Williams v. United States of America
Filing
25
ORDER denying in its entirety 1 Motion to Vacate/Set Aside/Correct Sentence (2255) (Criminal Action CR10-4083-MWB). This case is dismissed. No certificate of appealability will issue for any claim or contention in this case. Signed by Judge Mark W Bennett on 8/13/2014. (copy w/nef to non-ecf petitioner) (des)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
ALLEN R. WILLIAMS,
No. C13-4025-MWB
CR10-4083-MWB
Petitioner,
vs.
UNITED STATES OF AMERICA,
MEMORANDUM OPINION AND
ORDER REGARDING
PETITIONER’S § 2255 MOTION
Respondent.
___________________________
TABLE OF CONTENTS
I.
INTRODUCTION........................................................................... 2
A.
Criminal Proceedings .............................................................. 2
B.
The Petitioner’s § 2255 Motion .................................................. 4
II.
LEGAL ANALYSIS ........................................................................ 6
A.
Motion To Amend .................................................................. 6
B.
Standards For § 2255 Motion .................................................... 9
C.
Procedural Matter ................................................................ 11
D.
Ineffective Assistance Of Counsel ............................................. 12
1.
Applicable standards ..................................................... 12
a.
Strickland’s “deficient performance” prong ................ 14
b.
Strickland’s “prejudice” prong ................................ 16
2.
Failure to object to motion to amend the superseding
indictment .................................................................. 17
3.
Failure to request an informant instruction ......................... 18
4.
Failure to object to Williams’s absence during the
jury’s replaying of recordings .......................................... 19
5.
Failure to object to the presence of the court’s “IT”
person to go to the jury room without Williams being
present ...................................................................... 22
6.
Failure to object to the court allowing “unplayed”
video and audio tapes to go to the jury room ....................... 23
E.
III.
Certificate of Appealability ..................................................... 23
CONCLUSION ............................................................................ 24
I.
INTRODUCTION
This case is before me on petitioner Allen R. Williams’s Motion Under 28 U.S.C.
§ 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody.
Williams claims that his trial counsel provided him with ineffective assistance in a number
of ways. The respondent denies that Williams is entitled to relief on his claims.
A.
Criminal Proceedings
On August 19, 2010, an indictment was returned against Williams, and six
codefendants, charging him with conspiracy to distribute 28 grams or more of crack
cocaine, having previously been convicted of two felony drug offenses, in violation of 21
U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846 (Count 1), distributing crack cocaine, having
previously been convicted of two felony drug offenses, in violation of 21 U.S.C. §§
841(a)(1), 841(b)(1)(C), and 851 (Counts 2, 7, and 8), and distributing and aiding and
abetting another in the distribution of crack cocaine, having previously been convicted of
two felony drug offenses, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), 851, and
18 U.S.C. § 2 (Count 3).
On December 14, 2010, a superseding indictment was returned against Williams,
and five codefendants, charging him with conspiracy to distribute 50 grams or more of
2
crack cocaine, having previously been convicted of two felony drug offenses, in violation
of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846 (Count 1), distributing crack cocaine,
having previously been convicted of two felony drug offenses, in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(C), and 851 (Counts 2, 7, and 8), and distributing and aiding and
abetting another in the distribution of crack cocaine, having previously been convicted of
two felony drug offenses, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), 851, and
18 U.S.C. § 2 (Count 3).1 On January 28, 2011, the prosecution moved to amend the
superseding indictment to cure clerical errors in the conspiracy charge in Count 1. The
prosecution’s motion was unresisted by Williams and the three codefendants remaining
in the case. That same day, the prosecution’s motion was granted and Count 1 was
amended to change the time frame of the alleged conspiracy to read “from about January
2010, and continuing through about August 2010,” to change the quantity of drugs alleged
to read “28 grams or more,” and to change the related code section to read “21 U.S.C.
§ 841(b)(1)(B).”
Trial in this case commenced on February 9, 2011, with Williams being tried with
codefendant Robert McNairy. On February 9, 2011, after all of the evidence had been
submitted to the jury for deliberation, the jury sent a note to me at the end of the day
requesting to replay recordings of admitted evidence the following day. I telephoned the
attorneys regarding the note and had a preliminary discussion with them on their
positions. The prosecution and McNairy’s counsel agreed to permit the jury to replay
the recordings while Williams’s counsel objected to the replaying of recordings. No
decision was made at that time. Instead, I scheduled a hearing on the issue for the
1
Lloyd Williams, a codefendant named in the original indictment, pleaded guilty
to charges in the original indictment and was not named in the superseding indictment.
The superseding indictment included one additional count of possession of crack cocaine
with intent to distribute, but Williams was not charged in that count.
3
following morning. At that hearing, on the morning of February 10, 2011, both Williams
and his counsel were present. Williams’s counsel objected to the jury being allowed to
replay the audio and video recordings while the prosecution was in favor of permitting
it. I ordered that a laptop computer be provided to the jury to allow the jurors to replay
the recordings during their deliberations.
On February 10, 2011, the jury returned a verdict finding Williams guilty of the
charged offenses. On May 20, 2011, Williams’s counsel filed a motion for downward
variance. The prosecution, in turn, filed a motion for upward departure on the ground
that Williams’s criminal history category substantially under represented the seriousness
of Williams’s criminal history. Williams appeared before me on May 27, 2011, for
sentencing. I found that Williams qualified as a career offender based on his two prior
felony drug trafficking convictions and that his total offense level was 37 with a criminal
history category of VI for an advisory United States Sentencing Guideline range of 360
months to life. I denied both the prosecution’s motion for upward departure and
Williams’s motion for downward variance.
