Opinion
EP-04-CA-053-FM, EP-01-CR-368-FM.
May 31, 2005
MEMORANDUM OPINION ORDER
Before the Court is Petitioner Olubanji Milton Macauley's ("Macauley") pro se Motion to Vacate pursuant to 28 U.S.C. § 2255, filed on February 9, 2004. Respondent (hereinafter, "the Government") filed a Response on April 5, 2004. Macauley's Reply, filed through counsel, followed on April 16, 2004. After carefully considering the pleadings, the record of the proceedings in cause no. EP-01-CR-368-FM, and the testimony elicited at an evidentiary hearing held on April 22, 2005, the Court concludes that Macauley's first and fourth claims are procedurally defaulted and that he has not demonstrated cause and prejudice sufficient to overcome the procedural hurdle to a merits review. As to his two remaining claims, both of which allege ineffective assistance of counsel, the Court concludes that Macauley has failed to carry his burden under Strickland and therefore is not entitled to relief. The Court will accordingly dismiss Macauley's Motion to Vacate with prejudice. While the Court will grant Macauley a Certificate of Appealability on his claim that counsel interfered with his right to testify, it will deny him a Certificate of Appealability on his remaining claims.
As noted above, Macauley filed a Motion to Vacate on his own behalf. On April 16, 2004, attorneys Carlos Vellanoweth ("Vellanoweth") and John Wolfgang Gehart ("Gehart"), who state that they represented Macauley in related immigration proceedings, filed a Reply to the Government's Response and moved the Court to allow them to appear pro hac vice on Macauley's behalf. The Court granted their Motion to Appear Pro Hac Vice on May 4, 2004.
I. BACKGROUND PROCEDURAL HISTORY A. Criminal cause no. EP-99-CR-1411-EP
On September 22, 1999, the Grand Jury sitting in El Paso, Texas returned a two-count Indictment against Macauley. Therein, the Government charged Macauley with two counts of Perjury, in violation of 18 U.S.C. § 1621, alleging that he had made certain false assertions of United States citizenship while under oath. The Government was, at that point, apparently unable to obtain sufficient evidence to prove its case against Macauley and subsequently dismissed the Indictment on September 12, 2000.
B. Criminal cause no. EP-01-CA-368-FM
The Government later secured certain documents related to Macauley's attempt to obtain political asylum in Germany, which included statements by Macauley that he was a Nigerian citizen by birth, and renewed its efforts to prosecute him. Thereafter, on February 28, 2001, the Grand Jury returned an eight-count Indictment against Macauley, charging him with Perjury, in violation of 8 U.S.C. § 1357(b) (Counts One, Two, and Three), and with making a False Claim of United States Citizenship, in violation of 18 U.S.C. § 911 (Counts Four, Five, Six, Seven, and Eight). The Clerk of the Court assigned Macauley's case to then-United States District Judge Edward C. Prado, who now sits on the Fifth Circuit Court of Appeals.
Macauley, who asserts that he was orphaned shortly after his birth in Washington, D.C., and subsequently taken by his caretakers to England, chose to stand trial. His first trial commenced on July 24, 2001 and ended in a mistrial on July 26, 2001, when the jury announced that it could not reach a verdict. His second trial commenced on October 29, 2001 and concluded on October 31, 2001, with the jury finding him guilty on all counts. Judge Prado entered Judgement on March 11, 2002, sentencing Macauley to a 42-month term of imprisonment as to Counts One, Two, and Three; a 36-month term of imprisonment as to Counts Four, Five, Six, and Seven; and a 28-month term of imprisonment as to Count Eight, to run concurrently. Judge Prado additionally imposed a 3-year period of non-reporting supervised release for each count and ordered Macauley to pay a $800 special assessment.
Macauley appealed, arguing that Judge Prado had abused his discretion when he admitted the German documents into evidence because the documents constituted inadmissible hearsay. The Fifth Circuit Court of Appeals rejected Macauley's argument, concluding that the documents were admissible under Federal Rule of Evidence 803(8)(A), the hearsay exception provided for authenticated official or public documents. Citing Federal Rule of Evidence 801(d)(2), the Court of Appeals further determined that Macauley's statements of Nigerian citizenship within these documents were admissions and therefore not hearsay. The Supreme Court of the United denied Macauley's petition for a writ of certiorari on March 31, 2003. C. Macauley's Motion to Vacate pursuant to 28 U.S.C. § 2255
See United States v. Macauley, No. 02-50252 (5th Cir. Dec. 16, 2002), cert. denied, No. 02-9173 (Mar. 31, 2003).
See id.
See id.
Macauley raises four claims in his Motion to Vacate. First, he alleges that the Government failed to disclose evidence favorable to him, in violation of Brady v. Maryland, 373 U.S. 83 (1963) ("Claim One"). Specifically, Macauley argues that the Government failed to turn over Immigration Judge Penny M. Smith's "Mandatory Detention Memorandum and Order," dated October 2, 2002, releasing Macauley from the custody of the Immigration and Naturalization Service ("INS") on his own recognizance. Second, he contends that his counsel at trial, Assistant Federal Public Defender William R. Maynard ("Maynard"), rendered ineffective assistance because he failed to present Judge Smith's order as evidence at trial ("Claim Two"). Third, Macauley asserts that Maynard was ineffective because he refused to allow Macauley to testify during the trial ("Claim Three"). Fourth, Macauley avers that his conviction violated the Double Jeopardy Clause of the United States Constitution ("Claim Four"). II. THE EVIDENTIARY HEARING
Although Macauley only expressly sets forth three claims for relief in his Motion to Vacate, the Court finds that "Ground Three" actually represents two separate ineffective assistance of counsel claims.
See supra note 5. As stated above, Macauley's attorneys filed a Reply to the Government's Response on April 16, 2004. Therein, they attempt to raise a new claim ( i.e., "[b]y charging [Macauley] with perjury for claiming United States citizenship in immigration proceedings, the Government violated [Macauley's] due process rights by frustrating the administrative process and collaterally attacking [Macauley's] immigration defense in criminal court."). Pet.'s Reply, docket no. 70, at p. 4.
