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Jenkins v. United States

United States District Court, S.D. Indiana, New Albany Division

August 20, 2018

ROBERT D. JENKINS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER DENYING MOTION FOR RELIEF PURSUANT TO 28 U.S.C. § 2255 AND DENYING A CERTIFICATE OF APPEALABILITY

          SARAH EVANS BARKER, JUDGE

         For the reasons discussed in this Entry, the motion of Robert D. Jenkins for relief pursuant to 28 U.S.C. § 2255 must be denied and the action dismissed with prejudice. In addition, the Court finds that a certificate of appealability should not issue.

         I. § 2255 Motion Standards

         A motion pursuant to 28 U.S.C. § 2255 is the presumptive means by which a federal prisoner can challenge his conviction or sentence. See Davis v. United States, 417 U.S. 333, 343 (1974). A court may grant relief from a federal conviction or sentence pursuant to § 2255 "upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U. S.C. § 2255(a). The scope of relief available under § 2255 is narrow, limited to "an error of law that is jurisdictional, constitutional, or constitutes a fundamental defect which inherently results in a complete miscarriage of justice." Borre v. United States, 940 F.2d 215, 217 (7th Cir. 1991) (internal citations omitted).

         II. Factual Background

         On June 2, 2015, Mr. Jenkins was charged in count one of an Indictment with production of child pornography in violation of 18 U.S.C. § 2251(a). See USA v. Jenkins, 4:15-cr-00016-SEB-VTW-1 (hereinafter "Crim. Dkt"), dkt. 12.

         On August 2, 2016, with the assistance of appointed counsel, Mr. Jenkins filed a petition to enter a guilty plea and a plea agreement. Crim. Dkt. 41. The plea agreement explained that Mr. Jenkins's offense would ordinarily be punishable by a sentence of no more than 30 years' imprisonment; a fine of not more than $250,000, and up to a lifetime of supervised release following any term of imprisonment. Id. at 1. Mr. Jenkins and the United States also stipulated to and agreed that there were sufficient facts to support his plea of guilty. Id. at 2, 7. Mr. Jenkins further agreed that the determination of his sentence was within the discretion of the Court, and even if the Court decided to impose a sentence different than recommended by either party or determined a different advisory sentencing guideline range for any reason, he would not be permitted to withdraw his plea of guilty for that reason and would be bound by his plea of guilty. Id. at 2-3. The parties did not agree to a specific sentence. Id. at 4. Finally, Mr. Jenkins agreed to waive the right to appeal or otherwise challenge his conviction. Id. at 9-10. He agreed to waive his right to appeal or challenge his sentence if the Court sentenced him to a term of imprisonment within the advisory sentencing guidelines range determined by the Court. Id. at 9. He also agreed not to contest, or seek to modify, his conviction or sentence or the manner in which either was determined in any collateral attack, including an action under "18 U.S.C. § 2255" except for allegations of ineffective assistance of counsel. Id. at 9-10. The United States submitted a statement of evidence on August 30, 2016. Crim. Dkt. 44.

         The change of plea hearing was held on August 31, 2016. Crim. Dkt. 45; Crim. Dkt. 66. At the hearing, the Court noted that the charged offense was punishable by a maximum of thirty years' imprisonment and a life term of supervised release. Crim. Dkt. 66 at 4. Aside from the statutory boundaries, the plea agreement left the final sentencing decision to the Court. Id. at 6-7. The Court confirmed that Mr. Jenkins understood that, by entering into the plea agreement, he waived his right to a trial and an appeal on the merits. Id. at 7, 15. Mr. Jenkins also waived any right to appeal the supervised release conditions and sentencing so long as the Court sentenced him within the applicable guidelines. Id. at 7-8. Finding that Mr. Jenkins was fully competent and capable of entering an informed plea and that he was aware of the nature of the charges and the consequences of his plea such that his plea of guilty was a knowing and voluntary plea, the Court accepted Mr. Jenkins's plea and adjudged him guilty of the charged offense. Id. at 22.

         On November 22, 2016, a presentence investigation report was filed. Crim. Dkt. 49. Mr. Jenkins did not file any objections to it. A sentencing hearing was held on January 25, 2017. Crim. Dkt. 57. The Court accepted the presentence report prepared by the United States Probations Office. Id. The Court determined that the Sentencing Guidelines provided an imprisonment range of 324 to 405 months. Crim. Dkt. 49, ¶ 68. The Court sentenced Mr. Jenkins to 336 months' imprisonment and ten years of supervised release. Crim. Dkt. 57. Judgment was entered on January 26, 2017. Crim. Dkt. 58. Mr. Jenkins did not file a notice of appeal.

         Mr. Jenkins filed his motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 on July 13, 2017, and this action was opened. The United States has responded in opposition. Mr. Jenkins did not file a reply, and the time to do so has passed.

         III. Discussion

         Mr. Jenkins seeks relief pursuant to § 2255 arguing that his counsel, Mark Inman, provided ineffective assistance for: (1) failing to permit him to go to trial, confront witnesses, have a speedy trial, or provide a defense; (2) for failing to investigate alibi witnesses, failing to corroborate work records, receipts, and statements that would have exonerated Mr. Jenkins; (3) failing to challenge the validity and authenticity of alleged victim's statement as coerced by his ex-girlfriend, and failing to challenge the "selective" memory of the alleged victim; (4) failing to rebut uncorroborated and alleged criminal conduct of Mr. Jenkins as submitted in his stepsister's statement claiming Mr. Jenkins abused her when he was 15 years old, which the Court used to enhance his sentence; (5) failing to file a direct appeal; (6) filing a false continuance for trial; (7) denying his right to go to trial; (8) manipulating him to discount any desire to go to trial by saying Mr. Jenkins would lose; and (9) withholding discovery material and information from Mr. Jenkins such that the Court had to order the disclosure. Dkt. 2 at 4-6. Mr. Jenkins also alleges his due process was violated when the Court refused to have his appointed counsel terminated, forcing Mr. Jenkins to accept the conflict of interest legal representation. Id. at 6.

