Luster v. United States

BJORN CHRISTIAN LUSTER, Movant, v. UNITED STATES OF AMERICA, Respondent.

No. 15-CV-2063-LRR

No. 13-CR-2021-LRR

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA EASTERN DIVISION

September 29, 2017

ORDER

TABLE OF CONTENTS

I. INTRODUCTION ......................................... 1

II. RELEVANT BACKGROUND AND PROCEDURAL HISTORY ........... 2

III. LEGAL STANDARDS ..................................... 4

A. Standards Applicable to Motion Pursuant to 28 U.S.C. § 2255 ....... 4

B. Standards Applicable to Constitutional Right to Counsel ........... 8

IV. ANALYSIS ............................................ 10

A. Request for Evidentiary Hearing .......................... 10

B. Movant's Arguments .................................. 11

C. Motion to Amend .................................... 17

D. Miscellaneous Motions ................................ 19

V. CONCLUSION .......................................... 20

I. INTRODUCTION

This matter comes before the court on Bjorn Christian Luster's motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 ("motion"), which he filed on July 28, 2015 (civil docket no. 1). Movant filed an amended motion on December 2, 2015 (civil docket no. 3), a supplemental motion on December 11, 2015 (civil docket no. 4) and a second supplemental motion on February 5, 2016 (civil docket no. 5).¹ On April 4, 2016, the court directed the government to brief the claims that movant asserted in the motion, amended motion and supplemental motions (civil docket no. 6). The court also directed counsel to file with the court an affidavit responding only to movant's specific allegations of ineffective assistance of counsel (id.). Trial counsel timely complied with the court's order by filing his affidavit on March 8, 2017 (civil docket no. 8). Movant's state court counsel also filed an affidavit (civil docket no. 16) per the court's order (civil docket no. 13). On May 18, 2016, movant filed a response to trial counsel's affidavit (civil docket no. 10) and a motion to amend (civil docket no. 9) to add a claim based on Johnson v. United States, 135 S. Ct. 2551 (2015). Movant filed a response to state court counsel's affidavit on July 18, 2016 (civil docket no. 18). The government, after obtaining an extension of time to file a responsive brief (civil docket no. 13), filed its responsive brief on July 21, 2016 (civil docket no. 22-1). Movant filed his reply on August 2, 2016 (civil docket no. 24). Also before the court are movant's motion to introduce evidence (civil docket no. 26), motion for evidentiary hearing (civil docket no. 34) and "motion for summary judgment; motion for judge's recusal" (civil docket no. 35).

II. RELEVANT BACKGROUND AND PROCEDURAL HISTORY

On August 21, 2013, a grand jury charged movant with one count of possession of a firearm, namely a destructive device, not registered to movant in the National Firearms Registration and Transfer Record, a violation of 26 U.S.C. §§ 5845(a), 5861(d) and 5871 (criminal docket no. 2). A Federal Public Defender was appointed to represent movant (criminal docket no. 8). At arraignment, movant entered his plea of not guilty (criminal docket no. 9). Later, on September 19, 2013, movant changed his plea from not guiltyto guilty of possession of an unregistered firearm (criminal docket nos. 24 & 25).² The court accepted his change of plea. See United States v. Luster, No. CR13-2021, 2013 WL 12073226, at *1-3 (N.D. Iowa Sept. 19, 2013) (criminal docket no. 25), report and recommendation adopted, No. 13-CR-2021-LRR, 2013 WL 12073227 (N.D. Iowa Oct. 4, 2013) (criminal docket no. 26).

A presentence report ("PSR") was finalized on December 9, 2013 (criminal docket no. 30). A sentencing hearing was held on January 13, 2014 (criminal docket no. 33). The court sentenced movant to 87 months' imprisonment (criminal docket nos. 33 & 34). In addition, the court imposed a total of three years of supervised release and a total of $100 in special assessments (id.).

Movant appealed his conviction and sentence (criminal docket no. 36). Appellate counsel moved to withdraw and filed a brief under Anders v. California, 386 U.S. 738 (1967), arguing that the court procedurally erred by basing its selection of movant's within-Guidelines-range sentence on an unproven fact and that the court imposed a substantively unreasonable sentence. See United States v. Luster, 577 F. App'x 625, 626 (8th Cir. 2014). The Eighth Circuit Court of Appeals concluded that the court did not procedurally err or impose a substantively unreasonable sentence. See id. In addition, after independently reviewing the record in accordance with Penson v. Ohio, 488 U.S. 75 (1988), the Eighth Circuit Court of Appeals found no nonfrivolous issues, and, thus, granted appellate counsel's motion to withdraw and affirmed the judgment. See Luster, 577 F. App'x at 626.

