Rock v. United States, C 11-4078-MWB
| Decision Date | 19 March 2013 |
| Docket Number | No. C 11-4078-MWB,C 11-4078-MWB |
| Parties | WILLIAM JUNIOR ROCK, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | United States District Courts. 8th Circuit. Northern District of Iowa |
WILLIAM JUNIOR ROCK, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.
No. C 11-4078-MWB
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA WESTERN DIVISION
DATED: March 19, 2013
I. INTRODUCTION.........................................2
A. The Criminal Proceedings...............................2
B. The § 2255 Motion ...................................3
II. LEGAL ANALYSIS.......................................3
A. Standards For § 2255 Relief ............................. 3
B. Procedural Matters ...................................61. Case or controversy............................. 6C. Ineffective Assistance Of Counsel.......................... 9
2. Preliminary matters ............................. 7
3. Procedural default ............................. 8
1. Applicable standards ............................ 9D. Certificate Of Appealability ............................. 22
2. Failure to request jury instructions .................. 13
3. Failure to use transcripts to impeach ................ 19
4. Failure to argue lack of notice..................... 21
III. CONCLUSION ........................................ 24
Page 2
This case is before me on petitioner William Junior Rock's Pro Se Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (Civ. docket no. 1), filed on September 6, 2011. Rock claims that the attorney who represented him at the trial level provided him with ineffective assistance of counsel. The respondent denies that Rock is entitled to any relief on his claims.
On August 19, 2009, Rock was charged by a one-count Indictment (Crim. docket no. 2) with failing to register pursuant to the Sex Offender Registration and Notification Act ("SORNA"). See Crim. docket no. 2. On March 30, 2010, Rock appeared in front of then Chief United States Magistrate Judge Paul A. Zoss to plead not guilty to the Indictment. See Crim. docket no. 5.
On July 29, 2010, Rock proceeded to trial. See Crim. docket no. 51. On that same day, the jury returned a verdict of guilty on count one of the Indictment. See Crim. docket no. 53. Rock, by counsel, filed a Motion For New Trial/Renewed Motion For Judgment Of Acquittal (Crim. docket no. 56), on August 6, 2010. The Government filed a Response (Crim. docket no. 60), on August 13, 2010. I denied Rock's Motion For New Trial/Renewed Motion For Judgment Of Acquittal on August 14, 2010. See Crim. docket no. 65.
Rock, by counsel, filed a Motion For Variance From Advisory Sentencing Guidelines (Crim. docket no. 61), on August 19, 2010, based on Rock's then current incarceration, the nature and circumstances of Rock's offenses and the reduced risk of danger to the community. Rock appeared before me on August 26, 2010, for a sentencing
Page 3
hearing. See Crim. docket no. 66. I granted Rock's motion for a downward variance and sentenced him to 30 months imprisonment. See Crim. docket nos. 66 and 67.
Rock, by counsel, filed a Notice of Appeal (Crim. docket no. 69), to the United States Court of Appeals for the Eighth Circuit on September 10, 2010. On March 11, 2011, the Eighth Circuit Court of Appeals affirmed Rock's sentence. See Crim. docket no. 82.
On September 6, 2011, Rock filed a Pro Se Motion Under § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (Civ. docket no. 1). On September 7, 2011, Rock filed a Pro Se Supplement (Civ. docket no. 3), to his § 2255 Motion, providing an affidavit in support of his motion. The Respondent filed an Answer (Civ. docket no. 4), on September 30, 2011. On March 29, 2012, Rock, by counsel, filed an Opening Brief (Civ. docket no. 8). The Respondent filed a Government's Response and Memorandum In Support Of Government's Response To Defendant's Motion (Civ. docket no. 13), on May 30, 2010. Rock, by counsel, filed a Reply To Government's Responsive Brief (Civ. docket no. 14), on June 29, 2010.
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
Page 4
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
Page 5
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 claim may be raised in Habeas only if the defendant can first demonstrate either cause and actual prejudice, or that he is actually innocent." Bousley v. United States, 523 U.S. 614, 622 (1998) (internal quotations and citations omitted).
"Cause and prejudice" to resuscitate a procedurally defaulted claim may include ineffective assistance of counsel, as defined by the Strickland test, discussed below. Theus, 611 F.3d at 449. Indeed, Strickland claims are not procedurally defaulted when brought for the first time pursuant to § 2255, because of the advantages of that form of proceeding for hearing such claims. Massaro v. United States, 538 U.S. 500 (2003). Otherwise, "[t]he Supreme Court recognized in Bousley that 'a claim that "is so novel that its legal basis is not reasonably available to counsel" may constitute cause for a procedural default.'" United States v. Moss, 252 F.3d 993, 1001 (8th Cir. 2001) (quoting Bousley, 523 U.S. at 622, with emphasis added, in turn quoting Reed v. Ross, 468 U.S. 1, 16 (1984)). The "actual innocence" that may overcome either procedural default or allow relitigation of a claim that was raised and rejected on direct appeal is a demonstration "'that, in light of all the evidence, it is more likely than not that no reasonable juror would Have convicted [the petitioner].'" Johnson v. United States, 278 F.3d 839, 844 (8th Cir. 2002) (quoting Bousley, 523 U.S. at 623); see also House v. Bell, 547 U.S. 518, 536-37 (2006). "'This is a strict standard; generally, a petitioner cannot show actual innocence where the evidence is sufficient to support a [conviction on the challenged offense].'" Id. (quoting McNeal v. United States, 249 F.3d 747, 749-50 (8th Cir. 2001)).
With these standards in mind, I turn to analysis of Rock's claims for § 2255 relief.
Page 6
To continue reading
Request your trial