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United States v. Devereaux

United States District Court, D. Montana, Great Falls Division

October 12, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
KEVIN J. DEVEREAUX, Defendant/Movant.

          ORDER DENYING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY

          BRIAN MORRIS, UNITED STALES DISTRICT COURT RIDGE.

         This case comes before the Court on Defendant/Movant Devereaux's motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255. Devereaux is a federal prisoner proceeding pro se.

         On December 16, 2016, counsel for Devereaux was ordered to review his files and respond to one of the claims at issue. Counsel responded on January 12, 2017. Devereaux responded on February 6, 2017.

         I. Preliminary Review

         The motion is subject to preliminary review before the United States is required to respond. The Court must determine whether “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b); see also Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District Courts.

         A petitioner “who is able to state facts showing a real possibility of constitutional error should survive Rule 4 review.” Calderon v. United States Dist. Court, 98 F.3d 1102, 1109 (9th Cir. 1996) (Schroeder, C.J., concurring) (regarding Rules Governing § 2254 Cases). But “it is the duty of the court to screen out frivolous applications and eliminate the burden that would be placed on the respondent by ordering an unnecessary answer.” Committee Note (1976), Rule 4, § 2254 Rules, cited in Committee Note (1976), Rule 4, § 2255 Rules.

         II. Background

         A grand jury indicted Devereaux on December 5, 2013, on three counts of aggravated or attempted aggravated sexual abuse, violations of 18 U.S.C. § 2241(a)(1) (Counts 1, 2, and 3); one count of assault with intent to murder, a violation of 18 U.S.C. § 113(a)(1) (Count 4); one count of assault resulting in serious bodily injury, a violation of 18 U.S.C. § 113(a)(6) (Count 5); and one count of burglary, a violation of Mont. Code Ann. § 45-6-204(1)(a) (Count 6). Jurisdiction was predicated on the Major Crimes Act, 18 U.S.C. § 1153(a) and (b). Assistant Federal Defender R. Hank Branom was appointed to represent Devereaux.

         All the alleged offenses were perpetrated against one victim, A.S. Count 1 occurred on or about May 10, 2009, Count 2 in the fall of 2009, Count 3 on October 1, 2013, and Counts 4, 5, and 6 on October 2, 2013.

         Jury trial commenced on February 26, 2014. Devereaux testified in his own defense. Count 2 was dismissed by the Court on Devereaux's Rule 29 motion. Minutes (Doc. 50). The jury deliberated for about an hour. It found Devereaux guilty on Counts 1, 5, and 6 and acquitted him on Counts 3 and 4. Verdict (Doc. 56).

         Sentencing was held on June 6, 2014. Devereaux's total adjusted offense level was 32. With a criminal history category of VI, his advisory guideline range was 210 to 262 months. Devereaux was sentenced to serve 240 months in prison, to be followed by five years' supervised release. Judgment (Doc. 66) at 2-3; Statement of Reasons (Doc. 67) at 1.

         Devereaux appealed. He challenged the Court's questioning of a child witness in front of the jury at the outset of her testimony. The Ninth Circuit rejected his argument and affirmed his conviction. See Mem. (Doc. 80) at 3, United States v. Devereaux, No. 14-30112 (9th Cir. July 13, 2015) (unpublished mem. disp.). Devereaux petitioned for rehearing, but his petition was denied on December 1, 2015. His conviction became final when his time to file a petition for writ of certiorari expired, on February 9, 2016. See Gonzalez v. Thaler, __ U.S. __, 132 S.Ct. 641, 653-54 (2012).

         Devereaux timely filed his § 2255 motion on October 11, 2016. See 28 U.S.C. § 2255(f)(1).

         III. Claims and Analysis

         Devereaux contends that counsel was ineffective in several respects. His claims are governed by Strickland v. Washington, 466 U.S. 668 (1984). At this stage of the proceedings, Devereaux must allege facts sufficient to support an inference (1) that counsel's performance fell below an objective standard of reasonableness, id. at 687-88, and (2) that there is “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different, ” id. at 694. “[T]here is no reason . . . to address both components of the inquiry if the defendant makes an insufficient showing on one.” Id. at 697.

