Free Response to Motion - District Court of Arizona - Arizona

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DANIEL G. KNAUSS United States Attorney District of Arizona Charles F. Hyder Assistant U.S. Attorney Arizona State Bar No. 01967 [email protected] Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, Plaintiff-Respondent, v. Philip James Chillemi, Defendant-Movant. RESPONSE IN OPPOSITION TO MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255 CR-03-0917-PHX-PGR CV-07-0430-PHX-PGR (JRI)

The United States of America, by and through counsel undersigned, hereby opposes the

15 Motion of Defendant Philip James Chillemi, to Vacate, Set Aside, or Correct Sentence Pursuant 16 to 28 U.S.C. § 2255, for the reasons set forth in the attached Memorandum of Points and 17 Authorities. 18 19 20 21 22 23 24 25 26 27 28
Original filed and copy of the foregoing mailed this 20th day of April, 2007, to: Philip James Chillemi U.S.P. Big Sandy P.O. Box 2068 Inez, KY 41224

Respectfully submitted this 20th day of April, 2007. DANIEL G. KNAUSS United States Attorney District of Arizona Charles F. Hyder CHARLES F. HYDER Assistant U.S. Attorney

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MEMORANDUM OF POINTS AND AUTHORITIES I. ISSUES PRESENTED Defendant-Movant Philip James Chillemi is currently confined at the Bureau of Prisons facility in Inez, Kentucky. On or about February 6, 2007, he filed a pro se Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255. Therein he alleges his basis for relief two main grounds: 1) Denial of effective assistance of counsel, the gist of these complaints are: (a) failure of trial counsel to conduct an adequate pre-trial investigation; (b) failure of trial counsel to raise the issue of defendant's competence to stand trial; and, (c) trial counsel's cumulative errors throughout the trial. 2) That his conviction was obtained outside the scope of Title 18, United States Code, because Title 18 was never enacted into positive law and therefore there are questions regarding whether the conviction was constitutional and whether there was jurisdiction over the conviction. Defendant did not raise any of these issues on direct appeal. II. PROCEDURAL HISTORY On July 7, 2003, in Phoenix, Arizona, the defendant robbed a Bank of America. A complaint was filed and an indictment subsequently returned, charging defendant with that bank robbery. (CR 03-1, 2; Exhibit 1.) At the time the defendant robbed the bank, he was on supervised release for a prior conviction. He was arrested on the supervised release violation warrant on September 12, 2003, in the District of Ohio, and returned to the District of Arizona on September 29, 2003. He was ordered detained pending trial. (CR 97-108, 110, 111, (Exhibit 2)). 1/

The abbreviations in (CR 03) and (CR 97) refer to the Clerk's record in case CR 03(continued...)
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STATEMENT OF JURISDICTION A. DISTRICT COURT JURISDICTION The District Court had subject matter jurisdiction in CR 03-0917-PHX-PGR

4 pursuant to 18 U.S.C. § 3231, based on an indictment charging the defendant with bank robbery 5 in violation of Title 18 U.S.C. § 2113(a). (CR 03 2; Exhibit 1.) The District Court subject 6 matter jurisdiction in CR 97-0199-PHX-PGR was also pursuant to 18 U.S.C. § 3231, based on 7 a petition to revoke supervised release filed in that matter. (CR 97 109). 8 9 B. APPELLATE COURT JURISDICTION This Court has jurisdiction in CR 03-0917-PHX-PGR pursuant to 28 U.S.C. §

10 1291, based on the sentencing of the defendant on August 16, 2004, and the entry of the final 11 judgment by the District Court on August 17, 2004. (CR 03 58, 59; Exhibit 1.) 12 On March 14, 2006, the defendant's conviction was affirmed by Memorandum 13 Decision and the Mandate issued on April 5, 2006. On February 26, 2007, the defendant filed 14 the pro se Motion Pursuant to 28 U.S.C. § 2255. On March 13, 2007, the District Court advised 15 the United States to answer the defendant's motion within 60 days of service and order. Said 16 Order was filed on March 19, 2007. 17 18 C. DEFENDANT'S MOTION IS TIMELY The Anti-Terrorism and Effective Death Penalty Act (AEDPA), Pub. L. No. 104-

