IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

SEAN D. MURPHY, 

 CASE NO. 2:14-CV-1706 

 Petitioner, CRIM. NO. 2:11-CR-010(1) 

 JUDGE GEORGE C. SMITH 

 v. Magistrate Judge Elizabeth P. Deavers 

UNITED STATES OF AMERICA, 

 Respondent. 

REPORT AND RECOMMENDATION 

 Petitioner, a federal prisoner, has filed the instant motion to vacate, set aside or correct 

sentence pursuant to 28 U.S.C. § 2255 and Motion for New Trial pursuant to Rule 33 of the 

Federal Rules of Civil Procedure. (ECF Nos. 184, 185.) This matter is before the Court on the 

Motion to Vacate 2255 and Motion for New Trial, Supplemental Memorandum of Law in 

Support, Affidavit and Supplemental Affidavit in Support (ECF Nos. 184, 185, 186, 189, 201), 

Respondent’s Response in Opposition and Supplemental Memorandum Supporting Response in 

Opposition (ECF Nos. 206, 207), Petitioner’s Reply to Response to Motion to Vacate Under 28 

U.S.C. 2255 (ECF No. 211), and the exhibits of the parties. For the reasons that follow, the 

Magistrate Judge RECOMMENDS that the Motion to Vacate under 28 U.S.C. 2255 (ECF No. 

184) and Motion for New Trial (ECF No. 185) be DENIED and that this action be DISMISSED. 

Procedural History 

 The United States Court of Appeals for the Sixth Circuit summarized the facts and 

procedural history of the case as follows: 

Defendant–Appellant Sean D. Murphy (“Murphy”) was convicted 

by a jury of one count of conspiracy to transport merchandise and 

money in interstate commerce, 18 U.S.C. § 371, one count of 

transporting merchandise and money in interstate commerce, 18 

Case: 2:11-cr-00010-GCS-EPD Doc #: 216 Filed: 05/11/16 Page: 1 of 40 PAGEID #: <pageID>
2

U.S.C. §§ 2314, 2, and two counts of traveling in interstate 

commerce with the intent to further promote an unlawful activity, 

18 U.S.C. §§ 1952, 2. He was sentenced to four consecutive 60–

month terms of imprisonment. Murphy appeals, asserting 

government misconduct, evidentiary error, and sentencing error. 

Because the government concedes that counts two and three of the 

indictment were insufficient, we DISMISS these counts, VACATE 

Murphy’s sentence, and REMAND to the district court for 

resentencing. We AFFIRM with respect to Murphy’s remaining 

claims. 

On January 18, 2009, police investigated a burglary and fire at a 

Brink’s secure warehouse in Columbus, Ohio. Police found that 

the door to a Brink’s vault had been cut through with a torch. The 

interior of the vault was on fire and the area was filled with smoke. 

Four holes were cut into the roof of the warehouse and there were 

footprints leading down the walls to the floor of the warehouse. An 

exterior door of the warehouse was sealed with epoxy and 

surveillance equipment was either destroyed or missing. The vault 

contained approximately $92,000,000 on the night of the heist, and 

around $396,290 was missing. 

In March 2009, the FBI interviewed David Nassor pursuant to a 

proffer agreement with federal and local prosecutors. Nassor told 

the FBI that he, Murphy, Joe Morgan, and Robert Doucette 

burglarized a Brink’s warehouse in Ohio. Police arrested Morgan 

in early April, and FBI Special Agent Jason Costello visited 

Doucette and told him that he was a suspect in the Ohio Brink’s 

burglary. Doucette retained a lawyer and began cooperating with 

the FBI. He described the circumstances of the heist to the FBI and 

led them to a storage facility in New Hampshire where the tools for 

the heist and the remaining money were stored. 

According to Doucette, Murphy approached him in the fall of 2008 

with a proposal to rob a Brink’s warehouse in Columbus, Ohio. 

Murphy also engaged Morgan and Nassor in the plan, although 

Nassor only assisted in preparation for the heist because of an 

injury he suffered earlier in the year. 

Murphy directed Nassor to pick up a cell-phone jammer, a device 

that disrupts cellular communications in a given area, from 

Memphis, Tennessee. This device was necessary because Brink’s 

had an alarm system that would communicate with its security 

provider by cellular signal in the event that the phone lines were 

cut. Cell-phone jammers are not sold in the United States, and 

importing them is prohibited. Murphy obtained a jammer through 

Case: 2:11-cr-00010-GCS-EPD Doc #: 216 Filed: 05/11/16 Page: 2 of 40 PAGEID #: <pageID>
3

a British company called Global Gadget via FedEx. However, 

customs enforcement agents were intercepting jammers that passed 

through FedEx’s Newark hub, necessitating shipment of the 

jammer to FedEx’s Memphis hub in order to evade heightened 

security at Newark. Nassor traveled to Memphis and picked up the 

package at his hotel on December 3, 2008. 

Murphy and Morgan also made a trip to Columbus in order to 

obtain DNA from individuals in the Columbus area “to keep the 

crime local.” They brought cigarettes and drinks to a homeless 

shelter in the area. When the individuals consumed the cigarettes 

and beverages, Murphy and Morgan picked up the cigarette butts 

and empty drink containers and saved them for the night of the 

crime. 

In early January 2009, Murphy rented a moving truck from 

Newmarket Storage in New Hampshire. Murphy, Morgan, and 

Doucette met at Murphy’s Massachusetts warehouse and loaded 

the truck with various tools. Murphy and Morgan drove the truck 

to a storage facility in Pennsylvania, where they unloaded the tools 

in preparation for the heist. 

On January 15, 2009, Murphy and Doucette rented a Dodge 

Journey in Revere, Massachusetts and picked up a 24–foot box 

truck in New Hampshire the following day. Murphy, Doucette, and 

Morgan drove to Ohio and stayed in a hotel overnight. On January 

17, they drove to the Pennsylvania storage facility to pick up the 

equipment they had dropped off. Before loading the equipment, 

they obscured the license plate and numbers on the truck and 

backed the truck into the facility so that individuals in the storage 

facility office would not be able to see what they were loading into 

the truck. 

After loading the truck, Murphy, Doucette, and Morgan drove to 

Columbus and arrived at the Brink’s warehouse at approximately 

8:00 or 9:00 p.m. They parked the truck at the loading docks of 

another business and covered it with a tarp. They changed out of 

their regular clothes and into burglary gear selected by Murphy: 

white clothes underneath a one-piece black jumpsuit with galoshes 

over their normal shoes. These clothes were selected so that the 

crew could easily change their outward appearances by removing 

the galoshes and jumpsuits. 

Murphy, Doucette, and Morgan approached the Brink’s warehouse 

from the rear and cut through an exterior fence with wire cutters. 

Murphy and Morgan climbed to the roof using scaffolding and 

Case: 2:11-cr-00010-GCS-EPD Doc #: 216 Filed: 05/11/16 Page: 3 of 40 PAGEID #: <pageID>
4

destroyed a security camera mounted on the side of the building. 

Doucette stayed behind at a nearby bridge to keep watch for the 

police. Murphy activated the cell-phone jammer, cut holes in the 

roof, and smashed the building’s alarm system. 

Murphy, Doucette, and Morgan entered the warehouse and moved 

trucks that were blocking the warehouse’s garage door. Doucette 

sealed the exterior door with epoxy to keep out any unexpected 

Brink’s workers and removed all of Brink’s electronic equipment 

to insure that no recordings of the crime would be left. 

Meanwhile, Murphy set up a thermal lance rod, a piece of 

equipment that burns at approximately 5,000 degrees and can melt 

through steel and concrete, and began cutting through the side of 

the vault. After several hours of cutting, Murphy gained access to 

the vault at approximately 6:30 a.m. Unfortunately for Murphy, the 

heat of the thermal rod ignited the contents of the vault, and large 

quantities of smoke quickly filled the room. Murphy, Doucette, 

and Morgan tried to put out the fire with fire extinguishers and 

water, but were unsuccessful. At this point, they took turns 

grabbing cash out of the vault. 

Shortly before 9:00 a.m., Murphy, Doucette, and Morgan loaded 

the truck with their tools and prepared to leave. Murphy planted 

the cigarette butts and empty drink containers around the facility. 

The three drove to Pennsylvania where they unloaded the tools and 

coins into the storage facility. They placed the bills in garbage bags 

and traveled to Doucette’s home in Massachusetts to count and 

divide the money. However, much of the money was burnt, wet, 

and smelled strongly of smoke. The next day, Murphy, Morgan, 

and Doucette washed the salvageable money in Doucette’s 

washing machine and dryer to remove the smell of smoke. Any 

money that was burnt too badly to be saved was destroyed in 

Doucette’s fireplace. They continued counting the money over the 

next few days. 

Murphy began cooperating with the police near the end of 2009. 

He participated in four proffer sessions with the FBI, and provided 

details regarding his involvement in the Brink’s heist during the 

third. Murphy’s final proffer session was at the beginning of June 

2010. The following month, the Essex County Jail, where Murphy 

was housed, conducted a contraband search and found a book 

entitled “Master Thief: How to Be a Professional Burglar” by Sean 

Murphy in the possession of an inmate. In his book, Murphy 

described methods for committing burglary that largely mirrored 

the Brink’s heist. For example, Murphy advised his readers to use 

Case: 2:11-cr-00010-GCS-EPD Doc #: 216 Filed: 05/11/16 Page: 4 of 40 PAGEID #: <pageID>
5

a cell-phone jammer, to wear black jumpsuits over light clothes to 

avoid detection, to use storage facilities far from the target of the 

heist, and to use a thermal rod to cut through vault doors. Further, 

Murphy advised readers to “[b]e extremely careful when piercing 

the last layer of steel on the vault door. If your thermal [rod] 

catches something on fire in the vault, everything could burn up; 

and the smoke could prevent you from even entering the vault.” 

Prison officials gave the book to the FBI. 

A grand jury for the Southern District of Ohio indicted Murphy for 

conspiracy to transport merchandise and money in interstate 

commerce, 18 U.S.C. § 371, traveling in interstate commerce with 

the intent to further promote an unlawful activity, 18 U.S.C. §§ 

1952, 2, and transporting merchandise and money in interstate 

commerce, 18 U.S.C. §§ 2314, 2. The case proceeded to trial and 

Murphy decided to represent himself with his court-appointed 

attorney serving as stand-by counsel. The court warned Murphy of 

the risks of self-representation and encouraged Murphy to 

reconsider, but he refused. Murphy’s co-conspirators, Nassor and 

Doucette, testified against him pursuant to plea agreements with 

the government. After a five-day trial, the jury found Murphy 

guilty on all counts. After reviewing Murphy’s offense conduct, 

personal history, and hearing testimony from FBI Agent Jason 

Costello regarding Murphy’s cooperation with the government, the 

court sentenced Murphy to four consecutive terms of 60 months’ 

imprisonment. 

