Collier v. United States

Anthony Donte Collier, Petitioner, v. United States of America, Respondent.

United States of America, Plaintiff, v. Anthony Donte Collier, Defendant.

Nos. 3:20-cv-239, 3:16-cr-194-1

United States District Court, D. North Dakota

October 5, 2021

ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE

PETER D. WELTE, CHIEF JUDGE

Before the Court is Defendant Anthony Donte Collier's motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 filed on December 21, 2020. Doc. No. 413. The Government responded in opposition to the motion on April 12, 2021. Doc No. 418. Collier filed a reply on May 13, 2021 (Doc. No. 421) and a supplement to his motion on June 1, 2021 (Doc. No 423). For the reasons below, the motion is denied.

I. BACKGROUND

In 2015, Collier was on supervised release in Minnesota for a prior Minnesota state crime. See Doc. No. 341, pp. 25-26. After several incidents, including absconding, Collier's supervising officials suspected he was engaging in the business of prostitution. Id. pp. 27, 41-44, 49-50. As a result, the authorities began an exhaustive investigation into Collier's activities, which ultimately culminated in, among other things, obtaining and executing a November 16, 2015 search warrant (Doc. No. 418-3) on Collier's cell phone and laptop computer. The search warrant was supported by an affidavit by Detective Shawn Krebsbach (“Detective Krebsbach”), a detective in Clay County, Minnesota. Id. Eventually, after further investigation, authorities tracked and connected Collier with several women who were engaging in commercial sex acts.

As a result of the investigation, a federal grand jury indicted Collier. Doc. No. 1. In March 2017, a grand jury returned a seven-count second superseding indictment against Collier. Doc. No. 142. The second superseding indictment charged Collier with the following: one count of conspiracy to violate 18 U.S.C. §§ 1952(a)(3) and 2, interstate travel and foreign travel or transportation in aid of racketeering enterprises in violation of 18 U.S.C. § 371; five counts of sex trafficking and attempted sex trafficking in violation of 18 U.S.C. §§ 1591(a)(1), 1591(b)(1), and 1594(a); and, one count of attempted witness tampering in violation of 18 U.S.C. § 1512(b)(1). Id.

From the outset of his case, and as particularly relevant to this motion, Collier's representation by attorney William Kirschner (“Kirschner”) presented unusual issues and difficulties. By way of example, at his initial appearance on November 3, 2016, Collier requested permission to proceed with “hybrid representation, ” where Collier would proceed pro se with the addition of Kirschner's representation. Doc. No. 39. That request was denied, and Kirschner was appointed as Collier's attorney. Id. However, throughout the duration of the case, Collier repeatedly filed motions to appear pro se (Doc. Nos. 98, 101), and then changed course, asking that the Court reappoint Kirschner. Doc. No. 144.

This pattern continued through the eve of trial. On March 28, 2017, Collier again requested to appear pro se with Kirschner acting as co-counsel. Doc. No. 167. The Court gave Collier the option to proceed to trial representing himself or accepting Kirschner's representation. Doc. No. 167. Collier chose the latter. Id.

Trial began on April 4, 2017. On day three of the trial, Collier again moved to proceed pro se, and the Court granted the motion. Doc. No. 274, pp. 483-501. Six days later, Collier again reversed course and asked the Court to reappoint Kirschner to represent him for the remainder of the trial. Doc. No. 280, pp. 1737-38.

After three weeks of trial, the jury convicted Collier on counts one through six - conspiracy, interstate and foreign travel or transportation in aid of racketeering enterprises, sex trafficking, and attempted sex trafficking - and acquitted Collier on count seven - witness tampering. Doc. No. 208.

After trial, Collier moved for new counsel, and Kirschner moved to withdraw as counsel. See Doc. No. 357. Noting the attorney-client relationship was irretrievably broke, the district court appointed Collier new counsel for sentencing, attorney Kerry Rosenquist (“Rosenquist”). Id. Collier initially proceeded to sentencing with Rosenquist, but then once again chose to proceed pro se at sentencing without standby counsel. Doc. Nos. 258, 262, 318.

At sentencing, after factoring in enhancements, the Court and the presentence investigation report (“PSIR”) arrived at a total offense level of 45. Doc. No. 306, ¶ 52. Accordingly, Collier's total offense level was a 43 - the highest offense level possible. Id. ¶ 55. Collier was also designated in criminal history category VI - again, the highest criminal history category possible. With an offense level of 43 and a criminal history category VI, the United States Sentencing Guideline (“USSG”) range for Collier was life imprisonment. Id. ¶ 114. On December 21, 2017, the Court sentenced Collier below the guideline range, sentencing him to 60 months' imprisonment on count one and 40 years imprisonment on counts two through six, all counts to run concurrently. Doc. No. 325.

