United States District Court, D. New Hampshire
McCafferty United States District Judge
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
§ 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)).
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.
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.
no. 18 at 10. 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.
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. §
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.
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.
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
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
§ 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)).
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 ...