The opinion of the court was delivered by: Daniel L. Hovland, Chief Judge United States District Court
ORDER DISMISSING DEFENDANT'S PETITION FOR HABEAS CORPUS RELIEF UNDER 28 U.S.C. § 2255
Before the Court is the Defendant's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence filed on August 29, 2008. See Docket No. 40. On September 15, 2008, the Defendant filed a motion for leave to amend the 28 U.S.C. § 2255 petition and included the amended petition. See Docket No. 44. On September 17, 2008, the Court issued an order granting the Defendant's motion for leave to amend the petition, and ordered the Government to file a response within sixty (60) days. See Docket No. 45. On September 17, 2008, the Defendant's amended petition was filed, which the Court will treat as a separate petition. See Docket No. 46. On October 21, 2008, the Government filed a response requesting that the Court dismiss the Defendant's petitions. See Docket No. 53. For the reasons set forth below, the Defendant's petition and amended petition are dismissed.
On June 6, 2007, the defendant, Julian Ramirez, was charged in a ten-count indictment with engaging in sexual abuse of minors T.D. and S.C. in violation of 18 U.S.C. §§ 1153 and 2243(a). See Docket No. 1. Ramirez made an initial appearance on August 9, 2007, and William Schmidt of the Federal Public Defender's Office was appointed as defense counsel. See Docket Nos. 7, 8. A plea agreement was filed on November 26, 2007. See Docket Nos. 20, 21.
A change of plea hearing was held on December 19, 2007. See Docket No. 25. Ramirez pled guilty to counts one and eight of the indictment. See Docket No. 50. On May 12, 2008, the Court sentenced Ramirez to 44 months on each of the two counts, to run concurrent, and five years of supervised release. See Docket No. 39. In addition, the Court ordered Ramirez to pay a special assessment in the amount of $200. See Docket No. 39. The Government dismissed counts two through seven and counts nine and ten. See Docket No. 35.
On August 29, 2008, Ramirez moved to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. See Docket No. 40. Ramirez filed an amended petition on September 17, 2008. See Docket No. 46. Ramirez contends that: (1) defense counsel was ineffective for failing to seek the suppression of statements that Ramirez made to law enforcement; (2) defense counsel was ineffective for failing to investigate whether Bureau of Indian Affairs Special Agent David Lawrence was investigating other suspects for sexual crimes committed against T.D.; and (3) the statements he made to law enforcement were obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966). See Docket Nos. 40, 46.
28 U.S.C. § 2255 authorizes a challenge by "[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." "A motion made pursuant to 28 U.S.C. § 2255 requires a showing of either constitutional or jurisdictional error, or a 'fundamental defect' resulting in a 'complete miscarriage of justice.'" United States v. Gianakos, 2007 WL 3124686, at *4 (D.N.D. Oct. 23, 2007) (quoting Davis v. United States, 417 U.S. 333, 346 (1974); Hill v. United States, 368 U.S. 424, 428 (1962)). Ineffective assistance of counsel claims are properly raised in a 28 U.S.C. § 2255 action. See United States v. Davis, 452 F.3d 991, 994 (8th Cir. 2006). To be eligible for habeas corpus relief on an ineffective assistance of counsel claim, the defendant bears the burden of satisfying the two-part test announced in Strickland v. Washington, 466 U.S. 668 (1984).
The defendant must first show that counsel's performance was deficient. Strickland, 466 U.S. at 687. Counsel's performance is deficient when it falls below an objective standard of reasonableness. Id. at 687-88; see also Marcrum v. Luebbers, 509 F.3d 489, 502 (8th Cir. 2007). To determine whether counsel satisfied the reasonableness standard, a court must "assess reasonableness on all the facts of the particular case," "view the facts as they existed at the time of counsel's conduct" and not in hindsight, and "evaluate counsel's performance with a view to whether counsel functioned to assure adversarial testing" of the prosecution's case. See Marcrum, 509 F.3d at 502. "There is a 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Anderson v. United States, 393 F.3d 749, 753 (8th Cir. 2005).
