Denton v. United States

          MEMORANDUM OPINION

          SHARON LOVELACE BLACKBURN UNITED STATES DISTRICT JUDGE.

         This case is currently before the court on petitioner Ricky Walter Denton's Response to Court's Order for Denton to Show Cause in Writing Why His Remaining Claims Should Not Be Summarily Dismissed. (Doc. 53.)^[1] For the reasons set forth below, the court finds that Denton's remaining claims are due to be denied and his Renewed and Amended Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2255, (doc. 30; crim. doc. 425), is due to be dismissed.

         TABLE OF CONTENTS

         I. PROCEDURAL HISTORY. . .......................................... 2

         II. STANDARD OF REVIEW ............................................ 4

         III. DISCUSSION.. ................................................... 10

         A. MISCARRIAGE OF JUSTICE.. ................................. 10

         B. DENTON'S HABEAS CLAIMS.. ................................ 14

         1. PROSECUTORIAL MISCONDUCT ......................... 14

         a. Second Grand Jury.. ................................ 14

         b. False Evidence Presented to Grand Jury.. ................ 16

         2. LAW BOOKS AND OTHER LEGAL MATERIALS ..... ........ 22

         3. STANDBY COUNSEL. . ................................. 25

         a. Steen's heads-up to Stokes ............................ 26

         b. Witness Subpoenas. . ............................... 28

         c. Withheld Discovery ................................. 32

         4. HOLLIE AND JONATHON TODD.. ........................ 35

         5. FRAUD ON THE COURT.. ............................... 37

         6. BANK ROBBERY IS A CRIME OF VIOLENCE. . . . ........... 39

         7. SENTENCE ............................................ 42

         CONCLUSION.. ..................................................... 45

         CERTIFICATE OF APPEALABILITY.. ................................... 45

         I. PROCEDURAL HISTORY

         The Eleventh Circuit set forth the following brief history of the proceedings in this case as follows:

In March 2011 Denton was charged with armed bank robbery and brandishing a firearm during and in relation to a crime of violence. He chose to represent himself and proceeded to a jury trial. . . .

. . .

The jury found Denton guilty of both charges, and the district court sentenced him to 244 months imprisonment. Denton appealed that conviction and we affirmed it.^[2] See United States v. Denton, 535 Fed.Appx. 832 (11th Cir. 2013) (unpublished). A little more than two months after judgment was entered, Denton filed a timely Rule 33(b)(1) motion for a new trial based on newly discovered evidence allegedly showing government obstruction and fraud. The district court denied that motion on the merits without holding an evidentiary hearing.

United States v. Denton, 697 Fed.Appx. 963, 965 (11th Cir. 2017)(footnote added). The Eleventh Circuit affirmed this court's denial of Denton's motion for a new trial. Id. at 968.

         This matter is now before this court on Denton's Renewed and Amended Motion to Vacate. (Doc. 30; crim. doc. 425.) Previously, the court summarily dismissed Denton's ineffective assistance claims. (Doc. 39.) At that time, it entered a Show Cause Order, ordering Denton to show cause why his remaining claims should not be dismissed as procedurally barred. (Id.) Denton responded, (doc. 53), and this court, for the reasons set forth herein, finds that Denton's remaining claims are procedurally barred and/or without merit.

         II. STANDARD OF REVIEW

         Collateral review pursuant to § 2255 is not a substitute for direct appeal; therefore, unlike a direct appeal, the grounds upon which a habeas petition may collaterally attack a final judgment are “extremely limited.” United States v. Marsh, 548 F.Supp.2d 1295, 1300 (N.D. Fla. 2008). Section 2255 sets forth four grounds for relief: [1] “the sentence was imposed in violation of the Constitution or laws of the United States;” [2] “the court was without jurisdiction to impose such sentence;” [3] “the sentence was in excess of the maximum authorized by law, ” or [4] the sentence “is otherwise subject to collateral attack.” 28 U.S.C.. § 2255(a); see also Hill v. United States, 368 U.S. 424, 426-27 (1962).

