United States District Court, D. Colorado
AMENDED ORDER DENYING § 2255 MOTION
A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE.
Theron Maxton, has filed, pro se, a Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence
by a Person in Federal Custody [Docket No. 341] and an
amended Motion to Vacate, Set Aside, or Correct Sentence
Pursuant to 28 U.S.C. § 2255 [Docket No. 351]
(collectively “the § 2255 motion”). The
United States responded to the original § 2255 motion.
Docket No. 343.
Court construes Mr. Maxton's filings liberally because he
is not represented by counsel. See Haines v. Kerner,
404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991). However, the Court will not
act as a pro se litigant's advocate. See
Hall, 935 F.2d at 1110. For the reasons discussed below,
the § 2255 motion will be denied.
November 6, 2013, Mr. Maxton was charged with two counts of
threatening a United States official and two counts of
threatening a member of the immediate family of a United
States official. Docket No. 4 at 1-3. On January 22, 2015, a
jury found Mr. Maxton guilty on all four counts. Docket No.
175-1 at 1-2. He was sentenced to 72 months' imprisonment
as to Counts One, Three, and Four, to be served concurrently,
and to 28 months' imprisonment as to Count Two, to be
served consecutively with Counts One, Three, and Four. Docket
No. 288 at 2. These sentences were also to be served
concurrently with sentences received in two other criminal
convictions from the District of South Carolina. Id.
Maxton appealed his convictions to the Tenth Circuit, arguing
that the Court abused its discretion when it denied his
motion to substitute counsel [Docket No. 338. United
States v. Maxton, 666 Fed.Appx. 755 (10th Cir. 2016)
(unpublished). The Tenth Circuit affirmed Mr. Maxton's
convictions. See Id. On February 21, 2017, Mr.
Maxton filed a Motion Under 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct Sentence by a Person in Federal Custody
[Docket No. 341]. The government filed an answer on March 24,
2017 [Docket No. 343]. On January 7, 2019, Mr. Maxton filed
an amended Motion to Vacate, Set Aside, or Correct Sentence
Pursuant to 28 U.S.C. § 2255 [Docket No. 351]. Because
Mr. Maxton incorporates by reference his first § 2255
motion in his second motion, see Docket No. 351 at
4, 6, 8, and because the Court construes his filings as a pro
se litigant liberally, see Hall, 935 F.2d at 1110,
the Court will consider the motions together.
Maxton raises several arguments in his § 2255 motion.
First, he argues that his trial counsel, Paula Ray, was
ineffective for failing to “get [his] witness to come
testify at [his] trial or get the tape that would show that
FBI Agent Cronan didn't read [him his] Miranda
rights.” Docket No. 341 at 4.
establish ineffective assistance of counsel, Mr. Maxton must
demonstrate both that counsel's performance fell below an
objective standard of reasonableness and that counsel's
deficient performance resulted in prejudice to his defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984).
“Judicial scrutiny of counsel's performance must be
highly deferential.” Id. at 689. There is
“a strong presumption” that counsel's
performance falls within the range of “reasonable
professional assistance.” Id. Mr. Maxton bears
the burden of overcoming this presumption by showing that the
alleged errors were not sound strategy under the
circumstances. See Id. “For counsel's
performance to be constitutionally ineffective, it must have
been completely unreasonable, not merely wrong.”
Boyd v. Ward, 179 F.3d 904, 914 (10th Cir. 1999).
When counsel is accused of a failure to investigate, courts
apply “a heavy measure of deference to counsel's
judgments.” Wiggins v. Smith, 539 U.S. 510,
522 (2003). Moreover, “[g]enerally, the decision
whether to call a witness rests within the sound discretion
of trial counsel.” Jackson v. Shanks, 143 F.3d
1313, 1320 (10th Cir. 1998).
the prejudice prong, Mr. Maxton also must demonstrate that
there is “a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different.”
