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United States v. Bender

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA ALEXANDRIA DIVISION
Jul 13, 2015
CIVIL ACTION NO. 09-CR-00232 (W.D. La. Jul. 13, 2015)

Opinion

CIVIL ACTION NO. 09-CR-00232

07-13-2015

UNITED STATES OF AMERICA v. JEREMY BENDER


JUDGE DEE D. DRELL

REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

Before the court is a motion to vacate, set aside, or correct sentence filed pursuant to 28 U.S.C. § 2255 by Jeremy Bender ("Bender") on May 20, 2013 (Doc. 102). Bender is challenging his July 2010 conviction pursuant to a guilty plea in the Western District of Louisiana, Alexandria Division, on one count of assault with a dangerous weapon (Doc. 35). Bender was sentenced in March 2011, as career offfender, to 77 months imprisonment (Docs. 75, 76). Bender's conviction and sentence were affirmed on appeal (Doc. 97). U.S. v. Bender, 516 Fed.Appx. 289 (5th Cir. 2012). Bender is presently confined in the United States Penitentiary in Coleman, Florida.

Bender raises the following grounds for relief in his Section 2255 motion:

1. Ineffective assistance of counsel for failure to properly investigate the specific manner in which Bender was initially charged in all of his prior state convictions (some charges were as a juvenile by the State of Maine, Maine Youth Center) which allowed the court to wrongly classify and sentence Bender as a career criminal.

2. Ineffective assistance of counsel for failure to inform Bender of each standard that needs to be met to claim self defense. Had defense counsel properly informed Bender, he would have known he met those standards and would have proceeded to trial.

3. Ineffective assistance of counsel for failure to obtain the actual hospital reports on the two victims to show whether they were actually injured and the exact extent of their injuries.

4. Ineffective assistance of counsel for defense counsel's failure to interview any defense witnesses, including the victims, which would have shown Bender was defending himself. Bender gave defense counsel a list of thirty people who would be positive witnesses for Bender, but he did not contact any of them. Bender obtained about ten affidavits himself.

5. Ineffective assistance of counsel for defense counsel's failure to secure discovery material, FBI reports, criminal records of everyone involved, institutional reports of the assault, hospital records, etc.

6. Ineffective assistance of counsel for defense counsel's failure to provide clear pictures of the incident for evidence.

7. Ineffective assistance of counsel for defense counsel's failure to properly question the FBI agent who testified at Bender's guilty plea proceeding.

The United States responded to Bender's motion (Doc. 113). The motion is now before the undersigned Magistrate Judge for initial review. See 28 U.S.C. § 2255 and Rule 4(b) of the Federal Rules Governing Section 2255 Proceedings For the United States District Courts, which states in part, "If it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the movant to be notified. Otherwise, the judge shall order the United States Attorney to file an answer or other pleading within the period of time fixed by the court or to take such other action as the judge deems appropriate."

Rule 8(a) Resolution

This court is able to resolve the merits of this Section 2255 application without the necessity of an evidentiary hearing because there is no genuine issue of material fact that is relevant to the claims of the petitioner, and the State court records provide the required and adequate factual basis necessary to the resolution of the Section 2255 application. U.S. v. Green, 882 F.2d. 999, 1008 (5th Cir. 1989); Section 2255 Rule 8(a).

Facts

The facts of this case, as set forth by the U.S. Fifth Circuit Court of Appeals in U.S. v. Bender, 516 Fed.Appx. at 290, are as follows:

"On October 29, 2008, Bender, then an inmate at the
United States Penitentiary in Pollack, Louisiana, was involved in a four-person physical altercation in a cell occupied by inmates Russell Harmon and Andrew Dickerson. Exactly what precipitated this confrontation was the subject of conflicting evidence during Bender's plea hearing and two sentencing hearings.

"Bender gave the following account during his second sentencing hearing. On October 27, Bender and several other inmates told Harmon that he was not welcome among the general population of the prison because he was a child molester. Two days later, Rhyan Driggans, another inmate, told Bender that Harmon wanted to speak with him.1 Accordingly, Bender, accompanied by inmate Stephen Brum, went to the prison unit in which Harmon's cell was located, passed through a metal detector, and explained to an inquiring officer that they were there to speak with Harmon. The officer gave them permission to speak with Harmon for not more than ten minutes.2 Upon entering Harmon's cell, Bender was 'taken aback' because the cell lights were turned off and Harmon was sitting on his table in the dark. Harmon 'abruptly' moved toward Bender and began striking him. Bender noticed at the same time that Brum was fighting with Dickerson, who was also present in the cell.

