Smith v. United States of America
Filing
7
ORDER denying 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) ( Criminal Action CR09-82-LRR); denying 6 MOTION to Appoint Counsel filed by Stephen Smith, filed by Stephen Smith. Lastly, the court does not believe that appellate review of the movants claims is warranted, and, therefore, a certificate of appealability is denied. Signed by Chief Judge Linda R Reade on 2/19/13. (ksy)(copy w/NEF to Plf)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION
STEPHEN SMITH,
Movant,
No. 09-cr-82-LRR (Criminal)
No. 11-cv-86-LRR (Civil)
vs.
UNITED STATES OF AMERICA,
ORDER
Defendant.
____________________________
TABLE OF CONTENTS
I.
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II.
RELEVANT BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
III.
LEGAL STANDARDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
A.
B.
IV.
ANALYSIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
A.
B.
C.
V.
Standards Applicable to Motion Pursuant to 28 U.S.C. § 2255 . . . . . 3
Standards Applicable to Sixth Amendment . . . . . . . . . . . . . . . . . . 5
Request for Evidentiary Hearing . . . . . . . . . . . . . . . . . . . . . . . . . 6
The Movant’s Arguments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Certificate of Appealability . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
I. INTRODUCTION
The matter before the court is the Motion Under 28 U.S.C. § 2255 to Vacate, Set
Aside, or Correct Sentence by a Person In Federal Custody (civil docket no.1 ) filed by
Stephen Smith (“movant”) on July 26, 2011. On August 30, 2012, the court directed the
parties to brief the claims that the movant included in his motion and ordered counsel to
submit an affidavit in response to the movant’s claims (civil docket no. 2). On October
29, 2012, the government filed a resistance to the motion (civil docket no. 5). The movant
did not file a reply. However, the movant filed a motion to appoint counsel (civil docket
no. 6) on December 21, 2012. The court now turns to consider the movant’s claims
pursuant to 28 U.S.C. § 2255.
II. RELEVANT BACKGROUND
On January 12, 2010, the movant was charged in a one-count indictment with the
federal crime of failing to register as a sex offender in violation of 18 U.S.C. § 2250(a)
(criminal docket no. 7). On February 22, 2010, the movant filed a notice of his intent to
plead guilty (criminal docket no. 19). A change of plea hearing was held on March 1,
2010, at which time the movant pled guilty to the charge in the Indictment (criminal docket
no. 23). On March 16, 2010, the court accepted the movant’s plea of guilty (criminal
docket no. 25).
After preparation and release of the final pre-sentence investigative report on June
25, 2010 (criminal docket no. 36), the parties were ordered to brief the sentencing issues
(criminal docket no. 38). A sentencing hearing was held on August 5, 2010 (criminal
docket no. 41). The movant was sentenced to 27 months in prison followed by a ten-year
term of supervised release, and he was ordered to pay a $100 special assessment (criminal
docket no. 42).
The movant, through attorney Jane Kelly, filed a notice of appeal on August 9, 2010
(criminal docket no. 46). The Federal Public Defender’s office was appointed to represent
the movant on appeal (criminal docket no. 51). The record shows attorney John Messina
represented the movant on appeal. The appeal was dismissed on October 8, 2010 and
mandate issued immediately (criminal docket nos. 58 & 59).
In the instant motion, the movant claims Jane Kelly (trial counsel and sentencing
counsel) and John Messina (appellate counsel), rendered ineffective assistance to him in
his criminal case. The movant claims his trial counsel was ineffective by: (1) failing to tell
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him that Title 18 of the United States Code is unconstitutional; (2) failing to tell him that
18 U.S.C. § 2250(a) is an unconstitutional exercise of Congressional authority pursuant
to the Commerce Clause; and (3) failing to argue at sentencing that his prior assault
conviction should not be counted in computing his criminal history score because he was
not represented by counsel. The movant argues that his appellate counsel rendered
ineffective assistance by coercing him to dismiss his appeal.
III. LEGAL STANDARDS
A. Standards Applicable to Motion Pursuant to 28 U.S.C. § 2255
28 U.S.C. § 2255 allows a prisoner in custody under sentence of a federal court to
move the sentencing court to vacate, set aside or correct a sentence. To obtain relief
pursuant to 28 U.S.C. § 2255, a federal prisoner must establish: (1) the sentence was
imposed in violation of the Constitution or laws of the United States; (2) the court was
without jurisdiction to impose such sentence; (3) the sentence was in excess of the
maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack.
See Hill v. United States, 368 U.S. 424, 426-27, 82 S. Ct. 468, 7 L. Ed. 2d 417 (1962)
(citing 28 U.S.C. § 2255).
Although it appears to be broad, 28 U.S.C. § 2255 does not provide a remedy for
“all claimed errors in conviction and sentencing.” United States v. Addonizio, 442 U.S.