The Court first notes that although Macauley could have raised this claim on direct appeal, he did not. The Court therefore finds that Macauley has waived the claim and further, has not shown cause and prejudice to overcome the procedural bar to review. See United States v. Shaid, 937 F.2d 228, 231 (5th Cir. 1991) (en banc); see also United States v. Guerra, 94 F.3d 989, 993 (5th Cir. 1996).
Moreover, even if this Court were to find that Macauley's claim was not procedurally defaulted, it would nevertheless find it to be untimely under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") because Macauley did not attempt to raise it until after the one year statute of limitations had expired. See 28 U.S.C. § 2255 ¶ 6(1). Macauley's conviction became final on March 31, 2003, the date on which the Supreme Court of the United States denied certiorari review. Macauley therefore had until March 31, 2004 to file any § 2255 claims he wished to raise. Macauley, however, did not file the claim at issue until April 16, 2004, sixteen days past the deadline. Because the statute of limitations has expired, an amendment to Macauley's original pleading would be permissible only if the timely first Motion to Vacate subsumed the later claim pursuant to the "relation back" doctrine. See Fed.R.Civ.P. 15(c). The Court finds that Macauley's new claim does not arise out of the same set of facts as his original claims, but rather from separate conduct and occurrences in both time and type. See United States v. Pittman, 209 F.3d 314, 318 (4th Cir. 2000); United States v. Espinoza-Saenz, 235 F.3d 501, 505 (10th Cir. 2000); Davenport v. United States, 217 F.3d 1341, 1345-46 (11th Cir. 2000); United States v. Craycraft, 167 F.3d 451, 457 (8th Cir. 1999).
The purpose of the hearing was to permit the Court to evaluate Macauley's claim that Maynard rendered ineffective assistance by interfering with his client's right to testify in his own defense. In an Order dated March 9, 2005, the Court informed the parties that it would take evidence on the following issues: (1) Maynard's trial strategy; (2) whether Macauley wished to testify and expressed that desire to Maynard; (3) whether Maynard discussed the advantages and disadvantages of testifying with Macauley; (4) what recommendation, if any, Maynard made in this regard; (5) whether, if he had earlier expressed a desire to testify, Macauley persisted in that desire after discussing his options with Maynard; and (6) whether, but for Maynard's alleged refusal to let him testify, Macauley would have chosen to take the stand. John Gehart ("Gehart"), Macauley's immigration attorney, represented Macauley at the hearing. Assistant United States Attorney Donna Miller ("Miller") appeared on behalf of the Government.
A. Macauley's testimony
On direct examination, Macauley testified that Maynard's strategy at both trials was to challenge the German documents on the ground that they contained inadmissible hearsay. If he were unsuccessful, Maynard thought there was a strong chance that Macauley would be convicted, but if so, planned to challenge Judge Prado's ruling on appeal.
Macauley stated that he repeatedly told Maynard during both trials that he thought it was important for him to testify, just as he had in his prior immigration proceedings. Macauley felt that the immigration judge had understood his account of events ( i.e., that his statements to German officials about being a Nigerian citizen were lies and "just a hustle" geared to exploit the country's social services programs). According to Macauley, the immigration judge believed him when he said that he had been lying in order to obtain benefits and she therefore eventually released him from INS custody. Macauley maintained that if he could explain his background and emphasize the "consistency in [his] lying pattern" to the jury, they would also believe him.
Macauley asserted that, throughout both trials, Maynard opposed the idea of Macauley testifying. Maynard predicted that the prosecutor would impeach Macauley with his prior convictions, all of which involved untruthfulness, and thus destroy his credibility. According to Macauley, when they discussed the prospect of his testifying, Maynard set forth only the risks but did not discuss any potential advantages that might result if he took the stand. Macauley stated that Maynard did not prepare him to testify, nor did Maynard explain that if Macauley were convicted of the charges, he would then be estopped under Fifth Circuit case law from contesting alienage and testifying at any subsequent immigration proceedings. Macauley conceded, however, that Maynard did tell him that if he were convicted of making false claims of citizenship and perjury, then it would be easy for the Government to obtain a deportation order against him and his position would therefore be more difficult.
But for Maynard's refusal to let him testify, Macauley asserted, he would have taken the stand. Macauley stated that he did not believe the prosecution's impeachment of him would be especially detrimental. He said that he would not have denied his past untruthfulness and that lying was what he had always done to survive — if he were given a chance to explain, Macauley maintained that the jurors would understand his past behavior and further, believe him when he said that he genuinely felt himself to be an American.
On cross-examination, Miller elicited the following. Macauley understood that if he testified at his trial for perjury and making false claims of citizenship, the prosecutor would be able to explore his criminal history. Macauley conceded that his past offenses all involved his lying, in one form or another, but continued to maintain that he did not think this information would hurt him, if he were able to counterbalance it with his own explanation of his past.
When it was clear from events during the first trial that Judge Prado would likely admit the German documents into evidence at the second trial, Macauley said that he believed it was even more important that he attempt to convince the jury that he had been lying to German officials about being a Nigerian citizen. He stated that he therefore enlisted the aid of his immigration attorneys, asking them to convince Maynard that Macauley should testify.
See supra note 1.
Macauley asserted that Maynard only mentioned his prior convictions as the reason it would not be advisable for him to testify. Macauley denied that Maynard ever discussed with him the fact that if he took the stand, additional items in the German file would become permissible areas of cross-examination. Macauley conceded that Maynard talked with him about there being no Nigerian birth certificate to lend credence to his statement to German officials that he was a Nigerian citizen. Maynard also discussed the fact that there was no proof to support his claim of being a United States citizen. When Miller asked whether Maynard had explained that much of the information Macauley hoped to convey to the jury would have been considered irrelevant and therefore inadmissible, Macauley stated that Maynard had not discussed this with him.