Because collateral review is not a substitute for a direct appeal, the general rules have developed that: (1) a defendant must assert all available claims on direct appeal, Mills v. United States, 36 F.3d 1052, 1055 (11th Cir.1994); and (2) “[r]elief 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.'” Richards v. United States, 837 F.2d 965, 966 (11th Cir. 1988)(quoting United States v. Capua, 656 F.2d 1033, 1037 (5th Cir. Unit A Sep.1981)).

Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004)(footnote omitted). “To adequately preserve a claim [for collateral review], a movant must raise it both before the trial court (whether by motion, objection, or otherwise) and also on direct appeal.” Isacson v. United States, No. 1:12-CR-40, 2013 WL 6097231, *7 (N.D.Ga. Nov. 19, 2013)(citing, inter alia, Murray v. Carrier, 477 U.S. 478, 490-92 (1986)). Except in limited circumstances not at issue here, ^[3] issues raised and considered on direct appeal cannot be relitigated through a Section 2255 petition. United States v. Nyhuis, 211 F.3d 1340, 1343 (11th Cir. 2000). Neither this court nor the Court of Appeals need consider “the same ‘newly discovered evidence' which was before [the Circuit Court of Appeals] at the time of [Denton's] first direct appeal, ” and “grounds raised in the instant § 2255 petition [that] have been previously decided by both the district court and [the Circuit Court of Appeals] in [his] petition for rehearing, [his] motion for new trial, and [his] direct appeal.” See Vernell v. United States, 559 F.2d 963, 964 (5th Cir. 1977);^[4] see also United States v. Sanders, 723 F.2d 34, 36 (8th Cir. 1983)(“Absent an intervening change in the applicable law, issues that have been raised and decided on a motion for a new trial cannot be reconsidered in a subsequent collateral attack.” (citing, inter alia, Vernell, 559 F.2d 963)).

         “[A] defendant generally must advance an available challenge to a criminal conviction or sentence on direct appeal or else the defendant is barred from presenting that claim in a § 2255 proceeding.” Lynn, 365 F.3d 1234 (emphasis added). “Challenges count as available on direct appeal when their merits ‘can be reviewed without further factual development.'” Linton v. United States, 712 Fed.Appx. 920, 923 (11th Cir. 2017)(quoting Mills v. United States, 36 F.3d 1052, 1055 (11th Cir. 1994))(emphasis added).^[5] “In procedural default cases, the question is not whether legal developments or new evidence has made a claim easier or better, but whether at the time of the direct appeal the claim was available at all.” Id. at 1235. “Where, however, facts essential to a claim are not in the appellate record, the general rule in favor of a procedural bar does not apply and the issue may be raised on collateral review to permit further factual development.” Brown v. United States, 688 Fed.Appx. 644, 651-52 (11th Cir. 2017)(citing Bousley v. United States, 523 U.S. 614, 621-22 (1998)(citing Waley v. Johnston, 316 U.S. 101 (1942) (per curiam))). “[A]n ineffective-assistance-of-counsel claim may be brought in a collateral proceeding under § 2255, whether or not the petitioner could have raised the claim on direct appeal.” Massaro v. United States, 538 U.S. 500, 504 (2003).

         “If the claim was raised and rejected on direct review, the habeas court will not readjudicate it absent countervailing equitable considerations; if the claim was not raised, it is procedurally defaulted and the habeas court will not adjudicate it absent countervailing equitable considerations (e.g., actual innocence or cause and prejudice . . .).” Withrow v. Williams, 507 U.S. 680, 721 (1993)(Scalia, J., concurring in part and dissenting in part)(citing United States v. Frady, 456 U.S. 152 (1982))(internal citation omitted).

A defendant can avoid a procedural bar only by establishing one of the two exceptions to the procedural default rule. Under the first exception, a defendant must show cause for not raising the claim of error on direct appeal and actual prejudice from the alleged error. Under the second exception, a court may allow a defendant to proceed with a § 2255 motion despite his failure to show cause for procedural default if a constitutional violation has probably resulted in the conviction of one who is actually innocent.

