Powell v. Fayram -- SEE #6 DISMISSAL OF 5TH CLAIM
Filing
28
MEMORANDUM OPINION AND ORDER Accepting Report and Recommendations for 26 Report and Recommendations. Petition Under 28 USC Section 2254 for 1 Writ of Habeas Corpus By A Person In State Custody is denied in its entirety. A certificate of appealability is also denied. Signed by Judge Mark W Bennett on 4/21/11. (Copy w/NEF to Petitioner) (djs)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
JASON M. POWELL,
Petitioner,
vs.
JOHN FAYRAM,
Respondent.
No. C 10-4012-MWB
MEMORANDUM OPINION AND
ORDER REGARDING REPORT AND
RECOMMENDATION ON PETITION
FOR WRIT OF HABEAS CORPUS
PURSUANT TO 28 U.S.C. § 2254
____________________
TABLE OF CONTENTS
I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
A. Factual Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.
Events giving rise to state charges against Powell . . . . . . . . . 2
2.
State court proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . 4
B. Procedural Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
1.
Powell’s § 2254 Petition . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.
The Report And Recommendation . . . . . . . . . . . . . . . . . . 10
3.
Powell’s objection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
II. LEGAL ANALYSIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. Standards For Review Of A Report And Recommendation . . . . . . . . .
B. Standards For § 2254 Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C. Powell’s Claim Of Bad Advice Regarding Plea Negotiations . . . . . . . .
1.
Powell’s additional evidence . . . . . . . . . . . . . . . . . . . . . .
2.
Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
a.
Unreasonable factual determinations . . . . . . . . . . . .
b.
Unreasonable application of the law . . . . . . . . . . . .
D. Powell’s Other Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
E. Certificate Of Appealability . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
13
13
16
19
20
22
22
25
28
29
III. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
T
his case is before the court on petitioner Jason M. Powell’s March 3, 2011,
pro se Objection (docket no. 27) to Chief United States Magistrate Judge
Paul A. Zoss’s February 18, 2011, Report And Recommendation On Petition For Writ Of
Habeas Corpus Pursuant To 28 U.S.C. § 2254 (docket no. 26). Judge Zoss recommended
that Powell’s § 2254 Petition be denied in its entirety. Powell objects only to Judge Zoss’s
recommended disposition of his claim that his trial counsel was ineffective in not giving
him correct advice during plea negotiations about the time that he would have to serve in
prison on a mandatory minimum sentence if he were convicted on a state charge of
attempted murder.
I. INTRODUCTION
A. Factual Background
1.
Events giving rise to state charges against Powell
As Judge Zoss noted in his Report and Recommendation, absent rebuttal by clear
and convincing evidence, a federal court hearing a habeas petition of a state prisoner,
pursuant to 28 U.S.C. § 2254, must presume that any factual determinations made by the
state courts were correct. 28 U.S.C. § 2254(e)(1); see also Miller-El v. Dretke, 545 U.S.
231, 240 (2005) (quoting § 2254(e)(1)); Stenhouse v. Hobbs, 631 F.3d 888, 891 (8th Cir.
2011); Bell v. Norris, 586 F.3d 624, 630 (8th Cir. 2009). The unrebutted statement by
the Iowa Court of Appeals of the factual background to various state charges against
Powell is the following:
At approximately 12:30 p.m. on February 12, 2005, Deputy
Sheriff Jerrod Henningsen saw Powell driving a white GMC
2
pickup truck. He knew there was a warrant for Powell’s arrest
and activated his patrol lights to pull him over. Powell
continued driving so the deputy radioed for assistance. Officer
James Steinkuehler responded to the call and parked his patrol
car in Powell’s path in an attempt to stop him. Powell
stopped, then accelerated rapidly, hit the patrol car, and sped
off.
Deputy Henningsen continued his pursuit of Powell,
who was exceeding speeds of sixty miles per hour in a
twenty-five-miles-per-hour zone. Powell also ran stop signs
while being pursued.
Sheriff Thomas Hogan was at home when he heard of
the chase on his police scanner. Because the chase was
heading his way, he decided to place spiked strips known as
“stop sticks” on the road in an attempt to puncture and deflate
the tires of Powell’s vehicle. The sheriff parked his vehicle in
the southbound lane of Ridge Road in Denison and put the
strip across the northbound lane. Sheriff Hogan activated the
warning lights above the windshield and in the grill, and
flashed the headlights of his unmarked patrol vehicle. He
stood in a residential driveway approximately twelve to fifteen
feet away from the passenger side of his vehicle.
The sheriff saw Powell’s car approaching and estimated
his speed in excess of sixty miles per hour. Before reaching
the stop sticks, Powell applied his brakes, veered left, drove
over the curb and onto the lawn, accelerated, and drove at
Sheriff Hogan. When Powell’s vehicle was a few feet away,
the sheriff jumped out of the way. Powell came within twelve
to eighteen inches of hitting him.
He was driving
approximately thirty-five miles per hour as he drove by the
sheriff.
Powell was eventually arrested. The vehicle he was
driving belonged to Roger Slechta. Slechta had not given
Powell permission to drive the vehicle.
State v. Powell, 728 N.W.2d 851 (Table), 2007 WL 112890, *1 (Iowa Ct. App. Jan. 18,
2007) (Powell I) (ruling on direct appeal).
3
2.
State court proceedings
As a result of this incident, Powell was charged on February 22, 2005, in Crawford
County, Iowa, District Court, with first-degree eluding, second-degree theft, assault on a
peace officer, and attempted murder.
1
Powell proceeded to a jury trial on these charges
and was convicted on August 29, 2005. He was subsequently sentenced to five years in
prison on the eluding charge, five years in prison on the theft charge, one year in prison
on the assault charge, and twenty-five years in prison on the attempted murder charge,
with all sentences to run concurrently.
On direct appeal, the Iowa Court of Appeals reversed Powell’s conviction on the
eluding charge and remanded for new trial, reversed the conviction for theft and remanded
for entry of judgment of guilty of operating without the owner’s consent, but affirmed the
conviction for assault on a peace officer. Powell I, 2007 WL 112890. Powell’s only
challenge to his conviction of attempted murder on direct appeal was a claim that his trial
counsel had been ineffective for failing to move for judgment of acquittal on that charge,
which the Iowa Court of Appeals preserved for post-conviction relief to allow the record
to be fully developed. Id. at *5.
On January 7, 2009, the Iowa District Court denied Powell’s application for postconviction relief based on various claims of ineffective assistance of counsel.