I sentenced Williams to 360 months
imprisonment on each count with the sentences to run concurrent, and 8 years of
supervised release on Count 1 and six years on the other counts, all to run concurrent.
Williams appealed his conviction. On appeal, Williams contended there was insufficient
evidence to sustain the jury’s verdict. On March 5, 2012, the Eighth Circuit Court of
Appeals denied Williams’s appeal. See United States v. Williams, 456 Fed. App’x (8th
Cir. 2012).
B.
The Petitioner’s § 2255 Motion
On March 1, 2013, Williams filed a pro se Motion Under 28 U.S.C. § 2255 To
Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody. In his motion,
Williams contends that his counsel provided him with ineffective assistance in failing:
4
(1) to object to the prosecution’s motion to amend the superseding indictment; (2) to
request an informant instruction; (3) to object to his absence during the replaying of audio
and video evidence by the jury; (4) to object to my allowing the court’s “IT” personnel
to go into the jury room without Williams being present; (5) for allowing video and audio
tapes to go into the jury room; (6) to seek to strike surplusage language from the
superseding indictment; (7) to object to a jury instruction that constructively amended the
superseding indictment; (8) to object to co-conspirator hearsay testimony; (9) to object
to portions of my statement of the case concerning Counts 5 and 6; (10) to have laboratory
receipts removed from the laboratory results prior to that evidence being given to the
jury; (11) to argue claims on appeal; (12) to advise Williams of his rights to speedy trial;
and (13) to address the crack/powder cocaine difference.
After respondent filed its answer, I set a briefing schedule and counsel was
appointed to represent Williams on his § 2255 motion. In his brief, Williams addresses
the merits of only his third and fourth claims. Williams, however, also requests I review
and rule on his first, second, and fifth claims. Williams does not address his other eight
claims nor does he request that I review them. I consider these eight additional claims
of ineffective assistance of counsel waived. Respondent resists each of the grounds that
Williams still seeks relief on. Williams, in turn, filed a timely reply brief.
On February 21, 2014, after the case was fully submitted, Williams moved pro se
to amend his § 2255 motion in order to raise two additional claims of ineffective
assistance of counsel: (1) counsel’s failure to object to the case agent sitting at the
prosecution table during trial, and (2) counsel’s failure to file motions to dismiss the
indictment and superseding indictment because the drug quantity was not alleged in
5
Counts 2, 3, 7, and 8.2 Respondent resists Williams’s motion for leave to amend, arguing
that the amended claims are untimely. In response, Williams filed an untimely reply
brief without leave to do so. I will take up Williams’s motion to amend before addressing
the merits of his § 2255 motion.
II.
LEGAL ANALYSIS
A.
Motion To Amend
Section 2255 proceedings are civil in nature and, therefore, governed by the
Federal Rules of Civil Procedure, see, e.g., Mandacina v. United States, 328 F.3d 995,
1000 & n.3 (8th Cir. 2003), including Rule 15 regarding amendments. I have previously
stated that “the timeliness, or lack thereof, of [a § 2255 petitioner’s amended claims] is
interdependent upon the starting date for the one-year limitation.” United States v. Ruiz–
Ahumada, No. CR02-4054-MWB, 2006 WL 3050807, *2 (N.D. Iowa Oct. 24, 2006);
see also Johnson v. United States, 860 F. Supp. 2d 663, 711 (N.D. Iowa 2012).
Respondent asserts, and Williams does not dispute, that the starting date for the one-year
statute of limitations for his § 2255 motion was June 3, 2012, when his time to seek
review in the United States Supreme Court expired, and that the statute of limitations
expired on June 3, 2013. While Williams’s original § 2255 motion, filed on March 1,
2013, was filed within this one-year limitations period, his proposed amendment to his
§ 2255 motion was not.
I have previously noted that “courts, including the Eighth Circuit Court of
Appeals, have recognized that amendments pursuant to Rules 15(a) or 15(b) in § 2255
cases, offered after the expiration of the § 2255 statute of limitations, are still subject to
2
After the case was fully briefed, Williams’s counsel was permitted to withdraw
because he had accepted employment with a corporation and would no longer be engaged
in private practice.
6
the ‘relation back’ requirements of Rule 15(c).” Johnson, 860 F. Supp. 2d at 711. More
specifically, I have previously observed that “‘an untimely amendment to a § 2255 motion
which, by way of additional facts, clarifies or amplifies a claim or theory in the original
motion may, in the District Court’s discretion, relate back to the date of the original
motion if and only if the original motion was timely filed and the proposed amendment
does not seek to add a new claim or to insert a new theory into the case.’” Ruiz–
Ahumada, 2006 WL 3050807 at *2 (emphasis added) (quoting United States v. Espinoza–
Saenz, 235 F.3d 501, 505 (10th Cir. 2000)). Thus, Williams’s proposed amendment to
his § 2255 motion is only timely if the “new” claims asserted in it “relate back” to the
filing of Williams’s original § 2255 motion. Id.; FED. R. CIV. P. 15(c).
The Eighth Circuit Court of Appeals has explained the requirements for “relation
back,” as follows:
Claims made in an amended motion relate back to the
original motion when the amendment asserts a claim that
arose out of the same “conduct, transaction, or occurrence set
out . . . in the original” motion. Fed. R. Civ. P. 15(c)(1)(B).
