United States v. Collin Hawkins, 4th Cir. (2013)
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Scribd Government DocsUnited States v. Collin Hawkins, 4th Cir. (2013)
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Scribd Government DocsUNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4410
UNITED STATES OF AMERICA,
Plaintiff Appellee,
v.
COLLIN HAWKINS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap.
James P. Jones,
District Judge. (2:10-cr-00004-JPJ-PMS-1)
Submitted:
June 20, 2013
Decided:
June 28, 2013
Before WYNN and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Collin Hawkins, Appellant Pro Se. Debbie H. Stevens, OFFICE OF
THE UNITED STATES ATTORNEY, Abingdon, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Collin
Penitentiary
Hawkins,
Lee
(USP
judgment
sentencing
willfully
conniving
violation
of
18
prisoner
Lee),
him
and
to
appeals
188
assisting
U.S.C.
1792
at
the
months
in
(2006),
United
States
district
courts
imprisonment
riot
at
forcibly
USP
for
Lee
in
resisting
an
employee of the Bureau of Prisons in violation of 18 U.S.C.
111(a)(1),
possession
intended
be
to
used
of
as
prohibited
weapon
in
object
violation
designed
of
18
and
U.S.C.
1791(1)(2), (d)(1)(B) (2006), and felony contempt of a court
order in violation of 18 U.S.C. 401(3) (2006).
Hawkins pled
guilty to the felony contempt charge and was convicted of the
other charges after a bench trial.
Hawkins was acquitted on a
second charge of possession of a prohibited object.
On appeal, Hawkins argues that his due process rights
were violated when the Government destroyed video tape evidence
and the weapon that he was accused of possessing, that his due
process
rights
were
violated
when
the
Government
knowingly
allowed its witnesses to make false statements, that his trial
counsel was ineffective, that the district court erred when it
denied his Fed. R. Crim. P. 29 motion for acquittal, that the
district court erred when it denied his Fed. R. Crim. P. 33
motion for a new trial, and that his guilty plea was not knowing
and voluntary.
We affirm.
2
First, Hawkins contends that the Government violated
his due process rights by destroying exculpatory evidence.
The
duty to preserve evidence arises when the evidence possess[es]
an exculpatory value that was apparent before the evidence was
destroyed, and [is] of such a nature that the defendant would be
unable
to
obtain
available means.
(1984).
comparable
by
other
reasonably
California v. Trombetta, 467 U.S. 479, 488-89
However,
exculpatory
evidence
the
evidence
process violation.
failure
does
not
to
preserve
automatically
even
potentially
constitute
due
It is only when the defendant can show bad
faith on the part of the police[] [that] failure to preserve
potentially
process.
useful
evidence
amounts
to
the
denial
of
Arizona v. Youngblood, 488 U.S. 51, 58 (1988).
due
Bad
faith requires that the officer have intentionally withheld the
evidence for the purpose of depriving the plaintiff of the use
of that evidence during his criminal trial.
Jean v. Collins,
221 F.3d 656, 663 (4th Cir. 2000).
Hawkins argues that the Government acted in bad faith
when it reviewed video footage of the incident and chose to
preserve
value.
only
that
footage
it
deemed
to
have
investigatory
We conclude that Hawkins has not met the high bar for a
failure to preserve evidence claim.
Multiple witnesses at trial
testified to the events in question, relevant video footage was
preserved
and
presented
at
trial,
3
and
there
simply
was
no
indication
that
the
video
that
was
destroyed
included
any
footage that was exculpatory or otherwise inconsistent with the
video
that
Government
was
retained.
failed
to
Hawkins
preserve
accused of possessing.
also
evidence
of
argues
the
that
weapon
he
the
was
A photograph of the weapon was admitted
into evidence, however, and a correctional officer testified at
trial to the weapons nature.
There is no basis to conclude,
then,
actual
that
production
clearly exculpatory.
of
the
weapon
would
have
been
Therefore, we conclude that Hawkins has
failed to establish a claim for failure to preserve evidence.
Next, Hawkins argues that his due process rights were
violated when the Government knowingly allowed its witnesses to
make
false
prosecution
statements.
presented
Due
process
testimony
it
is
knew
implicated
to
be
Giglio v. United States, 405 U.S. 150, 153 (1972).
if
false.
the
See
The knowing
use of false evidence or perjured testimony constitutes a due
process violation when there is any reasonable likelihood that
the
false
jury.
testimony
United
could
States
v.
have
affected
Agurs,
427
the
U.S.
judgment
of
97,
(1976).
103
the
Defendants bear the burden of showing the testimony was actually
perjured
and
the
prosecution
knowledge it was false.
401 (4th Cir. 2004).
district
judge,
used
it
with
contemporaneous
United States v. Roane, 378 F.3d 382,
We note that Hawkins was tried before a
drastically
reducing
4
the
likelihood
that
the
fact
finder
statements
was
that
misled.
Hawkins
Further,
alleges
the
are
purportedly
no
more
than
false
typical
testimonial inconsistencies, some of which were addressed before
the fact finder at trial and were resolved against him.
Next,
ineffective.
Hawkins
contends
that
his
trial
counsel
was
Claims of ineffective assistance of counsel are
generally not cognizable on direct review.
United States v.
Benton, 523 F.3d 424, 435 (4th Cir. 2008).
However, we can
entertain
it
such
claims
on
direct
appeal
if
conclusively
appears from the record that defense counsel did not provide
effective representation.
United States v. Richardson, 195 F.3d
192, 198 (4th Cir. 1999).
In order to succeed on a claim of
ineffective assistance of trial counsel, a defendant must show
that counsels performance fell below an objective standard of
reasonableness
prejudicial.
