Erickson v. United States of America

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION
ELI ERICKSON, 3:22-CV-03004-RAL
Plaintiff,
vs.
UNITED STATES OF AMERICA,
OPINION AND ORDER GRANTING
GOVERNMENT'S MOTION TO DISMISS
AND DENYING PETITIONER'S § 2255
MOTION
Defendant.
In November of 2019, a jury convicted Plaintiff Eli Erickson of conspiracy to distribute a
controlled substance, possession ofa firearm in furtherance ofa drug trafficking crime, and several
■I
other counts. CR Doc. 108.' This Court sentenced Erickson to 188 months, and his convictions
were affirmed by the United States Court of Appeals for the Eighth Circuit. CR Doc. 180 at 2.
Erickson has now filed a motion to vacate, set aside, or correct his sentence imder 28 U.S.C. §
2255, appearing to allege that two of his former defense attorneys filed continuances without his
consent, that those same two attorneys failed to take other actions amounting to ineffective
assistance of counsel, and that agents of the government engaged in proseeutorial misconduct that
denied him his right to a fair trial. Doc. 1 at 3-4. Erickson also has filed a motion for court-
appointed counsel. Doe. 2. After this Court screened the § 2255 motion and ordered the United
States to respond, Doc. 4, the United States filed a motion to dismiss. Doc. 16. For the reasons
' Docket entries from Erickson's criminal case (3:18-CR-30148-RAL-1) will be cited as "CR
Doc." Docket entries from the present case will be cited as "Doc."
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stated below,this Court grants the United States' motion to dismiss, denies Erickson's request for
court-appointed counsel, and denies Erickson's § 2255 motion.
I. Summary of Facts from Underlying Case
This Court has already summarized the facts of Erickson's underlying criminal offenses,
trial, and conviction at-length on several occasions. See, e.g.. CR Doc. 133; CR Doc. 150. The
summary below borrows heavily from this Court's Opinion and Order Denying Motion for
Acquittal or New Trial, CR. Doc 133, which the Eighth Circuit affirmed, CR Doc. 180.
On November 14, 2018, Erickson was indicted as the lone defendant in a seven-count
indictment. CR Doc. 1. Count 1 of the indictment alleged conspiracy to distribute 500 grams or
more of a mixture or substance containing a detectable amount of methamphetamine. Count 2 of
the indictment alleged that Erickson had possessed six different firearms in relation to a drug
traffieking crime. Count 3 claimed that Erickson had illegally possessed a short-barreled shotgun.
Count 4 charged that Erickson had possessed a shotgun with an obliterated serial number. Count
5 alleged that Erickson had possessed six different firearms at a time when he was an unlawful
user of and addicted to a controlled substance. Counts 6 and 7 charged possession on particular
dates of a rifle and a pistol respectively at a time when Erickson was an unlawful user of and
addicted to a controlled substance.
Criminal Justice Act(CJA)panel attorney Terra Fisher(a/k/a Terra Larson)was Erickson's
original court-appointed attorney. CR Doc. 10. Consistent with the Speedy Trial Act, this Court
entered an early Scheduling and Case Management Order setting ajury trial for January 22, 2019.
CR Doc. 16. In late December of 2018, Erickson sought to have different counsel appointed for
him, and Magistrate Judge Mark A. Moreno met with Erickson and attorney Fisher in chambers
on January 4, 2019. Magistrate Judge Moreno thereafter denied Erickson's request for substitute
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counsel. CRDoc.26. Fisher, on behalf of Erickson, made a motion to continue the jury trial. CR
Doe. 30. Erickson signed the consent to a eontinuanee bearing his signature, indicating that he
had been advised of his speedy trial right and consented to postponement of the trial.^ CR Doc.
29. This Court granted the motion to continue, resetting the jury trial for April of 2019. CR Doc.
35. Meanwhile, Erickson's disagreements with Fisher continued, resulting in another motion to
withdraw, which Magistrate Judge Moreno granted on January 11, 2019. CR Does. 31,33.
Erickson's next appointed counsel was CJA panel attorney Jeffrey Banks. CR Doe. 33.
