Opinion
No. CR91-9-MWB.
January 27, 1999.
REPORT AND RECOMMENDATION AND ORDER
I. INTRODUCTION
This matter comes before the court pursuant to the April 22, 1997, petition by defendant Jeffrey Wiley ("Wiley") under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence (Docket No. 472). On May 15, 1997, by order of the Honorable Mark W. Bennett, this matter was referred to the undersigned United States Magistrate Judge (Docket No. 475) pursuant to 28 U.S.C. § 636(b)(1)(B) for the filing of a report and recommended disposition of the motion. On June 5, 1997, the United States ("government") filed an answer and motion to dismiss Wiley's petition (Docket. No. 477). On September 3, 1997, the government filed a second motion to dismiss (Docket. No. 488), and on September 24, the government filed a motion for summary judgment (Docket. No. 494). Wiley filed a response to the government's motions on November 4, 1997 (Docket. No. 497). Also, on July 21, 1997, Wiley filed a motion for issuance of subpoenas duces tecum (Docket. No. 480). After careful consideration of the arguments of counsel, the relevant case law, and the record as a whole, the court makes the following rulings.
II. PROCEDURAL AND FACTUAL BACKGROUND
In early 1988, law enforcement agents directed an undercover investigation at a suspected marijuana distribution conspiracy. The conspiracy consisted of a number of individuals and focused its distribution in Cedar Rapids, Iowa, and Green Bay, Wisconsin.
On February 19, 1988, Curtis Holub ("Holub") sold one pound of marijuana to undercover law enforcement agents. Holub and the agents also negotiated a subsequent deal involving fifty pounds of marijuana to take place on February 22, 1988. Wiley was supposed to supply the fifty pounds to Kevin Meggers ("Meggers"), another coconspirator, who was then to give it to Holub to sell to the undercover agents. When the day of the transaction arrived, Holub went to Meggers's house to get the marijuana only to find that Wiley had not kept up his part of the deal. At this same time, however, Wiley sold eighty-two pounds of marijuana to Pat McMickle, another coconspirator, who, in turn, sold it to an undercover agent. Law enforcement agents then arrested McMickle.
McMickle agreed to cooperate with law enforcement and identified Wiley as his source for marijuana. As part of his cooperation, McMickle returned to Wiley's motorcycle shop and recorded a conversation with Wiley in which they discussed the recent transaction involving the eighty-two pounds of marijuana. Law enforcement then detained Wiley and requested his cooperation. Wiley consented to an interview and a subsequent search of his motorcycle shop. At the shop, law enforcement agents found over thirty pounds of marijuana, scales, and a notebook of drug records.
Wiley later discontinued his cooperation with law enforcement, and a grand jury indicted him on September 26, 1991, on drug charges. Wiley went to trial and was convicted after a jury trial. The court sentenced Wiley to 188 months of imprisonment, three years of supervised release, an $83,200 fine, and a $50 special assessment on each of the four counts of which he was convicted. The court also ordered the forfeiture of Wiley's motorcycle repair shop.
Wiley appealed directly to the Eighth Circuit Court of Appeals. The court rejected Wiley's appeal and affirmed his conviction and sentence. United States v. Wiley, 997 F.2d 378 (8th Cir. 1993). Wiley petitioned the United States Supreme Court on the sole issue of the mental capacity of the trial judge. The Court denied Wiley's petition on December 6, 1993. United States v. Wiley, 114 S.Ct. 600, 510 U.S. 1011, 126 L.Ed.2d 565 (1993).
In his section 2255 petition, Wiley raises the following issues: (1) that he was denied the right to a fair trial; (2) that his trial counsel was ineffective; (3) that his appellate counsel was ineffective; and (4) that he should be resentenced.
