Opinion
CASE NO. 2:13-CV-00506 CRIM. NO. 2:10-CR-00140
11-21-2014
STEVEN R. TACKETT, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
JUDGE GREGORY L. FROST
ORDER and REPORT AND RECOMMENDATION
Petitioner Steven R. Tackett, a federal prisoner, brings the instant motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. This matter is before the Court on the instant motion, ECF No. 49, Petitioner's Memorandum in Support and Supplement, ECF Nos. 66, 76, Respondent's Response in Opposition, ECF No. 79, and Petitioner's Reply, ECF No. 100. For the reasons that follow, the Magistrate Judge RECOMMENDS that the Section 2255 motion be DENIED and that this action be DISMISSED. Petitioner's request for an evidentiary hearing is DENIED. Petitioner's Motion for Status, ECF Nos. 101, 102, are DENIED, as moot.
On July 9, 2010, Petitioner pleaded guilty, pursuant to the terms of his June 23, 2010, negotiated Plea Agreement to sexual exploitation of children under 18 U.S.C. § 2251(a), and (e). ECF Nos. 16, 22. On May 6, 2011, the Court imposed a sentence of 265 months incarceration plus a life-time of supervised release. ECF Nos. 38, 39. On February 29, 2012, the United States Court of Appeals for the Sixth Circuit affirmed the judgment of this Court. ECF No. 47. On March 23, 2012, the mandate issued. ECF No. 48.
On May 24, 2013, Petitioner filed the instant pro se motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. He asserts that he was denied effective assistance of trial counsel because his attorney failed to consult with him regarding the PreSentence Investigation Report and induced him to lie (claim one); denied effective assistance of counsel due to a conflict of interest (claim two); denied effective assistance of appellate counsel because his attorney failed to raise on appeal a claim that the Court improperly sentenced him on the wrong charge and appellate counsel failed to consult with or provide him a copy of the record (claim three); denied the right to be present at his guilty plea hearing (claim four); forced to plead guilty by defense counsel's inducement and threats and did not understand the nature of his conviction (claim five); convicted in violation of the Fourth Amendment (claim six); and that the evidence is constitutionally insufficient to sustain his conviction and does not constitute a crime (claim seven).
After several extensions and other filings, the matter was fully briefed on April 29, 2014.
It is the position of the Respondent that Petitioner's claims are waived or otherwise fail to provide a basis for relief.
Standard of Review
To obtain relief under 28 U.S.C. § 2255, a defendant must establish the denial of a substantive right or defect in the trial that is inconsistent with the rudimentary demands of fair procedure. United States v. Timmreck, 441 U.S. 780 (1979); United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990) (per curiam). Relief under 28 U.S.C. § 2255 is available when a federal sentence was imposed in violation of the Constitution or laws of the United States or the trial court was without jurisdiction or the sentence is in excess of the maximum sentence allowed by law, or is "otherwise subject to collateral attack." United States v. Jalili, 925 F.2d 889, 893 (6th Cir. 1991). Apart from constitutional error, the question is "whether the claimed error was a 'fundamental defect which inherently results in a complete miscarriage of justice,'" Davis v. United States, 417 U.S. 333, 346 (1974)(quoting Hill v. United States, 368 U.S. 424, 428-429 (1962); see also Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2006). Claims of a nonconstitutional dimension that a petitioner failed to raise at trial or on direct appeal are waived for collateral review except where the errors amount to something akin to a denial of due process.
It is well-established that a Section 2255 motion "is not a substitute for a direct appeal." Ray v. United States, 721 F.3d 758, 761 (6th Cir. 2013) (quoting Regalado v. United States, 334 F.3d 520, 528 (6th Cir. 2003) (citing United States v. Frady, 456 U.S. 152, 167-68 (1982)). Accordingly, claims that could have been raised on direct appeal, but were not, will not be entertained via a motion under Section 2255 unless the petitioner shows: (1) cause and actual prejudice to excuse his failure to raise the claims previously; or (2) that he is "actually innocent" of the crime. Ray, 721 F.3d at 761 (citing Bousley v. United States, 523 U.S. 614, 622 (1998) (internal citations omitted).