19 132, 110 stat. 1214, became effective on April 24, 1996. It established both procedural and 20 substantive limits on the filing of motions for collateral relief by prisoners under 28 U.S.C. § 21 2255. Particularly, in Section 105 of the AEDPA, Congress established a one-year period of 22 limitation for such motions. Defendant's convictions and sentence were affirmed by the Court 23 of Appeals on April 5, 2006. The Mandate issued on April 5, 2006. Defendant did not file a 24 25 (...continued) 0917-PHX-PGR and CR 97-01-99-PHX-PGR, respectively, and will be followed by the 26 pertinent document number(s). The abbreviation in (RT) will refer to reporters transcript, and will be followed by a date and page number(s) also. The abbreviation in "Ex" will refer to an 27 exhibit. 28
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1 petition for certiorari with United States Supreme Court. His motion pursuant to 28 U.S.C. § 2 2255 is timely, as it was filed within one year of the date upon which his conviction became 3 final. See Clay v United States, 537 US 522 (2003) (petitioner's conviction is affirmed on 4 appeal and he does not file a petition for certiorari, judgment of conviction becomes final when 5 time expires for filing petition for certiorari.) 6 IV. ANALYSIS 7 8 9 10 11 Defendant alleges that his counsel was ineffective for (1) (2) (3) failing to conduct an adequate pretrial investigation; failing to raise the issue of defendant's competence to stand trial; and, that counsel committed cumulative errors during the course of the trial.

To prevail on a claim of ineffective assistance of counsel, a defendant must show that

12 counsel's performance was deficient and that counsel's deficient performance prejudiced the 13 defense. Strickland v Washington, 466 US 668, 687 (1984). If a defendant fails to meet either 14 part of the test, the claim of effective assistance must be denied. Id at 700. The defendant must 15 demonstrate that counsel's performance was unreasonable under prevailing professional
th 16 standards, Hasan v Galaza, 254 F.3d 1150, 1154 (9 Cir. 2001), and must overcome the strong 17 presumption that counsel's conduct falls within a wide range of reasonable professional

18 assistance which, under the circumstances, might be considered sound trial strategy. United th 19 States v Molina, 9345 F.2d 1440, 1447 (9 Cir. 1991). Defendant must also show that there is 20 a reasonable probability that, but for counsel's unprofessional errors, the result would have been 21 different. Hasan, 254 F.3d at 1154. 22 With regard to defendant's allegations that his counsel failed to conduct an adequate pre23 trial investigation or that he committed cumulative errors in trial, there are no distinct or specific 24 facts that are alleged to support such allegations that would permit the government or the Court 25 to address the claims. This Court may not consider issues which are not argued specifically and distinctly; a 26 27 bare assertion by a defendant does not preserve a claim. See Entertainment Research Group, 28
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th 1 Inc.. v Genesis Creative Group, Inc., 122 F.3d 1211, 1217 (9 Cir. 1997) ("will only consider 2 issues argued specifically and distinctly in opening briefs; it will not manufacture arguments for

3 appellant and their assertion does not preserve a claim"); see also James v Borg, 24 F,3d 20, 26 th 4 (9 Cir. 1994) (conclusory allegations which are not supported by statements of specific facts
th 5 do not warrant habeas relief). Greenwood v FAA 28 F.3d 971, 977 (9 Cir. 1994). The defendant has failed to establish ineffective assistance of counsel on these 6

