Keough v. United States of America
Filing
25
MEMORANDUM Opinion and Order denying in its entirety 3 Motion to Vacate/Set Aside/Correct Sentence (2255) (CR10-3029-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 2/4/2014. (des)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION
ROY JAMES KEOUGH,
No. C11-3070-MWB
No. CR10-3029-MWB
Petitioner,
vs.
UNITED STATES OF AMERICA,
MEMORANDUM OPINION AND
ORDER REGARDING
PETITIONER’S § 2255 MOTION
Respondent.
___________________________
TABLE OF CONTENTS
I.
INTRODUCTION........................................................................... 2
A.
Criminal Case Proceedings ....................................................... 2
B.
The Petitioner’s § 2255 Motion .................................................. 3
II.
LEGAL ANALYSIS ........................................................................ 3
A.
Standards For § 2255 Relief ...................................................... 3
B.
Procedural Matters ................................................................. 6
1.
Preliminary matters ........................................................ 6
2.
Procedural default ......................................................... 6
C.
Ineffective Assistance Of Counsel ............................................... 7
1.
Applicable standards ....................................................... 7
a.
Strickland’s “deficient performance” prong .................. 9
b.
Strickland’s “prejudice” prong ................................ 11
2.
Failure to challenge the § 851 enhancement notice ............... 12
D.
Certificate Of Appealability ..................................................... 14
III.
CONCLUSION ............................................................................ 15
I.
INTRODUCTION
This case is before me on petitioner Roy James Keough’s pro se Motion Under 28
U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal
Custody. Keough claims that his trial counsel provided him with ineffective assistance
by failing to challenge the prosecution’s notice of intent to seek a sentencing enhancement
based on Keough’s prior drug felony convictions, pursuant to 21 U.S.C. § 851(a)(1).
The respondent denies that Keough is entitled to relief on his claim.
A.
Criminal Case Proceedings
On August 10, 2010, Keough was charged by a one-count Indictment with
possessing with intent to distribute 12.60 grams of methamphetamine which contained
12.348 grams of pure methamphetamine, having previously been convicted of a felony
drug offense, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 851.
On
September 14, 2010, the prosecution filed a Notice of Intent to Seek Enhanced Penalties
Pursuant to 21, U.S.C. § 851. The § 851 notice contained the correct charge and date
but, incorrectly identified the drug involved as crack cocaine when it should have stated
methamphetamine. The § 851 notice also correctly identified Keough’s prior felonies.
On October 13, 2010, Keough entered a plea of guilty to the charged offense. A
probation officer then prepared a presentence report (“PSR”). The PSR identified the
correct drug charged in the Indictment. The PSR identified Keough’s prior drug felony
convictions.
On March 7, 2011, Keough’s counsel filed a Motion For Downward Variance.
Keough appeared before me on March 21, 2011, for sentencing. The prosecution made
a motion for downward departure based on Keough’s substantial assistance under
U.S.S.G. § 5K1.1. I found that Keough’s total offense level was 34 with a criminal
history category of VI, for an advisory United States Sentencing Guideline range of 262
2
to 327 months I granted both the prosecution’s § 5K1.1 motion and Keough’s motion
for downward variance, and sentenced him to 190 months imprisonment, and 8 years of
supervised release. Keough did not appeal.
B.
The Petitioner’s § 2255 Motion
On December 19, 2011, Keough filed a pro se Motion Under 28 U.S.C. § 2255
To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody. After
respondent filed its answer, I set a briefing schedule and counsel was appointed to
represent Keough on the § 2255 motion. Keough then sought, and was granted, an
extension of time in which to file a supplemental brief in support of his § 2255 motion.
Keough filed a pro se supplemental brief on March 14, 2012. On March 16, 2012,
Keough’s counsel filed an Anders brief.1 Respondent then filed its response to Keough’s
§ 2255 motion on May 14, 2012. On May 29, 2012, Keough filed a pro se reply.
II.
A.
LEGAL ANALYSIS
Standards 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.
1
Anders v. California, 386 U.S. 738 (1967),
3
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).
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
4
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
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 Keough’s claim for § 2255
relief.
5
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 record either conclusively resolves all material factual disputes against
the prosecution or raises no disputed questions of fact that are material to my decision.
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 Keough’s claims as multiple variations of the same
claim of ineffective assistance of counsel, I will consider them on the merits.
6
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
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
7
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,
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).2
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”
2
8
I will consider the two prongs of the Strickland analysis in a little more
detail, before analyzing Keough’s claims.
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,
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
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.”).
9
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
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
10
‘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)).
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).
11
2.
Failure to challenge the § 851 enhancement notice
Keough alleges that his trial counsel provided ineffective assistance by failing to
challenge the prosecution’s § 851 notice of intent to seek a sentencing enhancement based
on Keough’s prior drug felony convictions. Keough argues that the § 851 notice was
defective because it identified “crack cocaine” as the drug involved in the pending charge
when it should have listed methamphetamine. Keough claims that his counsel told him
that this was just a typographical error and “would not do anything about it.” Respondent
counters that while the § 851 notice contained a “clerical error” by misstating the drug
involved in his pending charge, it provided Keough with the notice of its intent to rely
on his prior convictions to enhance his sentence and, therefore, Keough cannot
demonstrate that his counsel's conduct fell below the wide range of reasonable
professional assistance in failing to object to the prosecution's § 851 notice.