To arise out of the same conduct, transaction, or occurrence,
the claims must be “tied to a common core of operative facts.”
Mayle v. Felix, 545 U.S. 644, 664, 125 S. Ct. 2562, 162
L.Ed.2d 582 (2005) (applying Rule 15(c) to a 28 U.S.C.
§ 2254 petition). An amended motion may raise new legal
theories only if the new claims relate back to the original
motion by “aris[ing] out of the same set of facts as [the]
original claims.” Mandacina, 328 F.3d at 1000. The facts
alleged must be specific enough to put the opposing party on
notice of the factual basis for the claim. See [United States v.]
Hernandez, 436 F.3d [851,] 858 [(8th Cir.), cert. denied, 547
U.S. 1172 (2006)] (explaining the rationale for Rule 15(c)).
Thus, it is not enough that both an original motion and an
amended motion allege ineffective assistance of counsel
during a trial. See United States v. Ciampi, 419 F.3d 20, 24
(1st Cir.2005) (“[A] petitioner does not satisfy the Rule 15
‘relation back’ standard merely by raising some type of
7
ineffective assistance in the original petition, and then
amending the petition to assert another ineffective assistance
claim based upon an entirely distinct type of attorney
misfeasance.”), cert. denied, 547 U.S. 1217, 126 S.Ct. 2906,
165 L.Ed.2d 936 (2006). The allegations of ineffective
assistance “must be of the same ‘time and type’ as those in
the original motion, such that they arise from the same core
set of operative facts.” Hernandez, 436 F.3d at 857 (quoting
Mayle, 545 U.S. at 650, 657, 660, 125 S.Ct. 2562 and
holding that ineffective assistance claim alleging that counsel
inadequately cross-examined two witnesses did not relate back
to a claim for ineffective assistance related to counsel's failure
to object to the admission of evidence lacking a proper
foundation); see also Mandacina, 328 F.3d at 1002
(concluding that counsel's alleged failure to investigate the
police report of an interview naming potential suspects was
not a similar type of error as allegedly failing to discover
exculpatory footprints during counsel's investigation of the
case); United States v. Craycraft, 167 F.3d 451, 457 (8th
Cir.1999) (failure to file an appeal is not the same type of
error as failure to seek a downward departure or challenge the
drug type at sentencing).
Dodd v. United States, 614 F.3d 512, 515 (8th Cir. 2010); see also Johnson, 860 F.
Supp. 2d at 713-14 (quoting this passage from Dodd).
The “new” “ineffective assistance” claims in Williams’s proposed amendment to
his § 2255 motion plainly do not “relate back” to the claims in his § 2255 motion under
this standard, because there is no “common core” of facts between the “new” and “old”
claims. Dodd, F.3d at 515. It is not enough that Williams originally asserted “ineffective
assistance” claims, and that the “new” claims are also “ineffective assistance” claims.
Id. Williams’s “new” allegations of ineffective assistance are not “of the same ‘time and
type’ as those in the original motion.”
Id. (internal quotation marks and citations
omitted). None of Williams’s original claims or the limited facts alleged in support of
8
them hint at the factual basis for Williams’s new proposed claims of ineffective assistance
of counsel. Consequently, Williams’s motion to amend is denied.3
B.
Standards For § 2255 Motion
Section 2255 of Title 28 of the United States Code provides as follows:
A prisoner in custody under sentence of a court established
by Act of Congress claiming the right to be released upon the
ground [1] that the sentence was imposed in violation of the
Constitution or laws of the United States, or [2] that the court
was without jurisdiction to impose such sentence, or [3] that
the sentence was in excess of the maximum authorized by law,
or [4] is otherwise subject to collateral attack, may move the
court which imposed the sentence to vacate, set aside or
correct the sentence.
28 U.S.C. § 2255; see Watson v. United States, 493 F.3d 960, 963 (8th Cir. 2007)
(“Under 28 U.S.C. § 2255 a defendant in federal custody may seek post conviction relief
on the ground that his sentence was imposed in the absence of jurisdiction or in violation
of the Constitution or laws of the United States, was in excess of the maximum authorized
by law, or is otherwise subject to collateral attack.”); Bear Stops v. United States, 339
3
Even if I did permit Williams to amend his § 2255 motion to assert these two
additional claims of ineffective assistance of counsel, neither claim warrants relief. First,
federal courts have repeatedly recognized that a case agent for the United States may be
present throughout a trial under Federal Rule of Evidence 615(2) and sit at counsel table.
See United States v. Engelmann, 701 F.3d 874, 877 (8th Cir. 2012); United States v.
Riddle, 193 F.3d 995, 997 (8th Cir. 1999); United States v. Sykes, 977 F.2d 1242, 1245
(8th Cir. 1992); see also United States v. Valencia-Riascos, 696 F.3d 938, 941 (9th Cir.
2012); United States v. Casas, 356 F.3d 104, 126 (1st Cir. 2004). Williams’s second
proposed claim fares no better. “Section § 841(b)(1)(C) contains no threshold drugquantity requirement and, therefore, it was not error to indict him for possessing ‘a
detectable amount’ but omit mention of the specific quantity.” United States v. Gillespie,
436 F.3d 272, 276 (D.C. Cir. 2006).
9
F.3d 777, 781 (8th Cir. 2003) (“To prevail on a § 2255 motion, the petitioner must
demonstrate a violation of the Constitution or the laws of the United States.”). Thus, a
motion pursuant to § 2255 “is ‘intended to afford federal prisoners a remedy identical in
scope to federal Habeas corpus.’” United States v. Wilson, 997 F.2d 429, 431 (8th Cir.
