Powell v. Fayram

Decision Date21 April 2011
Docket NumberNo. C 10–4012–MWB.,C 10–4012–MWB.
Citation778 F.Supp.2d 952
PartiesJason M. POWELL, Petitioner,v.John FAYRAM, Respondent.
CourtU.S. District Court — Northern District of Iowa

778 F.Supp.2d 952

Jason M. POWELL, Petitioner,
v.
John FAYRAM, Respondent.

No. C 10–4012–MWB.

United States District Court, N.D. Iowa, Western Division.

April 21, 2011.


[778 F.Supp.2d 954]

Shelley A. Goff, Goff & Goff, Ruston, LA, for Petitioner.Thomas William Andrews, Iowa Department of Justice, Des Moines, IA, for Respondent.

MEMORANDUM OPINION AND ORDER REGARDING REPORT AND RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2254
MARK W. BENNETT, District Judge.
+-------------------+
                ¦TABLE OF CONTENTS ¦
                +-------------------¦
                ¦ ¦
                +-------------------+
                
I. INTRODUCTION 955
                
 A. Factual Background 955
                
 1. Events giving rise to state charges against Powell 955
                 2. State court proceedings 956
                
 B. Procedural Background 959
                
 1. Powell's § 2254 Petition 959
                 2. The Report And Recommendation 959
                 3. Powell's objection 960
                
II. LEGAL ANALYSIS 961
                
 A. Standards For Review Of A Report And Recommendation 961
                 B. Standards For § 2254 Relief 963
                 C. Powell's Claim Of Bad Advice Regarding Plea Negotiations 964
                
 1. Powell's additional evidence 964
                 2. Analysis 966
                
 a. Unreasonable factual determinations 966
                 b. Unreasonable application of the law 968
                
 D. Powell's Other Claims 969
                 E. Certificate Of Appealability 969
                
III. CONCLUSION 970
                

[778 F.Supp.2d 955]

This case is before the court on petitioner Jason M. Powell's March 3, 2011, pro se Objection (docket no. 27) to Chief United States Magistrate Judge Paul A. Zoss's February 18, 2011, 2011 WL 607212, Report And Recommendation On Petition For Writ Of Habeas Corpus Pursuant To 28 U.S.C. § 2254 (docket no. 26). Judge Zoss recommended that Powell's § 2254 Petition be denied in its entirety. Powell objects only to Judge Zoss's recommended disposition of his claim that his trial counsel was ineffective in not giving him correct advice during plea negotiations about the time that he would have to serve in prison on a mandatory minimum sentence if he were convicted on a state charge of attempted murder.

1. INTRODUCTION
a. Factual Background
i. Events giving rise to state charges against Powell

As Judge Zoss noted in his Report and Recommendation, absent rebuttal by clear and convincing evidence, a federal court hearing a habeas petition of a state prisoner, pursuant to 28 U.S.C. § 2254, must presume that any factual determinations made by the state courts were correct. 28 U.S.C. § 2254(e)(1); see also Miller–El v. Dretke, 545 U.S. 231, 240, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005) (quoting § 2254(e)(1)); Stenhouse v. Hobbs, 631 F.3d 888, 891 (8th Cir.2011); Bell v. Norris, 586 F.3d 624, 630 (8th Cir.2009). The unrebutted statement by the Iowa Court of Appeals of the factual background to various state charges against Powell is the following:

At approximately 12:30 p.m. on February 12, 2005, Deputy Sheriff Jerrod Henningsen saw Powell driving a white GMC pickup truck. He knew there was a warrant for Powell's arrest and activated his patrol lights to pull him over. Powell continued driving so the deputy radioed for assistance. Officer James Steinkuehler responded to the call and parked his patrol car in Powell's path in an attempt to stop him. Powell stopped, then accelerated rapidly, hit the patrol car, and sped off.

Deputy Henningsen continued his pursuit of Powell, who was exceeding speeds of sixty miles per hour in a twenty-five-miles-per-hour zone. Powell also ran stop signs while being pursued.

Sheriff Thomas Hogan was at home when he heard of the chase on his police scanner. Because the chase was heading his way, he decided to place spiked strips known as “stop sticks” on the road in an attempt to puncture and deflate the tires of Powell's vehicle. The sheriff parked his vehicle in the southbound lane of Ridge Road in Denison and put the strip across the northbound

[778 F.Supp.2d 956]

lane. Sheriff Hogan activated the warning lights above the windshield and in the grill, and flashed the headlights of his unmarked patrol vehicle. He stood in a residential driveway approximately twelve to fifteen feet away from the passenger side of his vehicle.

The sheriff saw Powell's car approaching and estimated his speed in excess of sixty miles per hour. Before reaching the stop sticks, Powell applied his brakes, veered left, drove over the curb and onto the lawn, accelerated, and drove at Sheriff Hogan. When Powell's vehicle was a few feet away, the sheriff jumped out of the way. Powell came within twelve to eighteen inches of hitting him. He was driving approximately thirty-five miles per hour as he drove by the sheriff.

