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United States v. Fykes

United States District Court, D. Colorado

January 10, 2019




         Michael 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 recommendation.


         On 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 seat.

         The human trafficking offense was not pursued.[1] 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.

         On 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 United States v. Fykes, 678 Fed.Appx. 677 (10th Cir. Feb. 3, 2017) (unpublished).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).


         On 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.

         A 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.

         ‘“Absent 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)).

         “To 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.



         A. Ineffective Assistance of Counsel.

         In his 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.

         1. Failure to Call Ron Trueblood as a Witness.

         Mr. 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.

         Mr. 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 31-34.

         Mr. 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.” Id

         In his 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 added).

         Mr. 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.

         A 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 that story.

         I also 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.

         As for 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 ...

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