On appeal, Murphy argues that the district court erred by denying 

his motion to dismiss counts two and three of the indictment, that 

the prosecutor’s alleged misconduct should result in a mistrial, that 

the government did not disclose exculpatory evidence, that the 

district court erred by admitting Murphy’s book into evidence, and 

that the district court erred in its finding of intended loss and 

sophisticated means at sentencing. 

United States v. Murphy, 518 F. App’x 396, 397-400, unpublished, 2013 WL 1224092 (6th Cir. 

2013). On March 27, 2013, the Sixth Circuit dismissed counts two and three of the indictment, 

vacated Petitioner’s sentence, and remanded the case for re-sentencing. The Court of Appeals 

otherwise affirmed the judgment of this Court. Id. On June 26, 2013, the Court re-sentenced 

Petitioner to an aggregate term of 156 months imprisonment. (ECF No. 175.) On November 19, 

2014, the Sixth Circuit affirmed the sentence and judgment of this Court. (ECF No. 193.) 

Case: 2:11-cr-00010-GCS-EPD Doc #: 216 Filed: 05/11/16 Page: 5 of 40 PAGEID #: <pageID>
6

 Meanwhile, on September 26, 2014, Petitioner filed the instant motion to vacate, set aside 

or correct sentence pursuant to 28 U.S.C. § 2255. He asserts that prosecution witness Robert 

Doucette committed repeated material perjury (claim one); that the government knowingly 

presented such perjured testimony (claim two); that he is actually innocent (claim three); that he 

was denied the effective assistance of counsel (claim four); that the government violated Brady 

v. Maryland, 373 U.S. 83 (1963) (claim five); and that he was denied a fair trial based on 

cumulative error (claim six). It is the position of the Respondent that Petitioner’s claims lack 

merit. 

 In conjunction with his § 2255 petition, and on the same basis as claim one of his § 2255 

petition, Petitioner has filed a motion for a new trial pursuant to Rule 33 of the Federal Rules of 

Criminal Procedure, which provides: 

(a) Defendant’s Motion. Upon the defendant’s motion, the court 

may vacate any judgment and grant a new trial if the interest of 

justice so requires. If the case was tried without a jury, the court 

may take additional testimony and enter a new judgment. 

(b) Time to File. 

(1) Newly Discovered Evidence. Any motion for a new trial 

grounded on newly discovered evidence must be filed within 3 

years after the verdict or finding of guilty. If an appeal is 

pending, the court may not grant a motion for a new trial until 

the appellate court remands the case. 

(2) Other Grounds. Any motion for a new trial grounded on 

any reason other than newly discovered evidence must be filed 

within 14 days after the verdict or finding of guilty. 

According to Petitioner, he has obtained newly discovered evidence which establishes that 

prosecution witness Robert Doucette lied and indicates that Petitioner is innocent, justifying a 

new trial. Petitioner has attached the Declaration of Anthony Moschopoulos (ECF No. 187), and 

Declaration of Joseph M. Morgan (ECF No. 188). He also has attached a copy of a “mapquest” 

Case: 2:11-cr-00010-GCS-EPD Doc #: 216 Filed: 05/11/16 Page: 6 of 40 PAGEID #: <pageID>
7

document indicating that the distance between 300-302 Brush Creek Road, Warrendale, 

Pennsylvania (presumably the site of storage bins used by defendants), and the Comfort Inn on 

924 Sheraton Drive, Mars, Pennsylvania (where the defendants purportedly stayed after 

burglarizing the Brinks facility), is 1.11 miles, Exhibit A (ECF No. 184-2, PageID# 2709-12); 

what purports to be a record from the Comfort Inn indicating the names of guests who stayed at 

the hotel on the night of January 18, 2009, Exhibit B (ECF No. 184-3, PageID# 2714-16); and a 

document indicating that, on January 23, 2009, a person by the name of George Bogart rented a 

storage unit from “webselfstorage.” Exhibit C (ECF No. 184-4, PageID# 2717-19.) 

Motion for a New Trial/Claim One 

As discussed, Petitioner asserts that prosecution witness Robert Doucette committed 

repeated and material perjury when he testified against Petitioner, requiring reversal of 

Petitioner’s convictions. For example, Petitioner maintains that Doucette lied when he testified 

that the hotel where the defendants stayed was located one to two hours from the Pennsylvania 

storage facility they used for storage of criminal tools and burglary proceeds; that the defendants 

did not stay overnight at the Comfort Inn on Sunday, January 18, 2009, after burglarizing Brinks, 

but returned to Lynn, Massachusetts; denied renting a UHAUL storage bin in Lynn, 

Massachusetts; denied taking Oxycontin on the weekend of the crime; claimed to have no 

recollection of the use of a storage facility located in Eastern Ohio; and testified that, on January 

18, 2009, the defendants returned to Lynn, Massachusetts with proceeds of the burglary. 

Petitioner additionally claims that the prosecution knowingly presented Doucette’s perjured 

testimony to prove that Petitioner crossed state lines with the stolen goods thus establishing his 

guilt of the offenses charged. 

Case: 2:11-cr-00010-GCS-EPD Doc #: 216 Filed: 05/11/16 Page: 7 of 40 PAGEID #: <pageID>
8

Doucette testified that, on January 18, 2009, Doucette, Morgan, and Petitioner drove to a 

Pennsylvania storage facility after burglarizing Brinks. Doucette drove the rental car, and 

Morgan and Murphy drove the box truck. Transcript (ECF No. 159-2, PageID# 1540.) They 

unloaded all of the criminal tools, the racks, and “change” (i.e., five large racks of Susan B. 

Anthony coins and halves). They took only the “actual currency” or paper money, back with 

them to Lynn, Massachusetts, which they placed in trash bags inside of the rental car. Transcript

(ECF No. 159-2, PageID# 1541-42.) Once in Lynn, they took the currency out of the car and 

started to split it up. (PageID# 1543.) According to Doucette, Nassor got 5% of the proceeds, 

(PageID# 1543-44); 50% went to Petitioner, 30% to Joe Morgan, and 20% to Doucette. 

(PageID# 1544.) They stored the stolen money inside of the rental car. (PageID# 1544-45.) It 

was wet, smelly, and much of it was burnt or destroyed. They put some Febreze into the trash 

bags with the money in an attempt to eliminate the odor. (PageID# 1545.) The next day, they 

began washing the money in a washer and dryer, and continued to divide the proceeds. 

(PageID# 1546.) Petitioner and Nassor washed down the rental truck and returned it to the 

storage facility. (PageID# 1546-47.) After Petitioner’s arrest, Doucette and Morgan decided to 

return to Pennsylvania to retrieve the items they had left in the storage facility there. (PageID# 

1549.) Doucette’s friend rented a truck for them to use for this purpose. (PageID# 1549.) 

Doucette and Morgan accessed the storage bin using a key that Petitioner had left hidden for 

them. (PageID# 1550.) They emptied out the storage bin and moved all of its contents into a 

storage facility located in New Hampshire. (PageID# 1552-53.) They continued to divide the 

proceeds of the burglary, with Morgan taking Petitioner’s share of the proceeds. (PageID# 

1553.) They left everything sitting in the New Hampshire storage facility for a couple of weeks, 

and then collected the electronic equipment and put it into a UHAUL facility that Morgan had 

Case: 2:11-cr-00010-GCS-EPD Doc #: 216 Filed: 05/11/16 Page: 8 of 40 PAGEID #: <pageID>
9

rented. (PageID# 1555.) They cut up and disassembled the electronic equipment and racks that 

held the stolen coins, disposing of the metal with a local metal collector. Doucette threw the 

hard drives from the electronic equipment into the ocean. (PageID# 1556.) On April 8, 2009, 

police arrested Joe Morgan. (PageID# 1556.) Doucette thereafter moved the items remaining in 

the New Hampshire storage facility into another storage unit in Raymond, New Hampshire, 

located a few miles away. (PageID# 1557.) Doucette moved the equipment yet again when he 

returned to that storage facility “and it looked like someone had went in there and some of the 

stuff was moved around, and. . . I found a key on the ground.” (PageID# 1558.) Police 

subsequently arrested Doucette. Doucette cooperated, and testified pursuant to the terms of his 

plea agreement. Doucette also testified regarding the contents of three letters he had purportedly 

received from Petitioner after his arrest regarding the crime at issue. (PageID# 1579-1585.) 

A brief review of David Nassor’s testimony is also helpful to consideration of 

Petitioner’s claims. Nassor testified that in late December 2008 or early January 2009, Petitioner 

asked him to drive to Ohio to conduct a surveillance of the Ohio Brinks armored car facility. 

Transcript (ECF No. 159, PageID# 1107-08.) Petitioner instructed Nassor to observe the time of 

day that people came into and left the facility. (PageID# 1108-09.) Petitioner wanted to know 

what time people left on Saturday night, and what time they arrived on Sunday morning. 

(PageID# 1110.) At Petitioner’s request, Nassor observed the facility for approximately 14 

hours, observing that people left the facility at 8:30 p.m. on Saturday, and returned at 9:00 a.m. 

the following morning. (PageID# 1113-14.) Nassor returned to Lynn, Massachusetts, and 

reported his observations to the Petitioner. (PageID# 1115-16.) It was Nassor’s understanding 

that he would receive payment for his assistance. (PageID# 1120,1149.) On or about January 

21, 2009, Nassor drove Petitioner to Newmarket Storage in New Hampshire so that Petitioner 

Case: 2:11-cr-00010-GCS-EPD Doc #: 216 Filed: 05/11/16 Page: 9 of 40 PAGEID #: <pageID>
10

could return a Budget rental truck. (PageID# 1117.) After January 23, 2009, Nassor obtained 

$1000.00 to $1500.00 from Joe Morgan for his services. (PageID# 1119-20.) Nassor and 

Morgan stole oxygen tanks in the summer of 2007, which were placed in Petitioner’s storage 

facility at Newmarket storage in New Hampshire. (PageID# 1120-21.) Nassor also identified a 

generator that had been stored at the Newmarket storage facility with rods that would function as 

a torch. (PageID# 1122-24.) “It burns like 5,000 degrees and just melts anything that it 

touches.” (PageID# 1124.) Nassor also identified lubrication for an electromagnetic drill that 

would be used to cut through and gain entry to a safe, batteries for a cellular phone jammer, 

antennas to the cellular phone jammer, the Y2000 cellular telephone jammer. (PageID# 1126-

29.) Nassor was incarcerated and testified pursuant to the terms of his plea agreement with 

Massachusetts. (PageID# 1130.) The FBI had agreed not to pursue charges against him. 

