Pippenger v. United States of America
Filing
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MEMORANDUM OPINION AND ORDER denying 1 Motion to Vacate, Correct or Set Aside Sentence; declining to issue certificate of appealability. Motions terminated: denying 3 MOTION to Appoint Counsel filed by Branyon Dale Pippenger, 16 MOTION to Dismiss Motion Pursuant to 28 U.S.C. 2255 filed by United States of America, denying 13 MOTION to Appoint Counsel filed by Branyon Dale Pippenger. Signed by U. S. District Judge Lawrence L. Piersol on 8/6/12. (SLW)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
FILED
AUG 062012
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BRANYON DALE PIPPENGER,
Petitioner,
-vs
UNITED STATES OF AMERICA,
Respondent.
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CIV.. 11-4094
CR. 07-40055
MEMORANDUM AND ORDER
RE: MOTION TO V ACATE,
CORRECT OR SET ASIDE SENTENCE
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Petitioner, Branyon Dale Pippenger, filed a Motion to Vacate, Correct or Set Aside Sentence
pursuant to 28 U.S.C. § 2255, and the United States has responded and moved to dismiss the
Motion.. In his motion Pippenger raises a number of ineffective assistance ofcounsel claims against
both trial and appellate counsel and a due process violation claim. For the reasons set forth below,
the motion is denied.
BACKGROUND
After Pippenger was charged in a second superseding indictment with conspiracy to distribute
and possess with intent to distribute 50 grams or more of a mixture or substance containing cocaine
base in violation of21 U.S.C. §§ 841 (a)(1 ) and 846 and was convicted by a jury ofthat charge, this
Court granted Pippenger and his co-defendants a new trial. Pippenger was then charged in a third
superseding indictment with the same charge and new trial counsel was appointed for him. On May
28, 2009, a jury convicted Pippenger of this charge. This Court then sentenced Pippenger to the
mandatory minimum sentence of 120 months of imprisonment.
Pippeneger appealed his conviction and sentence to the Eighth Circuit Court ofAppeals. New
counsel was appointed on appeal. On appeal Pippenger argued that the evidence was insufficient to
support a conviction, that this Court abused its discretion by denying his motion for a mistrial, that
this Court erred in denying him safety valve relief, and that this Court erred by failing to grant a
mistrial sua sponte based on alleged prosecutorial misconduct. The Eighth Circuit Court ofAppeals
affirmed on all issues. See United States v. Pippenger, 409 Fed.Appx. 36 (8th Cir. 2010). Pippenger
then filed this timely motion under 28 U.S.c. § 2255.
DISCUSSION
General Principles Regarding Ineffective Assistance ofCounsel
Under Strickland v. Washington, 466 U.S. 668, 687 (1984), a petitioner in a motion under
28 U.S.c. § 2255 must make the following two showings to obtain relief for an ineffective
assistance of claim:
First, the defendant must show that counsel's performance was deficient. This
requires showing that counsel made errors so serious that counsel was not
functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment.
Second, the defendant must show that the deficient performance prejudiced the
defense. This requires showing that counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.
A court's scrutiny ofcounsel's performance must be "highly deferential." Id. at 690; Gregg v. United
States, 683 F.3d 941, 943-944 (8th Cir. 2012). A criminal defendant is also entitled to effective
assistance of counsel on first appeal as of right. Evitts v. Lucey, 469 U.S. 387 (1985).
Ineffective assistance claim- failure to cross examine
witness~
on ability to identifY Piipenger
Pippinger contends that his trial counsel was ineffective in failing to cross examine three
government witnesses on their inability to identify Pippenger at his first trial, when they were able
to identify Pippenger at his second trial. At the first trial when the prosecutor asked witness Horace
Bonner ifhe saw Pippenger in the courtroom, Bonner responded, "I can't be sure." Bonner testified
at the first trial, however, as to having approximately fifteen dealings with Pippenger. At the second
trial Bonner was asked by the prosecutor, "Do you see Bam [Pippenger] in this courtroom? Do you
mind in help relocate your chair?" Bonner then identified Pippenger. Pippenger's trial counsel did
not cross examine Bonner regarding his failure to identify Pippenger in the first trial.
At his first trial the prosecutor asked Felicia Bonwell if she saw Pippenger in the courtroom.
After Felicia Bonwell stated she did not see him, the following exchange took place:
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[Prosecutor]:
I think what I need you to do is stand up, okay.
[Felicia]:
I don't have any glasses.
[Prosecutor]: Do you have glasses available to you?
[Felicia]:
No.
Felicia Bonwell then testified at the first trial that she bought dope from Pippenger on several
occasions.
At Pippenger's second trial Felicia Bonwell and the Prosecutor engaged in the following
exchange:
[Prosecutor]: I see you are wearing glasses, do you need those to read or see distance?
