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Dunkel v. United States

United States District Court, D. Idaho

September 7, 2016

SHELLEY LYNN DUNKEL, Petitioner Defendant,
v.
UNITED STATES OF AMERICA, Respondent Plaintiff.

          MEMORANDUM DECISION AND ORDER

          Honorable Edward J. Lodge U.S. District Judge

         Pending 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.

         FACTUAL BACKGROUND

         A jury 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.[1]

         Counsel 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.

         On 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[2], 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.

         On 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.

         Defendant 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.

         Defendant 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.

         STANDARD FOR EVIDENTIARY HEARING

         Pursuant 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.

         ANALYSIS

         1. Ineffective Assistance of Counsel Claims For Failing to File Motions.

         A 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 ...


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