United States of America v. Salazar et al

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
DANIEL RAY GRAYSON, 	)
)
)
Petitioner, 	)
)
vs. 	) 	Case No. CIV-08-349-JHP
)
UNITED STATES OF AMERICA, 	)
)
Respondent. 	)
ORDER
This is a proceeding initiated by the above named Petitioner who is currently
an inmate at the Federal Correctional Institution in Yazoo City, Mississippi. 	This
action was initiated pursuant to the provisions of 28 U.S.C. § 2255. 	Petitioner
contends that his detention pursuant to the Judgment and Sentence of the United
States District Court for the Eastern District of Oklahoma, in Case No. CR-06-15-JHP
is unlawful.
The Respondent filed a response by and through the United States Attorney for
the Eastern District of Oklahoma. The Court conducted a hearing on June 3, 2009, at
which 	Petitioner was represented by appointed counsel, Terry L. Weber and
Respondent was represented by AUSA, Eric O. Johnston. Additionally, the Court has
reviewed the relevant trial court records associated with Case No. CR-06-15-JHP, as
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well as the affidavits of 	Petitioner’s counsel, 	and the Assistant United States
Attorney, attached as Exhibits 1 and 2 to the Government’s Response. The records
reflect an indictment was filed on February 15, 2006, charging Petitioner and his co-
defendants with Conspiracy to Possess with Intent to Distribute Methamphetamine,
Marijuana, and Cocaine Powder in violation of Title 21, United States Code, Section
846, in the Eastern District of Oklahoma.
After a two day trial, a jury convicted the Petitioner on October 4, 2006. The
court sentenced Petitioner to 360 months imprisonment on January 19, 2007, and
entered its judgment on January 25, 2007.
Petitioner appealed his conviction and sentence. 	Petitioner challenged the
Court’s admission of a photograph, sufficiency of the evidence, and refusal to
downward depart on his sentence. The Tenth Circuit Court of Appeals found no error
and affirmed Petitioner’s conviction and sentence. United States v. Grayson, 258 Fed.
Appx. 170 (10 th Cir.0, cert. denied, 126 S.Ct. 1725 (2008).
On September 25, 2008, Petitioner filed a motion pursuant to Title 28, United
States Code, §2255. Petitioner argues his trial attorney was ineffective because he
did not convey a plea offer made by the prosecution, failed to make an objection at
sentencing regarding Jencks material, and, as a result, did not press a claim regarding
the sentencing Jencks objection on appeal.
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Petitioner’s claim of ineffective assistance of counsel is governed by the
familiar two-part test announced in Strickland v. Washington, 466 U.S. 668, 688-89
(1984). 	Specifically, Petitioner must demonstrate that (1) the representation was
deficient because it fell below an objective standard of reasonableness under
prevailing professional norms; and (2) the deficient performance prejudiced the
defense. Id. at 667. Failure to establish either prong of the Strickland standard will
result in a denial of Petitioner’s Sixth Amendment claims. Id. at 696. While ensuring
that criminal defendants receive a fair trial, considerable judicial restraint must be
exercised. As the Supreme Court cautioned in Strickland,
Judicial scrutiny of counsel’s performance must 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 to 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.
Id. at 689. 	In addition, the Court indicated the conduct of counsel is “strongly
presumed” to have been within the wide range of reasonable professional assistance.
Id.
The Tenth Circuit has indicated before representation will be considered
ineffective, it must have made the trial “a mockery, sham, or farce, or resulted in the
deprivation of constitutional rights.” Dever v. Kansas State Penitentiary, 36 F.3d
1531, 1537 (10th Cir. 1994); see also Hoxsie v. Kerby, 108 F.3d 1239, 1246 (10th
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Cir. 1997) (holding counsel’s performance must have been “completely unreasonable,
not merely wrong,” to be constitutionally ineffective). This Court “may address the
performance and prejudice components in any order, but need not address both if
[petitioner] fails to make a sufficient showing of one.” 	Foster v. Ward, 182 F.3d
1177, 1184 (10th Cir. 1999).
The record reveals Petitioner’s counsel made no errors warranting reversal.
United States v. Cox, 934 F.2d 1114, 1123 (10 th Cir. 1991). Petitioner provides no
facts or other evidence to support his claim that his counsel was ineffective for failing
to advise him of a plea offer made by the United States Attorney. Further, Petitioner
does not support his contention that counsel failed to discuss a reduction for
acceptance of responsibility. Petitioner’s statements are nothing more than conclusory
arguments, without supporting factual basis, and are insufficient to support this
ineffective assistance of counsel claim. United States v. Fisher, 38 F.3d 1144, 1147
(10 th Cir. 1994).
Further, counsel testified at the hearing held on June 3, 2009, and states in his
affidavit that he advised Petitioner of the Government’s plea offer on the day he
received it, September 28, 2008. Counsel testified he discussed the contents of the
letter describing the plea and the benefits of entering a plea to the single count of
possession of cocaine with intent to distribute with Petitioner. Counsel met with the
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Petitioner eight times prior to trial. Counsel states that he explained the principle of
relevant conduct and its effect on sentencing from the time he was appointed through
sentencing. He also testified he discussed with Petitioner the benefit of entering a plea
of guilty. Counsel testified the severe consequences that would be incurred from an
adverse jury verdict were discussed at length during his representation.
Therefore, the deficiencies complained of do not rise to the level of ineffective
assistance of counsel during the pre-trial stage as set forth in Strickland.
Petitioner also argues counsel was ineffective for failing to make a Jencks
motion or objection when DEA Special Agent Garth Hamelin testified at sentencing.
He further contends his attorney was ineffective because his inaction at trial waived
the Jencks issue at the appellate level.
Counsel was not ineffective regarding a Jencks issue at sentencing because
there was no Jencks issue at sentencing. 	Assistant United States Attorney Rob
Wallace called Special DEA Agent Garth Hamelin to testify at the sentencing hearing
in response to Petitioner’s request for downward departure. 	Petitioner alleges his
counsel was ineffective for failing to object to the testimony for failure to provide
Jencks material regarding Hamelin after he testified. However, there was no Jencks
material to request or to object to. Assistant United States Attorney Rob Wallace also
testified at the hearing conducted on June 3, 2009, and states in the attached affidavit
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that all discoverable materials prepared by DEA Special Agent Garth Hamelin were
provided to Petitioner’s counsel as part of the discovery in the case. AUSA Wallace
further states that Hamelin did not testify before the grand jury and a transcript of his
grand jury testimony was turned over in discovery. Since there was no Jencks material
that should have been produced, counsel could not have been ineffective for failing
to object to its non-production.
Accordingly, for the reasons stated herein, Petitioner’s Motion to Vacate,
pursuant to 28 U.S.C. § 2255, is hereby denied.
IT IS SO ORDERED this 6th day of July, 2009.
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