Case No. 1:04-cr-167-01.United States District Court, W.D. Michigan, Southern Division.
June 21, 2007
ORDER
RICHARD ENSLEN, District Judge
This matter is before the Court on Defendant Aaron Fraser’s Motion for Reconsideration of the Opinion and Final Order of May 14, 2007, which granted Plaintiff’s Motion to Dismiss and denied Defendant’s Motion to Vacate, Set Aside, or Correct a Sentence. Under Rule 7.4(a), Defendant must demonstrate that the Court’s Order suffers from a palpable defect, and must “also show that a different disposition of the case must result from a correction thereof.” W.D. MICH. LCIVR 7.4(a).
Defendant asserts the Court effectively ignored all the issues he presented. The Court finds this statement to be disingenuous as it exhaustively responded to each of the six allegations of ineffective assistance of counsel contained in Defendant’s § 2255 Motion.[1] To the extent Defendant argues his attorney erred by not objecting to the Court stating his book was one of “fact” in its
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limiting instruction to the jury, the Court finds no palpable error. This allegation of error was addressed by the Sixth Circuit Court of Appeals on direct appeal, holding
The district court referred to the summary and excerpts as `facts’ only after the government asked for the court to clarify for the jury that the summary was evidence. . . . In the [limiting] instruction, the court told the jury that both the summary and the excerpts were facts. The district court probably meant to refer to both as `evidence,’ not facts, but this error was not prejudicial. If the jury accepted that all of the excerpts were fact, it would be rightly puzzled because one excerpt refers to the book as fiction and the other as an autobiography. These two excerpts are inconsistent and cannot, therefore, both be `fact.’
United States v. Fraser, 448 F.3d 833, 843 (6th Cir. 2006). Further, the Sixth Circuit held the Court used the word “evidence” when repeating the limiting instruction and also quoted this Court as stating to the jury that “the defendant is on trial for the six counts in the Indictment not for writing a book.” Id.
In order to prevail on a claim of ineffective assistance, a defendant must show: (1) that his counsel made errors so serious that he “was not functioning as the `counsel’ guaranteed the defendant by the Sixth Amendment,” and; (2) “that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland v. Washington, 466 U.S. 668, 687 (1984). When counsel has overlooked or chosen to omit a possible argument, it does not give rise to a constitutionally deficient performance. Engle v. Isaac, 456 U.S. 107, 133-34 (1982). Defendant fails to show that his attorney’s failure to object to the Court’s misstatement fell below “reasonableness under prevailing professional norms.” Strickland, 466 U.S. at 688. It was reasonable not to object as the Court clarified its mistake when it repeated the limiting instruction and correctly stated the book was “evidence.” Moreover, Defendant has failed to establish any prejudice where the Sixth Circuit explicitly found there was none. Fraser, 448 F.3d at 843.
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Therefore, Defendant has failed to show a palpable error or that a different disposition of the case must result. Accordingly,
IT IS HEREBY ORDERED that Defendant Aaron Fraser’s Motion for Reconsideration (Dkt. No. 84) is DENIED.