Konvalinka v. United States of America

Filing 38

MEMORANDUM Opinion and Order denying in its entirety 25 Motion to Vacate/Set Aside/Correct Sentence (2255) (Criminal Action CR09-3041-MWB). This case is dismissed. No certificate of appealability will issue for any claim or contention in this case. Signed by Judge Mark W Bennett on 4/16/2014. (des)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION
JASON LEE KONVALINKA,
No. C11-3014-MWB
No. CR09-3041-MWB

Petitioner,
vs.
UNITED STATES OF AMERICA,

MEMORANDUM OPINION AND
ORDER REGARDING
PETITIONER’S § 2255 MOTION

Respondent.
___________________________
TABLE OF CONTENTS
I. 

INTRODUCTION AND BACKGROUND .............................................. 2 
A. 
Criminal Case Proceedings ....................................................... 2 
B. 
The Petitioner’s § 2255 Motion .................................................. 5 

II. 

LEGAL ANALYSIS ........................................................................ 6 
A. 
Standard For § 2255 Relief ....................................................... 6 
B. 
Procedural Matters ................................................................. 8 
1. 
Preliminary matters ........................................................ 8 
2. 
Procedural default ......................................................... 9 
C. 
Ineffective Assistance Of Counsel ............................................... 9 
1. 
Applicable standards ....................................................... 9 
a. 
Strickland’s “deficient performance” prong ................ 11 
b. 
Strickland’s “prejudice” prong ................................ 14 
2. 
Failure to challenge crime of violence enhancement .............. 14 
a. 
Section 2K2.1(a)(4)(A) enhancement ........................ 14 
b. 
The performance prong ......................................... 16 
c. 
The prejudice prong ............................................. 17 
D. 
Certificate Of Appealability ..................................................... 22 

III. 

CONCLUSION ............................................................................ 23 

I.

INTRODUCTION AND BACKGROUND

This case is before me on petitioner Jason Lee Konvalinka’s Amended Motion
Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In
Federal Custody. Konvalinka asserts that his counsel provided him with ineffective
assistance in failing to object to the calculation of his base offense level in his presentence
report (“PSR”). Konvalinka argues that he was not subject to the base offense level of
20, pursuant to U.S.S.G. § 2K2.1(a)(4)(A), because his conviction for third degree
burglary of an unoccupied vehicle is not a qualifying crime of violence. The respondent
denies that Konvalinka is entitled to relief on his claim.

A.

Criminal Case Proceedings

On November 19, 2009, Konvalinka was charged by a one-count Superseding
Indictment with being a felon in possession of firearms and ammunition, in violation of
18 U.S.C. §§ 922(g)(1) and 924(a)(2). Konvalinka subsequently executed a written plea
agreement with the prosecution. In his plea agreement, Konvalinka made certain factual
and legal stipulations. Specifically, in pertinent part, the parties stipulated that the
following United States Sentencing Guidelines should be applied:
Firearm Offense Level (Chapter 2): For Count 1, pursuant
to U.S.S.G. § 2K2.1(a)(4)(A), the base offense level is at least
20 because the offense was committed subsequent to
defendant’s conviction from a crime of violence (burglary in
3rd degree).
Plea Agreement at ¶ 17(A).
On March 29, 2010, Konvalinka entered a plea of guilty to the charged offense
pursuant to the terms of his plea agreement. A probation officer then prepared a PSR.
2

The PSR also indicated that Konvalinka’s base offense level was 20, because he had a
prior conviction for a crime of violence. PSR at ¶ 22. The probation officer increased
Konvalinka’s offense level four levels, pursuant to U.S.S.G. § 2K2.1(b)(1)(B), because
the charged offense involved between 8 and 24 firearms. PSR at ¶ 23. The probation
officer also increased Konvalinka’s offense level two levels, pursuant to U.S.S.G.
§ 2K2.1(b)(4), because the charged offense involved a stolen firearm. PSR at ¶ 24.
Konvalinka’s offense level was further increased by four points, pursuant to U.S.S.G.
§ 2K2.1(b)(6), because he used or possessed a firearm or ammunition in connection with
another felony offense. PSR at ¶ 25. The PSR also indicated that Konvalinka’s offense
level should be lowered by three levels, pursuant to U.S.S.G. §§ 3E1.1(a)-(b), for
Konvalinka’s acceptance of responsibility. PSR at ¶¶ 30-31. Thus, the PSR indicated
that Konvalinka’s total offense level was 27.
The PSR also indicated that Konvalinka had 21 criminal history points for his
convictions for burglary in the third degree (1999), eluding/operating a vehicle while
intoxicated (2004), driving while barred-habitual offender (2005), driving while barredhabitual offender (2005), theft in the second degree (2006), theft in the third degree
(2007), burglary in the third degree (2007), possession of methamphetamine (2007), and
driving while barred (2009).1 PSR at ¶¶ 35-46. With respect to Konvalinka’s burglary
in the third degree conviction, the PSR states that:

“Trial Information reflects on

December 8, 1999, the defendant entered a vehicle without right, license or privilege to
do so, with the intent to commit theft.” PSR at ¶ 36. The probation officer also added
two criminal history points, pursuant to U.S.S.G. § 4A1.1(d), because Konvalinka
Because his 2007 conviction for third degree burglary occurred after the conduct
at issue in this case, is was not a qualifying crime of violence for the purposes of
§ 2K2.1(a)(4)(A).
1

3

committed the charged offense while he was on probation. PSR at ¶ 48. The probation
officer also added one criminal history point, pursuant to U.S.S.G. § 4A1.1(e), because
Konvalinka committed the charged offense less than two years since his release from
custody.2 PSR at ¶ 49. Thus, the PSR indicated that Konvalinka had a total of 24
criminal history points, which placed Konvalinka in criminal history category VI. PSR
at ¶ 50.
Konvalinka appeared before me on July 30, 2010, for sentencing. I found that
Konvalinka’s base offense level was 20, because he had a prior conviction for a crime of
violence.

