Angelle v. United States

• Decision Date: 15 November 2011
• Docket Number: No. CR 07-4022-MWB,No. C 10-4102-MWB,C 10-4102-MWB,CR 07-4022-MWB
• Parties: JERRY ANGELLE, JR., Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Northern District of Iowa

JERRY ANGELLE, JR., Petitioner,

v.UNITED STATES OF AMERICA, Respondent.

No. C 10-4102-MWB

No. CR 07-4022-MWB

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA WESTERN DIVISION

Dated: November 15, 2011

MEMORANDUM OPINION AND ORDER REGARDING PETITIONER'S SECTION 2255 MOTION

TABLE OF CONTENTS

I. INTRODUCTION.........................................2

A. The Criminal Proceedings...............................2

B. The § 2255 Motion ...................................4

II. LEGAL ANALYSIS.......................................5

A. Standards For § 2255 Relief.............................5

B. Procedural Matters ................................... 8

1. Need for an evidentiary hearing..................... 8

2. Procedural default .............................9

C. Ineffective Assistance Of Counsel......................... 10

1. Applicable standards ........................... 10

2. Failure to challenge second superseding indictment....... 13

3. Failure to argue against inclusion of prior conviction ..... 17

4. Failure to raise improper amendment of second superseding indictment .................................. 19

5. Failure to object to application of Rule 404(b) .......... 20

D. Certificate Of Appealability ............................. 20

III. CONCLUSION ........................................ 22

I. INTRODUCTION

This case is before me on petitioner Jerry Angelle's Pro Se Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody and Memorandum Brief (Civ. docket no. 1), filed on November 1, 2010; and on Angelle's Brief In Support of 28 U.S.C. § 2255 Petition (Civ. docket no. 7), filed by appointed counsel on March 14, 2011. Angelle claims that the attorney who represented him at the trial level provided him with ineffective assistance of counsel in several ways. The respondent denies that Angelle is entitled to any relief on his claims.

A. The Criminal Proceedings

On April 18, 2007, Angelle was charged by a sealed two-count Indictment (Crim. docket no. 2). Count 1 of the Indictment charged Angelle with conspiracy to distribute 5 grams or more of cocaine base between about October 2006 and continuing through April 8, 2007, having previously been convicted of a felony drug offense of possession of cocaine with intent to deliver. See Crim. docket no. 2. Count 2 of the Indictment charged Angelle with distribution of 5 grams or more of cocaine base on or about April 8, 2007, having previously been convicted of a felony drug offense of possession of cocaine with intent to deliver. See Crim. docket no. 2. On May, 3, 2007, Angelle appeared in front of Chief United States Magistrate Judge Paul A. Zoss to plead not guilty to both Counts of the Indictment. See Crim. docket no. 6.

The prosecution filed a Superseding Indictment (Crim. docket no. 19), on July 18, 2007. The Superseding Indictment increased the quantity of cocaine base from 5 gramsto 50 grams on Count 1 but otherwise remained unchanged. See Crim. docket no. 20. Angelle appeared before Judge Zoss on August 1, 2007, for arraignment on the Superseding Indictment and pleaded not guilty to both counts. See Crim. docket no. 22. The prosecution filed a Second Superseding Indictment (Crim. docket no. 28), on November 28, 2007. The Second Superseding Indictment expanded the time-frame of the alleged conspiracy, alleging that it occurred between about January 2001 through April 8, 2007, rather than between October 2006 through April 8, 2007. See Crim. docket no. 30. Angelle filed a Written Waiver Of Personal Appearance At Arraignment (Crim. docket no. 34), and plea of not guilty to the Second Superseding Indictment, on November 30, 2007.

Angelle proceeded to trial on both counts of the Second Superseding Indictment on December 10, 2007. See Crim. docket no. 59. The jury returned a verdict of guilty on both counts on December 11, 2007. See Crim. docket no. 61. Prior to being sentenced, Angelle filed a Motion for Downward Variance (Crim. docket no. 69). Angelle appeared before me on May 14, 2008, for a sentencing hearing. See Crim. docket no. 73. The parties had reached an agreement regarding sentencing, and, as a result, Angelle's Motion for Downward Variance was withdrawn. See Sent. Trans. at 2. The parties stipulated to a total offense level of 23, a criminal history category of 3, with an advisory guideline range of 97 to 121 months. See Sent. Trans. at 2. There was an applicable statutory mandatory minimum sentence of 120 months for each count. See Sent. Trans. at 3. After independently considering the 18 U.S.C. §3553(a) sentencing factors, I sentenced Angelle to the mandatory minimum of 120 months on both counts of the Second Superseding Indictment, to run concurrently. See Sent. Trans. at 7.

