United States District Court, D. Colorado
ORDER ON PENDING MOTIONS
BROOKE JACKSON UNITED STATES DISTRICT JUDGE.
Alvarez Fykes moves (1) to vacate his conviction pursuant to
28 U.S.C. § 2255, ECF No. 150; (2) for the return of
property, ECF No. 165; (3) for the appointment of an
independent digital forensic specialist, ECF No. 166; (4) for
leave to supplement his habeas petition, ECF No. 168; and (5)
for a judicial recommendation for an expansion of the
residential reentry portion of his sentence from six to
twelve months, ECF No. 169. The Court denies the motions to
vacate and for appointment of an expert; grants the motions
for return of property and supplementation of the habeas
petition; and grants in part the motion for a reentry
February 1, 2015 two men in a red sedan, Michael Fykes and
Ron Trueblood, were arrested by Colorado Springs police
officers on suspicion of human trafficking. During an
inventory search of the vehicle police found a black backpack
in the trunk that contained a handgun and a passport. The
police officers then obtained a search warrant for the
backpack. Ultimately, they determined that the backpack
contained a loaded revolver, a U.S. passport in the name of
Mr. Fykes; a laptop computer that contained a medical damages
document of Mr. Fykes; a cell phone charger that fit Mr.
Fykes's cell phones, and a container of cigarillos that
were similar to cigarillos found close to Mr. Fykes's
human trafficking offense was not pursued. The state charged
Mr. Fykes with being a felon in possession of a firearm, but
the state prosecutor deferred to a federal prosecution when
the United States charged Mr. Fykes with the same offense.
The case was tried to a jury August 26-28, 2015, resulting in
a conviction. ECF No. 94 (redacted Jury Verdict). On January
29, 2016 the Court sentenced Mr. Fykes to 60 months in prison
and three years of supervised release. Judgment entered on
February 1, 2016. ECF No. 113. The Judgment was later amended
to correct a clerical error. See ECF No. 139.
February 3, 2017 the Tenth Circuit issued its order affirming
the conviction and sentence. United States v. Fykes,
678 Fed.Appx. 677 (10th Cir. Feb. 3, 2017)
(unpublished). The mandate issued on February 27, 2017. ECF
No. 141. Mr. Fykes later moved for modification of the
Probation Department's Presentence Investigation Report,
noting that the report referred to the “uncharged and
unproven pimping allegations, ” which impacted his
inmate classification by the Bureau of Prisons and resulted
in his being sent to a Federal Correctional Institution
without camp eligibility. ECF No. 142. I denied the motion.
ECF No. 143. Mr. Fykes appealed that order. ECF No. 144. On
May 15, 2018 the Tenth Circuit remanded the case with
directions to vacate the denial of the motion and instead to
dismiss the motion for lack of jurisdiction. 733 Fed.Appx.
950 (10th Cir. May 15, 2018) (unpublished). That
mandate issued on June 6, 2018. ECF Nos. 163).
PETITION - STANDARD OF REVIEW
March 3, 2018 Mr. Fykes, representing himself pro se, filed a
motion to vacate his conviction pursuant to 28 U.S.C. §
2255. ECF No. 150. Such motions are often referred to as
habeas petitions. Mr. Fykes asserts that (1) his trial
counsel was ineffective, id. at 14-27; and (2) the
Court should reconsider an upward variance because it relied
on pending charges that have since been dismissed.
Id. at 28. The government has filed a response. ECF
No. 155. Mr. Fykes has filed a reply, ECF No. 162, and a
supplement to his motion, ECF No. 168-1.
district court may dismiss a § 2255 motion without
holding a hearing if "the motion and the files and
records of the case conclusively show that the prisoner is
entitled to no relief." 28 U.S.C. § 2255(b). I must
construe the habeas application liberally because Mr. Fykes
is not represented by an attorney. See Haines v.
Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991). However, I should not be an advocate for a pro
se litigant. See Hall, 935 F.2d at 1110.
an intervening change in the law of a circuit, issues
disposed of on direct appeal generally will not be considered
on a collateral attack by a motion pursuant to
§2255.'” Warren v. United States, 706
Fed.Appx. 509, 511 (10th Cir. Aug. 24, 2017)
(unpublished) (quoting United States v. Prichard,
875 F.2d 789, 791 (10th Cir. 1989)).
‘“When a defendant fails to raise an issue on
direct appeal, he is barred from raising the issue in a
§ 2255 proceeding, unless he establishes either cause
excusing the procedural default and prejudice resulting from
the error or a fundamental miscarriage of justice if the
claim is not considered.'” Id. (quoting
United States v. Cox, 83 F.3d 336, 341
(10th Cir. 1996)).
establish ineffective assistance of counsel, a defendant must
show both that counsel's performance was deficient and
that the defense was prejudiced by that deficient
performance.” Smith v. Duckworth, 824 F.3d
1233, 1249 (10th Cir. 2016) (citing Strickland
v. Washington, 466 U.S. 668, 687 (1984)) (emphasis
added). “An insufficient showing on either element is
fatal to an ineffective-assistance claim, rendering
consideration of the other element unnecessary.”
Id. Deficient performance means that that
counsel's representation was objectively unreasonable,
i.e., that ‘“it amounted to incompetence under
prevailing professional norms, not whether it deviated from
best practices or most common custom.'”
