R. BROOKE JACKSON, District Judge.
This matter is before the Court concerning the Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody ("§ 2255 Motion") (Docket No. 158
Following a jury trial in November 2013, Mr. Greenwood was found guilty of two counts of possession of a firearm by a prohibited person in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) and two counts of possession of less than twenty-eight grams of cocaine base with the intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) and 851. Docket No. 128 at 1-2. The jury did, however, acquit Mr. Greenwood of a third identical drug count. Id.
Two weeks after the jury verdict was reached, Mr. Greenwood filed a motion for judgment of acquittal regarding the two drug counts. Docket No. 118. He argued that because he had claimed the defense of entrapment concerning the drug charges and the jury had returned a verdict of not guilty on one of the drug counts, the Court must find as a matter of law that the Government had failed to prove he was not entrapped with respect to the other two later-in-time drug transactions. Id. Following oral argument, the Court ruled from the bench and denied the motion. Docket No. 127 at 5-6. For purposes of sentencing, the Court calculated an offense level of 30 and a criminal history category of VI, producing a guideline range of 168-210 months. Id. at 20. The Court sentenced Mr. Greenwood to two terms of imprisonment of 120 months each for the firearms possession convictions and two terms of 132 months each for the drug convictions, with all of the terms of imprisonment to be served concurrently. Docket No. 128 at 3. Judgment was imposed on February 3, 2014. Id. at 1.
Mr. Greenwood timely filed Notice of Appeal in his case. Docket No. 129. The United States Court of Appeals for the Tenth Circuit affirmed this Court's judgment on December 11, 2014. Docket No. 156. Mr. Greenwood did not seek a petition for certiorari review by the United States Supreme Court.
On February 22, 2016, Mr. Greenwood filed the instant § 2255 Motion, in which he asserts 13 claims of ineffective assistance of trial counsel and one claim of ineffective assistance of appellate counsel. Docket Nos. 158 and 159. Based on the briefing received from the parties, Mr. Greenwood's § 2255 Motion is ripe for decision by the Court.
The provisions of 28 U.S.C. § 2255 allow a prisoner in federal custody to collaterally attack a federal sentence on four grounds: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). A § 2255 motion is not a substitute for a direct appeal. United States v. Warner, 23 F.3d 287, 291 (10
The Court must construe the § 2255 Motion liberally because Mr. Greenwood is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam); Hall v. Bellmon, 935 F.2d 1106, 1110 (10
In his § 2255 Motion, Mr. Greenwood alleges that his trial counsel was ineffective:
Docket No. 159 at 3-4.
In a fourteenth claim, Mr. Greenwood contends that his appellate counsel was ineffective for failing to argue that the cumulative error doctrine requires a new trial in his case. Id. at 4.
The Government agrees with Mr. Greenwood that his § 2255 Motion is timely, but has defended against each of Mr. Greenwood's claims and any supporting allegations. Docket No. 165. In its Response, the Government sought to simplify organization of their response by arranging Mr. Greenwood's claims into four categories:
Id. at 4.
Mr. Greenwood does not object to the organization of his claims in this manner, and has fashioned his Reply in accordance with the format of the Government's Response. Docket No. 173 at 1. Therefore, the Court's ruling will follow the same structure.
To obtain relief under § 2255 on grounds of ineffective assistance of counsel, Mr. Greenwood must establish that performance by his lawyers was deficient as compared to an objective standard of reasonable performance. Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); see also Upchurch v. Bruce, 333 F.3d 1158, 1163 (10th Cir. 2003) (claims asserting the ineffectiveness of appellate counsel are governed by the Supreme Court's decision in Strickland). "Thus, `we give considerable deference to an attorney's strategic decisions and recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.'" United States v. Patterson, 525 Fed. Appx. 681, 685 (10
Mr. Greenwood must also prove that deficient performance by counsel prejudiced his defense, "depriving him of a fair trial with a reliable result." United States v. Orange, 447 F.3d 792, 796 (10
Because Mr. Greenwood "must demonstrate both Strickland prongs to establish his claim[s], a failure to prove either one is dispositive." Orange, 447 F.3d at 796-97 (citing Smith v. Robbins, 528 U.S. 259, 286 n. 14 (2000)). "The performance component need not be addressed first." Smith, 528 U.S. at 286 n. 14. "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." Strickland, 466 U.S. at 697. Mr. Greenwood, as the movant, bears the burden of proving he was prejudiced by the claimed action or inaction by his counsel. See id. at 694; see also United States v. Kennedy, 225 F.3d 1187, 1197 (10
Mr. Greenwood argues his attorney provided ineffective assistance of counsel under an allegation that without his knowledge or consent, his attorney entered into a stipulation regarding two of the three essential elements needed to establish each of the two counts of felon in possession of a firearm against him, i.e., that Mr. Greenwood was a felon and that the alleged weapon traveled in interstate commerce.
Mr. Greenwood relies on Brookhart v. Janis, 384 U.S. 1 (1966) and United States v. Aptt, 354 F.3d 1269 (10
Neither Mr. Greenwood's § 2255 Motion nor his Reply offers pertinent legal authority to support the contention that his trial counsel's entering into a stipulation regarding certain elements of a charged offense is a material deviation from objective standards of professional reasonableness. Instead, he appears to contend that such conduct is per se unreasonable. This contention does not withstand analysis under Strickland.
