Recker v. United States of America

Filing 2

ORDER re 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) ( Criminal Action 12-cr-2027-LRR) filed by Michael Recker: The movant's motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 is denied. As fo r a certificate of appealability, the movant has not made the requisite showing. See 28 U.S.C. § 2253(c)(2). Accordingly, a certificate of appealability under 28 U.S.C. § 2253 will not issue. Signed by Chief Judge Linda R Reade on 3/24/16. (ksy)(copy w/NEF to Plf)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
EASTERN DIVISION

MICHAEL RECKER,
Movant,

No. C15-2100-LRR
No. CR12-2027-LRR

vs.
UNITED STATES OF AMERICA.

ORDER

This matter appears before the court on Michael Recker’s motion to vacate, set
aside or correct sentence pursuant to 28 U.S.C. § 2255 (civil docket no. 1). Michael
Recker (“the movant”) filed such motion on November 19, 2015.1
The movant essentially raises one claim as a basis for seeking relief. Specifically,
the movant contends that counsel provided ineffective assistance because counsel did not
appropriately raise or contest sentencing issues.

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No response from the government is required because the 28 U.S.C. § 2255
motion and file make clear that the movant is not entitled to relief. See 28 U.S.C. § 2255;
Rule 4(b), Rules Governing Section 2255 Proceedings. Further, because the record is
clear, an evidentiary hearing is not necessary, see Rule 8, Rules Governing Section 2255
Proceedings; see also Engelen v. United States, 68 F.3d 238, 240-41 (8th Cir. 1995)
(stating that district court may summarily dismiss a motion brought under 28 U.S.C. §
2255 without an evidentiary hearing “if (1) the . . . allegations, accepted as true, would
not entitle the [movant] to relief, or (2) the allegations cannot be accepted as true because
they are contradicted by the record, inherently incredible, or conclusions rather than
statements of fact”); United States v. Oldham, 787 F.2d 454, 457 (8th Cir. 1986) (stating
that district court is given discretion in determining whether to hold an evidentiary hearing
on a motion under 28 U.S.C. § 2255).

Given the record, it is apparent that the conduct of counsel fell within a wide range
of reasonable professional assistance, Strickland v. Washington, 466 U.S. 668, 689 (1984),
and counsel’s performance did not prejudice the movant’s defense, id. at 692-94.
Considering all the circumstances and refraining from engaging in hindsight or secondguessing counsel’s strategic decisions, the court finds that the record belies the movant’s
claim and no violation of the movant’s constitutional right to counsel occurred. Contrary
to the movant’s assertions, counsel need not pursue frivolous arguments, positions or
objections at the trial level, including those that are contrary to established law. See
United States v. Cronic, 466 U.S. 648, 657 (1984) (stating that counsel is not required to
attempt a useless charade).
Having considered the notice of intent to plead guilty (docket no. 39), the plea
agreement (docket no. 41-1), the notice regarding entry of plea of guilty (docket no. 42),
the change of plea hearing (docket no. 84), the report and recommendation to accept guilty
pleas (docket no. 44), the order accepting the guilty pleas (docket no. 46), the objections
to the pre-sentence investigation report (docket nos. 49, 50 & 51), the pre-sentence
investigation report (docket no. 52), the sentencing memoranda (docket nos. 54 & 55), the
sentencing exhibits (docket nos. 59 & 62), the additional sentencing memoranda (docket
nos. 63 & 64), the sentencing hearing (docket nos. 87 & 88) and the appellate opinion
(docket no. 92), the court finds that the movant’s contentions are frivolous. Few, if any,
of the movant’s statements are trustworthy. His contentions regarding what occurred
during his change of plea hearing and sentencing hearing are preposterous.
Given the record, it cannot be said that the movant did not knowingly and
voluntarily plead guilty. Similarly, after the movant entered valid pleas, counsel made
appropriate arguments and refrained from making baseless assertions. No valid basis to
challenge the offense conduct, to contest the enhancement for obstruction of justice or to
resist the upward departure for understated criminal history existed. So, the decisions that
counsel made benefitted the movant, especially considering that the movant would have
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lost acceptance of responsibility if he frivolously contested offense conduct. Indeed, the
court repeatedly observed that it was a close question as to whether the movant should be
awarded acceptance of responsibility because he had already come dangerously close to
raising frivolous sentencing issues. Thus, the court is unable to conclude that counsel
provided constitutionally ineffective assistance. See Donnell v. United States, 765 F.3d
817, 820-21 (8th Cir. 2014) (emphasizing that only errors so serious that counsel was not
functioning as the counsel guaranteed by the Sixth Amendment are actionable).
Moreover, the movant’s assertions as to what counsel did or failed to do would not
have changed the outcome. Stated differently, the movant suffered no prejudice. During
the movant’s sentencing hearing, the court stressed the movant’s unlawful conduct and
criminal history and made abundantly clear that the movant’s sentence would remain the
same even if an error occurred in computing the advisory sentencing guidelines range. Cf.
United States v. Hentges, 779 F.3d 820, 822-23 (8th Cir. 2015) (noting considerable
discretion in fashioning a sentence under 18 U.S.C. § 3553(a)).
In sum, the movant misstates the record and misunderstands the law. The evidence
of record conclusively demonstrates that the movant is not entitled to the relief sought.
Specifically, it indicates that the movant’s claim is without merit, especially considering
that counsel represented the movant in a manner that exceeded constitutional requirements.
Given the record, the court finds that the denial of the movant’s motion under 28 U.S.C.
§ 2255 comports with the Constitution, results in no “miscarriage of justice” and is
consistent with the “rudimentary demands of fair procedure.” Hill v. United States, 368
U.S. 424, 428 (1962); see also Apfel, 97 F.3d at 1076 (“Relief under 28 U.S.C. § 2255
is reserved for transgressions of constitutional rights and for a narrow range of injuries that
could not have been raised for the first time on direct appeal and, if uncorrected, would
result in a complete miscarriage of justice.” (citing Poor Thunder v. United States, 810
F.2d 817, 821 (8th Cir. 1987))). Accordingly, the movant’s motion to vacate, set aside
or correct sentence pursuant to 28 U.S.C. § 2255 is denied. As for a certificate of
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appealability, the movant has not made the requisite showing. See 28 U.S.C. § 2253(c)(2).
Accordingly, a certificate of appealability under 28 U.S.C. § 2253 will not issue.
IT IS SO ORDERED.
DATED this 24th day of March, 2016.

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