Horton v. USA
Filing
48
ORDER denying Movant's remaining claim for relief under 2255 and denying certificate of appealability. Movant's 2255 motion is hereby DENIED IN FULL and case closed. Copy of order mailed to Movant Horton. Signed on 10/5/2015 by District Judge M. Douglas Harpool. (Hance, Breanna)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION
CARLOUS S. HORTON,
)
)
)
)
)
)
)
)
)
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.
Case No.
6:15-cv-03019-MDH
6:11-cr-03021-MDH
ORDER
Before the Court is Movant Carlous Horton’s motion to vacate, set aside, or correct his
sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). On August 3, 2015, the Court issued an order
denying the majority of Movant’s claims for relief and ordering an evidentiary hearing on
Movant’s claim of ineffective assistance of counsel during jury selection only (Doc. 31). To
summarize the remaining claim, Movant alleges he was not present during the execution of
peremptory strikes and he was not provided the opportunity to register his opinions and
misgivings with trial counsel regarding potential jurors. The Court ordered an evidentiary
hearing in order to: “(1) make a factual finding concerning whether [Horton] was afforded an
opportunity to discuss peremptory strikes with counsel, and (2) hear argument concerning
whether the presumption-of-prejudice exception to Strickland applies in this case [as argued by
Movant].”
I. BACKGROUND
On September 24, 2015, the Court held an evidentiary hearing. The parties presented
evidence and argument in accordance with the Court’s August 3, 2015 order. Movant and his
co-defendant, Christopher Holmes, took the stand on behalf of Movant. The men currently are
housed in the same BOP facility although they are in different pods. They acknowledge that
1
they have had some communication regarding the issues of this case. Mr. Holmes has a similar
2255 action on file raising the same issues regarding peremptory strikes.
Both Horton and Holmes testified that they were in the courtroom on the first day of trial
during the questioning of jurors, that they had notepads and pens available to them to take notes
during the voir dire process, that they were “brushed off” when they attempted to voice their
opinions/concerns to their attorneys during voir dire, and that they were removed from the
courtroom during the recess when the decisions regarding peremptory strikes were made by their
attorneys. Movant testified that he took notes about the potential jurors during voir dire on his
own pad of white paper and he brought those notes with him when he was returned to a holding
cell during the recess.1 Movant stated he was upset when he was returned to the holding cell and
he was adamant that an injustice had occurred because he believed he had a right to be present
when the peremptory strikes were executed based on his involvement in a former state court trial.
Movant and Holmes testified that while they were in their holding cell during the recess they
discussed their concerns regarding potential jurors, including a woman who stated she had been
raped by a black man (not on the jury), a woman who allegedly shed a tear when she heard the
first woman say she had been raped by a black man (on the jury), and a man who stared at them
in a mean or cold manner throughout voir dire (on the jury).
Movant testified that when he was returned to the courtroom later that afternoon he was
ready to “explode” on his attorney; however, he stated he did not have the opportunity to voice
his concerns to his attorney because roughly thirty seconds after he was returned to the
courtroom, the jury panel was ushered back in. Holmes testified that the fourteen jurors were
already selected when they came back into the courtroom but Movant testified that he could not
1
Movant claims he later sent those notes to a relative after trial but they were not offered as an exhibit at the hearing
or described in any detail.
2
recall whether the full jury pool came back into the courtroom or just the fourteen selected
jurors. Movant testified that he tried to express his concerns to counsel at that time but, again,
his counsel brushed him off and spoke to co-defendant’s counsel instead. When asked why he
did not bring the alleged injustice directly to Judge Dorr’s attention, Movant testified that he
thought he was only permitted to speak through his counsel, he did not want to irritate the trial
judge whom he believed was already annoyed with him because of pre-trial self-representation
and pro se filings, and he did not want to be removed from the courtroom during trial, which he
read could happen. When asked why he did not raise the issue through a post-trial motion,
Movant responded that his first pro se post-trial motion was denied because he was represented
by counsel, he thought he had to raise the issue in a separate motion, and he ran out of
stationary/stamps.