Before re-direct examination, the Court reviewed Macauley's testimony to that point with him. Macauley agreed with the Court that: (1) at the time of his second trial, he had no evidence whatsoever of his United States citizenship to offer to the jury, other than his own say-so; (2) he therefore intended to tell the jury that, even though he had been convicted three times of lying, it was simply the way he made a living and in his heart, when he looked in the mirror, he saw an American citizen; (3) he actually told Maynard that he wanted to testify, but Maynard refused to call him to the witness stand to testify in his own defense; (4) and Maynard refused to prepare him for the vigorous cross-examination that he would likely face if he did testify. Because Maynard never prepared him to testify, Macauley stated, he knew that "his hands were tied." Macauley told the Court that, at his first trial, he did not really agree with Maynard that it was not a good idea to testify, because his testimony was all he had to support his claim.
On re-direct, Gehart elicited the following. Macauley had no proof of his origins, but neither did the Government, until it obtained the German file. Macauley believed that the German file was critical to the Government's case because it had no direct proof that he was born in Nigeria, just as he lacked direct proof that he was born in the United States or anywhere else, for that matter. Macauley believed that if Maynard had prepared him properly for an aggressive cross-examination, he (Macauley) would have been able to convince the jury that he had a good faith belief that he was born in the United States. The immigration judge had believed him, Macauley said, and in his opinion, she was a tougher sell than a jury would be due to her professional experience with immigration claims and evaluating witness credibility.
B. Maynard's testimony
Maynard, who was present in the court room while Macauley testified, stated on direct examination that he represented Macauley in his two criminal trials. The first trial, which was presided over by visiting United States District Judge Murtha, ended with a hung jury. Maynard recalled hearing that the jury had divided 11 to 1, but did not know if that information was accurate.
Maynard recalled that his trial strategy was to keep as much of the German file as possible out of evidence, limiting it to documents that would fall within an exception to the hearsay rule, such as an admission by a party-opponent. In Maynard's view, only two documents in the file arguably contained Macauley's statements and thus might fall within a hearsay exception. Even if the two German documents were admitted, Maynard felt that there was no proof of his client's guilt other than an out-of-court statement by Macauley that he was a Nigerian, which was no more valuable than Macauley's later out-of-court statement that he was an American. Maynard related that there was simply no firm documentary proof from either Nigeria or the United States to support either claim of citizenship. If the entire file came in, Maynard planned to challenge its admission on appeal.
Maynard testified that he discussed the lack of corroboration at length with his client, as well as the implications of Macauley's three prior felony convictions for fraud, given the nature of the charges then pending against him. Maynard recalled that they engaged in ongoing discussions on the topic from the first trial through to the second. Although Maynard was unable to remember the specifics, he stated that they reviewed both the advantages and disadvantages of Macauley testifying. Maynard saw the following advantages. First, the jury would expect Macauley to proclaim his citizenship in open court. After all, Macauley had already made such a claim in immigration court and the transcripts of those proceedings were before the jury. Maynard believed that the jury would thus expect Macauley to unabashedly assert that he was a United States citizen. Maynard was fairly certain that he discussed this consideration with Macauley.
As to the disadvantages he raised with Macauley, Maynard testified that he noted the fact that Macauley's three prior convictions would come in on cross-examination by the experienced and aggressive prosecutor assigned to the case. Maynard's sense, after reading transcripts of the immigration proceedings, was that the questioning by the immigration judge and the attorney representing U.S. Immigration had been rather perfunctory and nothing like he would face in his criminal trial. Maynard told Macauley that he would have to expect questions concerning the lack of any evidence to support his claim of United States citizenship — no childhood friends, neighbors, classmates, co-workers, school records, health records, immediate family members, distant family members, adoptive family members, or even encounters with the federal government or law enforcement on which they could rely. Another disadvantage that Maynard said he explained to Macauley was that the prosecutor would have the opportunity to go into all the German documents, probably more for rhetorical purposes than for eliciting facts. Maynard testified that in his experience, when a defendant takes the stand, juries unfortunately focus on the weaknesses in the defendant's case rather than the weaknesses in the Government's case.
With these considerations in mind, Maynard recommended that Macauley should not testify. Maynard observed that Macauley's statements to the immigration judge about his background were already part of the transcripts and evidence in his criminal case. In Maynard's opinion, those transcripts provided a way to get a shortened version of Macauley's story in front of the jury without exposing him to a potentially very damaging cross-examination. According to Maynard, Macauley understood the pros and cons of testifying when they reviewed them together.
According to Maynard, Macauley remained ambivalent about testifying throughout his first and second trials. Macauley would talk about wanting to testify and they would explore the topic. At other times, Macauley would indicate that he probably should not testify. Maynard recalled that he and Macauley went into both trials not having completely made up their minds whether or not Macauley should testify. Maynard further remembered that, at the close of the Government's case in the first trial, they discussed the prospect of Macauley testifying and that they did so again at the close of the Government's case in the second trial. Maynard stated that he had a very clear recollection that, on one of those occasions, Macauley answered unhesitatingly that he would not testify. Maynard said that he remembered the incident so clearly because he had expected Macauley to hesitate quite a bit before deciding. Maynard volunteered that he could not remember for certain whether this incident occurred in the first trial or the second. However, Maynard asserted, in both the first and second trials, Macauley's answers were ultimately in the negative — he did not want to testify. Maynard testified that he did not make the decision for Macauley, but left it completely up to his client.
When Miller asked about the degree of preparation that would have been required to ready Macauley to testify, if he had expressed a desire to do so, Maynard said that some degree of preparation would have been necessary, but that this had largely been taken care of before the first trial. Maynard stated that, in advance of the first trial, he had prepared Macauley at the county jail by reviewing his client's version of events, for example, Macauley's memories of his youth, the events in Germany, why he acted as he did in Germany, and why he believed himself to be an American. No matter how well he might have prepared Macauley, Maynard did not expect his client to feel comfortable about testifying. Macauley's proposed testimony presented too many rhetorical opportunities for the prosecutor to emphasize Macauley's past exploitation of the German welfare and immigration system.
On cross-examination, Gehart questioned how Maynard could remember that his discussions with Macauley were "at length" when he could not remember the details of the particular discussions. Maynard answered that he recalled having many lengthy consultations with Macauley over a period of several months, covering many issues in the case.