The Eighth Circuit Court of Appeals has explained that:
[T]he purpose of notice under § 851 is to comply with the
constitutional requirements of due process. United States v.
Curiale, 390 F.3d 1075, 1076 (8th Cir. 2004). “In applying
the statute's requirements, courts are careful not to elevate
form over substance.” Id. at 1077. In applying this principle,
we have placed the greatest weight on whether the defendant
enjoyed “full knowledge of the consequences” of his prior
convictions when making strategic decisions in the course of
his defense, including whether to challenge the fact of prior
conviction or whether to plead guilty or to go to trial. See
id.; United States v. Timley, 443 F.3d 615, 625–27 (8th Cir.
2006).
United States v. Johnson, 462 F.3d 815, 823 (8th Cir. 2006); see United States v.
Higgins, 710 F.3d 839, 844 (8th Cir. 2013) (“The purpose of the § 851 notice
requirement is to provide the defendant with ‘notice of the prior conviction, the effect it
would have on the maximum sentence, and an opportunity to dispute the conviction.’”)
quoting United States v. Timley, 443 F.3d 615, 626 (8th Cir. 2006)).
12
Section 851 states in relevant part that:
No person who stands convicted of an offense under this part
shall be sentenced to increased punishment by reason of one
or more prior convictions, unless before trial, or before entry
of a plea of guilty, the United States attorney files an
information with the court (and serves a copy of such
information on the person or counsel for the person) stating
in writing the previous convictions to be relied upon.
21 U.S.C. § 851. Section 851 also provides that “[c]lerical mistakes in the information
may be amended at any time prior to the pronouncement of sentence.” 21 U.S.C. §
851(a)(1). The Eighth Circuit Court of Appeals has observed that:
The statute does not define “clerical mistakes,” but the Eighth
Circuit has described them as errors “where the government's
initial information still gave the defendant ‘reasonable notice
of the Government's intent to rely on a particular
conviction.’” Sturdivant, 513 F.3d at 804 (quoting United
States v. Curiale, 390 F.3d 1075, 1076 (8th Cir. 2004) (per
curiam)).
Higgins, 710 F.3d at 844; see United States v. Curiale, 390 F.3d 1075, 1076-77 (8th
Cir. 2004) (“An information complies with the requirements of § 851(a) even if it
contains an error in its contents as long as the information serves to convey the
Government's intent to seek an enhancement based on a particular earlier conviction.”)
(citing Perez v. United States, 249 F.3d 1261, 1265 (11th Cir. 2001)).
The § 851 notice here, while incorrectly identifying the drug involved in the
pending charge, contained the correct charging statute and date of Keough’s pending
charge as well as correctly identifying all of Keough’s prior drug felonies that the
prosecution intended to rely upon to enhance his sentence. Thus, the clerical mistake
here was less substantial than mistakes that federal courts have previously held did not
render a § 851 notice defective. See Higgins, 710 F.3d at 844 (holding § 851 notice not
defective where notice included “the correct date, case number, and county of origin for
13
his 1995 conviction” but mislabeled the conviction as being for felony possession of
cocaine within 1000 feet of a school rather than felony possession of cocaine with intent
to distribute); Curiale, 390 F.3d at 1077 (holding that § 851 notice that erroneously listed
the defendant's earlier crime as “sale” rather than “possession” of illegal drugs, but
otherwise correctly identified the original conviction, was a correctable mistake); see also
United States v. Weaver, 267 F.3d 231, 248 (3d Cir. 2001) (holding § 851 notice not
defective where clerical error listed previous conviction for “involuntary manslaughter”
instead of “voluntary manslaughter”); Perez v. United States, 249 F.3d 1261, 1266–67
(11th Cir. 2001) (holding that clerical error on conviction date did not render information
defective because it otherwise detailed the correct offense and location of conviction);
United States v. King, 127 F.3d 483, 489 (6th Cir. 1997) (same); United States v. Steen,
55 F.3d 1022, 1025 (5th Cir. 1995) (holding that information fulfilled § 851(a)(1)'s
requirements, even though it misstated the court in which the defendant had been
convicted and incorrectly stated that one of the convictions was for delivery rather than
possession of cocaine).
I find that the § 851 notice here gave Keough full knowledge that the prosecution
intended to rely on his prior drug felony convictions to enhance his sentence. As a result,
Keough cannot demonstrate that his counsel's conduct fell below the wide range of
reasonable professional assistance in failing to object to the § 851 notice, or, that but for
counsel's failure to object to the prosecution's § 851 notice, the result of the proceedings
would have been any different. See Strickland, 466 U.S. at 687, 693. For this reason,
Keough’s claim that his trial counsel provided ineffective assistance of counsel, fails.
D.
Certificate Of Appealability
Keough 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,
14
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
Keough’s motion does not present questions of substance for appellate review, and
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 Keough’s claims, I do
not grant a certificate of appealability pursuant to 28 U.S.C. § 2253(c). Should Keough
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, Keough’s 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 4th day of February, 2014.
15
______________________________________
MARK W. BENNETT
U.S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA
16
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?