Tinder v. United States of America
Filing
25
ORDER denying 1 Pro Se Motion to Vacate, Set Aside or Correct Sentence (2255) (Criminal Action 08cr2006) and 7 Pro Se Motion to Amend/Supplement 1 Pro Se Motion to Vacate, Set Aside or Correct Sentence (2255) (Criminal Action 08cr2006) filed by Angelique Tinder. A certificate of appealability is denied. Signed by Chief Judge Linda R Reade on 12/27/2011 (copy w/NEF to Plt via US Mail). (skm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
EASTERN DIVISION
ANGELIQUE TINDER,
Movant,
No. C09-2030-LRR
No. CR08-2006-LRR
vs.
UNITED STATES OF AMERICA.
ORDER
____________________________
This matter appears before the court on Angelique Tinder’s motion to vacate, set
aside or correct sentence pursuant to 28 U.S.C. § 2255 (docket nos. 1 & 7). On June 22,
2009 and June 1, 2010, Angelique Tinder (“the movant”) filed her 28 U.S.C. § 2255
motion. On March 10, 2011, the court directed the government to respond to the movant’s
claims (docket no. 13). On June 9, 2011, the government complied with the court’s order
by filing a resistance (docket no. 20). On June 27, 2011, the movant filed a reply (docket
no. 21). The court now turns to consider the movant’s motion pursuant to 28 U.S.C. §
2255.
A district court is given discretion in determining whether to hold an evidentiary
hearing on a motion under 28 U.S.C. § 2255. See United States v. Oldham, 787 F.2d 454,
457 (8th Cir. 1986). In exercising that discretion, the district court must determine
whether the alleged facts, if true, entitle the movant to relief. See Payne v. United States,
78 F.3d 343, 347 (8th Cir. 1996). “Accordingly, [a district court may summarily dismiss
a motion brought under 28 U.S.C. § 2255 without an evidentiary hearing] if (1) the . . .
allegations, accepted as true, would not entitle the [movant] to relief, or (2) the allegations
cannot be accepted as true because they are contradicted by the record, inherently
incredible, or conclusions rather than statements of fact.” Engelen v. United States, 68
F.3d 238, 240-41 (8th Cir. 1995) (citations omitted); see also Delgado v. United States,
162 F.3d 981, 983 (8th Cir. 1998) (stating that an evidentiary hearing is unnecessary
where allegations, even if true, do not warrant relief or allegations cannot be accepted as
true because they are contradicted by the record or lack factual evidence and rely on
conclusive statements); United States v. Hester, 489 F.2d 48, 50 (8th Cir. 1973) (stating
that no evidentiary hearing is necessary where the files and records of the case demonstrate
that relief is unavailable or where the motion is based on a question of law). Stated
differently, a 28 U.S.C. § 2255 motion can be dismissed without a hearing where “the files
and records of the case conclusively show that the prisoner is entitled to no relief.” 28
U.S.C. § 2255; see also Standing Bear v. United States, 68 F.3d 271, 272 (8th Cir. 1995)
(per curiam).
The court concludes that it is able to resolve the movant’s claims from the record.
See Rogers v. United States, 1 F.3d 697, 699 (8th Cir. 1993) (holding “[a]ll of the
information that the court needed to make its decision with regard to [the movant’s] claims
was included in the record . . . .” and, therefore, the court “was not required to hold an
evidentiary hearing”) (citing Rule Governing Section 2255 Proceedings 8(a) and United
States v. Raddatz, 447 U.S. 667, 674, 100 S. Ct. 2406, 65 L. Ed. 2d 424 (1980)). The
evidence of record conclusively demonstrates that the movant is not entitled to the relief
sought. Specifically, the record indicates that the movant’s claims are without merit and/or
procedurally barred. As such, the court finds that there is no need for an evidentiary
hearing.
With respect to the merits of the movant’s claims, the court deems it appropriate to
deny the movant’s 28 U.S.C. § 2255 motion for the reasons stated in the government’s
resistance. The government’s brief adequately sets forth the law that is applicable to the
facts in the movant’s case. Specifically, the government correctly relied on defense
counsel’s affidavit and concluded that he provided professional and effective assistance to
the movant and the movant suffered no prejudice as a result of counsel’s actions. And, the
government correctly points out that several of the movant’s contentions regarding the
2
sentence that the court calculated and imposed are procedurally barred because they should
have been raised on direct appeal.
Moreover, the court thoroughly reviewed the record and finds that the denial of the
movant’s 28 U.S.C. § 2255 motion results in no “miscarriage of justice” and is consistent
with the “rudimentary demands of fair procedure.” Hill v. United States, 368 U.S. 424,
428, 82 S. Ct. 468, 7 L. Ed. 2d 417 (1962); see also United States v. Apfel, 97 F.3d 1074,
1076 (8th Cir. 1996) (“Relief under 28 U.S.C. § 2255 is reserved for transgressions of
constitutional rights and for a narrow range of injuries that could not have been raised for
the first time on direct appeal and, if uncorrected, would result in a complete miscarriage
of justice.” (citing Poor Thunder v. United States, 810 F.2d 817, 821 (8th Cir. 1987))).
The court concludes that: (1) the record establishes that no prosecutorial misconduct
occurred, that is, the government did not knowingly rely on perjured testimony; (2)
nothing the movant points to indicates or suggests that there is a reasonable likelihood that
the jury’s verdicts would have changed; (3) the defense had access to the government’s
discovery file and no new, relevant and exculpatory information has been discovered; (4)
the defense adequately called into question or challenged the testimony of the government’s
witnesses; and (5) the jury appropriately weighed conflicting and/or inconsistent testimony
before reaching its verdicts. Further, the court finds that the movant’s assertions that the
court erred when it sentenced her are procedurally defaulted because the movant failed to
raise them on direct appeal. See McNeal v. United States, 249 F.3d 747, 749 (8th Cir.
