Opinion
Case No. 12-cr-00410-BLF-1
07-25-2017
UNITED STATES OF AMERICA, Plaintiff, v. MELVIN RUSSELL "RUSTY" SHIELDS, Defendant.
ORDER SETTING BRIEFING SCHEDULE RE DEFENDANT'S MOTION UNDER 28 U.S.C. § 2255
[Re: ECF 462]
Defendant Melvin Russell "Rusty" Shields has filed a motion under 28 U.S.C. § 2255, seeking to vacate the judgment of conviction and sentence in his case. See Def.'s 2255 Motion, ECF 462. Having conducted an initial review of the motion as discussed below, the Court will order the Government to file a response and will grant Shields an opportunity to file a reply.
I. BACKGROUND
A jury convicted Shields of thirty-two counts, including conspiracy, wire fraud, bank fraud, securities fraud, and making false statements to a bank. Verdict Form, ECF 266. The judge who presided over the trial, Judge Ronald M. Whyte, sentenced Shields to a seventy-eight month term of imprisonment, a five year term of supervised release, a special assessment of $3,200, and a restitution payment in the amount of $7,222,905.03. Judgment, ECF 350. Shields appealed on numerous grounds, including inadequate jury instructions, failure to sever Shields' trial from that of his co-defendant, admission of prejudicial evidence, denial of the right to be present at a critical stage, and ineffective assistance of trial counsel. See United States v. Shields, 844 F.3d 819, 821 (9th Cir. 2016).
The Ninth Circuit Court of Appeals affirmed the judgment and conviction, addressing Shields' challenge to jury instructions in a published opinion filed December 21, 2016, and his remaining challenges in an unpublished memorandum disposition filed the same date. See id.; United States v. Shields, 673 Fed. App'x 625 (9th Cir. 2016). Shields' petition for panel rehearing and petition for rehearing en banc were denied on March 30, 2017. He did not file a petition for a writ of certiorari.
On July 14, 2017, Shields filed the present motion to vacate his judgment of conviction and sentence. See Def.'s 2255 Motion, ECF 462. Because Judge Whyte has retired, the motion has been assigned to the undersigned judge.
II. DISCUSSION
A federal prisoner may file a motion to vacate, set aside, or correct his sentence on "the ground that the 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." 28 U.S.C. § 2255(a). The prisoner is entitled to a hearing on his § 2255 motion "[u]nless 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).
The district court "conducts an initial review of [the] motion to determine whether it presents a cognizable claim for relief and requires a response by the government." United States v. Coleman, No. 11-CR-00904-PJH-1, 2015 WL 1548986, at *3 (N.D. Cal. Apr. 7, 2015). "If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party." Rules Governing § 2255 Proceedings, Rule 4(b), 28 U.S.C. foll. § 2255. "If the motion is not dismissed, the judge must order the United States attorney to file an answer, motion, or other response within a fixed time, or to take other action the judge may order." Id.
As an initial matter, Shields' § 2255 motion is timely. Ordinarily, a § 2255 motion must be filed within one year of the date on which the judgment of conviction becomes final. 28 U.S.C. § 2255(f)(1); United States v. Buckles, 647 F.3d 883, 887 (9th Cir. 2011). Where, as here, the prisoner files a direct appeal and a petition for rehearing in the Court of Appeals, but does not file a petition for a writ of certiorari in the Supreme Court, the judgment of conviction becomes final ninety days after the denial of the petition for rehearing. See Buckles, 647 F.3d at 888. The Ninth Circuit denied Shield's petition for panel rehearing and petition for rehearing en banc on March 30, 2017. Thus the one-year clock for filing a § 2255 motion began to run ninety days later, on June 28, 2017. Shields filed his § 2255 motion less than a month later, on July 14, 2017.
Shields seeks relief based on claims of: (1) actual and factual innocence; (2) ineffective assistance of trial counsel for failure to call or consult with experts in real estate, banking, and finance; (3) Brady and Napue violations; (4) ineffective assistance of trial counsel based on conflict of interest; and (5) due process violation based on trial counsel's refusal to permit Shields to attend a critical stage of the process. It is not plainly apparent on this record that all of Shields' asserted grounds for relief are without merit. For example, a claim of ineffective assistance of trial counsel may entitle a prisoner to relief under § 2255. See United States v. Picard, 202 F.3d 280 (9th Cir. 1999). To prevail on such a claim, the prisoner must show that (1) counsel's performance was deficient, and (2) the deficiency prejudiced his defense. Id. (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). Shields alleges that trial counsel was deficient in several respects, including asserted failures to consult with or call experts in the fields of real estate and banking, to review all material evidence before developing a trial strategy, or to move for acquittal notwithstanding the verdict. While Shields raised an ineffective assistance claim on direct appeal, the Ninth Circuit concluded that the record was not sufficiently developed to address the claim and dismissed it on that basis. See United States v. Shields, 673 Fed. App'x at 629. As a result, there has been no adjudication on the merits of his ineffective assistance claims. Under these circumstances, and given the voluminous transcripts of the trial and other relevant proceedings before Judge Whyte, this Court cannot summarily determine the potential merit of Shields' ineffective assistance claims.
Brady v. Maryland, 373 U.S. 83 (1963).
Napue v. Illinois, 360 U.S. 264 (1959).
Having determined that Shield's § 2255 motion is not subject to summary denial, the Court finds it appropriate to require a response from the Government.
III. ORDER
Accordingly, IT IS HEREBY ORDERED that:
(1) the Government shall file a response to Shields' § 2255 motion, addressing all claims asserted therein, on or before September 22, 2017;Dated: July 25, 2017
(2) Shields may file a reply within thirty days after receiving the Government's response; and
(3) upon the completion of briefing, the Court will advise the parties whether a hearing will be scheduled.
/s/_________
BETH LABSON FREEMAN
United States District Judge