Sturdivant v. United States

• Decision Date: 31 March 2016
• Docket Number: No. CR 05-3009-DEO,No. C12-3085-LTS,C12-3085-LTS,CR 05-3009-DEO
• Parties: TYRONE STURDIVANT, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Northern District of Iowa

TYRONE STURDIVANT, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

No. C12-3085-LTS

No. CR 05-3009-DEO

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA CENTRAL DIVISION

March 31, 2016

MEMORANDUM OPINION AND ORDER ON PETITIONER'S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT A SENTENCE

The matter before me is Tyrone Sturdivant's November 5, 2012, Motion (Doc. No. 1) Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, which is revised and updated by Sturdivant's February 4, 2015, Merits Brief (Doc. No. 76) Related to Original 28 U.S.C. § 2255 Motion and Petitioner's December 21, 2015, Reply (Doc. No. 91) to Government's Response and Memorandum in Support of Government's Response to Defendant's Motion Under 28 U.S.C. § 2255. Sturdivant reincorporates the claims in his § 2255 Motion into his merits brief and clarifies each claim with sub-claims, largely alleging ineffective assistance of counsel. Additionally, Sturdivant claims constitutional violations of his Fifth and Sixth Amendment rights, sentencing guidelines errors and cumulative error.

TABLE OF CONTENTS

I. INTRODUCTION ........................................................................... 3

A. Factual Background and Criminal Proceedings .............................. 3

1. Summary of trial and sentencing proceedings ........................ 4

2. Summary of appellate proceedings ...................................... 6

a. Sturdivant's first appeal .......................................... 6 b. Remand and resentencing ........................................ 7

c. Sturdivant's second appeal ....................................... 8

d. Amendment 750, crack-to-cocaine ratio sentencing disparity correction ................................ 10

B. Section 2255 Proceedings ....................................................... 10

II. LEGAL ANALYSIS ...................................................................... 11

A. Standards for Section 2255 Relief ............................................. 12

1. Standards for proof of ineffective assistance of counsel claims ............................................................ 14

a. The "deficiency" prong of Strickland ........................ 15

b. The "prejudicial" prong of Strickland ....................... 16

B. Sturdivant's Ineffective Assistance of Counsel Claims .................... 16

1. Martha McMinn (pre-trial counsel) .................................. 17

a. Alleged failure of counsel to advise Sturdivant of the right to plead guilty ...................................... 17

2. Shelley Horak (trial counsel) ........................................... 18

a. Alleged failure to ensure Sturdivant had adequate access to discovery file and failure to adequately advise Sturdivant of his right to plead guilty ........................................................ 18

i. Jencks Act and Brady materials ...................... 18

ii. Sturdivant's access to discovery materials ................................................... 19

b. Alleged failure to file motion to sever case from co-defendants ..................................................... 22

c. Alleged failure to correct erroneous/defective jury instructions numbers 6, 9, and 14 ...................... 24

d. Alleged failure to object to prosecutorial misconduct during trial ......................................... 28

i. Alleged failure to object to perjured testimony of Travis Ulrich ............................. 28

ii. "Trial counsel agreed to prosecutorial misconduct" by permitting "introduction of Bremer County, Iowa evidence" .................................................. 29

e. Alleged failure to inform Sturdivant of error in unanimous jury verdict after contact with jurors ............................................................... 30

3. Robert Sikma (first sentencing/appellate counsel) ................. 30

a. Alleged failure of to ensure adequate access to discovery file ...................................................... 30b. Alleged failure to conduct an adequate investigation into prior offenses in Michigan, Illinois and Iowa ................................................. 30

4. Eric W. Butts (Second Appellate Counsel) .......................... 32

5. Stefanie Martinez (first resentencing counsel) ...................... 33

a. Alleged failure to ensure adequate access to discovery file ...................................................... 33

6. Michael Smart (second resentencing counsel) ...................... 33

C. Cumulative Error Review ....................................................... 34

D. Constitutional Claims ............................................................ 34

1. Sturdivant's sentence to life under §§ 841(b)(1)(A), 846, and 851 violates the Fifth Amendment Due Process and Equal Protection Clauses ............................... 34

2. Alleyne Issue .............................................................. 35

3. Section 851 Enhancement .............................................. 36

4. Tenth Amendment Violation ........................................... 37

E. Certificate of Appealability ..................................................... 37

III. CONCLUSION ............................................................................ 38

I. INTRODUCTION

A. Factual Background and Criminal Proceedings

Sturdivant was charged in the first three counts of a thirteen-count Indictment (the remaining counts were directed against three codefendants). Presentence Investigation Report (Cr. Doc. No. 260) ("PSIR") at 1. Count 1 charged Sturdivant with conspiracy to manufacture and distribute 50 grams or more of cocaine base, commonly called "crack cocaine," and conspiracy to distribute cocaine salt, more commonly called "powder cocaine," both Schedule II controlled substances, in violation of Title 21, United States Code ("U.S.C."), §§ 841(a)(1), (b)(1)(A), (b)(1)(C) and 846. PSIR 2. Counts 2 and 3 charged Sturdivant with distribution of powder cocaine, a Schedule II controlled substance, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). PSIR 3, 4.

