Free Response to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 07-cv-02002-RPM Criminal Case No. 01-cr-00395-RPM UNITED STATES OF AMERICA, Plaintiff/Respondent, vs. JACK DOWELL, Defendant/Movant.

UNITED STATES' ANSWER TO DOWELL'S MOTION UNDER 28 U.S.C. § 2255

Pursuant to this Court's September 27, 2007 order, the United States hereby responds to Dowell's September 24, 2007 post-conviction motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. STATED GROUNDS FOR RELIEF Dowell asserts fifteen claims of ineffective assistance of trial and sentencing counsel in his § 2255 Motion.1 These claims fall into three categories: (1) five claims of ineffective assistance of trial counsel as to pretrial matters; (2) eight

Dowell's Motion is comprised of a seven-page motion with numerous attachments, and a 45-page Memorandum. The United States responds to Dowell's claims as set forth in his Memorandum and refers to that document herein as Dowell's Motion.
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claims of ineffective assistance of counsel during trial; and (3) two claims of ineffective assistance at sentencing.2 RULE 5 STATEMENT Pursuant to Rule 5(a) of the Rules Governing § 2255 Proceedings, the United States informs the Court that (1) it is aware of no other post-conviction motion filed by Dowell, (2) no evidentiary hearing has been conducted on the allegations made in the instant motion, and (3) the motion is timely. STATEMENT OF THE FACTS Dowell's co-defendant James Cleaver devised a plan to set fire to the Colorado Springs office of the Internal Revenue Service ("IRS"). He convinced several members of his "constitutional law group" to help him carry out the plan, including Jack Dowell, Jack's cousin Thomas Dowell, and Ronald Sherman.

Dowell was represented at trial by Mr. Jody Reuler, at sentencing by Mr. Harvey Steinberg, and on appeal by Ms. Stacy Ross and Ms. Nancy Holton. On page 6 of his Motion, Dowell states that "[i]n this case, trial and appellate counsel committed several unprofessional errors and omissions that amount to performance below an objective standard of reasonableness for defense counsel in a criminal case." Motion, p. 6. However, other than this passing reference, Dowell makes no mention of his appellate counsel, or issues that he believes should have been raised in his direct appeal that were not. Instead, in each of his 15 ineffective assistance of counsel claims and in his conflict of interest claim, Dowell specifically names trial counsel Mr. Reuler and sentencing counsel Mr. Steinberg. This Answer responds to those claims.
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United States v. Dowell, 430 F.3d 1100, 1105 (10th Cir. 2005), cert. denied, 127 S. Ct. 44 (2006) (Attachment 1). On the evening of May 3, 1997, after meeting at a bar in Colorado Springs, Sherman drove Cleaver and the Dowells to the IRS building and dropped them off. Jack Dowell served as the lookout and positioned himself in the median next to the building. "When the traffic cleared, Dowell, using a two-way radio, let the group know the coast was clear." Id. at 1105. Cleaver and Thomas Dowell broke into the IRS office. "At one point while Thomas Dowell and Cleaver were inside the building, Dowell, as the lookout, radioed them that there was someone walking through the building's parking lot." Id. Cleaver and Thomas Dowell poured gasoline over IRS files and throughout the office. Cleaver then set the office on fire. Id. From the beginning of the investigation, investigators believed Sherman was involved. Sherman was subpoenaed to testify before a federal grand jury in October of 1997. Sherman denied involvement in the IRS arson and claimed he was playing pool at a bar with Cleaver on the night of May 3, 1997. Id. Agents contacted Sherman and asked about the arson approximately six to seven times over the next four years, and Sherman continued to deny involvement. Id.

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After investigators told Sherman they were close to solving the case, Sherman decided to cooperate with the authorities and confessed to his involvement in the arson and cover-up and agreed to testify for the government. Id. at 1105. Based upon the information from Sherman regarding the roles played by Cleaver and the Dowells in the arson, the investigators traveled to Florida to arrest Jack Dowell. When they contacted Jack Dowell, "he confessed to his part in the crime," id., and implicated Cleaver and Thomas Dowell in the arson. Cleaver and the Dowells were indicted on numerous offenses related to the IRS arson fire. The defendants were tried separately. Id. STATEMENT OF THE CASE On April 10, 2003, Dowell was convicted after a jury trial of both counts in which he was charged: (1) destroying government property by fire, in violation of 18 U.S.C. §§ 2, 844(f)(1) and (2); and (2) forcibly interfering with IRS employees and administration, in violation of 18 U.S.C. § 2 and 26 U.S.C. § 7212(a). Vol. I, doc. 325. Dowell was sentenced to 360 months in prison. Id. at doc. 402. He appealed his conviction and sentence, and both were affirmed by the Tenth Circuit Court of Appeals in a published decision dated December 6, 2005. United States v. Dowell, 430 F.3d 1100 (10th Cir. 2005). The mandate issued on February 23, 2006, and Dowell filed a petition for a writ of certiorari on March 28, 2006. His
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petition was denied on October 2, 2006. Dowell filed the instant § 2255 petition on September 24, 2007. Accordingly, Cleaver's § 2255 Motion is timely. SUMMARY OF THE ARGUMENT Dowell is not entitled to relief on any of his 13 claims of ineffective assistance of trial counsel. Certain of the alleged omissions of which Dowell complains were in fact raised before this Court, as well as on direct appeal. Dowell cannot raise in this § 2255 motion issues that were previously considered and disposed of on direct appeal. As for the remaining claims, Dowell is unable to establish prejudice with respect to any of these claims and therefore they should be denied. Dowell's claim that his sentencing counsel was ineffective for failing to object to an alleged breach of a stipulation regarding the amount of loss from the arson is not supported by the record. The insurance adjustor's letter was a stipulated trial exhibit, and stated that the loss was $2,252,384.88. This was the amount of restitution ordered by the Court. There was no basis for sentencing counsel to challenge this amount at sentencing, given the trial stipulation as to this exact amount. The United States agrees with Dowell's assertion that, given ex post facto concerns, the 2002 Guidelines Manual should not have been applied to his case,

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and instead, the 1996 version was applicable. If this Court so finds, this would reduce Dowell's total adjusted offense level to 34, yielding a sentencing range of 262-327 months. A resentencing hearing would then be warranted. ARGUMENT I. Dowell's Claims of Ineffective Assistance of Counsel. A. Standard of Review In order to establish that he received ineffective assistance of counsel, Dowell must show "(1) that counsel's performance was deficient, and (2) that this deficient performance prejudiced his defense, depriving him of a fair trial with a reliable result." United States v. Orange, 447 F.3d 792, 796 (10th Cir. 2006) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). Dowell must establish both Strickland requirements to prevail on his claim. Orange, 447 F.3d at 796-97; see Smith v. Robbins, 528 U.S. 259, 286 n. 14 (2000) ("[i]f it is easier to dispose of an ineffective assistance claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed") (citing Strickland, 466 U.S. at 697). "Deficient performance entails an error so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Malicoat v. Mullin, 426 F.3d 1241, 1248 (10th Cir. 2005) (citing Strickland, 466