Movant’s trial counsel, Bob Lewis, and Holmes’ trial counsel, Kristin Jones, testified on
behalf of the Government. Both attorneys testified that Movant was present for the entire voir
dire process and when the jury was impaneled. The attorneys testified that the peremptory
strikes were communicated to the Court by crossing names off a list of potential jurors. They
acknowledged that the names were crossed off during the recess; however, both attorneys
testified that in their normal practice they would never exercise peremptory strikes without first
consulting a client and that, if they were not afforded time to do so, the situation would stick out
in their mind and they would make a record with the court. Ms. Jones expressed no independent
recollection of a discussion with her client but testified that she has no reason to believe she
failed to follow her usual and normal practice. She testified that she still has the notes made by
Mr. Holmes in her file but they were not offered as an exhibit at the hearing. Mr. Lewis
specifically testified that he gave Movant a yellow pad and pen to write down notations during
3
the voir dire process and that Movant did, in fact, take notes during voir dire. Mr. Lewis testified
that he specifically remembers discussing peremptory strikes with Movant in the courtroom and
that, while he does not recall Movant’s specific concerns, he does remember that Movant
expressed a hope that at least one person would be on the jury and he wanted at least one person
off the jury. Mr. Lewis did not recall specifically why his client wanted or did not want any
particular juror. Mr. Lewis testified that he made decisions regarding peremptory strikes based
on input from his client exercising his best professional judgment in light of the best interests of
his client.
The Court admitted into evidence the trial transcript and a copy of the CSO daily activity
log from the date in question. The Court also agreed to take judicial notice of the entire criminal
file underlying Movant’s claims as well as the associated civil cases filed by Horton and Holmes.
The trial transcript indicates that, on the date in question, the Court stood in recess at 4:13 p.m.
after voir dire and strikes for cause were completed. Tr. 162. According to the CSO daily
activity log, Movant and his co-defendant, Christopher Holmes, were returned from the
courtroom to a holding cell at 4:15 p.m. Pet. Ex. 2, 3. The same activity log indicates Movant
and Holmes were taken from the holding cell back to the courtroom at 4:52 p.m. Pet. Ex. 2, 4.
The transcript indicates the Court reconvened at 4:57 p.m. Tr. 162. The minute entry sheet
indicates peremptory strikes were returned to the Court at some point during the recess that took
place from approximately 4:14 p.m. to 4:57 p.m. Doc. 350. Following the recess, the transcript
reflects the entire venire panel re-entering the room at 4:57 and the Court then reading off the
names of the fourteen selected jurors. Tr. 162.2
2
The time references in the transcript, CSO daily activity log, and minute sheet do not necessarily reflect reference
to the same source of time measurement. There was no testimony concerning how the time recordings reflected in
the transcript, CSO log, and minute sheet were determined.
4
II. STANDARD
A prisoner may move to vacate, set aside, or correct a sentence alleging “the sentence
was imposed in violation of the Constitution or laws 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. A claim of
ineffective assistance of counsel may suffice to prevail under section 2255 but the “Movant faces
a heavy burden.” United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996). In such cases, the
court must scrutinize the ineffective assistance of counsel claim under the two-part test of
Strickland v. Washington, 466 U.S. 668 (1984).
Under Strickland, a prevailing defendant must prove “both that his counsel’s
representation was deficient and that the deficient performance prejudiced the defendant’s case.”
Cheek v. United States, 858 F.2d 1330, 1336 (8th Cir. 1988). As to the “deficiency” prong, the
defendant must show that counsel “failed to exercise the customary skills and diligence that a
reasonably competent attorney would [have] exhibit[ed] under similar circumstances.”
Id.
(quoting Hayes v. Lockhart, 766 F.2d 1247, 1251 (8th Cir. 1985)). Courts are highly deferential
to the decisions of counsel and there is a “strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. A reviewing
court must look at the circumstances as they appeared to counsel at the time of the proceeding
and should rarely second-guess an attorney’s tactics or strategic decisions. Lacher v. United
States, No. 05-3175-CV-S-RED, 2006 WL 744278 (W.D. Mo. Mar. 23, 2006). As to the
“prejudice” prong, the defendant must show “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.” Cheek,
858 F.2d at 1336 (quoting Strickland, 466 U.S. at 694).
5
III. DISCUSSION
Movant’s § 2255 claim for ineffective assistance of counsel during jury selection is
hereby denied because Movant has failed to satisfy the Strickland prongs.3
A. Movant failed to establish counsel’s performance was deficient.
Movant first failed to establish that his trial counsel’s performance was deficient.
Movant alleges his trial counsel acted deficiently by failing to require Movant’s presence during
the execution of peremptory strikes, by failing to object to Movant’s absence during the
execution of peremptory strikes, and by failing to provide an opportunity for Movant to discuss
his opinions and misgivings with trial counsel regarding potential jurors.