(PageID# 1164.) Nassor was not present when the defendants returned to Lynn after the Brinks 

burglary. (PageID# 1161.) He did not know where they went when they returned from Ohio. 

(Id.) He was not present when they were splitting up and separating the money. (PageID# 1161-

62.) Nassor was not present when the criminal tools were removed from the Raymond, New 

Hampshire, storage bin. (PageID# 1171.) The last place he had seen the Y2000 cellular jammer 

was at Petitioner’s house. (PageID# 1171-72.) 

Petitioner disputes the truth of portions of Doucette’s trial testimony. Petitioner states 

that he advised the prosecutor and FBI in May 2010 that he, Morgan, and Doucette stayed at the 

same hotel, under the name of William Palavacini, on the night of Friday, January 16, 2009, and 

Sunday, January 18, 2009, and that the hotel was located only a short distance away from the 

Pennsylvania storage facility they used in connection with the offense. Supplemental Affidavit of 

Sean D. Murphy (ECF No. 201, PageID# 2781-82.) Petitioner has attached what purports to be a 

Case: 2:11-cr-00010-GCS-EPD Doc #: 216 Filed: 05/11/16 Page: 10 of 40 PAGEID #: <pageID>
11

record from the Comfort Inn located in Mars, Pennsylvania, indicating that a person by the name 

of William Palavacini stayed at the hotel on January 18, 2009, checking out the following day. 

Exhibit B (ECF No. 184-3, PageID# 2714-16.) As discussed, Petitioner also has attached a copy 

of a “mapquest” document, indicating that the Comfort Inn located at 924 Sheraton Drive, in 

Mars, Pennsylvania, is 1.11 miles from 300-302 Brush Creek Road, Warrendale, Pennsylvania –

the location of the Pennsylvania storage facility. Exhibit A (ECF No. 184-2, PageID# 2710-12.) 

Petitioner maintains that they used a storage facility located in Eastern Ohio, not the 

Pennsylvania storage facility, to store all proceeds of the crime immediately after the burglary. 

According to Petitioner, the Ohio storage facility was located one to two hours from the Comfort 

Inn in Pennsylvania where they spent that night. He asserts that Doucette therefore lied when 

Doucette said that they transported the proceeds of the Brinks burglary to Pennsylvania and then 

returned directly to Lynn, Massachusett with the paper currency. These facts are significant, 

Petitioner argues, because they establish that he did not transport any proceeds from Brinks 

across state lines, and that he therefore is innocent of the charges of conspiracy to transport 

merchandise and money in interstate commerce, and transporting merchandise and money in 

interstate commerce, in violation of 18 U.S.C. §§§ 371, 23141 and 2. Petitioner maintains that 

                                                            

1

  18 U.S.C. § 2314 provides: 

Transportation of stolen goods, securities, moneys, fraudulent State tax stamps, or articles used in 

counterfeiting 

Whoever transports, transmits, or transfers in interstate or foreign commerce any goods, wares, 

merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been 

stolen, converted or taken by fraud; or 

Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining 

money or property by means of false or fraudulent pretenses, representations, or promises, 

transports or causes to be transported, or induces any person or persons to travel in, or to be 

transported in interstate or foreign commerce in the execution or concealment of a scheme or 

artifice to defraud that person or those persons of money or property having a value of $5,000 or 

more; or 

Case: 2:11-cr-00010-GCS-EPD Doc #: 216 Filed: 05/11/16 Page: 11 of 40 PAGEID #: <pageID>
12

the previously described “newly discovered evidence” establishes that Doucette and Morgan 

transported the proceeds of the burglary across state lines only after Petitioner’s arrest. 

Petitioner disputes various aspects of Doucette’s trial testimony in support of his claim 

that Doucette committed repeated material perjury. Specifically, he claims Doucette lied when 

denying that the defendants returned to Brinks after the burglary.2

 Petitioner claims that 

                                                                                                                                                                                               

Whoever, with unlawful or fraudulent intent, transports in interstate or foreign commerce any 

falsely made, forged, altered, or counterfeited securities or tax stamps, knowing the same to have 

been falsely made, forged, altered, or counterfeited; or 

Whoever, with unlawful or fraudulent intent, transports in interstate or foreign commerce any 

traveler’s check bearing a forged countersignature; or 

Whoever, with unlawful or fraudulent intent, transports in interstate or foreign commerce, any 

tool, implement, or thing used or fitted to be used in falsely making, forging, altering, or 

counterfeiting any security or tax stamps, or any part thereof; or 

Whoever transports, transmits, or transfers in interstate or foreign commerce any veterans’ 

memorial object, knowing the same to have been stolen, converted or taken by fraud— 

Shall be fined under this title or imprisoned not more than ten years, or both. If the offense 

involves a pre-retail medical product (as defined in section 670) the punishment for the offense 

shall be the same as the punishment for an offense under section 670 unless the punishment under 

this section is greater. If the offense involves the transportation, transmission, or transfer in 

interstate or foreign commerce of veterans’ memorial objects with a value, in the aggregate, of less 

than $1,000, the defendant shall be fined under this title or imprisoned not more than one year, or 

both. 

This section shall not apply to any falsely made, forged, altered, counterfeited or spurious 

representation of an obligation or other security of the United States, or of an obligation, bond, 

certificate, security, treasury note, bill, promise to pay or bank note issued by any foreign 

government. This section also shall not apply to any falsely made, forged, altered, counterfeited, 

or spurious representation of any bank note or bill issued by a bank or corporation of any foreign 

country which is intended by the laws or usage of such country to circulate as money. 

For purposes of this section the term “veterans’ memorial object” means a grave marker, 

headstone, monument, or other object, intended to permanently honor a veteran or mark a 

veteran’s grave, or any monument that signifies an event of national military historical 

significance. 

2

 

Q. [W]hen you were coming back from the Ohio Brink’s burglary, and you went and you said you dropped 

off the tools in the Pennsylvania storage facility? 

A. Yes. 

Q. You are also claiming that you came straight back to Lynn, but you didn’t spend the night there? 

A. We didn’t spend the night. . . . 

Case: 2:11-cr-00010-GCS-EPD Doc #: 216 Filed: 05/11/16 Page: 12 of 40 PAGEID #: <pageID>
13

Doucette lied when he testified that Nassor stopped at Brinks to observe their hours of operation 

on the way home from picking up a cell phone jammer for Petitioner. (Transcript, ECF No. 159-

2, PageID# 1463.)3 He claims that Doucette lied when Doucette claimed to be present when 

Petitioner and Morgan took tools to be used in the burglary to Pennsylvania one month to five 

weeks before the January 17, 2009, burglary, as evidence indicated they did not rent the 

Pennsylvania storage bin until January 3, 2009. (ECF No. 184-1, PageID# 2685.)4 He claims 

                                                                                                                                                                                               

Q. Do you recall being in the hotel and washing the crime clothes while two members of your crew went 

back to the Brink’s burglary to check things out. Do you remember that? . . . 

A. Not at all. 

Transcript (ECF No. 1640.) 

3

 Nassor testified that he drove to Memphis, Tennessee to pick up a Federal Express package containing a cellular 

telephone jammer for Petitioner, and drove straight home, Transcript (ECF No. 159, PageID# 1100, 1106), but 

returned to conduct surveillance on the Brinks facility for Petitioner at a later date. (ECF No. 159, PageID# 1107-

08.) 

4

 

Q. [Y]ou were present when the tools were put in the truck to go out to Ohio? 

A. Yes. 

Q. Do you remember the date that that was? 

A. It was prior to us leaving, I don’t know an exact date. 

Q. You have no idea? 

A. I can speculate. 

Q. Okay. 

A. But I don’t want to get pinned down to a date. So, I am going to say I don’t know an official date. But 

if you want an approximation, it was about a month. 

*** 

Approximately. Maybe five weeks. 

*** 

It was approximately a month, give or take a week. I wasn’t paying attention and writing down dates, but I 

know it was prior to us leaving. 

Transcript (ECF No. 159-2, PageID# 1603.) 

Case: 2:11-cr-00010-GCS-EPD Doc #: 216 Filed: 05/11/16 Page: 13 of 40 PAGEID #: <pageID>
14

that Doucette lied when Doucette denied recollection of use of a ladder during the burglary. 

(Transcript, ECF No. 160, PageID# 1760.) He claims that Doucette lied in regard to his 

testimony attempting to account for a quantity of 452 miles driven on the rental car used by the 

defendants.5

 He claims that Doucette lied when he testified that Morgan made the decision to 

retrieve the stolen money after Petitioner’s arrest. He claims that Doucette lied when he stated 

that Morgan and Doucette accessed the Pennsylvania storage bin on January 24, 2009, with a key 

Petitioner had left hidden for them there. (Transcript, ECF No. 159-2, PageID# 1550.) He 

claims that Doucette lied when he stated that he removed items from the Raymond, New 

Hampshire, storage bin (where the contents of the Pennsylvania storage bin had been moved) 

prior to Morgan’s arrest. (Transcript, ECF No. 159-2, PageID# 1593.) Petitioner claims that 

Doucette lied because he initially described the rental car used by the defendants as a Voyageur, 

but at trial identified it as a Dodge Journey.6 Petitioner claims that Doucette lied when he 

                                                                                                                                                                                               

5

 Petitioner submitted on cross-examination, that the odometer from the Dodge Journey rented by the defendants 

indicated that it had been driven 2,245 miles, whereas the Budget rental truck had only been driven 1800 miles, 

making for a difference of 452 miles driven by the two vehicles. Transcript (ECF No. 160, PageID# 1673.) 

Petitioner argued that these documents showed that the defendants had driven back to Brinks after the burglary, and 

then returned to the Pennsylvania hotel. (PageID# 1674.) When Petitioner asked Doucette to account for the extra 

452 miles, Doucette stated: 

I’m just saying I can’t account for the extra miles, considering that you had the keys. So you have to ask 

yourself. I mean, maybe you came and took it. Maybe you let someone borrow it. I can’t account for that. 

Transcript (ECF No. 160, PageID# 1676.) 

6

 

Q. Do you remember what day that Dodge Journey was rented? 

A. Yes. 

*** 

That was the 15th. 

Q. And in your prior testimony, Mr. Doucette, you referred to it as another vehicle? 

*** 

I called it a Voyager because a Voyager and a Journey, they are both kind of similar words, and I did get 

confused on that. 

