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Luster v. United States Of America

United States District Court, N.D. Iowa, Eastern Division

September 29, 2017

BJORN CHRISTIAN LUSTER, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          LINDA R. READE JUDGE

         TABLE OF CONTENTS

         I. INTRODUCTION ......................................... 1

         II. RELEVANT BACKGROUND AND PROCEDURAL HISTORY ...........2

         III. LEGAL STANDARDS .....................................4

         A. Standards Applicable to Motion Pursuant to 28 U.S.C. § 2255 ....... 4

         B. Standards Applicable to Constitutional Right to Counsel ........... 8

         IV. ANALYSIS ............................................ 10

         A. Request for Evidentiary Hearing ..........................10

         B. Movant's Arguments ..................................11

         C. Motion to Amend ....................................17

         D. Miscellaneous Motions ................................19

         V. CONCLUSION .......................................... 20

         I. INTRODUCTION

         This matter comes before the court on Bjorn Christian Luster's motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 (“motion”), which he filed on July 28, 2015 (civil docket no. 1). Movant filed an amended motion on December 2, 2015 (civil docket no. 3), a supplemental motion on December 11, 2015 (civil docket no. 4) and a second supplemental motion on February 5, 2016 (civil docket no. 5).[1] On April 4, 2016, the court directed the government to brief the claims that movant asserted in the motion, amended motion and supplemental motions (civil docket no. 6). The court also directed counsel to file with the court an affidavit responding only to movant's specific allegations of ineffective assistance of counsel (id.). Trial counsel timely complied with the court's order by filing his affidavit on March 8, 2017 (civil docket no. 8). Movant's state court counsel also filed an affidavit (civil docket no. 16) per the court's order (civil docket no. 13). On May 18, 2016, movant filed a response to trial counsel's affidavit (civil docket no. 10) and a motion to amend (civil docket no. 9) to add a claim based on Johnson v. United States, 135 S.Ct. 2551 (2015). Movant filed a response to state court counsel's affidavit on July 18, 2016 (civil docket no. 18). The government, after obtaining an extension of time to file a responsive brief (civil docket no. 13), filed its responsive brief on July 21, 2016 (civil docket no. 22-1). Movant filed his reply on August 2, 2016 (civil docket no. 24). Also before the court are movant's motion to introduce evidence (civil docket no. 26), motion for evidentiary hearing (civil docket no. 34) and “motion for summary judgment; motion for judge's recusal” (civil docket no. 35).

         II. RELEVANT BACKGROUND AND PROCEDURAL HISTORY

         On August 21, 2013, a grand jury charged movant with one count of possession of a firearm, namely a destructive device, not registered to movant in the National Firearms Registration and Transfer Record, a violation of 26 U.S.C. §§ 5845(a), 5861(d) and 5871 (criminal docket no. 2). A Federal Public Defender was appointed to represent movant (criminal docket no. 8). At arraignment, movant entered his plea of not guilty (criminal docket no. 9). Later, on September 19, 2013, movant changed his plea from not guilty to guilty of possession of an unregistered firearm (criminal docket nos. 24 & 25).[2] The court accepted his change of plea. See United States v. Luster, No. CR13-2021, 2013 WL 12073226, at *1-3 (N.D. Iowa Sept. 19, 2013) (criminal docket no. 25), report and recommendation adopted, No. 13-CR-2021-LRR, 2013 WL 12073227 (N.D. Iowa Oct. 4, 2013) (criminal docket no. 26).

         A presentence report (“PSR”) was finalized on December 9, 2013 (criminal docket no. 30). A sentencing hearing was held on January 13, 2014 (criminal docket no. 33). The court sentenced movant to 87 months' imprisonment (criminal docket nos. 33 & 34). In addition, the court imposed a total of three years of supervised release and a total of $100 in special assessments (id.).

         Movant appealed his conviction and sentence (criminal docket no. 36). Appellate counsel moved to withdraw and filed a brief under Anders v. California, 386 U.S. 738 (1967), arguing that the court procedurally erred by basing its selection of movant's within-Guidelines-range sentence on an unproven fact and that the court imposed a substantively unreasonable sentence. See United States v. Luster, 577 F. App'x 625, 626 (8th Cir. 2014). The Eighth Circuit Court of Appeals concluded that the court did not procedurally err or impose a substantively unreasonable sentence. See Id. In addition, after independently reviewing the record in accordance with Penson v. Ohio, 488 U.S. 75 (1988), the Eighth Circuit Court of Appeals found no nonfrivolous issues, and, thus, granted appellate counsel's motion to withdraw and affirmed the judgment. See Luster, 577 F. App'x at 626.

         In the motion, amended motion and supplemental motions, the court understands movant to assert ineffective assistance of counsel claims (civil docket nos. 1, 3, 4 & 5). He claims trial counsel was ineffective because she: (1) failed to file a motion to suppress evidence; (2) failed to raise issues of mens rea; (3) failed to investigate the offense; (4) advised movant to plead guilty to an uncharged offense; (5) failed to seek suppression of, or dismissal of the case based on, movant's statements made to federal law enforcement officers during a proffer interview; (6) failed to object to the portions of the PSR describing the facts surrounding his prior trespass and harassment convictions; and (7) failed to challenge the calculation of his criminal history score under the sentencing Guidelines. Movant asserts that state court counsel was ineffective for advising movant to participate in a proffer interview with federal authorities. Movant claims appellate counsel was ineffective for failing to raise on direct appeal that movant was convicted of an uncharged offense, that portions of the PSR describing the facts surrounding his prior trespass and harassment convictions were false and that movant's criminal history calculation was incorrect. In his motion to amend filed on May 18, 2016 (civil docket no. 9), movant seeks to add a Johnson claim, arguing that he is entitled to a lower Guidelines sentence because he did not have a prior conviction for a “crime of violence.”

         III. LEGAL STANDARDS

         A. Standards Applicable to Motion Pursuant to 28 ...


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