Banks filed a motion for continuance on behalf of Erickson after he had to postpone two meetings
with Erickson due to inclement weather^ and had not been able to review the discovery with
^ Due to inconsistent naming ofthe continuance motions filed in Erickson's criminal case,there is
some confusion over which consent forms Erickson now alleges were forged. There were five
eontinuanee motions filed and granted in Erickson's criminal case. Larson filed Erickson's first
motion for a continuance. CR Doe. 30 (first motion for eontinuanee); CR Doc. 29 (signed
consent to fnst motion for eontinuanee); CR Doe. 35 (order granting first motion for continuance
and extending case deadlines). Banks filed the rest ofthe continuances. See CR Doc. 39(second
motion for continuance); CR Doc. 38 (signed consent to second motion for continuance; CR Doc.
40 (order granting continuance and extending case deadlines); CR Doc. 43 (third motion for
continuance); CR Doc. 44 (signed consent to third motion for continuance); CR Doc. 45 (order
granting continuance and extending case deadlines); CR Doc.46(fourth motion for continuance);
CR Doe. 47 (signed consent to fourth motion for continuance); CR Doe. 51 (order granting
eontinuanee and extending ease deadlines); CR Doc. 62 (fifth motion for continuance); CR Doc.
63 (signed consent to fifth motion for continuance); CR Doe. 64 (order granting fifth motion for
continuance). Banks titled the third motion for eontinuanee as the "Second Motion for
Continuance," CR Doe. 44, the fourth motion for continuance as the "Third Motion for
Continuance," CR Doe. 46, and the fifth motion for continuance as the "Fourth Motion for
Continuance," CR Doe. 62. Erickson challenges the "Second, Third and Fourth Continuances
entered by his previous attorney," but is unclear whether he means the motions titled as such or
the order in which they were filed. Doe. 1 at 4. Based on Eriekson's contention that the "first two
consents are signed in a different handwriting from the last three consents," it is likely that the first
two continuances are not contested and the last three, titled "Second Motion for Continuance,"
"Third Motion for Continuance," and "Fourth Motion for Continuance" are the contested motions.
Id. Regardless,the outcome here does not hinge on which specific consents were allegedly forged.
The continuances will be discussed in their numerical order to avoid confusion.
^ Attorney Banks offices in Huron, South Dakota, and Erickson was detained pending trial more
than an hour's drive from Huron. There were several snowstorms in central South Dakota during
the first few months of 2019.
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Erickson. CR Doc. 39. Erickson claims that he did not sign the consent bearing Erickson's
signature and filed by Banks stating that Erickson had been advised of his Speedy Trial Act rights.
CR Doc. 38. This Court granted a continuance and set the jury trial for June 11, 2019. CR Doc.
40. Banks filed another motion for eontinuance on behalf of Erickson on May 8, 2019, stating he
had met with Erickson three times already but that more meetings were necessary for Banks to
represent Erickson to the best of his ability. CR Doc. 43. This Court granted another continuance
and set the jury trial for July 23, 2019. CR Doe. 45. Again, Erickson asserts he did not sign the
consent form bearing his signature. Doc. 1 at 4.
On June 25, 2019, Banks on behalf of Erickson filed another motion for continuance,
indicating that he was still reeeiving diseovery from the government and was requesting funds for
a private investigator to assist in locating and interviewing witnesses. CR Doc. 46. Erickson's
signature appears on another consent—^though Erickson claims he did not sign it—acknowledging
that he had been advised of his speedy trial rights and waived the period oftime ofthe continuance
under the Speedy Trial Act. CR Doc. 47. By July, Erickson was dissatisfied with Banks, and
Magistrate Judge Moreno held a hearing on July 1, 2019, to hear from Erickson and Banks,
thereafter denying Erickson's request for new eounsel. CR Docs. 49, 50. This Court granted the
continuance requested by Banks on behalf of Erickson and set the jury trial for September 24,
2019. CRDoe. 51.
On September 10,2019,the government filed a superseding indictment, making somewhat
modest changes to the original indietment. CR Doc. 57. Erickson's disgnmtlement with Banks
continued, so Magistrate Judge Moreno held another hearing to eonsider Erickson's ex parte
motion for new counsel and denied the motion. CR Docs. 58, 59. On the heels of the denial of
new counsel. Banks filed another motion for continuance indicating that he was still preparing for
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trial and that the work of the private investigator was ongoing. CR Doc. 62. Again, a consent
bearing Erickson's signature appears alongside that motion for continuance,though Erickson again
claims he never signed the consent form. CR Doc. 63. This Court granted the motion for
continuance setting the trial to begin on November 5, 2019. CR Doc. 64.