Lynn 365 F.3d at 1235 (internal citations and quotations omitted; emphasis in original). Petitioner bears the burden of demonstrating cause-and-prejudice and/or actual-innocence exceptions to the procedural bar. Sullivan v. Wainwright, 695 F.2d 1306, 1310 (11th Cir. 1983); see also Hill v. United States, 569 Fed.Appx. 646, 648 (11th Cir. 2014).

         Under the cause-and-prejudice exception, a § 2255 movant can avoid application of the procedural default bar by “show[ing] cause for not raising the claim of error on direct appeal and actual prejudice from the alleged error.” Lynn, 365 F.3d at 1235 (emphasis in original). “[T]o show cause for procedural default, [the petitioner] must show that some objective factor external to the defense prevented [him] from raising his claims on direct appeal and that this factor cannot be fairly attributable to [his] own conduct.” Id. at 1235 (footnote and citation omitted). “To establish ‘prejudice,' a petitioner must show that there is at least a reasonable probability that the result of the proceeding would have been different.” Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir. 2003)(quoting Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999)).

         In addition to the cause-and-prejudice exception, the Supreme Court has “recognized a narrow exception to the general rule [barring consideration of procedurally-defaulted claims] when the habeas applicant can demonstrate that the alleged constitutional error has resulted in the conviction of one who is actually innocent of the underlying offense.” Dretke v. Haley, 541 U.S. 386, 388 (2004). “To show actual innocence of the crime of conviction, a movant ‘must show that it is more likely than not that no reasonable juror would have found [him] guilty beyond a reasonable doubt' in light of the new evidence of innocence.” McKay v. United States, 657 F.3d 1190, 1197 (11th Cir. 2011)(quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). “To be credible, such a claim [of actual innocence] requires petitioner to support his allegations of constitutional error with new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial, ” and, “[b]ecause such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful.” Schlup, 513 U.S. at 324 (emphasis added).

         III. DISCUSSION

         For the reasons set forth below, the court finds Denton's remaining claims are procedurally barred.

         A. MISCARRIAGE OF JUSTICE

         In his response to the court's Show Cause Order, Denton argues:

Denton, moved to represent himself and concedes he cannot come here and claim ineffective counsel upon himself, nor is he trying to. However, this case represents a novel[ ] situation of the prosecution undermining the trial process out side the record. Granted Denton cannot claim ineffective assistance of counsel upon himself, but for the moment let's ask and answer the question[:] can a counsel of record be render[ed] ineffective by no fault of his own as a result of prosecutorial misconduct outside the record. The answer is yes. The next question [is] whether the misconduct could be discovered after the [trial], thus exempting it from a procedural bar because it was not raised on appeal[;] the answer there is yes. This is what we have here[, ] a case of outrageous government conduct which deprived Denton of a fundamentally fair trial, by and through prosecutorial misconduct out side the record, that was not ripe for appeal because it was not fully developed. Therefore, Justice and due process was denied at every critical stage of the criminal prosecution, a miscarriage of justice which will continue if this court procedurally bars these claims without providing Denton with ample means to develop those claims. . . . [T]his entire case was tainted with prosecutorial misconduct denying Denton his constitutional rights to a fundamentally fair trial.

(Doc. 53 at 6-7.)

         As set forth above, an exception to the procedural bar based on the miscarriage-of-justice exception requires a showing of actual innocence of the crime of conviction. “To show actual innocence of the crime of conviction, a movant ‘must show that it is more likely than not that no reasonable juror would have found [him] guilty beyond a reasonable doubt' in light of the new evidence of innocence.” McKay, 657 F.3d at 1196 (quoting Schlup, 513 U.S. at 327). The Supreme Court held, “[E]xperience has taught us that a substantial claim that constitutional error has caused the conviction of an innocent person is extremely rare. To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial.” Schlup, 513 U.S. at 324.

