U.S. v. Lindsey, Case No. 03-40011-01.
| Decision Date | 29 January 2007 |
| Docket Number | Case No. 03-40011-01.,Case No. 06-4143-RDR. |
| Parties | UNITED STATES of America, Plaintiff, v. James Earl LINDSEY, Defendant. |
| Court | U.S. District Court — District of Kansas |
Randy M. Hendershot, Office of United States Attorney, Topeka, KS, for Plaintiff.
Defendant was convicted by a jury of four criminal violations: possession of crack cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1); possession of marijuana with intent to distribute in violation of the same statute; knowingly and intentionally carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A); and possession of a firearm by a drug addict or user in violation of 18 U.S.C. § 922(g)(3). Defendant's convictions have been upheld on direct appeal, where defendant challenged the denial of a motion to suppress. 160 Fed.Appx. 708 (10th Cir. 2005). This case is now before the court upon defendant's motion to vacate his sentence pursuant to 28 U.S.C. § 2255.
STANDARDS GOVERNING § 2255 MOTIONS
In U.S. v. Chandler, 291 F.Supp.2d 1204, 1209-11 (2003), this court set forth standards which are applied to § 2255 motions.
In order to obtain relief under § 2255 on the basis of constitutional error, the petitioner must establish an error of constitutional magnitude which had a substantial and injurious effect or influence on the verdict. Brecht v. Abrahamson, 507 U.S. 619, 637-38, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). In order to obtain relief on the basis of nonconstitutional error, the petitioner must show a fundamental defect in the proceedings resulting in a complete miscarriage of justice or an error so egregious that it amounted to a violation of due process. Reed v. Farley, 512 U.S. 339, 353-354, 114 S.Ct. 2291, 129 L.Ed.2d 277 (1994).
An evidentiary hearing must be held on a § 2255 motion "unless the motion and files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255; United States v. Galloway, 56 F.3d 1239, 1240 n. 1 (10th Cir.1995). To be entitled to an evidentiary hearing, the defendant must allege facts which, if proven, would entitle him to relief. See Hatch v. Oklahoma, 58 F.3d 1447, 1471 (10th Cir. 1995), cert. denied, 517 U.S. 1235, 116 S.Ct. 1881, 135 L.Ed.2d 176 (1996). "[T]he allegations must be specific and particularized, not general or conclusory." Id. ....
A proceeding under § 2255 may not be used to challenge the legality of matters which should have been raised on direct appeal. United States v. Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); United States v. Allen, 16 F.3d 377, 378 (10th Cir.1994). To overcome this procedural bar, the defendant must show cause for his failure to present the claim on direct appeal and prejudice resulting therefrom, or that a fundamental defect occurred which inherently resulted in a complete miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Allen, 16 F.3d at 378.
Defendant makes numerous arguments to vacate his sentence. None of these arguments were made on direct appeal. Defendant attempts to show cause for the failure to raise these claims on direct appeal by asserting ineffective assistance of counsel.
The Tenth Circuit has reviewed what must be shown to have a successful claim of ineffective assistance of counsel:
A successful claim of ineffective assistance of counsel must meet the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, a defendant must show that his counsel's performance was deficient in that it "fell below an objective standard of reasonableness." Id. at 688, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Second, a defendant must show that counsel's deficient performance actually prejudiced his defense. Id. at 687, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674.
U.S. v. Harms, 371 F.3d 1208, 1211 (10th Cir.2004). To meet the first prong, a defendant must show that defense counsel's performance was neither reasonable under prevailing professional norms nor sound trial strategy. To meet the second prong, a defendant must show a reasonable probability that, but for the deficiencies in counsel's conduct, the result of the case would have been different. A probability is reasonable if it is sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694, 104 S.Ct. 2052.
" Murray v. Carrier, 477 U.S. 478, 486, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). ... This court has
Harms, 371 F.3d at 1212 (some citations omitted).