In October, Banks sought to withdraw because his attorney-client relationship with
Erickson was "irrevocably broken." CR Doc. 67. Magistrate Judge Moreno granted the motion
to withdraw, CR Doc.68, and appointed CJA panel attorney John Ruseh, CR Doc. 71. Rusch was
the trial counsel for Erickson during the trial that took place from November 5 through 7, 2019.
Erickson has no gripe about Rusch's representation.
Eight different witnesses testified about Erickson's involvement with methamphetamine
on the Rosebud Indian Reservation. The first such witness whom the Government called was
Witness C,"^ who was serving a 25-year sentence for conspiracy to distribute methamphetamine.
Witness C said that Erickson was like a brother to her and was solemn and emotional during her
testimony. Witness C testified that she obtained large quantities of methamphetamine in
Lexington and Kearney, Nebraska, and elsewhere. Witness C was living in Nebraska and dating
a man with connections through which he purchased many pormds of methamphetamine, which
Witness C helped distribute. Witness C, who was from Rosebud, delivered methamphetamine to
Erickson on the Rosebud Indian Reservation beginning in 2015 and continuing until she was
imprisoned in late 2015. On the first such occasion. Witness C brought methamphetamine to
Erickson's home in South Antelope and sold three ounces (approximately 85 grams) of
methamphetamine from Erickson's home. Witness C testified that she took approximately 20 trips
This Court filed a sealed opinion and order using the witness' actual names, but in this opinion
and order seeks to protect witnesses who cooperated with the government by using pseudonyms.
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from Nebraska to sell methamphetamine on the Rosebud Indian Reservation. After her first trip,
she typically brought 1 to 3 pounds of methamphetamine to South Dakota on each trip, and the
largest quantity she brought at any one time was between 8 to 12 pounds of methamphetamine.
She typically split half of what she brought to South Dakota with Erickson, selling the rest herself
sometimes from Sunrise Apartments in Mission and sometimes offthe reservation in Rapid City.
Using Witness C's most conservative estimate of 1 poimd per trip on 20 trips, split evenly with
Erickson, the drug quantity attributable to Erickson based on Witness C's testimony is at least
4535.9 grams(10 pounds x 453.59 grams/pound). Witness C typically fronted methamphetamine
to Erickson, and Erickson gave her what he earned from the sales, sometimes about $3,000 per
pound. Witness C saw Erickson distribute methamphetamine to at least three other individuals.
Witness C brought Erickson guns and personally gave him one gun. Witness C testified that
Erickson always carried a gun for protection. Witness C saw Erickson smoke methamphetamine
but knew Erickson to use marijuana more frequently than methamphetamine.
Witness R testified that he was a friend of Erickson's entire family and bought
methamphetamine from and sold methamphetamine to Erickson a couple of times in the 2014 to
2015 time period. Witness R recalled buying two to three ounces (56.7 to 85 grams) of
methamphetamine from Erickson over the years and described Erickson as a "small time guy."
The largest quantity of methamphetamine Witness R saw in Erickson's possession at any one time
was two ounces. Witness R saw Erickson distribute methamphetamine to others at times and used
methamphetamine with Erickson occasionally. Witness R observed firearms in and around
Erickson's home but did not know whether they belonged to Erickson or to Erickson's brother or
father. Witness R saw Erickson with a shotgun once. Witness R was serving a 120-month sentence
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for conspiracy to distribute methamphetamine and received his methamphetamine primarily from
Denver.
Witness MB, who was serving a 120-month sentenee for conspiracy to distribute
methamphetamine, testified that Eriekson bought methamphetamine from him in November and
December of 2017. Eriekson visited multiple times in a week, buying half an ounee to one ounce
on eaeh oceasion. Witness MB estimated that Eriekson bought a total of approximately 10 ounees
(283 grams) of methamphetamine, paying $1,000 to $1,100 per ounee. On one oeeasion at
Eriekson's home. Witness MB saw two ounces of methamphetamine in a bag on a eounter and
smoked methamphetamine with Eriekson in his home. Witness MB saw Eriekson with a shotgun
in November of 2017, when Eriekson tried to trade the shotgun for methamphetamine.
