Washburn v. United States

• Decision Date: 30 August 2016
• Docket Number: No. 15-CV-010-LRR,No. 11-CR-100-LRR,15-CV-010-LRR,11-CR-100-LRR
• Court: U.S. District Court — Northern District of Iowa
• Parties: DONALD K. WASHBURN, Movant, v. UNITED STATES OF AMERICA, Respondent.

DONALD K. WASHBURN, Movant, v. UNITED STATES OF AMERICA, Respondent.

No. 15-CV-010-LRR

No. 11-CR-100-LRR

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA CEDAR RAPIDS DIVISION

August 30, 2016

ORDER

TABLE OF CONTENTS

I. INTRODUCTION AND PROCEDURAL HISTORY ................ 2

II. EVIDENTIARY HEARING ................................ 2

III. ANALYSIS ........................................... 3

A. Applicable Law .................................... 5

B. Admission of Stipulated Facts .......................... 6

1. Performance ................................. 7

a. Evidentiary hearing and credibility .............. 9

b. Cognitive issues .......................... 14

c. Influence of alcohol and medication ............ 15

d. Failure to advise ......................... 17

2. Prejudice ................................... 19

C. Competency hearing ................................ 20

1. Performance ................................ 20

2. Prejudice ................................... 23

D. Conflict of Interest ................................. 24

1. Actual conflict ............................... 26

2. Adverse effect ............................... 28

IV. CERTIFICATE OF APPEALABILITY ......................... 30

V. CONCLUSION ......................................... 31

I. INTRODUCTION AND PROCEDURAL HISTORY

The matter before the court is Donald K. Washburn's ("the movant") motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 ("Motion") (civil docket no. 1). The movant filed the Motion on January 20, 2015. On March 13, 2015, the court directed the government to file a brief in response to the Motion and further directed the movant's trial counsel to file affidavits responding to the movant's claims of ineffective assistance of counsel. See March 13, 2015 Order (civil docket no. 5). On April 13, 2015, the movant's trial counsel—Adam Zenor and Robert Barr, Jr. (collectively, "trial counsel")—filed affidavits with the court. See Zenor Affidavit (civil docket no. 7); Barr Affidavit (civil docket no. 8). On May 13, 2015, the government filed its Resistance (civil docket no. 12). On June 26, 2015, the movant filed a Reply (civil docket no. 17). On August 24, 2016, the court held an evidentiary hearing on the Motion. See August 24, 2016 Minute Entry (docket no. 22). The Motion is fully submitted and ready for decision.

II. EVIDENTIARY HEARING

The district court must determine whether an evidentiary hearing is required on a motion brought under 28 U.S.C. § 2255. See 28 U.S.C. § 2255(b). "A petitioner is entitled to an evidentiary hearing on a [§] 2255 motion unless 'the motion and the files and the records of the case conclusively show that he is entitled to no relief.'" Holder v. United States, 721 F.3d 979, 993 (8th Cir. 2013) (alteration omitted) (quoting Anjulo-Lopez v. United States, 541 F.3d 814, 817 (8th Cir. 2008)). "A § 2255 motion 'may be dismissed without hearing if (1) movant's allegations, accepted as true, would not entitle him to relief, or (2) the allegations cannot be accepted as true because they are contradicted by the record, are inherently incredible, or are conclusions rather than statements of fact.'" Winters v. United States, 716 F.3d 1098, 1103 (8th Cir. 2013) (alteration omitted) (quoting Koskela v. United States, 235 F.3d 1148, 1149 (8th Cir. 2001)). In other words, "[n]o hearing is required . . . where the claim is inadequate on its face or if the recordaffirmatively refutes the factual assertions upon which it is based." Franco v. United States, 762 F.3d 761, 763 (8th Cir. 2014) (quoting Anjulo-Lopez, 541 F.3d at 817).

On August 24, 2016, the court held a limited evidentiary hearing, during which the court permitted the parties to introduce evidence only with respect to two issues raised in the Motion: (1) whether trial counsel improperly coerced or pressured the movant to sign a plea agreement that he later rescinded and (2) whether trial counsel incorrectly advised the movant that the stipulation of facts in the plea agreement could not be used against him if he rescinded the agreement and proceeded to trial. See July 20, 2016 Order (docket no. 19) (scheduling the evidentiary hearing and defining its scope). The court concludes that it can resolve the remainder of the movant's claims strictly from the record. See Rogers v. United States, 1 F.3d 697, 699 (8th Cir. 1993) (holding that "[a]ll of the information that the court needed to make its decision with regard to [the movant's] claims was included in the record" and, therefore, the court "was not required to hold an evidentiary hearing" (citing Rule Governing Section 2255 Proceedings 8(a); United States v. Raddatz, 447 U.S. 667, 674 (1980))). As such, the court finds no need for a further evidentiary hearing with respect to the remaining issues raised in the Motion.

