Smith v. United States of America, No. 1:2011cv00086 - Document 7 (N.D. Iowa 2013)
Court Description: ORDER denying 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) ( Criminal Action CR09-82-LRR); denying 6 MOTION to Appoint Counsel filed by Stephen Smith, filed by Stephen Smith. Lastly, the court does not believe that appellate review of the movants claims is warranted, and, therefore, a certificate of appealability is denied. Signed by Chief Judge Linda R Reade on 2/19/13. (ksy)(copy w/NEF to Plf)
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Smith v. United States of America Doc. 7 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA CEDAR RAPIDS DIVISION STEPHEN SMITH, Movant, No. 09-cr-82-LRR (Criminal) No. 11-cv-86-LRR (Civil) vs. UNITED STATES OF AMERICA, ORDER Defendant. ____________________________ TABLE OF CONTENTS I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. RELEVANT BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 III. LEGAL STANDARDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 A. B. IV. ANALYSIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 A. B. C. V. Standards Applicable to Motion Pursuant to 28 U.S.C. § 2255 . . . . . 3 Standards Applicable to Sixth Amendment . . . . . . . . . . . . . . . . . . 5 Request for Evidentiary Hearing . . . . . . . . . . . . . . . . . . . . . . . . . 6 The Movant’s Arguments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Certificate of Appealability . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 I. INTRODUCTION The matter before the court is the Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person In Federal Custody (civil docket no.1 ) filed by Stephen Smith (“movant”) on July 26, 2011. On August 30, 2012, the court directed the parties to brief the claims that the movant included in his motion and ordered counsel to Dockets.Justia.com submit an affidavit in response to the movant’s claims (civil docket no. 2). On October 29, 2012, the government filed a resistance to the motion (civil docket no. 5). The movant did not file a reply. However, the movant filed a motion to appoint counsel (civil docket no. 6) on December 21, 2012. The court now turns to consider the movant’s claims pursuant to 28 U.S.C. § 2255. II. RELEVANT BACKGROUND On January 12, 2010, the movant was charged in a one-count indictment with the federal crime of failing to register as a sex offender in violation of 18 U.S.C. § 2250(a) (criminal docket no. 7). On February 22, 2010, the movant filed a notice of his intent to plead guilty (criminal docket no. 19). A change of plea hearing was held on March 1, 2010, at which time the movant pled guilty to the charge in the Indictment (criminal docket no. 23). On March 16, 2010, the court accepted the movant’s plea of guilty (criminal docket no. 25). After preparation and release of the final pre-sentence investigative report on June 25, 2010 (criminal docket no. 36), the parties were ordered to brief the sentencing issues (criminal docket no. 38). A sentencing hearing was held on August 5, 2010 (criminal docket no. 41). The movant was sentenced to 27 months in prison followed by a ten-year term of supervised release, and he was ordered to pay a $100 special assessment (criminal docket no. 42). The movant, through attorney Jane Kelly, filed a notice of appeal on August 9, 2010 (criminal docket no. 46). The Federal Public Defender’s office was appointed to represent the movant on appeal (criminal docket no. 51). The record shows attorney John Messina represented the movant on appeal. The appeal was dismissed on October 8, 2010 and mandate issued immediately (criminal docket nos. 58 & 59). In the instant motion, the movant claims Jane Kelly (trial counsel and sentencing counsel) and John Messina (appellate counsel), rendered ineffective assistance to him in his criminal case. The movant claims his trial counsel was ineffective by: (1) failing to tell 2 him that Title 18 of the United States Code is unconstitutional; (2) failing to tell him that 18 U.S.C. § 2250(a) is an unconstitutional exercise of Congressional authority pursuant to the Commerce Clause; and (3) failing to argue at sentencing that his prior assault conviction should not be counted in computing his criminal history score because he was not represented by counsel. The movant argues that his appellate counsel rendered ineffective assistance by coercing him to dismiss his appeal. III. LEGAL STANDARDS A. Standards Applicable to Motion Pursuant to 28 U.S.C. § 2255 28 U.S.C. § 2255 allows a prisoner in custody under sentence of a federal court to move the sentencing court to vacate, set aside or correct a sentence. To obtain relief pursuant to 28 U.S.C. § 2255, a federal prisoner must establish: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose such sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. See Hill v. United States, 368 U.S. 424, 426-27, 82 S. Ct. 468, 7 L. Ed. 2d 417 (1962) (citing 28 U.S.C. § 2255). Although it appears to be broad, 28 U.S.C. § 