Opinion
Criminal Action Number 98-165-C.
November 4, 2004
RULING ON PETITIONER'S MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE
This matter is before the court on the Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 filed on behalf of petitioner Bobby Johnson.
Record document numbers 1995 and 2010.
Petitioner was found guilty of extortion, wire fraud, making false statements and interstate communication in aid of racketeering violations by a jury in the United States District Court for the Middle District of Louisiana. Judgment was imposed on January 12, 2001. Petitioner's conviction was affirmed on appeal. United States v. Bobby Johnson, 303 F.3d 606 (5th Cir. 2002), cert. denied, 537 U.S. 1192, 123 S.Ct. 1272, 154 L.Ed.2d 1025 (2003).
Petitioner's § 2255 motion was filed timely. No evidentiary hearing is required.
Petitioner raised the following grounds for relief in his § 2255 motion: (1) he was denied due process and a fair trial by the jurors' exposure to prejudicial extraneous material and by juror misconduct reflecting juror bias; (2) he was denied due process because the trial judge was not impartial and presided over his criminal case while impaired in function; and (3) he was denied effective assistance of counsel.
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; and (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255; Hill v. United States, 368 U.S. 424, 426-27, 82 S.Ct. 468, 470-71, 7 L.Ed.2d 417 (1962).
Ground 1: Exposure to Extraneous Material and Juror Bias
In the first ground for relief, the petitioner argued that he was denied due process and a fair trial by the jurors' exposure to prejudicial extraneous material and by juror misconduct reflecting juror bias.
In the first component of this claim, the petitioner argued that during deliberations, Juror 68 advised a deputy marshal that he was intimidated by another juror who stated that if the jury did not reach a unanimous verdict, the jurors would probably go to jail. Petitioner further argued that the court failed to advise defense counsel that the juror made the prejudicial comment.
A district court can invoke the procedural bar sua sponte in a § 2255 case. United States v. Willis, 273 F.3d 592 (5th Cir. 2001). A movant is barred from raising jurisdictional and constitutional claims for the first time on collateral review unless he demonstrates cause for failing to raise the issue on direct appeal and actual prejudice resulting from the error. United States v. Pierce, 959 F.2d 1297, 1301 (5th Cir.), cert. denied, 506 U.S. 1007, 113 S.Ct. 621, 121 L.Ed.2d 554 (1992). No other types of errors may be raised on collateral review unless the movant demonstrates that "the error could not have been raised on direct appeal, and if condoned, would result in a complete miscarriage of justice." Id. (internal quotations and citation omitted).
Petitioner's argument that he was precluded from raising this claim on appeal because the letter prepared by counsel for Juror Number 68 setting forth the specific nature of Juror Number 68's intimidation was placed under seal in a separate miscellaneous file is simply not persuasive. A review of the record showed that the petitioner was aware of Juror 68's complaint of intimidation and his conversation with the Deputy Marshal before direct appeal. Moreover, the trial court conducted extensive juror interviews addressing alleged juror misconduct, including Juror Number 68's intimidation complaint. Petitioner's exposure to prejudicial extraneous material claim as it relates to Juror Number 68's complaint of intimidation is procedurally barred.
Even if the claim were not procedurally barred, it is nonetheless without merit.
In any trial there is initially a presumption of jury impartiality. United States v. O'Keefe, 722 F.2d 1175, 1179 (5th Cir. 1983); accord United States v. Winkle, 587 F.2d 705, 714 (5th Cir.), cert. denied, 444 U.S. 827, 100 S.Ct. 51, 62 L.Ed.2d 34 (1979). This presumption may be attacked, and prejudice may be shown through evidence that the extrinsic factual matter tainted the jury's deliberations. United States v. Ruggiero, 56 F.3d 647, 652 (5th Cir.), 516 U.S. 979, 116 S.Ct. 486, 133 L.Ed.2d 413 (1995) ( citing O'Keefe, 722 F.2d at 1179); accord Winkle, 587 F.2d at 714; United States v. Howard, 506 F.2d 865 (5th Cir. 1975).