Angelle filed a Notice of Appeal (Crim. docket no. 75) to the United States Court of Appeals for the Eighth Circuit on May 16, 2008. On appeal, Angelle argued that I erred in allowing evidence of his prior drug conviction to be presented to the jury and alsoargued that there was insufficient evidence to support his convictions. See Crim. docket no. 89. Angelle additionally claimed that the jury should have been instructed that he could not conspire with a government informant; that the mandatory sentence violated due process; and that his trial counsel was ineffective. See Crim. docket no. 89. On November 5, 2009, the United States Court of Appeals for the Eighth Circuit entered an Opinion (Crim. docket no. 89). The appellate court held that Angelle had waived the argument that his prior conviction should not have been admitted because he stipulated below that he had sustained the conviction. The appellate court also found that the evidence was sufficient to sustain both convictions based, among other things, on witness testimony about Angelle's drug dealings with multiple persons, some of whom resold the drugs and also based on items found in Angelle's residence. See Crim. docket no. 89. The court further held that I did not err by failing to instruct on conspiracy with a government informant because the evidence did not support it, and held that the ineffective assistance claim was not properly raised in a direct criminal appeal. See Crim. docket no. 89.

B. The § 2255 Motion

On November 1, 2010, Angelle filed this Pro Se Motion Under § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (Civ. docket no. 1) ("Motion"). By Order (Civ. docket no. 2), an attorney was appointed to represent Angelle with regard to his Motion. On March 14, 2011, Angelle's counsel filed a Brief In Support Of 28 U.S.C. § 2255 Petition (Civ. docket no. 7). On April 18, 2011, the respondent filed a Response And Memorandum In Support Of Government's Response To Defendant's Motion Under 28 U.S.C. § 2255. (Civ. docket no. 10). On May 2, 2011, Angelle filed a Pro Se Traverse To The Government's Response (Civ. docket no. 16). The respondentfiled a Sur-Reply Brief In Response To Defendant's Pro Se Traverse (Civ. docket no. 17), on May 24, 2011. Angelle filed a pro se Motion For Entry Of Judgment (Civ. docket no. 18), on July 27, 2011.

II. LEGAL ANALYSIS

A. Standards For § 2255 Relief

Section 2255 of Title 28 of the United States Code provides as follows:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground [1] that the sentence was imposed in violation of the Constitution or laws of the United States, or [2] that the court was without jurisdiction to impose such sentence, or [3] that the sentence was in excess of the maximum authorized by law, or [4] is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255; Watson v. United States, 493 F.3d 960, 963 (8th Cir. 2007) ("Under 28 U.S.C. § 2255 a defendant in federal custody may seek post conviction relief on the ground that his sentence was imposed in the absence of jurisdiction or in violation of the Constitution or laws of the United States, was in excess of the maximum authorized by law, or is otherwise subject to collateral attack."); Bear Stops v. United States, 339 F.3d 777, 781 (8th Cir. 2003) ("To prevail on a § 2255 motion, the petitioner must demonstrate a violation of the Constitution or the laws of the United States."). Thus, a motion pursuant to § 2255 "is 'intended to afford federal prisoners a remedy identical in scope to federal Habeas corpus.'" United States v. Wilson, 997 F.2d 429, 431 (8th Cir. 1993) (quoting Davis v. United States, 417 U.S. 333, 343 (1974)); accord Auman v. United States, 67 F.3d 157, 161 (8th Cir. 1995) (quoting Wilson).

One "well established principle" of § 2255 law is that "'[i]ssues raised and decided on direct appeal cannot ordinarily be relitigated in a collateral proceeding based on 28 U.S.C. § 2255.'" Theus v. United States, 611 F.3d 441, 449 (8th Cir. 2010) (quoting United States v. Wiley, 245 F.3d 750, 752 (8th Cir. 2001)); Bear Stops, 339 F.3d at 780. One exception to that principle arises when there is a "miscarriage of justice," although the Eighth Circuit Court of Appeals has "recognized such an exception only when petitioners have produced convincing new evidence of actual innocence," and the Supreme Court has not extended the exception beyond situations involving actual innocence. Wiley, 245 F.3d at 752 (citing cases, and also noting that "the Court has emphasized the narrowness of the exception and has expressed its desire that it remain 'rare' and available only in the 'extraordinary case.'" (citations omitted)). Just as § 2255 may not be used to relitigate issues raised and decided on direct appeal, it also ordinarily "is not available to correct errors which could have been raised at trial or on direct appeal." Ramey v. United States, 8 F.3d 1313, 1314 (8th Cir. 1993) (per curiam). "Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the...