1993) (quoting Davis v. United States, 417 U.S. 333, 343 (1974)); accord Auman v.
United States, 67 F.3d 157, 161 (8th Cir. 1995) (quoting Wilson).
One “well established principle” of § 2255 law is that “‘[i]ssues raised and decided
on direct appeal cannot ordinarily be relitigated in a collateral proceeding based on 28
U.S.C. § 2255.’” Theus v. United States, 611 F.3d 441, 449 (8th Cir. 2010) (quoting
United States v. Wiley, 245 F.3d 750, 752 (8th Cir. 2001)); Bear Stops, 339 F.3d at 780.
One exception to that principle arises when there is a “miscarriage of justice,” although
the Eighth Circuit Court of Appeals has “recognized such an exception only when
petitioners have produced convincing new evidence of actual innocence,” and the
Supreme Court has not extended the exception beyond situations involving actual
innocence. Wiley, 245 F.3d at 752 (citing cases, and also noting that “the Court has
emphasized the narrowness of the exception and has expressed its desire that it remain
‘rare’ and available only in the ‘extraordinary case.’” (citations omitted)). Just as § 2255
may not be used to relitigate issues raised and decided on direct appeal, it also ordinarily
“is not available to correct errors which could have been raised at trial or on direct
appeal.” Ramey v. United States, 8 F.3d 1313, 1314 (8th Cir. 1993) (per curiam).
“Where a defendant has procedurally defaulted a claim by failing to raise it on direct
review, the claim may be raised in Habeas only if the defendant can first demonstrate
either cause and actual prejudice, or that he is actually innocent.” Bousley v. United
States, 523 U.S. 614, 622 (1998) (internal quotations and citations omitted).
“Cause and prejudice” to resuscitate a procedurally defaulted claim may include
ineffective assistance of counsel, as defined by the Strickland test, discussed below.
10
Theus, 611 F.3d at 449. Indeed, Strickland claims are not procedurally defaulted when
brought for the first time pursuant to § 2255, because of the advantages of that form of
proceeding for hearing such claims. Massaro v. United States, 538 U.S. 500 (2003).
Otherwise, “[t]he Supreme Court recognized in Bousley that ‘a claim that “is so novel
that its legal basis is not reasonably available to counsel” may constitute cause for a
procedural default.’” United States v. Moss, 252 F.3d 993, 1001 (8th Cir. 2001) (quoting
Bousley, 523 U.S. at 622, with emphasis added, in turn quoting Reed v. Ross, 468 U.S.
1, 16 (1984)). The “actual innocence” that may overcome either procedural default or
allow relitigation of a claim that was raised and rejected on direct appeal is a
demonstration “‘that, in light of all the evidence, it is more likely than not that no
reasonable juror would Have convicted [the petitioner].’” Johnson v. United States, 278
F.3d 839, 844 (8th Cir. 2002) (quoting Bousley, 523 U.S. at 623); see also House v.
Bell, 547 U.S. 518, 536-37 (2006). “‘This is a strict standard; generally, a petitioner
cannot show actual innocence where the evidence is sufficient to support a [conviction on
the challenged offense].’” Id. (quoting McNeal v. United States, 249 F.3d 747, 749-50
(8th Cir. 2001)).
With these standards in mind, I turn to analysis of Williams’s claims for § 2255
relief.
C.
Procedural Matter
Even though ineffective assistance of counsel claims may be raised on a § 2255
motion, because of the advantages of that form of proceeding for hearing such claims,
see Massaro v. United States, 538 U.S. 500, 509, that does not mean that an evidentiary
hearing is required for every ineffective assistance claim presented in a § 2255 motion.
A district court may not “grant a prisoner § 2255 relief without resolving outstanding
factual disputes against the government.” Grady v. United States, 269 F.3d 913, 919
11
(8th Cir. 2001) (emphasis in original). Where a motion raises no disputed questions of
fact, however, no hearing is required. See United States v. Meyer, 417 F.2d 1020, 1024
(8th Cir. 1969). In this case, I conclude that no evidentiary hearing is required on any
issue because the motion and the record conclusively show that Williams is entitled to no
relief.
D.
1.
Ineffective Assistance Of Counsel
Applicable standards
The Sixth Amendment to the United States Constitution provides that “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of
Counsel for his defence.” U.S. CONST. amend. VI. Thus, a criminal defendant is
constitutionally entitled to the effective assistance of counsel both at trial and on direct
appeal. Evitts v. Lucey, 469 U.S. 387, 396 (1985); Bear Stops, 339 F.3d at 780; see
also Steele v United States, 518 F.3d 986, 988 (8th Cir. 2008). The Eighth Circuit Court
of Appeals has recognized that, if a defendant was denied the effective assistance of
counsel guaranteed by the Sixth Amendment, “then his sentence was imposed ‘in
violation of the Constitution,’ . . . and he is entitled to relief” pursuant to § 2255(a).