Witness TE, who was serving a 30-month sentenee, dealt methamphetamine for Witness
MB. Witness TE knows Eriekson's "baby momma" Jaylen LaPointe. Witness TE sold 2 grams
of methamphetamine for $175 to LaPointe when Eriekson was present, but that was Witness TE's
first time meeting Eriekson.
Witness AB testified that she bought methamphetamine from Eriekson in 2017. Witness
AB twice purehased .5 grams (a 50-bag), for a total of one gram from Eriekson. Witness AB
bought those "50-bags" from a window on the side ofEriekson's home. Witness AB saw Eriekson
in the bedroom smoking what appeared to be methamphetamine out of a lightbulb.
Witness W, who was serving a 120-month sentence for eonspiracy to distribute
methamphetamine, met Eriekson at the end of2014 and bought methamphetamine from Eriekson
in 2014 or 2015. Witness W purehased a couple of"eight-balls"(3.5 grams of methamphetamine
eaeh), paying between $300 and $450 for each eight-ball. To purchase methamphetamine. Witness
W would drive to Eriekson's home, and Eriekson would come out and deliver the
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methamphetamine to Witness W's female companion. Witness W used methamphetamine with
Erickson at Witness R's home on one occasion. Witness W saw Erickson carrying a pistol in
South Antelope.
Witness G, who had served a federal drug sentence as well, knew Erickson from middle
school, but never dealt directly with Erickson on buying or selling methamphetamine. Witness G
conspired to distribute methamphetamine with her then-boyfriend RGJ. Witness G made trips
with RGJ,including to Erickson's home in South Antelope, to deliver methamphetamine in 2015
and 2016. Witness G would wait in the car while RGJ would deliver methamphetamine into
Erickson's home. RGJ would return with over $100 and sometimes more than $1,000,and at other
times with weapons, including firearms, after having gone into Erickson's home.
On October 22, 2016, Rosebud Sioux Tribe (RST)law enforcement responded to a call
concerning a gun being fired at Erickson's home in South Antelope. Law enforcement originally
suspected that Erickson was the shooter, although he was not. RST law enforcement, together
with an FBI special agent, ultimately obtained a search warrant and searched Erickson's home on
October 22, 2016. The search yielded pipes used for smoking methamphetamine, torches,
ammunition,and two guns found in a bedroom where the first names ofErickson and his girlfriend
were written on the wall. The jury convicted Erickson of offenses involving possession of those
two firearms. Law enforcement found four additional firearms in an old Ford Mustang car located
in the yard just a few feet behind Erickson's residence. Testimony during the trial suggested that
those guns could have belonged to Erickson's brother, who had passed away earlier during the
month of October of 2016. The jury did not convict Erickson on any offenses involving the
firearms found in the Mustang.
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RST law enforcement on June 3,2018,executed a tribal search warrant on Erickson's home
after a shooting where the shooter told law enforcement about obtaining the gun from Erickson.
Law enforcement located a disassembled gun in a bucket in Erickson's home. Erickson was
convicted by the jury on counts concerning this disassembled gun, which testimony established to
qualify as a firearm under federal law. Law enforcement on June 3, 2018, also seized needles and
baggies from Erickson's home that tested positive for methamphetamine residue.
On September 6, 2018, RST law enforcement officer Joshua Marti attempted to contact
three individuals walking near Sunrise Apartments in Mission after Officer Marti observed the
three behaving suspiciously. Erickson was one oftwo males who took offrunning to evade Officer
Marti. Erickson jumped a fence and crouched near a pickup truck. As Officer Marti approached,
Erickson fled from hiding near the pickup truck and dropped approximately $300 of cash out of
his pocket before being apprehended. RST Special Agent Frank Iron Heart later found a handgun
in the grill ofthe pickup truck where Erickson had been hiding.
Erickson testified during hisjury trial, stating that he was unaware ofany drugs in his home
or of any guns in the Mustang located behind his home in October of 2016. Erickson denied that
Witness C delivered methamphetamine to him and denied that he had any agreement with Witness
C whom he characterized as a very heavy drug user. Erickson stated that he does not own a gun
because he gets pulled over by cops a lot. Erickson denied knowing many ofthe individuals who
testified and denied selling methamphetamine or setting up deals to sell methamphetamine.
