United States District Court, N.D. California, San Jose Division
ORDER SETTING BRIEFING SCHEDULE RE DEFENDANT'S
MOTION UNDER 28 U.S.C. § 2255 [RE: ECF 462]
LABSON FREEMAN United States District Judge
Melvin Russell “Rusty” Shields has filed a motion
under 28 U.S.C. § 2255, seeking to vacate the judgment
of conviction and sentence in his case. See
Def.'s 2255 Motion, ECF 462. Having conducted an initial
review of the motion as discussed below, the Court will order
the Government to file a response and will grant Shields an
opportunity to file a reply.
convicted Shields of thirty-two counts, including conspiracy,
wire fraud, bank fraud, securities fraud, and making false
statements to a bank. Verdict Form, ECF 266. The judge who
presided over the trial, Judge Ronald M. Whyte, sentenced
Shields to a seventy-eight month term of imprisonment, a five
year term of supervised release, a special assessment of $3,
200, and a restitution payment in the amount of $7, 222,
905.03. Judgment, ECF 350. Shields appealed on numerous
grounds, including inadequate jury instructions, failure to
sever Shields' trial from that of his co-defendant,
admission of prejudicial evidence, denial of the right to be
present at a critical stage, and ineffective assistance of
trial counsel. See United States v. Shields, 844
F.3d 819, 821 (9th Cir. 2016).
Ninth Circuit Court of Appeals affirmed the judgment and
conviction, addressing Shields' challenge to jury
instructions in a published opinion filed December 21, 2016,
and his remaining challenges in an unpublished memorandum
disposition filed the same date. See id.; United
States v. Shields, 673 Fed. App'x 625 (9th Cir.
2016). Shields' petition for panel rehearing and petition
for rehearing en banc were denied on March 30, 2017. He did
not file a petition for a writ of certiorari.
14, 2017, Shields filed the present motion to vacate his
judgment of conviction and sentence. See Def.'s
2255 Motion, ECF 462. Because Judge Whyte has retired, the
motion has been assigned to the undersigned judge.
federal prisoner may file a motion to vacate, set aside, or
correct his sentence on “the ground that the sentence
was imposed in violation of the Constitution or laws of the
United States, or that the court was without jurisdiction to
impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to
collateral attack.” 28 U.S.C. § 2255(a). The
prisoner is entitled to a hearing on his § 2255 motion
“[u]nless the motion and the files and records of the
case conclusively show that the prisoner is entitled to no
relief.” 28 U.S.C. § 2255(b).
district court “conducts an initial review of [the]
motion to determine whether it presents a cognizable claim
for relief and requires a response by the government.”
United States v. Coleman, No. 11-CR-00904-PJH-1,
2015 WL 1548986, at *3 (N.D. Cal. Apr. 7, 2015). “If it
plainly appears from the motion, any attached exhibits, and
the record of prior proceedings that the moving party is not
entitled to relief, the judge must dismiss the motion and
direct the clerk to notify the moving party.” Rules
Governing § 2255 Proceedings, Rule 4(b), 28 U.S.C. foll.
§ 2255. “If the motion is not dismissed, the judge
must order the United States attorney to file an answer,
motion, or other response within a fixed time, or to take
other action the judge may order.” Id.
initial matter, Shields' § 2255 motion is timely.
Ordinarily, a § 2255 motion must be filed within one
year of the date on which the judgment of conviction becomes
final. 28 U.S.C. § 2255(f)(1); United States v.
Buckles, 647 F.3d 883, 887 (9th Cir. 2011). Where, as
here, the prisoner files a direct appeal and a petition for
rehearing in the Court of Appeals, but does not file a
petition for a writ of certiorari in the Supreme Court, the
judgment of conviction becomes final ninety days after the
denial of the petition for rehearing. See Buckles,
647 F.3d at 888. The Ninth Circuit denied Shield's
petition for panel rehearing and petition for rehearing en
banc on March 30, 2017. Thus the one-year clock for filing a
§ 2255 motion began to run ninety days later, on June
28, 2017. Shields filed his § 2255 motion less than a
month later, on July 14, 2017.
seeks relief based on claims of: (1) actual and factual
innocence; (2) ineffective assistance of trial counsel for
failure to call or consult with experts in real estate,
banking, and finance; (3) Brady and
Napue violations; (4) ineffective assistance of
trial counsel based on conflict of interest; and (5) due
process violation based on trial counsel's refusal to
permit Shields to attend a critical stage of the process. It
is not plainly apparent on this record that all of
Shields' asserted grounds for relief are without merit.
For example, a claim of ineffective assistance of trial
counsel may entitle a prisoner to relief under § 2255.
See United States v. Picard, 202 F.3d 280 (9th Cir.
1999). To prevail on such a claim, the prisoner must show
that (1) counsel's performance was deficient, and (2) the
deficiency prejudiced his defense. Id. (citing
Strickland v. Washington, 466 U.S. 668, 687 (1984)).
Shields alleges that trial counsel was deficient in several
respects, including asserted failures to consult with or call
experts in the fields of real estate and banking, to review
all material evidence before developing a trial strategy, or
to move for acquittal notwithstanding the verdict. While
Shields raised an ineffective assistance claim on direct
appeal, the Ninth Circuit concluded that the record was not
sufficiently developed to address the claim and dismissed it
on that basis. See United States v. Shields, 673
Fed. App'x at 629. As a result, there has been no
adjudication on the merits of his ineffective assistance
claims. Under these circumstances, and given the voluminous
transcripts of the trial and other relevant proceedings
before Judge Whyte, this Court cannot summarily determine the
potential merit of Shields' ineffective assistance
determined that Shield's § 2255 motion is not
subject to summary denial, the Court finds it appropriate to
require a response from the Government.