When "a colorable showing of extrinsic influence appears, a court must investigate the asserted impropriety." Ruggiero, 56 F.3d at 652 ( quoting Winkle, 587 F.2d at 714); accord United States v. Sanchez-Sotelo, 8 F.3d 202, 212 (5th Cir. 1993), cert. denied, 511 U.S. 1023, 114 S.Ct. 1410, 128 L.Ed.2d 82 (1994).
When extrinsic evidence is introduced into the jury room, a defendant is entitled to a new trial "unless there is no reasonable possibility that the jury's verdict was influenced by the material that improperly came before it." United States v. Luffred, 911 F.2d 1011, 1014 (5th Cir. 1990) (quoting Llewellyn v. Stynchcombe, 609 F.2d 194, 195 (5th Cir. 1980)); accord Sanchez-Sotelo, 8 F.3d at 212; United States v. Ortiz, 942 F.2d 903, 913 (5th Cir. 1991), cert. denied, 504 U.S. 985, 112 S.Ct. 2966, 119 L.Ed.2d 587 (1992); Winkle, 587 F.2d at 714. However, not every intrusion on the jury creates a rebuttable presumption of prejudice to the defendant. Only when the court determines that prejudice is likely should the government be required to prove its absence. Sylvester, 143 F.3d 923, 932-34 (5th Cir. 1998). To exercise this discretion properly, a district court must examine the complained-of intrusion on the jury and determine whether it is of a nature and degree that is likely to have a prejudicial effect. United States v. Smith, 354 F.3d 390, 395 (5th Cir. 2003), cert. denied, ___ U.S. ___, 124 S.Ct. 1698, 158 L.Ed.2d 386 (2004).
The record evidence showed the following. Jury deliberations commenced on April 24, 2000. On May 2, 2000, the court conducted an investigation into possible juror misconduct, including Juror Number 68's allegations of juror intimidation during deliberations. Each juror was questioned by the court with counsel for the government and the defendants present. On May 4, 2000, Juror Number 68 was removed for cause. Following his removal, and purportedly in response to assertions made by the government in its opposition to the defendants' motion for a judgment of acquittal or new trial, Juror Number 68 obtained legal representation. In a letter dated October 2, 2000, counsel for Juror Number 68 advised the court that Juror Number 68 desired to bring to the Court's attention what Juror Number 68 believed to be serious misconduct by jurors during deliberations.
Record document 1896, transcript pgs. 103-278.
The district court's finding that Juror 68 should be dismissed for just cause because he displayed a lack of candor and was unable to follow instructions was clearly supported. United States v. Edwin Edwards, et al 303 F.3d 606, 631-32 (5th Cir. 2002), cert. denied, 537 U.S. 1192, 123 S.Ct. 1272, 154 L.Ed.2d 1025 (2003).
The October 2, 2000 letter was placed under seal in a miscellaneous record. Sealed v. Sealed, 00-38-B. On October 23, 2000, the defendants' motion for disclosure of information related to Juror Number 68 was filed in in 00-38-B. On October 30, 2000, the court ordered copies of the October 2, 2000 letter be released under seal to counsel for the government and the defendants.
On November 8, 2000, the defendants filed a motion for inquiry involving Juror Number 64, the jury foreman. Defendants' brief in support of the motion for inquiry and the government's opposition to the defendants' motion were filed under seal.
Record document number 1624.
See record document numbers 1625 and 1627, respectively.
On December 6, 2000, the defendants filed a motion to place the October 2, 2000 letter into the record and to conduct an inquiry into allegations raised in that letter. The motion and supporting memorandum were filed under seal.
Record document numbers 1663 and 1664.
