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United States v. Myers

July 23, 2010


The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge


This Court has recently been required to issue a number of memorandum orders as the result of several filings by Ernest Myers ("Myers")--filings that gave the initial appearance of efforts to bring a 28 U.S.C. §2255 ("Section 2255") motion challenging his conviction and sentence.*fn1 When Myers then disavowed that purpose, this Court took appropriate steps to avoid the prospect that some later filing of a motion that would actually be intended as a Section 2255 challenge could be faced with its being characterized as a "second or successive motion," carrying the legal baggage imposed on such a multiple effort.*fn2 Indeed, just two days ago this Court issued a memorandum order that rejected the most recent "show cause" motion referred to in n.2 as not having satisfied the requirements to qualify as a Section 2255 motion.

But now the mystery created by Myers' earlier submissions appears to have been solved. Yesterday (the day after issuance of the just-described memorandum order) this Court received from the Clerk's Office the Judge's Copy of a thick new filing by Myers that has employed the Section 2255 motion form provided by that office for use by persons convicted of federal offenses.*fn3

In any event, this Court has taken a preliminary look at Myers' turgid filing--33 pages of text interlaced with a like number of photocopies of excerpts from the transcript of his trial.*fn4

Although this Court has made no effort to be comprehensive in this respect, as would be the case if it were reaching a definitive ruling, a number of Myers' asserted 20 grounds for relief are patently without merit. Just one or two examples may be noted.

At page 2 of Myers' lengthy narrative, which he labels "Memorandum of Fact[s]," he states (copied verbatim):

INstead, Petitioner endured a trial where the following witnesse[s], Rodney Bew, and William Pruitte, were permitted to converse and plot with one another before testifying at trial: THis violated the sequestering rule 615, and was nothinh more than a sham on the court and the jury.

That assertion is not at all supported by the record (in fact, the testimony of both those witnesses at trial was exactly to the contrary, and Myers has no basis for calling that into question). Then Myers, id. goes on to state--again totally without support:

The attorney[s] for the government knew that both of the witnesse[s] perjured themselve[s] before the court and the jury, when they testified under oath.

Having advanced his assertions with nothing to support them but his own ipse dixit, Myers goes on to repeat his earlier requests in his "show cause" motions that polygraph tests should be administered not only to witnesses Bew and Pruitte but also to both Assistant United States Attorneys who handled the trial, Christopher Hotaling and Morris Pasqual.

But as already stated, this Court will not now attempt to parse Myers' other claims in depth. Because he has set out a number of assertions as to constitutionally inadequate representation by counsel,*fn5 for present purposes an answer to that charge is called for before it can be ruled upon--even though his claims of constitutionally inadequate representation by trial counsel Harris seems to gloss over the fact that the same lawyer pulled a rabbit out of the hat by obtaining a not guilty verdict on all but one count in the face of a great deal of adverse evidence.*fn6 But for present purposes, Myers' assertions will be taken at face value sufficiently to require a response.

Accordingly, as provided in Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts, the United States Attorney is ordered to file an answer (which may also include, in part, a motion or other response) on or before August 30, 2010. And because of the nature of Myers' assertions of constitutionally inadequate representation, attorney Harris is ordered to provide an appropriate submission within the same time frame. In that latter regard, Myers should be aware that charges of the type he has advanced carry a price: When the conduct of a criminal defense attorney is placed under attack as Myers has done, any attorney-client privilege that attached to the defense of the criminal action is "stripped away" (Edna Selan Epstein, The Attorney-Client Privilege ...

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