Banks v. USA, No. 1:2010cv00183 - Document 12 (D. Idaho 2010)
Court Description: MEMORANDUM AND ORDER denying 4 Motion to Appoint Counsel ; granting 7 Motion to Dismiss. Signed by Judge William B. Shubb. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by cjm)
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Banks v. USA Doc. 12 1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 FOR THE DISTRICT OF IDAHO 12 ----oo0oo---13 14 JERRY LEVIS BANKS, SR., 15 Petitioner, 16 17 CASE NO. CV. 1:10-183 BLW (NO. CR. 06-051-S-WBS) v. MEMORANDUM AND ORDER RE: MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255 UNITED STATES OF AMERICA, 18 Respondent. 19 / 20 ----oo0oo---21 Petitioner Jerry L. Banks, Sr., moves to vacate, set 22 23 aside or correct his conviction and sentence pursuant to 28 24 U.S.C. § 2255 and requests appointment of counsel to represent 25 him in these proceedings. 26 I. 27 28 Factual and Procedural Background On April 20, 2006, petitioner was indicted on two counts of possession of sexually explicit images of a minor, one 1 Dockets.Justia.com 1 count of production of sexually explicit images of a minor, three 2 counts of transmission of sexually explicit images of a minor by 3 computer, one count of receiving sexually explicit images of a 4 minor, one count of attempted interstate enticement, and one 5 count of criminal forfeiture. 6 was found guilty on counts one through four, six, eight, and nine 7 and sentenced to life in prison plus sixty years.1 8 v. Banks, No. 06-cr-00051 (D. Idaho Apr. 16, 2007). 9 subsequently appealed to the Ninth Circuit, which affirmed his 10 conviction. 11 2009). 12 After a bench trial, petitioner United States Petitioner United States v. Banks, 556 F.3d 967 (9th Cir. On April 5, 2010, petitioner filed the instant motion 13 pursuant to 42 U.S.C. § 2255 to vacate, correct, and set aside 14 his sentence, containing six claims of ineffective assistance of 15 counsel at trial and one claim of ineffective assistance of 16 counsel on appeal. 17 motion for appointment of counsel and the government’s motion to 18 dismiss petitioner’s § 2255 motion. 19 II. Currently before the court are petitioner’s Discussion To prevail on a § 2255 motion, a petitioner must allege 20 21 facts that, if true, would entitled him to relief. United States 22 v. Rodrigues, 354 F.3d 818, 824 (9th Cir. 2003). 23 appears from the motion, any attached exhibits, and the records 24 of the prior proceedings that the moving party is not entitled to 25 relief, the judge must dismiss the motion . . . .” 26 R. 4(b). “If it plainly Section 2255 A court must grant an evidentiary hearing on a 27 28 1 Counts five and seven were dismissed before trial. (Docket No. 97.) 2 1 prisoner’s § 2255 motion “[u]nless the motion and the files and 2 records of the case conclusively show that the prisoner is 3 entitled to no relief.” 4 F.3de 1157, 1159 (9th Cir. 2000) (quoting 28 U.S.C. § 2255). 5 court may accordingly deny a prisoner’s § 2255 motion without a 6 hearing if his allegations “do not state a claim for relief or 7 are so palpably incredible or so patently frivolous as to warrant 8 summary dismissal.” 9 (9th Cir. 2003). 10 A. United States v. Chacon-Palomares, 208 The United States v. Leonti, 326 F.3d 1111, 1116 Ineffective Assistance of Counsel To prevail on a claim of ineffective assistance of 11 12 counsel, a defendant must show “(1) that counsel’s performance 13 was so deficient that it fell below an objective standard of 14 reasonableness and (2) that the deficient performance rendered 15 the results of [the] trial unreliable or fundamentally unfair.” 16 Cox v. Ayers, 588 F.3d 1038, 1046 (9th Cir. 2009) (citing 17 Strickland v. Washington, 466 U.S. 668 (1984)). 18 Court has recognized that a claim for ineffective assistance of 19 counsel “must satisfy both prongs of [this] test in order to 20 prevail.” 21 The Supreme Smith v. Robbins, 528 U.S. 259, 289 (2000). Counsel’s performance is so deficient that it falls 22 below an objective standard of reasonableness when the behavior 23 complained of fails to meet “prevailing professional norms.” 24 United States v. McMullen, 98 F.3d 1155, 1158 (9th Cir. 1996). 25 However, in 26 27 28 analyzing the performance of counsel, judicial scrutiny is deferential. The court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. The burden is on 3 1 2 petitioner to identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. 3 Cox, 588 F.3d at 1046. A failure to raise a meritless issue does 4 not amount to ineffective assistance of counsel because the 5 defendant is not prejudiced by the omission. Id. at 17. 6 To demonstrate prejudice, the movant must show that 7 there is a reasonable possibility that, but for counsel's 8 unprofessional errors, the result of the proceeding would have 9 been different. Strickland, 466 U.S. at 694. In determining if 10 movant was prejudiced, the court must consider the totality of 11 the evidence before the trial judge. Id. at 695. 