Id. (quoting Harrington v. Richter, 562
U.S. 86, 105 (2011)). Prejudice requires the defendant to
“show that, but for counsel's deficient
performance, there is a reasonable probability the result of
the proceeding would have been different. Id.
MOTION TO VACATE (HABEAS PETITION).
Ineffective Assistance of Counsel.
habeas petition, ECF No. 150, Mr. Fykes argues that his trial
counsel was ineffective for two reasons: first, he neither
called Ron Trueblood as a witness nor sought a continuance in
order to bring Mr. Trueblood in; and, second, he did not
challenge the criminal history points assigned to a prior
felony conviction. I do not agree with either argument.
Failure to Call Ron Trueblood as a Witness.
Trueblood, as noted above, was arrested with Mr. Fykes. He
denied knowledge of the gun and, according to the arresting
officers, said that the gun must belong to Mr. Fykes. At some
point thereafter he left the state.
Fykes's lawyer, Edward R. Harris of the Office of the
Federal Public Defender, naturally wanted to know whether Mr.
Trueblood might provide helpful testimony. On June 23, 2015,
after several unsuccessful attempts, an investigator working
with Mr. Harris, Raelee Knapp, was able to get Mr. Trueblood
on the phone. A memorandum of her telephone interview is
attached to Mr. Fykes's habeas petition. ECF No. 150 at
Trueblood told Ms. Knapp that he was in Minnesota, basically
homeless, and moving from location to location without a
permanent address. Id. at 32. He declined to provide
detailed information about a “female friend” whom
he was with on the day in question because of the original
charges that were filed against him in Colorado. Regarding
the gun in the backpack, Mr. Trueblood denied that he told
officers that the gun “must be Fykes, ” but he
confirmed that the gun was not his. The investigator's
memo states, “Ron confirmed with me that the gun that
was found in the trunk of his car was NOT his gun.”
Id. at 34 (capitalization in original). He denied
ever seeing the gun or handling the gun. Id. He
denied asking Mr. Fykes for a bag or backpack to pack some of
his belongings in. He said that he did not know how the
backpack got into the trunk of his car, and that he could not
recall whether Mr. Fykes had the backpack with him when he
picked Mr. Fykes up that morning. Id. Ms. Knapp
added that Mr. Trueblood was reluctant to speak with her, and
that “[w]hen asked questions about the gun, Ron would
hesitate before answering, but always indicated that the gun
was not his and that he had no knowledge of the gun.”
statements to the police, in addition to stating that he had
no knowledge of the gun in the backpack, Mr. Trueblood also
denied that he carried a gun. The defense found an ATF form
indicating that in 2014 Mr. Trueblood had purchased a gun.
Mr. Harris wanted the Court to admit the ATF form
notwithstanding the absence of either the ATF agent or Mr.
Trueblood at trial, which I declined to do. In a motion
asking the Court to reconsider that ruling (which I did not),
Mr. Harris stated, “As a matter of strategy,
counsel prefers not to call Mr. Trueblood as a witness.
Further, even if he were inclined to call Mr. Trueblood, it
now appears that Mr. Trueblood is unavailable and cannot be
found.” ECF No. 70 at 2, ¶4 (bolding
Fykes now asserts that this strategy was wrong. He claims
that the gun belonged to Mr. Trueblood, and that Mr.
Trueblood would have admitted that under oath. He provides an
affidavit of a lawyer named Phillip Dubois who represented
him in the state's aborted prosecution of the felon in
possession charge. ECF No. 150. In the affidavit Mr. Dubois
claims to have overheard a conversation between Mr. Fykes and
Mr. Trueblood during which Mr. Trueblood acknowledged that
the gun was his and said he would accept responsibility for
it. Id. at 37.
defendant has certain basic rights that his lawyer may not
override, such as whether to plead guilty, waive a jury
trial, testify in his own behalf, and forgo an appeal.
McCoy v. Louisiana, 138 S.Ct. 1500, 1508 (2018).
However, the reason one has a lawyer is to obtain the benefit
of his judgment on matters of strategy such as whether to
call a particular witness. Here, Mr. Harris's judgment
was that Mr. Trueblood's testimony would not be helpful.
There was good reason for that - Mr. Trueblood unequivocally
told Mr. Harris's investigator that it was not his gun.
Moreover, as I discuss later, Mr. Fykes's testified at
trial that Mr. Trueblood borrowed his backpack. Mr.
Trueblood's statement to the defense investigator refuted
note that when the investigator tracked Mr. Trueblood down by
phone, Mr. Trueblood said he was in Minnesota and moving from
place to place. That was on June 17, 2015. Mr. Harris's
motion in which he informed the Court that he did not wish to
call Mr. Trueblood was filed on August 21, 2015 - five days
before trial. At that time Mr. Harris advised the Court that
“even were he inclined to call Mr. Trueblood, it now
appears that Mr. Trueblood is unavailable and cannot be
found.” ECF No. 70 at 2.
Mr. Dubois, his affidavit is dated March 6, 2018,
approximately two and one-half years after the trial. There
is no evidence in the record that Mr. Harris was aware of the
allegedly overheard conversation. Moreover, even if he were
so inclined, Mr. Dubois could not have testified at trial
about what he claims to have heard Mr. Trueblood say, because
it would have been inadmissible hearsay. It comes ...