Opinion
Criminal No. 99-195 (JRT/RLE), Civil No. 02-3734 (JRT).
July 2, 2003.
Donald Albin Blom, Attorney for Petitioner pro se.
William H. Koch, Assistant United States Attorney, Office of the United States Attorney, Minneapolis, MN, Attorney for Respondent.
MEMORANDUM OPINION AND ORDER DENYING § 2255 MOTION
Petitioner Donald Albin Blom was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Petitioner's conviction was affirmed by the Eighth Circuit Court of Appeals. 242 F.3d 799 (8th Cir.), cert. denied. 534 U.S. 880 (2001). Petitioner timely filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, alleging a variety of errors in his trial and also alleging ineffective assistance of appellate counsel. For the reasons discussed below, petitioner's motion is denied.
BACKGROUND
I. Procedural Background
Petitioner was indicted by a federal grand jury in July of 1999 on charges of being a felon in possession of a firearm. The firearms, along with ammunition, were discovered when authorities executed search warrants in connection with an investigation of a missing convenience store clerk from Moose Lake, Minnesota. The search for the missing clerk, Katie Poirer, generated significant publicity, and petitioner was eventually charged and convicted in state court for the kidnapping and murder of the young woman.
At this time, petitioner's state court conviction is on appeal. State v. Blom, C2-00-1994; C3-02-1829, and was scheduled to be argued on May 14, 2003 before the Minnesota Supreme Court.
Petitioner made several pretrial motions to this Court relevant to his § 2255 petition, including a motion to transfer venue and a motion to suppress evidence of the firearms and ammunition noted above. These motions were denied, although the Court moved the trial from Duluth to Minneapolis and empanelled a jury drawn from all divisions except the Fifth Division, which includes Duluth and the area in which the kidnapping and murder occurred. Petitioner was convicted after a five-day jury trial. Petitioner appealed the conviction to the Eighth Circuit, raising three principal issues: (1) the denial of the motion for a change of venue based on pretrial publicity; (2) the failure to excuse "Juror Number 3" and (3) suppression issues including admitting evidence of the firearms and ammunition. The Eighth Circuit affirmed the conviction.
On September 26, 2002, this Court docketed petitioner's initial § 2255 motion. Petitioner then filed an "Amended Petition Under 28 U.S.C. § 2255 With Incorporated Argument" in which he purported to "incorporate those factual allegations and argument set forth in his original Petition for Writ of Habeas Corpus as if set forth fully herein." Respondent was granted extensions of time to file a response, and submitted a response on December 23, 2002. Finally, petitioner replied.
II. Relevant Factual Background
In connection with the kidnapping and murder investigation, authorities obtained and executed search warrants at petitioner's trailer home in Kerrick, Minnesota. During the search, four firearms were seized. Authorities found ammunition, some of which matched the seized guns, but did not seize the ammunition immediately. Following the initial search, authorities executed a series of warrants at the same property. These subsequent warrants authorized the seizure of ammunition, and authorities seized ammunition from different locations in the trailer, and from the property surrounding the trailer. Petitioner also owned a home in Richfield, Minnesota, at which additional warrants were executed and ammunition found. Finally, warrants were authorized and executed for a vehicle registered to petitioner's wife; and ammunition was found in a duffel bag in the vehicle.
While the kidnapping and murder investigation continued, proceedings in the federal trial began. On June 23, 1999, petitioner was charged in state court with kidnapping. In early September, 1999, he confessed to abducting and murdering the convenience store clerk, but then recanted the confession after he was charged with first degree murder and kidnapping. Each of these events generated significant media coverage not only in the area in which the abduction occurred, but in other areas of the state.
ANALYSIS
I. Standard of Review
Section 2255 "provides a remedy in the sentencing court (as opposed to habeas corpus, which lies in the district of confinement) for claims that a sentence `was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.'" Poor Thunder v. United States, 810 F.2d 817, 821 (8th Cir. 1987) (quoting 28 U.S.C. § 2255). Relief under § 2255 "is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and, if uncorrected, would result in a complete miscarriage of justice." United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996).
