Summary: Plaintiff moved to vacate or correct a criminal sentence imposed by the Court, arguing that he had ineffective assistance of counsel which failed prevent the Court from miscalculating the sentencing guideline. Court denies the motion, holding that plaintiff had effective assistance of counsel and rejecting claimed mistake in guideline calculation.

Case Name: Daniel Lykken v. USA
Case Number: A3-00-95
Docket Number: 3
Date Filed: 8/21/00
Nature of Suit: 510

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
SOUTHEASTERN DIVISION

MEMORANDUM AND ORDER

Before the Court is a motion by the petitioner, Daniel Richard Lykken, pro se, pursuant to 28 U.S.C. § 2255, under which a prisoner may move the sentencing court for a correction in sentence (docket #1 in case no. A3-00-95; docket #25 in case no. C3-99-77). The United States resists the motion. For reasons set forth below, the motion is DENIED.

The Court notes that the petitioner is a party to a plea agreement in which he specifically and unequivocally waived all rights to contest the sentence in any post-conviction proceeding, including one pursuant to Section 2255 of Title 28, United States Code. See Plea Agreement, docket #19 in case no. C3-99-77 ¶ 21. The petitioner also waived his right to appeal provided under Section 3742(a) of Title 18, United States Code. The plea agreement clearly states that the petitioner understands that any appeal or other post-conviction relief inappropriately sought will be summarily dismissed by the court in which it is filed. Finally, the agreement recited that the petitioner understood the Eighth Circuit Court of Appeals has upheld this type of provision in United States v. His Law, 85 F.3d 379 (8th Cir. 1996). Thus, he normally would be unable to make this motion.

Petitioner seeks to avoid the effect of this provision by claiming that he had ineffective assistance of counsel. He cites cases from other circuits, including Jones v. United States, 167 F.3d 1142 (7th Cir. 1999), for the premise that waivers of the right to appeal and collateral attack may be unenforceable where a claim of ineffective assistance of counsel is made. Assuming that this rule applies in the Eighth Circuit, it does not help him. Under the Supreme Court's holding in Strickland v. Washington, one advancing an ineffective assistance of counsel claim must demonstrate (1) that counsel's representation fell below an objective standard of reasonableness and (2) that there is a reasonable probability that the outcome of the proceeding would have been different but for this failure. 466 U.S. 668, 686-87 (1984). As discussed below, petitioner cannot meet this test. Thus, his ineffective assistance of counsel claim is without merit, and his effort to avoid waiver of his appeal and collateral attack is unavailing.

Petitioner pled guilty to being a felon in possession of a firearm, a violation of 18 U.S.C. § 922(g)(1). Petitioner's plea agreement stipulated that his sentence would be calculated using USSG § 2K2.1(a)(4)(A), which specifies a base offense level of 20 if the defendant has one prior felony conviction for a crime of violence. Petitioner fit this description because he was convicted for violating Minn. Stat. § 609.344(1)(b), which prohibits any "sexual penetration" when the complainant is between the ages of 13 and 16 and the defendant is more than 24 months older. The Uniform Case Report referred to the act as consensual, and the court accepted it as such during sentencing. Tr. of Sentencing Hr'g at 4. However, the statute specifically provides that consent is not a defense. Minn. Stat. § 609.344(1)(b).

Petitioner argues that the Court erred when it construed a consensual statutory rape as a crime of violence for purposes of sentencing and argues that if his counsel had conducted "even a superficial review, he would have readily discovered that the prior conviction in this case did not qualify as a crime of violence." He cites several cases from other jurisdictions which arguably support his view, including U.S. Sacko, 178 F.3d 1 (1st Cir. 1999). However, his argument must necessarily fail, for two reasons.

First, the Eighth Circuit has specifically held that statutory rape, even if consensual, is a crime of violence for purposes of the sentencing guidelines. See U.S. v. Bauer, 900 F.2d 373, 374-75 (8th Cir. 1993); U.S. v. Rodriguez, 979 F.2d 138, 141 (8th Cir. 1992). In so doing, it has emphasized that such crimes "by their nature involve a substantial risk of harm." Rodriguez, 979 F.2d at 141. Further, the court explicitly held that it "matters not one whit whether the risk ultimately causes actual harm." Id. Regardless of the law in other circuits, the law controlling petitioner's sentence clearly and expressly provides that a consensual statutory rape, such as that for which petitioner was convicted, is considered a crime of violence. Id. Thus, even assuming the record showed that petitioner's counsel was entirely unaware of these cases, it cannot be said that his failure to raise them would have made any difference at all to the outcome, as required of one seeking to show ineffective assistance of counsel. Strickland, 466 U.S. at 686-87.

Second, the record actually tells a quite different story. Contrary to petitioner's assertion, the record clearly shows that his counsel had researched the issue and discussed it with the Court. In fact, the Court made a clear record on this matter, providing both the case name and citation for U.S. v. Bauer, discussed above, which it viewed as controlling. Tr. of Sentencing Hr'g at 6. The Court further explained that other circuits have taken different views, citing U.S. v. Kirk, 111 F.3d 390 (5th Cir. 1997). Id. at 8. The Court then asked whether either the prosecutor or petitioner's counsel had any objections to the Court's analysis of the issue. Id. at 9. Petitioner's counsel responded: "No, Your [sic] Honor. I just wanted to let you know I did spend quite a bit of time researching that and my understanding is the same as yours with respect to the Eighth Circuit decision." Id.

Thus, contrary to petitioner's assertion, his counsel did more than "a superficial review." Rather, he did the necessary research and discussed it with the Court, which made a detailed record on the subject. This clearly does not fall below an objective standard of reasonableness, as Strickland requires one alleging ineffective assistance of counsel to show. 466 U.S. at 686-87. Further, as discussed above, it would not be sufficient even if petitioner could show that counsel had not met this standard, because the error would have made no difference on the outcome of the case. Id. Therefore, petitioner cannot show ineffective assistance of counsel, and his waiver of the rights of appeal and collateral attack is effective.

For the reasons set forth above, the petitioner's motion is hereby DENIED.

IT IS SO ORDERED.

Dated this ___ day of August, 2000.

RODNEY S. WEBB, CHIEF JUDGE
UNITED STATES DISTRICT COURT