After sentencing, Collier, with the assistance of a third attorney, attorney Chad McCabe (“McCabe”), pursued a direct appeal. The Eighth Circuit Court of Appeals issued its judgment and opinion affirming Collier's sentence on August 1, 2019 (Doc. No. 379), and a mandate was issued on October 2, 2019. Doc. No. 386. Collier timely filed the instant 28 U.S.C. § 2255 motion on December 21, 2020. Doc. No. 413.

II. LEGAL STANDARD

A motion under 28 U.S.C. § 2255 affords relief “in several circumstances, including cases shown to contain jurisdictional errors, constitutional errors, and errors of law.” Raymond v. United States, 933 F.3d 988, 991 (8th Cir. 2019) (citing 28 U.S.C. § 2255(b)). “Habeas review is an extraordinary remedy and will not be allowed to do service for an appeal.” Fletcher v. United States, 858 F.3d 501, 505 (8th Cir. 2017) (quoting Jennings v. United States, 696 F.3d 759, 762 (8th Cir. 2012)). An evidentiary hearing is required unless the allegations in the motion are inherently incredible, contradicted by the record, merely conclusory, or would not entitle the petitioner to relief even if true. Roundtree v. United States, 751 F.3d 923, 926-27 (8th Cir. 2014). The movant bears the burden to demonstrate an entitlement to relief. Golinveaux v. United States, 915 F.3d 564, 567 (8th Cir. 2019).

Collier bases his § 2255 motion on three claimed violations of his Sixth Amendment right to effective assistance of counsel. To obtain relief on an ineffective assistance of counsel claim, a petitioner must satisfy the two-prong test announced in Strickland v. Washington, 466 U.S. 668, 687 (1984). For the first prong, a petitioner must establish constitutionally deficient representation, meaning counsel's performance fell below an objective standard of reasonableness. Meza-Lopez v. United States, 929 F.3d 1041, 1044 (8th Cir. 2019). “This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. “Judicial scrutiny of counsel's performance must be highly deferential.” Id. at 689. Courts view the representation from counsel's perspective at the time of the alleged error to avoid the effects of hindsight and second-guessing. Kemp v. Kelley, 924 F.3d 489, 500 (8th Cir. 2019). A petitioner must overcome a strong presumption that defense counsel provided “adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Strickland, 466 U.S. at 690; see also Camacho v. Kelley, 888 F.3d 389, 394 (8th Cir. 2018). Strategic decisions made after a thorough investigation of the law and facts are virtually unchallengeable. United States v. Orr, 636 F.3d 944, 950 (8th Cir. 2011).

To satisfy the second prong, a petitioner must demonstrate that prejudice resulted from the deficient representation. Strickland, 466 U.S. at 687. To do so, a petitioner must show “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Adejumo v. United States, 908 F.3d 357, 361 (8th Cir. 2018) (quoting Strickland, 466 U.S. at 694). A reasonable probability is one “sufficient to undermine confidence in the outcome.” Wiggins v. Smith, 539 U.S. 510, 534 (2003) (quoting Strickland, 466 U.S. at 694). When evaluating the probability of a different result, courts view the totality of the evidence to gauge the effect of the error. Williams v. United States, 452 F.3d 1009, 1013 (8th Cir. 2006).

Where a petitioner raises multiple ineffective assistance of counsel claims, each claim must be examined independently rather than collectively. Hall v. Luebbers, 296 F.3d 685, 692-93 (8th Cir. 2002) (citing Wainwright v. Lockhart, 80 F.3d 1226, 1233 (8th Cir. 1996)). Cumulative error will not justify habeas relief. Middleton v. Roper, 455 F.3d 838, 851 (8th Cir. 2006).

III. DISCUSSION

In his motion, Collier raises three ineffective assistance of counsel claims. First, Collier argues that Kirschner had an actual conflict of interest in representing Collier. Second, he argues that Kirschner was ineffective for failing to request a Franks hearing to dispute evidence presented by Detective Krebsbach in the November 16, 2015 search warrant affidavit. Finally, Collier argues McCabe was ineffective for failing to challenge the district court's sentencing guideline calculation on appeal. The Court addresses each claim below.

A. Conflict of Interest

For his first claim, Collier alleges that Kirschner had an actual conflict of interest in representing him. According to...