United States District Court, D. North Dakota
ORDER DENYING DEFENDANT'S MOTION FOR HABEAS
L. Hovland, Chief Judge
the Court is Defendant Keith A. Grave's Motion to Vacate
under 28 U.S.C. § 2255 filed on May 7, 2018.
See Doc. No. 151. The Government filed a response in
opposition to the motion on July 3, 2018. See Doc.
No. 153. For the reasons set forth below, the motion is
was initially charged in a six count indictment with five
counts of sex trafficking or attempted sex trafficking and
one count of obstruction of justice, on December 3, 2014.
See Doc. No. 1. The indictment was superseded three
times. The eleven count third superseding indictment charged
Graves with seven counts of sex trafficking by force or
coercion in violation of 18 U.S.C. § 1591(a) and (b)(1);
one count of a attempted sex trafficking by force or coercion
in violation of 18 U.S.C. § 1591(a) and (b)(1), and 18
U.S.C. § 1594; one count of obstruction of the
enforcement of the sex trafficking statute in violation of 18
U.S.C. § 1591(d); one count of distribution of
methamphetamine in violation of 18 U.S.C. § 841(a)(1)
and 18 U.S.C. § 2; and one count of possession of
methamphetamine in violation of 18 U.S.C. § 841.
See Doc. No. 57. Each count of sex trafficking
pertained to a different victim. The victims were Natasha
(Count One), Sarah (Count Two), Katelynn (Count Three), Tasha
(Count Four), Jacqueline (Count Five), Morning Starr (Count
Nine), Ayesha (Count Ten), and April (Count Eleven). All the
victims were adult women forced or coerced into prostitution
by Graves. All the crimes took place in the Williston, North
Dakota, area in 2013 and 2014.
requested court-appointed counsel and the Federal Public
Defenders Office (Jeremy Kemper) was appointed to represent
him on December 23, 2014. See Doc. No. 8. Graves was
ordered detained pending trial. On April 27, 2015, Graves
filed a pro se motion requesting he be allowed to represent
himself. See Doc. No. 32. On May 19, 2015, after a
hearing at which the Court warned Graves about the pitfalls
of self-representation, the motion was granted and standby
counsel (Thomas Tuntland) was appointed. See Doc.
the next few months, Graves was provided, pursuant to a
stipulated discovery order, an extensive amount of discovery
contained on twenty-two diskettes. Graves began to complain
he was not being afforded adequate access to the discovery.
On September 25, 2015, the Court ordered Graves moved to the
Burleigh County Detention Center where he was to be given
access to a laptop computer so that he could review all the
discovery provided by the Government and adequately prepare
for trial. See Docket No. 61.
last minute request by Graves to continue trial was denied,
the trial commenced on October 19, 2015. Graves represented
himself at trial although standby counsel was present and
offered assistance when requested by Graves. On October 30,
2015, the jury returned a verdict finding Graves guilty on
five counts of sex trafficking, one count of distribution of
methamphetamine, and one count of possession of
methamphetamine. See Doc. No. 94. Graves was found
not guilty on two counts of sex trafficking, one count of
attempted sex trafficking, and one count of obstruction. On
February 17, 2016, and with Graves continuing to represent
himself, the Court sentenced him to 405 months imprisonment
and a lifetime of supervision. See Doc. No. 112.
the assistance of counsel, Graves appealed. The same attorney
who acted as standby counsel at trial, Thomas Tuntland,
handled the appeal. In his appeal, Graves argued he was
denied a fair trial because the Government did not provide
discovery in a timely manner, and in a form that allowed
Graves to review the discovery and prepare for trial, and the
district court abused its discretion in denying his last
minute motion for continuance. The Eighth Circuit Court of
Appeals rejected these claims and affirmed his conviction.
United States v. Graves, 856 F.3d 567 (8th Cir.
7, 2018, Graves filed the instant motion to vacate, set
aside, or correct sentence pursuant to 28 U.S.C. § 2255.
See Docket No. 151. In his motion, Graves raises
eleven claims of ineffective assistance of counsel. Nine of
the eleven claims of ineffective assistance of counsel
pertain to appellate counsel. Graves did not file a brief in
support of his motion. The claims are best described as vague
allegations of error unsupported by any citations to the
record or legal authority. On July 3, 2018, the Government
filed a response in opposition to Graves' motion.
See Doc. No. 153.
STANDARD OF REVIEW
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
Sixth Amendment guarantees a criminal defendant the right to
effective assistance of counsel. 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).
