Jenks v. United States

1

RICHARD JENKS, JR. Petitioner, v. UNITED STATES OF AMERICA, Respondent.

No. 2:19-cv-00094-CW

United States District Court, D. Utah

September 18, 2023

MEMORANDUM DECISION AND ORDER DENYING MOTION TO VACATE AND SET ASIDE CONVICTIONS AND SENTENCE

CLARK WADDOUPS, UNITED STATES DISTRICT JUDGE

Before the court is Defendant Richard Jenks, Jr.'s motion to vacate and set aside his conviction and sentence pursuant to 28 U.S.C. § 2255. (ECF No. 1.) The court previously issued a decision denying Mr. Jenks's petition in full on January 22, 2020. (ECF No. 19.) Mr. Jenks appealed that decision, however, and the Tenth Circuit vacated the court's January 2020 decision in part and remanded the case for an evidentiary hearing regarding Mr. Jenks's claim that his counsel in his criminal matter provided constitutionally ineffective assistance during plea negotiations. See United States v. Jenks, Case No 20-4023, 2022 WL 1252366 at *8-9 (10th Cir. Apr. 28, 2022) (unpublished).

In accordance with the Tenth Circuit's mandate, the court held an evidentiary hearing on April 5, 2023. (See Minute Entry, ECF No. 40.) Following the evidentiary hearing the court received additional briefing from the parties (see ECF Nos. 45, 46, & 49) and heard oral argument on Mr Jenks's remaining claim on July 19, 2023 (Minute Entry, ECF No. 50).

After considering the evidence presented by the parties, and the parties' briefing and oral argument, the court has concluded that Mr. Jenks has failed to meet his burden of demonstrating that his attorneys provided ineffective assistance of counsel in plea negotiations. Accordingly, the court DENIES Mr. Jenks's petition for the reasons stated herein.

Background

In October 2014, Richard Jenks's stepdaughter, D.W., who was sixteen years old at the time, told her mother that Mr. Jenks had been sexually abusing her since she was ten years old. (Trial Tr. at 310-311, 445-47, Crim. ECF^[1] No. 157.) Later that day, D.W.'s mother reported the abuse to the Bureau of Indian Affairs (“BIA”). (Id. at 311-313, 447; PSR at ¶ 5, Crim. ECF No. 125.)

After receiving the report, BIA officers immediately interviewed D.W., who told them that Mr. Jenks had been having sex with her for the past five years. (PSR at ¶ 6, Crim. ECF No. 125.) D.W. explained that Mr. Jenks would always use a condom and that they would use baby wipes to clean up after having sex. (Id.) The condoms and the baby wipes would then be placed in a sack and disposed of in a large woodpile behind their house. (Id.)

On the same day, D.W. took BIA officers to the woodpile where Mr. Jenks would dispose of evidence, where investigators discovered used condoms, napkins, wet wipes, condom wrappers, and other evidence. (PSR at ¶ 9; Trial Tr. at 313-14, 448.) A few days later, an additional search of the woodpile was conducted, where additional evidence, including several used condoms, were recovered. (Trial Tr. at 550-57; PSR at ¶ 14.) The evidence was then sent to an FBI laboratory for forensic examination. (Trial Tr. at 623-624.)

The FBI did DNA testing on four of the condoms retrieved from the wood pile. (Id. at 626.) The FBI's DNA testing showed that, to a reasonable degree of scientific certainty, Mr. Jenks's DNA was a match with DNA found on one side of one condom and that D.W.'s DNA was a match with DNA found on the other side of the same condom. (See id. at 671-73; FBI Lab Report, ECF No. 41 (Ex. 1).) The testing also showed that Mr. Jenks could not be excluded as a minor contributor to DNA found on two other condoms that D.W.'s DNA was found on. (See id. at 65374; FBI Lab Report, ECF No. 41 (Ex. 1).) Mr. Jenks's DNA was not found on one of the condoms tested. (Id.)

On February 11, 2015, Mr. Jenks was indicted by a federal grand jury on two counts of aggravated sexual abuse of a child and two counts of sexual abuse of a minor. (Crim. ECF No. 1.) Mr. Jenks was arrested on February 17, 2015 and arraigned two days later, where he was informed of the charges against him and the potential penalties associated with those charges. (ECF Nos. 3 & 12.)

Mr. Jenks was represented in his criminal proceedings by Mr. Rudy Bautista and Ms. Abigail Dizon-Maughan. (Crim. ECF Nos. 3 & 17.)

