Opinion
EP-04-CA-194-DB, EP-01-CR-418-DB.
June 9, 2005
MEMORANDUM OPINION ORDER
Before the Court is Petitioner Winston White's ("White") Motion to Vacate pursuant to 28 U.S.C. § 2255, filed through counsel on May 21, 2004. Respondent (hereinafter, "the Government") filed a Response on June 23, 2004. White's Reply followed on July 2, 2004. For the reasons discussed below, the Court concludes that White's claims are either procedurally barred or lacking in merit. The Court will therefore dismiss White's Motion to Vacate with prejudice and will additionally deny him a Certificate of Appealability.
I. BACKGROUND PROCEDURAL HISTORY A. Criminal cause no. EP-01-CR-418-DB
On August 8, 2001, the Grand Jury sitting in El Paso, Texas returned a two-count Superseding Indictment against White and fifteen co-defendants, charging them with Conspiracy to Possess with Intent to Distribute 1,000 kilograms or more of marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(vii), and 846 (Count One); and Conspiracy to Launder Monetary Instruments, in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i), 1956(a)(1)(B)(i), and 1956(a)(1)(B)(h) (Count Two). White chose to stand trial. On October 29, 2001, after a four-day trial, a jury returned guilty verdicts on both Counts of the Superseding Indictment.
The Court entered Judgment on February 4, 2002, sentencing White to a 168-month term of imprisonment and a 5-year term of non-reporting supervised release. The Court additionally ordered White to pay a $100 special assessment.
White timely appealed, attacking the use of a deliberate-ignorance instruction; certain comments made by the prosecutor; the Court's refusal to allow attorney Stephen L. Drummond ("Drummond"), White's friend, to enter a last-minute appearance as co-counsel; and the performance of his appointed counsel, Kenneth Del Valle ("Del Valle"). The Fifth Circuit Court of Appeals affirmed his conviction and sentence on December 10, 2002. The Supreme Court denied White's petition for a writ of certiorari on May 27, 2003.
The Court of Appeals determined that the record was not sufficiently developed for it to evaluate White's ineffective-assistance claim and therefore dismissed this aspect of his direct appeal without prejudice.
B. White's Motion to Vacate pursuant to 28 U.S.C. § 2255
White raises two claims in his Motion to Vacate. First, he contends that Del Valle rendered ineffective assistance because he failed to properly prepare or investigate the facts (Claim One). Second, White argues, as he did on direct appeal, that the Court denied him the right to be represented by counsel of his choice ( i.e., Drummond), in violation of the Sixth Amendment (Claim Two).
II. MOTIONS TO VACATE PURSUANT TO 28 U.S.C. § 2255
After a defendant has been convicted and exhausted or waived any right to appeal, a court is normally "entitled to presume that [he] stands fairly and finally convicted." Accordingly, "relief under 28 U.S.C. §§ 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice." A criminal defendant seeking relief from his conviction or sentence in a Motion to Vacate pursuant to 28 U.S.C. § 2255 must therefore establish one of the following: (1) his sentence was imposed in violation of the Constitution or laws of the United States; (2) the sentencing court lacked jurisdiction to impose the sentence; (3) the sentence imposed exceeded the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack.
United States v. Willis, 273 F.3d 592, 595 (5th Cir. 2001) (citing United States v. Frady, 456 U.S. 152, 164, 102 S. Ct. 1584, 1592 (1982); United States v. Shaid, 937 F.2d 228, 231-31 (5th Cir. 1991)).
United States v. Gaudet, 81 F.3d 585, 589 (5th Cir. 1996) (internal quotations and citations omitted).
See United States v. Seyfert, 67 F.3d 544, 546 (5th Cir. 1995) (citations omitted).
Moreover, "when raising issues of jurisdictional or constitutional magnitude for the first time on collateral review, a defendant ordinarily must show both cause for his procedural default and actual prejudice resulting from the error." This cause-and-actual-prejudice standard is "significantly more rigorous than even the plain error standard applied on direct appeal." The procedural bar does not apply, however, to claims which could not have been raised on direct appeal, such as those alleging ineffective assistance of counsel.
Gaudet, 81 F.3d at 589.
Id.
