Thomas v. USA

Filing 16

ORDER: The 15 Pro Se Motion to Amend/Correct is granted. The 1 Pro Se Motion to Vacate/Set Aside/Correct Sentence (2255) (Criminal Action 11cr2046-LRR-6) is denied. A certificate of appealability is denied. Signed by Judge Linda R Reade on 08/16/2017. (copy w/NEF mailed to Petitioner) (jjh)

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

DION THOMAS,
Movant,

No. 16-CV-2006-LRR
No. 11-CR-2046-LRR

vs.
UNITED STATES OF AMERICA,

ORDER

Respondent.

TABLE OF CONTENTS
I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
II. RELEVANT BACKGROUND AND PROCEDURAL HISTORY . . . . . . . . . . 2
A. Procedural History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
B. Relevant Facts Established at Trial . . . . . . . . . . . . . . . . . . . . . . . . . 6
III. LEGAL STANDARDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
A. Standards Applicable to Motion Pursuant to 28 U.S.C. § 2255 . . . . . . 6
B. Standards Applicable to Constitutional Right to Counsel . . . . . . . . . . 10
IV. ANALYSIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
A. Request for Evidentiary Hearing . . . . . . . . . . . . . . . . . . . . . . . . . 12
B. Movant’s Arguments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
1. Ineffective Assistance of Trial Counsel Claims . . . . . . . . . . . .
a. Failure to object to government’s use of a cooperating
witness’ plea agreement . . . . . . . . . . . . . . . . . . . . . . . . .
b. Failure to object to Jury Instruction 23 . . . . . . . . . . . . .
c. Failure to conduct an adequate background investigation
and obtain movant’s Illinois incarceration records . . . . . . . .
d. Failure to recall government agents . . . . . . . . . . . . . . .
e. Failure to effectively cross-examine Christopher Glover .
f. Failure to object to “material matters” . . . . . . . . . . . . .

13
14
17
20
22
23
24

2. Ineffective Assistance of Appellate Counsel Claims . . . . . . . . . 24
3. Defaulted Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
V. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

I. INTRODUCTION
This matter comes before the court on Dion Thomas’ motion to vacate, set aside or
correct sentence pursuant to 28 U.S.C. § 2255 (“motion”), which he filed on January 13,
2016 (civil docket no. 1). On February 1, 2017, the court directed the government to brief
the claims that movant asserted in the motion (civil docket no. 4). The court also directed
counsel to file with the court an affidavit responding only to movant’s specific allegations
of ineffective assistance of counsel (id.). Trial counsel timely complied with the court’s
order by filing his affidavit on March 8, 2017 (civil docket no. 7). Appellate counsel filed
his affidavit on March 19, 2017 (civil docket no. 8). The government filed its responsive
brief on April 4, 2017 (civil docket no. 9). Movant filed his reply on May 15, 2017 (civil
docket no. 13). On May 19, 2017, movant filed a motion to amend the claim concerning
ineffective assistance of appellate counsel (“amended motion”) (civil docket no. 15).1
II. RELEVANT BACKGROUND AND PROCEDURAL HISTORY
A. Procedural History
On December 8, 2011, a grand jury charged movant and five others in a seven
count indictment (criminal docket no. 7). Movant was charged in two counts. Movant’s
charges by count were: count 1, conspiracy to distribute and possess with intent to
distribute 100 grams or more of a mixture or substance containing a detectable amount of
heroin after having been previously convicted of a felony drug crime, a violation of 21
U.S.C. §§ 841(a)(1), 841(b)(1)(B), 846 and 851; and count 3, distribution of .54 grams

1

Movant merely expounds upon factual assertions made in support of his claims
concerning appellate counsel. Accordingly, movant’s amended motion shall be granted.
2

of a mixture or substance containing a detectable amount of heroin after having been
previously convicted of a felony drug crime, a violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(C) and 851.2 A forfeiture claim was also made for property or proceeds
including proceeds of $250,000 (criminal docket no. 7).