178, 185, 99 S. Ct. 2235, 60 L. Ed. 2d 805 (1979). Rather, 28 U.S.C. § 2255 is intended
to redress only “fundamental defect[s] which inherently [result] in a complete miscarriage
of justice” and “omission[s] inconsistent with the rudimentary demands of fair procedure.”
Hill, 368 U.S. at 428; 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 for the first time 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)). A collateral challenge
under 28 U.S.C. § 2255 is not interchangeable or substitutable for a direct appeal. See
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United States v. Frady, 456 U.S. 152, 165, 102 S. Ct. 1584, 71 L. Ed. 2d 816 (1982)
(making clear a motion pursuant to 28 U.S.C. § 2255 will not be allowed to do service for
an appeal). Consequently, “[a]n error that may justify reversal on direct appeal will not
necessarily support a collateral attack on a final judgment.” Id. (internal quotation marks
and citation omitted).
In addition, movants ordinarily are precluded from asserting claims they failed 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
U.S. 614, 622, 118 S. Ct. 1604, 140 L. Ed. 2d 828 (1998)); see also Massaro v. United
States, 538 U.S. 500, 504, 123 S. Ct. 1690, 155 L. Ed. 2d 714 (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 fairly
attributed to him.” Coleman v. Thompson, 501 U.S. 722, 753, 111 S. Ct. 2546, 115 L.
Ed. 2d 640 (1991) (emphasis in original). If a movant fails to show cause, a court need
not consider whether actual prejudice exists. McCleskey v. Zant, 499 U.S. 467, 501, 111
S. Ct. 1454, 113 L. Ed. 2d 517 (1991). Actual innocence under the actual innocence test
“means factual innocence, not mere legal insufficiency.” Bousley, 523 U.S. 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.”).1
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The procedural default rule applies to a conviction obtained through trial or
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); Reid v. United States, 976 F.2d 446, 448 (8th Cir. 1992).
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B. Standards Applicable to Sixth Amendment
The Sixth Amendment to the United States Constitution provides in pertinent part
that, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the
Assistance of Counsel for his [or her] defen[s]e.” U.S. Const., amend. VI. Furthermore,
there is a constitutional right to effective assistance of counsel on direct appeal. Evitts v.
Lucey, 469 U.S. 387, 393-95, 105 S. Ct. 830, 83 L. Ed. 2d 821 (1985); Douglas v.
California, 372 U.S. 353, 356-57, 83 S. Ct. 814, 9 L. Ed. 2d 811 (1963).
The Sixth Amendment right to effective counsel is clearly established.
See
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In
Strickland, the Supreme Court explained that a violation of that right has two components:
First, [a movant] must show that counsel’s performance was
deficient. This requires showing that counsel made errors so
serious that counsel was not functioning as the “counsel”
guaranteed the [movant] by the Sixth Amendment. Second, [a
movant] must show that the deficient performance prejudiced
the defense. This requires showing that counsel’s errors were
so serious as to deprive the [movant] of a fair trial, a trial
whose result is reliable.
Id. at 687; see also Williams v. Taylor, 529 U.S. 362, 390, 120 S. Ct. 1495, 146 L. Ed.
2d 389 (2000) (reasserting Strickland standard). Thus, Strickland requires a showing of
both deficient performance and prejudice. However, “a court deciding an ineffective
assistance claim [need not] address both components of the inquiry if the [movant] makes
an insufficient showing on one.” Strickland, 466 U.S. at 697. “If it is easier to dispose
of an ineffectiveness claim on grounds of lack of sufficient prejudice, . . . that course
should be followed.” Id.; see also Apfel, 97 F.3d at 1076 (“[A court] need not address the
reasonableness of the attorney’s behavior if the movant cannot prove prejudice.”).
To establish unreasonably deficient performance, a movant “must show that
counsel’s representation fell below an objective standard of reasonableness.” Strickland,
466 U.S. at 688. The “reasonableness of counsel’s challenged conduct [must be reviewed]
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on the facts of the particular case, viewed as of the time of counsel’s conduct.” Id. at 690.
There is a strong presumption of competence and reasonable professional judgment. Id.;
see also United States v. Taylor, 258 F.3d 815, 818 (8th Cir. 2001) (operating on the
“strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance” (quoting Strickland, 466 U.S. at 689)); Sanders v. Trickey, 875
F.2d 205, 210 (8th Cir. 1989) (broad latitude to make strategic and tactical choices
regarding the appropriate action to take or refrain from taking is afforded when acting in
a representative capacity) (citing Strickland, 466 U.S. at 694). In sum, the court must
“determine whether, in light of all the circumstances, the identified acts or omissions were
outside the range of professionally competent assistance.” Strickland, 466 U.S. at 690.