"As the fight went on, Bender 'heard a loud pop at [his] feet,' looked at the floor, and saw that a shank had fallen in front of him. He 'instinctively grabbed the knife before Harmon could.' It appeared to Bender that Dickerson was stabbing Brum, so Bender stabbed Dickerson, and also stabbed Harmon, who had continuously been striking him. Bender threw the shank to the floor and kept fighting with Harmon. Corrections officers soon arrived and broke up the fight. The officers found a shank near the scene of the fight. Both Harmon and Dickerson suffered injuries and received outside medical care."

Law and Analysis

The Law of §2255 Actions

There are four grounds upon which a federal prisoner may move to vacate, set aside, or correct his sentence: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence exceeds the statutory maximum sentence; or (4) the sentence is "otherwise subject to collateral attack." 28 U.S.C. § 2255; United States v. Cates, 952 F.2d 149, 151 (5th Cir.), cert. den., 504 U.S. 962, 112 S.Ct. 2319 (1992). The scope of relief under § 2255 is consistent with that of the writ of habeas corpus. Cates, 952 F.2d at 151. Also, U.S. v. Placente, 81 F.3d 555, 558 (5th Cir. 1996).

Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice. Nonconstitutional claims that could have been raised on direct appeal, but were not, may not be asserted in a collateral proceeding. U.S. v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992). Also, U.S. v. Ressler, 54 F.3d 257, 259 (5th Cir. 1995).

Moreover, it is settled in this circuit that issues raised and disposed of in a previous appeal from an original judgment of conviction are not considered in §2255 motions. U.S. v. Kalish, 780 F.2d 506, 508 (5th Cir.), cert. den., 476 U.S. 1118, 106 S.Ct. 1977 (1986). Also, U.S. v. Fields, 761 F.3d 443, 482 (5th Cir. 2014), cert. den., 2015 WL 2473303 (U.S. 6/8/2015); U.S. v. Sealer, 37 F.3d 1131, 1134 (5th Cir. 1994).

Ineffective Assistance of Counsel

To establish that his legal representation at trial fell short of the assistance guaranteed by the Sixth Amendment, a convicted defendant must meet the two-pronged test set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). He must show that his counsel's performance was both deficient (i.e., that counsel did not provide reasonably effective assistance under prevailing professional norms) and prejudicial (i.e., that errors by counsel "actually had an adverse effect on the defense). The former component of the test authorizes only "highly deferential" judicial scrutiny, requiring the defendant to overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. On the latter component, it is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding; rather, he must demonstrate a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Anderson v. Collins, 18 F.3d 1208, 1215 (5th Cir. 1994), and cases cited therein. Also, U.S. v. Segler, 37 F.3d 1131, 1136 (5th Cir. 1994).

In the context of a guilty plea, a petitioner must prove not only that his attorney actually erred, but also that he would not have pleaded guilty but for the error. Armstead v. Scott, 37 F.3d 202, 206 (5th Cir. 1994), cert. den., 514 U.S. 1071, 115 S.Ct. 1709 (1995).

In showing he was rendered ineffective assistance of counsel in regard to his sentence, a petitioner must additionally show that there was a "reasonable probability that but for trial counsel's errors the defendant's non-capital sentence would have been significantly less harsh; relevant factors are the defendant's actual sentence, the potential minimum and maximum sentences that could have been received, the placement of the actual sentence within the range of potential sentences, and any relevant mitigating or aggravating circumstances. U.S. v. Sealer, 37 F.3d at 1136.

1. Failure to Properly Investigate

First, Bender contends his trial counsel failed to properly investigate the specific manner in which he was initially charged in all of his prior state convictions from Maine-some were juvenile charges from the Maine Youth Center-which allowed the court to wrongly classify and sentence Bender as a career criminal. Although, on direct appeal the Fifth Circuit addressed Bender's claim that the two prior offenses used to charge him under the Armed Career Criminal Act, 18 U.S.C. § 924(e), constituted a single criminal act, Bender now contends that his defense attorney should have obtained the original charging instrument to prove both offenses were originally charged together.

