Free BRIEF in Opposition to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Case No. 01-cr-00395-RPM UNITED STATES OF AMERICA, Plaintiff/Respondent, vs. 1. JAMES FLOYD CLEAVER, Defendant/Movant.

UNITED STATES' ANSWER TO CLEAVER'S MOTION UNDER 28 U.S.C. § 2255

Pursuant to this Court's May 18, 2006 order, the United States hereby responds to Cleaver's April 28, 2006 post-conviction motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. STATED GROUNDS FOR RELIEF Under the guise of an ineffective assistance of appellate counsel claim, Cleaver asserts fourteen claims for relief in his § 2255 Motion.1 However, the majority of these claim are ones that Cleaver failed to raise either before or during

Cleaver's Motion is comprised of a four-page motion, and an attached document in which he sets forth his claims entitled, "Attachment A, Grounds for Petitioners (sic) 2255." The government responds to Cleaver's claims as set forth in this second document and refers to that attached document herein as Cleaver's Motion.
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his trial and is now attempting to shift the blame for this failure to his appellate counsel. The remaining claims were in fact raised by his appellate counsel. Through his motion, Cleaver asserts (1) five claims of prosecutorial and witness misconduct before the grand jury, (2) six claims of prosecutorial and witness misconduct pertaining to pretrial matters, and (3) three claims of prosecutorial and witness misconduct which allegedly occurred during his trial. All of these claims are without merit. RULE 5 STATEMENT Pursuant to Rule 5(a) of the Rules Governing § 2255 Proceedings, the United States informs the Court that (1) it is aware of no other post-conviction motion filed by defendant, (2) no evidentiary hearing has been conducted on the allegations made in the instant motion, and (3) the motion is timely. STATEMENT OF THE FACTS Cleaver devised a plan to set fire to the Colorado Springs office of the Internal Revenue Service ("IRS"). He convinced several members of his "constitutional law group" to help him carry out the plan, including Ronald Sherman and cousins Jack and Thomas Dowell. United States v. Cleaver, No. 031510, 163 Fed. Appx. 622, 624 (10th Cir. Dec. 6, 2005) (attached).

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On the evening of May 3, 1997, after meeting at a bar in Colorado Springs, Sherman drove Cleaver and the Dowells to the IRS building and dropped them off. Jack Dowell served as the lookout as Cleaver and Thomas Dowell broke into the IRS office. Once inside, they poured gasoline over IRS files and throughout the office. Cleaver then set the office on fire. Id. at 624-25. Cleaver was one of the main suspects from the beginning based upon information federal investigators had received from an acquaintance of Cleaver's, Russell Frederick. See Cleaver Vol. XIX at 13; Cleaver Vol. XX at 306.2 Upon questioning, Cleaver told investigators he was with Thomas Shaffer, who corroborated Cleaver's alibi to investigators and after being threatened by Cleaver, committed perjury by testifying to this false alibi before the grand jury. Cleaver, 163 Fed. Appx. at 625. Approximately four years after the fire, Shaffer and Ronald Sherman decided to cooperate with the authorities and confessed to their involvement in the arson and cover-up and agreed to testify for the government. Id. Based upon their testimony, Cleaver and the Dowells were indicted on numerous offenses related to the IRS arson fire. The defendants were tried separately. Id.

All record references are to the record on appeal as designated by the Clerk of this Court for use in Cleaver's direct appeal to the Tenth Circuit Court of Appeals.
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STATEMENT OF THE CASE On August 4, 2003, Cleaver was convicted after a jury trial of all four felony offenses with which he was charged: (1) destroying government property by fire; (2) forcibly interfering with IRS employees and administration; (3) suborning perjury before the grand jury; and (4) tampering with a witness by threatening Thomas Shaffer. Vol. I, doc. 421. Cleaver was sentenced to 400 months in prison. He appealed his conviction and sentence, and both were affirmed by the Tenth Circuit Court of Appeals in an unpublished decision. United States v. Cleaver, No. 03-1510, 163 Fed. Appx. 622 (10th Cir. Dec. 6, 2005). Cleaver filed a petition for a writ of certiorari on February 17, 2006. Vol. I, doc. 515. His petition was denied on April 24, 2006. Id. at doc. 518. Cleaver filed the instant § 2255 petition four days later. Id. at doc. 517.3 Accordingly, Cleaver's § 2255 Motion is timely. SUMMARY OF THE ARGUMENT Cleaver cannot prevail on his attempt to blame his appellate counsel for errors he made before and during his trial. Some of the alleged errors of which Cleaver complains were raised on appeal by his appellate counsel. As to those she