         A. Severance

         Devereaux claims counsel should have sought to sever the 2009 counts from the 2013 counts. Am. Mem. in Supp. of § 2255 Mot. (Doc. 92) at 7-10. Another Indictment, filed October 3, 2013, alleged similar offenses occurring on December 13, 2012, against another victim, S.V. See United States v. Devereaux, No. CR 13-92-GF-BMM (D. Mont. filed Oct. 3, 2013). Trial was held on January 27 and 28, 2014. Devereaux was acquitted on Counts 2 and 3. The jury did not reach a verdict on Count 1.

         On February 6, 2014, the United States moved to join Count 1 of No. CR 13-92-GF with trial of the six pending counts involving A.S. in this matter. Mot. for Joinder (Doc. 19). Devereaux opposed the joinder, and the United States's motion was denied. Resp. (Doc. 24); Order (Doc. 36). Trial of Count 1 in No. CR 13-92-GF was reset for June 2, 2014. Order (13-92 Doc. 97). On January 20, 2015, based on the parties' agreement, the indictment was dismissed with prejudice. Mot. (13-92 Doc. 104); Order (13-92 Doc. 105).

         Joinder is proper under Fed. R. Crim. P. 8(a) if, among other things, the alleged offenses are “of the same or similar character.” “[T]he similar character of the joined offenses should be ascertainable-either readily apparent or reasonably inferred-from the face of the indictment.” United States v. Jawara, 474 F.3d 565, 578 (9th Cir. 2007).

         All counts of the Indictment alleged a persistent course of abusive conduct by Devereaux against one victim, A.S., in one location, Poplar, Montana. A.S.'s lack of consent constituted an element of Counts 1, 2, and 3 and was also related to Count 6's allegation of an un-permitted entry or remaining. Although the elements of assault and aggravated sexual abuse differ, all the Indictment's allegations in Counts 1 through 5 required the jury to assess whether Devereaux willingly used force to inflict bodily harm on A.S.

         Count 3 alleged attempted aggravated sexual abuse on October 1, 2013. This alleged sexual abuse was temporally proximate to the assaults and burglary alleged to have occurred the following day on October 2, 2013, in Counts 4 through 6. Count 3 also alleged the same offense alleged in Count 2 in the fall of 2009. Count 1 differed from Count 2 and Count 3 only in that they involved attempts and Count 1 alleged a completed offense. Thus, Count 3 served as a bridge between Devereaux's sexual offenses against A.S. and his physical attack on her on October 2, 2013.

         The Indictment did allege, in fact, offenses of sufficiently similar character to support joinder under Rule 8. A motion to dismiss one or more counts for misjoinder was not likely to be granted. Because joinder was proper, a motion to sever under Fed. R. Crim. P. 14 required Devereaux to show “manifest prejudice, ” that is, that he was deprived of a fair trial on one or more counts. See United States v. Doss, 630 F.3d 1181, 1192 (9th Cir. 2011). Nothing that occurred at trial met that high standard.

         Devereaux undoubtedly would have had a better chance of acquittal if all the counts had been tried separately, but that is not the test. The United States's ability to demonstrate a four-year course of conduct by Devereaux against A.S. did not suggest that Devereaux had a character problem. It suggested that Devereaux had a problem with A.S. that he addressed through physical violence. Moreover, the jury acquitted Devereaux on Counts 3 and 4. These acquittals demonstrate that the jury compartmentalized the evidence and applied the Court's instructions regarding the elements of each offense and the burden of proof. Given the propriety of joinder, any prejudice that Devereaux may have suffered did not amount to an unfair trial in violation of due process.

         Even assuming, solely for the sake of argument, that counsel did not consider issues of joinder or severance with respect to the indictment in this case, it is not reasonably probable that Devereaux would have obtained separate trials on Count 1 and/or Count 2 and Counts 3 through 6. The prejudice prong of the Strickland test is not met. This claim is denied.

         B. Pre-Indictment Delay

         Devereaux claims counsel should have moved to dismiss Counts 1 and 2 for excessive pre-indictment delay. Am. Mem. at 10-12. A.S. testified at trial that, in 2009, she recanted the accusation she earlier had made against Devereaux because she was afraid of him. See 1 Trial Tr. at 57:13-60:2. In 2013, when the United States was presented with evidence of a severe beating administered to A.S. by Devereaux, it viewed differently evidence already in its possession.

         The United States does not violate a defendant's rights when it declines to prosecute, as it did in 2009. Delaying prosecution while an investigation occurs also generally does not violate a defendant's right to due process. See United States v. Lovasco, 431 U.S. 783, 791-95 (1977). The nature of the relationship ...


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