Ferguson v. United States

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
DANNY FERGUSON,
Petitioner 5:21-cv-5043
vs. MEMORANDUM
AND ORDER
UNITED STATES OF AMERICA,
Respondent
Pending before the Court is Petitioner's motion pursuant to 28 U.S.C. §
2255 (Doc. 1). The Government has moved to dismiss(Doc. 18, 19).
I. Background
Petitioner was convicted by a jury of arson, 18 U.S.C. §§81 and 1153. He
was sentenced to time served and a period of supervised release. The situation
giving rise to the conviction occurred on April 8, 2015, when a neighbor of
Petitioner's smelled smoke at her trailer. She and her son had glimpsed Petitioner
ride past their window shortly before, and testified he was the person who stuffed a
blanket under the outside of the trailer before they saw flames erupt. Petitioner
raised an alibi defense, which was testified to by his wife, mother, and other
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relatives. There was evidence ofPetitioner's prior head injury and of his
intellectual functioning.
Following the guilty verdict, Petitioner moved for a Judgment of Acquittal
and for New Trial, which were denied. United States v. Ferguson, 2018 WL
6308692(D.S.D. 2018). After denial of his motion. Petitioner was sentenced on
April 1, 2019, to time served (19 months) and three years of supervised release.
Petitioner appealed, focusing on the circumstances of his making statements to FBI
agents and a polygraph examination. United States v. Ferguson,970 F.Sd 895,
900-02(8th Cir. 2020). Petitioner also challenged the sufficiency ofthe evidence.
Id., at 902-03. The Eighth Circuit denied relief. It determined Petitioner was not
in custody when he made statements to the FBI agents and his intellectual
functioning did not render his statements involuntary. Id. at 901-02. The court
held the evidence was sufficient to prove the elements, considering Petitioner's
statements, the eyewitness testimony, testimony in support ofthe alibi, testimony
concerning credibility of witnesses for the prosecution and defense, and the court's
instructions to the jury on how to evaluate witness testimony. Id. at 903.
In this Court, Petitioner alleges three grounds in support of his § 2255
motion. First, he alleges counsel was ineffective at trial in not presenting all
available evidence of his alibi.(Doc. 1, PgID 2). He alleges counsel was
ineffective in not presenting evidence of his "mental incompetence." (Id., PgID 3).
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Finally, he alleges he was deprived of a fair trial because all available evidence of
his presence elsewhere than at the scene ofthe fire was not presented. (Id.)
II. Legal Standard
A. Motion pursuant to 28 U.S.C. § 2255
In accordance with 28 U.S.C. § 2255,"[a] prisoner in custody under sentence
... 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, or that the court was
without jurisdiction to impose such sentence ... or is otherwise subject to collateral
attack, may move the court which imposed the sentence to vacate, set aside or correct
the sentence." Id. § 2255(a). See Raymond v. United States, 933 F.3d 988,991 (8th
Cir. 2019)(§ 2255 may provide relieffor jurisdictional error, constitutional error, or
error oflaw). If an error of law constitutes a "fundamental defect which inherently
results in a complete miscarriage ofjustice," the court may grant relief. Sun Bear v.
United States, 644 F.3d 700, 704(8th Cir. 2011).
Because Petitioner's term of supervised release expired on March 31, 2022,
his case raises the question whether relief under § 2255 is authorized. The
Government presents the option of dismissal based on mootness because Petitioner
is no longer in custody, as required by § 2255. (Doc. 19, PgID 47). The Supreme
Court has held that federal courts are "without power to decide questions that
cannot affect the rights of litigants in the case before them." North Carolina v.
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Rice, 404 U.S. 244, 246(1971)(per curiam). Courts have recognized, however,
that a presumption arises that a wrongful conviction carries "collateral
consequences sufficient to create an Article III case or controversy." Beachem v.
Schriro, 141 F.3d 1292, 1293 (8th Cir. 1998)(citing Sibron v. New York, 392 U.S.