Bender is complaining that the two robberies (committed on September 13, 1995 and September 22, 1995) of which he was convicted on August 15, 1996 in York County, Maine and the two burglaries (of residences on September 18, 1995 and September 21, 1995) of which he was convicted on November 1, 1996 in Cumberland County, Maine were actually all part of the same "crime spree" and therefore should count as only one crime of violence rather than as two.

The sequence of events set forth in the sentencing transcripts from Bender's prior felony offenses in Maine (attached hereto as Appendix A) are as follows:

Date

Event

5/26/95

Bender arrested for having escaped from theMaine Youth Center (S.Ct.Me. 96-1066, 8/16/99,Tr. pp. 28-29).

9/1/95

Bender released from Maine Youth Center(S.Ct.Me. 96-1066, 8/16/99, Tr. p. 42).

9/13/95

Bender committed robbery of Mary Gorduris inher home in Saco, ME (S.Ct.Me. 96-1066,8/16/99, Tr. p. 23).

9/15/95

Bender committed burglary of Norman Caren'shome in Saco, ME (S.Ct.Me. 96-1066, 8/16/99,Tr. p. 27).

9/18/95

Bender committed reckless conduct with aweapon in Biddeford, ME (S.Ct.Me. 96-1066,8/16/99, Tr. pp. 25-26).

9/21/95

Bender committed burglary & theft of Flanneryhome in Westbrook, ME (S.Ct.Me. 96-1972,11/1/96, Tr. p. 3).

9/22/95

Bender attempted to rob Michael Buford, nightmanager at the Normandy Hotel in Maine(S.Ct.Me. 96-1066, 8/16/99, Tr. pp. 24-25).

9/28/95

Bender committed burglary & theft of Martinhome in Pownal, ME (S.Ct.Me. 96-1972, 11/1/96,Tr. p. 4).

9/28/95

Bender apprehended in the Maine Youth Centerby Trooper Lowell Smith and Bender fullyconfessed to the Flannery and Martinburglaries to Trooper Smith (S.Ct.Me. 96-1972,11/1/96, Tr. p. 11).

10/2/95

Bender was returned to the Maine Youth Center(S.Ct.Me. 96-1066, 8/16/99, Tr. p. 43).

June 1996

Bender placed in York Cty. Jail in Maine(S.Ct.Me. 96-1066, 8/16/99, Tr. p. 43).

8/15/96

Bender sentenced in York Cty., ME to a totalof 6 years imprisonment with all but two yearssuspended, for 2 counts of robbery, 1 count ofreckless conduct with a dangerous weapon, 1count of burglary, 1 count of escape, and 4counts of criminal trespass. (S.Ct.Me. 961972, 11/1/96).

11/1/96

Bender sentenced in Cumberland Cty., ME to atotal of six years imprisonment with all but 2and ½ years suspended, for 2 counts burglaryand 2 counts theft. (S.Ct.Me. 96-1066,8/16/99).



A defendant is designated a career offender if: (1) he was at least eighteen years old at the time he committed the charged offense; (2) the charged offense is a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions that were either crimes of violence or controlled substance offenses. U.S.S.G. § 4Bl.l(a). Prior sentences are counted as separate offenses if an intervening arrest separated the offenses. U.S.S.G. § 4A1.2(a)(2). If there was no intervening arrest, prior sentences are counted separately unless the sentences resulted from offenses contained within the same charging instrument or the sentences were imposed on the same day. U.S.S.G. § 4A1.2(a)(2).

In Bender's case, the presentence report (Doc. 77, pp. 8-9) shows two arrest dates for the Maine "crime spree" which took place between September 13, 1995 and October 2, 1995; the arrests are listed on September 21, 1995 and October 2, 1995. However, the records from Maine show only one arrest date-October 2, 1995. There was no intervening arrest during the Maine crime spree.

The phrase "two prior felony convictions" is defined in Section 4B1.2(3), which then refers to Section 4A1.2 for an explanation as to whether the prior convictions are to be counted separately. Under Section 4A1.2, prior sentences in unrelated cases are to be counted separately, but prior sentences imposed in related cases are to be treated as one sentence. Prior sentences are related "if they resulted from offenses that (1) occurred on the same occasion, (2) were part of a single common scheme or plan, or (3) were consolidated for trial or sentencing." U.S.S.G. § 4A1.2, Application Note 3. Shutter v. U.S., 2007 WL 712284 (E.D.Tex. 2997).

