Smith v. United States
| Decision Date | 19 February 2013 |
| Docket Number | No. 09-cr-82-LRR (Criminal),No. 11-cv-86-LRR (Civil),09-cr-82-LRR (Criminal),11-cv-86-LRR (Civil) |
| Parties | STEPHEN SMITH, Movant, v. UNITED STATES OF AMERICA, Defendant. |
| Court | U.S. District Court — Northern District of Iowa |
I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . 1
II. RELEVANT BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . 2
III. LEGAL STANDARDS . . . . . . . . . . . . . . . . . . . . . . . 3
IV. ANALYSIS . . . . . . . . . . . . . . . . . . . . . . . 6
V. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . 10
I. INTRODUCTION
The matter before the court is the Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person In Federal Custody (civil docket no.1) filed by Stephen Smith ("movant") on July 26, 2011. On August 30, 2012, the court directed the parties to brief the claims that the movant included in his motion and ordered counsel tosubmit an affidavit in response to the movant's claims (civil docket no. 2). On October 29, 2012, the government filed a resistance to the motion (civil docket no. 5). The movant did not file a reply. However, the movant filed a motion to appoint counsel (civil docket no. 6) on December 21, 2012. The court now turns to consider the movant's claims pursuant to 28 U.S.C. § 2255.
II. RELEVANT BACKGROUND
On January 12, 2010, the movant was charged in a one-count indictment with the federal crime of failing to register as a sex offender in violation of 18 U.S.C. § 2250(a) (criminal docket no. 7). On February 22, 2010, the movant filed a notice of his intent to plead guilty (criminal docket no. 19). A change of plea hearing was held on March 1, 2010, at which time the movant pled guilty to the charge in the Indictment (criminal docket no. 23). On March 16, 2010, the court accepted the movant's plea of guilty (criminal docket no. 25).
After preparation and release of the final pre-sentence investigative report on June 25, 2010 (criminal docket no. 36), the parties were ordered to brief the sentencing issues (criminal docket no. 38). A sentencing hearing was held on August 5, 2010 (criminal docket no. 41). The movant was sentenced to 27 months in prison followed by a ten-year term of supervised release, and he was ordered to pay a $100 special assessment (criminal docket no. 42).
The movant, through attorney Jane Kelly, filed a notice of appeal on August 9, 2010 (criminal docket no. 46). The Federal Public Defender's office was appointed to represent the movant on appeal (criminal docket no. 51). The record shows attorney John Messina represented the movant on appeal. The appeal was dismissed on October 8, 2010 and mandate issued immediately (criminal docket nos. 58 & 59).
In the instant motion, the movant claims Jane Kelly (trial counsel and sentencing counsel) and John Messina (appellate counsel), rendered ineffective assistance to him in his criminal case. The movant claims his trial counsel was ineffective by: (1) failing to tellhim that Title 18 of the United States Code is unconstitutional; (2) failing to tell him that 18 U.S.C. § 2250(a) is an unconstitutional exercise of Congressional authority pursuant to the Commerce Clause; and (3) failing to argue at sentencing that his prior assault conviction should not be counted in computing his criminal history score because he was not represented by counsel. The movant argues that his appellate counsel rendered ineffective assistance by coercing him to dismiss his appeal.
III. LEGAL STANDARDS
28 U.S.C. § 2255 allows a prisoner in custody under sentence of a federal court to move the sentencing court to vacate, set aside or correct a sentence. To obtain relief pursuant to 28 U.S.C. § 2255, a federal prisoner must establish: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose such sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. See Hill v. United States, 368 U.S. 424, 426-27, 82 S. Ct. 468, 7 L. Ed. 2d 417 (1962) (citing 28 U.S.C. § 2255).
Although it appears to be broad, 28 U.S.C. § 2255 does not provide a remedy for "all claimed errors in conviction and sentencing." United States v. Addonizio, 442 U.S. 178, 185, 99 S. Ct. 2235, 60 L. Ed. 2d 805 (1979). Rather, 28 U.S.C. § 2255 is intended to redress only "fundamental defect[s] which inherently [result] in a complete miscarriage of justice" and "omission[s] inconsistent with the rudimentary demands of fair procedure." Hill, 368 U.S. at 428; see also United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996) () (citing Poor Thunder v. United States, 810 F.2d 817, 821 (8th Cir. 1987)). A collateral challenge under 28 U.S.C. § 2255 is not interchangeable or substitutable for a direct appeal. SeeUnited States v. Frady, 456 U.S. 152, 165, 102 S. Ct. 1584, 71 L. Ed. 2d 816 (1982) (). Consequently, "[a]n error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment." Id. (internal quotation marks and citation omitted).
In addition, movants ordinarily are precluded from asserting claims they failed to raise on direct appeal. See McNeal v. United States, 249 F.3d 747, 749 (8th Cir. 2001). "A [movant] who has procedurally defaulted a claim by failing to raise it on direct review may raise the claim in a [28 U.S.C. §] 2255 proceeding only by demonstrating cause for the default and prejudice or actual innocence." Id. (citing Bousley v. United States, 523 U.S. 614, 622, 118 S. Ct. 1604, 140 L. Ed. 2d 828 (1998)); see also Massaro v. United States, 538 U.S. 500, 504, 123 S. Ct. 1690, 155 L. Ed. 2d 714 (2003) (). "'[C]ause' under the cause and prejudice test must be something external to the [movant], something that cannot be fairly attributed to him." Coleman v. Thompson, 501 U.S. 722, 753, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991) (emphasis in original). If a movant fails to show cause, a court need not consider whether actual prejudice exists. McCleskey v. Zant, 499 U.S. 467, 501, 111 S. Ct. 1454, 113 L. Ed. 2d 517 (1991). Actual innocence under the actual innocence test "means factual innocence, not mere legal insufficiency." Bousley, 523 U.S. at 623-24; see also McNeal, 249 F.3d at 749 ().1
The Sixth Amendment to the United States Constitution provides in pertinent part that, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his [or her] defen[s]e." U.S. Const., amend. VI. Furthermore, there is a constitutional right to effective assistance of counsel on direct appeal. Evitts v. Lucey, 469 U.S. 387, 393-95, 105 S. Ct. 830, 83 L. Ed. 2d 821 (1985); Douglas v. California, 372 U.S. 353, 356-57, 83 S. Ct. 814, 9 L. Ed. 2d 811 (1963).
The Sixth Amendment right to effective counsel is clearly established. See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In Strickland, the Supreme Court explained that a violation of that right has two components:
First, [a movant] must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the [movant] by the Sixth Amendment. Second, [a movant] must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the [movant] of a fair trial, a trial whose result is reliable.
Id. at 687; see also Williams v. Taylor, 529 U.S. 362, 390, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000) (reasserting Strickland standard). Thus, Strickland requires a showing of both deficient performance and prejudice. However, "a court deciding an ineffective assistance claim [need not] address both components of the inquiry if the [movant] makes an insufficient showing on one." Strickland, 466 U.S. at 697. "If it is easier to dispose of an ineffectiveness claim on grounds of lack of sufficient prejudice, . . . that course should be followed." Id.; see also Apfel, 97 F.3d at 1076 ().
To establish unreasonably deficient performance, a movant "must show that counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. The "reasonableness of counsel's challenged conduct [must be reviewed]on the facts of the particular case, viewed as of the time of counsel's conduct." Id. at 690. There is a strong presumption of competence and reasonable professional judgment. Id. ; see also United States v. Taylor, 258 F.3d 815, 818 (8th Cir. 2001) (...
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