40, 55-56 (1968)). That is the case even with respect to "collateral consequences
that are remote and unlikely to occur." Beachem, 141 F.3d at 1293 (citing Spencer
V. Kemna,523 U.S. 1, 8 (1998)).
Petitioner filed his § 2255 Motion on July 23, 2021. He was under
supervised release at that time and continued to be so until March 31, 2022.
Therefore, he was "in custody" for purposes of § 2255 at the time he filed. See
United States v. O Berry, 2012 WL 2768430,*1 (D.N.D. 2012)(citing Jones v.
Cunningham, 371 U.S. 236(1963)(parolee is in custody); Matus-Leva v. United
States, 287 F.3d 758(9th Cir. 2002)(supervised release is custody for purposes of
§ 2255); United States v. Brown, 117 F.3d 471,475 (11th Cir. 1997)(same)). See
also United States v. Bernard, 351 F.3d 360, 361 (8th Cir. 2003)(person obliged to
only pay restitution is not in custody). Furthermore, Petitioner does not challenge
his sentence; he challenges his conviction as wrongful. Because Petitioner may
suffer collateral consequences from his conviction, the Court determines his
motion is not moot and proceeds to resolve it on the merits.
B. Motion to Dismiss—^F.R.C.P. 12(b)(6)
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The Government has moved to dismiss Ferguson's motion under F.R.C.P.
12(b)(6). (Doc. 18). The standard governing dismissal of a motion to dismiss was
set forth in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) as follows: "To survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted as
true, to 'state a claim to relief that is plausible on its face'"(quoting Bell Atlantic v.
Twombly, 550 U.S. 544, 570 (2007)). See Spagna v. Phi Kappa Psi, Inc., 30 F.4th
710, 715 (8th Cir. 2022)(dismissal proper where factual allegations failed to state a
plausible claim for relief and amounted to only a possibility that relief was
warranted); Faulk v. City ofSt. Louis, 30 F.4th 739, 744 (8th Cir. 2022)(quoting
Iqbal standard and reversing denial of motion to dismiss).
C. Ineffective Assistance of Counsel
Ineffective assistance of counsel serves as part of the basis for Petitioner's §
2255 motion, thus invoking the two-part standard set forth in Strickland v.
Washington, 466 U.S. 668 (1984). First, petitioner must establish that counsel's
performance was "deficient," meaning it "fell below an objective standard of
reasonableness." Id. at 687-88. A mere assertion of ineffectiveness is insufficient.
Rather the movant must show that "counsel made errors so serious that counsel was
not functioning as the 'counsel' guaranteed the defendant by the Sixth
Amendment." Id. See also Collins v. United States, 28 F.4th 903, 906 (8th Cir.
2022). The court presumes counsel's representation was reasonable. Thomas v.
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United States, 737 F.3d 1202, 1207 (8th Cir. 2013). This means the court "must
indulge a strong presumption that counsel's conduct [fell] within the wide range of
reasonable professional assistance" to which a criminal defendant is entitled. Meza-
Lopez V. United States, 929 F.3d 1041, 1044(8th Cir. 2019)(quoting Strickland, 466
U.S. at 689). Counsel's performance is evaluated on the facts of the case,"viewed
at the time of counsel's conduct." Strickland, 466 U.S. at 690. See also Adejuma v.
United States, 908 F.3d 357, 361 (8th Cir. 2018)(risk to defendant from his perjury
apparent only in hindsight); Johnson v. United States, 278 F.3d 839, 842 (8th Cir.
2002)(cautioning against "second guessing").
A petitioner has a second burden to address when alleging ineffective
assistance of counsel. As Strickland held, the individual "must show that the
deficient performance prejudiced the defense." 466 U.S. at 687. In practice, this
means the individual must establish "that there is a reasonable probability that, but
for counsel's unprofessional errors, the result of the proceeding would have been
different." Allen v. United States, 854 F.3d 428, 432 (8th Cir. 2017) (quoting
Strickland, 466 U.S. at 694). See also Theus v. United States,611 F.3d 441,446(8th
Cir. 2010).