“A criminal defendant’s right to be present at every stage of a criminal trial is rooted, to a
large extent, in the Confrontation Clause of the Sixth Amendment and is protected to some
extent by the Due Process Clause of the Fifth and Fourteenth Amendments.” United States v.
Picardi, 739 F.3d 1118, 1123 (8th Cir. 2014) (quoting United States v. Smith, 230 F.3d 300, 309
(7th Cir. 2000)). The Sixth Amendment protects a defendant’s right to be present where the
defendant is confronting witnesses or evidence against him, see Picardi, 739 F.3d at 1123, and
the Due Process Clause protects a defendant’s right to be present “to the extent a fair and just
hearing would be thwarted by his absence, and to that extent only . . . in light of the record as a
3
Movant attempts to argue the burden should be on the Government to show harmless error beyond a reasonable
doubt. The Court disagrees. This case is before the Court on a collateral proceeding and the burden rests on the
Movant. Kress v. United States, 411 F.2d 16, 20 (8th Cir. 1969) (“In a § 2255 proceeding, the burden of proof with
regard to each ground for relief rests upon the petitioner[.]”). To the extent Movant alleges his absence during jury
selection constitutes a constitutional violation other than ineffective assistance of counsel, Movant had the
opportunity to raise that issue on direct appeal. To the extent he did raise that issue on direct appeal, a 2255 motion
may not be used to re-litigate such matters. See Sun Bear v. United States, 644 F.3d 700, 702 (8th Cir. 2011). To
the extent Movant did not raise the issue on direct appeal, he must now show both cause excusing his double
procedural default and actual prejudice resulting from the errors of which he complains. See id. at n. 3; United
States v. Frady, 456 U.S. 152, 168 (1982); United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996). Even if the
Court assumes Movant’s alleged absence during the execution of peremptory strikes constitutes a constitutional
violation and assumes the issue was not litigated by the Eighth Circuit on direct appeal, see United States v. Horton,
756 F.3d 569, 574 n. 5 (8th Cir. 2014), Movant has failed to establish prejudice under Frady for the reasons stated
herein. Movant cites no cases where the Court has placed the burden on the Government in a similar 2255 action.
6
whole.”
See United States v. Gagnon, 470 U.S. 522, 526-27 (1985) (quoting Snyder v.
Massachusetts, 291 U.S. 97, 105-106 (1934)). Federal Rule of Criminal Procedure 43 further
codifies the right to be present. As explained by the Eighth Circuit, “the codified right expressed
in Rule 43 . . . ‘is broader than the constitutional right, and includes the right of the criminal
defendant to be present during all stages of his or her trial.’” Picardi, 739 F.3d at 1123 (quoting
Smith, 230 F.3d at 309-310). Rule 43 states that, unless provided otherwise, “the defendant must
be present at . . . every trial stage, including jury impanelment[.]” Fed. R. Crim. P. 43(a)(2).
“To be sure, the process of ‘impaneling’ a jury – at which Fed. R. Crim. P. 43 insures the
defendants’ presence – encompasses all the steps of selecting a jury, including the peremptory
striking of members of the venire.” United States v. Chrisco, 493 F.2d 232, 236 (8th Cir. 1974).
The Eighth Circuit holds that a criminal defendant is sufficiently “present” at impaneling of the
jury to satisfy both Rule 43 and the Constitution where: (1) the defendant was present in the
courtroom while the potential jurors were questioned, (2) the defendant had an opportunity to
register his opinions of the venire with counsel, and (3) the defendant was present in the
courtroom when the clerk gave effect to the strikes by reading off the list of jurors who had not
been stricken. See id. at 236-37; United States v. Gayles, 1 F.3d 735, 738 (8th Cir. 1993); see
generally Williams v. Kemna, 311 F.3d 895, 898 (8th Cir. 2002) (citing Cohen v. Senkowski, 290
F.3d 485, 490 (2d Cir. 2002)).
Here, as in Chrisco and Gayles, the peremptory strikes were executed during a recess.
The testimony and evidence clearly show that Movant was present in the courtroom when the
potential jurors were questioned and when the strikes were “given effect.” Thus, the only
question before the Court is whether Movant had sufficient opportunity to register his opinions
of the veniremembers with trial counsel.
