McNairy v. United States

• Decision Date: 13 February 2015
• Docket Number: No. C 12-4110-MWB,C 12-4110-MWB
• Parties: ROBERT MCNAIRY, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Northern District of Iowa

ROBERT MCNAIRY, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

No. C 12-4110-MWB

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

February 13, 2015

(No. CR 10-4083-6-MWB)

MEMORANDUM OPINION AND ORDER REGARDING PETITIONER'S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT A SENTENCE

TABLE OF CONTENTS

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

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

B. Section 2255 Proceedings.........................................................7

II. LEGAL ANALYSIS........................................................................9

A. Standards For § 2255 Relief......................................................9

1. Grounds for relief..........................................................9

2. Standards for an evidentiary hearing.................................11

B. McNairy's "Ineffective Assistance Of Counsel" Claims..................12

1. Applicable standards.....................................................13

2. Inadequate challenges to prior conviction evidence...............14

a. Arguments of the parties.......................................14

b. Analysis............................................................16

3. Failure to challenge "expert" testimony of law enforcement officers .....................................................19

a. Arguments of the parties .......................................19

b. Analysis ............................................................ 21

4. Other ineffective assistance of counsel claims......................24

C. McNairy's Claims Of Other Constitutional Violations....................25

D. Certificate Of Appealability.....................................................26

III. CONCLUSION ............................................................................ 27

This case is before me on petitioner Robert McNairy's Amended And Recast Motion Under § 2255 To Vacate, Set Aside, Or Correct Sentence (Amended § 2255 Motion) (Civ. docket no. 23), filed with the assistance of counsel on August 26, 2013. McNairy seeks relief on several claims of ineffective assistance of counsel and two constitutional claims. The respondent denies that McNairy is entitled to any relief on his claims.

I. INTRODUCTION

A. Criminal Proceedings

Petitioner Robert McNairy and six co-defendants were charged in a 13-count Indictment (Crim. docket no. 8), handed down August 19, 2010, with various drug-trafficking offenses involving crack cocaine. Counsel was appointed to represent McNairy. In a 14-count Superseding Indictment (Crim. docket no. 137), handed down December 14, 2010, against McNairy and four co-defendants, McNairy was charged with the following drug-trafficking offenses: conspiracy, with four co-defendants, to distribute 50 grams or more of a mixture or substance containing a detectable amount of cocaine containing crack cocaine, after a previous conviction of a felony drug offense, in violation of 21 U.S.C. § 846, in Count 1; distributing and aiding and abetting the distribution of an unspecified quantity of crack cocaine, after a previous conviction of a felony drug offense, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 851, and 18 U.S.C. § 2, in Count 3; and distributing and aiding and abetting the distribution of an unspecified quantity of crack cocaine within 1000 feet of a school, after a previous conviction of a felony drug offense, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), 851, and 860(a), and 18 U.S.C. § 2, in Count 4. A jury trial was set on the charges inthe Superseding Indictment against all defendants for February 7, 2011. Prior to trial, in an Order (Crim. docket no. 202), filed January 28, 2011, I granted the prosecution's Motion To Amend Superseding Indictment, inter alia, to change the quantity of drugs alleged in the "conspiracy" charge to read "28 grams or more," and to change the relevant code section. By the time of trial, three co-defendants had entered guilty pleas to the charges against them, and only McNairy and one other defendant proceeded to trial.

On January 24, 2011, McNairy's trial counsel filed a Motion In Limine (Crim. docket no. 180), asserting that, because McNairy would not testify at trial, his prior criminal history should be excluded pursuant to Rules 609(a)(1) and (b) and 403 of the Federal Rules of Evidence. Among the prior convictions that counsel sought to exclude was a 1995 conviction for possession of less than 25 grams of cocaine, a felony under Michigan law. The record of McNairy's criminal history attached to the Motion In Limine as Exhibit A (Crim. docket no. 180-1) identified this offense, from a 2002 presentence report prepared by the Western District of Michigan, as arising from officers' observation of McNairy on a street corner and his admission, when asked if he was in possession of drugs, that he had three pieces of crack cocaine in his jacket pocket. Counsel argued that evidence of this conviction should be excluded because of its "staleness." In a belated Response (Crim. docket no. 238), the prosecution argued only for the admissibility of the 1995 conviction, on the ground that it was admissible under Rule 404(b) and circuit precedent as relevant to show a defendant's knowledge and intent; the prior conviction was similar in kind to the charged offenses and not overly remote in time; the prosecution had sufficient evidence of the prior offense in the form of a certified record; and the probative value of the conviction outweighed its potential for prejudice. As to the last issue, the prosecution argued that any potential prejudice could be mitigated by a limiting instruction on the proper purposes for which the evidence of the priorconviction could be used. The prosecution also proposed to offer the evidence of the prior conviction in the form of a proffered stipulation.

