Jones v. United States of America

Filing 20

ORDER: The movant's 1 Pro Se Motion to Vacate/Set Aside/Correct Sentence (2255) is denied. The movant's 10 pro se motion for discovery and appointment of investigator is denied. The movant's 11 pro se motion to hold motion in abeyance. The movant's 12 pro se motion for discovery and appointment of counsel is denied. A certificate of appealability is denied. Signed by Judge Linda R Reade on 07/26/2017. (copy w/NEF mailed to Petitioner) (jjh)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION

SHAWN PATRICK JONES,
Movant,

No. C14-3039-LRR
No. CR11-3017-LRR

vs.
UNITED STATES OF AMERICA.

ORDER

I. INTRODUCTION
This matter appears before the court on Shawn Patrick Jones’ motion to vacate, set
aside or correct sentence pursuant to 28 U.S.C. § 2255 (civil docket no. 1). Shawn
Patrick Jones (“the movant”) filed such motion on June 25, 2014. On July 11, 2014, the
court, among other things, directed the parties to brief the claims that the movant included
in his motion pursuant to 28 U.S.C. § 2255 (civil docket no. 3). On August 15, 2014,
counsel filed an affidavit (civil docket no. 6). On October 8, 2014, the government filed
a resistance (civil docket no. 8). On November 6, 2014, the movant filed a motion for
discovery and appointment of investigator (civil docket no. 10). On March 4, 2015, the
movant filed a motion to hold motion in abeyance (civil docket no. 11). On April 2, 2015,
the movant filed a motion for discovery and appointment of counsel (civil docket no. 12).
On April 21, 2015, the movant filed a supplement to his motion for discovery and
appointment of counsel (civil docket no. 13). On May 1, 2015, the government filed a
resistance to the motion for discovery and appointment of counsel (civil docket no. 15).
On May 22, 2015, the movant filed a reply in support of his request for discovery and
appointment of counsel (civil docket no. 16). On November 30, 2015, the movant filed