Petitions for relief pursuant to § 2255 are not substitutes for direct appeal, and claims not raised on direct appeal generally cannot be addressed in § 2255 motions. Matthews v. United States, 114 F.3d 112, 113 (8th Cir. 1997). "A defendant who has procedurally defaulted a claim by failing to raise it on direct review may raise that claim in a Section 2255 proceeding only by demonstrating cause for the default and prejudice or actual innocence." McNeal v. United States, 249 F.3d 747, 749 (8th Cir. 2001) (citation omitted). Section 2255 motions are also not appropriate vehicles to collaterally attack issues that have been raised and decided on direct appeal. United States v. Wiley, 245 F.3d 750, 752 (8th Cir. 2001) ("Issues raised and decided on direct appeal cannot ordinarily be relitigated in a collateral proceeding based on 28 U.S.C. § 2255.").
This claim is argued primarily in the initial petition for writ of habeas corpus. Because petitioner purported to "incorporate [the] argument set forth in his original Petition" the Court will address all issues raised by both the original and amended petition.
Petitioner claims that he did not receive a fair trial in this Court because extensive pretrial publicity tainted the proceedings. This issue was raised in appellant's direct appeal when the Eighth Circuit reviewed this Court's refusal to transfer venue. The reviewing Court determined that the denial of the change of venue was not error, and that the pretrial publicity, while "extensive, was not so inflammatory or accusatory as to presumptively create a trial atmosphere that had been utterly corrupted by press coverage." 242 F.3d at 804 (internal quotation omitted). The Eighth Circuit then determined that the jury selected after the extensive voir dire was "fair and impartial." Id. at 805. Because this issue was raised and decided on appeal, it is not cognizable in this proceeding.
III. State Court Judge's Behavior
As with the first issue, this issue was discussed only in the initial Petition.
Next, petitioner complains that the "bizarre" behavior of the state trial court judge somehow prevented a fair trial in the federal court. This issue was available on appeal, but was not raised. Petitioner argues that cause for the procedural default was the lack of time and resources available to his court-appointed appellate attorney. He argues that the state trial court judge's actions "tainted" this Court, satisfying the prejudice prong.
No relief is appropriate for this claim. Setting aside the "cause" prong for the moment, petitioner cannot demonstrate prejudice. See Apfel, 97 F.3d at 1076 (court need not address whether counsel's performance was deficient if the defendant is unable to prove prejudice). This Court was not influenced by any proceedings in the state trial court; therefore petitioner suffered no prejudice by the failure to raise the claim on direct appeal.
IV. Predicate felonies
A. Prejudicial statements regarding number of prior convictions
Petitioner raises several issues regarding his prior felony convictions. First, he argues that the prosecutor inaccurately told the jury that petitioner had up to nine felony convictions. This issue was not raised on direct appeal, and because petitioner offers no cause for the failure to raise this issue, relief is inappropriate. In addition, the Court has reviewed the trial transcript for reference to "nine" prior convictions, but found only reference to the stipulated six convictions on four separate occasions.
Petitioner complains that the Court allowed the prosecutor to "say and do anything regarding prior offenses." Specifically, he argues that it was error to allow reference to several prior convictions, when only one conviction was necessary to establish the elements of the instant offense. The Eighth Circuit has not held that it is error to allow stipulations such as that agreed to in this case. In United States v. Lawson, 173 F.3d 666, 669 (8th Cir. 1999), the Eighth Circuit declined to reach the question of whether allowing evidence of more than one prior conviction created a substantial risk of unfair prejudice in violation of Old Chief v. United States, 519 U.S. 172, 185 (1997). The Eighth Circuit has noted, however, in discussing a similar statute "that it is not error to allow the government to prove more than one conviction, although proof of but a single conviction is required." Rush v. United States, 795 F.2d 638, 639-40 (8th Cir. 1986) (addressing 18 U.S.C. App. § 1202(a)(1) which provided that any person who is convicted of a felony and who receives, possesses, or transports a firearm shall be fined or imprisoned.); see also United States v. Flenoid, 718 F.2d 867-68 (8th Cir. 1983); United States v. Bruton, 647 F.2d 818, 825 (8th Cir. 1981).
