Opinion
Case No. 3:03-po-002, Also 3:09-cv-017.
February 2, 2009
DECISION AND ORDER
This case is before the Court on Defendant's renewed Motion to Vacate Judgment under 28 U.S.C. § 2255 (Doc. No. 83). A prior § 2255 Motion (Doc. No. 77) was dismissed without prejudice because of the pendency of an appeal to the Sixth Circuit (Doc. No. 79).
Defendant captions the attachment to his § 2255 Motion as a Petition for Writ of Habeas Corpus and asserts this Court has jurisdiction under both § 2255 and 2241. Because § 2255 provides an adequate remedy, Defendant cannot proceed under § 2241. Hertz Liebman, Federal Habeas Corpus Practice and Procedure 5th at § 41.2a.
Under Rule 4 of the Rules Governing § 2255 Proceedings, the Motion has been forwarded to the judge who conducted the trial and imposed sentence and is before the Court for initial consideration under Rule 4(b).
Defendant pleads the following grounds for relief:
Ground One: Ineffective assistance of counsel.
Supporting Facts: Counsel failed to subpoena critical telephone records and recordings and repeatedly filed motions after the fact.
Ground Two: Brady violation.
Supporting Facts: United States failed to provide exculpatory telephone recordings.
(Motion, Doc. No. 83, at 5-6.) Defendant asserts he raised both of these claims on direct appeal.
The Information in this case, charging two counts of telephone harassment, was filed October 1, 2003 (Doc. No. 1). Because of difficulty in obtaining Defendant's appearance and various pre-trial motions, the case was not tried until August 30, 2004 (Minutes, Doc. No. 32). Various post-trial motions extended sentencing to January 5, 2005 (Doc. No. 49). On January 13, 2005, Defendant appealed to the District Court and the case was assigned to District Judge Rice (Doc. No. 50). Judge Rice affirmed the judgment on October 12, 2007 (Doc. Nos. 67, 68). Defendant then appealed to the Sixth Circuit which also affirmed the judgment on January 15, 2009 (Doc. No. 80),
On appeal to Judge Rice, Defendant raised two claims through counsel, to wit, that the judgment was not supported by sufficient evidence and that it was against the manifest weight of the evidence. (Brief, Doc. No. 58, at 3.) In a supplemental pro se brief, Defendant claimed 1) that the indictment (sic) was not supported by probable cause; 2) that the prosecution was selective and vindictive; 3) that the prosecution was barred as a result of the destruction of evidence; 4) that Judge Merz should have recused himself; 5) that hearsay evidence was improperly admitted and 6) that he was denied effective assistance of counsel at trial. (Doc. Nos. 59, 66). Judge Rice rejected all eight of these claims on the merits in affirming the conviction (Doc. No. 67).
On appeal to the Sixth Circuit, Defendant raised six claims Brady v. Maryland 373 U.S. 83
1. That the conviction was supported by insufficient evidence. 2. That the conviction was against the manifest weight of the evidence. 3. That Appellant was denied a fair trial due to the ineffective assistance of counsel. 4. That Appellant was denied a fair trial due to the failure of the prosecution to provide exculpatory evidence as required by , (1963). 5. That Appellant was denied a fair trial due to the use of inadmissible hearsay evidence. 6. That the Magistrate Judge erred in not recusing himself due to bias. (Appellant's Brief, attached to Doc. No. 86.) The Sixth Circuit affirmed summarily in a one sentence decision (Doc. No. 80).Ground One: Ineffective Assistance of Trial Counsel
Defendant asserts his trial counsel, Charles Slicer, III, was ineffective in the following ways: Id. Id. Id. Id. Id.
Mr. Somerset makes no ineffective assistance of trial counsel claims against his first trial attorney, Assistant Federal Public Defender Cheryll Bennett. Ms. Bennett represented Mr. Somerset from the time of his arrest on May 10, 2004, until Mr. Slicer replaced her in July, 2004.
The Court will, however, reach the merits of the remaining three ineffective assistance of trial counsel claims which were not presented to the Court of Appeals. The governing standard for effective assistance of counsel is found in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984):
A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.466 U.S. at 687.
With respect to the first prong of the Strickland test, the Supreme Court has commanded:
Judicial scrutiny of counsel's performance must be highly deferential. . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."466 U.S. at 689.
