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United States v. Carlson

United States District Court, D. Minnesota

November 7, 2019

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

          Surya Saxena, Assistant United States Attorney, United States Attorney's Office, 300 S. Fourth St., Minneapolis, MN 55415, Attorney for Plaintiff.

          Deborah Ellis, Ellis Law Office, 101 E. Fifth St., Suite 1500, St. Paul, MN 55101, Attorney for Defendant.


          David S. Doty, Judge

         This matter is before the court upon remand by the Eighth Circuit Court of Appeals to hold an evidentiary hearing and develop the record on defendant James Robert Carlson's claims of ineffective assistance of counsel in his petition under 28 U.S.C. § 2255. Based on the evidence adduced at the evidentiary hearing, the parties' post-hearing briefing, a review of the file, record, and proceedings herein, and for the following reasons, the court denies Carlson's § 2255 motion 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 (FDCA) 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 affirmed.

         At trial, Carlson was represented by Randall Tigue, who previously provided legal advice to Carlson concerning his business. According to Carlson, Tigue advised him that the products he was selling were legal. 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. Tigue, on Carlson's behalf, replied that he did not intend to raise an advice-of-counsel defense. ECF No. 280 at 7. At the pre-trial conference, John Markham, counsel for one of Carlson's co-defendants, indicated that none of the defendants intended to raise the advice-of-counsel defense. Hr'g Tr. dated Sept. 16, 2013, ECF No. 364, at 131:6-10. Carlson maintains that he was unaware of the possibility of raising the defense and that he did not knowingly waive the defense.

         After his direct appeal concluded, Carlson moved to vacate, set aside, or correct his sentence arguing that Tigue's failure to raise the advice-of-counsel defense was a result of a conflict of interest created by his prior representation. Specifically, Carlson argued that Tigue did not raise the advice-of-counsel defense because that would have required him to testify to substantiate the defense, which would have precluded him from representing Carlson at trial. Carlson alleged that Tigue's financial interest in remaining as counsel caused Tigue not to raise the advice-of-counsel defense.

         The court disagreed, concluding that Carlson had failed to provide factual support for his claim. Carlson appealed and the Eighth Circuit remanded the matter instructing the court to hold an evidentiary hearing to develop the record with respect to Carlson's ineffective assistance of counsel claim. ECF No. 555. The court held an evidentiary hearing on July 9, 2019, and the parties thereafter submitted post-hearing briefs. As discussed below, the evidence adduced at the hearing did not alter the court's determination that Tigue was not constitutionally ineffective in failing to assert 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, however. 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 argues that he need not show that the conflict adversely affected Tigue's performance because it constitutes structural error. As already determined in the previous order, the conflict of interest alleged by Carlson does not qualify as a structural error. ECF No. 550 at 4. Carlson ...

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