The opinion of the court was delivered by: Daniel L. Hovland, District Judge United States District Court
ORDER DENYING DEFENDANT'S MOTION FOR HABEAS RELIEF
Before the Court is Kyle Ray DeCoteau's motion filed pursuant to 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody which was filed on January 10, 2012. See Docket No. 126. The Government filed a response in opposition to the motion on April 11, 2012. See Docket No. 130. DeCoteau filed a reply on May 9, 2012. See Docket No. 131. A hearing was conducted on July 17, 2012, in Bismarck, North Dakota. For the reasons outlined below, the motion is denied.
The defendant, Kyle Ray DeCoteau, was indicted on two counts of aggravated sexual abuse of a child and two counts of abusive sexual contact on June 3, 2008. See Docket No. 1. The charges concerned two young girls who were the daughters of DeCoteau's girlfriend's sister and with whom he occasionally had unsupervised contact.
DeCoteau filed a motion to suppress on January 28, 2009. See Docket No. 33. He argued that statements made to federal agents should be suppressed because he had not been advised of his Miranda rights. An evidentiary hearing was held on March 11, 2009. The Court denied the motion on March 17, 2009, finding that DeCoteau was not in custody during the interview and his statements were made voluntarily. See Docket No. 40.
DeCoteau moved for a competency hearing on April 3, 2009. He was evaluated by psychologists for both the Government and the defense. A competency hearing was held on August 26, 2009. See Docket No. 58. Based on the reports from the psychologists and the evidence presented at the competency hearing, the Court determined that DeCoteau was competent to stand trial. See Docket No. 59.
After a three day jury trial which concluded on January 21, 2010, DeCoteau was convicted on all counts. See Docket No. 79. DeCoteau filed a Rule 29 motion for judgment of acquittal as to counts one and two on January 27, 2010. See Docket No. 81. The Court granted the motion as to count two on March 2, 2010. See Docket No. 93. On May 10, 2010, DeCoteau was sentenced to the mandatory minimum of 360 months on count one, to run concurrent with the sentence of 51-months on count three and 51-months on count four. See Docket No. 99. Thereafter, an appeal was taken to the Eighth Circuit Court of Appeals. DeCoteau argued the Court erred in finding him competent to stand trial, that there was insufficient evidence to support a conviction on count one, and the district court erred in stating it lacked the authority to sentence below the statutory mandatory minimum. The Eighth Circuit Court of Appeals affirmed the conviction and sentence on January 12, 2011. United States v. DeCoteau, 630 F.3d 1091 (8th Cir. 2011).
DeCoteau filed this motion and supporting memorandum on January 10, 2012. See Docket No. 126. In the motion, DeCoteau raises five claims of ineffective assistance of counsel. The Government filed a response in opposition to the motion on April 11, 2012. See Docket No. 130. DeCoteau filed a reply on May 9, 2012. See Docket No. 131.
"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)). This requires a showing of either constitutional or jurisdictional error, or a "fundamental defect" resulting in a "complete miscarriage of justice." Davis v. United States, 417 U.S. 333, 346 (1974); Hill v. United States, 368 U.S. 424, 428 (1962). A 28 U.S.C. § 2255 motion is not a substitute for a direct appeal and is not the proper way to complain about simple trial errors. Anderson v. United States, 25 F.3d 704, 706 (8th Cir. 1994). A 28 U.S.C. § 2255 movant "must clear a significantly higher hurdle than would exist on direct appeal." United States v. Frady, 456 U.S. 152, 166 (1982). Section 2255 is "intended to afford federal prisoners a remedy identical in scope to federal habeas corpus." Davis, 417 U.S. at 343.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
The Sixth Amendment guarantees a criminal defendant the right to effective assistance of counsel. U.S. Const. amend. VI. To be eligible for habeas relief based on ineffective assistance of counsel, a defendant must satisfy the two-part test announced in Strickland v. Washington, 466 U.S. 668, 687 (1984). A defendant must first establish that defense counsel's representation was constitutionally deficient, which requires a showing that counsel's performance fell below an objective standard of reasonableness. Id. at 687-88. This requires showing that defense counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment which resulted in a performance so deficient that it deprived him of a fair trial. Id. at 687-88. In considering whether this showing has been accomplished, "[j]udicial scrutiny of counsel's performance must be highly deferential." Id. at 689. If the underlying claim (i.e., the alleged deficient performance) would have been rejected, defense counsel's performance is not deficient. Carter v. Hopkins, 92 F.3d 666, 671 (8th Cir. 1996). Courts seek to "eliminate the distorting effects of hindsight" by examining defense counsel's performance from counsel's perspective at the time of the alleged error. Id.
Second, it must be demonstrated that defense counsel's performance prejudiced the defense. Strickland, 466 U.S. at 687. In other words, under this second prong, it must be proven that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Id. at 694. A reasonable probability is one "sufficient to undermine confidence in the outcome." Wiggins v. Smith, 539 U.S. 510, 534 (2003). When evaluating the probability of a different result, a court views the alleged error in light of the totality of all the evidence before the jury to gauge the effect of the error. Kimmelman v. Morrison, 477 U.S. 365, 381 (1986); Williams v. United States, 452 F.3d 1009, 1013 (8th Cir. 2006). A court need not address both prongs of the Strickland test if the petitioner cannot meet one of them. 466 U.S. 668, 697 (1984).
It is well-established that there is a strong presumption that defense counsel provided "adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690; Vogt v. United States, 88 F.3d 587, 592 (8th Cir. 1996). A court reviewing defense counsel's performance must make every effort to eliminate hindsight and second-guessing. Strickland, 466 U.S. at 689; Schumacher v. Hopkins, 83 F.3d 1034, 1036-37 (8th Cir. 1996). Under the Strickland standard, strategic decisions that are made after a thorough investigation of both the law and facts regarding plausible options are virtually unchallengeable. Strickland, 466 U.S. at 690.
Where a defendant raises multiple claims of ineffective assistance, each claim of ineffective assistance must be examined independently rather than collectively. Hall v. Luebbers, 296 F.3d 385, 692-93 (8th Cir. 2002); Griffin v. Delo, 33 F.3d 895, 903-04 (8th Cir. 1994). Cumulative error will not justify habeas relief. Scott v. Jones, 915 F.2d 1188, 1191 (8th Cir. 1990).
A. CLAIM ONE - COMMENTS BY THE COURT
DeCoteau contends that his defense counsel was ineffective in failing to object to the Court's questioning of prosecution witness Kelly Schroeder. DeCoteau contends the Court's questioning about Kelly Schroeder's age "poisoned the juror's minds" because any sexual activity between DeCoteau and Kelly Schroeder would have been a felony under state law. See Docket No. 127, p.
7. DeCoteau also contends the information elicited from Kelly Schroeder by the Court allowed improper bad acts evidence to be presented to the jury and defense failed to object.
At the conclusion of the questioning of Kelly Schroeder by counsel, the Court questioned Ms. Schroeder as follows:
Q. Just so I'm clear, Ms. Schroeder, you began dating Kyle DeCoteau on
Q. Then did you turn 17 on January ...