Neither Konvalinka nor his counsel objected to my base offense level

determination.

Following the probation officer’s recommendation, I increased

Konvalinka’s offense level four levels, pursuant to U.S.S.G. § 2K2.1(b)(1)(B), because
the charged offense involved between 8 and 24 firearms. PSR at ¶ 23. I also followed
probation’s recommendation to increase Konvalinka’s offense level two levels, pursuant
to U.S.S.G. § 2K2.1(b)(4), because the charged offense involved a stolen firearm. PSR
at ¶ 24. I further followed probation’s recommendation to increase Konvalinka’s offense
level four points, pursuant to U.S.S.G. § 2K2.1(b)(6), because he used or possessed a
firearm or ammunition in connection with another felony offense. PSR at ¶ 25. I lowered
Konvalinka’s offense level three levels, pursuant to U.S.S.G. §§ 3E1.1(a)-(b), for his
acceptance of responsibility. PSR at ¶¶ 30-31. Thus, I concluded that Konvalinka’s total
offense level was 27.
2

Konvalinka’s counsel objected to application of the one point for recency under
U.S.S.G. § 4A1.1(e), because an amendment to that guideline section, which was to take
effect November 1, 2010, eliminated the recency enhancement. I noted at sentencing
that application of the criminal history adjustment for recency was a “moot question”
because Konvalinka’s criminal history placed him in criminal history category VI
regardless of whether the recency adjustment was applied or not. Sent. Tr. at 3.
Konvalinka conceded that the recency adjustment “makes absolutely no difference in this
case.” Sent. Tr. at 3.
4

Having found that Konvalinka’s total offense level was 27 and he had a criminal
history category of VI , I concluded that his advisory United States Sentencing Guideline
range was 130 to 163 months. However, because the statutory maximum sentence was
ten years imprisonment and Konvalinka received six months credit for time served on a
related state conviction, I sentenced him to 114 months imprisonment, and three years of
supervised release. Konvalinka did not appeal.
B.

The Petitioner’s § 2255 Motion

On April 15, 2011, Konvalinka filed a pro se Motion Under 28 U.S.C. § 2255 To
Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody. In his motion,
Konvalinka contended that his base offense level of 20, under U.S.S.G. § 2K2.1(a)(4)(A),
for his violation of 18 U.S.C. §§ 922(g) and 924(a)(2), was incorrectly calculated based
on his prior conviction for burglary of a car, which was not a requisite crime of violence.
After respondent filed its answer, I set a briefing schedule and counsel was appointed to
represent Konvalinka on the § 2255 motion. Konvalinka then sought, and was granted,
three extensions of time in which to file his brief in support of his § 2255 motion. After
Konvalinka filed his brief, respondent moved to dismiss Konvalinka’s § 2255 motion.
Respondent asserted that because Konvalinka did not raise his claim on appeal, the issue
was procedurally barred. Respondent also argued that Konvalinka’s claim was one for
non-constitutional error in application of the sentencing guidelines, which respondent
contended could not be raised as grounds for a § 2255 motion. Konvalinka resisted
respondent’s motion and filed a motion to amend his § 2255 motion, requesting that he
be permitted to file an amended § 2255 motion which would clarify that his claim was
one for ineffective assistance of counsel. I granted Konvalinka’s motion to amend and
he filed an amended § 2255 motion. I then denied respondent’s motion to dismiss as
being moot and set a new briefing schedule. Konvalinka filed an amended brief in support
5

of his amended § 2255. After obtaining an extension of time, respondent filed a timely
response to Konvalinka’s § 2255 amended motion. After Konvalinka filed his reply brief,
respondent sought and was granted an extension of time to file a surreply brief.
Respondent filed a timely surreply brief.

II.
A.

LEGAL ANALYSIS
Standard For § 2255 Relief

Section 2255 of Title 28 of the United States Code 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 [1] that the sentence was imposed in violation of the
Constitution or laws of the United States, or [2] that the court
was without jurisdiction to impose such sentence, or [3] that
the sentence was in excess of the maximum authorized by law,
or [4] 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; see Watson v. United States, 493 F.3d 960, 963 (8th Cir. 2007)
(“Under 28 U.S.C. § 2255 a defendant in federal custody may seek post conviction relief
on the ground that his sentence was imposed in the absence of jurisdiction or in violation
of the Constitution or laws of the United States, was in excess of the maximum authorized
by law, or is otherwise subject to collateral attack.”); Bear Stops v. United States, 339
F.3d 777, 781 (8th Cir. 2003) (“To prevail on a § 2255 motion, the petitioner must
demonstrate a violation of the Constitution or the laws of the United States.”). Thus, a
motion pursuant to § 2255 “is ‘intended to afford federal prisoners a remedy identical in
scope to federal Habeas corpus.’” United States v. Wilson, 997 F.2d 429, 431 (8th Cir.
1993) (quoting Davis v. United States, 417 U.S. 333, 343 (1974)); accord Auman v.
United States, 67 F.3d 157, 161 (8th Cir. 1995) (quoting Wilson).
6