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U.S. at 687), cert. denied, 126 S. Ct. 2356 (2006). Counsel's representation must fall below "an objective standard of reasonableness." Strickland, 466 U.S. at 688. As for prejudice, Dowell must show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. The Supreme Court has defined "[a] reasonable probability" as "a probability sufficient to undermine confidence in the outcome" of the proceeding. Id. Where the basis of the ineffective assistance claim "is the failure to raise an issue, [the Court] must look to the merits of the omitted issue. . . . If the omitted issue is without merit, then counsel's failure to raise it is not prejudicial, and thus is not ineffective assistance." Orange, 447 F.3d at 797 (citation omitted). B. Discussion Dowell's claims of ineffective assistance of counsel as to pretrial matters. Claim A:3 Dowell asserts that Mr. Reuler was ineffective in failing to 1) move to suppress Dowell's confession; 2) object to its admission; and 3) request an 18 U.S.C. § 3501 hearing as to the voluntariness of his confession. Motion at 6-8. The facts do not support this claim. Dowell's 15 ineffective assistance of counsel claims are identified as Claims A through O. While undersigned counsel has categorized these claims as pretrial, trial, or sentencing issues, she refers to the claims as they are lettered by Dowell.
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When an ineffective assistance of counsel claim is based upon defense counsel's failure to litigate a Fourth Amendment issue, the defendant must prove that "his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence in order to demonstrate actual prejudice." Kimmelman v. Morrison, 477 U.S. 365, 375 (1986); United States v. Cook, 45 F.3d 388, 393 (10th Cir. 1995) (citation omitted). Dowell cannot meet this standard. A motion to suppress Dowell's confession was not meritorious. On November 2, 2001, Agents Petosky, Carpenter, and Bennett traveled to Pensacola, Florida, for the purpose of executing an arrest warrant for the arrest of Jack Dowell. The agents told Dowell they wanted to speak with him regarding the IRS arson fire. Dowell was read his Miranda warnings and signed a Miranda waiver. (A copy of Dowell's written waiver is attached to this brief as Attachment 2); Dowell Vol. XVII at 27-28 (Carpenter); id. at 50-51 (Bennett); id. at 65 (Petosky). It is well established that a signed waiver form is "strong proof" of the validity of the waiver. North Carolina v. Butler, 441 U.S. 369, 373 (1979); United States v. Fountain, 776 F.2d 878, 886 (10th Cir. 1985). Dowell agreed to talk with the investigators, explained his role in the arson, and that of Cleaver and his

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cousin Thomas Dowell. Motion, Exhibit C (Agent Petosky's 302 report about Dowell's confession). Dowell now implies his confession was not voluntary, asserting in his § 2255 motion that "Special Agent William Petosky put one hand at the top of the door, his foot at the bottom of the door frame, and his other hand on his gun. Special Agents Carpenter and Bennett both had their hands on their guns." Motion at 3. Dowell also asserts that the agents "rushed into my residence and stood around while Agent Petosky seated himself at my kitchen table." Id. In contrast, the agents testified that the atmosphere during Dowell's confession was "very cordial," Dowell Vol. XVII at 29 (Carpenter), and that Dowell was "really cooperative." Id. at 51 (Bennett). All of the agents denied threatening Dowell, coercing him, pressuring him, or displaying their weapons in any way. Id. at 28-29 (Carpenter); id. at 51 (Bennett); id. at 69-70 (Petosky). Based upon the discovery Mr. Reuler (and Dowell's previous counsel4) received regarding the circumstances surrounding Dowell's Mirandized voluntary

Dowell was first represented by Daniel Smith (12/17/01 to 2/25/02 ­ motion to withdraw granted), then by Leslee Anne Barnicle (2/25/02 to 3/18/02 ­ motion to withdraw granted), and Mr. Reuler was appointed on 3/25/02. Dowell requested that an additional attorney be appointed to represent him. The Court granted this request and appointed James Covino to represent Dowell as well. Mr. Covino and Mr. Reuler represented Dowell from 8/7/02 until 3/12/03, when Mr. Covino's motion to withdraw was granted.
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oral confession, Mr. Reuler had no basis upon which to move to suppress this confession or to object to its admission.5 It is of no surprise that neither Mr. Reuler nor Dowell's previous trial attorneys raised this issue, as there simply was no merit to it. See Nickel v. Hannigan, 97 F.3d 403, 411 (10th Cir. 1996) (denying habeas relief where defendant "failed to show that his statements to police were involuntary and that there [was] a reasonable probability that they therefore would have been suppressed if [counsel] had objected to them") (citing numerous opinions for this same proposition); see also Colorado v. Connelly, 479 U.S. 157, 167 (1986) ("coercive police activity is a necessary predicate to the finding that a confession is not `voluntary'").6 In addition, Mr. Reuler had no basis to request a voluntariness hearing pursuant to 18 U.S.C. § 3501 because there was no evidence indicating that Dowell's confession was anything but voluntary. Nor was the Court required to conduct a § 3501 hearing sua sponte. "When a defendant questions the

At a motions hearing, the government raised the issue of Dowell's confession, and noted that while it did not "want to get into defense strategy or anything of that nature," it pointed out that no motion had been filed regarding that confession. Mr. Reuler confirmed that he did not intend to file such a motion. Dowell Vol. VI at 28-29.
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Nor could Dowell's appellate counsel have raised this issue on appeal. A motion to suppress a defendant's confession must be made before trial or it is waived. Fed. R. Crim. P. 12(b)(3)(C); see United States v. Miller, 987 F.2d 1462, 1465 (10th Cir. 1993).
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voluntariness of a confession, a hearing is mandated." Dowell, 430 F.3d at 1106. However, Dowell "did not make the voluntariness of his confession an issue by any motion or objection before or during trial, and the record reveals that no evidence presented raised this issue." United States v. Hart, 729 F.2d 662, 666 (10th Cir. 1984); see Dowell, 430 F.3d at 1106 n.6 (Dowell "does not make any argument specifically based upon § 3501(a)"). "Trial courts need not hold a Jackson v. Denno hearing on their own motion unless there is an issue of voluntariness." Hart, 729 F.2d at 666 (citing numerous opinions for the proposition that a trial court is not required to sua sponte hold a § 3501hearing where the issue of voluntariness is not raised and there is no evidence in the record to suggest involuntariness). Accordingly, there is no merit to Dowell's assertion that he was entitled to a § 3501 hearing. Dowell cannot establish that there is a reasonable probability that the jury would have reached a different verdict absent Dowell's confession. Mr. Reuler was faced with Dowell's signed Miranda waiver and the testimony of three separate agents as to the voluntary nature of Dowell's confession. This confession was also corroborated by the testimony of Ronald Sherman and the physical evidence recovered from the scene. Mr. Reuler's decision to not challenge this confession through a motion to suppress and instead