III. LEGAL ANALYSIS A. Right to a Fair Trial
Wiley alleges that the judge who presided over his trial suffered from a mental defect that made him unfit to preside, thus violating Wiley's due process right to a fair trial. Such a defect, Wiley argues, affected the judge's decision-making abilities and processes and forced him to compensate for the defect by relying on the opinions of the government to make all of his decisions. In support of his argument, Wiley points to: (1) an affidavit containing comments made to an attorney/investigator hired by Wiley from anonymous attorneys who practiced before the judge in his home state; (2) affidavits of two mental health professionals who reviewed portions of transcripts from several trials in which the judge had presided; (3) affidavits from three jurors in Wiley's trial; (4) affidavits from two people who were present during parts of Wiley's trial; (5) an affidavit from Wiley; (6) affidavits from Wiley's trial attorneys; and (7) the fact that the judge's caseload was taken from him one-and-a-half years after Wiley's trial.
The trial judge was a visiting judge from another state.
Initially, Wiley must show why this claim is not procedurally barred. A defendant may not relitigate an issue that has been raised and decided on direct appeal. See Dall v. United States, 957 F.2d 571, 572 (8th Cir. 1992) (per curiam). Wiley raised essentially the same argument in his direct appeal as he raises in his section 2255 petition, and the Eighth Circuit Court of Appeals rejected it with the following language:
Finally, defendants have submitted a portion of their briefs under seal, together with excerpts from the transcripts and related material. We have considered the arguments made under seal with care. They are serious arguments. After considering all of the relevant factors, we hold that no error occurred affecting defendant's substantial rights.United States v. Wiley, 997 F.2d at 386.
Wiley argues that the specificity of his present argument distinguishes it from the argument he made in his direct appeal, but a close look at both arguments belies this contention. In his direct appeal, Wiley alleged that the trial judge was mentally incompetent during Wiley's trial. He supported his allegation with an affidavit by a mental health professional who examined portions of the transcript from Wiley's trial. The only difference between the mental incompetence allegation made on direct appeal and the one made in Wiley's § 2255 petition is the proof Wiley posits to support his contention. The fact that no substantive difference exists between the claims themselves leads to the conclusion that the claims are the same and, thus, procedurally barred.
Wiley argues, in the alternative, that he fits within an exception to the procedural bar rule because he has offered new evidence supporting his section 2255 claim. However, "[n]ewly discovered evidence cannot be the basis for habeas relief absent a showing that it `would probably produce an acquittal on retrial.'" Larson v. United States, 905 F.2d 218, 221 (8th Cir. 1990) (quotations and citations omitted). Wiley makes no such showing. In fact, he has failed to even demonstrate that any particular decision by the trial judge during the trial was wrong, or that if the trial judge had made a different decision on any particular matter Wiley would have probably been acquitted. In fact, the record demonstrates that the evidence of guilt was so overwhelming that the jury's guilty verdicts would not likely have been different despite a different ruling by the trial judge on all of the difficult evidentiary decisions by the trial judge at trial. cf. United States v. Raether, 82 F.3d 192, 194 (8th Cir. 1996) (finding harmless error when "jury's actual finding of guilty . . . would surely not have been different absent the constitutional error.") (quoting Sullivan v. Louisiana, 508 U.S. 275, 280, 113 S.Ct. 2078, 2080, 124 L.Ed.2d 182 (1993). Thus, Wiley is not entitled to invoke the "new evidence" exception to the procedural bar rule.
Wiley contends that procedurally barring his claim would result in a manifest miscarriage of justice. However, Wiley's failure to raise an argument regarding his actual innocence bars his claim under the miscarriage of justice exception. The Eighth Circuit Court of Appeals has stated that "an error of law does not provide a basis for collateral attack unless the claimed error constituted `a fundamental defect which inherently results in a complete miscarriage of justice.'" Embrey v. Hershberger, 131 F.3d 739, 741 (8th Cir.) ("[T]he miscarriage of justice exception is concerned with actual as compared to legal innocence.") (quoting Sawyer v. Whitley, 505 U.S. 333, 339, 112 S.Ct. 2514, 2518, 120 L.Ed.2d 269 (1992)), cert. denied, ___ U.S. ___, 119 S.Ct. 78, ___ L.Ed.2d ___ (1998). Therefore, Wiley is not entitled to invoke the "miscarriage of justice" exception to the procedural bar rule to overturn his conviction.