At some point during pre-trial proceedings, Mr. Drew Yeates, an Assistant United States Attorney representing the United States in the matter, approached Mr. Jenks's counsel about a potential plea deal. Mr. Yeates testified that he discussed with Mr. Jenks's counsel the possibility of a 10-year and 8-year plea deal. (Tr. at 100:10-102:7; 106:10-107:23, ECF No. 43.) Mr. Jenks claims that there was also discussion of a potential 15-year plea deal, but Mr. Yeates denies that a 15-year plea deal was ever discussed. (Id. at 106:3-9.) Discussions about a plea deal, however, never went beyond the government's initial inquiries because Mr. Jenks insisted that he wanted to proceed to trial. (Id. at 59:1-19; 84:23-25; 86:16-24; 88:9-89:18; 94:2-11; 119:16-21.)^[2]

Prior to trial, Mr. Jenks's counsel retained their own expert to evaluate the FBI's DNA analysis of the condoms mentioned above. Mr. Jenks's DNA expert confirmed the accuracy of the FBI's analysis but noted that there were some weaknesses in matching Mr. Jenks's DNA to DNA found on some of the condoms that were tested. (See MBA DNA Consulting Report, ECF No. 41 (Ex. 5).) The report also acknowledged, however, that “some DNA associations were very strong and merited the verbiage of ‘to a reasonable degree of scientific certainty.'” (Id.)

According to Mr. Jenks, his counsel told him that the government's evidence was very weak and that they should proceed to trial. (Tr. at 9:24-11:5; 11:11-12:23; 14:1-9; 17:3-6.) Mr. Bautista agrees that he viewed the government's DNA evidence as weak based on low statistical evidence of a match on some of the condoms, the possibility of transference, the absence of semen, and his view that there was a motive for fabrication.^[3] (Id. at 74:6-20; 83:4-17; 84:1-9.) Mr. Bautista testified, however, that while he informed Mr. Jenks of his view of the evidence, he would have never told Mr. Jenks that the evidence against him was “weak.” (Id. at 83:23-25.)

The case proceeded to trial and Mr. Jenks was convicted of one count of aggravated sexual abuse of a child and two counts of sexual abuse of a minor.^[4] (Verdict Form, Crim. ECF No. 111.) Mr. Jenks was later sentenced to 30 years in prison and a lifetime of supervised release. (Judgment, Crim. ECF No. 130.)

Mr. Jenks appealed his sentence and conviction. (Notice of Appeal, Crim. ECF No. 134.) On appeal, the Tenth Circuit affirmed Mr. Jenks's conviction but remanded the case for additional findings regarding a condition of supervised release that is not material to the current motion. See United States v. Jenks, 714 Fed.Appx. 894 (10th Cir. 2017).

On February 11, 2019, Mr. Jenks filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, which is the subject of the current action. (ECF No. 1.) Mr. Jenks's motion raised four grounds for relief: (1) that his trial counsel provided ineffective assistance by failing to adequately investigate the physical evidence, (2) that his trial counsel provided ineffective assistance during plea negotiations, (3) that his trial counsel provided ineffective assistance by introducing evidence against Mr. Jenks at trial, and (4) that his trial counsel provided ineffective assistance by advising Mr. Jenks to sign a lengthy stipulation regarding the admission of physical evidence at trial. (Id.)

After considering briefing from Mr. Jenks and the government, the court denied Mr. Jenks's motion in full. (ECF No. 19.) With respect to Mr. Jenks's argument that his trial counsel provided ineffective assistance in plea negotiations, the court concluded that Mr. Jenks's motion failed because Mr. Jenks failed to present credible evidence that the government did in fact offer him a plea deal. (Id. at 13-20.)

Mr. Jenks appealed the court's denial of his motion to vacate, and the Tenth Circuit granted a certificate of appealability limited to “whether the district court erred in not holding an evidentiary hearing on the effectiveness of [Mr. Jenks's] trial counsel when they advised [Mr. Jenks] not to accept any proposed plea bargains.” United States v. Jenks, Case No. 20-4023, 2022 WL 1252366 at *2 (10th Cir. Apr. 28, 2022) (unpublished).

The Tenth Circuit vacated this court's decision to deny Mr. Jenks's motion to vacate with respect to Mr. Jenks's claim that his trial counsel provided ineffective assistance in plea negotiations and remanded the case for an evidentiary hearing. Id. at *5.

Analysis

To succeed on his ineffective assistance of counsel claim, Mr Jenks must prove (1) that his attorneys' performance fell below an objective standard of reasonableness and (2) that prejudice resulted. Strickland v. Washington, 466 U.S. 668 (1984). The court concludes that Mr. Jenks has failed to establish either element of his Strickland claim with respect to his assertion that his trial counsel provided ineffective assistance of counsel in plea negotiations and that his motion, therefore, must be denied.

I. Attorneys' Performance

To succeed on his Strickland claim, Mr. Jenks must overcome a “strong presumption that [his] counsel's conduct f[ell] within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. It is not appropriate to view his counsels' performance through the lens of hindsight or to assume it was ineffective merely because it was unsuccessful. Id.

Here Mr. Jenks claims that his counsel were ineffective because they “did not advise him of the consequences of rejecting . . . plea offers from the government.” (Petition at 9, ECF No. 1.) More...