Russ v. United States

• Decision Date: 06 April 2017
• Docket Number: CASE NO. 4:16CV273,CASE NO. 4:10CR309
• Parties: DAMIEN T. RUSS, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Northern District of Ohio

DAMIEN T. RUSS, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

CASE NO. 4:10CR309

CASE NO. 4:16CV273

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

April 6, 2017

JUDGE JOHN R. ADAMS

MEMORANDUM OPINION AND ORDER

The instant matter is before the Court upon Petitioner Damien Russ' Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, filed pursuant to 28 U.S.C. § 2255. Doc. 822. The petition is DENIED.

I. STANDARD OF REVIEW

"To prevail under 28 U.S.C. § 2255, a defendant must show a 'fundamental defect' in the proceedings which necessarily results in a complete miscarriage of justice or an egregious error violative of due process." Gall v. United States, 21 F.3d 107, 109 (6th Cir. 1994). A federal district court may grant relief to a prisoner in custody only if the petitioner can "demonstrate the existence of an error of constitutional magnitude which had a substantial and injurious effect or influence on the guilty plea or the jury's verdict." Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003).

II. FACTS AND PROCEDURAL HISTORY

The facts of this matter were detailed in Petitioner's direct appeal of his convictions and are as follows:

Russ, a convicted felon on supervised release, fled when confronted by two law enforcement officers in the rear parking lot of the Powerhouse Bar and Grill in the early morning hours of July 10, 2010. As Russ pushed away and ran, the officers saw a shiny object at his waist that one of them recognized to be a firearm. They chased Russ, lost sight of him, and pulled him from some bushes a few minutes later. No firearm was found with Russ, but a silver .38 caliber revolver with an obliterated serial number and six rounds of ammunition was recovered less than ten minutes later in some brush along the path Russ had taken when officers lost sight of him. A one-count indictment charged Russ with being a felon in unlawful possession of a loaded firearm—namely, a Rossi .38 caliber revolver with an obliterated serial number and six rounds of ammunition—in violation of 18 U.S.C. § 922(g)(1).

Defendant's motion to suppress evidence was denied, and trial was conducted over several days in May 2011. Russ did not testify, and the jury found him guilty as charged. The district court varied upward and sentenced Russ to 97 months of imprisonment and three years of supervised release. Based on that conviction, the district court also revoked Russ's prior supervised release and imposed a consecutive 18-month term of imprisonment to be followed by the remaining term of supervised release. This court affirmed the denial of the suppression motion, but reversed both the felon-in-possession conviction and the revocation of his supervised release for reasons unrelated to this appeal. See United States v. Russ, 508 Fed. Appx. 377 (6th Cir. 2012).

On remand, Russ obtained new court-appointed counsel and elected to testify at the trial conducted in April 2013. The jury returned a verdict of guilty, and Russ filed a pro se motion for a new trial asserting claims of ineffective assistance of counsel. At sentencing, Russ also insisted that he be allowed to represent himself, and defense counsel withdrew. Defendant argued for a downward departure or variance and the government moved for an upward departure or variance as each had done after the first trial. But, the government also sought an additional two-level enhancement for obstruction of justice based on Russ's testimony during the second trial. See U.S. Sentencing Guidelines Manual (USSG) § 3C1.1 (2012). Finding the enhancement applied and granting an upward variance to the statutory maximum, the district court sentenced Russ to 120 months of imprisonment to be followed by a three-year term of supervised release. Revoking his prior term of supervised release, the district court imposed a consecutive sentence of 30 months of imprisonment and terminated the remaining period of supervised release.

United States v. Russ, 600 F. App'x 438, 440-41 (6th Cir. 2015).

On February 4, 20156 Petitioner filed the instant motion. On April 4, 2016, the Government responded in opposition to the motion. Petitioner replied in support of his motion on April 22, 2016. The Court now resolves his arguments.

II. LAW AND ARGUMENT

GROUNDS ONE, TWO, and THREE

In all three of his grounds for relief, Petitioner asserts that his counsel (trial in grounds one and two and appellate in ground three) was ineffective for 1) failing to properly advise him regarding his decision to testify on his own behalf, 2) failing to properly that his jury selection process was unconstitutional, 3) failing to argue on appeal that his waiver of counsel was invalid.

