Masten v. United States of America

Filing 16

MEMORANDUM - This matter is before the Court upon the motion of Deborah L. Masten to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. The United States has filed a response in opposition to the motion. For the foregoing rea sons, the Court concludes that motion and the files and records of this case show that Masten is not entitled to relief under 28 U.S.C. § 2255 based on any of the claims she asserts in her motion. Therefore, the motion will be denied without a hearing. See Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995). Additionally, the Court finds that Masten has not made a substantial showing of the denial of a constitutional right. Therefore, the Court will not issue a certificate of appealability. See 28 U.S.C. § 2253. An appropriate Order will accompany this Memorandum.Signed by District Judge Carol E. Jackson on 9/25/12. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DEBORAH L. MASTEN,
Movant,
vs.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 4:09-CV-943 (CEJ)

MEMORANDUM
This matter is before the Court upon the motion of Deborah L. Masten to vacate,
set aside, or correct sentence pursuant to 28 U.S.C. § 2255.

The United States has

filed a response in opposition to the motion.
I. Background
Following a jury trial, Masten was found guilty of one count of maliciously
damaging or destroying property by means of fire, in violation of 18 U.S.C. § 844(i).
The evidence established that Masten intentionally set fire to a restaurant she owned
in Kirksville, Missouri. Masten was sentenced to a 63-month term of imprisonment.
The judgment was affirmed on appeal. United States v. Masten, 281 Fed. Appx. 640
(8th Cir. 2008).

Masten filed a motion for new trial based on claims of newly

discovered evidence and a Brady violation by the government.1

The motion was

denied after an evidentiary hearing and Masten did not appeal.
II. Discussion
In the motion to vacate, Masten asserts the following grounds for relief: (1) the
government suppressed exculpatory evidence; (2) the jury was prevented from

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Brady v. Maryland, 373 U.S. 83 (1963).

hearing all of the exculpatory evidence; (3) the defense was prevented from presenting
evidence to contradict the government’s claim that Masten was the last person to leave
the restaurant before the fire; and (4) ineffective assistance of counsel. The relevant
facts will be set forth in the discussion of each claim.
A. Suppression of Evidence
Masten alleges that prosecution deliberately suppressed a videotape and, as a
result, the defense was deprived of the opportunity to present exculpatory evidence
at trial. The videotape at issue was created by an exterior surveillance camera that
was stationed on the Adair County jail building located adjacent to the restaurant. The
videotape was reviewed by law enforcement officers shortly after the fire occurred.
A DVD copy of the videotape was given to defense counsel approximately a week
before the trial. The government’s attorney represented to defense counsel (and later
to the Court) that the DVD was an accurate copy of the original videotape, but that
it was of poor quality. At no time was defense counsel told or led to believe that the
videotape did not exist or that it was not available. The videotape was obtained by
Masten after the trial and was examined by an expert witness she retained in
connection with her motion for new trial.
Masten raised the claim of deliberate suppression of the videotape in her motion
for a new trial. After hearing the evidence, the Court concluded that the government
did not suppress the videotape, that defense counsel knew of its existence, and the
videotape was at all times available to the defense.

The Court has previously

determined that there was no Brady violation by the government and will not revisit
that ruling here.

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B. Ineffective Assistance of Counsel
Masten claims that she was denied effective assistance of counsel as a result of
her attorney’s failure to obtain the surveillance videotape. The contents of the
videotape were transferred onto a DVD which was presented by the government at
trial. Defense counsel objected to the DVD, arguing that it was not the best evidence.
Based on the government’s representation that the DVD was an accurate copy of the
videotape, the Court overruled the objection. According to Masten, the videotape
shows her leaving through the back door of the restaurant---not the front door as she
claims a government witness testified. She also asserts that the videotape directly
contradicts the government’s timeline of events that occurred in the minutes before
the fire started. She claims that the DVD was not an accurate copy of the videotape,
and because the videotape was not shown, the jury did not see evidence that was
helpful to her defense.
To prevail on a claim of ineffective assistance of counsel, a movant must show
(1) that her attorney’s performance fell below an objective standard of reasonableness
and (2) that she was prejudiced thereby. Strickland v. Washington, 466 U.S. 668, 687
(1984).

With respect to the performance prong of the inquiry, there is a “strong

presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Id. at 689.

In order to show prejudice, the movant “must

show that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.

A reasonable

probability is a probability sufficient to undermine confidence in the outcome.” Id. at
694. The failure to show prejudice is dispositive and a court need not address the

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reasonableness of counsel’s performance in the absence of prejudice. United States
v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996).
As noted above, the Court previously determined that the government did not
mislead defense counsel with respect to the existence of the videotape. Additionally,
the Court determined that defense counsel knew about the videotape and that he
acted reasonably when he relied on the government’s representation that the DVD was
an accurate copy of the videotape, although of poor quality. Of course, the question
here is whether defense counsel’s failure to obtain the videotape before the trial was
objectively unreasonable. Assuming arguendo that it was, the Court finds that Masten
was not prejudiced as a result.
Contrary to Masten’s assertion, the government’s witness, Trooper Nicholas
Berry, did not testify that he saw Masten near the front door of the restaurant where
the fire started. Thus, even if the videotape showed her leaving by the back door, it
would not have been usable to impeach the witness’s testimony. With respect to the
timeline, Masten contends that it was the government’s theory was that two minutes
and 30 seconds elapsed from the time she left the restaurant until the time of the first
911 call reporting the fire and that she was unable to contradict this without the
videotape.

However, no such theory was posited by the government. Thus, even if

the videotape depicted a six-minute lapse it would not have contradicted anything in
the government’s case. Finally, the videotape would not have established that Trooper
Berry misidentified Masten as the woman he saw outside the restaurant just before
fire. Trooper Berry’s testimony that Masten waved at him was confirmed by Masten
herself.

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III. Conclusion
For the foregoing reasons, the Court concludes that motion and the files and
records of this case show that Masten is not entitled to relief under 28 U.S.C. § 2255
based on any of the claims she asserts in her motion. Therefore, the motion will be
denied without a hearing. See Engelen v. United States, 68 F.3d 238, 240 (8th Cir.
1995). Additionally, the Court finds that Masten has not made a substantial showing
of the denial of a constitutional right. Therefore, the Court will not issue a certificate
of appealability. See 28 U.S.C. § 2253.
An appropriate Order will accompany this Memorandum.

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CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 25th day of September, 2012.

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