Sparkman v. United States of America
Filing
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OPINION MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the Motion to Vacate, Set aside or Correct Sentence, [Doc. 1], is DENIED. IT IS FURTHER ORDERED that this Court will not issue a Certificate of Appealability as Movant has not made a substantial showing of the denial of a federal constitutional right.A separate judgment is entered this same date. Signed by District Judge Henry E. Autrey on 8/22/2012. (JMC)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
GREGORY ALLEN SPARKMAN,
Movant,
vs.
UNITED STATES OF AMERICA,
Respondent.
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No. 1:09CV11 HEA
OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Movant’s Motion under 28 U.S.C. § 2255
by a Person in Federal Custody, [Doc. No. 1]. Pursuant to this Court’s Order, the
government has responded to the motion. For the reasons set forth below, the
Motion under § 2255 is denied without a hearing.
Movant’s Claims
Movant makes the following claims:
Ground One: Ineffective assistance of counsel. Movant’s right to
effective assistance of counsel was violated when his trial attorney
failed to secure the presence of James Furr at trial.1
Ground Two: Ineffective assistance of counsel, fair trial and due
process of law. Movant claims that his rights were violated when
counsel made several references to “Furr’s testimony” in his opening
1
Movant also claims that the failure to secure Furr also violated his right to compulsory
process. This claim was raised and denied by the Eighth Circuit Court of Appeals. 500 F.3d
678 (8th Cir 2007).
statement when he knew that Furr might not be brought to court to
testify.
Ground Three: Ineffective assistance of counsel, fair trial and due
process. Movant asserts that counsel’s failure to call seven separate
witnesses who would have presented testimony building the best case
for innocence and challenging the prosecution’s theory of its case.
Ground Four: Denial of a fundamentally fair trial and ineffective
assistance of counsel. Movant asserts that he was denied a
fundamentally fair trial and effective assistance of counsel when his
trial counsel failed to adequately investigate and present evidence that
another individual was the perpetrator/probable suspect of the fire.
Ground Five: Ineffective assistance of counsel, denial of a fair trial
and violation of due process. Movant claims his rights were violated
by counsel’s failure to call the responding law enforcement to put on
“consciousness of innocence” evidence or request a “consciousness of
innocence” instruction.
Ground Six: Ineffective assistance of counsel, denial of a fair trial
and due process. Movant challenges counsel’s failure to call Robert
Goehman to testify as to Movant’s whereabouts between 6:00 pm and
6:30 pm on the night of the fire, December 12, 2000.
Ground Seven: Ineffective assistance of counsel, denial of a fair
trial and due process. Counsel did not call Movant’s physician to
testify and submit medical records as to Movant’s physical condition
on the night of the fire.
Facts and Background
Movant was charged in a 15 count indictment with maliciously damaging
and destroying his office building, office contents and two vehicles by fire; using
fire to commit the felony of mail fraud for the purpose of obtaining insurance
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proceeds for the business property losses and mail fraud involving payment of
expenses and distribution of the proceeds from the insurance policy of the
business.
A jury trail began on October 12, 2005. Opening statements were made by
both parties. The government presented the testimony of 13 witnesses and
submitted eighty two exhibits into evidence. Movant’s counsel called four
witnesses in defense. Additionally, Movant himself testified on his own behalf.
On October 14, 2005, Movant was convicted by the jury on all 15 counts of the
indictment.
Listed as one of the government’s witnesses was James Furr, a federal
inmate in custody in Colorado. Furr was listed as witness the government “may
call.” The government did not call Furr. Counsel for Movant requested that the
government produce Furr less than a week before trial. The government made the
request of the Marshal’s Service for transportation, however, the transfer could not
be made in time for trial. During his opening statement, counsel for Movant
mentioned Furr. Counsel did not, however, state at any time during his opening
statement that Furr would testify.
The Court sentenced Movant to an aggregate term of 180 months on
September 19, 2006. Movant was also sentence to concurrent terms of supervised
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release of three years, and was ordered to pay restitution in the total amount of
$89,746.75.
Movant appealed his conviction and sentence. The Eighth Circuit Court of
Appeals affirmed both Movant’s conviction and sentence. United States v.
Sparkman, 500 F.3d 678 (8th Cir. 2007).