On May 18, 2012, the

government filed an Information (criminal docket no. 91) pursuant to 21 U.S.C. § 851,
notifying the court and movant of the government’s intent to seek enhanced penalties
against movant based on his August 25, 2009 conviction for possession with intent to
deliver a controlled substance in the Circuit Court of Cook County, Illinois.3

At

arraignment, movant was represented by appointed counsel (“trial counsel”) and entered
pleas of not guilty (criminal docket no. 76).
On June 27, 2012, movant filed a pro se motion for a new attorney (criminal docket
no. 109). Movant argued that trial counsel had “not filed anything on [his] behalf” (id.
at 1). Movant argued that he was “constantly asking [trial counsel] to file motions on [his]
behalf,” but trial counsel failed to do so, and that trial counsel did “not have [his] best
interest” (id.). At a hearing, movant reiterated his concerns and noted that trial counsel
was not defending him but had merely advised him to accept a guilty plea (criminal docket
no. 332 at 2-4). Movant also complained that trial counsel did not show him any
statements from witnesses that implicated him (id. at 3). When asked what motion he
wished trial counsel to file, movant responded:
I mean, I’m not a lawyer, but I’m pretty sure he can find
me—if I’m charged with something, I’m pretty sure there is a
motion that can be filed as far as this case is. I feel like I’m

2

In August of 2009, movant was convicted of possession of between 15-100 grams
of cocaine. See United States v. Thomas, 760 F.3d 879, 890 (8th Cir. 2014).
3

On March 11, 2013, the government filed an Amended Information (criminal
docket no. 290), which “correct[ed] the name of [movant’s] crime of conviction from
‘possession with intent to deliver a controlled substance’ to ‘possession of a controlled
substance.’”
3

just sitting here and I’m at the same stage I was at, and all he
wants me to do is just take a plea agreement.
(id. at 4). Trial counsel then informed the court that he and movant
have discussed the evidence many times. I’ve even reserved
a room at the jail where he could—part of the evidence in the
case—this was a case where there was wiretaps. And so I
reserved a room where he could actually listen to the recorded
conversations, which he’s done. And then I’ve discussed the
other evidence in the case again.
So I haven’t provided him copies of anything because,
according to the discovery, standard discovery order, I can’t.
But I did, and I think he’s got it with him here today, I sent
him a several page letter summarizing what the evidence was
and what my recommendation would be as far as whether to
accept a plea agreement or go to trial, and the pitfalls he might
run into if he did go to trial. So he knows as much about the
case as I do.
(id. at 7-8). The court denied movant’s motion for new counsel (criminal docket no. 113).
On August 6, 2012, trial counsel filed a motion in limine to exclude, among other
things, any “written plea agreements of government witnesses” as hearsay and as
inadmissible under Federal Rule of Evidence 403 (criminal docket no. 146 at 2-3). Trial
counsel argued that “what the witness and the government have agreed can be brought out
in testimony without the baggage of potentially prejudicial factual stipulations or other
agreements to which [movant] is not a party” (id. at 3). The court granted the motion in
limine to exclude this evidence, noting that the government did “not intend to offer
cooperating witnesses’ written plea agreements into evidence” (criminal docket no. 165
at 4).
The government also filed a motion in limine asking the court to enter a pretrial
order admitting into evidence testimony regarding movant’s crack cocaine distribution
(criminal docket no. 147). On August 9, 2012, trial counsel filed a supplemental motion
in limine to exclude the same (criminal docket no. 149).
4

The court granted the

government’s motion and denied movant’s supplemenal motion, finding that evidence of
movant’s crack cocaine distribution was admissible pursuant to Rule 404(b) to show
movant’s motive, opportunity, intent, preparation, plan, knowledge, absence of mistake
or lack of accident (criminal docket no. 165).
Movant proceeded to trial on August 27, 2012 (criminal docket no. 168). At the
close of all of the evidence, trial counsel moved for a judgment of acquittal on counts 1
and 3, which the court denied (criminal docket no. 173). On August 29, 2012, the jury
returned verdicts of guilty on both counts (criminal docket no. 180). On September 12,
2012, trial counsel filed a motion for a new trial (criminal docket no. 186), which the court
denied on November 8, 2012 (criminal docket no. 216). On December 21, 2012, movant
again filed a pro se motion for new counsel based on the same grounds as in his earlier
motion (criminal docket no. 245). The court again denied the motion (criminal docket no.
255). A presentence report was finalized on January 4, 2013 (criminal docket no. 258).
With the help of his mother, movant retained private counsel on January 25, 2013
(criminal docket nos. 271 & 272).4 A sentencing hearing was held on March 25, 2013 and
July 16, 2013 (criminal docket nos. 305, 319 & 320).
The court granted movant’s motion for a downward departure (criminal docket no.
305) and sentenced him to 240 months’ imprisonment on each count, with the sentences
to be served concurrently (criminal docket nos. 306 & 320). In addition, the court
imposed a total of eight years of supervised release and a total of $200 in special
assessments (id.).
Movant appealed his convictions and sentences. On direct appeal, he unsuccessfully
argued that: (1) the court violated Federal Rule of Evidence 404(b) by allowing testimony
regarding movant’s alleged crack distribution and alleged money laundering; (2) the court
erred by denying movant’s motions for new counsel; (3) the court erred by considering