One “well established principle” of § 2255 law is that “‘[i]ssues raised and decided
on direct appeal cannot ordinarily be relitigated in a collateral proceeding based on 28
U.S.C. § 2255.’” Theus v. United States, 611 F.3d 441, 449 (8th Cir. 2010) (quoting
United States v. Wiley, 245 F.3d 750, 752 (8th Cir. 2001)); Bear Stops, 339 F.3d at 780.
One exception to that principle arises when there is a “miscarriage of justice,” although
the Eighth Circuit Court of Appeals has “recognized such an exception only when
petitioners have produced convincing new evidence of actual innocence,” and the
Supreme Court has not extended the exception beyond situations involving actual
innocence. Wiley, 245 F.3d at 752 (citing cases, and also noting that “the Court has
emphasized the narrowness of the exception and has expressed its desire that it remain
‘rare’ and available only in the ‘extraordinary case.’” (citations omitted)). Just as § 2255
may not be used to relitigate issues raised and decided on direct appeal, it also ordinarily
“is not available to correct errors which could have been raised at trial or on direct
appeal.” Ramey v. United States, 8 F.3d 1313, 1314 (8th Cir. 1993) (per curiam).
“Where a defendant has procedurally defaulted a claim by failing to raise it on direct
review, the claim may be raised in Habeas only if the defendant can first demonstrate
either cause and actual prejudice, or that he is actually innocent.” Bousley v. United
States, 523 U.S. 614, 622 (1998) (internal quotations and citations omitted).
“Cause and prejudice” to resuscitate a procedurally defaulted claim may include
ineffective assistance of counsel, as defined by the Strickland test, discussed below.
Theus, 611 F.3d at 449. Indeed, Strickland claims are not procedurally defaulted when
brought for the first time pursuant to § 2255, because of the advantages of that form of
proceeding for hearing such claims. Massaro v. United States, 538 U.S. 500 (2003).
Otherwise, “[t]he Supreme Court recognized in Bousley that ‘a claim that “is so novel
that its legal basis is not reasonably available to counsel” may constitute cause for a
procedural default.’” United States v. Moss, 252 F.3d 993, 1001 (8th Cir. 2001) (quoting
7

Bousley, 523 U.S. at 622, with emphasis added, in turn quoting Reed v. Ross, 468 U.S.
1, 16 (1984)). The “actual innocence” that may overcome either procedural default or
allow relitigation of a claim that was raised and rejected on direct appeal is a
demonstration “‘that, in light of all the evidence, it is more likely than not that no
reasonable juror would Have convicted [the petitioner].’” Johnson v. United States, 278
F.3d 839, 844 (8th Cir. 2002) (quoting Bousley, 523 U.S. at 623); see also House v.
Bell, 547 U.S. 518, 536-37 (2006). “‘This is a strict standard; generally, a petitioner
cannot show actual innocence where the evidence is sufficient to support a [conviction on
the challenged offense].’” Id. (quoting McNeal v. United States, 249 F.3d 747, 749-50
(8th Cir. 2001)).
With these standards in mind, I turn to analysis of Konvalinka’s claim for § 2255
relief.

B.
1.

Procedural Matters

Preliminary matters

Even though ineffective assistance of counsel claims may be raised on a § 2255
motion, because of the advantages of that form of proceeding for hearing such claims,
see Massaro v. United States, 538 U.S. 500, 509, that does not mean that an evidentiary
hearing is required for every ineffective assistance claim presented in a § 2255 motion.
A district court may not “grant a prisoner § 2255 relief without resolving outstanding
factual disputes against the government.” Grady v. United States, 269 F.3d 913, 919
(8th Cir. 2001) (emphasis in original). Where a motion raises no disputed questions of
fact, however, no hearing is required. See United States v. Meyer, 417 F.2d 1020, 1024
(8th Cir. 1969). In this case, I conclude that no evidentiary hearing is required on any
issue because the motion and the record conclusively show that Konvalinka is entitled to
no relief.
8

2.

Procedural default

Section 2255 relief is not available to correct errors which could have been raised
at trial or on direct appeal, absent a showing of cause and prejudice, or a showing that
the alleged errors were fundamental defects resulting in a complete miscarriage of justice.
See Ramey v. United States, 8 F.3d 1313, 1314 (8th Cir. 1993). “[C]ause and prejudice”
to overcome such default may include “ineffective assistance of counsel.” See Becht v.
United States, 403 F.3d 541, 545 (8th Cir. 2005). The Eighth Circuit Court of Appeals
has 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.”). Because I construe Konvalinka’s claim to be a claim of ineffective
assistance of counsel, I will consider it on the merits.
C.
1.