Similar crimes are not necessarily part of a common scheme or plan. United States v. Garcia, 962 F.2d 479, 482 (5th Cir.), cert. denied, 506 U.S. 902, 113 S.Ct. 293 (1992)(declining to define "common scheme or plan," but holding that two deliveries of heroin were not part of a common scheme or plan even though the crimes were temporally and geographically alike). Further, prior convictions are not "related" merely because they are part of a crime spree. United States v. Irons, 196 F.3d 634, 638 (6th Cir. 1999). The term "common scheme or plan" must mean something more than repeated convictions for the same criminal offense. The words "scheme" and "plan" are words of intention, implying that the prior offenses have been jointly planned, or at least that it would have been evident that the commission of one would entail the commission of the other as well. However, a crime merely suggested by or arising out of the commission of a previous crime is not related to the earlier crime in the special sense of being part of a common scheme or plan. United States v. Robinson, 187 F.3d 516, 520 (5th Cir. 1999), citing United States v. Ford, 996 F.2d 83, 85 (5th Cir. 1993), cert. den., 510 U.S. 1050, 114 S.Ct. 704 (1994), and United States v. Garcia, 962 F.2d 479, 481 (5th Cir. 1992), cert. den., 506 U.S. 902, 113 S.Ct. 293 (1992).

At Bender's sentencing, defense counsel argued that both of his Maine convictions (the August 15, 1996 robbery conviction(s) in York County and the November 1, 1996 burglary conviction(s) in Cumberland County) were originally charged in a single charging instrument in juvenile court (Doc. 91, p. 10/58). Although Bender was a juvenile when he committed the offenses, the State of Maine chose to try him as an adult, so (according to Bender) the charges were split into two separate charging instruments because they fell within two different jurisdictions in the State of Maine (Doc. 91, ppp. 10-12/58). Bender explained as follows (Doc. 91, pp. 16-17):

"In my case, mine originated from the same charging instrument because in the state of Maine, the way they do it is, when you're a juvenile, they sentence you to the state of Maine. So when you go into a court proceeding, you are initially charged from wherever -- whatever jurisdiction you're in, but you're held liable because you're -- they sentence you to an undetermined sentence until the age of [sic] to the state of Maine.

"So technically, whatever charges you receive, they're just forwarded to the youth center. And then the youth center, they do a formal charging instrument against you for all your charges. So all my charges were originally charged under the same charging instrument by the Maine Youth Center. And then after that, then as I was bound over and tried as an adult because of the jurisdiction issues, that they happened in two different -- two different jurisdictions, then they split it on from there. But in the 709 amendment, it says that they were in the same original charging instrument. And in my case, it was, from the Maine Youth Center.

"And I got a letter here that I tried getting the documentation from the Maine Youth Center to try to show, but they sent me a response back saying that I had to pay for the transcripts and that they would have to look for them. So I wrote them back and told them that I didn't have the money for it, and they never responded back to me. But I was trying to get the documentation for you, and I tried contacting one of my old attorneys to try to get with Wayne or submit something to the court for you, too. All right. I just wanted to elaborate that a little bit."

The Fifth Circuit Court of Appeal considered the underlying issue on direct appeal and held the trial court did not err in treating Bender's prior offenses separately and in designating Bender a career offender because (1) there was no record evidence that the offenses were originally contained in the same charging instrument (from the Maine Youth Center), (2) the two different docket numbers of the cases were evidence that they were charged separately in juvenile court, and (3) Bender was eventually prosecuted as an adult for the two offenses under two separate case numbers in two separate jurisdictions. U.S. v. Bender, 516 Fed.Appx. at 294-295. Bender now contends his attorney was ineffective for failing to obtain the original charging instrument from the Maine Youth Center.

However, it is quite clear under Fifth Circuit jurisprudence that, although the crimes are temporally close, they were each individual events. On September 13, 1995, Bender committed robbery of Mary Gorduris in her home in Saco, Maine (S.Ct.Me. 96-1066, 8/16/99, Tr. p. 23/44). On September 21, 1995, Bender committed burglary in the Flannery home in Westbrook, ME (S.Ct.Me. 96-1972, 11/1/96, Tr. p. 3). On September 22, 1995, Bender committed robbery of Michael Buford, night manager at the Normandy Hotel in Maine (S.Ct.Me. 96-1066, 8/16/99, Tr. pp. 24-25). On September 28, 1995, Bender committed burglary of the Martin home in Pownal, Maine (S.Ct.Me. 96-1972, 11/1/96, Tr. p. 4). The burglaries on September 21 and 28 were separated in both time and place from the robberies which took place on September 13 and 22, each of the crimes involved a different set of victims, and there is no evidence that the crimes were all part of a common scheme or plan. Therefore, the burglaries (Maine case no. CR96-1972) and the robberies (Maine case no. CR96-1066) were correctly treated as two separate prior convictions for violent offenses for purposes of classifying Bender as a career offender under the U.S. Sentencing Guideline, regardless of whether they were originally included in the same charging instrument by the Maine Youth Center.