(1984).
and
that
the
Strickland
v.
deficient
Washington,
performance
466
U.S.
668,
was
687
Under the first prong of Strickland, there is a strong
presumption
that
counsels
performance
fell
range of reasonable professional assistance.
within
the
wide
Id. at 689.
The
reviewing court must evaluate the reasonableness of counsels
performance within the context of the circumstances at the time
of
the
alleged
hindsight.
Id.
insufficient
to
errors,
at
raise
rather
690.
than
with
Conclusory
cognizable
5
claims
the
benefit
allegations
of
of
are
ineffective
assistance of counsel.
646
(5th
Cir.
2007)
United States v. Demik, 489 F.3d 644,
(alterations
omitted);
United
States
v.
Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994).
To
defendant
satisfy
must
show
the
second
that
there
prong
is
of
Strickland,
reasonable
the
probability
that, but for counsels unprofessional errors, the result of the
proceeding would have been different.
is
probability
outcome.
sufficient
to
A reasonable probability
undermine
Strickland, 466 U.S. at 694.
confidence
in
the
The defendant bears the
burden of establishing prejudice and, if the defendant cannot
meet his burden, the performance prong need not be considered.
Id.
at
697.
Upon
review
of
the
record,
we
conclude
that
Hawkins counsel effectively presented his preferred defense at
trial and challenged Government witnesses on key points in his
defense.
Therefore, because the record does not conclusively
show that counsel was ineffective, we decline to consider this
issue on direct appeal.
Hawkins next claims that the district court erred when
it denied his Fed. R. Crim. P. 29 motion for a judgment of
acquittal
as
to
his
willfully
conniving
and
assisting
in
prison riot charge based on insufficiency of the evidence.
review the denial of a Rule 29 motion de novo.
a
We
See United
States v. Cloud, 680 F.3d 396, 403 (4th Cir.), cert. denied, 133
S. Ct. 218 (2012).
When a Rule 29 motion was based on a claim
6
of
insufficient
evidence,
the
verdict
must
be
sustained
if
there is substantial evidence, taking the view most favorable to
the Government, to support it.
United States v. Whitfield, 695
F.3d
(internal
288,
310
citations
(4th
omitted),
Cir.
2012)
cert.
denied,
133
quotation
S.
Ct.
marks
1461
and
(2013).
Substantial evidence is evidence that a reasonable finder of
fact
could
accept
as
adequate
and
sufficient
to
support
conclusion of a defendants guilt beyond a reasonable doubt.
United
States
v.
King,
628
F.3d
693,
700
(4th
Cir.
2011)
conclude
that
(internal quotation marks omitted).
Upon
review
of
the
record,
we
substantial evidence existed to show that Hawkins participated
in a prison riot.
witnesses
who
The district court credited the Governments
testified
that
Hawkins
had
been
involved
in
fighting other inmates, that he resisted attempts to restrain
him, that he sought to return to the melee, and that once the
fighting was concluded he made verbal signals to other inmates,
indicating
engaged
his
in
the
affiliation
riot.
We
with
one
find
this
of
the
groups
evidence
that
sufficient
had
to
support Hawkins conviction.
Hawkins also argues that the district court erred when
it denied his Fed. R. Crim. P. 33 motion for a new trial based
on
newly
denial
of
discovered
a
Rule
evidence.
33
motion
We
for
7
review
a
new
district
trial
for
courts
abuse
of
discretion.
2006).
United States v. Smith, 451 F.3d 209, 216 (4th Cir.
To
receive
new
trial
based
on
newly
discovered
evidence, a defendant must show that: (1) the evidence is newly
discovered; (2) he has been diligent in uncovering it; (3) the
evidence
is
not
merely
evidence
is
material
cumulative
to
the
or
issues
impeaching;
involved;
and
(4)
the
(5)
the
evidence would probably produce an acquittal.
United States v.
Fulcher, 250 F.3d 244, 249 (4th Cir. 2001).
The trial court
should exercise its discretion to award a new trial sparingly
. . .
Smith, 451 F.3d at 216-17 (internal quotation marks
omitted).
Hawkins
contends
that
he
discovered
dozen
witnesses willing to testify to his version of events.
new
However,
we conclude that the district court did not err when it denied
his motion.
Based on Hawkins representations, none of these
witnesses would testify to new evidence.
Rather, their purpose
would simply have been to bolster the version of events that
Hawkins
had
already
presented
at
trial.
Therefore,
their
testimony would be merely cumulative.
Lastly, Hawkins contends that his guilty plea to the
felony contempt charge was not knowing and voluntary because he
had been misadvised as to the maximum sentence for violation of
18
U.S.C.
401(3)
(2006).
That
statute
reads,
in
relevant
part: A court of the United States shall have power to punish
8
by
fine
or
imprisonment,
or
both,
at
its
discretion,
such
contempt of its authority as . . . Disobedience or resistance to
its lawful writ, process, order, rule, decree, or command.
U.S.C. 401(3) (2006).
Crim.
P.
11
hearing
maximum sentence.
Hawkins was informed at the Fed. R.
that
violation of 401(3).
18
there
was
no
maximum
sentence
for
This is an accurate statement of the
See Richmond Black Police Officers Assn v.
City of Richmond, 548 F.2d 123, 128 (4th Cir. 1977) (18 U.S.C.
401(3) does not contain statutory maximums regarding penalties
which may be imposed.).
Therefore, we conclude that Hawkins
guilty plea was knowing, voluntary, and effective.
Accordingly, we affirm the district courts judgment.
We
dispense
with
oral
argument
because
the
facts
and
legal
contentions are adequately presented in the material before this
court and argument will not aid the decisional process.
AFFIRMED
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