4

Retained counsel also represented movant on direct appeal.
5

movant’s uncharged, crack-distribution conduct in calculating his advisory sentencing
guidelines offense level; and (4) the court erred by including movant’s state court
conviction for cocaine possession in calculating his criminal history score. See Thomas,
760 F.3d at 882. The United States Supreme Court denied certiorari on January 12, 2015.
Thomas v. United States, 135 S. Ct. 1013 (2015).
In the motion, the court understands movant to assert a plethora of ineffective
assistance of trial and appellate counsel claims (civil docket nos. 1 & 1-1). Movant also
argues that: (1) prosecutorial misconduct occurred during trial, that is, the government
used a cooperating witness’ plea agreement in violation of the court’s in limine order, and
(2) the court misapplied the law (id.).
B. Relevant Facts Established at Trial
The court agrees with the recitation of relevant facts established at trial as stated in
the government’s brief (civil docket no. 9) and the summary of the trial evidence as stated
in the Eighth Circuit Court of Appeals’ appellate opinion, see Thomas, 760 F.3d at 882-83.
III. LEGAL STANDARDS
A. Standards Applicable to Motion Pursuant to 28 U.S.C. § 2255
A prisoner in custody under sentence of a federal court is able to move the
sentencing court to vacate, set aside or correct a sentence. See 28 U.S.C. § 2255(a). To
obtain relief pursuant to 28 U.S.C. § 2255, a federal prisoner must establish: (1) “that the
sentence was imposed in violation of the Constitution or laws of the United States”;
(2) “that the court was without jurisdiction to impose such sentence”; (3) “that the sentence
was in excess of the maximum authorized by law”; or (4) “[that the judgment or sentence]
is otherwise subject to collateral attack.” Id.; see also Hill v. United States, 368 U.S. 424,
426-27 (1962) (listing four grounds upon which relief under 28 U.S.C. § 2255 may be
claimed); Watson v. United States, 493 F.3d 960, 963 (8th Cir. 2007) (same); Lee v.
United States, 501 F.2d 494, 499-500 (8th Cir. 1974) (clarifying that subject matter
6

jurisdiction exists over enumerated grounds within the statute); Rule 1 of the Rules
Governing Section 2255 Proceedings (specifying scope of 28 U.S.C. § 2255). If any one
of the four grounds is established, the court is required “to vacate and set aside the
judgment and [it is required to] discharge the prisoner or resentence him or grant a new
trial or correct the sentence as may appear appropriate.” 28 U.S.C. § 2255(b).
When enacting 28 U.S.C. § 2255, Congress “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)) (internal quotation mark omitted). Although it appears to be broad, 28 U.S.C.
§ 2255 does not provide a remedy for “all claimed errors in conviction and sentencing.”
Id. (quoting United States v. Addonizio, 442 U.S. 178, 185 (1979)). Rather, 28 U.S.C.
§ 2255 is intended to redress constitutional and jurisdictional errors and, apart from those
errors, only “fundamental defect[s] which inherently [result] in a complete miscarriage of
justice” and “omission[s] inconsistent with the rudimentary demands of fair procedure.”
Hill, 368 U.S. at 428; see also Sun Bear, 644 F.3d at 704 (clarifying that the scope of
28 U.S.C. § 2255 is severely limited and quoting Hill, 368 U.S. at 428); United States v.
Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996) (“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))). A collateral challenge under 28 U.S.C. § 2255 is not interchangeable
or substitutable for a direct appeal. See United States v. Frady, 456 U.S. 152, 165 (1982)
(making clear that a motion pursuant to 28 U.S.C. § 2255 will not be allowed to do service
for an appeal). Consequently, “an error that may justify reversal on direct appeal will not
necessarily support a collateral attack on a final judgment.” Id. (quoting Addonizio, 442
U.S. at 184).

