U.S.A v. Mallett
| Decision Date | 04 February 2011 |
| Docket Number | No. 2:02-cr-0416-GEB-JFM,2:02-cr-0416-GEB-JFM |
| Parties | UNITED STATES OF AMERICA, Respondent, v. DAWANE A. MALLETT, Movant. |
| Court | U.S. District Court — Eastern District of California |
Movant is a federal prisoner proceeding pro se with a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. In 2003, movant was convicted of two counts of aiding and abetting interference with commerce by robbery, in violation of 18 U.S.C. § 1951(a)(2); two counts of use of a firearm, in violation of 18 U.S.C. § 924(c); one count of aiding and abetting armed bank burglary and kidnapping, in violation of 18 U.S.C. § 2113(a), (d) and (e); and one count of aiding and abetting carjacking a vehicle that has been transported in interstate commerce, in violation of 18 U.S.C. § 2119. On February 6, 2004, movant was sentenced to 654 months in federal prison.1 In the instant motion, movant raises sixteen claims for relief from the conviction and sentence. Respondent contends that some of movant's claimsare not cognizable on collateral review, that some of the claims are procedurally barred by movant's failure to raise them on direct appeal, and that none have merit.
Movant's convictions arose from four events: an attempted robbery of a Money Mart Store in Sacramento, California on March 20, 2002; an attempted robbery of a California Check Cashing business in Sacramento, California on May 30, 2002; carjacking, kidnapping of Alicia Montoya and an associated armed bank burglary on June 6 and 7, 2002; and wire fraud perpetrated on June 7, 2002. Movant was tried with a co-defendant, Terrance Mallett. Each had their own counsel at trial.
Section 2255 provides that
[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
Ordinarily, a defendant may not raise a claim for the first time in a § 2255 motion. United States v. Frady, 456 U.S. 152, 167 (1982) (); United States v. Johnson, 988 F.2d 941, 945 (9th Cir.1993) (). "'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."' " U.S. v. Ratigan, 351 U.S. 957, 964 (9th Cir. 2003 (quoting Bousley v. United States, 523 U.S. 614, 622 (1998) (internal citationsomitted)). "Constitutionally ineffective assistance counsel constitutes cause sufficient to excuse a procedural default." Ratigan, at 964-65 (citing Murray v. Carrier, 477 U.S. 478, 488 (1986). However, "the mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default." Murray v. Carrier, 477 U.S. at 486.
Movant raises two claims of ineffective assistance of counsel. In his first claim, he contends that his defense counsel was ineffective in (1) failing to cross examine Alicia Montoya; (2) refusing to allow movant to testify in his own defense; and (3) withdrawing movant's plea of not guilty by reason of insanity. In his fourth claim for relief, movant contends that his appellate counsel was ineffective in (1) failing to raise on direct appeal all of the claims raised in the instant motion; (2) failing to communicate with movant before filing a direct appeal; (3) failing to keep movant apprised of the status of his appeal; and (4) placing a collect call block on his telephone after being appointed to represent movant on direct appeal.
In order to prevail on his claims of ineffective assistance of counsel, movant must show two things, an unreasonable error and prejudice flowing from that error. First movant must show that, considering all the circumstances, counsel's performance fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 688 (1984). The court must determine whether in light of all the circumstances, the identified acts or omissions were outside the wide range of professional competent assistance. Id. at 690. "Review of counsel's performance is highly deferential and there is a strong presumption that counsel's conduct fell within the wide range of reasonable representation." United States v. Ferreira-Alameda, 815 F.2d 1251 (9th Cir. 1986).
Second, movant must prove prejudice. Strickland at 693. To demonstrate prejudice, petitioner must show that "there is a reasonable probability that, but for counsel'sunprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Id. The focus of the prejudice analysis is on "whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair." Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). "A court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies." Strickland, at 697.
The court turns first to movant's claim of ineffective assistance of trial counsel, which, as noted above, contains three separate contentions. With respect to the first, the record shows that neither movant's counsel nor his co-defendant's counsel cross-examined Ms. Montoya. See Reporter's Transcript (RT) at 390:24-391:1. Movant has made no showing of any cognizable prejudice as a result of his counsel's decision not to cross-examine Ms. Montoya, nor does it appear from the record that movant was so prejudiced.
With respect to the second contention, the record does not support movant's assertion that counsel refused to allow him to testify. At a bench conference following the conclusion of the government's case-in-chief, movant's counsel advised the court that he had "just confirmed with [movant] that he does not wish to testify. RT at 672:22-23. Subsequently, in open court in front of the jury movant's counsel represented that his defense rested "on the state of the evidence" and movant made no attempt to indicate that he wished to testify. RT at 684:11. Moreover, movant has made no showing of prejudice from his failure to testify.
Finally, as noted above, movant contends that his trial counsel rendered ineffective assistance by withdrawing a plea of not guilty by reason of insanity. In fact, the record shows that prior to appointment of his trial counsel, movant filed notice pursuant to Fed. R. Crim. P. 12.2 of intent to rely on an insanity defense. See, e.g., Docket No. 203. Subsequently, the trial court revoked movant's right to represent himself and appointed trial counsel, who had previously been serving as stand-by counsel, to represent petitioner. See Orderfiled October 24, 2003. Thereafter, counsel did not pursue an insanity defense. Movant has presented no evidence to show that he suffered cognizable prejudice as a result of this decision.
For all of the foregoing reasons, movant's claim of ineffective assistance of trial counsel should be denied.
Movant's claim of ineffective assistance of appellate counsel is based on four contentions: the failure of appellate counsel to raise on direct appeal all of the claims raised in the instant motion; the alleged failure of appellate counsel to communicate with movant before filing a direct appeal; the alleged failure of appellate counsel to keep movant apprised of the status of his appeal; and the alleged action of appellate counsel in placing a collect call block on his telephone after being appointed to represent movant on direct appeal.
With respect to the latter contention, respondent has presented evidence from movant's appellate counsel that his "general policy is to accept collect calls from incarcerated clients" and that he "did not put a collect call block on his telephone while he was representing" movant, Declaration of Victor S. Haltom, Esq., filed July 17, 2009 (Haltom Declaration), at ¶ 5. Mr. Haltom also avers that he spoke with movant on the telephone during the course of the representation, and that he has "over the years... been told by some clients that they attempted to make collect calls to [his] office telephone but the calls did not go through." Id. at ¶¶4, 6. In response, movant has filed an affidavit in which he avers only that Mr. Haltom refused "to communicate with [movant] before filing [his] direct appeal." Affidavit of Dawane Arthur Mallett, filed September 13, 2010 (Mallett Affidavit), at 2. This affidavit is insufficient to rebut the evidence filed by respondent. This court finds no evidence to support movant's assertion that his appellate counsel blocked collect calls from movant during the course of representation.
Movant's contention that his counsel was ineffective in failing to raise all the claims raised in the instant motion would require a showing that the outcome of his appeal would have been different had those claims been raised. For the reasons set forth infra, movant's claims are without merit. He cannot, therefore, make the required showing of prejudice.
Finally, movant makes two contentions concerning alleged failures of his appellate counsel to...
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