Case: 2:11-cr-00010-GCS-EPD Doc #: 216 Filed: 05/11/16 Page: 14 of 40 PAGEID #: <pageID>
15

testified that the defendants brought back all paper currency to Lynn, Massachusetts on January 

18, 2009, and began splitting it up on January 18, 19, 20, 2009, and when Doucette stated that 

Nassor received a share of the proceeds. Petitioner claims that Doucette lied when he testified 

that Morgan had rented the storage bin at UHAUL Storage in Lynn, Massachusetts.7

 Petitioner 

claims that Doucette lied when he testified that they burned damaged unusable money obtained 

from the Brinks burglary. Petitioner claims that Doucette lied when he testified that only 

$210,000 of unburned paper currency remained. Petitioner claims that Doucette lied when he 

denied destroying the laptop computer he used to research the Brinks building. Petitioner claims 

that Doucette lied when he testified that someone must have gotten into the Raymond, New 

Hampshire storage bin and stolen a trash bag full of money and the electromagnetic drill.8

(Transcript, ECF No. 159-2, PageID# 1625-27.) Petitioner claims that Doucette lied when he 

stated that Morgan took Petitioner’s share of the proceeds after Petitioner’s arrest. Petitioner 

refers to Doucette’s trial testimony admitting that he initially lied to the grand jury and FBI 

                                                                                                                                                                                               

*** 

After I had seen one, I realized that they are two different vehicles. 

Transcript (ECF No. 159-2, PageID# 1614.) 

7 After Petitioner’s arrest, Doucette testified that Morgan rented a bay at a UHaul facility for storage of the 

electronic equipment they had used in the burglary. Transcript (ECF No. 159-2, PageID# 1555.) Petitioner 

contends that it was Doucette who rented the storage bin under the nickname “Bogart”. (ECF No. 184-1, PageID# 

2690.) Petitioner has attached in support of this claim what appears to be a receipt from “webselfstorage” indicating 

that an individual by the name of George Bogart rented a storage unit in Lynn, Massachusetts, from January 23, 

2009, until May 9, 2009. Exhibit C (ECF No. 184-4, PageID# 2717-21.) 

8 Doucette stated: 

A lot of the money was burnt. We sat at my house, counting it, and we burnt the money that was no good, 

because, as you can see in the pictures and the evidence that was shown to the jury, the money was 

damaged extensively. . . . And on top of it . . . we washed and dried it. So money got damaged there. And 

when I went to the storage facility, I noticed there was an issue with one of the bags missing. So – and it 

was all damaged money, which was useless. That’s the reason why we had it in bags, because we only 

took what was good. 

And, in the end, we ended up with a bunch of burnt money that was useless. That’s why there was a bag. 

So, if someone stole a bag of burnt money, good luck to them[.] 

Case: 2:11-cr-00010-GCS-EPD Doc #: 216 Filed: 05/11/16 Page: 15 of 40 PAGEID #: <pageID>
16

regarding his involvement in the Brinks burglary and James Hennessey’s involvement as 

evidence of Doucette’s untruthfulness. (Transcript, ECF No. 160, PageID# 1677-1680.)9

 

Petitioner claims that Doucette lied when he testified that they stored a 100 watt cell phone 

jammer in the Pennsylvania storage bin.10 He claims that Doucette lied when he testified that 

everything but paper currency went into the Pennsylvania storage bin.11 Petitioner claims that 

                                                            

9

  

Q. When you were first approached by authorities regarding the Brink’s burglary. . . . [w]hat did you tell 

them? 

A. I told them that I wasn’t involved. 

Q. And was that a lie? 

A. Yes, it was. 

Transcript (ECF No. 160, PageID# 1677.) 

Q. Did you tell Special Agent Costello, or any of the FBI or law enforcement that questioned you, that 

James Hennessey (phonetic) helped you move the stuff? 

A. No, I didn’t. 

 

*** 

I had Jim Hennessey help me, and I corrected myself yesterday and stated that. . . . because Jim was a lifelong friend, and I had asked him for help. . . and I didn’t tell him the truth. 

Transcript (ECF No. 160, PageID# 1680.) 

10   

Q. Was the big hundred-watt cell phone jammer used in the Brink’s heist? 

Its service was not needed. 

Q. Was it even brought out to Ohio? 

A. I don’t recall. 

Q. Do you know if it was in the Pennsylvania storage bin? 

A. I would say yes. 

Transcript (ECF No. 160, PageID# 1702.) 

11 Doucette acknowledged on cross-examination that they must have brought the money counter obtained from 

Brinks back with the money. (Transcript, ECF No. 159-2, PageID# 1642-43.) 

Case: 2:11-cr-00010-GCS-EPD Doc #: 216 Filed: 05/11/16 Page: 16 of 40 PAGEID #: <pageID>
17

Doucette lied when he testified that he was awake for 100 hours straight on the weekend of the 

burglary. 

According to the Declaration of Anthony Moschopoulos, submitted by Petitioner, Robert 

Doucette told Moschopoulos that he regretted lying at Petitioner’s trial, and that the prosecutor 

had told Doucette “not to change his story.” (ECF No. 187.) Petitioner refers to the Declaration 

of Joseph M. Morgan as setting forth an accurate account of the events that transpired, as 

follows: 

Prior to going to do the BRINKS burglary, Robert Doucette 

purchased a MILWAUKEE Electromagnetic Drill for @ $2,500 in 

Woburn, MA. This drill was attempted to be used on a 6 ft. safe 

inside BRINKS at 1362 Essex Avenue, Columbus, Ohio. I later 

placed this drill inside the “first” Raymond, NH, storage bin after 

retrieving the stolen money and tools from Ohio 

On January 3, 2009, me and Sean Murphy drove to Western 

Pennsylvania (PA) and rented a storage bin. We placed all the 

crime tools in this bin on that date. 

After me and Murphy unloaded the crime tools in the PA storage 

bin, we drove over the border into Eastern Ohio and rented another 

storage bin that all the stolen money from BRINKS was going to 

go inside. The reason being that BRINKS may have GPS units 

hidden inside their packets of money. We could, therefore, unload 

the money into the Ohio storage bin rather quickly, lock the bin, go 

to the PA storage bin and unload the crime tools which would take 

a lot longer, then drive home empty. 

On January 16, 2009, after arriving at BRINKS, I cut four holes in 

BRINKS roof using a MILWAUKEE plug-in sawzall. I later 

placed this sawzall inside the “first” Raymond, NH, storage bin 

after retrieving the crime tools and stolen money from Ohio. 

We entered BRINKS building above the cash vault inside the 

Vault Room. In order to get into the garage area all we had to do 

was unlatch the doors by hand because we were already in the 

Vault Room. No other procedure was necessary to open the doors 

leading out to the garage area. 

Case: 2:11-cr-00010-GCS-EPD Doc #: 216 Filed: 05/11/16 Page: 17 of 40 PAGEID #: <pageID>
18

Robert Doucette used a 12 ft. A-frame ladder inside BRINKS to 

release the rear garage door opener so that the garage door could 

be opened and closed by hand. All three of us used this same 

ladder to lug the industrial fan onto and off of BRINKS roof. 

After we left BRINKS, we brought the tools, stolen money and 

other stolen items to the Ohio storage facility and unloaded 

everything in the storage bin. The crime tools were supposed to go 

in the PA storage bin. However, because the gate was stuck open 

24 hours, we decided to put everything in the Ohio storage bin. 

We made the decision to stay at the same Hotel (Comfort Inn) in 

Western, PA that we had stayed in on January 16, 2009. We 

checked in the Hotel again on January 18, 2009. . . . 

We then used the rent-a-car to drive back to BRINKS to see if any 

BRINKS employees were able to enter the building because we 

had epoxy-glued the doors shut. 

After observing BRINKS was a major crime scene, we drove back 

to the Comfort Inn Hotel in Western, PA and stayed the night. 

On January 19, 2009, we checked out of the Comfort Inn Hotel and 

drove back to Lynn, MA, empty as planned. Nothing taken from 

BRINKS came back to Lynn. 

Me and Robert Doucette snorted crushed up 80 mg. Oxycontin 

pills together on January 16, 17, 18, 19, 2009, and also on January 

23, 23, 2009, when we went back to Ohio to retrieve the items 

from the Ohio storage bin. 

Once we returned home to Lynn, MA, on January 19, 2009, at @ 

7:00 pm, we all went home to get some sleep. Robert Doucette 

took the rent-a-car home with him. 

On January 20, 2009, we brought the 24 ft. BUDGET moving 

truck to Robert Doucette’s house for cleaning. . . . 

On January 21, 2009, the BUDGET moving truck was driven out 

of Doucette’s yard and David Nassor was responsible for returning 

the truck to the truck rental center in NH. 

On January 23, 2009, Murphy was arrested, when state police and 

FBI raided Murphy’s home and moving warehouse in Lynn, MA. 

Case: 2:11-cr-00010-GCS-EPD Doc #: 216 Filed: 05/11/16 Page: 18 of 40 PAGEID #: <pageID>
19

Robert Doucette wanted to go to Ohio to retrieve the stolen money 

due to Murphy’s arrest. So me and Robert Doucette drove to Ohio 

using a 24 ft. UHAUL moving truck his friend James Hennessey 

rented for him on January 23, 2009. 

Once the items were retrieved from Ohio, we needed a place to put 

the heavy steel coin racks and video recording units stolen from 

BRINKS. I suggested that we put them in the PA storage bin 

knowing the rent on the bin had been prepaid for several months in 

advance. 

On January 24, 2009, me and Robert Doucette pulled into the 

Western, PA storage facililty. . . . 

We had previously stashed the key to the Western PA storage bin 

inside an overhead door flashing next to Bin 124. We could not 

find the key so we then disassembled the entire door flashing to try 

to locate the key. The key was not there so we re-assembled the 

door flashing and drove back to Lynn, MA with all the tools, 

money and stolen items from BRINKS. 

Me and Robert Doucette unloaded all the crime tools, stolen coin 

and crime clothes in a storage bin in Raymond, NH, that James 

Hennessey had rented for Doucette. 

Me and Robert Doucette brought the paper currency, digital money 

counter, steel coin racks, and video recording units back to Lynn, 

MA from the Raymond, NH storage bin. 

Robert Doucette rented a storage bin at UHAUL Storage in Lynn, 

MA, on January 23, 2009, where we temporarily stored the items 

taken out of the Raymond, NH storage bin. Robert Doucette 

rented the storage bin under the name George Bogart. . . . 

On January 26, 2009, me and Robert Doucette began counting the 

stolen money and separating the partially burned money from the 

unburned money. We did this for the next three days straight. 

The total count of unburned paper currency stolen from BRINKS 

was @ $420,00[0]. The total count of stolen coin was @ 

$425,000. The total amount of partially burned money was well 

over $225,000. 

