US v. Collin Hawkins, No. 12-4410 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4410 UNITED STATES OF AMERICA, Plaintiff Appellee, v. COLLIN HAWKINS, Defendant - Appellant.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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 a prisoner Lee ), him and to appeals 188 assisting U.S.C. § 1792 at a (2006), States district the months in United court s 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 a a 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 a 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 weapon s 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 counsel s 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 counsel s performance fell range of reasonable professional assistance. within the wide Id. at 689. The reviewing court must evaluate the reasonableness of counsel s 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 the that show second there prong is a of Strickland, reasonable the probability that, but for counsel s unprofessional errors, the result of the proceeding would have been different. is a 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 a conclusion of a defendant s 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 Government s 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 a district trial for court s abuse of discretion. United States v. Smith, 451 F.3d 209, 216 (4th Cir. 2006). receive To a 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; (4) and 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 a 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 Officer s Ass n 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 court s 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 9

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