First, the Court disagrees with the Government's offering of the unpublished opinion of the Court of Appeals for the Tenth Circuit in United States v. DeWilliams, 28 Fed.Appx. 913 (10
Mr. Greenwood has cited no authority under the Constitution or laws of the United States which would demonstrate a trial counsel's stipulation to certain elements of an offense — even a stipulation that may arguably be involuntary by the defendant — was objectively unreasonable where trial counsel nevertheless contests other, more significant, elements of the offense. "Tactical decisions, whether wise or unwise, successful or unsuccessful, cannot ordinarily form the basis of a claim of ineffective assistance." Hatch v. Oklahoma, 58 F.3d 1447, 1459 (10
Mr. Greenwood's argument that the stipulations amounted to a guilty plea additionally finds no traction in the context of an ineffective assistance of counsel claim since the stipulations did not fully relieve the Government of its burden of proof on the possession of a firearm by a prohibited person charges. Mr. Greenwood fails to demonstrate that concession of minor elements of the possession of a firearm offense is the functional equivalent of a guilty plea where, as here, trial counsel held the Government to its burden of proof with regard to the more significant element of the offense concerning whether Mr. Greenwood knowingly possessed a firearm. Cf. Boykin v. Alabama, 395 U.S. 238, 242-43 (1969) (a guilty plea is "more than a confession which admits that the accused did various acts," it is a "stipulation that no proof by the prosecution need be advanced" (internal quotation marks omitted)). Additionally, Mr. Greenwood's right to confrontation is not implicated in either of the stipulated elements, as he makes no attempt to show what witness he was precluded from cross-examining or what evidence in his favor would have been gained by such cross-examination concerning his prior felony criminal record or the fact that the firearm had traveled in interstate commerce. While Mr. Greenwood's filings must be construed liberally because of his pro se status, the Court cannot supply facts or construct a legal theory on his behalf that assumes facts that have not been pleaded. See generally Dunn v. White, 880 F.2d 1188, 1197 (10
Accordingly, the Court finds there is no clear authority establishing that the decision of trial counsel to stipulate to elements like prior convictions and that a firearm traveled in interstate commerce, even over a defendant's objection, constitutes ineffective assistance of counsel. See United States v. Murphy, 156 Fed.Appx. 90, 93 (10
Since Mr. Greenwood has not demonstrated that his counsel's performance fell below an objective standard of reasonableness, it would generally not be necessary for the Court to reach the second question under Strickland regarding prejudice. See Orange, 447 F.3d at 796-97. However, since Mr. Greenwood notes in his Reply that he interprets the Government's position to be that deficient performance has been proven and therefore he replies only with regard to whether he was prejudiced by the performance, the Court will address the issue of prejudice under Strickland.
Mr. Greenwood has offered no legal authority, no evidence, and no colorable argument to establish that there is a reasonable probability that the results of his trial would have been different without the stipulations concerning his prior convictions and that the firearms had traveled in interstate commerce. Mr. Greenwood alleges no viable facts to demonstrate that he was not previously convicted of a felony or that the firearm had not traveled in interstate commerce. If Mr. Greenwood's attorney had required the Government to present evidence showing these two elements of the crime charged, the Government may clearly have done so. See e.g. Bedford, 354 Fed.Appx. at 321(that the firearm had traveled interstate was a fact that "the government could establish with minimal effort" since there were no firearm manufacturers located in Kansas); see United States v. Hudgins, 2016 WL 3523838, *5-6 (E.D. Mich. May 31, 2016) (as to the element of the felon in possession of a firearm charge regarding a prior felony conviction, the government is merely required to produce evidence of the prior criminal history at trial); see generally United States v. O'Kane, 185 F.3d 875, 1999 WL 448818, *4 (10
Instead, in his Reply, Mr. Greenwood represents that he was prejudiced because the prosecution's burden of proof via the stipulation was lessened and so he would have fared better by simply pleading guilty to the charged offenses. Docket No. 173 at 5. However, Mr. Greenwood cannot support a claim of ineffective assistance of counsel by merely stating he was prejudiced because counsel did not require the government to go through the motions of proving seemingly evident elements of the crime charged. See e.g. O'Kane, 1999 WL 448818 at *4.
Additionally, with regard to Mr. Greenwood's allegation that he would have fared better by simply pleading guilty, an earlier plea offer was withdrawn by the prosecution on April 10, 2013, following the Court's indication that it was not inclined to accept an appeal waiver under the plea agreement, and the case was set for trial. Docket No. 31. While Mr. Greenwood provides no information concerning a viable offer by the prosecution under which he would have had the opportunity to plead guilty, the Government's Response does indicate there was a second plea offer which was rejected by Mr. Greenwood. Docket No. 165 at 17 (citing Docket No. 141 at 6). In this regard, however, Mr. Greenwood must demonstrate not only a reasonable probability that he would have pleaded guilty, but also that his resulting sentence would have been lower. Cf. United States v. Landsaw, 206 Fed.Appx. 773, 777 (10
Mr. Greenwood provides no legal or factual support for his statement that his sentencing guideline range would have been "extremely lower by several years." While it is true that the sentencing guidelines generally provides for a two-level reduction if a defendant "clearly demonstrates acceptance of responsibility for his offense," U.S.S.G. 3E1.1, "[a] defendant who enters a guilty plea is not entitled to an adjustment . . . as a matter of right," id. at comment (n.3). "The sentencing judge is in a unique position to evaluate a defendant's acceptance of responsibility." Id. at comment (n.5). Given the discretionary nature of most sentencing issues, Mr. Greenwood states merely a conclusory assumption that his sentencing guideline range would have been lower. Such a conclusion is insufficient to support his claim of ineffective assistance of counsel. See United States v. Fisher, 38 F.3d 1144, 1147 (10
Mr. Greenwood fails to provide any facts or persuasive argument that there was a viable plea offer from the prosecution under which he would have agreed to plead guilty, he fails to demonstrate that there would have been a basis in fact for the Court to accept the plea of guilty pursuant to such an agreement, or that no provisions of such an agreement would be found to be contrary to law, or that his resulting sentence would have been lower. See e.g. FED. R. CRIM. P. 11(b)(3) ("Before entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea.") and 11(c)(3) (concerning judicial consideration of a plea agreement).
