MEMORANDUM: For the foregoing reasons, the Court concludes that motion and the files and records of this case show that Eley 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 Eley 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 5/9/2013. (KMS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
UNITED STATES OF AMERICA,
Case No. 4:10-CV-1529 (CEJ)
This matter is before the Court upon the motion of Anne Eley to vacate, set
aside, or correct sentence pursuant to 28 U.S.C. § 2255. The United States has filed
a response in opposition of the motion, and the issues are fully briefed.
On May 14, 2008, following a bench trial, Eley was found guilty of marriage
fraud, in violation of 8 U.S.C. § 1325(c). The government proved beyond a reasonable
doubt that Eley, a dual citizen of Switzerland and England, entered into a sham
marriage with an individual named Billy Joe Middleton to evade the immigration laws.
She was sentenced to a six-month term of imprisonment and a two-year supervised
release term. The judgment was affirmed on appeal. United States v. Eley, 334 Fed
Appx. 778 (8th Cir. 2009) (unpublished opinion).
In the instant motion, Eley claims that she was denied effective assistance of
counsel at trial. 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). The movant must show that her attorney’s errors were so
serious that they deprived her of her Sixth Amendment right to counsel and denied her
the right to a fair trial. Id. Judicial scrutiny of counsel’s performance must be highly
deferential, and the movant must overcome the presumption that the challenged
action might be considered sound trial strategy. Id. at 689. In deciding a claim of
ineffective assistance, a court must examine the specific “acts or omissions of counsel
that are alleged not to have been the result of reasonable professional judgment,” and
then “determine whether, in light of all the circumstances, the identified acts or
omissions were outside the wide range of professionally competent assistance.” Id.
at 691. In order to establish prejudice, and thus satisfy the second prong of the
Strickland test, the movant must demonstrate that “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Id. at 694.
1. Failure to Advise of Potential Immigration Consequences
Eley’s first ineffective assistance claim is based on the allegation that her
attorney failed to advise her of the effect that a marriage fraud conviction might have
on her immigration status. In support of her claim, Eley cites Padilla v. Kentucky, 559
U.S. 356, 130 S. Ct. 1473 (2010), in which Supreme Court held that the Sixth
Amendment requires an attorney to inform his client whether a guilty plea carries a
risk of deportation. Padilla, 130 S.Ct. at 1486.
Eley’s argument is wholly without
Padilla is not applicable here because Eley did not plead guilty.
regardless of the outcome of the trial, Eley was subject to deportation as a result of
Middleton’s withdrawal of his petition supporting her change of immigration status. In
Arias-Gonzales v. United States, 486 Fed.Appx. 617 (8th Cir. 2012), the court held that
the movant failed to establish prejudice resulting from his attorney’s “failure to discuss
deportation as a collateral consequence of conviction,” as movant “did not plead guilty
and was subject to deportation apart from the criminal proceedings.” Id. Eley has not
shown that the outcome of the proceedings would have been different had her
attorney informed her of the possibility of deportation following conviction.
2. Inadequate Pretrial Investigation
Eley’s second claim is that counsel failed to investigate and interview witnesses
favorable to the defense. Specifically, Eley alleges that counsel failed to call witnesses
and present evidence that would have established: (1) Middleton’s prior marriages; (2)
Middleton’s criminal history and prior bad acts; (3) perjury by Middleton and by two
of the government’s witnesses, Timothy Warren and Joyce Warren; and (4) that
someone other than Middleton reported the marriage fraud to the immigration
Eley asserts that, in the months leading up to trial, no fewer than seven people
came forward to offer testimony about her bona fide relationship and marriage to
Middleton, and that no fewer than two people offered to give testimony that Middleton
was a con-artist and a liar. Regardless of how many witnesses may be available,
“failure to investigate everyone whose name happens to be mentioned by [a]
defendant does not suggest ineffective assistance.” Williams v. Armontrout, 912 F.2d
924, 933 (8th Cir. 1990) (quoting United States v. Cockrell, 720 F.2d 1423, 1428 (5th
Cir. 1983)). On the contrary, “[d]ecisions relating to witness selection are normally left
to counsel’s judgment, and ‘this judgment will not be second-guessed by hindsight.’”
Williams, 912 F.2d at 934 (quoting Frank v. Brookhart, 877 F.2d 671, 674 (8th Cir.