Respondent’s Appendix Of Relevant State Court Decisions (State Court Decisions) (docket
no. 19-1), 12-26 (Iowa District Court’s post-conviction relief ruling). On October 21,
2009, the Iowa Court of Appeals also affirmed that decision, expressly adopting all of the
1
Powell had other charges pending, in other cases, that arose from other
circumstances. Those charges are not relevant here.
4
findings and conclusions of the Iowa District Court. See Powell v. State, 776 N.W.2d 886
(Table), 2009 WL 3380640, *1 (Iowa Ct. App. Oct. 21, 2009) (Powell II).
One of Powell’s claims in his application for state post-conviction relief was a claim
that trial counsel failed to advise him concerning the 70 percent mandatory minimum that
might be applicable to his attempted murder charge. See Powell II, 2009 WL 3380640
(describing the pertinent claim as ineffective assistance of counsel “in failing to advise
[Powell] on the mandatory sentence for the attempted murder charge”); State Court
Decisions at 18-19 (excerpt from the Iowa District Court’s post-conviction relief ruling
describing Powell’s pro se claim to be that trial counsel “failed to inform him that there
was a 70 percent mandatory minimum on a 25-year sentence for attempted murder,” and
noting that counsel “also raises the issue of failing to advise Powell of the mandatory
sentence or the forcible felony aspects of attempted murder”). Powell contended that he
would have accepted a plea agreement had counsel properly advised him of the potential
for such a mandatory minimum sentence. State Court Decisions at 19.
The factual findings of the Iowa courts on this claim for post-conviction relief are
the following:
[A] good discussion of the actions taken by Mr. Goldsmith on
behalf of Mr. Powell can be found in Mr. Goldsmith’s
response to the complaint filed against him with the Iowa
Supreme Court Attorney Disciplinary Board. . . .
Mr. Goldsmith succinctly lays out the history of his
representation of Mr. Powell. In [his] response [to Powell’s
complaint] and in his testimony Mr. Goldsmith was delicate in
his treatment of the issue of the difficulty of dealing with
Mr. Powell as a client. Mr. Powell had been charged with
multiple crimes on several different dates and Christopher
Polking had been appointed to represent him. When
Mr. Polking withdrew, Mr. Goldsmith was appointed and
appeared on March 14, 2005. All of the evidence in this case,
5
when taken as a whole, points to the likelihood that Powell
was extremely difficult to deal with throughout and shows the
court that despite the difficulty, Mr. Goldsmith maintained a
level, common sense and professional approach during the
entire process.
***
As Mr. Goldsmith points out in his response to the Iowa
Supreme Court Attorney Disciplinary Board, Mr. Powell was
charged with attempted murder, assault on a police officer,
theft of a motor vehicle, eluding in the commission of a
felony, theft of a second motor vehicle, theft of a snowmobile,
criminal mischief, two counts of burglary and theft in the third
degree, constituting a “B” felony, a “C” felony, seven “D”
felonies and an aggravated misdemeanor, which had allegedly
occurred on several different occasions in 2004 and 2005.
In Exhibit No. 115, Mr. Powell says the following:
Thursday, April 19, 2005
Dear Peter:
After talking to you today and discussing a few
things, talking about prison time and so forth, I’m at the
conclusion of this.
I believe I am willing to proceed with jury trials
in my cases. Whether it be 1 or 20. I never tried to
kill Hogan therefore I’m willing to chance whatever.
Therefor[e] I feel a 5 year sentence is all that I’ll
be facing after I beat the attempted murder charge. But
instead of a proposed plea agreement I talked about in
my last letter to you in regards to a 6 month jail
sentence, considering the county attorney wants “prison
time”, the only prison time I’m willing to take a plea on
would be for a 2 yr sentence of some sort, be willing to
clean up any “open” cases I may be involved in – If
given immunity from those charges, pay restitution as
in attorney fees, court costs, fines (if imposed) the
damage to the 2004 Ford Explorer, along w/all my
6
medical expenses which I incurred while I was
incarcerated in Crawford County Jail. I am not taking
a 5 yr or 10 yr or 25 yr sentence.
I’m willing to roll the dice whether it’s advised
or not. Ohh [sic] and be given time served. Instead of
wasting time and peoples money, give me a 2 yr
sentence of some kind – interference w/official acts –
theft 3rd, elude, attempt to elude – or whatever – you
can ship me to Oakdale tomorrow if they would like.
I’ll sign papers and go - or we’re in for the long haul of
a lot of jury trials and a lot of spent money and time for
close to the same results. If I get screwed and lose then
a lot more time and money spent in appeals, because,
no plea bargain – right to appeal.
I guess we’ll be waiting to hear from the county
attorney.
Thanks, Peter!!
Sincerely, Jason Powell
The court notes the specific language, “I am not taking
a 5-year or 10-year or 25-year sentence,” and “I’m willing to
roll the dice whether its [sic] advised or not.”
While he claims in his post conviction relief action that
Mr. Goldsmith was remiss in advising him, it is clear from his
own testimony, from his communications and from the
evidence presented by Mr. Goldsmith, that Mr. Powell was
simply ignoring the advice that was being given to him.
State Court Decisions at 13-16.
The Iowa District Court addressed Powell’s pro se claim for post-conviction relief
based on his trial counsel’s alleged ineffective assistance with regard to plea negotiations,
as follows:
While the court believes there is evidence that Mr. Powell did
know that there was a 70 percent mandatory minimum, his
7
attitude towards plea bargaining was totally unreasonable and
the court concludes it would have made no difference [whether
or not counsel told him about the 70 percent mandatory
minimum]. He thus was not prejudiced by any failure that
there may have been.
State Court Decisions at 19. The Iowa District Court returned to this claim, as argued by
Powell’s post-conviction relief counsel, later in its decision:
There is evidence in the testimony and exhibits that
Mr. Goldsmith did, in fact, advise Mr. Powell relative to the
potentiality of a 25-year sentence, the potentiality of minimum
sentences and the potentiality of consecutive rather than
concurrent sentences.
There is also some evidence in the file that
Mr. Goldsmith did not specifically, in writing at least, tell
Mr. Powell that if he were convicted he would face a
mandatory minimum.
