Pointer v. United States

960 F. Supp. 179, 1997 U.S. Dist. LEXIS 3706, 1997 WL 141842
CourtDistrict Court, E.D. Wisconsin
DecidedMarch 26, 1997
DocketNo. 96-C-0644; Criminal No. 92-CR-208
StatusPublished

This text of 960 F. Supp. 179 (Pointer v. United States) is published on Counsel Stack Legal Research, covering District Court, E.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pointer v. United States, 960 F. Supp. 179, 1997 U.S. Dist. LEXIS 3706, 1997 WL 141842 (E.D. Wis. 1997).

Opinion

ORDER

WARREN, Senior District Judge.

Now before the Court is Edward Pointer’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. For the reasons that follow, the Motion is DENIED.

I. FACTUAL AND PROCEDURAL BACKGROUND

On May 31, 1996, Edward Pointer, proceeding pro se, filed a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. The petitioner argues his conviction was obtained through the false testimony of Special Agent Terry Booth, an investigating agent at his trial. In particular, Pointer contends that the agent testified that Pointer had confessed to committing the bank robbery when in fact Pointer never made such a confession. Pointer also alleges that the prosecutor knowingly suborned this false testimony and failed to inform Pointer of his intention to rely on the confession prior to trial. Finally, Pointer claims that ineffective assistance of counsel at trial and on appeal caused his failure to object to the admission of the testimony relating to his alleged confession. On August 19, 1996, pursuant to Rule 4 of the rules governing section 2255 proceedings, the Court gave Pointer’s petition preliminary consideration and requested the United States Attorney to respond.

On October 18, 1996, Assistant United States Attorney Stephen A. Ingraham filed a response on behalf of the government to Pointer’s motion. Pointer filed a motion for appointment of counsel, a motion to amend the complaint and a motion for reconsideration. The Court denied Pointer’s motions and on February 20, 1997, Pointer filed a reply to the government’s response.

By way of brief background, in 1993, a jury convicted Pointer of bank robbery and the use of a firearm during the commission of a crime in violation of 18 U.S.C. §§ 2113(a) and 924(e). On June 10, 1993, this Court sentenced Pointer to inter alia, 292 months imprisonment. Pointer appealed his conviction on the ground that during voir dire, statements made by this Court invited the jury to infer guilt from the defendant’s failure to testify. The Seventh Circuit rejected this argument and affirmed Pointer’s conviction. U.S. v. Edward Pointer, 16 F.3d 1226, 1994 WL 43812 (7th Cir.), cert. denied, 512 U.S. 1242, 114 S.Ct. 2756, 129 L.Ed.2d 872 (1994).

II. STANDARD OF REVIEW

Habeas corpus relief pursuant to 28 U.S.C. § 2255 is available if a prisoner can show that there are “flaws in the conviction or sentence which are jurisdictional in nature, constitutional in magnitude, or result in a complete miscarriage of justice.” Boyer v. United States, 55 F.3d 296, 298 (7th Cir.), cert. denied, — U.S. -, 116 S.Ct. 268, 133 L.Ed.2d 190 (1995). “Moreover, in addition to restraints on the types of issues that may be raised, the failure to raise issues on direct appeal bars a petitioner from raising them in a section 2255 proceeding unless he or she makes a showing of good cause for and prejudice from the failure.” Bischel v. United States, 32 F.3d 259, 263 (7th Cir.1994) (citations and internal quotation marks omitted). An argument that was not raised on direct appeal cannot first be presented on collateral review “ ‘absent a showing of cause’ for the failure to advance the argument sooner ‘and some showing of actual prejudice resulting from the alleged constitutional violation.’” Kelly v. United States, 29 F.3d 1107, 1112 (7th Cir.1994) (quoting Wainwright v. Sykes, 433 U.S. 72, 84, 97 S.Ct. 2497, 250-L-05, 53 L.Ed.2d 594 (1977)).

III. ANALYSIS

Pointer argues that the government failed to disclose Pointer’s confession to his attorney prior to trial and that his attorney at trial failed to contest the admissibility of his confession to the charged offenses. Pointer contends that he never made a confession or any statement to Special Agent Booth. [181]*181Pointer further argues that the government by submitting the confession as evidence through the testimony of Special Agent Booth introduced perjured testimony at trial. Pointer did not raise these arguments on appeal. As the government correctly points out, Pointer has waived these arguments by not raising them on direct appeal. Patel v. United States, 19 F.3d 1231, 1237 (7th Cir.1994). In order to establish that he is entitled to relief, Pointer must demonstrate both cause and prejudice for his failure to raise these issues on appeal. Id. Ineffective assistance of counsel may constitute sufficient cause for failing to raise the issue on direct appeal. See Belford v. United States, 975 F.2d 310, 314 (7th Cir.1992).

In this case, Pointer fails to demonstrate cause for his failure to appeal and cannot demonstrate prejudice. At trial, four of Pointer’s five accomplices testified regarding Pointer’s leading role in the bank robbery. Other witnesses corroborated the testimony of the accomplices for Pointer’s whereabouts during the time periods in question. This Court characterized the evidence as “plenty of accomplice testimony that’s ... east iron and that’s corroborated by all of the circumstantial evidence of which there’s an abundance.” (Tr. at pg. 705-06.) Therefore, at the outset, the Court concludes that Pointer was convicted on more than sufficient evidence without the introduction of his confession.

Moreover, the affidavit of Pointer’s attorney demonstrates that Pointer’s argument regarding the confession is unequivocally without merit. Pointer’s attorney attests:

During the course of our discussions I advised the Defendant about a statement allegedly from him which the government intended to introduce, he admitted to having made certain comments to the interrogating officer which were intended to be sarcastic, i.e., not to be taken seriously by the officer. He denied that any statements were made against his will. He also confessed to the allegation.

(Resheter Aff. ¶ 9.) It is clear to the Court that the government disseminated Pointer’s alleged confession to defense counsel prior to trial, Pointer was apprised prior to trial about the confession and the defense attorney discussed the government’s evidence with Pointer. During trial, evidence of the confession was properly admitted through the testimony of Special Agent Booth. Therefore, Pointer’s claims of prosecutorial misconduct are without merit.

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Related

Wainwright v. Sykes
433 U.S. 72 (Supreme Court, 1977)
Strickland v. Washington
466 U.S. 668 (Supreme Court, 1984)
Lockhart v. Fretwell
506 U.S. 364 (Supreme Court, 1993)
United States v. Charles R. Muehlbauer
892 F.2d 664 (Seventh Circuit, 1990)
Donnis Glen Humphrey v. United States
896 F.2d 1066 (Seventh Circuit, 1990)
Arthur L. Belford v. United States
975 F.2d 310 (Seventh Circuit, 1992)
Manu Patel v. United States
19 F.3d 1231 (Seventh Circuit, 1994)
Scott Precin v. United States
23 F.3d 1215 (Seventh Circuit, 1994)
William C. Kelly, III v. United States
29 F.3d 1107 (Seventh Circuit, 1994)
Michael E. Bischel v. United States
32 F.3d 259 (Seventh Circuit, 1994)
Terry P. Daniels v. United States
54 F.3d 290 (Seventh Circuit, 1995)
Ronald L. Boyer v. United States
55 F.3d 296 (Seventh Circuit, 1995)
Earl D. Bond v. United States
77 F.3d 1009 (Seventh Circuit, 1996)
Edwards v. United States
499 U.S. 942 (Supreme Court, 1991)

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Bluebook (online)
960 F. Supp. 179, 1997 U.S. Dist. LEXIS 3706, 1997 WL 141842, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pointer-v-united-states-wied-1997.