Jones v. United States of America

Filing 24

ORDER denying 10 Motion for AUSA to Show Authority; denying as moot 17 Motion for Reconsideration ; granting 22 Motion for Extension of Time. Government shall file a copy of the transcript of the 1/30/12 sentencing hearing in CR10-50015 and shall provide a copy to Mr. Jones. Signed by US Magistrate Judge John E. Simko on 6/14/13. (CMS)

FILED

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA

JUN 1; 2013

~~

WESTERN DIVISION

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*
CN.13-5008
RON JONES,
*
*
Movant,
*
*
ORDER
vs.
*
* Motion for AUSA to show Authority (Doc. 10)
UNITED STATES OF AMERICA,
* Motion for Reconsideration (Doc. 17)
* Motion for Extension of Time (Doc. 22)
Respondent.
*
*
************ ***************************************
The Movant, Ron Jones, ("Jones") is a federal prisoner incarcerated at the Florence Federal
Prison Camp in Florence, Colorado. He has filed apro se Motion to Vacate, Set Aside or Correct
Sentencepursuantto 28 U.S.C. § 2255 (Doc. 1), a Memorandum in Support (Doc. 2)' aSupplement
(Doc. 3) consisting of sixty-two exhibits; a Resubmitted Memorandum (Doc. 11); and a Statement
of Brent Liedtke (Doc. 13). Currently pending are Movant's Motion for AUSA Peterman to Show
Authority to Proceed (Doc. 10); Movant's Motion for Reconsideration of the Court's April 2, 2013
Order (Doc. 17) and the Government's Motion for Extension of Time to Respond (Doc. 22).

BACKGROUND
In February, 201 0, a grand jury indicted Jones along with two co-defendants in the District
of South Dakota, Western Division on multiple counts including Conspiracy, Wire Fraud, Mail
Fraud, Money Laundering, Tax Evasion and Aiding and Abetting. See United States v. Ron Jones

a/Ida Ronald Joseph Jones, Arland Clark, and Mary Clark, CR 10-50015, United States District

IThis Memorandum is 104 pages long. Jones did not seek permission to file an over­
length brief. It was stricken for non-compliance with the Local Rules pursuant to the Court's
Order dated February 12,2013 (Doc. 8).

Court, District ofSouth Dakota, Western Div. 2 At the heart ofthe Indictment was Jones's purported
business, Plato Systems, GMBH, Inc. which Jones claimed was a computer software venture. The
grand jury issued a superseding indictment on October 19, 2010, in which Jones and his two co­
defendants were charged with multiple counts ofConspiracy, Wire Fraud, Money Laundering, False
Statements, Tax Evasion, and Aiding and Abetting. 3 On October 3, 2011, Jones filed a plea
agreement and a factual basis statement in which he agreed to plead guilty to three Counts of the
Superseding Indictment: Count 1 (Conspiracy in violation of 18 U.S.C. § 371), Count 12 (Wire
Fraud and Aiding and Abetting in violation of 18 U.S.C. § 1343 and 2) and Count 71 (Money
Laundering in violation of 18 U.S.C. § 1957(a)). CR Doc. 295, 296. In return, the Government
agreed to dismiss the remaining Counts in the Superseding Indictment.

Id. A change of plea

hearing was held before Judge Viken on October 3,2011. CR Doc. 336. Judge Viken thoroughly
questioned Jones before accepting Jones's guilty plea.

Among other things, Jones acknowledged

that:
1.

He was under oath and could be charged with perjury ifhe provided false information
during the plea hearing; id p. 3

2.

He was fully satisfied with the legal advice and representation he'd received from his
lawyer; id. pA

3.

Nobody threatened or pressured him to sign the plea agreement; id. p. 13

4.

He signed the plea agreement as his own free and voluntary act and that it was
acceptable to him; id. p. 14

5.

He fully understood the elements to all the charges to which he agreeing to plead
guilty; id. p. 24.

6.