Gehart probed Maynard's previous testimony that the jury would expect Macauley to testify if he were innocent. Maynard replied that it was not an easy decision whether to put Macauley on the stand. While the jurors would expect Macauley to testify and assert his citizenship, they would also expect some corroboration. That corroborating information, however, was singularly lacking. An alleged distant relative, said to reside in Maryland, might have been able to testify in support of Macauley's claim of United States citizenship, but could not be located. Another individual identified as a distant United States relative denied ever having met Macauley. Though an English school record listed the name of a distant relative, this individual resided in the United Kingdom and could not testify to Macauley's alleged birth in the United States.
Acknowledging that the lack of corroborating evidence was consistent with Macauley's account of having been orphaned and then taken out of the country, Maynard agreed with Gehart that it would be relevant, but only if the jurors believed it. And in Maynard's view, even if the jurors believed that Macauley had been orphaned, it would not necessarily help his case. The jurors might accept the fact that Macauley had at one point in his life been an orphan. Maynard observed that the safety net in the United States, as well as in the United Kingdom and Europe, usually catches orphans. Such children receive foster care or a social security number or some other type of documentation that follows them through life, even if orphaned at a very early age. Maynard concluded that the lack of corroboration was consistent with Macauley's claim that he had been orphaned, but that it was equally consistent with the Government's theory that Macauley had perjured himself and made false claims of citizenship. Macauley's claim of being an orphan, without any documentation to support it, would therefore raise credibility issues. Maynard feared that if Macauley took the stand, were impeached, and then failed to provide a fairly convincing and credible explanation, his client would be worse off than if he had not testified at all.
Maynard averred that he harbors no professional bias against defendants testifying. Unless there is a good reason that they should not do so, Maynard stated, most of his clients do testify at their trials. Maynard explained that he tends to put his clients on the stand when he is in doubt about whether the client should testify, because juries want to hear what a defendant has to say. Moreover, Maynard said, he did not believe that juries consistently follow the instruction not to hold a defendant's silence against him. In Macauley's particular case, there were conflicting concerns. Maynard feared that if Macauley did not testify, it would hurt him, but if he did testify, it would also hurt him. The question, Maynard said, was determining which choice was likely to hurt his client more.
Gehart then asked Maynard about a letter that he ( i.e., Gehart) sent to Maynard between the first and second trials, concerning Macauley's desire to testify. Gehart asked why the letter amplifying Macauley's concerns about sitting silently before the jury would not be evidence that Macauley wanted to testify. Maynard responded that, during the course of his representation, he had to rely on what Macauley told him, rather than what Macauley may have told Gehart.
See Pet.'s Reply, docket no. 70, Attachment 4 (letter from Gehart to Maynard, dated Sept. 17, 2001).
Maynard stated that he received Gehart's letter approximately a month and a half before the second trial. He was not offended that Macauley had asked Gehart and Vellanoweth for advice; he merely considered it as Macauley getting a second opinion. Maynard said that he and Macauley thereafter had consultations on the issue leading up to the second trial. They discussed whether Macauley wanted to testify or not and talked about direct examination and cross examination. He and Macauley ultimately stayed with the same opinion at the close of the Government's evidence in the second case as they had at the first trial (that is, that Macauley should not testify). In hindsight, Maynard said that he wished he had decided differently and put Macauley on the stand.
III. LEGAL STANDARD
After a defendant has been convicted and exhausted or waived any right to appeal, a court is normally "entitled to presume that [he] stands fairly and finally convicted." Accordingly, "relief under 28 U.S.C. §§ 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice." A criminal defendant seeking relief from his conviction or sentence in a Motion to Vacate pursuant to 28 U.S.C. § 2255 must therefore establish one of the following: (1) his sentence was imposed in violation of the Constitution or laws of the United States; (2) the sentencing court lacked jurisdiction to impose the sentence; (3) the sentence imposed exceeded the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack.
United States v. Willis, 273 F.3d 592, 595 (5th Cir. 2001) (citing United States v. Frady, 456 U.S. 152, 164 (1982)); Shaid, 937 F.2d at 231-31.
United States v. Gaudet, 81 F.3d 585, 589 (5th Cir. 1996) (internal quotations and citations omitted).
See United States v. Seyfert, 67 F.3d 544, 546 (5th Cir. 1995) (citations omitted).
It is well settled that a collateral challenge may not take the place of a direct appeal. If a petitioner challenging his conviction and sentence pursuant to 28 U.S.C. § 2255 could have raised his constitutional or jurisdictional issues on direct appeal, he may not raise them for the first time on collateral review unless he shows cause for his procedural default and actual prejudice resulting from the error or that the constitutional violation has probably resulted in the conviction of one who is actually innocent.
See Shaid, 937 F.2d at 231 ("[A] collateral challenge may not do service for an appeal").
See id. at 232.
This cause-and-actual-prejudice standard is "significantly more rigorous than even the plain error standard applied on direct appeal." To satisfy the "cause" standard, a petitioner must "show that some objective factor external to the defense prevented him from raising on direct appeal the claim he now advances." The procedural bar does not apply, however, to claims which could not have been raised on direct appeal, such as those alleging ineffective assistance of counsel.
Id.
United States v. Guerra, 94 F.3d 989, 993 (5th Cir. 1996).
IV. MacAULEY HAS PROCEDURALLY DEFAULTED HIS FIRST AND FOURTH CLAIMS
The Court concludes that Macauley could have raised his first and fourth claims on direct appeal, but failed to do so. Macauley is therefore not entitled to a merits review of these claims unless he sufficiently demonstrates cause and prejudice for the default. For the reasons discussed below, the Court concludes that Macauley has demonstrated neither cause nor prejudice and therefore has not overcome the procedural bar to review with respect to either claim.
A. Claim One: The Government failed to disclose exculpatory evidence.
The prosecution's suppression of evidence favorable to the accused upon request violates due process when the evidence is material either to guilt or innocence, or to punishment, regardless of the prosecution's good or bad faith. To establish a Brady violation, a defendant must show that: (1) the prosecution suppressed evidence; (2) the evidence was favorable to the petitioner; (3) the evidence was material either to guilt or punishment; and (4) non-discovery of the allegedly favorable evidence was not the result of a lack of due diligence.
