United States v. Mayfield

UNITED STATES OF AMERICA, Plaintiff, v. ROBERT L. MAYFIELD, Defendant.

4:16-CR-3077

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

March 4, 2021

MEMORANDUM AND ORDER

This matter is before the Court upon initial review of the pro se motion to vacate under 28 U.S.C. § 2255 (filing 133) and several other motions filed by the defendant, Robert Mayfield. The Court's initial review is governed by Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts, which provides:

The judge who receives the motion must promptly examine it. If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party. If the motion is not dismissed, the judge must order the United States attorney to file an answer, motion, or other response within a fixed time, or to take other action the judge may order.

A § 2255 movant is entitled to an evidentiary hearing unless the motion and the files and records of the case conclusively show the movant is entitled to no relief. § 2255(b); Sinisterra v. United States, 600 F.3d 900, 906 (8th Cir. 2010). Accordingly, a motion to vacate under § 2255 may be summarily dismissed without a hearing if (1) the movant's allegations, accepted as true, would not entitle the movant to relief, or (2) the allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact. Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995); see also Sinisterra, 600 F.3d at 906.

BACKGROUND

The defendant was charged in 2016 with one count of conspiring to distribute methamphetamine and possess methamphetamine with intent to distribute it. Filing 1. The government later filed an information of prior conviction pursuant to 21 U.S.C. § 851, alleging that the defendant had been convicted of a felony drug offense in Nevada in 2006. Filing 52.

The defendant was convicted after a jury trial, based in large part on testimony from cooperating witnesses and on recordings of jailhouse telephone calls involving the defendant's brother. See filing 70; filing 72. He was ultimately sentenced to the mandatory minimum sentence of 20 years' imprisonment. See filing 93. The defendant appealed, still represented by trial counsel, but the U.S. Court of Appeals for the Eighth Circuit affirmed the judgment. United States v. Mayfield, 909 F.3d 956 (8th Cir. 2018). His petition for writ of certiorari was denied on May 20, 2019. Filing 125.

The defendant filed a motion asking the Court to extend the statute of limitations for filing a § 2255 motion. Filing 128. The Court denied that motion without prejudice, explaining that the Court couldn't determine when the statute of limitations for a § 2255 motion would accrue without knowing the basis for the motion, and couldn't assess whether equitable tolling of the statute of limitations would be appropriate until a motion was actually filed. Filing 129. The defendant filed another motion to the same effect, filing 130, and got the same answer, filing 131.

The defendant timely filed his initial § 2255 motion on May 18, 2020, within one year of the denial of his petition for writ of certiorari. Filing 133; see § 2255(f); see also Campa-Fabela v. United States, 339 F.3d 993, 993-94 (8th Cir. 2003). At the same time, he filed another motion to extend the statute of limitations, based on limited library access because of his institution's COVID-19 "lockdown." Filing 132. He filed a supplemental § 2255 motion on August 21, 2020. Filing 136. The Court finds that the denial of library access due to the COVID-19 pandemic, and the defendant's filing of a nearly complete brief before the statute of limitations elapsed, demonstrate that the defendant has been pursuing his rights diligently and some extraordinary circumstances stood in his way. See Deroo v. United States, 709 F.3d 1242, 1246 (8th Cir. 2013). Accordingly, the Court will grant the defendant's motion to extend.¹

DISCUSSION

The defendant's motions raise several claims of ineffective assistance of counsel. To establish a claim of ineffective assistance of counsel, the defendant must show that his attorney's performance was deficient and that this prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Deficient performance can be shown by demonstrating that counsel's performance fell below an objective standard of reasonableness. Id. at 688. However, the Court's scrutiny of counsel's performance is highly deferential, because the Court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. at 689.

To satisfy the prejudice prong of Strickland, the defendant must show that counsel's error actually had an adverse effect on the defense. Gregg v. United States, 683 F.3d 941, 944 (8th Cir. 2012). The defendant must do more than show that the errors had some conceivable effect on the outcome of the proceeding. Id. Rather, the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. A "reasonable probability" is less than "more likely than not," but it is more than a possibility; it must be sufficient to undermine confidence in the outcome of the case. Paul v. United States, 534 F.3d 832, 837 (8th Cir. 2008).

