United States v. Robinson

1

UNITED STATES OF AMERICA, Plaintiff, v. JALIL LEMASON ROBINSON, Defendant.

Civil No. 22-cv-02641-PAB

CRIMINAL No. 18-cr-00144-PAB

United States District Court, D. Colorado

April 8, 2024

ORDER

PHILIP A. BRIMMER, Chief United States District Judge

This matter comes before the Court on defendant Jalil Robinson's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 USC § 2255 [Docket No. 215]. The government has filed a response opposing the motion. Docket No. 219. Mr. Robinson filed a reply. Docket No. 220. The Court construes Mr. Robinson's filings liberally because he is not represented by counsel. See Haines v Kerner, 404 U.S. 519, 520-21 (1972); Hall v Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However the Court will not act as a pro se litigant's advocate. See Hall, 935 F.2d at 1110. For the reasons discussed below, the Court denies the motion. Necessary.

I. FACTUAL BACKGROUND

Investigator Craig Tangeman, an investigator with the Arapahoe County Sherriff's Office assigned to work with the FBI Innocence Lost Task Force, created a fictional social media profile for an eighteen-year-old woman named Brooke on a dating website. United States v. Robinson, 993 F.3d 839, 843, 846 (10th Cir. 2021). Mr. Robinson contacted “Brooke,” propositioning her to become his “business partner” as a prostitute. Id. at 843. “Brooke” later informed Mr. Robinson that she was, in fact, a seventeenyear-old named Nikki. Id. “Nikki” was really Investigator Tangeman. Id. Despite learning “Nikki's” age, Mr. Robinson continued to pursue plans to have “Nikki” work for him as a prostitute. Id. “Nikki” agreed to travel from Denver to meet Mr. Robinson in California. Id. at 843-44. When Mr. Robinson arrived at the California bus terminal to meet ”Nikki,” federal law enforcement agents arrested him. Id. at 844. Mr. Robinson was indicted for attempted sex trafficking of a child, in violation of 18 U.S.C. §§ 1591(a)(1), (b)(2), and 1594(a), Count 1, and for transporting an individual to engage in prostitution, in violation of 18 U.S.C. § 2421, Count 2. Docket No. 80.

II. PROCEDURAL HISTORY

On December 6, 2018, a jury found Mr. Robinson guilty of both counts. Docket No. 144. On July 12, 2019, the Court sentenced Mr. Robinson to 188 months imprisonment as to Count 1 and 120 months as to Count 2, to be served concurrently. Docket No. 191 at 2. Judgment was entered on July 18, 2019. Docket No. 194. The Tenth Circuit affirmed the judgment on April 2, 2021, and the Supreme Court denied certiorari on October 4, 2021. Docket Nos. 209, 212.

On October 2, 2022, Mr. Robinson mailed his motion pursuant to 28 U.S.C. § 2255. Docket No. 215 at 10. Section 2255 generally requires that a defendant file a petition within one year of the date on which the judgment of conviction becomes final. 28 U.S.C. § 2255(f)(1). A conviction is final when certiorari is denied. United States v. Prows, 448 F.3d 1223, 1227 (10th Cir. 2006). Mr. Robinson's motion is timely. See 28 U.S.C. § 2255(f)(1).

III. ANALYSIS

In his § 2255 motion, Mr. Robinson argues that he received ineffective assistance of counsel. Docket No. 215 at 6-8. Mr. Robinson claims that his counsel was ineffective because (1) he failed to request additional jurors due to the limited number of Black individuals in the jury pool and he did not, either during voir dire or during other portions of the trial, inform the jury of cultural issues regarding the meaning of the word “pimp”; (2) he failed to raise the issue of sentencing entrapment, failed to seek a lesser-included offense instruction, and did not investigate whether Mr. Robinson could get the benefit of the plea bargain such as was offered in a similar case, Case No. 18-cr-00265-RM; and (3) he failed to subpoena a witness from the social media sites Hi5 or Tagged to testify about the websites' age restriction policies. Id.

To establish ineffective assistance of counsel, Mr. Robinson must demonstrate both that counsel's performance fell below an objective standard of reasonableness and that counsel's deficient performance resulted in prejudice to his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). A court is not required to address both prongs of the Strickland test if the defendant fails to make a sufficient showing of one. Frederick v. Quick, 79 F.4th 1090, 1105 (10th Cir. 2023).