Procedural History and Facts
On June 23, 2010, Petitioner signed a Plea Agreement indicating, inter alia, that he was pleading guilty to sexual exploitation of children, as charged in Count One of the Indictment and that the remaining charges would be dismissed. The government agreed not to pursue any additional charges related to this conviction. Petitioner indicated that he understood he faced a mandatory minimum term of fifteen years and up to thirty years of incarceration, and that any estimate of a probable sentence he had received from defense counsel or the prosecution was not binding on the Court, which would make the final determination of his sentence. Petitioner acknowledged that no additional promises or agreements had been made to induce his guilty plea. Plea Agreement, ECF No. 16.
At the July 9, 2010 hearing, the prosecutor reviewed the terms of the foregoing Plea Agreement. Specifically, the prosecutor indicated that Petitioner was pleading guilty to sexual exploitation of children, as charged in Count One of the Indictment, under which Petitioner faced a mandatory minimum term of fifteen years and up to thirty years imprisonment. Guilty Plea Hearing, ECF No. 75, PageID# 346-351. Under the terms of the Plea Agreement, Petitioner understood that the Court had not yet determined a sentence, any estimate of a probable sentence was a prediction, not a promise, and was not binding, and that he would be unable to withdraw his plea of guilty based on the actual sentence imposed. PageID# 347.
Petitioner agreed with those terms. He stated that it was his desire to plead guilty. PageID# 351. He denied being under the influence of drugs or alcohol and understood the proceedings. PageID# 352-53. Petitioner acknowledged that he had been provided ample time to review the case with his attorney. He was satisfied with his attorney's representation. PageID# 353.
The Court advised Petitioner of all of the rights he was waiving by entering a guilty plea. PageID# 353-55. Petitioner at all times indicated that he understood. Petitioner testified that had reviewed the Plea Agreement with his attorney before he signed it. He denied being made any other promises or assurances to induce his guilty plea. He denied being threatened or forced into entering a guilty plea. He denied being made any prediction or promises regarding the sentence that would be imposed. PageID# 356. He further stated that prior to signing the Plea Agreement, he had reviewed with his attorney everything he knew about the charges. His attorney had advised Petitioner of the applicable law. PageID# 357-58.
The District Court advised Petitioner of all of the elements of the charge against him and informed Petitioner he faced a mandatory minimum term of fifteen years, and up to thirty years imprisonment. Petitioner indicated he understood. PageID# 358-59.
The government summarized the facts:
On or about March 26, 2010, the National Center for Missing Children's Cyber Tipline received a complaint from Photobucket, a public-available photo-sharing website The complaint alleged that, on or about March 23, 2010, eight digital images were uploaded to a Photobucket account registered to a subject using the email address of Steve_Tackett@yahoo.com. Investigation confirmed that the email address came back to an individual that had listed the same date of birth as the defendant, Steven R. Tackett. Six of the digital images posted to Photobucket depicted a nude prepubescent female posted with her legs spread, the focal point of the images being the child's vagina. One of the images also depicted a close-up of an adult's fingers spreading open the nude prepubescent female'[s vagina.
The National Center for Missing and Exploited Children was able to access the metadata from the photos and was able to determine that the images had been taken with a Samsung SCH-U540 cell phone. Subsequent investigation revealed that the Samsung phone was manufactured outside the state of Ohio and, thus, had traveled in interstate commerce.
Investigators also determined that the IP address from which the digital photos were uploaded resolved to the Cardington Lincoln Library in Cardington, Ohio. Investigators contacted the library, reviewed library records, and confirmed that Steven Tackett was logged onto the computer system at the library on March 23rd during the same approximate time period when the digital images of child pornography were uploaded to the Photobucket account.
On April 8, 2010, Tackett was arrested by law enforcement in Galion, Ohio, and was interviewed in reference to the uploaded images. Tackett initially denied taking any of the illegal photos, but did acknowledge that the photos had been taken in his bedroom and had been uploaded to his Photobucket account. Tackett insisted, however, that he did not know the girl in the images or who had taken them but was vague and evasive as to how the images had been uploaded to his Photobucket account. At the time
of his arrest, a Samsung SCH-U540 cell phone was found on Tackett's person and subsequently seized.PageID# 361-63. Petitioner admitted the truth of these facts. He did not deny anything in the statement of facts. He indicated, under oath, that it was his desire to plead guilty because he was guilty of the charge against him. PageID# 363-64. He said "I take full responsibility." Id.
