Williams v. United States, No. C13-4025-MWB

CourtUnited States District Courts. 8th Circuit. Northern District of Iowa
Writing for the CourtMARK W. BENNETT U.S. DISTRICT COURT JUDGE NORTHERN DISTRICT OF IOWA
PartiesALLEN R. WILLIAMS, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
Decision Date13 August 2014
Docket NumberCR10-4083-MWB,No. C13-4025-MWB

ALLEN R. WILLIAMS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

No. C13-4025-MWB
CR10-4083-MWB

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA WESTERN DIVISION

August 13, 2014


MEMORANDUM OPINION AND ORDER REGARDING PETITIONER'S § 2255 MOTION

TABLE OF CONTENTS

I. INTRODUCTION. ............. 2

A. Criminal Proceedings ............. 2

B. The Petitioner's § 2255 Motion ............. 4

II. LEGAL ANALYSIS ............. 6

A. Motion To Amend ............. 6

B. Standards For § 2255 Motion ............. 9

C. Procedural Matter ............. 11

D. Ineffective Assistance Of Counsel ............. 12

1. Applicable standards ............. 12
a. Strickland's "deficient performance" prong ............. 14
b. Strickland's "prejudice"prong ............. 16
2. Failure to object to motion to amend the superseding indictment ............. 17
3. Failure to request an informant instruction ............. 18
4. Failure to object to Williams's absence during the jury's replaying of recordings ............. 19
5. Failure to object to the presence of the court's "IT" person to go to the jury room without Williams being present ............. 22
6. Failure to object to the court allowing "unplayed" video and audio tapes to go to the jury room ............. 23

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E. Certificate of Appealability ............. 23

III. CONCLUSION ............. 24

I. INTRODUCTION

This case is before me on petitioner Allen R. Williams's Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody. Williams claims that his trial counsel provided him with ineffective assistance in a number of ways. The respondent denies that Williams is entitled to relief on his claims.

A. Criminal Proceedings

On August 19, 2010, an indictment was returned against Williams, and six codefendants, charging him with conspiracy to distribute 28 grams or more of crack cocaine, having previously been convicted of two felony drug offenses, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846 (Count 1), distributing crack cocaine, having previously been convicted of two felony drug offenses, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 851 (Counts 2, 7, and 8), and distributing and aiding and abetting another in the distribution of crack cocaine, having previously been convicted of two felony drug offenses, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), 851, and 18 U.S.C. § 2 (Count 3).

On December 14, 2010, a superseding indictment was returned against Williams, and five codefendants, charging him with conspiracy to distribute 50 grams or more of

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crack cocaine, having previously been convicted of two felony drug offenses, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846 (Count 1), distributing crack cocaine, having previously been convicted of two felony drug offenses, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 851 (Counts 2, 7, and 8), and distributing and aiding and abetting another in the distribution of crack cocaine, having previously been convicted of two felony drug offenses, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), 851, and 18 U.S.C. § 2 (Count 3).1 On January 28, 2011, the prosecution moved to amend the superseding indictment to cure clerical errors in the conspiracy charge in Count 1. The prosecution's motion was unresisted by Williams and the three codefendants remaining in the case. That same day, the prosecution's motion was granted and Count 1 was amended to change the time frame of the alleged conspiracy to read "from about January 2010, and continuing through about August 2010," to change the quantity of drugs alleged to read "28 grams or more," and to change the related code section to read "21 U.S.C. § 841(b)(1)(B)."

Trial in this case commenced on February 9, 2011, with Williams being tried with codefendant Robert McNairy. On February 9, 2011, after all of the evidence had been submitted to the jury for deliberation, the jury sent a note to me at the end of the day requesting to replay recordings of admitted evidence the following day. I telephoned the attorneys regarding the note and had a preliminary discussion with them on their positions. The prosecution and McNairy's counsel agreed to permit the jury to replay the recordings while Williams's counsel objected to the replaying of recordings. No decision was made at that time. Instead, I scheduled a hearing on the issue for the

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following morning. At that hearing, on the morning of February 10, 2011, both Williams and his counsel were present. Williams's counsel objected to the jury being allowed to replay the audio and video recordings while the prosecution was in favor of permitting it. I ordered that a laptop computer be provided to the jury to allow the jurors to replay the recordings during their deliberations.

On February 10, 2011, the jury returned a verdict finding Williams guilty of the charged offenses. On May 20, 2011, Williams's counsel filed a motion for downward variance. The prosecution, in turn, filed a motion for upward departure on the ground that Williams's criminal history category substantially under represented the seriousness of Williams's criminal history. Williams appeared before me on May 27, 2011, for sentencing. I found that Williams qualified as a career offender based on his two prior felony drug trafficking convictions and that his total offense level was 37 with a criminal history category of VI for an advisory United States Sentencing Guideline range of 360 months to life. I denied both the prosecution's motion for upward departure and Williams's motion for downward variance. I sentenced Williams to 360 months imprisonment on each count with the sentences to run concurrent, and 8 years of supervised release on Count 1 and six years on the other counts, all to run concurrent. Williams appealed his conviction. On appeal, Williams contended there was insufficient evidence to sustain the jury's verdict. On March 5, 2012, the Eighth Circuit Court of Appeals denied Williams's appeal. See United States v. Williams, 456 Fed. App'x (8th Cir. 2012).

B. The Petitioner's § 2255 Motion

On March 1, 2013, Williams filed a pro se Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody. In his motion, Williams contends that his counsel provided him with ineffective assistance in failing:

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(1) to object to the prosecution's motion to amend the superseding indictment; (2) to request an informant instruction; (3) to object to his absence during the replaying of audio and video evidence by the jury; (4) to object to my allowing the court's "IT" personnel to go into the jury room without Williams being present; (5) for allowing video and audio tapes to go into the jury room; (6) to seek to strike surplusage language from the superseding indictment; (7) to object to a jury instruction that constructively amended the superseding indictment; (8) to object to co-conspirator hearsay testimony; (9) to object to portions of my statement of the case concerning Counts 5 and 6; (10) to have laboratory receipts removed from the laboratory results prior to that evidence being given to the jury; (11) to argue claims on appeal; (12) to advise Williams of his rights to speedy trial; and (13) to address the crack/powder cocaine difference.

After respondent filed its answer, I set a briefing schedule and counsel was appointed to represent Williams on his § 2255 motion. In his brief, Williams addresses the merits of only his third and fourth claims. Williams, however, also requests I review and rule on his first, second, and fifth claims. Williams does not address his other eight claims nor does he request that I review them. I consider these eight additional claims of ineffective assistance of counsel waived. Respondent resists each of the grounds that Williams still seeks relief on. Williams, in turn, filed a timely reply brief.

On February 21, 2014, after the case was fully submitted, Williams moved pro se to amend his § 2255 motion in order to raise two additional claims of ineffective assistance of counsel: (1) counsel's failure to object to the case agent sitting at the prosecution table during trial, and (2) counsel's failure to file motions to dismiss the...

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