United States District Court, D. New Mexico
ORDER OVERRULING DEFENDANT'S OBJECTIONS AND
ADOPTING THE CHIEF MAGISTRATE JUDGE'S PROPOSED FINDINGS
AND RECOMMENDED DISPOSITION
VÁZQUEZ UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on the Chief Magistrate
Judge's Proposed Findings and Recommended Disposition
(“PF&RD”) (Doc. 23), 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.
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
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).
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.
Whether Trial Counsel's Reading Aloud of Belt Tape
Transcript Excerpts was Unreasonable and
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.
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
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.
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.
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.
Whether aiding and abetting a bank robbery in violation of 18
U.S.C. § 2 ...