On April 30, 2010, investigators took the photos of the young girl from Tackett's Photobucket account to a local elementary school, and school officials were able to identify the nude prepubescent female identified herein as Juvenile A. Investigators then contacted the mother of Juvenile A, who was shown the photos and confirmed that the images appeared to be of her eight-year-old daughter. The mother confirmed that between approximately December of 2009 and March of 2010, Tackett had previously babysat for Juvenile A at 124 South Third Street, Cardington, Ohio, which is located within the Southern District of Ohio. The mother further stated that she recognized Tackett's bedroom from previous visits to that residence and that the photos appeared to have been taken in Tackett's bedroom.
Investigators also interviewed Juvenile A in reference to the photos. She began to cry when asked about the photos and admitted that Tackett had taken them in his bedroom using a cell phone.
Tackett was subsequently reinterviewed by investigators and eventually admitted that he had taken the sexually explicit pictures of the eight-year-old female with his Samsung SCH-U540 cell phone when he babysat for her at the Cardington address in late February of 2010. Tackett further admitted that he had uploaded the photographs to his Photobucket account from the Cardington library in late March.
At sentencing, Petitioner advised the Court that he had received and reviewed the PreSentence Investigation Report with his attorney; he understood it; and defense counsel had explained to him the ramifications of the United States Sentencing Guidelines. Sentencing Hearing Transcript, ECF No. 45, PageID# 133-34. Petitioner had no questions. PageID# 135. Petitioner again indicated that he understood the nature of his conviction and the penalties he faced. PageID# 137. He expressed remorse:
I just want to apologize for the way I've acted, for bringing my dad here crying because of something I've done that was wrong, and [A's] mom here, something that I know was wrong. I'm sorry for that. I can't never take it back. It was five minutes of my life that I wasn't thinking, and I don't know what I was thinking - I really don't - to have done such treachery to a child like that, and I just do hope that I do get some help wherever I go.PageID# 152-53. Petitioner verified that he had reviewed his PreSentence Investigation Report with counsel and understood it. Sentencing Transcript, ECF No. 45.
Merits
The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). To prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate both that counsel's performance was deficient, or that counsel "made errors so serious that counsel was not functioning as the 'counsel' guaranteed" by the Sixth Amendment, and that this deficient performance prejudiced the petitioner. Id. at 687. This showing requires that defense counsel's errors were so serious as to deprive the defendant of a fair and reliable trial. Id.
"Surmounting Strickland's high bar is never an easy task." Padilla v. Kentucky, 599 U.S. 356, 371 (2010). Given the difficulties inherent in determining whether an attorney's performance was constitutionally deficient, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. . . ." Strickland, 466 U.S. at 689. Nevertheless, "[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." Id. at 691. A petitioner, therefore, must show prejudice in order to prevail on a claim of ineffective assistance of counsel. Id. at 692.
In order to establish prejudice, a petitioner must demonstrate that a reasonable probability exists that, but for counsel's errors, the result of the proceedings would have been different. Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. Because a petitioner must satisfy both prongs of Strickland to demonstrate ineffective assistance of counsel, should a court determine that the petitioner has failed to satisfy one prong, it need not consider the other. Id. at 697.
Petitioner asserts that he was denied the effective assistance of counsel because his attorney failed to subject the prosecution's case to meaningful adversarial testing; refused to file a motion to suppress evidence; refused to interview adult models; and induced his guilty plea by trickery and deceit. Memorandum in Support, ECF No. 66, PageID# 257. Petitioner alleges that he engaged in heated arguments with defense counsel resulting in a corresponding conflict of interest. He alleges that his attorney "exploded" when Petitioner requested the appointment of new counsel, and warned Petitioner that the Court would impose the maximum sentence authorized under the law if Petitioner proceeded to trial. PageID# 261.