On December 6, 2000, a hearing was held in chambers with counsel present on the investigation of the alleged misconduct of Juror Number 64 and on the allegations made in the defendants' December 6 motion. Insofar as the defendants' December 6 motion sought to have the October 2, 2000 letter filed into the record, the motion was denied.
Record document number 1696, transcript pgs. 159-209.
Record document number 1696, transcript p. 206.
On December 7, 2000, the hearing on the investigation of alleged juror misconduct continued. Witnesses were called to testify regarding alleged juror misconduct, including Juror Number 64. The court found no factual or legal basis to find Juror Number 64 engaged in improper conduct. Additionally, the court determined that no further investigation was required on the conduct of the jury or any particular juror.
Record document number 1697, transcript pgs. 150-214, 249-261.
Record document number 1697, transcript p. 260.
Record document number 1697, transcript p. 261.
The court's investigation into juror misconduct specifically addressed whether any juror was subjected to threats, including Juror Number 68's allegations that the jury foreman had intimidated other jurors with comments that the jury might go to jail if they did not render a unanimous verdict. Each juror was interrogated and denied being intimidated by the jury foreman. The court found there was no juror misconduct.
Petitioner has not established a colorable showing of extrinsic influence on the jury. Moreover, even if the comment were from an extrinsic source, there is no reasonable possibility that the jury's verdict was influenced by the comment.
Petitioner argued two other specific instances of exposure to prejudicial extraneous material or outside influence. First, the petitioner argued that, according to Juror Number 68, a number of jurors indicated that they had watched television, read newspapers, and spoke to others about the case. In the second instance, the petitioner argued that, according to Juror Number 68, one juror's spouse attended the proceedings and reported on what happened in the courtroom while the jurors were excused to the jury room.
Petitioner based this aspect of his exposure to prejudicial extraneous material claim on Juror Number 68's unsworn statements made in a January 24, 2001 press interview.
In the interview conducted on January 24, 2001, Juror Number 68 stated that jurors were in fact watching television and reading newspapers. Specifically, Juror Number 68 stated the following:
"When certain witnesses would testify, they would come back the next day and say they saw so-and-so. I can't remember exactly the instances they said and I didn't pay attention to those instances because I didn't know that in the future they were going to nit-pick any and every little thing that I did."
Defendants' exhibit 17, Interview Transcript, p. 5.
Juror Number 68 conceded during the interview that he could not recount any specific instance where a particular juror admitted to having read newspapers or watched television. Under these circumstances, any specific recollection now, nearly four years after Juror Number 68 was removed from the jury, would be suspect and unreliable.
In the interview, Juror Number 68 also stated that one juror spoke to a neighbor about the case. Specifically, Juror Number 68 stated the following:
"There was one particular juror, the same juror that questioned the alternates, who said that they had a friend they would walk with at home in the evenings. Her friend would call her by name and say, "I know you're not supposed to talk about the trial but you know they're guilty." And the juror responded by saying `I know.'"
Defendants' exhibit 17, Interview Transcript, p. 5.
Finally, in the interview, Juror Number 68 stated that a juror's spouse attended the proceedings one day. Juror Number 68 stated the following:
"One juror had his spouse come into the courtroom one day to observe what was going on. At times the jury would be dismissed out the courtroom, judge's orders, you know. We didn't know what was going on during that period of time. He dismissed us for a few moments. Maybe an argument was going on or something. I don't know. Anyway, his spouse sat out there and she was going to let him know what went on while we were out of the jury room. And the next day he came back and told us that there was nothing that went on. I think the judge and the attorneys went into his chambers or something. They went out of the courtroom. There was nothing that went on that day. That's what she told him."
Defendants' exhibit 17, Interview Transcript, p. 2.
None of these allegations are sufficient to establish a colorable showing of extraneous prejudicial information. Petitioner has failed to demonstrate that outside influences were brought to bear on the jury.