Upon review of the evidence and the diverging
7
testimonies on that issue, the Court finds the testimony of trial counsel Bob Lewis is credible and
Defendant was provided sufficient opportunity to register his opinions of the potential jurors
with trial counsel.
Mr. Lewis’ testimony was consistent with the two prior affidavits that he submitted in
this case. See Docs. 6-4, 15-1. His testimony was also consistent with Ms. Jones’ testimony.
Although Ms. Jones had no independent recollection of discussing peremptory strikes with her
client, she testified that her normal practice is to do so and if her normal practice was not
followed, the situation would stick out in her mind. The transcript and CSO daily activity log are
consistent with Mr. Lewis’ testimony because they show Horton was taken down to a holding
cell when the Court stood in recess after juror questioning and strikes for cause. Horton was then
returned to the courtroom approximately five minutes before the proceedings reconvened. Even
accounting for travel time, this left sufficient time for Horton to convey his opinions to trial
counsel regarding the potential jurors prior to the proceedings reconvening. This is especially
true considering Horton testified that he was adamant, heated, and “ready to explode” on his
attorney when he returned to the courtroom. Moreover, one of the potential jurors about whom
Horton allegedly had concerns had already been stricken for cause by the time of the recess;
thus, per Horton’s hearing testimony, there were only two remaining potential jurors about
whom he had significant negative impressions.
The fact that Horton never raised his alleged inability to discuss peremptory strikes with
counsel prior to these collateral proceedings weighs against Horton’s credibility. The transcript
shows that after the peremptory strike recess, but before the venire panel reentered the room,
Judge Dorr stated that the jury had been selected and the clerk would read the names of the
jurors/alternates to be seated; when the Judge asked if everyone understood that, Horton made no
8
statement or objection to the Court. Tr. 162. Approximately thirty minutes later, after the jury
had been sworn in and dismissed for the day but before the Court stood in recess, the Court
asked the parties if there was “[a]nything else anybody wants to cover tonight before we recess
for the evening”; Horton again did not bring the alleged injustice to the Court’s attention. Tr.
173. The next morning, Judge Dorr asked whether there were any other issues or concerns that
he should address before the jury entered the room to begin opening statements; Horton
remained silent. Tr. 177-178. Judge Dorr made similar statements throughout the trial yet
Horton never raised the issue now presented. Movant testified that he did not bring the issue to
the Court’s attention because, in part, he thought Judge Dorr was annoyed with him from pro se
filings and self-representation prior to trial; however, a review of the record shows that Movant
did not appear before Judge Dorr until the first day of trial and the first thing Movant said to
Judge Dorr during the pre-trial evidentiary hearing, in which he represented himself, was that
Mr. Lewis would represent him for trial. Tr. 12. Nothing in the record suggests irritation or
annoyance by Judge Dorr. Horton also stated he did not raise the issue during trial because he
thought he could only speak through his trial counsel; however, Horton offered no testimony that
he raised the alleged injustice to trial counsel or requested trial counsel to bring the issue to the
Court’s attention at any point after the jury was seated. Following the guilty verdict, Horton
immediately filed a pro se motion for new trial but he did not raise the issue of inability to
discuss the potential jurors with counsel. Doc. 378-379. Although he claims he did not raise the
issue because he thought he had to raise it in a separate motion and he was out of
stamps/stationary, the record shows Horton sent multiple documents to the Court following his
motion for new trial, see Docs. 391, 395-395, 403, which indicates he did have access to
stationary/stamps. Moreover, during sentencing, Judge Dorr gave Horton – who was proceeding
9
pro se at the time – the opportunity to state whatever he wanted to state for the record;4 Horton
discussed various alleged errors resulting in his allegedly unfair trial but he did not mention an
inability to discuss peremptory strikes with counsel. Sentencing Tr. 6-10.
Further weighing against Horton’s credibility are his motive to lie in this litigation (he is
facing a life sentence that has been affirmed on appeal), the sheer number of injustices that he
alleges occurred in this case (see record from below, Eighth Circuit opinion, and Court’s
previous order denying Movant’s 2255 claims), and his prior statements that allege/infer he was
absent both during a large portion of the afternoon voir dire session and when the list of juror
names were read in the courtroom (see, e.g., Doc. 20 at p. 5) both of which are refuted by the
record.