III. PRIOR ADJUDICATION OF CLAIM TWO
The Government directs the Court to the appellate brief White filed in his direct appeal, in which he argued exactly the same issue as he now raises as Claim Two, and to the Court of Appeals' rejection of the claim. The Government contends that White is therefore precluded from raising the claim now. White asserts that he is not barred because the Court of Appeals did not have the benefit of Drummond's affidavit, which is attached to White's Motion to Vacate.
After due consideration, the Court finds that White's argument is unpersuasive. It is well settled that, absent countervailing equitable considerations, a district court will refuse to adjudicate claims that were previously raised and rejected on direct review. Here, White has failed to identify any countervailing equitable considerations that would warrant a readjudication of his claim by this Court. Drummond's affidavit, while no doubt sincere, has no relevance to the merits of the question of law previously raised in and rejected by the Court of Appeals. In his affidavit, Drummond does no more than complain of the Court's treatment of him and express a conclusory opinion that the Court should have allowed him to appear on White's behalf. The Court accordingly finds that Claim Two is procedurally barred and will therefore dismiss it with prejudice.
See Withrow v. Williams, 507 U.S. 680 (1993).
IV. WHITE'S INEFFECTIVE ASSISTANCE CLAIM FAILS ON THE MERITS
For the reasons discussed below, the Court finds that White has failed to carry his burden under the applicable test for ineffective assistance of counsel.
A. Legal Standard — Ineffective Assistance of Counsel
An ineffective assistance of counsel claim has two components. First, the petitioner must show that counsel performed deficiently. To establish deficient performance, a petitioner must demonstrate that counsel's representation "fell below an objective standard of reasonableness." The Supreme Court has "declined to articulate specific guidelines for appropriate attorney conduct and instead ha[s] emphasized that `the proper measure of attorney performance remains simply reasonableness under prevailing professional norms.'"
Wiggins v. Smith, 539 U.S. 510, 521 (2003); Strickland v. Washington, 466 U.S. 668, 687 (1984).
Wiggins, 539 U.S. at 521.
Id.
Id.
To establish that counsel's representation fell below an objective standard of reasonableness, a petitioner must overcome a strong presumption that his trial counsel's conduct fell within a wide range of reasonable professional assistance. Reviewing courts are extremely deferential in scrutinizing counsel's performance, making every effort to eliminate the distorting effects of hindsight. It is strongly presumed that counsel rendered adequate assistance and exercised reasonable professional judgment in making all significant decisions. An attorney's strategic choices, usually based on information supplied by the defendant and from a thorough investigation of relevant facts and law, are virtually unchallengeable. Counsel is neither required to advance every non-frivolous argument, nor to investigate every conceivable matter, nor to assert patently frivolous arguments. Defense counsel is similarly not required to exercise clairvoyance during the course of a criminal trial.
See Darden v. Wainwright, 477 U.S. 168, 184 (1986); Strickland, 466 U.S. at 687-91; Lackey v. Johnson, 116 F.3d 149, 152 (5th Cir. 1997); Belyeu v. Scott, 67 F.3d 535, 538 (5th Cir. 1995).
See, e.g., Lockhart v. Fretwell, 506 U.S. 364, 372 (1993); Burger v. Kemp, 483 U.S. 776, 789 (1987); Strickland, 466 U.S. at 689; Green v. Johnson, 116 F.3d 1115, 1122 (5th Cir. 1997).
See Strickland, 466 U.S. at 690; Drew v. Collins, 964 F.2d 411, 422 (5th Cir. 1992); Duff-Smith v. Collins, 973 F.2d 1175, 1182 (5th Cir. 1992).
See Boyle v. Johnson, 93 F.3d 180, 187-88 (5th Cir. 1996) (holding that an attorney's decision not to pursue a mental health defense or to present mitigating evidence concerning the defendant's possible mental illness was reasonable where counsel was concerned that such testimony would not be viewed as mitigating by the jury and that the prosecution might respond to such testimony by putting on its own psychiatric testimony regarding the defendant's violent tendencies); West v. Johnson, 92 F.3d 1385, 1406-09 (5th Cir. 1996) (holding that a trial counsel's failure to conduct further investigation into the defendant's head injury and psychological problems was reasonable where interviews with the defendant and the defendant's family failed to produce any helpful information); cf. Wiggins, 539 U.S. at 524 (holding that, in a capital case, counsel's decision not to expand its mitigation-defense investigation beyond presentence investigation report and Department of Social Services records, despite suggestions that additional, significant mitigating evidence existed, was itself unreasonable and fell below professional standards).
