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Young v. United States

United States District Court, N.D. Ohio

June 5, 2017

DAZZLE JOE YOUNG, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER [RESOLVING DOC. 116 [1] ]

          JAMES S. GWIN, UNITED STATES DISTRICT JUDGE.

         On December 2, 2014, Petitioner Dazzle Joe Young petitioned for habeas relief under 28 U.S.C. § 2255 and requested appointment of counsel.[2] The Court denied Petitioner's motion to vacate his conviction and request for counsel.[3]

         On March 1, 2017, the Sixth Circuit Court of Appeals reversed this Court's order. The Sixth Circuit found that Petitioner Young had been entitled to counsel at an evidentiary hearing and remanded the case for appointment of counsel and a new hearing.[4]

         After a hearing where Petitioner was represented by counsel, the Court DENIES Young's § 2255 petition.

         I. Background

         On October 8, 2012, a jury found Young guilty of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).[5] The Court sentenced Young to 188 months' imprisonment.[6] The Sixth Circuit affirmed Young's conviction and sentence on direct appeal.[7]

         At trial, the Government presented evidence that Young sold a firearm to two confidential informants at Young's Akron, Ohio, home on June 20, 2011. The informants created a low-quality audio recording of the sale.

         Young's counsel filed a motion in limine to exclude the recording at trial, noting that it “contains substantial portions of inaudible conversation, and appears to contain anomalies that raise serious questions about whether ‘changes, additions or deletions' have been made to the recording.”[8] The Government agreed not to use the recording.[9] Instead, a detective who monitored the sale in real time testified he was familiar with Young's voice and heard Young sell the informants a gun.

         On December 2, 2014, Young petitioned for habeas relief under 28 U.S.C. § 2255.[10]Young also requested appointment of counsel. In his petition, Young made two arguments.

         First, Young argues that trial counsel Charles Fleming should have introduced the audio of the recording at trial. Young maintains that his voice was not on the recording. Had the jury heard the recording, Young reasons they would have agreed and acquitted Young as a result.

         Second, Young argues that Attorney Fleming failed to call certain witnesses and did not perform an adequate pretrial investigation. In support, Young submits affidavits from Fred Alvarez and Jackie Birch. Both affiants state that they were in the house during the sale. They also state they contacted trial counsel in order to testify but received no response. According to Mr. Birch, the Petitioner's brother told Mr. Birch that he, not the Petitioner, sold the gun in question. Young maintains that he would have been acquitted had Birch or Alvarez been called to testify.[11]

         After a July 13, 2015 hearing, the Court denied Petitioner's motion to vacate his conviction and request for counsel, and also denied Petitioner's request for a certificate of appealability.[12] On the merits, the Court found Petitioner's ineffective assistance of counsel arguments lacking.

         First, the Court found that Petitioner's trial counsel's decision to exclude the audio recording was “within the range of professionally competent assistance.”[13] Introducing the tape was risky, as the voice sounded similar to Young's.[14]

         Second, the Court found trial counsels' preparation reasonable. At the hearing, trial counsel testified that Young never mentioned Birch or Alvarez being in the house until close to trial, and that neither of them contacted trial counsel directly.[15]

         On July 30, 2015, Young filed a motion arguing that the failure to appoint counsel to represent him violated his Sixth Amendment rights.[16] The Court denied the motion, finding that Young had no absolute right to counsel.[17] Young appealed.[18]

         On March 1, 2017, the Sixth Circuit Court of Appeals reversed this Court's order denying the motion for counsel. The Sixth Circuit found that Petitioner Young is entitled to counsel at an evidentiary hearing and remanded the case for appointment of counsel and a new hearing.[19] The Sixth Circuit reasoned that had Young had the benefit of counsel at the hearing, the Court may have considered the merits of his ineffective assistance of counsel claim differently.[20]

         At the May 30, 2017 hearing, Petitioner Young renewed his arguments with counsel present.

         II. Legal Standards

         A. 28 U.S.C. § 2255 Relief

         Title 28 United States Code Section 2255 gives a federal prisoner post-conviction means of collaterally attacking a conviction or sentence that he alleges violates federal law. Section 2255 provides four grounds upon which a federal prisoner may challenge his conviction or sentence:

1) That the sentence was imposed in violation of the Constitution or laws of the United States;
2) That the court was without jurisdiction to impose such sentence;
3) That the sentence exceeded the maximum authorized by law; or
4) That the sentence is otherwise subject to collateral attack.[21]

         To prevail on a § 2255 motion alleging a constitutional error, the movant “must establish an error of constitutional magnitude which had a substantial and injurious effect or influence on the proceedings.”[22]

         III. Discussion

         Pursuant to the Sixth Circuit's order, the Court held another evidentiary hearing in which Petitioner Young was represented by counsel. However, Petitioner Young is bound by the same standard applied in the Court's previous denial of Young's habeas petition. Evidence presented at the recent hearing does not change the Court's analysis.

         To prevail on an ineffective assistance of counsel claim, a habeas petitioner must satisfy the two-pronged Strickland v. Washington[23] test.

         First, the petitioner must show that his counsel's performance was deficient, meaning it “fell below an objective standard of reasonableness.”[24] The Court determines “whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.”[25] The Court's review is deferential, as “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.”[26]

         Second, the petitioner must show that the deficiency prejudiced his defense; in other words, “that there is a reasonable probability that, but for counsel's unprofessional errors, the ...


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