Armstrong v. United States of America

Filing 9

ORDER re 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) (Criminal Action CR11-60-LRR) filed by Suzanne Lynn Armstrong. Except for the failure to file a notice of appeal claim, the movant's claims are dismissed. Hearing set for 11/19/ 2013 at 10:30 AM before Chief Judge Linda R Reade. The sole issue at the hearing will be the movants failure to file a notice of appeal claim. The movant is directed to participate in the hearing via telephone. Additionally, the clerks office is directed to appoint CJA counsel to represent the movant. Signed by Chief Judge Linda R Reade on 10/21/2013. (NEF and order mailed to Petitioner; eCJA Administrator) (pac)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION
SUZANNE LYNN ARMSTRONG,
Movant,

No. C12-24-LRR
No. CR11-60-LRR

vs.

ORDER

UNITED STATES OF AMERICA.
____________________
This matter appears before the court on Suzanne Lynn Armstrong’s (the “movant”)
motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 (“motion”)
(civil docket no. 1). The movant filed the motion on February 16, 2012. On February 28,
2013, the court, among other things, directed the government to brief the claims that the
movant included in the motion. See February 28, 2013 Order (civil docket no. 3). On
March 26, 2013, the movant’s counsel filed an affidavit (civil docket no. 4). On April 25,
2013, the government filed a resistance to the motion (civil docket no. 5). The movant did
not file a reply. The court now turns to consider the movant’s motion.1
A district court is given discretion in determining whether to hold an evidentiary
hearing on a motion under 28 U.S.C. § 2255. See United States v. Oldham, 787 F.2d 454,
457 (8th Cir. 1986). In exercising that discretion, the district court must determine whether
the alleged facts, if true, entitle the movant to relief. See Payne v. United States, 78 F.3d

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In the motion, the movant asserts that she was denied effective assistance of
counsel because counsel: (1) failed to file a timely notice of appeal; (2) failed to challenge
drug quantity or purity at sentencing; (3) underestimated the sentencing range that the
movant faced; and (4) had previously been convicted of two drug crimes, including a
felony drug charge.
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343, 347 (8th Cir. 1996). “Accordingly, [a district court may summarily dismiss a motion
brought under 28 U.S.C. § 2255 without an evidentiary hearing] if (1) the . . . allegations,
accepted as true, would not entitle the [movant] to relief, or (2) the allegations cannot be
accepted as true because they are contradicted by the record, inherently incredible, or
conclusions rather than statements of fact.” Engelen v. United States, 68 F.3d 238, 240-41
(8th Cir. 1995) (citations omitted); see also Delgado v. United States, 162 F.3d 981, 983
(8th Cir. 1998) (stating that an evidentiary hearing is unnecessary where allegations, even
if true, do not warrant relief or allegations cannot be accepted as true because they are
contradicted by the record or lack factual evidence and rely on conclusive statements);
United States v. Hester, 489 F.2d 48, 50 (8th Cir. 1973) (stating that no evidentiary hearing
is necessary where the files and records of the case demonstrate that relief is unavailable
or where the motion is based on a question of law). Stated differently, the court can
dismiss a 28 U.S.C. § 2255 motion without a hearing where “the files and records of the
case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b);
accord Standing Bear v. United States, 68 F.3d 271, 272 (8th Cir. 1995) (per curiam).
The court concludes that it is able to resolve the movant’s claims, other than her
claim that counsel was ineffective for failing to file a notice of appeal, from the record. See
Rogers v. United States, 1 F.3d 697, 699 (8th Cir. 1993) (holding that “[a]ll of the
information that the court needed to make its decision with regard to [the movant’s] claims
was included in the record” and, therefore, the court “was not required to hold an
evidentiary hearing” (citing Rule Governing Section 2255 Proceedings 8(a) and United
States v. Raddatz, 447 U.S. 667, 674 (1980))). The evidence of record conclusively
demonstrates that the movant is not entitled to the relief sought in each claim, other than
her claim that counsel was ineffective because he failed to file a notice of appeal.
Specifically, it indicates that the movant’s assertions in each claim, other than her claim
regarding counsel’s failure to file a notice of appeal, fail because counsel represented the

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movant in a manner that comports with the requirements of the Sixth Amendment. As
such, the court finds that there is only a need to conduct an evidentiary hearing on the
movant’s claim that counsel was ineffective due to his failure to file a notice of appeal and
the court shall reserve ruling as to that claim until after it holds the evidentiary hearing.
With respect to the merits of the movant’s other claims, the court deems it
appropriate to deny the motion for the reasons stated in the government’s resistance. The
government’s brief adequately sets forth the law that is applicable to the facts in the
movant’s case.