To establish prejudice, “[i]t is not enough for [a movant] to show that the errors had
some conceivable effect on the outcome of the proceeding.” Id. at 693. Rather, a movant
“must show that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable probability
is a probability sufficient to undermine confidence in the outcome.” Id. at 694. In other
words, “the question is whether there is a reasonable probability that, absent those errors,
the fact finder would have had a reasonable doubt respecting guilt.” Id. at 695. In
answering that question, the court “must consider the totality of the evidence before the
judge or jury.” Id.
IV. ANALYSIS
A. Request for Evidentiary Hearing
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 . . .
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allegations, accepted as true, would not entitle the [movant] to relief, or (2) the allegations
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, a 28 U.S.C. § 2255 motion can be dismissed 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; see also Standing Bear v. United States, 68 F.3d 271, 272 (8th Cir. 1995)
(per curiam).
The court finds that an evidentiary hearing is not necessary to resolve the movant’s
claims. 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, 100 S. Ct. 2406, 65 L. Ed. 2d 424 (1980)).
The evidence of record conclusively demonstrates that the movant is not entitled to the
relief sought. Specifically, the record indicates that the movant’s ineffective assistance of
counsel claims are without merit and that no violation of either the movant’s constitutional
rights or federal law occurred. As such, the court finds that there is no need for an
evidentiary hearing.
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B. The Movant’s Arguments
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 that are stated in the
government’s resistance because it adequately applied the law to the facts in the case. The
government correctly asserted that counsel provided professionally competent assistance
to the movant and did not make objectively unreasonable choices regarding the appropriate
action to take or refrain from taking that prejudiced the movant’s defense, particularly at
sentencing.
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, 368 U.S. at 428; see also Apfel, 97 F.3d at 1076 (making clear that a
movant must establish a constitutional violation that, if uncorrected, would result in a
complete miscarriage of justice). The court concludes that the conduct of counsel fell
within a wide range of reasonable professional assistance, Strickland, 466 U.S. at 689, and
any deficiencies in counsel’s performance did not prejudice the movant’s defense, id. at
692-94.
Trial counsel did not advise the movant that the implicated code sections of Title 18
of the United States Code are unconstitutional because that is not the state of the law. Any
arguments based on this contention would have held no sway with the court and would
have been deemed frivolous. Assuming the movant is claiming the battery conviction
described in the pre-sentence investigative report at paragraph 36 should not have been
scored for criminal history purposes because the movant was not represented by counsel,
the record shows that trial counsel raised the issue and the issue was decided against him
(criminal docket no. 54).
As for the allegation that the movant was coerced into
dismissing his appeal, the record does not bear this out. Rather, the record is the movant
voluntarily dismissed his appeal having faxed the dismissal form to the Federal Public
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Defender on October 8, 2010, after receiving the form by fax on October 6, 2010 at the
Bremer County Jail (civil docket no. 5, exhibit 1). The movant’s claims are totally devoid
of merit, and, therefore, the movant’s 28 U.S.C. § 2255 motion shall be denied.
The movant requests that counsel be appointed to represent him. There is no right
to counsel in a habeas corpus action. See Davis v. Scott, 94 F.3d 444, 447 (8th Cir. 1996)
(setting forth factors to be considered for appointment of counsel in a civil case); Day v.
United States, 428 F.2d 1193, 1195 (8th Cir. 1970) (“The Sixth Amendment does not
extend to persons seeking post-conviction relief.” (citing Baker v. United States, 334 F.2d
444, 447 (8th Cir. 1964))). Because the movant’s claims are wholly without merit,
appointment of counsel would not benefit him. The movant’s motion to appoint counsel
shall be denied.
C. Certificate of Appealability
In a 28 U.S.C. § 2255 proceeding before a district judge, the final order is subject
to review, on appeal, by the court of appeals for the circuit in which the proceeding is
held. See 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. See 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. See Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S. Ct. 1029, 1039, 154 L.
Ed. 2d 931 (2003); Garrett v. United States, 211 F.3d 1075, 1076-77 (8th Cir. 2000);
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,
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16 F.3d 878, 882-83 (8th Cir. 1994)); see also Miller-El, 537 U.S. at 335-36 (reiterating
standard).
Courts 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, 120 S. Ct. 1595, 146 L. Ed. 2d 542 (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 motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. See
28 U.S.C. § 2253(c)(2); Fed. R. App. P. 22(b). Because he does not present a question
of substance for appellate review, there is no reason to grant a certificate of appealability.
Accordingly, a certificate of appealability shall be denied. If he desires further review of
his motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255, 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.
V. CONCLUSION
The court finds all of the movant’s assertions under 28 U.S.C. § 2255 to be without
merit. Accordingly, the movant’s motion to vacate, set aside or correct sentence pursuant
to 28 U.S.C. § 2255 (docket no. 1) is DENIED. The movant’s motion to appoint counsel
(civil docket no. 6) is DENIED. Lastly, the court does not believe that appellate review
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of the movant’s claims is warranted, and, therefore, a certificate of appealability is
DENIED.
IT IS SO ORDERED.
DATED this 19th day of February, 2013.
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