The defendant must then show that counsel's deficient performance prejudiced the defense. Strickland, 466 U.S. at 687. Prejudice is rarely presumed in ineffective assistance of counsel cases. Prejudice is presumed "when there has been a complete denial of counsel or a denial of counsel at a critical stage, when 'counsel entirely fails to subject the prosecution's case to meaningful adversarial testing,' or when even competent counsel could not be expected to be of assistance given the circumstances." Malcom v. Houston, 518 F.3d 624, 627 (8th Cir. 2008). Ramirez has not alleged any conduct by defense counsel which would give rise to a presumption of prejudice. Therefore, to succeed on his ineffective assistance of counsel claims, Ramirez must show that counsel's performance prejudiced his defense. "A showing of prejudice requires a determination by the court that 'there is a reasonable probability [sufficient to undermine confidence in the outcome] that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" United States v. White, 341 F.3d 673, 677 (8th Cir. 2003) (quoting Strickland, 466 U.S. at 694).
The standard set forth in Strickland requires that judicial scrutiny of counsel's performance be highly deferential. "It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Strickland, 466 U.S. at 689.
The threshold issue is whether defense counsel's performance was deficient and whether such deficiency prejudiced Ramirez's defense. Cumulative error by counsel will not justify habeas relief because each ineffective assistance of counsel claim must stand or fall on its own. See Scott v. Jones, 915 F.2d 1188, 1191 (8th Cir. 1990).
A. SUPPRESSION OF STATEMENTS
Ramirez contends that his defense counsel was ineffective for failing to seek the suppression of statements that Ramirez made to law enforcement officers. Ramirez contends that statements he made to Special Agent David Lawrence were obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966), because Agent Lawrence continued to interrogate Ramirez after he had made a request for counsel. Ramirez argues that "Agent Lawrence, however, told Ramirez that an attorney was not available for him and that he should just cooperate with the questioning because Lawrence knows that Ramirez 'is guilty.' Agent Lawrence's continued harassment is what induced Ramirez to make false and incriminating statements against himself and to sign a Miranda waiver." See Docket No. 44. Ramirez further states, "I was forced to make incriminating statements against myself as a result of Special Agent David Lawrence's threats and continual baggering (sic), and that Agent Lawrence's misconduct violated my substantial rights under the Due Process and Equal Protection Clauses of the Fifth Amendment." See Docket No. 41.
Whenever a suspect is taken into custody and subjected to interrogation, procedural safeguards must be employed to protect the suspect's Fifth Amendment privilege against self-incrimination. See Miranda, 384 U.S. at 478-79. The suspect "must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires." Id. at 479. "Miranda warnings make it clear to the accused that he has the right to have an attorney present during questioning, to consult with an attorney, and to have one appointed for him if he cannot afford one of his own." United States v. Chadwick, 999 F.2d 1282, 1285 (8th Cir. 1993). If the suspect requests counsel, "the interrogation must cease until an attorney is present." Miranda, 384 U.S. at 474. The suspect may waive his Miranda rights provided that the waiver is made knowingly, voluntarily, and intelligently. Id. at 444. A violation of Miranda may result in the suppression of evidence. See United States v. Martinez, 462 F.3d 903 (8th Cir. 2006).
In order to succeed on a claim of ineffective assistance of counsel in this context, Ramirez must show that his suppression claim was "meritorious and that there is a reasonable probability that the [results] would have been different absent the excludable evidence." United States v. Vargas, 469 F. Supp. 2d 752, 770 (D.N.D. 2007) (quoting Kimmelman v. Morrison, 477 U.S. 365, 375 (1986)); Adcox v. O'Brien, 899 F.2d 735, 737 (8th Cir. 1990). Because he pled guilty, in order to demonstrate that the results of the proceeding would have been different, Ramirez must show there was a reasonable probability that he would not have pled guilty and that he would have insisted on going to trial had counsel successfully sought suppression of his statements. United States v. Davis, 508 F.3d 461, 463 (8th Cir. 2007).