Inexplicably, Cleaver states on Page 2 of his Motion that his appeal before the Tenth Circuit remains pending, and answers the question of whether he filed a petition for a writ of certiorari with the Supreme Court, "No." Motion, p. 2.
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did not, she could not have established that these alleged errors amounted to plain error, and therefore, Cleaver cannot show a reasonable probability of a favorable result had appellate counsel raised these issues on appeal. As to Cleaver's claims of misconduct before the grand jury, the law is clear that provided the alleged errors affected only the grand jury's finding of probable cause ­ as these did ­ they are rendered moot by the jury's verdict that Cleaver committed the offenses beyond a reasonable doubt. There is no merit to Cleaver's claims of misconduct in pretrial proceedings. Agent Petoskey's testimony at the pretrial suppression hearing and his statement in his affidavit that he had no reason to believe Marshall had given him false testimony was clearly appropriate and in no way violated any of Cleaver's constitutional rights. As to Cleaver's numerous claims regarding his alleged failure to receive audio recordings of certain conversations between himself and Shaffer and Marshall, and the untimely receipt of the transcripts of these recordings, this issue was raised before this Court and the Tenth Circuit Court of Appeals and rejected by both. As to Cleaver's complaints about his failure to receive certain audio recordings of conversations between other witnesses, Cleaver never raised these complaints to this Court, those recordings were never introduced into evidence,

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and despite having transcripts of these recordings, Cleaver never sought to impeach the individual witness's credibility through the taped conversations. Accordingly, even if his appellate counsel had raised these arguments, she could not establish that Cleaver's failure to receive the audio recordings of these conversations amounted to plain error. Cleaver's claims of misconduct at his trial are without merit. Again, these claims were not raised at trial. In any event, there is no evidence that any witness committed perjury, much less that the government knowingly solicited perjured testimony and failed to correct testimony it knew was perjured. As to the prosecutor's reference to a witness in his opening statement that ultimately did not testify at trial, the Supreme Court has held that a district court's instruction that the jury should not consider counsel's opening statements as evidence, as occurred here, was sufficient to protect a petitioner's constitutional rights. ARGUMENT Cleaver's motion to represent himself at trial was granted. Vol. I, docs. 338, 346. Ms. Lynn Pierce, Cleaver's appellate counsel, acted as Cleaver's advisory counsel at trial. Cleaver Vol. XIX at 2. The Supreme Court has made clear that a defendant who exercises his right to appear pro se "cannot thereafter complain that the quality of his own defense amount to a denial of `effective assistance of

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counsel.'" McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984) (quoting Faretta v. California, 422 U.S. 806, 834 n. 46 (1975)); United States v. Baker, 84 F.3d 1263, 1267 (10th Cir. 1996) (same). As noted, the majority of the claims raised in Cleaver's Motion are claims which Cleaver failed to raise before or during his trial, and presumably, were therefore not raised by his appellate counsel. Ordinarily, a defendant's failure to raise an issue on direct appeal "would bar a habeas corpus challenge." United States v. Magleby, 420 F.3d 1136, 1139 (10th Cir. 2005) (citation omitted); United States v. Cervini, 379 F.3d 987, 990 (10th Cir. 2004) ("failure to raise an issue either at trial or on direct appeal imposes a procedural bar to habeas review"). "Review under § 2255 is not an alternative to appellate review for claims that could have been presented on direct appeal but were not. To overcome this procedural bar, [defendant] must show cause for and prejudice from his failure to raise the omitted issue." Magleby, 420 F.3d at 1139 (citation omitted). As to cause, Cleaver asserts ineffective assistance of appellate counsel. Cleaver Did Not Receive Ineffective Assistance of Appellate Counsel I. Standard of Review The familiar standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), governing claims of ineffective assistance of trial counsel similarly apply

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to claims of ineffective assistance of appellate counsel. Malicoat v. Mullin, 426 F.3d 1241, 1248 (10th Cir. 2005). First, Cleaver must "demonstrate that his appellate counsel's performance was deficient. Secondly, [Cleaver] must demonstrate that his counsel's performance prejudiced his defense." Id. (citing Strickland, 466 U.S. at 687). "Deficient performance entails an error so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Malicoat, 426 F.3d 1241 (citing Strickland, 466 U.S. at 687). Counsel's representation must fall below "an objective standard of reasonableness." Strickland, 466 U.S. at 688. As for prejudice, Cleaver must show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. The Supreme Court has defined "[a] reasonable probability" as "a probability sufficient to undermine confidence in the outcome" of the proceeding. Id. When a § 2255 petitioner's claim "is based upon appellate counsel's failure to raise a particular issue, the Supreme Court has recognized that `appellate counsel who filed a merits brief need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal.'" Malicoat, 426 F.3d at 1248-49 (quoting Smith v. Robbins,

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528 U.S. 259, 288 (2000)). Indeed, the "hallmark of effective advocacy" is the "winnowing out of weaker arguments so that counsel may focus the court's attention on those more likely to prevail." Malicoat, 426 F.3d at 1249 (citation omitted). Cleaver is entitled to relief only if he establishes "a reasonable probability of a favorable result had his appellate counsel raised the omitted issue." Id. II. Discussion A. Even if True, Cleaver's Claims of Misconduct Before the Grand Jury are Rendered Moot by the Jury's Guilty Verdict.