FAILURE TO OBJECT TO PRIOR FELONY DRUG OFFENSE

The defendant argues that his 2006 conviction for selling crack cocaine in violation of Nev. Rev. Stat. 453.337 did not qualify as a "felony drug offense" for purposes of 21 U.S.C. § 841(b)(1)(E)(ii), and that trial counsel was ineffective for failing to object at sentencing on those grounds.² Filing 134 at 1-12. He relies upon United States v. Figueroa-Beltran, 892 F.3d 997, 1004 (9th Cir. 2018), in which the Ninth Circuit questioned whether § 453.337 was a "drug trafficking offense" for purposes of U.S.S.G. § 2L1.2. Filing 134 at 8-9.

But the definition of "drug trafficking offense" under the Guidelines is different from the definition of "felony drug offense," and under the Guidelines, the Court applies a categorical approach to determine whether a state law offense is a "drug trafficking offense" for purposes of the Guidelines. See United States v. Benitez-De Los Santos, 650 F.3d 1157, 1159 (8th Cir. 2011). Pursuantto § 841(b)(1)(E)(ii), however, a conviction results in a 20-year mandatory minimum sentence if the defendant previously committed "an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country that prohibits or restricts conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances." 21 U.S.C. § 802(44). That's an extremely broad definition. See United States v. Brown, 598 F.3d 1013, 1015-16 (8th Cir. 2010). And the Eighth Circuit has not applied a categorical approach in determining whether prior offenses meet that definition. See id.; see also United States v. Modisett, 731 F. App'x 548, 550 (8th Cir. 2018); United States v. Ingram, 594 F.3d 972, 981 (8th Cir. 2010).

Section 453.337 proscribes the possession for sale of flunitrazepam, gamma-hydroxybutyrate, and their precursors (i.e. date-rape drugs), or any controlled substance classified in schedule I or II (see Nev. Admin. Code 453.510 & 453.520; see also Nev. Rev. Stat. 453.166 & 453.176). The statute very clearly "restricts conduct relating to" narcotic drugs, depressants, and stimulants. Accordingly, trial counsel was not deficient in not objecting to the defendant's prior conviction for violating it, nor was the defendant prejudiced by that failure to object.

FAILURE TO MOVE IN LIMINE TO EXCLUDE COOPERATING WITNESS TESTIMONY

As noted above, the defendant was convicted based at least in part on the testimony of cooperating witnesses. The defendant asserts that trial counsel was ineffective in failing to file a "motion in limine to exclude and limit government witnesses' [sic] testimony" for a "pre-trial reliability hearing in order to prove their testimony was inherently unreliable." Filing 134 at 12.

But a pretrial "reliability hearing" as to the credibility of witnesses just isn't a thing. Witness credibility determinations are left to the jury, not theCourt. See United States v. Harris, 966 F.3d 755, 762 (8th Cir. 2020). And convictions may properly rest solely on the testimony of co-conspirators and cooperating witnesses. United States v. Jefferson, 975 F.3d 700, 705 (8th Cir. 2020). An accomplice's testimony is not discredited simply because the witness may benefit from inculpating the accused, and it is the jury's responsibility to decide whether a witness is telling the truth despite incentives to lie. United States v. Lop Bounmy, 403 F.3d 1018, 1021 (8th Cir. 2005). Counsel was not ineffective in failing to file a meritless motion, nor was the defendant prejudiced by counsel's failure to file a motion that the Court would have denied out of hand.

The defendant also argues that counsel "should have further argued for special/cautionary jury instructions to instruct the jury to scrutinize the government witnesses' testimony with care, which would have allowed petitioner to receive Due Process during trial." Filing 134 at 16. But the Court gave precisely such an instruction. Filing 74 at 9. The defendant contends that the Court's Instruction #8 was deficient because it didn't name the cooperating witnesses specifically and "speculates about them receiving a reduced sentence." But, in fact, the instruction correctly stated the law: there is no guarantee of a reduced sentence for cooperating witnesses. See Fed. R. Crim. P. 35(b); cf. United States v. Rublee, 655 F.3d 835, 839 (8th Cir. 2011). Nor is the Court persuaded that the jury...