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United States v. Little

United States District Court, W.D. Louisiana, Shreveport Division

April 18, 2018

UNITED STATES OF AMERICA
v.
ALBERT LITTLE

          HORNSBY MAGISTRATE JUDGE

          MEMORANDUM RULING

          ELIZABETH E. FOOTE UNITED STATES DISTRICT JUDGE

         Before the Court is a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 [Record Documents 456 & 457], filed by Defendant Albert Little (“Little”). The United States responded to the motion [Record Document 471], and Little filed a reply [Record Document 474] and a request for an evidentiary hearing [Record Document 468].[1]For the following reasons, the section 2255 motion [Record Document 456] and the request for an evidentiary hearing [Record Document 468] shall be DENIED.[2]

         BACKGROUND

         Little is the former Sheriff of Winn Parish, Louisiana. On July 29, 2011, a fourteen count indictment was returned by a federal grand jury against Little and his co-defendants. Little was charged in Count One with conspiracy to posses with intent to distribute fifty grams or more of methamphetamine, in violation of Title 21, United States Code, Sections 841(a)(1) and 846. Count Five charged him with possession with intent to distribute five grams or more of methamphetamine, in violation of Title 21, United States Code, Section 841(a)(1) and Title 18, United States Code, Section 2. Finally, Counts Seven and Eleven charged Little with the use of a communication facility in facilitating the commission of a drug offense, in violation of Title 21, United States Code, Section 843(b).

         Prior to trial, all of Little's co-defendants entered pleas of guilty. Little proceeded to trial alone. A four day jury trial commenced on February 21, 2012. At the close of evidence on the third day of trial, Little made a Rule 29 motion for judgment of acquittal. The Court reserved its ruling until a jury verdict was reached. On the fourth day, after the jury convicted Little of all four counts against him, the Court denied Little's Rule 29 motion. After trial, Little filed a motion for judgment of acquittal, which this Court also denied with written reasons. See Record Document 360. On August 29, 2012, this Court sentenced Little to 160 months' imprisonment with five years of supervised release to follow. See Record Document 394. On August 6, 2013, the Fifth Circuit Court of Appeals affirmed Little's conviction and sentence. See Record Document 445. He then timely filed the instant section 2255 motion.

         In his motion, Little contends that his trial counsel was constitutionally ineffective and asks this court to vacate his conviction. First, Little argues that counsel was ineffective in failing to ensure Little's presence for all portions of voir dire. Second, Little argues that counsel was ineffective because a lackadaisical attitude was exhibited during jury selection.

         Third, Little argues that the Court improperly removed a juror for “dubious reasons.” Record Document 457-1, p. 8. Fourth, Little argues that counsel was ineffective for denying Little the right to testify on his own behalf. Fifth, Little argues that counsel was ineffective for failing to present a plea-related counter-offer to the Government in which Little offered to plead to official oppression or misprision of a felony. Sixth, Little argues that counsel was ineffective for failing to allow him to review the presentence report prior to sentencing. Seventh, Little argues counsel was ineffective for failing to raise any of the aforesaid errors on direct appeal. And finally, Little cites the cumulative error doctrine, arguing that cumulatively, all of these errors require his conviction to be vacated.

         It is worth noting that at trial, Little was represented by two attorneys. Upon his initial indictment, Little was represented by retained criminal attorney Taylor Townsend (“Mr. Townsend”). Mr. Townsend represented Little throughout pretrial and trial proceedings. Shortly after indictment and after Little's bond was revoked for conduct unrelated to the instant motion, Ansel Martin Stroud, III (“Mr. Stroud”) enrolled as Little's second retained counsel and likewise remained enrolled throughout pretrial, trial, and post-trial proceedings.