“Judicial scrutiny of counsel's performance must be highly deferential.” Strickland, 466 U.S. at 689. There is “a strong presumption” that counsel's performance falls within the “wide range of reasonable professional assistance.” Id. Mr. Robinson bears the burden of overcoming this presumption by showing that the alleged errors were not sound strategy under the circumstances. See id. “To demonstrate constitutional deficiency, [the defendant] must show that counsel's performance was completely unreasonable, not simply wrong.” Meadows v. Lind, 996 F.3d 1067, 1075 (10th Cir. 2021) (citation omitted). “To show prejudice 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. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Honie v. Powell, 58 F.4th 1173, 1189 (10th Cir. 2023) (alternation and citation omitted).

A. Jury Related Challenges

Mr. Robinson's first argument in regard to the jury is that his counsel was ineffective because he failed to request “an additional jury pooling,” which violated his Fifth Amendment right to be tried before a jury of his peers. Docket No. 215 at 6. Mr. Robinson states that there were only two Black members of the jury pool and that there was only one Black member of the jury in his case. Id.

If the Court interprets Mr. Robinson's motion to claim that the venire was improperly constituted in violation of the Sixth Amendment, Mr. Robinson's argument fails. Mr. Robinson is not entitled to “a jury of ‘any particular composition' and the jury actually chosen does not have to ‘mirror the community.'” United States v. Gault, 141 F.3d 1399, 1402 (10th Cir. 1998) (quoting Taylor v. Louisiana, 419 U.S. 522, 538 (1975)). Rather, the “Sixth Amendment guarantee of an impartial jury is violated if the jury selection system does not draw its jury members from a fair cross section of the community.” United States v. Frazier, 429 Fed.Appx. 730, 733 (10th Cir. 2011) (unpublished) (alternation and citation omitted). “To establish a Sixth Amendment violation, Defendant must show: (1) that the group alleged to be excluded is a distinctive group in the community; (2) that the representation of this group in jury venires is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.” Id. at 733-34 (citation omitted). “Defendant bears the burden of producing evidence to support his constitutional challenge.” Id. at 734. Mr. Robinson has produced no evidence to support a claim that the venire was not drawn from a fair cross-section of the community. His argument that the racial composition of the venire violated his constitutional rights therefore fails. For the same reason, Mr. Robinson has not shown that he received ineffective assistance of counsel based on the fact that his attorney did not advance the constitutional argument he now makes.

Mr. Robinson also claims that his attorney “allowed voire [sic] dire to conclude without ensureing [sic] Defendant received a jury including members likely to understand” the possible range of meanings of the word “pimp.” Docket No. 215 at 6. Mr. Robinson states that “certain vernacular uses of language (in particular, the word ‘pimp') are common in Black/African-American culture” and that “specific cultural knowledge was necessary in order to understand the possible range of use of the word ‘pimp.'” Id.

However, Mr. Robinson does not have a right to a jury composed of persons with a certain understanding of a word, such as “pimp.” Moreover, to the extent that Mr. Robinson is claiming that his attorney had an obligation to explain the possible range of uses of the word “pimp” during voir dire, he misunderstands the limits imposed on voir dire by the Court, namely, to ask questions of the proposed jurors rather than making statements to them. Nevertheless, his attorney asked one of the prospective jurors if he could keep an open mind regarding pimps and pimping and he said that he could.

Docket No. 166 at 107:6-12. Defense counsel then asked the entire group whether anyone disagreed with the last juror and no one raised a hand. Id. at 107:13-108:7. The Court finds that Mr. Robinson's attorney acted reasonably in seeking assurance that the jurors would keep an open mind about the meaning of the word and how pimps behaved and in not attempting to communicate the various meanings of “pimp” during voir dire, especially given the fact that it would have had to be done without making statements to the jury.

Finally, Mr. Robinson criticizes his attorney for not specifically informing the jury of the range of uses of the word “pimp” at later stages of the trial. Docket No. 215 at 6. Mr. Robinson acknowledges that his attorney cross-examined Investigator Tangeman about the different meanings of “pimp,” but asserts that his attorney did not specifically inform the jury regarding that topic. Id. The Court rejects this argument. Once again, his attorney was not a witness and could not directly inform the jury of facts.

More importantly, although Mr. Robinson asserts that there are cultural nuances or alternative meanings to the word “pimp” in the Black community, id., the evidence presented at trial demonstrates...