United States District Court, D. Rhode Island
MEMORANDUM AND ORDER
WILLIAM E. SMITH CHIEF JUDGE.
Ernesto Monell has filed a motion to vacate, set aside, or
correct sentence pursuant to 28 U.S.C. § 2255 (ECF No.
44), and an amended motion to vacate (ECF No. 55), in the
above-captioned matter. He has also filed a
“supplement” motion for DNA testing in support of
the Motion to Vacate (ECF No. 48) and a motion to dismiss the
indictment (ECF No. 61). The Government has filed responses
to Monell's filings (ECF Nos. 50, 51, 56, 62), and Monell
has filed replies to the Government's responses (ECF Nos.
52, 57). The Court has determined that no hearing is
necessary. For the reasons that follow, the Motion to Vacate,
Motion for DNA Testing, and Motion to Dismiss are DENIED.
Background and Travel
November 6, 2013, a Grand Jury sitting in the District of
Rhode Island indicted Monell on a single count of being an
inmate of a prison who possessed a prohibited object,
specifically an object that was designed and intended to be
used as a weapon, in violation of 18 U.S.C. §
events giving rise to the indictment occurred on the night of
August 16, 2013, at the Donald W. Wyatt Detention Facility in
Central Falls, Rhode Island (the
“Wyatt”). Shortly after 9:00 p.m., a disturbance
broke out among several detainees, including Monell, in the
dayroom of L-Pod at the Wyatt. (Tr. I 47-48.) The
correctional officer on duty, Michael Bessette, initiated a
“Code Blue, ” indicating that detainees were
fighting with a weapon involved and requesting backup to stop
the disturbance. (Id. 48-49.) Officer Bessette
testified that he was about 30 feet away from Monell, who was
involved in an altercation with another detainee, and saw an
object in Monell's hand. (Id.) Officer
Bessette's supervisor, Lieutenant Peter Montgomery, who
subsequently entered the dayroom, also testified that he saw
a dark object wrapped in white in Monell's hand.
(Id. 84-85.) Officer Bessette and Lieutenant
Montgomery further testified that they saw Monell moving his
arm in a stabbing or striking motion at other detainees.
(Id. 50-51, 84-85.) Lieutenant Montgomery ordered
the detainees to stop fighting and get on the ground.
(Id. 85.) When they did not, he sprayed
“OC” (Oleoresin Capsicum), a substance similar to
pepper spray, which is used to subdue detainees.
(Id.) When the situation was brought under control,
the detainees involved were removed, either to the medical
unit or segregation, while the rest of the pod was locked
down. (Id. 86.) Robin Fox, RN, testified that four
detainees, including Monell, were treated for various wounds,
such as scratches, lacerations, gouges, and puncture wounds.
(Id.) Nurse Fox stated that Monell's injuries
included a left forefinger laceration and a skin tear on his
right palm, and his hands were bloody. (Id. 127-29.)
During the course of the subsequent investigation, a
triangular metal object, which was sharpened at one end, was
discovered in a trash can. (Id. 92, 98.) Lieutenant
Montgomery described it as a “shank, ” or
instrument used for stabbing, and identified it as the object
he had seen in Monell's hand. (Id. 94.) Paul
Villa, the investigator at the Wyatt who investigated the
incident, testified that there were spots of blood on the
floor of the dayroom, as did Lieutenant Montgomery.
(Id. 91, 139.) The events were recorded by cameras
positioned throughout the pod. (Id. 70-73.)
was arrested and arraigned on the Indictment on November 18,
2013. (Indictment, ECF No. 5.) He was convicted on May 20,
2014, following a jury trial. (Trial Transcript, Volume II
(ECF No. 39) (“Tr. II”) 5.) On August 6, 2014,
Monell was sentenced to a term of imprisonment of two years.
(Sentencing Tr. (ECF No. 41) 8-9.) Judgment entered on August
8, 2014. (ECF No. 32.)
filed a Notice of Appeal on August 11, 2014. (ECF No. 33.)
