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United States v. Shanklin

United States District Court, W.D. Kentucky, Louisville

October 10, 2017



          Thomas B. Russell, Senior Judge

         This matter is before the Court on Defendant Damon L. Shanklin's motion for a new trial, [DN 69.] The United States responded, [DN 70], and Shanklin replied, [DN 71.] This matter is now ripe for adjudication. For the following reasons, Shanklin's motion, [DN 69], is DENIED.


         On September 7, 2013, after Louisville Metro Police Department (LMPD) detectives obtained a tip from a reliable confidential informant that Damon L. Shanklin was cultivating marijuana in his home, detectives obtained a search warrant for Shanklin's residence. [DN 29-2 at 2 (Detective Kevin McKinney's Affidavit for Search Warrant); DN 29-2 at 5 (Search Warrant).] When executing that warrant, police discovered over fifty marijuana plants in a back room of the house; various chemicals, tools, and equipment typically used in marijuana cultivation; and pieces of mail and paperwork bearing Shanklin's name or otherwise associated with him. [DN 46 at 3 (United States' Motion in Limine).] In the only bedroom, police found two sets of digital scales and a magazine about growing marijuana. [Id.] On the nightstand next to the bed, police found a loaded Glock 17 9mm handgun. [Id.] Shanklin was tried and convicted in Kentucky state court on one count of cultivation of five or more marijuana plants, a felony under Kentucky law. The Kentucky jury did not find Shanklin to be eligible for the sentence enhancement for possessing a firearm in furtherance of the marijuana operation, however.

         On July 20, 2016, Shanklin was indicted in federal court for possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). [DN 1 (Indictment).] This Court held a jury trial on April 24 and 25, 2017, after which the jury found Shanklin guilty of knowingly possessing a firearm while being a convicted felon. [DN 62 (Jury Verdict).] Thereafter, Shanklin filed a motion for a new trial, alleging ineffective assistance of trial counsel and collateral estoppel. [DN 69.] For the reasons that follow, Shanklin's motion is denied.


         Federal Rule of Criminal Procedure 33 provides that, “[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires.” Fed. R. Crim. P. 33(a). The decision to grant or deny a motion for new trial rests within the district court's sound discretion.” United States v. Seago, 930 F.2d 482, 488 (6th Cir. 1991). Accordingly, the Sixth Circuit “will affirm a district court's denial of a criminal defendant's motion for a new trial ‘unless there has been error as a matter of law or a clear and manifest abuse of judicial discretion.'” United States v. Allen, 254 Fed.Appx. 475, 477 (6th Cir. 2007) (citations omitted).


         Shanklin argues that his trial counsel was ineffective for five reasons. First, Shanklin asserts that his trial counsel failed to investigate all available evidence and interview all available witnesses. [DN 69 at 6-9.] Second, Shanklin argues that his trial counsel failed to file a motion to suppress challenging the validity of the search warrant, the validity of the warrant affidavit, and the subsequent search and seizure of the firearm from Shanklin's residence. [Id. at 10-15.] Third, Shanklin contends that his counsel failed to file a motion to suppress challenging Shanklin's warrantless arrest. [Id. at 12-15.] Fourth, Shanklin contends that his trial counsel failed to properly advise him of the government's plea offer of time served, and that, if he had, Shanklin would have accepted it. [Id. at 15.] Fifth, Shanklin states that his counsel failed to notify the Court that one of the jurors at his trial “was not paying attention and sleeping.” [Id. at 17-18.] In his reply, Shanklin “request[s] an evidentiary hearing on all issues presented in his motion and memorandum for a new trial.” [DN 71 at 3 (Shanklin's Reply).]

         Last, Shanklin claims that he is entitled to dismissal of the indictment or a new trial under the doctrines of collateral estoppel and double jeopardy since Shanklin was “acquitted” of possession the firearm in Kentucky state court. [Id. at 15- 17.]

