The opinion of the court was delivered by: Patrick A. Conmy, Senior District Judge United States District Court
Before the Court is Adam C. Bordeaux's amended motion pursuant to 28 U.S.C. § 2255 and a memorandum in support of the motion, which was signed on October 13, 2010. See Case No. 3:10-cv-03015, Docket No. 4. The original motion was signed on July 7, 2010. See Case No. 3:10-cv-03015, Docket No. 1. The motion is filed pro se. The government filed an answer and brief in opposition to Bordeaux's motion on December 23, 2010. See Case No. 1:10-cv-01013, Docket Nos. 6 and 7. Bordeaux did not file a reply. For the reasons explained below, the motion is denied.
The following summary of the underlying facts is taken from the direct appeal: On the night of July 4, 2007, Adam Bordeaux, his girlfriend, Frances Spotted War Bonnet, their baby, and Bordeaux's friend Jeff Prue went to Bordeaux's mother's house to set off fireworks with other friends and family members. While at his mother's house, Bordeaux retrieved his gun, a semiautomatic Hi-Point 995 Pro 9 mm carbine rifle, as well as some ammunition, and put them in the trunk of his car. Later, Bordeaux drove the foursome to the Paul Mart gas station and convenience store in Rosebud, South Dakota to drop off Prue. When Bordeaux arrived at Paul Mart, Tristan Saupitty was there filling his car with gas. Saupitty had been driving back from a fireworks celebration at the Tribes Casino with passengers R.F., W.S., L.R.B., and Michelle Boyd when his vehicle ran out of gas. Luke Burning Breast towed Saupitty and his passengers to Paul Mart to refuel.
Bordeaux saw Saupitty and his four passengers, but Bordeaux and Saupitty did not orally acknowledge one another at Paul Mart. However, Bordeaux later told a police officer that seeing Saupitty made him worry that Saupitty might harm him. At trial, Bordeaux testified that Saupitty had previously threatened to harm him or his family's property. Bordeaux told police investigators that he believed that Saupitty and R.F. had shot out several windows on Bordeaux's mother's car.
When Bordeaux left the gas station with Spotted War Bonnet and their baby still in the car, he turned right and went down the road toward the Rosebud Dam, stopped the car, and took the rifle out of the trunk and placed it on the front seat. He then drove to Spotted Tail Drive and turned down the road. Around the same time, Saupitty and his passengers left Paul Mart and went to get money to pay Burning Breast for the tow. Burning Breast followed Saupitty in a second car along with a passenger. Saupitty turned onto Spotted Tail Drive, encountering Bordeaux for the second time that evening. The following facts are disputed, but Bordeaux, Spotted War Bonnet, and Burning Breast testified that Saupitty accelerated and swerved his car toward Bordeaux's. Saupitty testified that he did not even notice Bordeaux, and R.F. testified that Saupitty did not swerve. After this incident, Bordeaux continued to his cousin Robert Jordan's house on Main Street. Saupitty also stopped his car on Main Street to speak with a friend, C.F., within view of Jordan's house. Burning Breast continued to follow behind Saupitty.
After speaking with C.F. for a few minutes, Saupitty began driving in the direction of Jordan's house where Bordeaux was standing near his car. Bordeaux testified that he shot at Saupitty because Saupitty was driving in a threatening manner toward his car, while Spotted War Bonnet and the baby were still inside it. Saupitty testified that his car was still stopped when Bordeaux fired the first shots. Bordeaux also testified that he was only trying to disable the vehicle. Four shots hit the front of the car, near the radiator and license plate and in the left-front corner of the hood. As Saupitty approached Bordeaux's car, he swerved toward it, and then continued past Bordeaux. Bordeaux fired two shots at the side of the car: one on the driver-side door, and one near the gas cap cover. Bordeaux shot at the car four more times after it passed him; two of the shots broke out the back windshield and two other shots hit the driver's side rear taillight. He testified that the final shots were to frighten Saupitty and keep him from "com [ing] around again...." No one was seriously injured in Saupitty's car, but he and the four passengers testified that they were frightened. Investigators later recovered bullet fragments from the car's interior, including from the headrest, the dashboard, and a floor mat. In addition to the back windshield being broken out by two shots, another shot traveled through the front windshield of the car.
After the shooting, Bordeaux went to his sister's home, left Spotted War Bonnet and the baby there, and threw his gun into some weeds in the backyard. He then went to Jordan's sister's home to stay the night. The next day, Bordeaux turned himself in after stopping to see his baby daughter.
At trial, Bordeaux argued that he acted in self-defense, and the jury was instructed on the defense. The jury acquitted Bordeaux of the assault charge against Saupitty, but convicted him of assaulting all four passengers. In addition, Bordeaux was convicted of the firearms charge.
Bordeaux was charged in a six count indictment filed on July 25, 2007. The case was tried to a jury which returned its verdict on February 28, 2008. Bordeaux was convicted of one count of assault with a dangerous weapon in violation of 18 U.S.C. §§ 1153 and 113(a)(3) (Count V); three counts of assault with a dangerous weapon against a person who had not attained the age of 18 years in violation of 18 U.S.C. §§ 1153, 113(a)(3) and 3559 (the Adam Walsh Act) (Counts II, III, and IV); and one count of discharging a firearm during a crime of violence in violation of 18 U.S.C. §§ 1153, 113(a)(3), and 924(c)(1)(A)(iii) (Count VI). He was acquitted on a second count of assault with a dangerous weapon (Count I). He was sentenced to a total of 240 months imprisonment on May 29, 2008. Specifically, minimum mandatory 120 month sentences were imposed on Counts II, III, and IV. A 27 month sentence was imposed on Count V. The sentences on Counts II, III, IV, and V are concurrent. A minimum mandatory 120 month consecutive sentence was imposed on Count VI as required by 18 U.S.C. § 924(c)(1)(A)(iii).