III. ANALYSIS

In the Motion, the movant claims that he is entitled to § 2255 relief because (1) trial counsel provided ineffective assistance by failing to raise certain arguments when objecting to the admission at trial of stipulated facts from a rescinded plea agreement, (2) trial counsel provided ineffective assistance by failing to pursue a competency hearing, (3) trial counsel provided ineffective assistance by continuing to represent the movant after a conflict of interest arose, (4) his Miranda rights were violated during the 2010 execution of a search warrant and (5) his due process rights were violated by the government's purported misrepresentation of facts at the movant's trial. See Motion; see also Supplement to Question 12 (civil docket no. 1-1).

The movant did not raise the Miranda or due process issues on direct appeal. See Motion at 8; Supplement to Question 12 at 3. "A § 2255 petition is not a second direct appeal and issues raised for the first time in a § 2255 petition are procedurally defaulted." Meeks v. United States, 742 F.3d 841, 844 (8th Cir. 2014). Further, the movant has failed to brief the issues for purposes of the Motion. See generally Memorandum in Support of Motion (civil docket no. 1-2). Provided only with the movant's bare assertion of facts and conclusory statements of law, the court cannot properly address the movant's Miranda and due process claims. Therefore, the court shall consider the claims waived. Alternatively, the court finds that the claims are procedurally defaulted because neither cause and prejudice nor actual innocence is demonstrated. To the extent the Miranda and due process claims can be interpreted as claims of ineffective assistance of appellate counsel, see Motion at 8 (stating that "Appellate Counsel failed to raise this issue" when explaining the failure to raise the Miranda issue on direct appeal); Supplement to Question 12 at 3 (providing the same explanation for the due process issue), the movant's claims fail to rebut the presumption "that appellate counsel's failure to raise a claim was an exercise of sound appellate strategy" or otherwise demonstrate ineffective assistance. See Charboneau v. United States, 702 F.3d 1132, 1136-37 (8th Cir. 2013) (quoting United States v. Brown, 528 F.3d 1030, 1033 (8th Cir. 2008), cert. denied, 555 U.S. 937); see also Jones v. Barnes, 463 U.S. 745, 751 (1983) (identifying that there is no "constitutional right to compel appointed counsel to press nonfrivolous points requested by the client, if counsel, as a matter of professional judgment, decides not to present those points"). Accordingly, the court shall deny the Motion to the extent it seeks § 2255 relief on the grounds of any purported Miranda or due process violations.

The court shall proceed to discuss the movant's claims of ineffective assistance of trial counsel.

A. Applicable Law

"The Sixth Amendment to the United States Constitution guarantees the right to effective assistance of counsel in criminal prosecutions." Basham v. United States, 811 F.3d 1026, 1028 (8th Cir. 2015) (citing U.S. Const. amend. VI; Powell v. Alabama, 287 U.S. 45 (1932); Johnson v. Zerbst, 304 U.S. 458 (1938); Gideon v. Wainwright, 372 U.S. 335 (1963)). To succeed on a claim of ineffective assistance of counsel in violation of the Sixth Amendment, the movant must satisfy the two-prong test articulated in Strickland v. Washington, 466 U.S. 668 (1984). See Weaver v. United States, 793 F.3d 857, 860 (8th Cir. 2015). Under Strickland, the movant "must show: (1) that his lawyer's representation fell below an objective standard of reasonableness; and (2) that the lawyer's deficient performance prejudiced the defendant." Basham, 811 F.3d at 1028; see also Strickland, 466 U.S. at 687 ("First, the defendant must show that counsel's performance was deficient. . . . Second, the defendant must show that the deficient performance prejudiced the defendant.").

"To demonstrate deficient performance, a [movant] 'must show that counsel's representation fell below an objective standard of reasonableness.'" Kelly v. United States, 819 F.3d 1044, 1047 (8th Cir. 2016) (quoting Strickland, 466 U.S. at 688). "[T]he proper standard for attorney performance is that of reasonably effective assistance." Strickland, 466 U.S. at 687. The court's assessment of counsel's performance must take into account all of the relevant circumstances "viewed as of the time of counsel's conduct." Id. at 690. "The [movant] bears the burden to overcome the strong presumption that counsel's performance was reasonable." Thomas v. United States, 737 F.3d 1202, 1207 (8th Cir. 2013). To demonstrate prejudice, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. "Failure to establisheither Strickland prong is fatal to an ineffective-assistance claim." Ramirez v. United States, 751 F.3d 604, 607 (8th Cir. 2014) (quoting Worthington v. Roper, 631 F.3d...