2255 does not provide a remedy for “all claimed errors in conviction and sentencing.” United States v. Addonizio, 442 U.S. 178, 185, 99 S. Ct. 2235, 60 L. Ed. 2d 805 (1979). Rather, 28 U.S.C. § 2255 is intended to redress only “fundamental defect[s] which inherently [result] in a complete miscarriage of justice” and “omission[s] inconsistent with the rudimentary demands of fair procedure.” Hill, 368 U.S. at 428; see also United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996) (“Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised for the first time on direct appeal and, if uncorrected, would result in a complete miscarriage of justice.”) (citing Poor Thunder v. United States, 810 F.2d 817, 821 (8th Cir. 1987)). A collateral challenge under 28 U.S.C. § 2255 is not interchangeable or substitutable for a direct appeal. See 3 United States v. Frady, 456 U.S. 152, 165, 102 S. Ct. 1584, 71 L. Ed. 2d 816 (1982) (making clear a motion pursuant to 28 U.S.C. § 2255 will not be allowed to do service for an appeal). Consequently, “[a]n error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment.” Id. (internal quotation marks and citation omitted). In addition, movants ordinarily are precluded from asserting claims they failed to raise on direct appeal. See McNeal v. United States, 249 F.3d 747, 749 (8th Cir. 2001). “A [movant] who has procedurally defaulted a claim by failing to raise it on direct review may raise the claim in a [28 U.S.C. §] 2255 proceeding only by demonstrating cause for the default and prejudice or actual innocence.” Id. (citing Bousley v. United States, 523 U.S. 614, 622, 118 S. Ct. 1604, 140 L. Ed. 2d 828 (1998)); see also Massaro v. United States, 538 U.S. 500, 504, 123 S. Ct. 1690, 155 L. Ed. 2d 714 (2003) (“[T]he general rule [is] that claims not raised on direct appeal may not be raised on collateral review unless the [movant] shows cause and prejudice.”). “‘[C]ause’ under the cause and prejudice test must be something external to the [movant], something that cannot be fairly attributed to him.” Coleman v. Thompson, 501 U.S. 722, 753, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991) (emphasis in original). If a movant fails to show cause, a court need not consider whether actual prejudice exists. McCleskey v. Zant, 499 U.S. 467, 501, 111 S. Ct. 1454, 113 L. Ed. 2d 517 (1991). Actual innocence under the actual innocence test “means factual innocence, not mere legal insufficiency.” Bousley, 523 U.S. at 623-24; see also McNeal, 249 F.3d at 749 (“[A movant] must show factual innocence, not simply legal insufficiency of evidence to support a conviction.”).1 1 The procedural default rule applies to a conviction obtained through trial or through the entry of a guilty plea. See United States v. Cain, 134 F.3d 1345, 1352 (8th Cir. 1998); Walker v. United States, 115 F.3d 603, 605 (8th Cir. 1997); Matthews v. United States, 114 F.3d 112, 113 (8th Cir. 1997); Thomas v. United States, 112 F.3d 365, 366 (8th Cir. 1997); Reid v. United States, 976 F.2d 446, 448 (8th Cir. 1992). 4 B. Standards Applicable to Sixth Amendment The Sixth Amendment to the United States Constitution provides in pertinent part that, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his [or her] defen[s]e.” U.S. Const., amend. VI. Furthermore, there is a constitutional right to effective assistance of counsel on direct appeal. Evitts v. Lucey, 469 U.S. 387, 393-95, 105 S. Ct. 830, 83 L. Ed. 2d 821 (1985); Douglas v. California, 372 U.S. 353, 356-57, 83 S. Ct. 814, 9 L. Ed. 2d 811 (1963). The Sixth Amendment right to effective counsel is clearly established. See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In Strickland, the Supreme Court explained that a violation of that right has two components: First, [a movant] 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 [movant] by the Sixth Amendment. Second, [a movant] must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the [movant] of a fair trial, a trial whose result is reliable. Id. at 687; see also Williams v. Taylor, 529 U.S. 362, 390, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000) (reasserting Strickland standard). Thus, Strickland requires a showing of both deficient performance and prejudice. However, “a court deciding an ineffective assistance claim [need not] address both components of the inquiry if the [movant] makes an insufficient showing on one.” Strickland, 466 U.S. at 697. “If it is easier to dispose of an ineffectiveness claim on grounds of lack of sufficient prejudice, . . . that course should be followed.” Id.; see also Apfel, 97 F.3d at 1076 (“[A court] need not address the reasonableness of the attorney’s behavior if the movant cannot prove prejudice.”). To establish unreasonably deficient performance, a movant “must show that counsel’s representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688. The “reasonableness of counsel’s challenged conduct [must be reviewed] 5 on the facts of the particular case, viewed as of the time of counsel’s