In light of the foregoing, the Court finds the testimony of Mr. Lewis credible. According
to Mr. Lewis’ credible testimony, Horton was provided a legal pad and pen prior to voir dire, he
was advised to take notes regarding his impressions of potential jurors during voir dire, he had
the opportunity to discuss his notes and opinions of the potential jurors with Mr. Lewis in the
courtroom prior to impaneling of the jury, he told Mr. Lewis of one person he wanted on the jury
and at least one person he did not want on the jury, and Mr. Lewis heard Horton’s opinions and
exercised the peremptory strikes in his best professional discretion in light of his client’s best
interests. Horton was present when the list of juror names was read off and made no objection.
Based on the foregoing, the Court finds Movant had sufficient opportunity to discuss the
potential jurors with counsel. See, e.g., Chrisco, 493 F.2d at 236 (8th Cir. 1974) (holding
4
Horton’s pro se post-trial motion for new trial was originally denied because he was represented by counsel (Doc.
383). Horton then filed a motion to proceed pro se and the Court took his pro se status under advisement until
sentencing and ruled on the merits of Horton’s pro se motion for new trial (Doc. 392). At sentencing, Judge Dorr
permitted Horton to proceed pro se. Judge Dorr then explained: “[N]ormally, Mr. Horton, I would hear from
counsel first and then I would hear from the individual, meaning you, if you want to be heard. Since you’re
representing yourself, I’ll just go to you first and then I’ll hear from the government as to the appropriate sentence.
So tell me whatever – and, also, as an individual I would give you the chance to tell me whatever you want to state
for the record.” Sentencing Tr. 6.
10
Constitution and Rule 43 satisfied where “it seems clear from the record that appellants
discussed their misgivings with counsel during or immediately following the formal impaneling
process and that the decision was made by counsel not to raise any objection at that time”);
United States v. Fontenot, 14 F.3d 1364, 1370 (9th Cir. 1994) (sufficient where “Fontenot had
the opportunity to discuss his misgivings with counsel during and immediately following voir
dire, prior to exercising his peremptory challenges”); see also Allen v. United States, No.
4:07CV00027 ERW, 2011 WL 1770929, at *13 (E.D. Mo. May 10, 2011) (counsel sufficiently
consulted with defendant regarding jury selection where defendant provided his attorney a list of
three potential jurors who he wanted stricken).
Because Movant was present in the courtroom during the questioning of potential jurors,
had the opportunity to convey his impressions of the potential jurors to counsel, and was present
in the courtroom when the peremptory strikes were given effect, the record shows Movant was
sufficiently “present” at impaneling of the jury to satisfy both Rule 43 and the Constitution.
Thus, Movant has failed to establish trial counsel acted deficiently during jury selection.
B. Movant failed to establish prejudice resulting from counsel’s allegedly deficient
performance.
Even if the Court were to assume trial counsel did act deficiently, Movant further failed
to establish prejudice resulting from his trial counsel’s allegedly deficient performance. The
Court rejects Movant’s argument that counsel’s allegedly deficient performance results in
structural error and prejudice must be presumed. See generally United States v. Picardi, 739
F.3d 1118, 1123 n. 3 (8th Cir. 2014) (“Structural errors have been recognized in a very limited
set of circumstances, such as the complete denial of counsel, a biased judge, racial discrimination
in jury composition, denial of a public trial, and a defective jury instruction on the reasonable-
11
doubt standard of proof.”); Mickens v. Taylor, 535 U.S. 162, 166 (2002) (holding the
presumption-of-prejudice exception to Strickland applies “where assistance of counsel has been
denied entirely or during a critical stage of the proceeding.”).
The Eighth Circuit has previously refused to apply the presumption-of-prejudice
exception to deficient performance of counsel during voir dire and in exercising peremptory
strikes. See United States v. Kehoe, 712 F.3d 1251, 1254 (8th Cir. 2013); White v. Luebbers, 307
F.3d 722, 729 (8th Cir. 2002). This case is slightly different because Movant alleges he was not
sufficiently present during impaneling of the jury such that his counsel erred by failing to object
to his absence during a critical stage. Although the Eighth Circuit has not directly addressed that
issue, the Eighth Circuit has previously looked to guidance from cases that analyze whether an
error is amenable to harmless error analysis in determining whether to apply the presumption-ofprejudice exception. See McGurk v. Stenberg, 163 F.3d 470, 474 (8th Cir. 1998). A review of
those cases here reveals the harmless error principle has been applied in similar cases involving
violations of a defendant’s Rule 43 right to be present during jury impaneling. See, e.g., United
States v. Tipton, 90 F.3d 861, 874-75 (4th Cir. 1996); United States v. Fontenot, 14 F.3d 1364,
1370 (9th Cir. 1994); United States v. Alessandrello, 637 F.2d 131, 140-144 (3d Cir. 1980);
Henderson v. United States, 419 F.2d 1277, 1278 (5th Cir. 1970); see generally United States v.
