Eight Circuit Court of Appeals

Notice of Appeal Packet - Table of Contents

Document 195.0 Document 196.0 Document 196.1 Document 198.0 Document 199.0 Document 200.0 Document 200.1

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA UNITED STATES OF AMERICA, Plaintiff/Respondent, vs. MANDY MARTINSON, Defendant/Movant. The Court has before it a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. 2255 by Defendant Mandy Martinson. The Court held a hearing on Martinsons motion, and the matter is ready for ruling. For the following reasons, the Court must deny Martinsons section 2255 motion. BACKGROUND A jury found Martinson guilty of conspiring to distribute 500 grams or more of a mixture of methamphetamine and conspiring to distribute marijuana, possession with intent to distribute 5 grams or more of a mixture of methamphetamine, and possession of a firearm in furtherance of a drug trafficking crime. The Court sentenced Martinson to 120 months in prison on the conspiracy and possession with intent convictions, plus a 60-month consecutive term of imprisonment on the firearm conviction, followed by 5 years of supervised release. Martinson appealed, and the United States Court of Appeals for the Eighth Circuit affirmed the conviction and sentence. United States v. Martinson, 419 F.3d 749 (8th Cir. 2005). This timely section 2255 motion followed. SECTION 2255 MOTION Martinson originally argued her trial counsel provided constitutionally ineffective assistance because (1) Martinson was never shown her entire discovery file, (2) counsel failed to call witnesses for her defense even though such witnesses were available, (3) counsel failed to move for a new trial based on insufficient evidence, and (4) counsel allowed two erroneous No. 3:04-cr-03018-JEG ORDER DENYING SECTION 2255 MOTION

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verdict forms to be used. On initial review of the section 2255 motion, the Court dismissed the claim regarding the verdict forms. In the brief in support of Martinsons motion, counsel narrowed the issues to whether counsel provided ineffective assistance in failing to move for a new trial based on insufficient evidence. At the evidentiary hearing on the section 2255 motion, counsel clarified that the only issue in this section 2255 action is whether counsel provided ineffective assistance by not moving for a new trial under Federal Rule of Criminal Procedure 33 regarding the gun conviction.1 To prevail on her claim that trial counsel provided constitutionally ineffective assistance, Martinson must show (1) counsels representation was deficient, and (2) the deficiency prejudiced her. Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish the first prong, Martinson must show that counsels performance fell below an objective standard of reasonableness. Id. at 687-88. To show prejudice, Martinson must demonstrate a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have

Immediately prior to the hearing, the Court provided a Memorandum to counsel which provided, in pertinent part, as follows: During the course of oral argument, please include your comments on the following specific issues: 1. The Defendant in this case was confronted with the physical evidence of a firearm being found in conjunction with her personal property and the anticipated testimony of a co-conspirator that the firearm was possessed by the Defendant in furtherance of the drug offenses. Additionally, the co-conspirator would have been expected to provide testimony regarding this Defendants involvement in the drug offenses. The current motion makes no claim of ineffective assistance of counsel pre-trial in connection with the decision to go to trial. Without waiving any attorney/client privilege, the Court is interested to know if claims regarding pretrial assistance of counsel have been considered, and a decision made not to pursue any such claims. 2. Is the argument regarding grounds for a new trial restricted to the possession of the firearm in furtherance of the other offenses, or broader in scope? In response to these specific inquires by the Court, counsel described the scope of the current action. 2

