Mandy Martinson Order.pdf

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Appellate Case: 07-1196 Page: 1 Date Filed: 01/29/2007 Entry ID: 3272511

IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF IOWA

UNITED STATES OF AMERICA,

Plaintiff/Respondent,

vs.

MANDY MARTINSON,

Defendant/Movant.

No. 3:04-cr-03018-JEG

ORDER DENYINGSECTION 2255 MOTION

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 Martinson’s

motion, and the matter is ready for ruling. For the following reasons, the Court must deny

Martinson’s 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 con-

spiracy and possession with intent convictions, plus a 60-month consecutive term of imprison-

ment 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

Page 1 of 13iand-3-04-cr-03018Friday January 26, 2007


1 Immediately prior to the hearing, the Court provided a Memorandum to counsel whichprovided, in pertinent part, as follows:

During the course of oral argument, please include your comments on thefollowing specific issues:

1. The Defendant in this case was confronted with the physical evidence ofa firearm being found in conjunction with her personal property and theanticipated testimony of a co-conspirator that the firearm was possessedby the Defendant in furtherance of the drug offenses. Additionally, theco-conspirator would have been expected to provide testimony regardingthis Defendant’s involvement in the drug offenses. The current motionmakes no claim of ineffective assistance of counsel pre-trial in connec-tion with the decision to go to trial. Without waiving any attorney/clientprivilege, the Court is interested to know if claims regarding pretrialassistance of counsel have been considered, and a decision made not topursue any such claims.

2. Is the argument regarding grounds for a new trial restricted to thepossession of the firearm in furtherance of the other offenses, or broaderin scope?

In response to these specific inquires by the Court, counsel described the scope of thecurrent action.

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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 Martinson’s 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) counsel’s 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 counsel’s performance fell below an objective standard of

reasonableness. Id. at 687-88. To show prejudice, Martinson must demonstrate “a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would have



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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 counsel’s 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, theevidence preponderates sufficiently heavily against the verdict that a seriousmiscarriage of justice may have occurred, [the district court] may set asidethe verdict, grant a new trial, and submit the issues for determination byanother 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 tothe weight of the evidence, the “court need not view the evidence in the lightmost favorable to the government, but may instead weigh the evidence andevaluate 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 theweight of the evidence are generally disfavored.” [United States v. ]Campos,306 F.3d 577, 579 (8th Cir. 2002). The district court’s authority to grant anew trial should be exercised “sparingly and with caution.” Lincoln, 630F.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



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has ownership, dominion or control over the contraband itself, or dominionover the premises in which the contraband is concealed. United States v.Cruz, 285 F.3d 692, 697 (8th Cir. 2002). Mere physical proximity to thecontraband is generally not enough, but knowledge of its presence, combinedwith control is constructive possession. Id. Knowledge can be inferred froma defendant’s presence where contraband is discovered, when combined withother evidence. United States v. Serrano-Lopez, 366 F.3d 628, 635-36 (8thCir. 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 Martinson’s 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.) Martinson’s 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 shouldn’t.” (Tr. 150.) He

minimized Martinson’s 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 Dana’s testimony that Martinson

knowingly and voluntarily participated in the conspiracy and possessed a firearm in furtherance

of the crime. Dana’s testimony and the physical evidence were sufficient to convict Martinson

of violating section 924(c)(1)(A). If Martinson’s 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 counsel’s 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 Martinson’s 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.



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: Petitioner’s petition for writof habeas corpus pursuant to 28:2255 is denied.

DATED: _January 9, 2007

PRIDGEN J. WATKINS, CLERK

S/ A. Kjos, Deputy Clerk



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 beendecided and a decision has been rendered.

IT IS HEREBY ORDERED AND ADJUDGED THAT: Petitioner’s petition for writof habeas corpus pursuant to 28:2255 is denied.

DATED: _January 9, 2007

PRIDGEN J. WATKINS, CLERK

S/ A. Kjos, Deputy Clerk



1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

________________________________________________________________________

UNITED STATES OF AMERICA :

NO. CV05-3056JEG

CR04-3018JEG

Plaintiff/Respondent, :

REQUEST FOR

vs. : CERTIFICATE OF

APPEALABILITY

MANDY MARTINSON, :

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: [email protected]

ATTORNEY FOR

DEFENDANT/MOVANT



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Original Filed

Copy to:

Shawn Stephen Wehde

ATTORNEY FOR

PLAINTIFF/RESPONDENT

Mandy Martinson #02876-029

Federal Correctional Institute

P.O. Box 5000

Pekin, IL 61555

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



IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF IOWA

UNITED STATES OF AMERICA,

Plaintiff/Respondent,

vs.

MANDY MARTINSON,

Defendant/Movant.

No. 3:04-cr-03018-JEG

ORDER DENYING CERTIFICATEOF APPEALABILITY

The Court has before it Movant Mandy Martinson’s 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.



of 13iand-3-04-cr-03018Friday January 26, 2007


UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

ACCESS DISTRICT COURT DOCKET SHEET

Appeal No. 07-1196 USA v. Mandy Martinson Date: 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


http://www.ca8.uscourts.gov/cgi-bin/new/dcDktLink.pl?loc=iand&case_num=04-3018

Mandy Martinson Order.pdf

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