Finally, contrary to the position he now takes in his Reply, Mr. Greenwood's original representation to the Court in his § 2255 Motion was that he "consistently expressed his innocence and a desire to proceed to trial on the charged offenses." Docket No. 159 at 7. At best, Mr. Greenwood has demonstrated a change of heart concerning a guilty plea as part of these postconviction proceedings, which is insufficient to demonstrate that the outcome of the proceedings likely would have changed under the prejudice prong of Strickland. See United States v. Allen, 497 Fed.Appx. 853, 854 (10
Accordingly, with regard to his claim that centers on counsel's stipulations, the Court finds that Mr. Greenwood has not demonstrated his trial counsel's performance fell below the Strickland standard, and even if it had, Mr. Greenwood has not demonstrated that such deficient performance was prejudicial and thus warrants relief. Therefore this claim will be denied.
Mr. Greenwood's Claims 5, 6, 7, 8, 10, 11, 12, and 13 contend that his trial counsel was ineffective in failing to make various objections. Mr. Greenwood must show "that counsel did not exercise the skill, judgment and diligence of a reasonably competent defense attorney," United States v. Voigt, 877 F.2d 1465, 1468 (10
Mr. Greenwood alleges that his attorney was constitutionally ineffective by failing to object when the Alcohol, Tobacco and Firearms ("ATF") case agent testified as an expert at trial that the contraband involved was "actual narcotics" and was "crack cocaine purchased from Mr. Greenwood." Docket No. 159 at 18 (citing the Trial Transcript at 202:16 and 221:22). Mr. Greenwood contends that the agent's testimony was objectionable because it concerned ultimate issues to be decided by the jury and therefore improperly invaded the jury's determination of those ultimate issues. Id.
The Court agrees with the Government that Mr. Greenwood has not demonstrated or plausibly alleged facts reflecting that the ATF case agent's testimony in this regard was offered as an expert opinion at trial. Mr. Greenwood provides no basis for the Court to find that the ATF case agent's reference to "actual narcotics" in the context of describing agency procedure which he performed with regard to custody of contraband and in authenticating certain evidence involved in the agent's investigation were subjects that would not within the agent's general knowledge as a fact witness in the case when he testified:
Docket No. 165 at 8 (citing Docket No. 144 at 66-67 which reflects the portion of the Trial Transcript at 202:16 cited by Mr. Greenwood) (emphasis supplied).
Docket No. 165 at 8-9 (citing Docket No. 144 at 85 which reflects the portion of the Trial Transcript at 221:22 cited by Mr. Greenwood).
As represented by the Government, and unchallenged by Mr. Greenwood, the parties had stipulated prior to trial that a forensic scientist from the Denver Police Department "would testify that Government Exhibit[s] 7, 20, and 27 tested positive for cocaine base or crack, a schedule II controlled substance." Docket no. 165 at 9 (citing Docket No. 146 at 22). Mr. Greenwood has offered no basis upon which the Court may find that the package contained something other than cocaine. Therefore, Mr. Greenwood has failed to demonstrate how the lack of objection to admissible testimony in this regard would be legally unreasonable or that the lack of objection with regard to this testimony prejudiced him in the outcome of his case.
Even if the agent had testified as an expert, the rules of evidence allow an expert to opine on an "ultimate issue" to be decided by the trier of fact. Fed. R. Evid. 704(a); United States v. Dazey, 403 F.3d 1147, 1171 (10
Mr. Greenwood alleges ineffective assistance by his attorney at trial for failing to object when the ATF case agent testified that Mr. Greenwood had two prior convictions for drug distribution. Docket 159 at 20-21 (citing Trial Transcript at 182:2). Mr. Greenwood argues that because he did not testify on his own behalf and because the fact of his convictions had already been stipulated to, the Federal Rules of Evidence precluded the testimony by the case agent and his attorney committed error by not objecting to the testimony. Id. Citing to Strickland and three cases from the Tenth Circuit Court of Appeals, Mr. Greenwood claims that his attorney committed serious error by not objecting to the testimony and that "but for counsel's unprofessional error, the result of the proceeding would have been different." Id. at 21. Mr. Greenwood cites to United States v. Ferguson, 604 Fed.Appx. 687 (10
What Mr. Greenwood fails to address in either his § 2255 Motion or his Reply concerning this claim is the reason why the ATF case agent's testimony regarding Mr. Greenwood's prior convictions was offered at trial, which the Government indicates and Mr. Greenwood does not dispute, was: "Because [Mr.] Greenwood's theory of defense was entrapment, the prosecution was entitled to introduce evidence — including convictions for acts — to show that [Mr.] Greenwood was predisposed to commit the charged offenses." Docket No. 165 at 10. As opined by the Tenth Circuit in connection with Mr. Greenwood's appeal of the denial of his motion for judgment of acquittal regarding the two drug counts on which he was convicted:
United States v. Greenwood, 594 Fed.Appx. 486, 488-89 (10
While it is accurate that Mr. Greenwood did not testify in the trial, his prior similar illegal acts were still admissible at trial based on the defense of entrapment being raised. Hildreth, 485 F.3d at 1126. The first claim of Mr. Greenwood's § 2255 Motion and the record herein reflects that the stipulation reached regarding his prior felony convictions encompassed just the two counts of felon in possession of a firearm against Mr. Greenwood. Accordingly, Mr. Greenwood cannot establish that his counsel's failure to object to the admissible evidence of his prior convictions was legally unreasonable, nor has he established how the outcome of his case would have changed but for the lack of objection. Hough, 272 F.3d at 898 (counsel's failure to object to admissible evidence falls short of satisfying both elements of the Strickland test). Therefore, this claim shall be dismissed.
