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United States District Court, E.D. LouisianaAug 3, 2000
CRIMINAL ACTION, 97-046 SECTION "T"(1) (E.D. La. Aug. 3, 2000)


August 3, 2000.

The Defendant, Kenneth Bevley, has filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. The Court having reviewed the Court record, trial transcript, sentencing transcript, motion of the Defendant, response by the Government, the Defendant's reply, law and applicable jurisprudence, is fully advised in the premises and ready to rule.



On July 3, 1997, a United States Grand Jury sitting in the Eastern District of Louisiana returned an indictment charging the Defendant with five individual counts. The Defendant was charged with conspiracy in Count One, robbery of a credit union services center in Count Two, the use and carrying of a firearm during the commission of a robbery in Count Three, robbery of a credit union in Count Four, and carrying of a firearm during the commission of the robbery of a credit union in Count Five. A jury convicted the Defendant of all five counts on July 10, 1997.

On October 17, 1997, the Defendant was sentenced to imprisonment for 60 months for count one, 84 months for Counts Two and Four, and 60 months for Counts Three and Five. The sentences for Counts One, Two, and Four were to be served concurrently, but consecutive to the concurrent sentences imposed in Counts Three and Five. The Court also ordered the Defendant to make restitution, and that he be placed under supervised release for five years after his term in prison. On August 17, 1998, the United States Court of Appeals for the Fifth Circuit affirmed his conviction. On January 11, 1999, the United States Supreme Court denied the Defendant's writ of certiorari. On December 14, 1999, the Defendant's sentence was amended to imprisonment for a term of 24 months for Counts One, Two, and Four, and for a term of 60 months for Counts Three and Five. The Defendant is to serve the term for Counts One, Two, and Four concurrently to each other. Counts Three and Five are to be served consecutive to each other and consecutive to the time imposed on Counts One, Two, and Four.

On January 5, 2000, the Defendant filed this Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255, alleging two different grounds: (1) the Defendant was denied the effective assistance of appellate counsel; and (2) the Defendant was denied his Sixth Amendment guarantees to effective counsel and a fair trial.


Ineffective appellate counsel

The Defendant, Kenneth Bevley, submits that the failure of his appellate counsel to be provided with jury instructions, and the subsequent absence of this portion of the trial transcripts from the record in violation of 28 U.S.C. § 753, denied him of effective counsel in violation of the Sixth Amendment and of due process in violation of the Fourteenth Amendment. To support this argument, the Defendant cites U.S. v. Selva, 559 F.2d 1303 (5th Cir. 1977) which states, "in cases where there is new counsel on appeal, the absence of any significant and substantial portion of the record, even absent any showing of specific prejudice or error, is sufficient to mandate reversal."

The government urges that this argument is limited to the absence of jury instructions from the record and that the argument has been made too late. Habeas relief under 28 U.S.C. § 2255 is reserved for constitutional violations and for a limited number of injuries that are prohibited from attack on direct appeal. Errors that, if condoned, would result in a complete miscarriage of justice. United States v. Capua, 656 F.2d 1033, 1037 (5th Cir. 1981). The failure to obtain jury instructions by the appellate counsel is an issue that should have been raised on direct appeal, and because it was not, is precluded from discussion at this time. United States v. Shaid, 937 F.2d 228, 231 (5th Cir. 1991) (en banc) cert. denied, 502 U.S. 1076 (1992) (citing United States v. Frady, 456 U.S. 152, 165 (1982)). Additionally, the Defendant would have to show "cause" and "unfair prejudice" resulting in a "complete miscarriage of justice." Frady, 456 U.S. at 170 (1982). Because he is unable to do so, the Defendant's first claim is barred from review, and only the constitutional issues are subject to scrutiny.

Sixth Amendment Violations

The Defendant argues that there were four instances where his Sixth Amendment rights were violated. Besides the ineffectiveness of appellate counsel mentioned above, trial counsel was ineffective because counsel failed to notify the court of various conflicts between the Defendant and himself. Also, the Defendant submits that the trial court's failure to provide a hearing on his Motion to Dismiss Counsel resulted in a denial of a fair trial. Holloway v. Arkansas, 435 U.S. 475 (1977). Finally, trial counsel failed to notify the court that the government interfered with the defense investigation.

In opposition to this, the government uses the affidavit from the Defendant's trial counsel, John H. Craft, to show that his representation prior to and at trial was effective; that there was a hearing conducted concerning the defendant's Motion to Dismiss Counsel and that the court denied this motion; that Mr. Craft assisted the Defendant's appellate counsel, Veronica A. Collins, with preparing the brief to the Fifth Circuit; and finally, that Mr. Craft himself prepared a writ of certiorari to the United States Supreme Court on behalf of the Defendant. At all times the Defendant was involved with the process.


