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Lechner v. United States

United States District Court, W.D. Michigan, Northern Division

June 15, 2018

JOHN LECHNER, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION

          GORDON J. QUIST UNITED STATES DISTRICT JUDGE

         Pursuant to 28 U.S.C. § 2255, John Lechner moves to vacate, set aside, or correct his sentence. The Government has filed a response, and Lechner has replied. After reviewing the motion, briefs, and supporting documents, the Court will deny the Motion.[1]

         I. Background

         On October 4, 2011, a six-count indictment was filed against Lechner charging him with: (1) possession of explosives while under indictment, in violation of 18 U.S.C. § 842(i)(1); (2) transportation of explosive materials without a permit or license, in violation of 18 U.S.C. § 842(a)(3)(A); (3) distribution of explosive materials and distribution of explosive materials to a convicted felon, in violation of 18 U.S.C. §§ 842(a)(3)(B) and 842(d)(2); (5) improper storage of explosive materials, in violation of 18 U.S.C. § 842(j); and (6) making a false statement to a law enforcement officer, in violation of 18 U.S.C. § 1001(a)(2). (No. 2:11-CR-49 (hereafter CR), ECF No. 14.) Lechner pled guilty to possession of explosives while under indictment (CR, ECF No. 36). The magistrate judge subsequently granted Lechner's motion to withdraw his plea. (CR, ECF No. 56.) On April 10, 2012, the Government filed a superseding indictment charging Lechner with: (1) two counts of improper transportation of explosive materials; (2) two counts of improper storage of explosive materials; (3) possession of explosives while under indictment; (4) making a false statement to a law enforcement officer; (5) distribution of explosive materials; and (6) distribution of explosive materials to a convicted felon. (CR, ECF No. 61.)

         Initially, attorney Paul A. Peterson was appointed to represent Lechner. However, early in the case, Lechner retained an attorney, Charles W. Malette, who represented Lechner during the plea process. After Lechner withdrew his plea and the superseding indictment was filed, attorney Malette was permitted to withdraw and attorney Peterson was re-appointed to represent Lechner.

         The case was tried to a jury over four days before Judge Allan Edgar. The Sixth Circuit summarized the pertinent facts as follows:

In 2003, Lechner, a Michigan farmer and quarry owner, received a three-year explosives permit even though the [Federal Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF)] had not approved his storage facilities. He then bought two tons of ammonium nitrate/fuel oil (“ANFO”), a highly explosive chemical mixture frequently used for blasting rock quarries.
In 2010, Lechner rented out a house on part of his farm. The renter soon discovered two pallets loaded with 80 bags of ANFO in a nearby barn, and was concerned it was not being stored safely. In November 2010, Lechner moved this ANFO to a detached garage at another residence he owned on Blalock Row. The renter photographed Lechner loading the ANFO onto a truck and reported him to the Michigan State Police.
In an unrelated incident in July 2011, Lechner got into a confrontation with police that stemmed from a property dispute with his former wife. The county prosecutor charged Lechner with three felonies. Lechner attended a preliminary hearing on September 13, 2011, and the charges were bound over for trial.
Meanwhile, on another occasion in September 2011, Lechner appeared in state court concerning a ticket his son had received. An incident in the courtroom led to Lechner's being held in contempt and sentenced to thirty days in jail.
While Lechner was in jail, two ATF agents interviewed him. They asked Lechner about some ANFO they knew he had purchased. He told them he had used it all up. As he later testified, Lechner was trying to prevent the agents from finding and destroying the ANFO because it had cost him a lot of money.
When he got out of jail, Lechner contacted his friend and sometimes-employee, Billy Jo Verette. Lechner asked Verette to help him move the ANFO from the Blalock Row residence to Verette's mother's shed. Verette called the local authorities. They gave Verette a hidden recording device and contacted ATF. Then, as the recording device ran, Verette helped Lechner move the 80 bags of ANFO.
At one point as they loaded the ANFO onto a horse trailer, Lechner told Verette the ANFO had to be stored “according to federal regulations.” Lechner said he didn't “know what the f* *k those [regulations] are, ” but that “just because you don't know doesn't mean that you don't have to store it that way.” As they unloaded the ANFO, Verette asked Lechner if he had any “big plans for this stuff.” Lechner responded, “Yeah . . . When there's a revolution here. . . . When the people decide to take the government back . . . me and you will be . . . mercenaries.” Although Lechner later testified that this was a joke, Verette testified that Lechner was not laughing. After Lechner left, agents seized the ANFO. The next day, agents searched the attics of two houses associated with Lechner and found blasting caps in one attic and blasting caps, boosters, and detonating cord in the other.

United States v. Lechner, 806 F.3d 869, 872-73 (6th Cir. 2015). At the conclusion of the trial, the jury found Lechner guilty of transportation of explosive materials without a permit (Counts 1 and 6); improper storage of explosives (Counts 3 and 9); possessing explosives while under indictment (Count 4); and making a false statement to a law enforcement officer (Count 5). The jury acquitted Lechner of the distribution charges (Counts 7 and 8). (CR, ECF No. 133.)

