Ranzenberger v. United States of America
OPINION and Order denying in its entirety 1 Pro Se Motion to Vacate/Set Aside/Correct Sentence (2255) (Criminal Action CR16-42-MWB). This matter is dismissed in its entirety. No certificate of appealability will issue for any claim or contention in this case. Signed by Judge Mark W Bennett on 10/25/2017. (copy w/nef to Petitioner Ranzenberger) (des)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION
TELLY RAY RANZENBERGER,
No. C 17-09-MWB
(No. CR 16-42-MWB)
UNITED STATES OF AMERICA,
OPINION AND ORDER
MOTION PURSUANT TO 28 U.S.C.
On July 19, 2016, petitioner Telly Ray Ranzenberger pleaded guilty to conspiracy
to manufacture an unspecified quantity of methamphetamine mixture in violation of 21
U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846. At sentencing on November 30, 2016, I
granted Ranzenberger’s motion for a downward variance and sentenced Ranzenberger to
60 months of imprisonment.
On February 1, 2017, Ranzenberger filed a pro se document, which I construed
as a Motion Pursuant To 28 U.S.C. § 2255, challenging his conviction as
“multiplicitous” and alleging that his counsel was ineffective for failing to argue that
flaw. In an Initial Review Order, filed February 15, 2017, I concluded that summary
dismissal was not appropriate, directed the appointment of counsel for Ranzenberger, and
directed the respondent to file an answer or motion. The respondent filed an Answer on
April 12, 2017, and I set a briefing schedule on the merits of Ranzenberger’s claim. On
July 25, 2017, Ranzenberger’s court-appointed § 2255 counsel filed a Motion To
Withdraw with an “Anders brief,”1 explaining that counsel had been unable to find a way
to make an argument in support of Ranzenberger’s claims based on “multiplicity.” By
Order filed August 3, 2017, I granted Ranzenberger’s counsel leave to withdraw. On
August 25, 2017, the respondent filed its brief on the merits arguing that Ranzenberger’s
claims are procedurally defaulted and without merit.
As I have repeatedly explained, § 2255 provides as follows:
A prisoner in custody under sentence of a court established
by Act of Congress claiming the right to be released upon the
ground  that the sentence was imposed in violation of the
Constitution or laws of the United States, or  that the court
was without jurisdiction to impose such sentence, or  that
the sentence was in excess of the maximum authorized by law,
or  is otherwise subject to collateral attack, may move the
court which imposed the sentence to vacate, set aside or
correct the sentence.
28 U.S.C. § 2255(a). However, where an issue was raised, considered, and rejected on
the merits on direct appeal, “it may not be raised in a motion for post-conviction relief
under 28 U.S.C. § 2255 or § 2241.” United States v. Rhodes, 730 F.3d 727, 731 (8th
Cir. 2013). Also, where a claim was not raised on direct appeal, it is “procedurally
defaulted,” so it generally may not be raised in a § 2255 motion. Walking Eagle v.
United States, 742 F.3d 1079, 1082 (8th Cir. 2014).
A petitioner may overcome “procedural default” from failure to raise a claim on
direct appeal, however, if the petitioner establishes both “‘cause for the procedural
default and actual prejudice resulting from the error.’” Id. (quoting United States v.
Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996), in turn citing United States v. Frady, 456
U.S. 152, 167-68 (1982)). “‘Absent unusual circumstances, a showing of ineffective
An “Anders brief” concedes the absence of issues with any merit, pursuant to
Anders v. California, 386 U.S. 738 (1967).
assistance of counsel satisfies both cause and prejudice.’” Id. (quoting Apfel, 97 F.3d at
1076)). Indeed, “ineffective assistance of counsel” claims are not procedurally defaulted
when brought for the first time pursuant to § 2255. Massaro v. United States, 538 U.S.
500, 508 (2003). The Eighth Circuit Court of Appeals has also expressly recognized that
a claim of “ineffective assistance of counsel” should be raised in a § 2255 proceeding,
rather than on direct appeal. See United States v. Hughes, 330 F.3d 1068, 1069 (8th Cir.
