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United States v. Greenwood

United States District Court, D. Colorado

July 26, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,
1. KENNETH GREENWOOD, Defendant/Movant. Civil Action No. 16-cv-00436-RBJ



         This matter is before the Court concerning the Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody ("§ 2255 Motion") (Docket No. 158[1]) and Memorandum of Law in Support of Motion to Vacate, Set Aside, or Correct Sentence (Docket No. 159) filed by Defendant/Movant Kenneth Greenwood. The Government's Response to § 2255 Motion ("Response") has also been filed. Docket No. 165. Mr. Greenwood has submitted his Reply. Docket No. 173[2] For the reasons stated below, the Court denies the § 2255 Motion.

         I. BACKGROUND

         Following a jury trial in November 2013, Mr. Greenwood was found guilty of two counts of possession of a firearm by a prohibited person in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) and two counts of possession of less than twenty-eight grams of cocaine base with the intent to distribute in violation of 21 U.S.C. §§ 841 (a)(1) and (b)(1)(C) and 851. Docket No. 128 at 1-2. The jury did, however, acquit Mr. Greenwood of a third identical drug count. Id.

         Two weeks after the jury verdict was reached, Mr. Greenwood filed a motion for judgment of acquittal regarding the two drug counts. Docket No. 118. He argued that because he had claimed the defense of entrapment concerning the drug charges and the jury had returned a verdict of not guilty on one of the drug counts, the Court must find as a matter of law that the Government had failed to prove he was not entrapped with respect to the other two later-in-time drug transactions. Id. Following oral argument, the Court ruled from the bench and denied the motion. Docket No. 127 at 5-6. For purposes of sentencing, the Court calculated an offense level of 30 and a criminal history category of VI, producing a guideline range of 168-210 months. Id. at 20. The Court sentenced Mr. Greenwood to two terms of imprisonment of 120 months each for the firearms possession convictions and two terms of 132 months each for the drug convictions, with all of the terms of imprisonment to be served concurrently. Docket No. 128 at 3. Judgment was imposed on February 3, 2014. Id. at 1.

         Mr. Greenwood timely filed Notice of Appeal in his case. Docket No. 129. The United States Court of Appeals for the Tenth Circuit affirmed this Court's judgment on December 11, 2014. Docket No. 156. Mr. Greenwood did not seek a petition for certiorari review by the United States Supreme Court.

         On February 22, 2016, Mr. Greenwood filed the instant § 2255 Motion, in which he asserts 13 claims of ineffective assistance of trial counsel and one claim of ineffective assistance of appellate counsel. Docket Nos. 158 and 159. Based on the briefing received from the parties, Mr. Greenwood's § 2255 Motion is ripe for decision by the Court.


         The provisions of 28 U.S.C. § 2255 allow a prisoner in federal custody to collaterally attack a federal sentence on four grounds: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose the 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). A § 2255 motion is not a substitute for a direct appeal. United States v. Warner, 23 F.3d 287, 291 (10th Cir. 1994).

         The Court must construe the § 2255 Motion liberally because Mr. Greenwood is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the court should not be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110.

         III. ANALYSIS

         In his § 2255 Motion, Mr. Greenwood alleges that his trial counsel was ineffective:

1. For stipulating to essential elements of the charged offense without [Mr. Greenwood's] authorization.
2. For waiving [Mr. Greenwood's] right to presence without an intentional waiver by [Mr. Greenwood].
3. For failing to challenge or cross-examine the government's informant concerning the improper gratuities provided to its chief witness.
4. For refusing to object to blatant instances of prosecutorial misconduct.
5. For neglecting to object to opinions and statements on ultimate issue [sic] which were rendered by case agent who was proposed as expert.
6. For failing to object to testimony of the case agent which improperly mentioned [Mr. Greenwood's] prior convictions in the presence of the jury.
7. For neglecting to object to testimony of the expert witness on matters which were beyond the scope of his authorization to testify as an expert.
8. For neglecting to object to prejudicial hearsay testimony.
9. For failing to cross-examine the case agent concerning false testimony.
10. For neglecting to object to violations of [Mr. Greenwood's] Sixth Amendment right to confrontation and cross-examination.
11. For failing to object to improper and prejudicial jury instruction.
12. For failing to object to the Court's responses to jury notes requesting clarification of legal issues.
13. For failing to object to neglect [sic] in awarding [Mr. Greenwood] a two-level reduction for acceptance of responsibility.

