Tinder v. United States of America, No. 6:2009cv02030 - Document 25 (N.D. Iowa 2011)
Court Description: ORDER denying 1 Pro Se Motion to Vacate, Set Aside or Correct Sentence (2255) (Criminal Action 08cr2006) and 7 Pro Se Motion to Amend/Supplement 1 Pro Se Motion to Vacate, Set Aside or Correct Sentence (2255) (Criminal Action 08cr2006) filed by Angelique Tinder. A certificate of appealability is denied. Signed by Chief Judge Linda R Reade on 12/27/2011 (copy w/NEF to Plt via US Mail). (skm)
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Tinder v. United States of America Doc. 25 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA EASTERN DIVISION ANGELIQUE TINDER, Movant, No. C09-2030-LRR No. CR08-2006-LRR vs. UNITED STATES OF AMERICA. ORDER ____________________________ This matter appears before the court on Angelique Tinder’s motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 (docket nos. 1 & 7). On June 22, 2009 and June 1, 2010, Angelique Tinder (“the movant”) filed her 28 U.S.C. § 2255 motion. On March 10, 2011, the court directed the government to respond to the movant’s claims (docket no. 13). On June 9, 2011, the government complied with the court’s order by filing a resistance (docket no. 20). On June 27, 2011, the movant filed a reply (docket no. 21). The court now turns to consider the movant’s motion pursuant to 28 U.S.C. § 2255. 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, Dockets.Justia.com 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 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 without merit and/or procedurally barred. 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 that is applicable to the facts in the movant’s case. Specifically, the government correctly relied on defense counsel’s affidavit and concluded that he provided professional and effective assistance to the movant and the movant suffered no prejudice as a result of counsel’s actions. And, the government correctly points out that several of the movant’s contentions regarding the 2 sentence that the court calculated and imposed are procedurally barred because they should have been raised 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: (1) the record establishes that no prosecutorial misconduct occurred, that is, the government did not knowingly rely on perjured testimony; (2) nothing the movant points to indicates or suggests that there is a reasonable likelihood that the jury’s verdicts would have changed; (3) the defense had access to the government’s discovery file and no new, relevant and exculpatory information has been discovered; (4) the defense adequately called into question or challenged the testimony of the government’s witnesses; and (5) the jury appropriately weighed conflicting and/or inconsistent testimony before reaching its verdicts. Further, the court finds that the movant’s assertions that the court erred when it sentenced her are procedurally defaulted because the movant failed to raise them on direct appeal. See McNeal v. United States, 249 F.3d 747, 749 (8th Cir. 2001) (discussing when claims are procedurally defaulted); United States v. Samuelson, 722 F.2d 425, 427 (8th Cir. 1983) (concluding that a collateral proceeding is not a substitute for a direct appeal and refusing to consider matters which could have been raised on direct appeal). Alternatively, the court finds that no sentencing error occurred. The court correctly calculated the movant’s advisory sentencing guideline range after considering the parties arguments, treated the sentencing guidelines as advisory, considered the factors under 3553(a) and sentenced the movant to an appropriate term of 3 imprisonment, that is, a sentence that is sufficient but not greater than necessary to accomplish the goals of sentencing. Before it imposed a total term of 63 months imprisonment, imposed a one year term of supervised release, ordered a special assessment of $100 per count for a total of $3,100 under 18 U.S.C. § 3013(a)(2)(A) and ordered restitution in the amount of $1,085 to nineteen different victims as a special condition of her supervised release, the court fully addressed the movant’s base offense level, whether her conduct involved sophisticated means, whether restitution could be ordered under 18 U.S.C. § 3663 because her offenses of conviction are under 26 U.S.C. § 7206, whether restitution based on relevant conduct could be ordered because her offenses of conviction did not involve a scheme, conspiracy or pattern, whether a downward departure would be appropriate and other sentencing issues. The movant’s misstatements regarding base offense level, relevant conduct, tax loss, safety valve, statutory maximums and Apprendi do not provide a basis for relief. Lastly, the court concludes that 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), and counsel’s performance did not prejudice the movant’s defense, id. at 692-94. Considering all the circumstances and refraining from engaging in hindsight or second-guessing counsel’s strategic decisions, the court finds that the record belies the movant’s claims and no violation of the movant’s constitutional right to counsel occurred. Nothing the movant states in support of her request for relief leads the court to conclude that a violation of the Sixth Amendment occurred. The movant’s assumptions about defense counsel’s health issues and unsupported beliefs about what counsel should have done at trial or at sentencing do not establish a constitutional violation, especially considering the evidence admitted against her during trial and the conduct of the parties throughout the case. In sum, the alleged errors that are asserted by the movant do not warrant relief under 28 U.S.C. § 2255. The movant’s claims are without merit or procedurally defaulted. Based on the foregoing, the movant’s 28 U.S.C. § 2255 motion shall be denied. 4 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). 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. 5 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 she raised in her 28 U.S.C. § 2255 motion. See 28 U.S.C. § 2253(c)(2); Fed. R. App. P. 22(b). Because she 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 she desires further review of her 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 28 U.S.C. § 2255 motion (docket nos. 1 & 7) is denied. 2) A certificate of appealability is denied. DATED this 27th day of December, 2011. 6
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