Petersen v. U.S.

• Decision Date: 04 January 2005
• Docket Number: No. CIV.03-3004.,CIV.03-3004.
• Parties: Michale T. PETERSEN, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — District of South Dakota

352 F.Supp.2d 1016

Michale T. PETERSEN, Petitioner, v. UNITED STATES of America, Respondent.

No. CIV.03-3004.

United States District Court, D. South Dakota, Central Division.

January 4, 2005.

COPYRIGHT MATERIAL OMITTED

Terry L. Pechota, Pechota Law Office, Rapid City, SD, for Petitioner.

Thomas J. Wright, Assistant United States Attorney, Sioux Falls, SD, for Respondent.

ORDER ADOPTING REPORT AND RECOMMENDATION

KORNMANN, District Judge.

The Court submitted the above-entitled matter to U.S. Magistrate Judge Mark A. Moreno and the magistrate judge submitted his report and recommendation to the Court on September 23, 2004, Doc. 27. The report and recommendation was served on the petitioner as required by 28 U.S.C. § 636 and petitioner has filed no written objections thereto.

The Court has reviewed the file and finds that the report and recommendation of the magistrate judge should be accepted and the case dismissed.

Now, therefore,

IT IS ORDERED:

1. The report and recommendation of the U.S. Magistrate Judge filed September 23, 2004, Doc. 27, shall be and is hereby adopted as the findings of fact and conclusions of law herein.

2. The motion to vacate, set aside, or correct sentence is denied and this matter is dismissed with prejudice.

REPORT AND RECOMMENDATIONS FOR DISPOSITION OF MOTION FOR RELIEF UNDER 28

U.S.C. § 2255

MORENO, United States Magistrate Judge.

[¶ 1] The above-captioned 28 U.S.C. § 2255 case was referred to this Court by the District Court¹ pursuant to 28 U.S.C. § 636(b)(1)(B) for the purpose of conducting any necessary hearings, including evidentiary hearings, and submitting proposed findings of fact and recommendations for disposition thereof.

[¶ 2] Having carefully reviewed and considered all of the records on file and being fully advised in the premises, the Court does now make and propose the following Findings, Report and Recommendations for disposition of the case.

I.

[¶ 3] After a jury trial, Petitioner, Michael T. Petersen (Petersen) was convicted of simple assault, assault by striking, beating or wounding, aggravated sexual abuse and first degree burglary. On October 30, 2000, he was sentenced to six months imprisonment on the two assault offenses and 100 months imprisonment on the sexual abuse and burglary offenses, all to run concurrently. Respondent, United States of America (Government), appealed the trial court's five-level downward departure and the Eighth Circuit Court of Appeals reversed and remanded for resentencing. See United States v. Petersen, 276 F.3d 432, 439 (8th Cir.2002). Petersen was subsequently resentenced on March 26, 2002 to concurrent custody terms of six months on the assault offenses and 168 months on the sexual abuse and burglary offenses.

[¶ 4] In his § 2255 Motion, Petersen claims that:

1. The trial court committed ten separate errors which affected his convictions; and

2. His counsel was ineffective in failing to:

a. Raise certain pre-trial issues;

b. Object to specific evidence;

c. Adequately argue a motion for judgment of acquittal; and

d. Appeal and brief various trial level errors.

Upon initial review, the District Court held that it was not required to decide, at that time, the merits of Petersen's substantive claims, but only whether appellate counsel was ineffective in failing to properly perfect an appeal by filing a merits brief. The Court directed this Court to evaluate whether appellate counsel was objectively unreasonable in determining that there were no issues to raise on appeal that had any arguable merit, and, if so, whether Petersen was prejudiced by his counsel's failure to file a merits brief.

[¶ 5] In an effort to properly assess Petersen's ineffective assistance of appellate counsel claims under Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000) and Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), this Court granted Petersen leave to list, in an all inclusive fashion, those issues that he maintains his counsel should have argued in his merits brief on direct appeal. The Court thereafter received Petersen's list and the Government's response thereto and believes it is in a position now to pass on the ineffective assistance claims and whether Petersen is entitled to an evidentiary hearing on the same.

II.

[¶ 6] Petersen does not specifically request that he be given an evidentiary hearing on his Motion. Nonetheless, this Court must determine, in accordance with Rules 4(b) and 8(a) of the Rules Governing § 2255 Proceedings (§ 2255 Rules) and the District Court's March 8, 2004 referral Order, whether such a hearing is required in this instance.

