United States District Court, D. South Dakota, Central Division
ORDER ON REPORT AND RECOMMENDATION
CHARLES B. KORNMANN, District Judge.
Petitioner was convicted of conspiracy and possession of methamphetamine with intent to distribute and was sentenced to 230 months of custody. The United States Court of Appeals for the Eighth Circuit affirmed his conviction and sentence on February 19, 2009. United States v. Palega , 556 F.3d 709 (8th Cir. 2009). Petitioner filed a motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. He alleges eleven instances of ineffective assistance by his two attorneys, Attorney Jana Miner and Attorney Edward Albright.
I submitted the above-entitled matter to U.S. Magistrate Judge William D. Gerdes and the magistrate judge submitted his report and recommendation on January 9, 2014, Doc. 58. The report and recommendation was served on the petitioner as required by 28 U.S.C. § 636. Petitioner timely filed objections. I have conducted a de novo review of the file.
The question before the court is whether the defendant, now petitioner, Ekueta Palega, a/k/a/ "Q" Palega, received ineffective assistance of counsel in the defense of his criminal prosecution. "As all the Federal Courts of Appeals have now held, the proper standard for attorney performance is that ofreasonably effective assistance." Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under what has become known as the "Strickland Test, " a petitioner must show that his ineffective assistance of counsel was professionally deficient and that this deficient performance prejudiced him. "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. at 686. The SiXth Amendment relies "on the legal profession's maintenance of standards sufficient to justify the law's presumption that counsel will fulfil the role in the adversary process that the Amendment envisions." Id. at 688.
As the judge who presided over the trial of this case, I remember the case quite well. At one time, before the deluge of illegal immigration cases in the border states, I had the third highest criminal case load of federal judges in the United States. Thus, I have forgotten at least the details in many of the cases that I have tried over the years. However, as stated, I do remember this case and most of the details.
Before taking office in 1995, I practiced law for thirty years, mostly as a trial lawyer. I represented the City of Aberdeen, South Dakota, for 17 years, doing all the trial and appellate work. Most of my practice was insurance defense work. I tried quite a few cases in state and federal courts. I observed counsel working on behalf of clients in a large number of cases. I was able to judge the merits of many lawyers and their skill levels. I had the highest rating from Martindale Hubbell, "A.V." I have also had the opportunity to observe many lawyers trying cases and arguing motions in U.S. District Court, both in the Northern Division and the Central Division. Since taking Senior Status, I have tried cases in North Dakota, Arizona, Missouri, New York and Connecticut.
I certainly have seen public defenders Miner and Albright "in action" countless times over the years. They have been always well prepared and provided first class defenses to clients going to triaL Their integrity as officers of the court has never been in question. This is not to say, of course, that either or both could not possibly have rendered inadequate assistance in this particular case. What I am saying is that no case can be judged in a vacuum, especially when I was the trial judge.
The first issue deals with the involvement of Magistrate Judge Moreno in answering a telephone call from officers making the arrest of the defendant. Judge Moreno had issued the search warrant. Judge Moreno did nothing improper. He is a cautious judge and, out of an abundance of caution, would have recused from the suppression motion had the defendant requested recusal. The motion would then have gone before another magistrate or I could have decided to simply handle the motion myself without a report and recommendation. Regardless whether Judge Moreno was or was not going to be providing the report and recommendation, I was the ultimate decision maker. There was nothing wrong with the search warrant or the affidavit. Some of the evidence was somewhat stale but there was clearly a sufficient basis for issuing the search warrant.
I also agree completely with the analysis of attorney Miner that they had at least a "fair shot" with Judge Moreno making the report and recommendation rather than going to another magistrate. Judge Moreno carefully, in all cases that I have witnessed, considers whether the rights of a defendant have been violated and he is careful to see that they are not.
There was confusion at the scene of the arrest. The petitioner and his brother, Morris, were living at or operating out of the residence. When officers were descending on the house, the petitioner ran inside the house, disobeying commands to stop. Other people were also at the residence. Officers had had the house under surveillance for quite some time. They knew exactly where all the unusual activity had been occurring. The lack of a house number in the location where this house was is of no consequence. It would be highly unusual for a house to have a number displayed. This is not some metropolitan area.
Judge Gerdes, in the present report and recommendation, found that attorney Miner did timely discuss a possible recusal motion with petitioner. This is a credibility assessment from the judge who heard the evidence at the motion hearing and there is no reason to overturn it.
The claim of any prejudice to the petitioner in connection with the search warrant and the involvement of Judge Moreno has no merit. In addition, attorney ...