         I. Timeliness of Shanklin's Motion

         In its response, the United States first argues that Shanklin's motion was filed outside of the applicable time limit and therefore should not be considered by the Court. True, Rule 33 provides that “[a]ny motion for a new trial grounded on any reason other than newly discovered evidence must be filed within 14 days after the verdict or finding of guilty.” Fed. R. Crim. P. 33(b)(2). The verdict was rendered in Shanklin's case on April 25, 2017, [DN 62], and Shanklin filed the instant motion on July 21, 2017, [DN 69], nearly three months later. However, “Rule 33 must be read in conjunction with Federal Rule of Criminal Procedure 45, United States v. Munoz, 605 F.3d 359, 367 (6th Cir. 2010), which identifies circumstances in which this time period may be extended “on a party's motion made . . . after the time expires if the party failed to act because of excusable neglect.” Fed. R. Crim. P. 45(b)(1)(B).

         Indeed, as Shanklin argues in his response, courts in the Sixth Circuit have found the “excusable neglect” standard to be satisfied when the defendant obtains new counsel following trial, defendant's new counsel files a motion for a new trial, and that motion alleges ineffectiveness on behalf of defendant's prior counsel. For example, in Munoz, the Sixth Circuit stated, “[a]s the Supreme Court has noted, it is axiomatic that ‘an attorney ... is unlikely to raise an ineffective-assistance claim against himself.'” Munoz, 605 F.3d at 369 (quoting Massaro v. United States, 538 U.S. 500, 503 (2003). Moreover, the Munoz court recognized that, “in cases involving late-filed notices of appeal, several courts have either held or suggested that ineffective assistance of counsel may justify a finding of excusable neglect.” Id. After weighing various factors, the Munoz court held “that [defendant's allegedly ineffective counsel's] continuing representation of [defendant] during the window for timely filing a Rule 33 motion was a valid reason for the delay, and that the delay was not fairly within [defendant's] control.” Id. at 371. The same situation occurred in this case. Here, the Court did not grant Shanklin's trial counsel's motion to withdraw or appoint him his current counsel, Patrick J. Renn, until May 19, 2017. [DN 65.] Because this was about 24 days after the jury verdict was returned, Shanklin's allegedly ineffective counsel continued to represent him during the 14-day window for filing a Rule 33 motion for a new trial. Accordingly, the Court is satisfied that this “was a valid reason for the delay, and that the delay was not fairly within [Shanklin's] control.” Munoz, 605 F.3d at 371.

         Moreover, as the government has alleged no bad faith on Shanklin's part nor any prejudice it would suffer as a result of the nearly three month delay between the jury verdict and Shanklin's motion, the Court finds no issue with considering Shanklin's motion.

         II. Ineffective Assistance of Counsel

         The majority of Shanklin's motion for a new trial focuses on the alleged ineffectiveness of his trial counsel. The Sixth Circuit has noted that “it is widely agreed that Rule 33's ‘interest of justice' standard allows the grant of a new trial where substantial legal error has occurred. Munoz, 605 F.3d at 373. “A violation of [Shanklin's] Sixth Amendment right to effective assistance of counsel clearly meets this standard.” Id.

         It is well settled that in order to prevail on a motion for new trial based upon ineffective assistance of counsel, the defendant must show that: (1) counsel's performance was deficient; and (2) it prejudiced the defense in a manner which deprived the defendant of a fair trial. United States v. Garcia, 19 F.3d 1123, 1126 (6th Cir. 1994) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).

         Under the Strickland standard, “[a]n attorney's performance is deficient if his representation ‘fell below an objective standard of reasonableness.'” United States v. Soto, 794 F.3d 635, 646 (6th Cir. 2015), reh'g denied (Sept. 18, 2015), cert. denied sub nom. Santana v. United States, 136 S.Ct. 2007 (2016) (quoting Strickland, 466 U.S. at 688). This “mean[s] that trial counsel ‘made errors so serious that counsel was not functioning as the ‘counsel' guaranteed [him] by the Sixth Amendment.'” United States v. Arny, 831 F.3d 725, 731 (6th Cir. 2016) (quoting Strickland, 466 U.S. at 687-88). However, “[j]udicial scrutiny of counsel's performance must be highly deferential., ” and, “[a]t all times, there is a ‘strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. (quoting Strickland, 466 U.S. at 689).

         To establish prejudice, defendants must demonstrate “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. (quoting Strickland, 466 U.S. at 687, 694). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. (quoting Strickland, 466 U.S. at 694).

         (1) Failure to Investigate Evidence and ...

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