Strategic decisions by counsel are "virtually unchallengeable" unless they
resulted fi*om inadequate investigation. Strickland, 466 U.S. at 690. See also
Meza-Lopez v. United States, 929 F.3d 1041, 1044-45 (8th Cir. 2019); Chavez-
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Cruz V. United States, 2018 WL 2383156, *2(D. S.D. 2018); Pippenger v. United
States, 2012 WL 3206244, *1 (D. S.D. 2012).
The Strickland standard applies not only to trial, but to the first appeal as of
right. Evitts v. Lucey,469 U.S. 387, 396-97(1985); Pippenger, 2012 WL
3206244, *1.
11. Petitioner's Claims
Ground 1— Petitioner alleges ineffective assistance of counsel in that
counsel did not introduce evidence "that was provided to him prior to trial" in
support ofPetitioner's alibi which would have shown that he "could not have been
present at the time that the arson was allegedly committed."(Doc. 1, PgID 2).
Petitioner does not specify what this evidence was. According to defense
counsel's affidavit, one piece of evidence Petitioner apparently is referring to is a
receipt from a store, which Petitioner says he gave defense counsel early in the
case. (Doc. 13,PgID 25). The second is that Petitioner gave defense counsel the
name of a police officer Petitioner claims to have conversed with during the time
the arson was committed. (Id.). Defense counsel responded that he had no
recollection of ever having received a receipt from Petitioner. (Doc. 13,PgID 25).
He also asserted that Petitioner gave him the name ofthe police officer after trial.
(Id.). By that point, trial was concluded, counsel had presented extensive
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testimony in support of the alibi, and there was no proof ofthe conversation
available.(Id.).
In support ofPetitioner's alibi defense at trial, three witnesses were called
by the defense, including Petitioner's wife, mother, and a cousin. Their testimony
was that Petitioner was with them at the time ofthe fire and could not have been
the perpetrator. Ferguson, 2018 WL 6308692, *8. The witnesses were impeached
based partly on inconsistencies and partly on evidence of bias. Id. Other evidence
to support the alibi witnesses' account also was presented. Id. The eyewitnesses
to the arson were cross-examined by the defense, and their animosity toward
Petitioner was highlighted, as was pertinent character evidence pertaining to one of
them. Id.
In counsel's response to Petitioner's Motion, he avers that any additional
evidence of the alibi would have been duplicative.(Doc. 13,PgID 25). This court
agrees. Both a store receipt and conversation would have occurred in the town of
Kyle, approximately six miles from the location ofthe arson. There is nothing to
establish that Petitioner could not have been in both locations during the course of
the late afternoon when the arson occurred. Furthermore, counsel cannot introduce
evidence of which he is unaware at the time of trial.
Petitioner has failed to establish that counsel's performance in presenting the
evidence of alibi was deficient under the Strickland standard. Counsel called the
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witnesses who could provide details oftheir contact with Petitioner. Counsel
cross-examined the eyewitnesses to the arson to endeavor to establish they could
not identify Petitioner as the perpetrator. As the Eighth Circuit determined, the
jury was the judge ofthe credibility ofthe witnesses and there was sufficient
evidence to support its guilty verdict. 970 F. 3d at 903.
Petitioner's motion for relief under § 2255 on Ground 1 is denied as no
ineffective assistance of counsel has been shown.
Ground 2- Petitioner alleges ineffective assistance of counsel in that
counsel "did not present evidence of my mental incompetence to be convicted of
the charge of arson."(Doc. 1, PgID 3). Counsel was aware that Petitioner had
experienced a head injury several years before trial and that Petitioner had some
problems with intellectual fimctioning. (Doc 13, PgID 25). In preparation for trial,
counsel requested a psychiatric evaluation.(5:15-cr-50082, Doc. 32). The trial
court held a competency hearing. (Id., Doc. 50). The court was provided the
report firom the psychologist who had conducted the examination of Petitioner and
had concluded he was competent to stand trial and assist in his defense. (Id., Doc.
35). The court held that Petitioner was competent in that he understood the nature
ofthe proceedings and was able to assist in his defense. (Id., Doc. 50).