         LAW& ANALYSIS

         Under 28 U.S.C. § 2255, a prisoner may move to vacate, set aside, or correct a sentence imposed by a federal court when: (1) the sentence “was imposed in violation of the Constitution or laws of the United States[;]” (2) “the court was without jurisdiction to impose such sentence[;]” (3) “the sentence was in excess of the maximum authorized by law[;]” or (4) the sentence “is otherwise subject to collateral attack.” United States v. Scruggs, 691 F.3d 660, 666 (5th Cir. 2012); 28 U.S.C. § 2255(a). “As the Supreme Court holds, ‘[h]abeas review is an extraordinary remedy and will not be allowed to do service for an appeal.'” United States v. Cooper, 548 Fed.Appx. 114, 115 (5th Cir. 2013) (quoting Bousley v. United States, 523 U.S. 614, 622 (1998)) (internal quotations and citations omitted). Rather, after a defendant is convicted and exhausts the right to appeal, a court is “entitled to presume that the defendant stands fairly and finally convicted.” United States v. Shaid, 937 F.2d 228, 231-32 (5th Cir. 1991) (quoting United States v. Frady, 456 U.S. 152, 164 (1982) (internal marks omitted)).

         “Relief under 28 U.S.C. § 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 would, if condoned, result in a complete miscarriage of justice.” United States v. Young, 77 Fed.Appx. 708, 709 (5th Cir. 2003) (citing United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992)). Courts may consider claims for ineffective assistance of counsel brought for the first time in a § 2255 motion. See United States v. Gaudet, 81 F.3d 585, 589 (5th Cir. 1996). To successfully state a claim of ineffective assistance of counsel, the petitioner must demonstrate that counsel's performance was deficient and that the deficient performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). Failure to establish either prong of the Strickland test will result in a finding that counsel's performance was constitutionally effective. Id.; see also Tucker v. Johnson, 115 F.3d 276, 280 (5th Cir. 1997). The petitioner bears the burden of proof on both components of the Strickland standard. See Strickland, 466 U.S. at 687.

         As to the first prong, in determining whether counsel's performance was deficient, courts “indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. “[T]he defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. (internal marks omitted). If a tactical decision is “conscious and informed . . . [, it] cannot be the basis for constitutionally ineffective assistance of counsel unless it is so ill chosen that it permeates the entire trial with obvious unfairness.” Crane v. Johnson, 178 F.3d 309, 314 (5th Cir. 1999). “Judicial scrutiny of counsel's performance must be highly deferential, ” and the court must make every effort “to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's alleged conduct, and to evaluate the conduct from counsel's perspective at the time.” Strickland, 466 U.S. at 689. Thus, this Court's review “strongly presum[es] that counsel has exercised reasonable professional judgment.” United States v. Payne, 99 F.3d 1273, 1282 (5th Cir. 1996) (quoting Lockhart v. McCotter, 782 F.2d 1275, 1279 (5th Cir. 1986)).

         To establish the second prong of prejudice, the petitioner must show that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.”[3] Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. A defendant is not prejudiced if “the ineffectiveness of counsel does not deprive the defendant of any substantive or procedural right to which the law entitles him.” Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). Self-serving conclusory statements that the outcome would have been different “fall[ ] far short of satisfying Strickland's prejudice element.” Sayre v. Anderson, 238 F.3d 631, 635 (5th Cir. 2001). Moreover, “[m]ere conclusory allegations in support of a claim of ineffective assistance of counsel are insufficient to raise a constitutional issue.” Green v. Johnson, 160 F.3d 1029, 1042 (5th Cir. 1998). The prejudice element requires more than a mere allegation; the defendant must affirmatively prove it. United States v. Thompson, 44 F.3d 1004, *2 (5th Cir. 1995). Because both prongs of Strickland must be satisfied, a court may reject an ineffective assistance of counsel claim upon an insufficient showing of either deficient performance or prejudice, without inquiry into the remaining prong. See Strickland, 466 U.S. at 689-94.