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attack it through cross-examination of the agents was "sound trial strategy." Strickland, 466 U.S. at 689; see Barkell v. Crouse, 468 F.3d 684, 689 (10th Cir. 2006) (for "counsel's performance to be constitutionally ineffective, it must have been completely unreasonable, not merely wrong") (quotation omitted). Given the overwhelming evidence of Dowell's guilt, he cannot establish that he would have been acquitted had his confession not been admitted. Kimmelman, 477 U.S. at 375. For these reasons, this claim must fail. Claim B: Dowell asserts that Mr. Reuler was ineffective in failing to 1) investigate Dowell's alibi; 2) talk to witnesses at Shane's and Perkins; and 3) talk to Gloria McIntosh. Motion at 8-10. None of these claims have merit. First, as to Dowell's alibi, the jury heard testimony from Ron Sherman as to the events of May 3, 1997, and from the three separate agents as to Dowell's Mirandized confession which corroborated those events. Short of Dowell testifying himself as to his version of the events of May 3, 1997 (which issue is addressed below), there was nothing more Mr. Reuler could have done to refute the evidence pertaining to Dowell's whereabouts on the night of May 3, 1997. As to potential alibi witnesses, even if patrons from Shane's Place would have testified to having seen Dowell there on the night of May 3, 1997, these witnesses in no way would have knowledge of the events that transpired once

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Dowell left that establishment. In addition, whether any witnesses from a Perkins restaurant would have been able to testify at Dowell's trial in April of 2003 that Dowell was present at a meeting with Sherman, Cleaver, and Thomas Dowell approximately six years previously (Spring of 1997) is baseless speculation at best, and in no way would have exonerated Dowell with regard to the arson. Finally, as to Gloria McIntosh, she was not called as a witness by either side in Dowell's trial. At Cleaver's trial, however, McIntosh testified that Cleaver confessed to her that he was responsible for the IRS arson and stated that the Dowells were not at the fire at the time, but that they were supposed to provide a false alibi for Cleaver by saying that Cleaver had been with them the night of the arson. Cleaver Vol. XXI at 530-31. McIntosh had previously testified before the grand jury that Cleaver was not with the Dowells when they left their residence on the night of the arson. Cleaver Vol. XVII at 14-15. McIntosh's testimony at best would have implicated Dowell as an accomplice to this arson by providing a false alibi for Cleaver. Mr. Reuler's decision to not call McIntosh as a witness did not fall below "an objective standard of reasonableness." Strickland, 466 U.S. at 688. Nor can Dowell show that there is a reasonable probability that with McIntosh's testimony, "the result of the proceeding would have been different." Id. at 694; see also Snow v. Sirmons, 474 F.3d 693, 719 (10th Cir. 2007) ("counsel's

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performance will not be deemed deficient if it `might be considered sound trial strategy'") (quoting Strickland, 466 U.S. at 689) (additional quotation omitted). Dowell has failed to establish he suffered any prejudice from any of these alleged claims of ineffective assistance of counsel, and therefore, they must be denied. Claim J: Dowell claims that Mr. Reuler was ineffective in failing to move to dismiss the indictment based upon alleged perjured testimony of Agent Sipes before the grand jury that pertained to the "causing personal injury or creates a substantial risk of personal injury to any person" element as set forth in 18 U.S.C. § 844(f)(2). Motion at 26-29. There is no merit to this claim. In considering alleged errors that occurred before the grand jury, the Court first must determine "whether the claimed errors should be characterized as `technical' or `procedural' errors affecting only the grand jury's finding of probable cause, or whether the alleged errors are more properly characterized as threatening the defendant's `right to fundamental fairness in the criminal process.'" United States v. Lopez-Gutierrez, 83 F.3d 1235, 1244 (10th Cir. 1996) (quotation omitted). "When the basis of the alleged misconduct amounts to a technical violation ­ affecting only the grand jury's finding of probable cause ­ the defendant must have successfully challenged the indictment before the petit

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jury returns the verdict." United States v. Crockett, 435 F.3d 1305, 1316 (10th Cir. 2006) (citing Lopez-Gutierrez, 83 F.3d at 1245); United States v. Wiseman, 172 F.3d 1196, 1205-06 (10th Cir. 1999) (same). A guilty verdict supported by the evidence "not only establishes that there was probable cause to believe that the defendant was guilty as charged [ ] but also that the defendant was guilty beyond a reasonable doubt." Crockett, 435 F.3d at 1316 (citing Lopez-Gutierrez, 83 F.3d at 1245, and United States v. Mechanik, 475 U.S. 66, 70 (1986)). Even accepting as true Dowell's allegations with respect to the evidence presented regarding the injuries believed to be sustained by Firefighter Charles Sanders, these allegations amount to technical violations at best as they only pertain to the grand jury's finding of probable cause on this count, § 844(f)(2). In addition, Dowell never raised these specific allegations of grand jury misconduct on the part of Agent Sipes to this Court prior to the trial in this case.7 In November of 2001, one month after defendants were indicted, the government's motion to disclose grand jury material to defendants Cleaver and Thomas Dowell was granted. Vol. I, docs. 26 and 31. In March of 2003, Cleaver and both Dowells filed a joint motion to dismiss the indictment against them based upon alleged prosecutorial misconduct pertaining to the presentation of evidence to the grand jury relating to the alleged injuries sustained by Firefighter Charles Sanders. Vol. I, doc. 296. The government had previously sought to strike language from the indictment pertaining to Sanders's injuries due to difficulty in obtaining Sanders's medical records. Id. at doc. 293. The Court denied Cleaver's motion to dismiss the indictment, and granted the government's motion to strike the language from the indictment. Id. at doc. 309. Nowhere in the motion do any of the defendants allege
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Accordingly, if this Court agrees that these allegations amount to technical violations, they are rendered moot by the jury's guilty verdict.8 Mechanik, 475 U.S. at 70; see also United States v. Casas, 425 F.3d 23, 38 (1st Cir. 2005) (citing United States v. Hemmer, 729 F.2d 10, 17 (1st Cir. 1984), for the proposition that "[s]imply because there exist[s] inconsistencies between [a witness's] grand jury and trial testimony does not warrant the inference that the government knowingly introduced perjurious testimony"); Tapia v. Tansy, 926 F.2d 1554, 1563 (10th Cir. 1991) ("[c]ontradictions and changes in a witness's testimony alone do not constitute perjury and do not create an inference, let alone prove, that the prosecution knowingly presented perjured testimony") (citations omitted); United States ex rel. Burnett v. Illinois, 619 F.2d 668, 674 (7th Cir. 1980) (same).