conduct.” Id. at 690. There is a strong presumption of competence and reasonable professional judgment. Id.; see also United States v. Taylor, 258 F.3d 815, 818 (8th Cir. 2001) (operating on the “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance” (quoting Strickland, 466 U.S. at 689)); Sanders v. Trickey, 875 F.2d 205, 210 (8th Cir. 1989) (broad latitude to make strategic and tactical choices regarding the appropriate action to take or refrain from taking is afforded when acting in a representative capacity) (citing Strickland, 466 U.S. at 694). In sum, the court must “determine whether, in light of all the circumstances, the identified acts or omissions were outside the range of professionally competent assistance.” Strickland, 466 U.S. at 690. To establish prejudice, “[i]t is not enough for [a movant] to show that the errors had some conceivable effect on the outcome of the proceeding.” Id. at 693. Rather, a movant “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. In other words, “the question is whether there is a reasonable probability that, absent those errors, the fact finder would have had a reasonable doubt respecting guilt.” Id. at 695. In answering that question, the court “must consider the totality of the evidence before the judge or jury.” Id. IV. ANALYSIS A. Request for Evidentiary Hearing A district court is given discretion in determining whether to hold an evidentiary hearing on a motion under 28 U.S.C. § 2255. See United States v. Oldham, 787 F.2d 454, 457 (8th Cir. 1986). In exercising that discretion, the district court must determine whether the alleged facts, if true, entitle the movant to relief. See Payne v. United States, 78 F.3d 343, 347 (8th Cir. 1996). “Accordingly, [a district court may summarily dismiss a motion brought under 28 U.S.C. § 2255 without an evidentiary hearing] if (1) the . . . 6 allegations, accepted as true, would not entitle the [movant] to relief, or (2) the allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact.” Engelen v. United States, 68 F.3d 238, 240-41 (8th Cir. 1995) (citations omitted); see also Delgado v. United States, 162 F.3d 981, 983 (8th Cir. 1998) (stating that an evidentiary hearing is unnecessary where allegations, even if true, do not warrant relief or allegations cannot be accepted as true because they are contradicted by the record or lack factual evidence and rely on conclusive statements); United States v. Hester, 489 F.2d 48, 50 (8th Cir. 1973) (stating that no evidentiary hearing is necessary where the files and records of the case demonstrate that relief is unavailable or where the motion is based on a question of law). Stated differently, a 28 U.S.C. § 2255 motion can be dismissed without a hearing where “the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255; see also Standing Bear v. United States, 68 F.3d 271, 272 (8th Cir. 1995) (per curiam). The court finds that an evidentiary hearing is not necessary to resolve the movant’s claims. See Rogers v. United States, 1 F.3d 697, 699 (8th Cir. 1993) (holding “[a]ll of the information that the court needed to make its decision with regard to [the movant’s] claims was included in the record . . . .” and, therefore, the court “was not required to hold an evidentiary hearing”) (citing Rule Governing Section 2255 Proceedings 8(a) and United States v. Raddatz, 447 U.S. 667, 674, 100 S. Ct. 2406, 65 L. Ed. 2d 424 (1980)). The evidence of record conclusively demonstrates that the movant is not entitled to the relief sought. Specifically, the record indicates that the movant’s ineffective assistance of counsel claims are without merit and that no violation of either the movant’s constitutional rights or federal law occurred. As such, the court finds that there is no need for an evidentiary hearing. 7 B. The Movant’s Arguments With respect to the merits of the movant’s claims, the court deems it appropriate to deny the movant’s 28 U.S.C. § 2255 motion for the reasons that are stated in the government’s resistance because it adequately applied the law to the facts in the case. The government correctly asserted that counsel provided professionally competent assistance to the movant and did not make objectively unreasonable choices regarding the appropriate action to take or refrain from taking that prejudiced the movant’s defense, particularly at sentencing. Moreover, the court thoroughly reviewed the record and finds that the denial of the movant’s 28 U.S.C. § 2255 motion comports with the Constitution, results in no “miscarriage of justice” and is consistent with the “rudimentary demands of fair procedure.” Hill, 368 U.S. at 428; see also Apfel, 97 F.3d at 1076 (making clear that a movant must establish a constitutional violation that, if uncorrected, would result in a complete miscarriage of justice). The court concludes that the conduct of counsel fell within a wide range of reasonable professional assistance, Strickland, 466 U.S. at 689, and any deficiencies in counsel’s performance did not prejudice