In the second component of this claim, the petitioner argued that he was denied due process and a fair trial by juror misconduct reflecting juror bias. Based on Juror Number 68's unsworn statements made in the January 24, 2001 press interview, the petitioner argued that prior to deliberations several jurors made comments which were intended "to coerce a guilty verdict."
A jury should not be exposed to post-verdict fishing expeditions into their mental processes with the hope that something will turn up. United States v. Blackburn, 446 F.2d 1089 (5th Cir. 1971), 404 U.S. 1017, 92 S.Ct. 679, 30 L.Ed.2d 665 (1972). Inquiries that seek to probe the mental process of jurors . . . are impermissible. Llewellyn v. Stynchcombe, 609 F.2d at 196. However, a juror may impeach the jury's verdict with evidence that the verdict was influenced by outside sources. See Mattox v. United States, 146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917 (1892).
Rule 606(b) of the Federal Rules of Evidence provides the following:
Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.
Rule 606(b) bars juror testimony regarding the following four topics: (1) the method or arguments of the jury's deliberations, (2) the effect of any particular thing upon an outcome in the deliberations, (3) the mindset or emotions of any juror during deliberations, and (4) the testifying juror's own mental process during the deliberations. Ortiz, 942 F.2d at 913.
A convicted defendant is not entitled to probe into the function of the jury unless he makes a substantial showing that some kind of outside influence may have tainted the jury's deliberations. United States v. Cauble, 532 F.Supp. 804 (E.D. Texas 1982), aff'd 757 F.2d 282 (5th Cir. 1985), cert. denied, 474 U.S. 994, 106 S.Ct. 406, 88 L.Ed.2d 357 (1985). Pressure from other jurors is not considered an "outside influence," and an affidavit or other evidence concerning such pressure is inadmissible. United States v. Straach, 987 F.2d 232, 241-242 (5th Cir. 1993); United States v. Vincent, 648 F.2d 1046, 1049-50 (5th Cir. 1981).
Consideration of the petitioner's remaining allegations regarding comments by jurors reflecting juror bias are prohibited by Rule 606(b). Although the alleged comments did not occur during formal jury deliberations, the statements are inadmissible because they relate to the jurors mental processes or mindset with respect to the verdict. See United States v. Ortiz, 942 F.2d 903, 913 (5th Cir. 1991), 504 U.S. 985, 112 S.Ct. 2966, 119 L.Ed.2d 587 (1992).
Finally, the petitioner argued that he was denied due process and a fair trial by Juror Number 334's failure to disclose prior contacts with Edwin and Stephen Edwards. Specifically, the petitioner argued that Juror Number 334 failed to "honestly disclose her efforts to enlist the help of the Edwardses" and failed "to candidly reveal her prior contacts with Edwin and Stephen Edwards."
The proper time to discover juror prejudice is when the jury is being selected and peremptory challenges are available to the attorneys. United States v. Duzac, 622 F.2d 911, 913 (5th Cir.), cert. denied, 449 U.S. 1012, 101 S.Ct. 570, 66 L.Ed.2d 471 (1980). A jury's verdict may not be disturbed if it is later learned that personal prejudices were not put aside during deliberations. Id. Ground 2: Denial of Due Process and Fair Trial
In the second ground for relief, the petitioner argued that the trial judge was (1) not impartial, and (2) suffered from a mental and physical impairment is his ability to function which resulted in a denial of due process and a fair trial.
In the first component of his due process claim, the petitioner argued that the trial judge was not impartial. Specifically, the petitioner argued that the decision by the trial judge to allot the case to himself, to preside over the case while impaired in his ability to function, to fail to disclose his physical and mental impairment, and to deny the petitioner's motion to recuse, in aggregate establish partiality.