a reply in support of his motion pursuant to 28 U.S.C. § 2255 (civil docket no. 17). The
court now turns to consider the movant’s motion pursuant to 28 U.S.C. § 2255 and related
motions.
II. RELATED MOTIONS AND EVIDENTIARY HEARING
Because the record is clear, the court finds that appointment of counsel is not
necessary, see Davis v. Scott, 94 F.3d 444, 447 (8th Cir. 1996) (setting forth factors to be
considered for appointment of counsel in civil case); Abdullah v. Gunter, 949 F.2d 1032,
1035 (8th Cir. 1991) (same); Wiggins v. Sargent, 753 F.2d 663, 668 (8th Cir. 1985)
(stating an indigent litigant enjoys neither a statutory nor a constitutional right to have
counsel appointed 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))), and discovery is not
necessary, see Rule 6, Rules Governing Section 2255 Proceedings. Accordingly, the
motion for discovery and appointment of investigator (civil docket no. 10) and motion for
discovery and appointment of counsel (civil docket no. 12) shall be denied. The briefing
in this matter is complete and the record will not be aided by additional discovery or
filings. Accordingly, the motion to hold motion in abeyance (civil docket no. 11) shall be
denied.
Further, 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 cannot be accepted as true because they are contradicted by
the record, inherently incredible, or conclusions rather than statements of fact.” Engelen
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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 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)); see also Premachandra v. United States,
101 F.3d 68, 70 (8th Cir. 1996) (concluding that district court did not err in denying
evidentiary hearing because “the record contain[ed] no response to counsel’s affidavit and
no fact submission . . . suggesting a need for an evidentiary hearing”). The evidence of
record conclusively demonstrates that the movant is not entitled to the relief sought.
Specifically, it indicates that the movant’s claims are procedurally barred and/or without
merit. As such, the court finds that there is no need for an evidentiary hearing.
III. ANALYSIS
With respect to the merits of the movant’s claims, the court deems it appropriate to
deny the movant’s motion pursuant to 28 U.S.C. § 2255 for the reasons stated in the
government’s resistance. The government’s brief adequately sets forth the law that is
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applicable to the facts in the movant’s case. Specifically, the government correctly
concluded that (1) procedurally defaulted claims, such as the actual innocence claim and
court reporter claim, do not justify relief and (2) counsel provided professional and
effective assistance to the movant and the movant suffered no prejudice as a result of
counsel’s actions. The record clearly reveals that the movant is unable to overcome
substantial evidence that inculpates him. The movant’s mischaracterizations of what
occurred prior to trial, during trial, after trial and during the sentencing hearing do not
provide a valid basis to grant relief.
Moreover, the court thoroughly reviewed the record and finds that the denial of the
movant’s motion pursuant to 28 U.S.C. § 2255 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 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))). It is clear that relief is not available because all of the movant’s claims
are contradicted by the record and/or are inherently incredible. The movant’s inaccurate
statements, inconsistent positions, adverse admissions and dissatisfaction with counsel’s
representation do not establish that a constitutional violation occurred.
When seeking to vacate his conviction pursuant to 28 U.S.C. § 2255, the movant
generally contends that: (1) he is actually innocent in light of the evidence; (2) counsel
provided ineffective assistance prior to, during and after trial; (3) the government’s agent
Lori Lewis, and cooperating witnesses, Jay Monson and James Olson, provided
inconsistent, inaccurate and/or false testimony; (4) the transcripts of recorded phone calls
are not accurate; (5) the court erred when it failed to ask the movant during the pretrial
conference whether he wanted to call the chemist because he wanted to contest drug purity
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and did not understand the ramifications of failing to do so; (6) appellate counsel deprived
the movant of meaningful appellate review; (7) the court reporter did not accurately report
the case; and (8) counsel’s cumulative omissions prejudiced the movant. The movant’s
general contentions overlap, but he expounds most upon his second contention and third
contention.
Concerning his third contention, the movant maintains that Lori Lewis: (1)
improperly led the jury to believe that Mike Allison did not have fake identification in the
movant’s name so he could not complete a wire transfer; (2) played fast and loose with the
evidence, including the photo selection by Clint Wendel; (3) improperly led the jury to
believe that buying and selling cars was just code for buying and selling drugs; (4)
intentionally waited a long time to contact the phone company because she knew that if she
waited long enough the phone records would not be available; (5) manipulated the recorded
phone calls and, even though the movant admitted that he was one of the speakers, the
government did not establish that the recorded phone calls were admissible; and (6)
manipulated the evidence to save her case and her reputation after she realized that Jay
Monson bamboozled her. With regard to Jay Monson, the movant states that he (1)
framed the movant by interpreting the movant’s buying and selling cars as conspiring with
the conspirators the movant knew to be involved in drug trafficking and (2) provided
untruthful testimony, which does not establish that the movant’s phone number is
associated with the conspiracy.
Regarding his second contention, the movant asserts that counsel: (1) failed to
properly investigate the case and prepare for trial; (2) failed to properly cross-examine Jay
Monson; (3) failed to challenge Jay Monson’s misidentification of Robert Gallon, rather
than Gary Del Valle, in a recorded phone call and such misidentification undermines Jay
Monson’s claims that he was speaking with the movant; (4) failed to challenge the
admissibility and trustworthiness of the recorded phone calls; (5) failed to challenge
whether the methamphetamine was imported from Mexico, when it was clear that the
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methamphetamine was not produced in Mexico, and such failure resulted in a two-point
sentencing enhancement; (6) failed to adequately prepare for trial so he was unable to
impeach Jay Monson’s testimony regarding trips that the movant made to Jay Monson’s
house; (7) failed to point out Jay Monson’s inconsistent testimony about amounts owed for
drug transactions or dates when drug transactions occurred, including a date when the
movant was getting his driver’s license renewed; (8) failed to move for a new trial based
on the fact that he could not have completed a drug transaction on November 12, 2009,
the date that he got his driver’s license renewed; (9) failed to make relevant connections
after Jay Monson provided inconsistent dates for when the movant was in California and
Iowa; (10) failed to challenge Lori Lewis’ false testimony, interpretation of the recorded
phone calls and over-reliance on a convicted felon; (11) failed to contest the purity of the
methamphetamine and erroneously waived the movant’s right to confront the witness who
performed the drug analysis; (12) failed to call a witness from Western Union to describe
procedures and erroneously permitted Lori Lewis to testify about the manner in which
Western Union conducted its business; (13) failed to challenge the use of phone records
from Jay Monson’s stepmother or contest the admission of the phone records based on
evidentiary rules; (14) failed to obtain additional phone records to establish that Jay
Monson was not at home waiting for the movant to deliver drugs; (15) failed to call a
witness from the phone company to authenticate the phone records because it is possible
that Lori Lewis altered such records; (16) failed to object to the use of the recorded phone
calls during trial; (17) failed to prevent the jury from hearing the recorded phone calls
before he prepared his own transcripts to validate the information; (18) failed to point out
that the movant’s knowledge of the conspirators’ unlawful drug dealing does not make his
buying and selling cars unlawful; (19) failed to call two alibi witnesses, his boss, Mike
Ford, and his probation officer, James Whelpley, to make it clear that he could not travel
back and forth from Mexico and Iowa; (20) failed to properly cross-examine James Olson;
(21) failed to point out that Jay Monson and James Olson communicated with each other
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and the movant did not facilitate their communications; (22) failed to point out that the
delivery of cash to Mexico is not a crime, the movant did not know Robert Gallon, who
he met once in Mexico to discuss an automobile, and he told James Olson and Robert
Gallon that it was stupid to traffic drugs; (23) failed to determine whether Home Depot
sold vacuum package devices; and (24) failed to impeach inconsistencies in James Olson’s
testimony, including facts that relate to how many pounds of methamphetamine were
delivered and whether the movant or Mike Allison recruited James Olson to traffic
methamphetamine.
Given the record, which includes but is not limited to the indictment (criminal
docket no. 1), the information under 21 U.S.C. § 851 (criminal docket no. 29), the
government’s trial memorandum (criminal docket no. 51), the movant’s witness list
(criminal docket no. 54), the movant’s motion in limine (criminal docket no. 77), the
government’s exhibit list (criminal docket no. 85), the government’s amended trial
memorandum (criminal docket no. 90), the exhibits of the jury trial (criminal docket no.
99), the jury trial (criminal docket nos. 141, 142, 143 & 147), the offense conduct
statement (criminal docket no. 109), the objections to the pre-sentence investigation report
(criminal docket nos. 121 & 125), the final pre-sentence investigation report (criminal
docket no. 126), the parties’ sentencing memoranda (criminal docket nos. 128 & 129), the
movant’s sentencing exhibit (criminal docket no. 130), the sentencing hearing (criminal
docket no. 144), the judgment (criminal docket no. 132), the statement of reasons (criminal
docket no. 133) and the appellate opinion (criminal docket no. 155), the court concludes
that some of the movant’s claims are procedurally defaulted, there is no basis to conclude
that the movant is actually innocent of the crime of conviction, the court did not err, the
government conducted itself appropriately, no violation of the movant’s constitutional right
to effective assistance of counsel occurred and the record is accurate.
The movant is attempting to again challenge the evidence by alleging a grand
conspiracy to obtain his conviction that involves everyone except him. But, the movant
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is unable to raise claims that he could have asserted in trial or appellate proceedings, and
he already had his case reviewed on direct appeal, wherein his contention was that the
evidence was insufficient in that it was unworthy of belief because it was offered by
cooperators and uncorroborated.