         Judge Edgar sentenced Lechner to 51 months imprisonment on Counts 1, 4, 5, and 6, and 12 months on Counts 3 and 9, to run concurrently, and three years of supervised release. (CR, ECF No. 151 at PageID.702-03.) Following imposition of the sentence, Lechner, through his counsel, filed a motion for a new trial based on “newly discovered evidence.” This evidence consisted of ATF regulations that Lechner said were not available to him while he was in the Marquette County jail awaiting trial. (CR, ECF No. 152 at PageID.709-710.) Judge Edgar denied Lechner's motion because Lechner failed to specify the regulations or explain how they were material to his case, and the regulations likely did not qualify as evidence. (CR, ECF No. 154.)

         Lechner appealed his convictions to the United States Court of Appeals for the Sixth Circuit, which affirmed in a published opinion issued on July 29, 2015. The Sixth Circuit rejected Lechner's arguments that: (1) his convictions for transporting explosives in violation of 18 U.S.C. § 842(a)(3)(A) were invalid because the regulation, 27 C.F.R. § 555.205(d), conflicted with the statute, rendering it vague and requiring application of the rule of lenity, and Lechner was entrapped by his reliance on the regulation, id. at 874-76; (2) his possession, storage, and transportation of explosives, of which he was convicted, lacked a nexus to interstate commerce, id. at 876-77; (3) his conviction for possessing explosives while under indictment was invalid because the district court failed to instruct the jurors that they had to find that Lechner knew he had been indicted and the statute made compliance impossible, id. at 878-80; (4) the instructions were deficient because they failed to elaborate on the applicable ATF regulations Lechner allegedly violated, id. at 880-82; and (5) his statement to ATF agents that he had used up all of the ANFO was not material, id. at 883. The Sixth Circuit issued its mandate on December 14, 2015. Lechner did not file a petition for writ of certiorari with the United States Supreme Court. Lechner filed the instant § 2255 Motion on December 7, 2016, within the applicable statute of limitations. 28 U.S.C. § 2255(f)(1).

         II. Discussion

         Pursuant to 28 U.S.C. § 2255(a), a prisoner in the custody of the United States may seek collateral relief from a sentence where “the sentence was imposed in violation of the Constitution or laws of the United States, or . . . the court was without jurisdiction to impose such sentence, or . . . the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” The Sixth Circuit has held, however, that “[s]ection 2255 is not a substitute for a direct appeal, and thus a defendant cannot use it to circumvent the direct appeal process.” Regalado v. United States, 334 F.3d 520, 528 (6th Cir. 2003) (citing United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 1594 (1982)). Ineffective assistance of counsel claims are generally not reviewable on direct appeal, but instead must be raised in a motion under § 2255. United States v. Quinlan, 473 F.3d 273, 280 (6th Cir. 2007) (citing Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 1693 (2003)). Lechner argues that his counsel rendered ineffective assistance in a number of respects.

         Ineffective assistance of counsel claims are analyzed under the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984). First, a defendant must show deficient performance-his “counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed by the Sixth Amendment.” Id. A defendant must show that “counsel's representation fell below an objective standard of reasonableness” measured by “prevailing professional norms.” Id. at 688, 104 S.Ct. at 2064-65. “[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance because it is all too easy to conclude that a particular act or omission of counsel was unreasonable in the harsh light of hindsight.” Bell v. Cone, 535 U.S. 685, 702, 122 S.Ct. 1843, 1854 (2002) (internal quotation marks omitted). Review of counsel's performance must thus be “highly deferential, ” and the court must avoid the temptation “to second-guess counsel's assistance after conviction or adverse sentence.” Strickland 466 U.S. at 689, 104 S.Ct. at 2065. See also United States v. Valerio, 676 F.3d 237, 248 (1st Cir. 2012) (noting that “Monday morning quarterbacking of trial tactics . . . is insufficient to sustain an ineffective assistance of counsel claim” (internal quotation marks omitted)). Moreover, a defendant's burden of overcoming the general presumption is even greater when counsel's conduct involves “strategic decisions, ” which are viewed as “virtually unchallengeable.” Logan v. United States, 434 F.3d 503, 510 n.1 (6th Cir. 2011).

         Second, the defendant must demonstrate prejudice, that is, that “there is a reasonable probability that, but for counsel's unprofessional errors, the result . . . would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. “It is not enough to show that the errors had some conceivable effect on the outcome of the proceeding.” Moreland v. Robinson, 813 F.3d 315, 329 (6th Cir. 2016) (quoting Harrington v. Richter, 562 U.S. 86, 104, 131 S.Ct. 770, 787 (2011) (quoting Strickland, 466 U.S. at 693, 104 S.Ct. at 2067)). Rather, “[c]ounsel's errors must be ‘so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.'” Harrington, 562 U.S. at 104, 131 S.Ct. at 787-88 (quoting Strickland, 466 U.S. at 687, 104 S.Ct. at 2064)). A court may deny an ineffective assistance claim solely on the prejudice prong if lack of prejudice is apparent. Strickland, 466 U.S. at 697, 104 S.Ct. at 2069.

         A.§ 2255 Motion

         1. Indicted ...


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