[¶ 7] An evidentiary hearing need not be held (1) if the petitioner's allegations, accepted as true, would not entitle him to relief; or (2) if the allegations cannot be accepted as true because they are contradicted by the record, are inherently incredible or are conclusions rather than statements of fact. Delgado v. United States, 162 F.3d 981, 983 (8th Cir.1998) (quoting Engelen v. United States, 68 F.3d 238, 240 (8th Cir.1995)). Likewise, an evidentiary hearing is not required "where the files and records of the case conclusively show that the [petitioner] is not entitled to relief." Standing Bear v. United States, 68 F.3d 271, 272 (8th Cir.1995), cert. denied, 517 U.S. 1147, 116 S.Ct. 1444, 134 L.Ed.2d 564 (1996); see also Kingsberry v. United States, 202 F.3d 1030, 1031 (8th Cir.2000); Holloway v. United States, 960 F.2d 1348, 1351 (8th Cir.1992).

[¶ 8] Petersen's ineffective assistance of counsel claims are ones that are capable of resolution from the record. Bear Stops v. United States, 204 F.Supp.2d 1209, 1227 (D.S.D.2002), aff'd, 339 F.3d 777 (8th Cir.), cert. denied, 540 U.S. 1094, 124 S.Ct. 970, 157 L.Ed.2d 803 (2003); see also, Blankenship v. United States, 159 F.3d 336, 337-39 (8th Cir.1998), cert denied, 525 U.S. 1090, 119 S.Ct. 844, 142 L.Ed.2d 699 (1999); Payne v. United States, 78 F.3d 343, 347 (8th Cir.1996). After close scrutiny of the record, the Court is convinced that Petersen cannot prevail on his claims. See Cheek v. United States, 858 F.2d 1330, 1333 (8th Cir.1988); see also Bradshaw v. United States, 153 F.3d 704, 708 (8th Cir.1998). As such, Petersen is not entitled to an evidentiary hearing and the Court shall proceed to dispose of his Motion in a summary manner "as justice dictates." See Rules 4(b) and 8(a) of the § 2255 Rules.

III.

[¶ 9] In the context of ineffective assistance of appellate counsel claims, the United States Supreme Court has made clear that:

[T]he proper standard for evaluating [a petitioner's] claim that appellate counsel was ineffective in neglecting to file a merits brief is that enunciated in Strickland.... [The petitioner] must first show that his counsel was objectively unreasonable in failing to find arguable issues to appeal — that is, that counsel unreasonably failed to discover nonfrivolous issues and to file a merits brief raising them. If [the petitioner] succeeds in such a showing, he then has the burden of demonstrating prejudice. That is, he must show a reasonable probability that, but for his counsel's unreasonable failure to file a merits brief, he would have prevailed on his appeal.

Smith, 528 U.S. at 285, 120 S.Ct. 746 (internal citations omitted). Petersen's case does not fall within any of the three categories of cases described in Strickland in which a reviewing court must presume prejudice rather than require him to demonstrate it. Smith, 528 U.S. at 287, 120 S.Ct. 746.

[¶ 10] Nonetheless, unlike the situation where counsel fails to raise a certain claim on appeal, where appellate counsel is alleged to have erroneously failed to file a merits brief, the Supreme Court has observed that:

[I]t will be easier for [the petitioner] to satisfy the first part of the Strickland test, for it is only necessary for him to show that a reasonably competent attorney would have found one nonfrivolous issue warranting a merits brief, rather than showing that a particular nonfrivolous issue was clearly stronger than issues that counsel did present. In both cases, however, the prejudice analysis will be the same.

Smith, 528 U.S. at 288 & n. 16, 120 S.Ct. 746.

[¶ 11] Thus, in order for Petersen to prevail on his ineffective assistance of counsel claims, he must satisfy both prongs of the Strickland test. Id. at 289, 120 S.Ct. 746. Unless he can show that his counsel's decision not to file a merits brief was deficient and that this deficiency prejudiced his ability to succeed on appeal, he cannot obtain § 2255 relief. Id. at 285-86, 120 S.Ct. 746; see also Bear Stops, 204 F.Supp.2d at 1222-24, 1233-34, aff'd, 339 F.3d 777, 781-82.

[¶ 12] Although courts ordinarily discuss the performance component of an ineffectiveness claim prior to the prejudice component, there is no reason for a court deciding such a claim to approach the inquiry in the same order or to address both components if a petitioner makes an insufficient showing on one of them. Strickland, 466 U.S. at 697, 104 S.Ct. 2052. A court, therefore, need not determine the objective reasonableness of appellate counsel's conduct before examining the prejudice suffered by the petitioner as a result of counsel's alleged failures. Id. "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." Id. [¶ 13] With these legal precepts in mind, Petersen's claims are ready to be addressed and scrutinized.

IV.

[¶ 14] Petersen initially claims that the Government breached its agreement not to appeal his sentence. Petersen maintains that the Government represented that it would not appeal his sentence if no appeal was taken of his conviction, and that the Government appealed anyway. In support of his claim that an agreement existed that the Government breached, Petersen cites to and requests that "exhibit 1" be...