The opinion of the court was delivered by: Hon. Jerome B. Simandle
This matter is before the Court on Kelvin Ford's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255 [Docket Item 8]. A federal jury found Kelvin Ford guilty of two counts of bank robbery and two counts related to the use of firearm during the robberies, and this Court sentenced him to 460 months imprisonment. The principal issues raised by the petition are whether Petitioner's constitutional rights were infringed by the fact that the initial indictment, superseding indictment, and jury instructions included surplus language; whether federal bank robbery can serve as a predicate crime for the firearm enhancement; and whether the government's introduction of an outdated FDIC certificate at trial provides Petitioner with a basis for relief upon one of his bank robbery convictions.
A grand jury initially indicted Ford for two counts of bank robbery pursuant to 18 U.S.C. § 2113(a), for the robberies of Fleet Bank and Commerce Bank on June 11 and 12, 2003. (Pet. Ex.
A.) Subsequently, the grand jury indicted Ford on a four-count superseding indictment. (Pet. Ex. B.) The charges included the two counts under 18 U.S.C. § 2113(a) (Counts 1 and 3), as well as two counts under 18 U.S.C. § 924(c)(1)(A) and (C) for knowingly and wilfully possessing and brandishing a firearm during the two robberies (Counts 2 and 4). (Id.)
The provision of the federal bank robbery statute under which Ford was indicted subjects to criminal punishment "[w]hoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, or obtains or attempts to obtain by extortion any property" belonging to any FDIC insured bank. 18 U.S.C. § 2113(a). Federal law also provides for additional criminal punishment for "any person who, during and in relation to any crime of violence . . . uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm," and sets a seven-year minimum sentence if the firearm is brandished. 18 U.S.C. § 924(c)(1)(A)(ii). The statute also provides for especially strict penalties for second or subsequent convictions under the subsection. 18 U.S.C. § 924(c)(1)(C). A "crime of violence" is "an offense that is a felony and has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." § 924(c)(3).
Originally, Count 1 of the superseding indictment read in relevant part: "On or about June 11, 2003, at Mays Landing, in the District of New Jersey, and elsewhere, the defendant KELVIN FORD knowingly and willfully, by force and violence, and by intimidation, did, while a firearm was possessed and brandished, take from the person and presence of an employee of Fleet Bank, N.A., Mays Landing, approximately $9,802.00." But, before trial, the Court granted Ford's motion to omit the language from the bank robbery counts which referred to the possession and brandishing of a firearm.
Ford was convicted on June 6, 2005, and his conviction was affirmed on February 6, 2007, and the Supreme Court declined to hear his appeal on October 1, 2007. He filed the present petition on October 6, 2008.*fn1
Ford asserts six grounds for relief. The first two relate to the original indictment language and the relationship between
18 U.S.C. § 2113(a) and 18 U.S.C. § 924(c). The next two relate to the ineffectiveness of his counsel for not raising the first two arguments as well as other arguments Petitioner asserts that he wanted raised. The fifth ground involves an argument that one of the banks was not FDIC-insured. And the sixth ground is an argument that his appellate process was unfair because his counsel would not raise certain arguments and because the Court of Appeals did not review his motion for appointment of new counsel before deciding the appeal.
28 U.S.C. § 2255(a) allows a prisoner held on a federal sentence to apply to have the sentence vacated, set aside, or corrected if, among other things, the sentence was imposed in violation of the Constitution or is otherwise subject to collateral attack, as in the case of an error of law that amounts to a "fundamental defect which inherently results in a miscarriage of justice." Brecht v. Abrahamson, 507 U.S. 619, 634 n.8 (1993) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)).*fn2 Generally, "claims not raised on direct appeal may not be raised on collateral review unless the petitioner shows cause and prejudice." Massaro v. United States, 538 U.S. 500, 504 (2003). One ...