United States v. McCoy
| Decision Date | 29 March 2016 |
| Docket Number | NO. 5:08-CR-135-KKC-HAI-2,5:08-CR-135-KKC-HAI-2 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. CLARENCE McCOY Defendant. |
| Court | U.S. District Court — Eastern District of Kentucky |
This matter is before the Court on Defendant Clarence McCoy's pro se 28 U.S.C. § 2255 motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. Defendant asserts thirty-one grounds for relief, including ineffective assistance of counsel, errors regarding the sufficiency of the evidence with which he was convicted, defects in various jury instructions, and other claims. For the reasons stated herein, the Court will adopt the magistrate judge's report and recommendation denying Defendant's motion.
Defendant, a former employee of the Fayette County Detention Center, was convicted by a jury on three charges related to his use of excessive force on pre-trial detainees: (1) conspiracy to violate civil rights under color of law in violation of 18 U.S.C. § 241; (2) aiding and abetting a co-defendant to violate civil rights under color of law by physically assaulting a pre-trial detainee in violation of 18 U.S.C. §§ 2 and 242; and (3) aiding and abetting a co-defendant to knowingly falsify official reports concerning the use of physical force upon a pre-trial detainee with intent to impede, obstruct, and influence the investigation and proper administration of the matter in violation of 18 U.S.C. §§ 2 and 1519. [DE 185 at 102-103.]
Defendant appealed, alleging four errors: (1) improper disqualification of retained counsel; (2) improper calculation of the base offense level; (3) improper application of a two-level-offense-level increase for use of physical restraints; and (4) imposition of an unreasonable sentence. United States v. McCoy, 480 F. App'x 366, 369 (6th Cir. 2012). The Sixth Circuit affirmed Defendant's convictions and sentences. Id. at 374. Defendant then filed the current § 2255 Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. [DE 205.]
Consistent with local practice and 28 U.S.C. § 636(b)(1)(B), this matter was referred to United States Magistrate Judge Ingram for consideration. The magistrate judge filed a Report and Recommendation on June 30, 2014. [DE 228.] The Report and Recommendation sets forth the complete procedural history of this matter in detail, which this Court adopts but need not repeat to consider Defendant's objections. See [DE 228 at 2-7.]
Based on a review of the record and applicable case law, the magistrate judge recommended that Defendant's motion be denied. [DE 228 at 40-41.] Defendant filed objections to the Report and Recommendation dated August 26, 2014, disputing the findings in the magistrate judge's Report and Recommendation. [DE 233.] The United States did not file a response to the objections.
This Court exercises de novo review of the portions of the Report and Recommendation to which objections are made. See 28 U.S.C. § 636(b)(1)(C). However, this Court is not required to "review... a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings." Thomas v. Arn, 474 U.S. 140, 150 (1985).
The magistrate judge and Defendant both utilize an organizational numbering of Defendant's claims for relief. For ease of review, this Court will adopt the numeric organization laid out in the magistrate judge's Report and Recommendation [DE 228 at 7-10.], and followed by Defendant in his objections. [DE 233 at 1.] In his §2255 motion, Defendant asserted thirty-one claims for relief,1 which are addressed in the magistrate judge's report and recommendation. See [DE 228 at 7-10.]
In the report and recommendation, the magistrate judge further grouped the grounds for relief based on the type of claim asserted and considered the grounds by category rather than sequentially. This Court will also follow that approach.
A federal prisoner's failure to raise a claim on direct appeal results in a procedural default of that claim. Bousley v. United States, 523 U.S. 614, 621 (1998). "Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised on habeas only if the defendant can first demonstrate either cause and actual prejudice, or that he is actually innocent. Id. at 622. Ineffective assistance of counsel constitutes cause to overcome a procedural default. Ratliff v. United States, 999 F.2d 1023, 1026 (6th Cir. 1993); Braggs v. United States, 142 F.3d 432, at *2 (6th Cir. 1998) ().