Moreover, the movant only offers misleading,

preposterous, frivolous, outlandish, farfetched, fanciful, unsupported and/or conclusory
statements that do little to undermine the substantial evidence that inculpates him. Few,
if any, of the movant’s statements can be considered true. Consistent with the court’s prior
determination that the movant committed perjury when testifying on his own behalf, the
movant’s additional statements are not credible.
The movant contends that nearly all of the government’s witnesses testified falsely
and, in support of such contention, he misstates the record. Concerning Lori Lewis, the
movant asserts baseless accusations.

As to other witnesses, the movant points out

inconsistencies or flaws in their testimony. But, slight inconsistencies in testimony do not
establish false testimony. See United States v. Moore, 639 F.3d 443, 446 (8th Cir. 2011).
Having examined the record, including a transcript of the testimony of the witnesses whom
the movant now claims in this proceeding were coerced by the government into giving
false testimony, nothing therein justifies the movant’s assertions. Based on the record as
a whole, it is evident that inconsequential inaccuracies in the testimony of the
government’s cooperating witnesses were developed on cross-examination and in no
manner rose to the level of perjury. Because no testimony offered by the government was
false, it could not actually prejudice the jury’s verdict. And, in this proceeding, the
movant has not credibly suggested that he could produce evidence of any kind which might
support his bare assertion that four out of five of the government’s witnesses provided
perjured testimony and that the government was aware thereof and coerced the giving of
such testimony. Indeed, the movant’s main focus is that he could not travel back and forth
from Mexico or Iowa because of his job and probation officer, but he admitted that he
repeatedly traveled to Mexico and an eyewitness identified him as being in Iowa.
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The evidence strongly weighed in favor of conviction. The cooperating witnesses’
acts in the conspiracy were evidenced by other witnesses whose credibility has not been
seriously called into question. And, the movant’s own trial testimony concerning his
interactions with conspirators tends to corroborate, rather than undermine, the cooperating
witnesses’ testimony. The undisputed circumstantial evidence creates an overwhelming
impression that the movant was not an innocent pawn in the scheme. See United States v.
Wintermute, 443 F.3d 993, 1003 (8th Cir. 2006) (“[A] ‘tacit understanding’ among
co-conspirators may be, and often will be, inferred from circumstantial evidence.”). All
of the numerous interactions between the conspirators are explained easily if the movant
was a knowing participant in the criminal scheme. On the other hand, the movant’s theory
that he was buying and selling cars while holding a telemarketing job required the jury to
believe that he was participating in transnational and interstate vehicle transactions that
sometimes involved tens of thousands of dollars. The jury, however, was not persuaded
by the movant’s vehicle sales explanation. Undoubtedly, the jury did not believe the
movant because he was thoroughly impeached at trial. The movant’s false testimony that
he was engaging in or talking about vehicle transactions was directly contradicted by
credible trial witnesses and evidence that related to multiple meetings, prolonged
interactions and repeated phone conversations with Mike Allison, James Olson, Jay
Monson, Robert Gallon and/or other conspirators. After hearing the testimony of all of
the witnesses and considering the other evidence, the jury did not credit the movant’s
testimony, including but not limited to his testimony concerning the vague topics being
discussed in the recorded phone calls, the use of his identification by Mike Allison and the
missing recorded conversations that the movant had on his computer. Contrary to the
movant’s assertions, nothing undermines the notion that the movant received a fair trial.
Additionally, there is nothing within the record that persuades the court that a
violation of the movant’s constitutional right to counsel occurred. The record indicates
that the movant received a fair trial and that counsel exercised the customary skill and
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diligence of a reasonably competent criminal attorney. It is apparent that the conduct of
counsel fell within a wide range of reasonable professional assistance. See Strickland v.
Washington, 466 U.S. 668, 689 (1984). Stated differently, counsel ably fulfilled his role
as advocate.
The movant argues that counsel devoted an insufficient amount of time in
investigating the merits of the charge and that a more intensive investigation would have
developed more exculpating evidence. The movant also attacks counsel’s trial preparation,
second-guesses counsel’s trial strategy and tactics and chastises counsel’s post-verdict
actions. The movant’s assertions regarding the actions of counsel are baseless.
In the court’s judgment, there is no reasonable basis for the charge that counsel
failed in his professional duty to the movant. Clearly, counsel conferred with the movant
and spent considerable time preparing for trial. This case does not turn on an issue of
credibility because, in order to believe movant, the court would have to conclude that an
otherwise competent attorney refused the movant’s instructions to establish an alibi when
counsel pursued all other options when presenting the best possible defense. After
observing counsel’s conduct at trial, it is clear that he adopted strategies that are consistent
with a general denial defense, sought to establish an alibi and skillfully examined and
cross-examined witnesses.