During a surprisingly brief cross-examination, Erickson testified that he never told Deputy Sheriff
Dustin Baxter that he sold methamphetamine or set up deals to sell methamphetamine. Erickson
on cross-examination also denied trying to get Witness JS to sell methamphetamine for him.
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In the government's rebuttal case, Witness JS testified that Erickson tried to get Witness
JS to sell methamphetamine for him in South Antelope in 2015. Witness JS also testified that he
bought a couple "20s"($20 bags of methamphetamine)from Erickson on four or five occasions at
Erickson's home between June and August 2015. Witness JS saw seven or eight ounces (198.45
to 226 grams) of methamphetamine on the table in Erickson's home when he was there.
As a part of the government's rebuttal case, to refute Erickson's testimony that he never
told Deputy Sheriff Baxter that he sold or set up deals for methamphetamine. Deputy Sheriff
Baxter testified that he interviewed Erickson in September of 2005 in Nebraska. Erickson said
during the interview that he set up methamphetamine deals and sold methamphetamine to another
person. This Court instructed the jury to consider the testimony about Erickson's statements in
2005(which was well outside the time frames alleged in the superseding indictment)only to assess
Erickson's credibility.
The jury found Erickson guilty on Count 1 for conspiracy to distribute 500 grams or more
of a mixture or substance containing a detectable amount of methamphetamine. The jury also
foimd Erickson guilty on Count 2 with respect to the two firearms located in his bedroom on
October 22,2016—an Amadeo Rossi Sociedade Anomina, model R92,.357 magnum caliber rifle;
and a Remington Arms Company Incorporated, model 1100, 12-gauge shotgun—finding them to
be used in furtherance of drug trafficking. The jury found Erickson not guilty on Count 2 with
respect to four other firearms that had been seized from the Mustang parked behind his home in
October of2016. The jury found Erickson not guilty of Counts 3 and 4, which were counts related
to two ofthe firearms found in the Mustang behind his home. The jury found Erickson guilty on
Count 5 for the crime of being a drug user in possession of firearms based on possession of the
same two firearms found in his bedroom,though he was found not guilty on Count 5 regarding the
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four firearms found in the vehicle behind his home in October of 2016. The jury found Erickson
guilty on Cormts 6 and 7 for drug user in possession of a firearm for a Armi Jager,.22 caliber rifle
taken from his home on June 3, 2018, and for a Beemiller Incorporated, Hi-Point brand name
Model C9,9x19mm Luger caliber pistol foimd in the grill of a pickup where Erickson had hidden
from police on September 6,2018.
Erickson received a sentence that aggregated to 188 months plus five years of supervised
release. On appeal, CR Doc. 157,the Eighth Circuit affirmed the conviction and sentence.
II. Discussion
Erickson seeks relief pursuant to 28 U.S.C. § 2255. Section 2255(a) states:
A prisoner in custody under sentence of a court established by Act of Congress
claiming the right to be released upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United States, or that the court was
withoutjurisdiction to impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to collateral attack, may
move the court which imposed the sentence to vacate, set aside or correct the
sentence.
When considering a § 2255 motion,a court holds an evidentiary hearing "unless the motion
and the files and the records of the case conclusively show that [the prisoner] is entitled to no
relief." Holder v. United States. 721 F.3d 979, 993 (8th Cir. 2013) (cleaned up and citation
omitted). "No hearing is required where the claim is inadequate on its face or if the record
affirmatively refutes the factual assertions upon which it is based." Watson v. United States. 493
F.3d 960,963(8th Cir. 2007)(cleaned up and citation omitted). The Eighth Circuit has stated:
A § 2255 motion may be dismissed without a hearing if(1) movanfs allegations,
accepted as true, would not entitle him to relief, or (2) the allegations cannot be
accepted as true because they are contradicted by the record, are inherently
incredible, or are conclusions rather than statements offact.
Winters v. United States. 716 F.3d 1098, 1103 (8th Cir. 2013)(cleaned up and citation omitted).
Because the record conclusively demonstrates that Erickson is not entitled to relief, an evidentiary
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hearing is not necessary in this case. This Court can dismiss this case on the merits upon analysis
of the substance of Erickson's § 2255 motion alleging ineffective assistance of counsel and
prosecutorial misconduct.