In Old Chief, the Supreme Court held that when a defendant makes an offer to stipulate which is specific enough to establish felon status for purposes of section 922(g), and when "the prior conviction is for an offense likely to support conviction on some improper ground, . . . the risk of unfair prejudice . . . substantially outweigh[s] the discounted probative value of the record of conviction." Id. at 191.
In support of his argument, petitioner cites to cases in which evidence about the nature of the prior conviction was admitted despite a stipulation. See, e.g., United States v. Horsman, 114 F.3d 822, 8827-28 (8th Cir. 1997). In the instant case, however, m reference was made to the nature or name of petitioner's prior convictions. Petitioner was not unduly prejudiced by reference to the stipulation or to the number of prior convictions. In fact, the prosecution only briefly mentioned the convictions by directing the attention of the jury to the stipulation. No relief is appropriate on this claim.
B. Certified copies
Petitioner claims the government did not produce certified copies of his prior convictions, and therefore there is no basis for the instant conviction. In a similar vein, he argues that the predicate felonies do not satisfy the statute. Again, these issues are procedurally defaulted and not appropriately addressed in this motion. However, even if petitioner did establish cause for the failure to raise these issues on direct appeal, his complaints are meritless. Testimony from Department of Corrections employee Kevin Kirch was offered at a pretrial hearing on July 28, 1999. Kirch's testimony indicated that petitioner is subject to restrictions imposed by the Federal Gun Control Act until ten years have elapsed from March 14, 1992. Kirch further certified that petitioner has never been granted a pardon or expungement and no conviction has been set aside by the Court. In addition, Special Agent James Mazzon of the Bureau of Alcohol, Tobacco, and Firearms ("ATF") testified that he obtained certified copies of petitioner's predicate felony convictions. The government does not have an obligation to enter certified copies of those convictions as evidence in this trial. In fact, given the stipulation the parties entered, it would have been unnecessarily prejudicial to admit such evidence because the jury would then have been made aware of the violent nature of the convictions.
C. Insufficient evidence that the guns were involved in interstate commerce
Petitioner's next contention is that the government failed to provide sufficient evidence that the firearms were shipped in interstate commerce. Again, this issue was not raised on direct appeal and is therefore procedurally defaulted. In addition, this argument attacks the sufficiency of the evidence, which generally is inappropriate in a § 2255 motion. See United States v. Gaus, 751 F.2d 1506, 1507 (8th Cir. 1985); United States v. Johnson, 582 F.2d 1186, 1188 (8th Cir. 1978) ("Generally, an alleged insufficiency of the evidence is not a ground for relief under [section] 2255."). Even if the claim were cognizable in this post-conviction proceeding, there was uncontroverted evidence that the guns were indeed shipped in interstate commerce. ATF Special Agent Joseph Cludy testified that the four firearms were manufactured outside of Minnesota, and as a result crossed state lines to get into the state. No relief is appropriate on this claim.
V. Jencks Act violations
Petitioner claims that the government failed to turn over statements made by witness Olbekson, and argues that those statements would have been valuable to cross-examine and impeach Olbekson. This issue was not raised on appeal, therefore, petitioner must show cause and prejudice in order for the Court to reach this issue. Petitioner argues that the cause prong is satisfied because the failure to raise this issue on appeal was ineffective assistance of counsel. He suggests that the prejudice prong is satisfied because Olbekson's testimony was critical to the government's case.
Olbekson testified, after discussing his criminal background, including felonies for criminal sexual conduct, drug possession, and assault, that he and petitioner hunted together beginning in the fall of 1997. Olbekson further testified that he had seen petitioner carrying different firearms, and that petitioner obtained a Mossberg shotgun in spring of 1998. Olbekson identified government's exhibit 2 as the Mossberg shotgun that belonged to petitioner. During cross-examination, Olbekson was asked about the immunity he received in exchange for his testimony. Olbekson indicated that he spoke with ATF agents, who "told [him] that neither the state nor the Bureau of Alcohol, Tobacco, Firearms wanted [him] for this offense." (Trial Transcript, Vol. 6, at 1176.) The agents indicated, according to Olbekson, that they "wanted [petitioner]" and not him. (Id.)
