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Jurisdiction: Alabama Southern District Court
Decision Date: 3/5/2012

STATES

                                                                                                                                                                                                                                                                                                                                                                                                                            FEDERAL

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Schmitz v. United States Schmitz v. United States (S.D. Ala., 2012)

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        CHARLENE SCHMITZ, Petitioner,
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        v.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        UNITED STATES OF AMERICA, Respondent.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        CIVIL ACTION 10-500-KD-MCRIMINAL ACTION 07-365-KD-M

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Dated: March 5, 2012

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        CHARLENE SCHMITZ, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        CIVIL ACTION 10-500-KD-MCRIMINAL ACTION 07-365-KD-M

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Dated: March 5, 2012

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        ORDER

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                This action is before the Court on Petitioner Charlene Schmitz's motion and amended motion to vacate, set aside or correct her sentence pursuant to 28 U.S.C. § 2255 (Docs. 127 & 133), memoranda in support (Docs. 136 & 140), the Government's response in opposition (Doc. 144), Petitioner's reply (Doc. 148), the Recommendation of the Magistrate Judge (Doc. 155), and Petitioner's objections thereto (Doc. 156 & 157).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                After due and proper consideration of the pleadings, Petitioner's objections, all portions of this file deemed relevant to the issue raised, and a de novo determination of those portions of the Recommendation to which objection has been made, the Recommendation of the Magistrate Judge made under 28 U.S.C. § 636(b)(1)(B) is ADOPTED as modified as follows, as the opinion of this Court:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                1) That portion of the Recommendation spanning pages 26-27 and beginning with "This Court has reviewed the trial transcript referenced by Petitioner" and ending with "Petitioner's attorney did not render ineffective assistance in failing to object to this line of questioning, " wherein the Magistrate Judge finds that the Government's cross-examination of Petitioner did not violate Doyle v. Ohio, 426 U.S. 610 (1976), because the prosecuting attorney's

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 2

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        questions did not pertain to Petitioner's silence but rather to the silence of Petitioner's daughter, is STRICKEN and REPLACED with the following:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 3

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 4

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                2) That portion of the Recommendation spanning pages 29-30 and beginning with "The Court notes that business records are admissible pursuant to Fed. R. Evid. 803(6)" and ending with "it was not ineffective for her attorney not to object to it, " wherein the Magistrate Judge finds that certain chat conversations were admissible as business records, is STRICKEN and REPLACED with the following:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                It is ORDERED that Petitioner's Motion to Vacate and Amended Motion to Vacate (Docs. 127 & 133) be DENIED and that this action be DISMISSED. It is FURTHER ORDERED that Petitioner is not entitled to a certificate of appealability and, therefore, not entitled to appeal in forma pauperis.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                _____________        KRISTI K. DuBOSE        UNITED STATES DISTRICT JUDGE

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        --------

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Notes:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 The trial transcript indicates that the prosecutor did not inquire into why Petitioner failed to tell the police about her daughter's confession; rather, the prosecutor asked why Petitioner did not physically present Tanya to the authorities so that Tanya herself could exculpate her mother:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Q. Okay. You knew there was computer evidence against you? A. Yes. Q. And your daughter told you she was responsible for that? A. Yes. Q. And that was back in June, the end of June? A. Correct. Q. So you immediately took her to the police, right? A. I did not. Q. You did not? That would have exonerated you, right? A. I don't know if it would have or not. Q. And you took it to the DA? A. No, ma'am. Q. Because that would have exonerated you, right? A. I do not know.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        (Doc. 104, Tr. 326-27).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 The protections of Doyle extend only to a Mirandized criminal defendant, not to third parties such as Tanya. See United States v. Johns 734 F.2d 657 665 (11th Cir. 1984) (policy reasons underlying Doyle do not apply to cross-examination of non-defendant); Brown v. Smith No. 84 Ci v. 1652 (WCC), 1986 WL 2767, at *7 (S. D. N.Y. Feb. 26, 1986) ("Unlike impeachment of a criminal defendant on the basis of his post-arrest, post-Miranda warning silence, . . . there was no fundamental unfairness in questioning the witness about his prior silence. ").

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        --------

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        --------

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Notes:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 The trial transcript indicates that the prosecutor did not inquire into why Petitioner failed to tell the police about her daughter's confession; rather, the prosecutor asked why Petitioner did not physically present Tanya to the authorities so that Tanya herself could exculpate her mother:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        (Doc. 104, Tr. 326-27).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 The protections of Doyle extend only to a Mirandized criminal defendant, not to third parties such as Tanya. See United States v. Johns 734 F.2d 657 665 (11th Cir. 1984) (policy reasons underlying Doyle do not apply to cross-examination of non-defendant); Brown v. Smith No. 84 Ci v. 1652 (WCC), 1986 WL 2767, at *7 (S. D. N.Y. Feb. 26, 1986) ("Unlike impeachment of a criminal defendant on the basis of his post-arrest, post-Miranda warning silence, . . . there was no fundamental unfairness in questioning the witness about his prior silence. ").

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Cited By
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Cites
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        DOYLE V. OHIO, 426 U.S. 610, 48 L. Ed.2d 91 (1976)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Decision Date: 1976-06-17 Citations: 35
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