A. Ineffective Assistance of Counsel
Erickson's petition alleges that two of his former defense attorneys provided ineffective
assistance of counsel by allegedly filing motions for continuances without Erickson's consent.
Doc. 1 at 3-4. Three different lawyers represented Erickson during his criminal proceedings.
Terra Larson (f/k/a Terra Fisher) represented Erickson from November 2018 to January 2019,
Jeffrey Banks represented Erickson from January 2019 to October 2019, and John Rusch
represented Erickson thereafter including during his jury trial from November 5 through 7, 2019.^
CRDoc. 133 at 3^.
Before Erickson went to trial, at least five motions for continuances were filed on his behalf
apparently with his signed consent, and this Court granted all those motions. CR Doc. 133 at 3-
4. Erickson contends that at least three of these continuances were filed without his consent and
that his signature was forged on certain consent forms that were filed with this Court. Doc. 1 at 4.
Erickson fiirther alleges that Larson and Banks never made any visits to the jail to discuss motions
he wanted filed and that deadlines in his case passed without either attorney filing a motion to
suppress he had supposedly requested. Doc. 1 at 4. Erickson does not indicate what motion he
wanted filed or what evidence he thought ought to be suppressed. Erickson is also unclear about
whether his allegations are directed at Larson or Banks or both.^
^ Rusch has represented Erickson pro bono thus far in the § 2255 proceeding, and Erickson has
again moved to have this Court appoint him coimsel, presumably wanting Mr. Rusch appointed.
^ Erickson claims that his "first attorney" was ineffective because"he never saw his attorney, never
discussed the case, and that deadlines were missed and motions were failed to be filed and that all
ofthis was done by the Counsel filing Consents for Continuance which were never signed by the
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Larson and Banks separately have filed affidavits that contradict Erickson's assertions.
Doc. 11; Doc. 14. The affidavits detail that both Larson and Banks met personally with Erickson
on several occasions while he was in custody. During these visits, to the extent that Erickson was
willing to engage in conversation at all, Erickson and his lawyers discussed details of his case and
potential motions that could be filed, went over discovery, and importantly, agreed on the need for
the various continuances. Doc. 11 at 3; Doc. 14 at 1-2. Both Larson and Banks are emphatic that
they never signed a consent to a continuance on Erickson's behalf or forged Erickson's signature.
Doc. 11 at 3; Doc. 14 at 2. Indeed, all of the consents to continuances bearing Erickson's
signature—^both those he contests and those he does not—^bear a similar endorsement. CR
Docs. 29,38,44,47, 63.
The Sixth Amendment to the United States Constitution guarantees the right to effective
assistance of counsel in criminal prosecutions. U.S. Const, amend. VI; see also Gideon v.
Wainwrieht. 372 U.S. 335, 339 (1963); Johnson v. Zerbst. 304 U.S. 458, 459 (1938); Powell v.
Alabama. 287 U.S. 45, 63 (1932). To establish a claim of ineffective assistance of counsel, the
petitioner must show both that his counsel's performEince was deficient, and that the deficient
performance prejudiced his defense. Strickland v. Washington. 466 U.S. 668. 687 119841. To
meet this two-pronged standard,the petitioner must show that"(1)his counsel's representation fell
below an objective standard of reasonableness; and (2) there is a reasonable probability that, but
for his counsel's unprofessional errors, the result of the proceeding would have been different."
United States v. Ledezma-Rodriguez.423 F.3d 830,836(8th Cir. 2005). "Because the defendant
Plaintiff." Doc. 1 at 3-4. However, Larson, as Erickson's first attomey, only filed one
continuance, which it does not appear to be contested based on Erickson's petition challenging the
"Second,Third, and Fourth Continuances." Doc. 1 at 4. Again,this confixsion is not determinative
to the issues discussed.
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must satisfy both prongs of the Strickland test to succeed on an ineffective-assistance claim, a
court may decide such a claim by addressing either prong." Ford v. United States, 917 F.3d 1015,
1021 (8th Cir. 2019).
