United States District Court, D. Montana, Great Falls Division
ORDER DENYING § 2255 MOTION AND DENYING
CERTIFICATE OF APPEALABILITY
MORRIS, UNITED STALES DISTRICT COURT RIDGE.
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.
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.
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.
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.
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.
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.
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).
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.
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).
timely filed his § 2255 motion on October 11, 2016.
See 28 U.S.C. § 2255(f)(1).
Claims and Analysis
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.
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.
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).
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).
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.
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.
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.
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.
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
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.
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 ...