An appeal was taken. The conviction was affirmed on July 7, 2009. United States v. Bordeaux, 570 F.3d 1041 (8th Cir. 2009). Bordeaux did not petition the Supreme Court for a writ of certiorari. Bordeaux's § 2255 motion was signed on July 7, 2010, and filed on July 13, 2010. He did not file a brief or memorandum in support of his motion. Bordeaux moved to dismiss his § 2255 motion on September 15, 2010. His stated purpose for wanting to dismiss his motion was that so he could refile the motion along with a brief and raise additional issues. The Court denied the motion in an order dated September 21, 2010, finding that the better course of action would be to simply permit Bordeaux to filed an amended motion and brief. The Court gave Bordeaux until November 15, 2010, to file an amended motion and brief in support. Bordeaux's amended § 2255 motion was signed on October 13, 2010, and filed on October 18, 2010. Bordeaux raises three grounds for relief in his amended petition: (1) Native Americans were excluded from the jury pool; (2) he received ineffective assistance from appellate counsel who failed to raise the issue of discriminatory jury selection on appeal; and (3) he received ineffective assistance from trial counsel who failed to challenge the constitutionality of the consecutive minimum mandatory sentences he received. The government filed a response to the motion on December 23, 2010, in which it argued the motion should be denied.
A motion made pursuant to 28 U.S.C. § 2255 requires a showing of either constitutional or jurisdictional error, or a "fundamental defect" resulting in a "complete miscarriage of justice." Davis v. United States, 417 U.S. 333, 346 (1974); Hill v. United States, 368 U.S. 424, 428 (1962). A § 2255 motion is not a substitute for a direct appeal and is not the proper way to complain about simple trial errors. Anderson v. United States, 25 F.3d 704, 706 (8th Cir. 1994). A § 2255 movant "must clear a significantly higher hurdle than would exist on direct appeal." United States v. Frady, 456 U.S. 152, 166 (1982). Section 2255 is "intended to afford federal prisoners a remedy identical in scope to federal habeas corpus." Davis, 417 U.S. at 343.
Bordeaux's motion raises both Batson*fn1 and Duren*fn2 claims relating to the jury selection process and a Sixth Amendment claim of ineffective assistance of appellate counsel based upon the failure of appellate counsel to raise the Batson and Duren claims on direct appeal. The government argues the claims are meritless and that Bordeaux has procedurally defaulted his Batson and Duren claims by failing to raise them on direct appeal.
In order to succeed on his Batson and Duren claims, Bordeaux must show that his claims have not been procedurally defaulted. See Becht v. United States, 403 F.3d 541, 545 (8th Cir. 2005). "Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either cause and actual prejudice, or that he is actually innocent." Id. (quoting Bousley v. United States, 523 U.S. 614, 622 (1998)). The procedural default rule does not apply to claims of ineffective assistance of counsel. Massaro v. United States, 538 U.S. 500, 504-05 ((2003); United States v. Smith, 843 F.2d 1148, 1150 (8th Cir. 1988). There is no question that Bordeaux failed to raise the Batson and Duren arguments on direct appeal and thus they are procedurally defaulted. Bordeaux does not claim actual innocence. Consequently, the Court need only consider whether he has demonstrated both cause and actual prejudice. The cause and actual prejudice that must be shown to overcome a procedurally defaulted claim may be met by a showing of ineffective assistance of appellate counsel.
Becht, 403 F.3d at 545. Thus, the showing necessary for Bordeaux to proceed on his Batson and Duren claims is the same as the showing necessary to prevail on his ineffective assistance of appellate counsel claim. Becht, 403 F.3d at 545.
The two-part test for ineffective assistance of counsel was announced in Strickland v. Washington, 466 U.S. 668, 687 (1984). The test is the same no matter whether the alleged ineffectiveness is attributable to trial or appellate counsel. See United States v. Brown, 528 F.3d 1030, 1032 (8th Cir. 2008). Bordeaux must first establish that counsel's representation was constitutionally deficient, which requires a showing that counsel's performance fell below an objective standard of reasonableness. Strickland, 466 U.S. at 687-88; see also Wiggins v. Smith, 539 U.S. 510 (2003). This requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. Strickland, 466 U.S. at 687. In considering whether this showing has been accomplished, "[j]udicial scrutiny of counsel's performance must be highly deferential." Id. at 689. If the underlying claim (i.e., the alleged deficient performance) would have been rejected, counsel's performance is not deficient. Carter v. Hopkins, 92 F.3d 666, 671 (8th Cir. 1996). Courts seek to "eliminate the distorting effects of hindsight" by examining counsel's performance from counsel's perspective at the time of the alleged error. Id. The Court need not address the issue of the reasonableness if Bordeaux has failed to establish prejudice. Strickland, 466 U.S. at 696.
Bordeaux must also show that the deficient performance prejudiced his defense. Strickland, 466 U.S. at 687. This requires proving that there is a reasonable probability that, but for counsel's ineffectiveness, the result would have been more favorable to the defendant. Id. at 690-91. A reasonable probability is one "sufficient to undermine confidence in the outcome." Wiggins v. Smith, 539 U.S. 510, 534 (2003). In the context of alleged ineffectiveness of appellate counsel, it must be shown to a reasonable probability that the outcome of the appeal would have been different in order to ...