The opinion of the court was delivered by: J. Leon Holmes United States District Judge
Jason Jerrel Ausler was convicted on two counts of possession of controlled substances with intent to deliver. On Count 1 he was convicted of possession with intent to distribute a mixture or substance containing cocaine hydrochloride. The jury found that the quantity of the mixture or substance containing cocaine hydrochloride was more than 5 kilograms. On Count 2 he was convicted of possession with intent to distribute a mixture or substance containing cocaine base, otherwise known as crack cocaine. The jury found that the quantity of the mixture or substance containing cocaine base was 5 grams or more but less than 50 grams. Ausler was determined to be a career offender. His guidelines sentencing range was 360 months to life. The Honorable Stephen M. Reasoner*fn1 sentenced him to a term of 480 months imprisonment on Counts 1 and 2 to run concurrently; 10 years supervise release; $20,000 community restitution; $20,000 fine; and $200 special assessment.
Ausler appealed his conviction on Count 2, arguing that there was insufficient evidence that he knowingly possessed crack cocaine. The Eighth Circuit affirmed. See United States v. Ausler, 395 F.3d 918 (8th Cir. 2005). Ausler raised no issue on direct appeal other than the sufficiency of the evidence with respect to Count 2.
After the Eighth Circuit affirmed on direct appeal, Ausler filed a timely petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255. Ausler requested that the Court appoint counsel to represent him in the § 2255 proceedings, and the Court appointed appellate counsel for the Federal Public Defender's Office, Omar F. Greene.*fn2 On Ausler's behalf, Greene has asserted and briefed the following claims: (1) an improperly hasty determination was made regarding the defendant's desire to proceed pro se; (2) the defendant's right to represent himself was not honored; (3) the defendant was entitled to conflict-free counsel; (4) trial counsel was ineffective for failing to make a suppression motion and for failing to raise certain discovery issues; and (5) important constitutional issues regarding Blakely and Booker apply to this case. In addition to the claims that Greene has asserted and briefed, Ausler raises pro se 13 separate issues, all of which have been considered by the Court.
For the reasons stated below, Ausler's petition is DENIED.
Ausler's first three points are interrelated and will be discussed together.
Before trial, Ausler's court-appointed lawyer, Mark Alan Jesse, filed a motion styled, "Motion for Conflict of Interest Determination." That motion recited:
Subsequent to the court appointing counsel to represent the Defendant, the Defendant has served counsel by registered mail, return receipt requested, with certain notices of publication and self executing security agreements, claiming a "common law copyright" in the use of his given name, and claiming that further usage of his name constitutes a violation subjecting counsel to penalties and damage awards.
The motion further stated, "To the extent counsel might be required to file any motion, might be required to defend himself against the claims of the Defendant, or in any other manner take an adversarial position to that of the client, a conflict of interest may exist." The motion requested a hearing to determine whether a conflict of interest existed that would preclude further representation by the attorney.
A hearing was held before The Honorable Judge Henry L. Jones, Jr., Magistrate Judge for the Eastern District of Arkansas. At that hearing, when Ausler's name was mentioned, he invoked his "common law copyright," insisting that he be addressed as "secured party," and asserting that the person using his name, whether his own counsel or the Court, did not have permission to use his private property. There was a discussion as to whether Ausler qualified for a court-appointed lawyer, and Jesse stated that Ausler refused to execute an affidavit, but it appeared to him that Ausler did qualify for appointment of counsel. The Court at one point requested Ausler to state his position with respect to the issue raised by Jesse, and the following exchange occurred:
THE DEFENDANT: The name you just called is common-law copyright and I am the holder of the copyright, the secured party in all transactions concerning unauthorized use thereof.
You may address me as secured party. The party you called the defendant, the party you call a person is a registered copyright and my copyrighted property. You do not now have nor have you ever had my permission to use my private property.
You have been properly noticed of the fee for each unauthorized use of my property so I can interpret your actions in no other way than you want to do business. Repeated use after notification of fees to remove it from reversible error. You do not have my authorization to use my private property at any time without compensating me.
If you want to withdraw from the consensual contract at this point in time and cease using my property in any manner and guarantee that none of your associates will likewise ever use my property again for any reason I will be amenable to forgiving all unauthorized use fees incurred heretofore; however, any instance of additional use of my property at any time by either you or any of your associates confirms and executes the consensual contract and security agreement now in your possession concerning our business arrangement.
The terms of our consensual contract reflect everything I am saying here. The only reason I am here is to do business because you are holding the wrong party and holding him against his will. If you want to do business, then let's do business; otherwise, let's call off the whole thing right now and go home.
THE COURT: Is it your position that your attorney cannot use your name at all?
THE DEFENDANT: I have never been represented by counsel.*fn3
THE COURT: All right. You do not wish to have appointed counsel?
THE DEFENDANT: Affidavit, original printed declaration of statement of facts made voluntarily and confirmed by the oath or affirmation of party making it, taken before an officer with authority to administer such oath. An affidavit is a written statement under oath executed and sworn to before an authorized officer on a maker's commercial liability that all assertions contained within the affidavit are true, correct and complete and not misleading the truth, the whole truth and nothing but the truth.
An affidavit is the most solemn, unequivocal and ceremonial means to the extent to express truth without evasion presuming deceptional sincerity as distinguished from testimony. An affidavit is not subject to cross examination. It's intended to be a complete self-contained document.
All truth is subjective and only each free will being possesses the right, duty, privilege, and capacity to affiant's own truth in accordance with unique maker's perspective and priorities of the affiant. No one has the authority nor the ability to respect the truth of another because truth is sovereign and truth is supreme in commerce.
An affidavit is the most important document commerce and stands as the truth unless rebutted point-for-point by counter affidavit signed and certified on the executing party's commercial liability as true, correct and complete, not misleading the truth, the whole truth and nothing but the truth to which no one has rebutted my affidavit as of the 14th day of the first month, the year of our Lord 2003 to which verifies the supremacy and commerce at the truth, the whole truth and nothing but the truth so help me God.
THE COURT: Do you wish to have appointed counsel?
THE DEFENDANT: Since we are going forward with the use of my private --
THE COURT: Just a second. Just a second. Just a second, Mr. Ausler.
THE DEFENDANT: -- property without my authorization, we are now under --
THE COURT: Just a second. Mr. Ausler, just a second.
THE DEFENDANT: -- contract and I demand to be paid, with or without your cooperation.
THE COURT: Mr. Ausler, do you wish to have appointed counsel?
THE DEFENDANT: And your only option is the law that allows sole means to private property and use it without compensating me in accordance with our agreement. If you're having second thoughts about our agreement you can still do something about it ...