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United States v. Deng

United States District Court, D. Nebraska

May 3, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JACOB W. DENG, Defendant.

          MEMORANDUM AND ORDER

          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”), ECF No. 113, submitted by Defendant Jacob W. Deng (“Deng”) . 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.

         PROCEDURAL BACKGROUND

         Following a trial by jury, Deng was found guilty of Conspiracy to Distribute 50 Grams or More of Actual Methamphetamine in violation of 21 U.S.C. § 846 (Count I); Distribution of 5 Grams or More of Actual Methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1) (Count II); Possession with Intent to Distribute Methamphetamine and Marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 841 (b)(1) (Count III); and Felon in Possession of a Firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count IV). On June 29, 2015, he was sentenced to a term of 235 months on Counts I, II, and III, grouped, and a sentence of 120 months on Count IV, concurrent. He also received five years of supervised release on Counts I, II, and III, grouped, and three years supervised release on Count IV, also concurrent. The sentences imposed were at the bottom of the applicable guidelines ranges under the United States Sentencing Guidelines, after the Court sustained two of the Defendant's objections to the Presentence Investigation Report.

         The Defendant filed a direct appeal to the U.S. Court of Appeals for the Eighth Circuit. The Court of Appeals conducted an independent review of the record under Penson v. Ohio, 488 U.S. 75, 80 (1988), and found no non-frivolous issues. Judgment was entered affirming the judgment of the district court on November 11, 2016, and the mandate was issued on June 22, 2016. The § 2255 Motion is the Defendant's first such motion, and it is timely filed.

         DISCUSSION

         Deng raises four grounds for relief: (1) Ineffective Assistance of Counsel During Discovery and Trial, (2) Prosecutorial Misconduct, (3) Actual Innocence, and (4) Ineffective Assistance of Counsel During Appeal. His 165-page Motion divides these four grounds into 14 sub-parts, and 24 additional sub-sub-parts.

         Ground One: Ineffective Assistance of Counsel During Discovery and Trial

         In order 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 requires a movant to demonstrate that seriously deficient performance of counsel prejudiced the defense. Id. at 687.

         The record reflects that Deng received court-appointed counsel, a highly experienced attorney from the Office of the Public Defender, on May 30, 2014. Counsel moved to suppress certain statements made by Deng and, after a hearing, the Magistrate Judge recommended that the statements be suppressed. This Court adopted the recommendation and suppressed the statements. Deng then discharged his lawyer; the lawyer was given leave to withdraw; and a new highly experienced lawyer from the Court's Criminal Justice Act Panel was appointed to represent Deng. Deng then retained his own counsel, and court-appointed counsel was given leave to withdraw. Deng's retained counsel was also highly experienced, and trial was continued to give retained counsel ample opportunity to prepare. After a three-day trial, the jury found Deng guilty on all four counts.

         Deng asserts that his lawyer should have conducted additional investigation, objected to the Indictment, impeached witnesses, moved to suppress additional evidence, subpeonaed additional witnesses, and raised more objections at trial. None of Deng's assertions suggests that his court-appointed or retained counsel performed outside the wide range of reasonable professional assistance or made errors so serious that counsel failed to function as the kind of counsel guaranteed by the Sixth Amendment. Nor has Deng demonstrated that counsel's performance prejudiced the defense.

         Ground Two: Prosecutorial Misconduct

         Deng asserts that the prosecutor knowingly presented false evidence, including manufactured evidence, falsified police reports, and perjured testimony. Deng alleges that witnesses were coached and ...


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