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prosecutorial misconduct in the presentation of the testimony of Agent Sipes. Clearly, had Dowell believed Agent Sipes committed perjury before the grand jury, he could have filed a motion asserting this allegation prior to the jury rendering its verdict in this case. In its July 25, 2006 Order denying Cleaver's 28 U.S.C. § 2255 motion, this Court dismissed similar claims raised by Cleaver. Civil Action No. 06-cv-01433RPM.
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Claim K: Dowell asserts that Mr. Reuler was ineffective in failing to file Dowell's motion claiming lack of territorial jurisdiction. Motion at 30-35.9 In this claim, Dowell asserts that Mr. Reuler should have argued that because the United States leased office space for the IRS in the building that was burned down, it had only a proprietary interest in that building, and therefore, the Court lacked jurisdiction under 18 U.S.C. § 844(f). Motion at 32-33. There is no factual or legal basis for this claim. First, Mr. Reuler did raise Dowell's challenge to jurisdiction to this Court. After the close of the government's evidence, Mr. Reuler first moved for judgment of acquittal, arguing that the government failed to meet its burden of proof. Dowell Vol. XVII at 106. Mr. Reuler then argued that "the government has the burden of proving jurisdiction as regards to the situs of the crime," and asserted that the government failed to do so. Id. at 106-07. The Court denied this motion, and took "judicial notice that General Services Administration has the jurisdiction over government property, and to enter into leases." Id. at 107. The Court's ruling is supported by the plain language of § 844(f)(1): Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or Dowell filed a pro se motion challenging this Court's jurisdiction over his case. Vol. I, doc. 130. The motion was stricken, given that Dowell was represented by counsel and pro se filings are not permitted. Id. at doc. 136.
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an explosive, any building, vehicle, or other personal or real property in whole or in part owned or possessed by, or leased to, the United States, or any department or agency thereof . . . shall be imprisoned for not less than 5 years and not more than 20 years, fined under this title, or both. 18 U.S.C. § 844(f)(1) (emphasis added). The statute could not be more clear that this Court had jurisdiction over the arson of the IRS building, which was leased and possessed by the United States and its agency, the IRS. See also Dowell Vol. XVIII at 44 (Court instructed jury that in order to convict Dowell on Count I, it had to find that the "real or personal property, in whole or in part, was owned, possessed or used by or leased to the United States"). Because Mr. Reuler raised for the Court's consideration the very motion Dowell requested, and because this motion is not supported by the law in any event, Dowell cannot establish prejudice to support this claim of ineffective assistance of counsel. Claim L: Dowell argues that Mr. Reuler was ineffective in failing to adequately litigate his pretrial motion to exclude the testimony of Ronald Sherman and to request a hearing pursuant to 18 U.S.C. § 3501 on this issue. Motion at 3536. The record does not support this claim. Mr. Reuler did file a motion to suppress Ronald Sherman's statement to the agents. Vol. I, doc. 318. This Court denied Mr. Reuler's motion, holding that
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whether Sherman's confession was coerced is "a matter for cross-examination. It goes to the credibility of the witness. It isn't a basis for exclusion of him as a witness." Dowell Vol. XII at 255. Dowell's appellate counsel raised this issue on direct appeal, and argued that the Court should have sua sponte held a § 3501 hearing on the voluntariness of Sherman's confession. The Tenth Circuit rejected this claim, holding that "the evidence before the district court was insufficient to create a `serious factual dispute' as to whether Sherman's will was overborne and his confession involuntary. In light of that, the trial court did not err in failing to conduct an evidentiary hearing." Dowell, 430 F.3d at 1108. Dowell may not raise in his § 2255 motion issues that were previously considered and disposed of on direct appeal. United States v. Warner, 23 F.3d 287, 291 (10th Cir. 1994); United States v. Prichard, 875 F.2d 789, 791 (10th Cir. 1989) (same). Claim C: Dowell argues that Mr. Reuler was ineffective in failing to call Thomas Dowell to testify at trial on Dowell's behalf. Motion at 10. In support of this claim, Dowell attaches an affidavit signed by Thomas Dowell, dated June 23, 2007, in which Thomas Dowell states that he was willing to testify on Jack Dowell's behalf and that if called, he would testify that Jack Dowell was with him

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on the evening of May 3, 1997, and therefore, could not have been involved in the arson fire. Motion, Exhibit D. The decision whether to call a particular witness at trial is a tactical decision which clearly falls within the ambit of trial strategy. See Jackson v. Shanks, 143 F.3d 1313, 1320 (10th Cir. 1998); United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir. 1987). Such tactical decisions, if made reasonably, will not form the basis of a claim of ineffective assistance of counsel. Jackson, 143 F.3d at 1320. Given that Jack Dowell's trial was conducted first, it is highly unlikely that Thomas Dowell would have taken the stand and given testimony which could have been used against him in his own upcoming trial. Instead, it is more likely that if called, Thomas Dowell would have invoked his Fifth Amendment privilege against self incrimination. Thomas Dowell's affidavit ­ dated more than four years after Jack Dowell's trial and after Thomas Dowell was acquitted of the IRS arson and therefore was not risking anything by submitting this affidavit ­ is suspect at best. Jack Dowell is unable to establish that Mr. Reuler was ineffective as to this claim, and therefore, it should be denied. Claim D: In this claim, Dowell asserts that Mr. Reuler was ineffective in failing to adequately cross-examine the agents that testified as to Dowell's

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confession, thereby failing to lay a sufficient foundation in order for Dowell to take the stand in his defense. Motion at 11-12. This claim fails on all fronts. First, Mr. Reuler aggressively cross-examined the agents. As to Agent Carpenter, Mr. Reuler questioned whether Agent Carpenter was under a lot of pressure to solve this case. Dowell Vol. XVII at 36. Mr. Reuler queried why Agent Carpenter had not done "anything to preserve any evidence of [Dowell's] alleged confession," id. at 38, by way of note taking, tape recording, videotaping, or asking Dowell to "write a statement and sign it." Id. Mr. Reuler similarly cross-examined Agent Bennett, id. at 54-56, and extensively cross-examined Agent Petosky about the circumstances of the agents' encounter with Dowell, Dowell's confession, and Agent Petosky's note writing and summary of that confession. Id. at 88-91. Through his cross-examinations, Mr. Reuler certainly attempted to call into question the validity of Dowell's confession. Had Dowell wanted to take the stand and testify as to the circumstances surrounding his confession, he clearly had that right, and was so advised. Dowell Vol. XVII at 105-06 (in response to the Court's question as to whether he understood he had the right to testify, Dowell responded, "I understand, Sir." In response to the Court's question, "what is your choice?" Dowell responded, "I