Even assuming for the sake of argument that Ramirez's Miranda rights were violated, Ramirez has failed to establish that defense counsel was deficient for failing to seek the suppression of his statements. Separate and apart from Ramirez's confession, there is an abundance of evidence establishing guilt as to counts one and eight: DNA analysis of vaginal swabs obtained from T.D. confirms that semen detected on the swabs matches the known DNA profile of Ramirez; both T.D. and S.C. admitted to law enforcement officials that they had engaged in sexual intercourse with Ramirez on more than one occasion; Ramirez's sister, Wenona Redhawk Ramirez, informed law enforcement that she was aware that Ramirez had engaged in sexual conduct with T.D. and S.C.; and family members of T.D. informed law enforcement that in April 2007 they found T.D. lying on a bed wearing no clothes and Ramirez lying next to her wearing boxers and a t-shirt. In light of the overwhelming evidence establishing Ramirez's guilt, the Court finds that defense counsel's alleged failure to seek the suppression of Ramirez's statements was a reasoned tactical decision. Given Strickland's strong presumption that counsel's strategic or tactical decisions are correct, defense counsel's decision to not seek the suppression of Ramirez's statements "falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689. Accordingly, the Court finds that defense counsel's conduct was not deficient. More important, the record clearly shows that there is no reasonable probability that the result in this case would have been different absent the confessions of Ramirez. Ramirez has also failed to show there was a reasonable probability that he would not have pled guilty and would have insisted on going to trial had counsel successfully sought suppression of his statements.
The Government furnished a plea agreement which was highly favorable to Ramirez. Ramirez was charged in an indictment with ten felony counts of sexual abuse of a minor. The plea agreement called for a plea of guilty to only two of the counts, counts one and eight. By pleading guilty to counts one and eight, Ramirez admitted to engaging in sexual activity with T.D. on only one occasion, and similarly admitted to engaging in sexual activity with S.C. on only one occasion.
If Ramirez had not pled guilty to counts one and eight, he would have proceeded to trial on all ten counts. If found guilty on all ten counts, Ramirez would have faced a significantly higher total offense level and sentencing range than he faced on the two counts. By pleading guilty to counts one and eight, Ramirez's total adjusted offense level was 22 with a Sentencing Guideline range of 41-51 months imprisonment. The Court ultimately sentenced Ramirez to a mid-range sentence of 44 months on each count, to run concurrent. There is no question Ramirez obtained a favorable outcome under the circumstances.
The Court finds that defense counsel made a reasoned tactical decision to not seek the suppression of Ramirez's statements. The evidence of record, independent of Ramirez's statements, overwhelmingly establishes his guilt. Further, the plea agreement provided Ramirez with significant incentives to plead guilty to two counts rather than to proceed to trial on all ten counts. Accordingly, the Court finds that Ramirez has failed to establish that, but for defense counsel's conduct, he would have proceeded to trial on all ten counts. As a result, Ramirez is not entitled to habeas relief on this claim.
Ramirez next contends that defense counsel was deficient for failing to investigate evidence that other individuals sexually abused T.D. Ramirez contends, "on or around August 11, 2007, I informed Attorney Schmidt that there exists a tape recording of Agent Lawrence lying in Tribal Court concerning the fact that there were (sic) more than one suspects (sic) for the assault of [T.D.]." See Docket No. 41. Ramirez states, "Had Attorney Schmidt not refused to bring this matter to the Court's attention, I believe that there is at least a reasonable probability that my conviction would not have resulted, because the plea of guilty would have been rendered invalid . . . ." See Docket No. 41.
Even if T.D. had been sexually abused by individuals other than Ramirez, the evidence overwhelmingly established that Ramirez also sexually abused T.D. DNA analysis confirmed that Ramirez engaged in sexual activity with T.D. Wenona Redhawk Ramirez informed law enforcement that she was aware of Ramirez's sexual relationship with T.D., and that she had heard Ramirez and T.D. engaging in sexual intercourse. Evidence of possible sexual abuse by other individuals does not disprove the overwhelming evidence which established beyond a reasonable doubt that Ramirez sexually abused T.D. Accordingly, the Court finds that defense counsel was not deficient for allegedly failing to investigate other suspects, and that defense counsel's alleged failure to investigate did not prejudice Ramirez's defense. Ramirez is not entitled to habeas relief on this claim.
Ramirez raises a substantive claim that the statements he made to law enforcement officers violated Miranda. Ramirez contends that "[t]he conviction is ...