United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
Honorable Edward J. Lodge U.S. District Judge
before the Court in the above entitled matter is Defendant
Shelley Lynn Dunkel's Motion Under 28 U.S.C. § 2255
to Vacate, Set Aside or Correct Sentence by a Person in
Federal Custody (Dkt. 1 in the civil case, Dkt. 211 in the
criminal case). The Government filed its answer to the motion
on October 14, 2014. Dkt. 10. Upon motion of Dunkel, the
Court stayed the case pending a decision by the United States
Supreme Court in 2016 relating to recalling a jury after the
jury is discharged. The Court allowed supplemental briefing
after the Supreme Court's ruling in Dietz v.
Bouldin, ___ U.S. ___, 136 S.Ct. 1885 (2016). The motion
is now ripe for the Court's consideration and the Court
finds Dunkel's § 2255 motion should be denied.
convicted Dunkel of twelve counts of mail and wire fraud on
October 19, 2012. Dkt. 101. After the verdict was accepted by
the Court, it was discovered that the jury did not have all
the pages of one exhibit when they deliberated.
Within 35 minutes of the verdict being received by the Court
and the jurors excused, counsel for the government discovered
the exhibit issue. The Court immediately directed the jury
commissioner to call all jurors and advise them that an issue
had come up and further deliberations maybe be required.
See Minutes, Dkt. 95. The jurors were instructed not
to discuss the case with anyone, to heed the admonitions of
the Court previously given and to report back to the
courthouse the next time the Court was in Coeur d'Alene,
Idaho the first week of November. Id.
for Dunkel and co-defendant Michael Persky moved for a
mistrial. The Court requested briefing. Defendant
Dunkel's brief was filed on October 29, 2012 and the
Government's response was filed on November 1, 2012.
Dkts. 103 and 105. The Court issued its ruling denying the
motion for a mistrial on November 2, 2012. Dkt. 106. Due to
the unavailability of some of the jurors in early November,
the Court continued the matter to December 3, 2012, the next
time the Court was in Coeur d'Alene. Dkt. 106.
December 3, 2012, the jurors returned to the courthouse and
the Court confirmed no juror had discussed the case since
they were excused on October 13, 2012 and there were no
reasons which prevented any juror from continuing to sit as a
qualified juror in this matter. Transcript, Dkt. 164. The
Court instructed the jury on the situation, read one
additional jury instruction and allowed argument by counsel.
Id. The jury deliberated and after an hour and 25
minutes, returned a new verdict finding Dunkel guilty on the
same 12 counts (Counts 7-12 and 15-20). Id.,
Minutes, Dkt. 115, and Second Verdict, Dkt. 116. Dunkel also
filed a renewed motion for acquittal and motion for a new
trial which were denied by the Court.
February 4, 2013, Dunkel was sentenced to 6 imprisonment on
each count to run concurrently and three years of supervised
release on each count to run concurrently, $100 special
assessment on each count and restitution in the amount of
$54, 528.68. Judgment, Dkt. 140.
filed a direct appeal. Dkt. 141. New counsel was appointed to
represent Dunkel on appeal. Dunkel's convictions were
affirmed by the Ninth Circuit. Dkt. 193. Dunkel sought a writ
of certiorari from the Supreme Court which was denied June
23, 2014. Dkt. 205.
timely filed her § 2255 motion on June 30, 2014. In her
motion, Dunkel claims the Court violated her Sixth Amendment
Right to a fair trial when the jury was recalled and trial
counsel was not effective for not objecting to the recall,
nor did appellate counsel argue this issue on appeal.
FOR EVIDENTIARY HEARING
to 28 U.S.C. § 2255, the Court recognizes that a
response from the government and a hearing are required
“[u]nless the motion and the files and records of the
case conclusively show that the prisoner is entitled to no
relief....” Furthermore, a hearing must be granted
unless the movant's allegations, “when
viewed against the record, either fail to state a claim for
relief or are ‘so palpably incredible or patently
frivolous as to warrant summary dismissal.” United
States v. Schaflander, 743 F.2d 714, 717 (9th Cir.);
Marrow v. United States, 772 F.2d 525, 526 (9th Cir.
1985). However, a district court may summarily dismiss a
Section 2255 motion “[i]f it plainly appears from the
face of the motion and any annexed exhibits and the prior
proceedings in the case that the movant is not entitled to
relief....” Rule 4(b), Rules Governing Section 2255
Proceedings in the United States District Court. Thus in
order to withstand summary dismissal of his motion for relief
under Section 2255, defendant “must make specific
factual allegations which, if true, would entitle him to
relief on his claim.” United States v. Keller,
902 F.2d 1391, 1395 (9th Cir. 1990). In the present case, the
legal issues do not require an evidentiary hearing.
Ineffective Assistance of Counsel Claims For Failing to
Petitioner claiming ineffective assistance of counsel must
allege specific facts which, if proved, would demonstrate
that (1) counsel's actions were “outside the wide
range of professionally competent assistance, ”
and (2) “there is a reasonable probability
that, but for counsel's unprofessional errors, the result
of the proceeding would have been different.”
Strickland v. Washington, 466 U.S. 668, 687-690
(1984). Mere conclusory allegations do not prove that counsel
was ineffective. See Shah v. United States, 878 F.2d
1156, 1161 (9th Cir. 1989). A defendant fails to state a
claim for ineffective assistance if he ...