Outlaw v. United States of America
MEMORANDUM Opinion and Order denying in its entirety 1 Pro Se Motion to Vacate/Set Aside/Correct Sentence (2255) (Criminal Action CR11-3024-MWB) and no certificate of appealability will issue. Signed by Judge Mark W Bennett on 6/9/2015. (copy w/nef to non-ecf filer) (des)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
No. C 14-3001-MWB
(No. CR 11-3024-MWB)
UNITED STATES OF AMERICA,
MEMORANDUM OPINION AND
PETITIONER’S MOTION UNDER 28
U.S.C. § 2255 TO VACATE, SET
ASIDE, OR CORRECT A
This case is before me on petitioner Lamar Outlaw’s pro se January 10, 2014,
Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person
In Federal Custody (§ 2255 Motion) (Civ. docket no. 1). In his § 2255 Motion, Outlaw
seeks relief from his sentence to 293 months of imprisonment, as an armed career
criminal, after his guilty plea to a charge of being a felon in possession of a firearm in
violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). That sentence resulted from a twolevel upward departure from Outlaw’s advisory sentencing guidelines range of 188 to 235
months, based on underrepresentation of his violent criminal history. Sentencing Hearing
Transcript (Crim. docket no. 109).
Specifically, Outlaw asserts the following claim for § 2255 relief:
I was under the impression that by pleading guilty, I was
pleading guilty to my original time frame, which was 188 to
235 months. My lawyer didn’t tell me that the Government
can ask for a[n] upward departure until sentencing. When I
did learn about the upward departure at sentenc[ing], that’s
when my lawyer said he was gonna appeal due to the
government[’s] fail[ure] to state in writing the reason for the
§ 2255 Motion, Ground One. In an Anders brief (Civ. docket no. 11),1 see also Status
Report (Civ. docket no. 10), counsel appointed to represent Outlaw in this matter (§ 2255
counsel) has recast Outlaw’s pro se claim as three separate claims of ineffective assistance
of trial counsel: (1) failure to explain that the prosecution could move for an upward
departure at sentencing after Outlaw had pleaded guilty; (2) failure to discuss the direct
appeal of Outlaw’s sentencing with him; and (3) failure to file a petition for writ of
certiorari to the United States Supreme Court on Outlaw’s behalf. Section 2255 counsel
represents that she does not believe that any of these claims can afford Outlaw any relief.
The respondent agrees with § 2255 counsel. See Respondent’s Response [To] Petitioner’s
[§ 2255 Motion] (Civ. docket no. 14). So do I.
“Section 2255 [of Title 28 of the United States Code] ‘was intended to afford
federal prisoners a remedy identical in scope to federal habeas corpus.’” Sun Bear v.
United States, 644 F.3d 700, 704 (8th Cir. 2011) (en banc) (quoting Davis v. United
States, 417 U.S. 333, 343 (1974)). Nevertheless, “[l]ike habeas corpus, this remedy
‘does not encompass all claimed errors in conviction and sentencing.’” Id. (quoting
United States v. Addonizio, 442 U.S. 178, 185 (1979). As relevant here, 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.”). Nevertheless, “ineffective assistance of
counsel” can only afford a § 2255 petitioner relief, if the petitioner shows that counsel’s
performance was “deficient” and that the “deficient performance prejudiced the defense.”
Sweeney v. United States, 766 F.3d 857, 859-60 (8th Cir. 2014) (quotation marks
See Anders v. California, 386 U.S. 738 (1967).
omitted) (quoting Walking Eagle v. United States, 742 F.3d 1079, 1082 (8th Cir. 2014),
in turn quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). Proof of “deficient
performance” requires proof that counsel’s conduct failed to conform to the degree of
skill, care, and diligence of a reasonably competent attorney. Strickland, 466 U.S. at
687. “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 v. Cooper, ___ U.S. ___, ___, 132 U.S. 1376, 1384
(2012) (quoting Strickland, 466 U.S. at 694); Cullen v. Pinholster, ___ U.S. ___, ___,
131 S. Ct. 1388, 1403 (2011).
“‘Where petitioner’s allegations, if true, amount to ineffective assistance of
counsel, a hearing must be held unless the record ‘affirmatively refutes the factual
assertions upon which [the claim] is based.’’” Franco v. United States, 762 F.3d 761,
763 (8th Cir. 2014) (citing Watson v. United States, 493 F.3d 960, 964 (8th Cir. 2007),
in turn quoting Shaw v. United States, 24 F.3d 1040, 1043 (8th Cir. 1994)). To put it
[The district court] may . . . deny an evidentiary hearing if
“(1) the [petitioner’s] allegations, accepted as true, would not
entitle the [petitioner] 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.” [Thomas v. United States, 737 F.3d
1202,] 1206-1207 [(8th Cir. 2013)] (alterations in original)
(quoting Buster v. United States, 447 F.3d 1130, 1132 (8th
United States v. Sellner, 773 F.3d 927, 929-30 (8th Cir. 2014); accord Anderson v.