All the unburned money was kept at Robert Doucette’s house. All 

the partially burned money was bagged up and brought to the Lynn 

Case: 2:11-cr-00010-GCS-EPD Doc #: 216 Filed: 05/11/16 Page: 19 of 40 PAGEID #: <pageID>
20

storage bin at UHAUL Storage. No money was destroyed or 

thrown away. 

Robert Doucette took his laptop computer that he researched 

BRINKS with and drove over it in his driveway with my Chevrolet 

Tahoe truck. The laptop was demolished. 

Sometime in February 2009, me and Robert Doucette cut up the 

heavy steel coin racks in Doucette’s yard with a cutting torch. 

Doucette knew a local salvage guy who came and took the steel 

from his yard. 

In June 2007, I purchased all the equipment for the Thermolance 

set up that cut through BRINKS vault. 

Only the cell phone jammer David Nassor picked up in Memphis, 

TN was taken to Ohio. Murphy’s 100 Watt cell phone jammer was 

at Doucette’s house in a blue flight container on the weekend of 

January 17-18, 2009. 

*** 

The FBI approached me to cooperate and I refused to speak with 

them. 

Murphy requested that I testify on his behalf at trial and I told 

Murphy that if I was called as a witness I would invoke my Fifth 

Amendment rights. 

Declaration of Joseph M. Morgan (ECF No. 188, PageID# 2730-33.) 

 “The Supreme Court has long recognized that due process is denied where ‘[the] state has 

contrived a conviction through the pretense of a trial which in truth is but used as a means of 

depriving a defendant of liberty through a deliberate deception of court and jury by the 

presentation of testimony known to be perjured.’” Brooks v. Tennessee, 626 F.3d 878, 894 (6th 

Cir. 2010) (citing Mooney v. Holohan, 294 U.S. 103, 112 (1935)). “To prevail on a claim that 

the government presented perjured testimony, [the petitioner] must show ‘(1) that the statements 

were actually false; (2) the statements made were material; and (3) [the] prosecution knew they 

were false.’” United States v. Pierce, 62 F.3d 818, 834 (6th Cir. 1995) (citing United States v. 

Case: 2:11-cr-00010-GCS-EPD Doc #: 216 Filed: 05/11/16 Page: 20 of 40 PAGEID #: <pageID>
21

Farley, 2 F.3d 645, 655 (6th Cir. 1993)). “A false statement is material under this standard, and 

‘[a] new trial is required[,] if the false testimony could in any reasonable likelihood have affected 

the judgment of the jury.’” Brooks, 626 F.3d at 895 (citing Giglio, 405 U.S. at 154 (alterations 

and internal quotation marks omitted) (quoting Napue v. Illinois, 360 U.S. 264, 271 (1959). 

“This rule applies to both the solicitation of false testimony and the knowing acquiescence in 

false testimony.” United States v. Benton, 64 F. App’x 914, 919, unpublished, 2003 WL 

21085276 (6th Cir. 2003) (citing Napue, 360 U.S. at 269. “The burden is on the defendant[] to 

show that the testimony was actually perjured, and mere inconsistencies in testimony by 

government witnesses do not establish knowing use of false testimony.” Coe v. Bell, 161 F.3d 

320, 343 (6th Cir. 1998) (quoting United States v. Lochmondy, 890 F.2d 817, 822 (6th Cir. 

1989)). A witness commits perjury where he “gives false testimony concerning a material matter 

with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or 

faulty memory.” United States v. Dunnigan, 507 U.S. 87, 94 (1993) (citations omitted). “The 

statement must be ‘indisputably false,’ instead of simply misleading.” United States v. Leman, 

No. 10-10-GFVT, 2013 WL 1856123, at *3 (E.D. Ky. April 30, 2013) (citing Byrd v. Collins,

209 F.3d 486, 517–18 (6th Cir. 2000); Akrawi v. Booker, 572 F.3d 252, 265 (6th Cir. 2009)). 

Moreover, “[m]otions for a new trial based upon newly discovered evidence are disfavored and 

should be granted with caution.” United States v. Turns, 198 F.3d 584, 586 (6th Cir. 2000) 

(citing United States v. Seago, 930 F.2d 482, 488 (6th Cir. 1991)). “When a defendant makes a 

motion for a new trial based upon newly discovered evidence, he must show that (1) the 

evidence was discovered after the trial, (2) it could not have been discovered earlier with due 

diligence, (3) it is material and not merely cumulative or impeaching, and (4) it would likely 

Case: 2:11-cr-00010-GCS-EPD Doc #: 216 Filed: 05/11/16 Page: 21 of 40 PAGEID #: <pageID>
22

produce an acquittal if the case was retried.” Id. (citing Barlow, 693 F.2d at 966). Petitioner has 

failed to meet these standards here. 

Where a witness asserts his Fifth Amendment privilege against self-incrimination and 

refuses to testify at trial, but later changes his mind and decides to testify on the defendant’s 

behalf, the evidence does not constitute newly discovered evidence within the meaning of Rule 

33. Turns, at 586 (citing United States v. Glover, 21 F.3d 133 (6th Cir. 1994)). “While [the 

witness]’s testimony may have been newly available, it was not in fact ‘newly discovered 

evidence’ within the meaning of Rule 33.” Glover, at 138. 

In so holding, this Court is in accord with other circuits that have 

addressed this issue. See, e.g., United States v. Lockett, 919 F.2d 

585, 591 (9th Cir. 1990) (“[W]hen a defendant who has chosen not 

to testify comes forward to offer testimony exculpating a 

codefendant, the evidence is not ‘newly discovered.’ ”); United 

States v. DiBernardo, 880 F.2d 1216, 1224–25 (11th Cir. 1989) 

(where defendants were “well aware” of witness’ proposed 

testimony prior to trial, “the testimony cannot be deemed ‘newly 

discovered evidence’ within the meaning of Rule 33”); United 

States v. Jacobs, 475 F.2d 270, 286 n.33 (2d Cir.) (“a court must 

exercise great caution in considering evidence to be ‘newly 

discovered’ when it existed all along and was unavailable only 

because a codefendant, since convicted, had availed himself of his 

privilege not to testify”), cert. denied, 414 U.S. 821, 94 S.Ct. 116, 

38 L.Ed.2d 53 (1973). 

Id. at 138-139. 

For other cases reaching the same conclusion, see Pierce, 62 F.3d 

at 825 (“Evidence is not newly discovered when it is necessarily 

known by the defendant at the time of trial.”); United States v.

Hawkins, 969 F.2d 169, 175 (6th Cir. 1992) (holding that if a 

defendant knew about the evidence at the time of trial, he cannot 

satisfy the newly discovered evidence requirement of Rule 33); 

Seago, 930 F.2d at 489 (holding that evidence known by the 

defendant at the time of trial cannot constitute “newly discovered” 

evidence); United States v. DiBernardo, 880 F.2d 1216, 1224 (11th 

Cir. 1989) (“Here, both [defendants] were well aware of [the 

witness]’s proposed testimony prior to trial. Therefore, the 

Case: 2:11-cr-00010-GCS-EPD Doc #: 216 Filed: 05/11/16 Page: 22 of 40 PAGEID #: <pageID>
23

testimony cannot be deemed ‘newly discovered evidence’ within 

the meaning of Rule 33.”). 

Id. at 138. See also United States v. Lockett, 919 F.2d 585, 591 (9th Cir. 1990) (“We agree. . . 

that “a court must exercise great caution in considering evidence to be ‘newly discovered’ when 

it existed all along and was unavailable only because a co-defendant, since convicted, had 

availed himself of his privilege not to testify.”) (citing United States v. Jacobs, 475 F.2d 270, 

286 n. 33 (2d Cir.), cert. denied sub nom. Lavelle v. United States, 414 U.S. 821 (1973)). Thus, 

the Declaration of Joseph M. Morgan does not constitute newly discovered evidence justifying a 

new trial. 

 Similarly, this Court is not persuaded that the “mapquest” document, or Comfort Inn 

hotel records constitute newly discovered evidence that Petitioner could not have obtained 

earlier. Petitioner, himself, knew the location of the hotel where he claims to have spent the 

night after commission of the offense, the name under which the defendants registered the room, 

the location of the Pennsylvania storage facility they used, and the location of any purported 

Ohio storage facility. Petitioner therefore had access to the all of the pertinent information he 

needed to require documentation or records to support his claim that the defendants stored 

proceeds of the burglary in Ohio, and spent the night at a Comfort Inn in Pennsylvania under an 

assumed name. Petitioner likewise had the information he needed to obtain documents to 

establish the proximity of the hotel to the Pennsylvania storage facility. Petitioner’s claim that 

he was “surprised” by Doucette’s testimony, and prevented from earlier obtaining such 

documents on this basis or only because his attorney told the defense investigator to cease 

investigations shortly before the trial is disingenuous, at best. 

Phillips’ Activity Log indicates that Phillips spent hours interviewing Morgan and 

consulting with Petitioner and his attorney in this case. (ECF No. 207, PageID# 2841.) Nothing 

Case: 2:11-cr-00010-GCS-EPD Doc #: 216 Filed: 05/11/16 Page: 23 of 40 PAGEID #: <pageID>
24

prevented Petitioner from providing Phillips, or defense counsel, with the information that would 

have enabled Phillips to obtain the documents Petitioner now submits in support of his claim 

prior to trial. Further, it does not appear from the record that Petitioner ever notified the Court 

that he needed additional time to obtain evidence for the defense. 

 Further, despite Petitioner’s arguments to the contrary, this Court is not persuaded that 

any of the evidence Petitioner refers to, or any of Petitioner’s claimed instances of perjury by 

Doucette, lends credibility to his claim that he is innocent of the crimes charged or constitutes 

material evidence of an exculpatory nature that likely would have produced an acquittal. 

Records indicating that a person by the name of William Palavacini stayed at the Comfort Inn in 

Pennsylvania on the night of January 18, 2009, and documentation reflecting that the hotel was 

located near a storage facility used by the defendants, or that a person by the name of George 

Bogart rented a storage unit from “webselfstorage” on January 23, 2009, does nothing to call into 

question the substantial evidence indicating that Petitioner did conspire to and plan and 

burglarize Brinks, and transport the proceeds of the burglary across state lines. Doucette has not 

recanted his trial testimony,12 and neither the Declaration of Anthony Moschopoulos indicating 

that Doucette stated that he regretted lying, or the Declaration of Joseph M. Morgan, constitute 

the type of material reliable evidence sufficient to justify a new trial, particularly in view of the 

substantial evidence of guilt. At most, such evidence constitutes impeachment evidence. 