In his Motion, Cleaver raises five claims pertaining to alleged misconduct that occurred before the grand jury; one pertaining to the testimony of Agent Petoskey and four relating to the testimony of Agent Sipes. Cleaver failed to raise any of these claims before or during trial. Accordingly, had his appellate counsel raised these claims on appeal, she would have been required to show that these alleged incidents of misconduct before the grand jury amounted to plain error. United States v. Lopez-Flores, 444 F.3d 1218, 1222 (10th Cir. 2006) ("when a claim of error was not raised below, we review only for plain error") (citing United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir.) (en banc), cert. denied, 126 S. Ct. 495 (2005)).

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"Plain error occurs when there is (1) error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings." Lopez-Flores, 444 F.3d at 1221. Appellate counsel could not have met this exacting standard. In considering alleged errors that occurred before the grand jury, the Court first must determine "whether the claimed errors should be characterized as `technical' or `procedural' errors affecting only the grand jury's finding of probable cause, or whether the alleged errors are more properly characterized as threatening the defendant's `right to fundamental fairness in the criminal process.'" United States v. Lopez-Gutierrez, 83 F.3d 1235, 1244 (10th Cir. 1996) (quotation omitted). "When the basis of the alleged misconduct amounts to a technical violation ­ affecting only the grand jury's finding of probable cause ­ the defendant must have successfully challenged the indictment before the petit jury returns the verdict." United States v. Crockett, 435 F.3d 1305, 1316 (10th Cir. 2006) (citing Lopez-Gutierrez, 83 F.3d at 1245); United States v. Wiseman, 172 F.3d 1196, 1205-06 (10th Cir. 1999) (same). A guilty verdict supported by the evidence "not only establishes that there was probable cause to believe that the defendant was guilty as charged [ ] but also that the defendant was guilty beyond a

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reasonable doubt." Crockett, 435 F.3d at 1316 (citing Lopez-Gutierrez, 83 F.3d at 1245, and United States v. Mechanik, 475 U.S. 66, 70 (1986)). Examples of conduct that might be categorized as threatening a defendant's right to fundamental unfairness include an attempt by the government to "unfairly sway the grand jury . . . [, or a] pervasive attempt to charge without cause or to undermine the defense." Lopez-Gutierrez, 83 F.3d at 1245 (quotation omitted). Under these circumstances, the court determines whether the prosecutor engaged in "flagrant or egregious misconduct which significantly infringed on the grand jury's ability to exercise independent judgment." Id. (quotation omitted). In sum, all but the most serious errors before the grand jury are rendered harmless by a conviction at trial. Mechanik, 475 U.S. at 73; United States v. Casas, 425 F.3d 23, 38 (10th Cir. 2005) (same), cert. denied, 126 S. Ct. 1397 (2006); United States v. Akers, 215 F.3d 1089, 1103 (10th Cir. 2000) (rejecting defendant's claim that indictment was based upon perjured testimony, noting that relief from conviction is an "extreme remedy" that the court will only grant in rare circumstances where prosecutorial misconduct is "flagrant or vindictive") (quotation omitted). Two of Cleaver's five claims assert no possible grand jury violation. Even accepting as true Cleaver's allegations with respect to his remaining three claims, these allegations amount to technical violations at most as they only pertain to the

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grand jury's finding of probable cause. Cleaver never raised these allegations of grand jury misconduct to this Court. 4 Accordingly, if this Court agrees that these allegations amount to technical violations, they are rendered moot by the jury's guilty verdict. Mechanik, 475 U.S. at 70. Claim One: Cleaver asserts that the prosecutor committed misconduct by knowingly introducing perjured testimony from Agent Petoskey. Agent Petoskey testified about a conversation between Scott Marshall and Cleaver in which Cleaver said to Marshall that "he would not tell Marshall exactly how he started the fire, because that was his ace in the hole." Motion, p. 1. Cleaver asserts that because the "ace in the hole" comment does not appear on the tape from the conversation, then this comment could not have been made. Motion, pp. 1-3.