Petitioner complains that Olbekson gave several statements and interviews to authorities before he gave the one produced by the government at trial. He further argues that Olbekson did not come forward of his own free will, but was harassed by the government until he finally modified his story so as to please authorities. Petitioner claims that the government lied to the jury when prosecutors stated that Olbekson came forward voluntarily and that Olbekson's statement had been consistent.
As a rule, violations of the Jencks Act are not cognizable under 28 U.S.C. § 2255. See Wilson v. United States, 554 F.2d 893, 894 (8th Cir. 1977) ( per curium) ("We find no error in the district court's denial of relief on appellant's allegation of Jencks Act violations because such a claim is not cognizable under 28 U.S.C. § 2255.") (citing Houser v. United States, 508 F.2d 509, 515 (8th Cir. 1974); Black v. United States, 269 F.2d 38, 42 (9th Cir. 1955)). If, however, the violation led to a complete miscarriage of justice, the violation might give rise to a viable claim under § 2255. See Barrett v. United States, 965 F.2d 1184, 1188 (1st Cir. 1992) (noting without deciding that Jencks Act claim may not be cognizable under § 2255 because nonconstitutional claims may not be presented in § 2255 proceeding unless the claimed error of law represents a fundamental defect which inherently results in a complete miscarriage of justice) (citation omitted).
In this case, the alleged Jencks Act violation did not give rise to a complete miscarriage of justice. As an initial matter, evidence of petitioner's possession of firearms was overwhelming, and Olbekson was only one of several witnesses. The government also offered evidence of firearms and ammunition seized during searches of petitioner's property. Further, counsel for petitioner vigorously cross-examined Olbekson, questioning him on issues relating to his past convictions, and his conversations with agents of the Bureau of Alcohol, Tobacco, and Firearms, as well as other issues. In sum, petitioner has not shown that he was prejudiced by the failure to raise this issue on appeal, and the issue is thus not cognizable on this motion.
Petitioner raised a related issue on his direct appeal. The appellate court determined that it was not error to refuse to strike Juror No. 3 for cause. Juror No. 3 repeatedly and clearly stated that she could put aside any preconceived notions of petitioner and render a fair verdict. Petitioner does not attempt to relitigate the issue of the inclusion of Juror No. 3.
Petitioner next complains that he did not receive a fair trial because Juror No. 3 made up her mind before hearing all of the evidence. Juror Number 3 gave an interview to local media after the trial in which she purportedly stated "I made up my mind two (2) days ago that he was guilty." Petitioner argues that this is structural error, and necessitates a new trial even without a showing of actual prejudice. He also asserts that his appellate counsel was ineffective for failing to raise this issue on appeal.
It is true that the presence of a biased or prejudiced juror can violate a defendant's right to a fair trial. See Dyer v. Calderon, 151 F.3d 970 (9th Cir. 1998) (citing Arizona v. Fulminante, 499 U.S. 279, 307-310). It is also true, however, "[t]he verdict of a jury may not be impeached by evidence of the thought processes and undisclosed subjective prejudices of individual jurors." United States v. Krall, 835 F.2d 711, 716 (8th Cir. 1998) (citing United States v. Eagle, 539 F.3d 1166, 1169-71) (8th Cir. 1976)). It is only when external or improper influences reach the jury that it is appropriate to impeach the jury's verdict. Id. ("[Federal] Rule [of Evidence] 606(b) generally prohibits a juror from impeaching his or her verdict. However, a juror may testify as to extraneous information or improper influence in the jury room."). Examples of extraneous influence include extra-record evidence reaching the jury room, or inappropriate communication between jurors and parties, litigants, or the court. Inquiry into an individual juror's mental process is inappropriate. For example, in United States v. Krall, a prosecution for income tax evasion, a juror's fear of I.R.S. retaliation was found to "necessarily go to the juror's own mental process." Krall, 835 F.2d at 716
In this instance, petitioner is complaining about an individual juror's thought process. His complaint is similar to that voiced by the defendant in United States v. Friedland, 660 F.2d 919, 927-28 (3rd Cir. 1981). In Friedland, a juror gave an interview after the trial in which the juror noted that the defendant's failure to testify impacted the deliberations and verdict. The Third Circuit reasoned that the district court was correct in refusing to examine the jurors to verify the complaint. Appellant's complaint in Friedland, much like petitioner's complaint here, did not allege extraneous prejudicial information or outside influence. Id. at 928. As such, there is no basis on which to impeach the verdict or to conduct further investigation, and no relief is appropriate on this claim. See also United States v. Caldwell, 83 F.3d 954, 956 (8th Cir. 1996) (statements by juror that "I've heard all of this I need to hear" and "this is all a bunch of crap" indicated premature deliberation but did not warrant investigation or new trial). Appellate counsel was not ineffective in failing to raise this claim, because the failure to raise a nonmeritorious claim does not amount to prejudice.