         In support of his Motion to Vacate, Denton argues that the sworn interrogatory answers of Hollie Todd and Jonathon Todd, filed May 10, 2012, (see crim. doc. 370), constitute newly discovered evidence, (see, e.g., doc. 30-1 at 28, 94, 96). For reasons previously stated, the court has found the affidavits of Hollie and Jonathon Todd are not credible. See United States v. Denton, No. 3:11-CR-054-SLB, 2015 WL 854391, *7, 9 (N.D. Ala. Feb. 27, 2015), aff'd 697 Fed.Appx. 963 (11th Cir. 2017). With regard to Jonathon Todd, this court held:

The court notes that Jonathan Todd testified that the man in the bank video walked like Denton; he did not testify that the man in the video was Denton. Moreover, the specific portion of the video that he specified looked like his father stepping indeed resembled Denton's manner of walking as observed by the court. Mr. Todd did not testify that Denton had clothing or shoes matching the clothing and shoes of the man in the video. He testified that he had not been charged with any crime and that he had not been promised anything in exchange for his testimony. Any inference to the contrary is simply not credible, especially in light of Denton's prior attempts to have Jonathan Todd testify falsely regarding his shoes and Wimberly's presence in the apartment on December 16, 2009.

The court finds that the “newly discovered evidence” - Jonathan Todd's answers to written questions - is not material and would not have produced an acquittal. Therefore, Denton's Motion for a New Trial, (doc. 370), will be denied.

Id. at *7 (footnote omitted). With regard to Hollie Todd, the court held:

Hollie Todd's answers do not indicate that she testified falsely at trial. The court finds her statement, regarding the fact that she would have given Denton an interview but for harassment, not credible. The court had the opportunity to observe Ms. Todd throughout these proceedings and the court's deputy specifically asked Ms. Todd if she was willing to meet with Denton, to which she said she did not wish to meet with Denton. Moreover, the court finds such an interview would have made no difference at trial.

Therefore, Denton's Motion for New Trial based on newly discovered evidence - Hollie Todd's answers to written questions - will be denied.

Id. at *9 (footnote omitted).

         The court's findings with regard to the credibility of the post-judgment testimony of Hollie and Jonathon Todd were affirmed by the Eleventh Circuit, Denton, 697 Fed.Appx. at 966-67, and will not be revisited.

         Denton also contends that he has “newly discovered evidence” that “stand by counsel acted as a spy in Denton's camp, ” (doc. 53 at 1-2); and that the surveillance video of the bank robbery does not show “true movement” because it consists of a series of still photographs, ^[6] (id. at 9 and n.8). Denton has not filed any “reliable evidence” of these two facts, although he has submitted his own Affidavit, which contains his factual allegations against his standby counsel. (See doc. 32-1 ¶¶ 23-26.)

         Assuming this “evidence” qualifies as reliable and “newly discovered, ” Denton has not persuaded the court that, considering all the evidence - the “new” evidence and the evidence presented at trial, “no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.” See Schlup, 513 U.S., at 329. “[T]he District Court must assess the probative force of the newly presented evidence in connection with the evidence of guilt adduced at trial, ” and “the court may consider how the timing of the submission and the likely credibility of the affiants bear on the probable reliability of that evidence.” Id. at 331-32. “Based on this total record, the court must make a probabilistic determination about what reasonable, properly instructed jurors would do. The court's function is not to make an independent factual determination about what likely occurred, but rather to assess the likely impact of the evidence on reasonable jurors.” House v. Bell, 547 U.S. 518, 538 (2006)(quoting Schlup, 513 U.S. at 329)(internal citation and quotations omitted). The evidence regarding the video of the bank robbery, standby counsel's heads-up to Stokes, and cancellation of Denton's subpoenas (discussed further below), when considered in light of evidence presented at trial, is sufficient to support a reasonable jury finding Denton guilty of armed bank robbery and of using a firearm during a crime of violence. Certainly, the evidence is such that the court cannot find that no juror would have found Denton guilty had he or she known that the bank video was a combination of still photographs, that standby counsel had given Stokes a heads-up about Denton's intention to question him regarding inconsistent statements, and/or that Denton's subpoenas were cancelled.