Appellate Counsel thereafter filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), and, in a
Judgment dated June 2, 2015, the Court of Appeals found that
there was no non-frivolous basis for appeal, granted
counsel's motion to withdraw, and affirmed Monell's
conviction and sentence. (ECF No. 43.) The court's
Mandate issued on June 24, 2015. (ECF No. 46.) Monell did not
seek further review.
9, 2015, Monell timely filed the instant Motion to
Section 2255 Section 2255 provides in relevant part:
A prisoner in custody under sentence of a court established
by Act of Congress claiming the right to be released upon 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, may move the court
which imposed the sentence to vacate, set aside or correct
28 U.S.C. § 2255(a).
the grounds justifying relief under 28 U.S.C. § 2255(a)
are limited. A court may grant relief pursuant to § 2255
in instances where the court finds a lack of jurisdiction, a
constitutional error, or a fundamental error of law.
United States v. Addonizio, 442 U.S. 178, 185
(1979). “[A]n error of law does not provide a basis for
collateral attack unless the claimed error constituted
‘a fundamental defect which inherently results in a
complete miscarriage of justice.'” Id.
(quoting Hill v. United States, 368 U.S. 424, 428
(1962)). Moreover, “§ 2255 is not a substitute for
direct appeal.” Knight v. United States, 37
F.3d 769, 772 (1st Cir. 1994) (citing cases).
Sixth Amendment guarantees defendants the right to effective
assistance of counsel.” Lema v. United States,
987 F.2d 48, 51 (1st Cir. 1993) (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)). However,
“[t]he Constitution does not guarantee a defendant a
letter-perfect defense or a successful defense; rather, the
performance standard is that of reasonably effective
assistance under the circumstances then obtaining.”
United States v. Natanel, 938 F.2d 302, 309-10 (1st
Cir. 1991) (citing Strickland, 466 U.S. at 687-88).
defendant who claims that he was deprived of his Sixth
Amendment right to effective assistance of counsel must
(1) that his counsel's performance “fell below an
objective standard of reasonableness”; and
(2) “a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different.”
Strickland, 466 U.S. at 687-88, 694. In assessing
the adequacy of counsel's performance, a defendant
“‘must identify the acts or omissions of counsel
that are alleged not to have been the result of reasonable
professional judgment, ' and the court then determines
whether, in the particular context, the identified conduct or
inaction was ‘outside the wide range of professionally
competent assistance.'” United States v.
Manon, 608 F.3d 126, 131 (1st Cir. 2010) (quoting
Strickland, 466 U.S. at 690). With respect to the
prejudice requirement under Strickland, a
“reasonable probability is one sufficient to undermine
confidence in the outcome. . . . In making the prejudice
assessment, [the court] focus[es] on the fundamental fairness
of the proceeding.” Id. (internal citations
and quotation marks omitted). “Unless a defendant makes
both showings, it cannot be said that the conviction . . .
resulted from a breakdown in the adversary process that
renders the result unreliable.” Strickland,
466 U.S. at 687; see also Reyes-Vejerano v. United
States, 117 F.Supp.2d 103, 106 (D.P.R. 2000) (“The
petitioner has the burden of proving both prongs of this
test, and the burden is a heavy one.”). “The
benchmark for judging any claim of ineffectiveness must be
whether counsel's conduct so undermined the proper
functioning of the adversarial process that the trial cannot
be relied on as having produced a just result.”
Strickland, 466 U.S. at 686.
instructs that “[j]udicial scrutiny of counsel's
performance must be highly deferential.” Id.
at 689; see also Id. (“It is all too tempting
for a defendant to second-guess counsel's assistance
after conviction or adverse sentence, and it is all too easy
for a court, examining counsel's defense after it has
proved unsuccessful, to conclude that a particular act or
omission of counsel was unreasonable.”). The court
“must indulge a strong presumption that counsel's
conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome
the presumption that, under the circumstances, the challenged
action ‘might be considered sound trial
strategy.'” Id. (quoting Michel v.
