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United States v. Deiter

United States District Court, D. New Mexico

July 25, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
WALTER LEE DEITER, Defendant.

          ORDER OVERRULING DEFENDANT'S OBJECTIONS AND ADOPTING THE CHIEF MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          MARTHA VÁZQUEZ UNITED STATES DISTRICT JUDGE

         THIS MATTER comes before the Court on the Chief Magistrate Judge's Proposed Findings and Recommended Disposition (“PF&RD”) (Doc. 23)[1], filed April 24, 2017, and on Defendant Walter Lee Deiter's Objections to that PF&RD (“Defendant's Objections”) (Doc. 24), filed on May 8, 2017.

         In her PF&RD, the Chief Magistrate Judge recommended that Defendant Walter Lee Deiter's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 be denied and that his claims be dismissed with prejudice. See Doc. 23. She concluded that Mr. Deiter had not established ineffective assistance of counsel or prejudice with respect to his trial counsel's reading aloud of excerpts of a belt tape transcript, his failure to obtain EMT reports or to call EMT personnel as witnesses, or his failure to argue that Mr. Deiter's prior bank robbery conviction did not qualify as a predicate offense under the ACCA. Id. at 8-15. Similarly, she concluded that Mr. Deiter had not established ineffective assistance or prejudice with regard to the filing of an appellate brief by appellate counsel. Id. at 15-16. Finally, the Chief Magistrate Judge recommended that this Court reject Mr. Deiter's position that a conviction for aiding and abetting a federal bank robbery is not a “violent felony” under the force clause of the Armed Career Criminals Act (“ACCA”) following Johnson v. United States, 135 S.Ct. 2551 (2015) (“Johnson II”). Id. at 16-29. Mr. Deiter now asks this Court to reject these recommendations by the Chief Magistrate Judge and to, instead, grant his § 2255 Motion.

         When a party files timely-written objections to a magistrate judge's recommendation, the district court will conduct a de novo review and “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(C). De novo review requires the district judge to consider relevant evidence of record and not merely to review the magistrate judge's recommendation. In re Griego, 64 F.3d 580, 583-84 (10th Cir. 1995). “[A] party's objections to the magistrate judge's [PF&RD] must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review.” United States v. One Parcel of Real Prop., with Buildings, Appurtenances, Improvements, & Contents, 73 F.3d 1057, 1060 (10th Cir. 1996).

         Here, the Court conducts a de novo review of the record and considers Mr. Deiter's objections to the PF&RD, of which there are three: (1) that Mr. Deiter's trial counsel's decision to read aloud portions of the belt tape transcript was constitutionally unreasonable and prejudicial to Mr. Deiter; (2) that Mr. Deiter's prior conviction for aiding and abetting a federal bank robbery in violation of 18 U.S.C. § 2 does not satisfy the ACCA's force clause; and (3) that federal bank robbery under 18 U.S.C. § 2113(a) does not satisfy the ACCA's force clause. Doc. 24. Each of these arguments were made by Mr. Deiter in his briefing to the Court prior to the issuance of the PF&RD; however, he has developed these arguments more fully in his Objections, responding to the analysis of the Chief Magistrate Judge's in her PF&RD.

         A. Whether Trial Counsel's Reading Aloud of Belt Tape Transcript Excerpts was Unreasonable and Prejudicial.

         At trial, the undersigned ruled that the belt tape transcripts of Officer Patricia Whelan were not admissible, other than for impeachment purposes. See Doc. 224 at 247. However, when Officer Whelan's trial testimony revealed that she could not recall portions of the incident in question, Mr. Deiter's trial counsel, Ryan Villa, sought to refresh her recollection with the previously-excluded belt tape transcript. Id. at 244. Upon clarifying that he did not seek admission of the transcript, but instead intended to use it only for refreshing Officer Whelan's recollection, the Court permitted Mr. Villa to read portions of the transcript to Officer Whelan in the presence of the jury. Id. at 250-54. The portion of the transcript read aloud included a statement by an unidentified witness at the apartment complex that she heard a man yelling at a woman outside and that he “had a gun.” Doc. 225 at 7. Responding to questioning by Mr. Villa, Officer Whelan admitted that the transcript did not include a request that this witness provide her name or address. Id. at 9.

         Acknowledging that it was a close question, the Chief Magistrate Judge ultimately concluded that Mr. Deiter had not demonstrated that Mr. Villa was ineffective when he read this transcript excerpt, given the strong presumption against such a finding. As to whether Mr. Deiter was prejudiced, she offered the following rationale:

Even if the presiding judge disagrees, finding Mr. Villa's decision to read aloud the transcript unreasonable, Deiter cannot show prejudice in the face of the evidence presented against him. To summarize: the jury heard testimony that Officer Whelan, responding to a middle-of-the-night call regarding an altercation in a parking lot, observed [Mr. Deiter] nervously squatting behind a wall on a second-floor apartment breezeway. When she dispatched a fellow officer to determine what Deiter may have dropped on that breezeway, Deiter began to run. The fellow officer's inspection of the breezeway revealed a holster containing a revolver, which officers testified they did not touch without the use of gloves. A forensic scientist testified that DNA testing revealed that the firearm contained two people's DNA, with Deiter's being the major contributor, and that the holster contained only Deiter's DNA. The scientist also testified that the probability that another Caucasian person would have the same DNA provide as [Mr. Deiter] was one in 140 sextillion.
Officer Whelan's observations, combined with this strong, scientific evidence linking Deiter to the firearm, can only be described as overwhelming evidence that Deiter did in fact possess the firearm in question.

Doc. 23 at 14.

         Without passing upon the reasonableness of Mr. Villa's decision to read aloud portions of the belt tape transcript, the Court agrees with the Chief Magistrate Judge that Mr. Deiter was not ultimately prejudiced by this decision. While Mr. Deiter insists that the transcript provided the only direct evidence that placed the firearm in his hand, the Court cannot say that but for Mr. Villa's reading of this transcript the result of his jury trial would have been any different. See Ellis v. Raemisch, 856 F.3d 766 (10th Cir. 2017). While Officer Whelan did not testify to having an unobscured view of Mr. Deiter holding the firearm, she did testify that she saw him squat behind the wall in the same location where the firearm was ultimately found. Indeed, Mr. Deiter's conduct led her to dispatch a fellow officer to determine what Mr. Deiter had left behind the wall. As discussed, both the firearm and the holster recovered from the breezeway contained Mr. Deiter's DNA, and the holster contained only Mr. Deiter's DNA.

         Although the Court, like the Chief Magistrate Judge, questions whether Mr. Villa's decision to read aloud from the belt tape transcript was the most productive strategy, in light of the other evidence presented against Mr. Deiter it is unwilling to say that the decision “so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” See Strickland v. Washington, 466 U.S. 668, 686 (1984). The Court overrules Mr. Deiter's first objection.

         B. Whether aiding and abetting a bank robbery in violation of 18 U.S.C. ยง 2 ...


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