In November of 2001, one month after defendants were indicted, the government's motion to disclose grand jury material to defendants Cleaver and Thomas Dowell was granted. Vol. I, docs. 26 and 31. In March of 2003, Cleaver and both Dowells filed a joint motion to dismiss the indictment against them based upon alleged prosecutorial misconduct pertaining to the presentation of evidence to the grand jury relating to the alleged injuries sustained by firefighter Charles Sanders. Vol. I, doc. 296. The government had previously sought to strike language from the indictment pertaining to Sanders's injuries due to difficulty in obtaining Sanders's medical records. Id. at doc. 293. The Court denied Cleaver's motion to dismiss the indictment, and granted the government's motion to strike the language from the indictment. Id. at doc. 309. Nowhere in the motion do any of the defendants allege prosecutorial misconduct in the presentation of the testimony of Agent Petosky or Agent Sipes. Clearly, had defendants believed the agents committed perjury before the grand jury, they could have filed a motion asserting this allegation prior to the jury rendering its verdict in this case.
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The prosecutor in no way committed misconduct in presenting this testimony to the grand jury through Agent Petoskey. Indeed, Marshall testified to the "ace in the hole" comment in his direct examination at trial, Cleaver Vol. XXII at 813, as well as in his cross-examination. Id. at 837. Cleaver never crossexamined Marshall as to the accuracy of the "ace in the hole" comment at trial or inquired about its absence from the audio recordings. See id.5 Marshall testified to numerous conversations with Cleaver that were not recorded. See id. at 793-96. Whether the comment was actually recorded or not, Marshall was certainly entitled to testify as to his recollection of this statement. It was entirely within the jury's province to believe or disbelieve Marshall's testimony in this regard. Because it was clearly appropriate for Agent Petoskey to relate this information to the grand jury, no grand jury violation occurred. Claim Nine: Cleaver claims that the prosecutor committed misconduct by knowingly introducing perjured testimony before the grand jury by Agent Sipes. Agent Sipes testified that, according to Marshall, Cleaver told Marshall that if

Cleaver asserts in his Motion that the tape does not "run out of time, and is in fact complete from beginning to end." Motion, p. 3. This assertion does not address the fact audio tapes are of limited duration, and it is very likely the tape ran out prior to the statement being made. In addition, as noted by the Tenth Circuit, the government only "sought to offer into evidence one recorded conversation between Marshall and Cleaver, but the Government was ultimately unable to do so because of technical difficulties." Cleaver, 163 Fed. Appx. at 626.
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Thomas "Shaffer went [to] the police or went to the federal government with information concerning the arson that he [Cleaver] would put a bullet in Shaffers (sic) head." Motion, p. 28. Cleaver baldly asserts that the Agent knew this statement was false and "the prosecution knew or should have known it was false." Id. at 29. Marshall testified at trial that when he asked Cleaver if Cleaver thought Shaffer "would come back," Cleaver "stated, no, that he [Shaffer] knew that I [Cleaver] religiously carry one of these, in reference to a pistol that he showed me, and he stated that Mr. Shaffer was running back to his mommy and daddy's in Indiana where he ­ where Mr. Shaffer felt that Mr. Cleaver could not get to him. And Mr. Cleaver stated Mr. Shaffer is mistaken." Cleaver Vol. XXII at 809. Marshall also testified upon cross-examination (by Cleaver) that once he "heard the threats that the defendant had made in regards to Tom Shaffer, from his own mouth, I feared the defendant." Id. at 855. This testimony supports Agent Sipes's testimony before the grand jury on this point. Even if the exact words "put a bullet in his head" were not used by Marshall at trial, the implication was there. The slight difference in Agent Sipes's testimony and Marshall's testimony at trial at most would amount to a technical violation which was rendered moot by the jury's guilty verdict. Mechanik , 475

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U.S. at 70; cf. Casas, 425 F.3d at 38 (citing United States v. Hemmer, 729 F.2d 10, 17 (1st Cir. 1984), for the proposition that "[s]imply because there exist[s] inconsistencies between [a witness's] grand jury and trial testimony does not warrant the inference that the government knowingly introduced perjurious testimony"); Tapia v. Tansy, 926 F.2d 1554, 1563 (10th Cir. 1991) ("[c]ontradictions and changes in a witness's testimony alone do not constitute perjury and do not create an inference, let alone prove, that the prosecution knowingly presented perjured testimony") (citations omitted); United States ex rel. Burnett v. Illinois, 619 F.2d 668, 674 (7th Cir. 1980) (same). Claim Ten: In this claim, Cleaver asserts that the prosecutor knowingly introduced perjured testimony to the grand jury when Agent Sipes testified about information received from David Brown, a/k/a King David, a/k/a David Mitchell, about Cleaver's involvement in the IRS arson. Motion, pp. 29-30. King David submitted an affidavit relating the same information testified to by Agent Sipes before the grand jury. Id. at 30. Cleaver asserts that King David's affidavit was false, and that when confronted, King David "recanted his affidavit, changed his name to David Mitchell and fled the state." Id. As noted in Cleaver's Motion, King David never testified at Cleaver's trial. Id.

