U.S. v. Barth
| Decision Date | 22 May 2007 |
| Docket Number | No. 1:03-cr-046.,No. 1:06-cv-097.,1:03-cr-046.,1:06-cv-097. |
| Citation | 488 F.Supp.2d 874 |
| Parties | UNITED STATES of America, Plaintiff, v. Shawn Leo BARTH, Defendant. Shawn Leo Barth, Petitioner, v. United States of America, Respondent. |
| Court | U.S. District Court — District of North Dakota |
Rick L. Volk, U.S. Attorneys, Bismarck, ND, for Plaintiff.
ORDER DENYING DEFENDANT'S PETITION FOR HABEAS COPUS RELIEF UNDER 28 U.S.C. § 2255
Before the Court is the Defendant's petition under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence, filed on December 11, 2006. On December 12, 2006, the Court granted the Defendant's request to amend his brief in support of the petition for habeas relief. On February 21, 2007, the Court reviewed the motion and ordered the Government to file a response. On April 20, 2007, the Government filed a response requesting that the Court deny the Defendant's motion for post-conviction relief. For the reasons set forth below, the motion is denied.
On July 9, 2003, the defendant, Shawn Leo Barth ("Barth"), was charged in a nine-count indictment with various drug and firearm offenses. Count One charged Barth and four other individuals with conspiracy to distribute and possess with intent to distribute 50 grams or more of actual methamphetamine or 500 grams of more of a mixture or substance containing a detectable amount of methamphetamine. Count Two charged Barth with possession with intent to distribute 500 grams of a mixture or substance containing a detectable amount of methamphetamine. Count Three charged Barth with distribution of methamphetamine. Count Four charged Barth with possession of a firearm in furtherance of a drug trafficking crime. Count Six charged Barth with being a felon in possession of a firearm and ammunition. See Docket No. 11. Prior to trial, the Government filed an Information alleging that Barth had two prior felony drug offenses therefore subjecting Barth to the possibility of a mandatory sentence of life imprisonment if convicted on either Counts One or Two. See Docket No. 94.
On. December 18, 2003, a jury found Barth guilty on all counts. See Docket No. 131. As to Count One, the jury found that the conspiracy involved over 50 grams of methamphetamine or over 500 grams of a mixture or substance containing a detectable amount of methamphetamine. The jury also found that as to Count Two, Barth possessed with intent to distribute 500 grams or more of a mixture containing a detectable amount of methamphetamine.
Barth was sentenced on March 22, 2004. At sentencing, the Court determined that Barth had two prior felony drug convictions and, due to the jury's special findings regarding the amount of methamphetamine involved in the offenses, sentenced Barth to concurrent terms of life imprisonment on Counts One and Two. The Court imposed a concurrent 20-year prison term on Count Three, a concurrent 5-year prison term of Count Four, and a concurrent 15-year prison term on Count Six. On Count Five, the Court imposed a 5-year consecutive prison term as mandated by 18 U.S.C. § 924(c)(1)(A).
On March 25, 2004, Barth filed a notice of appeal. See Docket No. 165. Barth appealed his conviction and sentence. On appeal, Barth argued that (1) he was prejudiced because of a variance between the Indictment that alleged a single conspiracy and the evidence which allegedly showed multiple conspiracies; (2) there was insufficient evidence to convict him; and (3) his sentence violated the Sixth Amendment under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). See United States v. Barth, 424 F.3d 752 (8th Cir.2005). The Eighth Circuit Court of Appeals rejected Barth's claims and affirmed his conviction and sentence. Id.
On December 11, 2006, Barth filed a motion under 28 U.S.C. § 2255. Barth asserts that his trial counsel were ineffective. Barth sets forth six alleged deficiencies: (1) counsel failed to file a motion to suppress evidence; (2) counsel failed to negotiate a plea agreement; (3) counsel failed to call Barth as a witness; (4) counsel failed to investigate Government witnesses; (5) counsel ineffectively cross-examined Government witnesses; and (6) counsel failed to object, to sentencing enhancements.
