Yarbrough v. United States of America

Filing 25

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. 1 Signed by District Judge Henry Edward Autrey on 4/24/14. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
TERRENCE A. YARBROUGH,
Movant,
vs.
UNITED STATES OF AMERICA,
Respondent.

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No. 4:11CV1262 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Movant’s Petition To Abolish New
World Slavery Step One: Court Records Request which the court has now
accepted filing as and reviewed as a Motion under 28 U.S.C. § 2255 by a Person
in Federal Custody. [Doc. No. 1]. Pursuant to this Court’s Order, the government
responded to the motion to vacate. [Doc. No. 8]. On December 30, 2011 Movant
filed a Petition with Affidavit to Amend the Caption. [ Doc. No. 16]. Thereafter,
the Respondent filed a response to the Amendment. [Doc. No. 23]. For the reasons
set forth below, the Motion is denied without a hearing.
Movant’s Claims
Movant appears to raise two substantive issues. The first issue centers on
his demand for all grand jury records, including all transcripts, ministerial records,
roll sheets, attendance records, and juror selection records. His second issue

revolves around a desire to obtain copies of sealed ex parte motions as well as a
transcript of the ex parte hearing on those motions held on July 2, 2010.
Yarbrough also requests information related to the payment of Criminal Justice
Act (CJA) fees paid to appointed counsel Ronald Jenkins and Assistant Federal
Defender Lucille Liggett.
Facts and Background
On or about August 27, 2009, Yarbrough was arrested and charged pursuant
to a complaint with sex trafficking by fraud, force or coercion. On September 10,
2009, a Grand Jury charged him with sex trafficking and violations of the Mann
Act. At that time, Yarbrough retained attorneys Gilbert Sison and N. Scott
Rosenblum. The parties engaged in the discovery process and Yarbrough received
all the discovery that he was entitled to pursuant to Rule 16. On February 4, 2010,
a superceding indictment was returned and Sison and Rosenblum continued their
representation.
On June 23, 2010, Yarbrough filed a motion in which he contended that he had
a conflict with his attorneys. Thereafter, Sison and Rosenblum filed motions to
withdraw from further representation of Yarbrough.
On July 2, 2010, U.S. Magistrate Judge Frederick R. Buckles
conducted an ex parte hearing on the motions. Sison, Rosenblum and Yarbrough
were present, the government by the nature of the motion was excluded.

On July 7, 2010, Judge Buckles subsequently granted the motion and
appointed Ronald Jenkins to represent Yarbrough.
Standards 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,
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 assertions can conclusively
be determined based upon the filings and the records of the case, no evidentiary
hearing is necessary.
Discussion
As to his first issue demanding all grand jury records, including all

transcripts, ministerial records, roll sheets, attendance records, and juror
selection records, he has no legal entitlement to any of the demanded materials.
Rule 6(e) governs disclosure of grand jury material. Rule 6(e)(E)(I) allows for the

disclosure at the request of a defendant who demonstrates that a ground may exist
to dismiss the indictment because of a matter that occurred before the grand jury.
However, equally correct is the basic legal premise that there will be no
disclosure of grand jury materials or records absent the showing of a particularized
need. United States v. Broyles, 37 F.3d 1314, 1318, (8th Cir. 1994); see also
United States v. Stanko, 528 F.3d 581, 587 (8th Cir. 2008); and United States v.
McIntosh, 2008 WL 2952780 (E.D.Mo.). Movant has no basis for a claim under
Rule 6(e)(E)(I) since the indictment has long since been dismissed. Likewise
Movant has also failed to demonstrate any particularized need for any of the
grand jury materials he requested.
Assuming arguendo that there was a basis for the demanded materials, on
January 26, 2011, Movant made the identical demand. He subsequently withdrew
that motion. In light of the withdrawal of that claim, he has waived it and it is not
cognizable in a Section 2255 petition. United States v. Olano, 507 U.S. 725, 733
(1993). Thus, since this could have been addressed in his original/underlying case,
it is defaulted. Anderson v. United States, 25 F.3d 704, 705, (8th Cir. 1994).
The second issue centers around his desire to obtain copies of sealed ex
parte motions as well as a transcript of the ex parte hearing on those motions held
on July 2, 2010. Movant also requests information related to the payment of
Criminal Justice Act (CJA) fees paid to appointed counsel Ronald Jenkins and

Assistant Federal Defender Lucille Liggett. On November 8, 2010, He filed
substantially the same motion. That motion was denied on November 24, 2010.
Subsequent thereto he filed an untimely notice of appeal on January 6, 2011. On
March 9, 2011 the Eighth Circuit Court of Appeals issued its order affirming the
denial of Movant’s motion for sealed documents and transcripts. This matter
therefore, has been finally determined. This prevents the relitigation of settled
issues in the case and protects the settled expectations of all parties. United States
v. Bates, 614 F.3d 490, 494 (8th Cir. 2010).
As to the disclosure of CJA fees, those may be made public as long as the
rights of the defendant are protected. The Court, pursuant to 18 U.S.C. § 3006A
(d) (4), will allow the disclosure of the fees paid to Ronald Jenkins. There were no
CJA fees paid to Ms. Lucy Liggett.
Conclusion
Based upon the foregoing analysis, Movant’s claims and requests afford him
no relief.
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). 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 24th day of April, 2014.

_______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE