Opinion
Civil No. 03-1150 ADM, Crim. No. 00-86 ADM/ESS
June 12, 2003.
James Warren Sarff, pro se.
Nicole A. Engisch, Esq., Assistant United States Attorney, on behalf of Respondent.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This matter is before the undersigned United States District Judge on Petitioner James Warren Sarff's ("Sarff") Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 [Docket Nos. 1 and 128]. Sarff alleges four grounds for his motion: (1) he was denied "effective assistance of counsel," (2) his "privilege against self incrimination" was violated, (3) the prosecutor failed to disclose favorable evidence to him, and (4) he was unable to get a "fair trial" because of "pretrial publicity." Motion at 5-6. Sarff's Motion is denied; his second, third, and fourth claims are procedurally barred having not been raised on direct appeal, and Sarff was not denied effective assistance of counsel.
II. BACKGROUND
In April 2000, Sarff was charged with kidnapping pursuant to 18 U.S.C. § 1201(a)(1), and interstate domestic violence pursuant to 18 U.S.C. § 2261(a)(2) and (b)(5), 2261(a)(2) and (b)(3), and 2261(a)(2) and (b)(2). Superceding Indictment at 1-3 [Docket No. 40]. On August 30, 2000, a jury convicted Sarff on all four counts. Sarff was sentenced to 180 months imprisonment for each of counts one and four, 60 months for count two, and 120 months for count three. [Docket No. 107]. The sentences are being served concurrently. Sarff's conviction and sentence were affirmed in all respects on appeal. United States v. Sarff, 2001 WL 737654 at **2 (8th Cir. July 2, 2001) cert. denied, 534 U.S. 1148 (2002). The present Motion was filed on February 20, 2003 [Docket No. 128].
III. DISCUSSION
A. Section 2255 Motion to Vacate, Set Aside, or Correct Sentence
28 U.S.C. § 2255 allows a prisoner whose "sentence was imposed in violation of the Constitution or laws of the United States" to "move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255 (2003). There are restrictions on the ability of the defendant to raise claims under § 2255. "A petitioner . . . cannot raise a nonconstitutional or nonjurisdictional issue in a § 2255 motion if the issue could have been raised on direct appeal but was not." Anderson v. United States, 25 F.3d 704, 706 (8th Cir. 1994) (citing Belford v. United States, 975 F.2d 310, 313 (7th Cir. 1992)). For constitutional and jurisdictional claims, "[a] defendant who has . . . fail[ed] to raise [a claim] on direct review may raise that claim in a Section 2255 proceeding only by demonstrating [1] cause for the default and [2] prejudice or actual innocence." McNeal v. United States, 249 F.3d 747, 749 (8th Cir. 2001), cert. denied, 534 U.S. 1148 (2002) (citing Bousley v. United States, 523 U.S. 614, 622 (1998)). The defendant has the burden of showing "not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original). To prove innocence, it is not enough that the defendant show there is a lack of evidence, the defendant has to prove factual innocence — evidence that suggests "it is more likely than not that no reasonable juror would have convicted him." Dejan v. United States, 208 F.3d 682, 686 (8th Cir. 2000) (citing Bousley, 523 U.S. at 623).
1. Sarff Has Not Demonstrated Cause For His Failure to Raise the Issues on Direct Appeal
Sarff asserts four grounds as the basis for his Motion. Sarff's principle argument is that the ineffective assistance of his lawyer was the reason why the issues Sarff now raises were not raised on direct appeal. Traverse to Government's Response to Petitioner's Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255 ("Traverse") at 6 [Docket No. 136] (stating "ineffective assistance of counsel is the only claim that matters"). Indeed, "[a]bsent unusual circumstances, a showing of ineffective assistance of counsel satisfies both cause and prejudice." United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996) (emphasis added). Having failed to sustain his burden in regards to his ineffective of counsel claim (See infra part B), Sarff's argument regarding that claim does not satisfy the causation prong of the test. Moreover, even if Sarff's remaining claims are constitutional, and therefore are not completely barred under a § 2255 motion, he cannot prevail because he has not presented any other reasons for failing to raise those claims on direct appeal. Sarff's second, third, and fourth claims — that his privilege against self incrimination was violated, that the prosecution failed to disclose exculpatory evidence, and that pretrial publicity made his trial unfair — were not raised on direct appeal of his convictions.
