United States District Court, S.D. Mississippi, Eastern Division
MEMORANDUM OPINION AND ORDER
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.
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. 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." 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 ...