A. INEFFECTIVE ASSISTANCE OF COUNSEL
The burden of demonstrating ineffective assistance of counsel is on a defendant. United States v. Cronic, 466 U.S. 648, 658, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984); United States v. White, 341 F.3d 673, 678 (8th Cir.2003). To be eligible for habeas relief based on ineffective assistance of counsel a defendant must meet the twopart test announced in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A defendant must first establish that counsel's representation was constitutionally deficient, which requires a showing that counsel's performance fell below an objective standard of reasonableness. Id. at 687-88, 104 S.Ct. 2052; see Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). This requires showing that counsel made errors so serious that defense counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984). In considering whether this showing has been accomplished, "[j]udicial scrutiny of counsel's performance must be highly deferential." Id. at 689, 104 S.Ct. 2052. If the underlying claim (i.e., the alleged deficient performance) would have been rejected, counsel's performance is not deficient. Carter v. Hopkins, 92 F.3d 666, 671 (8th Cir. 1996). Courts seek to "eliminate the distorting effects of hindsight" by examining counsel's performance from counsel's perspective at the time of the alleged error. Id.
A defendant must then show that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This requires proving that there is a reasonable probability that, but for counsel's ineffectiveness, the result would have been more favorable to the defendant. Id. at 690-91, 104 S.Ct. 2052. A reasonable probability is one "sufficient to undermine confidence in the outcome." Wiggins, v. Smith, 539 U.S. 510, 534, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). Merely showing a conceivable effect is not enough. When evaluating the probability the result would have been different, a court views the alleged error in light of the totality of all the evidence before the jury to gauge the effect of the error. Kimmelman v. Morrison, 477 U.S. 365, 381, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986); Williams v. United States, 452 F.3d 1009, 1013 (8th Cir.2006). When a defendant raises multiple claims of ineffective assistance, each claim of ineffective assistance must be examined independently rather than collectively. Hall v. Luebbers, 296 F.3d 685, 692-693 (8th Cir.2002); Griffin v. Delo, 33 F.3d 895, 903-04 (8th Cir.1994).
Barth contends that his counsel was ineffective for failing to file a motion to suppress evidence seized at a farmstead in Oliver County at which Barth was staying. Barth's claim is frivolous and devoid of any merit. The record clearly reveals that on. October 1, 2003, Barth's counsel filed a motion to suppress. See Docket No. 75. A hearing on the motion to suppress was held. See Docket No. 81. On October 30, 2003, the Court issued an Order finding that the search warrants did not authorize the search of the vehicles at the farmstead, but that the search of the vehicles was allowed under either the automobile exception to the warrant requirement of the Fourth Amendment or the inevitable-discovery doctrine. See Docket No. 83.
To the extent that Barth is asserting that counsel was ineffective for failing to challenge the evidence obtained pursuant to the search warrants, to prevail on such a claim Barth must show that the suppression claim would have been "meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence." See Kimmelman v. Morrison, 477 U.S. 365, 381, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). Barth has failed to establish that such a challenge would have been successful or that the outcome of the trial would have been different without the evidence. The Court finds that Barth's claim on this issue is so lacking in any demonstrable proof that it much be rejected in its entirety
Barth contends that his counsel was ineffective for failing to negotiate a plea agreement with the Government. It is unclear whether defense counsel has a duty to negotiate a plea agreement. See Beans v. Black, 757 F.2d 933, 936 (8th Cir.1985) (); Hawkman v. Parma, 661 F.2d 1161 (8th Cir.1981) (). Nevertheless, even if the Court were to assume that Barth's counsel had a duty to negotiate a plea agreement, Barth must still how that his counsel's omission actually prejudiced him. To establish actual prejudice, Barth must establish, through objective credible evidence, that (1) the Government would have offered a plea bargain, and (2) Barth would have accepted such an offer and admitted his guilt. See Engelen v. United States, 68 F.3d 238, 241 (8th Cir.1995).
A thorough review of the record does not indicate whether the Government would have offered Barth a plea bargain. Even assuming it would have offered Barth a plea agreement, there is no evidence to indicate what the terms of the agreement may have been. As the Government pointed out in its response brief, given the amount of methamphetamine involved and Barth's extensive criminal history, Barth was likely facing a life sentence whether he pled...
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