United States v. McIntyre
| Decision Date | 17 December 2012 |
| Docket Number | Case No. 06-20047-03-CM (Criminal),Case No. 11-2553-CM (Civil) |
| Parties | UNITED STATES OF AMERICA Plaintiff, v. TERRY J. MCINTYRE, JR. Defendant. |
| Court | U.S. District Court — District of Kansas |
Presently before the court is a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal custody (Doc. 535) filed pro se by defendant Terry J. McIntyre, Jr. A jury found defendant guilty on Counts 1, 4, 6, 12-15, 24, and 30 of the Third Superseding Indictment, charging defendant with violations of conspiracy to manufacture, possess and distribute crack cocaine within 1,000 feet of a public elementary school, and also possessing a firearm during a drug trafficking crime having been previously convicted of a felony offense. On June 16, 2009, this court sentenced defendant to a total term of imprisonment of 322 months. The Tenth Circuit affirmed defendant's conviction on June 29, 2010 and issued a mandate on July 21, 2010. Defendant did not file a writ of certiorari.
Under 28 U.S.C. § 2255, a defendant must file his § 2255 motion within one year from the date on which his judgment becomes final. The one-year time period starts "when the time expires for filing a petition for certiorari contesting the appellate court's affirmation of the conviction." Clay v.United States, 537 U.S. 522, 525 (2003). A defendant has ninety days after entry of a court of appeals's judgment to file a writ of certiorari. Sup. Ct. R. 13(1).
Defendant's deadline to file a writ of certiorari was September 27, 2010. As a result, defendant was required to file his § 2255 motion on or before September 27, 2011. The government contends that defendant did not file his § 2255 motion until October 3, 2011, when it was file-stamped by the clerk. The government claims that defendant's motion must be dismissed as time-barred.
Defendant argues that he filed his motion "on September 19, 2010 [sic], when placing in the hands of the institution's mailroom staff pursuant to the mailbox rule." (Doc. 552 at 2.) Although defendant says he filed his motion in 2010, the court believes this is a mistake, as defendant's motion states it was signed and filed on September 19, 2011. Defendant claims that the mailbox rule applies and thus his motion is not time-barred.
The court acknowledges that the mailbox rule applies to § 2255 motions. "The prison mailbox rule . . . holds that a pro se prisoner's [filing] will be considered timely if given to prison officials for mailing prior to the filing deadline, regardless of when the court itself receives the documents." Price v. Philpot, 420 F.3d 1158, 1163-64 (10th Cir. 2005) (citing Houston v. Lack, 487 U.S. 266, 276 (1988)); see also United States v. Gray, 182 F.3d 762, 765 n.4 (10th Cir. 1999) ().
An inmate can establish the date on which he or she gave the papers to be filed with the court to a prison official in two ways. First, if the prison has a legal mail system, then the prisoner must use it as the means of proving compliance with the mailbox rule. The second mechanism for establishing a filing date for purposes of the mailbox rule must be used if the inmate does not have access to a legal mail system-or if the existing legal mail system is inadequate to satisfy the mailbox rule. In either of these circumstances, the mandatory method by which a prisoner proves compliance with the mailbox rule is to submit a declaration in compliance with 28 U.S.C. § 1746 or notarized statement setting forth the [filing's] date of deposit with prison officials and attest that first-class postage was pre-paid.
Price, 420 F.3d at 1165 (internal citations and quotations omitted).
Here, defendant's form § 2255 motion contains a declaration in compliance with 28 U.S.C. § 1746, stating the date on which he gave his filing to prison officials to be mailed. (Doc. 535 at 13.) This declaration states that defendant placed his motion in the prison mailing system on September 19, 2011. Thus, this court applies a liberal application of the mailbox rule and finds that defendant has met the requirements necessary for the mailbox rule to apply. His § 2255 motion was timely filed. See Gray, 182 F.3d at 766 (); Marsh v. Soares, 223 F.3d 1217, 1218 n.1 (10th Cir. 2000) ().