Ineffective Assistance Of Counsel

Applicable standards

The Sixth Amendment to the United States Constitution provides that “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of
Counsel for his defence.” U.S. CONST. amend. VI. Thus, a criminal defendant is
constitutionally entitled to the effective assistance of counsel both at trial and on direct
appeal. Evitts v. Lucey, 469 U.S. 387, 396 (1985); Bear Stops, 339 F.3d at 780; see
also Steele v United States, 518 F.3d 986, 988 (8th Cir. 2008). The Eighth Circuit Court
of Appeals has recognized that, if a defendant was denied the effective assistance of
counsel guaranteed by the Sixth Amendment, “then his sentence was imposed ‘in
violation of the Constitution,’ . . . and he is entitled to relief” pursuant to § 2255(a).
King v. United States, 595 F.3d 844, 852 (8th Cir. 2010). Both the Supreme Court and
9

the Eighth Circuit Court of Appeals have expressly recognized that a claim of ineffective
assistance of counsel should be raised in a § 2255 proceeding, rather than on direct
appeal, because such a claim often involves facts outside of the original record. See
Massaro, 538 U.S. at 504-05 (2003); 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.”).
The Supreme Court has reiterated that “‘the purpose of the effective assistance
guarantee of the Sixth Amendment is not to improve the quality of legal representation .
. . [but] simply to ensure that criminal defendants receive a fair trial.’” Cullen v.
Pinholster, 131 S. Ct. 1388, 1403 (2011) (quoting Strickland v. Washington, 466 U.S.
668, 689 (1984)). That being the case, “‘[t]he benchmark for judging any claim of
ineffectiveness must be whether counsel’s conduct so undermined the proper functioning
of the adversarial process that the trial cannot be relied on as having produced a just
result.’” Id. (quoting Strickland, 466 U.S. at 686, with emphasis added). To assess
counsel’s performance against this benchmark, the Supreme Court developed in
Strickland a two-pronged test requiring the petitioner to show “both deficient
performance by counsel and prejudice.” See Strickland, 466 U.S. at 687-88, 697; see
also Knowles v. Mirzayance, 556 U.S. 111, 129 S. Ct. 1411, 1419 (2009). “‘Unless a
defendant makes both showings, it cannot be said that the conviction . . . resulted from
a breakdown in the adversary process that renders the result unreliable.’” Gianakos v.
United States, 560 F.3d 817, 821 (8th Cir. 2009) (quoting Strickland, 466 U.S. at 687).
Although the petitioner must prove both prongs of the Strickland analysis to
prevail, the Supreme Court does not necessarily require consideration of both prongs of
the Strickland analysis in every case, nor does it require that the prongs of the Strickland
analysis be considered in a specific order. As the Court explained in Strickland,

10

Although we have discussed the performance
component of an ineffectiveness claim prior to the prejudice
component, there is no reason for a court deciding an
ineffective assistance claim to approach the inquiry in the
same order or even to address both components of the inquiry
if the defendant makes an insufficient showing on one. In
particular, a court need not determine whether counsel’s
performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged
deficiencies. The object of an ineffectiveness claim is not to
grade counsel’s performance. If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient
prejudice, which we expect will often be so, that course
should be followed.
Strickland, 466 U.S. at 697 (emphasis added).3
I will consider the two prongs of the Strickland analysis in a little more detail,
before analyzing Konvalinka’s claim.
a.

Strickland’s “deficient performance” prong

“The performance prong of Strickland requires a defendant to show ‘“that
counsel’s representation fell below an objective standard of reasonableness.”‘” Lafler,
Although the Court in Strickland found that it was only necessary to consider the
“prejudice” prong, so that it did not reach the “deficient performance” prong, the Eighth
Circuit Court of Appeals has repeatedly held that it need not consider the “prejudice”
prong, if it determines that there was no “deficient performance.” See, e.g., Gianakos
v. United States, 560 F.3d 817, 821 (8th Cir. 2009) (“‘We need not inquire into the
effectiveness of counsel, however, if we determine that no prejudice resulted from
counsel’s alleged deficiencies.” (quoting Hoon v. Iowa, 313 F.3d 1058, 1061 (8th Cir.
2002), in turn citing Strickland, 466 U.S. at 697)); Ringo v. Roper, 472 F.3d 1001, 1008
(8th Cir. 2007) (“Because we believe that the Missouri Supreme Court did not
unreasonably apply Strickland when it determined that counsel’s decision not to call Dr.
Draper fell within the wide range of reasonable professional assistance, we need not
consider whether counsel’s decision prejudiced Mr. Ringo’s case.”); Osborne v. Purkett,
411 F.3d 911, 918 (8th Cir. 2005) (“Because Osborne did not satisfy the performance
test, we need not consider the prejudice test.”).
3