Every detail in the factual basis statement (CR Doc. 276) signed by him was
accurate; id. p. 25-26.

2References to docket numbers in the criminal case will be by "CR Doc." followed by the
docket number.
3Jones was charged in Counts 1-49, and 60-84 of the Superseding Indictment. CR Doc.
103.
2

7.

He was pleading guilty of his own free will and because he was in fact guilty; id. p.
26.

At the conclusion ofthe very thorough plea colloquy, Judge Viken accepted Jones's guilty
plea. CR Doc. 336 at 29. Jones's sentencing hearing was scheduled for January 30,2012. CR Doc.
299. On January 25,2012, however, Jones moved to withdraw his guilty plea. CR Doc. 333. A
hearing was held before Judge Viken on January 27,2012. During the hearing, Jones changed his
mind and orally withdrew the Motion to Withdraw Guilty Plea. See Judge Viken's Order dated
January 31,2012, CR Doc. 349. Judge Viken's Order explains that during the hearing on Jones's
Motion to Withdraw Guilty Plea, Judge Viken
engaged Mr. Jones in a comprehensive dialogue about his decision to withdraw the
motion to withdraw his guilty pleas. Mr. Jones assured the court the guilty pleas
were knowing and voluntary pleas supported by an independent basis in fact as to
each ofthe essential elements ofeach offense. Mr. Jones acknowledged he is, in fact,
guilty of all three counts of conviction. Mr. Jones acknowledged the filing of the
motion to withdraw his guilty pleas was done in haste, without a basis in fact and he
did not have a valid claim of actual innocence to the three counts of conviction
asserted in his affidavit. (Docket 333-1). Mr. Jones' attorney, Ellery Grey, supported
the oral motion to withdraw guilty pleas and defendant's decision to proceed to
sentencing.
See CR Doc. 349. Jones's sentencing hearing was held on January 30, 2012 and his Judgment of

Conviction was entered on January 31,2012. CR Doc. 350. Jones was sentenced to 96 months
imprisonment. Jones did not file a direct appeal.

Jones filed this Motion to Vacate, Set Aside or Correct Sentence on January 31,2013. He
again asserts actual innocence. Jones asserts his counsel was ineffective, that the prosecutor engaged
in misconduct, and that his sentence is excessive.

Jones now seeks an Order requiring AUSA

Peterman to show cause why he should not be "removed as counsel for the United States in these
proceedings." Jones further requests the Court to reconsider its April2, 2013 Order, requiring Jones
to file an Attorney-Client Waiver form. Finally, the Government requests an extension of time to
respond to Jones's Motion to Vacate. These requests are addressed in tum below.

3

JURISDICTION

This matter is pending before the District Court pursuant to 28 U.S.C. § 2255. It was
assigned to The Honorable Jeffrey Viken and referred to the undersigned pursuant to 28 U.S.C. §
636(b)(1)(B) and Judge Schreier's Standing Order dated March 28,2010.

DISCUSSION

1.

Motion For Order for AUSA Peterman to Show Cause Why he Should Not Be
Removed from the Case. (Doc. to)

Among the claims Jones makes in his Motion to Vacate are allegations that AUSA Peterman
engaged in prosecutorial misconduct in the underlying criminal trial. Jones alleges, among other
things, that AUSA Peterman "enlist[ ed] defense counsel in an effort to guarantee Jones' right to trial
by jury would be emasculated to Jones' prejudice." Doc. 1, p.5.

Jones also alleges "the

ineffectiveness of defense counsel was accompanied by the prosecution and defense counsel acting
in concert to do whatever needed to be done to guarantee that Jones would be coerced to plead guilty,
all to guarantee that no trial would ever occur." Doc. 1, p. 6. In the body of his motion, Jones
explains that AUSA Peterman "cannot represent the United States as counsel in this case [because]

Mr. Peterman will be a witness in this case, and Jones will require Mr. Peterman to be placed under
oath ...to testifY as to his explanations for the conduct alleged in the ...motion." Doc. 10, ~ 1.
Jones explains that if Peterman refuses to answer the Motion under oath, then Jones will propound
interrogatories to Peterman which must be answered under oath. Finally, Jones asserts that if an
evidentiary hearing is held, Peterman will be called by Jones as a witness.

