United States District Court, D. South Dakota, Southern Division
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
KAREN E. SCHREIER, District Judge.
Petitioner, Brandon Quincy Thompson, an inmate in the Federal Correctional Institution in Atwater, California, moves to vacate, set aside or correct his sentence under 28 U.S.C. § 2255. Civ. 12-4133 (Civ. Docket) 1. This matter was referred to United States Magistrate Judge John E. Simko pursuant to 28 U.S.C. § 636(b)(1)(B) for the purpose of conducting any necessary hearings and issuing a report and recommendation for the disposition of Thompson's motion. Magistrate Judge Simko issued a report and recommendation for the disposition of Thompson's § 2255 petition. See Civ. Docket 64. Thompson filed timely objections to the report and recommendation. Civ. Docket 68. For the reasons set forth herein, Magistrate Judge Simko's report and recommendation is adopted.
On November 16, 2010, Thompson appeared before this court and entered into a nonbinding plea agreement. Under the terms of the agreement, Thompson pleaded guilty to the charges in Counts 12 (Sex Trafficking of a Child-Child Victim #9) and 19 (Solicitation to Murder a Federal Witness) of the Second Superseding Indictment. CR XX-XXXXX-XX (CR. Docket) 83. The United States agreed to dismiss the remaining counts of the Second Superseding Indictment following acceptance of Thompson's plea. In paragraph G of the agreement, the United States also agreed it would recommend a sentence of imprisonment of "no more than 360 months, regardless of the Guideline range." In the following sentence, however, Thompson acknowledged that "any recommendation made by him or the United States is not binding on the Court."
Thompson also acknowledged that "he may not withdraw his plea of guilty if the Court rejects any recommendation." Paragraph P of the Agreement contained a "Waiver of Defenses and Appeal Rights" provision, which stated:
The Defendant hereby waives all defenses and his right to appeal any non-jurisdictional issues. The parties agree that excluded from this waiver is the Defendant's right to appeal any decision by the Court to depart upward pursuant to the sentencing guidelines as well as the length of his sentence for a determination of its substantive reasonableness should the Court impose an upward departure or an upward variance pursuant to 18 U.S.C. § 3553(a).
Thompson's sentencing hearing was held before this court on April 15, 2011. This court determined that Thompson's total offense level was 60, which the court treated as a level of 43,  and that his criminal history category was VI. This placed the statutory and advisory guideline range maximum for Count 12 at life in prison and for Count 19 at 20 years in prison. CR. Docket 138 at 71, 92 (Sentencing Transcript). Thompson was sentenced to life in prison on Count 12 and 120 months in prison on Count 19, with both sentences to run concurrently. Id. at 90.
On April 27, 2011, Thompson filed a direct appeal to the Eighth Circuit Court of Appeals. CR. Docket 125. Thompson was permitted to file a pro se brief, in which Thompson argued he was incompetent due to an alleged mental illness, and that this court should have ordered a competency hearing. The Eighth Circuit summarily disposed of the appeal, granting the United States' motion to dismiss. CR. Docket 146 ( United States of America v. Brandon Quincy Thompson, No. 11-1919 (8th Cir. 2011)).
On July 7, 2013, Thompson filed the present § 2255 motion to vacate, set aside, or correct his sentence. Civ. Docket 1. This matter was referred to United States Magistrate Judge John E. Simko pursuant to 28 U.S.C. § 636(b)(1)(B) for the purpose of conducting any necessary hearings and issuing a report and recommendation for the disposition of Thompson's motion. Subsequently, Thompson submitted several supplements and amended motions, some of which were granted while others were denied. See Civ. Docket 39. Ultimately, Thompson alleged several violations of his Sixth Amendment right to effective assistance of counsel, and he submitted several procedural motions. On January 27, 2014, Magistrate Judge Simko issued a report and recommendation for the disposition of Thompson's petition. Civ. Docket 64. Magistrate Judge Simko recommended that each of Thompson's claims for relief and requests be denied, with the sole exception related to Thompson's request for an extension of deadlines to file objections. Thompson timely submitted his objections on March 14, 2014, in accordance with the extension deadline. See Civ. Docket 67; 68.
The court's review of a magistrate judge's report and recommendation is governed by 28 U.S.C. § 636 and Rule 72 of the Federal Rules of Civil Procedure. This court may review timely and specific objections to the magistrate judge's recommendations regarding nondispositive matters "where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A); see also Fed.R.Civ.P. 72(a). Additionally, the court reviews de novo any objections to the magistrate judge's recommendations with respect to dispositive matters that are timely made and specific. 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b). In conducting its de novo review, this court may then "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1); see also United States v. Craft, 30 F.3d 1044, 1045 (8th Cir. 1994).
