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United States v. Monell

United States District Court, D. Rhode Island

November 17, 2017

UNITED STATES OF AMERICA
v.
ERNESTO MONELL

          MEMORANDUM AND ORDER

          WILLIAM E. SMITH CHIEF JUDGE.

         Defendant 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.

         I. Background and Travel

         On 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. § 1791(a)(2)(b)(1)(B).

         The 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”).[1] 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.)

         Monell 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.)

         Monell 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.

         On June 9, 2015, Monell timely filed the instant Motion to Vacate.[2]

         II. Law

         A. 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 the sentence.

28 U.S.C. § 2255(a).

         Generally, 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).

         B. Strickland

         “The 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).

         A defendant who claims that he was deprived of his Sixth Amendment right to effective assistance of counsel must demonstrate:

(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.

         Strickland 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 689.

         III. Discussion

         A. Motion to Vacate

         As 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.

         The 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 granted.[3]

         In 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.

         1. Ineffective assistance of counsel

         Monell's 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.)

         Defense 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 there?
A. I did not.

(Tr. I 167-68.)

         On redirect examination, Inspector Villa was asked:

Q. So as it relates to the questions concerning testing, does the Wyatt facility have a lab there?
A. No.
Q. This case, would you describe this case as routine?
A. Yes.
Q. You had the video, correct?
A. Correct.
Q. Did you review the officers' reports as to what they had seen?
A. Yes.

(Id. 171-72.) Defense counsel followed up on recross-examination:

Q. You don't have a lab at Wyatt, right?
A. No.
Q. Okay. But you have access to a lab if you need something tested, correct?
A. I would have to go through the Marshal Service to get something tested.
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.

(Id. 172-73.)

         Defense counsel also emphasized the lack of testing during his closing argument:

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.

(Id. 204.)

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.

(Id. 211.)

         It is 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.

         Moreover, 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, ...


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