Free Reply to Response - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-N-2067 Criminal Case No. 00-cr-00482-EWN-02 UNITED STATES OF AMERICA, Plaintiff-Respondent, v.

DALE CHALLONER, Defendant-Movant.

MOVANT'S REPLY TO THE GOVERNMENT'S SUPPLEMENTAL RESPONSE TO MOVANT'S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY

COMES NOW DALE CHALLONER, Defendant-Movant in the above-styled action and hereinafter referred to as "Movant," by and through undersigned counsel, and files his Reply To The Government's Supplemental Response To Movant's Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody as follows: STATEMENT OF THE CASE Movant was convicted of seven counts: Conspiracy to Commit Bank Robbery (Count 1); Attempted Bank Robbery (Count 2); Using, Carrying and Brandishing a Firearm in Relation to a Crime of Violence (Count 3); Damaging Property by Means of Fire (Count 4); Using and Carrying a Destructive Device in Relation to a Crime of Violence (Count 5); Possession of an Unregistered Incendiary Device (Count 6); and, Use of Fire or Carrying an Explosive During Commission of Another Felony (Count 14).

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This Court sentenced the Movant to a term of 60 months as to Count 1; 300 months as to Count 2; 300 months as to Count 3; 240 months as to Count 4: 360 months as to Count 5; 120 months as to Count 6; and, 120 months as to Count 14, to be served consecutively to the sentences imposed as to the other counts. The Movant received a total of 65 years in consecutive § 924(c) offenses. On direct appeal, Movant raised three issues: (1) that there was insufficient evidence to support the jury's finding that he carried an explosive as charged in Count 14; (2) that this Court erred in denying his motion for a downward departure from the otherwise applicable sentencing guideline range; and, (3) that the sentence imposed by this Court was disproportionate to the gravity of his offenses. Movant subsequently filed a writ of habeas corpus petition pursuant to 28 U.S.C. § 2255 raising three issues. This Court has requested that counsel address Movant's third issue as to whether the imposition of separate sentences based on the use of multiple firearms in a single conspiracy is proper under 18 U.S.C. § 924(c). See page 28 of Movant's pro se Memorandum in support of his habeas petition. Specifically, Movant argues that multiple consecutive sentences for Count 3 (using, carrying and brandishing a firearm in relation to a crime of violence), Count 5 (using and carrying a destructive device in relation to a crime of violence), and Count 14 (use of fire or carrying an explosive during commission of another felony) are improper. Movant claims that the predicate offenses for Counts 3 and 5 are based on the attempted bank robbery count (Count 2). In addition, Movant claims that Count 14 is related to Counts 1 and 2 as indicated by the jury verdict form. As a basis for relief, Movant argues that the

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sentences imposed on Counts 3, 5, and 14 should be vacated and that he be resentenced accordingly. ARGUMENT IN REPLY This Court Did Err by Imposing Separate Sentences for Separate Convictions under 18 U.S.C. § 924(c) and That This Claim is Not Procedurally Barred as the Movant Received Ineffective Assistance of Appellate Counsel. The Double Jeopardy Clause provides that no "person [shall] be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. V. "This protection applies not only to successive prosecutions, but also to successive punishments for the same offense." United States v. Morris, 247 F.3d 1080, 1083 (10th Cir. 2001). "A person may be prosecuted for more than one crime based on the same conduct (1) if each crime requires proof of a fact that the other does not or (2) if Congress has clearly expressed its intent to impose cumulative punishment for the same conduct under different statutory provisions." United States v. Pearson, 203 F.3d 1243, 1267-68 (10 Cir. 2000)(citing Blockburger v. United States, 284 U.S. 299, 304 (1932)). In addition, "multiplicity refers to multiple counts of an indictment which cover the same criminal behavior." United States v. Meuli, 8 F.3d 1481, 1485 (10th Cir. 1993). In reviewing multiplicity claims, the Tenth Circuit Court of Appeals will "look to the language of the statute to determine whether Congress intended multiple convictions and sentences under the statute." Meuli, at 1485. "If Congressional intent cannot be
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discerned, we apply the well-settled `rule of statutory construction' set forth in Blockburger v. United States, 284 U.S. 299 (1932)." United States v. Morehead, 959 F.2d 1489, 1506 (10 th Cir. 1992). Under the Blockburger test, "[t]he same act or