Banks v. Dretke, 540 U.S. 668, 691 (2004); Brady v. Maryland, 373 U.S. 83, 87 (1963).
United States v. Walters, 351 F.3d 159, 169 (5th Cir. 2003), no petition for cert. filed; see also Banks, 540 U.S. at 691 (2004) (setting forth the components of a Brady prosecutorial misconduct claim).
"Cause and prejudice" in the context of a Brady claim parallel two of the three components of the alleged Brady violation itself. Corresponding to the second Brady component (evidence suppressed by the Government), a petitioner shows "cause" when the reason for his failure to raise the claim earlier was the Government's suppression of relevant evidence. Evidence is not "suppressed" for Brady purposes if the defendant knew or should have known of the essential facts permitting him to take advantage of any exculpatory evidence. The prosecution is not required to furnish a defendant with exculpatory evidence that is fully available to the defendant or that could be obtained through reasonable diligence.
Banks, 540 U.S. at 691.
Id.
Lawrence v. Lansing, 42 F.3d 255, 257 (5th Cir. 1994); see also Walters, 351 F.3d at 169.
Blackamon v. Scott, 22 F.3d 560, 564-65 (5th Cir. 1994).
Prejudice (the third Brady component) within the meaning of the "cause and prejudice" requirement exists when the suppressed evidence is "material" for Brady purposes. "The materiality inquiry is not just a matter of determining whether, after discounting the inculpatory evidence in light of the undisclosed evidence, the remaining evidence is sufficient to support the jury's conclusions. Rather, the question is whether the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict."
Banks, 540 U.S. at 691.
Strickler v. Greene, 527 U.S. 263, 290 (1999); see Kyles v. Whitley, 514 U.S. 419, 433-4 (1995); Blackamon v. Scott, 22 F.3d at 564 ("Evidence is material only if there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.").
Here, Macauley has attached a copy of Immigration Judge Smith's "Mandatory Detention Memorandum and Order," which is dated October 2, 2000. Macauley contends that the Government, as part of discovery, did not produce Judge Smith's order. He also contends that the evidence was material to his criminal prosecution. After review, the Court rejects both arguments.
Macauley was apparently held in the custody of the Immigration and Naturalization Service ("INS"), without bond, while the charges against him in cause no. EP-99-CR-1411-EP were pending. See Pet.'s Mot. to Vacate, docket no. 66, Mandatory Detention Memo. Order, dated Oct. 2, 2000, ¶ 3 (second unnumbered page attached to Macauley's Motion to Vacate). After the Government dismissed the Indictment against Macauley in cause no. EP-99-CR-1411-EP on September 12, 2000, Macauley asked Judge Smith to reconsider the conditions of his custody. See id. Given the Government's dismissal of the Indictment against Macauley for perjury regarding his statements of United States citizenship and the INS' failure to come forward with any material information showing that Macauley was not a United States citizen, Judge Smith determined that the INS was substantially unlikely to prevail on the issue of alienage. See id. at ¶ 5. That being the case, Judge Smith ordered that Macauley be released from custody on his own recognizance. See id. at ¶ 6.
First, there is no evidence that the Government "suppressed" Judge Smith's order, within the meaning of Brady. As Macauley himself was the subject of Judge Smith's custody redetermination, her order would have been fully available to him. Macauley moreover does not allege that he never received a copy of Judge Smith's order or notice of her ruling or that his counsel sought a copy of the order and was denied. Further, Macauley attaches a copy of Judge Smith's order to his Motion to Vacate. That copy bears a fax line indicating that the order was received, presumably by Macauley or his counsel, on March 29, 2001, approximately one month after Macauley's Indictment and arrest in cause no. EP-01-CR-368-FM. Macauley's trial did not begin until July 23, 2001, nearly four months later. After due consideration, the Court concludes that Judge Smith's order was readily available to Macauley well before trial in cause no. EP-01-CR-368-FM.
At the very least, Macauley's release from INS custody on his own recognizance in October 2000 should have put him on notice of the order's existence.
The fax line indicates that the sender transmitted the document to area code and telephone number (915) 534-653_ (the last digit is blank). The Court takes judicial notice that the FAX number for the Office of the Federal Public Defender, El Paso Division, is (915) 534-6534.
The Court also finds that Macauley has failed to show prejudice, because Judge Smith's order simply cannot be characterized as material to the proceedings in cause no. EP-01-CR-368-FM. As the Government notes, Judge Smith's order merely comments on the state of the evidence against Macauley as of October 2, 2000 and thus predates the Government's receipt of certain German documents, in which Macauley claimed to have been born in Lagos, Nigeria. After careful consideration, the Court finds that Macauley has failed to show that, in light of the evidence that the Government subsequently obtained, Judge Smith's order had any continuing relevance to the charges against him in cause no. EP-01-CR-368-FM, much less that the order was "material" within the meaning of Brady. B. Claim Four: Double Jeopardy
Macauley has not even attempted to show cause why he could not have raised his fourth claim on direct review. Moreover, for the reasons discussed below, the Court finds that even if Macauley could show cause for his default, he cannot show prejudice because his Double Jeopardy claim is entirely without merit.
The Double Jeopardy Clause of the United States Constitution prohibits a second prosecution for the same offense after conviction, as well as successive punishments for the same offense. For a successive punishment to violate the Double Jeopardy Clause, jeopardy must have attached regarding the preceding punishment. Jeopardy attaches in a jury trial when the jury is empaneled and sworn. In the context of plea bargains, jeopardy attaches with the court's acceptance of the guilty plea. In a non-jury trial, jeopardy attaches when the court begins to hear evidence.
See Dept. of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 769 (1994).
See Serfass v. United States, 420 U.S. 377, 393 (1975) ("[A]n accused must suffer jeopardy before he can suffer double jeopardy.").
Crist v. Bretz, 437 U.S. 28 (1978).
United States v. Sanchez, 609 F.2d 761, 762 (5th Cir. 1980).
See Serfass, 420 U.S. at 377.