The prejudice that Powell alleges with regard to this
supposed failure on Goldsmith’s part is that he would have
changed his mind and accepted the plea agreement offered by
the State. Perhaps in retrospect at the end of calendar year
2008 that is true. The court is certain that Mr. Powell regrets
not being more reasonable in his approach to working out a
plea agreement with the county attorney; however, a cursory
reading of Exhibit No. 115 indicates that Mr. Powell expected
to walk away from his criminal and financial obligations with
immunity or little more than a slap on the wrist, despite the
fact that he was charged with a “B” felony, a “C” felony and
a myriad of “D” felonies arising out of at least three different
incidents.
In all of these matters the burden is on Mr. Powell to
prove by a preponderance of the evidence that Mr. Goldsmith
breached an essential duty and that Mr. Powell was prejudiced
thereby. The court finds that there is no credible evidence of
either the breach of essential duty or prejudice to Mr. Powell
in anything Mr. Goldsmith did or did not do.
8
State Court Decisions at 25.
B. Procedural Background
1.
Powell’s § 2254 Petition
On January 29, 2010, Powell filed in this federal court a pro se Petition Under 28
U.S.C. § 2254 For Writ Of Habeas Corpus By A Person In State Custody (§ 2254
Petition) (docket no. 1). At Powell’s request, the court appointed counsel to represent him
in this matter. The respondent submitted relevant state court records on May 28, 2010.
Although Powell’s appointed counsel requested time to file an amended petition, she later
filed a Report Stating No Amended Petition Will Be Filed (docket no. 14) on June 9, 2010.
The respondent also filed his Answer (docket no. 15) to Powell’s § 2254 Petition on June
9, 2010.
Powell’s counsel filed a Memorandum In Support Of Petition For Writ Of Habeas
Corpus Pursuant To 28 U.S.C. § 2254 (Petitioner’s Brief) (docket no. 18) on September
8, 2010. Powell’s claims for § 2254 relief, as clarified in the brief filed by his counsel,
are the following: (1) ineffective assistance of trial counsel in failing to move for a
judgment of acquittal, see Petitioner’s Brief at 10; (2) ineffective assistance of trial counsel
in failing to move for a change of venue, see id. at 12; (3) ineffective assistance of trial
counsel in failing to give him correct advice during plea negotiations concerning the time
he would have to serve in prison if convicted on the attempted murder charge, see id. at
15; and (4) ineffective assistance of trial counsel in failing to retain an expert witness to
establish that the brakes on the pickup truck were defective, see id. at 16. The respondent
filed his Merits Brief (docket no. 19) on September 30, 2010, disputing all of Powell’s
claims on the merits, thus apparently conceding that all were properly exhausted.
9
By Order (docket no. 21), filed January 10, 2011, I referred this action and all
motions pending therein to Chief United States Magistrate Judge Paul A. Zoss for
recommendation of a disposition of the case. Judge Zoss heard oral arguments on the
merits of Powell’s § 2254 Petition on February 18, 2011. Judge Zoss provided the parties
with a draft of his Report And Recommendation several weeks before the oral arguments.
2
Judge Zoss filed a final version of his Report And Recommendation (docket no. 26) just
hours after the oral arguments. Judge Zoss states in that final version that there are no
substantive differences between the final version and the draft that he provided to the
parties. See Report And Recommendation at 2 n.1.
2.
The Report And Recommendation
In his Report And Recommendation, Judge Zoss recounted almost all of the portions
of the rulings of the Iowa courts that I have quoted above, and a great many more that
pertain to claims on which Powell has offered no objection. Judge Zoss also noted that,
at the oral arguments on Powell’s § 2254 Petition, Powell and his counsel clarified that
Powell is claiming that the state post-conviction relief court either unreasonably applied
the law to the facts or unreasonably determined the facts in light of the evidence, within
the meaning of 28 U.S.C. § 2254(d)(1) and (d)(2), respectively. After considering all four
of Powell’s claims, Judge Zoss recommended that Powell’s § 2254 Petition be denied in
its entirety.
More specifically, as to Powell’s claim of ineffective assistance during plea
negotiations, the only claim at issue in Powell’s later Objection (docket no. 27), Judge
Zoss’s analysis was as follows:
2
Although counsel for Powell and counsel for the respondent represented at the oral
arguments that they had received and reviewed the draft Report And Recommendation,
Powell, who also participated, stated that he did not believe that he had received it.
10
Powell claims his trial counsel was ineffective in not
giving him correct advice during plea negotiations concerning
the time he would have to serve in prison if he were convicted
on the attempted murder charge. He claims he would have
accepted a plea bargain to a lesser charge if he had known he
would have to serve 70 percent of the mandatory
twenty-five-year sentence on the charge. Doc. No. 18, p. 16.
The PCR court ruled on this claim as follows:
“Mr. Powell claims that [trial counsel] failed to inform him
that there was a 70 percent mandatory minimum on a 25-year
sentence for attempted murder and suggests that he would have
changed plea bargain position had he known that fact. While
the court believes there is evidence that Mr. Powell did know
that there was a 70 percent mandatory minimum, his attitude
towards plea bargaining was totally unreasonable and the court
concludes it would have made no difference. He thus was not
prejudiced by any failure that there may have been.” Doc.
No. 19-1 at 21-22.
To prevail on this claim, Powell would have to show
either that this ruling was based on an unreasonable
determination of the facts in light of the evidence, or it
involved an unreasonable application of the law to the facts.
He has not made either of these showings.
There is no evidence in the record to support a claim
that Powell would have accepted a plea bargain had he been
given more information concerning the mandatory sentence on
the attempted murder charge, nor does the record establish that
the [post-conviction relief] court was objectively unreasonable
in finding no prejudice on this claim.
Report And Recommendation at 16-17.
3
3
Judge Zoss references the docket pages of docket no. 19-1, while I have used the
consecutive page numbers indicated by the respondent in the Appendix Of Relevant State
Court Decisions.
11
3.
Powell’s objection
On March 1, 2011, Powell mailed, and on March 3, 2011, the Clerk of Court
received and filed, his pro se Objection (docket no. 27) to Judge Zoss’s Report And
Recommendation.
4
Powell objects only to Judge Zoss’s recommended disposition of his
third claim for relief, his claim that trial counsel was ineffective in failing to advise him
during plea negotiations of the 70 percent mandatory minimum sentence for the attempted
murder charge. In essence, Powell contends that the respondent wants the court to believe
that, even if he knew of the 70 percent mandatory minimum, he was not willing to accept
a plea agreement, so that he was not prejudiced by any ineffective assistance of counsel
in failing to advise him of the mandatory minimum. However, Powell asserts that trial
counsel did not advise him of the 70 percent mandatory minimum; that certain evidence
shows that he would have been willing to plead guilty, had he known about the mandatory
minimum; and that his April 19, 2005, letter, which the state courts relied upon in
rejecting this claim for post-conviction relief, was written prior to any plea negotiations
with the state, so that he did not then know what the state would offer.