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transaction may constitute separate offenses if each offense requires some fact not required to establish the other." Meuli, at 1485. Following the Movant's conviction, he filed a "Motion for Judgment of Acquittal and/or Motion for Arrest of Judgment." Movant's former trial counsel summarized the following arguments in his motion: Challoner employed multiple firearms, namely a shotgun and a Molotov cocktail bomb. The jury convicted under Count 5, with the predicate offense in Count 1, a shotgun, and convicted in Count 14, with the predicate offenses under Counts 1 and 2, a shotgun and a bomb. The jury convicted under the 18 U.S.C. § 924(c), Count 3, by use of a shotgun. See Verdict form. Therefore, two (2) of Counts 3, 5, 14 cannot stand, because the same predicate felonies were used to convict Challoner. Count 14 also cannot stand, because it includes elements from Counts 1 and 2 and Counts 4 and 5. Count 14 charges Use of Fire and an Explosive to Commit a Felony, as charged in Count 1 (conspiracy to commit bank robbery) and Count 2 (attempted bank robbery). Count 5 charges Use and Carry a Destructive Device and Destructive Devices During and in Relation to a Crime of Violence (Counts 1 and 4, use of a bomb). There is no difference between "using" and carrying" a destructive device, namely a Molotov cocktail, and using the fire, in and of itself, to commit the same violent offense. There is also no difference between Count 4, Intentionally and Maliciously Damaging and Attempting to Damage and Destroy, by Means of Fire, and using a destructive device during a crime of violence and an explosive to commit a felony, as is contained in Count 5. Count 6 cannot stand, because testimony at trial showed it is impossible to register Molotov cocktails. Therefore, what remains is mere possession, or carrying, as it is charged in Counts 5 and 6.

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Here, appellate counsel failed to raise the issue of double jeopardy on appeal. The crux of the Movant's argument is that "the use of several firearms (or destructive devices) in a single offense (attempted bank robbery), amounts to only a single violation of § 924(c)." Contrary to the Government's assertion, Counts 3 and 5 charging multiple firearms violations are based on a single predicate offense, as argued originally in posttrial motions. Count 14, as indicated on the jury verdict form indicates that this count is related to Counts 1 and 2, the same predicate offenses relating to Count 5. Clearly, firearms and their usage occurred as part of the same criminal episode. In this instance, the Government contends that United States v. Cappas, 29 F.3d 1187 (7 Cir. 1994) does not invalidate the Movant's multiple convictions when he has in this case used multiple weapons in a single offense. The Government's argument is
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misplaced. As its reasoning, the Government asserts that "the jury was instructed to connect each § 924(c) offense to a separate predicate offense." [Government's

Supplemental Response, Page 4]. Indeed, the jury did connect each § 924(c) offense to Counts 3, 5, and 14 and the end result is that the offenses are connected to the same Count (Count 1). Admittedly, there is some vagueness in the jury verdict given the fact that both Counts 1 and 2 are referenced under Count 14 which contrary to the Government's assertion, the jury may not have followed all of the instructions provided. See Government's Response, page 4. This fact alone, should not discount the application of Cappas to the facts of this case as both counts, Counts 1 and 2, are referenced in the jury verdict form. Moreover, the Government discounts United States v. Chalan, 812 F.2d 1302 (10 th Cir. 1987) as being supportive of Movant's argument. Here, the jury verdict form