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choose not to testify"). Dowell does not explain what more Mr. Reuler could have done to lay a foundation for Dowell's testimony, nor was such "laying of foundation" a prerequisite to Dowell taking the stand in his defense. For these reasons, this claim must fail. Claim E: Dowell baldly asserts that Mr. Reuler failed to 1) investigate; 2) read discovery material; 3) adequately cross-examine prosecution witnesses, and 4) to impeach witnesses with police reports and other available materials. Motion at 12-17. Dowell offers no credible evidence to support any of these claims. To begin, Dowell cites to questions and answers that were asked at Thomas Dowell's trial, which occurred after Jack Dowell was convicted. Motion at 13 n.2. Dowell argues that Mr. Reuler should have asked these questions of firefighters apparently in an attempt to establish that this blaze did not create a substantial risk of injury to others. Id. However, the testimony at trial as to the extent of this fire clearly established the substantial risk this fire posed to the safety of others. These questions would not have refuted that obvious fact. Dowell then goes on to challenge the cross-examination conducted by Mr. Reuler of Craig Dowell, Ronald Sherman, and Agent Petosky. A trial counsel's cross-examination decisions, like other matters of trial strategy, are entrusted to the professional discretion of counsel. See United States v. Voigt, 877 F.2d 1465,

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1468 (10th Cir. 1989); United States v. Miller, 907 F.2d 994, 1002 (10th Cir. 1990); see also Dunham v. Travis, 313 F.3d 724, 732 (2d Cir. 2002) (decisions about "whether to engage in cross-examination, and if so, to what extent and in what manner, are . . . strategic in nature and generally will not support an ineffective assistance claim") (internal quotation marks omitted). The record is clear that Mr. Reuler conducted extensive cross-examination of each of these witnesses. See Dowell Vol. XVI at 11-22 (cross-examination of Craig Dowell); Dowell Vol. XV at 7-33 (cross-examination of Ronald Sherman); Dowell Vol. XVII at 84-93 and 97-99 (cross-examination of Agent Petosky). Dowell cannot establish that Mr. Reuler's performance during these crossexaminations was so deficient as to entail "an error so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Malicoat, 426 F.3d at 1248 (citing Strickland, 466 U.S. at 687). Nor can Dowell establish the requisite prejudice to sustain these ineffective assistance of counsel claims, and therefore, they must be denied. Claim F: Dowell argues that Mr. Reuler was ineffective for failing to move for a mistrial and request a limiting instruction when a firefighter made a single reference to the collapse of the World Trade Center when discussing how structures collapse due to fire. Motion at 17-19. There is no merit to this claim.

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Although Dowell argues that this reference to the World Trade Center was "irrelevant and highly prejudicial," Motion at 18, he does not state how he was prejudiced by this reference. Notably, the reference was in no way connected to his case, but was simply made as an example of how quickly structural collapse in a building occurs. Nowhere in his testimony did the witness relate the World Trade Center to Dowell's actions. Nor was there any testimony concerning the 911 attack itself. Thus, the reference, when considered in the context of the entire proceeding, did not in any way render the proceeding fundamentally unfair. There is no reasonable probability that the comment influenced the jury's verdict in any manner or changed the outcome of the case. See, e.g., United States v. Nunez, 668 F.2d 1116, 1124 (10th Cir. 1982) (there was no reasonable possibility that the single protective custody comment by a witness contributed in any way to defendant's conviction). Moreover, Mr. Reuler may have reasonably chosen not to object or request a limiting instruction in order to avoid highlighting the testimony, which the jury likely failed to notice and which was not later emphasized in the government's summation. Rather than constituting ineffective assistance of counsel, such a determination on the part of counsel represents sound trial strategy. See, e.g., Anderson v. Sternes, 243 F.3d 1049, 1057-58 (7th Cir. 2001) (petitioner's

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"attorney may have strategically decided that it was better not to ask for a limiting instruction . . . because such an instruction would highlight the evidence to the jury. Such a strategy is reasonable, especially given that the evidence . . . was a minor portion of the government's case."); Buehl v. Vaughn, 166 F.3d 163, 176 (3d Cir. 1999) (agreeing with state court's conclusion that "[b]ecause the [objectionable] statements were fleeting, . . . `trial counsel may have wished to avoid emphasizing what might have gone relatively unnoticed by the jury"') (citation omitted). Furthermore, there was little likelihood that a motion for mistrial would be granted on the basis of a witness's single reference to the World Trade Center. A mistrial is a "drastic sanction." United States v. Templeman, 481 F.3d 1263, 1265 (10th Cir. 2007). As the Tenth Circuit has recognized, "[n]ot all improper comments require a new trial. Rather, only comments which threatened to deny a defendant a fair trial require such sanction." Id. (citation omitted).10

Defendant's reliance on Vela v. Estelle, 708 F.2d 954 (5th Cir. 1983), to support this claim is unavailing. Motion at 17-18. In Vela, defense counsel was found to have provided ineffective assistance where counsel failed to object to the testimony of the grieving widow of the victim. That testimony had no bearing on the case, but instead was used as a means of highlighting how burdensome the victim's death was on his wife and children. Id. at 962-63. As a result, the court found that the sole purpose of this testimony was to inflame the minds of the jury. Id. Clearly, the facts in Vela where the witness's entire testimony was prejudicial is far different from what happened in this case.
10

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For these reasons, Dowell's claim of ineffective assistance of counsel on this ground must fail. Claim G: Dowell claims that Mr. Reuler was ineffective for failing to object to the jury charge, verdict form, and evidence that he asserts constructively amended the indictment. Motion at 19. This claim is based upon the Court's granting of the government's motion to strike Firefighter Charles Sanders's name from the indictment and instead rely on the substantial risk of injury to others, rather than specifically to Mr. Sanders. Motion at 20-22. The record does not support Dowell's challenge. First, the government moved to strike Mr. Sanders name from the indictment after Mr. Sanders confirmed that he had a pre-existing back injury that was aggravated when he responded to the May 3, 1997 IRS arson fire. Vol. I, doc. 293. In light of this evidence, the government concluded that "it is appropriate to rely on the second part of § 844(f)(2), referring to creating a substantial risk of injury, rather than identifying and relying upon a specific person with a specific injury." Id. at 2. At a hearing when this motion was addressed, the Court agreed with the government that it did not need to particularize the harm to a specific individual. See Dowell Vol. XI at 6. Mr. Reuler agreed that "the charge is in the conjunctive,

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and the government can pursue either or," to which the Court responded, "Right." Id; see United States v. Earls, 42 F.3d 1321, 1327 (10th Cir. 1994) (indictment was not "broadened" as "it is entirely proper for the district court to instruct the jury in the disjunctive, though the indictment is worded in the conjunctive") (internal quotations omitted). However, Mr. Reuler went on to object to the testimony that was presented to the grand jury regarding Mr. Sanders's injury, and asserted that "the government knew there was no real injury, and this was simply a drum to beat to try and inflame the Grand Jury at a time that everybody was very sensitive to the dangers and risks that firemen underwent." Id. at 8. The Court rejected this challenge, noting that the defendant could not "inquire into what motivated the Grand Jury to find probable cause," and that what mattered is whether the trial jury convicted the defendant. Id. at 9-10. Accordingly, Dowell is incorrect in asserting that Mr. Reuler did not object to this change in the evidence supporting the § 844(f)(2) charge. As to Dowell's jury charge and verdict form arguments on this issue, Dowell is correct that Mr. Reuler did not object to either. Vol. XVII at 109. However, the Court's ruling that redaction of the indictment to exclude Mr. Sanders and include "injury to any person," tracked the language of the statute