 Nothing in the record supports Petitioner’s claim that Doucette lied when testifying 

against Petitioner. To the contrary, Doucette’s testimony was corroborated by other evidence 

                                                            

12 See United States v. Coker, 23 F. App’x 411, 412, unpublished, 2001 WL 1450692 (6th Cir. Nov. 2, 2001) 

(“[W]hen the motion for a new trial is based on the recantation of a material government witness, the motion should 

be granted only if: 1) the court is reasonably well satisfied that the trial testimony given by the material witness is 

false; 2) without the false testimony, the jury might have reached a different conclusion; and 3) the party seeking the 

new trial was taken by surprise when the false testimony was given, and was unable to meet it or did not know of its 

falsity until after the trial.”) (citing United States v. Willis, 257 F.3d 636, 642–43 (6th Cir. 2001)). 

Case: 2:11-cr-00010-GCS-EPD Doc #: 216 Filed: 05/11/16 Page: 24 of 40 PAGEID #: <pageID>
25

submitted at trial. In any event, virtually all of Petitioner’s claimed instances of perjury by 

Doucette simply do not involve material facts in regard to Petitioner’s guilt. For example, the 

date on which Nassor conducted surveillance of the Brinks facility; whether or not the 

defendants returned to the scene of the crime after making their escape; the manner in which the 

proceeds were divided; how long Doucette was awake the weekend of the crime; whether 

Doucette was under the influence of drugs or could recall the use of a ladder during the crime; 

whether Doucette could recall the model of the vehicle they rented; the date on which the 

defendants delivered the criminal storage tools to Pennsylvania; the means by which Doucette 

and Morgan gained entry into the Pennsylvania facility after Petitioner’s arrest – none of these 

issues affect the determination of Petitioner’s guilt. While these issues may have gone to the 

issue of Doucette’s credibility, each involves issues for which Doucette was subject to crossexamination at trial. 

 In short, the record fails to support Petitioner’s claim that Doucette committed material 

perjury, that the prosecution knowingly presented perjured testimony, or that newly discovered 

evidence establishes Petitioner’s innocence or justifies a new trial or will warrant habeas corpus 

relief. 

 Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255 

Standard of Review 

To obtain relief under 28 U.S.C. § 2255, a defendant must establish the denial of a 

substantive right or defect in the trial that is inconsistent with the rudimentary demands of fair 

procedure. United States v. Timmreck, 441 U.S. 780 (1979); United States v. Ferguson, 918 F.2d 

627, 630 (6th Cir. 1990) (per curiam). Relief under 28 U.S.C. § 2255 is available when a federal 

sentence was imposed in violation of the Constitution or laws of the United States or the trial 

Case: 2:11-cr-00010-GCS-EPD Doc #: 216 Filed: 05/11/16 Page: 25 of 40 PAGEID #: <pageID>
26

court was without jurisdiction or the sentence is in excess of the maximum sentence allowed by 

law, or is “otherwise subject to collateral attack.” United States v. Jalili, 925 F.2d 889, 893 (6th 

Cir. 1991). Apart from constitutional error, the question is “whether the claimed error was a 

‘fundamental defect which inherently results in a complete miscarriage of justice,’” Davis v. 

United States, 417 U.S. 333, 346 (1974) (quoting Hill v. United States, 368 U.S. 424, 428–429 

(1962); see also Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2006). Nonconstitutional 

claims not raised at trial or on direct appeal are waived for collateral review except where the 

errors amount to something akin to a denial of due process. 

It is well-established that a § 2255 motion “is not a substitute for a direct appeal.” Ray v.

United States, 721 F.3d 758, 761 (6th Cir. 2013) (quoting Regalado v. United States, 334 F.3d 

520, 528 (6th Cir. 2003) (citing United States v. Frady, 456 U.S. 152, 167–68 (1982)). 

Accordingly, claims that could have been raised on direct appeal, but were not, will not be 

entertained via a motion under § 2255 unless the petitioner shows: (1) cause and actual prejudice 

to excuse his failure to raise the claims previously; or (2) that he is “actually innocent” of the 

crime. Ray, 721 F.3d at 761 (citing Bousley v. United States, 523 U.S. 614, 622 (1998) (internal 

citations omitted). 

Claim Five 

In claim five, Petitioner asserts that the prosecution violated Brady v. Maryland, 373 U.S. 

83 (1963) by failing to disclose material exculpatory information to the defense. Specifically, 

Petitioner asserts that the government failed to disclose the recorded statement of Robert 

Doucette; a video recording taken from the business next door to Brinks; and “the picture of the 

smaller hole in vault prior to the hole being enlarged by the fire department.” (ECF No. 184-1, 

Case: 2:11-cr-00010-GCS-EPD Doc #: 216 Filed: 05/11/16 Page: 26 of 40 PAGEID #: <pageID>
27

PageID# 2705.). However, the Court of Appeals for the Sixth Circuit has already rejected this 

claim: 

Murphy argues that the government violated Brady v. Maryland, 

373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to 

produce the following pieces of exculpatory evidence: (1) the 

recorded statement of Robert Doucette, (2) video taken from a 

neighboring business’s security camera the night of the heist, (3) a 

picture of a smaller hole in the side of the Brink’s vault, before the 

fire department enlarged the hole, and (4) information regarding 

DNA test results obtained from the cigarette butts and empty drink 

containers discovered at the scene of the heist. 

“[T]he suppression . . . of evidence favorable to an accused upon 

request violates due process where the evidence is material either 

to guilt or to punishment.” Brady, 373 U.S. at 87, 83 S.Ct. 1194. 

“Brady also applies to the nondisclosure of evidence affecting the 

credibility of a witness whose ‘reliability . . . may . . . be 

determinative of guilt or innocence.’ ” United States v. Blood, 435 

F.3d 612, 627 (6th Cir. 2006) (quoting Giglio v. United States, 405 

U.S. 150, 153–54, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972)). Reversal 

is required only “where there is a reasonable probability that, had 

the evidence been disclosed, the result of the trial would have been 

different.” United States v. Bencs, 28 F.3d 555, 560 (6th Cir. 

1994). Because Murphy did not object to these issues below, we 

review his claims for plain error. Blood, 435 F.3d at 627–28. 

Murphy argues that the government violated Brady by not turning 

over a video-taped statement of Doucette, the only witness who 

testified that Murphy was at the scene of the heist. Murphy does 

not explain why the video-taped statement of Doucette would have 

been exculpatory or changed the outcome of the trial. Murphy 

cross-examined Doucette extensively over two days on a wide 

range of topics, including his proffer with Agent Costello. Given 

the substantial evidence presented against Murphy, it is unlikely 

that production of Doucette’s taped statement would have altered 

the outcome of the trial. 

Murphy also argues that a video from a business neighboring the 

Brink’s facility was not provided to him. Again, Murphy does not 

explain how this video would have been exculpatory or why it 

would have changed the outcome of the trial. Doucette testified 

that Murphy and his co-conspirators covered the truck with a large 

tarp prior to pulling up to the Brink’s warehouse, with only a small 

hole cut in the front of the cover for the driver to see the road. It is 

Case: 2:11-cr-00010-GCS-EPD Doc #: 216 Filed: 05/11/16 Page: 27 of 40 PAGEID #: <pageID>
28

therefore unlikely that a security video from a nearby business 

would have revealed information exonerating Murphy. 

Murphy contends that the government should have disclosed 

pictures of a smaller hole in the Brink’s vault, rather than pictures 

of the vault with a larger hole in the side created after the fire 

department enlarged the hole to put out the fire. Murphy argues 

that a picture of the smaller hole would have allowed him to 

establish that the intended loss was less than the $92,000,000 that 

was in the vault at the time of the robbery. However, Murphy made 

this argument at his sentencing and the court acknowledged it, 

reducing the intended loss by half from $92,000,000 to 

$46,000,000. Thus, no error was committed. 

Lastly, Murphy argues that information regarding another 

individual’s DNA found at the scene of the crime was disclosed to 

him on the day of the trial, thereby prejudicing his case as he was 

unable to fully investigate the individual identified by the DNA. 

“Brady generally does not apply to delayed disclosure of 

exculpatory information, but only to a complete failure to 

disclose,” and a “[d]elay only violates Brady when the delay itself 

causes prejudice.” Bencs, 28 F.3d at 560–61 (citations and internal 

quotation marks omitted). The DNA discovered on one cigarette 

butt found at the crime scene matched the DNA of a homeless 

individual named Anthony L. Woods. This match was discovered a 

few weeks before Murphy’s trial and was promptly disclosed to 

Murphy. Because the information regarding Woods was promptly 

disclosed to Murphy before his trial, no Brady violation occurred. 

Murphy has not demonstrated that any of the information he seeks 

would have changed the outcome of his trial given the substantial 

evidence against him. For this reason, we deny Murphy’s Brady 

claims. 

United States v. Murphy, 518 F. App’x 402-03. This Court therefore will not again consider this 

claim here. See Cooper v. United States, No. 2:03-cv-479; 2:99-cr-061, 2007 WL 2110493, at 

*9 (S.D. Ohio July 16, 2007) (citing Jones v. United States, 178 F.3d 790, 796 (6th Cir. 1999) 

(citing Oliver v. United States, 90 F.3d 177, 180 (6th Cir. 1996) and Davis v. United States, 417 

U.S. 333, 345 (1974); DuPont v. United States, 76 F.3d 108, 110 (6th Cir. 1996)). 

Case: 2:11-cr-00010-GCS-EPD Doc #: 216 Filed: 05/11/16 Page: 28 of 40 PAGEID #: <pageID>
29

Ineffective Assistance of Counsel 

Petitioner asserts that he was denied the effective assistance of counsel, because 

approximately two weeks prior to the start of trial, his attorney instructed defense investigator 

Gary Phillips to cease investigations on the case. Petitioner states that he did not learn that 

Phillips had discontinued his investigations until October 16, 2011, on the eve of opening 

statements. According to Petitioner, had counsel not instructed Phillips to cease investigation, 

Petitioner would have been able to obtain proof that Doucette lied. (PageID# 2704.) Petitioner 

also complains that counsel urged him to enter a guilty plea. He states that he did not learn until 

after the start of trial that his attorney had failed to subpoena requested defense witnesses. “Even 

though the Government stipulated to certain facts that Murphy was seeking from his defense 

witnesses, there were other ‘key’ areas that Murphy wanted to elicit testimony and he was thus 

prevented from doing so[.]” (ECF No. 184-1, PageID# 2703.) Petitioner asserts that his attorney 

improperly failed to obtain a copy of Robert Doucette’s recorded statement.13 

The Sixth Amendment to the United States Constitution guarantees a criminal defendant 

the right to the effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 686 

(1984). To prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate 

both that counsel’s performance was deficient, or that counsel “made errors so serious that 

counsel was not functioning as the ‘counsel’ guaranteed” by the Sixth Amendment, and that this 

deficient performance prejudiced the petitioner. Id. at 687. This showing requires that defense 

counsel’s errors were so serious as to deprive the defendant of a fair and reliable trial. Id.

