Opinion
Nos. 97-40036-02-SAC, 01-3256-SAC
November 6, 2002.
MEMORANDUM AND ORDER
The case comes before the court on the defendant Victor Shane Kiister's motion pursuant to 28 U.S.C. § 2255 challenging his conviction and judgment. (Dk. 240). After nearly four days of evidence and over three hours of deliberations, the jury found the defendant guilty of conspiracy to possess with the intent to distribute one kilogram or more of a mixture containing a detectable amount of methamphetamine in violation of 21 U.S.C. § 846, guilty of possession with the intent to distribute 100 grams or more of a mixture containing a detectable amount of methamphetamine in violation of 21 U.S.C. § 841(a)(1), and not guilty of felony possession of a firearm in violation of 18 U.S.C. § 922(g) and 924(a)(2). The court sentenced the defendant to 151 months imprisonment.
The defendant appealed to the Tenth Circuit arguing (1) the district court erred in denying his motion to suppress evidence seized during the execution of a search warrant which had been obtained allegedly with stale information; (2) the evidence at trial was insufficient to sustain his conspiracy conviction; and (3) the district court erred in admitting evidence of his prior bad acts. United States v. Kiister, 208 F.3d 227, 2000 WL 228304 (10th Cir. Feb. 29, 2000) (Table), cert. denied, 530 U.S. 1282 (2000). The Tenth Circuit found no errors and found sufficient evidence for affirming the convictions. The United States Supreme Court denied the defendant's petition for certiorari.
In his § 2255 motion, the defendant attacks his conviction on the following grounds: (1) prosecutorial misconduct in not investigating the confidential informant, introducing evidence pursuant to Fed.R.Evid. 404(b), introducing evidence that misled the jury about the defendant's wealth, withholding favorable evidence from the defendant, and using perjured testimony; (2) selective prosecution in choosing to prosecute the defendant but not the confidential informant, John Autem; (3) double jeopardy in pursuing this criminal prosecution and conviction after agents of the Kansas Department of Revenue had already seized his property for satisfaction of drug tax violations; (4) violation of 18 U.S.C. § 201(c) in offering leniency to witnesses in exchange for their testimony; (5) entrapment in allowing John Autem to manipulate the situation; (6) Apprendi violation in sentencing the defendant based on actual methamphetamine when the indictment did not allege actual methamphetamine and a double jeopardy violation in using the defendant's prior convictions in determining his criminal history category; and (7) ineffective assistance of counsel in (a) not filing a pretrial motion challenging the sufficiency of the indictment; (b) failing to subpoena and call John Autem as a witness; (c) not objecting to the prosecutor's misconduct; (d) failing to obtain federal records showing the gun belonged to John Autem; (e) not requesting a lesser-included offense jury instruction; (f) not requesting a jury instruction on sentencing enhancement; and (g) failing to raise on appeal the issues of sentencing entrapment and prosecutorial misconduct and failing "to correct the record of the untrue evidence" introduced at trial. The government responds opposing the factual and legal basis for each argued contention.
GENERAL § 2255 STANDARDS
"Section 2255 motions are not available to test the legality of matters which should have been raised on direct appeal." United States v. Warner, 23 F.3d 287, 291 (10th Cir. 1994) (citation omitted). When a petitioner "fails to raise an issue on direct appeal, he is barred from raising the issue in a § 2255 proceeding, unless he establishes either cause excusing the procedural default and prejudice resulting from the error, or a fundamental miscarriage of justice if the claim is not considered." United States v. Cox, 83 F.3d 336, 341 (10th Cir. 1996); see also United States v. Frady, 456 U.S. 152, 167-68 (1982). "A defendant may establish cause for his procedural default by showing that he received ineffective assistance of counsel in violation of the Sixth Amendment." United States v. Cook, 45 F.3d 388, 392 (10th Cir. 1995) (citation omitted). Put another way, "[a]n attorney's error provides cause to excuse a procedural default only if the error amounts to constitutionally ineffective assistance of counsel." Rogers v. United States, 91 F.3d 1388, 1391 (10th Cir. 1996) (citations omitted), cert. denied, 519 U.S. 1134 (1997). A colorable claim of factual innocence may be sufficient to establish a fundamental miscarriage of justice. Moreover, a claim that an indictment "fails to show jurisdiction in the court or to charge an offense . . . shall be noticed by the court at any time during the pendency of the proceedings." Fed.R.Crim.P. 12(b)(2). Such a claim may be raised for the first time in a § 2255 proceeding. Marteney v. United States, 216 F.2d 760, 762 (10th Cir. 1954); see also United States v. Welch, 849 F. Supp. 5, 7 (D.Me. 1994).