Here, jeopardy never attached regarding the charges against Macauley in cause no. EP-99-CR-1411-EP. The record in that cause reveals that Macauley did not enter into a plea bargain with the Government. It additionally shows that Macauley did not endure a bench or a jury trial and that no jury was even empaneled. Because jeopardy never attached regarding the charges in cause no, EP-98-CR-1411, Macauley cannot have then been placed in double jeopardy when the Government re-indicted him in cause no. EP-01-CR-368-FM. The Court therefore finds that Macauley has failed to show either cause or prejudice regarding his fourth claim and is not entitled to a merits review regarding this issue.
V. THE MERITS OF MacAULEY'S REMAINING CLAIMS A. Legal standard — ineffective assistance of counsel claims
The Supreme Court established the legal principles that govern ineffective assistance of counsel claims in Strickland v. Washington, 466 U.S. 668 (1984). In Wiggins v. Smith, 539 U.S. 510 (2003), the Supreme Court reiterated that:
An ineffective assistance of counsel claim has two components: A petitioner must show that counsel's performance was deficient, and that the deficiency prejudiced the defense. To establish deficient performance, a petitioner must demonstrate that counsel's representation "fell below an objective standard of reasonableness." We have declined to articulate specific guidelines for appropriate attorney conduct and instead have emphasized that "the proper measure of attorney performance remains simply reasonableness under prevailing professional norms."
Wiggins, 539 U.S. at 521 (internal citations omitted).
To establish that counsel's representation fell below an objective standard of reasonableness, a petitioner must overcome a strong presumption that his trial counsel's conduct fell within a wide range of reasonable professional assistance. Reviewing courts are extremely deferential in scrutinizing counsel's performance, making every effort to eliminate the distorting effects of hindsight. It is strongly presumed that counsel rendered adequate assistance and exercised reasonable professional judgment in making all significant decisions. An attorney's strategic choices, usually based on information supplied by the defendant and from a thorough investigation of relevant facts and law, are virtually unchallengeable. Counsel is neither required to advance every non-frivolous argument, nor to investigate every conceivable matter, nor to assert patently frivolous arguments. Defense counsel is similarly not required to exercise clairvoyance during the course of a criminal trial.
See Darden v. Wainwright, 477 U.S. 168, 184 (1986); Strickland, 466 U.S. at 687-91; Lackey v. Johnson, 116 F.3d 149, 152 (5th Cir. 1997); Belyeu v. Scott, 67 F.3d 535, 538 (5th Cir. 1995).
See, e.g., Lockhart v. Fretwell, 506 U.S. 364, 372 (1993); Burger v. Kemp, 483 U.S. 776, 789, (1987); Strickland, 466 U.S. at 689; Green v. Johnson, 116 F.3d 1115, 1122 (5th Cir. 1997).
See Strickland, 466 U.S. at 690; Drew v. Collins, 964 F.2d 411, 422 (5th Cir. 1992); Duff-Smith v. Collins, 973 F.2d 1175, 1182 (5th Cir. 1992).
See Boyle v. Johnson, 93 F.3d 180, 187-88 (5th Cir. 1996) (holding that an attorney's decision not to pursue a mental health defense or to present mitigating evidence concerning the defendant's possible mental illness was reasonable where counsel was concerned that such testimony would not be viewed as mitigating by the jury and that the prosecution might respond to such testimony by putting on its own psychiatric testimony regarding the defendant's violent tendencies); West v. Johnson, 92 F.3d 1385, 1406-09 (5th Cir. 1996) (holding that a trial counsel's failure to conduct further investigation into the defendant's head injury and psychological problems was reasonable where interviews with the defendant and the defendant's family failed to produce any helpful information); cf. Wiggins, 539 U.S. at 524 (holding that, in a capital case, counsel's decision not to expand its mitigation-defense investigation beyond presentence investigation report and Department of Social Services records, despite suggestions that additional, significant mitigating evidence existed, was itself unreasonable and fell below professional standards).
See Sones v. Hargett, 61 F.3d 410, 415 n. 5 (5th Cir. 1995) (stating that counsel cannot be deficient for failing to press a frivolous point); United States v. Gibson, 55 F.3d 173, 179 (5th Cir. 1995) (stating that the Sixth Amendment does not require counsel to file meritless motions); Smith v. Collins, 977 F.2d 951, 960 (5th Cir. 1992) (noting that the defense of a criminal case is not an undertaking in which everything not prohibited is required, nor does it contemplate the employment of wholly unlimited time and resources).
See Sharp v. Johnson, 107 F.3d 282, 290 n. 28 (5th Cir. 1997) (citing Garland v. Maggio, 717 F.2d 199, 207 (5th Cir. 1983) (holding that clairvoyance is not a required attribute of effective representation)).
Even if counsel's performance falls below an objective standard of reasonableness, "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Accordingly, "any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution."
Strickland, 466 U.S. at 691-92.
Id. at 692.
Because a convicted defendant must satisfy both prongs of the Strickland test, his failure to establish either deficient performance or prejudice under that test makes it unnecessary to examine the other prong. Therefore, a convicted defendant's failure to establish that his counsel's performance fell below an objective standard of reasonableness avoids the need to consider the issue of prejudice. Similarly, it is also unnecessary to consider whether counsel's performance was deficient where there is an insufficient showing of prejudice. Moreover, mere conclusory allegations in support of claims of ineffective assistance of counsel are insufficient, as a matter of law, to raise a constitutional issue. With these principles in mind, the Court turns to the merits of Macauley's remaining claims.
Strickland, 466 U.S. at 700; Green, 116 F.3d at 1122; see also Burnett v. Collins, 982 F.2d at 928 (holding that the defendant bears the burden of proof on both prongs of the Strickland test).
Hoskins, 910 F.2d at 311; Thomas, 812 F.2d at 229-30.
See Black, 962 F.2d at 401; Pierce, 959 F.2d at 1302.
See Kinnamon v. Scott, 40 F.3d 731, 735 (5th Cir. 1994) (holding that a petitioner's speculative complaints of ineffective assistance by appellate counsel did not warrant federal habeas relief).