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indicates that Counts 5 and 14 are related to the same predicate offenses, Counts 1 and 2, although the jury appears to include Count 2 under Count 14. The use of the fire bomb and the shotgun were used in a single criminal act and represent multiple firearms usage thereby invalidating the Government's argument that there were no multiple firearms used in the same criminal conduct. There is no doubt that Counts 3 and 5 related only to the same predicate offense of attempted bank robbery. Finally, the Government discounts the Movant's argument that Count 14 should be vacated. In support of its position, the Government asserts that the jury verdict form as to Count 14 references both Counts 1 and 2. Movant continues to assert that under the theory of multiple firearms, Count 14 will also fail. Again, the jury did reference Count 1 as a predicate offense as they did for Count 5. Although § 844(h) provides for additional punishment, the Movant's theory of using multiple firearms under the same predicate offense negates the notion of multiple punishments as the shotgun, explosive device, and fire represent multiple type firearms used in the commission of similar offense conduct. These multiple punishments violate double jeopardy principles consistent with Blockburger v. United States, 284 U.S. 299 (1932). Similar Issues Presently Before the Court Were Raised and Litigated by Trial Counsel But Not By Appellate Counsel. The Government is correct in its argument that the Movant's pro se arguments were similarly argued by trial counsel. However, appellate counsel never addressed this issue in its brief. A petitioner's "failure to raise an issue...on direct appeal imposes a

procedural bar to habeas review," unless he "can show both good cause for failing to raise the issue earlier, and that the court's failure to consider the claim would result in actual prejudice to his defense" or "that failure to consider the federal claims will result

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in a fundamental miscarriage of justice." United States v. Cervini, 379 F.3d 987, 990 (10 Cir. 2004). Here, this procedural bar is overcome as the Movant asserts that his appellate counsel was ineffective in his failure to properly raise these issues before the Tenth Circuit Court of Appeals. In evaluating claims of ineffective assistance of counsel, Courts have utilized standards of conduct enunciated in Strickland v. Washington, 466 U.S. 668, 667-688 (1984). In order to obtain relief from a conviction on this specific ground, a defendant must meet a two-prong test as outlined in the Strickland case. First, a defendant must show that his trial counsel's performance was deficient in that it fell below an objective standard of reasonableness. Second, a defendant must demonstrate that this deficiency prejudiced the defense in that there is a reasonable probability that but for counsel's deficient performance, the results or outcome of the trial would have been different. Id. The reasonable probability standard is a probability sufficient to undermine confidence in the outcome of the trial. Id. The proper standard for attorney performance is that of reasonably effective assistance. The Supreme Court stated that: Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to secondguess counsel's assistance after conviction...and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. Id. at 669. Here, counsel failed to raise an important and legal viable issue that not only had merit, but would have resulted in a different outcome for the Movant. Under United States v. Warner, 23 F.3d 287, 291 (10th Cir. 1994), Issue 3 raised in Movant's pro se writ of habeas corpus petition is barred unless he can show cause and
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prejudice or a fundamental miscarriage of justice.

The Movant maintains that his

multiple convictions under Counts 3, 5, and 14 violate the double jeopardy clause and because he is entitled to relief, his appellate counsel was ineffective in failing to address the same. Movant's appellate counsel was substandard in failing to raise this issue. Moreover, a failure to permit such review did result in a fundamental miscarriage of justice. Here, the prejudice is obvious. Had the Movant raised his double jeopardy claim on direct appeal, he would have obtained the relief sought: vacating the sentences imposed on Counts 3, 5 and 14 as being both multiplicitous and improper consistent with Blockburger v. United States, 284 U.S. 299 (1932). CONCLUSION The Movant requests that this Court vacate his conviction and sentences pursuant to the three issues addressed in Movant's original pro se writ of habeas corpus petition or grant such other relief as the Movant may be entitled to receive. Movant further requests the opportunity to supplement or expand any of the other issues raised in Movant's pro se petition.

DATED this 25 day of August, 2008. Respectfully submitted,

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s/Robert G. Levitt____ Robert G. Levitt, Esq. Counsel for Movant CJA Appointed Counsel th 600 17 Street Suite 2800 South Denver, Colorado 80202 (303) 377-9000 Email: [email protected]

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on August 25 , 2008, I electronically filed a true and correct copy of the foregoing MOVANT'S REPLY TO THE GOVERNMENT'S SUPPLEMENTAL RESPONSE TO MOVANT'S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY with the Clerk of the Court using the CM/ECF system which will send notification for such filing to the following e-mail address: [email protected]
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s/ Robert G. Levitt___ Robert G. Levitt, Esq.

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