In order to establish ineffective assistance of counsel, a petitioner must meet the two-pronged standard articulated by the United States Supreme Court in Strickland v. Washington. See 466 U.S. 668, 687 (1984). "First, the [petitioner] must show that counsel's performance was deficient." Id. This "performance prong" requires a petitioner to "show that counsel's representation fell below an objective standard of reasonableness." Id. at 687-88. This court must assess "whether counsel's assistance was reasonable considering all the circumstances." Id. at 688. There is a "strong presumption, " however, "that counsel's conduct falls within the wide range of reasonable professional assistance[.]" Id. at 689. "Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Id. at 690. As the Eighth Circuit has observed, "reasonable trial strategy cannot rise to the level of ineffective assistance of counsel." English v. United States, 998 F.2d 609, 613 (8th Cir. 1993).
"Second, the [petitioner] must show that the deficient performance prejudiced the defense." Strickland, 466 U.S. at 687. This "prejudice prong" requires the petitioner to "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. In other words, "[i]t is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693. Thus, "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Id. at 691. Furthermore, to show prejudice as a result of the plea process, a petitioner "must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985).
Finally, a petitioner has the burden of satisfying both Strickland prongs. Strickland, 466 U.S. at 687; see also Burns v. Gammon, 260 F.3d 892, 897 (8th Cir. 2001). While both prongs must be satisfied, this court "need not determine whether counsel's performance was deficient before examining the prejudice suffered by the [petitioner] as a result of the alleged deficiencies." Strickland, 466 U.S. at 697. "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." Id. As the Eighth Circuit has held, failure to file a motion that has little chance of success cannot satisfy either the deficient performance or prejudice prong. Hale v. Lockhart, 903 F.2d 545, 549-50 (8th Cir. 1990).
Thompson has alleged several claims of ineffective assistance of counsel. Magistrate Judge Simko recommended dismissal of each claim. Civ. Docket 64 at 6. Thompson has objected to the magistrate judge's recommendations and presented arguments in support of each objection. Additionally, Thompson has objected to several of the magistrate judge's orders regarding nondispositive, procedural motions. Thus, this court will conduct de novo review of those portions of the magistrate judge's recommendations with respect to Thompson's ineffective assistance of counsel claims that have been objected to, and it will apply a clearly erroneous or contrary to law analysis to the magistrate judge's orders regarding the nondispositive motions.
A. First Claim for Relief: Ineffective Assistance of Counsel-Failure to Cross-examine Witnesses
Thompson's first ineffective assistance claim is premised on counsel's failure to cross-examine a victim and her father during the sentencing hearing. The victim did not appear at sentencing, but the court considered her videotaped statement. CR. Docket 138 at 51-52. Her father testified, among other things, that his daughter contracted a sexually transmitted disease from Thompson. Id. at 82. Magistrate Judge Simko recommended dismissal of this claim because Thompson could not establish how counsel could have effectively cross-examined the witnesses or how that alleged failure resulted in prejudice. Civ. Docket 64 at 7-8. Thompson asserts that cross-examination would have demonstrated that the father was not credible, that medical records would have shown the victim had not contracted the disease from Thompson, and that counsel's failure to cross-examine the father led to a higher sentence. Civ. Docket 68 at 7.
As a preliminary matter, in addition to the victim's videotaped statement, several other victims as well as family members appeared before this court during the sentencing hearing to present victim impact statements. See CR. Docket 138 at 81-87. These witnesses were not put under oath, and neither party was given the opportunity to question them. The Eighth Circuit has held that "the rules of evidence do not apply at sentencing." United States v. Pratt, 553 F.3d 1165, 1170 (8th Cir. 2009) (citations omitted). A court "has wide discretion at sentencing as to the kind of information considered or its source, " and "may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy." Id. (quotations and emphasis omitted). Hearsay evidence may also be considered, provided it appears reliable. United States v. Tucker, 286 F.3d 505, 510 (8th Cir. 2002). Additionally, "the confrontation clause does not apply in sentencing proceedings." United States v. Wallace, 408 F.3d 1046, 1048 (8th Cir. 2005) (citing United States v. Due, 205 F.3d 1030, 1033 (8th Cir. 2000)). Specifically, with respect to the victim's videotaped statement, this court concluded there was "sufficient evidence to support the factual allegations here and there's sufficient indicia of reliability regarding [the] statement." CR. Docket 138 at 52. The magistrate judge noted this conclusion in the report and recommendation. With respect to the father's victim impact statement, Thompson's objection fails because even though counsel was not permitted to cross-examine the witness at sentencing, the confrontation clause does not compel a different result.
Nonetheless, even if counsel was permitted to cross-examine the father and chose not to, there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[.]" Strickland v. Washington, 466 U.S. 668, 689 (1984). This is so because "reasonable trial strategy cannot rise to the level of ineffective assistance of counsel." English, 998 F.2d at 613. Further, even if the decision to forego cross-examination was professionally unreasonable, Thompson's conclusory assertion that his inability to cross-examine a single statement resulted in a harsher sentence is not only unsupported but wholly contradicted by this court's determination of Thompson's offense level, criminal history, and applicable sentencing range. See CR. Docket 138 at 71. As discussed, Thompson's offense level was 17 points higher than the guideline maximum, and his criminal history fell within category VI. This placed Thompson's ...