United States District Court, D. Minnesota
Lola Velazquez-Aguilu, Assistant U.S. Attorney, counsel for plaintiff.
Marcus Kwamena Benson, #14120-041, FCI Sandstone, pro se.
DAVID S. DOTY, District Judge.
This matter is before the court upon the pro se motion by defendant Marcus Kwamena Benson to vacate his sentence pursuant to 28 U.S.C. § 2255. Based on a review of the file, record and proceedings herein, and for the following reasons, the court denies the motion.
On September 15, 2008, Benson was indicted on twelve counts of access device fraud and aggravated identity theft. On October 2, 2008, Benson's counsel Arlene Perkkio filed several pretrial motions, including a motion to suppress evidence obtained during a search of Benson's home. See ECF No. 29. Benson thereafter sought a change of counsel and retained Arthur Martinez. ECF No. 45. Martinez withdrew all motions filed by Perkkio and requested a cancellation of the scheduled motions hearing. See ECF No. 51. Benson states that he was not informed of Martinez's withdrawal of the motions, and was instead told that the court had denied him a hearing on pretrial motions. Benson Decl. ¶ 38. Thereafter, a twenty-six count superseding indictment was filed on January 13, 2009, charging Benson with bank fraud conspiracy, bank fraud, access device fraud, aggravated identity theft, possession of document-making implements, possession of unauthorized access devices and possession of device-making equipment. ECF No. 66.
On February 27, 2009, a jury convicted Benson on all twenty-six counts. ECF No. 90. The court granted Martinez's motion to withdraw as counsel on March 11, 2009. ECF No. 93. Benson absconded from post-trial supervision before sentencing. Benson was eventually arrested in Ghana, extradited to Minnesota and transferred to federal custody. On February 3, 2012, Benson was sentenced to a total term of imprisonment of 144 months and ordered to pay $264, 857.14 in restitution. ECF No. 135. Benson appealed, arguing that his sentence was unreasonable. On January 10, 2013, the Eighth Circuit Court of Appeals affirmed the sentence. United States v. Benson, 496 F.Appx. 688, 689 (8th Cir. 2013) (per curiam).
On July 18, 2013, Benson filed the present § 2255 motion, claiming ineffective assistance of trial counsel. The government timely responded.
Section 2255 provides a person in federal custody a limited opportunity to challenge the constitutionality, legality or jurisdictional basis of a sentence imposed by the court. 28 U.S.C. § 2255; see United States v. Addonizio, 442 U.S. 178, 185 (1979); Embrey v. Hershberger, 131 F.3d 739, 740 (8th Cir. 1997). Such collateral relief is an extraordinary remedy. Bousley v. United States, 523 U.S. 614, 621 (1998). "Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and, if uncorrected, would result in a complete miscarriage of justice." United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996) (citation omitted). "A § 2255 motion 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." Sanders v. United States, 341 F.3d 720, 722 (8th Cir. 2003) (citation and internal quotation marks omitted).
To prevail on a § 2255 motion based on ineffective assistance of counsel, Benson must meet both prongs of the test set forth in Strickland v. Washington, 466 U.S. 668, 694 (1984). See United States v. Williams, 562 F.3d 938, 941 (8th Cir. 2009). First, Benson must show that his counsel's performance was so deficient that it was objectively unreasonable. See Strickland, 466 U.S. at 687. Because "[t]here are countless ways to provide effective assistance in any given case" and different attorneys "would not defend a particular client in the same way, " the court reviews the performance of defense counsel with significant deference. Id. at 689-90 (citation omitted). There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689 (citation omitted). Second, Benson must also demonstrate prejudice by showing "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.
Benson argues that his attorney provided ineffective assistance by (1) withdrawing the suppression motion, (2) failing to advise him of the elements and penalties of the crimes charged and (3) failing to prepare adequately for trial.
I. Withdrawal of Suppression Motion
Benson first argues that Martinez's withdrawal of the suppression motion previously filed by Perkkio constituted ineffective assistance. The motion sought to suppress evidence obtained from a search of Benson's home and argued that "any search warrant... [lacked] probable cause" or, alternatively, that the search was executed without a warrant, consent or exigent circumstances. ECF No. 29, at 1. Benson's wife, however, explicitly consented to the search at issue. See ECF No. 185, Ex. 2. Nothing in the record suggests that Benson's wife was coerced into providing consent, and Benson's self-serving statements to that effect do not establish a basis for relief. See United States v. Apfel, 97 F.3d 1074, 1077 (8th Cir. 1996). As a result, the withdrawn suppression motion was not meritorious. See United States v. Eldridge, 984 F.2d 943, 948 (8th Cir. 1993) ("[C]onsent to a search may be ...