As to the second prong, the Supreme Court held:
The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to overcome confidence in the outcome.466 U.S. at 694. See also Darden v. Wainwright, 477 U.S. 168, 106 S. Ct 2464, 91 L. Ed. 2d 144 (1986); Wong v. Money, 142 F.3d 313, 319 (6th Cir. 1998); Blackburn v. Foltz, 828 F.2d 1177 (6th Cir. 1987). See generally Annotation, 26 ALR Fed 218.
Claims Two and Three are that the trial attorney failed to subpoena telephone records of the complaining witness' own telephone or telephones and records of those telephones to which she had access at work. Defendant offers no proof of what these records would have shown or even any suggestion about what he believes they would have shown. Defendant does not suggest how far back in time the phone records should have been subpoenaed or even any proof that such records existed for a substantial period of time before trial.
Is the Defendant suggesting the complaining witness called him, thereby eliciting the two telephone calls in question? That possibility was considered both at trial and on appeal by Judge Rice. Defendant did not testify at trial that he was calling her back in response to a call she had made and in any event the time of the calls (made in the early morning hours) effectively rebuts that suggestion.
In sum, Defendant asks the Court to speculate that at the time of trial the relevant telephone service providers (unidentified) would have had records (unspecified as to content) which would somehow have been material to the case. The Court has not been offered any evidence or asked to take judicial notice of any material regarding the records retention policies of any of the telephone service providers who may have been involved in providing the relevant services.
A trial attorney is not ineffective because he or she fails to subpoena some record which may or may not exist just because a defendant asks him or her to issue such a subpoena. There is absolutely no proof of what evidence any such subpoena would have gathered. Therefore Claims Two and Three are without merit.
In Claim Five, Defendant asserts his trial attorney was ineffective for failing to move for the recusal of the Magistrate Judge. The same standard of review under Strickland applies to this claim as to Claims Two and Three and it also is without merit. As noted above, a defendant who claims ineffective assistance of trial counsel must show that the outcome of the proceeding would likely have been different if the trial attorney had acted as it is now suggested he should have. But Defendant has failed to make any such showing. Defendant filed a pro se Motion to recuse as soon as he was arrested and that claim was promptly decided on the merits. His claims about recusal were preserved for appeal to both Judge Rice and the Sixth Circuit and were rejected by both of those courts. He does not now suggest any additional argument Mr. Slicer could have made or any time when he could have made it which would have changed that result.
Ground Two: Failure to Provide Exculpatory Evidence
In Ground Two Defendant argues that the conviction should be set aside because the United States, in violation of its obligations under Brady v. Maryland, 373 U.S. 83 (1963), failed to produce exculpatory evidence, to wit, the voice recording left on the complaining witness' telephone (Motion, Doc. No. 83, at 21-22).
The Court dealt with this claim in its Decision on the Merits (Doc. No. 34), holding:
Defendant's Motion to Dismiss is premised on Arizona v. Youngblood, 488 U.S. 51 (1988), where the Court held that bad faith destruction of exonerating evidence violates a defendant's due process rights. Defendant asserts that the Government destroyed the original voicemail messages. Specifically, he alleges "An investigating officer [Sergeant Frisk] allegedly heard the voicemail pursuant to an investigation in this matter; however, he failed to preserve the message and/or intentionally destroyed the message by deleting it out of the voicemail message box." (Doc. No. 31 at 2). There is simply no evidence to support this contention. Sergeant Frisk testified he attempted to make a copy of the voicemail messages but did not have the recording equipment necessary to perform that task. He expressly denied that he had deleted the messages and in fact there was no evidence that they had been deleted, except for the inference from the fact that they were not introduced in evidence. No testimony was presented about the workings of the WPAFB voicemail system and whether an intentional deletion is required to remove a message or whether the system automatically purges itself after a period of time. The Court simply does not know.
There is also no persuasive evidence that the content of those messages would have been in any way exculpatory. While Sergeant Frisk remembers a call back number of 845-9005, for reasons explained below the Court has concluded that is a misrecollection. It is therefore likely that the original messages would have been inculpatory rather than exculpatory, eliminating any motive on the part of the Government to erase them. Indeed, Sergeant Frisk testified he attempted to make a copy.
(Decision on the Merits, Doc. No. 34, at 1-2.) Judge Rice also dealt with this claim on appeal and rejected it. (Opinion, Doc. No. 67, at 9.) The claim was raised again on direct appeal to the Sixth Circuit as a claim under Brady v. Maryland, supra, and summarily rejected by that court. Defendant has presented no new evidence which persuades this Court that it should reconsider its prior decision on this point.