11

132 S. Ct. at 1384 (quoting Hill v. Lockart, 474 U.S. 52, 57 (1985), in turn quoting
Strickland, 466 U.S. at 688); Richter, 131 S. Ct. at 787 (quoting Strickland, 466 U.S. at
688). To put it another way, “[t]he challenger’s burden is to show ‘that counsel made
errors so serious that counsel was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment.’” Richter, 131 S. Ct. at 787 (quoting Strickland,
466 U.S. at 687)).
In evaluating counsel’s performance, the reviewing court must not overlook “‘the
constitutionally protected independence of counsel and . . . the wide latitude counsel must
have in making tactical decisions.’” Cullen, 131 S. Ct. at 1406 (quoting Strickland, 466
U.S. at 589). Thus,
[b]eyond the general requirement of reasonableness, “specific
guidelines are not appropriate.” [Strickland, 466 U.S.], at
688, 104 S. Ct. 2052. “No particular set of detailed rules for
counsel’s conduct can satisfactorily take account of the variety
of circumstances faced by defense counsel or the range of
legitimate decisions ....” Id., at 688–689, 104 S. Ct. 2052.
Strickland itself rejected the notion that the same investigation
will be required in every case. Id., at 691, 104 S. Ct. 2052
(“[C]ounsel has a duty to make reasonable investigations or
to make a reasonable decision that makes particular
investigations unnecessary” (emphasis added)). It is “[r]are”
that constitutionally competent representation will require
“any one technique or approach.” Richter, 562 U.S., at ––––
, 131 S. Ct., at 779.
Cullen, 131 S. Ct. at 1406-07.
The Strickland standard of granting latitude to counsel also requires that counsel’s
decisions must be reviewed in the context in which they were made, without “the
distortions and imbalance that can inhere in a hindsight perspective.” Premo v. Moore,
131 S. Ct. 733, 741 (2011); see also id. at 745 (reiterating that “hindsight cannot suffice
for relief when counsel’s choices were reasonable and legitimate based on predictions of
12

how the trial would proceed” (citing Richter, 131 S. Ct. 770)); Rompilla v. Beard, 545
U.S. 374, 381 (2005) (“In judging the defense’s investigation, as in applying Strickland
generally, hindsight is discounted by pegging adequacy to ‘counsel’s perspective at the
time’ investigative decisions are made, 466 U.S., at 689, 104 S. Ct. 2052, and by giving
a ‘heavy measure of deference to counsel’s judgments,’ id., at 691, 104 S. Ct. 2052.”).
This is so, because “[u]nlike a later reviewing court, the attorney observed the relevant
proceedings, knew of materials outside the record, and interacted with the client, with
opposing counsel, and with the judge,” and because “[i]t is ‘all too tempting’ to ‘secondguess counsel’s assistance after conviction or adverse sentence.’” Richter, 131 S. Ct. at
788 (quoting Strickland, 466 U.S. at 689, and also citing Bell v. Cone, 535 U.S. 685,
702 (2002), and Lockhart v. Fretwell, 506 U.S. 364, 372 (1993)). In short, “[t]he
question is whether an attorney’s representation amounted to incompetence under
‘prevailing professional norms,’ not whether it deviated from best practices or most
common custom.” Id. (quoting Strickland, 466 U.S. at 690). Furthermore,
Strickland specifically commands that a court “must indulge
[the] strong presumption” that counsel “made all significant
decisions in the exercise of reasonable professional
judgment.” 466 U.S., at 689–690, 104 S. Ct. 2052. The
[reviewing court] [i]s required not simply to “give [the]
attorneys the benefit of the doubt,” but to affirmatively
entertain the range of possible “reasons [trial] counsel may
have had for proceeding as they did.”
Cullen, 131 S. Ct. at 1407 (internal citations to the lower court opinion omitted); Richter,
131 S. Ct. at 787 (“A court considering a claim of ineffective assistance must apply a
‘strong presumption’ that counsel’s representation was within the ‘wide range” of
reasonable professional assistance.’” (quoting Strickland, 466 U.S. at 689)).

13

b.

Strickland’s “prejudice” prong

“To establish Strickland prejudice a defendant must ‘show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.’” Lafler, 132 S. Ct. at 1384 (quoting Strickland,
466 U.S. at 694).

The Court has explained more specifically what a “reasonable

probability” means:
“A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” [Strickland, 466 U.S.
at 694]. That requires a “substantial,” not just “conceivable,”
likelihood of a different result. Richter, 562 U.S., at ––––,
131 S. Ct., at 791.
Cullen, 131 S. Ct. at 1403. Ultimately, a showing of “prejudice” requires counsel’s
errors to be “‘so serious as to deprive the defendant of a fair trial, a trial whose result is
reliable.’” Richter, 131 S. Ct. at 787-88 (quoting Strickland, 466 U.S. at 687).
2.

Failure to challenge crime of violence enhancement
a.

Section 2K2.1(a)(4)(A) enhancement

Konvalinka argues that his counsel provided him with ineffective assistance in
failing to object to the calculation of his base offense level in his PSR at a level 20, under
U.S.S.G. § 2K2.1(a)(4)(A), because his conviction for third degree burglary of an
unoccupied vehicle is not a crime of violence.

Respondent concedes that third degree

burglary of an unoccupied vehicle is not a crime of violence, but contends that
Konvalinka’s conviction for eluding is a crime of violence that, nonetheless, qualified
him for a base offense level of 20 under § 2K2.1(a)(4)(A).
The United States Sentencing Guidelines ascribe an enhanced base offense level
of 20 to a defendant who “committed any part of the instant offense subsequent to
sustaining one felony conviction of . . . a crime of violence.” U.S.S.G. § 2K2.1(a)(4)(A).
Section 4B1.2(a), in turn, defines a “crime of violence” as follows:
14

(a)

The term “crime of violence” means any offense under
federal or state law, punishable by imprisonment for a
term exceeding one year, that—
(1)

has as an element the use, attempted use, or
threatened use of physical force against the
person of another, or

(2)

is burglary of a dwelling, arson, or extortion,
involves use of explosives, or otherwise
involves conduct that presents a serious
potential risk of physical injury to another.

