Blakeney v. United States, Case No. 4:19-cv-00079-SNLJ

STEVEN BLAKENEY, Plaintiff, v. UNITED STATED OF AMERICA, Defendant.

Case No. 4:19-cv-00079-SNLJ

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

July 29, 2020

MEMORANDUM AND ORDER

This matter is before the Court on plaintiff Steven Blakeney's motion under 28 U.S.C. § 2255 to vacate, set aside, or correct the sentence imposed in USA v. Blakeney, 4:15-cr-00354. (ECF 1). Also before the Court are two motions for leave to conduct discovery related to Blakeney's Section 2255 motion. (ECF 2, 4), and a motion to expand the record (ECF 40). For the reasons that follow, this Court will DENY all four motions.

I. BACKGROUND

On January 28, 2016, Blakeney was convicted by a jury on one count of conspiracy against rights rights in violation of 18 U.S.C. § 241, one count of deprivation of rights under color of law in violation of 18 U.S.C. § 242, and one count of falsifying records in violation of 18 U.S.C. § 1519. Blakeney was sentenced to an aggregate term of 51 months in prison. By way of his Section 2255 motion, he now seeks to set aside his sentence because he was allegedly deprived of effective assistance of counsel by his attorney, Clinton Wright, and because the Government purportedly failed to disclose exculpatory evidence.

The conduct underlying Blakeney's conviction involved claims that he orchestrated the arrest of mayoral candidate Nakisha Ford during a 2013 mayoral election in the city of Pine Lawn, Missouri. Blakeney, a former Pine Lawn police sergeant, was purported to have placed an unflattering sign of Ford—depicting her mugshot from a previous arrest—in the front window of Pine Lawn Food Market against the wishes of owner Mazen "Mario" Samad and his brother Akram "Sam" Samad. On March 31, 2013, Ford visited Pine Lawn Food Market and, seeing the sign, had it removed. Upon learning of this, Blakeney undertook a number actions to ensure Ford's arrest—including, among other things, instructing the Samads to provide a false story of Ford's alleged theft and disturbance at Pine Lawn Food Market, as well as providing false information to a subordinate officer in what would later become known as Incident Report 13-1337. Shortly after these efforts to build a story against Ford, Blakeney, three other polices officers, the chief of police, and Anthony Gray—the Pine Lawn Prosecuting Attorney—proceeded to Ford's residence and arrested her. Ford was charged with stealing and disorderly conduct, but the charges were reduced to a single littering charge; she ultimately pled guilty and paid a $500 fine. The facts are more fully set out in the Eighth Circuit's review of the underlying trial proceedings in United States v. Blakeney, 876 F.3d 1126 (8th Cir. 2017) (affirming Blakeney's conviction).

II. ANALYSIS

A. Ineffective Assistance of Counsel

i. Applicable Standards

To prove ineffectiveness of counsel, a defendant must satisfy a two-prong test as set forth in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, "a defendant must demonstrate both that his attorney's performance fell below an objective standard of reasonableness and that he was prejudiced as a result." Meza-Lopez v. United States, 929 F.3d 1041, 1044 (8th Cir. 2019) (citing Strickland, 466 U.S. 668 (1984)). "Surmounting Strickland's high bar is never an easy task." Padilla v. Kentucky, 559 U.S. 356, 371 (2010). In part, this is because "[a]n ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial[.]" Harrington v. Richter, 562 U.S. 86, 105 (2011). Thus, the "Strickland standard must be applied with scrupulous care[.]" Id. at 105.

Establishing performance deficiency under Strickland's first prong requires a showing "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed [to] the defendant by the Sixth Amendment." Dat v. United States, 920 F.3d 1192, 1194 (8th Cir. 2019). The goal "is not to second-guess every decision, but rather to ask what a reasonable lawyer would have done under the circumstances." Adejumo v. United States, 908 F.3d 357, 362 (8th Cir. 2018). Thus, a court must "determine whether, in light all of the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Cole v. Roper, 623 F.3d 1183, 1189 (8th Cir. 2010). This context-sensitive analysis requires the court to make "every effort to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenge conduct, and to evaluate the conduct from counsel's perspective at the time." Kemp v. Kelley, 924 F.3d 489, 500 (8th Cir. 2019); see alsoMaryland v. Kulbicki, 136 S.Ct. 2, 4 (2015) (per curiam) (noting the "natural tendency to speculate as to whether a different trial strategy might have been more successful" and stating "to combat this tendency, we have adopted the rule of contemporary assessment of counsel's conduct."). And, because "advocacy is an art and not a science," Strickland, 466 U.S.at 681, counsel is afforded "a heavy measure of deference" in their strategic choices. Strong v. Roper, 737 F.3d 506, 518 (8th Cir. 2013).

