United States District Court, N.D. Alabama, Northwestern Division
LOVELACE BLACKBURN UNITED STATES DISTRICT JUDGE.
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.) 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.
PROCEDURAL HISTORY. .
STANDARD OF REVIEW
MISCARRIAGE OF JUSTICE.. .................................
DENTON'S HABEAS CLAIMS.. ................................
PROSECUTORIAL MISCONDUCT .........................
Second Grand Jury.. ................................
False Evidence Presented to Grand Jury.. ................
BOOKS AND OTHER LEGAL MATERIALS ..... ........ 22
STANDBY COUNSEL. . .................................
Steen's heads-up to Stokes ............................
Witness Subpoenas. . ...............................
Withheld Discovery .................................
HOLLIE AND JONATHON TODD.. ........................
FRAUD ON THE COURT.. ...............................
ROBBERY IS A CRIME OF VIOLENCE. . . . ........... 39
OF APPEALABILITY.. ...................................
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
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Cir. 2013) (unpublished).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.
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
STANDARD OF REVIEW
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: 
“the sentence was imposed in violation of the
Constitution or laws of the United States;” 
“the court was without jurisdiction to impose such
sentence;”  “the sentence was in excess of the
maximum authorized by law, ” or  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,
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); 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
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). “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).
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).
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.
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).
reasons set forth below, the court finds Denton's
remaining claims are procedurally barred.
MISCARRIAGE OF JUSTICE
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.)
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.
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).
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.
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,  (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.)
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.
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.
DENTON'S HABEAS CLAIMS
Second Grand Jury
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
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[b][iv]”].) In this treatise, the
authors cite to the Manual for United States Attorneys.
See 24 Moore's Federal Practice §
606.02[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
if this claim is not procedurally barred, it would be denied
as without merit.
False Evidence Presented to Grand Jury
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
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. (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.)
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
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.
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. 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. ...