Ue stion bge P driisomr iCsosendv.i ctions
Like the ACCA claim against trial counsel, there is adequate evidence to support the effectiveness of appellate counsel regarding the issue. AppAenldlaetres counsel noted the facts supporting the application of the ACCA in his
brief, which the Eleventh Circuit CoAunrdt eorfs Appeals granted. (Docs. 12-3 at 34– 37, 12-2 at 2.) In granting counsel’s brief, the Court of Appeals indirectly agreed that there was no issue in treating the prior convictions as three
separate offenses. (Cr. Doc. 71-1.) Counsel acteAdn dreerass onably by noting the facts supporting the application of the ACCA in his brief, so the first prong of ineffective counsel fails. Moreover, even if it was determined that counsel
4 His three predicate crimes occurred on July 18, 2012, August 2, 2012, and August 8, 2012. (Cr. Doc. at 14-19.) 5 15 19 should have done more regarding the issue, any alleged error did not preAjunddeicres
Bryant’s defense as proven by the Court of Appeals granting counsel’s brief. ii. Alleged Error Under Rehaif
Bryant further alleges that appellate counsel was ineffective for not challenging the jury instructions on appeal. (Doc. 2 at 14–15.) SpeRceifhicaaifl lyv., BUrnyitaendt Satlaletegses Itdh.at the jury instructions violated hRiesh ariigfhts under
. ( ); 588 U.S. 225, 228–34 (2019). In , the Supreme Court clarified that the government is required to establish beyond a reasonable doubt thatI da. defendant was knowingly of the relevant status set out in 18 U.S.C § 922(g). at 230–31. In this case, Bryant was found to be in violation of 18
U.S.C. § 922(g)(1) because of his status as a felon. (Cr. Doc. 67 at 6.) Bryant argues that the jury instructions were deficient because they did not instruct the jury to determine whether he knew he was a felon at the time he possessed
a firearm. (Doc. 2 at 15.) As the Government notes in its brief, Bryant’s argument is flawed because he stipulated to knowing he was a felon before the trial, and the jury was told about this stipulation as part of the instructions.
(Doc. 74 at 7-8.)
16 19 Because the jury instructions explained Bryant’s stiRpeuhlaatiifo n, appellate
counsel was reasonable in not arguing a violation of in the jury instructions. Therefore, Petitioner fails to establish the first prong of ineffective assistance. Further, even if the first prong were met, because Petitioner waived
the issue at trial by stipulating, any alleged error on appeal could not have prejudiced his defense. Therefore, the third ground is due to be dismissed as well. d. Due Process Clause of the Fifth Amendment Violation
Bryant alleges that his right s under the Due Process Clause were violated because of the jury instructions issue discussed above and because of the application of the ACCA at sentencing. (Doc. 2 at 16–17.) Both issues are due to
be dismissed. i. Jury Instructions
Bryant’s argument that his Fifth Amendment rights were violaRteehda bife cause
the jury instructions did not meet the requirements set forth in is not convincing. The Court agrees with the Government and finds that because Petitioner stipulated to having the requisite knowledge under 18 U.S.C. §
922(g)(1) and the jury was informed of that stipulation, his right to due process of the law was not violated. (Doc. 74 at 7-8.) 17 19 ii. Application of the ACCA
Further, Bryant’s argument that the Court’s application of the ACCA was a violation of due process also fails. (Doc. 2 at 17.) Bryant’s argument is cIodn.tingent on the predicate offenses failing the occasions clause of the ACCA.
( ) As discussed above, the predicate offenses are three distinct convictions, and Bryant’s due process claim, as it relates to the issue, fails. Therefore, BVrIy. anCt’so nfoculurtshio gnro und is due to be dismissed for the reasons above as well.
For the foregoing reasons, Bryant’s § 2255 motion to vacate, set aside, or correct a sentence is due to be denied and this case dismissed with prejudice. Rule 11 of the Rules governing § 2255 Proceedings requires the Court to
issue or deny a ceSreteificate of appealability when it enters a final order adverse to the applicant. Rule 11, Rules Governing § 2255 Proceedings. This Court may issue a certificate of appealability “only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. §2253(c)(2). To make such a showing, a “petitioner must demonstrate that a reasonable jurist would find the Sdliasctrki cvt . McocuDratn’si elassessment of the
constitutional debatable and wrong.” , 529 U.S. 473, 484 (2000), or that “the issues presented were adequate to deserve to proceed 18 19 further.” Miller-EL v. Cockrell, 537 U.S. 322, 336 (2003) (internal quotations omitted). This Court finds that Bryant’s claims do not satisfy either standard. A
separate order consistent with this opinion will be entered. DONE and ORDERED on August 6, 2024.
L. Scott Coogler United States District{Jpidge 215708
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