Powell v. Fayram
| Decision Date | 18 February 2011 |
| Docket Number | No. C10-4012-MWB,C10-4012-MWB |
| Parties | JASON M. POWELL, Petitioner, v. JOHN FAYRAM, Respondent. |
| Court | U.S. District Court — Northern District of Iowa |
On February 22, 2005, Jason Powell was charged in Crawford County, Iowa, District Court with first-degree eluding, second-degree theft, assault on a police officer, and attempted murder. After a jury trial, Powell was convicted on all four charges. He was 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 the sentences to run concurrently. He appealed, and his appeal was referred to the Iowa Court of Appeals, which reversed the convictions on the eluding and theft charges but affirmed the convictions for assault and attempted murder.
Powell then filed an application for post-conviction relief. After a bench trial, the application was denied. Powell appealed, and his appeal was referred to the Iowa Court of Appeals, which affirmed the denial of his PCR application.
On January 29, 2010, Powell filed a pro se application for habeas corpus relief in this court under 28 U.S.C. § 2254. Doc. No. 1. The court granted his request for appointment of counsel. Doc. No. 7. On September 8, 2010, Powell filed a brief on the merits. Doc. No. 18. On September 30, 2010, the respondent ("the State") filed its merits brief. Doc. No. 19. On January 10, 2011, the matter was referred to theundersigned for submission of a report and recommended disposition of the case. Doc. No. 21.
Oral arguments on Powell's application were held on February 18, 2011. Powell appeared by telephone and his attorney, Shelley A. Goff, appeared in person. Thomas W. Andrews appeared by telephone on behalf of the State.1 The matter now is fully submitted.
The facts of the case were summarized by the Iowa Court of Appeals in its opinion on Powell's direct appeal, State v. Powell, 728 N.W.2d 851 (Table), 2007 WL 112890 (Iowa Ct. App. Jan. 18, 2007) ("Powell I"). Absent rebuttal by clear and convincing evidence, the court must presume that any factual determinations made by the Iowa courts were correct. 28 U.S.C. § 2254(e)(1); see Bell v. Norris, 586 F.3d 624, 630 (8th Cir. 2009) (). As no such rebuttal has been made, the court adopts the following facts as determined by the Iowa Court of Appeals:
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 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.
Powell I, 2007 WL 112890 at *1.
In his brief to this court, Powell claims ineffective assistance of trial counsel on four grounds: (1) failure to move for a judgment of acquittal; Doc. No. 18, at 10; (2) failure to move for a change of venue, id. at 12; (3) failure to give him correct advice during plea negotiations concerning the time he would have to serve in prison if convicted on the attempted murder charge, id. at 15; and (4) failure to retain an expert witness to establish that the brakes on the pickup truck were defective, id. at 16.
Crawford County District Court Judge Edward A. Jacobson ruled on these claims as follows:
Mr. [Peter] Goldsmith [trial counsel] succinctly lays out the history of his representation of Mr. Powell. In [his] response [to Powell's complaint] and in his testimonyMr. 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 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", the only prison time I'm willing to take a plea onwould be for a 2 yr sentence of some sort, be willing to clean up any "open" cases I may be involved in-If given immunity from those charges, pay restitution as in attorney fees, court costs, fines (if imposed) the damage to the 2004 Ford Explorer, along w/all my medical expenses which I incurred while I was incarcerated in Crawford County Jail. I am not taking a 5 yr or 10 yr or 25 yr sentence.
I'm willing to roll the dice whether it's advised or not. Ohh and be given time served. Instead of wasting time and peoples money, give me a 2 yr sentence of some kind-interference w/official acts-theft 3rd, elude, attempt to elude-or whatever-you can ship me to Oakdale tomorrow if they would like. I'll sign papers and go-or we're in for the long haul of a lot of jury trials and a lot of spent money and time for close to the same results. If I get screwed and lose then a lot more time and money spent in appeals, because, no plea-bargain-right to appeal.
I guess we'll be waiting to hear from the county attorney.
Thanks, Peter!!
The court notes the specific language, "I am not taking a 5-year or 10-year or 25-year sentence, " and "I'm willing to roll the dice whether its advised or not."
While he claims in his post conviction relief action that Mr. Goldsmith was remiss in advising him, it is clear from his own testimony, from his communications and from the evidence presented by Mr. Goldsmith, that Mr. Powell was simply ignoring the advice that was being given to him.
The court will not belabor the issue on Change of Venue. It is clear that Mr. Goldsmith advised the defendant with regard to the requirements for a change of venue and advised Mr. Powell that he doubted that a Motion for Changeof Venue could be supported or would be successful. That fact is proven out because the testimony indicates that it took only 45 minutes to pick a jury, that the jury was specifically asked repeatedly about issues of being fair and impartial and knowledge of Sheriff Hogan. The jury was also specifically asked about pretrial publicity. In fact, the court called only 30 jurors to fill the 25 seats available before the exercise of preemptory challenges and the seating of an alternate. Certainly no prejudice is shown by virtue of the failure to move for a change of venue by Mr. Goldsmith. There were no motions to exclude jurors for cause that were not granted by Judge Hoffmeyer. In fact, one person who knew the sheriff but indicated that she could be fair and impartial despite that fact, was left on the jury after Mr. Powell was given an opportunity to have her stricken with a preemptory strike and specifically declined to do so, according...
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