Louisiana, 350 U.S. 91, 101 (1955)). Moreover,
“[a]n error by counsel, even if professionally
unreasonable, does not warrant setting aside the judgment of
a criminal proceeding if the error had no effect on the
judgment.” Id. at 691. Finally, “[a]
fair assessment of attorney performance requires that every
effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel's
challenged conduct, and to evaluate the conduct from
counsel's perspective at the time.” Id. at
Motion to Vacate
noted above, Monell filed the Motion to Vacate (ECF No. 44)
on June 9, 2015. On September 11, 2015, the Government filed
its response (ECF No. 50) (“First Response”) to
the Motion to Vacate. Monell subsequently filed a reply (ECF
No. 52) (“First Reply”) to the Government's
First Response and an amended version (ECF No. 55) of his
Motion to Vacate (“Amended Motion to Vacate”),
raising an additional claim. The Government then filed a
response to the Amended Motion to Vacate (ECF No. 56)
(“Second Response”). Monell filed a reply to the
Second Response (ECF No. 57) (“Second Reply”),
which also appears to raise an additional claim, followed by
a supplemental memorandum (ECF No. 58) (“Supplemental
Mem.”), which presents yet another claim. On May 6,
2016, the Government filed an omnibus response (ECF No. 62)
(“Omnibus Response”) to Monell's Second Reply
and Supplemental Mem.
Amended Motion to Vacate, which the Court treats as a motion
to amend, is granted. To the extent the Second Reply and
Supplemental Mem. seek to raise additional grounds, they,
too, are treated as motions to amend and are
total, Monell presents the following claims of error: (1)
ineffective assistance of counsel because counsel declined to
request DNA analysis of the weapon Monell was charged with
possessing; (2) ineffective assistance of counsel for failing
to object to the improbability of certain testimony; (3)
judicial error with respect to the Court's response to a
jury question and supplemental instruction to the jury; (4)
ineffective assistance of counsel due to counsel's
failure to consult with Monell and keep him informed,
specifically about the sidebar conference during which
defense counsel expressed agreement with the Court's
supplemental instruction; and (5) ineffective assistance of
counsel based on counsel's failure to object to the fact
that Monell's legs were shackled during the trial.
Ineffective assistance of counsel
first claim of ineffective assistance of counsel is based on
counsel's failure to demand DNA analysis on the weapon
Monell was charged with possessing, despite Monell's
request that he seek such testing. (Motion to Vacate 4;
Affidavit of Fact (ECF No. 44-2) ¶ 1.) According to
Monell, such testing would have determined his innocence.
(Affidavit of Fact ¶ 2.)
counsel cross-examined Inspector Villa regarding any testing
of the weapon that was - or was not - done:
Q. Inspector, you took custody of the shank, correct?
A. I did.
Q. Did you conduct any tests on the object?
A. I did not.
Q. Test for fingerprints?
A. I did not.
Q. You didn't test for any bodily fluids or anything on
A. I did not.
(Tr. I 167-68.)
redirect examination, Inspector Villa was asked:
Q. So as it relates to the questions concerning testing, does
the Wyatt facility have a lab there?
Q. This case, would you describe this case as routine?
Q. You had the video, correct?
Q. Did you review the officers' reports as to what they
(Id. 171-72.) Defense counsel followed up on
Q. You don't have a lab at Wyatt, right?
Q. Okay. But you have access to a lab if you need something
A. I would have to go through the Marshal Service to get
Q. Right. The Marshal Service that is part of the Department
of Justice, correct?
A Correct. But I don't make that determination. The
marshals would make that determination as to whether
they're going to test something or not.
