Stevens v. USA

Filing 10

ORDER denying 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) ( Criminal Action 06cr139 LRR) filed by Juan Jose Stevens. A certificate of appealability is denied. Signed by Chief Judge Linda R Reade on 2/6/13. (ksy)(copy w/NEF to Plf)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION

JUAN JOSE STEVENS,
Movant,

No. C09-0170-LRR (Civil)
No. CR06-0139-LRR (Criminal)

vs.
UNITED STATES OF AMERICA.

ORDER

____________________________
TABLE OF CONTENTS
I.

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II.

RELEVANT BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

III.

ANALYSIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

IV.

CERTIFICATE OF APPEALABILITY . . . . . . . . . . . . . . . . . . . . . . . . . 6

V.

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
I. INTRODUCTION
The matter before the court is Juan Jose Stevens’ timely “Petition Under 28 U.S.C.

2255 By a Person in Federal Custody” (civil docket no. 1).1 Juan Jose Stevens (“the
movant”) filed such motion on November 30, 2009. On July 7, 2010, the court, among
other things, directed the parties to brief the claims raised in the movant’s motion (civil
docket no. 3). On August 19, 2010, the government filed a resistance (civil docket no. 5).
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The movant previously filed a “Petition for Writ of Error” claiming ineffective
assistance of counsel on May 12, 2008. After the court advised the movant that it intended
to construe the filing as a motion under 28 U.S.C. § 2255, the movant objected and the
court dismissed the action under 28 U.S.C. § 1651 on June 10, 2009.

On September 28, 2010, the movant filed a reply (civil docket no. 6). The court now turns
to consider the movant’s motion.
II. RELEVANT BACKGROUND
On December 20, 2006, the movant was charged in a six-count Superseding
Indictment (criminal docket no. 59). In count 1, the government charged the movant with
possession with intent to distribute, and aiding and abetting the possession with intent to
distribute approximately 3.85 kilograms or more of a mixture or substance containing a
detectable amount of cocaine within 1,000 feet of a school and after previously being
convicted of two or more felony drug offenses. In count 2, the government charged the
movant with possession with intent to distribute approximately 322.1 grams of a mixture
or substance containing a detectable amount of cocaine within 1,000 feet of a school and
after previously being convicted of two or more felony drug offenses. Under count 3, the
government charged the movant with conspiracy to distribute and possess with intent to
distribute 5 kilograms or more of a mixture or substance containing a detectable amount
of cocaine within 1,000 feet of a school and after previously being convicted of two or
more felony drug offenses. Under count 4, the government charged the movant with
conspiracy to commit money laundering. The remaining counts charged the movant with
interstate travel to facilitate unlawful activity and felon in possession of ammunition.
After unsuccessfully seeking to suppress evidence, the movant entered a conditional
plea of guilty to conspiracy to distribute and possess with intent to distribute cocaine (count
3) and conspiracy to commit money laundering (count 4). The court accepted his plea of
guilty on February 14, 2007.
The court sentenced the movant on June 8, 2007. He received a life sentence on
count 3 and 235 months imprisonment on count 4 of the superseding indictment. The court
ordered both of those sentenced to be served concurrently with each other. Additionally,
the court imposed a term of ten years supervised release and ordered the movant to pay a
$200 special assessment.
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The movant unsuccessfully appealed to the Eighth Circuit Court of Appeals. On
direct appeal, the movant asserted that the warrant to search his residence was not
supported by probable cause and violated the standard set forth in Franks v. Delaware, 438
U.S. 154 (1978). The Eighth Circuit Court of Appeals upheld the court’s denial of the
movant’s motion to suppress. United States v. Stevens, 530 F.3d 714, 719 (8th Cir. 2008).
III. ANALYSIS
The movant raises a number of claims in his motion, some of which are
procedurally barred.2 Ordinarily, movants are precluded from asserting claims that they
fail to raise on direct appeal. See McNeal v. United States, 249 F.3d 747, 749 (8th Cir.
2001). “A [movant] who has procedurally defaulted a claim by failing to raise it on direct
review may raise the claim in a [28 U.S.C. §] 2255 proceeding only by demonstrating
cause for the default and prejudice or actual innocence.” Id. (citing Bousley v. United
States, 523 US 614, 622 (1998)). See also Massaro v. United States, 538 US 500, 504
(2003) (“[T]he general rule [is] that claims not raised on direct appeal may not be raised
on collateral review unless the [movant] shows cause and prejudice.”) “‘[C]ause’ under
the cause and prejudice test must be something external to the [movant], something that
cannot be attributed to him.” Coleman v. Thompson, 501 US 722, 753 (1991) (emphasis
in original). If a movant fails to show cause, a court need not consider whether actual
prejudice exists. McClesky v. Zant, 499 US 467, 501 (1991). Actual innocence under the
actual innocence test “means factual innocence, not mere legal insufficiency.” Bousley,
523 US at 623-24; see also McNeal, 249 F.3d at 749 (“[A movant] must show factual
innocence, not simply legal insufficiency of evidence to support a conviction.”).3

