Free Status Report - District Court of Colorado - Colorado

Case 1:01-cr-00395-RPM

Document 581

Filed 08/28/2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Senior District Judge Richard P. Matsch

Criminal Case No. 01-cr-00395-RPM Civil Action No. 07-cv-02002-RPM

UNITED STATES OF AMERICA, Plaintiff, v. JACK DOWELL, Defendant. ______________________________________________________________________________ DEFENDANT'S STATUS REPORT ______________________________________________________________________________ Defendant Jack Dowell, through his court appointed attorney Richard N. Stuckey, respectfully submits this Status Report as to matters in both cases listed above. Government counsel has stated to the undersigned that the government has no input for this report. INTRODUCTION AND CHRONOLOGY Defendant Jack Dowell, in Criminal Case No. 01-cr-00395-RPM, was tried and convicted by jury before this Court in April of 2003 on a two-count indictment charging a violation of 18 U.S.C. § 844(f)(1) and (2), destroying government property by fire and creating a substantial risk of injury to others in doing so, and 26 U.S.C. § 7212(a), forcibly interfering with IRS employees and IRS administration (Doc. No. 325). Defendant was sentenced by this Court on July 21, 2003, to a term of imprisonment of 360 months (Doc. No. 402). Defendant appealed to the Tenth Circuit, and his appeal was denied -1-

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on December 6, 2005. United States v. Dowell, 430 F.3d 1100 (10th Cir. 2005), cert. denied (2006). On September 24, 2007, Defendant Jack Dowell filed his pro se Motion under 28 U.S.C. § 2255 in this Court, which is Civil Action No. 07-cv-02002-RPM. That motion attached 18 exhibits (Doc. No. 557). At the same time Defendant Jack Dowell filed his pro se "Memorandum in Support of Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C.. § 2255" (Doc. No. 558). The government filed its "Answer to Dowell's Motion" on October 25, 2007 (Doc. No. 566) and defendant replied to the answer (Doc. No. 568) on November 19, 2007. Undersigned counsel was appointed by the Court to represent Defendant Jack Dowell on December 27, 2007 (Doc. Nos. 570, 572). A pro se motion by defendant for discovery was denied by the Court on December 27, 2007, because of the appointment of counsel. That motion is being renewed by counsel on Mr. Dowell's behalf, and will be filed shortly. DEFENDANT'S LOCATION AND CONTACTS WITH HIM Defendant Jack Dowell was, according to information given the undersigned, held at the Federal Correctional Institution in Jesup, Georgia, in January of 2008. Counsel began a review of relevant case filings, began investigating the § 2255 claims, began interviewing, by telephone and in person, attorneys and investigators, and began attempts to contact defendant. Defendant Jack Dowell's wife made contact with counsel from her home in Wyoming in January of 2008 and informed counsel that although defendant was still at FCI Jesup, he was scheduled to be moved. Counsel then made brief contact with defendant at Jesup. Defendant was shortly thereafter moved to a BOP transit facility in Florida, and was not relocated to his new place of

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incarceration, FCI Waseca, Minnesota, until May of 2008. Counsel finally had telephonic contact with defendant at FCI Waseca near the end of June of 2008. In the meantime, counsel made efforts to retrieve the case files from defendant's wife, and received them in early July of 2008, for organization and examination. Counsel is presently attempting several more interviews, and re-interviews, with attorneys, investigators, and witnesses in anticipation of a hearing on these matters sometime in the future. Defendant Jack Dowell's wife has also informed counsel that defendant is about to be relocated again by BOP because the facility at Waseca is being made into a BOP women's facility. Counsel is to be kept informed by defendant and his wife of his whereabouts. Counsel will contact government counsel about arranging for defendant's presence if a hearing is set, and will request that defendant be returned to the Denver area some two weeks before any such hearing for consultation. Counsel would respectfully suggest to the Court that any such hearing be set, according to the Court's schedule, in November or December of this year. NATURE OF CLAIMS IN DEFENDANT'S § 2255 MOTION The government's "Answer to Dowell's Motion Under § 2255" (Doc. 566), at pages 1-2 and n.3, page 7) correctly identifies Defendant Jack Dowell's § 2255 ineffective assistance of counsel claims as "A through O," as listed and titled by defendant in his § 2255 motion. Those fifteen claims relate specifically to 13 alleged failures or omissions of trial counsel, and two sentencing issues regarding competency. As to the second sentencing incompetency claim, the government agrees that the "wrong guidelines manual was used" (the 2002 Edition of the United States Sentencing Guidelines) and that a re-sentencing should take place, using the 1996 version of the Guidelines instead of the 2002 version, which would result in at least a two-level