Bender has not shown that, even if all of his "crime spree" offenses had been listed in the original charging instrument form the Maine Youth Center, he would not have been found to be a career offender. Therefore, Bender's has not shown that he had ineffective assistance of counsel due to counsel's failure to obtain the original charging instrument(s) from the Maine Youth Center.

This ground for relief is meritless.

2. Self Defense

Next, Bender contends he had ineffective assistance of counsel because his trial attorney failed to inform him of each standard that needs to be met to claim self defense. Had defense counsel properly informed Bender, he would have seen he met those standards and proceeded to trial.

Bender raised the underlying claim on direct appeal, contending that he had acted in self-defense and that, had he understood that he was not guilty of the charged crime, he would not have pleaded guilty. The Fifth Circuit found that Bender did not prove the district judge erred in accepting his guilty plea because Bender admitted, at his sentencing, that he had considered and rejected pursuing self-defense prior to pleading guilty because he had not wanted to risk being tried and convicted. U.S. v. Bender, 516 Fed.Appx. at 293. Therefore, that issue should not be revisited by the this court. Fields, 761 F.3d at 482. Moreover, Bender has not explained what elements of self defense he did not understand when he pleaded guilty and how that affected his plea.

At his sentencing, Bender testified (Doc. 91, p. 49/58):

"And I pled guilty, like I told you originally, because of the circumstances that were involved in this case, that I didn't want to take my chance of going to trial and trying to have a self-defense case or something and then be convicted or whatever, because the point is, I did ultimately stab at them inmates or stab those inmates."


Since, as found by the Fifth Circuit Court of Appeals, Bender cannot show there is a reasonable probability that he would not have pleaded guilty had he been advised by his attorney as to the standards for proving self defense, Bender has not shown that he had ineffective assistance of counsel. This ground for relief is meritless.

3. Hospital Reports

Next, Bender contends his trial counsel was ineffective for failing to obtain the actual hospital reports on the two victims to show whether they were injured and the extent of their injuries.

Bender was convicted of assault with a dangerous weapon, 18 U.S.C. § 133(a)(3), which is: "assault with a dangerous weapon, with intent to do bodily harm." See United States v. Estrada-Fernandez, 150 F.3d 491, 494 (5th Cir. 1998). Physical contact with the victim is not an element of assault with a dangerous weapon. Estrada-Fernandez, 150 F.3d at 494. Therefore, the question of whether or not the victims, Dickerson and Harmon, were actually injured by Bender does not affect Bender's guilty plea.

Although Bender contends there is a question as to whether Harmon and Dickerson were injured, he admitted at his sentencing that he stabbed both Dickerson and Harmon. Therefore, there does not appear to be any real contention that the victims were not actually injured to some extent.

"In summary, I'd like to state that I do fully admit to stabbing both Dickerson and Harmon; however, I never had any intention at any time to stab or fight Harmon or Dickerson, nor did I ever initiate any such activity." (Doc. 91, p. 21/58).

Bender received a four-point sentencing guidelines enhancement for having injured the victims (Doc. 77; Doc. 91, p. 9/58). The presentence report initially gave a five-point enhancement due to the severity of the injuries (Doc. 77). On review, the enhancement was reduced to four points, since the severity of the injuries was not proven (Doc. 77).

At his sentencing, Bender admitted that he stabbed Dickerson and Harmon. On direct appeal, the Fifth Circuit found that both Dickerson and Harmon suffered some injuries and received outside medical care.

Since Bender admitted that he stabbed Dickerson and Harmon, he apparently inflicted some kind of injuries and he received a sentence enhancement for having inflicted non-severe injuries. Therefore, Bender cannot now complain about his sentence enhancement for having inflicted non-severe injuries which he admits he inflicted.

This ground for relief is meritless.

