United States v. James, 8:98CR20 (D. Neb. 8/2/2002), 8:98CR20.
| Decision Date | 02 August 2002 |
| Docket Number | 8:98CR20. |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. CALVIN JAMES, Defendant. |
| Court | U.S. District Court — District of Nebraska |
Before the court are (1) Filing No. 107, the motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255; and (2) Filing No. 126, the amendment to the section 2255 motion, filed by the defendant, Calvin James. Upon initial review of the defendant's § 2255 motion, I conclude that the motion should be denied.1
On March 2, 1999, the defendant entered a plea of guilty to Count I of the Superseding Indictment charging him with bank fraud in violation of 18 U.S.C. § 1344 and 2. After reviewing the Presentence Report and a Bureau of Prisons' (BOP) medical evaluation, I sentenced the defendant to the custody of the BOP for thirty months, to be followed by five years of supervised release and ordered restitution be paid in the amount of $103,727.00.
The defendant appealed his conviction to the Eighth Circuit, arguing that: (1) the Superseding Indictment failed to allege the elements of bank fraud; (2) the court improperly ordered restitution without regard to the defendant's ability to pay; (3) the defendant should not be responsible for restitution to certain financial institutions as ordered by the court; (4) the government engaged in prosecutorial misconduct and vindictive prosecution; and (5) the defendant's attorney rendered ineffective assistance of counsel. The Eighth Circuit affirmed the defendant's conviction on July 28, 2000. In the opinion, the Eighth Circuit held that the defendant had failed to show that the Superseding Indictment failed on its face to state the offense of bank fraud. The court rejected the defendant's claims regarding restitution. Finally, the court held that the defendant waived any claim of prosecutorial misconduct by pleading guilty. As for the ineffective assistance of counsel claim, the court noted that the claim should be raised in a postconviction motion pursuant to 28 U.S.C. § 2255.
On June 4, 2001, after he violated his terms of supervised release, I ordered the defendant to the custody of the Bureau of Prisons for a term of twenty-four months in case No. 8:98CR20 and ten months in case No. 8:95CR1, to run concurrently.
On May 24, 2001, the defendant filed the present section 2255 motion. In his motion, the defendant asserts the following claims:
The plea of not guilty in the above case was unlawfully induced;
The conviction was obtained by evidence seized during an unlawful search;
The conviction was obtained by the prosecution's failure to disclose evidence;
The Superseding Indictment failed to state an offense punishable by the government and/or lack of jurisdiction;
The government improperly used selective prosecution;
The denial of effective assistance of counsel prejudiced the defendant.
The defendant also filed an amendment to the section 2255 motion which includes the claim that if the exhibits in this case had not been destroyed, he would be able to prove the above claims.
Issues raised on direct appeal may not subsequently be used as a basis for collateral attack in the absence of newly discovered evidence or an intervening change in the law. See English v. United States, 998 F.2d 609, 612 (8th Cir. 1993) (). Consequently, because the defendant may not, in his section 2255 motion, assert issues which he previously presented on direct appeal, the following claims in the defendant's section 2255 motion will be, and hereby are, dismissed: Claim No. 4 (); and Claim No. 5 (selective prosecution).
The defendant argues that his attorney assured him that if he pled guilty to the offense charged, he would be sentenced to no more than fourteen months of imprisonment. For this reason, the defendant argues, his attorney unlawfully induced him to plead guilty. However, the record reflects the contrary.
Representations made at the plea hearing "carry a strong degree of verity and pose a `formidable barrier in any subsequent collateral proceeding.'" Ingrassia v. Armontrout, 902 F.2d 1368, 1370 (8th Cir. 1990), citing Voytik v. United States, 778 F.2d 1306, 1308 (8th Cir. 1985). At the change of plea hearing in the present case, I asked the defendant "What is your understanding of how much time you're looking at incarceration-wise if you plead guilty?" The defendant responded, "Thirty months." Filing No. 67 at 9:9-11. I informed the defendant that the maximum could be more than thirty months depending on the presentence report and my final decision. The defendant indicated that he understood. Regarding the plea agreement, I asked the defendant if he understood "that what is written on that paper . . . is the entire agreement between you and the government and there is no other side deals or agreements between you and the government?" The defendant indicated that he understood. Id. at 14:13-27. Finally, I asked the defendant if anyone had made promises or inducements to get him to plead guilty. Again, the defendant indicated "No." Id. at 20:10-14. Based on the defendant's testimony, I conclude that the defendant voluntarily pled guilty to the charge of bank fraud. Accordingly, Claim No. 1 of the defendant's section 2255 motion (that his attorney unlawfully induced him to plead guilty) is dismissed.
"A voluntary plea of guilty waives all nonjurisdictional defects." United States v. Petrngelo, 599 F.2d 261 (8th Cir. 1979). For the reasons stated above, the defendant's plea of guilty was voluntary and he is therefore barred from challenging the validity of the search and seizure. See Johnson v. Petrovsky, 626 F.2d 72, 73 (8th Cir. 1980) (). I informed the defendant of this waiver during the change of plea hearing. Filing No. 67 at 18:19-25. Accordingly, Claim Nos. 2 () and 3 (conviction obtained by the government's failure to disclose evidence relevant to suppression hearing) of the defendant's section 2255 motion are dismissed.
The defendant argues that he received ineffective assistance of counsel because of his attorney's failure to subpoena various witnesses for the suppression hearing and because the attorney ignored the defendant's request for a bench trial.
The United States Supreme Court has instructed that there exists a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. See Strickland v. Washington, 466 U.S. 668, 689-90 (1984):
Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."
A defendant bears the burden of proving both that counsel's performance was deficient and that the defendant suffered prejudice as the result of counsel's ineffective assistance. To establish prejudice, a defendant must demonstrate that absent counsel's errors, there exists a reasonable probability that the result of the proceeding would have been different. See Evans v. United States, 200 F.3d 549, 550 (8th Cir. 2000), citing Strickland. Accord Fields v. United States, 201 F.3d 1025, 1027 (8th Cir. 2000). Id. at 1027.
Where a conviction was entered on the basis of a guilty plea, the second part of the Strickland test is slightly modified. In the context of a guilty plea, a convicted defendant must demonstrate that "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Mathews v. United States, 114 F.3d 112, 114 (8th Cir. 1997) (citations omitted).
For the reasons noted above in the discussion of the suppression hearing, the defendant's objections to counsel's failure to subpoena witnesses at the suppression hearing were waived by his plea of guilty. Also, as noted above, I informed the defendant of the waiver of his right to appeal issues surrounding the denial of the motion to suppress evidence. At that time, the defendant agreed to the waiver.
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