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The information from King David that Agent Sipes testified to before the grand jury at most affected the grand jury's finding of probable cause. The jury convicted Cleaver of the crimes charged beyond a reasonable doubt without hearing any testimony from King David. Even accepting Cleaver's allegation that the jury should not have heard this information regarding King David's statement, this allegation amounts to a technical violation at best, and therefore is rendered moot by the jury's guilty verdict. Mechanik, 475 U.S. at 70; see Cleaver Vol. XXIII at 1002 (Court inquiring of Cleaver why he is asking witnesses questions about King David when King David was not a witness; "when it comes to people who have not been called and are not a part of the evidence in the case, I don't understand the relevance of it"). Claim Eleven: Again, Cleaver claims prosecutorial misconduct through the introduction of allegedly perjured testimony from Agent Sipes when he testified to the grand jury that Sherman and a resident near the fire stated they heard the words, "Go, man, go!" the night of the IRS arson. Motion, p. 31. Cleaver argues this testimony amounted to perjury because at trial, almost six years later,6 Sherman testified that Cleaver said something like "Let's go, Let's get moving."

Cleaver asserts this occurred three years later, Motion, p. 32, but in fact it was six years later. The fire occurred in May of 1997 and Cleaver was tried in July of 2003.
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Motion, p. 32-33. Sherman's trial testimony on direct examination was that Cleaver "hollered" "Hurry up. Get out of here. Let's go." Cleaver Vol. XXI at 433. When asked if he remembered the precise words, Sherman testified "Not precisely. No, I don't. It was `Hurry up. Let's go.' Something like that." Id. On cross-examination, Cleaver pointed out that Sherman did not use the words, "Go man, go" in his direct examination. Sherman agreed, and said, "It was something like that. It was two or three, four words in there. They were real quick and loud." Id. at 497-98; see Motion at 33. Cleaver then asked Sherman whether it was "possible that the agents suggested that you used the words, "go man, go"? Sherman replied, "Yes." Cleaver Vol. XXI at 498. Whether Cleaver was heard to say, "Go, man, go," or "Let's go," is a matter that perhaps went to the jury's assessment of Sherman's credibility. Even accepting Cleaver's allegation regarding the discrepancy between the exact words used, this amounts to a technical violation at most which was render moot by the jury's guilty verdict. Mechanik, 475 U.S. at 60; cf. Tapia, 926 F.2d at 1563. Claim Thirteen: Cleaver claims prosecutorial misconduct in the introduction of perjured testimony from Agent Sipes before the grand jury when he testified that Sherman's and Shaffer's plea agreements required them to

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"provide full, complete, truthful testimony." Motions, p. 34. Cleaver then admits "it is not well established by these facts that Ronald Sherman gave false testimony, [but] such is not the case with Thomas Shaffer." Id. at 35. The government was not required to present the terms of Sherman's and Shaffer's plea agreements to the grand jury. See United States v. Page, 808 F.2d 723, 727-28 (10th Cir. 1987) (government only required to disclose to the grand jury substantial exculpatory evidence). However, the Tenth Circuit has held that "it is perfectly permissible for a prosecutor to introduce a witness's plea agreement on direct examination, even if it includes a truthfulness provision." United States v. Harlow, 444 F.3d 1255, 1262 (10th Cir. 2006). "This is intended to allow the prosecutor to head off claims that the witness' testimony is suspect due to the plea agreement." Id.; see also United States v. Whitney, 229 F.3d 1296, 1306 (10th Cir. 2000) (citing to United States v. Davis, 838 F.2d 909, 918 (7th Cir. 1988), for the proposition that "[t]he government may properly bring out agreements to cooperate and the circumstances behind those agreements in order to blunt the impact of cross-examination and to avoid the impression that the government was concealing the information"). If it is permissible to present this evidence to the jury at trial, it was certainly permissible for the agent to testify to the grand jury as to the terms of

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Sherman's and Shaffer's plea agreements, including the truthfulness provision. It was for the jury to decide whether to believe Sherman and/or Shaffer. Therefore, no grand jury violation occurred through this testimony. In sum, there is no merit to Cleaver's challenges to the grand jury proceedings. Accordingly, Cleaver cannot establish a reasonable probability that his conviction would have been overturned on appeal had his appellate counsel raised these alleged errors, Strickland, 466 U.S. at 688, and therefore, his claims of ineffective assistance of appellate counsel in this regard must fail. B. There is no Merit to Cleaver's Claims of Misconduct in Pretrial Proceedings.