King v. United States, 595 F.3d 844, 852 (8th Cir. 2010). Both the Supreme Court and
the Eighth Circuit Court of Appeals have expressly recognized that a claim of ineffective
assistance of counsel should be raised in a § 2255 proceeding, rather than on direct
appeal, because such a claim often involves facts outside of the original record. See
Massaro, 538 U.S. at 504-05 (2003); United States v. Hughes, 330 F.3d 1068, 1069 (8th
Cir. 2003) (“When claims of ineffective assistance of trial counsel are asserted on direct
appeal, we ordinarily defer them to 28 U.S.C. § 2255 proceedings.”).
The Supreme Court has reiterated that “‘the purpose of the effective assistance
guarantee of the Sixth Amendment is not to improve the quality of legal representation .
12
. . [but] simply to ensure that criminal defendants receive a fair trial.’” Cullen v.
Pinholster, 131 S. Ct. 1388, 1403 (2011) (quoting Strickland v. Washington, 466 U.S.
668, 689 (1984)). That being the case, “‘[t]he benchmark for judging any claim of
ineffectiveness must be whether counsel’s conduct so undermined the proper functioning
of the adversarial process that the trial cannot be relied on as having produced a just
result.’” Id. (quoting Strickland, 466 U.S. at 686, with emphasis added). To assess
counsel’s performance against this benchmark, the Supreme Court developed in
Strickland a two-pronged test requiring the petitioner to show “both deficient
performance by counsel and prejudice.” See Strickland, 466 U.S. at 687-88, 697; see
also Knowles v. Mirzayance, 556 U.S. 111, 129 S. Ct. 1411, 1419 (2009). “‘Unless a
defendant makes both showings, it cannot be said that the conviction . . . resulted from
a breakdown in the adversary process that renders the result unreliable.’” Gianakos v.
United States, 560 F.3d 817, 821 (8th Cir. 2009) (quoting Strickland, 466 U.S. at 687).
Although the petitioner must prove both prongs of the Strickland analysis to prevail, the
Supreme Court does not necessarily require consideration of both prongs of the Strickland
analysis in every case, nor does it require that the prongs of the Strickland analysis be
considered in a specific order. As the Court explained in Strickland,
Although we have discussed the performance
component of an ineffectiveness claim prior to the prejudice
component, there is no reason for a court deciding an
ineffective assistance claim to approach the inquiry in the
same order or even to address both components of the inquiry
if the defendant makes an insufficient showing on one. In
particular, a court need not determine whether counsel’s
performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged
deficiencies. The object of an ineffectiveness claim is not to
grade counsel’s performance. If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient
13
prejudice, which we expect will often be so, that course
should be followed.
Strickland, 466 U.S. at 697 (emphasis added).4
I will consider the two prongs of the Strickland analysis in a little more detail,
before analyzing Williams’s claims.
a.
Strickland’s “deficient performance” prong
“The performance prong of Strickland requires a defendant to show ‘“that
counsel’s representation fell below an objective standard of reasonableness.”’” Lafler,
132 S. Ct. at 1384 (quoting Hill v. Lockart, 474 U.S. 52, 57 (1985), in turn quoting
Strickland, 466 U.S. at 688); Richter, 131 S. Ct. at 787 (quoting Strickland, 466 U.S. at
688). To put it another way, “[t]he challenger’s burden is to show ‘that counsel made
errors so serious that counsel was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment.’” Richter, 131 S. Ct. at 787 (quoting Strickland,
466 U.S. at 687)).
In evaluating counsel’s performance, the reviewing court must not overlook “‘the
constitutionally protected independence of counsel and . . . the wide latitude counsel must
4
Although the Court in Strickland found that it was only necessary to consider the
“prejudice” prong, so that it did not reach the “deficient performance” prong, the Eighth
Circuit Court of Appeals has repeatedly held that it need not consider the “prejudice”
prong, if it determines that there was no “deficient performance.” See, e.g., Gianakos
v. United States, 560 F.3d 817, 821 (8th Cir. 2009) (“‘We need not inquire into the
effectiveness of counsel, however, if we determine that no prejudice resulted from
counsel’s alleged deficiencies.” (quoting Hoon v. Iowa, 313 F.3d 1058, 1061 (8th Cir.
2002), in turn citing Strickland, 466 U.S. at 697)); Ringo v. Roper, 472 F.3d 1001, 1008
(8th Cir. 2007) (“Because we believe that the Missouri Supreme Court did not
unreasonably apply Strickland when it determined that counsel’s decision not to call Dr.
Draper fell within the wide range of reasonable professional assistance, we need not
consider whether counsel’s decision prejudiced Mr. Ringo’s case.”); Osborne v. Purkett,
411 F.3d 911, 918 (8th Cir. 2005) (“Because Osborne did not satisfy the performance
test, we need not consider the prejudice test.”).
14
have in making tactical decisions.’” Cullen, 131 S. Ct. at 1406 (quoting Strickland, 466
U.S. at 589). Thus,
[b]eyond the general requirement of reasonableness, “specific
guidelines are not appropriate.” [Strickland, 466 U.S.], at
688, 104 S. Ct. 2052. “No particular set of detailed rules for
counsel’s conduct can satisfactorily take account of the variety
of circumstances faced by defense counsel or the range of
legitimate decisions ....” Id., at 688–689, 104 S. Ct. 2052.
Strickland itself rejected the notion that the same investigation
will be required in every case. Id., at 691, 104 S. Ct. 2052
(“[C]ounsel has a duty to make reasonable investigations or
to make a reasonable decision that makes particular
investigations unnecessary” (emphasis added)). It is “[r]are”
that constitutionally competent representation will require
“any one technique or approach.” Richter, 562 U.S., at ––––
, 131 S. Ct., at 779.
