Free Order On Motion Reassigning Case - District Court of Colorado - Colorado

Case 1:01-cr-00277-EWN

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Edward W. Nottingham Civil Action No. 03­ 01981­ cv­ EWN Criminal Action No. 01­ 00277­ cr­ EWN

UNITED STATES OF AMERICA, Plaintiff­ Respondent v. JOSEPH RAY MORRISON, Defendant­ Movant.

ORDER DENYING SECTION 2255 MOTION

Defendant Joseph Ray Morrison was charged and convicted of being a felon in possession of two rounds of ammunition, in violation of 18 U.S.C.A. § 922(g)(1) (West 2006). On March 2, 2002, he was sentenced sixty-three months in prison, followed by a term of three years on supervised release. He appealed, but his conviction and sentence were affirmed on appeal. See United States v. Morrison, 58 Fed. Appx. 381, 2003 WL 77608 (10th Cir. Jan. 10, 2003). In its unpublished disposition, the Tenth Circuit has stated the facts supporting his conviction, and it would be redundant to repeat those facts here. Defendant now brings this collateral attack under 28 U.S.C.A. § 2255 (West 2006), alleging primarily that his court-appointed counsel, Assistant Federal Public Defender Robert Pepin, provided him with ineffective assistance of counsel, in violation of the Sixth Amendment to

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the United States Constitution. He also makes the following additional points: (1) This court erred in denying his request for substitute counsel to replace Mr. Pepin. (2) The assigned probation officer lied to him when the officer was preparing and filing the pre-sentence report in the case. (3) There was an insufficient nexus between the ammunition which he possessed and interstate commerce. In an earlier, separate filing (dkt. no. 97), Defendant has moved to recuse, observing that, at sentencing, he " regrettably made several indecorous, vile and illicit remarks directed at the Honorable Edward W. Nottingham"and therefore believes that the impartiality of this court might reasonably be questioned. In a supplemental filing, Defendant also argues that his sentence was illegal under Blakely v. Washington, 542 U.S. 296 (2004) and Apprendi v. New Jersey, 530 U.S. 466 (2000). Primary Contention in Section 2255 Motion -- Ineffective Assistance of Counsel Defendant advances several grounds for his contention that his trial counsel provided him ineffective assistance. First, according to Defendant, counsel did not spend a sufficient amount of time meeting with him or investigating the case. Defendant specifically complains of insufficient research concerning whether his criminal record included two " crimes of violence." Second, counsel (1) failed to object to the absence of William Boyd, Defendant' antagonist during the s incident preceding his arrest, from the suppression hearing, (2) failed to object to hearsay testimony by Officer Browett at that hearing, and (3) failed to impeach Officer Browett' s testimony. Third, counsel refused to allow Defendant to testify and trial and coerced him into not testifying. Fourth, counsel coerced Defendant into stipulating that the ammunition was manufactured in Illinois and had thus been transported in interstate commerce. -2-

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Claims of ineffective assistance of counsel are evaluated under the standard established in Strickland v. Washington, 466 U.S. 668 (1984). In order to show ineffective assistance of counsel under Strickland, movant must satisfy a two-pronged test by showing: (1) " counsel's representation fell below an objective standard of reasonableness"(the performance prong); and (2) " there is a reasonable probability that, but for counsel's professional error, the result of the proceeding would have been different"(the prejudice prong). Strickland, 466 U.S. at 688. Evaluating the four instances of alleged ineffective assistance (stated above) under these standards, the court concludes that the claims must fail. The second and third claims of ineffective assistance may be grouped for analysis because the existing record in the case demonstrates that they are without merit. Defendant cites no rule of law which would require the Government to have called William Boyd at the suppression hearing, and the court is aware of none. As for the absence of any objection to alleged hearsay testimony by the arresting officer, Michael Browett, two responses suffice. First, the transcript discloses that Deputy Browett' s testimony relating to what Defendant and William Boyd related to Browett was not hearsay because it was not offered to prove the truth of either Defendant' or Boyd' version of the s s underlying events. The issue at the hearing was whether Deputy Browett had justification to detain, frisk, and search Defendant and his car. The statements of the antagonists and other information concerning the underlying events was offered to prove that Browett' actions were s reasonable and proper. See generally FED. R. EVID. 801(c). Second, the rules of evidence do not strictly apply to proceedings, such as a suppression hearing, where a judge is determining whether evidence will be admissible at trial. FED. R. EVID. 104(a), 1101(d)(1); United States v. Matlock, -3-

