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LEAKS v. UNITED STATES

January 26, 1994

GIDEON LEAKS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.



The opinion of the court was delivered by: KEVIN THOMAS DUFFY

 KEVIN THOMAS DUFFY, D.J.:

 Petitioner Gideon Leaks ("Leaks") moves pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct a sentence imposed by the United States District Court for the Southern District of New York on September 19, 1990 (Walker, J.). On January 10, 1990, after a seven-day jury trial, Leaks was found guilty of committing and attempting to commit 17 bank robberies in Manhattan between December 1988 and July 1989 in violation of 18 U.S.C. § 2113(a) and (d). United States v. Gideon Leaks, S 89 Cr. 607. *fn1" On September 19, 1990, Judge Walker sentenced Leaks to 120 months of imprisonment, to be followed by five years of supervised release, and he ordered Leaks to pay $ 88,931 in restitution as well as a special assessment of $ 50 on each of the 17 counts of conviction. Leaks is currently serving his sentence. For the following reasons, Leaks' petition is denied in its entirety.

 BACKGROUND

 The evidence at trial established that from December 1988 through July 1989, Leaks committed and attempted to commit 17 bank robberies. When committing these robberies, Leaks regularly followed a signature pattern. He would enter a bank, pretend to fill out a bank deposit or withdrawal slip, proceed into the feeder line and wait there until a bank teller who was close to an exit was available to assist him. Once at the teller window, Leaks would hand the victim/teller a bank robbery note, demanding a specified amount of cash.

 Thirteen witnesses to ten of the robberies positively identified Leaks in court. Each of these witnesses as well as two additional witnesses had previously picked Leaks out of photographic arrays. Surveillance photographs from four of the robberies provided further evidence that Leaks had committed these robberies. In addition, notes from ten of the robberies were recovered. A handwriting expert concluded that each of these notes was written by Leaks. Based on this as well as other evidence, *fn2" a jury found Leaks guilty of committing and attempting to commit the 17 bank robberies.

 Leaks appealed to the United States Court of Appeals for the Second Circuit, challenging his conviction on three grounds. First, Leaks argued that Judge Walker erred in denying his pretrial motion to sever the bank robbery counts into separate trials. Second, Leaks contended that Judge Walker impermissibly interfered with a government witness. Leaks' final argument was that Judge Walker abused his discretion in not awarding him a two-point reduction and in misapplying the United States Sentencing Guidelines. The Court of Appeals affirmed Leaks' conviction in an unpublished opinion. United States v. Gideon Leaks, No. 90-1565 (2d Cir. March 26, 1991).

 Thereafter, Leaks brought the instant petition. Leaks raises ten related arguments challenging his conviction. These ten arguments actually state five grounds for relief: (1) the search of Leaks' home was illegal and in violation of his right to be free from an unreasonable search under the Fourth Amendment; *fn3" (2) the evidence presented at trial was insufficient to convict Leaks under 18 U.S.C. § 2113; (3) the assistant United States attorney's conduct was improper during rebuttal summation; (4) Judge Walker incorrectly charged the jury; and (5) Leaks received ineffective assistance of counsel.

 DISCUSSION

 (1) Failure to Raise Claims on Direct Appeal

 Failure by a convicted criminal to raise a claim on direct appeal constitutes a procedural default that bars collateral review under § 2255 absent a showing of: (1) "cause" for the failure to raise the claim, and (2) actual "prejudice" from the alleged violation on which the claim is based. Campino v. United States, 968 F.2d 187, 190 (2d Cir. 1992). To establish "cause", Leaks must show "something external to the petitioner, something that cannot be fairly attributed to him." Coleman v. Thompson, 115 L. Ed. 2d 640, 111 S. Ct. 2546, 2566 (1991) (emphasis in original). If a petitioner establishes "cause", he must also demonstrate "prejudice" in order to overcome this procedural bar. Campino, 968 F.2d at 190. The "prejudice" must be so substantial that it undermines the integrity of the entire trial. United States v. Frady, 456 U.S. 152, 170, 71 L. Ed. 2d 816, 102 S. Ct. 1584 (1982). This implies that fundamental miscarriage of justice has occurred and that the "constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray v. Carrier, 477 U.S. 478, 496, 91 L. Ed. 2d 397, 106 S. Ct. 2639 (1986).

 Leaks has made no independent attempt to establish "cause" for his failure to raise on direct appeal the claims raised through this petition. Indeed, Leaks cannot show "cause" because his claims are based on facts and legal principles that were available to him during the direct appeal of his conviction and sentence. See id. at 486 ("The mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default."). See also Harmon v. Barton, 894 F.2d 1268, 1275 (11th Cir.) (pro se status does not constitute "cause"), cert. denied, 498 U.S. 832, 112 L. Ed. 2d 68, 111 S. Ct. 96 (1990).

 Leaks argues that the failure of his attorney to provide effective assistance at trial is the "cause" for his failure to raise these claims on direct appeal. See Leaks' Traverse Br. at 4. Whether Leaks' counsel was ineffective at trial does not establish "cause" for his failure to raise these claims on appeal. Instead, Leaks must show that his counsel's performance on appeal was ineffective to establish "cause". See Murray, 477 U.S. at 488. Because his argument fails to establish how his counsel's alleged ineffectiveness caused the failure to raise these claims on direct appeal, Leaks has not demonstrated "cause". Accordingly, Leaks is procedurally barred from raising most of these claims through a § 2255 motion. Campino, 968 F.2d at 190.


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