U.S.S.G. § 4B1.2(a). The application notes to § 4B1.2(a) further provide that
“Crime of violence” includes murder, manslaughter,
kidnapping, aggravated assault, forcible sex offenses,
robbery, arson, extortion, extortionate extension of credit,
and burglary of a dwelling. Other offenses are included as
“crimes of violence” if (A) that offense has as an element the
use, attempted use, or threatened use of physical force against
the person of another, or (B) the conduct set forth (i.e.,
expressly charged) in the count of which the defendant was
convicted involved use of explosives (including any explosive
material or destructive device) or, by its nature, presented a
serious potential risk of physical injury to another.
Id. § 4B1.2 cmt. n. 1.
The second clause of § 4B1.2(a)(2) is commonly referred to as the “otherwise”
clause. See, e.g., United States v. Williams, 537 F.3d 969, 971-72 (8th Cir. 2008). In
Begay v. United States, the United States Supreme Court analyzed the nearly identical
“otherwise” clause in the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e),
and held that driving under the influence of alcohol was not a “violent felony.” 4 Begay,
Although this case involves the term “crime of violence” whereas Begay
concerned interpretation of the term “violent felony,” the Eighth Circuit Court of Appeals
4

15

553 U.S. 137, 148 (2008). The Court held that, for a prior felony offense to fall within
the scope of the “otherwise” clause, such offense must (1) “pose a similar degree of risk
of physical injury as the example crimes” and (2) “be similar in kind to the example
crimes.” Williams, 537 F.3d 969, 972 (citing Begay, 553 U.S. at 144-45). “For a crime
to be similar in kind to the example crimes, it should typically involve ‘purposeful,
violent, and aggressive conduct.’” Id. (quoting Begay, 553 U.S. at 145).
b.

The performance prong

Konvalinka argues that his conviction for third degree burglary of an unoccupied
vehicle under Iowa law is not a conviction for a crime of violence. Respondent does not
contest Konvalinka’s assertion. For good reason, federal courts have found that burglary
of an unoccupied automobile and other similar offenses are not crimes of violence. See
United States v. Livingston, 442 F.3d 1082, 1087 (8th Cir. 2006) (holding that breaking
or entering a vehicle under Arkansas law is not a violent felony); see also Shepard v.
United States, 544 U.S. 13, 16 (2005) (noting that [t]he [ACCA] makes burglary a violent
felony only if committed in a building or enclosed space (“generic burglary”), not in a
boat or motor vehicle.”); United States v. Williams, 537 F.3d 969, 973-75 (8th Cir. 2008)
(holding that auto theft by deception, auto theft without consent, and auto tampering
under Missouri law were not crimes of violence); United States v. Thornton, 463 F.3d
693, (7th Cir. 2006) (noting that burglary involving entry into a car would not constitute
a violent felony). As the Eighth Circuit Court of Appeals explained in Livingston:
[B]reaking or entering a vehicle is one step removed from the
dangers inherent in automobile theft and that breaking or
entering a vehicle does not cross the line into what constitutes
a violent felony . . . . Because the offense of breaking or
has “never recognized a distinction between the two. “ Williams, 537 F.3d at 971; see
United States v. Sprouse, 394 F.3d 578, 580 (8th Cir. 2005) (“Because the definitions of
crime of violence and violent felony are identical, the same analysis applies in
determining whether [the defendant's] convictions fall within the conduct defined.”).
16

entering a vehicle for the purpose of committing a theft does
not require the offender to possess, much less operate, the
vehicle, we believe it creates less danger of physical harm
than vehicle theft, and subsequently the outcome of this case
is not controlled by Sun Bear. We hold that breaking or
entering a vehicle for purposes of committing a theft under
Arkansas law is not a violent felony for purposes of the
ACCA.
Livingston, 442 F.3d at 1087. Consequently, Konvalinka’s counsel erred in not objecting
to the reference in both the plea agreement, and the PSR, indicating that Konvalinka’s
conviction for third degree burglary of an unoccupied vehicle was a qualifying crime of
violence. Thus, Konvalinka has satisfied the first prong of the Strickland analysis of his
ineffective-assistance claim.
c.

The prejudice prong

Because I find that Konvalinka has satisfied the “deficient performance” prong of
his ineffective-assistance claim, I must consider whether or not he can satisfy the
“prejudice” prong. See Strickland, 466 U.S. at 687–88 & 694 (ineffective-assistance
claims require proof of both “deficient performance” and “prejudice”). I find that
Konvalinka cannot establish that he was prejudiced by his counsel’s error. As I explained
above, in order to establish prejudice under Strickland, Konvalinka “must ‘show that
there is a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.’” Lafler, 132 S. Ct. at 1384 (quoting
Strickland, 466 U.S. at 694). Konvalinka’s conviction for third degree burglary of an
unoccupied vehicle was not his only felony conviction. Konvalinka was also convicted,
in 2004, of eluding, in violation of Iowa Code § 321.279(3)(b), and operating a motor

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vehicle while intoxicated, in violation of Iowa Code § 321J.2. 5 Section 321.279(3)(b)
defines eluding as:
3.
The driver of a motor vehicle commits a class "D"
felony if the driver willfully fails to bring the motor vehicle
to a stop or otherwise eludes or attempts to elude a marked
official law enforcement vehicle that is driven by a uniformed
peace officer after being given a visual and audible signal as
provided in this section, and in doing so exceeds the speed
limit by twenty-five miles per hour or more, and if any of the
following occurs:
....
b.

