United States District Court, E.D. Arkansas, Western Division
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.
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.
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
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.
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.
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.
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).
Ineffective Assistance of Counsel
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.
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.
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).
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
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).
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.
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.
1: Due Process Rights Based on Conspiracy
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.
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.
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
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.
20: Failure to Disclose Evidence of Conspiracy
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.
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.
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
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.
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.
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