Evidentiary Hearing

Based upon a review of the entire record, it is the opinion of this Court that the motion filed by the petitioner can be addressed without an evidentiary hearing. An evidentiary hearing is not required on a motion to set aside a judgment of conviction and sentence if it appears conclusively from the record that the petitioner is not entitled to relief. Randle v. Scott, 43 F.3d 221, 226 (5th Cir. 1995); United States v. Plewniak, 947 F.2d 1284, 1290 (5th Cir. 1991). The written submissions of the parties and the district court's existing record provide sufficient information to dispose of the instant motion without a hearing. Franklin v. United States, 589 F.2d 192, 193 (5th Cir. 1979).

Ineffective Assistance of Counsel

In Strickland v. Washington, the United States Supreme Court established a two-prong test for evaluating claims of ineffective assistance of counsel: a convicted defendant seeking relief must demonstrate that counsel's performance was deficient and that the deficient performance prejudiced the defense. If a court finds that petitioner has made an insufficient showing as to either one of the two prongs of inquiry, i.e., deficient performance or actual prejudice, it may dispose of the claim without addressing the other prong. Strickland, 466 U.S. at 697; 104 S.Ct. at 2069.

Under the deficient performance prong of the Strickland test, "it is necessary to judge... counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct."' Lockhart v. Fretwell, 506 U.S. 364, 371, 113 S.Ct. 838, 844, 122 L.Ed.2d 180 (1993)(citing Strickland, 466 U.S. at 690, 104 S.Ct. at 2066). "An attorney's performance, which enjoys a strong presumption of adequacy, is deficient if it is objectively unreasonable." U.S. v. Walker, 68 F.3d 931, 934 (5th Cir.), (quoting U.S. v. Acklen, 47 F.3d 739, 742 (5th Cir. 1995), cert. denied, 516 U.S. 1165, 1165. Ct. 1056, 134 L. Ed.2d201 (1996). The petitioner must prove that the conduct of trial counsel fell below the constitutional minimum guaranteed by the Sixth Amendment. U.S. v. Faubion, 19 F.3d 226, 228 (5th Cir. 1994) citing Strickland, 466 U.S. at 686, 104 S.Ct. at 2063. Analysis of counsel's performance must take into account the reasonableness of counsel's actions in light of all the circumstances. Strickland, 466 U.S. at 688-89, 104 S.Ct. at 2065. Petitioner "carries the burden of proof... and must overcome a strong presumption that the conduct of his trial counsel falls within a wide range of reasonable professional assistance."Crockett v. McCotter, 796 F.2d 787, 791 (5th Cir.) (citations omitted),cert. denied, 479 U.S. 1021, 107 S.Ct. 678, 93 L.Ed.2d 728 (1986);Hayes v. Maggio, 699 F.2d 198, 201-02 (5th Cir. 1983).

To prove prejudice under the Strickland standard, petitioner "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, 104 S.Ct. at 2068. TheStrickland court defined a reasonable probability as "a probability sufficient to undermine confidence in the outcome." id. In making a determination as to whether prejudice occurred, courts must review the record to determine the "relative role that the alleged trial errors played in the total context of (the] trial." Crockett, 796 F.2d at 793.

First, as to the issue concerning the ineffectiveness of appellate counsel as a result of the failure to raise the violation of the Court Reporters' Act, the Court finds this argument to be without merit. Appellate counsel was assisted by trial counsel in preparing the brief for direct appeal. Additionally, the Defendant fails to show that the absence of jury instructions from the record was either "significant" or "substantial" enough to cause the degree of prejudice that will overcome the presumption that counsel was effective. U.S. v. Selva, 559 F.2d at 1306. The Defendant in no way shows that the outcome would have changed or that representation was deficient.

The same is true for the contention that trial counsel did not act reasonably. The record shows that Mr. Craft provided reasonable legal assistance to the Defendant. The trial court agreed with this at the time it decided to deny the Defendant's Motion to Dismiss Counsel, and this is also supported by the government's affidavit provided by Mr. Craft. The Defendant has been afforded a fair trial in which the merits of the claims made against him, as well as his own claims, were considered and disposed. As a result, the Court finds that the Defendant, Kenneth Bevley, has failed to carry his burden of proof in overcoming the strong presumption that his trial and appellate counsel fell outside the wide range of reasonable professional assistance. Accordingly,

IT IS ORDERED that the Motion to Vacate, Set Aside, or Correct Sentence, pursuant to 28 U.S.C. § 2255, be and the same is herebyDENIED.