Somewhat more specifically, Powell argues,
The difference between a 9 year mandatory [sentence,
as purportedly offered by the prosecution,] and a regular 25
year sentence is huge. A regular 25 year sentence you
discharge in 10 years, but are eligible for parole after 1 year.
So why would I plea[d] and not take a chance at trial, I would
do less time if found guilty unless I discharge and that is only
12 months more. . . . Once again if [sic] knowing there was
a mandatory on the 25 year sentence of 17½ years to minimum
parole and 22 years to discharge is huge compared to a 9 years
4
Powell’s appointed counsel did not file any objections to the Report And
Recommendation.
12
mandatory. I believe that this shows by a preponderance of
the evidence that Mr. Goldsmith breached an essential duty
and that I was prejudiced by his actions.
Petitioner’s pro se Objection at 3. In short, Powell argues that he was prejudiced by trial
counsel’s failure to advise him of the potential for a mandatory minimum sentence that was
70 percent of the maximum 25-year sentence for the attempted murder charge, because,
had he known about it, he would have accepted a guilty plea to a sentence less than 17½
years (70 percent of the 25 year sentence for attempted murder).
II. LEGAL ANALYSIS
A. Standards For Review Of A Report And Recommendation
The district court’s standard of review for a magistrate judge’s report and
recommendation is established by statute:
A judge of the court shall make a de novo determination of
those portions of the report or specified proposed findings or
recommendations to which objection is made. A judge of the
court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.
The judge may also receive further evidence or recommit the
matter to the magistrate judge with instructions.
28 U.S.C. § 636(b)(1) (2006); see FED. R. CIV. P. 72(b) (stating identical requirements);
N.D. IA. L.R. 72, 72.1 (allowing the referral of dispositive matters to a magistrate judge
but not articulating any standards to review the magistrate judge’s report and
recommendation). The United States Supreme Court has explained this statutory standard,
as follows:
Any party that desires plenary consideration by the Article III
judge of any issue need only ask. Moreover, while the statute
does not require the judge to review an issue de novo if no
13
objections are filed, it does not preclude further review by the
district judge, sua sponte or at the request of a party, under a
de novo or any other standard.
Thomas v. Arn, 474 U.S. 140, 154 (1985).
Thus,
!
A district court may review de novo any issue in a
magistrate judge’s report and recommendation at any
time. Id. This discretion to conduct de novo review of
any issue at any time makes sense, because the Eighth
Circuit Court of Appeals has “emphasized the
necessity . . . of retention by the district court of
substantial control over the ultimate disposition of
matters referred to a magistrate.” Belk v. Purkett, 15
F.3d 803, 815 (8th Cir. 1994).
!
If a party files an objection to the magistrate judge’s
report and recommendation, the district court must
“make a de novo determination of those portions of the
report or specified proposed findings or
recommendations to which objection is made.” 28
U.S.C. § 636(b)(1) (emphasis added). In most cases,
to trigger de novo review, “objections must be timely
and specific,” Thompson v. Nix., 897 F.2d 356, 358-59
(8th Cir. 1990): however, the Eighth Circuit Court of
Appeals has been willing to “liberally construe[]”
otherwise general pro se objections to require a de novo
review of all “alleged errors,” see Hudson v. Gammon,
46 F.3d 785, 786 (8th Cir. 1995), and has also been
willing to conclude that general objections require “full
de novo review” if the record is concise, Belk, 15 F.3d
at 815 (“Therefore, even had petitioner’s objections
lacked specificity, a de novo review would still have
been appropriate given such a concise record.”). When
objections have been made, and the magistrate judge’s
report is based upon an evidentiary hearing, “‘the
14
district court must, at a minimum, listen to a tape
recording or read a transcript of the evidentiary
hearing.’” United States v. Azure, 539 F.3d 904, 910
(8th Cir. 2008) (quoting Jones v. Pillow, 47 F.3d 251,
252 (8th Cir. 1995), in turn quoting Branch v. Martin,
886 F.2d 1043, 1046 (8th Cir. 1989)).
!
In the absence of an objection, the district court is not
required “to give any more consideration to the
magistrate’s report than the court considers
appropriate.” Thomas, 474 U.S. at 150; see also
Peretz v. United States, 501 U.S. 923, 939 (1991)
(section 636(b)(1) “provide[s] for de novo review only
when a party objected to the magistrate’s findings or
recommendations” (emphasis added)); United States v.
Ewing, 632 F.3d 412, 415 (8th Cir. 2011) (“By failing
to file objections, Ewing waived his right to de novo
review [of a magistrate judge’s report and
recommendation on a suppression motion] by the
district court.”). Indeed, Thomas suggests that no
review at all is required. Id. (“We are therefore not
persuaded that [section 636(b)(1)] requires some lesser
review by the district court when no objections are
filed.”).
Nevertheless, the Eighth Circuit Court of
Appeals has indicated that a district court should review
the portions of a magistrate judge’s report and
recommendation to which no objections have been
made under a “clearly erroneous” standard of review.
See Grinder v. Gammon, 73 F.3d 793, 795 (8th Cir.
1996) (noting when no objections are filed and the time
for filing objections has expired, “[the district court
judge] would only have to review the findings of the
magistrate judge for clear error”); Taylor v. Farrier,
910 F.2d 518, 520 (8th Cir. 1990) (noting the advisory
committee’s note to FED. R. CIV. P. 72(b) indicates
“when no timely objection is filed the court need only
15
satisfy itself that there is no clear error on the face of
the record”). Review for clear error, even when no
objection has been made, is consistent with “retention
by the district court of substantial control over the
ultimate disposition of matters referred to a
magistrate.” Belk, 15 F.3d at 815.
Although the Eighth Circuit Court of Appeals
has not explained precisely what “clear error” review
means in this context, in other contexts, the Supreme
Court has stated that the “foremost” principle under this
standard of review “is that ‘[a] finding is “clearly
erroneous” when although there is evidence to support
it, the reviewing court on the entire evidence is left with
the definite and firm conviction that a mistake has been
committed.’” Anderson v. City of Bessemer City, 470
U.S. 564, 573-74 (1985) (quoting United States v. U.S.