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itself. See 18 U.S.C. § 844(f)(2). Accordingly, because there was no basis for Mr. Reuler to object to the language in either the instruction or verdict form on this point, Dowell suffered no prejudice, and therefore, his ineffective assistance of counsel claim on this issue must fail. Orange, 447 F.3d at 797 (where the basis of the ineffective assistance claim "is the failure to raise an issue, [the Court] must look to the merits of the omitted issue. . . . If the omitted issue is without merit, then counsel's failure to raise it is not prejudicial, and thus is not ineffective assistance"). Claim H: Dowell complains that Mr. Reuler failed to present evidence on vertical ventilation practices and request a special jury instruction and verdict form on this issue. Motion at 22-24. There is no basis for this claim. Firefighter Scott Downs testified extensively as to the measures the firefighters took to contain the fire, including explaining to the jury the process of completing a trench cut. Dowell Vol. XII at 245-252; Dowell Vol. XIV at 3-20. Firefighter Downs explained that the purpose of this cut is to release the pressure of the fire and to assist in containing it. Dowell Vol. XII at 251. There is no basis for Dowell's assertion that his counsel was ineffective for failing to fault the firefighters in the method they employed in their attempt to contain this fire, and

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somehow blame them for allegedly failing to minimize the risk this blaze posed to them. Nor was Dowell entitled to a jury instruction detailing the technical and irrelevant vertical ventilation technique. Although a defendant is entitled to a jury instruction on his theory of defense if it is supported by sufficient evidence, see United States v. Soussi, 316 F.3d 1095, 1104 n.3 (10th Cir. 2002), it is not enough to present the defense in wholly factual terms. United States v. Migliaccio, 34 F.3d 1517, 1523 (10th Cir.1994). Rather, the instruction must adequately instruct the jury on the legal principles underlying the defense. Id. Similarly, Dowell's claim that he was entitled to a special verdict form is not supported by the law. As several courts have recognized, "special verdicts are not favored [in criminal cases] and `may in fact be more productive of confusion than of clarity.'" United States v. Wilson, 629 F.2d 439, 444 (6th Cir. 1980) (quoting 8A Moore's Federal Practice and Procedure § 31.02(3) (same)); see also United States v. Blackwell, 459 F.3d 739, 766 (6th Cir. 2006) (same); United States v. Reed, 147 F.3d 1178, 1180 (9th Cir. 1998) (same). The general rule against special verdicts in criminal cases has long been considered to prevent the courts from "invad[ing] the province of the jury and infring[ing] on its power to deliberate free from legal fetters; on its power to arrive at a general verdict without

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having to support it by reason or by report of its deliberations; and on its power to follow instructions of the court." Blackwell, 459 F.3d at 766 (quotation omitted). Because Dowell failed to establish he suffered any prejudice with respect to his "vertical ventilation" claim, it must fail. Claim I: Dowell argues that his attorney was ineffective for failing to request an instruction requiring the jury to determine beyond a reasonable doubt the essential elements of 18 U.S.C. §§ 2332b(a)(1)(B) and 2332b(g)(5)(B)(I), which pertain to the terrorism enhancement. Motion at 24-26. This claim is procedurally barred because it was raised and rejected on direct appeal. Warner, 23 F.3d at 291; Prichard, 875 F.2d at 791 (same). Dowell was not charged with an offense under 18 U.S.C. § 2332b(a)(1)(B), and therefore, there was no need to instruct the jury on the elements of this statute. Instead, Dowell was charged with destroying government property by fire, in violation of 18 U.S.C. § 844(f)(1) and (2). Dowell's conviction under 18 U.S.C. § 844(f)(2) triggered a sentencing enhancement for the crime of terrorism pursuant to the United States Sentencing Guidelines (U.S.S.G.) § 3A1.4(a). Dowell, 430 F.3d at 1110-11. Section § 3A1.4(a), comment. (n. 1), defines a "federal crime of terrorism" by referring to 18 U.S.C. § 2332b(g)(5), which in turn defines a "[f]ederal crime of

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terrorism" to be an offense that "is calculated to influence or affect the conduct of government by intimidation or coercion," and that violates one of a number of specified federal statutes, including 18 U.S.C. § 844(f)(2). Id. The Tenth Circuit held because the jury's verdict encompassed these two factual findings, the district court did not violate the Sixth Amendment by applying the terrorism enhancement. Id. at 1110. The statutory maximum sentence for an offense under § 844(f)(2), as found by the jury, was forty years imprisonment. The sentencing enhancement did not exceed this statutory maximum as required to trigger Apprendi v. New Jersey, 530 U.S. 466 (2000), and thereby require a jury's finding beyond a reasonable doubt. Thus, no constitutional violation occurred. See, e.g., United States v. Holyfield, 481 F.3d 1260, 1262 (10th Cir. 2007) (Apprendi does not apply to sentencing factors that increase a defendant's guideline range but do not increase the statutory maximum), cert. denied, ___ S. Ct. ___, 2007 WL 2589959 (Oct. 9, 2007) . For these reasons, the Tenth Circuit properly denied this claim, and it may not be reasserted in this § 2255. Warner, 23 F.3d at 291; Prichard, 875 F.2d at 791 (same).

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Claim J: Dowell asserts that the cumulative effect of his counsel's errors in his case justifies relief from his conviction and sentence. Motion at 39. There is no merit to this claim. "[C]umulative-error analysis aggregates only actual errors to determine their cumulative effect." Smith v. Mullin, 379 F.3d 919, 935 n.8 (10th Cir. 2004) (quotation omitted); see also Lee v. Lockhart, 754 F.2d 277, 279 (8th Cir. 1985) (each "claim of a constitutional deprivation asserted in a petition for federal habeas corpus must stand [or fall] on its own"). As set forth above, there was no error with respect to Dowell's conviction, and therefore, there is "no error to cumulate, and no occasion to apply a cumulative-error analysis." Smith, 379 F.3d at 935 n.8. Dowell's claims of ineffective assistance at sentencing. Claim N: Dowell argues that his sentencing counsel was ineffective for failing to object to the alleged breach of a stipulation on the amount of loss due to the arson at $1.5 million. Motion at 38-39. There is no factual support for this claim. On the second day of trial, government counsel requested that the Court read to the jury certain stipulated exhibits. Mr. Reuler had no objection. One of these stipulated exhibits was No. 32, which was the insurance adjustor's letter.