Cullen, 131 S. Ct. at 1406-07.
The Strickland standard of granting latitude to counsel also requires that counsel’s
decisions must be reviewed in the context in which they were made, without “the
distortions and imbalance that can inhere in a hindsight perspective.” Premo v. Moore,
131 S. Ct. 733, 741 (2011); see also id. at 745 (reiterating that “hindsight cannot suffice
for relief when counsel’s choices were reasonable and legitimate based on predictions of
how the trial would proceed” (citing Richter, 131 S. Ct. 770)); Rompilla v. Beard, 545
U.S. 374, 381 (2005) (“In judging the defense’s investigation, as in applying Strickland
generally, hindsight is discounted by pegging adequacy to ‘counsel’s perspective at the
time’ investigative decisions are made, 466 U.S., at 689, 104 S. Ct. 2052, and by giving
a ‘heavy measure of deference to counsel’s judgments,’ id., at 691, 104 S. Ct. 2052.”).
This is so, because “[u]nlike a later reviewing court, the attorney observed the relevant
proceedings, knew of materials outside the record, and interacted with the client, with
opposing counsel, and with the judge,” and because “[i]t is ‘all too tempting’ to ‘second15
guess counsel’s assistance after conviction or adverse sentence.’” Richter, 131 S. Ct. at
788 (quoting Strickland, 466 U.S. at 689, and also citing Bell v. Cone, 535 U.S. 685,
702 (2002), and Lockhart v. Fretwell, 506 U.S. 364, 372 (1993)). In short, “[t]he
question is whether an attorney’s representation amounted to incompetence under
‘prevailing professional norms,’ not whether it deviated from best practices or most
common custom.” Id. (quoting Strickland, 466 U.S. at 690). Furthermore,
Strickland specifically commands that a court “must indulge
[the] strong presumption” that counsel “made all significant
decisions in the exercise of reasonable professional
judgment.” 466 U.S., at 689–690, 104 S. Ct. 2052. The
[reviewing court] [i]s required not simply to “give [the]
attorneys the benefit of the doubt,” but to affirmatively
entertain the range of possible “reasons [trial] counsel may
have had for proceeding as they did.”
Cullen, 131 S. Ct. at 1407 (internal citations to the lower court opinion omitted); Richter,
131 S. Ct. at 787 (“A court considering a claim of ineffective assistance must apply a
‘strong presumption’ that counsel’s representation was within the ‘wide range” of
reasonable professional assistance.’” (quoting Strickland, 466 U.S. at 689)).
b.
Strickland’s “prejudice” prong
“To establish Strickland prejudice a defendant must ‘show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.’” Lafler, 132 S. Ct. at 1384 (quoting Strickland,
466 U.S. at 694).
The Court has explained more specifically what a “reasonable
probability” means:
“A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” [Strickland, 466 U.S.
at 694]. That requires a “substantial,” not just “conceivable,”
likelihood of a different result. Richter, 562 U.S., at ––––,
131 S. Ct., at 791.
16
Cullen, 131 S. Ct. at 1403. Ultimately, a showing of “prejudice” requires counsel’s
errors to be “‘so serious as to deprive the defendant of a fair trial, a trial whose result is
reliable.’” Richter, 131 S. Ct. at 787-88 (quoting Strickland, 466 U.S. at 687).
2.
Failure to object to motion to amend the superseding indictment
Williams alleges that his counsel provided ineffective assistance by failing to object
to the prosecution’s motion to amend the superseding indictment. Respondent argues that
Williams’s counsel’s actions were not deficient and did not prejudice Williams. I agree.
On January 28, 2011, the prosecution moved to amend the superseding indictment
to cure clerical errors in the conspiracy charge in Count 1 of the Superseding Indictment.
Specifically, the prosecution sought to change the time frame of the alleged conspiracy
to read “from about January 2010, and continuing through about August 2010,” to change
the quantity of drugs alleged to read “28 grams or more,” and to change the related code
section to read “21 U.S.C. § 841(b)(1)(B).” These were the same terms found in the
original indictment.
Williams’s counsel discussed the prosecution’s motion with
Williams and explained the proposed changes to the superseding indictment that the
prosecution sought in its motion. It was Williams’s counsel’s professional opinion that
Williams would not be prejudiced by correcting the clerical errors and that resubmitting
the case to the grand jury could possibly delay the trial, which Williams did not want. I
conclude that Williams’s counsel’s actions were not deficient. Moreover, even if I
assume, arguendo, that Williams’s counsel’s actions were deficient, Williams has not
established that he was prejudiced. The amendment to Count 1 merely corrected clerical
errors. Even if Williams’s counsel had successfully opposed the prosecution’s motion,
the prosecution would have been free to seek a second superseding indictment to restore
Count 1 to the same terms found in the original indictment. Additionally, the amendment
lowered the alleged drug quantity from 50 grams to 28 grams, as set out in the original
indictment, and changed the related code section to § 841(b)(1)(B). Thus, the amendment
17
lowered the mandatory minimum sentence Williams faced from 10 years imprisonment
to five years imprisonment. In sum, Williams has failed to satisfy both the deficient
performance prong and prejudice prong of Strickland and this claim is denied.
3.
Failure to request an informant instruction
Williams also alleges that his counsel was ineffective in failing to request an
“informant” jury instruction. The respondent responds that my final jury instructions
included an instruction regarding cooperating witnesses. The respondent is correct. My
Final Instruction No. 10, concerning testimony of witnesses, provided in relevant part:
You must consider the testimony of the following
witnesses with greater caution and care:
●
agreement.