In her reply, Eley submits statements from a number of individuals whom she
claims her attorney could have called to testify for her. With respect to some of the
statements, Eley makes no showing that the witnesses were available to testify at the
time of the trial and would have done so if called. For example, one of the individuals
states that she was subpoenaed by the government, but did not want to travel to St.
Louis. [Doc. #9-1] In general, the statements Eley submits consist of little more than
the writers’ opinions about Eley’s good character and about Middleton’s bad character.
The statements are rife with subjective observations (e.g., Eley “appeared to be in
love,” and she was “heartbroken” when Middleton left her) that would not have aided
the court in determining credibility or in determining Eley’s guilt or innocence.
Moreover, many of the statements contain information that would have
supported the government’s case against Eley. For example, witness statements that
Middleton and Eley did not live together after the marriage ceremony and that
Middleton was only interested in getting money from Eley reinforce the government’s
contention that the marriage was a business arrangement through which Eley hoped
to evade deportation and from which Middleton hoped to receive money to avoid arrest
for non-payment of child support.
Also, Eley’s character and reputation in the community were not at issue. So,
it is unlikely that testimony attesting to those matters would have been admissible.
See Fed.R.Evid. 404 and 405.
Similarly, because defense counsel called one of
Middleton’s ex-wives as a witness, it is unlikely that the Court would have allowed
cumulative testimony from a second ex-wife.
Finally, Eley criticizes her attorney for failing to hire an investigator to interview
the government’s witnesses.
She does not point to any information that an
investigator would have gathered that was not already known nor does she make any
showing of prejudice.
3. Inadequate Cross-examination and Evidence Presentation
Eley’s third claim is that defense counsel inadequately cross-examined Middleton
and failed to present evidence that would have established perjury by Middleton and by
Joyce and Tim Warren, witnesses who also testified for the government.
witness-selection, “cross-examination techniques are matters of trial strategy left to the
discretion of counsel.” Barnes v. United States, 859 F.2d 607, 608 (8th Cir. 1988).
During direct examination, it was disclosed that Middleton had a prior conviction for
writing bad checks; that he owed $100,000 for child support; that he moved in with
another woman shortly after his fraudulent marriage to Eley; that he married Eley only
because he wanted money from her to avoid arrest; and that he decided to report Eley
to the immigration authorities because he wanted to resume a relationship with another
By the time of cross-examination, there wasn’t much more that defense
counsel could to do to make Middleton look bad.
Eley asserts that Middleton and the Warrens gave perjured testimony.
support this assertion, she points to the differences between her witnesses’ statements
and the testimony of the government’s witnesses. Eley’s assertion is unsubstantiated,
as the existence of a discrepancy between testimony of witnesses does not establish
perjury. Further, the Court finds no merit in the assertion that defense counsel should
have presented evidence contradicting Middleton’s testimony that he initiated the
marriage fraud report to the authorities.
Assuming (as Eley claims) that someone
other than Middleton made the report, Eley was not prejudiced by the omission because
it would not have affected the outcome of the case.
The Court’s scrutiny of defense counsel’s performance must be highly
deferential, and Eley has failed to overcome the presumption that the challenged
actions might be considered sound trial strategy. Strickland, 466 U.S. at 689. After
examining the specific “acts or omissions of counsel that are alleged not to have been
the result of reasonable professional judgment,” the Court concludes that “in light of all
the circumstances, the identified acts or omissions were [not] outside the wide range
of professionally competent assistance.” Id. at 691.
Eley has similarly failed to establish prejudice, as she has not demonstrated that
“there is a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Id. at 694. “The rule in this Circuit is that
the question of credibility of witnesses and the weight to be given their testimony . . .
is primarily one for determination by the trier of facts.” Town & Country Elec., Inc. v.
N.L.R.B., 106 F.3d 816, 819 (8th Cir. 1997).
In the instant case, the Court was
required to assess the credibility of the witnesses and, after doing so, resolved all
credibility disputes in favor of the government. Thus, the Court determined that Eley
knew of the relevant immigration laws even before she married Middleton, and that her
statements and actions demonstrated her purpose for entering into the marriage—to
avoid those very laws. Thus, even if Eley could demonstrate that defense counsel’s
performance fell below an objective standard of reasonableness, she cannot demonstrate a reasonable probability that the result of the proceeding would have been
different, and therefore, cannot show that she was prejudiced by counsel’s purportedly
For the foregoing reasons, the Court concludes that motion and the files and
records of this case show that Eley 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 Eley 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.
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 9th day of May, 2013.
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