VII. Premature Charging
Petitioner argues that his "rights to due process and equal protection of the law" were violated when the government filed a complaint that was insufficient to charge or detain him. This claim was not raised at trial, or on appeal, and is therefore procedurally defaulted. Petitioner has not shown prejudice resulting from the failure to raise this claim on appeal. See United States v. Mechanik, 475 U.S. 66, 106 (1986) (alleged errors in indictment harmless since conviction evidences guilt beyond a reasonable doubt); United States v. Wiseman, 172 F.3d 1196, 1205-06 (10th Cir. 1999).
VIII. Ineffective Assistance of Appellate Counsel
To prove a claim of ineffective assistance of counsel, petitioner must demonstrate both that his counsel's performance was deficient, and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Steinkuehler v. Meschner, 176 F.3d 441, 445 (8th Cir. 1999). "To establish the performance prong of the Strickland test, [petitioner] must show that [his] attorney's representation fell below the `range of competence demanded of attorneys in criminal cases.'" Bryson v. United States, 268 F.3d 560, 561-62 (8th Cir. 2001) (quoting Strickland, 466 U.S. at 688). There is a presumption that counsel's conduct falls within the wide range of reasonable professional assistance, therefore review of counsel's performance is deferential. Id. (citing Strickland, 466 U.S. at 689). "To establish the prejudice prong of the Strickland test, [petitioner] must demonstrate `that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. (quoting Strickland, 466 U.S. at 694) (additional citation omitted).
Petitioner claims his appellate counsel was ineffective for failing to raise several issues. The Court will address each contention in turn.
A. Jencks Act violation
As discussed above, petitioner cannot demonstrate prejudice regarding this issue. No relief is appropriate.
B. Failing to point out that petitioner was undergoing simultaneous trials
Petitioner also complains that counsel did not raise the issue of jurisdiction, judicial interference and coercion. These complaints relate to the state court trial, which, as the Court notes, did not impact in any way petitioner's trial in this Court.
Petitioner has not specifically indicated why the failure to point out that some proceedings in his federal and state trial overlapped was prejudicial to him. Claims argued with no specificity are waived. Sweet v. Delo, 125 F.3d 1134, 1159 (8th Cir. 1997). Even if the Court construes this argument as favorably as possible for petitioner, no relief is appropriate. Overlapping proceedings conceivably prejudice defendants by taxing defense attorneys, however in this case, petitioner had separate counsel for the state proceeding, mitigating any potential difficulty in mounting simultaneous defenses. Another potential prejudice specific to this case was the alleged difficulties petitioner's federal defense team had in communicating with petitioner. However, the Court addressed this concern as soon as it was brought to the Court's attention by ordering that the federal defense team be granted reasonable access to petitioner including person-to-person meetings and unmonitored telephone calls.
In addition, the failure of appellate counsel to raise all conceivable arguments is not in itself error. To "impose on appointed counsel a duty to raise every `colorable' claim suggested by a client would disserve the very goal of vigorous and effective advocacy." Lamp v. State of Iowa, 122 F.3d 1100, 1106 (8th Cir. 1997) (quoting Jones v. Barnes, 463 U.S. 745, 754 (1983); Blair v. Armontrout, 976 F.2d 1130, 1139 (8th Cir. 1992) ("[T]he Supreme Court has squarely rejected the argument that appellate counsel has a duty to raise every nonfrivolous issue his client requests."), cert. denied, 508 U.S. 916 (1993)). In short, this claim does not merit relief.