12 1. Rule 29 Motions 13 Petitioner’s first through fourth claims are that 14 counsel was deficient in failing to “motion the court for relief 15 under Rule 29.” Under Federal Rule of Criminal Procedure 29, 16 “after the close of all the evidence, the court on the 17 defendant’s motion must enter a judgment of acquittal of any 18 offense for which the evidence is insufficient to sustain a 19 conviction.” Fed. R. Crim. P. 29(a). Petitioner argues that 20 there was insufficient information produced at trial on which the 21 judge might render a decision, in regard to the charges for 22 possession, transportation, and production of child pornography. 23 Evidence is sufficient to sustain a conviction if, viewed in the 24 light most favorable to the government, it would allow any 25 rational trier of fact to find the essential elements of the 26 crime beyond a reasonable doubt. United States v. Stoddard, 150 27 F.3d 1140, 1144 (9th Cir. 1998). 28 4 1 It must be remembered that this was not a jury trial; 2 the undersigned judge was the trier of fact. “‘In a bench trial, 3 the judge, acting as the trier of both fact and law, implicitly 4 rules on the sufficiency of the evidence by rendering a verdict 5 of guilty.’” 6 Cir. 2009) (citing United States v. Atkinson, 990 F.2d 501, 503 7 (9th Cir. 1993) (en banc)). 8 court evaluated the record and found the evidence sufficient to 9 sustain a conviction. United States v. Brobst, 558 F.3d 982, 1000 (9th By entering a guilty verdict, the Banks, No. 06-cr-00051 (D. Idaho Apr. 16, 10 2007). Accordingly, counsel’s failure to make a Rule 29 motion 11 could not have impacted the outcome of the trial because in 12 rendering its guilty verdict the court implicitly decided that 13 the evidence was sufficient to sustain a conviction. 14 States v. Atkinson, 990 F.2d 501, 503 (9th Cir. 1993). See United 15 2. Computer Ownership 16 Petitioner also argues that his counsel failed to 17 inform the court that computers seized by police, which contained 18 child pornography, were not petitioner’s personal property but 19 rather the property of his corporation, Bankscom Electronics 20 Incorporated (“Bankscom”). 21 by Bankscom would have had no effect on the court’s verdict. 22 evidence clearly established that petitioner and Bankscom were 23 for all practical purposes one and the same. 24 Proof that the computers were owned The Bankscom was a corporation registered in the state of 25 Idaho that had its office in petitioner’s garage at 2133 Vista 26 Avenue in Boise, Idaho. 27 testified that petitioner “had a corporation” named Bankscom 28 Electronics (Transcript of Record (“TR”) at 481:1-4.) At trial, petitioner’s wife and daughter 5 Petitioner 1 stipulated that the FBI recovered three computers and other 2 electronic evidence introduced at trial from his garage, which is 3 also Bankscom’s office. 4 also referred to petitioner’s garage as “Bankscom Electronics” 5 during the trial. 6 linked together in a network named “Bankscom.” 7 Witnesses also testified that petitioner’s email addresses 8 included “bankscomelectronic2005” (at 507:2), “banksco@msn.com” 9 (TR at 102: 23), “bankscomelec@msc.com (TR at 102: 24), and (Docket No. 72.) (TR at 227:7-8.) Petitioner’s counsel Petitioner’s computers were 10 “banksco2002@msn.com.” 11 son testified that petitioner spent “most of his time” in the 12 garage and that people occasionally came to the garage to get 13 their computers fixed. 14 (TR at 129:14.) (TR at 763-765.) Finally, petitioner’s (TR at 576:22.) “In the electronic context,” a person receives and 15 possesses child pornography “if he or she . . . exercises 16 dominion and control over it.” 17 990, 998 (9th Cir. 2006). 18 petitioner exercised dominion and control over the garage, the 19 technical distinction as to whether the computers therein were 20 owned by petitioner personally or by his corporation was 21 irrelevant. 22 raise the issue of whether the computers were owned by petitioner 23 personally or petitioner’s corporation was prejudicial. United States v. Romm, 455 F.3d Because the evidence established that Petitioner has not shown that counsel’s failure to 24 3. Failure to Cross Examine Witnesses 25 Petitioner argues that his counsel was also ineffective 26 because he failed to cross examine the government’s witnesses. 27 (Mot. to Dismiss 6.) 28 effort to question witnesses nor to produce any testimony or Petitioner also claims that counsel made no 6 1 facts favorable to petitioner. 2 trial record clearly shows that counsel cross examined twelve 3 government witnesses (TR at 118-23, 210-230, 341-352, 417-420, 4 432-433, 508-513, 554-562, 633-641, 655-668, 738-745, 908-939, 5 967-969) and called one witness for the defense. (TR at 970-976, 6 982-983.) 7 his ineffective assistance of counsel claim for failure to cross- 8 examine witnesses at trial. 9 10 These claims are belied by the Accordingly, petitioner is not entitled to relief on 4. Failure to Challenge Sentence Petitioner finally contends that counsel was 11 ineffective on appeal because “counsel failed to attack the 12 sentence handed down by the district court. 