CASE 0:21-cr-00108-PAM-TNL Doc.

544 Filed 11/13/23 Page 1 of 5

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RECEIVED
|eV i/lall

Nov 1 3 2023

CLEllK, Li.S.'JlSTi"tiCl COURT

ST. PA.UL. il/IN
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

UNITED STATES OF AMERICA,

Plaintiff-Respondent,

Case No. 0:21 -CR-1 08-PAM

DEREK MICHAEL CHAUVIN.

Defendant-Movant.
EVIDENTIARY HEARING ,$CANf'iFD
NO\/ I 3 2023

MOTION TO VACATE CONVICTION AND SENTENCE UruOCN ZA USC. SECTI

The Defendant, respectfully moves the Court under 28 U.S.C. Section 2255 for issuance of a writ of habeas corpus
subjiciendum that vaca_tes
ad /
lhe May 9,2l23judgment of conviction and sentence. ln support thereof, defendant declares under
the penalty of perjury, 28 U.S.C. Section 1746, the following particulars are true and correct:

JURISDICTIONAL STATEMENT

TheCourt's jurisdiction isfounded upon28 U.S.C. Section 2255per U.S. Constitution,Article l, Clauseg,
Sec2. Defendanthas
not previously filed any petitions or motions seeking collateral review and vacatur of the judgment.

STATEMENT OF THE FACTS

Per the advice of former counsel, Mr. Eric J. Nelson, on Decembe r 15,2021, defendant entered
into a binding plea agreement
under Fed' R. Crim. P. 1 1(c)(1)(c) that covers two violations 18 U.S.C. Section 2 and Sectio n
242, ano frolected a sentencing
cap of 300 months imprisonment concurrent to defendant's state sentence, respectively. ECF
No. 142.
on July 7,2022, the Court imposed a sentence of 252 months imprisonment followed by by 5 years supervised
release, while
reserving judgment on. restitution. On May 9,2023, the Court reduced the sentence to from
252 months to 24'months
imprisonment followed by 5 years of supervised release, and entered judgment with no restitution.
ECF No. 52g.
ln late-July 2023, defendant learned of the Court': Mgy g,2o23judgment for the first time
by way of a legal call regarding post-
conviction relief per newly discovered evidence showing actual frloJgJ]a.
yr_tlr_atlorryy, tur. eaui D. petirzzi, and immediately
filed a notice of appeal pursuant to Garza v. ldaho, 139-s. ct. 738, 744-745 (201g)- sde, nppeat
No. 23-2756.
In early-August 2023, Nelson filed a motion to withdraw from representing defendant
both in response to the notice of appeal in
this court and in the court of appeals. However, defendant filed a Respon-se tn opfosiiion
to certain parts of Nelson,s Motion To
Withdraw in the court of appeals because defendant sought to challenge the guilii ptea on
the appeal.
Before the Response In Opposition could arrive by U.s. Mail to the court of appeals,
on August 14,2023the court of appeals
dismissed the appeal as untimely' See, Appeal No. 23-2756, ld. After that oismissal,
defendant's Response In opposition was
filed and construed as a Petition For panel Rehearing by the court of appeals.

on September 19,2023, the court of appeals denied the so-construed petition for rehearing. This
motion follows.

GROUND ONE

Under Murray v' Carrier, 477 U.S. 478,496 (1980), a "miscarriage of justice" exists
as defendant is "actually innocent,, of
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causing the death of Mr. George Perry Floyd, Jr., and likewise "actually innocent" of depriving Floyd of his constitutional rights -
to be free from an unreasonable seizure and to be free from the use of unreasonable force by a police officer.

, Supporting Facts:

In February 2023, defendant began corresponding with Dr. William Schaetzel, D.O. M.S. FCAP, a forensic pathologist. Dr.
Schaetzel indicated that he had reviewed the Hennepin County Medical Examiner's Office Autopsy Report and NMS Labs
Toxicology Report dated May 25,2020, and came to the conclusion that defendant did not cause Floyd's death. See, Exhibit-A,
02123123 - O8114123 E-Mails.

On March 10,2023, Dr. Schaetzel attempted to contact Nelson after several unsuccessful attempts by defendant to reach
Nelson, both by e-mail and telephone, directly and through third parties, but Nelson never responded. Defendant had never
been provided a copy of the Autopsy and Toxicology Report by Nelson, the State of Minnesota, or the government prior to his
December 15,2021 guilty plea, and sought copies of both reports to corroborate Schaetzel's findings. Exhibit-A

On June 8,2023, Dr. Schaetzel forwarded a copy of his (3) Page explanation of Floyd's actual cause of death to co-defendants
Lane and Keung. Exhibit-A. On July 19,2023, Dr. Schaetzel further explained to defendant in writing why the Medical
Examiner's Autopsy Report is inaccurate according to its "body of the report". Exhibit-A.

