United States District Court, N.D. Iowa, Western Division
MEMORANDUM OPINION AND ORDER REGARDING PETITIONER'S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT A SENTENCE
MARK W. BENNETT, District Judge.
This case is before me on petitioner Robert McNairy's Amended And Recast Motion Under § 2255 To Vacate, Set Aside, Or Correct Sentence (Amended § 2255 Motion) (Civ. docket no. 23), filed with the assistance of counsel on August 26, 2013. McNairy seeks relief on several claims of ineffective assistance of counsel and two constitutional claims. The respondent denies that McNairy is entitled to any relief on his claims.
A. Criminal Proceedings
Petitioner Robert McNairy and six co-defendants were charged in a 13-count Indictment (Crim. docket no. 8), handed down August 19, 2010, with various drug-trafficking offenses involving crack cocaine. Counsel was appointed to represent McNairy. In a 14-count Superseding Indictment (Crim. docket no. 137), handed down December 14, 2010, against McNairy and four co-defendants, McNairy was charged with the following drug-trafficking offenses: conspiracy, with four co-defendants, to distribute 50 grams or more of a mixture or substance containing a detectable amount of cocaine containing crack cocaine, after a previous conviction of a felony drug offense, in violation of 21 U.S.C. § 846, in Count 1; distributing and aiding and abetting the distribution of an unspecified quantity of crack cocaine, after a previous conviction of a felony drug offense, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 851, and 18 U.S.C. § 2, in Count 3; and distributing and aiding and abetting the distribution of an unspecified quantity of crack cocaine within 1000 feet of a school, after a previous conviction of a felony drug offense, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), 851, and 860(a), and 18 U.S.C. § 2, in Count 4. A jury trial was set on the charges in the Superseding Indictment against all defendants for February 7, 2011. Prior to trial, in an Order (Crim. docket no. 202), filed January 28, 2011, I granted the prosecution's Motion To Amend Superseding Indictment, inter alia, to change the quantity of drugs alleged in the "conspiracy" charge to read "28 grams or more, " and to change the relevant code section. By the time of trial, three co-defendants had entered guilty pleas to the charges against them, and only McNairy and one other defendant proceeded to trial.
On January 24, 2011, McNairy's trial counsel filed a Motion In Limine (Crim. docket no. 180), asserting that, because McNairy would not testify at trial, his prior criminal history should be excluded pursuant to Rules 609(a)(1) and (b) and 403 of the Federal Rules of Evidence. Among the prior convictions that counsel sought to exclude was a 1995 conviction for possession of less than 25 grams of cocaine, a felony under Michigan law. The record of McNairy's criminal history attached to the Motion In Limine as Exhibit A (Crim. docket no. 180-1) identified this offense, from a 2002 presentence report prepared by the Western District of Michigan, as arising from officers' observation of McNairy on a street corner and his admission, when asked if he was in possession of drugs, that he had three pieces of crack cocaine in his jacket pocket. Counsel argued that evidence of this conviction should be excluded because of its "staleness." In a belated Response (Crim. docket no. 238), the prosecution argued only for the admissibility of the 1995 conviction, on the ground that it was admissible under Rule 404(b) and circuit precedent as relevant to show a defendant's knowledge and intent; the prior conviction was similar in kind to the charged offenses and not overly remote in time; the prosecution had sufficient evidence of the prior offense in the form of a certified record; and the probative value of the conviction outweighed its potential for prejudice. As to the last issue, the prosecution argued that any potential prejudice could be mitigated by a limiting instruction on the proper purposes for which the evidence of the prior conviction could be used. The prosecution also proposed to offer the evidence of the prior conviction in the form of a proffered stipulation.
In an Order (Crim. docket no. 242), filed February 4, 2011, I granted McNairy's Motion In Limine as to exclusion of all but the 1995 conviction. I pointed out that Rule 609 was irrelevant, where the defendant represented that he would not testify at trial, but that his reliance on Rule 403 stood on better ground, because the balancing of probative value against prejudice under Rule 404(b) and Rule 403 was the same. I also recognized that the Eighth Circuit Court of Appeals had held that evidence of prior possession of drugs, even in an amount consistent only with personal use, is admissible to show such things as knowledge and intent of a defendant charged with a crime in which intent to distribute drugs is an element. See Order at 3 (citing United States v. Logan, 121 F.3d 1172, 1178 (8th Cir. 1997), and subsequent decisions reiterating that conclusion). As to prejudice, I found that the prior offense was sufficiently similar in kind to the charged offenses, because they all involved crack cocaine, despite my stated reluctance to find this factor satisfied when the prior offense involved different conduct. I also concluded that the apparent "remoteness in time" of the prior offense was not beyond the range upheld by the Eighth Circuit Court of Appeals, but that the "remoteness" of the prior conviction was better addressed in the balancing of probative value against prejudice. I concluded that the proffered stipulation would satisfy the "sufficiency of proof" factor. Ultimately, "[a]lthough it [wa]s with some reluctance, " I concluded that the balance of probative value against prejudice did not require exclusion of the 1995 crack cocaine conviction, where it involved the same controlled substance, McNairy had not identified any specific prejudice, and any prejudice could be mitigated by a limiting instruction. Id. at 5. On January 31, 2011, the prosecution filed an Amended Information (Crim. docket no. 213) notifying McNairy of its intent to seek enhanced penalties pursuant to 21 U.S.C. § 851, based on McNairy's 1995 conviction.