At trial, the case agent testified about the meaning of the words "zip," "hammer," and "banger" as the words are used "in the criminal underworld." Docket No. 173 at 21. Mr. Greenwood contends that the case agent was not qualified to define the words as associated with criminal activity and that the definitions the case agent provided were prejudicial. Id. Therefore, Mr. Greenwood posits, his attorney provided him with ineffective assistance at trial because the attorney did not object to the case agent's testimony. Id. at 21-22.
The Court agrees with the Government that the record shows the case agent had adequate knowledge or experience to render a reliable opinion about the meaning of "zip," "hammer," and "banger." Docket No. 165 at 10 (citing the Trial Transcript contained at Docket No. 144 at 49 (agent explains that he had worked hundreds of narcotics cases and is familiar with the word "zip") and 60 (same for the words "hammer" and "banger")). Further, pursuant to Fed. R. Evid. 701, a lay witness may properly testify about the meaning of drug code words when the witness is significantly involved in the underlying criminal investigation. See United States v. Akins, 746 F.3d 590, 599 (5
The ATF case agent who testified as to the meaning of "zip," "hammer," and "banger" was part of the investigation involving Mr. Greenwood, he handled the informant involved by outfitting the informant with electronic surveillance, provided the informant with funds to make the purchase, gave the informant direction, and was the informant's point of contact during the controlled purchase on September 13, 2012. Docket No. 144 at 40-41. While the agent's training and experience as an ATF agent would provide him with adequate knowledge or experience to render a reliable opinion about the meaning of "zip," "hammer," and "banger," his understanding of the terms is grounded upon his knowledge of the facts of Mr. Greenwood's case. While the agent did not expressly state whether the basis of his knowledge was the investigation of Mr. Greenwood, as distinguished from his experience, the record does not clearly or obviously reflect that his testimony was not admissible lay-opinion testimony.
Whether the ATF agent's testimony is viewed as expert or lay-opinion testimony, Mr. Greenwood has failed to demonstrate how the lack of objection to the testimony would constitute deficient performance by his attorney in this regard, since the testimony was admissible, or how the lack of objection to admissible testimony prejudiced him in the outcome of his case. Therefore, this claim will be dismissed.
Mr. Greenwood alleges that hearsay testimony was admitted in the Government's case-in-chief which improperly bolstered the Government's case. Docket No. 159 at 22. In this regard, Mr. Greenwood takes issue with hearsay statements he claims were introduced through the testimony of the ATF case agent and which he therefore argues should have been objected to by his attorney.
The first instance of hearsay asserted by Mr. Greenwood concerns the agent's testimony that a female clerk working in Mr. Greenwood's store called Mr. Greenwood and established a place for the informant and Mr. Greenwood to meet for the drug transaction:
Docket No. 144 at 55.
Mr. Greenwood contends that because the store clerk did not testify and no other evidence was introduced to show that the agent had personal knowledge of what the store clerk did or said, the agent's testimony was objectionable as uncorroborated hearsay. Docket No. 159 at 22-23 (citing Trial Transcript at 191:8). Therefore, Mr. Greenwood states, his attorney was deficient in his performance at trial and counsel's deficiency was prejudicial because the jury should not have heard this line of testimony. Id.
However, as the Government's Response points out, the agent was listening to the exchange between the informant and the store clerk first-hand. Docket No. 165 at 11; Docket Nos. 144 at 47 ("A:. . . And the microphone catches voice, not only the confidential informant's voice or whoever they're speaking with, but things that are happening around them. . . .") and 54 ("Q: . . . How are you being updated?; A: It's being broadcast live over radio waves, and I hear it in my car, live time."). Foundation for the agent's testimony was established with regard to the exchange between the store clerk and the informant, and therefore, the agent having personally heard the exchange between the store clerk and the informant, Docket No. 144 at 55, the agent had sufficient knowledge to provide witness testimony concerning the exchange. See FED. R. EVID. 602 ("A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.").
The second exchange Mr. Greenwood argues was objectionable hearsay introduced through the testimony of the ATF case agent concerns statements by Mr. Greenwood concerning the quality of the drugs as "Peruvian" and "some nice shit." Docket No. 159 at 22 (citing Trial Transcript at 216:16). The record reflects that the statements by Mr. Greenwood were recorded on video. Docket No. 144 at 77-78. Therefore, since Mr. Greenwood made the statements, the statements are not hearsay and would therefore be admissible against him at trial. See FED. R. EVID. 801(d)(2)(A); see also United States v. Townley, 472 F.3d 1267, 1274 (10
Since the agent's testimony was admissible as a party admission, Mr. Greenwood has failed to demonstrate how the lack of objection to the testimony would constitute deficient performance by his attorney in this regard and additionally Mr. Greenwood has failed to show how the lack of objection to admissible testimony prejudiced him in the outcome of his case, particularly since the video of the statements had already been played for the jury prior to the agent's testimony.
Plaintiff has failed to establish either cause or prejudice under Strickland with regard to his eighth claim of ineffective assistance of counsel. Accordingly, Plaintiff's claim of ineffective assistance of counsel based on no objections being made by his trial attorney to the agent's testimony concerning the exchange between the informant and the store clerk and the statements made by Mr. Greenwood will be dismissed.
In his Claim 10, Mr. Greenwood alleges that his trial attorney was constitutionally ineffective by failing to object when the ATF case agent testified "about what someone else did," i.e., that the Denver Police Department laboratory conducted testing on the contraband and confirmed that the substance involved tested positive as crack cocaine. Docket No. 159 at 25. Mr. Greenwood argues that because the forensic analyst who conducted the testing did not testify at trial, he was deprived of an opportunity to confront and cross-examine the proponent of the alleged evidence. Id.