In an Order (Crim. docket no. 242), filed February 4, 2011, I granted McNairy's Motion In Limine as to exclusion of all but the 1995 conviction. I pointed out that Rule 609 was irrelevant, where the defendant represented that he would not testify at trial, but that his reliance on Rule 403 stood on better ground, because the balancing of probative value against prejudice under Rule 404(b) and Rule 403 was the same. I also recognized that the Eighth Circuit Court of Appeals had held that evidence of prior possession of drugs, even in an amount consistent only with personal use, is admissible to show such things as knowledge and intent of a defendant charged with a crime in which intent to distribute drugs is an element. See Order at 3 (citing United States v. Logan, 121 F.3d 1172, 1178 (8th Cir. 1997), and subsequent decisions reiterating that conclusion). As to prejudice, I found that the prior offense was sufficiently similar in kind to the charged offenses, because they all involved crack cocaine, despite my stated reluctance to find this factor satisfied when the prior offense involved different conduct. I also concluded that the apparent "remoteness in time" of the prior offense was not beyond the range upheld by the Eighth Circuit Court of Appeals, but that the "remoteness" of the prior conviction was better addressed in the balancing of probative value against prejudice. I concluded that the proffered stipulation would satisfy the "sufficiency of proof" factor. Ultimately, "[a]lthough it [wa]s with some reluctance," I concluded that the balance of probative value against prejudice did not require exclusion of the 1995 crack cocaine conviction, where it involved the same controlled substance, McNairy had not identified any specific prejudice, and any prejudice could be mitigated by a limiting instruction. Id. at 5. On January 31, 2011, the prosecution filed an Amended Information (Crim. docket no. 213) notifying McNairy of its intent to seek enhanced penalties pursuant to 21 U.S.C. § 851, based on McNairy's 1995 conviction.

At the beginning of trial on February 7, 2011, one of the instructions that I read to the jurors before any evidence was presented was, in fact, an instruction on "evidence of a defendant's prior convictions," based on Eighth Circuit Criminal Model Jury Instruction 2.08 (2009). See Jury Instructions (Crim. docket no. 250), Instruction No. 9. McNairy and his trial counsel both signed the Stipulation Regarding Defendant's Prior Felony Drug Conviction (Stipulation) proffered by the prosecution. See Witness and Exhibit List, Prosecution's Exhibit 7 (Crim. docket no. 256-15). The Stipulation was read to the jurors and entered as an exhibit prior to the testimony of a law enforcement officer involved in the investigation of the charges against McNairy and his co-defendants, who also testified as an expert witness concerning various aspects of drug-trafficking.

The only other reference to McNairy's prior conviction in the trial record appears to be the following from McNairy's trial counsel's closing argument:

The final instruction that we'd like you to consider is instruction number 9, evidence of a defendant's prior convictions. Right at the end of the government's case in chief [the prosecutor] read into evidence—I believe it's Government Exhibit 7 if my memory's correct that pertains to my client, and it pertains to his prior conviction for a felony drug possession, a felony drug possession in the state of Michigan.

Now then, as you may remember and as you'll be given copies of during your jury deliberations, the Court gave you very specific instructions on how you can use a prior conviction. And you'll see that in instruction number 9, evidence of a defendant's prior convictions.

But if you get to that point, if you get to that point, what's interesting is that it's a felony drug conviction for possession of less than 25 grams of cocaine, and that should impact your decision on Count 1, the conspiracy, if you haveto utilize this

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