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United States v. Carey

United States District Court, S.D. Mississippi, Eastern Division

July 22, 2014



TOM S. LEE, District Judge.

Before the court is the sole remaining claim for habeas relief set forth in defendant Michael Shane Carey's motion for relief pursuant to 28 U.S.C. § 2255. Having considered the claim, the government's response and the record before the court, the court concludes, for the reasons that follow, that the claim is without merit. It follows then that Carey's § 2255 motion will be dismissed with prejudice.

By the court's April 22, 2014 memorandum opinion and order, the court dismissed the majority of the claims for habeas relief set forth in Carey's § 2255 motion, leaving for consideration only Carey's claim of ineffective assistance of counsel pertaining to the proposed witness Emily Shoemake. As the court was unable to conclude on the record then before it that Carey was not entitled to relief as to this claim, the court directed that the parties expand the record to include defense counsel's affidavit in response to the accusations set forth against him in the motion and provided the parties an opportunity to present supplemental briefing in light of counsel's affidavit. While the government timely provided its supplemental response, Carey has not submitted a supplemental traverse and the time for doing so has now expired.[1]

On April 4, 2007, a grand jury returned a four-count indictment against Carey, each count charging him with aggravated sexual abuse of a minor in violation of 18 U.S.C. § 1153 and § 2241(c). Carey exercised his right to trial by jury which found him guilty on all counts on July 8, 2008. On October 7, 2008, the court sentenced Carey to four life terms of imprisonment. On December 17, 2009, the Fifth Circuit Court of Appeals affirmed the sentence and conviction. United States v. Carey , 589 F.3d 187 (5th Cir. 2009). The Supreme Court denied Carey's petition for writ of certiorari on March 22, 2010. Carey v. United States , 559 U.S. 1024, 130 S.Ct. 1930 (2010).

Thereafter, Carey filed his § 2255 motion, by which he broadly asserted in Ground One, that trial counsel was ineffective for failing to contact witnesses.[2] While the motion itself contained no factual support to elucidate this claim, his memorandum in support of the motion added the following:

Furthering trial counsel's ineffectiveness was not calling and interviewing some very crucial defense witnesses. Here the petitioner gave trial Counsel the names of some very key and crucial defense witnesses, but he never contacted any of these witnesses. Trial counsel never bothered to use any of them. In U.S. v. Grey 878 F.2d 702 (3rd Cir. 1989) [sic]. Trial counsel's failure to hire an investigator to track down potential witnesses amounted to ineffective assistance of counsel. In the case of CODE V. MONTGOMERY , 799 F.2D 1481 (11th Cir. 1986)[, ] Trial Counsel fail[ure] to subpenea [sic] any witnesses, failed to conduct a pretrial investigation, interview witnesses and secure the witnesses amounted to ineffective assistance of Counsel [and] warranted a new trial. Counsel has an obligation to interview witnesses who are known to have knowledge of the crime with which the defendant is being charged, at least where there is reason to believe the testimony will be favorable to the defense. Miller v. United States , 479 A. 3d 862 (D.C. App. 1984). There were at least 9 crucial defense witnesses that would have equivocally shed 100% the flaws in the government's case if they were called and allowed to testify at the petitioner's trial. See Affidavits of:

While the brief recited that Carey had given trial counsel the names of 9 witnesses, the only putative evidentiary support offered for this proposition was the "declaration of affidavit of Ms. Emile Shoemake."[3] Per Shoemake's affidavit:

(2) At the time of the Petitioner's Charges I was at the age of 11 years old.
(3) One day I arrived at the school and during the Breakfast meal I had the oppertunity [sic] to speak with the alleged victim DeAndra Jordan Concerning the Allegations she made against the Petitioner.
(4) I directly asked her was she lying on my uncle, the petitioner, Which she informed me yes and I then inquired why? and she said because he would allow me to go out at the place where she wanted to go. from that I stated oh and walked away.

As the government pointed out by its initial response to the motion, Shoemake's declaration failed to indicate whether the alleged admission by the victim occurred pre- or post-trial and whether she was willing to testify at trial about the conversation.

As the court was unable to conclude on the record that then existed that Carey was not entitled to relief as to this claim, it directed Carey to provide an affidavit detailing his conversations with trial counsel regarding calling his niece as a witness.

