United States District Court, D. Nebraska
MEMORANDUM AND ORDER
F. BATAILLON SENIOR UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant's Motion to
Vacate under 28 U.S.C § 2255. Filing No. 755. John Ways,
Jr. (“Defendant”) has also filed a Motion to
Dismiss Count II of the Indictment based on the District
Court's Lack of Subject Matter Jurisdiction, a Motion to
dismiss Count II of the Indictment, two Motions to Amend, and
a Miscellaneous Motion. Filing Nos. 779, 780, 786, 787, 807.
The Court initially reviewed this case and ordered the
Government to file its answer. Filing No. 767.
was indicted for drug and money related offenses in the
United States District Court for the District of Nebraska
after the Bureau of Alcohol, Tobacco, and Firearms
(“ATF”) began an investigation into
Defendant's Exotica shops for illegal contraband and drug
paraphernalia. Filing No. 707. ATF agents served multiple
search warrants on Defendant's Exotica shops and
residence which resulted in the discovery of numerous drug
paraphernalia items, drug substances offered for sale,
firearm ammunition, financial records, and money. Filing No.
707. In April 2013, he was charged with four counts:
conspiracy to sell drug paraphernalia in violation of Title
21 U.S.C. § 846 (Count I); conspiracy to distribute
Schedule I controlled substances in violation of Title 21
U.S.C. § 846 (Count II); conspiracy to commit money
laundering in violation of Title 18 U.S.C. §
1956(a)(1)(B)(i), (ii) (Count III); and being a felon in
passion of ammunition in violation of Title 18 U.S.C. §
922(g)(1) (Count IV) for offenses that occurred between April
2012 and December 2012. Filing No. 157.
thirteen-day trial, the jury returned a verdict of guilty
against Defendant on all four counts. Filing No. 473. The
jury also returned a verdict of forfeiture. On December 31,
2014, the Court entered a preliminary order of forfeiture.
Filing Nos. 587, 588. On March 27, 2014, the Court sentenced
Defendant to 36 months' imprisonment on Count I, 180
months' imprisonment on Counts II and III, respectively,
and 120 months' imprisonment on Count IV, all to run
concurrently. Filing No. 623. Judgment, including a final
order of forfeiture, was entered on March 30, 2014. Filing
No. 623. Following sentencing, Defendant directly appealed
his conviction to the United States Court of Appeals for the
Eighth Circuit (“Eighth Circuit”). Filing No.
625. The Eighth Circuit reversed Defendant's conviction
on Count IV and affirmed the Court's judgment on the
remaining counts. Filing No. 707.
brief in support of his motion to vacate, Defendant asserts
over one-hundred causes of action stemming from both
ineffective assistance of counsel and prosecutorial
misconduct claims. Filing No. 755. A majority of the asserted
causes of action are either claims that were required to be
brought on direct appeal and/or frivolous. Therefore, the
Court will address Defendant's viable claims in two
groupings-ineffective assistance of counsel and prosecutorial
misconduct claims. Defendant's viable claims stemming
from ineffective assistance of counsel include his
counsel's failure to pursue an innocent intent defense,
failure to show that Defendant was not guilty of money
laundering for using an alias, and failure to call material
manufactures as witnesses. His claims stemming from
prosecutorial misconduct are that the Government planted
illegal controlled substances into Defendant's discovery
box, the Government planted evidence into Defendant's
company, Nkosi Inc.'s, bank accounts in order to seize
them, and the Government knowingly let false testimony be
used by its expert witness.
INEFFECTIVE ASSISTANCE OF COUNSEL
28 U.S.C. § 2255, a federal prisoner has “an
avenue for relief if his ‘sentence was imposed in
violation of the Constitution or laws of the United States,
or . . . was in excess of the maximum authorized by
law.'” King v. United States, 595 F.3d
844, 852 (8th Cir. 2010) (quoting 28 U.S.C.A. §
2255(a)). Ineffective assistance of counsel issues were
appropriately raised in collateral proceedings. See
United States v. Hughes, 330 F.3d 1068, 1069 (8th
Cir. 2003). “The right to counsel is a fundamental
right of criminal defendants; it assures the fairness, and
thus the legitimacy, of our adversary process.”