Under the circumstances, counsel cannot be considered

ineffective for failing to seek information that did not substantially undermine the evidence
establishing the movant’s guilt or for failing to present alibi witnesses, especially
considering the evidence and the movant’s admissions.

The present case involved

relatively straightforward factual questions and hinged on whether the jury believed the
movant’s explanation for his substantial involvement with known drug traffickers. Hence,
it cannot be said that counsel failed to raise and fully litigate all issues that were arguably
meritorious.
Further, it cannot be said that the performance of counsel prejudiced the movant’s
defense. See Strickland, 466 U.S. at 692-94. Nothing counsel did or failed to do would
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have changed the outcome. To establish prejudice, the movant must show the existence
of admissible evidence which could have been uncovered by reasonable investigation and
which would have proved helpful to him either on cross-examination or in his
case-in-chief. There is no prejudice if, factoring in the uncalled witnesses or additional
evidence, the government’s case remains overwhelming. Here, all of the movant’s claims
of ineffective assistance of counsel fail because sufficient evidence supports the movant’s
conviction and nothing before the court indicates that obtaining additional records, offering
more witnesses, asking different questions, objecting to the admission of certain evidence
or proceeding in a different manner would have altered the outcome of the trial or
sentencing.
In sum, after evaluating each of the movant’s allegations of ineffective assistance
of counsel and the proof adduced in support of them, the court finds that in each instance
the movant’s counsel acted with the customary skills and diligence that a reasonably
competent attorney would have exercised under similar circumstances and that the movant
was not materially prejudiced in the presentation of his defense by counsel’s action or
inaction. Therefore, relief on the basis of any ineffective assistance of counsel claim is not
available.
IV. 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 (2003); Garrett v. United States,
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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, 16 F.3d 878, 882-83 (8th Cir. 1994)); see also MillerEl, 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 (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 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 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.

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V. CONCLUSION
Based on the foregoing, the movant’s motions that relate to his motion pursuant to
28 U.S.C. § 2255 shall be denied. Further, the alleged errors that are asserted by the
movant warrant no relief under 28 U.S.C. § 2255. Because the movant’s claims are
without merit and/or procedurally defaulted, the movant’s motion pursuant to 28 U.S.C.
§ 2255 shall be denied. Additionally, a certificate of appealability will not issue.
IT IS THEREFORE ORDERED:
(1)

The movant’s motion pursuant to 28 U.S.C. § 2255 (civil docket no. 1) is
denied.

(2)

The movant’s motion for discovery and appointment of investigator (civil
docket no. 10) is denied.

(3)

The movant’s motion to hold motion in abeyance (civil docket no. 11) is
denied.

(4)

The movant’s motion for discovery and appointment of counsel (civil docket
no. 12) is denied.

(5)

A certificate of appealability is denied.

DATED this 26th day of July, 2017.

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