Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Mullins

United States District Court, W.D. Oklahoma

December 11, 2017

UNITED STATES OF AMERICA, Plaintiff-Respondent,
v.
DENNIS M. MULLINS, Defendant-Movant.

          ORDER

          VICKI MILES-LaGRANGE UNITED STATES DISTRICT JUDGE.

         Defendant-Movant Dennis M. Mullins (“Mullins”), a federal prisoner, filed a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody on February 16, 2017. On March 2, 2017, plaintiff-respondent United States of America filed its response to Mullins' motion. On June 5, 2017, Mullins filed his reply.

         I. Background

         On November 12, 2013, a grand jury returned an Indictment against Mullins, charging him with receipt and transportation of child pornography. On January 29, 2014, Mullins pled guilty to both counts. On September 17, 2014, the Court sentenced Mullins to 240 months of imprisonment. Mullins appealed his sentence to the Tenth Circuit Court of Appeals. In an unpublished opinion issued December 18, 2015, the Tenth Circuit affirmed Mullins' sentence. See United States v. Mullins, 632 F. App'x 499 (10th Cir. 2015). Mullins filed a Petition for Writ of Certiorari, which was denied on April 18, 2016.

         II. Discussion

         Mullins asserts the following thirteen grounds in support of his § 2255 motion: (1) ineffective assistance of counsel based upon failing to interview Rhonda G. Mullins; (2) ineffective assistance of counsel based upon failing to interview Angela Mullins; (3) ineffective assistance of counsel based upon failing to interview Matthew T. Whitefield; (4) ineffective assistance of counsel based upon failing to interview Denise Lynn; (5) ineffective assistance of counsel based upon failing to interview Judy Bowermaster; (6) ineffective assistance of counsel based upon failing to investigate the allegations made by Julie Mullins; (7) ineffective assistance of counsel based upon failing to ensure the PSR was correct; (8) ineffective assistance of counsel based upon coercing Mullins into a plea agreement[1]; (9) ineffective assistance of counsel based upon failing to argue for credit for the ten months served in the pretrial center; (10) ineffective assistance of counsel based upon failing to ensure that the § 2G2.2(b)(4) enhancement was properly supported; (11) ineffective assistance of counsel based upon failing to ensure that the § 2G2.2(b)(2) enhancement was properly supported; (12) ineffective assistance of counsel based upon failing to obtain available evidence to present on appeal regarding the pattern of activity enhancement; and (13) the effect of United States Sentencing Guidelines Amendment 801 on the enhancements to Mullins' sentence.

         A. Ineffective assistance of counsel (Grounds 1-12)

         1. The law

         To prevail on a claim of ineffective assistance of counsel, Mullins must first show:

his counsel's performance was constitutionally deficient, i.e., it fell below an objective standard of reasonableness. To make this showing, [movant] must overcome a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance that might be considered sound trial strategy. Second, he must demonstrate there is a reasonable probability that, but for counsel's errors, the outcome of the proceedings would have been different.

Moore v. Reynolds, 153 F.3d 1086, 1096 (10th Cir. 1998). See also Strickland v. Washington, 466 U.S. 668 (1984). A court is not required to address both components of the test if the movant makes an insufficient showing on one, and, thus, “a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” Strickland, 466 U.S. at 697. To prove that counsel's performance was constitutionally deficient, a movant must show that the omissions of counsel fell “outside the wide range of professionally competent assistance.” Id. at 690. Further, a court's scrutiny of the adequacy of counsel's performance must be strongly deferential and “indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. at 689. Finally, courts should evaluate the reasonableness of the challenged conduct from counsel's perspective at the time of the alleged error, not in hindsight. See Id.