To establish a claim for ineffective assistance of counsel, a defendant must show (1) that his counsel's performance fell below the constitutional minimum guaranteed by the Sixth Amendment, that is, "an objective standard of reasonableness," and (2) that his counsel's errors prejudiced him, that is, "were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland v. Washington, 466 U.S. 668, 687, 690 (1984). Prejudice is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. The Supreme Court recognizes that:
There is a strong presumption that counsel's performance falls within the wide range of professional assistance, (citation omitted); the defendant bears the burden of proving that counsel's representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy. (citation omitted). The reasonableness of counsel's performance is to be evaluated from counsel's perspective at the time of the alleged error and in light of all the circumstances, and the standard of review is highly deferential. (citation omitted).
Kimmelman v. Morrison, 477 U.S. 365, 381 (1986). A court can jump to the prejudice prong without first determining whether counsel's performance was deficient:
[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.Strickland, 466 U.S. at 697.
"Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief," the district court must conduct an evidentiary hearing. 28 U.S.C. § 2255; see United States v. Lopez, 100 F.3d 113, 119 (10th Cir. 1996) (quotations omitted). When disputed material facts are put in issue by affidavits, an evidentiary hearing is necessary to resolve them. See Machibroda v. United States, 368 U.S. 487, 494-95 (1962) (hearing necessary to resolve factual disputes which "related primarily to purported occurrences outside the courtroom and upon which the record could, therefore, cast no real light"); Moore v. United States, 950 F.2d 656, 661 (10th Cir. 1991) (hearing necessary when "factual disputes and inconsistencies beyond the record exist"). The files and records in this case fully address the issues raised in the defendant's motion and conclusively show that he is not entitled to the relief he seeks. The court denies the defendant's request for an evidentiary hearing.
PROSECUTORIAL MISCONDUCT
On this issue, the defendant alleges the government did not investigate the confidential informant, introduced evidence of prior bad acts pursuant to Fed.R.Evid. 404(b), introduced evidence of defendant's prior wealth that was misleading to the jury, withheld evidence of the confidential informant's mental stability that was favorable to the defendant, and used perjured testimony. The government responds that the admissibility of Rule 404(b) evidence was decided on direct appeal and denies that it committed the other alleged acts of misconduct. The defendant could have raised this issue on direct appeal but failed to do so. The defendant has not shown cause excusing his procedural default nor made any claim that a fundamental miscarriage of justice will occur if his claim is not addressed. Nonetheless, the court will briefly address the merits of this issue.
Courts use a two-step process in analyzing allegations of prosecutorial misconduct. "First, we determine if the conduct was improper. Second, we determine if any improper conduct warrants reversal." United States v. Gordon, 173 F.3d 761, 769 (10th Cir.), cert. denied, 528 U.S. 886 (1999). The Tenth Circuit has already found no abuse of discretion in the admission of the Rule 404(b) evidence. A claim raised and rejected on direct appeal cannot be relitigated in a § 2255 motion. United States v. Warner, 23 F.3d at 291; United States v. Prichard, 875 F.2d 789, 791 (10th Cir. 1989) (absent intervening change in law of circuit, issues disposed of on direct appeal generally will not be considered in a § 2255 collateral attack). Thus, the government did not engage in misconduct in introducing this evidence. After reviewing the record we find no evidence of prosecutorial misconduct. The defendant provides nothing to substantiate his conclusory allegations that the government failed to investigate its confidential informant, failed to provide evidence about the informant that was favorable to the defendant, and sponsored perjury. The record shows this was a "full-discovery case" which gave the defendant access to almost all information found in the government's files. The court finds no error in the introduction and admission of the defendant's apparent wealth which the defendant took the stand and rebutted. The defendant's arguments of prosecutorial misconduct are without any apparent merit.
SELECTIVE PROSECUTION
The defendant argues a violation of his rights to equal protection and due process by the government's selective prosecution of drug charges against him but not the confidential informant, John Autem. The court does not consider the merits of this issue, because the defendant did not raise it before trial, see Fed.R.Crim.P. 12(b)(1), and because he has not shown cause for failing to do so, see United States v. Bryant, 5 F.3d 474, 476 (10th Cir. 1993); United States v. Lewis, 113 F.3d 1247, 1997 WL 235608, at *1 (10th Cir. May, 8, 1997) (Table). Even if the merits were considered, there is no factual or legal basis for granting any relief on this argument. Indeed, the federal government subsequently prosecuted John Autem for other drug offenses.
