The opinion of the court was delivered by: Joan N. Ericksen United States District Judge
This matter is before the Court on Defendant David Dixon's pro se motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Dixon raises claims of prosecutorial misconduct and ineffective assistance of counsel. For the following reasons, the Court denies Dixon's motion without an evidentiary hearing.
A jury convicted Dixon on June 3, 2010, on one count of aiding and abetting bank robbery in violation of 18 U.S.C. §§ 2, 2113(a). On November 22, 2010, the Court sentenced Dixon to 220 months' imprisonment. Dixon appealed his conviction and sentence, and the Eighth Circuit affirmed on August 15, 2011. United States v. Dixon, 650 F.3d 1080 (8th Cir. 2011). Dixon filed the present motion for post-conviction relief on August 3, 2012 and supplemented his motion on November 01, 2012.*fn1
A prisoner whose "sentence was imposed in violation of the Constitution or laws of the United States" may under 28 U.S.C. § 2255 "move the court which imposed the sentence to vacate, set aside, or correct the sentence." "A prisoner is entitled to an evidentiary hearing on a section 2255 motion unless the motion, files and records of the case conclusively show that the prisoner is not entitled to relief." Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995). "Accordingly, a petition can be dismissed without a hearing if (1) the petitioner's allegations, accepted as true, would not entitle the petitioner to relief, or (2) the allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact." Id. The Court will first address Dixon's claim of prosecutorial misconduct and then will discuss Dixon's multiple claims of ineffective assistance of counsel.
Dixon argues that the prosecutor committed "prosecutorial misconduct by withholding the Grand Jury testimony of government witness Lt. Michael Fossum from the defense in a possible Brady violation." (Dkt. 120 at 15.) However, Dixon could have raised this issue on direct appeal and failed to do so. "[A] claim unraised on direct appeal is procedurally defaulted unless a petitioner can demonstrate (1) cause for the default and actual prejudice or (2) actual innocence." United States v. Moss, 252 F.3d 993, 1001 (8th Cir. 2001). Dixon has not alleged or shown cause for his default, so his prosecutorial misconduct claim is procedurally defaulted.
Even if this Court were to consider Dixon's argument, the Court would reject it. "To establish a Brady violation, a defendant is required to show that: (1) the prosecution suppressed evidence; (2) the evidence was favorable to the defendant; and (3) the evidence was material."
United States v. Tate, 633 F.3d 624, 630 (8th Cir. 2011) (quotation omitted). Here, the record shows that the government did not suppress Fossum's grand jury testimony. The government submitted an affidavit from the prosecutor where he swore that he provided the transcript of Fossum's grand jury testimony to the defense on May 27, 2010-several days before trial-and attached to that affidavit is a cover letter dated May 27, 2010, from the prosecutor to defense counsel stating that the grand jury testimony of Fossum was enclosed. The record shows that the government disclosed Fossum's grand jury testimony to defense counsel prior to trial.
B.Ineffective Assistance of Counsel
In § 2255 motion, a prisoner may raise an ineffective assistance of counsel claim. See Massaro v. United States, 538 U.S. 500, 504 (2003). When a court is analyzing such a claim, it "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Johnson v. United States, 278 F.3d 839, 842 (8th Cir. 2002) (quotation omitted). "To succeed on a claim of ineffective assistance of trial counsel, a defendant must prove 1) his attorney's performance was so deficient as to fall outside the range of reasonable professional assistance, and 2) he suffered such prejudice stemming from the deficient performance there is a reasonable probability the proceeding would have had a different result." Morelos v. United States, 2013 WL 978218, at *2, ___ F.3d ___, ___ (8th Cir. 2013). "Failure to establish either prong is fatal to a claim of ineffective assistance." Id. "We generally entrust . . . matters of trial strategy to the professional discretion of counsel." Id. (quotation omitted).
Dixon argues that his counsel was ineffective in his cross-examination of two witnesses: Fossum and Officer Dean Roth. As for Fossum, Dixon asserts that his counsel was ineffective for failing "to point out that the conflicting testimony that Lt. Michael Fossum gave at the Grand Jury differed materially from the testimony" at the trial. (Dkt. 120 at 7.) In Fossum's grand jury testimony, Fossum testified that Dixon's co-defendant, in a post-arrest interview, said that Dixon had written the demand note used in the bank robbery. During cross-examination at trial, however, Fossum testified that in the post-arrest interview, the co-defendant did not identify by name the person who wrote the demand note. The Court cannot conclude that Dixon's counsel's cross-examination of Fossum was constitutionally deficient. Fossum's grand jury testimony was more incriminating to Dixon than Fossum's testimony at trial, and Dixon's counsel did not fall below the minimum standards of professional competence when he did not focus on the more incriminating grand jury testimony. As for Roth, Dixon also asserts that his counsel was ineffective when he failed to cross-examine Roth about allegedly false testimony at trial. But Dixon's claim that Roth's testimony was false rings hollow. At trial Roth testified that he searched Dixon prior to Dixon's post-arrest interview and found a notebook on Dixon. Dixon asserts that during his post-arrest interview he told his interviewers (Roth was not one of them) that the notebook was on a chair outside the interview room. At trial Roth testified that he concluded that the demand note seemed to come from the notebook, and Dixon asserts that he told his interviewers that the demand note was from the notebook. Roth's testimony is not inconsistent with Dixon's assertions about what he told his interviewers. Consequently, the Court rejects Dixon's claim that his counsel was ineffective in the cross-examination of Roth.
Dixon also argues that his counsel was ineffective by informing him that the handwriting expert, Karen Runyon, was a good friend and worked for the Federal Defender's office. Prior to trial, the government retained Runyon to determine who wrote the demand note. Runyon requested a writing exemplar from Dixon, and Dixon's counsel agreed that Dixon would give the exemplar voluntarily and without a court order. Dixon argues that he was harmed because his counsel failed to inform him that he could refuse to participate in a writing exemplar and because his counsel assisted the government. But Dixon has failed to show prejudice. The government submitted the affidavit of the prosecutor, where the prosecutor asserts that if Dixon had not agreed to provide the exemplar voluntarily, the prosecutor would have sought a court order. A court may require a defendant to provide a handwriting exemplar. See United States v. McDougal, 137 F.3d 547, 559 (8th Cir. 1998) ("Requiring a defendant to give a ...