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United States v. Carlson

United States District Court, D. Minnesota

April 5, 2018

United States of America, Plaintiff,
James Robert Carlson, Defendant.

          Surya Saxena, Assistant United States Attorney, counsel for plaintiff.

          Deborah Ellis, Esq. counsel for defendant.


          David S. Doty, Judge

         This matter is before the court upon the motions by defendant James Robert Carlson to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 and for an evidentiary hearing. Based on a review of the file, record, and proceedings herein, and for the following reasons, the court denies the motions and denies a certificate of appealability.


         On October 7, 2013, a jury convicted Carlson of multiple counts of violating the Food, Drug and Cosmetic Act and the Controlled Substances Analogue Act and engaging in transactions in property derived from unlawful activity. The court sentenced him to 210 months' imprisonment, and the Eighth Circuit Court of Appeals affirmed.

         At trial, Carlson was represented by Randall Tigue, who previously provided legal advice to Carlson concerning his business.[1] According to Carlson, Tigue advised him that the products he was selling were legal. Carlson I Aff. ¶ 5. Apparently aware of Tigue's previous representation of Carlson, prosecutors filed a motion in limine to preclude defendants from raising the advice-of-counsel defense during trial. See ECF No. 258 at 13-14. Carlson replied that he did not intend to raise an advice-of-counsel defense. ECF No. 280 at 7. Carlson now moves to vacate, set aside, or correct his sentence arguing that Tigue's failure to raise this defense was a result of a conflict of interest created by his prior representation. Specifically, Carlson contends that Tigue did not raise the advice-of-counsel defense because that would have required im to testify to substantiate the defense, which would have precluded him from representing Carlson at trial. Carlson alleges that Tigue's financial interest in remaining as counsel caused Tigue not to raise the advice-of-counsel defense.


         I. Standard

         Generally, to establish a claim of ineffective assistance of counsel, a defendant must meet both prongs of the test set forth in Strickland v. Washington, 466 U.S. 668 (1984). First, a defendant must show that his counsel's performance was so deficient that it fell below the level of representation guaranteed by the Sixth Amendment. Id. at 687. Second, he must establish prejudice by showing “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different.” Id. at 694.

         Prejudice is presumed when a defendant shows that (1) his counsel had an actual conflict of interest at trial that (2) adversely affected his counsel's performance. Covey v. United States, 377 F.3d 903, 907 (8th Cir. 2004)(citing Cuyler v. Sullivan, 446 U.S. 335, 348 (1980)). The Eighth Circuit has not applied the Cuyler standard to attorney conflicts other than a lawyer's representation of multiple defendants. Indeed, the Eighth Circuit has noted in dicta that the Cuyler standard should be limited to instances of multiple representation. See Caban v. United States, 281 F.3d 778, 782 (8th Cir. 2002)(“We believe there is much to be said in favor of holding that Cuyler's rationale ... does not apply outside the context of a conflict between codefendants or serial defendants.”); see also Mickens v. Taylor, 535 U.S. 162, 174-75 (2002)(“[T]he language of [Cuyler] itself does not clearly establish, or indeed even support, such expansive application [of Cuyler to other types of attorney conflicts.]”). Even assuming that Cuyler applies to the type of attorney conflict alleged by Carlson, however, his claim fails.

         Carlson contends that he need not show that the alleged conflict adversely affected his counsel's performance because the conflict constitutes structural error. Courts have held that when a constitutional error has “consequences that are necessarily unquantifiable and indeterminate” it qualifies as a “structural error.” United States v. Gonzalez-Lopez, 548 U.S. 140, 150 (2006). When a defendant's conviction is affected by structural error, he does not have to meet Strickland's second prong or show that an attorney's conflict affected his performance. See id. at 151-52. But Carlson does not cite to, and the court cannot find, a case where a court found that an attorney's conflict of interest amounted to structural error.[2] Absent structural error, Carlson must show that the conflict of interest adversely affected his attorney's performance. See Mickens, 535 U.S. at 168 (internal quotation marks and citation omitted)(“[A] defendant must demonstrate that a conflict of interest actually affected the adequacy of his representation.”).

         II. Adverse Effect

         In order to show that Tigue's alleged conflict of interest[3]adversely affected his performance, Carlson must (1) “identify a plausible alternative defensive strategy or tactic that ... defense counsel might have pursued”; (2) “show that the alternative strategy was objectively reasonable under the facts of the case”; and (3) “establish that the defense counsel's failure to pursue that strategy or tactic was linked to the actual conflict.” C ...

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