7

The law of the case doctrine has two branches. See Ellis v. United States, 313 F.3d
636, 646 (1st Cir. 2002). The first branch involves the “mandate rule (which, with only
a few exceptions, forbids, among other things, a lower court from relitigating issues that
were decided by a higher court, whether explicitly or by reasonable implication, at an
earlier stage of the same case).” Id. The second branch, which is somewhat more
flexible, provides that “a court ordinarily ought to respect and follow its own rulings”
throughout subsequent stages of the same litigation. Id.; see also United States v. Bloate,
655 F.3d 750, 755 (8th Cir. 2011) (“The [law of the case] doctrine applies only to actual
decisions—not dicta—in prior stages of the case.”); Roth v. Sawyer-Cleator Lumber Co.,
61 F.3d 599, 602 (8th Cir. 1995) (“Law of the case applies only to issues actually decided,
either implicitly or explicitly, in the prior stages of a case.”). “[R]ulings are the law of
the case and will not be disturbed absent an intervening change in controlling authority.”
Baranski v. United States, 515 F.3d 857, 861 (8th Cir. 2008); see also Davis, 417 U.S.
at 342 (observing that law of the case did not preclude relief under 28 U.S.C. § 2255
because of intervening change in the law).
Hence, in collateral proceedings based on 28 U.S.C. § 2255, “[i]ssues raised and
decided on direct appeal cannot ordinarily be relitigated.” United States v. Wiley, 245
F.3d 750, 751 (8th Cir. 2001) (citing United States v. McGee, 201 F.3d 1022, 1023 (8th
Cir. 2000)); see also Lefkowitz v. United States, 446 F.3d 788, 790-91 (8th Cir. 2006)
(concluding that the same issues that have been raised in a new trial motion and decided
by the district court cannot be reconsidered in a subsequent collateral attack); Bear Stops
v. United States, 339 F.3d 777, 780 (8th Cir. 2003) (“It is well settled that claims which
were raised and decided on direct appeal cannot be relitigated on a motion to vacate
pursuant to 28 U.S.C. § 2255.” (quoting United States v. Shabazz, 657 F.2d 189, 190 (8th
Cir. 1981))); Dall v. United States, 957 F.2d 571, 572-73 (8th Cir. 1992) (per curiam)
(concluding that claims already addressed on direct appeal could not be raised); United

8

States v. Kraemer, 810 F.2d 173, 177 (8th Cir. 1987) (concluding that a movant could not
“raise the same issues . . . that have been decided on direct appeal or in a new trial
motion”); Butler v. United States, 340 F.2d 63, 64 (8th Cir. 1965) (concluding that a
movant was not entitled to another review of his question). With respect to a claim that
has already been conclusively resolved on direct appeal, the court may only consider the
same claim in a collateral action if “convincing new evidence of actual innocence” exists.
Wiley, 245 F.3d at 752 (citing cases and emphasizing the narrowness of the exception).
Further, movants ordinarily are precluded from asserting claims that they failed to
raise on direct appeal. See McNeal v. United States, 249 F.3d 747, 749 (8th Cir. 2001);
see also Ramey v. United States, 8 F.3d 1313, 1314 (8th Cir. 1993) (per curiam) (citing
Frady, 456 U.S. at 167-68, for the proposition that a movant is not able to rely on
28 U.S.C. § 2255 to correct errors that could have been raised at trial or on direct appeal);
United States v. Samuelson, 722 F.2d 425, 427 (8th Cir. 1983) (concluding that a
collateral proceeding is not a substitute for a direct appeal and refusing to consider matters
that could have been raised on direct appeal). “A [movant] who has procedurally defaulted
a claim by failing to raise it on direct review may raise that claim in a [28 U.S.C. §] 2255
proceeding only by demonstrating cause for the default and prejudice or actual innocence.”
McNeal, 249 F.3d at 749 (citing Bousley v. United States, 523 U.S. 614, 622 (1998)); see
also Massaro v. United States, 538 U.S. 500, 504 (2003) (“[T]he general rule [is] that
claims not raised on direct appeal may not be raised on collateral review unless the
[movant] shows cause and prejudice.”). “‘[C]ause’ under the cause and prejudice test
must be something external to the [movant], something that cannot fairly be attributed to
him.” Coleman v. Thompson, 501 U.S. 722, 753 (1991). If a movant fails to show cause,
a court need not consider whether actual prejudice exists. See McCleskey v. Zant, 499
U.S. 467, 501 (1991). Actual innocence under the actual innocence test “means factual
innocence, not mere legal insufficiency.” Bousley, 523 U.S. at 623; see also McNeal, 249