Docket No. 159 at 3-4.

         In a fourteenth claim, Mr. Greenwood contends that his appellate counsel was ineffective for failing to argue that the cumulative error doctrine requires a new trial in his case. Id. at 4.

         The Government agrees with Mr. Greenwood that his § 2255 Motion is timely, but has defended against each of Mr. Greenwood's claims and any supporting allegations. Docket No. 165. In its Response, the Government sought to simplify organization of their response by arranging Mr. Greenwood's claims into four categories:

A. Claim one, which centers on counsel's stipulations.
B. Claims that allege a failure to object, consisting of claims 5, 6, 7, 8, 10, 11, 12, and 13.
C. Claims that rest on misapprehensions of law, involving claim 2, or of fact, comprised of claims 3, 4 and 9.
D. Claim 14 challenging the performance of appellate counsel.

Id. at 4.

         Mr. Greenwood does not object to the organization of his claims in this manner, and has fashioned his Reply in accordance with the format of the Government's Response. Docket No. 173 at 1. Therefore, the Court's ruling will follow the same structure.

         A. Law Governing Ineffective Assistance of Counsel Claims

         To obtain relief under § 2255 on grounds of ineffective assistance of counsel, Mr. Greenwood must establish that performance by his lawyers was deficient as compared to an objective standard of reasonable performance. Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); see also Upchurch v. Bruce, 333 F.3d 1158, 1163 (10thCir. 2003) (claims asserting the ineffectiveness of appellate counsel are governed by the Supreme Court's decision in Strickland). "Thus, 'we give considerable deference to an attorney's strategic decisions and recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.'" United States v. Patterson, 525 Fed.Appx. 681, 685 (10th Cir. 2013) (unpublished) (quoting Bullock v. Carver, 297 F.3d 1036, 1044 (10th Cir. 2002) and Strickland, 466 U.S. at 690). Mr. Greenwood bears the burden of demonstrating that his counsels' performances "fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688, 694.

         Mr. Greenwood must also prove that deficient performance by counsel prejudiced his defense, "depriving him of a fair trial with a reliable result." United States v. Orange, 447 F.3d 792, 796 (10th Cir. 2006) (citing Strickland, 466 U.S. at 687). To satisfy the prejudice prong, Mr. Greenwood must show that there is a reasonable probability that but for alleged error by counsel, the result of the proceeding would have been different. Strickland, 466 U.S. at 694.

         Because Mr. Greenwood "must demonstrate both Strickland prongs to establish his claim[s], a failure to prove either one is dispositive." Orange, 447 F.3d at 796-97 (citing Smith v. Robbins, 528 U.S. 259, 286 n. 14 (2000)). "The performance component need not be addressed first." Smith, 528 U.S. at 286 n. 14. "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." Strickland, 466 U.S. at 697. Mr. Greenwood, as the movant, bears the burden of proving he was prejudiced by the claimed action or inaction by his counsel. See Id. at 694; see also United States v. Kennedy, 225 F.3d 1187, 1197 (10th Cir. 2000) (a section 2255 defendant has the burden of overcoming the presumption that counsel provided effective assistance).

         B. Claim That Centers on Counsel's Stipulations

         Mr. Greenwood argues his attorney provided ineffective assistance of counsel under an allegation that without his knowledge or consent, his attorney entered into a stipulation regarding two of the three essential elements needed to establish each of the two counts of felon in possession of a firearm against him, i.e., that Mr. Greenwood was a felon and that the alleged weapon traveled in interstate commerce.[3] Docket No. 159 at 7. Mr. Greenwood contends that removing the requirement of proof for these two elements from the Government's burden at trial made it easier for the Government to secure a conviction, thereby constituting a plea of guilty to the charges, and waived his right to confront witnesses. Id.