B. Ineffective Assistance of Trial Counsel
Wiley argues that his trial attorneys, Nina Ginsburg ("Ginsburg") and Nancy Hollander ("Hollander"), provided ineffective assistance of counsel in violation of his Sixth Amendment rights. Specifically, Wiley points to: (1) his attorneys' failure to investigate the trial judge's reputation for mental competency, and (2) his attorneys' failure to make a motion to remove or disqualify the trial judge.
1. Standard for ineffective assistance of counsel
Wiley is entitled to effective assistance of counsel at trial. See Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064-65, 80 L.Ed.2d 674 (1984). 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, 104 S.Ct. at 2064. In other words, to prevail on a claim of ineffective assistance of counsel, Wiley must show cause and prejudice: that his attorneys' assistance "fell below an objective standard of reasonableness," and that "there is a reasonable probability that, but for counsel[s'] unprofessional errors, the result of the proceeding would have been different." Id. at 688, 694, 104 S.Ct. at 2064, 2068.
a. cause
In order to show that Ginsburg's and Hollander's conduct amounted to cause, Wiley must overcome "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. at 2065. Ginsburg and Hollander submitted affidavits declaring that their failure to investigate other cases or instances where the trial judge had appeared to be mentally incompetent amounted to ineffective assistance of counsel. They further stated that their failure, even upon request by Wiley, to move for the trial judge's removal or disqualification provided additional proof of professional conduct constituting ineffective assistance of counsel.
The court has carefully read the entire transcript of Wiley's trial. The court agrees that trial counsel would have been justified in challenging the competence of the trial judge. However, the court does not need to decide whether trial counsels' failure to do so, or whether their failure to conduct an investigation of the judge's competence, satisfied the cause prong of Strickland's test for ineffective assistance of counsel because the court finds that Wiley has not satisfied the prejudice prong. See United States v. Williams, 994 F.2d 1287, 1291 (8th Cir. 1993) (holding court need not decide cause if petitioner fails to show prejudice).
b. prejudice
Even if Wiley could show that his trial counsels' actions, or inactions, amounted to deficient performance rising to the level of cause, he cannot show prejudice. To establish prejudice, Wiley must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. In making this determination, the court must take into account "whether the result of the proceeding was fundamentally unfair or unreliable." Lockhart v. Fretwell, 506 U.S. 364, 369, 113 S.Ct. 838, 842, 122 L.Ed.2d 180 (1993).
Wiley argues that trial judge's alleged organic brain disorder at the time of trial forced the judge to rely on the opinions of the government to make his rulings. To support his contention, Wiley points to the fact that prior to trial the defense submitted thirteen motions, and they were all denied. Wiley also relies on a comparison of the objections raised by counsel at trial. The defense raised ninety-nine objections at trial, ninety-seven of which were overruled; the government raised thirty objections at trial, twenty-seven of which were sustained.
Of course, a scorecard of rulings on objections and pretrial motions does not support an allegation of prejudice. See Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct 1147, 1157, 127 L.Ed.2d 474 (1994) ("judicial rulings alone almost never constitute [a] valid basis for a bias or partiality motion."). In any event, the court has reviewed the trial judge's rulings on all of the objections made during trial and his rulings on all of the pretrial motions and does not find any of them to be clearly erroneous. The Eighth Circuit Court of Appeals rejected Wiley's direct appeal, in which many of the trial judge's pretrial and trial rulings were challenged. There is simply nothing in the record to show that Wiley was prejudiced by any particular ruling in the case. Raether, 82 F.3d at 194. For these reasons, and those already discussed, see supra Part III.A., Wiley fails to establish prejudice. Thus, his claim of ineffective assistance of counsel must fail.