A defendant is entitled to relief under 28 U.S.C. § 2255 "[i]f the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack . . . ." 28 U.S.C. § 2255. "The standard of review of Section 2255 petitions is quite stringent," and "[t]he court presumes that the proceedings . . . were correct." United States v. Illescas, No. 04-20120-JWL, 05-3411-JWL, 2006 WL 1517760, at *1 (D. Kan. May 26, 2006) (quoting United States v. Nelson, 177 F. Supp. 2d 1181, 1187 (D. Kan. 2001) (citations omitted)). "To prevail, [the] defendant must show a defect in the proceedings which resulted in a complete miscarriage of justice." Id. (quotation and quotation marks omitted).
Three of defendant's stated grounds for habeas relief include ineffective assistance of counsel claims. First, defendant claims that his counsel failed to object to witness testimony that was false and that defendant was deprived of a fair trial because his conviction was based on this false testimony.Second, defendant claims that counsel failed to contest the drug quantity attributed to him and that the quantity was based on false information. Finally, he argues that his counsel should have sought suppression of evidence seized during an unconstitutional search and seizure of both a friend's residence and of defendant's vehicle.
In analyzing a habeas petitioner's claim for ineffective assistance of counsel, the court applies the general standard set out by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). See Romano v. Gibson, 278 F.3d 1145, 1151 (10th Cir. 2002) (applying Strickland). Under Strickland, a petitioner must meet a two-prong test. First, he must demonstrate that his attorney's performance was deficient and "fell below an objective standard of reasonableness." Strickland, 466 U.S. at 687-88. The court gives considerable deference to an attorney's strategic decisions and strongly presumes that the attorney has provided adequate assistance and made all significant decisions using reasonable professional judgment. Id. at 690. Second, a habeas petitioner must show that he was prejudiced by trial counsel's deficient performance, which requires that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. Further, in deciding an ineffective assistance of counsel claim, the court is not required to address both prongs of the test if one prong is not met. Id. at 697.
Defendant's motion states that counsel "allowed witnesses to testify during the trial without objection, and the witnesses testified falsely causing him to be convicted." (Doc. 535 at 4.) Defendant also stated that counsel "made no investigation into the truth of the matters when doing so would have revealed the truth of the matters." (Id.) In its response, the government pointed out that defendant'sstatements were conclusory and that he failed to specifically identify which witnesses' testimony was at issue or what evidence defendant had to support his claim that the testimony was false.
Defendant's reply pointed to the testimony of two witnesses: Lolester Mitchell and Marcus Crawford. Defendant claimed that he "has evidence and facts" showing that Mitchell never knew defendant nor purchased drugs from him, and that Mitchell fabricated his testimony "after conversation and viewing pictures with [defendant] and his codefendant's [sic] when in Corrections Corporation of America (CCA) in Leavenworth, Kansas." (Doc. 552 at 4.) Defendant also claims he "has evidence and facts" that Crawford fabricated his testimony about drug sales and defendant's involvement in the conspiracy. (Id.)
Defendant's assertion that his attorney failed to object during Mitchell's testimony is unsupported by the record. For example, defense counsel objected on several occasions during Mitchell's testimony on the basis of hearsay. (Doc. 492 at 170-74.) Furthermore, defense counsel effectively cross-examined Mitchell by asking questions about Mitchell's cooperation with the government and the resulting sentence reduction Mitchell hoped to receive in exchange for his testimony against defendant. (Doc. 493 at 22-25.) Defense counsel also pointed out weaknesses in Mitchell's testimony. (Id. at 17-33.) While defense counsel did not object during Crawford's testimony, he did highlight weaknesses in Crawford's testimony, as well as Crawford's incentive to testify against defendant on cross-examination. (Doc. 487 at 115-20.)
Upon review of the record, the court finds that defendant's claim that his counsel failed to object to the testimony of these witnesses is unfounded. Furthermore, even if defense counsel erred in his trial tactics, strategy, or policy, those mistakes do not amount to ineffective assistance of counsel. United States v. Nolan, 571 F.2d 528, 534 (10th Cir. 1978). A defendant is entitled to relief only if the issues raised involve a "fundamental defect" causing a "complete miscarriage of justice." Garner v.United States, Nos....
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