United States District Court, S.D. Indiana, New Albany Division
ROBERT D. JENKINS, Petitioner,
UNITED STATES OF AMERICA, Respondent.
ORDER DENYING MOTION FOR RELIEF PURSUANT TO 28 U.S.C.
§ 2255 AND DENYING A CERTIFICATE OF
EVANS BARKER, JUDGE
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.
§ 2255 Motion Standards
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
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"),
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.
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.
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.
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.
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.
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.
Ineffective Assistance of Counsel
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).
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.
Failing to Permit him to Go to Trial, Confront Witnesses,
have a Speedy Trial, or Provide a Defense
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.
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.
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.
claim regarding speedy trial is discussed in more detail
below and is without merit.
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.
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.
Failing to ...