C. Failing to point out that petitioner was being drugged and the drugs negated his ability to assist in his own defense and that he was held incommunicado
Petitioner claims that he was "being fed unprescribed drugs, including pain killers to dull and/or negate his ability to be cognizant and assist his attorneys in the defense of his state trial." Petitioner does not complain that he was unable to assist in his own defense in the federal trial, rather, his complaint is that the federal court did not protect his rights in the state court proceeding. There is no allegation that the alleged drugs impacted petitioner's federal trial. The Court notes that it had no reason to suspect that petitioner was unable to assist in his own defense. Petitioner appeared cogent during the trial, he communicated with his counsel, and he was aware of his surroundings. Defense counsel did not pursue a motion for a psychiatric examination and did not raise the question of competence during trial. This claim does not give rise to relief.
Petitioner's complaint that he was held incommunicado fares no better. The Court addressed, before trial, petitioner's complaint that he was unable to communicate with his counsel. As discussed above, that issue was remedied by an appropriate pretrial order. Neither petitioner nor his counsel continued to complain about an inability to communicate.
D. Suppression and change of venue
Contrary to petitioner's argument, appellate counsel raised both of these issues on appeal, and they were decided against petitioner. Blom, 242 F.3d 799, 802-805, 807-09. There is no reason to visit these issues for a third time.
E. Predicate felonies
Petitioner argues that his appellate attorney failed to argue that his previous felonies do not qualify under the statute. Petitioner cannot demonstrate that the result of his appellate proceedings would have been different had appellate counsel raised this issue. As thoroughly discussed above, there was sufficient evidence that the predicate felonies qualified under the statute. No relief is appropriate on this issue.
F. Selective prosecution
Prosecutors necessarily have significant discretion in making decisions to prosecute. As the Supreme Court has noted:
This broad discretion [afforded the Executive] rests largely on the recognition that the decision to prosecute is particularly ill-suited to judicial review. Such factors as the strength of the case, the prosecution's general deterrence value, the Government's enforcement priorities, and the case's relationship to the Government's overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake. Judicial supervision in this area, moreover, entails systemic costs of particular concern. Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor's motives and decision making to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government's enforcement policy. All of these are substantial concerns that make the courts properly hesitant to examine the decision whether to prosecute.Wayte v. United States, 470 U.S. 598, 607-608 (1985).
Defendants pursuing a selective prosecution theory must show "clear evidence" displacing the presumption that a prosecutor has acted lawfully. United States v. Armstrong, 517 U.S. 456, 463-465 (1996). To support a claim of selective prosecution, petitioner must establish a prima facie case
(1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government's discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights. . . . Mere conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation."United States v. Ojala, 544 F.2d 940, 943 (8th Cir. 1976).
Although petitioner complains that some of the witnesses against him could have been prosecuted for the same crime — felony possession of firearms — he makes no allegation that others similarly situated are not generally prosecuted. Such an assertion would likely be baseless, because prosecutions for felony possession are commonplace. Petitioner also fails to satisfy the second prong of the two-part test: He does not assert that he was prosecuted because of his race, or religion, or exercise of any constitutional right. He insinuates that he was prosecuted for this crime because he was suspected in the kidnapping and murder case. Assuming this was, in part, the government's motivation for the prosecution, it is not a legally impermissible reason. Because the selective prosecution claim is meritless, appellate counsel was not ineffective for failing to raise it.
G. Jury instruction
The basis for this argument is petitioner's erroneous belief that he was entitled to a jury instruction on unanimity of possession on the firearms. The Court appropriately instructed the jury that it must find that petitioner had been convicted of a crime punishable by imprisonment for a term exceeding one year, that he knowingly possessed one or more of the firearms described in the indictment and that the firearm had been transported across a state line. Petitioner therefore cannot show that he was prejudiced by the failure to raise this issue on appeal.