7 allegations and his claims would not have succeeded on appeal. Turner v Calderon, 281 F.3d th 8 851, 872 (9 Cir. 2002). 9 The third ineffective assistance of counsel claim is equally without merit, and, in fact, is 10 specious when looking to the complete record of the case. Defendant claims that his counsel 11 erred by not raising the issue of his competence to stand trial which he requested his counsel to 12 so raise. The record is replete with instances where the defendant demonstrated not only that he 13 14 knew what was taking place, but that he repeatedly requested self representation, going so far 15 as to misrepresent to the Court that he had graduated from high school and had a two year 16 degree in paralegal studies from an accredited school, even though the presentence report shows 17 that he had not even attained a GED. (RT 8/16/04, 8-9; Exhibit 3); PSR at paragraph 54 18 (Exhibit 4). The jury returned his guilty verdict on December 11, 2003. Sentencing was set for March 19 20 1, 2004. At no time prior to, during or after the trial did the defendant express any 21 dissatisfaction with his attorney's performance. On June 28, 2004, he informed the Court that 22 he had a conflict with his lawyer and asserted that he had asked his attorney to withdraw but that 23 his attorney had refused. (RT 6/28/04, 7-8, Exhibit 5). 24 Further, the defendant's claim indicates that he "ordered" his counsel to represent to the 25 court that he was not competent to stand trial. The record is replete with instances where the 26 defendant's actions and representations to the Court shows that he was competent to understand 27 everything that was occurring. If the defendant's allegation is understood correctly, he 28
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1 complains that his attorney did not assist him in presenting false evidence to the Court about his 2 competency. Court's have declined to characterize counsel's representation as ineffective when 3 counsel refuses to assist the defendant in presenting false evidence. Anderson v Calderon, 232 th 4 F.3d 1053, 1095 (9 Cir. 2000) (counsel provided effective assistance of counsel when he 5 admitted defendant's guilt in closing argument because counsel would have committed "fraud 6 on the court" by attempting to manufacture a theory of innocense), overruled on other grounds
th 7 by Bittaker v Woodford, 331 F.3d 715 (9 Cir. 2003). A review of the record in this case shows that counsel attempted to protect the defendant 8

9 when the Court asked the defendant, while he was under oath, whether he had reviewed the 10 presentence report and the supervised release disposition report with his counsel. The defendant 11 denied that he had (RT 8/16/04; 9-13, 15-18, Exhibit 6..) The Court recessed the proceedings 12 so the defendant and his attorney could review the report. Thereafter defense counsel declined 13 to answer the Court's question as to whether or not, in the past, he had reviewed the reports with 14 the defendant stating that he was in the uncomfortable position of saying something that would 15 conflict with what the defendant had told the Court. (RT 8/16/04;19, Exhibit 7.) The import was 16 clear that counsel was trying to protect the defendant from committing perjury. This is
th 17 somewhat akin to Jackson v United States, 928, F.2d 245, 247-48 (8 Cir. 1991) where counsel 18 provided effective assistance by informing the Court of a belief that the defendant would commit

19 perjury because counsel had basis to believe the defendant would be untruthful to the Court. See th 20 also United States v Litchfield, 959 F.2d 1514, 1518 (10 Cir. 1992); Nix v Whiteside, 475 US 21 157, 166, 171 (1986) (counsel provided effective assistance by preventing defendant from 22 committing perjury). The defendant's allegation is without merit. 23 Lastly, the defendant alleges that Title 18, United States Code, was never enacted into 24 positive law therefore questions arise with regard to the constitutionality of his conviction and 25 the Court's jurisdiction. Once again, the defendant does not state any authority for this bare 26 assertion. However, the legislative history of Title 18 shows clearly it was enacted into positive 27 law. Title 18 was codified and enacted into positive law in Section 1, of the Act of June 25, 28
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1 1948, c. 645, 62 Stat. 683, which provided in part that: Title 18 of the United States Code, 2 entitled `Crimes and Criminal Procedures' is hereby revised, codified and enacted into positive 3 law, and maybe cited as "Title 18, U.S.C. § __________, as follows. . ." The legislative history of the act is set forth in Exhibit 8. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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