In fact, this court has carefully examined the entire transcript and agrees with most of the trial judge's rulings during the trial, and finds that none of the close or questionable rulings, either individually or collectively, had a substantial bearing on the results in the trial. As to the score-keeping on the judge's rulings on objections, many of the trial objections by defense counsel were to preserve claims of error under the Bell procedures ( United States v. Bell, 573 F.2d 1040 (8th Cir. 1978)), and many others were to preserve objections made in pretrial motions that had been overruled. Furthermore, most of the pretrial rulings were actually made by the magistrate judge by report and recommendation, and were simply adopted by the trial judge.
C. Ineffective Assistance of Appellate Counsel
Wiley also argues that Hollander and Ginsburg provided ineffective assistance of counsel in his direct appeal. He bases this claim on Hollander's and Ginsburg's failure to fully investigate the trial judge's alleged mental incompetence before presenting the issue to the Eight Circuit Court of Appeals. Essentially, Wiley states that the investigation his attorneys did perform was so insufficient that it made his allegations against the trial judge seem like a "cheap shot," and wasted his appeal.
"A criminal defendant is entitled to effective assistance of counsel on a first appeal as of right." Rogers v. United States, 1 F.3d 697, 700 (8th Cir. 1993) (quotations omitted). The same standard that applies to claims of ineffective assistance of trial counsel also applies to claims of ineffective assistance of appellate counsel. That is, but for counsel's alleged errors, there is a reasonable probability that the results of the proceedings would have been different. See, e.g., Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. To satisfy the cause prong of the Strickland test, Wiley must show that his appellate counsels' "decision was an unreasonable one which only [incompetent attorneys] would adopt." Garrett v. United States, 78 F.3d 1296, 1305 (8th Cir. 1996).
Under the facts of this case, Wiley cannot establish cause. Hollander and Ginsburg supported their appellate arguments regarding the trial judge's mental capacity by providing the court of appeals with excerpts from the transcripts of Wiley's trial and sentencing. They also submitted the affidavit of a mental health professional who analyzed the excerpts. Their decision to rely on the excerpts, and the analysis of those excerpts, from Wiley's trial was not unreasonable. See Strickland, 466 U.S. at 668, 104 S.Ct. at 2065 (attorney obligated to "make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary."). The court believes that appellate counsels' investigation was adequate, and therefore that Wiley cannot show cause.
Even if the court were to find that Wiley has established cause, he cannot establish prejudice. "Unreliability or unfairness does not result if the ineffectiveness of counsel does not deprive the defendant of any substantive or procedural right to which the law entitles him." Lockhart, 506 U.S. at 372, 113 S.Ct. at 844. Wiley's section 2255 petition is supported by evidence Wiley contends was available to his appellate counsel and should have been presented as a part of his appeal. In this case, the court finds that the additional evidence would not have caused the court of appeals to have reached a different outcome. Wiley received an effective direct appeal, and was not prejudiced by the deprivation of any substantive or procedural rights entitled to him by law.
D. Calculation of Wiley's Sentence
As his final claim, Wiley challenges his sentence, arguing that, in computing his sentence, the sentencing court attributed improper amounts to him. Wiley bases his argument on the reliability of a co-conspirator's claim that Wiley participated in large marijuana transactions not mentioned in the indictment.
In his direct appeal, Wiley raised this same argument, and court of appeals rejected it. See Wiley, 997 F.2d at 386. Generally, a defendant may not relitigate an issue that has been raised and decided on direct appeal. See Dall v. United States, 957 F.2d 571, 572 (8th Cir. 1992) (per curiam). Wiley is therefore procedurally barred from reasserting this argument. See United States v. Bowers, 21 F.3d 843, 844 (8th Cir. 1994) (per curiam) (applying law of case doctrine to bar argument previously rejected on direct appeal).