See Sones v. Hargett, 61 F.3d 410, 415 n. 5 (5th Cir. 1995) (stating that counsel cannot be deficient for failing to press a frivolous point); United States v. Gibson, 55 F.3d 173, 179 (5th Cir. 1995) (stating that the Sixth Amendment does not require counsel to file meritless motions); Smith v. Collins, 977 F.2d 951, 960 (5th Cir. 1992) (noting that the defense of a criminal case is not an undertaking in which everything not prohibited is required, nor does it contemplate the employment of wholly unlimited time and resources).
See Sharp v. Johnson, 107 F.3d 282, 290 n. 28 (5th Cir. 1997) (citing Garland v. Maggio, 717 F.2d 199, 207 (5th Cir. 1983) (holding that clairvoyance is not a required attribute of effective representation)).
Even if counsel's performance falls below an objective standard of reasonableness, "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Accordingly, "any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution."
Strickland, 466 U.S. at 691-92.
Id. at 692.
Because a convicted defendant must satisfy both prongs of the Strickland test, his failure to establish either deficient performance or prejudice under that test makes it unnecessary to examine the other prong. Therefore, a convicted defendant's failure to establish that his counsel's performance fell below an objective standard of reasonableness avoids the need to consider the issue of prejudice. Similarly, it is also unnecessary to consider whether counsel's performance was deficient where there is an insufficient showing of prejudice. Moreover, mere conclusory allegations in support of claims of ineffective assistance of counsel are insufficient, as a matter of law, to raise a constitutional issue.
Strickland, 466 U.S. at 700; Green, 116 F.3d at 1122; see also Burnett v. Collins, 982 F.2d at 928 (holding that the defendant bears the burden of proof on both prongs of the Strickland test).
Hoskins, 910 F.2d at 311; Thomas, 812 F.2d at 229-30.
See Black, 962 F.2d at 401; Pierce, 959 F.2d at 1302.
See Kinnamon v. Scott, 40 F.3d 731, 735 (5th Cir. 1994) (holding that a petitioner's speculative complaints of ineffective assistance by appellate counsel did not warrant federal habeas relief).
With these principles in mind, the Court turns to the merits of White's claim for relief.
B. Discussion
The following summarizes White's specific complaints regarding Del Valle's representation. First, White asserts that Del Valle was unprepared for trial and spent only one hour, total, discussing the case with him.
Second, White contends that Del Valle did not seek to undermine testimony that his client bought a Rolex watch for $15,000. The Government used this evidence to show that White lived expensively, funding his lifestyle with proceeds of the drug-trafficking conspiracy. White argues that a telephone call to the retailer from whom White purchased the watch would have revealed that the retailer offers only used Rolexes and that none of his inventory would sell for more than $5,000. Further, White contends that his watch in particular would retail for no more than $2,000.
Third, White argues that, although Del Valle attempted to show that White's various expensive automobiles were financed rather than purchased outright by putting certain loan documents into evidence, the Court did not allow him to do so because Del Valle had failed to timely submit them as exhibits with a business records affidavit.
Fourth, White asserts that Del Valle needed the testimony of Drug Enforcement Agency ("DEA") agent in order to impeach certain of the Government's witnesses with prior inconsistent statements. Del Valle, however, was unaware of and accordingly did not follow the correct procedure for subpoenaing a federal agent. White contends that Del Valle's failure in this regard was ruinous to his case.
Lastly, White argues that Del Valle failed to object to the Government's introduction of inadmissible hearsay.
The Court finds that White has failed to carry his burden under Strickland regarding any aspect of his over-arching ineffective-assistance claim. Inasmuch as White complains that Del Valle met with him for only one hour, he offers solely this conclusory allegation in his brief, unsupported by an affidavit. White cannot escape his burden of demonstrating deficient performance and prejudice by merely stating his conclusion. Moreover, the brevity of counsel's consultations with his client, in and of itself, cannot support a claim of ineffective assistance.
United States v. Holmes, No. 03-41738, ___ F.3d ___, ___, 2005 WL 768942, *15, 2005 U.S. App. LEXIS 5606, *53-4 (5th Cir. Apr. 6, 2005) (explaining that a petitioner who accuses his counsel of ineffectiveness cannot escape his burden of demonstrating both cause and prejudice by merely stating his conclusion); see Green v. Johnson, 160 F.3d 1029, 1042 (5th Cir. 1998) (stating that mere conclusory allegations in support of a claim of ineffective assistance of counsel are insufficient to raise a constitutional issue).