B. Claim Two: Maynard failed to present Judge Smith's order at trial.
For the reasons discussed at length in Section IV.A, the Court has concluded that Macauley has failed to show that the Government suppressed Judge Smith's order or that the order was material to the proceedings. The Court finds that Maynard did not perform deficiently by declining to present evidence that was of no value to his client's case. Moreover, since the order had little, if any, relevance to the criminal proceeding in cause no. EP-01-CR-368-FM, Macauley has not shown that he was prejudiced by Maynard's decision not to present it as evidence at Macauley's trial.
C. Claim Three: Maynard interfered with Macauley's right to testify.
A criminal defendant has a fundamental constitutional right to take the stand to testify in his own defense. Where a defendant contends that his counsel interfered with his right to testify, the appropriate vehicle for his allegation is an ineffective assistance of counsel claim pursuant to Strickland.
Rock v. Arkansas, 483 U.S. 44, 49-52 (1987); Sayre v. Anderson, 238 F.3d 631, 634 (5th Cir. 2001).
United States v. Willis, 273 F.3d 592, 598 (5th Cir. 2001); Sayre, 238 F.3d at 64; see United States v. Brown, 217 F.3d 247, 258-59 (5th Cir. 2000).
The deficient-performance analysis under the first prong of Strickland varies according to the particular nature of counsel's alleged interference. Because the right to testify is personal to the defendant, his counsel may not waive it over the objection of his client. Therefore, "it cannot be reasonable trial strategy for an attorney to not honor his client's decision to exercise his constitutional right to testify, not because the advice not to take the stand is unsound, but because counsel must in the end accede if the client will not abide by the advice." When counsel will not abide by his client's decision, the defendant's contemporaneous failure to address the trial court regarding his desire to testify does not, in itself, preclude the defendant from asserting the claim in a post-conviction proceeding.
United States v. Mullins, 315 F.3d 449, 454 (5th Cir. 2002) (explaining that the defendant's right to testify is secured by the Constitution, and only he may waive it).
Mullins, 315 F.3d at 454.
Id. at 455 (explaining that placing the burden upon the defendant would be inconsistent with "the reality that routine instructions to defendants regarding the protocols of the court often include the admonition that they are to address the court only when asked to do so.").
Where the record indicates that the defendant knew of his right to testify and wanted to do so, but acquiesced in counsel's advice that he not take the stand, the only inquiry is whether counsel's advice against testifying constituted sound trial strategy. In examining counsel's strategy, the Court must remain mindful that the decision whether to put a defendant on the stand is "a judgment call that should not easily be condemned with the benefit of hindsight."
Id. at 454-55.
Id. at 453.
As with all ineffective assistance claims, it is not enough to show that counsel performed deficiently. The defendant must also show that the alleged deficient performance prejudiced him. Specifically, the defendant must demonstrate "a reasonable probability that, absent the errors, the factfinder would have had reasonable doubt respecting guilt and that the errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable."
Strickland, 466 U.S. at 691-92.
Mullins, 315 F.3d at 453.
Mullins, 315 F.3d at 456.
The Court makes the following factual findings after observing the demeanor of the two witnesses and listening to their testimony at the evidentiary hearing. First, the Court rejects any allegation by Macauley that Maynard refused, over Macauley's objection, to put his client on the stand. The Court notes that Maynard is an experienced and highly-regarded member of the local defense bar, who has appeared before this Court on numerous occasions. During those appearances, Maynard has demonstrated abilities and judgment far above even the most able and competent defense counsel practicing before it. Maynard's testimony and demeanor at the evidentiary hearing were entirely consistent with this Court's past observations regarding his professionalism and forthrightness. The Court accordingly credits Maynard's testimony that he recommended against Macauley taking the stand, because he believed the disadvantages of testifying would outweigh any advantages Macauley might gain.
The Court further credits Maynard's testimony that he left the ultimate decision to his client. Macauley exhibited no timidity or shyness whatsoever while testifying at the evidentiary hearing that would suggest that Maynard could have overborne his client's will, even if he had attempted do to so. Rather, if anything, Macauley exuded a sense of brash over-confidence that leads this Court to conclude that Macauley would have insisted on testifying, no matter how strongly Maynard might have counseled him against taking the stand, had Macauley truly wanted to do so. The Court finds that Macauley completely understood that he could testify if he so desired and that he decided, based upon Maynard's advice, not to take the witness stand.
Inasmuch as Macauley contends that Maynard's recommendation against testifying was professionally unreasonable, the Court finds that Macauley has failed to overcome the strong presumption that Maynard's decision not to place his client on the stand represented sound trial strategy. Macauley was on trial for lying under oath regarding his citizenship. His prior convictions all involved lying in one form or another. The record clearly shows that Maynard made a strategic decision that Macauley ought not to testify, in order to keep evidence of his prior convictions from the jury. An abbreviated version of Macauley's proposed testimony was already before the jury, in the form of his transcribed immigration proceedings. Although the transcripts might not carry the full force of Macauley's live testimony before the jury, Maynard's decision nonetheless shielded his client from a potentially very damaging cross-examination. After due consideration, the Court concludes that Macauley has failed to show that Maynard exercised professionally unreasonable judgment when he determined that this strategic tradeoff represented the best course of action for his client.
Although Maynard testified that, in retrospect, he would have recommended that Macauley take the stand, such hindsight analysis is not permitted in determining whether trial strategy was sound. Mullins, 315 F.3d at 456 n. 24.
Although the Court's determination that Macauley has failed to meet the first prong of Strickland renders it unnecessary for it to consider the second prong, the Court nevertheless notes that Macauley has failed to show prejudice. Macauley acknowledged at the evidentiary hearing that he is an accomplished prevaricator. He nonetheless asserted that, if he had testified, the jury could have believed that he lied simply to survive and that he truly believed himself to be an American citizen. According to Macauley, because he truly believed that he was an American citizen, he was not actually lying to immigration officials when he asserted United States citizenship, although he had absolutely no independent evidence to support his claim. In essence, Macauley asserted that in hindsight and against all evidence or lack thereof, he could have persuaded a jury that his deeply held belief of American citizenship consequently made all his statements true.