The first part ofthe Strickland test requires a "showing that counsel made errors so serious
that counsel was not functioning as the 'counsel' guaranteed [to] the defendant by the Sixth
Amendment." Williams v. United States. 452 F.3d 1009, 1013 (8th Cir. 2006). The petitioner
must "overcom[e] the strong presumption that defense counsel's representation fell 'within the
wide range of reasonable professional assistance.'" Delgado v. United States. 162 F.3d 981, 982
(8th Cir. 1998) (quoting Strickland. 466 U.S. at 689). Courts are not to "second-guess" trial
strategy. William.s. 452 F.3d at 1013. "The Sixth Amendment right to counsel functions to ensure
that defendants receive a fair trial, not a perfect one." Willis v. United States. 87 F.3d 1004,1008
(8th Cir. 1996).
"The second part ofthe Strickland test requires that the movant show that he was prejudiced
by counsel's error[.]" Williams.452 F.3d at 1013. This means proving that "there is a reasonable
probability that, but for counsel's improfessional errors, the result of the proceeding would have
been different." Id "A reasonable probability is a probability sufficient to undermine confidence
in the outcome." Id "It is not enough for the defendant to show that the errors had some
conceivable effect on the outcome ofthe proceeding." Ford. 917 F.3d at 1021.
As this Court ruled previously when it denied Erickson's motion for a new trial or acquittal,
all of the signatures on the consent forms appear to be substantially similar. CR Doc. 133 at 14-
15. Erickson has presented no additional evidence that the signatures were forged beyond his
conclusory allegations. Nor has Erickson explained why he would refuse to consent to those
continuances while at the same time declining to engage in meaningful discussions with his
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lawyers on how to prepare his defense. Even if Erickson had not consented to the continuances—
which this Court finds dubious—^he would still be required to show that the delay in having his
trial had some prejudicial effect on the outcome. If anything, the continuances allowed Erickson
more time to prepare his defense and led eventually to the appointment of a third attorney, John
Rusch, with whom Erickson was pleased and who tried the case for Erickson. Erickson has
presented no evidence that the delay in having his trial had some conceivable effect on the
outcome.
Moreover, while this Court has a practice of requiring signed consents to accompany
criminal defendants' motions for continuances,this Court, even without a signed consent, can find
that the ends ofjustice served by a continuance outweigh the interests in a speedy trial based on
the information provided. See United States v. Dunn. 723 F.3d 919, 928 (8th Cir. 2013)(stating
that a criminal defendant's personal consent not necessary if the ends of justice served by the
continuance outweigh the defendant's interests in a speedy trial); United States v. Herbst. 666 F.3d
504, 510(8th Cir. 2012)(citing 18 U.S.C. § 1361(h)(7)(A); United States v. Sobh. 571 F.3d 600,
603 (6th Cir. 2009)) ("We agree with the Sixth Circuit that the plain language of section
3161(h)(7)(A) does not require a defendant's consent to the continuance ifthe judge granted such
continuance on the basis of his findings that the ends of justice served by taking such action
outweigh the best interest of the public and the defendant in a speedy trial.") (cleaned up and
internal marks omitted). Erickson's inability to work with his initial two court-appointed attorneys
certainly provided ample independent reason to grant continuances, lest Erickson be forced to trial
represented by an attorney whose preparation was hampered by Erickson's lack of cooperation
and in whom Erickson lacked trust.
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Erickson also does not provide any evidence to substantiate his claims that Larson and
Banks missed deadlines to file a motion to suppress. For starters, each of the continuances that
Erickson now denounces not only extended the date of his trial, but also extended the motions
deadlines he now alleges were missed. Erickson and his attomeys had ample time to discuss and
file any necessary pretrial motions, and the third attorney with whom Erickson has no gripe neither
sought a continuance nor filed a suppression motion. Erickson has advanced no factual basis for
his beliefthat counsel failed to file necessary pretrial motions and thus presented nothing to refute
the strong presumption that counsel's decision not to file such a motion was a sound decision of
trial strategy. See Strickland. 466 U.S. at 689.("[A] court must indulge a strong presumption that
counsel's conduct falls within the wide range of reasonable professional assistance; that is, the
defendant must overcome the presumption that, under the circumstances, the challenged action
'might be considered sound trial strategy.'").
Similarly, Erickson's claims that his first two CJA panel attomeys failed to meet with him
at the jail—^which again, both Larson and Banks have emphatically denied—do not justify relief.
