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Mann v. United States

United States District Court, E.D. Arkansas, Western Division

August 26, 2016



         Petitioner Randeep Mann's motion to vacate, set aside or correct sentence under 28 U.S.C. § 2255 [Doc. No. 395] and his motion for hearing on motion for post-conviction relief [Doc. No. 406] are denied.

         I. BACKGROUND

         On the morning of February 4, 2009, Dr. Trent Pierce, Chairman of the Arkansas State Medical Board, found a spare tire leaning against his vehicle at his home in West Memphis, Arkansas. When Pierce moved the tire, a grenade taped to the underside of the tire exploded, leaving him severely injured. As officials began their investigation into the bombing, they obtained a list of all doctors who had been disciplined by the medical board within the past five years. One of the doctors on this list was petitioner Randeep Mann, who had a history before the board. The night of the bombing, an agent of the Bureau of Alcohol, Tobacco and Firearms and a special agent with the Arkansas State Police interviewed Mann and his wife at their home. During the interview, Mann showed the two officials his extensive gun collection, which included machine guns and grenade launchers.

         On March 3, 2009, two city workers discovered a canister filled with ninety-eight grenades buried in a wooded area approximately 875 feet from Mann's home. The next day, agents obtained a search warrant for Mann's residence to search for evidence related to the buried grenades. Mann was arrested because the ninety-eight grenades and at least two other firearms were not registered to Mann in violation of federal firearms laws. On March 5, 2009, officials obtained a search warrant for Mann's residence to search for evidence related to the February 4, 2009, bombing of Dr. Pierce. Ultimately, eight charges were brought against Mann in relation to the Pierce bombing and the possession of unregistered firearms.

         On August 9, 2010, a jury convicted Mann of seven of the eight charges: Count 1, conspiring to use and aiding and abetting in the use of a weapon of mass destruction in violation of 18 U.S.C. § 2332a; Count 2, causing the damage or destruction of a vehicle by means of an explosive resulting in personal injury in violation of 18 U.S.C. § 844(I); Count 3, possession of unregistered grenades in violation of 26 U.S.C. § 5861(d); Count 5, possession of an unregistered machinegun in violation of 26 U.S.C. § 5861(d); Count 6, possession of a machinegun in violation of 18 U.S.C. § 922(o); Count 7, conspiring to corruptly obstruct an official proceeding in violation of 18 U.S.C. § 1512; and Count 8, aiding and abetting in the corrupt concealment of documents with the intent to impair the use of the documents in an official proceeding in violation of 18 U.S.C. § 1512.

         On February 28, 2011, Mann was sentenced as follows: life imprisonment for Count 1; 360 months imprisonment for Count 2; 120 months imprisonment for Counts 2, 5, and 6; and 60 months imprisonment for Counts 7 and 8, with all sentences to run concurrently; five years of supervised release; a $100, 000 fine; and $700 in special assessments. On appeal, the Eighth Circuit Court of Appeals affirmed Mann's convictions as to Counts 1, 2, 3, 7, and 8, and remanded Counts 5 and 6 with instructions to set one of the two convictions aside. The Eighth Circuit also affirmed the sentences as to Counts 7 and 8 but remanded Counts 1, 2, 3, and 5 or 6 for resentencing. United States v. Mann, 701 F.3d 274, 311 (8th Cir. 2012). On May 1, 2013, Count 5 was vacated, and Mann was resentenced as follows: life imprisonment for Count 1; 360 months imprisonment for Count 2; 120 months imprisonment for Counts 3 and 6, with all sentences to run concurrently; five years of supervised release; a $100, 000 fine; and $600 in special assessments.

         On October 20, 2014, Mann filed this motion to vacate, set aside or correct sentence under 28 U.S.C. § 2255. See Doc. No. 395. On December 3, 2014, Mann filed a motion for hearing on motion for post-conviction relief. See Doc. No. 406. Mann has presented twenty grounds for relief, including multiple claims of the ineffective assistance of counsel, Brady violations, and other miscellaneous grounds. The parties have thoroughly briefed the issues, with Mann submitting numerous memoranda, briefs, and a reply, and the government submitting a response to Mann's motion.


         A prisoner in custody under sentence of a federal court “may move the court which imposed the sentence to vacate, set aside or correct the sentence” on any of the following bases: (1) the sentence was imposed in violation of the Constitution or laws of the United States, (2) the court was without jurisdiction to impose the sentence, (3) the sentence was in excess of the maximum authorized by law, or (4) is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). “Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either ‘cause' and actual ‘prejudice, ' or that he is ‘actually innocent.'” Jennings v. United States, 696 F.3d 759, 763 (8th Cir. 2012) (quoting Bousely v. United States, 523 U.S. 614, 622 (1998)). Two of the most common issues raised in section 2255 motions involve claims for the ineffective assistance of counsel and violations under Brady v. Maryland, 373 U.S. 83 (1963). Ineffective assistance of counsel claims may be brought for the first time in a section 2255 motion. Massaro v. United States, 538 U.S. 500, 504 (2003). Moreover, proof of a Brady violation will usually run parallel to proving cause and prejudice. See Banks v. Dretke, 540 U.S. 668, 671 (2004).

