U.S. v. Bordeaux, 3:10-cv-03015
Decision Date | 21 April 2011 |
Docket Number | 3:07-cr-30060,3:10-cv-03015 |
Parties | United States of America,Plaintiff, v. Adam C. Bordeaux,Defendant. |
Court | U.S. District Court — District of South Dakota |
ORDER DENYING MOTION
Before the Court is Adam C. Bordeaux's amended motion pursuant to 28 U.S.C. § 2255 and a memorandum in support of the motion, which was signed on October 13, 2010. See Case No. 3:10-cv-03015, Docket No. 4. The original motion was signed on July 7, 2010. See Case No. 3:10-cv-03015, Docket No. 1. The motion is filed pro se. The government filed an answer and brief in opposition to Bordeaux's motion on December 23, 2010. See Case No. 1:10-cv-01013, Docket Nos. 6 and 7. Bordeaux did not file a reply. For the reasons explained below, the motion is denied.
The following summary of the underlying facts is taken from the direct appeal:
United States v. Bordeaux, 570 F.3d 1041, 1045 (8th Cir. 2009).
Bordeaux was charged in a six count indictment filed on July 25, 2007. The case was tried to a jury which returned its verdict on February 28, 2008. Bordeaux was convicted of one count of assault with a dangerous weapon in violation of 18 U.S.C. §§ 1153 and 113(a)(3) (Count V); three counts of assault with a dangerous weapon against a person who had not attained the age of18 years in violation of 18 U.S.C. §§ 1153, 113(a)(3) and 3559 (the Adam Walsh Act) (Counts II, III, and IV); and one count of discharging a firearm during a crime of violence in violation of 18 U.S.C. §§ 1153, 113(a)(3), and 924(c)(1)(A)(iii) (Count VI). He was acquitted on a second count of assault with a dangerous weapon (Count I). He was sentenced to a total of 240 months imprisonment on May 29, 2008. Specifically, minimum mandatory 120 month sentences were imposed on Counts II, III, and IV. A 27 month sentence was imposed on Count V. The sentences on Counts II, III, IV, and V are concurrent. A minimum mandatory 120 month consecutive sentence was imposed on Count VI as required by 18 U.S.C. § 924(c)(1)(A)(iii).
An appeal was taken. The conviction was affirmed on July 7, 2009. United States v. Bordeaux, 570 F.3d 1041 (8th Cir. 2009). Bordeaux did not petition the Supreme Court for a writ of certiorari. Bordeaux's § 2255 motion was signed on July 7, 2010, and filed on July 13, 2010. Hedid not file a brief or memorandum in support of his motion. Bordeaux moved to dismiss his § 2255 motion on September 15, 2010. His stated purpose for wanting to dismiss his motion was that so he could refile the motion along with a brief and raise additional issues. The Court denied the motion in an order dated September 21, 2010, finding that the better course of action would be to simply permit Bordeaux to filed an amended motion and brief. The Court gave Bordeaux until November 15, 2010, to file an amended motion and brief in support. Bordeaux's amended § 2255 motion was signed on October 13, 2010, and filed on October 18, 2010. Bordeaux raises three grounds for relief in his amended petition: (1) Native Americans were excluded from the jury pool; (2) he received ineffective assistance from appellate counsel who failed to raise the issue of discriminatory jury selection on appeal; and (3) he received ineffective assistance from trial counsel who failed to challenge the constitutionality of the consecutive minimum mandatory sentences he received. The government filed a response to the motion on December 23, 2010, in which it argued the motion should be denied.
A motion made pursuant to 28 U.S.C. § 2255 requires a showing of either constitutional or jurisdictional error, or a "fundamental defect" resulting in a "complete miscarriage of justice." Davis v. United States, 417 U.S. 333, 346 (1974); Hill v. United States, 368 U.S. 424, 428 (1962). A § 2255 motion is not a substitute for a direct appeal and is not the proper way to complain about simple trial errors. Anderson v. United States, 25 F.3d 704, 706 (8th Cir. 1994). A § 2255 movant "must clear a significantly higher hurdle than would exist on direct appeal." United States v. Frady, 456 U.S. 152, 166 (1982). Section 2255 is "intended to afford federal prisoners a remedy identicalin scope to federal habeas corpus." Davis, 417 U.S. at 343.
Bordeaux's motion raises both Batson1 and Duren2 claims relating to the jury selection process and a Sixth Amendment claim of ineffective assistance of appellate counsel based upon the failure of appellate counsel to raise the Batson and Duren claims on direct appeal. The government argues the claims are meritless and that Bordeaux has procedurally defaulted his Batson and Duren claims by failing to raise them on direct appeal.
In order to succeed on his Batson and Duren claims, Bordeaux must show that his claims have not been procedurally defaulted. See Becht v. United States, 403 F.3d 541, 545 (8th Cir. 2005). "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." Id (quoting Bousley v. United States, 523 U.S. 614, 622 (1998)). The procedural default rule does not apply to claims of ineffective assistance of counsel. Massaro v. United States, 538 U.S. 500, 504-05 ((2003); United States v. Smith, 843 F.2d 1148, 1150 (8th Cir. 1988). There is no question that Bordeaux failed to raise the Batson and Duren...
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