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United States v. Bates

United States District Court, E.D. Louisiana

July 23, 2019


         SECTION “R”



         Before the Court is defendant Nemessis Bates's motion to vacate his sentence under 28 U.S.C. § 2255.[1] Upon review of the entire record, the Court has determined that this matter can be disposed of without an evidentiary hearing. For the following reasons, Bates's motion is denied.

         I. BACKGROUND

         This case is a murder-for-hire prosecution arising from the November 21, 2010 killing of Christopher “Tiger” Smith.[2] On April 17, 2014, a grand jury returned a four-count superseding indictment charging Bates with solicitation to commit a crime of violence, in violation of 18 U.S.C. §§ 1958(a) and 373; conspiracy to use and use of interstate commerce facilities in the commission of murder for hire, in violation of 18 U.S.C. §§ 1958(a) and 2; causing death through the use of a firearm, in violation of 18 U.S.C. §§ 924(j)(1) and 2; and conspiracy to possess a firearm, in violation of 18 U.S.C. § 924(o).[3] Bates elected to go to trial, and on June 4, 2014, the jury found Bates guilty on all counts.[4] On June 17, 2015, Bates moved for a judgment of acquittal or a new trial under Federal Rule of Criminal Procedure 29.[5] The Court denied the motion on September 10, 2015.[6]

         On December 16, 2015, the Court sentenced Bates to life imprisonment.[7] Bates appealed his sentence on several different grounds, [8]and the Fifth Circuit affirmed his conviction and sentence on April 5, 2017.[9]Bates did not appeal the Fifth Circuit's decision. Bates has now moved to vacate his sentence under Section 2255 because he argues that he received ineffective assistance of counsel.[10]


         A. 28 U.S.C. § 2255

         Section 2255 of Title 28 of the United States Code provides that a federal prisoner serving a court-imposed sentence “may move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a). Only a narrow set of claims are cognizable on a Section 2255 motion. The statute identifies four bases on which a motion may be made: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence exceeds the statutory maximum sentence; or (4) the sentence is “otherwise subject to collateral attack.” Id. A claim of error that is neither constitutional nor jurisdictional is not cognizable in a Section 2255 proceeding unless the error constitutes “a fundamental defect which inherently results in a complete miscarriage of justice.” United States v. Addonizio, 442 U.S. 178, 185 (1979) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)).

         When a Section 2255 motion is filed, the district court must first conduct a preliminary review. “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 . . . .” Rules Governing Section 2255 Proceedings, Rule 4(b). If the motion raises a non-frivolous claim to relief, the court must order the Government to file a response or to take other appropriate action. Id. The judge may then order the parties to expand the record as necessary and, if good cause is shown, authorize limited discovery. Id., Rules 6-7.

         After reviewing the Government's answer, any transcripts and records of prior proceedings, and any supplementary materials submitted by the parties, the court must determine whether an evidentiary hearing is warranted. Id., Rule 8. An evidentiary hearing must be held “[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). No. evidentiary hearing is required if the prisoner fails to produce any “independent indicia of the likely merit of [his] allegations.” United States v. Edwards, 442 F.3d 258, 264 (5th Cir. 2006) (quoting United States v. Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998)).

         Ultimately, the petitioner bears the burden of establishing his claims of error by a preponderance of the evidence. Wright v. United States, 624 F.2d 557, 558 (5th Cir. 1980). For certain “structural” errors, relief follows automatically once the error is proved. Brecht v. Abrahamson, 507 U.S. 619, 629-30 (1993). For other “trial” errors, the court may grant relief only if the error “had substantial and injurious effect or influence” in determining the outcome of the case. Id. at 637-38 (citation omitted); see also United States v. Chavez, 193 F.3d 375, 379 (5th Cir. 1999) (applying Brecht in a Section 2255 proceeding). If the court finds that the prisoner is entitled to relief, it “shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.” 28 U.S.C. § 2255(b).

         B. Ineffective Assistance of Counsel

         To establish a claim of constitutionally ineffective assistance of counsel, a petitioner must show both (1) that counsel's performance fell below an objective standard of reasonableness, and (2) that but for counsel's deficient performance, the likely outcome of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 687-96 (1984). The petitioner must meet both prongs of the Strickland test and, if a court finds that the petitioner has made an insufficient showing as to either prong, the court may dispose of the claim without addressing the other prong. See id. at 697.

         As to the first prong of the Strickland test, counsel's performance must be compared to “an objective standard of reasonableness, mindful of the strong presumption of adequacy.” Green v. Johnson, 116 F.3d 1115, 1122 (5th Cir. 1997). A court should not find inadequate representation merely because, with the benefit of hindsight, the court disagrees with counsel's strategic choices. Id. The Fifth Circuit has made clear that “[a] conscious and informed decision on trial tactics and strategy 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.” Id. (quoting Garland v. Maggio, 717 F.2d 199, 206 (5th Cir. 1983)). As to the second Strickland prong, a 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. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.


         A. Section 2255 Motion

         Bates alleges ineffective assistance of counsel on many grounds at every stage of proceedings. The Court will address his allegations of ineffective assistance at the pretrial stage, the trial stage, the sentencing stage, and on appeal.

         1. ...

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