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415 U.S. 164, 172­ (1974). The failure to make groundless objections is no indication of 74 ineffectiveness, nor can the failure have prejudiced Defendant -- because the court would have overruled the objections in any event. As for Defendant' suggestion that impeachment of Deputy s Browett was inadequate, the court' examination of the cross examination reveals the contrary. s The suggestion that counsel coerced Defendant into not testifying is likewise belied by the record. The court advised Defendant before the close of the evidence (1) that he had the right to remain silent, (2) that he had the alternate right to take the stand and testify in his own defense, and (3) that the decision was not his lawyer' to make, but his -- after consultation with his s lawyer. In response to a question by the court, Defendant unequivocally stated that his lawyer was not putting any pressure on him. In light of the advisement at trial, the court regards the current post-trial recollection as incredible revisionism concocted to avoid the verdict and sentence. The remaining claims of ineffective assistance, the first and fourth claims, raise a threshold question. To rebut Defendant' version of what happened, the Government has supplied s affidavits from Mr. Pepin and William Taylor, the prosecutor. The affidavits elucidate the underlying events and, in some instances, contradict Defendant' version of those events. The s question is whether the court should convene an evidentiary hearing to resolve these factual disputes. The court concludes that no evidentiary hearing is needed in these particular circumstances. The version of events related by Messrs. Pepin and Taylor is specific, detailed, and (in Mr. Pepin' case) supported by contemporaneous notes. Defendant, on the other hand, s -4-

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admitted at sentencing that he had lied to the court, and the court specifically found that he habitually lied when he believed it necessary to obtain what he wanted from the court. His current arguments -- for example, the declaration that Mr. Pepin coerced him into not testifying -- continue the pattern of palpable prevarication. The court does not believe an evidentiary hearing would serve any purpose, because there is no reason for a re-assessment of Defendant' s mendacity. The court will accept the lawyers' version of events, because it is satisfied beyond any doubt that this would be the result of an evidentiary hearing. Resolving these credibility issues against Defendant, the outcome of the first and fourth claims of ineffective assistance is clear. The claim that Mr. Pepin was ineffective because he coerced Defendant into stipulating that the ammunition had traveled in interstate commerce (the fourth claim) is untrue, as a matter of fact. Even if it were true, Defendant cannot have suffered any prejudice, since, as the prosecutor says in his affidavit, the Government was fully prepared to prove this technical point anyway. As for the claim concerning inadequate research, investigation, and attention to the case (the first claim), Mr. Pepin details many meetings with Defendant, and Defendant fails to show how any more meetings would have effectively advanced his case. Especially bizarre is Defendant' claim that Mr. Pepin failed him by advising that some of his prior s convictions were " crimes of violence"and thus increased his potential sentence. According to Defendant, this caused him to go to trial, rather than pleading guilty, because of this potential sentence. The argument is circular and without merit. There was a serious question as to whether the convictions were crimes of violence. Indeed, the initial pre-sentence report so treated them. It was Mr. Pepin' effective advocacy which cause the probation officer to change his mind s -5-