Gypsum Co., 333 U.S. 364, 395 (1948)).
The court will review Judge Zoss’s Report And Recommendation with these
standards in mind. Although there was no evidentiary hearing in this case that would have
required me to listen to any recording or to review a hearing transcript, see Azure, 539
F.3d at 910, I have listened to the recording of the February 18, 2011, oral arguments on
Powell’s § 2254 Petition.
B. Standards For § 2254 Relief
Any such review in this case must be in the context of the standards for federal
habeas relief to a state prisoner pursuant to 28 U.S.C. § 2254, as amended by the
Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996. Section 2254(a) states,
[A] district court shall entertain an application for a writ of
habeas corpus in behalf of a person in custody pursuant to the
judgment of a State court only on the ground that he is in
16
custody in violation of the Constitution . . . of the United
States.
28 U.S.C. § 2254(a). Section § 2254(d) further limits the circumstances in which a federal
court can grant relief to a state prisoner on a claim previously adjudicated by a state court,
as is the case here:
(d) An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless the
adjudication of the claim—
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
28 U.S.C. § 2254(d).
The United States Supreme Court has explained when relief pursuant to
§ 2254(d)(1) is appropriate, as follows:
Section 2254(d)(1) defines two categories of cases in which a
state prisoner may obtain federal habeas relief with respect to
a claim adjudicated on the merits in state court. Under the
statute, a federal court may grant a writ of habeas corpus if the
relevant state-court decision was either (1) “contrary to . . .
clearly established Federal law, as determined by the Supreme
Court of the United States,” or (2) “involved an unreasonable
application of . . . clearly established Federal law, as
determined by the Supreme Court of the United States.”
17
Williams v. Taylor, 529 U.S. 362, 404-05 (2000) (quoting 28 U.S.C. § 2254(d)(1)). In
this case, Powell and his counsel clarified that, in the first instance, they are claiming that
the state post-conviction relief courts unreasonably applied the law to the facts, within the
meaning of the second alternative under § 2254(d)(1).
5
An “unreasonable application” of federal law by a state court can occur in two
ways: (1) where “the state court identifies the correct governing legal rule from the
[Supreme] Court’s cases but unreasonably applies it to the facts of the particular state
prisoner’s case”; or (2) where “the state court either unreasonably extends a legal principle
from [Supreme] Court precedent to a new context where it should not apply or
unreasonably refuses to extend that principle to a new context where it should apply.” Id.
at 407. The federal court cannot grant relief simply because, in the federal court’s view,
the state court applied clearly established federal law erroneously or incorrectly—the
application must additionally be unreasonable. Id. at 411; see Bell v. Cone, 535 U.S. 685,
694, 122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002) (“an unreasonable application is different
from an incorrect one.”). Stated differently, a federal court may not grant the petition
unless the state court decision, viewed objectively and on the merits, cannot be justified
under existing Supreme Court precedent. James v. Bowersox, 187 F.3d 866, 869 (8th Cir.
1999).
In this case, Powell and his counsel also assert that the state post-conviction relief
courts unreasonably determined the facts in light of the evidence, within the meaning of
5
The “contrary to” alternative of § 2412(d)(1), which is not at issue here, requires
the state court decision to be “diametrically different” or “opposite in character or nature,”
or “mutually opposed” to Supreme Court precedent, that is, “the state court’s decision
must be substantially different from the relevant precedent of [the Supreme] Court.”
Williams, 529 U.S. at 405.
18
§ 2254(d)(2), which authorizes relief when the state court’s adjudication “resulted in a
decision that was based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” (Emphasis added). The Supreme Court
has explained that, when this ground for relief is invoked, federal courts “presume the
[state] court’s factual findings to be sound, unless [the petitioner] rebuts the ‘presumption
of correctness by clear and convincing evidence.’” Miller-El v. Dretke, 545 U.S. 231, 240
(2005) (quoting § 2254(e)(1)); Stenhouse v. Hobbs, 631 F.3d 888, 891 (8th Cir. 2011).
“The standard is demanding but not insatiable; as we said the last time this case was here,
‘[d]eference does not by definition preclude relief.’” Id. (quoting Miller-El v. Cockrell,
537 U.S. 322, 340 (2003)). As the Eighth Circuit Court of Appeals has explained, “‘[A]
state court decision involves “an unreasonable determination of the facts in light of the
evidence presented in state court proceedings” only if it is shown that the state court's
presumptively correct factual findings do not enjoy support in the record.’” Worthington
v. Roper, 631 F.3d 487, 508 (8th Cir. 2011) (quoting Jones v. Luebbers, 359 F.3d 1005,
1011 (8th Cir. 2004), with citation omitted)).
C. Powell’s Claim Of Bad Advice Regarding Plea Negotiations
Again, Powell objects only to Judge Zoss’s recommendation that I reject his claim
for § 2254 relief based on alleged ineffective assistance of trial counsel in failing to advise
him during plea negotiations of the potential for a 70 percent mandatory minimum sentence
on the attempted murder charge. Powell asserts that additional evidence, which is not
mentioned in the Iowa courts’ post-conviction relief decisions, shows that he would have
been willing to accept a plea agreement to plead guilty to attempted murder, if properly
advised.
19
1.
Powell’s additional evidence
Powell identifies the additional evidence that he believes shows his willingness to
plead guilty to the attempted murder charge, if properly advised, as follows:
[I]f you read in the 3rd paragraph of [the] same [April
19, 2005,] letter [Exhibit No. 115] it says “But instead of a
proposed plea agreement in my last letter to you” shows that
even though I said I’m not taking a 5, 10 [or] a 25 year
sentence, I have reached out to the State on plea negotiations
prior to (Exhibit No. 115) [the April 19, 2005, letter] and also
again in a letter from Mr. Goldsmith to Mr. Powell dated June
14th 2005 which was used as the (Defendants [sic] Exhibit
109) in Case No. PCCV03573. In paragraph 4 “You also
outlined a potential plea bargain” which this letter was written
nearly 2 months after exhibit No. 115 which shows that even
after I wrote the letter in exhibit No. 115, I was still trying to
come up w/a plea deal. In paragraph 4, page 2 of exhibit 109
is where he outlines the States [sic] plea agreement again and
this is where the prejudice begins by not knowing the 25 year
sentence had a 70 % mandatory minimum.
Petitioner’s pro se Objection (docket no. 27) at 2-3. Powell also adds, “Also in paragraph
5, page #2 [of the June 9, 2005, letter] there is nothing mentioned of a mandatory.” Id.
at 3.