9

F.3d at 749 (“[A movant] must show factual innocence, not simply legal insufficiency of
evidence to support a conviction.”). To establish actual innocence, a movant “must
demonstrate that, in light of all the evidence, it is more likely than not that no reasonable
juror would have convicted him.” Bousley, 523 U.S. at 623 (citation omitted) (internal
quotation marks omitted).5
B. Standards Applicable to Constitutional Right to Counsel
The Sixth Amendment to the United States Constitution provides in pertinent part
that, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the
Assistance of Counsel for his [or her] defen[s]e.” U.S. Const., amend. VI. Furthermore,
there is a constitutional right to effective assistance of counsel on direct appeal. Evitts v.
Lucey, 469 U.S. 387, 393-95 (1985); Douglas v. California, 372 U.S. 353, 356-57 (1963).
The Sixth Amendment right to effective counsel is clearly established.

See

Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the Supreme Court
explained that a violation of that right has two components:
First, [a movant] must show that counsel’s performance was
deficient. This requires showing that counsel made errors so
serious that counsel was not functioning as the “counsel”
guaranteed the [movant] by the Sixth Amendment. Second, [a
movant] must show that the deficient performance prejudiced
the defense. This requires showing that counsel’s errors were
so serious as to deprive the [movant] of a fair trial, a trial
whose result is reliable.
Id. at 687; see also Williams v. Taylor, 529 U.S. 362, 390 (2000) (reasserting Strickland
standard).

Thus, Strickland requires a showing of both deficient performance and

prejudice. However, “a court deciding an ineffective assistance claim [need not] address

5

The procedural default rule applies to a conviction obtained through trial or
through the entry of a guilty plea. See, e.g., Matthews v. United States, 114 F.3d 112,
113 (8th Cir. 1997); Thomas v. United States, 112 F.3d 365, 366 (8th Cir. 1997); Reid v.
United States, 976 F.2d 446, 448 (8th Cir. 1992).
10

both components of the inquiry if the [movant] makes an insufficient showing on one.”
Strickland, 466 U.S. at 697. “If it is easier to dispose of an ineffectiveness claim on
grounds of lack of sufficient prejudice, . . . that course should be followed.” Id.; see also
Apfel, 97 F.3d at 1076 (“[A court] need not address the reasonableness of the attorney’s
behavior if the movant cannot prove prejudice.”).
To establish unreasonably deficient performance, a movant “must show that
counsel’s representation fell below an objective standard of reasonableness.” Strickland,
466 U.S. at 688. The “reasonableness of counsel’s challenged conduct [must be reviewed]
on the facts of the particular case, viewed as of the time of counsel’s conduct.” Id. at 690.
There is a strong presumption of competence and reasonable professional judgment. Id.;
see also United States v. Taylor, 258 F.3d 815, 818 (8th Cir. 2001) (operating on the
“strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance” (quoting Strickland, 466 U.S. at 689)); Sanders v. Trickey, 875
F.2d 205, 210 (8th Cir. 1989) (broad latitude to make strategic and tactical choices
regarding the appropriate action to take or refrain from taking is afforded when acting in
a representative capacity) (citing Strickland, 466 U.S. at 694). In sum, the court must
“determine whether, in light of all the circumstances, the identified acts or omissions were
outside the range of professionally competent assistance.” Strickland, 466 U.S. at 690.
To establish prejudice, “[i]t is not enough for [a movant] to show that the errors had
some conceivable effect on the outcome of the proceeding.” Id. at 693. Rather, a movant
“must show that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable probability
is a probability sufficient to undermine confidence in the outcome.” Id. at 694. In other
words, “the question is whether there is a reasonable probability that, absent those errors,
the fact finder would have had a reasonable doubt respecting guilt.” Id. at 695. In