         1. Individualized Voir Dire.

         Little's first challenge attacks defense counsels' failure to ensure his presence at individualized voir dire in the robing room. A criminal defendant has a right, protected by both the Constitution and the Federal Rules of Criminal Procedure, to be present at trial. United States v. Gagnon, 470 U.S. 522, 526-27 (1985). Federal Rule of Criminal Procedure 43 codifies the Fifth and Sixth Amendment rights to be present at trial, including jury impanelment. See Fed. R. Crim. P. 43(a)(2). “One purpose of the right to presence is to protect the defendant's exercise of his peremptory challenges, which means the defendant should be allowed to obtain as much first hand information as feasible to facilitate his ability to participate in the selection of a jury.” United States v. Curtis, 635 F.3d 704, 715 (5th Cir. 2011) (internal marks omitted). Two requirements stem from the defendant's right to be present. “First, the defendant must be present for the substantial majority of the jury-selection process. Second, the defendant must be present in the courtroom at the moment when the court gives the exercise of peremptory challenges formal effect by reading into the record the list of jurors who were not struck. Where these requirements are satisfied, a defendant's right to presence is not violated by a short absence during one portion of jury selection.” Id.

         During Little's trial, the Court conducted the majority of voir dire in the courtroom. When jurors indicated a need for privacy in order to answer a question, or if they indicated strong feelings in response to a question asked of them in open court, the Court and the attorneys adjourned to the robing room to question those particular jurors individually. The private questioning of the jury venire lasted from approximately 3:30 p.m. until 8:00 p.m. Record Document 598 p. 83-84, 277. The jurors were only questioned about the specific issue that precipitated the private conference in the first place. That is, if a juror expressed prior knowledge about the case, the juror was asked about that in private; if a juror expressed strong opinions about law enforcement, the juror was questioned about those feelings in private; if a juror had preconceived notions about public officials, the Court asked about those feelings in private. In other words, every juror who was questioned in the robing room had been questioned in open court. The individualized voir dire in the robing room was conducted in this manner in order to avoid possibly tainting others in the jury pool. The individualized voir dire often, but not always, resulted in a challenge for cause. No. one objected to the individualized voir dire procedure, nor does Little object to the use of this procedure in the instant motion. Rather, Little's objection is that while he was present for all of voir dire that occurred in the courtroom, he asserts he was not present for the individualized voir dire in the robing room.

         Surprisingly, the Government fails to acknowledge Little's constitutional right to be present during jury selection. It neither analyzes the force of his claim under the law, nor does it examine his challenge under the Strickland standard. Further, the affidavits of Mr. Townsend and Mr. Stroud, submitted by the Government in support of its opposition to Little's section 2255 motion, likewise fail to address Little's claim that they waived his presence during individualized voir dire.

         The Court's own review of the record reveals that Little was present for the majority of jury selection. He was in court when voir dire began, Record Document 598, p. 2, and he remained present throughout the proceedings in the courtroom. He does not contend otherwise. He was given the opportunity to consult with his defense team before the peremptory challenges were submitted to the Court, [4] and he does not contend otherwise. He was present in the courtroom when the peremptory challenges were given formal effect by way of the jury impanelment. He does not contend otherwise.

         Hence, the case before the Court is not one in which the defendant was absent from the whole of voir dire or from jury impanelment. Rather, Little's claim is that he was excluded from a portion of voir dire, over his objection to his attorneys. The record does not support his claim. First, the Court's normal practice is to allow a defendant to participate in the individual voir dire in the robing room. The only instance in this case where the record establishes Little's absence was in derogation of the Court's usual practice and was specifically noted for the record. Record Document 598. On that occasion, during voir dire, the Government requested a sidebar. The Court and the parties retired to the robing room where the following exchange occurred:

Mr. Stroud: I want you to know, for the record, our client is not present.
The Court: Do you want him present?
Mr. Stroud: I think I know what Joe [Jarzabek] is going to ask. So faced with that, I just waive it. We can put it on the record later; we're not making any decisions right now.

Id. at p. 70. AUSA Jarzabek proceeded to inform the Court that instead of asking probing questions in open court, he preferred to make a list to identify members of the jury pool who required private questioning. Id. at 70-71. The Court and the attorneys then returned to open court. Id. at 71. Mr. Stroud's remark, noting Little's absence, stands in isolation on the record, as it is the only time there was ever any indication that Little was not present during a conference regarding jury selection.