I note, first, that the June 14, 2005, letter to which Powell directs my attention does
not appear to be Defendant’s Exhibit No. 109 in Powell’s state post-conviction relief case.
Exhibit No. 109 in those proceedings was identified in the transcript of proceedings as his
October 17, 2005, complaint against Mr. Goldsmith. Because the state court materials
provided to the federal court do not include all of the exhibits from the post-conviction
relief proceedings, I cannot determine whether the June 14, 2005, letter was attached to
the complaint against Mr. Goldsmith. I have also reviewed the transcript of the postconviction relief proceedings, and I did not locate any reference to the June 14, 2005,
20
letter. I can state, however, that the June 14, 2005, letter was included as item 2 in the
Appellant’s Appendix on appeal of denial of post-conviction relief, at pages 83-84, where
it bears a “Defendant’s Exhibit” sticker that is cut off above the exhibit number. I can also
determine that there is no mention of the June 14, 2005, letter, in Powell’s counsel’s brief
in support of Powell’s § 2254 Petition, no mention of the letter during the oral arguments
before Judge Zoss on Powell’s § 2254 Petition, and no indication in Judge Zoss’s Report
And Recommendation that he was specifically informed of or considered the June 14,
2005, letter. On the other hand, Powell himself did argue in the course of oral arguments
before Judge Zoss that the April 19, 2005, letter was written before any plea offer had
been received from the prosecution.
The June 14, 2005, letter—from Powell’s trial attorney to Powell, in response to
a letter from Powell dated June 6, 2005—states, in pertinent part (as identified by Powell),
the following:
You also outlined a potential plea bargain. I had
discussed this type of plea bargain previously with the County
Attorney. I had asked if he would agree to you pleading guilty
to multiple “D” felonies, having your sentence suspended,
pleading to an aggravated misdemeanor and going to prison for
two years. As I wrote to you previously, the County Attorney
said to tell you that his response was a laugh.
***
As you recall, the County Attorney’s plea bargain was
for 3 five year sentences, each with a minimum of 3 years.
This would mean a total jail sentence of 15 years. I am not
sure if he meant to offer a minimum of 3 years or a minimum
of 9 years. If you want to discuss a reduction from his plea
bargain, it is possible that he might agree to drop the
minimum. After you consider good time, and credit for time
served, you probably would serve 1/3, or less, of the 15 year
sentence. In fact, a possible plea bargain might even be to
21
agree to a 15 year sentence with 1 three year minimum. On a
15 year sentence the minimum served probably would be in the
range of 2 to 3 years anyway. An additional consideration
would be agreement that the time served applies to the 3 year
minimum.
I don’t want you to think I am giving up or trying to
talk you into a plea bargain. However, I just want to make
sure that we review all of your options. You are facing a 25
year sentence on the “B” felony. In addition, if you are
convicted on the “B” felony and other charges, the Judge
could run them consecutive, which would increase your prison
to 30 years or more. Compared to that, a 15 year sentence,
that actually gets you out in approximately 3 to 5 years, needs
serious consideration.
Post-Conviction Relief Appeal Appendix at 83-84.
2.
Analysis
Upon de novo review of the claim of ineffective counsel in failing to advise Powell
of the potential for a 70 percent mandatory minimum for attempted murder in the course
of plea negotiations, the focus of Powell’s pro se objection to the Report And
Recommendation, see 28 U.S.C. § 636(b)(1); Thomas, 474 U.S. at 154, I ultimately agree
with Judge Zoss’s recommendation that the claim be denied. My process for reaching that
conclusion is somewhat different from Judge Zoss’s, in light of Powell’s pro se objection.
I begin with Powell’s argument that the state courts “unreasonably determined” the facts
in light of the evidence, within the meaning of § 2254(d)(2), then turn to his argument that
the state courts “unreasonably applied” governing Supreme Court law to those facts,
within the meaning of § 2254(d)(1).
a.
Unreasonable factual determinations
The factual findings that Powell appears to challenge as unreasonable
determinations, or at least, the ones that provide the basis for the Iowa courts’ legal
22
analysis of Powell’s claim that counsel provided bad advice in plea negotiations, are that
“it is clear from [Powell’s] own testimony, from his communications and from the
evidence presented by Mr. Goldsmith, that Mr. Powell was simply ignoring the advice that
was being given to him,” see State Court Decisions at 16; that Powell’s “attitude towards
plea bargaining was totally unreasonable,” see id. at 19; and that there is evidence both
that trial counsel did not advise Powell as to the potential for a mandatory minimum
sentence for attempted murder and that trial counsel did do so, but that “there is no
credible evidence of . . . the breach of essential duty” in this regard, see id. at 25. As
noted above, this court must presume that these findings are correct, unless Powell rebuts
that presumption “‘by clear and convincing evidence.’” Miller-El, 545 U.S. at 231
(quoting § 2254(e)(1); Stenhouse, 631 F.3d at 891. Thus, Powell must show that these
factual findings “do not enjoy support in the record.” Worthington, 631 F.3d at 508
(internal quotation marks and citations omitted). He cannot make the necessary showing
as to any of the pertinent findings.
Both the April 19, 2005, letter from Powell to his trial attorney, cited by the Iowa
courts, and the June 14, 2005, letter from his trial attorney to Powell, upon which Powell
now relies, and which was available to the Iowa Court of Appeals in the appendix for the
post-conviction relief appeal, reasonably support a finding that Powell was simply ignoring
the advice that he was being given about the need to consider a plea agreement. Both also
reasonably support a finding that Powell’s position with regard to a plea agreement—which
it appears from the June 14, 2005, letter was that he still wanted a sentence of two
years—was totally unreasonable. The Iowa courts could have reasonably concluded that
both letters show that Powell’s trial counsel was floating much more realistic numbers,
from 5 to 15 years, as the basis for a plea agreement, in light of the charges and the
potential sentences, but Powell was rejecting those suggestions out of hand. Moreover,
23
the appendix on appeal of denial of post-conviction relief includes a copy of an e-mail
dated May 20, 2005, from the county attorney to Powell’s trial counsel, outlining a plea
agreement that did not include a guilty plea to attempted murder, but did include agreement
to consecutive 5-year sentences for eluding, assault on a peace officer, and second degree
theft, totaling 15 years, with a requirement that Powell serve a mandatory minimum of
three years as an habitual offender. See Post-Conviction Relief Appeal Appendix at 13132 (also marked “Defendant’s Exhibit 106”). On that e-mail, Powell has written, above
his signature, “I reject this plea bargain offer,” with the date “05/25/05.” Thus, by June
14, 2005, when Powell had received a plea offer from the prosecution, he still was not
6
considering a more reasonable plea position. Powell’s contention, in these proceedings,
that his April 19, 2005, letter only shows his position before any plea offer from the
prosecution, and thus is irrelevant, is undermined by Powell’s continued adherence to the
same position with regard to a plea agreement after he did receive a plea offer from the
prosecution. In the face of such a plea offer, Powell’s continued insistence on a sentence
of two years, as outlined in the June 14, 2005, letter upon which he now relies, was
unreasonable, by almost anyone’s estimation.
