S. AMANDA MARSHALL. United States Attorney, FREDRIC N. WEINHOUSE, Assistant United States Attorney, Portland, OR. Attorneys for Plaintiff.
SOREN DAVIS KORZYBSKI 71621-065 Oxford, WI. Defendant, Pro Se
OPINION AND ORDER
ANNA J. BROWN, District Judge.
This matter comes before the Court on Defendant's Motion (#130) to Vacate Conviction under Title 28 of the United States Code Section 2255. For the reasons that follow, the Court DENIES Defendant's Motion.
On March 20, 2009, Defendant Soren Davis Korzybski entered the Bank of the West in Aloha, Oregon; approached the window of teller Sheetal Sanjana; and said "twenties, fifties, and one hundreds." Trial Tr. at 304. Sanajana said "I'm sorry?" Defendant said more loudly: "[T]wenties, fifties, and one hundreds, right now." Id. Sanjana took the money out of her drawer and put it on the counter. Defendant said: "Don't you have a second drawer?" Trial Tr. at 304. Sanjana responded that she only had one drawer. Defendant then took the money and "rushed out of the branch." Id.
On March 30, 2009, Agent Matthew Furnia met with Sanjana and conducted a photographic lineup consisting of six photographs of white males with short hair or shaved heads that included Defendant. Sanjana was not able to identify any of the six individuals as the bank robber.
On April 7, 2009, Defendant was charged in an Indictment with one count of Conspiracy to Commit Bank Robbery in violation of 18 U.S.C. §§ 371 and 2113(a) and one count of Bank Robbery in violation of 18 U.S.C. § 371. Also on April 7, 2009, Magistrate Judge John V. Acosta conducted a detention hearing and ordered Defendant to be detained as a flight risk and a danger to the community pending trial.
On August 14, 2009, Defendant filed a Motion for Release from Custody Pending Trial.
On August 17, 2009, the Court held a hearing on Defendant's Motion for Release from Custody. Sanjana received notice of the hearing pursuant to 18 U.S.C. § 3771 because she was a crime victim. Sanjana exercised her right to be present at the hearing, saw Defendant from behind and from the side at one point during the hearing, and was not sure at that time whether Defendant was the individual who had robbed the bank.
On August 17, 2009, the Court denied Defendant's Motion for Release.
On June 26 through July 2, 2010, the Court held a jury trial. On July 2, 2010, the government dismissed the count of Conspiracy to Commit Bank Robbery and proceeded against Defendant only as to the count of Bank Robbery.
At trial Sanjana identified Defendant as the bank robber: "That is the bank robber.... I am sure." Trial Tr. at 323. After Defendant counted from one to ten, Sanjana again testified Defendant was the bank robber.
On cross-examination defense counsel pointed out numerous discrepancies between Sanjana's trial testimony identifying Defendant as the bank robber and her previous statements; for example: (1) her 911 call to the police, (2) her initial description to the deputy sheriff, (3) her description to the FBI agent, (4) her examination of the photographic line up, (5) her statement immediately following Defendant's release hearing, (6) her later statement about Defendant's release hearing, (7) her statement to the defense investigator, (8) the bank form that she filled out with the description, and (9) her meeting with the prosecutors on the Sunday before Defendant's trial.
On July 2, 2010, the jury entered a Verdict finding Defendant guilty on the one count of Bank Robbery.
On December 3, 2010, the Court sentenced Defendant to 132 months imprisonment and three years of supervised release.
On December 7, 2010, Defendant appealed his conviction to the Ninth Circuit Court of Appeals.
On October 18, 2012, the Ninth Circuit affirmed Defendant's conviction and concluded, among other things, that this Court did not err when it found Defendant's prior conviction for residential burglary in violation of Washington Revised Code § 9A.52.025(1) "qualified him as a career offender under U.S.S.G. § 4B1.1(a)(3)." United States v. Korzybski, 474 F.Appx. 717, 719 (9th Cir. 2012). Specifically, the Ninth Circuit noted:
Under the modified categorical approach, the documents submitted by the government establish that Korzybski's conviction for residential burglary was for the burglary of a "structure designed for occupancy that is intended for use in one place." United ...