However, the court finds that the manifest miscarriage of justice exception to the procedural bar rule should be applied here, and that Wiley should be resentenced. Wiley has presented a sufficient record to this court to support his claim that, during sentencing, the trial judge might not have exercised appropriate judgment, and the court finds that there is a reasonable probability that Wiley would have received a different sentence if the trial judge had been better able to evaluate the evidence presented at sentencing. As the court said in Smith v. Cox, 435 F.2d 453, 460 (4th Cir. 1970), vacated on other grounds, 404 U.S. 53 (1971):
The court is most concerned with the quantities of drugs attributed to Wiley and with the trial judge's decision on where to sentence Wiley within the guideline range. The court believes that the trial judge's determinations on obstruction of justice, role in the offense, and acceptance of responsibility were amply supported by the record. However, at a resentencing, all sentencing issues would presumably be at issue.
We have no doubt that the due process clause of the fourteenth amendment guarantees that the determination of sentence be made by a judicial officer mentally competent to carry out his duties. To permit a mentally impaired man to weigh the myriad considerations and to make the difficult choices involved in fixing a punishment — choices which often depend on insights into defendant's character and future behavior as well as conclusions as to the seriousness of the offense — would surely violate the standards of fair play established by the due process clause.
This court finds that, under the unfortunate circumstances of this case, due process requires that the defendant be resentenced.
IV. MOTION FOR ISSUANCE OF SUBPOENAS DUCES TECUM
Wiley has also filed a motion for issuance of subpoenas duces tecum (Docket. No. 480). He asks for subpoenas to obtain the trial judge's medical records. This motion is denied.
Rule 6(a) of the Rules Governing Habeas Corpus Cases under Section 2255 provides:
A party may invoke the processes of discovery available under the Federal Rules of Criminal Procedure or the Federal Rules of Civil Procedure or elsewhere in the usages and principles of law if, and to the extent that, the judge in the exercise of his discretion and for good cause shown grants leave to do so, but not otherwise.
Rule 6(a) of the Rules Governing Section 2255 Proceedings in the United States District Courts, 28 U.S.C. foll. § 2255.
The court finds that there is no justification for the requested discovery. To the extent the discovery is sought to support Wiley's claims that he was denied a fair trial or that his trial counsel and appellate counsel were ineffective, this court has already found that the trial was fair and the Wiley's counsel were not ineffective, and no additional evidence on the mental state of the trial judge would change that determination. To the extent such evidence is intended to support Wiley's claim that he is entitled to be resentenced, the court has found that he has established this claim without the need for additional evidence.
V. CERTIFICATE OF APPEALABILITY
A federal prisoner must obtain a certificate of appealability from a district or circuit judge before appealing from the denial of a federal habeas petition. See 28 U.S.C.A. § 2253(c) (West Supp. 1998). A certificate of appealability issues only if the applicant makes a substantial showing of the denial of a constitutional right. See Roberts v. Bowersox, 137 F.3d 1062, 1068 (8th Cir. 1998).
The court believes that, except for the his claim for resentencing, Wiley has not made a substantial showing that he may have been deprived of a constitutional right on any of his claims. Therefore, the court does not recommend that a certificate of appealability be issued for any of Wiley's claims.
V. CONCLUSION
In summary, the court concludes that the defendant's claims that he was denied a fair trial and that his trial counsel and appellate counsel were ineffective are without merit and should be denied. The court further concludes that Wiley's objection to his sentencing should be granted, and that he should be resentenced. Accordingly,
IT IS RECOMMENDED that, unless any party files objections to the Report and Recommendation in accordance with 28 U.S.C. § 636 (b)(1)(C) and Fed.R.Civ.P. 72(b) within ten (10) days of the service of a copy of this report and recommendation, judgment be entered in accordance with this report and recommendation.
Objections must specify the parts of the report and recommendation to which objections are made. Objections must specify the parts of the record, including exhibits and transcript lines, which form the basis for such objections. See Fed.R.Civ.P. 72. Failure to file timely objections may result in waiver of the right to appeal questions of fact. See Thomas v. Arn, 474 U.S. 140, 155, 106 S. Ct. 466, 475, 88 L. Ed. 2d 435 (1985); Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990).
IT IS SO ORDERED.