United States District Court, E.D. Louisiana
ORDER AND REASONS
the Court is Defendant Quenshey Mitchell's Motion for
Extension of Time, R. Doc. 271, Motion to Vacate under 28
U.S.C. § 2255, R. Doc. 272, and Motion to Appoint
Counsel, or in the Alternative for Extension of Time to File,
R. Doc. 275. The Court has reviewed the parties'
arguments and applicable law and now issues this Order and
January 9, 2014, after a four-day jury trial before this
Court, Defendant Quenshey Mitchell was found guilty of all
six counts of the six-count Superseding Indictment. Count 1
charged Mitchell with conspiracy to distribute and possession
with intent to distribute one kilogram or more of heroin, a
Schedule I controlled substance, in violation of 21 USC
§§ 841(a)(1), 841(b)(1)(A), and 846. R. Doc. 67 at
1. Count 2 charged Mitchell with conspiracy to kill Cristina
S. Williams in order to prevent her from attending an
official proceeding and to prevent her from further
communicating with law enforcement, in violation of 18 USC
§§ 1512(a)(1)(A), 1512(a)(1)(C), 1512(a)(3)(A), and
1512(k). R. Doc. 67 at 2. Count 3 charged Mitchell with
aiding and abetting in the unlawful killing of Williams in
order to prevent her attendance at an official proceeding and
to prevent her from further communicating with law
enforcement, in violation of 18 USC §§
1512(a)(1)(A), 1512(a)(1)(C), 1512(a)(3)(A) and 2. Count 4,
like Count 2, charged Mitchell with conspiracy to kill
Williams. However, unlike Count 2, Count 4 charged that he
did so in order to retaliate against her for previously
providing information to a law enforcement officer, in
violation of 18 USC §§ 1513(a)(1)(B),
1513(a)(2)(A), and 1513(f). Count 5, like Count 3, charged
Mitchell with aiding and abetting in the unlawful killing of
Williams. Count 5 charged that he did so in order to
retaliate against her for providing information to a law
enforcement officer, in violation of 18 USC §§
1513(a)(1)(B), 1513 (a)(2)(A) and 2. Last, Count 6 charged
Mitchell with conspiracy to obstruct, influence, and impede
an official proceeding, in violation of 18 USC §§
1512(c)(2) and 1512(k). On October 16, 2014, the Court
sentenced Mitchell to five concurrent life terms of
imprisonment as to Counts One through Five of the Indictment.
The Court also sentenced Mitchell to a 240-month term as to
Count Six, to also be run concurrently. R. Doc. 257. On
October 23, 2014, Mitchell timely filed his notice of appeal.
R. Doc. 258. Following briefing and oral argument, on July 7,
2015, the Fifth Circuit Court of Appeal affirmed
Mitchell's convictions. R. Doc. 267.
Motion for Extension of Time and Motion to Vacate under 28
U.S.C. § 2255 (R. Docs. 271, 272)
Quenshey Mitchell has filed a motion seeking additional time
to file a motion to vacate, R. Doc. 271, along with his
motion to vacate under 28 U.S.C. § 2255, R. Doc. 272. In
his motion, Mitchell claims he is entitled to relief under
§ 2255 because of ineffective assistance of counsel. R.
Doc. 272 at 4. Mitchell points to four alleged deficiencies
of his trial counsel: (1) counsel's failure to
investigate, specifically by not interviewing the cell phone
store owner who allegedly would have testified that he never
sold Mitchell any of the phones used to communicate with
Christina S. Williams, the victim in this case; (2) failure
to object to the jury instructions which did not include the
Fifth Circuit Pattern instruction for aiding and abetting;
(3) failure to cross examine a homicide detective regarding
his investigation of the cell phone store; and (4) failure to
object to the government's closing arguments, which
Mitchell alleges were inflammatory and beyond the scope of
the evidence. R. Doc. 272 at 4-5.
Government's Response (R. Doc. 274)
response, the Government contends that Mitchell's claims
are without merit, as he fails to explain how the alleged
ineffective assistance of counsel led to his conviction. R.
Doc. 274 at 4. Addressing Mitchell's claims that his
attorney should have interviewed the cell phone store owner,
the Government argues that not only does Mitchell not provide
support for the witness' purported testimony, but also
that Strickland prohibits a Defendant from claiming
ineffective assistance of counsel because of his
attorney's strategic decisions. R. Doc. 274 at 8. Second,
the Government explains that Mitchell is mistaken in claiming
that his attorney failed to cross examine the detective
regarding the investigation of the cell phone store. R. Doc.
274 at 4. According to the Government, “his counsel did
raise the issue of the cell phone store on cross examination
of the homicide detective.” R. Doc. 274 at 4.
Mitchell's claims that his attorney failed to object to
the jury instructions and closing argument, the Government
contends that these two issues have already been addressed by
the Court and the Court determined Mitchell's rights were
not substantially prejudiced by his counsel's action, or
inaction. Further, the government argues that these issues
were not raised on appeal and therefore Mitchell must
demonstrate “both ‘cause' for his procedural
default, and ‘actual prejudice' resulting from the
error.” R. Doc. 274 at 9-10 (quoting United States
v. Segler, 37 F.3d 1131, 1133 (5th Cir. 1994)). If
Mitchell is unable to meet this standard, he is only entitled
to relief if a constitutional error would result in a
“complete miscarriage of justice.” R. Doc. 274 at
11 (quoting United States v. Shaid, 937 F.2d 228,
231 (5th Cir. 1991)). Because Mitchell does not demonstrate
cause or actual prejudice, the Government avers his claims
must fail. R. Doc. 274 at 11.
LAW & ANALYSIS
seeks to vacate the judgment against him pursuant to 28
U.S.C. § 2255. Mitchell also asks the Court to appoint
him new counsel. The Court will discuss each of these
arguments in turn.
Ineffective Assistance of Counsel
present motion, Mitchell asserts four separate instances of
ineffective assistance of counsel. Claims of ineffective
assistance of counsel are governed by Strickland v.
Washington,466 U.S. 668 (1984), and its progeny.
“When a convicted defendant complains of the
ineffectiveness of counsel's assistance, the defendant
must show that counsel's representation fell below an
objective standard of reasonableness.”
Strickland, 466 U.S. at 687-88. “[A] court
must indulge a strong presumption that counsel's conduct
falls within the wide range of reasonable professional
assistance . . . .” Id. at 689.
“[S]trategic choices made after thorough investigation
of law and facts relevant to plausible options are virtually
unchallengeable; and strategic choices made after less than
complete investigation are reasonable precisely to the extent
that reasonable professional judgments support the
limitations on investigation.” Id. at 690-91.
To obtain relief under Strickland, a petitioner must
show both unreasonable performance by counsel and prejudice
to the petitioner's case ...