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Hicks v. United States

United States District Court, D. New Hampshire

January 31, 2017

Roger Hicks
v.
United States of America Opinion No. 2017 DNH 021

          ORDER

          Landya McCafferty United States District Judge

         Roger Hicks pleaded guilty to one count of bank robbery in this court and was sentenced to 37 months in prison. See United States v. Hicks, 14-cr-160-LM (D.N.H. May 8, 2015). Hicks now seeks relief from his sentence under 28 U.S.C. § 2255, alleging three claims of ineffective assistance of counsel. The court appointed counsel to represent him and, on January 13, 2017, held an evidentiary hearing. For the reasons that follow, the court denies Hicks's motion.

         Standard of Review

         Under § 2255, a federal prisoner may ask the court to vacate, set aside, or correct a sentence that “was imposed in violation of the Constitution or laws of the United States.” 28 U.S.C. § 2255(a). The burden of proof is on the petitioner. Wilder v. United States, 806 F.3d 653, 658 (1st Cir. 2015) (citing David v. United States, 134 F.3d 470, 474 (1st Cir. 1998)).

         Background

         On October 3, 2014, Hicks went to the Members First Credit Union in Manchester, New Hampshire and attempted to withdraw funds using several cash advance credit/debit cards. He identified himself to the bank teller as Roger Hicks. The teller attempted to process the transactions, but the cards were rejected. Hicks grew agitated and asked to see the bank manager. After speaking with the manager, Hicks tried using the cards at the ATM and, when that failed, made several calls to the debit card company. Hicks then asked the teller to attempt the transactions again. She tried multiple times, but the cards were again rejected. Hicks then handed the teller a note on the reverse side of a business card that said, “Give me cash. I have a gun.” The teller gave Hicks all the money in her cash drawer, $3, 477.98. The Manchester Police arrested Hicks shortly thereafter.

         On January 23, 2015, Hicks pleaded guilty to one count of bank robbery in violation of 18 U.S.C. § 2113(a). See United States v. Hicks, 14-cr-160-LM. The presentence report (“PSR”) calculated Hicks's criminal history category to be III. Cr.

         doc. no. 18 at 10.[1] His total offense level was 21, which included a two-level increase pursuant to U.S.S.G. § 2B3.1(b)(2)(F) because Hicks made a threat of death during the robbery (i.e. “I have a gun”). Id. at 6. These sentencing calculations yielded a guideline range of 46-57 months. Id. at 19.

         On May 7, 2015, the court sentenced Hicks. Hicks's trial attorney, Bjorn Lange, filed a sentencing memorandum and argued that the court should sentence Hicks to 37 months in prison. See cr. doc. no. 14. Attorney Lange first argued that the court should not impose the two-level threat-of-death enhancement under U.S.S.G. § 2B3.1(b)(2)(F). He argued that due to the unusual circumstance of the robbery and the fact that the bank teller recognized Hicks as a frequent customer, his conduct would not have instilled “in a reasonable person, who is a victim of the offense, a fear of death.” Cr. doc. no. 14 at 2. Attorney Lange argued that Hicks made no threatening or menacing gestures, and did nothing to show that he in fact possessed a firearm that he intended to use. Id. at 3. The government objected, noting that Hicks grew increasingly angry and frustrated as his cards were declined, which made the teller feel nervous. The government also referenced the police incident report, which stated that the victim teller was “visibly upset and shaking” after the robbery. Cr. doc. no. 17-1. The court rejected the defendant's argument and applied the threat-of-death enhancement under U.S.S.G. § 2B3.1(b)(2)(F).

         Second, Attorney Lange requested that the court depart horizontally from criminal history category III to II. He argued that category III overstated Hicks's criminal history. The court granted the departure, which lowered Hicks's guideline range to 41-51 months.

         Finally, Attorney Lange requested that the court grant a four-month variance under 18 U.S.C. § 3553(a). Specifically, Attorney Lange argued a variance was appropriate because Hicks's PTSD and mental-health problems contributed to the commission of the robbery. Hicks was present at the World Trade Center on 9-11 and had experienced other traumatic events in his life. His PSR indicated that he had a history of PTSD and mental-health treatment, including several hospitalizations for psychiatric issues. Cr. doc. no. 18 at 15. The court granted the variance and sentenced Hicks to 37 months in prison.

         On January 29, 2016, Hicks filed a § 2255 motion, claiming that Attorney Lange was ineffective for failing to request a diminished-capacity departure under U.S.S.G. § 5K2.13. Doc. no. 1. The court appointed counsel to represent Hicks (doc. no. 5), but he later requested that his counsel be dismissed (doc. no. 10). The court granted Hicks's motion and appointed substitute counsel to represent him. On December 5, 2016, Hicks's substitute counsel filed a supplemental memorandum, arguing that Attorney Lange was ineffective for failing to request a more substantial variance under 18 U.S.C. § 3553(a) and failing to properly investigate Hicks's mental-health condition in order to further this argument. Doc. no. 12. On December 19, 2016, Hicks filed a petition for leave to supplement his § 2255 motion with an additional ineffective-assistance-of-counsel claim. Doc. no. 14. Hicks claimed that Attorney Lange was ineffective for failing to obtain the bank teller's testimony and confirm that she did not actually fear for her life or believe Hicks possessed a gun during the robbery. According to Hicks, such testimony would have supported his sentencing argument against application of the threat-of-death enhancement.

         On January 13, 2017, the court held an evidentiary hearing. Attorney Lange testified at the hearing, and Hicks presented arguments on his three ineffective-assistance-of-counsel claims.

         Discussion

         In his § 2255 petition and supplemental filings, Hicks raises three ineffective-assistance-of-counsel claims. When a § 2255 petition is based on ineffective assistance of counsel, the petitioner “must demonstrate both: (1) that ‘counsel's performance was deficient, ' meaning that ‘counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment'; and (2) ‘that the deficient performance prejudiced the defense.'” United States v. Valerio, 676 F.3d 237, 246 (1st Cir. 2012) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)).

         Under the deficiency prong, the petitioner “must show that counsel's representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688. There is a “strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, ” and the petitioner “must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. at 689 (internal quotation marks omitted). Under the prejudice prong, the petitioner “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of ...


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