The only support for Erickson's claims that his attomeys failed to meet with him is his hypothesis
that jail records, if obtained, could substantiate the allegation. But Erickson's trial counsel, with
whom Erickson has no complaint, acknowledges that visits with counsel at the Winner jail are not
always recorded on a sign-in sheet. Doe. 18 at 3. Erickson's protestations that his court-appointed
attomeys failed to meet with him in advance of trial are contradicted by the record. See CR Doc.
50 (denying motion to substitute counsel after Magistrate Judge Moreno met with Erickson and
Banks in chambers, resolving at that time differences among and between them); CR Doe. 59
(same). Moreover, neither of the attomeys whom Erickson blames for not visiting him were
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involved in his trial. Thus, Erickson cannot show prejudice under the second prong of the
Strickland test.
Erickson's ineffective assistance of counsel claim can be dismissed without a hearing.
Erickson's allegations that are not plainly contradicted by the record or inherently incredible—and
there are few—are vague, unsupported, and would not entitle him to relief. Accordingly,
Erickson's § 2255 petition as it relates to his ineffective assistance ofcormsel claims against Larson
and Banks is dismissed.
B. Prosecutorial Misconduct
As he has done twice before in this Court,and once before with the Eighth Circuit, Erickson
contends he was denied a fair trial because the Government failed to disclose materials related to
pretrial interviews it conducted with one of its witnesses. This Court and the Eighth Circuit have
squarely addressed and rejected this claim during Erickson's criminal proceedings and appeal.
CR Doc. 133 at 22-24; CR Doc. 150 at 5-7; CR Doc. 180 at 10-11. "Issues raised and decided
on direct appeal cannot ordinarily be relitigated in a collateral proceeding based on 28 U.S.C. §
2255." United States v. Wilev. 245 F.3d 750, 752(8th Cir. 2001)(citing United States v. McGee.
201 F.3d 1022,1023(8th Cir. 2000)(per curiam)); Bear Stops v. United States. 339 F.3d 777,780
(8th Cir. 2003)(same). The rule against relitigating matters decided on direct appeal through a §
2255 petition is not absolute, but Erickson has neither raised any exceptions to the rule nor alleged
any new facts to support his claim. Cf Wilev. 245 F.3d at 752(stating that miscarriage-of-justice
exception to the rule against relitigating matters decided on direct appeal recognized only when
petitioners produce convincing new evidence of actual innocence).
Erickson also makes some vague allegations of prosecutorial misconduct on the grounds
that law enforcement allegedly monitored eommunications between him and his trial counsel in
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the weeks after Erickson was found guilty. Doe. 1 at 5-6. Prosecutorial miseonduet may be found
where "the proseeutor's conduct was improper and prejudicial enough to deprive the defendant of
a fair trial." United States v. Thronay. 394 F.3d 1004, 1007 (8th Cir. 2005). Even taking this
allegation as true, Erickson has made no allegations regarding how monitoring of his
communications from jail after his conviction could have influenced the outcome of his trial.
No hearing is necessary on Erickson's prosecutorial misconduct claim because the motion
and the files and the records of the ease conclusively show that he is not entitled to relief.
Accordingly, Erickson's § 2255 claims that prosecutorial misconduct denied him the right to a fair
trial are dismissed.
III. Motion for Counsel
This Court previously deferred ruling on Erickson's motion to appoint counsel, while
noting that "a pro se litigant has no statutory or constitutional right to have counsel appointed in a
civil case." Doe.4 at 1 (quoting Stevens v. Redwing. 146 F.3d 538,546(8th Cir. 1998)). Having
considered the complexity ofthe case,the ability ofErickson to investigate the facts, the existence
of conflicting testimony, and the litigant's ability to present his claims, this Court now denies
Erickson's motion for counsel anew, which this decision renders moot anyway.
IV. Conclusion
For the Reasons explained above, it is hereby
ORDERED that the Government's Motion to Dismiss Erickson's § 2255 Motion, Doc. 16,
is granted. It is further
ORDERED that Erickson's motion under 28 U.S.C. § 2255 to vacate, set aside, or correct
sentence. Doc. 1, is denied. It is finally
ORDERED that Erickson's Motion for Appointment of Legal Counsel, Doc. 2, is denied.
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DATED this 3** day of November,2022.
BY THE COURT:
ROBERTO A. LANGE
CHIEF JUDGE
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