See Schwander v. Blackburn, 750 F.2d 494, 499-500 (5th Cir. 1985); Murray v. Maggio, 736 F.2d 279, 282 (5th Cir. 1984); Jones v. Wainwright, 604 F.2d 414, 416 (5th Cir. 1979).
To the extent White asserts that Del Valle performed deficiently in not investigating the maximum retail cost of used Rolex watches sold by the proprietor from whom White bought his Rolex, the Court finds his argument unavailing. White does not contend that he told Del Valle that the watch he purchased actually cost less that $15,000, nor does he contend that he told Del Valle that witness and co-defendant Antionette Barrett was lying when she testified that White told her the watch cost $15,000. The Court concludes that White has not shown, as it his burden to do, that Del Valle made anything other than an a reasoned strategic decision as to issues warranting further investigation, based on the information provided by his client.
Furthermore, the Court finds that whether White's Rolex watch actually cost $15,000 or $2,000 (hardly a paltry sum) is scarcely relevant and therefore not prejudicial within the meaning of Strickland. If, as White contends, the Government's strategy was to emphasize the quantity of expensive jewelry purchased and sported by White and to question how he could afford it (as well as his various luxury automobiles) on his transit policeman's salary, it hardly needed to rely on testimony that his Rolex watch cost $15,000. The jury heard more than sufficient testimony regarding White's other costly jewelry and automobiles. Given the strength of the Government's overall case against him, the Court finds that White has failed to show that Del Valle's purported deficiencies in this regard are such to undermine confidence in the jury's verdict.
Insofar as White contends that Del Valle performed deficiently in failing to introduce loan documents demonstrating that he purchased his various automobiles on credit, the Court notes that White's claim must fail because he has failed to show prejudice. The record shows that White was able to use the loan documents to refresh his recollection and to subsequently testify regarding the details of his automotive purchases and accompanying trade-ins.
Insofar as White argues that Del Valle performed deficiently in failing to properly subpoena a DEA agent, the Court finds that he has again failed to carry his burden. "Complaints of uncalled witnesses are not favored, because the presentation of testimonial evidence is a matter of trial strategy and because allegations of what a witness would have testified are largely speculative. Where the only evidence of a missing witness' testimony is from the defendant, [courts view] claims of ineffective assistance with great caution."
Schwander, 750 F.2d at 500 (internal citations and quotations omitted).
Here, White in a conclusory fashion states only that Del Valle needed the agent's testimony to impeach certain Government witnesses with their prior inconsistent statements. White does not identify the witnesses whose testimony would have been impeached, however, or explain how, specifically, the agent's testimony would have done so. White moreover altogether fails to come forward with an affidavit from the agent stating that he would have been available and willing to testify and what his testimony would have been, or to show that the agent's proposed testimony would have been admissible.
To the extent White alleges that Del Valle rendered ineffective assistance because he failed to object to hearsay testimony, the Court finds his argument is without merit. Under Federal Rule of Evidence 801(d)(2)(E), a statement is not hearsay if it is offered against a party and made by the party's co-conspirator during the course and in furtherance of the conspiracy. The proponent of such testimony must show by a preponderance of the evidence that the conspiracy existed; the statement was made in the course of and in furtherance of the conspiracy; and the co-conspirator and the defendant are members of the conspiracy. White has failed to show that the Government did not meet these requirements and thus that there was any basis for a hearsay objection by Del Valle. V. CERTIFICATE OF APPEALABILITY
FED. R. EVID. 801(d)(2)(E); see United States v. Narviz-Guerra, 148 F.3d 530, 536 (5th Cir. 1998).
See Narviz-Guerra, 148 F.3d at 536; Bourjaily v. United States, 483 U.S. 171, 175 (1987).
See Sones v. Hargett, 61 F.3d at 415 n. 5 (stating that counsel cannot be deficient for failing to press a frivolous point); United States v. Gibson, 55 F.3d at 179 (stating that the Sixth Amendment does not require counsel to make meritless objections).