At the beginning of trial on February 7, 2011, one of the instructions that I read to the jurors before any evidence was presented was, in fact, an instruction on "evidence of a defendant's prior convictions, " based on Eighth Circuit Criminal Model Jury Instruction 2.08 (2009). See Jury Instructions (Crim. docket no. 250), Instruction No. 9. McNairy and his trial counsel both signed the Stipulation Regarding Defendant's Prior Felony Drug Conviction (Stipulation) proffered by the prosecution. See Witness and Exhibit List, Prosecution's Exhibit 7 (Crim. docket no. 256-15). The Stipulation was read to the jurors and entered as an exhibit prior to the testimony of a law enforcement officer involved in the investigation of the charges against McNairy and his co-defendants, who also testified as an expert witness concerning various aspects of drug-trafficking.
The only other reference to McNairy's prior conviction in the trial record appears to be the following from McNairy's trial counsel's closing argument:
The final instruction that we'd like you to consider is instruction number 9, evidence of a defendant's prior convictions. Right at the end of the government's case in chief [the prosecutor] read into evidence-I believe it's Government Exhibit 7 if my memory's correct that pertains to my client, and it pertains to his prior conviction for a felony drug possession, a felony drug possession in the state of Michigan.
Now then, as you may remember and as you'll be given copies of during your jury deliberations, the Court gave you very specific instructions on how you can use a prior conviction. And you'll see that in instruction number 9, evidence of a defendant's prior convictions.
But if you get to that point, if you get to that point, what's interesting is that it's a felony drug conviction for possession of less than 25 grams of cocaine, and that should impact your decision on Count 1, the conspiracy, if you have to utilize this instruction and this piece of evidence because the government's claiming this conspiracy, this criminal agreement of distribution, distribution of more than 28 grams.
Transcript Of Closing Arguments (Crim. docket no. 521), 29:7-25.
On February 10, 2011, the jury found McNairy guilty of the "conspiracy" offense and found him responsible for 28 grams or more of crack cocaine, and also found him guilty of both personally committing and aiding and abetting the two separate "distribution" offenses. As to the second "distribution" offense, the jurors also found that the distribution of the crack cocaine occurred within 1, 000 feet of a school. Verdict Form (Crim. docket no. 254). At McNairy's sentencing hearing on June 20, 2011, I granted McNairy's motion for downward variance and sentenced him to the mandatory minimum for the "conspiracy" offense of 120 months of incarceration on Counts 1, 3, and 4, to run concurrently. Hearing Minutes (Crim. docket no. 403); Judgment (Crim. docket no. 413).
McNairy, through counsel, filed a Notice Of Appeal (Crim. docket no. 421) challenging his conviction. McNairy filed a pro se request for new counsel on appeal (Crim. docket no. 427), but in an Order (Crim. docket no. 430), filed July 12, 2011, this court denied that request. However, it appears that McNairy ultimately was not represented by the same counsel on appeal. See Opinion On Appeal, Correspondence To Counsel (Crim. docket no. 475-1). McNairy's appeal was consolidated with the appeal of the other co-defendant who went to trial. On appeal, McNairy and his co-defendant argued that there was insufficient evidence to convict them, but the Eighth Circuit Court of Appeals concluded that there was sufficient evidence that they "participated in specific cocaine transactions and were knowingly involved in a conspiracy to sell at least 28 grams of cocaine." The court explained that such evidence included "(1) testimony from cooperating witnesses who sold cocaine to and bought cocaine from both appellants; (2) testimony from undercover officers who observed both appellants participate in controlled buys of cocaine; and (3) video and audio evidence documenting the controlled buys and the phone calls initiating them." Opinion (Crim. docket no. 475), 3. McNairy did not seek rehearing or file a petition for a writ of certiorari. Thus, a Mandate (Crim. docket no. 481) in accordance with the Opinion of the Eighth Circuit Court of Appeals issued on March 28, 2012.
