JAMES S. GWIN, District Judge.
Petitioner Donte Booker petitions for habeas corpus relief under 28 U.S.C. § 2255.
On July 1, 2015, the United States indicted Petitioner Booker with attempted possession with intent to distribute five or more kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1),
At trial, the Court granted on an interim basis the Government's motion in limine to exclude evidence of Booker's prior exoneration in an unrelated 1987 rape conviction.
At the close of the Government's case, Petitioner Booker moved for judgment of acquittal under
On March 12, 2013, a jury convicted Booker.
On July 18, 2013, the Court sentenced Booker to 200 months' imprisonment with credit for time served, to be followed by five years' supervised release.
On July 23, 2013, Petitioner Booker filed a notice of appeal with the Sixth Circuit Court of Appeals.
The Sixth Circuit affirmed this Court's judgments.
On May 26, 2015, Petitioner Booker petitioned this Court for habeas corpus relief under 28 U.S.C. § 2255.
Booker argues (1) ineffective assistance of trial and appellate counsel; (2) improper designation as a career offender under
Thereafter, Booker filed various related motions, all of which the Court resolved.
On November 2, 2015, Booker filed a motion to appoint counsel and supplement his pending petition.
Petitioner Booker and his Attorney Jeffrey Lazarus subsequently filed many, and sometimes conflicting, supplements to Booker's petition and other filings.
On August 26, 2016, Booker filed a motion to remove his attorney and proceed pro se.
The Court set a hearing for both motions on December 14, 2106.
At the hearing, the Court (1) granted Petitioner Booker's motion to remove counsel and proceed pro se; and (2) granted the Government's motion to hold the case in abeyance pending the outcome in Beckles.
Since the hearing, Booked has further supplemented his petition.
To prevail on a § 2255 motion alleging a constitutional error, the movant "must establish an error of constitutional magnitude which had a substantial and injurious effect or influence on the proceedings."
Petitioner Booker claims (1) the Court abused its discretion in categorizing Booker as a career offender under U.S.S.G. § 4B1.1; (2) an assistant district attorney committed prosecutorial misconduct by making a prejudicial statement during closing argument; and (3) Booker's Confrontation Clause rights were violated because his case lacked a victim.
Booker procedurally defaulted all three arguments. When a habeas petitioner fails to raise an argument on direct appeal, it is procedurally defaulted.
To show cause, Booker must "show that some objective factor external to the defense"
All three of Petitioner's arguments were available on appeal. Petitioner objected to his career-offender designation in his sentencing memo and at the sentencing hearing.
Because Petitioner Booker raised these arguments during trial or at sentencing, no "objective factor" kept him from raising the arguments on appeal.
Nor does failure to raise those arguments amount to actual prejudice.
As to Booker's career offender argument, even "mistakes in the application of the sentencing guidelines . . . rarely, if ever, warrant relief from" procedural default.
Furthermore, the Court considered this argument
Booker's prosecutorial misconduct argument also fails to show actual prejudice. During closing arguments, Assistant U.S. Attorney Edward Feran told the jury that "in [his] 15 years as a Federal Prosecutor, the evidence [against Booker] couldn't be more simplistic"—in other words, the evidence easily supported a conviction when compared to evidence in other cases.
Later, the Court denied Attorney Synenberg's motion for a mistrial based on the comment, but again instructed the jury not to consider the statement.
Contrary to Petitioner Booker's assertion that this Court "fail[ed] to give an appropriate curative instruction,"
Finally, Booker's Sixth Amendment Confrontation Clause argument also fails because it misunderstands the meaning of the Clause. Booker argues that because his crime caused no harm to a particular person, and therefore no victim was present at trial, his rights were violated.
The Confrontations Clause protects a Petitioner's right to meet opposing witnesses "faceto-face" and cross-examine them to ensure reliability.
Accordingly, Petitioner Booker's habeas petition is
To prevail on an ineffective assistance of counsel claim, a habeas petitioner must satisfy the two-pronged Strickland v. Washington
First, the petitioner must show that his counsel's performance was deficient, meaning it "fell below an objective standard of reasonableness."
Second, the petitioner must show that the deficiency prejudiced his defense; in other words, "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."