Mr. Greenwood relies on Crawford v. Washington, 541 U.S. 36 (2004), for the proposition that a "testimonial certification" of the test results could be admitted only where the declarant is unavailable and only where the defendant has had a prior opportunity to cross-examine. Docket No. 159 at 25. However, Mr. Greenwood fails to tie the authority he has cited to the facts of his case. As pointed out by the Government with regard to this claim by Mr. Greenwood, the forensic analyst from the Denver Police Department laboratory did not testify because the parties stipulated that the tested substances were cocaine. Docket No. 165 at 12 (citing Docket No. 146 at 22). Therefore, based on the stipulation, Mr. Greenwood's reliance on Crawford is misplaced and the prosecution could introduce the laboratory report into evidence without offering a witness competent to testify as to its accuracy. See Melendez-Diaz v. Massachusetts, 557 U.S. 305, 314 n.3 (2009) ("The right to confrontation may, of course, be waived. . . ."); Cf. Bullcoming v. New Mexico, 564 U.S. 647, 651 (2011) ("Absent stipulation, the Court [in Melendez-Diaz] ruled, the prosecution may not introduce such a report without offering a live witness competent to testify to the truth of the statements made in the report."). Since the laboratory results were admitted by stipulation, the ATF case agent's comments constituted restatement of facts already stipulated to be admissible as evidence.
In keeping with the acknowledgement by the courts that the right to confrontation may be waived, the Court of Appeals for the Tenth Circuit has opined, "some rights are firmly in the domain of trial strategy, and can be waived by counsel even in the face of client disagreement." Aptt, 354 F.3d at 1282 (citing Jones v. Barnes, 463 U.S. 745, 751 (1983)). In this regard, the Tenth Circuit has focused on whether "the attorney's decision [can be said to be] a legitimate trial tactic or part of a prudent trial strategy." Id. at 1283 (citing Hawkins v. Hannigan, 185 F.3d 1146, 1155 (10
Mr. Greenwood provides no legal or factual basis upon which an objection to the agent's testimony would or could have been sustained by the Court in light of the stipulation. Absent such a demonstration, "it appears that counsel made a legitimate strategic choice to prevent the presentation of harmful evidence to the jury by stipulating rather than having the government forensics expert take the stand." United States v. Ashley, 41 Fed.Appx. 240, 243 (10
Mr. Greenwood cannot establish that counsel unreasonably failed to make a meritorious objection to the agent's testimony regarding the laboratory results which the parties had stipulated to or that the lack of objection resulted in prejudice to him. Accordingly, this claim is without merit and will be dismissed.
Mr. Greenwood's Claims 11 and 12 concern the term "predisposition" as used during his trial in connection with his asserted defense of entrapment. He argues that the Court should not have used the term when instructing the jury, Docket No 159 at 26, and he contends that the Court responded improperly to jury questions that centered on that term, id. at 28. Mr. Greenwood claims that his attorney was ineffective for failing to object to the jury instruction given by the Court or to object to the Court's response to the jury's questions concerning clarification of the term. Id. at 27 and 30-31.
At trial, the jury was instructed that: "As a defense to the crimes charged in this case, the defendant, Kenneth Greenwood, has asserted that he was entrapped. The defense has two elements: 1. Government agents must have induced the defendant to commit the offense; and 2. The defendant must not have been otherwise predisposed to commit the particular offenses, given the opportunity." Docket No. 114-9 at 17. The instruction went on to indicate:
Id. at 17-18
During deliberations, one of the questions asked by the jury was:
Docket No. 159 at 26 (citing Trial Transcript at 727:4).
Defense counsel responded to the Court's reading of the question, "I think our response would be absolutely that it is case-by-case basis." Docket No. 147 at 8. The response proposed by the Court, was:
Id. at 9.
Counsel for Mr. Greenwood agreed that the proposed response was an accurate statement of the law, assisted the jury in applying the law, and was responsive to the question. Id. Counsel for the government argued that the first two sentences of the response were sufficient. Id. The longer response proposed by the Court was given to the jury. Id.
Mr. Greenwood argues that the Court's use of the term "predisposition" in the jury instruction was contrary to the conclusion of the Court of Appeals for the Tenth Circuit with regard to the pattern jury instruction in this regard, with the federal appellate court stating that "[t]he Committee has chosen not to use the word `predisposition' as it sounds overly technical and thus may be confusing to the average juror." Docket No. 159 at 27 (citing the Comment for Tenth Circuit Proposed Criminal Pattern Instruction No. 1.27). Mr. Greenwood additionally contends that the Court's response to the question of the jury created further confusion. Therefore, he argues, his counsel was ineffective for failing to object to the response to the question of the jury and that the failure of his counsel to object was prejudicial to him, causing an unreliable result in the proceedings against him. Id. at 28.
A trial judge has extensive discretion in tailoring jury instructions, provided they correctly state the law and fairly and adequately cover the issues presented. United States v. Conway, 73 F.3d 975, 980 (10
Mr. Greenwood has failed to show that the jury instruction or the response to the jury's question misled the jury as to the governing law or was otherwise erroneous. As the Government indicates in its response, "[a] different instruction would not have dispensed with the element of predisposition; it simply would have expressed the same concept in different terms." Docket No. 165 at 14 (citing Pattern Instruction 1.27 which replaces "predisposed to commit" with "already willing to commit"). Whether viewed under either terminology, the Tenth Circuit determined in affirming the denial of Mr. Greenwood's motion for acquittal that there was "[a]mple evidence" presented to the jury to show that Mr. Greenwood was predisposed or already willing to sell drugs. Greenwood, 594 Fed.Appx. at 489.
There being no merit to a claim of error regarding the jury instructions or the response to the jury's question, counsel's performance was not deficient for failure to object in these instances. Failure to raise an issue that lacks merit does not constitute ineffective assistance of counsel under either prong of Strickland. See Orange, 447 F.3d at 797. Accordingly, this claim shall be dismissed.
