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United States v. Graves

United States District Court, D. North Dakota

February 11, 2019

United States of America, Plaintiff,
Keith A. Graves, Defendant. Keith A. Graves, Petitioner,
United States of America, Respondent.


          Daniel L. Hovland, Chief Judge

         Before 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 denied.

         I. BACKGROUND

         Graves 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 The indictment was superseded three times.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.

         Graves 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. No. 37.

         Over 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.

         After a 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.

         With 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. 2017).

         On May 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.


         “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.


         The 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.

         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). An increased prison term may constitute prejudice under the Strickland standard. Glover v. United States, 531 U.S. 198, 203 (2001).

         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. 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).

         In 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.

         A. CLAIM ONE

         In his 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.

         Defense 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).

         The 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).

         The 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.

         Graves 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, ΒΆ 20. The proposed ...

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