Gordon, 829 F.2d 119, 127-128 (D.C. Cir. 1987) (distinguishing between defendant’s absence
for small portion of jury selection versus defendant’s absence from all of jury selection). Based
on the foregoing, the Court declines to presume prejudice in this case because Movant was not
denied counsel entirely during a critical stage of the proceeding and Movant’s absence during
only a portion of the jury impaneling process does not amount to structural error. See generally
United States v. Thomas, 724 F.3d 632, 646 (5th Cir. 2013).
12
Because the Court declines to presume prejudice, Movant must show “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Strickland v. Washington, 466 U.S. 668, 694 (1984). Here, Movant alleges he
would have taken the stand and testified had the jury composition been different; he alleges that
he felt the jury was already against him because two of the jurors about whom he had bad
impressions were seated on the jury – namely, the woman who cried upon hearing the other
woman had been raped by a black man and a man who allegedly stared coldly at the defendants
during voir dire. The Court finds this evidence insufficient to show a reasonable probability that,
but for Mr. Lewis’ alleged errors, the result of the trial would have been different. First, even
assuming Horton had the opportunity to convey his impressions to counsel regarding certain
potential jurors, Mr. Lewis had no duty to follow Horton’s suggested strikes and there is no
evidence that Mr. Lewis failed to “exercise the customary skills and diligence” that a reasonably
competent attorney would have exercised in making the strikes that he did.5 Second, there is no
way to know who would have been on or off the jury, or what impact those persons would have
had on the verdict, had Mr. Lewis struck the juror(s) suggested by Horton.6 Third, the evidence
presented against Horton at trial was so overwhelming that it is unlikely the jury would have
found in Horton’s favor regardless of jury composition or whether he took the stand.7
5
The Court has reviewed the voir dire questions and answers related to the venire woman’s statement that she had
been raped by a black man and notes that that there was nothing especially inflammatory about the woman’s
comment. Moreover, the Court asked various questions both before and after that comment regarding race and the
ability to be impartial. No potential juror indicating they could not be impartial on the basis of race.
6
The exercise of peremptory strikes is rarely between one believed to be a clearly favorable juror and one believed
to be a clearly unfavorable juror. Rather, it is often trying to estimate which potential juror is most unfavorable. Mr.
Lewis is an experienced criminal defense attorney and should not be second guessed for the exercise of his best
professional discretion.
7
The trial transcript shows the case was submitted to the jury at approximately 10:28 a.m. and the jury returned their
verdict at approximately 11:48 a.m. finding Horton guilty of all 16 counts submitted against him.
13
In sum, even assuming Mr. Lewis’ representation was deficient as alleged by Movant,
Movant failed to establish a reasonable probability that, but for counsel’s alleged unprofessional
errors, the result of his trial would have been different.
IV. DECISION
Based on the foregoing, Movant’s remaining claim for relief under § 2255 is DENIED.
As discussed above, Movant failed to meet the requirements of Strickland in order to show
ineffective assistance of counsel such that he is entitled to relief. In light of the ruling made
herein and the Court’s prior ruling on August 3, 2015, Movant’s § 2255 motion is hereby
DENIED IN FULL.
V. CERTIFICATE OF APPEALABILITY
For Movant’s § 2255 claim denied herein, the Court finds Movant failed to make a
substantial showing of the denial of a constitutional right, as required for issuance of a certificate
of appealability. 28 U.S.C. § 2253(c)(2); Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997) (“A
substantial showing is a showing that issues are debatable among reasonable jurists, a court
could resolve the issues differently, or the issues deserve further proceedings.”). Therefore, the
Court shall not issue a certificate of appealability as to the claim raised in Movant’s § 2255
motion related to ineffective assistance counsel surrounding Movant’s alleged absence and lack
of opportunity to discuss peremptory strikes with counsel.
IT IS SO ORDERED.
Dated: October 5, 2015
/s/ Douglas Harpool
DOUGLAS HARPOOL
UNITED STATES DISTRICT JUDGE
14
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?