In the motion, amended motion and supplemental motions, the court understands movant to assert ineffective assistance of counsel claims (civil docket nos. 1, 3, 4 & 5). He claims trial counsel was ineffective because she: (1) failed to file a motion to suppress evidence; (2) failed to raise issues of mens rea; (3) failed to investigate the offense; (4)advised movant to plead guilty to an uncharged offense; (5) failed to seek suppression of, or dismissal of the case based on, movant's statements made to federal law enforcement officers during a proffer interview; (6) failed to object to the portions of the PSR describing the facts surrounding his prior trespass and harassment convictions; and (7) failed to challenge the calculation of his criminal history score under the sentencing Guidelines. Movant asserts that state court counsel was ineffective for advising movant to participate in a proffer interview with federal authorities. Movant claims appellate counsel was ineffective for failing to raise on direct appeal that movant was convicted of an uncharged offense, that portions of the PSR describing the facts surrounding his prior trespass and harassment convictions were false and that movant's criminal history calculation was incorrect. In his motion to amend filed on May 18, 2016 (civil docket no. 9), movant seeks to add a Johnson claim, arguing that he is entitled to a lower Guidelines sentence because he did not have a prior conviction for a "crime of violence."

III. LEGAL STANDARDS

A. Standards Applicable to Motion Pursuant to 28 U.S.C. § 2255

A prisoner in custody under sentence of a federal court is able to move the sentencing court to vacate, set aside or correct a sentence. See 28 U.S.C. § 2255(a). To obtain relief pursuant to 28 U.S.C. § 2255, a federal prisoner must establish: (1) "that the sentence was imposed in violation of the Constitution or laws of the United States"; (2) "that the court was without jurisdiction to impose such sentence"; (3) "that the sentence was in excess of the maximum authorized by law"; or (4) "[that the judgment or sentence] is otherwise subject to collateral attack." Id.; see also Hill v. United States, 368 U.S. 424, 426-27 (1962) (listing four grounds upon which relief under 28 U.S.C. § 2255 may be claimed); Watson v. United States, 493 F.3d 960, 963 (8th Cir. 2007) (same); Lee v. United States, 501 F.2d 494, 499-500 (8th Cir. 1974) (clarifying that subject matter jurisdiction exists over enumerated grounds within the statute); Rule 1 of the Rules Governing Section 2255 Proceedings (specifying scope of 28 U.S.C. § 2255). If any oneof the four grounds is established, the court is required "to vacate and set aside the judgment and [it is required to] discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." 28 U.S.C. § 2255(b).

When enacting 28 U.S.C. § 2255, Congress "intended to afford federal prisoners a remedy identical in scope to federal habeas corpus." Sun Bear v. United States, 644 F.3d 700, 704 (8th Cir. 2011) (en banc) (quoting Davis v. United States, 417 U.S. 333, 343 (1974)) (internal quotation mark omitted). Although it appears to be broad, 28 U.S.C. § 2255 does not provide a remedy for "all claimed errors in conviction and sentencing." Id. (quoting United States v. Addonizio, 442 U.S. 178, 185 (1979)). Rather, 28 U.S.C. § 2255 is intended to redress constitutional and jurisdictional errors and, apart from those errors, only "fundamental defect[s] which inherently [result] in a complete miscarriage of justice" and "omission[s] inconsistent with the rudimentary demands of fair procedure." Hill, 368 U.S. at 428; see also Sun Bear, 644 F.3d at 704 (clarifying that the scope of 28 U.S.C. § 2255 is severely limited and quoting Hill, 368 U.S. at 428); United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996) ("Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised for the first time on direct appeal and, if uncorrected, would result in a complete miscarriage of justice." (citing Poor Thunder v. United States, 810 F.2d 817, 821 (8th Cir. 1987))). A collateral challenge under 28 U.S.C. § 2255 is not interchangeable or substitutable for a direct appeal. See United States v. Frady, 456 U.S. 152, 165 (1982) (making clear that a motion pursuant to 28 U.S.C. § 2255 will not be allowed to do service for an appeal). Consequently, "an error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment." Id. (quoting Addonizio, 442 U.S. at 184).

The law of the case doctrine has two branches. See Ellis v. United States, 313 F.3d 636, 646 (1st Cir. 2002). The first branch involves the "mandate rule (which, with only a few exceptions, forbids, among other things, a lower court from relitigating issues thatwere decided by a higher court, whether explicitly or by reasonable implication, at an earlier stage of the same case)." Id. The second branch, which is somewhat more flexible, provides that "a c...