United States District Court, D. Colorado
ORDER DENYING § 2255 MOTION TO VACATE
BROOKE JACKSON UNITED STATES DISTRICT JUDGE
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) 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.
For the reasons stated below, the Court denies the §
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
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.
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.
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
STANDARD OF REVIEW
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).
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.
§ 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
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
10. For neglecting to object to violations of [Mr.
Greenwood's] Sixth Amendment right to confrontation and
11. For failing to object to improper and prejudicial jury
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
Docket No. 159 at 3-4.
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.
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.
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
Law Governing Ineffective Assistance of Counsel
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,
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.
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).
Claim That Centers on Counsel's
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. 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.
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)).
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.
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.
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.
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
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).
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
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).
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.
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.
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)).
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).
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
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.
Claims Alleging a ...