IX. Sentencing
Petitioner contends that the Court erred in sentencing because the Court enhanced his sentence based on a prior conviction that petitioner contends was later invalidated. Similarly, he complains that he received three points for a conviction with a sentence of less than thirteen months. He also argues that he received extra points for possession of a firearm with an altered serial number. Although he concedes that authorities seized a firearm with an altered serial number, he argues that it was not proven that he possessed that specific firearm.
In general, complaints about sentencing errors are not cognizable in a § 2255 motion. Auman v. United States, 67 F.3d 157, 161 (8th Cir. 1995) ("While section 2255 does provide relief for cases in which `the sentence was in excess of the maximum authorized by law,' this provision applies to violations of statutes establishing maximum sentences, rather than garden-variety Sentencing Guideline application issues.") (quoting United States v. Ward, 55 F.3d 412, 413 (8th Cir. 1995)). Petitioner's sentencing arguments do not rise to the level of miscarriage of justice. See, e.g., Scott v. United States, 997 F.2d 340, 341 (7th Cir. 1993) ("A claim that the judge misapplied the Sentencing Guidelines does not challenge the jurisdiction of the court or assert that the judge exceeded the statutory maximum."); Knight v. United States, 37 F.3d 769, 773 (1St Cir. 1994). Petitioner's claim of error, therefore, is not cognizable in this proceeding.
Petitioner might also claim that his appellate attorney was ineffective for failing to raise these alleged errors on appeal. The Court therefore reviewed the sentencing determination, including the Presentence Investigation Report ("PSI"), and the transcript from the sentencing hearing. The Court concludes that, with one exception, petitioner's sentence accurately reflects prior convictions and relevant conduct including possession of a firearm with an altered serial number.
There is an error in the PSI. Petitioner was credited with three points for a prior conviction that resulted in a sentence of one year and one day. However, in order for a three-point adjustment to be appropriate, the sentence imposed must be in excess of one year and one month. USSG § 4A1.1(a). Where the sentence is less than thirteen months, but greater than sixty days, only two points should be attributed. USSG § 4A1.1(b). Petitioner's overall criminal history score should have been eight, not nine. However, this error did not impact petitioner's overall sentence because a criminal history score of 7, 8, or 9 results in a criminal history category of IV. Therefore even if only two points had been attributed to this prior offense, petitioner's criminal history category would have remained the same. Petitioner was not prejudiced by the failure to raise these issues, therefore no relief is appropriate even if the Court construes his complaint as one of ineffective assistance.
X. Request for counsel
This Court may appoint counsel pursuant to 28 U.S.C. § 1915(c), however, there is no right to counsel in § 2255 proceedings. Nachtigall v. Class, 48 F.3d 1076, 1081 (8th Cir. 1995). The standard for appointment of counsel is whether both petitioner and the court would benefit from the assistance of counsel. See id. "Factors bearing on this determination include: the factual complexity of the issues; the ability of an indigent to investigate the facts; the existence of conflicting testimony; the ability of an indigent to present his claim; and the complexity of the legal issues." Id. 1081-82; see also Battle v. Armontrout, 902 F.2d 701, 702 (8th Cir. 1990) (citing Johnson v. Williams, 788 F.2d 1319, 1322-23 (8th Cir. 1986)).
The Court finds that the appointment of counsel would not assist either petitioner or the Court in this case. Petitioner presents the issues adequately and in a manner more coherent than most pro se petitions. The Court is able to extract the claims presented in this petition and determine whether each is meritorious, or potentially meritorious. Although petitioner presents a litany of issues, the issues are not difficult to identify and are not complex to present. The Court construes the petition liberally in petitioner's favor.
XI. Appealability
For purposes of appeal under 28 U.S.C. § 2253, the Court finds that it is unlikely that some other court would decide the issues raised in this petition differently. For this reason, the Court concludes that petitioner has not made a "substantial showing of the denial of a constitutional right," as is required under the appeal statute for the issuance of a certificate of appealability. 28 U.S.C. § 2253(c)(2).
ORDER
Based on the foregoing, and all of the records, files and proceedings herein, IT IS HEREBY ORDERED that:
1. Petitioner's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 [Docket No. 110] is DENIED.
2. The Court does not certify the issues raised in petitioner's motion for appeal under 28 U.S.C. § 2253(c)(1)(B).