First, a defendant must 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 counsel made errors so serious
that defense counsel was not functioning as the
‘counsel' guaranteed by the Sixth Amendment.
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.
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). An increased prison term may constitute prejudice
under the Strickland standard. Glover v. United
States, 531 U.S. 198, 203 (2001).
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. When
reviewing the claims of ineffective assistance, a court may
not consider the cumulative effect of the alleged errors.
Shelton v. Mapes, 821 F.3d 941, 950 (8th Cir. 2016).
Each claim of ineffective assistance “must stand or
fall on its own.” Scott v. Jones, 915 F.2d
1188, 1191 (8th Cir. 1990).
reviewing ineffective assistance of appellate counsel claims,
a court's review is particularly deferential. Walker
v. United States, 810 F.3d 568, 579 (8th Cir. 2016).
Counsel is not required to raise every non-frivolous issue on
appeal. Id. Effective appellate advocacy involves
winnowing out weaker issues and focusing on one or a few key
issues. Jones v. Barnes, 463 U.S. 745, 751-52
(1983); United States v. Brown, 528 F.3d 1020, 1033
(8th Cir. 2008). As such, failure to raise an issue on direct
appeal is presumed to be an exercise of sound appellate
strategy absent evidence otherwise. Id. “It is
difficult to overcome Strickland's presumption
of reasonableness unless the ‘ignored issues are
clearly stronger than those presented.'”
Walker, 810 F.3d at 579 (quoting Gray v.
Norman, 739 F.3d 1113, 1118 (8th Cir. 2014)). Even if a
defendant demonstrates deficient performance by appellate
counsel, he must still establish prejudice. Brown,
528 F.3d at 1033. That is, the defendant must demonstrate
that the results of the appeal would have been different had
the issue(s) been raised. Id.
first claim for relief Graves contends his first attorney,
Jeremy Kemper, failed to inform him of a plea offer extended
by the Government. Graves contends he would have accepted
this offer had he known about it.
counsel has a duty to inform a defendant of any plea offer
provided by the government. Missouri v. Frye, 566
U.S. 134, 145 (2012). The failure to do so constitutes
deficient performance. Id. at 147. If counsel is
deficient for failing to inform a defendant of a plea offer,
a defendant must still demonstrate prejudice. Id. In
this context, deficient performance requires that a defendant
demonstrate a reasonable probability, that is a substantial
likelihood, that: (1) he would have accepted the plea offer;
(2) neither the prosecution nor the trial court would have
prevented the plea offer from being accepted, and (3) the end
result would have been more favorable to the defendant.
Id. at 148; Allen v. United States, 854
F.3d 428, 432 (8th Cir. 2017).
Government is unwilling to concede Kemper failed to inform
Graves of the plea offer. The Court cannot determine if
Kemper failed to convey the offer to Graves and thus provided
deficient performance unless there is an evidentiary hearing
at which Kemper and possibly Graves testify. However, the
Court need not inquire into whether defense counsel was
deficient if it finds Graves has failed to demonstrate
prejudice. Ramirez v. United States, 751 F.3d 604,
607 (8th Cir. 2014).
only evidence of prejudice put forth by Graves is his
self-serving statement that there was a reasonable
probability he would have accepted the plea offer. However, a
“self-serving statement, which does no more than open
the door for conjecture, is not enough.” United
States v. Watson, 766 F.3d 1219, 1226 (10th Cir. 2014).
Graves' entire argument in support of claim one consists
of two sentences. Graves conclusory statement that he would
have accepted the plea offer is refuted by the record.
has alleged Kemper failed to communicate a plea offer to him.
Kemper represented Graves from December 23, 2014, until May
19, 2015. See Doc. Nos. 8, 12, and 37. On January
15, 2015, the Government sent a proposed plea agreement to
Kemper. See Doc. Nos. 153-1 and 153-2. The proposed
plea agreement provided that Graves would plead guilty to
Counts One, Four, and Six. See Doc. No. 153-2,
¶ 7. Each count carried a mandatory minimum sentence of
15 years. 18 U.S.C. § 1591(b)(1). The proposed plea
agreement anticipated that Graves' total offense level
would be 37, which was not binding on the court. See
Doc. No. 153-2, ¶¶14 and 17. The Government agreed
to recommend a sentence within the applicable Guideline range
or the mandatory minimum (15 years). See Doc. No.
153-2, ¶ 19(a). Graves could recommend any sentence he
believed appropriate. See Doc. No. 153-2, ¶ 20.
The proposed ...