On July 21,2023, defendant received an e-mail from Dr. Paul Haney confirming that the Medical Examiner's Report omitted
Floyd's sickling and paraganglioma conditions, and that "hypoxia was not present before death because of the lack of sickling
[and] [t]here is no clear cut evidence for asphyxia as well as evidence of no major or minor trauma about the neck. There is
clear evidence that subsequent testing to further rule out other causes were not done." Exhibit-A.

In late-July 2023, defendant received a copy of the Autopsy (Exhibit-B) and Toxicology Report (Exhibit-C) and the Minneapolis
Police Department (MPD) Use of Force, 5-300 Policy (Exhibit-D) for the first time from defenddnt's state appellate counsei, Mr.
Wif iam F. Mohrman, per defendant's July 19,2023 request for those documents. Exhibit-A.
f

On August 14,2023, defendant requested Dr. Schaetzel to produce any evidence that he contacted Nelson during the state
court trial to provide him with his expert conclusions and willingness to testify. On August 14,2023, Dr. Schaetzel provided
defendant with the exact email he tendered to Nelson, Hennepin County Judge Cahill, and district attorney Jung on April 17,
2021. Exhibit-A.

Prior to August 14,2023, Nelson never informed defendant of Schaetzel's communications at any time whatsoever. That is,
Schaetzelexpressed in writing his willingness to testify as a defense witness to the conclusions he made regarding the actual
cause of death, and Nelson did not even notify defendant of Schaetzel's existence or allow defendant to make an informed
decision on whether to call Schaetzel as a defense witness or to plead guilty in this case.

Prior to late-July 2023, Nelson never provided defendant with a copy of the MPD, Use of Force, 5-300 policy, which shows
defendant correctly performed the Conscious Neck Restraint and Maximal Restraint Technique on Floyd puisuant to Section 5-
311,5-316. See Exhibit-D. Specifically, "[t]he subject is placed in a neck restraintwith intentio controljand notto renderthe
subject unconscious, by only applying light to moderate pressure." Exhibit-D, ld. at 5-311; accord S-316.

Had defendant been provided Dr. Schaetzel's and Dr. Haney's conclusions (Exhibit-A), the Autopsy Report (Exhibit-B),
Toxicology Report (Exhibit-C), and the MPD Use of Force, 5-300 Policy (Exhibit-D) prior to his D'eiemb,er 15,2021guiity plea,
defendant would not have pled guilty, and would have insisted on going to trial. That is, had Nelson not withheld thJab6v'e
stated Exhibits from defendant while simultaneously advising CetenOant to accept the plea agreement, the outcome of the
proceeding would be drastically different in this case.

ARGUMENT AND POINTS OF LAW (GROUND ONE)

' It is well established that "[w]hen a criminal defendant has solemnly admitted in open court that he is in fact guilty of
the offense
with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights
that
--
occuned prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty pf OV
showing that the advice he received from counsel was not within the standards set forth in McMann." Tollett v. Henderso "i i, 4ll
u.s.258, 267 (1973).

Those standards "set forth in McMann" are in the main that "defendants facing felony charges are entiled tp the effective
assistance of competent counsel [and] if the right to counsel guaranteed by thi Constitution is to serve its purpose defendants
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cannot be left to the mercies of incompetent counsel, and that judges should strive to maintain proper standards of performance
by attomeys who are representing defendants in criminal cases in their courts." McMann v. Richardson, 3gZ U.S. 75g. 271
(1e70).

Moreover, "the plea is more than an admission of past conduct; it is the defendant's consent that judgment of conviction may be
entered without a trial - a waiver of his right to trial before a jury or a judge. Waivers of constitutional iights not only must be
voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstinces and likelv
consequences." Brady v. United States, 397U.S. 742,748 (1970).

Therefore, "if a defendant's guilty plea is not equally voluntary and knowing, it has been obtained in violation of due process and
is therefore void. Moreover, because a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be
truly voluntary unless the defendant possesses an understanding of the law in relation to the facts ... Requiring this examination
of the relation between the law and facts the defendant admits having committed is designed to protect a defendant who is in
the position of pleading voluntarily with an understanding of the nature of the charge but without realizing that his conduct does
not actually fall within the charge." McCarthy v. United States, 394 U.S. 459, 466-467 (1969).

Next, in order to demonstrate prejudice where, as here, defendant challenges the validity of his guilty plea, defendant must
show "that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have
insisted on going to trial." Hill v. Lockhart,474 U.S. 52, 59 (1985). And, "[a] reasonable probability is a proOaOitity sufficient to
undermine confidence in the outcome." Cullen v. Pinholster, 131 S. Ct. 1388, 14Og (2011)(citing-StricftanO v. Wishington,466
u.s. 668, 6e4 (1e84)).