The appendix for the post-conviction relief appeal also included a letter from trial
counsel to Powell that is dated September 6, 2005, that is, after Powell’s conviction on
August 29, 2005, and before his sentencing, pointing out that “[w]e have to accept that you
are going to receive a twenty-five year sentence, at the sentencing in October,” but
referring to a plea agreement for sentencing purposes, that would potentially have involved
considerably less time. Id. at 85-86. It also contains a letter from trial counsel to Powell
6
That plea offer was objectively reasonable, even if trial counsel’s cautious
interpretation of it as requiring a 9-year mandatory minimum (3-year mandatory minimums
on each of three offenses, served consecutively), was the correct one.
24
dated September 22, 2005, indicating that trial counsel had told the county attorney that
“we would accept the plea bargain,” see id. at 135 (also marked “Defendant’s Exhibit
112”), but there ultimately was no plea agreement, even for sentencing purposes.
Certainly, based on the record evidence, it was not unreasonable for the Iowa courts
to find that Powell’s position with regard to a plea bargain was “unreasonable” in light of
the facts. Worthington, 631 F.3d at 508 (the petitioner must show that these factual
findings “do not enjoy support in the record”).
Nor can the court find that the Iowa courts unreasonably determined that trial
counsel did advise Powell of the mandatory minimum sentence for attempted murder, at
least to the extent that such a finding is implicit in the Iowa courts’ finding that trial
counsel did not breach an essential duty as to plea negotiations. The appellate record also
included a letter from trial counsel to Powell that is dated September 21, 2005, prior to
sentencing, reminding Powell that the mandatory minimum sentence for attempted murder
was “our concern.” Post-Conviction Relief Appeal Appendix at 87. While the record
evidence, in its entirety, may be somewhat equivocal, and I might have reached a different
conclusion, I cannot say that the Iowa courts’ factual determination that trial counsel did
advise Powell of the mandatory minimum sentence, or that there is no credible evidence
that he did not, does not enjoy at least some support in the record. Worthington, 631 F.3d
at 508.
Powell is not entitled to relief on his claim of bad advice in plea negotiations based
on unreasonable determinations of underlying facts by the Iowa courts.
b.
Unreasonable application of the law
Similarly, I cannot conclude that there has been any “unreasonable application” of
federal law by the state post-conviction relief courts, within the meaning of the second
alternative in § 2254(d)(1). First, the state courts correctly identified the governing legal
25
rule from Strickland v. Washington, 466 U.S. 668 (1984). See Williams, 529 U.S. at 407
(explaining the “unreasonable application” alternative); see also Powell II, 2009 WL
3380640 at *1 (state appellate decision on post-conviction relief, citing Strickland and
Thompson v. State, 492 N.W.2d 410-413 (Iowa 1992), in turn citing Jones v. State, 479
N.W.2d 265, 271-72 (Iowa 1991), in turn citing Strickland); id. at 13 (district court’s
7
decision on post-conviction relief citing Jones); and id. at 22 (same citing Strikland).
Second, the state courts did not “unreasonably appl[y] [the governing law] to the
facts of the particular prisoner’s case.” Williams, 529 U.S. at 407. Specifically, it was
not unreasonable for the Iowa courts to rely primarily or exclusively on their analysis of
the “prejudice” prong of this ineffective assistance of counsel claim. The Supreme Court
has made clear that the reviewing court need only consider one of the twin requirements
for relief on an ineffective assistance of counsel claim—“deficient performance” or
“prejudice”—if it is dispositive of the claim. See Strickland v. Washington, 466 U.S. 668,
687-88, 697 (1984); Knowles v. Mirzayance, ___ U.S. ___, 129 S. Ct. 1411, 1419 (2009).
Indeed, the Iowa Court of Appeals expressly noted, “We may dispose of an ineffectiveassistance-of-counsel claim if the applicant fails to meet either the breach of duty or
prejudice prong,” citing Strickland, 466 U.S. at 697, and properly formulated the required
showing of “prejudice” as “a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different,” citing Strickland, 466 U.S.
at 698. Powell II, 2009 WL 3380640 at *1.
Nor did the Iowa courts make an unreasonable application of the correct legal rule
to the facts of Powell’s case, see Williams, 529 U.S. at 407, when they concluded that
7
The Iowa District Court miscited Jones as 497 N.W.2d 265, when it is 479
N.W.2d 265, and misattributed the decision to the Iowa Court of Appeals, when it is an
Iowa Supreme Court decision. State Court Decisions at 13.
26
Powell could not show the required prejudice. Powell faults the Iowa courts for relying
on his April 19, 2005, letter as showing that he suffered no prejudice from any deficient
performance by trial counsel with regard to plea negotiations, because that letter was
purportedly written before the prosecution had made any plea offer. The record shows,
however, that the Iowa courts could reasonably have concluded that Powell’s position, as
stated in the April 19, 2005, letter, did not change, and would not have changed, based on
either a specific plea offer by the prosecution or advice from trial counsel about the
mandatory minimum sentence for attempted murder. The Iowa courts had before them
evidence that Powell had staked out an unrealistic and unreasonable position with regard
to an acceptable sentence, despite advice that such a position would never satisfy the
prosecution. They also had before them Powell’s rejection, on May 25, 2005, before trial,
of a plea offer that did not require him to plead guilty to attempted murder at all, thus
removing the mandatory minimum sentence or the potential maximum sentence for that
offense, and offering consecutive five-year sentences for the three remaining charges in
that case, with an agreement to “a minimum sentence of confinement of three years.” See
Post-Conviction Relief Appeal Appendix at 131-32. Finally, the Iowa courts had evidence
that, even after Powell was convicted of attempted murder, he continued to resist any plea
agreement for sentencing purposes. See id. at 85-86.