Petitioner asserts that his guilty plea was coerced. According to Petitioner, he pleaded guilty because he could not obtain new counsel, had no knowledge of the law, and because his attorney refused to conduct discovery, file a motion to suppress evidence, or review discovery material with him. Petitioner indicates that he felt intimidated. He asserts that he did not understand the charge to which he was pleading guilty, and states that, if he had, he would not have entered a guilty plea. PageID# 265. Petitioner states that he thought he was convicted on a charge of pandering and that he would be sentenced to ten years imprisonment and released after eight. PageID# 262. According to Petitioner, he did not understand the terms of the Plea Agreement. His attorney never reviewed the PreSentence Investigation Report with him. According to Petitioner, he responded affirmatively to all questions at his guilty plea and sentencing hearing on the advice of counsel. PageID# 263.
Petitioner has waived his claim that he did not enter a knowing, intelligent or voluntary guilty plea, by failing to raise the claim on direct appeal. Bousley, 523 U.S. at 621-22.
"It is well settled that a voluntary and intelligent plea of guilty made by an accused person, who has been advised by competent counsel, may not be collaterally attacked." Mabry v. Johnson, 467 U.S. 504, 508, 104 S.Ct. 2543, 2546-2547, 81 L.Ed.2d 437 (1984) (footnote omitted). And even the voluntariness and intelligence of a guilty plea can be attacked on collateral review only if first challenged on direct review.Id. at 621. Even if he had not waived the claim, Petitioner cannot establish cause and prejudice for failing to raise the claim on direct appeal in view of the record before the Court.
"The longstanding test for determining the validity of a guilty plea is 'whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.'" Hill v. Lockhart, 474 U.S. at 369 (citing North Carolina v. Alford, 400 U.S. 25, 31 (1970); see Boykin v. Alabama, 395 U.S. 238, 242 (1969); Machibroda v. United States, 368 U.S. 487, 493 (1962)).
In the context of a guilty plea, in order to establish prejudice, as that term is defined under Strickland, "the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. at 58-59. Petitioner has not met that standard here.
The record indicates that Petitioner appeared personally at his guilty plea and sentencing hearing. See Transcripts, ECF Nos. 45, 75. Prior to the entry of Petitioner's guilty plea, the prosecutor reviewed the terms of the Plea Agreement, including the nature of the charge against Petitioner and the penalties he faced. Petitioner indicated to the Court that he had reviewed his case with his attorney and expressed satisfaction with counsel. The Court advised Petitioner of all of rights he was waiving by entering a guilty plea, the elements of the offense charged and the potential penalties he faced. Petitioner denied being forced or pressured into entering a guilty plea. He expressed satisfaction with his attorney's representation. He did not raise any issue regarding an alleged conflict with defense counsel. Further, record fails to reflect that defense counsel refused to interview any potential witnesses that could have provided exculpatory evidence on Petitioner's behalf or failed to conduct any investigation that would have assisted the defense. The record reflects overwhelming evidence of guilt. In view of the foregoing, the Court concludes that Petitioner's allegation now that he is actually innocent or that he did not know the nature or ramifications of his guilty plea are not worthy of credit.
The statements Petitioner made under oath and at the time of his guilty plea and sentencing hearing carry a presumption of truthfulness. Henderson v. Morgan, 426 U.S. 637, 648 (1976).
[T]he representations of the defendant, his lawyer, and the prosecutor at [a guilty plea proceeding], as well as any findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent collateral proceedings. Solemn declarations in open court carry a strong presumption of verity. The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible.Blackledge v. Allison, 431 U.S. 63, 73-75 (1977). Such are the circumstances here.
Petitioner now denies his admission of guilt and challenges the accuracy of the transcript of his guilty plea and sentencing hearing. Reply, ECF No. 100, PageID# 538. He argues that he is factually innocent. PageID# 537-546. He contends that the evidence is constitutionally insufficient to sustain his conviction. PageID# 539. He asserts that the Court improperly sentenced him on the wrong charge. He challenges the jurisdiction of the Court by arguing that his conviction on production of child pornography pursuant to 18 U.S.C. § 2251(a) lacks sufficient connection to interstate commerce. PageID# 265-67.