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Dowell Vol. XIV at 67. A copy of Exhibit No. 32 is attached to Dowell's presentence investigation report. Dowell Vol. XXI at Attachment 1. In this letter, the adjustor states that the building loss amount was $2,252,384.88. Id. The Court ordered that Dowell pay restitution in that amount. Dowell Vol. XX at 17. Mr. Steinberg did not object to this amount, nor could he, given the stipulation at trial as to this amount. Id. at 13-14. Accordingly, Dowell's claim of ineffective assistance of counsel in this regard must fail. Claim M: Dowell asserts that Mr. Steinberg provided ineffective assistance of counsel in failing to object to use of the 2002 Edition of the United States Sentencing Guidelines to calculate his sentence. Motion at 36-38.11 The United States agrees that the wrong guidelines manual was used in this case. To begin, § 1B1.11(a) provides that "[t]he court shall use the Guidelines Manual in effect on the date that the defendant is sentenced." Section (b) of this provision states that "[i]f the court determines that use of the Guidelines Manual in effect on the date that the defendant is sentenced would violate the ex post facto This issue was not raised on direct appeal, however, claims of ineffective assistance of counsel are generally not addressed on direct appeal. See United States v. Brooks, 438 F.3d 1231, 1242 (10th Cir. 2006) (citing United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc)). Dowell raised this issue for the first time in his petition for a writ of certiorari filed with the United States Supreme Court. The Supreme Court will not address issues that were "not pressed or passed upon below." Illinois v. Gates, 462 U.S. 213, 221-22 (1983). Accordingly, the Supreme Court denied Dowell's petition on October 2, 2006.
11

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clause of the United States Constitution, the court shall use the Guidelines Manual in effect on the date that the offense of conviction was committed." The relevant guideline provision for a violation of 18 U.S.C. § 844(f)(1) and (f)(2) is § 2K1.4. Given that Dowell was sentenced in 2003, the 2002 version of the guidelines was used in this case. The 2002 version of Section 2K1.4(a)(3) states that the base offense level for this offense is "2 plus the offense level from § 2B1.1 (Theft, Property, Destruction, and Fraud)." The 2002 version of § 2B1.1(a) provided for a base offense level of 6. See 2002 Guidelines Manual, § 2B1.1(a). Accordingly, the presentence investigation report prepared in this case indicated that Dowell's base offense level, prior to enhancements, was 8. Dowell Vol. XXI at 8, ¶ 26. However, the 1996 version12 of § 2K1.4(a)(3) provides that the base offense level for arson is "2 plus the offense level from § 2B1.3 (Property Damage or Destruction)." The 1996 version of Section 2B1.3 provides that the base offense

The Sentencing Commission did not publish a full revised edition of the Guidelines Manual in 1996; instead, it produced only a short Interim Publication which, used in conjunction with the 1995 Guidelines Manual, constitutes the version of the manual in effect beginning November 1, 1996. See www.ussc.gov/guidelin.htm; United States v. Barba, 136 F.3d 1276, 1277 (10th Cir. 1998) ("[w]e apply the 1996 version of the Guidelines Manual because that version was in effect on January 27, 1997, the date of defendant's sentencing") (citation omitted).
12

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level is 4.13 Accordingly, given the fact Dowell's offense occurred in May of 1997, to avoid an ex post facto violation due to this two-level increase, the 1996 Guidelines Manual was the correct version to apply to this case.14 Under the 1996 version of § 2B1.1(a) (which was then designated as § 2B1.3), Dowell's base offense level, prior to enhancements, would be 6 instead of 8. Section 2B1.3(b), Specific Offense Characteristics, then provides that "(1) [i]f the loss exceeded $100, increase by the corresponding number of levels from the table in § 2B1.1." The loss in this case was $2,252,384.88. The 1996 Guidelines Manual provides for a 14-level enhancement for this loss amount. See 1996 Guidelines Manual, § 2B1.1(b)(1)(O). The 2002 Guidelines employed in this case increased Dowell's base offense level by 16 levels for this loss amount. § 2B1.1(b)(1)(I) (2002). Dowell Vol. XXI at 8, ¶ 27. Dowell should have received the 14-level increase instead of 16 levels. The analysis does not end here, however, because under § 2B1.3(b)(3) (1996), Dowell's offense level should be increased two levels because the IRS

This base offense level was increased to 6 effective November 1, 2001. U.S.S.G. § 2B1.1(a) (2001).
13

Application of the 1996 Guidelines to this case does not impact the applicability of the terrorism enhancement. This enhancement went into effect on November 1, 1996. 1996 Guidelines Manual, § 3A1.4.
14

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arson fire involved "more than minimal planning."15 Specifically, Ronald Sherman testified about the meetings that occurred months prior to the arson in which Sherman, Cleaver, and the Dowells planned this arson; they discussed the surveillance of the building, how they would enter the building "how the fire was going to be started, and how we were going to get there, what to do with the maintenance crew, things like that." Dowell Vol. XIII at 8-9; see also id. at 7-17. Sherman also discussed how the four planned on using aliases during the planning phase, and latex gloves during the arson so that no fingerprints would be left. Id. at 12, 17. Under the "one book rule," United States v. Aptt, 354 F.3d 1269, 1276 (10th Cir. 2004) (citing § 1B1.11(b)(2)), this two-level increase is appropriate. See id. ("Defendants cannot mix and match provisions from various versions of the Guidelines in order to produce the lowest sentence; having received the benefit of the 1995 Guidelines' lighter sentences for fraud, they are stuck with 1995's unfavorable grouping rules"). Dowell's originally calculated adjusted offense level was 36. Dowell Vol. XXI at 9, ¶ 34. However, with · a two-level decrease from Dowell's originally calculated base offense level of 8 to 6, pursuant to § 2K1.4(a)(4) (1996) and This provision was eliminated effective November 1, 2001. U.S.S.G. § 2B1.1 (2001).
15

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§ 2B1.3(a) (1996); · a two-level decrease for the amount of loss, pursuant to § 2B1.1(b)(1)(O) (1996); · and a two-level increase for minimal planning, pursuant to § 2B1.3(b)(3) (1996), Dowell's adjusted offense level would now be 34,16 resulting in a sentencing guideline range of 262-327 months. U.S.S.G. Ch. 5 Pt. A (1996).17

Pursuant to § 3D1.2(a) (1996), Counts 1 and 2 are grouped together, because they involve "the same victim and the same act or transaction." The combined offense level is therefore 34.
16