The Iowa courts also recognized that, from Powell’s perspective in late 2008, after
conviction and sentencing, he might now believe that he would have changed his mind and
accepted a plea agreement, if his trial counsel had not performed deficiently, but that was
not his position at the time that he was charged, tried, convicted, and sentenced. Powell’s
arguments that he would certainly have accepted a plea agreement if properly advised are
no less revisionist now than they were at the end of 2008.
27
Even were I persuaded that the Iowa courts got it wrong—which I am not—I am not
persuaded that their application of the law to these facts was unreasonable. See Strickland,
466 U.S. at 411; Bell, 535 U.S. at 694. I simply cannot say that, viewed objectively and
on the merits, the application of the law to the facts by the Iowa courts—their conclusion
that there was no reasonable probability that Powell would have accepted a plea agreement
even if properly advised about the potential mandatory minimum sentence for attempted
murder—cannot be justified under existing Supreme Court precedent. James, 187 F.3d
at 869.
D. Powell’s Other Claims
Powell’s other claims for federal habeas relief in his § 2254 Petition were
(1) ineffective assistance of trial counsel in failing to move for a judgment of acquittal,
see Petitioner’s Brief at 10; (2) ineffective assistance of trial counsel in failing to move for
a change of venue, see id. at 12; and (3) ineffective assistance of trial counsel in failing
to retain an expert witness to establish that the brakes on the pickup truck were defective,
see id. at 16. Judge Zoss recommended that these claims also be denied. Powell raised
no objections to the recommended disposition of these claims, so my review of Judge
Zoss’s recommendation is only for “clear error.” See Grinder, 73 F.3d at 795 (noting
that, when no objections are filed and the time for filing objections has expired, the district
court “would only have to review the findings of the magistrate judge for clear error”);
FED. R. CIV. P. 72(b), 1983 advisory committee note (stating, “[W]hen no timely
objection is filed the court need only satisfy itself that there is no clear error on the face
of the record”). My review of Judge Zoss’s recommended disposition of these additional
claims for § 2254 relief reveals no such “clear error.” Indeed, I am left with the same
conviction that Judge Zoss was, that the Iowa courts’ disposition of these claims was
28
correct. Compare Anderson, 470 U.S. at 573-74 (“clear error” is present when the
reviewing court “is left with the definite and firm conviction that a mistake has been
committed” (quotation marks and citations omitted)).
E. Certificate Of Appealability
My agreement with Judge Zoss’s recommendation that Powell’s § 2254 Petition be
denied in its entirety raises the question of whether or not to grant Powell a certificate of
appealability on any of his claims for § 2254 relief. The requirement of a certificate of
appealability is set out in 28 U.S.C. § 2253(c)(1), which provides, in pertinent part, as
follows:
(c)(1) Unless a circuit justice or judge issues a
certificate of appealability, an appeal may not be taken to the
court of appeals from—
(A) the final order in a habeas corpus proceeding in
which the detention complained of arises out of process issued
by a State court. . . .
28 U.S.C. § 2253(c)(1)(A); accord FED. R. APP. P. 22(b). In Tiedeman v. Benson, 122
F.3d 518 (8th Cir. 1997), the Eighth Circuit Court of Appeals held that “judge” in this
provision “must include district judges,” so that, “under AEDPA district courts possess
the authority to issue certificates of appealability under Section 2253(c) and Fed. R. App.
P. 22(b).” Tiedeman, 122 F.3d at 522.
To obtain a certificate of appealability on claims for § 2254 relief, a defendant must
make “a substantial showing of the denial of a constitutional right.” See 28 U.S.C.
§ 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); Garrett v. United
States, 211 F.3d 1075, 1076-77 (8th Cir. 2000); Mills v. Norris, 187 F.3d 881, 882 n.1
(8th Cir. 1999); Carter v. Hopkins, 151 F.3d 872, 873-74 (8th Cir. 1998); Ramsey v.
29
Bowersox, 149 F.3d 749 (8th Cir. 1998); Cox v. Norris, 133 F.3d 565, 569 (8th Cir.
1997), cert. denied, 525 U.S. 834 (1998). “A substantial showing is a showing that issues
are debatable among reasonable jurists, a court could resolve the issues differently, or the
issues deserve further proceedings.” Cox, 133 F.3d at 569. Moreover, the United States
Supreme Court reiterated in Miller-El that “‘[w]here a district court has rejected the
constitutional claims on the merits, the showing required to satisfy § 2253(c) is
straightforward: The petitioner must demonstrate that reasonable jurists would find the
district court’s assessment of the constitutional claims debatable or wrong.’” Miller-El,
537 U.S. Ct. at 338 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
For the reasons stated in this opinion, I find that Powell has not made a substantial
showing of the denial of a constitutional right on his § 2254 claims. See 28 U.S.C.
§ 2253(c)(2). Specifically, there is no showing that reasonable jurists would find my
assessment of Powell’s claims to be debatable or wrong, Miller-El, 537 U.S. at 338; Cox,
133 F.3d at 569, or that any court would resolve those issues differently. Cox, 133 F.3d
at 569. Therefore, Powell does not make the requisite showing to satisfy § 2253(c) on his
claims for relief, and no certificate of appealability will issue in this case. See 28 U.S.C.
§ 2253(c)(2); FED. R. APP. P. 22(b).
Therefore, a certificate of appealability will also be denied.
III. CONCLUSION
Upon de novo review of Judge Zoss’s recommendation to deny Powell’s claim for
§ 2254 relief based on bad advice of trial counsel in plea negotiations, I overrule Powell’s
March 3, 2011, pro se Objection (docket no. 27), and accept the pertinent part of Judge
Zoss’s February 18, 2011, Report And Recommendation (docket no. 26). Upon “clear
error” review of Judge Zoss’s recommendation to deny all of Powell’s other claims for
30
§ 2254 relief, to which Powell did not object, I also accept the pertinent parts of Judge
Zoss’s February 18, 2011, Report And Recommendation (docket no. 26).
THEREFORE, Powell’s January 29, 2010, pro se Petition Under 28 U.S.C. § 2254
For Writ Of Habeas Corpus By A Person In State Custody (docket no. 1), as clarified by
counsel, is denied in its entirety. A certificate of appealability is also denied.
IT IS SO ORDERED.
DATED this 21st day of April, 2011.
__________________________________
MARK W. BENNETT
U. S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA
31
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