Several rules pertaining to § 2255 motions apply:

Rule 6. Discovery

(a) Leave of Court Required. A judge may, for good cause, authorize a party to
conduct discovery under the Federal Rules ofCriminal Procedure or Ci viI Procedure,
or in accordance with the practices and principles oflaw. If necessary for effective
discovery, the judge must appoint an attorney for a moving party who qualifies to
have counsel appointed under 18 U.S.C. § 3006A.
(b) Requesting Discovery. A party requesting discovery must provide reasons for
the request. The request must also include any proposed interrogatories and requests
for admission, and must specifY any requested documents.
(c) Deposition Expenses. If the government is granted leave to take deposition, the
4

judge may require the government to pay the travel expenses, subsistence expenses,
and fees of the moving part's attorney to attend the deposition.
"A petitioner seeking habeas relief is not entitled to discovery as a matter ofordinary course.
United States v. Taylor, 2012 WL 1833904 (W.D. La.) at *1 citing Bracy v. Gramley, 520 U.S. 899,

904,117 S.Ct. 1793,138 L.Ed.2d 97 (1997). It is within the district court's discretion to grant
discovery upon a fact specific showing ofgood cause. Taylor, 2012 WL 1833904 at *1. Conclusory
allegations are not enough to warrant discovery; the petitioner must set for specific allegations of
fact. Id. "However, Rule 6 does not authorize fishing expeditions. Succinctly stated, habeas corpus
is not a form of relief for those who seek to explore their case in search of its existence." !d.

Rule 7. Expanding the Record
(a) In General. If the motion is not dismissed, the judge may direct the parties to
expand the record by submitting additional materials relating to the motion. The
judge may require that these materials be authenticated.
(b) Types of Materials. The materials that may be required include letters predating
the filing of the motion, documents, exhibits, and answers under oath to written
interrogatories propounded by the judge. Affidavits may also be submitted and
considered as part of the record.
(c) Review by the Opposing Party. The judge must give the party against whom
the additional materials are offered an opportunity to admit or deny their correctness.

Rule 8. Evidentiary Hearing
(a) Determining Whether to Hold a Hearing. Ifthe motion is not dismissed, the
judge must review the answer, any transcripts, and records ofprior proceedings, and
any materials submitted under Rule 7 to determine whether an evidentiary hearing
is warranted.
(b) Reference to a Magistrate Judge. A judge may, under 28 U.S.C. § 636(b), refer
the motion to a magistrate judge to conduct hearings and to file proposed findings of
fact and recommendations for disposition. When they are filed, the clerk must
promptly serve copies ofthe proposed findings and recommendations on all parties.
Within 14 days after being served, a party may file objections as provided by local
court rule. The judge must determine de novo any proposed finding or
recommendation to which objection is made. The judge may accept, reject, or
modify any proposed finding or recommendation.
(c) Appointing Counsel; Time of Hearing. If an evidentiary hearing is warranted,
the judge must appoint an attorney to represent a moving party who qualifies to have
counsel appointed under 18 U.S.C. § 3006A. The judge must conduct the hearing as
soon as practicable after giving the attorneys adequate time to investigate and
prepare. These rules do not limit the appointment of counsel under § 3006A at any
5