DOUBLE JEOPARDY
The defendant contends the government placed him in jeopardy twice when he was prosecuted in federal court on these drug charges after the State of Kansas had seized his property for satisfaction of drug tax violations. The Tenth Circuit has rejected this very argument that there is a double jeopardy violation when a defendant is federally prosecuted on drug charges and the Kansas Department of Revenue imposes drug taxes and penalties for not having drug tax stamps:
It is axiomatic that prosecution or punishment by separate sovereigns of a defendant for the same conduct does not violate the Fifth Amendment's Double Jeopardy Clause. [ United States v.] Raymer, 941 F.2d [1031] at 1037 [(10th Cir. 1991)]. The Kansas state government and the federal government are separate sovereigns. See United States v. Padilla, 589 F.2d 481, 484 (10th Cir. 1978). Therefore, both sovereigns' prosecution or punishment of Mr. Thompson for his narcotics activities did not violate his right to be free from double jeopardy. Raymer, 941 F.2d at 1037; Padilla, 589 F.2d at 484-85.
United States v. Thompson, 120 F.3d 271, 1997 WL 423116, at *4 (10th Cir. Jul. 29, 1997), cert. denied, 522 U.S. 962 (1997). There are no facts here to support any sham prosecution exception to this dual sovereignty rule. See United States v. Trammell, 133 F.3d 1343, 1349 (10th Cir. 1998). Finally, the Tenth Circuit has held "that the Kansas drug tax is not criminal punishment for double jeopardy purposes." Simpson v. Bouker, 249 F.3d 1204, 1213 (10th Cir. 2001). This issue is devoid of merit.
VIOLATION OF 18 U.S.C. § 201(c)
The defendant acknowledges that the Tenth Circuit's decision in favor of his argument, United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998), was vacated subsequently by the en banc decision in United States v. Singleton, 165 F.3d 1297 (10th Cir.), cert. denied, 527 U.S. 1024 (1999). The defendant seeks only to preserve his argument for possible review by the Supreme Court. The court summarily rejects this argument.
ENTRAPMENT
The defendant argues the government permitted John Autem to manipulate the investigation and entrap him. Specifically, the defendant alleges Autem put the gun in the defendant's house and recorded only some of the telephone conversations. The court does not understand how these allegations support any argument of reversible error based on entrapment. The defendant was acquitted of the firearm count, and the selective recording of telephone conversations may be evidence supporting an argument of entrapment, but it does not establish entrapment as a matter of law. The defendant was permitted to assert this defense at trial, to introduce evidence in support of it, and to have the jury instructed on it. The defendant did not challenge on direct appeal the jury's verdict on this defense of entrapment. The evidence at trial was more than sufficient to sustain a verdict that the defendant was willing to commit the drug offense prior to being contacted by John Autem. The court finds no merit to this contention.
APPRENDI
The defendant argues an Apprendi violation in that the indictment failed to charge him with specific amounts of methamphetamine and then only methamphetamine mixtures but his offense level for sentencing was determined on different amounts and on the basis of actual methamphetamine. In short, the defendant argues that the ruling in Apprendi v. New Jersey, 530 U.S. 466 (2000), should be applied retroactively to his case. The Tenth Circuit has held that Apprendi "is not a watershed decision [under Teague v. Lane, 489 U.S. 288 (1989)] and hence is not retroactively applicable to initial habeas corpus petitions." See United States v. Mora, 293 F.3d 1213, 1219 (10th Cir.), cert. denied, 71 U.S.L.W. 3265 (U.S. Oct. 15, 2002) (No. 02-6125). Therefore, any arguable claim the defendant may have under Apprendi is foreclosed by circuit precedent.
Under the heading of this issue, the defendant also contends the calculation of his criminal history category and its use in sentencing him violate double jeopardy. The statutes and sentencing guidelines do not violate double jeopardy in providing for enhanced punishment for a new crime, even though this enhancement is premised on the defendant's criminal history. See Witte v. United States, 515 U.S. 389, 400 (1995); United States v. Hawley, 93 F.3d 682, 688 (10th Cir. 1996). This argument is devoid of merit.
INEFFECTIVE ASSISTANCE OF COUNSEL
As summarized earlier, the § 2255 claimant must show trial counsel's performance was deficient and such deficiency was prejudicial. Strickland v. Washington, 466 U.S. at 687. There is a strong presumption that counsel provided effective assistance. See id. at 689. The defendant here simply lists eight alleged deficiencies and makes no attempt at showing how the performance was deficient or prejudicial to him. The court will address only briefly each alleged deficiency, for the allegations either are not supported by the record or are plainly insufficient in showing prejudice.
The defendant first alleges his counsel failed to file a pretrial motion challenging the sufficiency of the indictment. An indictment is deemed constitutionally sufficient if it (1) contains the essential elements of the offense intended to be charged, (2) sufficiently apprises the accused of what he must be prepared to defend against, and (3) enables the accused to plead an acquittal or conviction under the indictment as a bar to any subsequent prosecution for the same offense. Russell v. United States, 369 U.S. 749, 763-64 (1962); United States v. Walker, 947 F.2d 1439, 1441 (10th Cir. 1991). The indictment on its face appears to meet these requirements. The defendant does not identify any problems with the indictment and does not argue the same. The court can find nothing deficient in counsel's decision not to challenge the sufficiency of the indictment.