A witness testifying pursuant to a plea
•
You may give this testimony as
much weight as you think it deserves
•
Whether or not the witness’s
testimony has been influenced by the plea
agreement is for you to decide
•
The plea agreement may be a
“cooperation” plea agreement that provides that
the prosecution may recommend a less severe
sentence if the prosecutor believes that the
witness has provided “substantial assistance”
•
The court cannot reduce a
sentence for “substantial assistance” unless the
prosecution asks the court to do so, but if the
prosecution does ask, the court decides if and
how much to reduce the witness’s sentence
●
A witness testifying about participation
in a charged crime.
•
You may give this testimony as
much weight as you think it deserves
18
•
Whether or not the witness’s
testimony has been influenced by the witness’s
desire to please the prosecutor or to strike a
good bargain is for you to decide
It is your exclusive right to give any witness’s
testimony whatever weight you think it deserves.
Final Jury Instruction No. 10. Because this instruction incorporates the essence
of the “informant” instruction Williams believes should have been requested by his
counsel, such a request would have been totally superfluous. Williams has failed to
satisfy both prongs of the Strickland test on this claim and it is denied.
4.
Failure to object to Williams’s absence during the jury’s
replaying of recordings
Williams further claims that his trial counsel provided ineffective assistance of
counsel by failing to object to Williams’s absence when the jury replayed audio and video
recordings during their deliberations. Williams argues that the replaying of the audio
and video recordings outside of his presence violated his Fifth Amendment right to be
present for critical stages of trial and Federal Rule of Criminal Procedure 43.
A defendant has a fundamental right to be present at all critical stages of trial. See
Rushen v. Spain, 463 U.S. 114, 117 (1983); see also Kentucky v. Stincer, 482 U.S. 730,
745 (1987) (“[A] defendant is guaranteed the right to be present at any stage of the
criminal proceeding that is critical to its outcome if his presence would contribute to the
fairness of the procedure.”). “‘A criminal defendant's right to be present at every stage
of a criminal trial is rooted, to a large extent, in the Confrontation Clause of the Sixth
Amendment and is protected to some extent by the Due Process Clause of the Fifth and
Fourteenth Amendments.’” United States v. Picardi, 739 F.3d 1118, 1123 (8th Cir.
2014) (quoting United States v. Smith, 230 F.3d 300, 309 (7th Cir. 2000) (internal citation
19
omitted)). Williams bases his argument on Ninth Circuit case law holding that “a
defendant has a right to be present when tape-recorded conversations are replayed to a
jury during its deliberations.” United States v. Félix–Rodríguez, 22 F.3d 964, 967 (9th
Cir. 1994). However, there is a circuit split on this issue. In United States v. Holton,
116 F.3d 1536 (D.C. Cir. 1997), the District of Columbia Circuit Court of Appeals
rejected defendants' constitutional arguments that the trial court erred in allowing the jury
to listen to the replaying of taped evidence during jury deliberations. Id. at 1546. In so
ruling, the court relied upon its own prior decision in United States v. Sobamowo, 892
F.2d 90 (D.C. Cir. 1989). In Sobamowo, Justice, then Judge, Ruth Bader Ginsburg
concluded that “the tape replaying [for the jury during deliberations is] not a stage of trial
implicating the confrontation clause or Rule 43(a).” Id. at 96 (citing Dallago v. United
States, 427 F.2d 546, 552–53 (D.C. Cir. 1969) (holding that defendant's presence is not
required when exhibits are submitted to the jury during deliberations)). The Tenth Circuit
Court of Appeals also relied upon the Sobamowo decision in Valdez v. Gunter, 988 F.2d
91, 94 (10th Cir. 1993). In Valdez, the court held that defendant's due process rights
were not violated when part of audiotape admitted in evidence was replayed for jury
during their deliberations without defendant being present, noting that “[t]he only
evidence the jury actually was allowed to consider was the part of the tape it had already
heard during the trial when petitioner was present.” Id. Most recently, the First Circuit
Court of Appeals weighed in on the issue in United States v. Monserrate-Valentin, 729
F.3d 31 (1st Cir. 2013). In Monserrate-Valentin, after reviewing the decisions of both
the Ninth Circuit Court of Appeals and the District of Columbia Circuit Court of Appeals,
the First Circuit Court of Appeals held that the replaying of recordings to the jury outside
of the defendants’ presence did not violate the Confrontation or Due Process Clauses or
Rule 43, given the procedural safeguards employed by the district court. Id. at 59. The
court observed:
20
We fail to see how these types of recordings are any
different from the other types of documentary evidence that
are routinely reviewed by jurors during their deliberations.
See Dallago v. United States, 427 F.2d 546, 553 (D.C. Cir.
1969) (“The jurors, at some time prior to verdict, are entitled
to examine the documents admitted in evidence, and their
examination in the jury room during deliberations is a matter
within the sound discretion of the trial court.”). In fact, trial
courts around the country often provide juries with admitted
tape recordings and transcripts before they begin deliberating.
See, e.g., United States v. Walker, 205 F.3d 1327 (2d Cir.
2000) (“This court has long held that a jury's review during
its deliberations of a trial transcript is not a stage of the trial
requiring the defendant's presence and that physical evidence,
such as a tape, is routinely sent into the jury room for
inspection by jurors outside the presence of the court.”)