11

answering that question, the court “must consider the totality of the evidence before the
judge or jury.” Id.
IV. ANALYSIS
A. Request for Evidentiary Hearing
A district court is given discretion in determining whether to hold an evidentiary
hearing on a motion under 28 U.S.C. § 2255. See United States v. Oldham, 787 F.2d 454,
457 (8th Cir. 1986). In exercising that discretion, the district court must determine
whether the alleged facts, if true, entitle the movant to relief. See Payne v. United States,
78 F.3d 343, 347 (8th Cir. 1996). Accordingly, a 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.” Engelen v. United States, 68
F.3d 238, 240-41 (8th Cir. 1995) (citations omitted); see also Delgado v. United States,
162 F.3d 981, 983 (8th Cir. 1998) (stating that an evidentiary hearing is unnecessary
where allegations, even if true, do not warrant relief or allegations cannot be accepted as
true because they are contradicted by the record or lack factual evidence and rely on
conclusive statements); United States v. Hester, 489 F.2d 48, 50 (8th Cir. 1973) (stating
that no evidentiary hearing is necessary where the files and records of the case demonstrate
that relief is unavailable or where the motion is based on a question of law). Stated
differently, the court can dismiss a 28 U.S.C. § 2255 motion without a hearing where “the
files and records of the case conclusively show that the prisoner is entitled to no relief.”
28 U.S.C. § 2255(b); accord Standing Bear v. United States, 68 F.3d 271, 272 (8th Cir.
1995) (per curiam).
The court concludes that it is able to resolve movant’s claims from the record. See
Rogers v. United States, 1 F.3d 697, 699 (8th Cir. 1993) (holding that “[a]ll of the

12

information that the court needed to make its decision with regard to [the movant’s] claims
was included in the record” and, therefore, the court “was not required to hold an
evidentiary hearing” (citing Rule Governing Section 2255 Proceedings 8(a) and United
States v. Raddatz, 447 U.S. 667, 674 (1980))). The evidence of record conclusively
demonstrates that movant is not entitled to the relief sought. Specifically, it indicates that
movant’s assertions are meritless and/or frivolous. As such, the court finds that there is
no need for an evidentiary hearing.
B. Movant’s Arguments
With respect to the merits of movant’s claims, the court deems it appropriate to
deny movant’s 28 U.S.C. § 2255 motion for the reasons that are stated in the government’s
resistance because it adequately applied the law to the facts in the case. The government
correctly asserted that: (1) trial counsel and appellate counsel provided professionally
competent assistance to movant and did not make objectively unreasonable choices
regarding the appropriate action to take or refrain from taking that prejudiced movant’s
defense and (2) some of movant’s claims are procedurally defaulted. Regarding the former
point, trial counsel and appellate counsel thoroughly explained their strategy in their
affidavits (civil docket nos. 7 & 8), and such explanation is consistent with what occurred
during pre-trial, trial, sentencing and appellate proceedings.
1. Ineffective Assistance of Trial Counsel Claims
Movant claims that trial counsel was ineffective because he: (1) failed to object or
move for a mistrial after the government used the plea agreement of a cooperating witness
to correct her testimony regarding movant’s drug distribution quantities; (2) failed to object
to Jury Instruction 23, which led to constructive amendment of the indictment; (3) failed
to conduct an adequate investigation of movant’s background and obtain movant’s Illinois
incarceration records; (4) failed to recall government agents; (5) failed to conduct adequate

13

cross-examination of a government witness; and (6) failed to object to “material matters.”
The court addresses, and rejects, each contention in turn.
a.

Failure to object to government’s use of a cooperating witness’ plea
agreement

As previously mentioned, the court granted trial counsel’s motion in limine to
exclude from evidence cooperating witnesses’ written plea agreements. During direct
examination of cooperating witness Katina McKenzie-Jackson (movant’s aunt), the
government questioned her about the quantities of heroin and cocaine movant had delivered
to Waterloo (criminal docket no. 200 at 62-66). McKenzie-Jackson initially testified that
she did not know how much heroin movant would bring with him when he visited
Waterloo (criminal docket no. 200 at 64). The government then refreshed her recollection
with her written plea agreement, and the following colloquy ensued:
Q. How much heroin would you get from [movant]?
A. Maybe a half gram, sometimes a gram.
Q. What would you do with that heroin?
A. Use it, and sometimes I sold some of it.
Q. And how often would you get [heroin] from [movant]?
A. Mostly every time he came.
Q. Do you know how much heroin he would bring when he
came to town?
A. No, ma’am.
Q. Ms. McKenzie-Jackson, did you enter into a plea
agreement with the United States?
A. Yes, I did.
Q. As part of that plea agreement, did you initial factual
representations within the agreement?
A. Yes, ma’am.
Q. And isn’t it true, Ms. McKenzie-Jackson, that in [one] of
those factual statements, you initialed a statement that said
[movant] made at least 10 trips from Chicago, bringing at least
10 grams of heroin and 2 ounces of crack cocaine on each
trip?
A. Yes, ma’am.
Q. Are you telling us now that’s not true?
14