Prejudice is another matter. "Unlike the deficient performance prong, evaluation of prejudice is not limited to a contemporaneous assessment, i.e., viewing the facts as of the time of counsel's conduct without the use of hindsight." Whitmore v. Lockhart, 8 F.3d 614, 622 (8th Cir. 1993). Strickland's prejudice prong focuses, instead, on whether "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Lafler v. Cooper, 566 U.S. 156, 163 (2012). In satisfying this standard, "[i]t is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Ford v. United States, 917 F.3d 1015, 1021 (8th Cir. 2019). Rather, a defendant's proof must be sufficiently robust so as to "undermine confidence in the outcome." Id.; see also Cullen v. Pinholster, 563 U.S. 170, 190 (2011) (explaining a defendant must show a "substantial" likelihood of a different result and not merely a "conceivable" one). That is to say, while outcome is an important benchmark, the "ultimate inquiry must concentrate on the fundamental fairness of the proceeding." Weaver v. Massachusetts, 137 S.Ct. 1899, 1911 (2017); see also Lockhart v. Fretwell, 506 U.S. 364, 369 (1993) (noting that prejudice focuses on the deprivation of fairness and reliability, not merely outcome, and explaining "analysisfocusing solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective."). Accordingly, demonstrating mere theoretical prejudice is insufficient—prejudice must, instead, be so serious, so concrete in its effect, as to undermine the conclusion that a trial's results were both fair and reliable. See Nelson v. United States, 909 F.3d 964, 970 (8th Cir. 2018) (prejudice resulting from counsel's errors must be "so serious as to deprive [the defendant] of a fair trial, a trial whose result is reliable"); see also Strickland, 466 U.S. at 693-694 ("It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. Virtually every act or omission of counsel would meet that test, and not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding. [Rather], the appropriate test for prejudice finds its roots in the test for materiality[.]").

In applying Strickland, "a court may decide [the] claim by addressing either prong. There is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one." Ford v. United States, 917 F.3d 1015, 1021 (8th Cir. 2019) (quoting Strickland, 466 U.S. at 697).

ii. Failure to Call "Critical" Witnesses

Blakeney first argues his counsel was ineffective by failing to call four "critical" witnesses: (1) Anthony Gray—the Pine Lawn Prosecuting Attorney; (2) April Brooks—a cashier at Pine Lawn Food Market; (3) Rickey Collins—Chief of the Pine Lawn Police Department; and (4) Lawrence Fleming—a Pine Lawn Police Department Commander.Blakeney also urges the Court to grant leave to conduct depositions of Gray, Brooks, and Collins, to essentially develop his postulations that each was a critical witness with information showing he was not the perpetrator of Ford's arrest.

Succeeding on such an argument is a tall order. See Raulerson v. Warden, 928 F.3d 987, 998 (11th Cir. 2019) ("which witnesses, if any, to call, and when to call them, is the epitome of a strategic decision, and it is one that we will seldom, if ever, second guess"); Hernandez v. Chappell, 923 F.3d 544, 557 (9th Cir. 2019) (counsel, who forgot to subpoena witness for use at trial, was negligent; but, that still did not rise to level of ineffective counsel where, at best, the witness would have offered testimony of minimal probative value); Weaver v. Nicholson, 892 F.3d 878, 885 (7th Cir. 2018) (applying a strong presumption that failing to call witness "was strategic" and within the "wide range of reasonable professional assistance"). To be sure, "[a] reasoned decision not to call a witness is a virtually unchallengeable decision of trial strategy, in part because there is considerable risk inherent in calling any witness because if the witness does not hold up well on cross-examination, the jurors might draw unfavorable inferences." Rodela-Aguilar v. U.S., 596 F.3d 457, 464 (8th Cir. 2010). Moreover, complaints of uncalled witnesses often rely on self-serving speculation, which cannot ordinarily pass the hurdles of Strickland. See Sullivan v. Deloach, 459 F.3d 1097, 1111 (11th Cir. 2006); Sayre v. Anderson, 238 F.3d 631,...