2001) (discussing when claims are procedurally defaulted); United States v. Samuelson,
722 F.2d 425, 427 (8th Cir. 1983) (concluding that a collateral proceeding is not a
substitute for a direct appeal and refusing to consider matters which could have been raised
on direct appeal). Alternatively, the court finds that no sentencing error occurred. The
court correctly calculated the movant’s advisory sentencing guideline range after
considering the parties arguments, treated the sentencing guidelines as advisory, considered
the factors under 3553(a) and sentenced the movant to an appropriate term of
3
imprisonment, that is, a sentence that is sufficient but not greater than necessary to
accomplish the goals of sentencing.
Before it imposed a total term of 63 months
imprisonment, imposed a one year term of supervised release, ordered a special assessment
of $100 per count for a total of $3,100 under 18 U.S.C. § 3013(a)(2)(A) and ordered
restitution in the amount of $1,085 to nineteen different victims as a special condition of
her supervised release, the court fully addressed the movant’s base offense level, whether
her conduct involved sophisticated means, whether restitution could be ordered under 18
U.S.C. § 3663 because her offenses of conviction are under 26 U.S.C. § 7206, whether
restitution based on relevant conduct could be ordered because her offenses of conviction
did not involve a scheme, conspiracy or pattern, whether a downward departure would be
appropriate and other sentencing issues. The movant’s misstatements regarding base
offense level, relevant conduct, tax loss, safety valve, statutory maximums and Apprendi
do not provide a basis for relief. Lastly, the court concludes that the conduct of counsel
fell within a wide range of reasonable professional assistance, Strickland v. Washington,
466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and counsel’s performance
did not prejudice the movant’s defense, id. at 692-94. Considering all the circumstances
and refraining from engaging in hindsight or second-guessing counsel’s strategic decisions,
the court finds that the record belies the movant’s claims and no violation of the movant’s
constitutional right to counsel occurred. Nothing the movant states in support of her
request for relief leads the court to conclude that a violation of the Sixth Amendment
occurred.
The movant’s assumptions about defense counsel’s health issues and
unsupported beliefs about what counsel should have done at trial or at sentencing do not
establish a constitutional violation, especially considering the evidence admitted against her
during trial and the conduct of the parties throughout the case.
In sum, the alleged errors that are asserted by the movant do not warrant relief
under 28 U.S.C. § 2255.
The movant’s claims are without merit or procedurally
defaulted. Based on the foregoing, the movant’s 28 U.S.C. § 2255 motion shall be denied.
4
In a 28 U.S.C. § 2255 proceeding before a district judge, the final order is subject
to review, on appeal, by the court of appeals for the circuit in which the proceeding is
held. See 28 U.S.C. § 2253(a). Unless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken to the court of appeals. See 28 U.S.C. §
2253(c)(1)(A). A district court possesses the authority to issue certificates of appealability
under 28 U.S.C. § 2253(c) and Fed. R. App. P. 22(b). See Tiedeman v. Benson, 122 F.3d
518, 522 (8th Cir. 1997). Under 28 U.S.C. § 2253(c)(2), a certificate of appealability
may issue only if a movant has made a substantial showing of the denial of a constitutional
right. See Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S. Ct. 1029, 1039, 154 L.
Ed. 2d 931 (2003); Garrett v. United States, 211 F.3d 1075, 1076-77 (8th Cir. 2000);
Carter v. Hopkins, 151 F.3d 872, 873-74 (8th Cir. 1998); Cox v. Norris, 133 F.3d 565,
569 (8th Cir. 1997); Tiedeman, 122 F.3d at 523. To make such a showing, the issues
must be debatable among reasonable jurists, a court could resolve the issues differently,
or the issues deserve further proceedings. Cox, 133 F.3d at 569 (citing Flieger v. Delo,
16 F.3d 878, 882-83 (8th Cir. 1994)); see also Miller-El, 537 U.S. at 335-36 (reiterating
standard).
Courts reject constitutional claims either on the merits or on procedural grounds.
“‘[W]here a district court has rejected the constitutional claims on the merits, the showing
required to satisfy [28 U.S.C.] § 2253(c) is straightforward: the [movant] must
demonstrate that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.’” Miller-El, 537 U.S. at 338 (quoting Slack v.
McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595, 146 L. Ed. 2d 542 (2000)). When a
federal habeas petition is dismissed on procedural grounds without reaching the underlying
constitutional claim, “the [movant must show], at least, that jurists of reason would find
it debatable whether the petition states a valid claim of the denial of a constitutional right
and that jurists of reason would find it debatable whether the district court was correct in
its procedural ruling.” See Slack, 529 U.S. at 484.
5
Having thoroughly reviewed the record in this case, the court finds that the movant
failed to make the requisite “substantial showing” with respect to the claims that she raised
in her 28 U.S.C. § 2255 motion. See 28 U.S.C. § 2253(c)(2); Fed. R. App. P. 22(b).
Because she does not present a question of substance for appellate review, there is no
reason to grant a certificate of appealability. Accordingly, a certificate of appealability
shall be denied. If she desires further review of her 28 U.S.C. § 2255 motion, the movant
may request issuance of the certificate of appealability by a circuit judge of the Eighth
Circuit Court of Appeals in accordance with Tiedeman, 122 F.3d at 520-22.
IT IS THEREFORE ORDERED:
1) The movant’s 28 U.S.C. § 2255 motion (docket nos. 1 & 7) is denied.
2) A certificate of appealability is denied.
DATED this 27th day of December, 2011.
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?