         A. Ineffective Assistance of Counsel

         An ineffective assistance of counsel claim is considered according to the framework provided by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). According to Strickland, an ineffective assistance of counsel claim has two prongs: deficient performance and prejudice. As for deficient performance, the defendant must show “that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Id. at 687. This first prong considers whether a lawyer's representation “fell below an objective standard of reasonableness.” Id. at 688. “The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” Id. There is a “strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. at 689. “Judicial scrutiny of counsel's performance must be highly deferential.” Id.

         Consideration of deficient performance does not extend to strategic decisions made by counsel. “Even the best criminal defense attorneys would not defend a particular client in the same way.” Id. at 689. When reviewing a strategic decision made by counsel, “the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690. Before making a strategic decision, “counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Id. at 691. “[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” Id. at 690.

         As for prejudice, the defendant must show “that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687. Even if a defendant shows that particular errors of counsel were unreasonable, he must show that the errors had an adverse effect on his defense. Id. at 693. “It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding” because “[v]irtually every act or omission of counsel would meet that test.” Id. Instead, to establish prejudice, “[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. “The likelihood of a different result must be substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 112 (2011). When considering prejudice, “a court should presume, absent challenge to the judgment on grounds of evidentiary insufficiency, that the judge or jury acted according to law.” Strickland, 466 U.S. at 694. “Strickland prejudice is a rigorous standard.” Rodela-Aguilar v. United States, 596 F.3d 457, 463 (8th Cir. 2010).

         A court may address the Strickland prongs in either order, and a court does not need “to address both components of the inquiry if the defendant makes an insufficient showing on one.” Strickland, 466 U.S. at 697. “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” Id.

         B. Brady Violations

         When the government suppresses material evidence favorable to the accused, due process is violated, notwithstanding the government's good or bad faith. Brady v. Maryland, 373 U.S. 83, 87 (1963). To prove a Brady violation, the defendant must show that: (1) the evidence was favorable to the defendant, either because it was exculpatory or impeaching; (2) the government suppressed the evidence willfully or inadvertently; and (3) the defendant was prejudiced by the suppression. Strickler v. Greene, 527 U.S. 263, 281-82 (1999).

         Evidence is material “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682 (1999). The government has a duty to disclose such evidence, even when it has not been requested by the accused, United States v. Agurs, 427 U.S. 97, 107 (1976), and “the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in this case, including the police.” Kyles v. Whitley, 514 U.S. 419, 437 (1995). But, there is no duty to disclose evidence that is neutral, speculative, inculpatory, or available to the defense from other sources. United States v. Flores-Mireles, 112 F.3d 337, 340 (8th Cir. 1997). As for prejudice, “[t]he question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Kyles, 514 U.S. at 434.


         At the outset, it must be emphasized that the purpose of a section 2255 motion is not to relitigate what happened back in 2009 and 2010 or to determine Dr. Mann's guilt or innocence. The parties and the jury have already performed these functions. “The guilt or innocence of the defendant is not in issue in a § 2255 proceeding, but rather the validity and the fairness of the proceedings against him.” 3 Charles Alan Wright et al., Federal Practice and Procedure § 625 (4th ed.); see also Strickland, 466 U.S. at 689 (“The purpose is simply to ensure that criminal defendants receive a fair trial.”). Thus, the sole purpose of Mann's section 2255 motion is to ensure that his proceedings were fair, and principally in this case, that his right to the effective assistance of counsel under the Sixth Amendment was not abridged, and that the government did not violate Mann's Fifth Amendment rights. With this in mind, Mann's twenty grounds for relief will be addressed.