                                                            

13 Petitioner asserts in passing that his attorney “went behind [his] back and told the Judge, prosecutor and FBI that 

Murphy was communicating with government witness David Nassor, then devised a plan on how the government 

could gain possession of the correspondence.” (PageID# 2703.) However, Petitioner provides no further specificity 

regarding this claim, and the record does not support a claim of the denial of the effective assistance of counsel on 

this basis. 

Case: 2:11-cr-00010-GCS-EPD Doc #: 216 Filed: 05/11/16 Page: 29 of 40 PAGEID #: <pageID>
30

“Surmounting Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 599 U.S. 

356, 371 (2010). Given the difficulties inherent in determining whether an attorney’s 

performance was constitutionally deficient, “a court must indulge a strong presumption that 

counsel’s conduct falls within the wide range of reasonable professional assistance. . . .” 

Strickland, 466 U.S. at 689. Nevertheless, “[a]n error by counsel, even if professionally 

unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error 

had no effect on the judgment.” Id. at 691. A petitioner, therefore, must show prejudice in order 

to prevail on a claim of ineffective assistance of counsel. Id. at 692. 

In order to establish prejudice, a petitioner must demonstrate that a reasonable probability 

exists that, but for counsel’s errors, the result of the proceedings would have been different. Id. 

at 694. “A reasonable probability is a probability sufficient to undermine confidence in the 

outcome.” Id. Because a petitioner must satisfy both prongs of Strickland to demonstrate 

ineffective assistance of counsel, should a court determine that the petitioner has failed to satisfy 

one prong, it need not consider the other. Id. at 697. 

 On July 5, 2011, the Court appointed Attorney Graeff on Petitioner’s behalf. (ECF No. 

71.) Graeff represented Petitioner during pre-trial proceedings and voir dire, until October 17, 

when the Court granted Petitioner’s Motion to Proceed Pro Se. (ECF Nos. 126, 127.)14 

Petitioner exercised his right of self representation until the conclusion of trial with Graeff acting 

as stand-by counsel. Graeff again represented Petitioner at sentencing. (ECF No. 207, PageID# 

2835.) 

Attorney Graeff has responded to Petitioner’s allegations as follows: 

                                                            

14 Petitioner stated that he wanted to represent himself with Attorney Graeff acting as stand-by counsel, because he 

had learned that his attorney had instructed Phillips to cease investigations on the case, and because his attorney had 

determined that he would not be calling certain defense witnesses. Petitioner also complained that counsel had 

advised him to enter a guilty plea. Transcript (ECF No. 159, PageID# 979-80.) 

Case: 2:11-cr-00010-GCS-EPD Doc #: 216 Filed: 05/11/16 Page: 30 of 40 PAGEID #: <pageID>
31

Regarding the allegation dealing with investigation by Gary 

Phillips, said investigation continued up to the eve of trial and 

actually during the trial itself. 

Exhibit 1 reflects the investigation by Gary Phillips. On October 

31, 2011, I sent the fee application to the Financial Technician. 

Under 13, it states “Investigation for Sean Murphy.” Under 

Activity Log towards the end of the time sheet, it notes that 

throughout the month of October 2011, Gary Phillips spent a 

number of hours on investigation on behalf of Sean Murphy. At 

the end of the time sheet, it reflects Gary Phillips’ actual 

attendance at the trial, i.e., October 24th and October 25th, 2011. 

Affiant does recollect certain requests in which Affiant ordered the 

Investigator not to proceed, during the Pre-trial proceedings. An 

example is Mr. Murphy wanted Gary Phillips to post a notice in 

various colleges and universities throughout the Central Ohio area. 

Affiant instructed Gary Phillips not to post the exhibit reflected 

(Exhibit 2.) 

The notation “No” is this counsel’s handwriting and it was placed 

there during the course of the Pre-trial proceedings. 

It is my recollection that Sean Murphy also ordered Gary Phillips 

to send a letter to a Co-Defendant at the Delaware County Jail who 

was to testify against him in the trial. The letter was sealed and the 

return address was a fictitious one. I instructed Gary Phillips not 

to send this letter. (The letter was delivered, but through proper 

means.) 

Perhaps, this is what Mr. Murphy recollects when he alleges that I 

stopped the investigation two weeks before trial. 

It should be noted that Mr. Murphy conducted an enormous 

amount of investigation on his own years before the beginning of 

the trial. Affiant conducted a significant amount of investigation, 

along with Gary Phillips. 

The second allegation is that I never received a taped statement of 

Robert Doucette, said statement reflecting his cooperation in June 

2009. 

Case: 2:11-cr-00010-GCS-EPD Doc #: 216 Filed: 05/11/16 Page: 31 of 40 PAGEID #: <pageID>
32

Along with a significant amount of discovery, I state that I 

received the disc reflecting Robert’s said statement, reviewed it 

before trial, and said disc is reflected in Exhibit 3.15 

I do recollect a situation during the course of trial when I acted as 

standby counsel. Mr. Murphy was cross-examining a witness and 

he came up at the counsel table, as he often did during the course 

of trial, and asked me if I had the Doucette tape. I said “no,” 

because, at the time of the trial, I did not have the Doucette tape at 

counsel’s table, since the enormous amount of discovery was 

located in my office. 

It has been years, but I do recollect reviewing the Doucette June 

2009 statement and remember that Mr. Doucette basically reflected 

what he testified to at the time of trial. 

Affidavit of David J. Graeff (ECF No. 207, PageID# 2835-37.). An Activity Log attached to the 

Affidavit indicates that Phillips spent a total of 55 hours on the case, from August 31, 2011, to 

October 24, and 25, 2011, when Phillips attended trial. (ECF No. 207, PageID# 2841.) Phillips 

spent 8 hours reviewing discovery in the case, from August 31, 2011 to September 7, 2011. On 

September 8, 2011, Phillips spent .75 hours in “Att interview with Morgan.” On September 9, 

2011, Phillips spent .25 hours on a “Ltr to Chief Barrett, FCSO.” On September 10, 2011, 

Phillips spent two hours interviewing Joe Morgan. On September 13, 2011, Phillips spent 4.5 

hours running a computer search, “Doucett Tvl to jail, meet with client and attorney.” On 

September 14, 2011, Phillips spent 4.50 hours interviewing Don Morgan, preparing summaries, 

and reviewing discovery. On September 23, 2011, Phillips spent 6.50 hours attending court, 

meeting with the attorney, and reviewing “video cd.”16 On October 7, 2011, Phillips spent 2 

hours meeting with the attorney for case review. On October 11, 2011, Phillips spent 2.5 hours 

on “T/c with atty. Computer searches.” Phillips also met with Petitioner on October 17, 2011 

                                                            

15 What appears to be a photocopy of a DVD of Robert Doucette’s June 4, 2009, statement is attached as Exhibit 3 to 

the Affidavit. (ECF No. 207, PageID# 2844.) 16 The Court is unable to determine from the record, but it would appear that the “video cd” refers to Doucette’s 

recorded statement. 

Case: 2:11-cr-00010-GCS-EPD Doc #: 216 Filed: 05/11/16 Page: 32 of 40 PAGEID #: <pageID>
33

(the date that the Court granted Petitioner’s request for self representation) and thereafter, and 

conducted additional investigation during that time. On October 17, 2011, Phillips spent 3.25 

hours attending court and meeting with petitioner and his attorney. On October 18, 2011, 

Phillips spent 4.75 hours attending court, preparing and filing subpoenas, conducting “mapquest” 

searches, and computer research. On October 19, 2011, Phillips spent 4 hours on “t/c with atty. 

Case assistance with clt & atty.” On October 20, 2011, Phillips spent 4 hours researching 

receipts and following up on Petitioner’s requests. On October 21, 2011, Phillips spent .50 hours 

on “t/c with atty.” Activity Log (ECF No. 207, PageID# 2841.) Hand written documents 

attached to Graeff’s Affidavit also appear to indicate that Petitioner had requested notices to be 

posted at various local colleges and universities asking for individuals to attend his trial and to 

start a “Twitter Blog” on his behalf. (PageID# 2842.) 

Petitioner asserts that, but for the improper actions of defense counsel in directing 

Phillips to cease investigations in the case, Phillips would have been able to locate a storage 

facility in Eastern Ohio as well as rental records indicating that the storage facility had been 

rented by a person under the name of Brian Hetherman, an alias used by Petitioner.17 Petitioner 

argues that such evidence would have established that Doucette lied about what the defendants 

did with the proceeds of the robbery, and that Petitioner was not guilty of the crimes charged 

because the stolen goods did not cross state lines until after his arrest. Petitioner’s Reply to 

Government’s Response to § 2255 Petition and Motion for New Trial (ECF No. 211, PageID# 

2853-54.) 

 Phillips testified that he interviewed co-defendant Joseph Morgan regarding details 

surrounding the Brink’s burglary and the weekend of January 17-18, 2009. Transcript (ECF No. 

                                                            

17 Evidence indicated that Petitioner rented a Budget rental truck from New Market Storage in New Market, New 

Hampshire, with a pick-up date of January 16, 2009, under the name of Brian Hetherman. Transcript (ECF No. 

159-1, PageID# 1316-17.) 

Case: 2:11-cr-00010-GCS-EPD Doc #: 216 Filed: 05/11/16 Page: 33 of 40 PAGEID #: <pageID>
34

160-2, PageID# 2043.) Phillips attempted to corroborate the information he obtained from 

Morgan. (Id.) This included attempting to track down various receipts for items used in the 

crime. (Id.) Phillips also investigated the purchase of a Milwaukee electromagnetic drill, but he 

did not verify the purchase, at the instruction of defense counsel. (PageID# 2045.) When 

Petitioner took over control of his case, Petitioner requested Phillips to conduct some follow-up. 

Petitioner instructed Phillips to investigate the purchase of a thermal rod hose, handle and 

thermal rods. (Id.) Phillips located the business where the items had been purchased and 

obtained a copy of the receipt. (PageID# 2046.) The receipt referred to a company as the 

purchaser. (PageID# 2048.) Petitioner also instructed Phillips to investigate the purchase of a 28 

foot RV cover. Phillips did not locate the business where the cover had been purchased, as Mr. 

