United States District Court, D. Nebraska
Laurie Smith Camp Chief United States District Judge
This matter is before the Court on the Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (“§ 2255 motion”) (Filing No. 116), submitted by Defendant Lori Jenkins, pro se. Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts requires initial review of a § 2255 motion, and describes the initial review process:
The judge who receives the motion must promptly examine it. If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party. If the motion is not dismissed, the judge must order the United States attorney to file an answer, motion, or other response within a fixed time, or to take other action the judge may order.
The Defendant was charged with being a felon in possession of ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), in a two-count Indictment.
At the Initial Appearance and Arraignment held on October 4, 2013, the Defendant requested appointment of counsel and CJA Panel Attorney Donald L. Schense, a highly experienced criminal defense attorney, was appointed to represent the Defendant.
On December 31, 2013, an order was entered scheduling the jury trial in this matter to begin on January 28, 2014. Upon the filing of a motion to continue by the Defendant, the trial was continued to March 11, 2014. A joint motion to continue was filed and on March 4, 2014, the trial was continued to April 1, 2014.
The trial began on April 1, 2014, and the matter was submitted to the jury on April 3, 2014. A guilty verdict was rendered on April 3, 2014, on both counts, and the sentencing hearing was scheduled for June 30, 2014.
A Revised Presentence Investigation Report (“PSR”) was sent to the parties and the Court on June 16, 2014. It included a base offense level of 43 pursuant to U.S.S.G. § 2K2.1(c)(1)(B) because the Defendant possessed or transferred ammunition with knowledge or intent that it would be used or possessed in connection with another offense (i.e., knowledge that the transferee was a convicted felon), and, because deaths resulted, the most analogous offense guideline from Chapter Two, Part A, Subpart 1 (Homicide) applied. The PSR listed the Defendant’s Criminal History Category as I. Defense counsel filed objections to the PSR and those objections were overruled at the sentencing hearing. The Defendant was sentenced on July 15, 2014, to 120 months imprisonment on both Counts I and II to run concurrently, and three years of supervised release to follow.
On July 24, 2014, Mr. Schense filed a Notice of Appeal (Filing No. 93) on behalf of the Defendant and he represented the Defendant during her Appeal to the Eighth Circuit Court of Appeals. The District Court’s judgment was affirmed on July 6, 2014.
On September 15, 2015, the Defendant’s timely § 2255 motion was filed. In her pro se motion, the Defendant argues four grounds for relief: (Ground One) Ineffective Assistance to Counsel - violation of Sixth Amendment right; (Ground Two) Violation of Movant’s Fifth and Sixth Amendment Constitutional Right to due process; (Ground Three) Double Jeopardy, Violation on Movant’s Eighth, Fourteenth, and Sixth Amendment Constitutional Rights; and (Ground Four) Malicious Prosecution and Governmental Misconduct in Violation of Movant’s Eighth and Fourth Amendment Rights. In addition, at Paragraph 13, the Defendant claims there is “multiplicity and duplicity of the indictment” and “Government Tampering of evidence”.
I. Ground One - Ineffective Assistance to Counsel - Violation of Sixth Amendment
To establish ineffective assistance of counsel, a defendant must satisfy both prongs of the test articulated by the United States Supreme Court in 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 ...