Mr. Greenwood contends that his attorney was constitutionally ineffective for failing to object to responses provided by the Court to four questions asked by the jury during their deliberations:
Docket No. 159 at 28 (citing Trial Transcript at 721:19); Docket No 165 at 15 (citing Docket No. 147 at 2-4).
Docket No. 159 at 29 (citing Trial Transcript at 721:22); Docket No. 165 at 15 (citing Docket No. 147 at 2-4).
Docket No. 159 at 29 (citing Trial Transcript at 724:10); Docket No. 165 at 15-16 (citing Docket No. 147 at 5-7).
Docket No. 159 at 30 (citing Trial Transcript at 727:4); Docket No 165 at 16 (citing Docket No. 147 at 8-11).
Mr. Greenwood argues that his counsel was ineffective based on neglect in failing to ensure that the jury's confusion as evidenced by their questions was "cleared up" and that the failure of his attorney to do so caused the jury to return a prompt verdict of guilty. Docket No. 159 at 30. While Mr. Greenwood relies on Bollenback v. United States, 326 U.S. 607, 612-13 (1946), for the proposition that the Court was required "to expand its initial jury instructions when the jury questions arose" and therefore his attorney should have objected, he fails to indicate what expansion of the initial jury instructions his attorney was professionally deficient in failing to pursue. Mr. Greenwood neither alleges facts or legal authority which would demonstrate that the Court's answers to the jury's questions incorrectly stated the law or that the answers did not sufficiently address the questions submitted by the jury in terms of evidence presented at trial. Contrary to Mr. Greenwood's position, the jury's questions did not reflect such confusion as would render the answers given improper or provide a basis under which the initial jury instructions would require expansion. Each of the jury's questions did not repeatedly question the Court in the same content and context, but were instead diverse enough to demonstrate that the Court's answer to each question was responsive and satisfactory to the jury's inquiry.
Further, Mr. Greenwood fails to link the fact of the jury returning a prompt verdict of guilty to any plausible facts demonstrating continued confusion by the jury that was not cured by the Court's responses to the jury's questions. Mr. Greenwood fails to demonstrate how any of the Court's answers he challenges were somehow vague or nonresponsive to the question asked, thereby being unresponsive to the jury's questions and potentially perpetuating any confusion of the jury. Accordingly, Mr. Greenwood cannot show that counsel's failure to object to the Court's answers to any of the four jury questions was deficient or prejudicial. Therefore, this claim will be dismissed.
In his Claim 13, Mr. Greenwood contends that since he was willing to plead guilty under the plea agreement which was rejected by the Court because of an appellate waiver, he was in essence forced to go to trial. Docket No. 159 at 32-33. Therefore, Mr. Greenwood continues, his failure to plead guilty was not his fault and he was entitled to reduction in his base level under the United States Sentencing Guidelines ("USSG") for acceptance of responsibility. Id. The Court did not allow for the acceptance of responsibility deduction, and Mr. Greenwood claims his attorney deficiently performed by failing to object to the denial of the reduction, thereby causing him prejudice because his sentence was increased several months without the reduction being applied. Id.
Mr. Greenwood's attorney did object to the determination by the United States Probation Office in the Pre-Sentence Investigation Report ("PSIR") that Mr. Greenwood was not entitled to the acceptance of responsibility reduction because he proceeded to trial. Docket No. 121 at 24-28. Counsel argued that Mr. Greenwood was deserving of the two-level adjustment to his base level under the USSG because he attempted to plead guilty early in the case, but that plea was rejected based on the appeal waiver in the agreement. Id. Further, citing to Tenth Circuit authority, counsel argued that Mr. Greenwood had admitted all elements of the offense under his asserted defense of entrapment and therefore, the reduction was warranted. Id. Counsel continued to argue the position at sentencing, but the Court declined to apply the reduction. Docket No. 126.
As has been previously stated, while it is true that the sentencing guidelines generally provides for a two-level reduction if a defendant "clearly demonstrates acceptance of responsibility for his offense," U.S.S.G. 3E1.1, "[a] defendant who enters a guilty plea is not entitled to an adjustment . . . as a matter of right," id. at comment (n.3). "The sentencing judge is in a unique position to evaluate a defendant's acceptance of responsibility," and in hindsight, his or her decision "is entitled to great deference." Id. at comment (n.5). Accordingly, the decision of the Court concerning whether or not to grant the acceptance of responsibility reduction in sentencing Mr. Greenwood was squarely within the discretionary province of the Court and Mr. Greenwood points to no winning argument that was passed over by his attorney in attempting to convince the Court that the reduction was warranted. Therefore, Mr. Greenwood's claim of ineffective assistance of counsel in this regard essentially amounts to a complaint that his counsel's arguments concerning the two-level reduction were not sufficiently persuasive to convince the Court to award the reduction. It is well established that the mere fact that counsel's arguments were unsuccessful does not render counsel's performance constitutionally deficient. See United States v. Miller, 464 Fed.Appx. 750, 752 (10
In the second claim of his § 2255 Motion, Mr. Greenwood contends that his attorney's performance at trial was objectively unreasonable when counsel failed to make sure that Mr. Greenwood was present "during discussions with the Court concerning a note from the jury for clarification of a legal issue." Docket No. 159 at 9-10. Mr. Greenwood claims that by counsel not ensuring his presence during such discussion, that he was substantially prejudiced because he "could not take part in considerations of trial counsel's strategy and how the jury would be instructed." Id. at 10. In support of his claim, Mr. Greenwood cites to seminal cases from the United States Supreme Court and to the Federal Rules of Criminal Procedure regarding a criminal defendant's right to be present at trial. See FED. R. CRIM. P. 43(a)(2) (a criminal defendant "must be present at . . . every trial stage, including jury impanelment and the return of the verdict); United States v. Gagnon, 470 U.S. 522, 526 (1985); Brady v. United States, 397 U.S. 742, 748 (1970); Snyder v. Massachusetts, 291 U.S. 97, 106 (1934), overruled on other grounds by Malloy v. Hogan, 378 U.S. 1, 84 (1964).