4. Uncalled Witnesses

Bender contends his counsel was ineffective for failing to interview any defense witnesses, including the victims, which would have shown Bender was defending himself. Bender contends he gave defense counsel a list of thirty inmates and ten staff members-people whom, he alleges, would be positive witnesses for him. Bender further contends he obtained about ten affidavits himself and gave them to his attorney. Bender contends his attorney admitted that he did not contact any of them. Bender contends he lived in relative isolation in the SHU during the entire eighteen months from the date of the incident to the conclusion of his court proceedings and that, when his attorney told him he was not going to interview the inmates and staff he had listed as potential defense witnesses, Bender gave up and agreed to the plea bargain when it was offered.

Counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. Nelson v. Harqett, 989 F.2d 847, 850 (5th Cir. 1993), citing Strickland v. Washington, 466 U.S. 668, 691, 104 S.Ct. 1052, 2066 (1984). However, bare allegations do not suffice. A defendant who alleges a failure to investigate on the part of his counsel must allege with specificity what the investigation would have revealed and how it would have altered the outcome of the trial. Nelson, 989 F.2d at 850, citing United States v. Green, 882 F.2d 999, 1003 (5th Cir. 1989). Complaints of uncalled witnesses are not favored because the presentation of testimonial evidence is a matter of trial strategy and because allegations of what a witness would have testified are largely speculative. Graves v. Cockrell, 351 F.3d 143, 155 (5th Cir. 2003), amended in other part, 351 F.3d 156 (5th Cir. 2003), cert. den., 124 S.Ct. 2160 (U.S. 2004), citing Buckelew v. United States, 575 F.2d 515, 521 (5th Cir. 1978). Also, Boyd v. Estelle, 662 F.2d 388, 390 (5th Cir. 1981). Where the only evidence of a missing witness's testimony is from the defendant, the Court views claims of ineffective assistance with great caution. Sayre v. Anderson, 238 F.3d 631, 636 (5th Cir. 2001), citing Lockhart v. McCotter, 782 F.2d 1275, 1282 (5th Cir.1986), cert. den., 479 U.S. 1030, 107 S.Ct. 873 (1987). Unless a petitioner provides the court with affidavits (or similar matter) from the alleged favorable witnesses suggesting what they would have testified to, claims of ineffective assistance of counsel fail for lack of prejudice. Sayre, 238 F.3d at 636.

In the case at bar, Bender submitted eleven affidavits from inmates who were incarcerated in USP-Pollock in 2009, when Bender and Brum assaulted Harmon and Dickerson (Doc. 111). Some of those affidavits set forth the circumstances under which Bender was asked by Dickerson and Harmon to meet with them and indicate Bender's lack of prior planning or intent to harm Dickerson and Harmon. Other affidavits explain the arrangement purportedly prevailing at USP-Pollock between the inmates and the prison officials, which indicates some self-policing by the inmate groups in order to facilitate cooperation between the diverse groups of inmates; those affidavits purport to explain why Bender (on behalf of his group of non-gang affiliated whites) was involved in having Harmon (a convicted child molester) placed in the SHU.