         Ground 1: Due Process Rights Based on Conspiracy

         Mann's first three grounds involve Mann's allegations that local officials conspired against him by planting a canister of grenades near his home, fabricating a story about finding these grenades, and using this information to obtain a search warrant for Mann's residence. The evidence presented to the jury was that, on March 3, 2009, Mark Rinke, a local city worker, stepped into the woods to urinate, when he tripped over a box wrapped in black plastic that was buried in the ground. Rinke mentioned the box to a coworker, Ryan Kimbell, and the two men returned to the box later that afternoon. The two men removed the box from the ground and discovered that the box was a military-style canister. It was full of ninety-eight grenades, which were capable of being launched by an M203 grenade launcher like one owned by Mann. Rinke and Kimbell alerted local authorities, and a search warrant was obtained the following day for Mann's residence. During the execution of the warrant, officials found an assortment of grenades, grenade launchers, firearms, ammunition, and a spare tire in a shower. As a result of this search, Mann was arrested for possessing the ninety-eight unregistered grenades and other unregistered firearms. This initial search and arrest led to additional searches and an investigation into Mann's role in the bombing of Dr. Pierce. According to Mann, this story about accidentally stumbling upon the grenade-filled canister is a complete sham. Mann has now retained experts who opine that the canister could not have fit in the hole in question, and Mann believes the pictures introduced at trial were of an old hole that could not have held the canister. Mann has also submitted an affidavit from Will Elkins, in which Elkins states that in March 2009 he saw two local city workers carry a canister like the one found by Rinke to the area where the canister was eventually found. See Elkins Suppl. Decl., Doc. No. 491, Ex. 4. Mann believes other facts make the government's story suspect: Rinke has stated that he was told not to talk about finding the canister. Additionally, Rinke told reporters the canister was half buried, yet his original story was that he tripped on a corner of a completely buried box. Rinke also stated that he was in the area to check out potential leaks in water lines at a pool, yet the property owner testified that she was home that day and never saw a city worker inspect her pool. Trial Tr. Vol. 15, 3080-82.

         Ground 1 is denied. In ground 1, Mann argues that his Fifth Amendment due process rights were violated by the fabrication and planting of ninety-eight grenades near his home for the purpose of obtaining a search warrant. Mann also seems to bring a Fourth Amendment search and seizure challenge. Ground 1 is denied because it is procedurally defaulted.

         A claim brought for the first time in a section 2255 motion is procedurally defaulted if the issue was not presented on direct appeal, unless the petitioner can demonstrate cause and prejudice, or actual innocence. Jennings, 696 F.3d at 762. Mann's Fourth and Fifth Amendment claims were not raised on direct appeal and Mann has not shown that he meets the cause and prejudice standards, or that he can satisfy the actual innocence standard. Instead, Mann offers affidavits from scientists, purporting to show that the canister found by Mark Rinke could not have fit in the hole in question.

         According to Mann, the hole was not deep enough, wide enough, or freshly dug enough to support the government's story that the hole was accidentally stumbled upon. Mann also seems to argue that an evidentiary hearing regarding the search warrant should have been held according to Franks v. Delaware, 438 U.S. 154 (1978), because the warrant was supported by deliberately or recklessly included false statements. Ultimately, Mann argues that this is one big conspiracy by the government to get him and that the real perpetrator is still out there somewhere. The purpose of a section 2255 motion, however, is to correct unconstitutional procedures inflicted upon a defendant, not to consider substantive arguments attempting to re-litigate the case. Accordingly, ground 1 is denied.

         Ground 20: Failure to Disclose Evidence of Conspiracy

         Ground 20 is denied. In ground 20, which was timely filed and is addressed immediately after ground 1 because it involves similar facts, Mann argues that the government violated his Fifth Amendment right to due process under Brady v. Maryland, 373 U.S. 83 (1963), by failing to produce exculpatory evidence. In support of this, Mann argues two points. First, Mann argues that the government did not turn over exculpatory evidence to his trial counsel, or in the alternative, that Kimbell and Rinke possessed exculpatory information that should have been turned over to Mann's trial counsel. Brady applies not only to evidence actually known by the prosecution, but it also imposes on the individual prosecutor a “duty to learn of any favorable evidence known to the others acting on the government's behalf in the case.” Kyles, 514 U.S. at 437. This rule even extends to exculpatory evidence “known only to police investigators and not to the prosecutor.” Id. at 438. “Brady thus applies to relevant evidence in the hands of the police, whether the prosecutors knew about it or not, whether they suppressed it intentionally or not, and whether the accused asked for it or not.” Harris v. Lafler, 553 F.3d 1028, 1033 (6th Cir. 2009) (citations omitted). Although Mann has not produced a single piece of exculpatory evidence that was not given to his trial counsel, he asserts there may be information known by Kimbell and Rinke that should have been given to him.

         Mann also argues that if his lawyers were not ineffective for failing to investigate whether the canister was placed in the hole by local officials, it is because “the police-prosecution team failed to disclose enough evidence soon enough for the defense team to hire experts for pretrial motions and trial testimony as Dr. Mann has hired experts on post-conviction relief.” Doc No. 408, at 15. To prove a Brady violation, however, Mann is required to identify evidence that is material to either guilt or punishment. Brady, 373 U.S. at 81. Mann fails to identify a single piece of evidence that the government withheld. Moreover, he has not presented evidence that was withheld by Kimbell, Rinke, or any other local official acting on behalf of the government. Mann's entire argument hinges on his belief that Kimbell and Rinke are lying about accidentally finding the canister and that their testimony throughout the case was false. The government cannot be held responsible for failing to turn over evidence that it does not possess.