"Generally, a voluntary and unconditional guilty plea 'bars any subsequent non-jurisdictional attack on the conviction.'" United States v. Corp, 668 F.3d 379, 384 (6th Cir. 2012) (internal quotations omitted).
[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was [constitutionally ineffective].Tollett v. Henderson, 411 U.S. 258 (1973). Otherwise, a defendant could plead guilty in the hope of obtaining favorable treatment during sentencing while reserving the right to raise all manner of constitutional claims if the result of the sentencing process was not as he had hoped.
As to Petitioner's challenge to the jurisdiction of this Court over the activities charged, "'case law firmly establishes Congress' [s] power to regulate purely local activities that are part of an economic 'class of activities' that have a substantial effect on interstate commerce.' " United States v. Bowers, 594 F.3d 522, 527-28 (6th Cir. 2010)(quoting Gonzalez v. Raich, 545 U.S. at 17 (citing Perez v. United States, 402 U.S. 146, 151 (1971), and Wickard v. Filburn, 317 U.S. 111, 128-29 (1942)). "'Congress can regulate purely intrastate activity that is not itself 'commercial,' in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.'" Bowers, at 528 (quoting Wickard, at 18)). "[T]here is no question Congress has a legitimate basis for attempting to regulate the interstate market in child pornography and that the statutes. . . are a part of a larger comprehensive scheme to regulate that illicit interstate market." Bowers, 594 F.3d at 528 (citing United States v. Brown, 327 F. Appx. 526, 532-33 (6th Cir. 2006); United States v. Chambers, 441 F.3d 438, 455 (6th Cir. 2006)).
Petitioner asserts that his attorney should have filed a motion to suppress evidence seized from his cell phone because, as he contends, it was obtained in violation of the Fourth Amendment. Free-standing Fourth Amendment claims cannot be raised in federal habeas corpus proceedings, but may be considered "when a claim of ineffective assistance of counsel is founded on incompetent representation with respect to a Fourth Amendment issue." Ray v. United States, 721 F.3d 758, 762 (6th Cir. 2013) (citing Kimmelman v. Morrison, 477 U.S. 365, 382-83 (1986)). To obtain relief, the petitioner must establish that the Fourth Amendment claim is meritorious and that there "is a reasonable probability that the verdict would have been different absent the excludable evidence in order to demonstrate actual prejudice." Kimmelman v. Morrison, 477 U.S. 365, 375 (1986).
Petitioner cannot do so here. No reasonable expectation of privacy exists in a cellular phone used to photograph and share or upload child pornography over the internet. See, e.g., United States v. Stallons, 2011 WL 3206076, at * 1 n. 3 (E.D.Tenn. July 12, 2011) (citing United States v. Barrows, 481 F.3d 1246, 1249 (10th Cir. 2007); United States v. Stults, 575 F.3d 834, 843 (8th Cir.2009) ("[N]o court . . . has held that an individual has a reasonable expectation of privacy in files which he has generally made available to the public through peer-to-peer file sharing programs"). Police seized Petitioner's cell phone incident to a lawful arrest. The record fails to support Petitioner's allegation that police unconstitutionally obtained evidence against him. Id. Thus, Petitioner's claim that he was denied effective assistance of counsel based on his attorney's failure to file a motion to suppress evidence fails to provide a basis for relief.