The defendant next alleges his counsel was deficient in failing to subpoena and call John Autem as a witness. Generally, whether to call a particular witness is "a tactical decision and, thus, a matter of discretion for trial counsel." United States v. Snyder, 787 F.2d 1429, 1432 (10th Cir.), cert. denied, 479 U.S. 836 (1986); United States v. Watkins, 2001 WL 1165467, at *4 (D.Kan. 2001) ("The decision whether to call particular witnesses is the type of strategic choice that falls within the range of reasonableness set forth in Strickland.") (citing Jackson v. Shanks, 143 F.3d 1313, 1320 (10th Cir.), cert. denied, 525 U.S. 950 (1998)), aff'd, 188 F.3d 520 (10th Cir.), cert. denied, 528 U.S. 1034 (1999). The defense counsel's tactical choice not to call Autem is reasonable in light of the audiotape and videotape recordings showing Autem's involvement with the defendant, the government's decision not to call Autem, and the defendant's decision to testify on matters about which Autem was likely to contradict as an informant for the government. The defendant argues no particular prejudice from the failure to call Autem as a witness.
The defendant argues his counsel was ineffective in not objecting to the prosecutor's misconduct. Having already found that the records in this case contain no evidence of prosecutorial misconduct, the court necessarily concludes that the defense counsel's failure to object was not a deficient performance.
The defendant next challenges that his counsel should have obtained federal records showing the gun found in the defendant's home actually belonged to John Autem. The defendant testified that the gun belonged to Autem and the gun records, at best, would have been cumulative of this evidence. More importantly, the jury acquitted the defendant of the firearm count. Consequently, the defendant cannot prove any prejudice.
The defendant believes his counsel was ineffective in not requesting a lesser-included offense jury instruction. The courts use a four-part test to determine whether a lesser included offense instruction should have been given, looking at whether: "(1) there was a proper request; (2) the lesser included offense includes some but not all of the elements of the offense charged; (3) the elements differentiating the two offenses are in dispute; and (4) a jury could rationally convict the defendant of the lesser offense and acquit him of the greater offense." United States v. McGuire, 200 F.3d 668, 673 (10th Cir. 1999) (quotation omitted). The trial record establishes that the defendant is unable to make this required showing. Even accepting his allegations regarding counsel's alleged errors as true, the defendant cannot meet the fourth prong of showing that a rational jury could have found him guilty only of possession of methamphetamine and not the intent to distribute. The one pound of methamphetamine found on the defendant is such substantial evidence of an intent to distribute that a jury could not rationally have convicted him of the lesser offense of mere possession for personal use.
The defendant next contends his counsel failed to request a jury instruction on sentencing entrapment and then failed to raise the sentencing entrapment issue on direct appeal. The Tenth Circuit "does not recognize sentencing entrapment as an independent defense." United States v. Ashley, 41 Fed. Appx. 240, 243 2002 WL 734764, at *2 (10th Cir. Apr. 26, 2002). Claims of sentencing entrapment are analyzed under the outrageous government conduct standard. See United States v. Lacey, 86 F.3d 956, 964 (10th Cir.), cert. denied, 519 U.S. 944 (1996). Outrageous conduct is "an extraordinary defense reserved for only the most egregious circumstances." United States v. Mosley, 965 F.2d 906, 910 (10th Cir. 1992). The relevant inquiry is whether, under the totality of the circumstances, the government's conduct is so shocking, outrageous and intolerable that it offends "the universal sense of justice." Mosley, 965 F.2d at 910 (quoting United States v. Russell, 411 U.S. 423, 432 (1973)). There is no evidence of record to support any such conclusion. The defendant went to Autem's residence, was given the opportunity to decline taking the methamphetamine, and then carried it outside of the building where he was arrested. Thus, the defense counsel was not deficient in omitting this issue at sentencing or on direct appeal, nor can the defendant show prejudice from counsel's failure to make this argument.
Finally, the defendant makes a blanket argument that counsel was deficient on appeal in not raising the issue of prosecutorial misconduct and in not correcting "the record of untrue evidence" introduced at trial. The court has already rejected the defendant's allegations of prosecutorial misconduct. The defendant does not identify what evidence he believes is untrue. Indeed, his counsel on direct appeal did challenge the sufficiency of the evidence in support of the conspiracy conviction. Finding no merit to these contentions, the court concludes that the defendant was not denied the effective assistance of counsel on his direct appeal.
IT IS THEREFORE ORDERED that the defendant's motion pursuant to 28 U.S.C. § 2255 challenging his conviction and judgment (Dk. 240) is denied.