2003) (“When claims of ineffective assistance of trial counsel are asserted on direct
appeal, we ordinarily defer them to 28 U.S.C. § 2255 proceedings.”). Thus, to the extent
that Ranzenberger’s § 2255 counsel has briefed a claim of ineffective assistance of trial
counsel, concerning “multiplicity” in Ranzenberger’s conviction, that claim is properly
and timely presented in these § 2255 proceedings.
The respondent (and Ranzenberger’s counsel) are correct, however, that there is
no merit to Ranzenberger’s claims that his conviction was “multiplicitous” or that his
counsel was ineffective in failing to raise such a claim. The Eighth Circuit Court of
Appeals has long recognized that trial counsel’s failure or refusal to advance a meritless
argument cannot constitute ineffective assistance. See, e.g., Rodriguez v. United States,
17 F.3d 225, 226 (8th Cir. 1994); accord Thai v. Mapes, 412 F.3d 970, 978 (8th Cir.
2005) (“In our view, [the petitioner’s] claim fails because [the petitioner] cannot show
that his counsel performed deficiently by failing to raise a meritless argument.”).
Ranzenberger’s claims based on “multiplicity” are meritless.
First, as one of the cases on which Ranzenberger explains, “‘An indictment which
charges a single offense in multiple counts is multiplicitous.’” United States v. Christner,
66 F.3d 922, 927 (8th Cir. 1995) (quoting United States v. Rimell, 21 F.3d 281, 287 (8th
Cir.), cert. denied, 513 U.S. 976 (1994)). Ranzenberger was charged in a single-count
indictment with a conspiracy offense, so there is no possibility of “multiplicity.”
Moreover, even liberally construing Ranzenberger’s pro se Motion to assert “duplicity,”
as the respondent suggests, his claim is without merit. As the Eighth Circuit Court of
Appeals has explained,
Under [United States v.] Lueth, [807 F.2d 719, 732–34 (8th
Cir.1986),] the government can prove its case in the
disjunctive where the indictment alleges, in the conjunctive,
that the defendant committed the same offense (conspiracy to
distribute controlled substances) in more than one way (by
selling cocaine and by selling marijuana). 807 F.2d at 733–
34. In this context, indicting in the conjunctive does not
render a charge duplicitous. See [United States v.] Moore, 184
F.3d [790,] 793 [(8th Cir.1999)] (“Enumerating the
controlled substances did not render count I duplicitous.”),
citing Lueth, 807 F.2d at 734.
United States v. Spencer, 592 F.3d 866, 875 (8th Cir. 2010). It is even more obvious
that the conspiracy charge against Ranzenberger was not duplicitous: It charged a single
offense, conspiracy to manufacture a controlled substance, and only one way to commit
that offense, by manufacturing methamphetamine. Compare Spencer, 592 F.3d at 875.
The fact that the offense Ranzenberger was charged with conspiring to commit, in
violation of 21 U.S.C. § 846, was a manufacturing offense defined by 21 U.S.C.
§ 841(a)(1), and that the maximum penalty for such a conspiracy, involving an
unspecified quantity of methamphetamine mixture, was defined by 21 U.S.C.
§ 841(b)(1)(C) did not make the conspiracy charge “duplicitous.” Any argument by trial
counsel to the contrary would have been meritless, so that trial counsel was not
ineffective. Rodriguez, 17 F.3d at 226 (8th Cir. 1994); accord Thai, 412 F.3d at 978.
Furthermore, I conclude that Ranzenberger has failed to make a substantial
showing that the conclusion that his claims based on “multiplicity” (or “duplicity”) are
frivolous or meritless is debatable among reasonable jurists, that a court could resolve
any of the issues raised in that motion differently, or that any question raised in his
Motion deserves further proceedings. Consequently, a certificate of appealability is
denied as to any argument or contention in Ranzenberger’s Motion. See 28 U.S.C.
§ 2253(c)(1)(B); Miller–El v. Cockrell, 537 U.S. 322, 335-36 (2003); Cox v. Norris, 133
F.3d 565, 569 (8th Cir. 1997).
Petitioner Telly Ray Ranzenberger’s February 1, 2017, pro se Motion
(docket no. 1), construed as a Motion Pursuant To 28 U.S.C. § 2255, is denied in its
This matter is dismissed in its entirety; and
No certificate of appealability will issue for any claim or contention in this
IT IS SO ORDERED.
DATED this 25th day of October, 2017.
MARK W. BENNETT
U.S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?