[Felicia]:
To see.
[Prosecutor]: To see which way, a long ways away or to read things?
[Felicia]:
To see a long ways away.
The prosecutor then had Felicia Bonwell wear her glasses and identify Pippenger. Trial counsel did
not question Felicia Bonwell regarding her inability to identify Pippenger at the first trial.
At Pippenger's first trial when the prosecutor asked Allison Crawford if she saw Pippenger
in the courtroom, she responded, "No, but my eyes are messed up." Allison Crawford then testified
that Pippenger sold crack cocaine from her apartment.
At Pippenger's second trial the prosecutor asked Allison Crawford to identify Pippenger
after the prosecutor commented, "J see you are wearing your glasses, is that right?" Allison Crawford
then identified Pippenger. Trial counsel did not question Allison Crawford regarding her inability
to identify Pippenger at the first trial.
Even if trial counsel should have questioned these witnesses as to their prior inability to
identify Pippenger in the courtroom this Court cannot conclude that this failure to question was "so
serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth
Amendment" Stricklandv. Washington, 466 U.S. at 687. The inability to identify Pippenger did not
stop these witnesses from providing incriminating testimony against Pippenger in both of his trials.
Also, other witnesses identified and incriminated Pippenger in his second trial. In consideration of
the evidence against Pippenger, this Court cannot conclude that any error committed by trial counsel
in failing to cross examine with regard to these three witnesses' inability to identify him at the first
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trial met the prejudice requirement of Strickland. Any error in this regard was not "so serious as to
deprive the defendant of a fair trial, a trial whose result is reliable." Id.
Ineffective Assistance Claim- Failure to Question Officer Mills About Inconsistencies
Pippenger contends that his trial counsel was ineffective in failing to question witness Officer
Mills about the inconsistencies between his report and the testimony of Michelle Lewis. Officer
Mills testified before Michelle Lewis testified at Pippenger's triaL Mills testified about an incident
on June 11,2007, involving Pippenger, Michael Smith and Michelle Lewis. During Officer's Miller
contact with these individuals on June 11, 2007, plastic baggies, some of which contained drugs,
were found under the front passenger side floor and seat of a vehicle in which Pippenger was the
back seat passenger, Smith was the driver and Michelle Lewis was the front seat passenger. Officer
Mills was called as a witness by the prosecution immediately before Michelle Lewis testified.
Michelle Lewis testified that "dope was just thrown all over the place." Trial counsel for Pippenger
cross-examined Michelle Lewis as to a number of statements she had made to Officer Mills and
emphasized that the crack was found under and in front of Michelle Lewis and that Michelle Lewis
had told Officer Mills that she had no idea where the crack came from. Trial counsel did not call
Officer Mills as a defense witness but clearly established during cross examination of Officer Mills
that "the packages were found in front of [Michelle Lewis] or right under her seat."
In order to question Officer Mills regarding Michelle Lewis' testimony, Pippenger's trial
counsel would have had to call Officer Mills to testifY as a defense witness. Whether or not to call
a government witness in a defendant's case is a matter of trial strategy. The courts give great
deference to counsel's informed strategic decisions. See Middleton v. Roper, 455 F.3d 838,848-849
(8th Cir. 2006); Laws v. Armontrout, 863 F.2d 1377, 1393 (8th Cir.1988). In consideration of the
cross examination counsel for Pippenger conducted of Officer Mills and Michelle Lewis, and in
consideration ofthe potential for a rehash ofincriminating evidence against Pippenger ifcounsel for
Pippenger called Officer Mills as a defense witness, the Court does not find that trial counsel was
ineffective in not Officer Mills to testifY with regard to Michelle Lewis' testimony.
Ineffective Assistance Claim- Agreement on Curative Instruction
Although the Court had ordered that the witnesses not reference Pippenger's arrest on astate
court charge arising from the Jule 11,2007 incident, Michelle Lewis unexpectedly stated during her
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testimony that she along with Pippenger and Michael Smith were "all thrown injail." Trial counsel
immediately requested a bench conference and moved for a mistrial. The Court considered informing
the jury that the state charge alluded to by Lewis was dismissed. The prosecutor then informed the
Court and Pippenger's trial counsel that the state charge had been dismissed in favor of the federal
case and that he was prepared to produce a witness on that point if the Court instructed the jury that
the state charge had been dismissed without further explanation .. The Court denied the motion for
mistrial and advised the attorneys that it would give the curative instruction regarding dismissal of
the state charge to the jury. Before the Court gave the instruction, however, trial counsel and the
prosecutor agreed that the Court should simply instruct the jury to disregard Michelle Lewis'
statement regarding getting thrown injaiL In accordance with this agreement, the Court instructed,
"Yesterday the witness Michele Lewis made the statement as follows, so we all got thrown in jail
that night end quote. The jury is directed to disregard that statement." Pippenger now asserts that trial
counsel was ineffective in agreeing to this curative instruction instead of demanding that the Court
instruct that the state charge was dismissed.