         For these reasons, the court finds that Denton has not shown that he is actually innocent of the crimes of conviction sufficient to excuse his procedural default of the claims, as set forth below, raised in his Motion to Vacate.

         B. DENTON'S HABEAS CLAIMS

         1. PROSECUTORIAL MISCONDUCT

         a. Second Grand Jury

         Denton contends that “[t]he government's attorney exceeded her authority in this case when she presented this case to a second grand-jury panel [without seeking permission from U.S. Attorney General] when a previous panel [had] failed to indict Denton.” (Doc. 30-1 at 39.) Denton was aware of the fact that he had been indicted by the second grand jury to consider his crimes prior to the end of his trial. See Appellant's Initial Brief, Denton v. United States, Nos. 15-11152-DD, 15-13674-DD, 2016 WL 3475361 at 23 (11th Cir. June 20, 2016)(Denton argued, “In fact this misconduct started all the way back to the grand jury proceedings, first the government attempted to get an indictment on Mr. Denton by presenting [its] key witness[, ] James Wimberly, but the grand jury was not buying it . . . . [T]he government went back to the grand jury and mis-represented material facts . . . .”); crim. doc. 352 at 121 (Denton stated in open court that he had James Wimberly's grand jury testimony; Wimberly did not testify before the second grand jury). This claim was available at the time of Denton's first appeal and, therefore, it is procedurally defaulted. Denton has not demonstrated cause for the default. The court finds that the claim is due to be dismissed.

         In the alternative, the court notes that Denton has not alleged a violation of a constitutional right or a violation of a law of the United States caused by the presentment of the charges to a second grand jury without prior authorization from the Attorney General. Citing Moore's Federal Practice, Denton alleges, “The standard policy of the Justice Department requires a prosecutor to seek permission from Washington, D.C.[, ] prior to presenting a crime to a second grand-jury when the previous grand-jury had failed to indict the defendant.” (Doc. 30-1 at 39 [citing “Vol. 24, Moore's Federal. Practice, section 606.02[2][b][iv]”].) In this treatise, the authors cite to the Manual for United States Attorneys. See 24 Moore's Federal Practice § 606.02[2][b][iv] n. 74. However, the Manual is not a law of the United States. See United States v. Apel, 571 U.S. 359, 368-69 (2014)(“The Manual provides only internal Department of Justice guidance. It is not intended to, does not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law by any party in any matter civil or criminal.”); see also San Pedro v. United States, 79 F.3d 1065, 1070 (11th Cir. 1996)(“It is well established that the [United States Attorneys' Manual] only provides guidance to officials at the Department of Justice and does not have the force of law.”). Denton has no right under federal or Constitutional law to set aside the indictment by a second grand jury obtained without prior approval of the Attorney General.

         Thus, if this claim is not procedurally barred, it would be denied as without merit.

         b. False Evidence Presented to Grand Jury

         Denton alleges that the prosecutor presented “false material facts” to the grand jury and that this requires reversal of his conviction. (Doc. 30-1 at 40.) Specifically, he contends that Special Agent Stokes testified falsely before the grand jury with regard to the following facts:

a. Authorities recovered a small caliber handgun shells during the first search of Denton apartment on the day following the robbery. (Doc. 30-1 at 41). The shells were actually recovered in the second search. (Id.)

b. Stokes led the grand jury to believe that Denton was unable to drive. (Id.) “[T]he AUSA and Stokes were well aware Denton drove and had a valid driver[']s license.” (Id. at 42.)

c. Stokes told the grand jury that an eye witness had described the bank robber as a man in a yellow hoodie; he did not mention to the grand jury that this eye witness had described the bank robber as “black.” (Id.) The eyewitness testified at trial that he had seen a black man driving the vehicle taken during the bank robbery. (Id.)

d. Stokes “[misled] a grand-juror to the conclusion that it could not be Wimberly robbing the bank because [Stokes] possessed a photo of the robber's face.” (Id. at 42.) However, the government did not have a photo of the robber's face.^[7] (Id.)

e. Stokes testified that Jonathon Todd told him that Denton and Todd had discussed robbing banks. (Id. at 43.) Todd submitted a sworn statement that he did not tell Stokes this information. (Id.)

f. Stokes testified before the grand jury that “[Jonathon] Todd made a positive identification of Denton in the video of the robbery.” (Id.) In his post-trial statement, “Todd swears that he never made such an identification.” (Id.)