Litigants have a due process right to "an impartial and disinterested tribunal in both civil and criminal cases." Marshall v. Jerrico, Inc., 446 U.S. 238, 242, 100 S.Ct. 1610, 64 L.Ed.2d 182 (1980). Impartiality in the judicial context is the lack of bias for or against a party to the proceeding. Republican Party of Minnesota v. White, 536 U.S. 765, 775-776, 122 S.Ct. 2528, 2535, 153 L.Ed.2d 694 (2002). Impartiality guarantees a party that the judge who hears his case will apply the law to him in the same way he applies it to any other party. Id. The impartiality guaranteed to litigants adheres to a core principle that "[N]o man is permitted to try cases where he has an interest in the outcome." In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955).
An impartial judge is essential to due process. Tumey v. Ohio, 273 U.S. 510, 523, 531-534, 47 S.Ct. 437, 71 L.Ed. 749 (1927) (judge violated due process by sitting in a case in which it would be in his financial interest to find against one of the parties); In re Murchison, 349 U.S., at 137-139, 75 S.Ct., at 625-627 (judge violated due process by sitting in the criminal trial of defendant whom he had indicted); Johnson v. Mississippi, 403 U.S. 212, 215-216, 91 S.Ct. 1778, 29 L.Ed.2d (1971) ( per curiam) (judge violated due process by sitting in a case in which one of the parties was a previously successful litigant against him); Bracy v. Gramley, 520 U.S. 899, 905, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997) (would be a due process violation if a judge was disposed to rule against defendants who did not bribe him in order to cover up the fact that he regularly ruled in favor of defendants who did bribe him).
A litigant is deprived of due process where the judge who hears his case has a "direct, personal, substantial, and pecuniary" interest in ruling against him. Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 824, 106 S.Ct. 1580, 89 L.Ed.2d 823 (1986). The interest need not be direct, but may stem from the judge's knowledge that his success and tenure in office depend on certain outcomes. Ward v. Monroeville, 409 U.S. 57, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972) (due process violated where fines collected from guilty defendants constituted large part of a village's finances, from which the judge, who also served as the village mayor, was responsible). Due process does not require a showing that the judge is actually biased as a result of his self-interest. Rather, "justice must satisfy the appearance of justice." In re Murchison, 349 U.S., at 136, 75 S.Ct., at 625.
Petitioner failed to establish that the trial judge had a "direct, personal, substantial, and pecuniary" interest in presiding over the petitioner's criminal case. Petitioner's argument that the trial judge "specifically assign[ed] this highly public case to himself" is not supported by the record which showed that all three United States District Judges for the Middle District of Louisiana signed an en banc order which assigned the petitioner's criminal case to the trial judge. Moreover, the fact that the trial judge did not avoid his judicial duties, including presiding over the petitioner's criminal trial, after sustaining injuries in an automobile accident 20 months prior to the petitioner's indictment simply does not support the petitioner's claim of judicial partiality. Finally, the petitioner's argument that his judicial partiality claim is supported by the trial judge's failure to divulge his medical information to him is patently frivolous. Petitioner's due process claim based on judicial bias is without merit.
There is no statute that requires random case assignment. Congress delegated the power over assignments to the District Courts. 28 U.S.C. § 137. ("The business of a court having more than one judge shall be divided among the judges as provided by the rules and orders of the court."). There is no constitutional basis for such a requirement. See, e.g., United States v. Keane, 522 F.2d 534, 557 (7th Cir. 1975), cert. denied 424 U.S. 976, 96 S.Ct. 1481, 47 L.Ed.2d 746 (1976) (rejecting argument that due process requires that a criminal case be randomly assigned).
District judges may by rule, order or consent assign the cases between themselves. United States v. Stone, 411 F.2d 597, 598 (5th Cir. 1969). Indeed, there are well-established exceptions to the general practice of random assignment. Assigning related matters to the same judge is one of the most recognized. See, e.g., III Guide to Judiciary Policies and Procedures: Judges Manual, Sec. A, Ch. 4, Part B (2002) ("Many courts have also implemented special procedures . . . for assuring that related cases are all assigned to the same judge."). Each judge of a multi-judge court has the same power and authority as each other judge. United States v. Stone, 411 F.2d at 598.