the movant’s defense, id. at 692-94. Trial counsel did not advise the movant that the implicated code sections of Title 18 of the United States Code are unconstitutional because that is not the state of the law. Any arguments based on this contention would have held no sway with the court and would have been deemed frivolous. Assuming the movant is claiming the battery conviction described in the pre-sentence investigative report at paragraph 36 should not have been scored for criminal history purposes because the movant was not represented by counsel, the record shows that trial counsel raised the issue and the issue was decided against him (criminal docket no. 54). As for the allegation that the movant was coerced into dismissing his appeal, the record does not bear this out. Rather, the record is the movant voluntarily dismissed his appeal having faxed the dismissal form to the Federal Public 8 Defender on October 8, 2010, after receiving the form by fax on October 6, 2010 at the Bremer County Jail (civil docket no. 5, exhibit 1). The movant’s claims are totally devoid of merit, and, therefore, the movant’s 28 U.S.C. § 2255 motion shall be denied. The movant requests that counsel be appointed to represent him. There is no right to counsel in a habeas corpus action. See Davis v. Scott, 94 F.3d 444, 447 (8th Cir. 1996) (setting forth factors to be considered for appointment of counsel in a civil case); Day v. United States, 428 F.2d 1193, 1195 (8th Cir. 1970) (“The Sixth Amendment does not extend to persons seeking post-conviction relief.” (citing Baker v. United States, 334 F.2d 444, 447 (8th Cir. 1964))). Because the movant’s claims are wholly without merit, appointment of counsel would not benefit him. The movant’s motion to appoint counsel shall be denied. C. Certificate of Appealability In a 28 U.S.C. § 2255 proceeding before a district judge, the final order is subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held. See 28 U.S.C. § 2253(a). Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals. See 28 U.S.C. § 2253(c)(1)(A). A district court possesses the authority to issue certificates of appealability under 28 U.S.C. § 2253(c) and Fed. R. App. P. 22(b). See Tiedeman v. Benson, 122 F.3d 518, 522 (8th Cir. 1997). Under 28 U.S.C. § 2253(c)(2), a certificate of appealability may issue only if a movant has made a substantial showing of the denial of a constitutional right. See Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S. Ct. 1029, 1039, 154 L. Ed. 2d 931 (2003); Garrett v. United States, 211 F.3d 1075, 1076-77 (8th Cir. 2000); Carter v. Hopkins, 151 F.3d 872, 873-74 (8th Cir. 1998); Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997); Tiedeman, 122 F.3d at 523. To make such a showing, the issues must be debatable among reasonable jurists, a court could resolve the issues differently, or the issues deserve further proceedings. Cox, 133 F.3d at 569 (citing Flieger v. Delo, 9 16 F.3d 878, 882-83 (8th Cir. 1994)); see also Miller-El, 537 U.S. at 335-36 (reiterating standard). Courts reject constitutional claims either on the merits or on procedural grounds. “‘[W]here a district court has rejected the constitutional claims on the merits, the showing required to satisfy [28 U.S.C.] § 2253(c) is straightforward: the [movant] must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.’” Miller-El, 537 U.S. at 338 (quoting Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595, 146 L. Ed. 2d 542 (2000)). When a federal habeas petition is dismissed on procedural grounds without reaching the underlying constitutional claim, “the [movant must show], at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” See Slack, 529 U.S. at 484. Having thoroughly reviewed the record in this case, the court finds that the movant failed to make the requisite “substantial showing” with respect to the claims that he raised in his motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. See 28 U.S.C. § 2253(c)(2); Fed. R. App. P. 22(b). Because he does not present a question of substance for appellate review, there is no reason to grant a certificate of appealability. Accordingly, a certificate of appealability shall be denied. If he desires further review of his motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255, the movant may request issuance of the certificate of appealability by a circuit judge of the Eighth Circuit Court of Appeals in accordance with Tiedeman, 122 F.3d at 520-22. V. CONCLUSION The court finds all of the movant’s assertions under 28 U.S.C. § 2255 to be without merit. Accordingly, the movant’s motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 (docket no. 1) is DENIED. The movant’s motion to appoint counsel (civil docket no. 6) is DENIED. Lastly, the court does not believe that appellate review 10 of the movant’s claims is warranted, and, therefore, a certificate of appealability is DENIED. IT IS SO ORDERED. DATED this 19th day of February, 2013. 11
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