United States District Court, W.D. Arkansas, Fort Smith Division
HOLMES, III, CHIEF U.S. DISTRICT JUDGE.
Court has received a report and recommendations (Doc. 72)
from United States Magistrate Judge Mark E. Ford. Defendant
Donald Wayne Lamoureaux has filed objections (Doc. 74). The
Court is required to give de novo review only to those
portions of a report and recommendations to which a party
files objections. 28 U.S.C. § 636(b)(1). Because
Defendant's objections appear to be missing pages 9 and
10, however, the Court has reviewed the entire report and
recommendations de novo. In addition to the documents filed
in this case, the Court has listened to the digital recording
of the evidentiary hearing held before the magistrate judge
on January 29, 2018, and reviewed the exhibits admitted at
April 26, 2017, Defendant filed a motion to vacate his
sentence (Doc. 59) under 28 U.S.C. § 2255.
Defendant's motion raises three grounds for relief.
Defendant first argues that he received ineffective
assistance of counsel when trial counsel failed to
investigate Defendant's case and advance a public
authority defense, which would have revealed Defendant lacked
criminal intent. Defendant then argues that his conditional
guilty plea was taken in violation of due process, in that
the plea was not knowing and voluntary because the Court did
not actively engage Defendant in developing the factual basis
and establishing the necessary intent for conviction.
Finally, Defendant argues that he received ineffective
assistance of appellate counsel because appellate counsel
failed to raise the public authority defense and his lack of
intent on appeal.
ground one, Defendant claims that he received ineffective
assistance of counsel prior to the entry of his guilty plea.
Ground one does not set out a viable independent basis for
vacating Defendant's sentence. Defendant pled guilty.
[A] guilty plea represents a break in the chain of events
which has preceded it in the criminal process. When a
criminal defendant has solemnly admitted in open court that
he is in fact guilty of the offense with which he is charged,
he may not thereafter raise independent claims relating to
the deprivation of constitutional rights that occurred prior
to the entry of the guilty plea.
Tollet v. Henderson, 411 U.S. 258, 268 (1973).
Therefore, to the limited extent the report and
recommendations addresses ground one as an independent basis
for a motion to vacate, the Court declines the report and
magistrate judge's correct analysis of ineffective
assistance of counsel in ground one is not wasted effort,
however. In ground two, Defendant claims that acceptance of
his guilty plea violated his right to due process because the
plea was not knowing and voluntary. In evaluating whether a
guilty plea entered on the advice of counsel is knowing and
voluntary, the Court must determine whether counsel's
advice was “within the range of competence demanded of
attorneys in criminal cases.” Id. at 266
(quoting McMann v. Richardson, 397 U.S. 759, 771
(1970)). Whether counsel rendered ineffective assistance
prior to entry of the plea “may play a part in
evaluating the advice rendered by counsel.”
Id. at 267. The Court must also determine whether
Defendant's guilty plea was “made with sufficient
awareness of the relevant circumstances and likely
consequences.” United States v. Martinez-Cruz,
186 F.3d 1102, 1104 (8th Cir. 1999) (citation omitted). In
addition to showing that counsel's representation fell
below an objective standard of reasonableness, Defendant must
also show prejudice-that “but for counsel's errors,
he would not have pleaded guilty and would have insisted on
going to trial.” Hill v. Lockhart, 474 U.S.
52, 57, 59 (1985).
any advice from counsel that Defendant should plead guilty
was well within the range of competence demanded of attorneys
in criminal cases. As the magistrate judge determined in
analyzing the ineffective assistance of counsel claim in
ground one, the type of legal defense Defendant cited in
ground one (e.g., public authority, entrapment by estoppel,
etc.) was simply inapplicable to Defendant's case.
“The public authority defense requires a defendant to
show that he was engaged by a government official to
participate in a covert activity.” United States v.
Parker, 267 F.3d 839, 843 (8th Cir. 2001).
“Entrapment by estoppel arises when a government
official tells a defendant that certain conduct is legal, and
the defendant commits what otherwise would be a crime in
reasonable reliance on the official representation.”
Id. at 844. The evidence is undisputed here. No.
government official asked Defendant to investigate or engage
in a sting operation on the mother and minor child he
believed he was communicating with. Rather, those characters
were themselves decoys in a law enforcement sting operation.
argument that his actions were mandated by statute is
similarly unavailing. Although there is no question that
Defendant was a mandated reporter under Arkansas's Child
Maltreatment Act, that Act requires him only to make a report
of suspected maltreatment or abuse. Nowhere does the Act
affirmatively direct mandated reporters to unilaterally
initiate investigations or conduct sting operations. Finally,
assuming Defendant can rely on a statute rather than
directives from a government official when making a public
authority or entrapment by estoppel defense, the statutes
cited by Defendant do not support his defense because he did
not learn of their requirements until after conviction.
Defendant's actions were entirely unilateral.
public authority defense and similar defenses were
inapplicable, leaving only Defendant's innocent intent
argument for consideration by counsel. Defendant does not
dispute that he committed the acts set out in the plea
agreement. Standing unrebutted, that evidence would be
sufficient for a jury to find beyond a reasonable doubt that
Defendant had criminal intent when he committed those acts.
Beyond his own word, Defendant had no witnesses or other
evidence that he lacked criminal intent when he communicated
with the decoy mother about engaging in sexual contact with
her minor child and then drove to Missouri. Therefore, the
only way for counsel to weaken the Government's case for
criminal intent would be for Defendant to testify.
Defendant's decision not to testify due to his
performance anxiety, or stage fright, made even that evidence
unavailable for trial counsel to use.
the affirmative defenses Defendant cites were not applicable
to his case, it was not objectively unreasonable for counsel
to fail to pursue those defenses rather than recommend a
guilty plea. Nor was it unreasonable for counsel to advise
Defendant to plead guilty, given the strength of the
Government's case and the fact that the only evidence
Defendant could proffer that he lacked criminal intent was
his own testimony and three witnesses who would purportedly
have testified about his good character.
[T]he Sixth Amendment does not require that counsel do what
is impossible or unethical. If there is no bona fide defense
to the charge, counsel cannot create one and may disserve the
interests of his client by attempting a useless charade.
See Nickols v. Gagnon, 454 F.2d 467, 472 (CA7 1971,
cert. denied, 408 U.S. 925, 92 S.Ct. 2504, 33 L.Ed.2d 336
(1972). . . . And, of course, even when there is a bona fide
defense, counsel may still advise his client to plead guilty
if that advice falls within the range of reasonable
competence under the circumstances.
United States v. Cronic, 466 U.S. 648, 656 n.19
(1984). Defense counsel's decision not to pursue an
inapplicable defense and to advise a conditional guilty plea
under these circumstances did not fall below the range of
competence demanded of attorneys in criminal cases.
beyond the issue of counsel's reasonable advice,
Defendant has not demonstrated that he lacked awareness of
the relevant circumstances and likely consequences of his
guilty plea. Defendant agrees his plea was voluntary, but
argues it was not knowingly and intelligently entered. In
particular, Defendant argues that the Court failed to engage
in a ...