         Mr. Greenwood relies on Brookhart v. Janis, 384 U.S. 1 (1966) and United States v. Aptt, 354 F.3d 1269 (10th Cir. 2004) as authority for his claim in this regard. In Brookhart and Aptt, however, the courts were clear that the issue of whether the defendant must participate personally in the waiver of a right depends on the right at stake. Brookhart, 384 U.S. at 7-8; Aptt, 354 F.3d at 1281-82. As stated by the Government, Supreme Court precedent has recognized four decisions a defendant has "the ultimate authority" to determine and therefore which cannot validly be waived by counsel as trial strategy in the face of client disagreement: "whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal." Florida v. Nixon, 543 U.S. 175, 187 (2004). Further, as the Supreme Court has opined, "[a]lthough there are basic rights that the attorney cannot waive without the fully informed and publicly acknowledged consent of the client, the lawyer has - and must have - full authority to manage the conduct of the trial. The adversary process could not function effectively if every tactical decision required client approval." Taylor v. Illinois, 484 U.S. 400, 417-18 (1988). "Thus, some rights are firmly in the domain of trial strategy, and can be waived by counsel even in the face of client disagreement." Aptt, 354 F.3d at 1282 (citing Jones v. Barnes, 463 U.S. 745, 751 (1983)).

         Neither Mr. Greenwood's § 2255 Motion nor his Reply offers pertinent legal authority to support the contention that his trial counsel's entering into a stipulation regarding certain elements of a charged offense is a material deviation from objective standards of professional reasonableness. Instead, he appears to contend that such conduct is perse unreasonable. This contention does not withstand analysis under Strickland.

         First, the Court disagrees with the Government's offering of the unpublished opinion of the Court of Appeals for the Tenth Circuit in United States v. DeWilliams, 28 Fed.Appx. 913 (10th Cir. 2001), as providing support to Mr. Greenwood's position concerning ineffective assistance of counsel. First, in DeWilliams, the issue of the defense's stipulation to certain elements of the charged offense was considered in the context of a direct appeal, see id., which presents a very different legal posture than a postconviction habeas corpus proceeding which is raising the issue of such a stipulation in an ineffective assistance of counsel claim. In DeWilliams, "[i]he government [bore] the burden of proving a lack of prejudice under a trial error analysis." Id. at 917-18. Whereas under § 2255, Mr. Greenwood bears not only the burden of demonstrating prejudice by establishing that had it not been for his counsel's alleged errors, the result of the proceeding would have been different, but he also bears the additional burden of establishing that his counsel's performance was deficient as compared to an objective standard of reasonable performance. Additionally, the Tenth Circuit in DeWilliams found that the trial court - not counsel - committed error by not investigating the defendant's position further when it became aware the defendant did not agree to the stipulation regarding certain elements of a charged offense. Id. at 917. The issue presented to and decided by the appellate court in DeWilliams did not encompass the performance of defense counsel in the case or find that the decision to stipulate to some, but not all, elements of a charged offense is not within the domain of trial strategy but is instead a right that cannot be waived by counsel in the face of client disagreement. Therefore, based on the factual and legal differences between Mr. Greenwood's case and that of DeWilliams, the Court finds the ruling in DeWilliams to be inapplicable in this action.

         Mr. Greenwood has cited no authority under the Constitution or laws of the United States which would demonstrate a trial counsel's stipulation to certain elements of an offense - even a stipulation that may arguably be involuntary by the defendant -was objectively unreasonable where trial counsel nevertheless contests other, more significant, elements of the offense. "Tactical decisions, whether wise or unwise, successful or unsuccessful, cannot ordinarily form the basis of a claim of ineffective assistance." Hatch v. Oklahoma, 58 F.3d 1447, 1459 (10th Cir. 1995) (citations omitted) (overruled on other grounds by Daniels v. United States, 254 F.3d 1180, 1188 n.1 (10thCir. 2001) (citations and quotations omitted). Mr. Greenwood must show that counsel's performance was completely unreasonable so that it bears no relationship to a possible defense strategy, a demonstration that he cannot make in this regard. Stipulation to prior convictions that would be admitted anyway has been viewed as a classic example of strategic trial judgment by the Tenth Circuit Court of Appeals. See United States v. Chavez-Marquez, 66 F.3d 259, 263 (10th Cir. 1995). Also, Mr. Greenwood cannot refute the Government's statement that since there are no gun manufacturers located in Colorado, the prosecution's burden in proving that a firearm has traveled in interstate commerce is easily met. See United States v. Bedford, 354 Fed.Appx. 319, 321 (10thCir. 2009) (unpublished) ("the government could establish with minimal effort" that the firearm at issue had traveled interstate to Kansas since there were no firearm manufacturers located in Kansas). Mr. Greenwood provides no authority or facts to show that counsel's action in this regard fell below an objective standard of reasonable performance.