         2. Factual background

         In the presentence investigation report (“PSR”), Mullins was assessed a five-level guideline enhancement pursuant to United States Sentencing Guidelines § 2G2.2(b)(5) for engaging in a “pattern of activity involving the sexual abuse or exploitation of a minor” because the “investigative reports reflect that the defendant's two adult daughters and adult step-son reported he sexually abused them when they were minors.” PSR [docket no. 31] at ¶ 58. Mullins' counsel objected to the application of this enhancement and to the underlying facts. Prior to sentencing, Mullins' counsel filed a twenty-four page sentencing memorandum and a supplemental sentencing memorandum.

         At the sentencing, the United States presented four exhibits: (1) Canadian County Sheriff's Deputy Doug Gerten's report reflecting that when the search warrant was executed Mullins' wife reported that Mullins' daughters, Julie Mullins and Denise Lynn, had made sexual abuse allegations against him, that DHS had investigated but nothing happened, and that her son, Matthew Whitefield, had confronted Mullins about what he had done to him; (2) a signed, sworn statement from Denise Mullins (Lynn) alleging that her father sexually abused her; (3) another report of Deputy Gerten memorializing his interview with Mr. Whitefield, in which Mr. Whitefield allegedly stated that Mullins sexually abused him[2]; and (4) an audio-recording of Deputy Adam Flowers' interview of Mullins' eldest daughter, Julie Mullins, in which Ms. Mullins alleges that Mullins sexually abused her when she was a child. In addition, the United States presented the testimony of Deputy Gerten. On cross-examination, Mullins' counsel elicited that Denise Mullins later retracted part of her statement. Mullins' counsel further argued that the sexual abuse allegations had not been corroborated. At the sentencing, Mullins' counsel also presented nine sentencing letters from Mullins' friends and family, including letters from Mullins' wife, Mr. Whitefield, Mullins' daughter, Angela Mullins; and Mullins' sister, Judy Bowermaster. Finally, at the sentencing, Mullins addressed the Court.

         3. Failure to interview (Grounds 1-5)

         Mullins asserts that his counsel was ineffective by failing to interview Rhonda G. Mullins, Angela Mullins, Matthew T. Whitefield, Denise Lynn, and Judy Bowermaster.[3] Mr. Whitefield is Mullins' step-son. Based upon a statement made by Mullins' wife, investigators interviewed Mr. Whitefield. During the interview, Mr. Whitefield stated that when he was in the third grade, Mullins started showing him pornography, Mullins demonstrated masturbation, and eventually masturbated Mr. Whitefield. See Government's Exhibit 3, October 23, 2013 report of Deputy Gerten, admitted into evidence at Mullins' sentencing. Additionally, in the sentencing letter Mr. Whitefield wrote, he states that he has forgiven Mullins. In his current affidavit submitted with Mullins' § 2255 motion, Mr. Whitefield states that he retracts his previous statement given to Deputy Gerten; however, he does not specifically state that Mullins did not abuse him.

         Having carefully reviewed the parties' submissions and the case file, and evaluating the reasonableness of Mullins' counsel's failure to interview Mr. Whitefield from counsel's perspective at the time of the alleged error, and not in hindsight, the Court finds Mullins has not shown his counsel's performance was constitutionally deficient. Specifically, the Court finds Mullins has not shown that his counsel's failure to interview Mr. Whitefield fell outside the wide range of professionally competent assistance. Further, because Mullins has failed to show that his counsel's performance was constitutionally defective, the Court need not examine the prejudice prong set forth in Strickland. Accordingly, the Court finds that Mullins' counsel was not ineffective by failing to interview Mr. Whitefield.

         Regarding Mullins' counsel's failure to interview the other family members, the Court, in light of its previous finding regarding the failure to interview Mr. Whitefield, finds that Mullins has not shown that he suffered any prejudice as a result of his counsel's failure to interview these other family members. On appeal, the Tenth Circuit held that the evidence regarding Mr. Whitefield “alone is sufficient to support the pattern-of-activity enhancement.” Mullins, 632 F. App'x at 507. Thus, even if Mullins' counsel rendered constitutionally deficient performance by failing to interview Rhonda G. Mullins, Angela Mullins, Denise Lynn, and Judy Bowermaster regarding the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.