Mr. Greenwood's understanding of and attempt at application of governing authority with regard to a defendant's presence at trial, however, is not accurate in the context of his claim in this regard. It is true that the Supreme Court has recognized that "a defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to the outcome if his [or her] presence would contribute to the fairness of the procedure." Kentucky v. Stincer, 482 U.S. 730, 745 (1987). However, it must be shown that the defendant's presence "would have been useful in ensuring a more reliable determination." Id. at 747. Rule 43 of the Federal Rules of Criminal Procedure expressly indicates that the accused need not be present at "proceeding[s] involv[ing] only a conference or hearing on a question of law." FED. R. CRIM. P. 43(b)(3). Instructive on this issue is that the Court of Appeals for the Tenth Circuit has reasoned that "[t]he jury instruction conference traditionally encompasses purely legal issues and, as such, it will be a rare case where a defendant can establish that his presence was essential to his opportunity to present his defense." Larson v. Tansy, 911 F.2d 392, 395 (10
Here, the jury sent out two questions, and the Court held a telephonic conference outside of the presence of the jury to consider a response to the questions. Docket No. 147 at 2-3 ("THE COURT: All right. No one else is present in the courtroom but the court reporter and the courtroom deputy. The jury has sent out two questions. . . ."). The responses to the questions were returned to the jury in writing, id. at 4, and Mr. Greenwood concedes that the questions from the jury were "for clarification of a legal issue," Docket No. 159 at 9-10. Consequently, the lack of Mr. Greenwood's presence during the telephone conference fails to demonstrate either cause or prejudice under Strickland to establish a claim of ineffective assistance of counsel. Therefore, this claim shall be dismissed.
Mr. Greenwood asserts that his trial attorney failed to either challenge or cross-examine the Government's informant concerning payments the informant received for his assistance to law enforcement authorities. Docket No. 159 at 14. Mr. Greenwood argues that counsel's performance was deficient in this regard because the potential bias of the informant was not sufficiently explored and because the informant was the Government's witness-in-chief, Mr. Greenwood was prejudiced by the deficient performance. Id.
In order to assert an ineffective assistance of counsel claim, Mr. Greenwood must set forth specific "performance" errors on the part of trial counsel and demonstrate "prejudice," i.e., a "reasonable probability" that, absent counsel's errors, a different outcome would have occurred. Strickland, 466 U.S. at 688. As the Government has demonstrated from the record in this regard, which Mr. Greenwood does not refute, the jury did not lack knowledge regarding the informant's motive and bias:
Docket No. 165 at 18.
The testimony obtained by trial counsel from the Agent and Detective on cross-examination was not only relevant to the issues Mr. Greenwood claims as deficiencies in counsel's performance but Mr. Greenwood fails to outline any additional relevant testimony that should have or could have been obtained from cross-examination of the informant. Trial strategy includes determining how best to cross-examine witnesses. See Pickens v. Gibson, 206 F.3d 988, 1002 (10
Further with regard to his Claim 3, relying on United States v. Singleton, 165 F.3d 1297 (10
Mr. Greenwood has not established that counsel's performance was deficient or that he was prejudiced in this regard, and therefore this claim provides no basis for relief under 28 U.S.C. § 2255. Accordingly, the claim will be dismissed.
In the fourth claim of his § 2255 Motion, Mr. Greenwood alleges his counsel rendered ineffective assistance by allowing "blatant prosecutorial misconduct to occur in this case" and that "[m]ost of the government's prosecutorial misconduct and admonitions by the Court were found at a Motions Hearing." Docket No. 159 at 15-6. Mr. Greenwood argues that "[u]pon review of the referenced transcripts [of the motions hearing], it becomes readily apparent that government counsel went beyond its duty by attempting to prevent disclosure of exculpatory information and to hamper the defense's efforts to review bias of the informant." Id. at 16.
As pointed out by the Government's Response and acknowledged by the substance of Mr. Greenwood's argument with regard to this claim, the alleged violations Mr. Greenwood champions under this claim were the subject of two motions to dismiss. See Docket No. 165 at 19 (citing Docket Nos. 50 and 70). Therefore, Mr. Greenwood's claim of ineffective assistance of counsel in this regard is in reality a complaint that his counsel's arguments in connection with the dismissal motions were not sufficiently persuasive to convince the Court to grant a dismissal. As previously stated, it is well established that the mere fact that counsel's arguments are unsuccessful does not render counsel's performance constitutionally deficient. See Miller, 464 Fed.Appx. at 752 (failure to obtain favorable outcome not proof of deficient performance).
With regard to any potentially remaining contentions that his lawyer was constitutionally ineffective for failing to object to prosecutorial misconduct, Mr. Greenwood fails to clearly identify any further alleged misconduct by the prosecution or how his counsel failed to reasonably perform with regard to it or how it affected his case. His remaining allegations regarding prosecutorial misconduct and counsel's alleged failure to object are simply too vague and conclusory to constitute a cognizable ineffective assistance of counsel claim. See Hatch, 58 F.3d at 1457 (allegations of ineffective assistance of counsel must be specific and particularized; "[c]onclusory allegations will not suffice to warrant a hearing.")); see also Fisher, 28 F.3d at 1147 (same). Mr. Greenwood has failed to carry his burden of alleging facts which, if proven, would entitle him to relief in this regard. Therefore, he cannot establish a claim of ineffective assistance of counsel under this claim and it will be dismissed.