         Mr. Greenwood's argument that the stipulations amounted to a guilty plea additionally finds no traction in the context of an ineffective assistance of counsel claim since the stipulations did not fully relieve the Government of its burden of proof on the possession of a firearm by a prohibited person charges. Mr. Greenwood fails to demonstrate that concession of minor elements of the possession of a firearm offense is the functional equivalent of a guilty plea where, as here, trial counsel held the Government to its burden of proof with regard to the more significant element of the offense concerning whether Mr. Greenwood knowingly possessed a firearm. Cf. Boykin v. Alabama, 395 U.S. 238, 242-43 (1969) (a guilty plea is "more than a confession which admits that the accused did various acts," it is a "stipulation that no proof by the prosecution need be advanced" (internal quotation marks omitted)). Additionally, Mr. Greenwood's right to confrontation is not implicated in either of the stipulated elements, as he makes no attempt to show what witness he was precluded from cross-examining or what evidence in his favor would have been gained by such cross-examination concerning his prior felony criminal record or the fact that the firearm had traveled in interstate commerce. While Mr. Greenwood's filings must be construed liberally because of his pro se status, the Court cannot supply facts or construct a legal theory on his behalf that assumes facts that have not been pleaded. See generally Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989) (citing Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989) (while a court must liberally construe a pro se plaintiffs factual allegations, it should not supply additional facts or construct legal theories for the plaintiff).

         Accordingly, the Court finds there is no clear authority establishing that the decision of trial counsel to stipulate to elements like prior convictions and that a firearm traveled in interstate commerce, even over a defendant's objection, constitutes ineffective assistance of counsel. See United States v. Murphy, 156 Fed.Appx. 90, 93 (10th Cir. 2005) (unpublished) (for a defense counsel's advice to rise to the level of constitutional ineffectiveness, the decision to stipulate to the admission of evidence must have been not merely wrong but completely unreasonable so that it bears no relationship to a possible defense strategy). In the absence of evidence that his trial counsel's entry into such stipulations fell below an objective standard of reasonableness, Mr. Greenwood fails to establish the first prong of Strickland. See Strickland, 466 U.S. at 689 (a reviewing court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.") (quotation omitted).

         Since Mr. Greenwood has not demonstrated that his counsel's performance fell below an objective standard of reasonableness, it would generally not be necessary for the Court to reach the second question under Strickland regarding prejudice. See Orange, 447 F.3d at 796-97. However, since Mr. Greenwood notes in his Reply that he interprets the Government's position to be that deficient performance has been proven and therefore he replies only with regard to whether he was prejudiced by the performance, the Court will address the issue of prejudice under Strickland.

         Mr. Greenwood has offered no legal authority, no evidence, and no colorable argument to establish that there is a reasonable probability that the results of his trial would have been different without the stipulations concerning his prior convictions and that the firearms had traveled in interstate commerce. Mr. Greenwood alleges no viable facts to demonstrate that he was not previously convicted of a felony or that the firearm had not traveled in interstate commerce. If Mr. Greenwood's attorney had required the Government to present evidence showing these two elements of the crime charged, the Government may clearly have done so. See e.g. Bedford, 354 Fed.Appx. at 321 (that the firearm had traveled interstate was a fact that "the government could establish with minimal effort" since there were no firearm manufacturers located in Kansas); see United States v. Hudgins, 2016 WL 3523838, *5-6 (E.D. Mich. May 31, 2016) (as to the element of the felon in possession of a firearm charge regarding a prior felony conviction, the government is merely required to produce evidence of the prior criminal history at trial); see generally United States v. O'Kane, 185 F.3d 875, 1999 WL 448818, *4 (10th Cir. 1999) (unpublished) (certificate of appealability denied and appeal of denial of § 2255 motion dismissed because it would not have been difficult for the government to prove the element of the charged offense of armed robbery of a federally insured bank that deposits of the banks which were robbed by the defendant were generally insured by the FDIC).