(internal citations and quotation marks omitted)
(unpublished); United States v. Hofer, 995 F.2d 746, 748 (7th
Cir.1993) (reviewing district court's decision to allow
exhibits into the jury room for abuse of discretion and noting
that said discretion is “not limited when the exhibits are audio
tape recordings”). Therefore, appellants have failed to
persuade us that a mere playback to the jury of an admitted
recording is a stage of the trial implicating a defendant's rights
under the Confrontation Clause.
Id.
Williams has not cited any binding authority, and I am unaware of any decision
by the Eighth Circuit Court of Appeals, holding that replay of audio or video evidence
to a jury during its deliberations is a critical stage of the trial triggering a criminal
defendant's fundamental right to be present. The Eighth Circuit Court of Appeals,
however, has repeatedly held that “[t]he trial court has ‘considerable discretion’ to send
exhibits to the jury during its deliberation, and the court's determination will not be
reversed on appeal unless it has abused its discretion.” United States v. Placensia, 352
F.3d 1157, 1165 (8th Cir. 2003) (quoting United States v. Williams, 87 F.3d 249, 255
21
(8th Cir. 1996) (quotation marks omitted)); see United States v. Venerable, 807 F.2d
745, 747 (8th Cir. 1986); United States v. Robinson, 774 F.2d 261, 275 (8th Cir. 1985).
Because a constitutional right to presence at a replay of audio or video evidence by the
jury is not clearly established, Williams’s counsel was not deficient by failing to object
to Williams’s absence when the jury replayed audio and video recordings during their
deliberations. Thus, this claim is also denied.
5.
Failure to object to the presence of the court’s “IT” person to go
to the jury room without Williams being present
Williams makes a closely related claim that his counsel was ineffective in failing
to object to the presence of the court’s “IT” person being permitted to go to the jury
room without him being present. Williams’s counsel did not object to my permitting the
court’s own computer technician to go to the jury room to explain how to operate the
laptop computer for several reasons. First, Williams’s counsel was aware that I had
given the computer technician clear and concise instructions to spend as little time as
possible in the jury room and was to only instruct the jury on how to run the laptop.
Second, the computer technician had no knowledge of the case and had not participated
in the trial. Third, Williams’s counsel was also aware the computer technician was not
associated with law enforcement, and, in Williams’s counsel’s opinion, would not in any
way influence the jury. Given these circumstances, Williams’s counsel was not deficient
by failing to object to Williams’s absence when the court’s computer technician went to
the jury room.
Williams has also not established that he was prejudiced by his counsel’s failure
to object. On April 5, 2011, Williams’s counsel interviewed the court’s computer
technician regarding what occurred when he assisted the jury. Williams’s counsel was
told that the computer technician set up a stripped down laptop computer outside of the
jury’s presence. He then notified the jury and they picked one juror to run the laptop.
22
That juror came in for instruction. The computer technician made sure the video came
up on the computer and then left the room without watching the video. The computer
technician estimated that he spent less than one minute in the juror’s presence. Williams
does not dispute that the computer technician never discussed Williams’s case with any
member of the jury. Accordingly, Williams has failed to satisfy both prongs of the
Strickland test on this claim and it is denied.
6.
Failure to object to the court allowing “unplayed” video and
audio tapes to go to the jury room
Williams claims that certain tapes that were not played in open court were
permitted to be sent to the jury room for viewing without objection. Specifically, he
contends that exhibits 1C and 1E were sent to the jury room. This allegation is without
any factual support in the record. The court’s witness and exhibit list does not list exhibits
1C and 1E as being admitted into evidence. See Witness & Exhibit List at 1-2 (docket
no. 256 in CR10-4083). Only admitted evidence was sent to the jury. Nothing in the
trial record even remotely supports Williams’s claim that non-admitted evidence was
provided to the jury. Williams’s trial counsel declares in his affidavit that he is unaware
of any non-admitted video or audio tapes being given to the jury. Because Williams has
failed to establish an underlying factual basis for this claim, it is also denied.
E.
Certificate of Appealability
Williams must make a substantial showing of the denial of a constitutional right in
order to be granted a certificate of appealability in this case. See Miller-El v. Cockrell,
537 U.S. 322 (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. Bowersox, 149 F.3d 749 (8th Cir. 1998); Cox v.
Norris, 133 F.3d 565, 569 (8th Cir. 1997). “A substantial showing is a showing that
23
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 v. Cockrell 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.’” 537
U.S. at 338 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). I determine that
Williams’s motion does not present questions of substance for appellate review, and
therefore, does not make the requisite showing to satisfy § 2253(c). See 28 U.S.C. §
2253(c)(2); FED. R. APP. P. 22(b). Accordingly, with respect to Williams’s claims, I do
not grant a certificate of appealability pursuant to 28 U.S.C. § 2253(c). Should Williams
wish to seek further review of his petition, he may request a certificate of appealability
from a judge of the United States Court of Appeals for the Eighth Circuit. See Tiedman
v. Benson, 122 F.3d 518, 520-22 (8th Cir. 1997).
III.
CONCLUSION
For the reasons discussed above, Williams’s Motion under 28 U.S.C. § 2255 is
denied in its entirety. This case is dismissed. No certificate of appealability will issue
for any claim or contention in this case.
IT IS SO ORDERED.
DATED this 13th day of August, 2014.
______________________________________
MARK W. BENNETT
U.S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA
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