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The movant does not clearly set forth the claims that are a basis for redress under
28 U.S.C. § 2255. The court, however, deems it appropriate to address all of the issues
that the movant potentially raised in his motion.
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The procedural default rule applies to a conviction obtained through trial or
(continued...)
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The following claims are procedurally barred: (1) the information concerning the
movant’s criminal history contained in the search warrant was false; (2) affiant made false
statements within the warrant affidavit; (3) law enforcement should have used surveillance
techniques to establish probable cause in the warrant affidavit; (4) affiant should have
known the information concerning the movant’s criminal history was false; (5) the district
court erred in ruling that probable cause existed for the search warrant; (6) the search
warrant was based on false information; (7) the informant was not reliable; (8) the movant
was not a career criminal; and (9) the movant was not a leader in the conspiracy for
purposes of sentencing. All of the above issues could have been litigated on direct appeal
and, therefore, are procedurally defaulted. Further, the movant failed to show either cause
excusing his procedural default and prejudice or actual innocence.
The movant’s claims that his trial counsel provided ineffective assistance are
appropriately raised for the first time in this action. The movant claims that his counsel
was ineffective: (1) when he failed to call and impeach the informant witness at the Franks
hearing and (2) when he did not ask the proper questions concerning his criminal history
at the Franks hearing. The movant requests an evidentiary hearing on the issues raised.
A district court is given discretion in determining whether to hold an evidentiary
hearing on a motion under 28 U.S.C. § 2255. See United States v. Oldham, 787 F.2d 454,
457 (8th Cir. 1986). In exercising that discretion, the district court must determine
whether the alleged facts, if true, entitle the movant to relief. See Payne v. United States,
78 F.3d 343, 347 (8th Cir. 1996). “Accordingly, [a district court may summarily dismiss
a motion brought under 28 U.S.C. § 2255 without an evidentiary hearing] if (1) the . . .
allegations, accepted as true, would not entitle the [movant] to relief, or (2) the allegations
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(...continued)
through the entry of a guilty plea. See United States v. Cain, 134 F.3d 1345, 1352 (8th
Cir. 1998); Walker v. United States, 115 F.3d 603, 605 (8th Cir. 1997); Matthews v.
United States, 114 F.3d 112, 113 (8th Cir. 1997); Thomas v. United States, 112 F.3d 365,
366 (8th Cir. 1997); Reed v. United States, 976 F.2d 446, 448 (8th Cir. 1992).
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cannot be accepted as true because they are contradicted by the record, inherently
incredible, or conclusions rather than statements of fact.” Engelen v. United States, 68
F.3d 238, 240-41 (8th Cir. 1995) (citations omitted); see also Delgado v. United States,
162 F.3d 981, 983 (8th Cir. 1998) (stating that an evidentiary hearing is unnecessary
where allegations, even if true, do not warrant relief or allegations cannot be accepted as
true because they are contradicted by the record or lack factual evidence and rely on
conclusive statements); United States v. Hester, 489 F.2d 48, 50 (8th Cir. 1973) (stating
that no evidentiary hearing is necessary where the files and records of the case demonstrate
that relief is unavailable or where the motion is based on a question of law). Stated
differently, the court can dismiss a 28 U.S.C. § 2255 motion without a hearing where “the
files and records of the case conclusively show that the prisoner is entitled to no relief.”
28 U.S.C. § 2255; accord Standing Bear v. United States, 68 F.3d 271, 272 (8th Cir.
1995) (per curiam).
The court concludes that it is able to resolve the movant’s claims from the record.
See Rogers v. United States, 1 F.3d 697, 699 (8th Cir. 1993) (holding “[a]ll of the
information that the court needed to make its decision with regard to [the movant’s] claims
was included in the record” and, therefore, the court “was not required to hold an
evidentiary hearing” (citing Rule Governing Section 2255 Proceedings 8(a) and United
States v. Raddatz, 447 U.S. 667, 674 (1980))). The evidence of record conclusively
demonstrates that the movant is not entitled to the relief sought. Specifically, it indicates
that counsel represented the movant in a manner that comports with the requirements of
the Sixth Amendment. As such, the court finds that there is no need for an evidentiary
hearing.
With respect to the merits of the movant’s claims, the court deems it appropriate to
deny the movant’s 28 U.S.C. § 2255 motion for the reasons stated in the government’s
resistance. The government’s brief adequately sets forth the law that is applicable to the