See also United States v. Gholston, 993 F.Supp.2d 704, 710 (E.D. Mich. Jan. 17, 1014), citing the following cases:
United States v. Flores-Lopez, 670 F.3d 803, 809-10 (7th Cir.2012) (upholding a search of a cell phone incident to an arrest for the limited purpose of obtaining the cell phone number, which in turn was used to subpoena call history records from the telephone company); United States v. Finley, 477 F.3d 250, 259-60 & n. 7 (5th Cir. 2007) (approving the retrieval of call records and text messages from the defendant's cell phone incident to his arrest, and finding that the "incident to arrest" basis for this ruling was unaffected by the fact that the police transported the defendant a short distance before conducting this search); United States v. Johnson, 515 Fed.Appx. 183, 187 (3d Cir. 2013) (rejecting the defendant's claim that he was arrested without probable cause, and then concluding that the defendant's cell phone was legally seized during a search incident to this lawful arrest); United States v. Fuentes, 368 Fed.Appx. 95, 98-99 (11th Cir.2010) (affirming the denial of a motion to suppress evidence discovered on the defendant's cell phone, where probable cause existed for the defendant's arrest, and where the cell phone was "seized in a proper search incident to" this arrest); Silvan W. v. Briggs, 309 Fed.Appx. 216, 225 (10th Cir. 2009) (holding that "the permissible scope of a search incident to arrest includes the contents of a cell phone found on the arrestee's person"); United States v. Martin, No. 07-20605, 2013 WL 55693, at *4-*5 (E.D.Mich. Jan. 3, 2013) (rejecting the defendant's contention that the officers who arrested him unlawfully searched the contact list on his cell phone in the course of his arrest, and citing Murphy and other cases as recognizing the "manifest need to preserve evidence" as justification for an officer's retrieval of information from a cell phone seized incident to an arrest); United States v. Bass, No. 11-20704, 2012 WL 1931246, at *6 (E.D.Mich. May 29, 2012) (rejecting the defendant's challenge to the seizure of a cell phone on the ground that the phone actually was not in his possession at the time of his arrest, and concluding that because the cell phone was in fact in the defendant's possession, the arresting officers were permitted to seize it incident to the defendant's arrest).
Petitioner asserts that he was denied a fair trial based on a conflicts of interest, or alternately because of his disagreements with defense counsel. According to Petitioner, he notified the District Court in writing regarding his complaint with the representation of defense counsel. He asserts that the Court's failure to conduct a hearing on the issue mandates reversal under Holloway v. Arkansas, 435 U.S. 475 (1978). Memorandum in Support, ECF No. 66, PageID# 273. In support of his claim, Petitioner has attached a letter from his mother, ECF No. 66-1, PageID# 300-301; and a letter dated May 17, 2011 from the Columbus Bar Association dismissing a grievance Petitioner apparently filed against his attorney. ECF No. 66-1, PageID# 302. Neither of these documents, however, lends support to Petitioner's claim.
The Sixth Amendment guarantee of the right to the effective assistance of counsel encompasses the "right of a defendant who does not require appointed counsel to choose who will represent him." United States v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006) (citing Wheat v. United States, 486 U.S. 153, 159 (1988); Powell v. Alabama, 287 U.S. 45, 53 (1932). The right to representation by counsel of choice does not, however, extend to defendants who require the assistance of court-appointed counsel. United States v. Gonzalez-Lopez, 548 U.S. 140, 151-52 (2006). Further, the Sixth Amendment does not guarantee the defendant a "meaningful relationship" with his attorney. Morris v. Slappy, 461 U.S. 1, 14 (1983).
A criminal defendant is entitled to the effective assistance of counsel free from conflict. Shaw v. Renico, 2011 WL 768128, at *8 (E.D. Mich. Feb. 28, 2011)(citing Holloway, 435 U.S. at 483-84. The word "conflict," in regard to a claim of a conflict of interest, however, refers not to types of antagonistic relationships, but to "'legal conflicts of interest - an incompatibility between the interests of two of a lawyer's clients, or between the lawyer's own private interest and those of the client.' " United States v. Swisher, 790 F.Supp.2d 1215, 1227 (D.Idaho, 2011)(citing Plumlee v. Masto, 512 F.3d 1204, 1210 (9th Cir. 2008)(en banc). A disagreement over trial tactics does not constitute a conflict that would result in incompetent representation. Phillips v. Biter, No. 12-cv-2110 GPC (NLS), 2014 WL 3696111, at *4 (S.D. Cal. July 22, 2014)(citing Schell v. Witek, 218 F.3d 1017, 1026 (9th Cir. 2000)).
A claim that defense counsel labored under a conflict of interest is tantamount to a claim of ineffective assistance of counsel governed by Strickland v. Washington, 466 U.S. 668 (1984). Brooks v. Bobby, 660 F.3d 959, 963-64 (6th Cir. 2011). A defendant must show by the preponderance of the evidence that defense counsel "actively represented conflicting interests" and that the "actual conflict of interest adversely affected his lawyer's performance." Burger v. Kemp, 483 U.S. 776, 783 (1987); Mickens v. Taylor, 535 U.S. 162, 171 n.5 (2002). Where the trial court knows or reasonably should know that a particular conflict of interest exists, that court has a duty to inquire into the conflict. Cuyler, 446 U.S. at 347-48; Holloway, 435 U.S. at 483-84.
