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UNITED STATES v. SKINNER

August 4, 1992

UNITED STATES OF AMERICA,
v.
VENUS E. SKINNER, a.k.a. Venus S. Anderson.



The opinion of the court was delivered by: CHARLES R. RICHEY

 Before the Court is the defendant's Motion to Vacate Sentence pursuant to 28 U.S.C. § 2255. The defendant bases her claim for relief on ineffective assistance of counsel at trial. The Court has carefully considered the submissions of the parties, the arguments of counsel, the applicable law, and the entire record herein, and concludes that the defendant's motion must be denied. *fn1"

 I. Background

 The defendant was charged in a two-count indictment with distribution of cocaine base and possession with intent to distribute five grams or more of cocaine base. A jury trial was held before this Court on October 1-2, 1990. The defendant was convicted of both counts and was sentenced on January 3, 1991.

 At the outset of trial, before jury selection, defense trial counsel announced that he had subpoenaed the defendant's son, John Skinner, III, to testify. Trial counsel for the defendant indicated that he thought the son might have a Fifth Amendment privilege and asked the Court to appoint counsel for him. Tr. 1; 3. The Court did so, and the appointed counsel moved to quash the subpoena on Fifth Amendment grounds. Tr. 1; 61. The Court conducted a hearing outside the presence of the jury regarding the assertion of the privilege. Tr. 1; 165-71. The son invoked his privilege in response to questions regarding which room in the house was his bedroom. The Court found the assertion of Fifth Amendment privilege proper and quashed the subpoena. Tr. 1; 171.

 Defense counsel then moved for permission for his investigator to testify that the defendant's son had told the investigator that the upstairs right bedroom was his bedroom, the drugs seized in the upstairs right bedroom belonged to him, and his mother knew nothing about those drugs. Tr. 1; 172. Defense counsel asserted that these statements were admissible as statements against penal interest excepted from the hearsay rule. Tr. 1; 173; see Fed R. Evid. 804(b)(3). The Court reserved ruling on the issue, and recessed for the day. Tr. 1; 181.

 The next day, when the defense put on its case, defense trial counsel elected not to call the investigator. Tr. 2; 34-35. The Court confirmed with defense counsel that the decision not to call the investigator was voluntary and not based on any instruction or ruling from the Court. Tr. 2; 43.

 The defendant testified on her own behalf. She stated that the drugs were found in her son's bedroom and that she knew nothing about them. Tr. 2; 46. She denied selling drugs to Officer Lanauze. Tr. 2; 249-51. The defendant stated that she had the $700 cash on hand in order to pay a home contractor. Tr. 2; 49. She explained that the reason that she ran into the house when the police came was because she thought there was going to be some shooting between the police and some young men. Tr 2; 47.

 The jury convicted the defendant on both counts on October 2, 1990.

 II. Analysis

 Under Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), there is a two-part test for determining whether there is a claim for ineffective assistance of counsel: (1) counsel's performance must be deficient, to the extent that he or she made errors so serious that counsel was not functioning as the "counsel" guaranteed under the 6th Amendment; (2) the deficient performance must have prejudiced the defense, such that it deprived the defendant of a fair trial, whose result is reliable. Id. at 687. The "ultimate focus" of the entire inquiry is the "fundamental fairness" of the trial, and whether there has been a breakdown of the adversarial process that renders the result unreliable. Id. at 696. If the defendant makes an insufficient showing on one part of the test, the court should deny the ineffective assistance claim without reaching the other part of the test. Id. at 697.

 To determine if counsel's performance was constitutionally deficient, the inquiry is whether counsel's assistance was reasonable considering all the circumstances. Conduct should be evaluated from counsel's perspective at the time and on the facts of the particular case. Id. at 689. A court must indulge a "strong presumption" that the conduct falls "within the wide range of reasonable professional assistance." Id. at 689. Strategic decisions "made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." Id. at 690-91. However, strategic choices after incomplete investigation are only reasonable to the extent reasonable professional judgment supports the limits on the investigation. Id.

 To determine whether counsel's actions prejudiced the defense, the inquiry is whether there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A "reasonable probability" is a ...


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