In this case, Petitioner argues that both his trial and appellate counsel were ineffective.
Petitioner argues that trial counsel Synenberg was ineffective because Synenberg (1) did not revisit the Court's interim grant of the Government's motion to exclude evidence of his exoneration; (2) did not renew the motion for acquittal; (3) did not file a motion to dismiss the indictment; (4) failed to present exculpatory evidence;
Booker's trial counsel was not ineffective for failing to revisit the Court's interim ruling excluding evidence of Booker's exoneration for a 1987 rape conviction. Attorney Synenberg opposed the initial motion in writing.
In light of his prior arguments and the Court's stated conclusion on the issue, Attorney Synenberg was reasonable in not revisiting the Court's decision. Nothing suggests any reargument would have changed anything.
Nor was Attorney Synenberg ineffective for failing to renew the Rule 29 motion for acquittal. The only evidence presented after the initial motion was Petitioner Booker's testimony.
Petitioner Booker argues that his trial counsel should have moved to dismiss the indictment for "outrageous government conduct" and because it did not include "elements of the charge, or names of whom the petitioner had conspired with in this case."
Petitioner provides no evidentiary support for his first argument
Petitioner's second argument also fails; an indictment is sufficient if it include "a plain, concise, and definite written statement of the essential facts constituting the offense charged . . . [and] the official or customary citation of the statute, rule, regulation, or other provision of law that the Petitioner is alleged to have violated."
Here, the indictment included a statement of the charge and a citation to the relevant provisions of the United States Code.
Therefore, Petitioner's trial counsel was not ineffective for declining to file a motion to dismiss on either ground.
Petitioner next argues that trial counsel failed to present exculpatory evidence. A review of the record, however, reveals that counsel presented the evidence that Petitioner claims was missing.
For example, Petitioner argues that his attorney ignored recorded phone calls showing that Petitioner wanted to withdraw from the crime.
Regardless, counsel's decision not to present certain evidence to the jury is not grounds for habeas relief. "[C]ounsel may exercise his professional judgment with respect to the viability of certain defenses and evidentiary matters without running afoul of the Sixth Amendment."
Last, Booker argues his trial counsel was ineffective because he failed to poll the jury. He argues that the jury's request for a new verdict form
Other than Petitioner's conclusory allegation, there is nothing to suggest a juror was uncertain. The jury read a unanimous verdict into the record.
Petitioner Booker argues that his appellate counsel Mark Wettle failed to provide effective assistance because he did not include certain arguments in appellate briefing. Those arguments include ineffective assistance of trial counsel, prosecutorial misconduct, and misapplication of the career offender guideline.
For the reasons stated above, Attorney Wettle was not ineffective for declining to argue that trial counsel was ineffective.
Nor was Attorney Wettle ineffective for failing to include prosecutorial misconduct and career offender arguments on appeal. "It is important for appellate advocates to `winnow[ ] out weaker arguments on appeal and focus[ ] on one central issue if possible, or at most on a few key issues.'"
As the Court discussed above, the prosecutorial misconduct and career offender arguments are weak on the merits.
Accordingly, the Court
Petitioner Booker also argues that he no longer qualifies as a career offender and was therefore improperly sentenced under the United States Sentencing Guideline § 4B1.1; 1.2(a).
On June 26, 2015, the Supreme Court gave an opinion in Johnson v. United States, holding that the ACCA's residual clause was unconstitutionally vague.
A criminal Petitioner sentenced under the ACCA residual clause can collaterally challenge his sentence under the ACCA in a § 2255 habeas proceeding.
The Guidelines' career offender provision defines "crime of violence" using the same language ruled unconstitutional in Johnson.
In Beckles, the Supreme Court rejected this exact argument. There, Petitioner Beckles argued that because the Court's Johnson opinion held "that the identically worded residual clause in the Armed Career Criminal Act . . . was unconstitutionally vague . . . the Guidelines' residual clause is also void for vagueness."
The Supreme Court's decision dictates the outcome of Beckles-dependant cases pending across the federal courts. Accordingly, this Court
For the reasons above, this Court
IT IS SO ORDERED.