B. Section 2255 Proceedings
On December 17, 2012, McNairy filed his pro se Motion Under 28 U.S.C. § 2255 To Vacate, Set Aide, Or Correct Sentence By A Person In Federal Custody (Civ. docket no. 1), asserting seven claims of ineffective assistance of his trial counsel, a claim of a violation of due process in that he was not able to aid in his defense, and a claim that the charges were not proved. In an Initial Review Order (Civ. docket no. 2), filed December 18, 2012, I required the respondent to file an answer, and the respondent filed its Answer (Civ. docket no. 3) on December 18, 2012. McNairy filed a pro se request for appointment of counsel (Civ. docket no. 5) on January 17, 2013, and, by Order (Civ. docket no. 6), filed on January 17, 2013, I granted that request and set a briefing schedule. After appointed counsel discovered a conflict from prior representation, by Order (Civ. docket no. 9), filed February 6, 2013, I directed appointment of another attorney for McNairy and reset the briefing schedule.
By Order (Civ. docket no. 22), filed August 26, 2013, I granted McNairy leave to file an amended § 2255 motion prepared by counsel and reset the briefing schedule yet again. In the Amended And Recast Motion Under § 2255 To Vacate, Set Aide, Or Correct Sentence (Amended § 2255 Motion) (Civ. docket no. 23), filed by counsel, McNairy seeks relief on eleven claims. Claims 1 and 2 are new claims of ineffective assistance of trial counsel. Claim 1 is based on trial counsel's conduct related to the admission and consideration of McNairy's prior drug felony. Claim 2 is based on trial counsel's failure to object to, challenge, and limit the testimony of the prosecution's experts. Claims 3 through 9 are claims of ineffective assistance of counsel that were alleged in McNairy's original pro se § 2255 Motion, but counsel admits that the current record does not support any of these claims and that additional discovery would be needed to substantiate them. Claim 10 reiterates McNairy's pro se claim of violation of his due process rights in that he was unable to aid in his defense, but admits that this claim was not raised on direct appeal. Claim 11 reiterates McNairy's pro se claim that the charges were not proved beyond a reasonable doubt, but admits that this issue was raised and rejected on appeal.
On October 2, 2013, McNairy, through counsel, filed his Substituted Memorandum In Support Of Amended And Recast Motion Under § 2255 To Vacate, Set Aside, Or Correct Sentence (Petitioner's Brief) (Civ. docket no. 24). In his Brief, McNairy's counsel argues only two of his ineffective assistance of counsel claims on the merits, concedes that there is no factual basis for the other five ineffective assistance of counsel claims, and concedes that his due process and sufficiency of proof claims are not supported by the law or the record. On December 3, 2013, the respondent filed its Response (Civ. docket no. 27), to which the respondent attached an affidavit of McNairy's trial counsel. On December 23, 2013, McNairy, through counsel, filed his Reply (Civ. docket no. 28). Regrettably, there the matter has languished until now, owing to the press of other work and clerical oversight.
II. LEGAL ANALYSIS
I will consider each of McNairy's claims or groups of claims separately, as the claims and record warrant. However, I will first summarize the standards applicable to a claim for § 2255 relief.
A. Standards For § 2255 Relief
1. Grounds for relief
"Section 2255 [of Title 28 of the United States Code] was intended to afford federal prisoners a remedy identical in scope to federal habeas corpus.'" Sun Bear v. United States, 644 F.3d 700, 704 (8th Cir. 2011) (en banc) (quoting Davis v. United States, 417 U.S. 333, 343 (1974)). Nevertheless, "[l]ike habeas corpus, this remedy does not encompass all claimed errors in conviction and sentencing.'" Id. (quoting United States v. Addonizio, 442 U.S. 178, 185 (1979). Specifically, § 2255 provides as follows:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released 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, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
28 U.S.C. § 2255(a). Thus, § 2255 "provides a remedy for jurisdictional and constitutional errors, " but "[b]eyond that, the permissible scope of a § 2255 collateral attack on a final conviction or sentence is severely limited; an error of law does not provide a basis for collateral attack unless the claimed error constituted "a fundamental defect which inherently results in a complete miscarriage of justice."'" Sun Bear, 688 F.3d at 704 (quoting Addonizio, 442 U.S. at 185, in turn quoting Hill v. United States, 368 U.S. 424, 428 (1962)); accord Walking Eagle v. United States, 742 F.3d 1079, 1081-82 (8th Cir. 2014) ("Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that ...