Graeff had asked him to withhold additional efforts in that regard. (PageID# 2048.) Phillips did 

not attempt to locate the UHaul truck that had transported money from the Brink’s robbery, as he 

was advised to hold investigation until Petitioner took over the case. (PageID# 2049-50.) He did 

not locate a storage bin rented in the city of Lynn at a U-Haul storage facility sometime in the 

week following January 23rd for the same reason. (PageID# 2050.) Petitioner had asked Phillips 

to attempt to locate a storage bin in Eastern Ohio that would have been rented on January 17th 

within one hour of the Ohio-Pennsylvania border, but the request was so overbroad that Phillips 

did not have time to identify possibilities. (PageID# 2051.) Phillips determined that the distance 

between the Ohio-Pennsylvania border and Columbus varied between 120 miles to 100 to 200 

miles. (PageID# 2051.) The mileage on the rental car would be consistent with the rental car 

going from the Ohio-Pennsylvania border, back to the Columbus area and then back. (PageID# 

2052.) 

Case: 2:11-cr-00010-GCS-EPD Doc #: 216 Filed: 05/11/16 Page: 34 of 40 PAGEID #: <pageID>
35

 Again, nothing in the record supports Petitioner’s claim that Phillips could have obtained 

evidence indicating that Doucette lied, or that Phillips could have obtained any information 

exculpatory to the defense but for the actions of defense counsel. Phillips did not indicate that 

Petitioner ever requested him to obtain records from the Comfort Inn regarding the names of 

guests who stayed at the hotel on the night of January 18, 2009. In fact, Phillips stated that 

Petitioner failed to provide him with adequate information to identify the location of any Eastern 

Ohio storage facility. The record likewise does not indicate that Petitioner provided Phillips with 

necessary information to obtain records that would purportedly show that Petitioner rented an 

Ohio storage unit for storage of the proceeds of the Brinks burglary. Again, Petitioner, himself, 

had knowledge of the facts that would have enabled Phillips to acquire such information from 

the outset of Phillips’ investigation of the case. Moreover, as discussed, even had Petitioner 

obtained such information, it would have provided him with no more than potential impeachment 

evidence. It would not, as he argues, have established that he did not conspire to or transport 

proceeds of the burglary across state lines. Petitioner has failed to establish the denial of the 

effective assistance of counsel under Strickland in relation to his attorney’s interaction with the 

defense investigator. 

 Petitioner’s claim that his attorney performed in a constitutionally ineffective manner by 

failing to subpoena defense witnesses likewise fails. The record reflects that, on October 18, 

2011, mid-trial, Petitioner advised the Court that he wanted to call Tina Ankrom, United States 

Probation Officer, as a defense witness to testify regarding statements made to her by one of the 

co-defendants. (ECF No. 159-1, PageID# 1348.) The Court denied the request, because such 

testimony would have been inadmissible. (Id.) Petitioner also indicated that he wanted to call 

Henry Wojewodzic, a police officer from the Lynn Police Department, to testify that he observed 

Case: 2:11-cr-00010-GCS-EPD Doc #: 216 Filed: 05/11/16 Page: 35 of 40 PAGEID #: <pageID>
36

Petitioner in Massachusetts on the date of January 16, 2009. The prosecutor agreed to stipulate 

that Petitioner remained in Massachusetts on that date, at least until the time of the truck rental. 

(PageID# 1349.) Petitioner agreed to such stipulation in lieu of calling Wojewodzic as a defense 

witness. (Id.) Petitioner stated that he wanted to call his daughter, Shannon Murphy, for the 

same purpose. The prosecutor again agreed to stipulate to the fact that Petitioner remained in 

Lynn, Massachusetts at the time that the rental truck was rented from Newmarket in New 

Hampshire, and Petitioner agreed to such stipulation in lieu of calling Murphy as a defense 

witness. (PageID# 1349-50.) Petitioner indicated that he wanted to call his daughter’s 

boyfriend, Dylan Holmes, to testify that Petitioner was in the greater Boston area on the morning 

of January 16. The prosecutor stated, “[t]he record reflects that this vehicle was rented at 10:30 

in the morning at Newmarket, New Hampshire under the name of Brian Hetherman with his 

signature[.]” (PageID# 1350-51.) Petitioner agreed to stipulate that he and his company had 

rented the vehicle. (PageID# 1351.) Petitioner indicated that he wanted to call John Fleury of 

Lynn, Massachusetts, to testify as to conversations he had had with prosecution witness Nassor. 

The Court ruled that any such testimony would constitute inadmissible hearsay. (Id.) The only 

other person Petitioner indicated that he wanted to call as a defense witness was the defense 

investigator, who testified as a defense witness at trial. (PageID# 1351.) 

 Petitioner now asserts that unnamed defense witnesses also would have testified “to what 

they observed when the crew returned from Ohio and conversations amongst the co-conspirators 

during the span of the conspiracy. This testimony would also have contributed to proving 

Doucette committed perjury in material areas[.]” Reply to Response to Motion to Vacate (ECF 

No. 211, PageID# 2864.) However, the record fails to support Petitioner’s claim that any 

potential defense witness would have provided exculpatory evidence for the defense. 

Case: 2:11-cr-00010-GCS-EPD Doc #: 216 Filed: 05/11/16 Page: 36 of 40 PAGEID #: <pageID>
37

“[E]vidence about the testimony of a putative witness must generally be presented in the form of 

actual testimony by the witness or on affidavit. A defendant cannot simply state that the 

testimony would have been favorable; self-serving speculation will not sustain an ineffective 

assistance claim.” United States v. Ashimi, 932 F.2d 643, 650 (7th Cir. 1991) (footnotes 

omitted). 

Significantly, Petitioner chose to exercise his right of self representation. He agreed to 

certain stipulations in lieu of calling defense witnesses. He cannot, therefore, now complain, that 

he thereby was denied the effective assistance of counsel. “[A] defendant who elects to represent 

himself cannot thereafter complain that the quality of his own defense amounted to a denial of 

‘effective assistance of counsel.’” Faretta v. California, 422 U.S. 806, 834 n.46 (1975). Further, 

any failure by stand-by counsel “ ‘is an incidental effect of [defendant’s decision to proceed pro 

se], and not the basis of an ineffective assistance of counsel claim.’” Brooks v. United States, 

No. 1:08-CR-141, 2012 WL 3075129, at *2 (N.D. Ohio July 28, 2012) (citing Holmes v. United 

States, 281 F. App’x. 475, 480 (6th Cir. 2008)). As to the counsel’s conduct before Petitioner 

proceeded pro se, Petitioner’s decision to represent himself makes it “virtually impossible to 

apply the Strickland test; the outcome of the cases depended on both counsel and [Petitioner’s] 

conducts.” Id. (citing Wilson v. Parker, 515 F.3d 682, 699 (6th Cir. 2008)). 

Similarly, the record does not support Petitioner’s claim that his attorney failed to obtain 

the recorded statement of Robert Doucette. Nonetheless, Petitioner claims that Doucette’s 

recorded statement would have provided him with evidence to prove that Doucette lied. Again, 

the record fails to support this claim. Further, it would have been Petitioner’s responsibility, 

acting as his own attorney, to obtain and review discovery material. Since Petitioner chose to 

Case: 2:11-cr-00010-GCS-EPD Doc #: 216 Filed: 05/11/16 Page: 37 of 40 PAGEID #: <pageID>
38

represent himself at trial, his claim that his attorney performed in a constitutionally ineffective 

manner in this regard fails. Faretta, 422 U.S. at 834 n.46. 

The Court notes that an attorney does not perform in a constitutionally ineffective manner 

by urging his client to plead guilty in light of overwhelming evidence of guilt, or when it is the 

opinion of the attorney that entry of a guilty plea would be in the best interest of his client. 

Indeed, this is a function of an attorney representing a criminal defendant, and the failure to do 

so would be an abrogation of one of the duties of defense counsel. See, e.g., Smith v. United 

States, 348 F.3d 545, 553 (6th Cir. 2003) (an “attorney may provide an opinion on the strength of 

the government’s case, the likelihood of a successful defense, and the wisdom of a chosen course 

of action,” however, “the ultimate decision of whether to go to trial must be made by the person 

who will bear the ultimate consequence of a conviction.”) Petitioner elected his right to proceed 

to jury trial, and chose to exercise his right to self-representation in this case. 

Petitioner has failed to establish the denial of the effective assistance of counsel. 

Actual Innocence 

 As discussed, the record does not support Petitioner’s claim of actual innocence. In any 

event, to the extent that Petitioner raises an independent claim of actual innocence, it does not 

provide him the relief he seeks. “Freestanding claims of actual innocence are [ ] not cognizable 

on federal habeas review[.]” Boes v. Warren, No. 2013 WL 5499918 (E.D. Mich. Oct. 3, 2013) 

(citing Herrera v. Collins, 506 U.S. 390, 400 (1993); McQuiggin v. Perkins, -- U.S. --, --, 133 

S.Ct. 1924, 1931 (2013); Cress v. Palmer, 484 F.3d 844, 854-55 (6th Cir. 2007)). 

Cumulative Error 

 Petitioner asserts that cumulative error warrants relief. The record, however, fails to 

support any of his claims of alleged error. This claim therefore likewise fails. 

Case: 2:11-cr-00010-GCS-EPD Doc #: 216 Filed: 05/11/16 Page: 38 of 40 PAGEID #: <pageID>
39

Recommended Disposition 

Therefore, the Magistrate Judge RECOMMENDS that the Motion to Vacate 2255 under 

28 U.S.C. 2255 (ECF No. 184) and Motion for New Trial (ECF No. 185) be DENIED and that 

this action be DISMISSED. 

Procedure on Objections 

If any party objects to this Report and Recommendation, that party may, within fourteen 

(14) days of the date of this report, file and serve on all parties written objections to those 

specific proposed findings or recommendations to which objection is made, together with 

supporting authority for the objection(s). A judge of this Court shall make a de novo

determination of those portions of the report or specified proposed findings or recommendations 

to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or 

modify, in whole or in part, the findings or recommendations made herein, may receive further 

evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C. § 

636(b) (1). 

The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to have the district judge review the Report 

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of 

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). 

The parties are further advised that, if they intend to file an appeal of any adverse 

decision, they may submit arguments in any objections filed, regarding whether a certificate of 

appealability should issue. 

Case: 2:11-cr-00010-GCS-EPD Doc #: 216 Filed: 05/11/16 Page: 39 of 40 PAGEID #: <pageID>
40

 _s/ Elizabeth A. Preston Deavers 

 Elizabeth A. Preston Deavers 

United States Magistrate Judge 

Date: May 11, 2016 

Case: 2:11-cr-00010-GCS-EPD Doc #: 216 Filed: 05/11/16 Page: 40 of 40 PAGEID #: <pageID>