Opinion
Civil No. 01-53 (ADM), Criminal No. 97-278(1) (ADM/FLN).
June 7, 2001
Lawrence H. Crosby, Esq., Crosby Associates, St. Paul, Minnesota, on behalf of Petitioner Marvin L. Pullman.
Henry J. Shea, Esq., Assistant United States Attorney, Minneapolis, Minnesota, on behalf of Respondent United States of America.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This matter is before the undersigned United States District Court Judge on Petitioner Marvin L. Pullman's ("Pullman") Motion [Doc. No. 321] to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 for violation of his Sixth Amendment right to effective assistance of counsel. Pullman also claims that he was deprived of a jury determination of sentencing enhancement factors, thus violating the United States Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). Respondent United States objects to Pullman's Motion, contending that Pullman's counsel was not ineffective under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), and Pullman's sentence did not violate Apprendi [Doc. No. 331].
II. BACKGROUND
On March 26, 1998, Pullman was found guilty on three counts of an indictment: (1) conspiring to defraud the United States in violation of 18 U.S.C. § 371 [Count I]; (2) aiding abetting another in possessing counterfeit securities in violation of 18 U.S.C. § 2, 513(a) [Count VI]; and (3) aiding abetting the obstruction of the Internal Revenue Service in violation of 26 U.S.C. § 7212; 18 U.S.C. § 2 [Count VIII]. Pullman was sentenced to a term of imprisonment of 60 months on Count I, 70 months on Count VI, and 36 months Count VIII. The sentences were ordered to run concurrently, except that 10 months of the sentence imposed on Count VIII were ordered to run consecutively to Count I, resulting in two total concurrent terms of 70 months. Pullman appealed his conviction and sentence. The Eighth Circuit affirmed. See United States v. Pullman, 187 F.3d 816 (8th Cir. 1999).
III. DISCUSSION
A prisoner may bring a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct a sentence if the sentence was imposed in violation of the United States Constitution or federal statutory laws. A petitioner must show that the error, if left uncorrected, would result in a complete miscarriage of justice or in a "conviction of one innocent of the crime." See McCleskey v. Zant, 499 U.S. 467, 494 (1991). A petitioner may also bring a § 2255 motion to correct errors, such as ineffective assistance of counsel, that could have been raised at trial or on direct appeal only if the petitioner shows cause for the default and resulting prejudice. Id.
A. Sixth Amendment right to effective assistance of counsel
To prevail on an ineffective assistance of counsel claim, a petitioner must show (1) that his counsel's representation fell below an objective standard of reasonableness (performance prong); and (2) that any ineffectiveness prejudiced him, depriving him of a fair trial, leaving the results of the trial unreliable (prejudice prong). See Garrett v. United States, 78 F.3d 1296, 1301 (8th Cir. 1996) (citing Strickland, 466 U.S. at 687). "The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding." Strickland, 466 U.S. at 692-93. Even if Pullman shows that particular errors of counsel were unreasonable, therefore, he must show that such defects actually had an adverse effect on his defense. Id. Claiming that the errors had "some conceivable effect on the outcome of the proceeding" is insufficient. Id.
The proper measure of attorney performance is "simply reasonableness under prevailing professional norms." Strickland, 466 U.S. at 688. To demonstrate that counsel's performance was deficient, Pullman must prove that counsel's errors were so serious that "counsel was not functioning as `counsel' guaranteed by the constitution." Id. at 687. Judicial review of counsel's performance must be highly deferential. Id. at 689. There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id.
Pullman chose to retain as his counsel Bruce Olander, who appeared as counsel of record as early as September 24, 1997, some 6 months before trial [Doc. Nos. 18, 21]. Pullman now argues that Olander was inexperienced and unprepared to handle his defense. The complexity of the case and the amount of time spent in preparation of Pullman's defense are not determinative of counsel's incompetency. See United States v. Cronic, 466 U.S. 648, 663 (1984) ("Neither the period of time that the Government spent investigating the case, nor the number of documents that its agents reviewed during that investigation, is necessarily relevant to the question whether a competent lawyer could prepare to defend the case"). Pullman avers that Olander failed to study the facts of the case and lacked familiarity with the Federal Rules of Evidence and the Federal Rules of Criminal Procedure. However, inadequate preparation alone does not prejudice a defendant. Wise v. Bowersox, 136 F.3d 1197, 1207 (8th Cir. 1998). Olander's relative federal inexperience does not establish an ineffective assistance of counsel claim. See Cronic, 466 U.S. at 665 (stating that the conclusion that counsel provided a reasonably competent defense "is not undermined by the fact that respondent's lawyer was young, that his principal practice was in real estate, or that this was his first jury trial"). Pullman has failed to produce evidence sufficient to overcome the "strong presumption" that counsel's conduct was within the range of reasonableness under the circumstances.
Pullman further contends that Olander's failure to call supporting witnesses constituted a deficient performance. However, the failure to call particular witnesses that may support the defense does not necessarily result in the denial of effective assistance of counsel. See Wise, 136 F.3d at 1207 (finding that the failure to call a witness did not deprive defendant of his right to constitutionally effective counsel). Moreover, a petitioner ordinarily must show "not only that the testimony of uncalled witnesses would have been favorable, but also that those witnesses would have testified at trial." Lawrence v. Armontrout, 900 F.2d 127, 130 (8th Cir. 1990).
Even assuming, arguendo, deficient performance by his counsel, Pullman must meet the second prong, prejudice. To show prejudice, Pullman 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. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. Pullman lacks evidence that the outcome of his trial would have been different. As observed at sentencing, "far more important to the verdict of the jury was the credibility of Mr. Pullman as he testified on a number of issues on which he was impeached and his testimony did not bear the traditional hallmarks of credibility." Sentencing Tr., at 12. Moreover, the Eighth Circuit found that the evidence on record in this case supported Pullman's conviction. See Pullman, 187 F.3d at 820-24. Pullman cannot demonstrate prejudice.
B. Constitutionality of enhanced sentence
Pullman argues that the facts relating to his various base offense level enhancements should have been charged in the indictment and subjected to jury analysis of proof beyond a reasonable doubt. In Apprendi, the U.S. Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490. Pullman's sentence was not enhanced beyond the statutory maximum for any of the offenses for which he was convicted. Pullman was convicted of violating 18 U.S.C. § 371, 513(a), and 26 U.S.C. § 7212(a). The maximum statutory penalties provided for each of those statutes is 60 months, 120 months, and 36 months, respectively. Under each statute, Pullman was sentenced to 60 months, 70 months, and 36 months, respectively. Because none of his sentences were increased beyond the statutory maximum, there is no Apprendi violation. See United States v. Aguayo-Delgado, 220 F.3d 926, 933 (8th Cir. 2000) (holding that the rule of Apprendi only applies where the non-jury factual determination increases the maximum sentence beyond the statutory range authorized by the jury's verdict).
IV. CONCLUSION
Based on the foregoing, and all the files, records and proceedings herein, IT IS HEREBY ORDERED that Petitioner Marvin L. Pullman's Motion [Doc. No. 321] to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 is DENIED. The Petition is DISMISSED.
Pullman's Motion requesting substantiation of the record [Doc. No. 322] is DISMISSED as moot.