At trial, counsel called a psychologist to testify about Petitioner's intellectual
functioning from an early age.(5:15-50082, Doc. 135,PgID 874). The
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psychologist discussed Petitioner's head injury from the year 2000,(id.), and
highlighted his memory problems. The psychologist discussed the results of his
ovm testing and prior testing of Petitioner,(id., PgID 876-78), and Petitioner's
functioning in certain respects at a fifth or sixth grade level.(Id., 877). The
psychologist's testimony was a significant part ofthe defense case.(Id., PgID 872-
95). As defense counsel noted in his affidavit, the psychologist did not determine
Petitioner was "incompetent," and therefore could not have presented such
testimony.(Doc 13,PgID 25). On the contrary, the testimony was that Petitioner
was competent and counsel pursued the case with that understanding.
Petitioner has failed to establish that defense counsel's performance with
respect to the mental competence issue was deficient under Strickland. Further
there is no evidence Petitioner was prejudiced under the Strickland standard.
Petitioner's motion for relief pursuant to § 2255 on Ground 2 is denied as no
ineffective assistance of counsel has been shown.
Ground 3—^Petitioner alleges he was deprived of a fair trial "by the absence
of available evidence being presented showing that I was at other places at the time
that the [sic] any arson was committed and could not have committed the crime of
arson." (Doc. 1, PgID 3).
In Ground 1 the Court has addressed the use of alibi evidence at Petitioner's
trial and determined counsel was not ineffective in not introducing the additional
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evidence Petitioner has asserted should have been introduced. The Eighth Circuit
considered Petitioner's claim a judgment of acquittal should have been entered and
denied relief. 970 F. 3d at 903. In doing so, it canvassed the evidence introduced
at trial including Petitioner's statements of culpability and remorse and the alibi
witness testimony. In the court's view, the evidence was sufficient to convict. In
discussing the evidence of alibi, the court commented that the jury, after proper
instructions from the trial judge, chose to credit the eyewitness testimony rather
than the Petitioner's alibi witnesses' testimony. The jury had the prerogative to do
so.
Like the Eighth Circuit, this Court recognizes that the jury believed the
eyewitnesses rather than the alibi witnesses and had the option to do so. The Court
discerns no evidence that leads to the conclusion Petitioner was deprived of a fair
trial.
Petitioner's § 2255 motion pursuant to Ground 3 is denied.
III. Evidentiary Hearing and Certificate of Appealability
If the motion, files, and records of the case conclusively establish that the
petitioner is not entitled to relief, the court can dispense with an evidentiary
hearing. See Garcia v. United States, 679 F.3d 1013,1014 (8th Cir. 2012). There is
no need for an evidentiary hearing in this case because it is clear from the record that
Petitioner's claims do not warrant relief under 28 U.S.C. § 2255. Walker, 810 F.3d
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at 580(affirming denial ofevidentiary hearing where no further factual development
needed).
When the district court has denied a motion under 28 U.S.C. § 2255, the
Petitioner may not appeal without a certificate of appealability. Such a certificate
may issue "only if the applicant has made a substantial showing of the denial of a
constitutional right." 28 U.S.C. § 2253(c)(2). A "substantial showing" under this
section is a showing that"reasonablejurists would find the district court's assessment
of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473,
484 (2000). A "substantial showing" is made if "a court could resolve the issues
differently, or the issues deserve further proceedings." Cox v. Norris, 133 F.3d 565,
569(8th Cir.1997). Petitioner has not made a substantial showing ofthe denial of a
constitutional right and the certificate of appealability will not issue.
CONCLUSION
Petitioner's claims of ineffective assistance of counsel and denial of a fair
trial lack merit. His evidence of alibi and decreased intellectual functioning were
presented to the jury, which nevertheless found him guilty of arson. Therefore, he
is not entitled to relief under 28 U.S.C. § 2255 and his motion for relief(Doc. 1)is
denied. The Government's motion to dismiss(Doc. 18)is granted.
Accordingly,IT IS ORDERED that Petitioner's motion for relief pursuant to
28 U.S.C. § 2255 is denied and the Government's motion to dismiss is granted.
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Dated this day of October, 2022.
BY THE COURT:
.awrence L. Piersol
United States District Judge
ATTEST:
MATTHEW W.THELEN,CLERK
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