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been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at 694. A court need not address both components of the test if a defendant makes an insufficient showing on one of the prongs. Id. at 697. As the Court of Appeals held, when counsel failed to move for a new trial under Federal Rule of Criminal Procedure 33, Martinson lost her chance for this Court to review the trial evidence independently and weigh the credibility of the witnesses regarding the gun charge. The question now is whether counsels actions prejudiced Martinson or, in other words, whether there is a reasonable probability that Martinson would have succeeded in her motion for a new trial. A District Court may grant a motion for a new trial under Rule 33 if the interests of justice so require. The Court of Appeals has explained: If, despite the abstract sufficiency of the evidence to sustain the verdict, the evidence preponderates sufficiently heavily against the verdict that a serious miscarriage of justice may have occurred, [the district court] may set aside the verdict, grant a new trial, and submit the issues for determination by another jury. United States v. Lincoln, 630 F.2d 1313, 1319 (8th Cir. 1980). In considering the motion for a new trial alleging the verdict is contrary to the weight of the evidence, the court need not view the evidence in the light most favorable to the government, but may instead weigh the evidence and evaluate for itself the credibility of the witnesses. United States v. Lacey, 219 F.3d 779, 783-84 (8th Cir. 2000). Motions for new trials based on the weight of the evidence are generally disfavored. [United States v. ]Campos, 306 F.3d 577, 579 (8th Cir. 2002). The district courts authority to grant a new trial should be exercised sparingly and with caution. Lincoln, 630 F.2d at 1319. United States v. Ramirez, 362 F.3d 521, 525 (8th Cir. 2004). To be convicted of violating 18 U.S.C. 924(c)(1)(A), the government had to prove beyond a reasonable doubt that Martinson possessed a firearm in furtherance of a drug trafficking crime. Possession may be actual or constructive. United States v. Surratt, 172 F.3d 559, 564 (8th Cir. 1999) (citation omitted). The Court of Appeals held that a person has constructive possession of contraband if she 3

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has ownership, dominion or control over the contraband itself, or dominion over the premises in which the contraband is concealed. United States v. Cruz, 285 F.3d 692, 697 (8th Cir. 2002). Mere physical proximity to the contraband is generally not enough, but knowledge of its presence, combined with control is constructive possession. Id. Knowledge can be inferred from a defendants presence where contraband is discovered, when combined with other evidence. United States v. Serrano-Lopez, 366 F.3d 628, 635-36 (8th Cir. 2004). United States v. Stevens, 439 F.3d 983, 989 (8th Cir. 2006). The term furtherance as used in 924(c) should be given its plain meaning, the act of furthering, advancing, or helping forward. United States v. Hamilton, 332 F.3d 1144, 1149 (8th Cir. 2003) (citations omitted). Martinson lived in the home where police seized from the basement living area a Taurus 9 mm gun, which was with Martinsons purse, in a duffle bag with methamphetamine and marijuana. The gun was operable and ammunition was close at hand. (Tr. 47-48, 59.) Police also seized another gun in a nearby backpack. (Tr. 45.) Martinsons live-in boyfriend, Justin Dana, corroborated the physical evidence with testimony that he and Martinson had just returned from a drug run to Des Moines, Iowa; they had the gun with them on the trip; and they had the gun available to help protect themselves, drugs, and money. (Tr. 137-39.) Dana testified that the gun was his, but Martinson had access to it, either one of them would hold it for protection, and Martinson would handle it [e]very time I left it somewhere I shouldnt. (Tr. 150.) He minimized Martinsons involvement in the drug deals, saying, They were my drug deals, basically (Tr. 181); but he also testified she helped count money, transport drugs, and she helped him stay more organized in his drug dealing than he had been before they began dating. (Tr. 149, 200.) A reasonable jury could have accepted Danas testimony that Martinson knowingly and voluntarily participated in the conspiracy and possessed a firearm in furtherance of the crime. Danas testimony and the physical evidence were sufficient to convict Martinson of violating section 924(c)(1)(A). If Martinsons counsel had filed a timely Rule 33 motion, this

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Court would have been compelled to deny that motion. Consequently, Martinson cannot show she was prejudiced by her counsels inaction in this regard. RULING This is a difficult case in many respects; but, the only matter now before the Court is whether trial counsel provided ineffective assistance by not moving for a new trial under Federal Rule of Criminal Procedure 33 regarding the gun conviction. The Court must conclude he did not, because such a motion would not have been fruitful. For the foregoing reasons, the Court must deny Mandy Martinsons motion to vacate, set aside, or correct her sentence, brought pursuant to 28 U.S.C. 2255. IT IS SO ORDERED. Dated this 8th day of January, 2007.