         Further bolstering the Court's impression that Little was present for individual voir dire is the phrasing defense counsel used when questioning a potential juror. Mr. Townsend stated, “I can only imagine my client's sitting here thinking that he's sorry you're having to go through this . . . .” Id. at 211. This supports the inference that Little was, indeed, present in the robing room. Thus, the record does not support Little's claim that he was excluded from individual voir dire in the robing room.

         However, assuming arguendo that Little could establish that his attorneys caused a violation of his right to be present at voir dire, Little's ineffective assistance of counsel claim nevertheless fails under the second prong of Strickland, which requires a showing of prejudice. Little must establish that “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.

         To meet this burden, Little argues that “not being present during the questioning of the jurors prejudiced him by not affording him a fair and impartial jury of his peers. Perhaps Little had arrested or issued citation to some of the members of the pool but with him not being present, there would be no way of knowing.” Record Document 457, p. 3. However, it has already been conclusively established that Little was, in fact, present for all of the voir dire conducted in the courtroom. As stated above, every juror in the venire was questioned in open court in front of Little, even if they were later questioned in the robing room. Thus, Little personally saw the jury venire, listened to their answers, and observed their demeanor during questioning. His insinuation that he was deprived of a chance to expose someone lurking on the jury venire is frivolous, as Little could have alerted his counsel to any particular juror about whom he was concerned- after having personally observed each juror in the courtroom-- so that those issues could be explored.

         Furthermore, simply stating that Little was prejudiced by not receiving a fair and impartial jury is a wholly conclusory allegation with no basis in fact. Conclusory allegations are insufficient to carry Little's burden. There is no evidence in the record, nor even an implication, that the jury was not fair and impartial. Moreover, Little does not elaborate on how his presence or active participation in the robing room would have resulted in a different jury and hence a different verdict. The Court concludes that Little has failed to demonstrate any prejudice he suffered as a result of his attorneys' alleged failure to ensure his presence in the robing room.

         2. Remarks by Mr. Townsend during Voir Dire.

         Little submits that Mr. Townsend rendered ineffective assistance of counsel by expressing remarks during voir dire which demonstrated a lackadaisical attitude about the significance of Little's trial. Little argues that he was “prejudiced by the improper or lack of questioning by his defense attorney to eliminate bias.” Record Document 457, p. 5. This claim is plainly contradicted by the record. Voir dire began shortly after the lunch hour, Record Document 598, p. 2, and continued until after 8:00 p.m, id. p. 277. Mr. Townsend engaged in hours of voir dire, questioning members of the jury venire, exposing strong opinions and biases of some, while rehabilitating others. The record is replete with examples of his efforts to secure a fair and impartial jury for his client. That Mr. Townsend made a few stray remarks about the lateness of the hour, or the length of the voir dire process, does not constitute deficient performance. Little fails to demonstrate both that Mr. Townsend performed deficiently and the prejudice Little suffered as a result. This claim is without merit.

         3. Removal of a Juror.

         Little next challenges the Court's removal of a juror, arguing that “the court improperly removed [the juror] for dubious reasons, thereby denying Little a fair and impartial jury of his peers . . . .” Record Document 457, p. 8. This is not an ineffective assistance of counsel claim. Indeed, in his Reply, Little clarifies: “The defendant does not argue that the attorneys were deficient for failing to object to the excusal by the Court of a juror . . . . The Petitioner's claim in this regard is against the Court, not his trial counsel.” Record Document 474, p. 4.

         Habeas review is not a substitute for an appeal. Claims not raised on direct appeal may not be raised for the first time in a section 2255 motion unless the petitioner establishes both cause and prejudice. Massaro v. United States, 538 U.S. 500, 504 (2003). Little had the opportunity to raise this issue on direct appeal to the Fifth Circuit and failed to do so. He has not even attempted to ...


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