Standard for Relief Under 28 U.S.C. 2255
Pursuant to 28 U.S.C. § 2255, a federal prisoner may seek relief from a
sentence imposed against him on the ground that “the sentence was imposed in
violation of the Constitution or law of the United States, or that the court was
without jurisdiction to impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to collateral attack.” 28
U.S.C. § 2255. Claims brought under § 2255 may also be limited by procedural
default. A Movant “cannot raise a nonconstitutional or nonjurisdictional issue in a
§ 2255 motion if the issue could have been raised on direct appeal but was not.”
Anderson v. United States, 25 F.3d 704, 706 (8th Cir. 1994) (citing Belford v.
United States, 975 F.2d 310, 313 (7th Cir. 1992)). Furthermore, even
constitutional or jurisdictional claims not raised on direct appeal cannot be raised
collaterally in a § 2255 motion “unless a petitioner can demonstrate (1) cause for
the default and actual prejudice or (2) actual innocence.” United States v. Moss,
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252 F.3d 993, 1001 (8th Cir. 2001) (citing Bousley v. United States, 523 U.S. 614,
622 (1998)). Claims based on a federal statute or rule, rather than on a specific
constitutional guarantee, “can be raised on collateral review only if the alleged
error constituted a ‘fundamental defect which inherently results in a complete
miscarriage of justice.’” Reed v. Farley, 512 U.S. 339, 354 (1994)(quoting Hill v.
United States, 368 U.S. 424, 477 n. 10 (1962)).
The Court must hold an evidentiary hearing to consider claims in a § 2255
motion “unless the motion, files and records of the case conclusively show that the
prisoner is entitled to no relief.” Shaw v. United States, 24 F.3d 1040, 1043 (8th
Cir. 1994)(citing 28 U.S.C. § 2255). Thus, a “[movant] is entitled to an
evidentiary hearing ‘when the facts alleged, if true, would entitle [movant] to
relief.’” Payne v. United States, 78 F.3d 343, 347 (8th Cir. 1996)(quoting Wade v.
Armontrout, 798 F.2d 304, 306 (8th Cir. 1986)). The Court may dismiss a claim
“without an evidentiary hearing if the claim is inadequate on its face or if the
record affirmatively refutes the factual assertions upon which it is based.” Shaw,
24 F.3d at 1043. Since the Court finds that Movant’s claims can be conclusively
determined based upon the parties’ filings and the records of the case, no
evidentiary hearing will be necessary.
Discussion
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Standard for Ineffective Assistance of Counsel
It is well-established that a petitioner’s ineffective assistance of counsel
claim is properly raised under 28 U.S.C. § 2255 rather than on direct appeal.
United States v. Davis, 452 F.3d 991, 994 (8th Cir.2006); United States v. Cordy,
560 F.3d 808, 817 (8th Cir. 2009). The burden of demonstrating ineffective
assistance of counsel is on a defendant. United States v. Cronic, 466 U.S. 648, 658
(1984); United States v. White, 341 F.3d 673, 678 (8th Cir.2003). To prevail on an
ineffective assistance of counsel claim, a convicted defendant must first show
counsel’s performance “fell below an objective standard of reasonableness.”
Strickland v. Washington, 466 U.S. 668, 687-88 (1984). The defendant must also
establish prejudice by showing “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different. Id., at 694.
Under Strickland, a petitioner must show that his counsel's
performance was both deficient and prejudicial to obtain relief. Id. at
687, 104 S.Ct. 2052. That is, “the movant must show that his
lawyer’s performance fell below the minimum standards of
professional competence (deficient performance) and that there is a
reasonable probability that the result of the proceedings would have
been different if his lawyer had performed competently (prejudice).”
Alaniz v. United States, 351 F.3d 365, 367–68 (8th Cir.2003) (citing
Strickland, 466 U.S. at 690, 694, 104 S.Ct. 2052). “Our scrutiny of
counsel’s performance must be ‘highly deferential.’” New v. United
States, 652 F.3d 949, 952 (8th Cir.2011) (citing Strickland, 466 U.S.
at 687, 104 S.Ct. 2052).
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Hamberg v. U.S., 2012 WL 1058950, 2 (8th Cir 2012).