Kimmelman v. Morrison, 477 U.S. 365, 374 (1986).
Under the Fifth and Sixth Amendments, a criminal defendant is
entitled to assistance of counsel at trial and at his first
appeal of right. See Gideon v. Wainwright,
372 U.S. 335, 344 (1963); Evitts v. Lucey, 469 U.S.
387, 392-93 (1985) (the fundamental right to effective
assistance of counsel extends to a criminal defendant's
first appeal of right). The right to counsel includes the
right to reasonably effective counsel. Strickland v.
Washington, 466 U.S. 668, 686 (1984). In order to make
out a claim of ineffective assistance, a petitioner must
satisfy the familiar Strickland standard,
“which requires a showing ‘that his lawyer's
performance fell below the minimum standards of professional
competence (deficient performance) and that there is a
reasonable probability that the result of the proceedings
would have been different if his lawyer had performed
competently (prejudice).'” King v. United
States, 595 F.3d at 852 (quoting Alaniz v. United
States, 351 F.3d 365, 367-68 (8th Cir. 2003)).
performance “is that which falls below the ‘range
of competence demanded of attorneys in criminal
cases.'” Sinisterra v. United States, 600
F.3d 900, 906 (8th Cir. 2010) (quoting Strickland,
466 U.S. at 687). “The standard is an objective one,
viewed in light of professional norms prevailing when the
representation took place.” Id.; Bobby v.
Van Hook, 130 S.Ct. 13, 16 (2009) (per curiam). We must
consider “whether counsel's assistance was
reasonable considering all the circumstances.”
Strickland, 466 U.S. at 688. The reasonableness of
counsel's challenged conduct must be judged on the facts
of the particular case, viewed as of the time of
counsel's conduct. King, 595 F.3d at 853.
establish prejudice under Strickland, a petitioner
must “demonstrate that there is a reasonable
probability that, but for counsel's claimed
unprofessional errors, the result of the proceeding would
have been different.” Christenson v. Ault, 598
F.3d 990, 996 (2010). In the sentencing context, prejudice
can be found with a showing that, had an argument been
presented, a defendant likely would have received a much
shorter sentence. King, 595 F.3d at 852-53.
“An error increasing a defendant's sentence by as
little as six months can be prejudicial within the meaning of
Strickland.” Alaniz, 351 F.3d at 368;
see also United States v. Spigner, 416 F.3d
708, 711 (8th Cir. 2005); King, 595 F.3d at 853-54.
have broad discretion to enforce criminal laws. United
States v. Armstrong, 517 U.S. 456, 456 (1996).
Prosecutorial discretion is a well-established facet of our
criminal justice system. United States v. Beede, 974
F.2d 948, 952 (8th Cir. 1992) (“[P]rosecutors must
remain free to exercise their prosecutorial discretion with
respect to the charging decision.”). A
“‘presumption of regularity supports' their
prosecutorial decisions and, ‘in the absence of clear
evidence to the contrary, courts presume that they have
properly discharged their official duties.'”
Armstrong, 517 U.S. at 464 (quoting United
States v. Chem. Found., Inc., 272 U.S. 1, 14-15 (1926)).
“In the ordinary case, ‘so long as the prosecutor
has probable cause to believe that the accused committed an
offense defined by statute, the decision whether or not to
prosecute, and what charge to file or bring before a grand
jury, generally rests entirely in his discretion.'”
Id. (quoting Bordenkircher v. Hayes, 434
U.S. 357, 364 (1978)).
course, prosecutorial discretion is subject to constitutional
constraints. Id. (noting that one of these
constraints is imposed by the equal protection component of
the Fifth Amendment Due Process Clause).
“[P]rosecutorial discretion has limits; it violates the
Due Process Clause for a prosecutor to engage in vindictive
prosecution-to punish a defendant for exercising her
statutory or constitutional rights.” United ...