         Instead, in his Reply, Mr. Greenwood represents that he was prejudiced because the prosecution's burden of proof via the stipulation was lessened and so he would have fared better by simply pleading guilty to the charged offenses. Docket No. 173 at 5. However, Mr. Greenwood cannot support a claim of ineffective assistance of counsel by merely stating he was prejudiced because counsel did not require the government to go through the motions of proving seemingly evident elements of the crime charged. See e.g. O'Kane, 1999 WL 448818 at *4.

         Additionally, with regard to Mr. Greenwood's allegation that he would have fared better by simply pleading guilty, an earlier plea offer was withdrawn by the prosecution on April 10, 2013, following the Court's indication that it was not inclined to accept an appeal waiver under the plea agreement, and the case was set for trial. Docket No. 31. While Mr. Greenwood provides no information concerning a viable offer by the prosecution under which he would have had the opportunity to plead guilty, the Government's Response does indicate there was a second plea offer which was rejected by Mr. Greenwood. Docket No. 165 at 17 (citing Docket No. 141 at 6). In this regard, however, Mr. Greenwood must demonstrate not only a reasonable probability that he would have pleaded guilty, but also that his resulting sentence would have been lower. Cf. United States v. Landsaw, 206 Fed.Appx. 773, 777 (10th Cir. 2006) (finding no prejudice where movant argued that he would have pleaded guilty to a different count and received a sentencing reduction if not for ineffective assistance, but could not establish that he actually would have received the reduction). Mr. Greenwood summarily contends in his Reply that "a guilty plea would have resulted in a sentencing guideline range which was extremely lower by several years." Docket No. 173 at 5.

         Mr. Greenwood provides no legal or factual support for his statement that his sentencing guideline range would have been "extremely lower by several years." While it is true that the sentencing guidelines generally provides for a two-level reduction if a defendant "clearly demonstrates acceptance of responsibility for his offense," U.S.S.G. 3E1.1, "[a] defendant who enters a guilty plea is not entitled to an adjustment... as a matter of right," id. at comment (n.3). "The sentencing judge is in a unique position to evaluate a defendant's acceptance of responsibility." Id. at comment (n.5). Given the discretionary nature of most sentencing issues, Mr. Greenwood states merely a conclusory assumption that his sentencing guideline range would have been lower. Such a conclusion is insufficient to support his claim of ineffective assistance of counsel. See United States v. Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994) (although a pro se habeas application must be liberally construed, a court is "not required to fashion [applicant's] arguments for him where his allegations are merely conclusory in nature and without supporting factual averments.") (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)).

         Mr. Greenwood fails to provide any facts or persuasive argument that there was a viable plea offer from the prosecution under which he would have agreed to plead guilty, he fails to demonstrate that there would have been a basis in fact for the Court to accept the plea of guilty pursuant to such an agreement, or that no provisions of such an agreement would be found to be contrary to law, or that his resulting sentence would have been lower. See e.g. Fed. R. Crim. P. 11 (b)(3) ("Before entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea.") and 11 (c)(3) (concerning judicial consideration of a plea agreement).

         Finally, contrary to the position he now takes in his Reply, Mr. Greenwood's original representation to the Court in his § 2255 Motion was that he "consistently expressed his innocence and a desire to proceed to trial on the charged offenses." Docket No. 159 at 7. At best, Mr. Greenwood has demonstrated a change of heart concerning a guilty plea as part of these postconviction proceedings, which is insufficient to demonstrate that the outcome of the proceedings likely would have changed under the prejudice prong of Strickland. See United States v. Allen, 497 Fed.Appx. 853, 854 (10th Cir. 2012) (unpublished) (rejecting a similar Strickland claim because the defendant maintained a position of innocence throughout the case); see also Sanders v. United States, 341 F.3d 720, 723 (8th Cir. 2003) (defendant who maintains innocence at all stages of prosecution undermines later claims under § 2255 that he would have pleaded guilty had he received effective assistance of counsel). Therefore, Mr. Greenwood's mere speculation that he would have pleaded guilty in this regard is insufficient to demonstrate prejudice.

         Accordingly, with regard to his claim that centers on counsel's stipulations, the Court finds that Mr. Greenwood has not demonstrated his trial counsel's performance fell below the Strickland standard, and even if it had, Mr. Greenwood has not demonstrated that such deficient performance was prejudicial and thus warrants relief. Therefore this claim will be denied.

         C. Claims Alleging a ...

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