Both parts of the Strickland test must be met in order for an ineffective
assistance of counsel claim to succeed. Anderson v. United States, 393 F.3d 749,
753 (8th Cir.), cert. denied, 546 U.S. 882 (2005). The first part of the test requires
a “showing that counsel made errors so serious that counsel was not functioning as
the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. Review of
counsel’s performance by the court is “highly deferential,” and the Court
presumes “counsel’s conduct falls within the wide range of reasonable professional
assistance.” Id. The court does not “second-guess” trial strategy or rely on the
benefit of hindsight, id., and the attorney’s conduct must fall below an objective
standard of reasonableness to be found ineffective, United States v. LedezmaRodriguez, 423 F.3d 830, 836 (2005). If the underlying claim (i.e., the alleged
deficient performance) would have been rejected, counsel's performance is not
deficient. Carter v. Hopkins, 92 F.3d 666, 671 (8th Cir.1996). Courts seek to
“eliminate the distorting effects of hindsight” by examining counsel’s performance
from counsel’s perspective at the time of the alleged error. Id.
The second part of the Strickland test requires that the movant show that he
was prejudiced by counsel’s error, and “that ‘there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have
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been different.’ ” Anderson, 393 F.3d at 753-54 (quoting Strickland, 466 U.S. at
694). “A reasonable probability is a probability sufficient to undermine confidence
in the outcome.” Strickland, 466 U.S. at 694. When determining if prejudice
exists, the court “must consider the totality of the evidence before the judge or
jury.” Id. at 695; Williams v. U.S., 452 F.3d 1009, 1012-13 (8th Cir. 2006).
Where a defendant raises multiple claims of ineffective assistance, each
claim of ineffective assistance must be examined independently rather than
collectively. Hall v. Luebbers,296 F.3d 385, 692-693 (8th Cir.2002); Griffin v.
Delo, 33 F.3d 895, 903-904 (8th Cir.1994).
Grounds One and Two
Movant’s claim that counsel was ineffective for failing to secure the
presence of James Furr at trial fails to meet the prejudice prong. The record
establishes that Furr’s anticipated testimony was to be used in attempt to impeach
Scott Smith. Defendant sought to question Furr about what he was allegedly told
by Scott Smith. Smith told two different versions of the events. In one version,
Smith suggested that Defendant burned the building; in the account given to Furr,
Smith said that he personally burned the office on Defendant’s behalf. In either
version, there is no exculpatory testimony, rather, Defendant was clearly
implicated. Nothing in either of Smith’s versions would have significantly
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benefitted Defendant.
Moreover, Defendant extensively cross examined Smith. During the cross
examination, counsel brought out a number of facts which challenged Smith’s
credibility. Likewise, counsel carefully examined the details of Smith’s version of
the events and Smith’s hope of receiving a deal from the government for his
cooperation. Movant can show no prejudice from the failure to secure the
presence of Furr as a witness. Grounds One and Two are therefore denied.
Ground Three
Movant argues that counsel was ineffective for failing to call seven
witnesses, other than Furr, who stood ready to testify as to Movant’s good
character and reputation for truthfulness and law abiding nature. Counsel’s
decision whether to call a witness at trial is normally a trial strategy decision that is
presumed reasonable and cannot be challenged. United States v. Rice, 449 F.3d
887, 898 (8th Cir.2006); United States v. Staples, 410 F.3d 484, 488 (8th
Cir.2005). This presumption is dependent upon the adequacy of counsel’s
investigation. White v. Roper, 416 F.3d 728, 732 (8th Cir.2005).
If the witnesses Movant had proposed had been called, they would have
been subject to cross-examination about their awareness of specific instances of
Movant’s conduct. Rule 404(a)(1) of the Federal Rules of Evidence allows the use
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of evidence of the character of the accused. However, on cross-examination, the
government is allowed to inquire as to specific instances of conduct. See
Fed.R.Evid. 404(a); United States v. Michelson, 335 U.S. 469, 478-484 (1948);
United State v. Grady, 665 F.2d 831, 834-835 (8th Cir.1981). Movant’s proposed
testimony would have only established Movant’s general character that was known
from Movant’s public appearances. Nothing in the proposed testimony negates the
evidence presented that the government’s theory of motive, i.e., financial gain, was
not valid.