Inmate Harmon's and Inmate Dickerson's 2009 affidavits state that Bender did not assault them and they do not want to be witnesses for the government (Doc. 111, Exs. B & C).
Inmate Owens' (undated) affidavit states that he heard his cellmate, Curtis, say that inmates Dickerson and Harmon had both said Bender did not assault them (Doc. 111, Ex. D).
Inmate Curtis' (undated) affidavit states that both Harmon and Dickerson told him Bender did not assault them (Doc. 111, Ex. E).
Inmate Chen's 2009 affidavit states that Dickerson told him that Bender did not assault Dickerson or Harmon (Doc. 111, Ex. F).
Inmate Staine's 2009 affidavit states that Dickerson told him that Bender did not assault Dickerson or Harmon (Doc. 111, Ex. G).
Inmate Jordon's 2013 affidavit states that he was playing handball with Bender when Bender was summoned to go and speak to another inmate (Harmon), and that he would have testified in Bender's defense but Bender's attorney never contacted him (Doc. 111, Ex. H).
Inmates Hymes' 2013 affidavit explains the self-policing agreement between USP-Pollock inmates and the prison staff (which was a result of a large-scale prison riot in 2007) to facilitate cooperation between the diverse groups of inmates, why (according to the agreement) inmate Harmon had to stay in the SHU, why (according to the agreement) Bender was involved in having Harmon put in the SHU, what the consequences would be if Harmon was not placed in the SHU, that Hymes would have testified in Bender's defense, and that Bender's attorney never contacted him (Doc. 111, Ex. I).
Inmate Dunn's 2013 affidavit explains Bender's role in having Harmon placed in the SHU, what the consequences would be in Harmon was not placed in the SHU, the fact that Bender was playing hardball outside when Harmon asked to talk to Bender, that Bender did not intend to assault Harmon, that Dunn would have testified in Bender's defense, and that Bender's attorney never contacted Dunn about Bender's defense (Doc. 111, Ex. J).
Inmate Pappas' 2013 affidavit explains the self-policing agreement between USP-Pollock inmates and the prison staff (which was a result of a large-scale prison riot in 2007) to facilitate cooperation between the diverse groups of inmates, why (according to the agreement) inmate Harmon had to stay in the SHU, why (according to the agreement) Bender was involved in having Harmon put in the SHU, what the consequences would be to Bender and Bender's group (non-gang affiliated whites) if Harmon was not placed in the SHU, that Pappas had reminded Bender and his group of those consequences if they failed to have Harmon returned to the SHU within 24 hours, and that Pappas would have testified in Bender's defense but Bender's attorney never contacted him (Doc. 111, Ex. K).
Inmate Miller's 2013 affidavit explains the self-policing agreement between USP-Pollock inmates and the prison staff (which was a result of a large-scale prison riot in 2007) to facilitate cooperation between the diverse groups of inmates, why (according to the agreement) inmate Harmon had to stay in the SHU, why Bender and his group were responsible for having Harmon put in the SHU, that he saw and spoke to Bender before the incident took place and Bender was not behaving out of character and was not armed, and that he would have testified in Bender's defense and helped his attorney find additional defense witnesses, but Bender's attorney never contacted him (Doc. 111, Ex. L).

According to the affidavits from Hymes, Dunn, Pappas and Miller (Doc. 111), after the 2007 prison riot, part of the agreement between the inmates and the prison administration was to have the inmate groups help police their own members, including having "unacceptable" inmates taken out of general population. Harmon, a convicted child molester and thus an "unacceptable" inmate, was part of Bender's group of non-gang affiliated whites and, therefore, Bender's group was responsible for making sure that Harmon was put in the SHU. Hymes, Dunn, Pappas and Miller also state in their affidavits that, although Harmon was initially housed in the SHU, he was returned to general population, at which point other group leaders told Bender that his group had 24 hours to arrange for Harmon to return to the SHU; if they failed to do so, all of the other groups would attack Bender's group (Doc. 111). Later that day, Harmon sent another inmate to ask Bender to go and speak with him, and Bender went.

The inmates who would have testified on Bender's behalf would, according to their affidavits (Doc. 111), have testified that Bender was not armed, had not planned in advance to meet with Harmon, and was not planning to assault Harmon and Dickerson. However, none of the affiants state they witnessed the incident, none of the affiants indicate that Bender acted in self-defense, and Bender admitted that he stabbed Harmon and Dickerson. Although Harmon and Dickerson state in their affidavits that Bender did not assault them and they would not participate in his criminal trial, that does not indicate that Bender acted in self-defense.

Therefore, assuming for purposes of this motion that Bender's attorney did not contact any defense witnesses, Bender has not carried his burden of proving there is a reasonable probability that, had his attorney contacted his witnesses, Bender would have gone to trial (instead of pleading guilty) and that his witnesses' testimony would have resulted in a not guilty verdict.

This ground for relief is meritless.

5. Discovery

Next, Bender contends he had ineffective assistance of counsel because his attorney failed to secure discovery materials such as FBI reports, criminal records of everyone involved, institutional reports of the assault, and hospital records.

Counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. Nelson, 989 F.2d at 850. A determination of whether an investigation is reasonably adequate depends upon a variety of factors, including the number of issues in the case, the relative complexity of those issues, the strength of the Government's case, and the overall strategy of trial counsel. Baldwin v. Maggio, 704 F.2d 1325, 1333 (5th Cir. 1983), cert. den., 467 U.S. 1220, 104 S.Ct. 1669 (1984). Under Strickland, even where trial counsel has failed to adequately investigate a case, a defendant must demonstrate that he has been prejudiced by his counsel's failure. See Lockhart v. McCotter, 782 F.2d 1275, 1282 (5th Cir.1986), cert. den., 479 U.S. 1030, 107 S.Ct. 873 (1987). To show prejudice, the petitioner must prove that an alleged breach of his attorney's duty to investigate resulted in an actual and substantial disadvantage to the course of his defense. Baldwin, 704 F.2d at 1333.