Specifically, the government correctly concluded that the movant’s

ineffective assistance of counsel claims are without merit.
Moreover, the court thoroughly reviewed the record and finds that dismissing the
majority of the movant’s claims comports with the Constitution, results in no “miscarriage
of justice” and is consistent with the “rudimentary demands of fair procedure.” Hill v.
United States, 368 U.S. 424, 428 (1962); see also United States v. Apfel, 97 F.3d 1074,
1076 (8th Cir. 1996) (“Relief under 28 U.S.C. § 2255 is reserved for transgressions of
constitutional rights and for a narrow range of injuries that could not have been raised on
direct appeal and, if uncorrected, would result in a complete miscarriage of justice.” (citing
Poor Thunder v. United States, 810 F.2d 817, 821 (8th Cir. 1987))). The movant’s claims
do not justify relief.
The court concludes that the movant knowingly and voluntarily pleaded guilty
pursuant to an agreement that she and the government entered into in May of 2011. See
Walker v. United States, 115 F.3d 603, 604 (8th Cir. 1997) (“[A] valid guilty plea
forecloses an attack on a conviction unless ‘on the face of the record the court had no power
to enter the conviction or impose the sentence.’” (quoting United States v. Vaughan, 13
F.3d 1186, 1188 (8th Cir. 1994))); United States v. Jennings, 12 F.3d 836, 839 (8th Cir.
1994) (a voluntary and unconditional guilty plea waives all defects except those related to
jurisdiction); see also United States v. Seay, 620 F.3d 919, 921-23 (8th Cir. 2010) (making

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clear that a challenge based on a court’s statutory or constitutional power to adjudicate a
case survives a defendant’s guilty plea). Further, the court appropriately sentenced the
movant.

The court’s application of the advisory sentencing guidelines violates no

constitutional right. See United States v. Villareal-Amarillas, 562 F.3d 892, 898 (8th Cir.
2009) (observing that a sentencing judge is only constrained by the statutory maximum and
minimum for an offense and the factors included in 18 U.S.C. § 3553(a)); United States v.
Garcia-Gonon, 433 F.3d 587, 593 (8th Cir. 2006) (finding challenges based on the Fifth
Amendment and the Sixth Amendment to be unavailing because sentence-enhancing facts
need only be found by a preponderance of the evidence and uncharged relevant conduct
may be considered so long as the sentence does not exceed the statutory maximum for the
offense).
In addition, the court concludes that the conduct of counsel fell within a wide range
of reasonable professional assistance, Strickland v. Washington, 466 U.S. 668, 689 (1984),
and counsel’s performance did not prejudice the movant’s defense, id. at 692-94. Thus,
the movant has failed to establish an ineffective assistance of counsel claim. See id. at 687
(holding that, to establish an ineffective assistance of counsel claim, the movant must first
“show that counsel’s performance was deficient” and then “show that the deficient
performance prejudiced the defense”); see also United States v. Taylor, 258 F.3d 815, 818
(8th Cir. 2001) (“To establish ineffective assistance of counsel[, the movant] must
demonstrate: (1) [her] attorney’s performance was deficient . . . and (2) [s]he suffered
prejudice by showing that, absent counsel’s ineffective assistance, there is a reasonable
probability that the result of the proceeding would have been different.”).
In the motion, the movant makes several specific claims to support her contention
that the court should vacate, set aside or correct her sentence pursuant to 28 U.S.C. § 2255.
First, the movant claims that counsel was ineffective for failing to file a notice of direct
appeal. To be entitled to relief for failure to file an appeal, the movant “must have made