         Second, Mann cites Geders v. United States, 425 U.S. 80 (1976), and Herring v. New York, 422 U.S. 853 (1975), for the proposition that the government's failure to turn over exculpatory information rendered his lawyers ineffective. In Geders, the Supreme Court held that a trial judge's order preventing a criminal defendant from consulting his lawyer during an overnight recess violated the defendant's right to the assistance of counsel. 425 U.S. at 91. In Herring, the Supreme Court held that a New York statute allowing a judge to deny counsel the opportunity to make a closing argument violated the defendant's right to the assistance of counsel. 422 U.S. 864-65. Mann asks that this line of cases, holding that the judiciary's actions can render a defendant's counsel ineffective, be read to hold that the government's actions can render Mann's counsel ineffective.

         Mann's argument fails because he has not shown how he was prejudiced by the government's actions. See Strickler, 527 U.S. at 282 (requiring prejudice to prove a Brady violation); see also Harrington, 562 U.S. at 112 (holding that the likelihood of a different result when considering ineffective assistance of counsel “must be substantial, not just conceivable”). Geders and Herring stand for the proposition that a defendant can be prejudiced by a judge's decision. The defendant in Geders was prejudiced when he denied the right to speak with his lawyer, and the defendant in Herring was prejudiced when he was denied the right to have his lawyer sum up the evidence at the end of trial. Here, however, Mann has failed to show how the government prejudiced him, and there can be no prejudice when Mann is unable to point to any individual action or evidence that prejudiced him. Ground 2: Failure to Consult with Experts About Conspiracy Ground 2 is denied. In ground 2, Mann argues that his lawyers were ineffective because they failed to consult with experts and to present expert testimony to show that the evidence used to obtain the search warrant was perjured. Again, Mann asserts that Rinke and Kimbell did not accidentally stumble upon the grenade-filled canister and that the hole was too small for the canister. He also states that counsel should have retained experts to provide scientific opinions about the size of the hole and that there is no strategic reason for failing to investigate whether the canister was truly found by accident. In support of this argument, Mann has provided a declaration from William Elkins, who testifies that he saw two city workers with shovels drag “an odd-shaped box with black material looking like trash bags wrapped around it” to a spot about 900 feet from Mann's home. See Elkins Decl., Doc. No. 395, Ex. 4.

         Ground 2 fails because Mann's counsel's decisions regarding the hole were strategic, and therefore not deficient. Sanders v. Trickey, 875 F.2d 205, 207 (8th Cir. 1989) (“A court must avoid second-guessing trial strategy.”). Mann makes two arguments in support of his position that counsels' decisions were ineffective, not strategic. First, Mann contends that a decision is not strategic if counsel does not properly research the issue. Although Mann is correct that lawyers have a duty to conduct a reasonable investigation, Strickland, 466 U.S. at 691; see also Thomas v. United States, 737 F.3d 1202, 1207 (8th Cir. 2013), this argument still fails. Mann's expert witnesses base their opinions on pictures taken at the scene. Even if Mann's experts could prove to a degree of scientific certainty that the canister could not fit in the hole, this evidence does not relieve Mann of proving to the jury that government officials conspired to frame an innocent person. Indeed, after researching and considering these issues, Mann's trial counsel made the strategic decision not to present this argument to the jury. The thought process behind this decision is best explained by one of his lawyers:

We thoroughly considered, among ourselves and with Dr. Mann, the options to argue a conspiracy between municipal workers, the local government, local law enforcement, and federal law enforcement to plant the grenades. We considered whether that strategy could succeed or whether the jury would view that strategy, in light of all the evidence, as so ridiculous that we would lose all credibility in defending against the bombing and regulatory offenses. We made this strategic decision: an overly stated conspiracy theory would cause us to lose credibility with the jury on the bombing and gun counts, which, we believed, were more defensible than the grenade counts. We concluded that a vast law enforcement conspiracy to set Dr. Mann up would make the total defense appear ridiculous to the jury. So, we decided to not emphatically state it as a theory, but, rather, to drop hints of that theory throughout the trial so an acquittal-prone juror might latch on to it.

Affidavit of J. Blake Hendrix. 3-4, Doc. No. 483, Ex. 16. These words clearly indicate that these issues were studied and that a strategic decision was made.

         Further, another member of Mann's trial team, Erin Cassinelli, decided not to present a conspiracy theory to the jury because she was “without any evidence to present them to factually support it.” Cassinelli Aff. 3, Doc. No. 483, Ex. 17. In response to Will Elkins's declaration that he saw two city workers planting the canister, Cassinelli now says, “I have never heard of Will Elkins. Our team interviewed neighbors and were not advised that anyone had been in the area at the relevant time who could have witnessed the planting of the canister.” Cassinelli Aff. 3. Mann's counsel diligently investigated this purported conspiracy. Ultimately, Mann's trial counsel ...

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