When examining the conduct of appellate counsel, the relevant questions are "whether appellate counsel was `objectively unreasonable' in failing to raise [the] ... claims on direct appeal and, if so, whether there is a `reasonable probability that, but for his counsel's unreasonable failure' to raise these claims, [the movant] `would have prevailed on his appeal.'" Neill v. Gibson, 278 F.3d 1044, 1057 (10th Cir. 2001) cert. denial, 537 U.S. 835, 123 S.Ct. 145, 154 L.Ed.2d 54 (2002) (quoting Smith v. Robbins, 528 U.S. 259, 285-86, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000)).
There is a strong presumption that counsel provided effective assistance of counsel, and the defendant has the burden of proof to overcome that presumption. U.S. v. Cronic, 466 U.S. 648, 658, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). When analyzing ineffective assistance claims, courts show deference to the performance of counsel. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. "For counsel's [decision] to rise to the level of constitutional ineffectiveness, the decision ... must have been `completely unreasonable, not merely wrong, so that it bears no relationship to a possible defense strategy.'" Hatch, 58 F.3d at 1459 (quoting United States v. Ortiz Oliveras, 717 F.2d 1, 4 (1st Cir. 1983)). "The benchmark for judging any claim of ineffectiveness must be whether the counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686, 104 S.Ct. 2052.
Speedy trial
Defendant's first contention is that his counsel rendered ineffective assistance on appeal because he failed to challenge this court's ruling that defendant's rights under the Speedy Trial Act, 18 U.S.C. § 3161 et seq., were not violated. Doc. No. 83. Defendant makes reference to the period from September 13, 2003 to October 16, 2003. The court held that this period of time was "excludable" for Speedy Trial Act purposes because of the pendency of pretrial motions. § 3161(h)(1)(F). Defendant asserts that this is incorrect and that his counsel should have made this an issue on direct appeal.
During the period of time in question, defendant's case was assigned to Judge Robinson of this district. There were four motions pending before Judge Robinson: a motion for discovery filed on April 24, 2003; a motion to dismiss filed on the same date; a motion to suppress filed May 7, 2003; and a motion for extension of time to file a post-hearing brief filed on August 14, 2003. Judge Robinson conducted hearings on the motion to suppress on June 20 and June 23, 2003. Judge Robinson conducted hearings on the motion to dismiss on June 20, June 23 and July 31, 2003. She allowed a post-hearing memorandum to be filed on the motion to suppress on August 13, 2003 and held that the motion to dismiss would be taken under advisement as of that date. This allowed defendant 14 days after the July 31, 2003 hearing to review certain records of the Kansas Highway Patrol.
Defendant contends that a 30-day limit should be placed on the time motions may be held under advisement for purposes of determining "excludable" time under the Speedy Trial Act and that 30-day period of time expired on September 13, 2003. See § 3161(h)(1)(J). He asserts that his motion for an extension of time to file a post-hearing brief should not extend this period because it was a simple motion which was not responded to or ruled upon, and it eventually became moot when the motions to dismiss and suppress were decided.
We reject this claim of ineffective assistance of counsel for two reasons. First, a reasonably competent attorney could decide that there was no violation of the Speedy Trial Act. There is a line of case authority which holds that the Speedy Trial Act allows a district court more than 30 days to decide multiple pretrial motions, as long as the motions are decided with reasonable promptness. U.S. v. Pedroza, 269 F.3d 821, 830-31 (7th Cir.2001); U.S. v. Baskin-Bey, 45 F.3d 200, 204 (7th Cir.) cert. denied, 514 U.S. 1089, 115 S.Ct. 1809, 131 L.Ed.2d 734 (1995); U.S. v. Cheek, 3 F.3d 1057, 1066-67 (7th Cir.1993) cert. denied, 510 U.S. 1112, 114 S.Ct. 1055, 127 L.Ed.2d 376 (1994); U.S. v. Latham, 754 F.2d 747, 752-53 (7th Cir.1985); U.S. v....
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