Moreover, even if the Court were to find that counsel’s performance was
deficient in failing to call character witnesses, Movant has failed to establish
prejudice, i.e., that the results of the proceeding would have been different. When
determining whether prejudice exists, a court must consider the totality of the
evidence. Williams v. United States, 452 F.3d 1009, 1013 (8th Cir.2006). In this
instance, the Court must add the proffered testimony from Movant’s character
witnesses to the evidence before the jury and then “gauge the likely outcome of the
trial based on this total body of evidence.” Id. “In doing this analysis, the court
should be mindful of (1) the credibility of all witnesses, including the likely
impeachment of the uncalled defense witnesses; (2) the interplay of the uncalled
witnesses with the actual defense witnesses called; and (3) the strength of the
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evidence actually presented by the prosecution.” Id. (internal citations omitted).
Movant himself testified as to his charitable activities and contributions to
the community. The government did not dispute this testimony, rather, the focus
of the government’s evidence was the facts that Movant had motive, opportunity
and means to execute the charged crimes. Gauging the likely outcome of the trial,
based upon the total body of the evidence, Movant cannot establish that the failure
to call seven character witnesses prejudiced Movant such that he was denied
effective trial counsel. Ground Three is denied.
Ground Four
As his fourth ground for relief, Movant argues that counsel was ineffective
for failing to investigate a potential perpetrator of the fire. Movant claims that
Christian Harris had a grudge against Movant’s partner and had made threats
against Movant’s business. As the government correctly points out, counsel indeed
raised the issue of threats made to Movant’s partner through the cross examination
of Stephanie Fike, an insurance investigator for Safeco Insurance. The issue of the
specific threat made to Movant’s partner, Tom Wilson, was brought out. Fike
testified that she had been advised of the threat and that she had interviewed
Harris. Fike testified that Harris admitted making the threat and that he had been
present at an adjacent business on the night of the fire. This evidence was before
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the jury for its consideration.
Additionally, counsel for Movant argued the facts in an effort to implicate
Harris, thus presenting the jury with an alternative solution to the fire. Counsel
neither ignored the existence of Harris nor neglected to advocate on behalf of
Movant on the theory that another person was responsible for the fire. Ground
Four is denied.
Ground Five
For his fifth ground, Movant argues that trial counsel was ineffective for
failing to question any of the testifying officers about Movant’s appearance or
conduct on the evening of the fire. Movant argues that the officers had personal
knowledge of what happened and expertise in investigating such events. None of
the officers testified that they were suspicious of Movant on the evening of the fire,
nor at any subsequent point in their investigation. Movant argues that because
counsel did not question the officers about his lack of consciousness of guilt,2
counsel’s performance fell below an objective standard of reasonableness and had
he questioned the officers, the end result of the trial would have been different.
2
Movant is, in effect, arguing a “reverse” consciousness of guilt theory. Ordinarily, the
government seeks to introduce evidence of a consciousness of guilt, i.e., “flight, escape from
custody, resistance to arrest, concealment, assumption of a false name, and related conduct.”
U.S. v. Clark, 45 F.3d 1247, 1250 (8th Cir. 1995). In this case, Movant argues that his failure to
act with a consciousness of guilt establishes his innocence.
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Initially, it should be noted that Movant’s argument overlooks critical details of
such a position. Movant assumes that even if the officers did testify that Movant
behaved in a manner that did not raise issues consistent with guilt, the jurors would
have necessarily concluded that because of his lack of consciousness of guilt on
the night of the fire, Movant was necessarily innocent. This reasoning neglects to
consider the fact that not every guilty individual behaves in a manner that
establishes guilt. Indeed, one guilty of a crime might seek to behave in a manner
consistent with innocence, in order to avoid discovery of his or her guilt.
Fundamentally, failure to question the officers with respect to Movant’s actions
after the fire may have been a strategic decision by counsel to avoid precisely the
inference which Movant’s “consciousness of innocence” may imply: Movant’s
attempt to avoid discovery.