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and recommend the course of action which the court adopted -- not treating the convictions as crimes of violence. The court does not think it ineffective of Mr. Pepin to suggest to Defendant, for purposes of deciding whether to plead or go to trial, that the court might find the convictions to be crimes of violence. It would be ironic and inappropriate if counsel' later effective advocacy s were allowed to undercut the cautious earlier advice. Miscellaneous Contentions in Section 2255 Motion 1. Court' Refusal to Appoint Substitute Counsel upon Demand by Defendant s Having rejected all of Defendant' four claims concerning the alleged ineffectiveness of his s counsel, the court now turns to his miscellaneous remaining claims. The first contention is that the court erred when it denied his request to fire Mr. Pepin and appoint another attorney to represent him. When the court appoints an attorney to represent an indigent defendant, the court, not the defendant, chooses which attorney to appoint. See United States v. Davis, 604 F.2d 474 (7th Cir. 1979); United States v. White, 451 F.2d 1225 (6th Cir. 1971). When a defendant becomes dissatisfied with the appointed attorney and seeks another appointed counsel, his request is addressed to the sound discretion of the court. Smith v. United States, 353 F.2d 838 (D.C. Cir. 1965). In this case, the court held a hearing on Defendant' request for new counsel. The court s inquired of Defendant and Mr. Pepin concerning the nature of the problem and found nothing in the record to suggest that Mr. Pepin had done or omitted to do anything from which the court could conclude that he was ineffective. The court believed that, given Defendant' obvious s truculence and ill-temper, he would be a difficult client for any attorney. The court advised -6-

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Defendant that he could retain counsel of his choice or represent himself but that the court would not in these circumstances appoint substitute counsel for him. The court continues to believe that the decision was sound. 2. Alleged Lies in Pre-sentence Report;Lack of " Nexus" Between Ammunition and Interstate Commerce The second and third of Defendant' miscellaneous claims are that the probation officer s who prepared his pre-sentence report lied to him and that there was no nexus between interstate commerce and the ammunition which was the basis of his conviction. Neither of these claims has ever been raised before, even on direct appeal. Ordinarily, " [s]ection 2255 is not available to test the legality of matters that should have been raised on direct appeal." United States v. Walling 982 F.2d 447, 448 (10th Cir. 1992), citing United States v. Khan, 835 F.2d 749, 753 (10th Cir.1987). Movant' failure to raise these claims in his direct appeal bars review unless he can s show cause and resulting prejudice. Id. See also United States v. Frady, 456 U.S. 152, 167-69, 102 S.Ct. 1584, 1594- 95 (1982) (defendant must show cause and prejudice to obtain collateral review where there was no objection at trial). While Defendant has questioned the competence of trial counsel, he has not challenged the effectiveness of his appellate counsel. Failure of this counsel to raise these issues on direct appeal bars the assertion of these claims at this juncture. In any event the court finds these contentions to be frivolous on the merits. Even if his probation officer lied to Defendant, there is no suggestion that any aspect of the pre-sentence report is wrong. Absent such an allegation, it is hard to see how any such lie prejudiced Defendant. The argument concerning the lack of interstate nexus is similarly unavailing, because

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Defendant is simply wrong in assuming that such a nexus must be shown. The Government need only prove that the ammunition in question traveled from one state to another at some point. Motion to Recuse Defendant argues that this court should disqualify itself from the case. As noted earlier, he believes that the court' impartiality might be questioned because of remarks which he has s directed toward the court during the proceedings. Defendant' motion is controlled by 28 s U.S.C.A. § 455 (West 2006). Two provisions may apply: (a) Any . . . judge . . . of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. (b) He shall also disqualify himself in the following circumstances: (1) Where he has a personal bias or prejudice concerning a party . . . . The cases interpreting section 455 generally draw a distinction between alleged bias or prejudice from a source outside the proceedings and bias or prejudice allegedly arising during, or as a result of, the proceedings themselves (" extra judicial source rule" As the United States the ). Supreme Court has explained: The judge who presides at a trial may, upon completion of the evidence, be exceedingly ill disposed towards the defendant, who has been shown to be a thoroughly reprehensible person. But the judge is not thereby recusable for bias or prejudice, since his knowledge and the opinion it produced were properly and necessarily acquired in the course of the proceedings . . . . Also not subject to deprecatory characterization as " bias"or " prejudice"are opinions held by judges as a result of what they learned in earlier proceedings.