stage of the proceeding.
(d) Producing a Statement. Federal Rule of Criminal Procedure 26.2(a)-(d) and (f)
applies at a hearing under this rule. If a party does not comply with a Rule 26.2( a)
order to produce a witness's statement, the court must not consider that witness's
testimony.
"Bare, conclusory allegations unsupported by other indicia ofreliability in the record, do not
compel a federal district court to hold an evidentiary hearing." Estrada v. United States, 2007 WL
1461701 (N.D. Tex.) at *8 (citations omitted). The court reviews the files and records of the case
to determine the necessity ofa hearing. Id. Ifthe movant "produces independent indicia ofthe likely
merit of [his] allegations, typically in the form of one or more affidavits from reliable third parties"
a hearing is warranted. !d. The Eighth Circuit has held, however, that a court is "not required to
conduct an evidentiary hearing on allegations which amounted to no more than a bare contradiction
ofstatements petitioner made when [he] pled guilty." United States v. Unger, 635 F.2d 688,692 (8 th
Cir. 1980). If the allegations go beyond matters covered in the plea hearing or "are supported by
credible affidavits that raised substantial inference that an unkept plea bargain was in fact made,
section 2255 would ordinarily require a hearing." Id.

Finally, "the disqualification of Government counsel is a drastic measure." United States v.

Bolden, 353 F.3d 870, 875 (1oth Cir. 2003). Disqualification is imposed only when necessary and
in limited circumstances. !d. at 878. Before disqualifying a government attorney, the district court
must make specific factual findings and legal conclusions. Id. at 880.

In light of the above-cited authority, the Court finds Jones's motion premature. The
Government has not yet filed its Response to Jones's Petition. The relevant transcripts are not yet
available. In the absence ofthese materials, the Court is unable to make the findings and conclusions
required pursuant to Bolden, or to determine whether discovery or an evidentiary hearing will be
warranted pursuant to Rules 6 or 8, cited above. For these reasons, Jones's Motion For Order for
AUSA Peterman to Show Cause Why he Should Not Be Removed from the Case. (Doc. 10) is
DENIED without prejudice.

6

2.

Motion for Reconsideration, Doc. 17

Next, Jones moves the Court for reconsideration of its Order dated Apri12, 2013 (Doc. 14).
The Court's April 2 Order directed Jones to sign an attorney-client privilege waiver to facilitate
Jones's trial attorney's ability to complete an affidavit regarding Jones's ineffective assistance claims
in this proceeding. Jones cites two reasons for his motion: (1) he already waived the attorney-client
priVilege; and (2) he desires the Court to order an affidavit by not only his trial counsel, but also by
AUSA Peterman, to answer Jones's claims ofprosecutorial misconduct. For the reasons explained
in Section 1 above, the Court will not enter an order requiring A USA Peterman to file an Affidavit.
Because Jones filed the attorney-client waiver form which was the subject of the Court's April 2,
2013 Order (See Doc. 18), Jones's Motion for Reconsideration is DENIED as moot.

3.

Motion for Extension of Time (Doc. 22)

Finally, the Government moves for an extension of time to respond to the Petition. (Doc.
22). The Government explains the transcript ofthe January 30,2012 sentencing hearing is lengthy
because of Jones's motion to withdraw his guilty plea, followed by his withdrawal of the motion.
The Government requests an extension of time of an additional 30 days from June 25,2013.

For

good cause shown, the Motion is GRANTED. The Government's Response to the Petition shall be
filed on or before July 29,2013.

It is further ORDERED that the Government shall file a copy

of the transcript of the January 30,2012 sentencing hearing from CR 10-50015 and shall provide a
copy to Mr. Jones.

7

CONCLUSION and ORDER

For the reasons more fully explained above, it is ORDERED:
(1)

The Motion For Order for AUSA Peterman to Show Cause Why he Should Not Be
Removed from the Case. (Doc. 10) is DENIED;

(2)

The Motion for Reconsideration, (Doc. 17) is DENIED as moot;

(3)

The Motion for Extension of Time (Doc. 22) GRANTED.

(4)

The Government shall file a copy of the transcript of the January 30, 2012
sentencing hearing in CR 10-50015 and shall provide a copy to Mr. Jones.

Dated this

J!l

day of June, 2013.
BY THE COURT:

John
Unite

8

imko
tates Magistrate Judge