United States District Court, D. Nebraska
LYLE E. STROM, Senior District Judge.
This matter is before the Court on the defendant's motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence (Filing No. 1432). In addition, the defendant has requested an evidentiary hearing, discovery, and appointment of counsel for the evidentiary hearing and discovery (Filing No. 1432 at 14-15). The defendant filed a memorandum in support of his motion (Filing No. 1433) and an index of evidence (Filing No. 1434). The government filed a response to the motion to vacate (Filing No. 1445), with an index of evidence (Filing No. 1446). The defendant replied to the government's response (Filing No. 1463). In addition, the defendant filed a motion to amend (Filing No. 1442). The Court will consider the motion as amended. After reviewing the motion, briefs, supporting documents, and applicable law, the Court finds as follows.
Defendant, Shannon Williams ("Williams"), was indicted and later convicted by a jury on April 28, 2011, of conspiring to distribute and possess with the intent to distribute 1000 kilograms or more of marijuana ("Count I") and of laundering the related proceeds ("Count II"). Williams was sentenced to 480 months imprisonment and ten years of supervised release for the Count I conviction, and 240 months imprisonment and three years supervised release for the Count II conviction, to run concurrently. Williams appealed his conviction, and the Eighth Circuit Court of Appeals affirmed the district court. Williams timely filed his § 2255 motion.
In his § 2255 motion, Williams raises 24 claims for relief. The vast majority of Williams' claims allege ineffective assistance of counsel for both pre-trial and appellate counsel.
In order to establish ineffective assistance of counsel, Williams must satisfy both prongs of the Strickland test. See Strickland v. Washington, 466 U.S. 668 (1984). The performance prong requires a showing that counsel performed outside the wide range of reasonable professional assistance and made errors so serious that counsel failed to function as the kind of counsel guaranteed by the Sixth Amendment. Id. at 687-89. The prejudice prong requires a movant to demonstrate that seriously deficient performance of counsel prejudiced the defense. Id. at 687. "Failure to establish either Strickland prong is fatal to an ineffective-assistance claim." Ramirez v. United States, 751 F.3d 604, 607 (8th Cir. 2014)(quoting Worthington v. Roper, 631 F.3d 487, 498 (8th Cir. 2011)). Moreover, the defendant must overcome the "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689.
I. Ineffective Assistance of Pre-Trial Counsel, Claims 1, 2, 15, 16, and 23.
Claim 1 alleges that hired defense counsel, Anthony Chambers ("Chambers"), stole defense funds, and as a result Williams was prejudiced (Filing No. 1433 at 25). However, the record reflects that Chambers failed to make his appearance in this case ( Id. at 41). Chambers took no substantial part in Williams' criminal case. As a result, Williams has failed to demonstrate that he suffered any prejudice under the Strickland standard as a result of the theft of defense funds by Chambers.
Claim 2 alleges that standby counsel Mike Tasset ("Tasset") violated his right to counsel when Tasset disclosed defense plans to the government ( Id. at 49). Prior to opening statements, Williams was reluctant to make the government aware of his theory of defense before the government put on their opening statement (Tr. 9). Tasset advised Williams that he already told the government Williams' theory of defense ( Id. ). Williams made no objection at trial in response to Tasset's disclosure of his defense plans. Furthermore, based on the various hearings and pleadings associated with the case, the government was aware of Williams' trial theory without Tasset's statement. As a result, Williams has not established that Tasset's statement prejudiced the defense.
In Claim 15, Williams states that his attorney was ineffective when he failed to strike the testimony of Terry Haddock ("Haddock") under Federal Rule of Criminal Procedure 26.2 (Filing No. 1433 at 142-43). In addition, Williams argues that counsel failed when Tasset did not move for sanctions under Fed.R.Crim.P. 26.2(e). The record indicates that after Mr. Conway testified, Tasset objected based on Fed.R.Crim.P. 26.2 (Filing Nos. 642 at 13, 643 at 36-37, 177-78, 645 at 4-8, 647 at 9). The Court heard the argument and overruled Tasset's objection. In regard to Rule 26.2(e), the sanctions are applicable if the government or attorney disobeys the Court's order for failure to produce or deliver a statement. Rule 26.2(e) is not relevant to the facts of this case. Williams has failed to demonstrate deficient performance or any prejudice in regard to Claim 15.
Williams alleges in Claim 16 that his pretrial attorney was ineffective for failing to establish "bad faith" by the government for not turning over all of the records ( Id. at 146). Claim 23 alleges that pretrial counsel was ineffective in failing to challenge, object and/or preserve the government's suppression of material evidence ( Id. at 175-76). The records and evidence Williams refers to in both Claims 16 and 23 are attorney/client room recordings at the Douglas County jail. The Court at an evidentiary hearing directed the government to produce any portions of the recordings that contained exculpatory evidence (Filing No. 256). At trial, the government notified the Court that it had turned over every tape which it had (Tr. 3038-39). Williams' pretrial counsel's performance fell within professional norms, and there is no evidence that Williams was prejudiced from counsel's performance. This claim is without merit.
II. Ineffective Assistance of Appellate Counsel
Williams alleges ineffective assistance of appellate counsel in Claims 3, 4, 5, 6, 7, 8, 9, 12, 13, 14, 17, 19, 20, 21, and 24. Claims 3, 4, 5, 6, 7, and 8 involve appellate counsel's failure to listen to tape recordings prior to representation. Claims 9, 12, 13, 14, 17, 19, 20, 21 and 24 ...