The driver is in violation of section 321J.2 or 124.401.

IOWA CODE § 321.279(3)(b). The Eighth Circuit Court of Appeals has specifically held
that eluding under this section is a crime of violence. United States v. Malloy, 614 F.3d
852, 866 (8th Cir. 2010) (“In sum, we hold that the offense of eluding under Iowa Code
section 321.279(3) is a crime of violence for purposes of the Sentencing Guidelines, as
it is ‘roughly similar, in kind as well as in degree of risk posed,’ to the example crimes
in § 4B1.2(a)(2).”); see United States v. Clay, 622 F.3d 892, 895, 895 (8th Cir. 2010)
(holding that eluding under Iowa Code § 321.279(2), a lesser included offense of eluding
under § 321.279(3), “is a crime of violence for the same reasons we held in Malloy that
section 321.279(3) is a crime of violence.”); see also United States v. Richardson, 581
At Konvalinka’s sentencing, I noted that “I thought this case would be very
appropriate for substantial upward departure . . . . then I realized, well, you can’t depart
upward because we’re already at the statutory maximum penalty which is actually
significantly below the high end of the advisory guideline range.” Sentencing Tr. at 4.
I pointed out that: “If it was in my discretion, I’d go substantially higher because 24
criminal history points for somebody who’s 28 years old is beyond shocking. It’s top 5
hall of shame in over 2,600 people that I’ve sentenced. To have that many criminal
history points at such a young age is very disturbing.” Sentencing Tr. at 4-5. Thus,
even if Konvalinka had prevailed in proving that his counsel provided ineffective
assistance of counsel, he may well have received the same sentence at resentencing.
5

18

F.3d 824, 825 (8th Cir. 2009) (Observing in case involving Kansas statute that “[o]ur
holding that ‘knowingly fleeing a police officer who is attempting to make an arrest is
purposeful conduct that falls within the “otherwise involves” clause of § 4B1.2(a)(2)’ is,
therefore, directly applicable, and Richardson's prior conviction is for an offense that
qualifies as a “crime of violence.’”) (quoting United States v. Hudson, 577 F.3d 883,
884 (8th Cir. 2009)); United States v. Kendrick, 423 F.3d 803, 804 (8th Cir. 2005)
(“Considering the combined risks associated with felony fleeing, we conclude that the
district court properly held that [Oregon Revised Statute] § 811.540 is a crime of violence
as defined by § 4B1.2.”).
In Malloy, the court of appeals distinguished its prior holding in United States v.
Tyler, 580 F.3d 722 (8th Cir. 2009) (holding that a Minnesota conviction for fleeing a
peace officer in a motor vehicle was not a crime of violence for purposes of the career
offender guideline enhancement), by discussing at length the differences between the
Iowa eluding offense pursuant to Iowa Code § 321.279(3) and the Minnesota “fleeing”
offense. Malloy, 614 F.3d at 864–65. Indeed, for many of the same reasons the Eighth
Circuit Court of Appeals determined that the charge of eluding under § 321.279(3) was
a crime of violence, the United States Supreme Court held that the offense of “vehicle
flight” under Indiana law, is a violent felony for purposes of the ACCA. Sykes v. United
States, 131 S. Ct. 2267, 2270 (2011). The Court explained why flight was a potentially
violent crime:
When a perpetrator defies a law enforcement command
by fleeing in a car, the determination to elude capture makes
a lack of concern for the safety of property and persons of
pedestrians and other drivers an inherent part of the offense.
Even if the criminal attempting to elude capture drives without
going at full speed or going the wrong way, he creates the
possibility that police will, in a legitimate and lawful manner,
exceed or almost match his speed or use force to bring him
within their custody. A perpetrator's indifference to these
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collateral consequences has violent—even lethal—potential
for others. A criminal who takes flight and creates a risk of
this dimension takes action similar in degree of danger to that
involved in arson, which also entails intentional release of a
destructive force dangerous to others. This similarity is a
beginning point in establishing that vehicle flight presents a
serious potential risk of physical injury to another.

Another consideration is a comparison to the crime of
burglary. Burglary is dangerous because it can end in
confrontation leading to violence. The same is true of vehicle
flight, but to an even greater degree. The attempt to elude
capture is a direct challenge to an officer's authority. It is a
provocative and dangerous act that dares, and in a typical case
requires, the officer to give chase. The felon's conduct gives
the officer reason to believe that the defendant has something
more serious than a traffic violation to hide. In Sykes' case,
officers pursued a man with two prior violent felony
convictions and marijuana in his possession. In other cases
officers may discover more about the violent potential of the
fleeing suspect by running a check on the license plate or by
recognizing the fugitive as a convicted felon.
Because an accepted way to restrain a driver who poses
dangers to others is through seizure, officers pursuing fleeing
drivers may deem themselves duty bound to escalate their
response to ensure the felon is apprehended. Scott v. Harris
rejected the possibility that police could eliminate the danger
from a vehicle flight by giving up the chase because the
perpetrator “might have been just as likely to respond by
continuing to drive recklessly as by slowing down and wiping
his brow.” And once the pursued vehicle is stopped, it is
sometimes necessary for officers to approach with guns drawn
to effect arrest. Confrontation with police is the expected
result of vehicle flight. It places property and persons at
serious risk of injury.