First, although there are no discovery requests filed in the record of this case, it is the usual practice in the local United States Attorney's office for the Assistant United States Attorney in charge of the case to open his or her file to defense counsel and provide copies of everything in the file, without defense counsel having to file a request for discovery. While this practice simplifies handling a case for busy defense and government attorneys, it does tend to mislead defendants into believing their counsel did not do anything to prepare their defense and makes it difficult for the courts to assess what was done.

Second, Bender has not alleged what discovery material his defense counsel failed to obtain and how it would have assisted his defense. As already noted, Bender stated at his sentencing that he had decided not to take the chance of going to trial and presenting a defense of self-defense.

Therefore, this ground for relief is also meritless.

6. Clear Photographs

Bender contends his counsel was ineffective for failing to provide clear pictures of the incident for evidence. However, Bender has not stated what clearer photographs would have shown and how they would have changed the outcome of his proceedings.

This ground for relief is also meritless.

7. FBI Agent's Testimony

Bender contends he had ineffective assistance of counsel because his attorney failed to properly question the FBI agent who testified at Bender's guilty plea proceeding. Bender has not carried his burden of proving what questions should have been asked, what responses they would have elicited, and how those responses would have changed the outcome of his guilty plea proceeding.

It is noted that Bender's counsel asked the agent, who testified as to what he saw on a prison video that had recorded part of the incident, whether the video showed what occurred in the cell; the agent responded that the video did not show anything that had occurred in the cell and only showed the inmates continuing their fight outside of the cell (Doc. 89, p. 25/30). Bender's attorney then elicited testimony that made it clear that the video did not show that Bender was the aggressor.

Since Bender has not carried his burden of proving hd had ineffective assistance of counsel, this ground for relief is meritless.

Conclusion

Based on the foregoing discussion, IT IS RECOMMENDED that Bender's Section 2255 motion should be DENIED AND DISMISSED WITH PREJUDICE.

Under the provisions of 28 U.S.C. Section 636(b)(1)(C) and Rule 72 (b), parties aggrieved by this recommendation have fourteen (14) days from service of this Report and Recommendation to file specific, written objections with the Clerk of Court. A party may respond to another party's objections within fourteen (14) days after being served with a copy of any objections or response to the District Judge at the time of filing. No other briefs (such as supplemental objections, reply briefs etc.) may be filed. Providing a courtesy copy of the objection to the magistrate judge is neither required nor encouraged. Timely objections will be considered by the district judge before he makes a final ruling.

Failure to file written objections to the proposed factual findings and/or the proposed legal conclusions reflected in this Report and Recommendation within fourteen (14) days following the date of its service, or within the time frame authorized by Fed.R.Civ.P. 6(b) , shall bar an aggrieved party from attacking either the factual findings or the legal conclusions accepted by the District Court, except upon grounds of plain error. See Douglass v. United Services Automobile Association , 79 F.3d 1415 (5 th Cir. 1996).

Pursuant to Rule 11(a) of the Rules Governing Section 2255 proceedings for the United States District Courts, this court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant. Unless a Circuit Justice or District Judge issues a certificate of appealability, an appeal may not be taken to the court of appeals. Within fourteen (14) days from service of this Report and Recommendation, the parties may file a memorandum setting forth arguments on whether a certificate of appealability should issue. See 28 U.S.C. § 2253(c)(2). A courtesy copy of the memorandum shall be provided to the District Judge at the time of filing.

THUS DONE AND SIGNED in Alexandria, Louisiana on the 13th day of July 2015.

/s/_________

JAMES D. KIRK

UNITED STATES MAGISTRATE JUDGE

APPENDIX A

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Summaries of

United States v. Bender

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA ALEXANDRIA DIVISION
Jul 13, 2015
CIVIL ACTION NO. 09-CR-00232 (W.D. La. Jul. 13, 2015)
Case details for

United States v. Bender

Case Details

Full title:UNITED STATES OF AMERICA v. JEREMY BENDER

Court:UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA ALEXANDRIA DIVISION

Date published: Jul 13, 2015

Citations

CIVIL ACTION NO. 09-CR-00232 (W.D. La. Jul. 13, 2015)