The opinion of the court was delivered by: Susan Webber Wright United States District Judge
Memorandum Opinion and Order
Petitioner Joe Lewis Kelly, Jr. was convicted of being a felon in possession of ammunition. He was sentenced to 96 months imprisonment. His conviction and sentence were affirmed on appeal. United States v. Kelly, 436 F.3d 992 (8th Cir. 2006). Now before the Court is Kelly's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The government responded in opposition to the motion. For the reasons that follow, the Court finds that the motion should be denied.*fn1
Kelly was indicted for being a felon in possession of ammunition in violation of 18 U.S.C. 922(g)(1). His case was tried to a jury on September 20-22, 2004, and found guilty. According to the presentence report (PSR), Kelly had been convicted previously of at least four felony offenses, and subsequently was convicted of a fifth felony. The PSR also reflected that the instant offense included Kelly's discharge of a firearm at a car in which three of his children and their mother, Shawn Jones, were riding at the time of the shooting.
Kelly filed an appeal following his conviction, challenging the imposition of a sentence above the advisory Guidelines range. He also challenged the competency of his seven-year-old son to testify and the admissibility of his son's tape-recorded testimony. In the motion before the Court, Kelly asserts ineffective assistance of counsel, prosecutorial misconduct, and lack of jurisdiction.
1. Ineffective Assistance of Counsel
To establish that he was deprived of effective assistance of counsel, Kelly must demonstrate first, that his counsel's performance was constitutionally deficient and second, that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). The court need not address both components if the plaintiff makes an insufficient showing on one of the prongs. Id. at 697.
When examining whether an attorney has failed to meet the Strickland standard, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. Furthermore, the court "must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Id. at 690. The correct inquiry is not whether counsel's decision was correct or wise, but whether it "was an unreasonable one which only an incompetent attorney would adopt" considering all the circumstances. Parton v. Wyrick, 704 F.2d 415, 417 (8th Cir. 1983).
The prejudice prong requires Kelly to "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694 (1984). "Prejudice, for purposes of an ineffective assistance of counsel claim, means that 'one's confidence in the outcome of the trial is undermined.'" United States v. Flynn, 87 F.3d 996, 1000-01 (8th Cir. 1996) (citations omitted).
Kelly asserts his counsel was ineffective because he failed to notice that the Advice and Understanding of Rights form Kelly signed was dated November 20, 2003, and the Pulaski County Sheriff's Office's Evidence Management, Item Submission Record, listing items seized, was dated November 9, 2003. Kelly argues this discrepancy shows mismanagement of the evidence and tainted all the evidence. He asserts his attorney should have moved for a mistrial or acquittal based upon the inconsistent dates. The Court finds that, even assuming counsel's performance was deficient in this instance, Kelly fails to show there is reasonable probability that the outcome of the trial would have been different.
Kelly claims his counsel was ineffective for failing to notice that there were notes in all the jurors' chairs before the trial started. He says counsel should have asked about the content of the notes. A review of the relevant portion of the transcript shows that the Court advised the jurors that there were legal pads in their chairs that they could use to take notes if they wished. There were no notes in their chairs, only notebooks or ...