United States, 762 F.3d 787, 792 (8th Cir. 2014) (citing 28 U.S.C. § 2255(b)); Franco,
762 F.3d at 763; Winters v. United States, 716 F.3d 1098, 1103 (8th Cir. 2013).
As formulated by § 2255 counsel, Outlaw’s first claim is that his trial counsel was
ineffective because he failed to explain that the prosecution could move for an upward
departure at sentencing after Outlaw had pleaded guilty. No hearing on this claim is
required, however, because it is contradicted by the record, see Sellner, 773 F.3d at 92930, and no relief is warranted, because of Outlaw’s inability to establish Strickland
prejudice. Lafler, ___ U.S. at ___, 132 U.S. at 1384; Cullen, ___ U.S. at ___, 131 S.
Ct. at 1403.
Section 2255 counsel acknowledges that, at Outlaw’s change-of-plea
hearing, the magistrate judge expressly explained to Outlaw that there was no plea
agreement to a particular sentence; that the sentence would be determined at a sentencing
hearing after a presentence investigation report had been prepared and the parties had
been given the opportunity to object to the presentence investigation report (PSIR); and,
most importantly, that the sentence could be different from what either Outlaw or his trial
counsel anticipated. Report And Recommendation Concerning Plea Of Guilty (Crim.
docket no. 72, 2-3). Section 2255 counsel also acknowledges that Outlaw admitted to
the magistrate judge that there was no promise of a particular sentence. Id. at 5. Thus,
Outlaw was aware before he pleaded guilty that his sentence could be higher than he
anticipated, even if trial counsel did not expressly discuss an upward departure prior to
Outlaw’s guilty plea, and there is no reasonable probability that Outlaw would not have
pleaded guilty if trial counsel had advised him of the possibility of an upward departure.
Relief is denied on this claim.
Outlaw’s second claim, as formulated by § 2255 counsel, is that trial counsel failed
to discuss the direct appeal of Outlaw’s sentencing with him. Again, no hearing on this
claim is required, because it is contradicted by the record, see Sellner, 773 F.3d at 92930, and no relief is warranted, because of Outlaw’s inability to establish either deficient
performance or prejudice under Strickland. Lafler, ___ U.S. at ___, 132 U.S. at 1384;
Cullen, ___ U.S. at ___, 131 S. Ct. at 1403; Strickland, 466 U.S. at 687, 694. Trial
counsel did promptly file a Notice Of Appeal (Crim. docket no. 104); continued to
represent Outlaw throughout the appeal; and raised issues supported by the record. See
Opinion On Appeal (Crim. docket no. 114). Outlaw has not identified any argument on
appeal that his trial counsel did not make, because he did not consult with Outlaw, nor
has Outlaw suggested how any discussion between him and his trial counsel raises a
reasonable probability that the outcome of his appeal would have been different. Relief
is denied on this claim.
Outlaw’s final claim, as formulated by § 2255 counsel, is that trial counsel failed
to file a petition for writ of certiorari to the United States Supreme Court on Outlaw’s
behalf. As § 2255 counsel acknowledges, the Eighth Circuit Court of Appeals has
recognized that “[d]ue process does not . . . guarantee a constitutional right to counsel
for a litigant seeking to file a certiorari petition in the United States Supreme Court.”
Steele v. United States, 518 F.3d 986, 988 (8th Cir. 2008) (emphasis in the original)
(citing Ross v. Moffitt, 417 U.S. 600, 617-18 (1974)). Thus, there can be no claim of
ineffective assistance of counsel when there is no right to counsel. Relief is denied on
Finally, I conclude that Outlaw has failed to make a substantial showing that any
of his claims are debatable among reasonable jurists, that a court could resolve any of the
issues raised in those claims differently, or that any question raised in those claims
deserves further proceedings. Consequently, a certificate of appealability is denied as to
all of Outlaw’s claims. 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).
THEREFORE, petitioner Lamar Outlaw’s pro se January 10, 2014, Motion Under
28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal
Custody (§ 2255 Motion) (Civ. docket no. 1) is denied in its entirety, and no certificate
of appealability will issue.
IT IS SO ORDERED.
DATED this 9th day of June, 2015.
MARK W. BENNETT
U.S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA
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