Petitioner did not challenge the allotment of his criminal case as a separate ground for relief. Nor could he since the claim is procedurally barred. (A section 2255 movant who fails to raise a constitutional or jurisdictional issue on direct appeal waives the issue for a collateral attack on his conviction, unless there is cause for the default and prejudice as a result. United States v. Kallestad, 236 F.3d 225, 227 (5th Cir. 2000)).
In the second component of his due process claim, the petitioner argued that he was denied due process and a fair trial because the trial judge was mentally and physically impaired during crucial portions of the criminal proceedings.
Petitioner argued that the district judge who presided over his criminal prosecution was involved in an automobile accident 20 months before the petitioner was indicted. Petitioner argued that the trial judge filed a lawsuit in state court seeking monetary damages for injuries, mental anguish, and impairment of function resulting from the accident. Relying on press reports of medical information contained in the sealed proceedings, the petitioner argued that the presiding judge was prescribed, and presumably took, narcotic painkillers during a time when pretrial proceedings were held resulting in a denial of due process.
Petitioner has not cited, nor has the court found, any jurisprudence on point. Rather, the petitioner relied on a line of cases holding that a criminal defendant under the influence of alcohol or drugs may be deemed temporarily incompetent for purposes of entering a guilty plea. Petitioner argued that if a court must be assured that a criminal defendant taking medication is capable of entering a plea, then conversely, a criminal defendant is "entitled" to know whether the presiding judge "is capable of making informed decisions."
Petitioner's reliance on a Ninth Circuit panel opinion which, on rehearing was withdrawn by the court sitting en banc is simply not persuasive. More importantly, the facts in the cited case are inapposite.
Due process implies a tribunal mentally competent to afford a hearing. Jordan v. Massachusetts, 225 U.S. 167 (1912). In the context of juror competency, the law is well settled that a jury's verdict will be set aside only if the defendant presents "clear evidence of a juror's incompetence to understand the issues and deliberate at the time of his service." United States v. Doguardi, 492 F.2d 70, 78 (2d Cir. 1974), cert. denied, 419 U.S. 873, 95 S.Ct. 134, 42 L.Ed.2d 112 (1974). If a juror's mental competence is to be attacked at the late stage offered by a habeas corpus proceeding, the charge must be made in much more certain terms and not on a tentative basis. United States ex rel. Daverse v. Hohn, 198 F.2d 934, 938 (3d Cir.), cert. denied, 344 U.S. 913, 73 S.Ct. 336, 97 L.Ed 704 (1953). A fishing expedition into a juror's competency may not be employed as a basis to attack a conviction valid on its face. Id. "[A]bsent . . . substantial if not wholly conclusive evidence of incompetency, courts have been unwilling to subject a juror to a hearing on his mental condition merely on the allegations and opinions of a losing party." Doguardi, 492 F.2d at 80. When faced with allegations that a juror was mentally incompetent, "courts have refused to set aside a verdict, or even to make further inquiry, unless there be proof of an adjudication of insanity or mental incompetence closely in advance . . . of jury service," or proof of "a closely contemporaneous and independent post-trial adjudication of incompetency." Tanner v. United States, 483 U.S. 107, 119, 107 S.Ct. 2739, 2747, 97 L.Ed.2d 90 (1987); Doguardi, 492 F.2d at 80; United States v. Allen, 588 F.2d 1100, 1106-07 (5th Cir.), cert. denied 441 U.S. 965, 99 S.Ct. 2415, 60 L.Ed.2d 1071 (1979); Sullivan v. Fogg, 613 F.2d 465, 467 (2d Cir. 1980).