1. Summary of trial and sentencing proceedings

The first attorney to represent Sturdivant in his federal criminal case was Martha McMinn, who was appointed from the court's Criminal Justice Act ("CJA") panel on January 27, 2005. On March 20, 2005, McMinn moved to withdraw and the motion was granted the following day. On March 22, 2005, a second attorney, Pamela Wingert, was appointed from the court's CJA panel. Wingert filed a motion to withdraw due to a conflict of interest on March 30, 2005. The motion was granted the same day. Sturdivant's third attorney, Shelley Horak,¹ was appointed April 4, 2005, and represented Sturdivant through trial.

Sturdivant was tried with his three codefendants. A jury trial commenced on June 30, 2005, and resulted in a guilty verdict on July 7, 2005, as to Counts 1, 2, and 3.² Cr. Doc. No. 98. A recurring issue throughout trial was defense counsels' repeated objections that the Assistant United States Attorney (AUSA) had failed to provide required discovery materials regarding certain witnesses' prior testimony or criminal records. See Trial Tr. 55-58, 168, 208 339-57, 402-16, 440-43, 490, 568, 604, 908-12, 971, 1042-53, 1119-26, 1195 (Cr. Doc. Nos. 111, 123).

On August 9, 2005, Horak filed a Motion for a Judgment of Acquittal or New Trial. Cr. Doc. No. 112. On October 4, 2005, at Sturdivant's direction, Horak moved to withdraw as Sturdivant's counsel before his sentencing. Cr. Doc. No. 126. The motion was granted the following day, after a hearing. Cr. Doc. No. 130. Robert Sikma was then appointed to represent Sturdivant. Sikma represented Sturdivant at the November 23, 2005, hearing on the Motion for a New Trial. On December 12, 2005,the court denied Sturdivant's Motions for a Judgment of Acquittal and New Trial. Cr. Doc. No. 155.

Sikma filed a sentencing memorandum on behalf of Sturdivant on March 28, 2006. Cr. Doc. No. 192. On April 6, 2006, Sikma also filed an objection to the Government's Notice of Prior Convictions Pursuant to 21 U.S.C. § 851.³ Cr. Doc. No. 196. Sikma's objections were directed at two of the prior convictions set forth in the § 851 notice. With regard to a prior conviction in Bremer County, Iowa, Sikma argued that it "cannot be separated from the case at bar because it was specifically used as evidence of acts in the conspiracy." Id. at 1. Sikma also pointed out that the § 851 notice detailed a conviction in Van Buren County, Missouri, when in fact, Sturdivant had been convicted in Van Buren County, Michigan. Id. at 1-2. In response to Sikma's "Michigan-not-Missouri" argument, the Government filed an amended § 851 notice on April 6, 2006.

Sturdivant's sentencing hearing was scheduled to take place on April 6, 2006, but was continued until the following day to adequately address the last-minute filings. Cr. Doc. No. 199. The sentencing hearing was further continued after the court directed the parties to brief additional issues. Cr. Doc. No. 201. Another sentencing hearing was held on June 8, 2006, but the court granted additional time for the parties to attempt to work out an agreement. Cr. Doc. No. 242.

According to Sturdivant's PSIR, he had a Criminal History Category ("CHC") of VI and a Base Offense Level of 34, but because Sturdivant qualified as a Career Offender, his Base Offense Level was increased to 37. PSIR 9. The PSIR indicates that even if his criminal history points did not qualify him for a CHC VI (which they did), his CHC would have been enhanced to VI because Sturdivant met the criteria of a Career Criminal.Under the 2005 United States Sentencing Guidelines ("USSG"), Sturdivant had an advisory guideline range of 360 months to life.

On October 26, 2006, the court sentenced Sturdivant to 348 months of imprisonment on Counts 1, 2 and 3, to be served concurrently. Cr. Doc. No. 259. The court concluded that the Government could not use...