Cleaver claims his appellate counsel was ineffective for failing to raise six claims of prosecutorial and witness misconduct in pretrial proceedings. Cleaver never raised the first five of these claims before or during his trial. Had Cleaver's appellate counsel raised these claims on appeal, she could not have established that these alleged violations amounted to plain error. The remaining claim (production of the Cleaver/Marshall audio tapes and transcripts) was raised by Cleaver before this Court and rejected, and raised by his appellate counsel, fully briefed, and rejected by the Tenth Circuit Court of Appeals. Claim Two: Cleaver claims the prosecutor committed misconduct by introducing perjured testimony from Agent Petosky when he testified in a pre-trial
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suppression hearing that he had no reason to believe that Marshall had ever given him false or misleading information. Motion, p. 4-5.7 Cleaver refers back to Claim One, which asserted that Marshall lied about the "ace in the hole" comment because this comment did not appear on the audio recording. Cleaver suggests that the lack of the audio recording of this statement must mean that the prosecutor "knew or should have known that the testimony of Agent Petosky was false," Motion, p. 5, when Agent Petosky testified that Marshall had never given him false information. As explained above, there is absolutely no merit to Claim One, and Agent Petosky's testimony at the pre-trial hearing as to his belief about Marshall's credibility in no way amounted to perjured testimony. In addition, at trial, Agent Petosky was called to the stand twice by the prosecution, cross-examined both times by Cleaver, and called as a witness by Cleaver in the presentation of his defense. Cleaver Vol. XXII at 744, 783 (direct examinations); id. at 748, 786 (cross-examinations); Cleaver Vol. XXIII at 975 (direct examination, called by Cleaver). Agent Petoskey was never asked by the prosecution or Cleaver to comment on the credibility of the information received from Marshall. In sum, there is no merit to this claim and it should be rejected.

The testimony Cleaver refers to occurred during a suppression hearing held on January 16, 2003, and can be found at Cleaver Vol. X at 52-53.
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Claim Five: Cleaver raises the same claim here, asserting that the prosecutor knowingly introduced perjured testimony through the submission of Agent Petoskey's affidavit in support of a search warrant which affidavit stated that Agent Petosky believed that information provided by Marshall had never been false or misleading. For the reasons stated in the previous paragraph, this claim must fail. Whether to believe Marshall at trial was completely within the jury's province. Agent Petoskey's statement in his affidavit that, to his knowledge, Marshall had never provided false information was entirely appropriate and in no way violated Cleaver's constitutional rights. Claim Seven: Cleaver asserts prosecutorial misconduct in failing "to produce for trial audio recordings" of Shaffer's alleged attempt to persuade King David to make a false declaration. Motion, pp. 15-16. Cleaver cites the Bates stamp numbers pertaining to the transcript of this recording, and presumably cites verbatim eight pages of this transcript. Motion, pp. 16-23. Cleaver never complained to this Court that he did not receive the actual audio recording of the Shaffer/King David conversation set forth in Cleaver's Motion. At issue in Cleaver's direct appeal was the receipt of the audio taped conversations between Cleaver and Shaffer, Marshall, and Frederick ­ not the conversation between Shaffer and King David. See Cleaver, 163 Fed. Appx. at

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625. Accordingly, had his appellate counsel raised this argument on appeal, she would have been required to show that the failure to receive the actual audio recording, when her client had the written transcript of the conversation all along, amounted to plain error. Lopez-Flores, 444 F.3d at 1221. Appellate counsel could not have met this exacting standard, especially where King David never testified at trial and evidence of this conversation between King David and Shaffer was never introduced at trial. Cleaver had received in discovery a transcript of this conversation and could have attempted to impeach Shaffer's credibility with it, but he did not. Therefore, Cleaver's appellate counsel would not have been able to show that the lack of the audio tape of this conversation "seriously affected the fairness, integrity, or public reputation of judicial proceedings." Lopez-Flores, 444 F.3d at 1222. Claim Eight: Cleaver asserts that the government failed to timely produce for trial transcripts of audio recordings and never turned over the audio recordings themselves of conversations taped by certain witnesses. Cleaver first addresses a taped conversation that occurred between Wendy Shaffer and a person identified as Dubois (who is Wendy Shaffer's mother). Motion, pp. 25-27, ¶ a). Again, Cleaver never complained to this Court about not receiving the actual audio recording of this conversation, it was never introduced at trial, and Cleaver

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received through discovery the transcript of this recording and never attempted to impeach Ms. Shaffer with it at trial. Under these facts, if this issue had been raised by appellate counsel, she could not have established that the failure to receive this audio tape amounted to plain error. Cleaver next complains about not receive audio recordings made by Thomas Shaffer (presumably of conversations with Cleaver ­ his Motion is not clear.) Motion, p. 27, ¶ b). Cleaver's challenge to the production of the Shaffer audio tapes was raised by Cleaver before this Court and rejected, and was raised by Cleaver's appellate counsel and rejected by the Tenth Circuit Court of Appeals. Cleaver, 163 Fed. Appx. at 625-28. The Tenth Circuit held that the government turned over transcripts and recordings of taped conversations between Cleaver and Shaffer (and Marshall and Frederick) "eighteen months before trial," and therefore, the government "did not violate any discovery order." Id. at 628. Accordingly, there is no merit to this claim. See United States v. Warner, 23 F.3d 287, 291 (10th Cir. 1994) (defendant may not raise under § 2255 issues that were previously considered and disposed of on direct appeal). Finally, Cleaver complains that he never received the audio tape of a conversation between Ronald Sherman and an individual named Jimmy Holden, and received the transcript of this conversation in an untimely manner. Motion, p.