Here, defendant has shown actual innocence because "in light of all the evidence" - "it is more likely than not that no
reasonable juror would have convicted him," Schlup v. Delo, 513 U.S. 298,327-328 (1995), knowing that Floyd,s
paraganglioma, sickling, and toxicology were his actual cause of death. No reasonable juror would have convicted defendant
knowing the actual cause of death as well as the fact that defendant performed the Conscious Restraint Technique and
Maximal Restraint Technique in accordance with MPD Use of Force, 5-300, ld. at 5-31 1. S-316.
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GROUND TWO

Under Gaza v. ldaho, 139 S. Ct. 738, 744-745 (2019), Nelson performed unconstitutionally deficient by failing to file a direct
appeal to "challenge the Government's power to criminalize [defendant's] (admitted) conduct
[to] thereby call into question the
Government's power to constitutionally prosecute him" under Class v. United States, 138 S. it.7ga, g0-O (2018), and thus
caused the prejudice of depriving defendant of a vacatur and/or reversal of his convictions and sentence on constitutional
grounds by the court of appeals.

Supporting Facts:

Between December 15,2021 - May 25, 2023, defendant consistently and adamantly expressed to Nelson that extensive
probable cause of Floyd's criminal activity existed according to eyewitnesses at the scene, video surveillance, cell phone,
and
body cam footage. See, Exhibit-E. Nelson did not file a direct appeal or any briefing in an appeal challenging the
constitutionality of the
9larges brought against defendant on Fifth Amendment Due Process Clause grornOi. See, ECF No.
142 - 529; and, Appeal No. 23-2756, ld. As a result, defendant's convictions and sentence remain in ptace.

ARGUMENT AND pOtNTS OF LAW (GROUND TWO)

The constitutionality of th_e_charges brought against defendant for depriving Floyd of his right to be free from a purportedly
unreasonable seizure, ECF No. 1, ld., is patently dubious. Specifically, published precedent existed for Nelson to iely on-in
a
constitutional challenge to the prosecution showing that the independent probable cause of Floyd's c1minal activity
prosecuting defendant for an "unreasonable seizure". frecluded

ln United States v. Blakeney, 876 F.3d 1126 (8th Cir.2017), the court of appeals took up this identicalquestion, and concluded
that a defense of independent probable cause could only be defeated "[w]iren an officer, knowing a wairant to be illegal,
groundfess, or fictitious, willfully uses his authority, and/or such an instrument to arrest and incarcerate the accused."-ld
. at 1132
(quoting United States v. Ramey, 336 F.2 512,514 (4th Cir. 1964)).

Here, it is undisputed that probable cause of Floyd's criminal activity existed both prior to, and after, defendant arrived
to the
scene. However, becaUse of the sensationalism created by the media, political, and social pressures it appears the government
simply bootstrapped an "unreasonable seizure" to an "unreasonable use of force" without addressing the 6asis for piobable
cause at the outset, and during the course of, the Floyd incident.

Furthermore, the criminal prosecution of state actors for causing an unreasonable seizure risks violating the constitutional
principle that criminal laws must give fair warning of what they prohibit. United States v. Lanier, 520
U.5. 25g,266 (19g7).
lndeed, "due process coult from applying a novel construction of a criminal statue to conduct that neither the statute nor
larg
any prior judicial decision has fairly disclosed to be within its scope." ld. at 266.

The unconstitutionality of this prosecution for an unreasonable seizure is glaring because it bodes the questions:

ls the government now free to charge every police officer criminally under 18 u.s.c. section 242 every time a motion to
suppress evidence is granted because of an unreasonable seizure?

ls the government free totypass sovereign immunity under the Eleventh Amendment and jump
straight to criminal liability
under 18 U.S.C. Section 242 without affording police officers their qualified immunity and dby in coudin proceeding
a civil
beforehand?

It should have been unequivocally clear to N.elson that the charges here imposed criminal liability
for conduct which, ,,in the light
of pre-existing law, the unlawfulness under the Constitution is apparent." Lanier, ld. at2T1-272.

Accordingly, despite Blakeney and Class, no appealwas filed by Nelson to raise these important issues. Nelson
and the
government may complain that the appellate.waiver in the plea agreement prohibited an appeal
and thus this ground lacks
merit because any appeal might have been dismissed. However,blass explicitly held defendant could "challenge
the I
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Government's power to criminalize [defendant's] (admitted) conduct [and] [a] guilty plea does not bar a direct appeal in these
circumstances." Class, ld. at 805. Nelson's failure to appeal caused the prejudice of the convictions and sentence.

RELIEF REQUESTED

Defendant respectfully requests issuance of a writ of habeas corpus ad subjiciendum that vacates the May 9,2l23judgment,
ECF No. 529, and orders a new trial where defendant may file dispositive pretrial motions and/or subsequently proceed to a jury
trial. Alternatively, defendant respectfully requests an evidentiary hearing and/or appointment of counsel (preferably Mr. William
F. Mohrman due to his familiari$ of the case), or any other relief the Court may deem fair and just.

ONCLUSION

Wherefore defendant prays the Court grants this motion and the relief requested for the foregoing reasons.

Respectful ly Su bgr itted,

Xh \
oate, I I ,07rLat3
Mr. Derek Michael Chauvin