Powell was eventually arrested. The vehicle he was driving belonged to Roger Slechta. Slechta had not given Powell permission to drive the vehicle.

State v. Powell, 728 N.W.2d 851 (Table), 2007 WL 112890, *1 (Iowa Ct.App. Jan. 18, 2007) ( Powell I ) (ruling on direct appeal).ii. State court proceedings

As a result of this incident, Powell was charged on February 22, 2005, in Crawford County, Iowa, District Court, with first-degree eluding, second-degree theft, assault on a peace officer, and attempted murder.1 Powell proceeded to a jury trial on these charges and was convicted on August 29, 2005. He was subsequently sentenced to five years in prison on the eluding charge, five years in prison on the theft charge, one year in prison on the assault charge, and twenty-five years in prison on the attempted murder charge, with all sentences to run concurrently.

On direct appeal, the Iowa Court of Appeals reversed Powell's conviction on the eluding charge and remanded for new trial, reversed the conviction for theft and remanded for entry of judgment of guilty of operating without the owner's consent, but affirmed the conviction for assault on a peace officer. Powell I, 2007 WL 112890. Powell's only challenge to his conviction of attempted murder on direct appeal was a claim that his trial counsel had been ineffective for failing to move for judgment of acquittal on that charge, which the Iowa Court of Appeals preserved for post-conviction relief to allow the record to be fully developed. Id. at *5.

On January 7, 2009, the Iowa District Court denied Powell's application for post-conviction relief based on various claims of ineffective assistance of counsel. Respondent's Appendix Of Relevant State Court Decisions (State Court Decisions) (docket no. 19–1), 12–26 (Iowa District Court's post-conviction relief ruling). On October 21, 2009, the Iowa Court of Appeals also affirmed that decision, expressly adopting all of the findings and conclusions of the Iowa District Court. See Powell v. State, 776 N.W.2d 886 (Table), 2009 WL 3380640, *1 (Iowa Ct.App. Oct. 21, 2009) ( Powell II ).

One of Powell's claims in his application for state post-conviction relief was a claim that trial counsel failed to advise him concerning the 70 percent mandatory minimum that might be applicable to his attempted murder charge. See Powell II, 2009 WL 3380640 (describing the pertinent claim as ineffective assistance of counsel “in failing to advise [Powell] on the mandatory sentence for the attempted murder charge”); State Court Decisions at 18–19 (excerpt from the Iowa District Court's

[778 F.Supp.2d 957]

post-conviction relief ruling describing Powell's pro se claim to be that trial counsel “failed to inform him that there was a 70 percent mandatory minimum on a 25–year sentence for attempted murder,” and noting that counsel “also raises the issue of failing to advise Powell of the mandatory sentence or the forcible felony aspects of attempted murder”). Powell contended that he would have accepted a plea agreement had counsel properly advised him of the potential for such a mandatory minimum sentence. State Court Decisions at 19.

The factual findings of the Iowa courts on this claim for post-conviction relief are the following:

[A] good discussion of the actions taken by Mr. Goldsmith on behalf of Mr. Powell can be found in Mr. Goldsmith's response to the complaint filed against him with the Iowa Supreme Court Attorney Disciplinary Board....

Mr. Goldsmith succinctly lays out the history of his representation of Mr. Powell. In [his] response [to Powell's complaint] and in his testimony Mr. Goldsmith was delicate in his treatment of the issue of the difficulty of dealing with Mr. Powell as a client. Mr. Powell had been charged with multiple crimes on several different dates and Christopher Polking had been appointed to represent him. When Mr. Polking withdrew, Mr. Goldsmith was appointed and appeared on March 14, 2005. All of the evidence in this case, when taken as a whole, points to the likelihood that Powell was extremely difficult to deal with throughout and shows the court that despite the difficulty, Mr. Goldsmith maintained a level, common sense and professional approach during the entire process.

* * *

As Mr. Goldsmith points out in his response to the Iowa Supreme Court Attorney Disciplinary Board, Mr. Powell was charged with attempted murder, assault on a police officer, theft of a motor vehicle, eluding in the commission of a felony, theft of a second motor vehicle, theft of a snowmobile, criminal mischief, two counts of burglary and theft in the third degree, constituting a “B” felony, a “C” felony, seven “D” felonies and an aggravated misdemeanor, which had allegedly occurred on several different occasions in 2004 and 2005.

In Exhibit No. 115, Mr. Powell says the following:

Thursday, April 19, 2005

Dear Peter:

After talking to you today and discussing a few things, talking about prison time and so forth, I'm at the conclusion of this.

I believe I am willing to proceed with jury trials in my cases. Whether it be 1 or 20. I never tried to kill Hogan therefore I'm willing to chance whatever.

Therefor[e] I feel a 5 year sentence is all that I'll be facing after I beat the attempted murder charge. But instead of a proposed plea agreement I talked about in my last letter to you in regards to a 6 month jail sentence, considering the county attorney wants “prison time”,...

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