As another instance of ineffective assistance of trial counsel, Mr. Greenwood contends that trial counsel failed to cross-examine the ATF case agent concerning testimony given by the agent concerning the Government's informant. Docket No. 159 at 24. Mr. Greenwood argues that the agent "alleg[ed] that everything the confidential informant stated was corroborated by video," which was not true. Id. Additionally, Mr. Greenwood argues that the agent testified "that the informant alleged [Mr. Greenwood] had sold drugs to two (2) other individuals who were present in the car at the time an alleged drug transaction allegedly occurred between the informant and [Mr. Greenwood]," but these alleged transactions were not recorded and therefore `could not have been the truth.'" Id. Mr. Greenwood concludes that his trial counsel was ineffective for failing to object on grounds of hearsay or to cross-examine the agent on the agent's contradictory statements. Id. In response to Mr. Greenwood's claim, the Government asserts that the claim "is self-defeating." Docket No. 165 at 19. The Court would agree.
Referring to the portion of the trial transcript cited by Mr. Greenwood in support of his claim, the Government correctly observes that the cited portion is "the moment at which defense counsel impeached [the agent] with his contradictory statements." Id. at 20 (citing Docket No. 144 at 129-30, the docket and page number corresponding to Mr. Greenwood's citation to the same instance in the Trial Transcript at 265-66). Mr. Greenwood fails to allege any basis in fact or governing law to support a determination that counsel's attempt instead to impeach the agent during cross-examination, rather than to object, did not constitute sound trial strategy. See Strickland, 466 U.S. at 690 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955) ("[T]he defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'"); see also Snow v. Sirmons, 474 F.3d 693, 721 (10th Cir. 2007) (observing that when "[t]he failure to object appears to be trial strategy[,] . . . it cannot be ground[] for a claim of ineffective assistance of counsel").
Viewing Mr. Greenwood's claim as being that his trial attorney unreasonably failed to impeach the agent's testimony with the contradictory statements, he does not explain how counsel's failure to further highlight the information on cross-examination was deficient or prejudicial. The burden in this respect, as it is in establishing all of the alleged deficiencies of counsel, must be carried by Mr. Greenwood. Mr. Greenwood's basic contention instead boils down to allegations that some other course of trial strategy in raising objection to or in cross-examination of the agent would have been more successful. However, second guessing trial counsel after a conviction at trial does not establish that counsel's conduct of the defense during trial was unreasonable at the time or fell outside of standards for acceptable representation. The proper standard for measuring attorney performance is not that of perfection. United States v. Haddock, 12 F.3d 950, 955-56 (10
The record in this regard reflects that on cross-examination, trial counsel did raise the issue and question the agent regarding the inaccuracy of the agent's direct testimony. Docket No. 144 at 129-30. Relevant to the cross-examination exchange is Jury Instruction No. 5, which informed the jury:
Docket No. 114-9 at 6.
The jury is presumed to have followed the instructions as given. United States v. Almaraz, 306 F.3d 1031, 1037 (10
Mr. Greenwood's final claim in his § 2255 Motion concerns what he argues was ineffective assistance of his appellate attorney for failing to argue that the cumulative error doctrine required a new trial in his case. Docket No 159 at 34. Based on all of the claims he has raised in this postconviction proceeding, Mr. Greenwood contends that "there is ample evidence that appellate counsel failed to conduct a conscientious review of the record to raise non-frivolous issues which would have had a positive outcome during the direct appeal." Id. at 35. Therefore Mr. Greenwood posits that appellate counsel's failure to argue the cumulative error doctrine in the appellate process was constitutionally prejudicial and entitles him to a new trial. Id.
"Although criminal defendants are entitled to effective assistance of counsel on direct appeal . . . it is difficult to establish a claim of ineffective assistance of appellate counsel based on a failure to raise a particular issue on appeal." United States v. Parada, 555 Fed.Appx. 763, 766 (10
This Court has addressed each clam of ineffectiveness of trial counsel raised by Mr. Greenwood in his § 2255 Motion and found that he has failed to establish that his trial counsel was ineffective on any of the claims brought forth. "[A] cumulative-error analysis should evaluate only the effect of matters determined to be error, not the cumulative effect of non-errors." United States v. Rivera, 900 F.2d 1462, 1471 (10
The Court has reviewed Mr. Greenwood's motion and the documents in support of his motion under 28 U.S.C. § 2255. The Court finds that Mr. Greenwood has not shown that his conviction or sentence was imposed in violation of the Constitution or federal law. Therefore, his motion to vacate, set aside or correct his conviction or sentence will be denied.
The files and records in this case conclusively illustrate that Mr. Greenwood is not entitled to any relief. Accordingly, no evidentiary hearing is required. United States v. Marr, 856 F.2d 1471, 1472 (10
A certificate of appealability may issue only if the movant has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To make a substantial showing of a denial of a constitutional right, the movant must show that reasonable jurists could debate whether the motion should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further. Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotations omitted). Mr. Greenwood has failed to make this showing. For the reasons set forth above, the Court finds that a certificate of appealability shall not issue.
Finally, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith and therefore in forma pauperis status will be denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438 (1962). If Mr. Greenwood files a notice of appeal, he also must pay the full $505 appellate filing fee or file a motion to proceed in forma pauperis in the United States Court of Appeals for the Tenth Circuit in accordance with Fed. R. App. P. 24.
1. That Mr. Greenwood's Motion Under 28 U.S.C. § 1155 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (Docket No. 158) is denied and this action dismissed;
2. That under 28 U.S.C. § 2253(c)(2), a certificate of appealability is denied; and
3. That leave to proceed in forma pauperis on appeal is denied without prejudice to the filing of a motion seeking leave to proceed in forma pauperis on appeal in the United States Court of Appeals for the Tenth Circuit.