Here, the record fails to support a claim that defense counsel operated under a conflict of interest, or that Petitioner at any time brought to the attention of the Court his dissatisfaction with his attorney or desire for the appointment of new counsel. To the contrary, as discussed, Petitioner expressed only that he was satisfied with the performance of defense counsel, and the Court had no reason to believe otherwise.
Petitioner asserts that he was denied his right to the effective assistance of appellate counsel. He complains that appellate counsel did not consult with him or advise him of the status of his appeal. This claim likewise fails to provide a basis for relief.
The Strickland test applies to appellate counsel. Burger v. Kemp, 483 U.S. 776, 781-82 (1987). Counsel must provide reasonable professional judgment in presenting the appeal. Evitts v. Lucey, 469 U.S. 387, 396-97 (1985). " '[W]innowing out weaker arguments on appeal and focusing on' those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy." Smith v. Murray, 477 U.S. 527, 536 (1986) (quoting Jones v. Barnes, 463 U.S. 745, 751-52 (1983)).
The Court of Appeals for the Sixth Circuit has identified the following considerations that ought to be taken into account in determining whether counsel on direct appeal performed reasonably competently:
1. Were the omitted issues "significant and obvious?"Mapes v. Coyle, 171 F.3d 408, 427-28 (6th Cir. 1999).
2. Was there arguably contrary authority on the omitted issues?
3. Were the omitted issues clearly stronger than those presented?
4. Were the omitted issues objected to at trial?
5. Were the trial court's rulings subject to deference on appeal?
6. Did appellate counsel testify in a collateral proceeding as to his appeal strategy and, if so, were the justifications reasonable?
7. What was appellate counsel's level of experience and expertise?
8. Did the Petitioner and appellate counsel meet and go over possible issues?
9. Is there evidence that counsel reviewed all the facts?
10. Were the omitted issues dealt with in other assignments of error?
11. Was the decision to omit an issue an unreasonable one which only an incompetent attorney would adopt?
Petitioner does not identify, and the record does not reflect, any potentially meritorious issues that his appellate attorney should have, but did not, raise on appeal. Petitioner's claim of the denial of the effective assistance of appellate counsel therefore fails.
The record fails to reflect that an evidentiary hearing is required to resolve Petitioner's claims. "[A] § 2255 movant has the burden of proving the substance of his allegations by a preponderance of the evidence and a district court is not required to hold an evidentiary hearing on the basis of conclusory allegations." Jones v. United States, No. 4:06-cr-029, 4:09-cv-007, 2012 WL 360094, at *5 (E.D. Tenn. Feb. 2, 2012)(citing Ashley v. United States, 17 F. App'x 306, 308 (6th Cir. 2001); Tucker v. United States, 423 F.2d 655, 656 (6th Cir. 1970); United States v. Orlando, 327 F.2d 185, 188 (6th Cir. 1964); Malone v. United States, 299 F.2d 254, 255 (6th Cir. 1962)). Such are the circumstances here. Petitioner's allegations are entirely unsupported or contradicted by the record.
Recommended Disposition
WHEREUPON the Magistrate Judge RECOMMENDS that the Motion to Vacate be DENIED and this action be DISMISSED. Petitioner's request for an evidentiary hearing is DENIED. Petitioner's Motion for Status, ECF Nos. 101, 102, are DENIED as moot.
Procedure on Objections
If any party objects to this Report and Recommendation, that party may, within fourteen days of the date of this Report, file and serve on all parties written objections to those specific proposed findings or recommendations to which objection is made, together with supporting authority for the objection(s). A judge of this Court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in part, the findings or recommendations made herein, may receive further evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1).
The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to have the district judge review the Report and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).
The parties are further advised that, if they intend to file an appeal of any adverse decision, they may submit arguments in any objections filed, regarding whether a certificate of appealability should issue.
s/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
United States Magistrate Judge