Although Macauley may believe that the jury would have found his testimony credible, that subjective belief does not meet the reasonable probability of a different outcome test (nor does his belief in his own persuasiveness seem particularly well-founded, if his largely selfserving testimony at the evidentiary hearing is any indicator of what his performance would have been at trial). If Macauley had taken the stand, his prior convictions would have come into evidence. In this Court's view, given the particular nature of Macauley's past offenses and of the charges then pending against him, it is not reasonably probable that the outcome of his trial would have been different. At most, Macauley's testimony might have persuaded the jury, but there is not a reasonable probability that it would have done so. "In the service of finality, the second prong of Strickland raises high the bar to relief, and here it has not been cleared." VI. CERTIFICATE OF APPEALABILITY
Mullins, 315 F.3d at 456.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") converted the "certificate of probable cause" ("CPC") required to appeal from the denial of a petition for federal habeas corpus relief, including the denial of § 2255 Motions to Vacate, into a Certificate of Appealability ("CoA"). To appeal the denial of a habeas corpus petition filed under 28 U.S.C. § 2255, the petitioner must obtain a CoA. Appellate review of a habeas petition is moreover limited to the issues on which a CoA is granted. In other words, a CoA is granted or denied on an issue-by-issue basis, thereby limiting appellate review to solely those issues on which CoA is granted.
See Hill v. Johnson, 114 F.3d 78, 80 (5th Cir. 1997) (recognizing that the "substantial showing" requirement for a CoA under the AEDPA is merely a change in nomenclature from the certificate of probable cause standard); Muniz v. Johnson, 114 F.3d 43, 45 (5th Cir. 1997) (holding that the standard for obtaining a CoA is the same as for a CPC); see also Robison v. Johnson, 151 F.3d 256, 259 n. 2 (5th Cir. 1998), cert. denied, 526 U.S. 1100 (1999) (stating that the CoA requirement supersedes the previous requirement for a certificate of probable cause to appeal for federal habeas corpus petitions filed after the effective date of the AEDPA); Hallmark v. Johnson, 118 F.3d 1073, 1076 (5th Cir. 1997), cert. denied sub nom. Monroe v. Johnson, 523 U.S. 1041 (1998) (same).
See Miller-El v. Johnson, 537 U.S. 322, 335-6 (2003); 28 U.S.C.A. § 2253(c)(2) (West Supp. 2003).
See Crutcher v. Cockrell, 301 F.3d 656, 658 n. 10 (5th Cir. 2002), (holding that a CoA is granted on an issue-by-issue basis, thereby limiting appellate review to those issues); Jones v. Cain, 227 F.3d 228, 230 n. 2 (5th Cir. 2000) (holding the same); Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997) (holding that the scope of appellate review of denial of habeas petition is limited to issue on which CoA granted).
See Crutcher v. Cockrell, 301 F.3d at 658 n. 10; Lackey v. Johnson, 116 F.3d at 151; Hill v. Johnson, 114 F.3d at 80; Muniz v. Johnson, 114 F.3d at 45; Murphy v. Johnson, 110 F.3d 10, 11 n. 1 (5th Cir. 1997); 28 U.S.C.A. § 2253(c)(3) (West Supp. 2003).
A CoA to appeal the denial of a habeas corpus petition shall be granted only upon "a substantial showing of the denial of a constitutional right." The showing necessary to obtain a CoA on a particular claim depends upon the manner in which the District Court has disposed of a claim. If this Court rejects a prisoner's constitutional claim on the merits, he must then demonstrate that reasonable jurists could find the Court's assessment of the constitutional claim to be debatable or wrong. If the petitioner wishes to challenge this Court's dismissal of a claim for a reason not of constitutional dimension, such as procedural default, limitations, or lack of exhaustion, he must show that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and whether this Court was correct in its procedural ruling. This Court is authorized to address the propriety of granting a CoA sua sponte.
28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
Miller-El v. Johnson, 537 U.S. at 338.
Slack v. McDaniel, 529 U.S. at 484 (holding that when a district court denies a habeas claim on procedural grounds, without reaching the underlying constitutional claim, a CoA may issue only when the petitioner shows that reasonable jurists would find it debatable whether: (1) the claim is a valid assertion of the denial of a constitutional right; and (2) the district court's procedural ruling was correct).
Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000).
After considering the entire record and the parties' pleadings, the Court concludes that, as to all but one of his claims, jurists of reason would not debate whether Macauley has stated a valid claim for relief or whether a procedural ruling in this case is correct. Macauley's claim that Maynard interfered with his right to testify represents that exception. Although it seems clear to this Court that Macauley has not met his burden under Strickland, it concludes that reasonable minds might reach a different result, given the perfectly sufficient but perhaps less than overwhelming evidence supporting the Government's case. Accordingly, the Court will grant Macauley a Certificate of Appealability regarding his claim that Maynard interfered with his right to testify, designated as "Claim Three" for purposes of this opinion. The Court will decline, however, to issue a Certificate of Appealability regarding any of Macauley's remaining claims for relief.
VII. CONCLUSION ORDER
In sum, the Court concludes that Petitioner Olubanji Milton Macauley's Motion to Vacate, Set Aside, or Correct Sentence filed pursuant to 28 U.S.C. § 2255 should be denied and this matter dismissed with prejudice. For the reasons stated above, however, the Court will grant Macauley a Certificate of Appealability on his claim that counsel interfered with his right to testify. The Court concludes that Macauley is not entitled to a Certificate of Appealability regarding his remaining claims. Accordingly,
1. Petitioner Olubanji Milton Macauley's Motion to Vacate, Set Aside, or Correct Sentence, filed on February 9, 2004, pursuant to 28 U.S.C. § 2255, is DENIED and this matter is DISMISSED WITH PREJUDICE.
2. The Court GRANTS Macauley a Certificate of Appealability regarding his claim that counsel interfered with his right to testify. The Court DENIES Macauley a Certificate of Appealability with respect to his remaining claims.
3. All pending motions in this cause, if any, are DENIED AS MOOT.
SO ORDERED.