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") converted the "certificate of probable cause" ("CPC") required to appeal from the denial of a petition for federal habeas corpus relief, including the denial of § 2255 Motions to Vacate, into a Certificate of Appealability ("CoA"). To appeal the denial of a habeas corpus petition filed under 28 U.S.C. § 2255, the petitioner must obtain a CoA. Appellate review of a habeas petition is moreover limited to the issues on which a CoA is granted. In other words, a CoA is granted or denied on an issue-by-issue basis, thereby limiting appellate review to solely those issues on which CoA is granted.
See Hill v. Johnson, 114 F.3d 78, 80 (5th Cir. 1997) (recognizing that the "substantial showing" requirement for a CoA under the AEDPA is merely a change in nomenclature from the certificate of probable cause standard); Muniz v. Johnson, 114 F.3d 43, 45 (5th Cir. 1997) (holding that the standard for obtaining a CoA is the same as for a CPC); see also Robison v. Johnson, 151 F.3d 256, 259 n. 2 (5th Cir. 1998), cert. denied, 526 U.S. 1100 (1999) (stating that the CoA requirement supersedes the previous requirement for a certificate of probable cause to appeal for federal habeas corpus petitions filed after the effective date of the AEDPA); Hallmark v. Johnson, 118 F.3d 1073, 1076 (5th Cir. 1997), cert. denied sub nom. Monroe v. Johnson, 523 U.S. 1041 (1998) (same).
See Miller-El v. Johnson, 537 U.S. 322, 335-6 (2003); 28 U.S.C.A. § 2253(c)(2) (West Supp. 2003).
See Crutcher v. Cockrell, 301 F.3d 656, 658 n. 10 (5th Cir. 2002), (holding that a CoA is granted on an issue-by-issue basis, thereby limiting appellate review to those issues); Jones v. Cain, 227 F.3d 228, 230 n. 2 (5th Cir. 2000) (holding the same); Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997) (holding that the scope of appellate review of denial of habeas petition is limited to issue on which CoA granted).
See Crutcher v. Cockrell, 301 F.3d at 658 n. 10; Lackey v. Johnson, 116 F.3d at 151; Hill v. Johnson, 114 F.3d at 80; Muniz v. Johnson, 114 F.3d at 45; Murphy v. Johnson, 110 F.3d 10, 11 n. 1 (5th Cir. 1997); 28 U.S.C.A. § 2253(c)(3) (West Supp. 2003).
A CoA to appeal the denial of a habeas corpus petition shall be granted only upon "a substantial showing of the denial of a constitutional right." The showing necessary to obtain a CoA on a particular claim depends upon the manner in which the District Court has disposed of a claim. If this Court rejects a prisoner's constitutional claim on the merits, he must then demonstrate that reasonable jurists could find the Court's assessment of the constitutional claim to be debatable or wrong. If the petitioner wishes to challenge this Court's dismissal of a claim for a reason not of constitutional dimension, such as procedural default, limitations, or lack of exhaustion, he must show that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and whether this Court was correct in its procedural ruling. This Court is authorized to address the propriety of granting a CoA sua sponte.
28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
Miller-El v. Johnson, 537 U.S. at 338.
Slack v. McDaniel, 529 U.S. at 484 (holding that when a district court denies a habeas claim on procedural grounds, without reaching the underlying constitutional claim, a CoA may issue only when the petitioner shows that reasonable jurists would find it debatable whether: (1) the claim is a valid assertion of the denial of a constitutional right; and (2) the district court's procedural ruling was correct).
Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000).
After considering the entire record and the parties' pleadings, the Court concludes that jurists of reason would not debate whether White has stated a valid claim for relief or whether a procedural ruling in this case is correct. Accordingly, the Court declines to issue a Certificate of Appealability regarding either of his claims for relief.
IV. CONCLUSION ORDER
In sum, the Court concludes that Petitioner Winston White's Motion to Vacate, Set Aside, or Correct Sentence filed pursuant to 28 U.S.C. § 2255 should be denied and this matter dismissed with prejudice. The Court further finds that Petitioner is not entitled to a Certificate of Appealability. Accordingly,
1. Petitioner Winston White's Motion to Vacate, Set Aside, or Correct Sentence, filed on May 21, 2004, pursuant to 28 U.S.C. § 2255, is DENIED and this matter is DISMISSED WITH PREJUDICE.
2. Petitioner is DENIED a CERTIFICATE OF APPEALABILITY.
3. All pending motions, if any, are DENIED AS MOOT.
SO ORDERED.