Porter v. United States of America
MEMORANDUM DECISION AND ORDER DENYING PETITIONERSMOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY APERSON IN FEDERAL CUSTODY. Signed by Judge Ted Stewart on 07/13/2011. (tls)
IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
JOSEPH FLEMING PORTER,
MEMORANDUM DECISION AND
ORDER DENYING PETITIONER’S
MOTION UNDER 28 U.S.C. § 2255
TO VACATE, SET ASIDE, OR
CORRECT SENTENCE BY A
PERSON IN FEDERAL CUSTODY
UNITED STATES OF AMERICA,
Civil Case No. 2:11-CV-146 TS
Criminal Case No. 2:06-CR-119 TS
This matter is before the Court on Petitioner’s Motion under 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct Sentence by a Person in Federal Custody.1 Petitioner is proceeding pro se
in this matter. Having considered the pleadings and the record before it, the Court finds that all
of Petitioner’s arguments, and their underlying bases, do not establish appropriate grounds upon
which to justify relief under § 2255. Based upon the reasons set forth more fully below, the
Court will deny the Motion and dismiss this case.
Case No. 2:11-CV-146 TS, Docket No. 1.
Petitioner was charged in a two count Indictment on March 8, 2006, with possession of a
firearm by a convicted felon and assault of a federal officer. Prior to trial, Petitioner filed a
motion to suppress seeking to suppress evidence obtained from a warrantless search of his
residence. The Court held a hearing on the motion and ultimately denied it, finding the search
permissible under the exigent circumstance exception to the warrant requirement.
Petitioner ultimately proceeded to trial on April 18, 2007. Petitioner was found guilty of
the charge of possession of a firearm by a convicted felon, but was found not guilty on the charge
of assault of a federal officer.
Petitioner was sentenced on July 9, 2007, to a term of 70 months imprisonment.
Petitioner timely appealed his conviction. On appeal, Petitioner challenged the Court’s ruling on
his motion to suppress. The Tenth Circuit Court of Appeals affirmed the denial of that Motion.2
Petitioner timely filed this Motion on February 8, 2011.
GROUND ONE - ISSUES RAISED ON APPEAL
Ground one of Petitioner’s Motion argues the validity of the warrantless entry into his
home. This issue was raised by Petitioner in a motion to suppress, which was denied by the
Court.3 Petitioner challenged the Court’s ruling on the motion to suppress on direct appeal. The
United States v. Porter, 594 F.3d 1251, 1253 (10th Cir. 2010).
Case No. 2:06-CR-119 TS, Docket No. 33.
Tenth Circuit Court of Appeals affirmed, finding that the warrantless entry into Petitioner’s home
“An issue disposed of on direct appeal will generally not be reconsidered on a collateral
attack by a motion pursuant to 28 U.S.C. § 2255. However, a motion under Section 2255 may be
proper when there was been an intervening change in the law of a circuit.”4 Petitioner raised the
issue contained in ground one of his § 2255 Motion on direct appeal. Petitioner has cited no
change in the law concerning his claim. Therefore, the Court finds this claim to be procedurally
barred and it will be dismissed.
GROUND TWO - INEFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL
Petitioner’s second ground for relief raises a number of claims of ineffective assistance of
counsel. “To demonstrate ineffectiveness of counsel, [Petitioner] must generally show that
counsel’s performance fell below an objective standard of reasonableness, and that counsel’s
deficient performance was prejudicial.”5 To successfully claim ineffective assistance then,
Petitioner must show two things. First, he must show that counsel’s performance was deficient.6
“This requires showing that counsel made errors so serious that counsel was not functioning as
United States v. Nolan, 571 F.2d 528, 530 (10th Cir. 1978) (internal citations omitted).
See also United States v. Prichard, 975 F.2d 789, 791 (10th Cir. 1989) (“Absent an intervening
change in the law of a circuit, issues disposed of on direct appeal generally will not be considered
on a collateral attack by a motion pursuant to § 2255.”).
United States v. Lopez, 100 F.3d 113, 117 (10th Cir. 1996) (citing Strickland v.
Washington, 466 U.S. 668, 687, 690 (1984)).
Strickland, 466 U.S. at 687.
the ‘counsel’ guaranteed [Petitioner] by the Sixth Amendment.”7 Second, he must show that
counsel’s deficient performance prejudiced Petitioner’s defense.8 “This requires showing that
counsel’s errors were so serious as to deprive [Petitioner] of a fair trial, a trial whose result is
reliable.”9 Without both of these showings, Petitioner may not prevail in arguing that his
conviction “resulted from a breakdown in the adversary process that renders the result
A court is to review Petitioner’s ineffective assistance of counsel claim from the
perspective of his counsel at the time he or she rendered the legal services, not in hindsight.11 In
addition, in evaluating counsel’s performance, the focus is not what is prudent or appropriate, but
only what is constitutionally compelled.12 Finally, there is “a strong presumption that counsel
provided effective assistance, and a section 2255 defendant has the burden of proof to overcome
Hickman v. Spears, 160 F.3d 1269, 1273 (10th Cir. 1998).
United States v. Cronic, 466 U.S. 648, 665 n.38 (1984).
United States v. Kennedy, 225 F.3d 1187, 1197 (10th Cir. 2002).