20

Risk of violence is inherent to vehicle flight. Between
the confrontations that initiate and terminate the incident, the
intervening pursuit creates high risks of crashes. It presents
more certain risk as a categorical matter than burglary. It is
well known that when offenders use motor vehicles as their
means of escape they create serious potential risks of physical
injury to others. Flight from a law enforcement officer
invites, even demands, pursuit. As that pursuit continues, the
risk of an accident accumulates. And having chosen to flee,
and thereby commit a crime, the perpetrator has all the more
reason to seek to avoid capture.
Unlike burglaries, vehicle flights from an officer by
definitional necessity occur when police are present, are
flights in defiance of their instructions, and are effected with
a vehicle that can be used in a way to cause serious potential
risk of physical injury to another.
Id. at 2273–74 (citations omitted).
For the reasons outlined by the Supreme Court, I conclude that vehicle flight from
a law enforcement officer poses risks of violence because a potentially dangerous
confrontation between the person fleeing and law enforcement officers may result. Thus,
I find that Konvalinka’s eluding conviction was a qualifying crime of violence that
required that he be ascribed the enhanced base offense level of 20 pursuant to U.S.S.G.
§ 2K2.1(a)(4)(A).6 Accordingly, he has not shown that he was prejudiced because he
In his reply brief, Konvalinka asserts that respondent is precluded from arguing
that Konvalinka’s eluding conviction qualifies as a predicate crime of violence for his
sentence enhancement because the prosecution did not address the issue at sentencing.
Konvalinka, however, has cited no authority holding that respondent is barred from
asserting facts in the record in its defense to a § 2255 collateral attack on a criminal
conviction, and I am aware of no such authority. The Eighth Circuit Court of Appeals
requires that objections to the PSR be made “with ‘specificity and clarity’” before a
district court is precluded from relying on the factual statements contained in the PSR.
6

21

would have received the exact same sentence absent his counsel’s error. See Harrington
v. Richter, 131 S. Ct. 770, 792 (2011) (observing that to establish prejudice, “[t]here
must be a substantial likelihood of a different result.”).

Since Konvalinka cannot

demonstrate he was prejudiced by his counsel’s error, his claim of ineffective assistance
of counsel fails.

D.

Certificate Of Appealability

Konvalinka must make a substantial showing of the denial of a constitutional right
in order to be granted a certificate of appealability in this case. See Miller-El v. Cockrell,
537 U.S. 322 (2003); Garrett v. United States, 211 F.3d 1075, 1076-77 (8th Cir. 2000);
Mills v. Norris, 187 F.3d 881, 882 n.1 (8th Cir. 1999); Carter v. Hopkins, 151 F.3d
872, 873-74 (8th Cir. 1998); Ramsey v. Bowersox, 149 F.3d 749 (8th Cir. 1998); Cox v.
Norris, 133 F.3d 565, 569 (8th Cir. 1997). “A substantial showing is a showing that
issues are debatable among reasonable jurists, a court could resolve the issues differently,
or the issues deserve further proceedings.” Cox, 133 F.3d at 569. Moreover, the United
States Supreme Court reiterated in Miller-El v. Cockrell that “‘[w]here a district court
has rejected the constitutional claims on the merits, the showing required to satisfy §
2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would
find the district court’s assessment of the constitutional claims debatable or wrong.’” 537
U.S. at 338 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). I determine that
Konvalinka’s motion does not present questions of substance for appellate review, and

See United States v. Razo-Guerra, 534 F.3d 970, 976 (8th Cir. 2008) (quoting United
States v. Wajda, 1 F.3d 731, 732 (8th Cir. 1993) (internal quotation marks omitted).
Konvalinka did not object to the portion of the PSR concerning his eluding conviction.
Thus, he did not alert the prosecution about any specific facts it needed to substantiate at
sentencing concerning his eluding conviction. I, therefore, am able to consider all of the
specific factual allegations contained in paragraph 44 as true.
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therefore, does not make the requisite showing to satisfy § 2253(c). See 28 U.S.C. §
2253(c)(2); FED. R. APP. P. 22(b). Accordingly, with respect to Konvalinka’s claims, I
do not grant a certificate of appealability pursuant to 28 U.S.C. § 2253(c). Should
Konvalinka wish to seek further review of his petition, he may request a certificate of
appealability from a judge of the United States Court of Appeals for the Eighth Circuit.
See Tiedman v. Benson, 122 F.3d 518, 520-22 (8th Cir. 1997).
III.

CONCLUSION

For the reasons discussed above, Konvalinka’s Amended Motion Under 28 U.S.C.
§ 2255 is denied in its entirety. This case is dismissed. No certificate of appealability
will issue for any claim or contention in this case.
IT IS SO ORDERED.
DATED this 16th day of April, 2014.

______________________________________
MARK W. BENNETT
U.S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA

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