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reduction in the advisory base offense level prior to any enhancements (Doc. 566, pps. 33-37). Defendant wishes to raise other issues at a re-sentencing in light of United States v. Booker, 543 U.S. 220 (2005), Gall v. United States, 128 S.Ct. 586 (2007), and Rita v. United States, 127 S.Ct. 2456 (2007), and the considerations under 18 U.S.C. § 3553(a). It is respectfully suggested that the Court direct the probation office to prepare an addendum for such a re-sentencing, and that such an addendum include findings regarding what counsel understands is defendant's excellent record while in prison. Defendant has also raised, in a second section of his § 2255 motion, a complaint against prior trial counsel that because of certain proceedings against said counsel by the Colorado Supreme Court Attorney Regulation Counsel's office during preparation for the trial and during the trial itself in this case, that trial counsel was in a conflict of interest situation. Defendant also alleges in that second section of his § 2255 motion, that incompetent representation occurred because prior trial counsel, in order to pay restitution amounts (in unrelated cases) as directed by the Attorney Regulation office, somehow diverted Criminal Justice Act funds approved by the Court for investigators, para-legals, or prior trial counsel himself. Regarding the latter allegation of diversion of CJA funds, undersigned counsel moved on January 11, 2008, for access to sealed CJA records of this Court regarding vouchers, applications or motions for payments, CJA forms, and any other ex parte records relating to the CJA payments in the case. Certain ex parte document entries were noted as necessary for examination in that motion. This Court granted that motion on January 15, 2008, and the examination of those records took place under the supervision of the CJA office of this Court on January 16 and 23, 2008. Although Defendant Jack Dowell, when returned to the Denver area,

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wishes to review counsel's findings, undersigned counsel now reports to the Court that nothing was discovered or found, either in the examination of the sealed records or in several interviews with relevant attorney and investigator witnesses, which would substantiate any claim of diversion of funds. CONCLUSION Therefore it is respectfully requested that the Court authorize the government to bring Defendant Jack Dowell before the Court for the purposes of a hearing on Defendant Dowell's Motion Under 28 U.S.C. § 2255, and for purposes of re-sentencing on a date to be set by the Court, and that the Court order the Probation Office to prepare an addendum regarding resentencing issues. It is also noted that defense will apply for subpoenas in forma pauperis for several witnesses at such a hearing regarding defendant's incompetency of counsel claims, including prior trial counsel, sentencing counsel, Colorado Attorney Regulation Counsel and possibly a supervising attorney assigned by that officer to oversee prior trial counsel's case preparation, and any other witness necessary based on materials which might be discovered pursuant to a defense discovery motion. Dated: August 28, 2008 Respectfully submitted,

s/ Richard N. Stuckey Richard N. Stuckey Richard N. Stuckey, Attorney at Law, PC 1801 Broadway, Suite 1100 Denver, CO 80202-3839 Office Phone: 303-292-0110 Fax Phone: 303-292-0522 E-mail [email protected] Attorney for Defendant Jack Dowell

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CERTIFICATE OF SERVICE I hereby certify that on August 28, 2008, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Martha A. Paluch Assistant U.S. Attorney [email protected]

And by U.S. Mail to: Jack Dowell #05225-013 FCI Waseca Federal Correctional Institution PO Box 1731 Waseca, MN 56093 James C. Coyle Deputy Regulation Counsel Colorado Supreme Court Attorney Regulation Counsel 1560 Broadway, Suite 1800 Denver, CO 80202

s/ Richard N. Stuckey Richard N. Stuckey Richard N. Stuckey, Attorney at Law, PC 1801 Broadway, Suite 1100 Denver, CO 80202-3839 Office Phone: 303-292-0110 Fax Phone: 303-292-0522 E-mail [email protected]

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