Petitioner failed to point to any facts that raise a bona fide doubt as to the mental or physical competency of the trial judge during criminal proceedings. Petitioner's argument that the trial judge's "impairment of function" may have "rendered him unable to concentrate, think clearly, or make rational decisions" is weak, conclusory, wholly unsupported by the record, and fails to evidence a physical or mental infirmity as contemplated by the courts in Jordan and its progeny. Under these circumstances, further inquiry into the trial judge's competency through discovery or an evidentiary hearing is not warranted.
Petitioner relied on a single statement by the trial judge as illustrative of his "volatility." The trial judge's statement consisted of nothing more than an admonition to the parties and their counsel to maintain courtroom decorum and in no way supports a finding of mental or physical incompetency.
Ground 3: Ineffective Assistance of Counsel
In the third ground for relief, the petitioner argued that he was denied effective assistance of counsel at sentencing. Specifically, the petitioner argued that sentencing counsel failed to present proof that would have lowered his sentencing loss calculations.
Petitioner addressed claims in his reply memorandum which were not raised in either his original or supplemental § 2255 motions. Petitioner's reply memorandum shall not be treated as a second amended § 2255 motion.
First, the petitioner argued that the circumstances of his case warrant application of the presumption of prejudice acknowledged in United States v. Cronic, 466 U.S. 648, 658-60, 104 S.Ct. 2039, 2046-47, 80 L.Ed.2d 657 (1984). Specifically, the petitioner asserted that he was constructively denied counsel during sentencing by counsel's failure to introduce specific affidavit and witness testimony regarding the amount of loss attributable to the petitioner. One of the witnesses identified by the petitioner is co-trial counsel Ernest Johnson.
The Supreme Court in Cronic recognized that in rare instances it may be appropriate to presume prejudice "without inquiry into counsel's actual performance at trial," because the circumstances "are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified." Cronic, 466 U.S. at 658, 662, 104 S.Ct. at 2046, 2048. The Supreme Court identified three situations implicating the right to counsel where prejudice is presumed. Bell v. Cone, ___ U.S. ___, ___, 122 S.Ct. 1843, 1850, 152 L.Ed.2d 914 (2002). First, are situations in which a petitioner is denied counsel at a critical stage of an criminal proceeding. Bell, 122 S.Ct. at 1851 ( quoting Cronic, 466 U.S. at 659, 104 S.Ct. at 2047). Second, are situations in which a petitioner is represented by counsel at trial, but his counsel completely fails to subject the prosecution's case to adversarial testing. Id. Third, prejudice is presumed when the circumstances surrounding a trial prevent the petitioner's attorney from rendering effective assistance of counsel. Id.
The complained-of errors do not amount to the kind of actual or constructive denial of counsel necessary to trigger a presumption of prejudice. Petitioner's claim falls outside the narrow Cronic exception.
To obtain relief based upon a claim of ineffective assistance of counsel, the petitioner must show "that counsel's performance was deficient" and "that the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). To prove deficient performance the petitioner must demonstrate that counsel's actions "fell below an objective standard of reasonableness." Id., at 688, 104 S.Ct. at 2064. To prove prejudice, the petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id., at 694, 104 S.Ct. at 2068, and that "counsel's deficient performance render[ed] the result of the trial unreliable or the proceeding fundamentally unfair." Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 844, 122 L.Ed.2d 180 (1983).
Petitioner's ineffective assistance of counsel claim is without merit. A review of the record showed that sentencing counsel raised the improper loss attribution argument to the Probation Department and to the trial court at sentencing. Moreover, the petitioner raised the argument on appeal.
Although the petitioner referred to Patrick Fanning as his counsel at sentencing, a review of the record showed that Fanning withdrew on June 26, 2000, prior to sentencing. Record document number 1444. Petitioner was represented at sentencing by J. Michael Small and Richard Crane.
See, Addendum to PSR (July 28, 2000), Objection No. 3.
For the foregoing reasons, Bobby Johnson's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 is DENIED.
Judgment shall be entered accordingly.