Defendant did not raise any of his current claims on appeal. In his § 2255 motion, Defendant asserts that his appellate counsel was ineffective. Defendant relies on this alleged ineffectiveness as cause for overcoming procedural default. To establish ineffective assistance of counsel as cause to excuse a procedural default, Defendant must show that his appellate counsel's performance was deficient, and that the deficient performance was prejudicial. Ratliff, 999 F.2d at 1026. In order to prove that ineffective assistance of counsel was prejudicial, a defendant "must demonstrate that, but for counsel's poor performance, 'there is a reasonable probability' the result of his appeal would have been different." Shaneberger v. Jones, 615 F.3d 448, 452 (6th Cir. 2010) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).
In order for Defendant to avoid having his sufficiency claims procedurally defaulted, he must demonstrate that he received ineffective assistance from his appellate counsel related to those claims. The Court finds that Defendant has failed to show that he would have been prejudiced by any ineffective assistance of counsel. Accordingly, his sufficiency claims are procedurally defaulted.
Defendant claims six instances in which the government provided insufficient evidence to convict him, namely bases one, three, nine, eleven, sixteen and eighteen. Together, these six bases for relief represent an attempt by Defendant to have his sentence vacated for insufficiency of the evidence against him. In his twenty-second basis for relief, Defendant asserts that he did not raise these issues on appeal because of the ineffective assistance of his appellate counsel. [DE 205 at 6, 11.] Defendant's twenty-second basis for relief is his offering of cause for not raising these issues on appeal through which he seeks to avoid procedural default. Thus, to avoid procedural default on grounds one, three, nine, eleven, sixteen, and eighteen, Defendant must show that his lawyer's failure to raise these claims on appeal constituted ineffective assistance of counsel because each of these claims challenging the sufficiency of evidence had a reasonable probability of success on appeal.
Sufficient evidence supports a conviction if, after viewing the evidence in the light most favorable to the prosecution, the court can conclude that any rational trier of fact would have found the elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 324 (1979); Apanovich v. Houk, 466 F.3d 460 (6th Cir. 2006). Circumstantial evidence may support a conviction, McKenzie v. Smith, 326 F.3d 721, 727 (6th Cir. 2003), and such evidence need not remove every reasonable hypothesis except that of guilt. Walker v. Russell, 57 F.3d 472, 475 (6th Cir. 1995). "This is a very heavy burden" for the convicted defendant to meet. United States v. Kernell, 667 F.3d 746, 756 (6th Cir. 2012).
Defendant's first basis for relief is that Jury Instruction No. 11 charged the jury that they were required to find a conspiracy between only Mr. McQueen and Defendant, and that the Government failed to put forward any evidence that they conspired with each other. [DE 205 at 3.] The magistrate judge found that because this claim could not have been successful on appeal, Defendant was not prejudiced by his counsel's failure to raise the claim on appeal. [DE 228 at 14.]
In his objections, Defendant claims that the magistrate judge adopted an erroneous standard for judging sufficiency of the evidence. [DE 233 at 2.] Defendant argues that the magistrate judge erred by applying the standard from Jackson v. Virginia, 443 U.S. 307 (1979), which is stated above. Rather, Defendant argues that the magistrate judge should have applied the standard from United States v. Johnson, 652 F.3d 918 (8th Cir. 2010). Under the Johnson standard, a conviction may be affirmed against a sufficiency challenge if "the evidence is so overwhelming or incontrovertible that there is no reasonable doubt that any rational juror would have found that the government proved the statutory element." 652 F.3d 918 (2011) (citing United States v. Inman, 558 F.3d 742 (8th Cir. 2009). Defendant argues this standard should apply because Instruction No. 11 was "faulty ... regarding an essential element." [DE 233 at 2.]
The "overwhelming or incontrovertible" standard utilized in Johnson does not apply here. Under Johnson and the case on which that decision relied, United States v. Inman, 558 F.3d 742 (8th Cir. 2009), the heightened standard is applied only when "a statutory element of an offense is included in the indictment but erroneously omitted from instructions to the jury, and the evidence is insufficient to establish the unobjected-to element used instead ." Inman, 558 F.3d at 749. In both Johnson and Inman, a "jury instruction erroneously deviated from the elements as defined by statute and charged in the indictment." Inman, 558 F.3d at 747; see also Johnson, 652 F.3d 922-23. Specifically, the instructions were worded such that the jury was required to find that the component parts used to build computers, hard drives, and DVDs traveled in interstate commerce pre-assembly, rather than requiring the jury to find...
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