2. Sarff Has Not Shown Actual Prejudice or Actual Innocence
Sarff fails to establish how the errors raised prejudiced his trial, or how the errors worked substantially to his disadvantage. Sarff's only claim is that "[his attorney's] performance was not in the range of competence and this failure obviously prejudiced [Sarff] severely." Motion at 5. A pre-trial motion brought by Sarff's trial counsel alleging Sarff was interviewed without counsel against his protests, resulted in the suppression of statements made during the interrogation. July 19, 2000 Order [Docket No. 45]. Regarding the claim that the prosecution failed to disclose evidence favorable to the defendant, Sarff has likewise shown no prejudice. The subject of that claim is the videotape of Connie Sarff, which Sarff alleges was edited in a manner disfavorable to him. Motion at 5. This tape was edited to remove, references of past bad acts by the defendant. Trial Transcript (Tr.) Day 4 at 104 [Docket No. 115]. Finally, Sarff has not shown how press coverage prejudiced his trial. In any event, a claim seeking relief for "prejudicial trial publicity . . . [is] not cognizable" in a § 2255 context. Houser v. United States, 508 F.2d 509, 515 (8th Cir. 1974) (citing Wingo v. United States, 244 F.2d 800 (6th Cir. 1957)). In light of these facts Sarff has not shown he was prejudiced, nor that he was placed at a substantial disadvantage by conduct of his counsel.
Sarff has also failed to show that he was actually innocent. Though he claims "there was no crime," that assertion, backed by no other fact-based claims does not rise to the level of showing that "no reasonable juror would have convicted him." Traverse at 1; Dejan, 208 F.3d at 686.
B. Section 2255 Motion to Vacate, Set Aside, or Correct Sentence: Ineffective Assistance of Counsel
Unlike his other claims, Sarff's ineffective assistance of counsel claim is not procedurally barred. See United States v. Embrey, 250 F.3d 1181, 1184 (8th Cir. 2001) (citing United States v. Jones, 121 F.3d 369, 370 (8th Cir. 1997) (stating that ineffective assistance claims are usually not cognizable on direct appeal, but are more appropriate for post-conviction review because the claims usually involve facts not presented at trial)). Sarff claims he was denied his Sixth Amendment right of effective assistance of counsel. Motion at 5. The United States Constitution guarantees that the accused "shall enjoy the right . . . to have the Assistance of Counsel" in criminal prosecutions. Const. Amend. VI. But, in order to prevail on an ineffective assistance of counsel claim under § 2255, a defendant must overcome a "heavy burden." Apfel, 97 F.3d at 1076. In order to vanquish that burden, a defendant must first "show that [their] counsel's performance was deficient." Strickland v. Washington, 466 U.S. 668, 687 (1984). The deficiency must be "so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment." Id. Second, the defendant must establish that the deficient performance actually prejudiced the defense. Id.; See also Cheek v. United States, 858 F.2d 1330, 1336 (8th Cir. 1988). The defendant must prove both prongs of the test. Apfel, 97 F.3d at 1076 (emphasis added).
In order to establish that there was a deficient performance, the defendant must show that the errors were not the result of a "reasonable professional judgment." Strickland, 466 U.S. at 690. In doing so, the defendant runs up against a strong presumption "that counsel . . . rendered adequate assistance." Id. To fulfill the prejudice prong, the defendant must prove that the "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687. Thus, to satisfy the prejudice prong, the defendant must prove, with "a probability sufficient to undermine confidence in the outcome," that "but for the counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.
1. There was no deficient performance on the part of Sarff's counsel
Sarff itemizes a list of 25 errors he claims were made by his attorney, Andrew Birrell ("Birrell"), at trial. Traverse at 7-12. However, Sarff has not shown that the decisions made by Birrell rendered his assistance inadequate. Bearing in mind the strong presumption of reasonable assistance that inheres in any ineffective assistance claim, the types of claims Sarff raises do not rise to the level of showing that the decisions made by his counsel were unreasonable.