Carey's affidavit provided as follows:

2) That my niece, Emily Shoemake informed me and other family members, that she had been speaking with the alleged victim on several occassions [sic] while at school. She inquired of her why did she accuse my Uncle of what she did, and she stated that she was mad at him because he punished her, and would not let her go outside and hang with her friends.
3) That I informed and requested that my Trial attorney, Mr. Omodare B. Jupiter of what my niece said and for him to interview her and subpoena her as a witness to prove that the alleged victim is lying....[4]
5) That my Trial Attorney, Mr. Jupiter never contacted either one of these witnesses, nor issued a subpoena for them to come testify on my behalf, and my niece even wrote a letter, which I submitted with my § 2255 petition.

In light of Carey's representation that he informed Jupiter of Shoemake's potential testimony prior to trial and that Jupiter never contacted her, by its April 22, 2014 memorandum opinion and order, the court directed Jupiter to provide an affidavit regarding Carey's allegations regarding Shoemake and requested additional briefing on the claim in light of the affidavit. By his affidavit, Jupiter disputes Carey's allegation that he did not investigate calling Shoemake as a witness. He instead states that in two instances, once 5 months before trial and once on the first day of the trial, an interview with Shoemake was attempted, but that neither he nor his office's investigator was able to determine whether she had any useful information because of her fragile emotional state. According to Jupiter, in both instances, he communicated not only the results of the interview to Carey, but also his impression that even were Shoemaker ever able to communicate any useful information, there remained a substantial risk that, if she was placed on the stand, jurors would believe that the child was being forced to take the stand to provide false Carey's belated attempt to amend his motion to add a claim of ineffective assistance of counsel based on Jupiter's failure to contact Williams is denied. testimony in support of her uncle. Per Jupiter's affidavit, Carey raised no objection to the decision.[5]

"Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice." United States v. Gaudet , 81 F.3d 585, 589 (5th Cir. 1996) (citations and internal quotation marks omitted). Where a defendant failed to raise an error on his direct appeal, he may only collaterally attack his conviction on that ground upon a showing of "cause" for the omission and "actual prejudice" resulting from the asserted error. See United States v. Kallestad , 236 F.3d 225, 227 (5th Cir. 2000). A showing of ineffective assistance of counsel satisfies the cause and prejudice standard. Id.

In order to prevail on a claim for ineffective assistance of counsel, a defendant must satisfy the two-prong test set out in Strickland v. Washington , 466 U.S. 668 (1984). That is, he must demonstrate (1) that counsel's performance was deficient in that it fell below an objective standard of reasonable professional service; and (2) that this deficient performance prejudiced the defense such that there is a reasonable probability that the outcome of the trial has been undermined and the result would have been different. Strickland , 466 U.S. at 687, 688. A petitioner's failure to establish both prongs of the Strickland test warrants rejection of his claim.

"[C]omplaints of uncalled witnesses are not favored, because the presentation of testimonial evidence is a matter of trial strategy and because allegations of what a witness would have testified are largely speculative." Buckelew v. United States , 575 F.2d 515, 521 (5th Cir. 1978). The presentation of witness testimony is essentially strategy and, thus, within the trial counsel's domain. Alexander v. McCotter , 775 F.2d 595, 602 (5th Cir. 1985). To demonstrate the requisite prejudice, the defendant "must show not only that this testimony would have been favorable, but also that the witness would have testified at trial." United States v. Delgado, 22 F.3d 1093 (5th Cir. 1994) (citing Alexander , 775 F.2d at 602). Here, even were the court to credit Carey's conclusory assertion that Jupiter failed to contact Shoemake[6] and to deem this failure to be a deficiency on Jupiter's part, the court agrees with the government that Carey has nevertheless failed to demonstrate the requisite prejudice from the alleged deficiency. While Shoemake's declaration does set out a potentially exculpatory admission from the complainant, it contains no representation that Shoemake would have testified to the alleged admission at trial and thus does not provide a basis for relief.[7] See Id.

Based on the foregoing, it is ordered that defendant's motion for relief pursuant to 28 U.S.C. § 2255 is denied.

It is further ordered that a certificate of appealability should not issue. Defendant has failed to make a substantial showing that "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether [this] court was correct in its procedural ruling." Slack v. McDaniel , 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).

A separate judgment will be entered in accordance with Rule 58 of the Federal Rules of Civil Procedure.


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