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27, ¶ c). Once again, Cleaver never raised this complaint to this Court, neither the transcript nor the audio tape were ever introduced at trial, and Cleaver, through discovery, had the transcript of this recording and never attempted to impeach Ms. Sherman with it at trial. Under these facts, if this issue had been raised by appellate counsel, she could not have established that the failure to receive this audio tape amounted to plain error. Claim Twelve: Cleaver asserts prosecutorial misconduct in the government's alleged failure to identify Wendy Shaffer and Gloria McIntosh as government informants. Motion, pp. 33-34. Cleaver received in discovery a transcript of a conversation between Wendy Shaffer and her mother Mrs. Dubois. There is nothing in this taped conversation that incriminates Cleaver, see Motion, pp. 26-27, and Cleaver never inquired of Ms. Shaffer as to why she was taping this conversation with her mother in the first place. While Ms. Shaffer was a witness for the government, Cleaver received notice of this fact well in advance of trial, and had the opportunity to cross-examine her at trial regarding her assistance to the government. No discovery violation occurred. As to Ms. McIntosh, the record is clear that Ms. McIntosh, due to her fear of Cleaver, came forward only a few days before the joint trial of Thomas Dowell and Cleaver was scheduled to begin with information implicating Cleaver in the

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IRS arson fire. Vol. I, doc. 361; Cleaver Vol. XVII at 4. Cleaver had ample opportunity to cross-examine Ms. McIntosh regarding her recent statement. Cleaver Vol. XXI at 531-37. There is simply no support for Cleaver's allegation that Ms. McIntosh was acting as a government informant, and therefore, this claim must be denied. Claim Fourteen: Cleaver reasserts his claim of prosecutorial misconduct in the alleged delay of the production of audio recordings made of conversations between Cleaver and Scott Marshall. Motion, pp. 35-41. Cleaver's challenge to the production of the Marshall audio tapes was raised by Cleaver before this Court and rejected, and was raised by Cleaver's appellate counsel and rejected by the Tenth Circuit Court of Appeals. Cleaver, 163 Fed. Appx. at 625-28. Accordingly, this claim must fail. See Warner, 23 F.3d at 291. Cleaver also asserts that the audio tapes were edited or altered. For support, he points to the transcripts of the conversations which contain notations where the tape is blank, stuck, or repeats. Motion, p. 38-39. None of these comments support Cleaver's allegations that the tapes were "possibly minimized." Id. at 39. In addition, as noted, none of the Marshall tapes were actually played to the jury. Cleaver, 163 Fed. Appx. at 626. Marshall testified solely from memory regarding his conversations with Cleaver. Cleaver Vol. XXII at 818. The jury was free to

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believe or disbelieve his testimony. Even assuming Cleaver's allegations to be true, any irregularities with regard to the tapes of the Marshall/Cleaver conversations in no way violated Cleaver's constitutional rights. In sum, there is no merit to Cleaver's challenges to the pretrial proceedings. Accordingly, Cleaver cannot establish a reasonable probability that his conviction would have been overturned had his appellate counsel raised these alleged errors, Strickland, 466 U.S. at 688, and therefore, his claims of ineffective assistance of appellate counsel as to these matters must fail. C. There is no Merit to Cleaver's Claims of Misconduct During His Trial.

Cleaver raises three claims pertaining to alleged misconduct which occurred during his trial. One claim challenges a reference made in the prosecutor's opening statement, and the second two claims assert that the prosecutor knowingly introduced perjured testimony through witness testimony at trial. None of these claims were raised at trial, and appellate counsel could not have established that they amounted to plain error had she raised them on appeal. As to the allegations of introduction of perjured testimony at trial, the law is clear that a conviction obtained by the introduction of perjured testimony only violates due process if "(1) the prosecution knowingly solicited the perjured testimony or (2) the prosecution failed to correct testimony it knew was perjured."
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United States v. Vaziri, 164 F.3d 556, 563 (10th Cir. 1999) (quoting Napue v. Illinois, 360 U.S. 264, 269 (1959)). Cleaver cannot establish either requirement. Claim Three: In this claim, Cleaver claims that the prosecution knowingly introduced perjured testimony at trial when Marshall testified about the "ace in the hole" comment made by Cleaver, Motion, pp. 5-6, which comment is fully addressed in Claim One above. As noted, whether to believe Marshall's testimony that Cleaver made this statement was clearly a matter with the jury's province. The government in no way introduced perjured testimony in this respect. Next, Cleaver again attempts to relitigate the issue of the alleged delay in his receipt of the audio tapes of the Marshall/Cleaver conversations. Motion, pp. 6-7. As noted repeatedly, this argument was raised before this Court and rejected, and raised by his appellate counsel and rejected by the Tenth Circuit Court of Appeals. Cleaver, 163 Fed. Appx. at 628. See Warner, 23 F.3d at 291. Claim Four: Cleaver asserts that the government introduced perjured testimony from Thomas Shaffer at trial. Motion, pp. 7-13. Cleaver points to alleged inconsistencies between Shaffer's testimony about his encounter with Cleaver in a field where Cleaver confronted Shaffer and asked if Shaffer was wearing a wire. Id. at 7-9. Cleaver notes that the prosecution played a portion of