Moreover, Movant’s position fails to recognize that the information he
seeks to have been presented to the jury was already before it. Clearly, the jury
was cognizant of the fact that nothing occurred to implicate Movant until Smith
had contact with the authorities. Necessarily, this establishes the exact point that
Movant is making, i.e., that the police had no reason to suspect Movant by his
actions after the fire. The jurors in this case were aware of the lack of suspicion of
Movant until Smith’s statements. Movant could not, therefore, be prejudiced by
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counsel’s failure to question the police regarding Movant’s consciousness of
innocence. Ground Five is without merit and it therefore denied.
Ground Six
Movant challenges counsel’s failure to call Robert Goehman to testify that
he was with Movant on the evening of the fires. In his affidavit, Goehman avers
that he was with Movant from approximately 6:15 until 7:00 p.m. As the
government correctly argues, even if Goehman had testified, there is nothing to
exculpate Movant from the crimes. Movant would have had enough time, between
an hour and fifty minutes to two hours and twenty minutes to move the vehicles
and start the fire. Movant has failed to establish how the failure to call Goehman
fell below an objective standard of reasonableness and how he was prejudiced by
the failure. Ground Six is denied.
Ground Seven
Movant claims counsel was ineffective for failing to call Movant’s
physician. Movant argues that he recently had knee surgery before the fire and
was under a physician’s lifting restriction. Even assuming the veracity of this
allegation, Movant has presented nothing to demonstrate that Movant was indeed
following the limitation, nor is there any evidence that the safe in question actually
weighed 200 pounds, as alleged by Movant. Moreover, Movant has failed to
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establish how, assuming the truth of the restriction and weight of the safe, the
result would have been different had counsel presented evidence from Movant’s
physician. Ample evidence before the jury was in the record from which the jury
could conclude Movant was responsible for the crimes for which he was charged.
Ground Seven is denied.
In his memorandum in support of his motion, Movant sets out another
ground for relief. Movant claims that his right to effective counsel was violated by
counsel’s failure to investigate Pastor Bob Murray and present evidence of Smith’s
motive to fabricate his story regarding the fire at West Park Motors. The
government has not responded to this ground, however, the Court concludes that it
is without merit. Movant claims that Bob Murray, of the Holy Spirit Church, came
to Movant’s shop. Murray told Movant that Smith and his girlfriend, Cindy
Talley, were in danger because they owed money for drugs. Murray told Movant
that if Movant did not give Murray $3,500, Smith was going to tell the police that
Movant was involved in the fire. Movant did not pay any money.
Movant claims that counsel’s failure to investigate Murray was ineffective
because it could have further exposed Smith’s motive to lie about the fire. Movant
claims that but for counsel’s failure to properly investigate, the outcome of the trial
may have been different.
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As previously discussed, counsel extensively cross examined Smith as to his
veracity and motivation for lying about the fire. The speculative nature of a
potentially blackmailing Pastor’s testimony does not rise to the level necessary to
establish ineffective assistance of counsel. Movant has presented no evidence that
Pastor Murray was available to testify regarding the meeting. Likewise, Movant
fails to present any persuasive argument of how the result in this case would have
been different had counsel located Murray; there was ample evidence in the record
from which the jury could conclude that Movant was responsible for the fire. This
additional ground for relief is denied.
Conclusion
Movant has failed to establish that his constitutional right to effective
counsel was violated. The record establishes that counsel’s representation did not
fall below an objective standard of reasonableness, nor that but for counsel error,
the result in this matter would have been different. Movant’s motion will be
denied in its entirety.
Certificate of Appealablity
The federal statute governing certificates of appealability provides that “[a]
certificate of appealability may issue . . . only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
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A substantial showing of the denial of a constitutional right requires that “issues
are debatable among reasonable jurists, a court could resolve the issues differently,
or the issues deserve further proceedings.” Cox v. Norris, 133 F.3d 565, 569 (8th
Cir. 1997). Based on the record, and the law as discussed herein, the Court finds
that Movant has not made a substantial showing of the denial of a constitutional
right.
Accordingly,
IT IS HEREBY ORDERED that the Motion to Vacate, Set aside or
Correct Sentence, [Doc. 1], is DENIED.
IT IS FURTHER ORDERED that this Court will not issue a Certificate of
Appealability as Movant has not made a substantial showing of the denial of a
federal constitutional right.
A separate judgment is entered this same date.
Dated this 22nd day of August, 2012.
_______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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