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Liteky v. United States, 510 U.S. 540, 550­ (1994). Ordinarily, alleged bias or prejudice which 51 arises solely from hearing the proceedings is not a ground for disqualification unless " is so it extreme as to display clear inability to render fair judgment." Id. This court is unaware of any reason for disqualification in the circumstances presented here. Defendant does not point to any ruling or comment alleged to demonstrate the clear inability to render fair judgment. He points instead to certain remarks which he made about the court. For obvious reasons, it cannot be the rule that a party may precipitate the need for disqualification by making hostile remarks and then arguing that they mandate disqualification. It is true that the court has made a number of judgments concerning Defendant' credibility during s the proceedings. They are based, however, on Defendant' own words and/or clear evidence in s the record. A reasonable person looking at the situation would not think them so extreme as to require reassignment to another judge of this court. Supplemental Filing -- Sentencing Issues Finally, Defendant, in a supplemental filing, says that his sentence was illegal under Blakely v. Washington, 542 U.S. 296 (2004) and Apprendi v. New Jersey, 530 U.S. 466 (2000). This supplement was filed on July 20, 2004, over a year after this court' judgment became final s when the United States Supreme Court denied his petition for a writ of certiorari on May 19, 2003. The United States Court of Appeals for the Tenth Circuit has provided guidance concerning such " supplements"or " amendments"which are themselves filed outside the one-year limitations period but which allegedly relate back to a timely-filed section 2255 petition. See

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United States v. Gilbert Espinoza-Saenz, 235 F.3d 501 (10th Cir. 2000). After a detailed review of supportive authority from other circuits, the Tenth Circuit stated: We find the reasoning in these cases to be persuasive, and therefore we join the other circuits who have decided this issue in holding that pursuant to Rule 15(c), an untimely amendment to a § 2255 motion " which, by way of additional facts, clarifies or amplifies a claim or theory in the [original motion] may, in the District Court's discretion, relate back to the date of [the original motion] if and only if the [original motion] was timely filed and the proposed amendment does not seek to add a new claim or to insert a new theory into the case."

Espinoza-Saenz, 235 F.3d at 504­ quoting United States v. Thomas, 221 F.3d 430, at 431 (3d 05, Cir. 2000) (emphasis supplied). Applying Espinoza-Saenz here, I find that that Blakely and Apprendi claim is without merit. This claim is separate " time and type" United States v. Craycraft, 167 F.3d 451, 457 in , (8th Cir. 1999), from the claims covered in the initial motion. See also Davenport v. United States, 217 F.3d1341, 1342­ (11th Cir. 2000). The claim cannot relate back to the date of the 43 original filing under Fed. R. Civ. P. 15(c). I will therefore deny, as time-barred, the motion to supplement by adding a claim that Apprendi or Blakeley require a modification of movant' s sentence. If movant wishes to pursue this matter, he will need permission from the court of appeals to file a successive section 2255 motion. I note, moreover, that the Tenth Circuit has joined the majority of circuits in ruling that it will not entertain a successive petition raising this question until the Supreme Court has expressly held the cases to be retroactive. See Browning v.

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United States, 241 F.3d 1262 (10th Cir. 2001) (holding Apprendi does not apply retroactively); United States v. Price, 400 F.2d 844, 849 (10th Cir. 2005) (holding Blakely does not apply retroactively). Upon the findings and conclusions stated herein, it is ORDERED as follows: 1. Defendant' section 2255 motion (#98) is DENIED. The clerk shall close the civil s case opened for reporting purposes. 2. Defendant' Motion to Recuse (#97) is DENIED. s 3. Defendant' motion to appoint substitute appellate counsel for his appeal (#93) is s DENIED as moot, the court of appeals having appointed new counsel for Defendant' appeal. s

Dated this5th day of February, 2007.

BY THE COURT:

s/ Edward W. Nottingham EDWARD W. NOTTINGHAM United States District Judge

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