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United States v. Spight

United States District Court, D. Minnesota

March 6, 2017

United States of America, Respondent-Plaintiff,
v.
Jamillo Donte Spight, Petitioner-Defendant. Civil No. 16-2459 (DWF)

          MEMORANDUM OPINION AND ORDER

          DONOVAN W. FRANK United States District Judge

         INTRODUCTION

         This matter is before the Court on Petitioner-Defendant Jamillo Donte Spight's (“Petitioner-Defendant”) motion pursuant to 28 U.S.C. § 2255 (Doc. No. 119) in which he alleges that his trial counsel was ineffective because: (1) he did not present DNA evidence in the case connecting him to the firearm in question; and (2) he did not pursue gunshot-residue testing. The Petitioner-Defendant also alleges that his appellate counsel was ineffective because appellate counsel: (1) failed to pursue a Johnson challenge[1] to his sentencing pursuant to the Armed Career Criminal Act (“ACCA”);[2] (2) failed to “establish the proper merits” for his Brady claim and his interstate-nexus claim; and (3) failed to petition for a rehearing en banc before the Eighth Circuit Court of Appeals. The United States (“the Government”) opposes the Petitioner-Defendant's motion. (Doc. No. 121.) For the reasons that the Court discusses below, the Court denies the Petitioner-Defendant's motion.

         BACKGROUND

         A grand jury indicted the Petitioner-Defendant for being an Armed Career Criminal in Possession of a Firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e) following his arrest for possession of a firearm at Johnny Baby's, a neighborhood bar in St. Paul, Minnesota. (Doc. No. 18.) The Petitioner-Defendant waived his right to a jury trial, and the case proceeded as a one-day trial before this Court on January 27, 2014.

         The Government called the following witnesses: Eric Wasson and Anika Davis, two security guards who worked at Johnny Baby's the night that the Petitioner-Defendant brought the gun to the bar; Jonathan Price, the owner of Johnny Baby's; Robert Bisson, the St. Paul police officer who took the Petitioner-Defendant into custody and transported him to jail; and Martin Robert Siebenaler, a Special Agent with the Bureau of Alcohol, Tobacco, Firearms & Explosives (“ATF”).

         Wasson testified that he approached the Defendant, had a three- or four-minute conversation with him, after which the Petitioner-Defendant “mumbled something” and walked out of the bar. (Doc. No. 68, Finding of Fact ¶ 11.) Subsequently, the Petitioner-Defendant returned to the bar with a pistol in his hand. Seeing the gun, Wasson grabbed it. In the ensuing struggle, the gun discharged twice. (Doc. No. 68, Finding of Fact ¶ 12.)

         Surveillance video from Johnny Baby's confirmed Wasson's testimony. Indeed, Wasson's positive identification of the Petitioner-Defendant was consistent with all evidence in the case. Anika Davis, another security guard at Johnny Baby's, also observed the Petitioner-Defendant with a gun wrapped in what she believed to be boxer shorts. (Doc. No. 68, Finding of Fact ¶ 14.) ATF Special Agent Martin Robert Siebenaler testified that the gun in question was a firearm as defined under 18 U.S.C. § 921(a)(3), that it was manufactured in Connecticut, and that the gun therefore traveled in interstate commerce before the Petitioner-Defendant possessed it. (Doc. No. 68, Finding of Fact ¶ 17.)

         The Court also concluded that, based upon the evidence at trial, the Petitioner-Defendant had five prior felonies as follows:

OFFENSE

DATE OF OFFENSE

DATE OF CONVICTION

JURISDICTION

Terroristic Threats

May 19, 2012

October 11, 2012

Ramsey County, Minnesota

Sale of Narcotics Third Degree

June 4, 2009

September 28, 2009

Ramsey County, Minnesota

Aggravated Robbery

March 2, 2002

June 27, 2002

Ramsey County, Minnesota

Sale of Narcotics Third Degree

October 25, 2001

February 19, 2002

Ramsey County, Minnesota

Auto Theft

October 17, 2001

February 19, 2002

Ramsey County, Minnesota

(See Doc. Nos. 18 & 68, Finding of Fact ¶ 18.)

         The parties stipulated that on or prior to September 21, 2013, the Petitioner-Defendant was prohibited by law from possessing a firearm because he had been convicted of a crime punishable by imprisonment for a term exceeding one year. (See Government's Trial Exhibit 35.) On January 6, 2014, the Court concluded that the Petitioner-Defendant was an armed career criminal in possession of a firearm and sentenced him to 212 months.