Strickland, 466 U.S. at 694. “A reasonable
probability is a probability sufficient to undermine
confidence in the outcome.” Id.; see
also Harrington v. Richter, 562 U.S. 86, 112 (2011)
(stating that “[t]he likelihood of a different result
must be substantial, not just conceivable.”).
order for a defendant to make an ineffective assistance
claim, he must identify the specific “acts or omissions
of counsel that are alleged not to have been the result of
reasonable professional judgment.” Strickland,
466 U.S. at 690. In his § 2255 motion, Mr. Maxton does
not identify the witness or the tape that he contends his
counsel should have presented at trial. However, it is likely
that Mr. Maxton is referring to the video tape referenced in
his motion to substitute counsel and to continue the trial
that he alleges depicts nine prison guards assaulting him
during an interrogation. Docket No. 338 at 1. The witness who
Mr. Maxton states his attorney should have called to testify
at trial is likely “Lieutenant Freeman, ” who Mr.
Maxton alleges witnessed this interrogation. Docket No. 338
at 2. Mr. Maxton referenced Lieutenant Freeman for the first
time on the first day of trial. Id. at 1; Docket No.
301 at 22, l. 6; see also Docket No. 310 (Mr. Maxton
addressing the Court at the trial preparation conference, but
not mentioning a video tape or Lieutenant Freeman). Evidence
presented at trial demonstrated that Mr. Maxton confessed to
making threats against federal officials during this
interrogation. See, e.g., Docket No. 302 at 223, ll.
10-20. According to Mr. Maxton, this video evidence and
witness testimony would have been relevant to his defense
because it would have demonstrated that his statements made
during the interrogation were made involuntarily. Docket No.
338 at 1-2.
first day of trial, before jury selection, Mr. Maxton stated
that he “was under the impression that Ms. Ray had
already identified Lt. Freeman to testify and that she had
requested a subpoena of that videotape from the [Bureau of
Prisons].” Docket No. 301 at 22, ll. 5-7. Mr. Maxton,
however, has presented no evidence, in either his § 2255
motion or when addressing the Court before trial, that Ms.
Ray was aware of potentially mitigating testimony from
Lieutenant Freeman, that he requested she have Lieutenant
Freeman testify, that Ms. Ray was aware of a video tape
showing prison guards assaulting Mr. Maxton, or that she was
aware that he had allegedly been assaulted by prison guards.
to Mr. Maxton, he learned at the trial preparation conference
that his counsel had “failed to interview a key defense
witness and obtain video evidence.” Docket No. 338 at
1. But while Mr. Maxton alleges that he learned during the
trial preparation conference of these issues, he did not
mention these issues to the Court at such conference, during
which he spoke at length. In fact, at the trial preparation
conference, Mr. Maxton brought up another potential
witness's testimony, stating that he believed there was a
witness who could testify that the documents showing that he
refused medical treatment were forged. Docket No. 310 at 35,
ll. 7-14. He also complained that defense counsel failed to
object to an alleged lie that was told about him at an
earlier proceeding. Id. at 41, ll. 16-18. Yet he did
not mention Lieutenant Freeman or the purported video tape,
of which he was apparently aware. For these reasons, the
Court finds that, to the extent that Mr. Maxton's §
2255 motion can be read to infer that counsel knew of the
existence of the purported video tape or knew of the
existence of a potentially mitigating witness and
nevertheless failed to present this evidence, Mr. Maxton
lacks credibility. There is no credible evidence that this
purportedly mitigating evidence exists, let alone that
counsel was objectively unreasonable in failing to present
it. The Court finds that Mr. Maxton has failed to establish
that he received ineffective assistance of counsel and, as a
result, § 2255 relief is not warranted on this basis.
Mr. Maxton challenges the Court's denial of his motion
for substitution of counsel and a continuance of trial, which
he requested on the first day of trial. Docket No. 341 at 5.
He also challenges the Court's “refus[al] to hold a
hearing on these issues.” Id. In addition, he
argues that the Court abused its discretion when it
“fail[ed] to conduct a hearing onto why [Ms. Ray]
didn't get the defendant witness and tape for trial,
” id. at 8, which is essentially the same
argument as above, as the alleged failure of Ms. Ray to
obtain this evidence for trial was the basis for Mr.
Maxton's motion for a substitution and continuance.
See Docket No. 338. Both the argument that the Court
abused its discretion in denying the motion for substitution
of counsel and continuance of trial and the argument that the
Court erred when it declined to hold a formal hearing on the
motion were raised on appeal and rejected by the Tenth
Circuit. See Maxton, 666 Fed.Appx. at 757-58. A
claim that has been considered and disposed of on direct
appeal may not be raised in a § 2255 motion. United
States v. Warner, 23 F.3d 287, 291 (10th Cir. 1994);