13 ‘life plus sixty years’ is an inordinately long sentence under 14 the circumstances and . . . amount[s] to cruel and unusual 15 punishment.” 16 demonstrate he suffered prejudice as a result of counsel’s 17 failure to attack the length of his sentence. 18 (§ 2255 Mot. at 6.) The sentence of Plaintiff again fails to Petitioner’s enhanced sentence was required by statute 19 because of petitioner’s prior sex offense convictions. 20 U.S.C. § 3559(e)(1) (“A person who is convicted of a Federal sex 21 offense in which a minor is the victim shall be sentenced to life 22 imprisonment if the person has a prior sex conviction in which a 23 minor was the victim, unless the sentence of death is imposed.”); 24 Statutory schemes that increase recidivists’ sentences have 25 regularly survived Eighth Amendment challenges. 26 v. Raley, 506 U.S. 20, 27 (1992) (noting that the Supreme Court 27 has rarely struck down sentence enhancements for recidivists); 28 Lopez v. Campbell, No. 05-00481, 2008 U.S. Dist. LEXIS 92809, at 7 See 18 See, e.g., Parke 1 *72 (E.D. Cal. Nov. 5, 2008) (upholding a sentence of 147 years 2 to life plus forty seven years that factored in sentence 3 enhancements for prior offenses pursuant to a state statutory 4 scheme). 5 In fact, the Ninth Circuit has regularly approved the 6 life sentence enhancement for repeat sex offenders under 18 7 U.S.C. § 3559(e)(1). 8 F.3d 1076, 1085 (9th Cir. 2009) (stating that imposition of a 9 mandatory life sentence pursuant to § 3559(e)(1) was proper for See, e.g., United States v. Gallenardo, 579 10 defendant convicted of possession of child pornography and sexual 11 exploitation of a child based on his two prior convictions for 12 sexual assault on a child). Any attack on petitioner’s sentence by counsel as cruel 13 14 and unusual punishment would have failed. Petitioner’s life 15 sentence on Count III under § 3559(e)(1) has been affirmed by the 16 Ninth Circuit. 17 Cir. 2009). 18 that he suffered prejudice as the result of counsel’s decision 19 not to raise an Eighth Amendment attack on his sentence. See United States v. Banks, 556 F.3d 967 (9th Accordingly, petitioner has failed to demonstrate There is no need for further discovery or an 20 21 evidentiary hearing on any of petitioner’s claims. 22 claims suggest that defendant’s counsel failed to meet 23 “prevailing professional norms” either at trial or on appeal. 24 Strickland, 466 U.S. at 649. 25 as the result of counsel’s alleged errors because all of 26 defendant’s proposed arguments were all meritless. 27 28 B. None of his Moreover, there can be no prejudice Appointment of Counsel A federal habeas petitioner has “no right to counsel on 8 1 his collateral post-conviction 28 U.S.C. § 2255 petition.” 2 United States v. Angelone, 894 F.2d 1129, 1130 (9th Cir. 1990); 3 see Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (holding 4 prisoners do not have a Sixth Amendment right to counsel when 5 mounting collateral attacks upon their convictions). 6 the court has considerable discretion in deciding whether to 7 appoint counsel in § 2255 proceedings. 8 9 However, The court may furnish counsel when the “interests of justice so require.” 18 U.S.C. § 3006A(a)(2)(B). In a § 2255 10 proceeding, “[a] judge may, for good cause, authorize a party to 11 conduct discovery . . . . If necessary for effective discovery, 12 the judge must appoint an attorney for a moving party who 13 qualifies to have counsel appointed under 18 U.S.C. § 3006A.” 14 Section 2255 R. 6(a). 15 allegations before the court show reason to believe that the 16 petitioner may, if the facts are fully developed, be able to 17 demonstrate that he is . . . entitled to relief.” 18 Gramley, 520 U.S. 899, 908-09 (1997) (citing Harris v. Nelson, 19 394 U.S. 286 (1969)). 20 justify appointment of counsel because, for the reasons discussed 21 above, there is no reason to believe that any facts could be 22 developed which would entitle petitioner to any relief. 23 Good cause exists where “where specific Bracy v. Petitioner has not shown good cause to Appointment of counsel may also be required in a § 24 2255 proceeding if an evidentiary hearing is required. Section 25 2255 R. 8(c); see United States v. Duarte-Higareda, 68 F.3d 369, 26 370 (9th Cir. 1995). 27 petitioner’s claims require discovery or an evidentiary hearing. 28 Each of his claims are meritless as a matter of law. Here, for the reasons stated above, none of 9 The court 1 will decline petitioner’s request for appointment of counsel. 2 3 IT IS THEREFORE ORDERED that petitioner’s motion for appointment of counsel be, and the same hereby is, DENIED. 4 IT IS FURTHER ORDERED that the government’s motion to 5 dismiss the petitioner’s § 2255 motion be, and the same hereby 6 is, GRANTED. 7 DATED: August 4, 2010 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10
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