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‘manifest’ her desire to appeal by expressly instructing her attorney to appeal.” Nupdal v.
United States, 666 F.3d 1074, 1076 (8th Cir. 2012) (quoting Barger v. United States, 204
F.3d 1180, 1182 (8th Cir. 2000)). Here, the movant alleges that she told counsel to file
an appeal and he failed to do so. However, counsel states in his affidavit that, once he
informed the movant that the court’s “decision not to vary [downward] was essentially
unreviewable on appeal[,] [the movant] instructed [him] not to file the appeal.” Affidavit
at 3. Given their conflating statements, the court finds that it is necessary to hold a hearing
as to this claim and shall reserve ruling on it. See Estes v. United States, 883 F.2d 645,
649 (8th Cir. 1989).
Second, the movant argues that counsel was ineffective because he failed to challenge
drug quantity and purity. With respect to drug purity, the court finds that the movant’s
argument is without merit because purity was not at issue at sentencing, as the movant
pleaded guilty to possession of pseudoephedrine, knowing or with reasonable cause to
believe it would be used to manufacture methamphetamine. Thus, there is no colorable
argument that counsel could have made with respect to drug purity. With respect to drug
quantity, the movant signed a plea agreement stipulating to possession of “at least 400
grams of pseudoephedrine.” Plea Agreement (criminal docket no. 26) at 3 (emphasis
omitted). Thus, because the movant stipulated to drug quantity, counsel had no basis to
challenge drug quantity at sentencing. The record indicates that the movant understood the
nature of the plea agreement. See id. at 1-2. Furthermore, the movant must satisfy the
two-part Strickland test to successfully challenge the voluntariness of a guilty plea by
alleging ineffective assistance of counsel. Hill, 474 U.S. at 56-58. The movant has failed
to prove either deficient performance or prejudice. In his affidavit, counsel asserts that he
calculated the relevant drug quantity attributable to the movant as 429.84 grams. Affidavit
at 3. In its resistance, the government claims that it calculated the same drug quantity.
Thus, because the movant stipulated to a drug quantity in line with that which counsel

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calculated as appropriate, the movant has failed to show that counsel’s “advice ‘[fell
outside] the range of competence demanded of attorneys in criminal cases.’” Hill, 474 at
56 (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)). Additionally, the movant
has not shown that she would have insisted on going to trial or that her sentence would have
been different had counsel objected to drug quantity and, thus, the movant has failed to
show prejudice as to this claim. Accordingly, the court finds that this claim is without
merit.
Third, the movant argues that counsel was ineffective because he underestimated the
movant’s sentencing range. However, in his affidavit, counsel asserts that the guideline
range that he discussed with the movant was consistent with that provided for in the
movant’s Presentence Investigation Report.

The court finds counsel to be credible.

Furthermore, the movant has failed to show prejudice as to this claim because she has not
established that there is a reasonable probability that, but for counsel’s allegedly deficient
performance, she would not have pleaded guilty but instead would have gone to trial. See
Hill, 474 U.S. at 59. Accordingly, the court finds that this claim is without merit.
Fourth, the movant argues that counsel was ineffective because he has had drug
convictions himself. The movant presents no argument regarding how counsel’s drug
convictions resulted in him providing her with inadequate assistance or how it prejudiced
her. See Strickland, 466 U.S. at 687. In light of the record, the court finds that this claim
is without merit. See Fowler v. Parratt, 682 F.2d 746, 750 (8th Cir. 1982) (holding that,
where counsel suffers from substance abuse, a movant must still show prejudice to establish
ineffective assistance of counsel).
In sum, all of the alleged errors, except the failure to file a notice of appeal claim
as to which the court has reserved ruling, do not warrant relief under 28 U.S.C. § 2255.
The majority of the movant’s claims are without merit. Accordingly, they shall be
dismissed. With respect to the remaining failure to file a notice of appeal claim, the court

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deems it appropriate to conduct an evidentiary hearing.2
IT IS THEREFORE ORDERED:
(1)

Except for the failure to file a notice of appeal claim, the movant’s claims
are dismissed.

(2)

A hearing is scheduled to commence at 10:30 a.m. central time on Tuesday,

November 19, 2013. The sole issue at the hearing will be the movant’s failure to file a
notice of appeal claim. The movant is directed to participate in the hearing via telephone.
Additionally, the clerk’s office is directed to appoint CJA counsel to represent the movant.
Appointed counsel is directed to notify the court of the name of the movant’s counselor and
the telephone number where he or she can be reached at least five days prior to the
evidentiary hearing. The clerk’s office is directed to send a copy of this order to the
movant.
DATED this 21st day of October, 2013.

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Before proceeding with her failure to file a notice of appeal claim, the movant
should fully discuss with appointed counsel the record and the fact that she will be required
to testify under oath.
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