The standard for ineffective assistance of counsel is the two-part test set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). First, Petitioner must show that his counsel's performance was deficient. Id. at 687. Counsel must not merely have erred, but erred so "serious[ly] that counsel was not functioning as the 'counsel' guaranteed ... by the Sixth Amendment." Id. Second, Petitioner must show that his counsel's deficient performance actually prejudiced his defense. Id. The Court will now examine each of Petitioner's contentions.

Petitioner's first contention - that his counsel failed to properly advise him regarding his decision to testify - is belied by the record. During the trial of this matter, Petitioner's then-counsel, Damian Billak, notified the Court that his client intended to testify:

MR. BILLAK: Your Honor, I just wanted to give the Court and marshals notice Ms. Russ is likely to testify and he would be the next witness.

THE COURT: All right. I think I probably should inquire of him, make certain that's what he desires to do.

MS. RICE: Thank you, Your Honor.

MR. BILLAK: And the ramifications that go along with that. I've gone over that obviously with him.

Doc. 163 at 50. The Court then inquired as follows:

THE COURT: Mr. Russ, it's my understanding, based on our discussions at sidebar with your attorney, that you desire to testify; is that correct?

THE DEFENDANT: Yes, sir.

THE COURT: Do you understand, sir, that you have a right not to testify. If you do not testify, the government's attorneys cannot use that against you in any way. They can't make any comment about your failure to testify. However, in the alternative, if you do testify, they will be permitted to call to the jury's attention your prior criminal record. They have a right to question you regarding those matters. It's called impeachment. It goes to, in some respects, your credibility and your truthfulness. So without your testimony, the jurors will not be made aware of your prior criminal record. If you do testify, the jurors will most certainly learn of that information. Do you understand that?

THE DEFENDANT: Yes, sir.

THE COURT: And again, I'm not trying to in any way, shape, or form discourage you from testifying or suggest you shouldn't testify. Nor am I suggesting that you should not. I just want to make sure you understand the possible consequences if you do testify and make you aware of the fact that this certain -- certainly the information which your attorney may feel is prejudicial to your cause will be before the jury. Do you understand that?

THE DEFENDANT: Yes, sir.

THE COURT: Is it still your desire to testify?

THE DEFENDANT: Yes.

THE COURT: Counsel for the government, just for the record, what do you anticipate will be the defendant's record, the convictions that you will call upon on cross-examination, just so the defendant has a full understanding.

MS. RICE: Certainly, Your Honor. 2000 federal conviction for possession with intent to distribute cocaine base or crack on which he was on supervised release at the time of this offense. I'm sorry. That was -- yes. That was the first one. Then he has a '98 felony of the fifth degree, possession of crack cocaine. That one we cannot use. Obviously that's a felony of the fifth degree. He has an assault conviction from 1999 for which he served 90 days in jail. And a -- I believe that's it. The other attempted aggravated trafficking, F-4, is from 1994. So that is too old.

MR. BILLAK: Your Honor, I don't believe that assault would come in. That's a misdemeanor conviction from '99.

MS. RICE: So the primary one would be the federal drug conviction for which he was on supervised release.

THE COURT: All right. Sir, you understand that that is evidence, again, that the jurors will be made aware of in this case if you testify?

THE DEFENDANT: Yes, sir.

THE COURT: And it's still your desire to testify?

THE DEFENDANT: Yes, sir.

THE COURT: You've consulted in full with your attorney, and he's advised you of your - let's put it this way. Let me rephrase it. You've conferred with him and discussed the matter in full with him, and at this time it's still your desire to testify?

THE DEFENDANT: Yes, sir.

THE COURT: All right. The Court is satisfied.

Doc. 163 at 50-54 (emphasis added).

In this proceeding, Petitioner contends that despite the trial record, his counsel failed to advise him. Specifically, Petitioner contends that his counsel did not inform of the possibility that he would receive an obstruction of justice enhancement if the jury and ultimately the undersigned did not find his testimony to be credible. This Court is agreement with those courts that have considered and rejected this precise argument:

Nevertheless, "[w]arning a criminal defendant that testifying untruthfully could lead to a sentence enhancement for obstruction of justice is not a requirement for a trial defense attorney under the constitutional standard of effective assistance of counsel." United States v. Williams, 2005 WL 3303934, *5 (D.Alaska 2005). This is because "taking the oath prefatory to testifying informs a witness that truthful testimony is expected. That the untruthful witness may not be aware of the exact penalty to be suffered does not mean that he is unaware of the prohibition

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