         Prior to his direct appeal, Denton obtained Stokes's grand jury testimony. On appeal he argued that the Government had a duty to disclose Stokes's grand jury testimony as Jencks Act^[8] material. As part of his argument, Denton contended that the transcript showed “‘material inconsistencies' between Agent Stokes'[s] testimony before the grand jury and his testimony at trial.” Denton, 535 Fed.Appx. 832, 836 (11th Cir. 2013). The Eleventh Circuit rejected Denton's argument, holding, inter alia, “the portions of Agent Stokes'[s] grand jury testimony that Denton highlights on appeal are not inconsistent with Stokes'[s] later testimony at trial and thus lack any impeachment value anyway.” Id. at 837.

         After his direct appeal was filed, Denton filed a Motion for New Trial based, in part, on affidavits from Hollie and Jonathon Todd contradicting their trial testimony. These affidavits form the basis of a number of the allegations of perjury regarding Stokes's grand jury testimony.^[9] The court found these affidavits were not credible, and the Eleventh Circuit affirmed on appeal. See United States v. Denton, No. 3:11-CR-054-SLB, 2015 WL 854391, *7, 9, 10-11 (N.D. Ala. Feb. 27, 2015), aff'd 697 Fed.Appx. 963, 966-68 (11th Cir. 2017). Also, this court held:

Denton contends that Stokes testified falsely to the grand jury regarding “(1) [Jonathon] Todd positively [i]dentified Denton as the robber in the Video [;] (2)[t]hat [Jonathon] Todd [i]dentified the [c]lothes and [s]hoes the robber wore as Denton's[;] and (3)[t]hat Hollie Todd identified the gun as belonging to Denton.” [footnote] ([Crim.] Doc. 392 at 23.) He also contends that Stokes and Vanderford threatened Hollie and Jonathon with prosecution if they did not testify as identifying Denton and his clothing and gun in the bank video and/or if they communicated with Denton before or during the trial. As set forth above, the court finds Hollie and Jonathon Todd's statements regarding threats from Stokes and Vanderford are not credible and are immaterial.

[Footnote:] The court does not find, based on the sworn statements of Jonathon and Hollie Todd that Stokes knowingly testified falsely during the grand jury proceedings. Stokes testified that he interviewed Jonathon Todd, who identified the man in the bank video as his father by his clothing, the yellow hoodie, gloves, and tennis shoes with green trim, ([crim.] doc. 392-2 at 30), and “his gait, the way he walks, extremely strange, ” (id. at 29).

At trial Stokes did not testify that Jonathon Todd had identified his father's clothes as being the clothes of the bank robber or that he had identified the man in the video was his father. Also, he did not testify that Hollie Todd had identified the gun in the video as belonging to Denton. Yet, without this testimony from Stokes, the jury at trial found Denton guilty of all counts beyond a reasonable doubt. Therefore, the court finds Stokes's alleged false testimony before the grand jury was immaterial and did not prejudice Denton. See Bank of Nova Scotia v. United States, 487 U.S. 250, 254 (1988)(“We hold that, as a general matter, a district court may not dismiss an indictment for errors in grand jury proceedings unless such errors prejudiced the defendants.”); Anderson v. Secretary for Dept. of Corrections, 462 F.3d 1319, 1328 (11th Cir. 2006)(citing United States v. Mangual-Corchado, 139 F.3d 34, 42 (1st Cir. 1998); Talamante v. Romero, 620 F.2d 784, 791 (10th Cir. 1980)); see also United States v. ...