United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
TERRY F. MOORER, Magistrate Judge.
This matter is before the court on a motion by Peter Makusi Otemba Owuor ("Owuor") to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. Doc. No. 1.
On June 26, 2009, a jury found Owuor guilty of falsely representing himself to be a United States citizen, in violation of 18 U.S.C. § 911, and making false statements, in violation of 18 U.S.C. § 1001(a)(2). On February 9, 2010, the district court sentenced Owuor to 10 months in prison followed by one year of supervised release. Owuor appealed to the Eleventh Circuit, arguing that the district court erred (1) by denying his motions to suppress his statements to Immigration and Customs Enforcement ("ICE") agents and to dismiss the indictment, and (2) by giving an Allen charge to the jury after it announced it was deadlocked. On September 24, 2010, the Eleventh Circuit affirmed Owuor's convictions and sentence. United States v. Owuor, 397 Fed.App'x 572 (11th Cir. 2010). Owuor petitioned the United States Supreme Court for a writ of certiorari, which that court denied on February 22, 2011. Owuor v. United States, 131 S.Ct. 1522 (2011) (No. 10-8232).
On February 17, 2012, Owuor, proceeding pro se, filed this motion under 28 U.S.C. § 2255 asserting the following as grounds for relief:
1. ICE Agent Blake Diamond committed perjury during the pretrial hearing on Owuor's motions to suppress his statements and dismiss the indictment.
2. The government improperly gained knowledge of Owuor's defense strategy through documents taken from his jail cell.
3. The government withheld exculpatory videotape evidence.
4. The government improperly introduced hearsay evidence in an arrest report.
5. Owuor's convictions for both falsely representing himself to be a United States citizen and making false statements violated the Double Jeopardy Clause.
6. Owuor's trial counsel rendered ineffective assistance by -
(a) failing to pursue a defense of "vindictive prosecution";
(b) failing to investigate and discover Agent Diamond's perjury and failing to use evidence to impeach the trial testimony of government witnesses;
(c) failing to argue the government improperly gained knowledge of the defense's strategy through documents taken from Owuor's jail cell;
(d) failing to introduce exculpatory videotape evidence of the circumstances of Owuor's arrest and failing to challenge the government's failure to disclose this exculpatory evidence;
(e) informing the jury during closing argument that Owuor was in the United States illegally;
(f) failing to object to the admission of hearsay evidence in an arrest report; and
(g) failing to timely object to the jury selection process.
7. Owuor's appellate counsel rendered ineffective assistance by -
(a) failing to argue on appeal that the district court erred in refusing his proposed theory-of-defense jury instruction; and
(b) failing to raise claims on appeal based on all the objections raised at trial.
Doc. No. 1 at 4-59.
After consideration of Owuor's § 2255 motion, the submissions supporting and opposing the motion, and the record, the court concludes that an evidentiary hearing is not required and that, under Rule 8(a), Rules Governing Section 2255 Proceedings in the United States District Courts, the § 2255 motion should be denied.
A. General Standard of Review
Because collateral review is not a substitute for direct appeal, the grounds for collateral attack on final judgments under 28 U.S.C. § 2255 are limited. A prisoner is entitled to relief under § 2255 if the court imposed a sentence that (1) violated the Constitution or laws of the United States, (2) exceeded its jurisdiction, (3) exceeded the maximum authorized by law, or (4) is otherwise subject to collateral attack. See 28 U.S.C. § 2255; United States v. Phillips, 225 F.3d 1198, 1199 (11th Cir. 2000); United States v. Walker, 198 F.3d 811, 813 n.5 (11th Cir. 1999). "Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for that narrow compass of other injury that could not have been raised in direct appeal and would, if condoned, result in a complete miscarriage of justice.'" Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (citations omitted).
B. Substantive Claims Not Raised on Direct Appeal
Owuor's § 2255 motion includes the following substantive claims not raised on direct appeal:
ICE Agent Blake Diamond committed perjury during the pretrial hearing on Owuor's motions to suppress his statements and dismiss the indictment.
The government improperly gained knowledge of Owuor's defense strategy through documents taken from his jail cell.
The government withheld exculpatory videotape evidence.
The government improperly introduced hearsay evidence in a police report;
Owuor's convictions for both falsely representing himself to be a United States citizen and making false statements ...