         The United States argues that Mr. Jenkins's trial counsel was effective and the Court did not violate his rights when it denied his motion to appoint new counsel. Dkt. 9.

         A. Ineffective Assistance of Counsel

         A petitioner claiming ineffective assistance of counsel bears the burden of showing (1) that trial counsel's performance fell below objective standards for reasonably effective representation and (2) that this deficiency prejudiced the defense. Strickland v. Washington, 466 U. S. 668, 688-94 (1984); United States v. Jones, 635 F .3d 909, 915 (7th Cir. 2011). If a petitioner cannot establish one of the Strickland prongs, the Court need not consider the other. Groves v. United States, 755 F.3d 588, 591 (7th Cir. 2014). To satisfy the first prong of the Strickland test, a petitioner must direct the Court to specific acts or omissions of his counsel. Wyatt v. United States, 574 F.3d 455, 458 (7th Cir. 2009). The Court must then consider whether in light of all of the circumstances whether counsel's performance was outside the wide range of professionally competent assistance. Id. In order to satisfy the prejudice component, a petitioner must establish 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. In addition, in attacking trial counsel's performance, a defendant "must 'overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.'" Frentz v. Brown, 876 F.3d 285, 293 (7th Cir. 2017) (quoting Strickland, 466 U.S. at 689).

         As an initial matter, although Mr. Jenkins raises nine claims of ineffective assistance of counsel, he does so largely without identifying "specific acts or omission of his counsel." Wyatt, 574 F.3d at 458. The Seventh Circuit has repeatedly warned that "perfunctory and undeveloped arguments, and arguments that are unsupported by pertinent authority, are waived (even where those arguments raise constitutional issues)." United States v. Holm, 326 F.3d 872, 877 (7th Cir. 2003) (citing United States v. Berkowitz, 927 F.2d 1376, 1384 (7th Cir. 1991); Fed R. App. P. 28(a)(4); United States v. Brown, 899 F.2d 677, 679 n.l (7th Cir. 1990)). Nonetheless, the Court will address each of his claims.

         1. Failing to Permit him to Go to Trial, Confront Witnesses, have a Speedy Trial, or Provide a Defense

         Mr. Jenkins's first ground of ineffective assistance of counsel is a kitchen sink recitation that his counsel, Mark Inman, failed to allow him to go to trial, confront witnesses, obtain witnesses in his defense, have a speedy trial, and have the assistance of counsel provide a defense. Dkt. 2 at 9. He speculates that his counsel would not want to defend him before a courtroom filled with mothers, daughters, and females in general. Id.

         Mr. Jenkins's first ground fails to identify "specific acts or omission of his counsel." Wyatt, 574 F.3d at 458. In terms of allowing him to go to trial, Mr. Jenkins pleaded guilty and agreed to waive a trial. His claim regarding being barred from going to trial is also explained in more detail below.

         Regarding the ability to confront witnesses and obtain witnesses in his defense, "[c]omplaints of uncalled witnesses are not favored in federal habeas corpus review." United States ex rel. Cross v. DeRobertis, 811 F.2d 1008, 1016 (7th Cir. 1987) (quoting Murray v. Maggio, 736 F.2d 279, 282 (5th Cir. 1984)). "[I]f potential witnesses are not called, it is incumbent on the petitioner to explain their absence and to demonstrate, with some precision, the content of the testimony they would have given at trial." DeRobertis, 811 F.2d at 1016. To meet this burden, "the petition must be accompanied with a detailed and specific affidavit which shows that the petitioner had actual proof of the allegations going beyond mere unsupported assertions." Prewitt v. United States, 83 F.3d 812, 819 (7th Cir. 1996). Mr. Jenkins fails to identify any potential witness or what their testimony would have been.

         His claim regarding speedy trial is discussed in more detail below and is without merit.

         Mr. Jenkins asserts, without specificity, that his counsel failed to provide a defense. It is true that a defense attorney has a responsibility to reasonably investigate the circumstances of the case against his client. See Bruce v. United States, 256 F.3d 592, 587-89 (7th Cir. 2001). With respect to trial strategy, an attorney's trial strategy is "virtually unchallengeable" after counsel has conducted a thorough investigation of his client's case. Sullivan v. Fairman, 819 F.3d 1382, 1391 (7th Cir. 1987) (citing Strickland v. Washington, 466 U.S. at 690-91). "[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." Strickland, 466 U.S. at 689.

         Here, Mr. Jenkins fails to overcome the presumption that Mr. Inman's questioning and general defense was sound trial strategy. An attorney's duty is not to raise every conceivable defense or obstruction. Fuller v. United States, 398 F.3d 644, 652 (7th Cir. 2005). Additionally, Mr. Jenkins fails to explain how he was prejudiced by his counsel's performance. Accordingly, habeas relief is not available to Mr. Jenkins on his first ground.

         2. Failing to ...


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