Petitioner “must overcome the presumption that, under the circumstances, the challenged
action ‘might be considered sound trial strategy.’”14 The Supreme Court has stated:
strategic choices made after thorough investigation of law and facts relevant to
plausible options are virtually unchallengeable; and strategic choices made after
less than complete investigation are reasonable precisely to the extent that
reasonable professional judgments support the limitations on investigation. In
other words, counsel has a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary. In any
ineffectiveness case, a particular decision not to investigate must be directly
assessed for reasonableness in all the circumstances, applying a heavy measure of
deference to counsel’s judgments.15
The Tenth Circuit has held that “[s]trategic or tactical decisions on the part of counsel are
presumed correct, unless they were completely unreasonable, not merely wrong.”16
With this framework in mind, the Court considers Petitioner’s various ineffective
assistance claims. Petitioner first claims that his counsel was ineffective for failing to confer
with Petitioner in any meaningful manner. Petitioner’s contention that counsel failed to confer
with him is contradicted by the record. Several docket entries reflect that counsel did, in fact,
Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
Id. at 690-91.
Moore v. Marr, 254 F.3d 1235, 1239 (10th Cir. 2001) (citations and quotation omitted).
confer with Petitioner.17 Further, Petitioner has failed to demonstrate prejudice as he has failed to
show how any additional communication would have resulted in a different outcome.
Petitioner next contends that counsel failed to adequately research the applicable law.
Again this claim is contradicted by the record. In support of Petitioner’s motion to suppress,
counsel submitted an extensive memorandum citing a number of cases relevant to the motion to
suppress. Petitioner has also failed to demonstrate prejudice. Petitioner has failed to provide the
Court with any case law that counsel allegedly failed to address and how that case law would
have altered the outcome of the motion to suppress.
Petitioner next argues that counsel was ineffective for failing to subpoena and compel
John Conner to testify. Petitioner states that Mr. Conner witnessed the incident and is the owner
of the gun at issue. The decision not to call Mr. Conner as a witness was a strategic decision and
Petitioner has failed to show that decision constitutes ineffective assistance of counsel. Further,
Petitioner has failed to show prejudice because he fails to disclose what relevant information, if
any, Mr. Conner would have been able to provide.
Petitioner also argues that counsel failed to develop the defense that Petitioner’s
fingerprints were not found on the weapon, failed to inform the jury that a fingerprint other than
his own was found on the weapon, and had a duty to call a lab technician to explain this. The
See, e.g., Docket No. 48 (“On Friday, January 19, 2007, the government informed
counsel of its decision to seek a continuance. Counsel went to the Weber County Jail with an
investigator to give this information to Mr. Porter. Counsel advised Mr. Porter that a continuance
could provide additional time to find several witnesses that had been difficult to locate and
whose testimony might be useful given the new information that had become available. Mr.
Porter agreed, and counsel informed the government of defendant’s stipulation to the
reason for counsel’s action in this regard is based on a strategic decision to advance a defense of
self defense. As a strategic decision, the Court cannot find counsel’s performance to be
deficient. The Court notes, however, that Petitioner’s defense strategy changed when Petitioner
testified that he did not possess the firearm. Even if the Court were to find counsel’s
performance to be deficient once it became clear that Petitioner was going to deny he possessed
the firearm, the Court finds that Petitioner has not shown he was prejudiced by this failure. At
trial, the government conceded that Petitioner’s fingerprints were not on the weapon.18
Therefore, the Court finds that this claim fails.19
Petitioner’s final ineffective assistance claim concerns a statement made by his counsel
during closing arguments. Specifically, Petitioner takes issue with the following statement by
counsel: “Well, nobody in that room should be having a gun. That's very odd. But this is not a
decision you have to make quickly. And the simplest answer isn’t always the right answer.”20
This statement, however, must be put into the context of counsel’s entire closing. In his closing
counsel stressed the fact that, though there were many individuals who all testified seeing
Petitioner with the weapon, the easiest answer (that Petitioner did possess the weapon) was not
necessarily the correct answer. When viewed in this context, the Court cannot find counsel’s
closing argument to be deficient or prejudicial.
Docket No. 117 at 10:20-11:10.
See United States v. Falls, 204 F.3d 736, 738 (10th Cir. 2006) (finding counsel not
ineffective for failing to present expert witness regarding absence of fingerprints on plastic bags
that contained drugs where government stipulated that defendant’s fingerprints were not on the
Docket No. 119 at 216:2-5.
Based on all of the above, the Court finds that counsel’s performance during trial was not
ineffective and Petitioner’s claims on this ground will be dismissed.
GROUND THREE - INEFFECTIVE ASSISTANCE OF COUNSEL ON APPEAL
Petitioner’s third ground for relief asserts that his appellate counsel was ineffective for
failing to file a timely petition for a writ of certiorari. The Supreme Court has held that a
criminal defendant does not have a constitutional right to counsel to pursue applications for
review before the Supreme Court.21 As Petitioner had no constitutional right to counsel, “he
could not be deprived of the effective assistance of counsel by his retained counsel’s failure to
file the application timely.”22 Therefore, the Court will dismiss Petitioner’s claim that his
counsel on appeal was ineffective.
Based upon the above, it is hereby
ORDERED that Petitioner’s § 2255 Motion (Docket No. 1 in Case No. 2:11-CV-146 TS)
is DENIED. It is further
ORDERED that, pursuant to Rule 8(a) of the Rules Governing § 2255 Cases, an
evidentiary hearing is not required.
The Clerk of Court is directed to close Case No. 2:11-CV-146 TS forthwith.
Wainwright v. Torna, 455 U.S. 586, 587 (1982) (citing Ross v. Moffitt, 417 U.S. 600
See id. at 587-88.
DATED July 13, 2011.
BY THE COURT:
United States District Judge
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