The Court will not second guess trial counsel's strategy. In this instance, trial counsel entered
into the agreement to avoid the prejudice of a government witness explaining that the state charge
was dismissed only because the federal government brought charges. This Court rejects Pippenger's
claim of ineffective assistance of counsel regarding trial counsel's handling of the curative
instruction.
Ineffective Assistance Claim- Misrepresentation to Presentence Investigation Officer
Pippenger contends his trial counsel was ineffective in misrepresenting to the presentence
report writer that Pippenger admitted to the distribution of 50 grams of crack. At Pippenger's
sentencing hearing trial counsel stated:
And also to put on the record that in the presentence report I had made a statement
in my objections that my client had admitted to the distribution of 500 grams, or not
500, 50 grams of crack cocaine. My client insisted that I correct that. I was hoping
to qualify my client for the safety valve, I didn't have my client's authority to put that
in the objections and he does not want that in. He does not think he is responsible
for 50 grams, but something less than that.
Assuming for the purpose of argument in this Section 2255 motion, that it is deficient
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performance for an attorney to misrepresent that his client has admitted to distribution of an amount
of drugs that his client has actually denied, Pippenger must still establish that he was prejudiced by
his counsel's performance. In the case at hand the jury in its verdict form found Pippenger guilty of
conspiring to distribute 50 grams or more of crack cocaine and rejected the opportunity to find him
guilty of conspiring to distribute lesser quantities of crack cocaine. It is clear from the presentence
report that the presentence report writer independently determined that Pippenger was involved in
distributing in excess of 50 grams of crack. In addition, trial counsel advised the Court of the
misrepresentation and the reason for the same before Pippenger's sentence was announced.
Pippenger was not prejudiced by his counsel's conduct in misrepresenting to the presentence writer
that Pippenger admitted to the distribution of 50 grams of crack and is not entitled to relief under 28
U.S.c. § 2255 based on this conduct.
Due Process Claim - Alleged Failure To Receive an Initial Appearance
Pippenger claims that he did not receive an initial appearance to be informed ofthe charges
against him which were contained in the third superseding indictment. The record clearly refutes this
claim. Docket Entry 1419 in his criminal case contains the minute entry for February 25,2009. This
minute entry discloses that Pippenger with trial counsel from his second trial appeared before United
States Magistrate Judge John Simko for an initial appearance and arraignment on the third
superseding indictment. The minute entry reflects that at the February 25,2009 hearing, Pippenger
received a copy ofthe third superseding indictment, had the charges read aloud to him in court, and
was advised of the maximum possible penalties. At this proceeding, Pippenger pled not guilty and
his trial counsel argued for his release from custody. Based on the record, Pippenger's claim for
relief under 28 U.S.C. § 2255 for a Due Process violation must be denied.
Ineffective Assistance Claim- Appellate Counsel
Pippenger claims that his counsel on appeal was ineffective in failing to amend his brief and
request relief under the Fair Sentencing Act of 20 10. Pippenger claims that his counsel on appeal
incorrectly advised him that the Fair Sentencing Act of201 0 did not apply to him. The United States
Supreme Court has recently ruled that the more lenient penalties ofthe Fair Sentencing Act of201 0,
which reduced the crack-to-powder cocaine disparity, apply to those offenders whose crimes
occurred before the effective date ofthe Fair Sentencing Act, but who were sentenced after that date.
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Dorsey v. United States, 132 S.Ct. 2321 (2012). The Fair Sentencing Act took effect on August 3,
2010. Pippenger was sentenced in September of 2009. The Fair Sentencing Act does not apply to
Pippenger and counsel on appeal was not ineffective in failing to request relief under the Act.
Accordingly,
IT IS ORDERED:
1. That Pippenger's requests for appointment of counsell (Doc. 3, 13) are denied:
2. That Pippenger's Motion to Vacate, Correct or Set Aside Sentence pursuant to 28 U.S.C.
§ 2255 is denied; and
3. That the Court declines to issue a certificate of appealability with regard to any of the
issues raised in the § 2255 motion.
Dated this
~ day of August, 2012.
BY THE COURT:
ATTEST:
JOSEPH HAAS, CLERK
BY:
,'SW::llJlXll
(SEAL)
awrence L. Piersol
nited States District Judge
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DEPUT
IIfthe Court had deemed an evidentiary hearing necessary, counsel would have been
appointed, see Rule 8(c) of the Rules Governing Section 2255 proceedings, but in this case an
evidentiary hearing is not warranted.
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