Q. But you could ask, right?
A. I guess I could ask but --
Q. Did you ask?
A. I did not.
counsel also emphasized the lack of testing during his
When you get into the jury room, you're going to get a
chance to look at this item, the item with the white
shoelace, the item that has no blood on it. Okay? We
don't know if there's any fingerprints on it or
anything else like that, but we know there's no blood on
it whatsoever. You're going to be able to handle it, look
at it, whatever, but the Government has not proved beyond a
reasonable doubt Mr. Monell had this. Not even close.
The other thing, folks, we heard from Deputy Chief Marshal
Remington this morning. Okay? They're available to help
out in investigations. Something that happens in the Wyatt is
their responsibility. Their responsibility because they have
detainees at the Wyatt. All right? So there was a lab
available to test this. Of course there was. But they
didn't ask. I don't know. Don't care? Inspector
Villa knows better. He's been in police, law enforcement
for almost 30 years he said. Why didn't he ask? I
don't know if he cares or doesn't care. But you
should care. All right? You should care.
clear from the foregoing that counsel's strategy was to
discredit the Government's witness, emphasize the lack of
physical evidence connecting Monell to the object, and raise
reasonable doubt in the minds of the jury. “In any case
presenting an ineffectiveness claim, the performance inquiry
must be whether counsel's assistance was reasonable
considering all the circumstances.”
Strickland, 466 U.S. at 688; see also id.
at 690 (“[C]ounsel is strongly presumed to have
rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional
judgment.”); Knight v. Spencer, 447 F.3d 6, 18
(1st Cir. 2006) (noting “the wide latitude of
discretion available to defense counsel to conduct the
defense in the manner of his or her own choosing”);
Phoenix v. Matesanz, 233 F.3d 77, 84 (1st Cir. 2000)
(“Defense counsel is allowed to make strategic
decisions, within the wide bounds of professional competence,
as to which leads to follow up, and on which areas to focus
his energies.”). Counsel's decision to rely on
pointed questioning of the Government's witness, rather
than attempting to obtain DNA testing of the object in
question, is a strategic choice which the Court, in
hindsight, will not question. See Strickland, 466
U.S. at 689 (noting court's obligation “to
reconstruct the circumstances of counsel's challenged
conduct, and to evaluate the conduct from counsel's
perspective at the time”); see also Yarborough v.
Gentry, 540 U.S. 1, 6 (2003) (“The Sixth Amendment
guarantees reasonable competence, not perfect advocacy judged
with the benefit of hindsight.”); Lema, 987
F.2d at 56 (“While these trial tactics may appear
dubious to the petitioner in hindsight, especially in the
grim reflection of the intervening convictions, the reviewing
court must be persuaded that the failed trial strategy was
not within the ‘wide range of reasonable professional
assistance' contemplated by Strickland.”).
The Court is not persuaded that counsel's chosen strategy
was outside the “wide range of reasonable professional
assistance, ” Strickland, 466 U.S. at 689,
under the circumstances.
even assuming, for the sake of argument, that counsel should
have sought DNA testing, “[a]n error by counsel, even
if professionally unreasonable, does not warrant setting
aside the judgment of a criminal proceeding if the error had
no effect on the judgment.” Strickland, 466
U.S. at 691. Monell has failed to show that the alleged error
created more than a “possibility of prejudice,
” but that it “worked to his actual and
substantial disadvantage, ” thereby infecting the
entire proceeding “with error of constitutional
dimensions.” United States v. Frady, 456 U.S.
152, 170 (1982). Two eyewitnesses testified that they saw an
object in Monell's hand during the altercation and that
he was making striking or stabbing motions at other
detainees. (Tr. I 48, 50, 52, 84-85.) Monell's actions
were recorded by cameras in the dayroom. (Id. 62-63,
142.) Nurse Fox testified that the victims' wounds were
consistent with being made with a sharp instrument.
(Id. 111, 123.) Finally, Monell's wound was
consistent with having held a sharp object in his hand.
(Id. 156, 158.) Even if testing revealed that
Monell's DNA was not present on the shank found in the
trash can, ...