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United States of America v. Duane Robert Bear

May 13, 2011

UNITED STATES OF AMERICA, PLAINTIFF,
v.
DUANE ROBERT BEAR, DEFENDANT. DUANE ROBERT BEAR, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Daniel L. Hovland, District Judge United States District Court

ORDER DENYING DEFENDANT'S PETITION FOR HABEAS CORPUS RELIEF UNDER 28 U.S.C. § 2255

Before the Court is the Defendant's "Motion to Vacate, Set Aside or Correct A Sentence, By A Person In Federal Prison Pursuant to Title 28 USC 2255" filed on January 24, 2011. See Docket No. 78. On February 23, 2011, after an initial review of the motion, the Court ordered the Government to file a response within sixty days. See Docket No. 83. On April 20, 2011, the Government filed a response in opposition to the motion. See Docket No. 88. For the reasons set forth below, the petition is denied.

I. BACKGROUND

On May 5, 2009, the defendant, Duane Robert Bear, was indicted on one count of second degree murder. See Docket No. 1. On May 20, 2009, Bear made an initial appearance and Assistant Federal Public Defender Orell Schmitz was appointed as defense counsel. See Docket No. 9. On October 21, 2009, a plea agreement was filed in which the Government agreed it would file an information charging Bear with voluntary manslaughter and Bear agreed to plead guilty to that charge. See Docket No. 40. On November 2, 2009, the Government filed an information charging Bear with voluntary manslaughter in violation of 18 U.S.C. §§ 1112 and 1153. See Docket No. 47. Bear pled guilty to the charge at a change of plea hearing on November 2, 2009. See Docket No. 48. On January 25, 2010, Bear was sentenced to 78 months in prison with credit for time served to date, 36 months of supervised release, $100 special assessment, and $5,534.21 restitution joint and several with the co-defendant, Jesse Joe McKenna. See Docket No. 73. On January 24, 2011, Bear filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct the sentence. See Docket No. 78.

II. LEGAL DISCUSSION

"28 U.S.C. § 2255 provides a federal prisoner an avenue for relief if his 'sentence was imposed in violation of the Constitution or laws of the United States, or . . . was in excess of the maximum authorized by law.'" King v. United States, 595 F.3d 844, 852 (8th Cir. 2010) (quoting 28 U.S.C. § 2255(a)). "The Sixth Amendment guarantees a criminal defendant the right to effective assistance of counsel. To establish a claim for ineffective assistance of counsel, a § 2255 movant must demonstrate that counsel's representation was deficient and that he suffered prejudice as a result." Theus v. United States, 611 F.3d 441, 446 (8th Cir. 2010) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).

Deficient performance exists when the attorney's performance "falls below the 'range of competence demanded of attorneys in criminal cases.'" Id. (quoting Strickland, 466 U.S. at 687). An objective standard of reasonableness is the test to apply for deficiency of performance. Marcrum v. Luebbers, 509 F.3d 489, 502 (8th Cir. 2007) (citing Strickland, 466 U.S. at 688). Several factors are used to determine reasonableness: "we must assess reasonableness on all the facts of the particular case, we must view the facts as they existed at the time of counsel's conduct, and we must evaluate counsel's performance with a view to whether counsel functioned to assure adversarial testing of the [Government's] case." Id. (citing Strickland, 466 U.S. at 690). The defendant bears the burden of proving "his attorney's representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy." Id. (quoting Kimmelman v. Morrison, 477 U.S. 365, 384 (1986)). Because of the inherent difficulties in evaluating counsel's conduct at the time of performance, there is a strong presumption that counsel's performance is reasonable and "might be considered sound trial strategy." Strickland, 466 U.S. at 689.

If the defendant can show his counsel's representation was deficient, he must then show that the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687. The defendant must show "there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Marcrum, 509 F.3d at 503 (internal citations omitted).

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 before the Court is whether defense counsel Schmitz's performance at any stage of the criminal proceedings was deficient and whether such deficiency prejudiced Bear's defense. Cumulative error by defense counsel will not justify habeas relief because each ineffective assistance of counsel claim must stand or fall on its own. Scott v. Jones, 915 F.2d 1188, 1191 (8th Cir. 1990). Each of Bear's criticisms of his defense counsel will be addressed.

A. FAILURE TO OBTAIN AUTOPSY REPORT

In order to prevail on this claim, Bear must demonstrate that by failing to obtain the autopsy report, his defense counsel's performance was deficient and such deficiency prejudiced Bear's defense. "A defendant can establish prejudice if 'there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial.'" Witherspoon v. Purkett, 210 F.3d 901, 903 (8th Cir. 2000) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)) (emphasis and alterations in original). A defendant can also establish prejudice by showing that the discovery of evidence would have caused defense counsel to change his recommendation as to the plea offer. Id. The assessment "will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial." Id. at 903-04 (quoting Hill, 474 U.S. at 59).

Bear's claim of deficient investigation is that defense counsel failed to obtain a copy of the autopsy report of the deceased, L.M., prior to Bear's guilty plea. The autopsy report revealed that L.M. died of "Systemic hypothermia [d]ue to exposure to cold ambient temperatures" with alcohol intoxication listed under "Other Significant Conditions." See Docket No. 88-1. Bear claims the autopsy report would have shown that Bear did not kill L.M. (and/or that L.M. did not die) as a result of injuries inflicted by, or actions taken by, Bear.

The Government contends that the autopsy report was included in the discovery provided to Bear's attorney no later than June 1, 2009. The record clearly reveals that both Bear and his attorney were aware of the autopsy report and its findings prior to the change of plea hearing. Bear acknowledged at the change of plea hearing that he had reviewed the evidence provided to his attorney by the Government in discovery. See Docket No. 87, pp. 21-22. The plea agreement states, "An autopsy was conducted on December 12, 2008. The cause of death was determined to be systematic hypothermia due to exposure to cold ambient temperatures, with alcohol intoxication a significant contributing factor." See Docket No. 40, p. 4. At the change of plea hearing, Bear acknowledged that the factual ...


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