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the audio tape from this encounter, the majority of which was inaudible. Id. at 10; see Cleaver Vol. XXI at 587. Shaffer testified to this encounter and how he expected "to get capped" by Cleaver when Shaffer turned and walked away from Cleaver. Cleaver Vol. XXI at 578. It was within the jury's province to believe or disbelieve Shaffer's testimony regarding what happened in the field. Cleaver did not cross-examine Shaffer about this incident. The government in no way introduced perjured testimony and this claim should be denied. Claim Six: Cleaver alleges prosecutorial misconduct when the prosecutor referred to King David in his opening statement when King David did not ultimately testify. Motion, pp. 14-15. Cleaver did not object to this reference at trial; therefore, had his appellate counsel raised this argument on appeal, she would have been required to show that this reference amounted to plain error. Lopez-Flores, 444 F.3d at 1222. The Court instructed the jury that opening statements are not evidence. Cleaver Vol. XIX at 28. In Frazier v. Cupp, 394 U.S. 731 (1969), during opening argument, the prosecutor summarized testimony he expected to receive from a witness who subsequently refused to testify at trial. Id. at 1422. In his habeas petition, Frazier argued that the summary of evidence was equivalent to testimony,

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and that under Bruton he was thus denied his constitutional right of confrontation. Id. The Supreme Court rejected this argument, holding that the trial court's instruction not to consider counsel's statements as evidence was "sufficient to protect petitioner's constitutional rights." Id. at 1423. The Court explained that the challenged statement was "no more than an objective summary of evidence which the prosecutor reasonably expected to produce . . . ." Id. In light of the district court's instruction that opening statements were not evidence, "it does not seem at all remarkable to assume that the jury will ordinarily be able to limit its consideration to the evidence introduced during the trial . . . ." Id. In sum, the Court did not believe "that the minds of the jurors would be so influenced by such incidental statements during this long trial that they would not appraise the evidence objectively and dispassionately." Id.; see also Nieto v. Sullivan, 879 F.2d 743, 748 (10th Cir. 1989) (prosecutor's opening statement which contained witness's physical description of defendant where the State did not intend to call that witness to the stand did not deny defendant "a fair trial and cause[ ] the jury to disregard the instructions to not treat the opening statements as evidence"); United States v. Espinosa, 771 F.2d 1382, 1399-1400 (10th Cir. 1985) (defendants were not entitled to a mistrial based upon pro se defendant's opening statement which contained statements incriminating

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his co-defendants; the jury was able to limit its consideration to only the evidence introduced at trial and to remain uninfluenced by the "incidental statements [made in opening argument] during this long trial") (quoting Frazier, 394 U.S. at 1423). The same analysis applies here. The prosecution anticipated calling King David and merely summarized his expected testimony. Cleaver notes in his Motion that King David fled the state and that Cleaver "was unable to locate Mr. Mitchell [King David] to testify at trial." Motion, p. 30. In light of this Court's instruction to the jury that opening statements were not evidence, and Supreme Court and Tenth Circuit precedent on this issue, had Cleaver's appellate counsel raised this issue on appeal, she could not have established that this reference amounted to plain error. There is no merit to Cleaver's challenges to his trial. Accordingly, Cleaver cannot establish a reasonable probability that his conviction would have been overturned had his appellate counsel raised these alleged errors on appeal, Strickland, 466 U.S. at 688, and therefore, his claims of ineffective assistance of appellate counsel as to these issues must fail.

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CONCLUSION Cleaver's 28 U.S.C. § 2255 Motion should be denied. Respectfully submitted, WILLIAM J. LEONE United States Attorney

By:

s/Martha A. Paluch MARTHA A. PALUCH Assistant United States Attorney 1225 Seventeenth Street, Suite 700 Denver, CO 80202 (303) 454-0100 Phone: (303) 454-0100 Fax: (303) 454-0401 [email protected] Attorney for Government

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CERTIFICATE OF SERVICE I hereby certify that on this 19th day of June, 2006, I electronically filed the foregoing UNITED STATES' ANSWER TO CLEAVER'S MOTION UNDER 28 U.S.C. § 2255 with the Clerk of the Court using the CM/ECF system and I hereby certify that I have placed a copy of the foregoing in the U.S. Mail, postage prepaid, addressed to: Mr. James Floyd Cleaver Appearing Pro Se Reg. No. 30701-013 USP - Leavenworth P.O. Box 1000 Leavenworth, Kansas 66048

s/Diana L. Brown DIANA L. BROWN United States Attorney's Office Legal Assistant 12217th Street, Suite 700 Denver, Colorado 80202 Phone: 303-454-0358 Fax: 303-454-0401 [email protected]

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