Dowell's co-defendant James Cleaver is not entitled to relief on this issue as it was never raised. Moreover, even if Cleaver were entitled to a base offense level reduction for the reasons set forth above, it would not reduce his sentencing guideline range. Under the 2002 guidelines, Cleaver's total adjusted offense level was 42, Cleaver Vol. XXVI at 10, ¶ 41 (PSI), and his sentencing guidelines range was 360 months to life in prison. Applying the 1996 guidelines and reducing Cleaver's base offense level by two levels to 40 would not change the 360-life sentencing range. U.S.S.G. Ch. 5 Pt. A (1996). The statutory maximum for this offense is 480 months, 18 U.S.C. § 844(f)(2), and that would not change either with a reduction of two levels to Cleaver's offense level. Accordingly, Cleaver cannot establish that he suffered any prejudice as a result of application of the 2002 guidelines to his case. The government would note that the Tenth Circuit Court of Appeals denied Cleaver's request for a certificate of appealability from the denial of his 28 U.S.C. § 2255 motion. On July 25, 2007, the Tenth Circuit also denied his request for a petition for rehearing, and for rehearing en banc. Case No. 07-1051. Cleaver filed a petition for certiorari with the United States Supreme Court from this denial. His case is scheduled to be distributed for conference on October 26, 2007. Supreme Court Case No. 07-6689.
17

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II. There is No Merit to Dowell's Conflict of Interest Claim. Dowell asserts that a conflict of interest occurred in his case because his trial counsel, Mr. Reuler, was allegedly being investigated by the same federal agencies that were prosecuting Dowell and that Mr. Reuler fraudulently billed the United States "to pay off his previous client." Motion at 40. There is no factual support for Dowell's assertions. As to a conflict of interest claim, the Supreme Court has held that the prejudice requirement, as set forth in Strickland, can be presumed if a defendant can show that "a conflict of interest actually affected the adequacy of [the attorney's] representation . . . ." Cuyler v. Sullivan, 446 U.S. 335, 349 (1980). As a result, courts are careful to guard against "defendants' attempts to force their ineffectiveness claims into the `actual conflict of interest' framework . . . and thereby supplant the strict Strickland standard with the far more lenient Cuyler test." United States v. Mitchell, 216 F.3d 1126, 1131 (D.C. Cir. 2000) (quotation marks and citation omitted). Dowell's attempt to create a conflict where none exists must fail. To begin, the Colorado Supreme Court issued an order dated August 26, 2003, disbarring Mr. Reuler from the practice of law in this state, effective September 26, 2003 ­ two months after Dowell had been sentenced in this case.

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Dowell Vol. XX (Dowell's July 21, 2003 sentencing transcript). (A copy of the Colorado Supreme Court's opinion in Case No. 03PDJ054 is attached hereto as Attachment 3).18 Dowell provides nothing other than bald assertions that Mr. Reuler was being investigated by federal agencies, and undersigned counsel could find no evidence to support this claim. In addition, as the Opinion makes clear, Mr. Reuler's disbarment involved a client by the name of Travis Quinton and Mr. Reuler's failure to subrogate $13,5000 to Mr. Quinton's worker's compensation insurer, Royal Sun Alliance. Attachment 3. From the contents of the opinion, Mr. Reuler's disbarment had nothing whatsoever to do with Dowell's case. However, even if Dowell's claims are true and Mr. Reuler did fraudulently bill the United States for services obtained in Dowell's case ­ a claim completely unsupported by any evidence ­ Dowell has not demonstrated how such alleged conduct prejudiced him in any way. Dowell does not allege that he was denied any services, but rather, complains about Mr. Reuler's alleged billing practices with respect to obtaining such services. Smith, 528 U.S. at 286 n. 14 (court may dismiss ineffective assistance claim on the ground of lack of sufficient prejudice).

18

A partial copy of this order is attached to Dowell's Motion as Exhibit R.
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Here, the grounds for Mr. Reuler's disbarment "are sufficiently unrelated to the previously prevailing presumption of competence that no inference can be drawn of ineffectiveness in representation." Mitchell, 216 F.3d at 289. Indeed, in United States ex rel. Ortiz v. Sielaff, 542 F.2d 377 (7th Cir. 1976) the court held that subsequent disbarment "for reasons having nothing to do with [petitioner's] case" is "irrelevant" to counsel's performance at trial. Id. at 380. Specifically, in Padgett v. United States, 302 F. Supp. 2d 593 (D. S.C. 2004), the petitioner claimed ineffective assistance of counsel due to, inter alia, the fact his attorney was subsequently disbarred for misappropriation of his client's escrow fund money. Id. at 602, 604. The court rejected this claim, holding that "there is "a significant distinction between an attorney disbarred at the time of the representation and one disbarred subsequent to the representation" and "unless it is somehow causally related to the representation at issue, disbarment after the representation is not automatically suspect." Id. at 603-04 (emphasis in original and citing numerous cases for this proposition). The court in Padgett held that the attorney's "fraudulent act had absolutely nothing to do with representing the Petitioner in a guilty plea on federal child pornography charges. As such, the Court must view the representation in full to determine whether counsel rendered ineffective assistance." Id. at 604. After

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conducting such review, the court held that the attorney "more than adequately defended the Petitioner client" and denied his habeas petition. Id. at 608. Similarly, after reviewing Dowell's claims as set forth above with respect to Mr. Reuler's representation, the government submits that Mr. Reuler was not ineffective, there was no conflict of interest, and therefore, this claim must be denied. CONCLUSION For the reasons set forth above, the United States respectfully requests that this Court deny Dowell's ineffective assistance of trial counsel claims and his conflict of interest claim in their entirety. The United States agrees with Dowell's assertion that the 2002 Guidelines Manual should not have been applied in this case, and submits that a resentencing hearing is warranted. Respectfully submitted, TROY A. EID United States Attorney

by: s/ Martha Paluch MARTHA A. PALUCH Assistant United States Attorney U.S. Attorney's Office 1225 17th Street, Suite 700 Denver, CO 80202 Telephone: (303) 454-0100 FAX: (303) 454-0461 E-mail: [email protected]
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CERTIFICATE OF SERVICE I hereby certify that on this 25th day of October, 2007, a true and correct copy of the foregoing UNITED STATES' ANSWER TO DOWELL'S MOTION UNDER 28 U.S.C. § 2255 was delivered via the CM/ECF system to: Leslee Anne Barnicle [email protected], [email protected] James S. Covino [email protected] Ronald Gainor [email protected] Joseph Mackey [email protected], [email protected], [email protected] Michael J. Norton [email protected], [email protected], [email protected] Lynn Anne Pierce [email protected] Daniel T. Smith [email protected], [email protected] Harvey Abe Steinberg [email protected], [email protected]

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I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participants in the manner (mail, hand delivery, etc.) indicated by the nonparticipant's name: Mr. Jack Dowell (mail) Reg. No. 05225-017 JESUP - Federal Correctional Institution Inmate Mail/Parcels 2600 HIGHWAY 301 SOUTH JESUP, GA 31599 Ms. Nancy Holton (mail) Deputy Public Defender, Golden 560 Golden Ridge Rd., Ste. 100 Golden, CO 80401 Mr. Jody Reuler (e-mail) [email protected] Mr. Kurt Thoene (e-mail) [email protected]

s/ Ma-Linda Stevens Ma-Linda Stevens U.S. Attorney's Office

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