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA CENTRAL DIVISION

UNITED STATES OF AMERICA, Plaintiff/Respondent, v MANDY MARTINSON Defendant/Movant. CR04-3018JEG JUDGMENT

DECISION BY COURT: This action came before the Court. The issues have been decided and a decision has been rendered. IT IS HEREBY ORDERED AND ADJUDGED THAT: Petitioners petition for writ of habeas corpus pursuant to 28:2255 is denied. DATED: _January 9, 2007 PRIDGEN J. WATKINS, CLERK

S/ A. Kjos, Deputy Clerk

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA CENTRAL DIVISION

UNITED STATES OF AMERICA, Plaintiff/Respondent, v MANDY MARTINSON Defendant/Movant. CV05-3056JEG CR04-3018JEG JUDGMENT

DECISION BY COURT: This action came before the Court. The issues have been decided and a decision has been rendered. IT IS HEREBY ORDERED AND ADJUDGED THAT: Petitioners petition for writ of habeas corpus pursuant to 28:2255 is denied. DATED: _January 9, 2007 PRIDGEN J. WATKINS, CLERK

S/ A. Kjos, Deputy Clerk

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA ________________________________________________________________________ UNITED STATES OF AMERICA : NO. CV05-3056JEG CR04-3018JEG Plaintiff/Respondent, vs. MANDY MARTINSON, : : : REQUEST FOR CERTIFICATE OF APPEALABILITY

Defendant/Movant. : ________________________________________________________________________ COMES NOW the Defendant, Mandy Martinson, by and through her attorney, Jeffrey M. Lipman of Lipman Law Firm, P.C., and hereby requests a Certificate of Appealability on all issues.

S/ Jeffrey Lipman ______ Jeffrey M. Lipman LIPMAN LAW FIRM, P.C. 8450 Hickman Road, Ste 16 Clive, Iowa 50325 (515) 276-3411 Fax: (515) 276-3736 Email: limpanlawfirm@aol.com ATTORNEY FOR DEFENDANT/MOVANT

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Original Filed Copy to: Shawn Stephen Wehde ATTORNEY FOR PLAINTIFF/RESPONDENT
Proof of Service The undersigned certifies that the foregoing instrument was served upon each of the persons identified as receiving a copy by delivery in the following manner on the 12th day of January, 2007. __X_ US Mail ____ Fax ____ Hand Delivery ____ Overnight Courier ____ Federal Express ____ Other __X_ ECF System Participant (Electronic Service) Signature: s/ Kim Fenimore

Mandy Martinson #02876-029 Federal Correctional Institute P.O. Box 5000 Pekin, IL 61555

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA UNITED STATES OF AMERICA, Plaintiff/Respondent, vs. MANDY MARTINSON, Defendant/Movant. The Court has before it Movant Mandy Martinsons application for certificate of appealability filed after the Court denied her motion to vacate, set aside, or correct sentence under 28 U.S.C. 2255. District Courts have the authority to issue certificates of appealability under 28 U.S.C. 2253(c) and Fed. R. App. P. 22(b). A certificate of appealability may issue under [this section] only if the applicant has made a substantial showing of the denial of a constitutional right. 28 U.S.C. 2253(c)(2). Martinson has not made a substantial showing of the denial of a constitutional right, see 28 U.S.C. 2253(c)(2), and the application for certificate of appealability is denied. Martinson may request issuance of a certificate of appealability by a judge on the Eighth Circuit Court of Appeals. See Fed. R. App. P. 22(b). IT IS SO ORDERED. Dated this 18th day of January, 2007. No. 3:04-cr-03018-JEG ORDER DENYING CERTIFICATE OF APPEALABILITY

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UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT ACCESS DISTRICT COURT DOCKET SHEET

Appeal No. Date:

07-1196

USA v. Mandy Martinson

January 29, 2007

A link to the District Court's docket sheet is provided here for your convenience. You must have a PACER account to access the docket sheet. Click the link to the right to view docket sheet: VIEW DOCKET

Appellate Case: 07-1196

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Date Filed: 01/29/2007 Entry ID: 3272511