Washington v. United States of America, No. 6:2007cv02003 - Document 5 (N.D. Iowa 2009)
Court Description: ORDER denying 1 Pro Se Motion to Vacate, Set Aside or Correct Sentence (2255) (Criminal Action CR02-2011) and denying 3 Motion to Appoint Counsel. A certificate of appealability is denied. Signed by Chief Judge Linda R Reade on 09/15/09. (copy w/NEF to Pro Se plt) (skm)
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Washington v. United States of America Doc. 5 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA EASTERN DIVISION MICHAEL JOHN WASHINGTON, Plaintiff, No. C07-2003-LRR No. CR02-2011-LRR vs. UNITED STATES OF AMERICA, ORDER Defendant. ____________________________ This matter appears before the court on Michael John Washington’s motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 (docket no. 1) and motion for appointment of counsel (docket no. 3). On January 10, 2007, Michael John Washington (“the movant”) filed his 28 U.S.C. § 2255 motion. On May 21, 2007, the court directed the government to respond to the movant’s claims (docket no. 2). On May 30, 2007, the movant filed his motion for appointment of counsel. On July 18, 2007, the government complied with the court’s order by filing a resistance (docket no. 4). The movant did not file a reply. The court now turns to consider the movant’s motion pursuant to 28 U.S.C. § 2255 and motion for appointment of counsel. Appointment of counsel is based on multiple factors, including the complexity of the case, and, although the court does appoint attorneys in actions that arise under 28 U.S.C. § 2255, it is not required to appoint an attorney. See Davis v. Scott, 94 F.3d 444, 447 (8th Cir. 1996) (setting forth factors to be considered for appointment of counsel in civil case); Abdullah v. Gunter, 949 F.2d 1032, 1035 (8th Cir. 1991) (same); Wiggins v. Sargent, 753 F.2d 663, 668 (8th Cir. 1985) (stating an indigent litigant enjoys neither a statutory nor a constitutional right to have counsel appointed in a civil case); Day v. United Dockets.Justia.com 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))). In light of the claims asserted by the movant, the court finds that appointment of counsel is not warranted. Accordingly, the movant’s motion for appointment of counsel shall be denied. 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 . . . 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 concludes that it is able to resolve the movant’s claims from the record. See Rogers v. United States, 1 F.3d 697, 699 (8th Cir. 1993) (holding “[a]ll of the 2 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 claims are procedurally barred or without merit. As such, the court finds that there is no need for an evidentiary hearing. 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 stated in the government’s resistance. The government’s brief adequately sets forth the law in the Eighth Circuit as applied to the facts in the movant’s case. Specifically, the government correctly concluded that: (1) counsel provided professional and effective assistance to the movant; (2) several of the movant’s claims are procedurally barred and without merit; (3) the movant’s claim regarding credit towards his sentence is not properly before the court and without merit; and (4) review of one of the movant’s claims is unnecessary because the Eighth Circuit Court of Appeals already addressed it on direct appeal. Moreover, the court thoroughly reviewed the record and finds that the denial of the movant’s 28 U.S.C. § 2255 motion results in no “miscarriage of justice” and is consistent with the “rudimentary demands of fair procedure.” Hill v. United States, 368 U.S. 424, 428, 82 S. Ct. 468, 7 L. Ed. 2d 417 (1962); 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))). The court concludes that most of the movant’s claims are barred or not properly before the court. See United States v. Tindall, 455 F.3d 885, 888 (8th Cir. 2006) (addressing proper manner by which to seek credit towards one’s sentence); McNeal v. United States, 249 3 F.3d 747, 749 (8th Cir. 2001) (discussing when claims are procedural defaulted); United States v. Wiley, 245 F.3d 750, 751 (8th Cir. 2001) (making clear that courts are unable to disturb issues conclusively resolved on direct appeal); Johns v. Bowersox, 203 F.3d 538, 547 (8th Cir. 2000) (concluding Eighth Amendment claim must be properly raised or it is procedurally barred). With respect to the merits of the claims asserted by the movant, either the conduct of counsel fell within a wide range of reasonable professional assistance, Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), or any deficiencies in counsel’s performance did not prejudice the movant’s defense, id. at 692-94. None of the alleged errors that are asserted by the movant warrant relief under 28 U.S.C. § 2255. Based on the foregoing, the movant’s 28 U.S.C. § 2255 motion shall be denied. 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, 16 F.3d 878, 882-83 (8th Cir. 1994)); see also Miller-El, 537 U.S. at 335-36 (reiterating standard). 4 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 28 U.S.C. § 2255 motion. 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 28 U.S.C. § 2255 motion, 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. IT IS THEREFORE ORDERED: 1) The movant’s motion for appointment of counsel (docket no. 3) is denied. 2) The movant’s 28 U.S.C. § 2255 motion (docket no. 1) is denied. 5 3) A certificate of appealability is denied. DATED this 15th day of September, 2009. 6
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