         As the Government observed, the Petitioner-Defendant complained at the time of his sentencing about: (1) his trial counsel's decision not to offer DNA evidence at trial;[3]and (2) his trial counsel's decision not to pursue gunshot residue testing. (Sentencing Tr. at 36-39.) Significantly, the Court, at that time, responded to the Petitioner-Defendant by stating that its verdict in the case would not have been different even with the disputed evidence. (Sentencing Tr. at 49-50.)

         The Petitioner-Defendant filed an appeal to the Eighth Circuit and raised the following issues: (1) sufficiency of the evidence; (2) whether this Court erred in admitting the testimony of an ATF interstate-nexus expert; (3) whether the Defendant's trial counsel was ineffective for making an evidentiary stipulation and allegedly not adequately investigating the case; and (4) whether the Government failed to disclose exculpatory evidence during discovery. See United States v. Spight, 817 F.3d 1099, 1100-01 (8th Cir. 2016). The Eighth Circuit Court of Appeals declined to consider the Defendant's claim for ineffective assistance of counsel and affirmed the Court on all other issues raised by the Defendant.

         DISCUSSION

         The United States Constitution guarantees that the accused “shall enjoy the right . . . to have the Assistance of Counsel” in criminal prosecutions. U.S. Const. amend. VI. To prevail on a claim for ineffective assistance of counsel under § 2255, however, a defendant must overcome a “heavy burden.” United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996). To overcome that burden, a defendant must first “show that counsel's performance was deficient.” Strickland v. Washington, 466 U.S. 668, 687 (1984). The deficiency must be “so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Id. Second, the defendant must establish that the deficient performance actually prejudiced the defense. Id.

         To establish that there was a deficient performance, the defendant must show that the errors were not the result of “reasonable professional judgment.” Id. at 690. There is a strong presumption “that counsel . . . rendered adequate assistance.” Id. A defendant must prove, then, with “a probability sufficient to undermine confidence in the outcome, ” that “but for the counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694.

         I. Ineffective Assistance Allegations of the Petitioner-Defendant's Trial Counsel

         The record before this Court does not support the assertions of the Petitioner-Defendant. In fact, the transcripts of all of the proceedings belie the notion that the Petitioner-Defendant received ineffective assistance of counsel. None of the claims raised by the Petitioner-Defendant rises to the level of an error under the first prong of the Strickland test. As a result, the Petitioner-Defendant has failed to meet the burden necessary to demonstrate his claim for ineffective assistance of counsel.

         Even if the Court were to assume that one or more of the claims raised in the Petitioner-Defendant's motion rises to the level of ineffective assistance of counsel, which they do not, the motion would still fail because the Petitioner-Defendant has not satisfied the second prong of the Strickland test, which requires that the error result in actual prejudice to the Petitioner-Defendant. The Petitioner-Defendant has asserted that his trial counsel was ineffective because he did not present DNA evidence in the case and he did not pursue gunshot-residue testing. Defendant, however, was not actually prejudiced as required under the Strickland test because the surveillance video at Johnny Baby's clearly showed the Petitioner-Defendant committing the crime. (Government Tr. Ex. 9.) And the Court specifically stated to the Petitioner-Defendant at the time of sentencing that the verdict would have been the same, given the presence of the surveillance video. Thus, the Petitioner-Defendant was not actually prejudiced.

         II. Ineffective Assistance of Appellate Counsel Allegations

         The Petitioner-Defendant also asserts that his appellate lawyer was ineffective because he failed to pursue a Johnson claim, failed to appeal his claims regarding so-called exculpatory evidence and interstate nexus, and failed to request an en banc hearing.

         A. Johnson claim

         The Petitioner-Defendant asserts that his appellate counsel was ineffective because he failed to raise a Johnson challenge to his sentencing pursuant to the ACCA. The ACCA establishes enhancement sentencing for a felon-in-possession case where a defendant has three previous convictions for a violent felony or a serious drug offense, or both, committed on occasions different from one another. 18 U.S.C. § 924(e)(1). As the Government correctly noted, at the time of the Petitioner-Defendant's sentencing in January 2015, he had four qualifying predicate offenses: (1) Violation of Controlled Substance Law in the Third Degree - Sale of Cocaine (PSR ¶ 38); (2) First ...


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