Wilson v. United States, 1:10CV169 HEA
| Decision Date | 29 May 2012 |
| Docket Number | No. 1:10CV169 HEA,1:10CV169 HEA |
| Parties | DEVIN C. WILSON, Movant, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Eastern District of Missouri |
This matter is before the Court on Movant's Motion under 28 U.S.C. § 2255 by a Person in Federal Custody, [Doc. No. 1]. Pursuant to this Court's Order, the government has responded to the motion. For the reasons set forth below, the Motion under § 2255 is denied without a hearing.
Movant makes the following claims:
Ground One, Six, Seven: Prosecutorial Misconduct
6. Government withheld statements of police officers regarding the victim.
7. Selective prosecution. Movant claims that Officer Brown, in allowing Movant and two naked women to leave after being stopped by Brown, was made a party to various crimes.
4. Counsel failed to argue the terminology and application of that terminology found in the statutes giving rise to the charges against Movant.
6. Same grounds as prosecutorial misconduct as stated above.
10. Government established during the pretrial conference that the "knowingly transported" element of the case was yet to be proven; defense attorney stated in opening remarks that the "facts arising out of this case do not begin on August 21st when Devin Wilson drove Christina Walker back to Missouri."
Ground Eight: Insufficiency of the Evidence.
Movant was charged with felon in possession with a hand gun based on the victim's statement that she saw drugs and a gun in the closet; the apartment was not Movant's but rather, his brother's and therefore there was no evidence that he was in possession of a gun.
While searching Movant's vehicle, police discovered a cell phone which was not listed with particularity in the search warrant nor in the affidavit for the search warrant nor did the cell phone meet the requirements of the plain view doctrine as later claimed by the investigating officers and the government which later claimed that the cell phone was found in the residence, not Movant's vehicle. According to Movant, the cell phone was subject therefore to a warrantless search.
Movant was charged with transporting a minor across state lines for prostitution, two counts of producing child pornography, two counts of possession of child pornography, and one count of felon in possession of a firearm.
A jury trial was held, and on February 29, 2008, the jury convicted Movant of the four charges which remained from an Amended Indictment—transporting a minor across state lines for prostitution, two counts of producing child pornography and felon in possession of a firearm. The government had previously dismissed the possession of child pornography counts. Movant was sentenced to 440 months imprisonment in May, 2008.
Movant appealed his conviction, challenging the denial of his motion to suppress and the admission of the evidence therefrom, the denial of his request to present a mistake of age defense, the Court's ruling that the government did not have to prove that Movant knew the age of the victim, the validity of theindictment, and the sufficiency of the evidence that supported his conviction. Movant's conviction was affirmed on May 14, 2009. Movant's petition for writ of certiorari was denied on January 10, 2010.
Pursuant to 28 U.S.C. § 2255, a federal prisoner may seek relief from a sentence imposed against him on the ground that "the sentence was imposed in violation of the Constitution or law of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255. Claims brought under § 2255 may also be limited by procedural default. A Movant "cannot raise a nonconstitutional or nonjurisdictional issue in a § 2255 motion if the issue could have been raised on direct appeal but was not." Anderson v. United States, 25 F.3d 704, 706 (8th Cir. 1994) (citing Belford v. United States, 975 F.2d 310, 313 (7th Cir. 1992)). Furthermore, even constitutional or jurisdictional claims not raised on direct appeal cannot be raised collaterally in a § 2255 motion "unless a petitioner can demonstrate (1) cause for the default and actual prejudice or (2) actual innocence." United States v. Moss, 252 F.3d 993, 1001 (8th Cir. 2001) (citing Bousley v. United States, 523 U.S. 614, 622 (1998)). Claims based on a federal statute or rule, rather than on a specificconstitutional guarantee, "can be raised on collateral review only if the alleged error constituted a 'fundamental defect which inherently results in a complete miscarriage of justice.'" Reed v. Farley, 512 U.S. 339, 354 (1994)(quoting Hill v. United States, 368 U.S. 424, 477 n. 10 (1962)).
The Court must hold an evidentiary hearing to consider claims in a § 2255 motion "unless the motion, files and records of the case conclusively show that the prisoner is entitled to no relief." Shaw v. United States, 24 F.3d 1040, 1043 (8th Cir. 1994)(citing 28 U.S.C. § 2255). Thus, a "[movant] is entitled to an evidentiary hearing 'when the facts alleged, if true, would entitle [movant] to relief.'" Payne v. United States, 78 F.3d 343, 347 (8th Cir. 1996)(quoting Wade v. Armontrout, 798 F.2d 304, 306 (8th Cir. 1986)). The Court may dismiss a claim "without an evidentiary hearing if the claim is inadequate on its face or if the record affirmatively refutes the factual assertions upon which it is based." Shaw, 24 F.3d at 1043. Since the Court finds that Movant's claims can be conclusively determined based upon the parties' filings and the records of the case, no evidentiary hearing will be necessary.
It is well-established that a petitioner's ineffective assistance of counsel claim is properly raised under 28 U.S.C. § 2255 rather than on direct appeal.United States v. Davis, 452 F.3d 991, 994 (8th Cir.2006); United States v. Cordy, 560 F.3d 808, 817 (8th Cir. 2009). The burden of demonstrating ineffective assistance of counsel is on a defendant. United States v. Cronic, 466 U.S. 648, 658 (1984); United States v. White, 341 F.3d 673, 678 (8th Cir.2003). To prevail on an ineffective assistance of counsel claim, a convicted defendant must first show counsel's performance "fell below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 687-88 (1984). The defendant must also establish prejudice by showing "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id., at 694.
Under Strickland, a petitioner must show that his counsel's performance was both deficient and prejudicial to obtain relief. Id. at 687, 104 S.Ct. 2052. That is, "the movant must show that his lawyer's performance fell below the minimum standards of professional competence (deficient performance) and that there is a reasonable probability that the result of the proceedings would have been different if his lawyer had performed competently (prejudice)." Alaniz v. United States, 351 F.3d 365, 367-68 (8th Cir.2003) (citing Strickland, 466 U.S. at 690, 694, 104 S.Ct. 2052). "Our scrutiny of counsel's performance must be 'highly deferential.'" New v. United States, 652 F.3d 949, 952 (8th Cir.2011) (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052).
Hamberg v. U.S., 2012 WL 1058950, 2 (8th Cir 2012).
Both parts of the Strickland test must be met in order for an ineffectiveassistance of counsel claim to succeed. Anderson v. United States, 393 F.3d 749, 753 (8th Cir.), cert. denied, 546 U.S. 882 (2005). The first part of the test requires a "showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. Review of counsel's performance by the court is "highly deferential," and the Court presumes "counsel's conduct falls within the wide range of reasonable professional assistance." Id. The court does not "second-guess" trial strategy or rely on the benefit of hindsight, id., and the attorney's conduct must fall below an objective standard of reasonableness to be found ineffective, United States v. Ledezma-Rodriguez, 423 F.3d 830, 836 (2005). If the underlying claim (i.e., the alleged deficient performance) would have been rejected, counsel's performance is not deficient. Carter v. Hopkins, 92 F.3d 666, 671 (8th Cir. 1996). Courts seek to "eliminate the distorting effects of hindsight" by examining counsel's performance from counsel's perspective at the time of the alleged error. Id.
The second part of the Strickland test requires that the movant show that he was prejudiced by counsel's error, and "that 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' " Anderson, 393 F.3d at 753-54 (quoting Strickland, 466 U.S. at 694). "A reasonable probability is a probability sufficient...
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