Indeed, the record indicates that Sarff's counsel worked diligently on behalf of his client during the pre-trial and trial stages. Memorandum of Law in Support of Defendant's Motion to Suppress Statements [Docket No. 30]; Motion to Dismiss the Indictment [Docket No. 32]; Defendant's Motion for Release Pending Trial [Docket No. 46]; Defendant James Sarff's Motion In Limine to Exclude Evidence of Defendant's Alleged Prior Bad Acts [Docket No. 57]; Defendant Sarff's Memorandum of Law in Opposition to Government's Motion In Limine to Allow Expert Testimony [Docket No. 58]; Defendant Sarff's Request for Disclosure [Docket No. 59]; Defendant's Memorandum in Opposition to Government's Motion In Limine Regarding Alleged Bad Acts by Ms. Sarff [Docket No. 60]; Defendant Sarff's Motion For Judgment of Acquittal [Docket No. 96]; Defendant Sarff's Motion for Disclosure And/Or In Camera Review [Docket No. 100]. Moreover, counsel also represented Sarff on appeal. Sarff, 2001 WL 737654 at **1; Notice of Appeal to United States Court of Appeals for the Eighth Circuit [Docket No. 109]. The defendant has not shown that the decisions made by his trial counsel were based on an unreasonable professional judgment. The record of the advocacy of Birrell on Sarff's behalf buttresses the already strong presumption that the counselor's assistance was adequate. As the record of the case reveals, Sarff's representation far exceeded adequacy.
2. Sarff Has Not Shown That Counsel's Assistance Prejudiced His Trial
Even if Sarff had shown that his counsel's handling of his case was deficient in some manner, he cannot prevail on an ineffective assistance of counsel claim because he has not shown that the claimed ineffective assistance prejudiced the outcome of the trial or that the outcome would have been any different with other counsel. The twenty-five items raised by Sarff do not rise to the level of undermining confidence in the result of the jury trial. See Traverse at 7-12. In sum, there is no factual basis for concluding that Birrell acted unreasonably in representing Sarff. Moreover, there is no evidence that any of the errors, claimed by defendant to have been made by Birrell, affected the outcome of the trial. The evidence of Sarff's guilt was strong and compelling as reflected by the jury's verdict of guilty on all counts.
C. Evidentiary Hearing
In a § 2255 motion, a prisoner is entitled to an evidentiary hearing "unless the motion and the files and records of the case conclusively show that the prisoner is not entitled to relief." 28 U.S.C. § 2255 (2003). Consequently, "[a] petition can be dismissed without a hearing if (1) the petitioner's allegations, accepted as true, would not entitle the petitioner to relief, or (2) the allegations cannot be accepted as true because they are contradicted by the record, inherently incredible or conclusions rather than statements of fact." Delgado v. United States, 162 F.3d 981, 983 (8th Cir. 1998) (citing Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995)).
Even if Sarff's allegations are accepted as true, he is not entitled to relief. Sarff's second, third, and fourth claims are procedurally barred for failure to raise them on direct appeal. Additionally, Sarff's claim that he was denied the effective assistance of counsel is controverted by the facts. The record indicates that his trial counsel was diligent in his representation of Sarff. Moreover, Sarff has not demonstrated by his laundry list of "should haves" that Birrell was unreasonable in his decisions pertaining to the representation of him. Nor has Sarff showed that the outcome of the trial would have been any different had Birrell pursued each item Sarff has identified in his two-and-a-half years to reflect on the result of his trial. Accordingly, no evidentiary hearing is warranted in this case.
IV. CONCLUSION
Based upon the foregoing, and all of the files, records, and proceedings herein, IT IS HEREBY ORDERED that Sarff's Motion to Vacate, Set Aside, or Correct Sentence [Docket Nos. 1 and 128] is DENIED.
LET JUDGMENT BE ENTERED ACCORDINGLY