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facts in the movant’s case. Specifically, the government correctly concludes that all of the
movant’s ineffective assistance of counsel claims are without merit.
Moreover, the court thoroughly reviewed the record and finds that the denial of the
movant’s 28 U.S.C. § 2255 motion comports with the Constitution, results in no
“miscarriage of justice” and is consistent with the “rudimentary demands of fair
procedure.” Hill v. United States, 368 U.S. 424, 428 (1962); see also United States v.
Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996) (“Relief under 28 U.S.C. § 2255 is reserved
for transgressions of constitutional rights and for a narrow range of injuries that could not
have been raised on direct appeal and, if uncorrected, would result in a complete
miscarriage of justice.” (citing Poor Thunder v. United States, 810 F.2d 817, 821 (8th Cir.
1987))).
The court concludes that the conduct of counsel fell within a wide range of
reasonable professional assistance, Strickland v. Washington, 466 U.S. 668, 689 (1984),
and counsel’s performance did not prejudice the movant’s defense, id. at 692-94. The
movant’s assertions about counsel do not lead the court to conclude that a violation of the
Sixth Amendment occurred.
IV. CERTIFICATE OF APPEALABILITY
In a 28 U.S.C. § 2255 proceeding before a district judge, “the final order shall be
subject to review, on appeal, by the court of appeals for the circuit in which the proceeding
is held.” 28 U.S.C. § 2253(a). “Unless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken to the court of appeals[.]” 28 U.S.C. §
2253(c)(1)(A). A district court possesses the authority to issue certificates of appealability
under 28 U.S.C. § 2253(c) and Fed. R. App. P. 22(b). See Tiedeman v. Benson, 122 F.3d
518, 522 (8th Cir. 1997). Under 28 U.S.C. § 2253(c)(2), a certificate of appealability
may issue only if a movant “has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2); see also Miller-El v. Cockrell, 537 U.S.
322, 335-36 (2003); Garrett v. United States, 211 F.3d 1075, 1076-77 (8th Cir. 2000);
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Carter v. Hopkins, 151 F.3d 872, 873-74 (8th Cir. 1998); Cox v. Norris, 133 F.3d 565,
569 (8th Cir. 1997); Tiedeman, 122 F.3d at 523. To make such a showing, the issues
must be debatable among reasonable jurists, a court could resolve the issues differently,
or the issues deserve further proceedings. Cox, 133 F.3d at 569 (citing Flieger v. Delo,
16 F.3d 878, 882-83 (8th Cir. 1994)); see also Miller-El, 537 U.S. at 335-36 (reiterating
standard).
Courts may reject constitutional claims either on the merits or on procedural
grounds. “‘[W]here a district court has rejected the constitutional claims on the merits,
the showing required to satisfy [28 U.S.C.] § 2253(c) is straightforward: the [movant]
must demonstrate that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.’” Miller-El, 537 U.S. at 338 (quoting Slack v.
McDaniel, 529 U.S. 473, 484 (2000)). When a federal habeas petition is dismissed on
procedural grounds without reaching the underlying constitutional claim, “the [movant
must show], at least, that jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right and that jurists of reason would
find it debatable whether the district court was correct in its procedural ruling.” See Slack,
529 U.S. at 484.
Having thoroughly reviewed the record in this case, the court finds that the movant
failed to make the requisite “substantial showing” with respect to the claims that he raised
in his 2255 Motion. See 28 U.S.C. § 2253(c)(2); Fed. R. App. P. 22(b). Because the
movant has not shown reasonable jurists would find the court’s assessment of the movant’s
constitutional claims debatable or wrong, there is no reason to grant a certificate of
appealability. Accordingly, a certificate of appealability shall be denied. If he desires
further review of the 2255 Motion, the movant may request issuance of the certificate of
appealability by a circuit judge of the Eighth Circuit Court of Appeals in accordance with
Tiedeman, 122 F.3d at 520-22.

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V. CONCLUSION
IT IS THEREFORE ORDERED:
1) Movant’s 28 U.S.C. § 2255 motion (docket no. 1) is DENIED.
2) A certificate of appealability is DENIED.
DATED this 6th day of February, 2013.

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