A. No, ma’am.
Q. So do you know how much he brought with him?
A. Not exactly, but I guess—I guess maybe 10 grams.
Sometimes he brought 5. I didn’t know, you know, each time
what he brought.
Q. Would it vary from time to time?
A. Yes, it did.
(criminal docket no. 200 at 64-65). Trial counsel did not object to this line of questioning.
Contrary to movant’s contention, trial counsel’s failure to object or move for a
mistrial following the government’s use of McKenzie-Jackson’s plea agreement does not
constitute ineffective assistance of counsel. As an initial matter, the written plea agreement
was not introduced into evidence at trial in violation of the court’s in limine order.
Moreover, trial counsel thoroughly explained in his affidavit why he did not object to the
government’s use of the plea agreement during McKenzie-Jackson’s testimony:
Indeed, it is not the fact that the cooperator had entered into a
plea agreement [that] is problematical. It is the language in a
plea about the cooperation provisions and the requirement of
testifying truthfully and the prospect of a time cut if the
government believes the testimony is truthful that is
problematic to a defendant. Also, the factual stipulations in
plea agreements often include hearsay statements that could be
prejudicial to the defendant. None of the cooperation
provisions or hearsay statement of facts in
[McKenzie-Jackson’s] plea agreement were the subject of her
testimony, if counsel’s memory is correct. In addition,
[McKenzie-Jackson], in response to questions from the
prosecutor, adopted at the trial those facts she stipulated to in
the plea agreement, so there was no hearsay problem.
(civil docket no. 7 at 3).
Strategic decisions like this one are virtually unchallengeable, see Link v. Luebbers,
469 F.3d 1197, 1204 (8th Cir. 2006), and the court sees no substantial argument that trial
counsel’s decision was outside the wide range of reasonable professional assistance. See
Dansby v. Hobbs, 766 F.3d 809, 836 (8th Cir. 2014). Furthermore, even if counsel’s
15

conduct

constituted

deficient

performance,

movant

fails

to

establish

that

McKenzie-Jackson’s testimony was prejudicial. Indeed, even without her testimony, there
is ample evidence supporting the jury’s verdict that movant distributed more than 100
grams of heroin during the course of the conspiracy. For example, Arthur Scott testified
that he received about forty-five grams of heroin per week from movant (180 grams per
month) for at least a two-month time period (criminal docket no. 199 at 21, 40). At
another point in his testimony, Scott estimated that he received even more heroin from
movant—between 240 to 250 grams per month (id. at 37). Coconspirator Essex McKenzie
(movant’s uncle) testified that he received three to four grams of heroin from movant twice
a week for approximately two years (criminal docket no. 200 at 36-37). Although the
court ultimately made more conservative estimates as to the amount of heroin distributed
to each of these individuals in its sentencing findings,6 movant does not show a reasonable
probability that the jury would have reached a different conclusion in the absence of
McKenzie-Jackson’s testimony regarding the amount of heroin movant distributed in
Waterloo. Hence, this ineffective assistance of trial counsel claim fails.
In his reply brief, movant contends that trial counsel should have filed a motion for
bill of particulars because “it would have protected [movant] from being ambushed by the
unusual methods the Government used to violate [movant’s] Due Process Rights” (civil
docket no. 13 at 3-4). A motion for bill of particulars would have had no merit. A motion
for a bill of particulars is appropriate when a movant believes that the indictment does not
provide enough information to prepare a defense. See United States v. Huggans, 650 F.3d
1210, 1220 (8th Cir. 2011). The purpose of a bill of particulars is to inform a defendant
of the nature of a charge with sufficient precision to enable him to prepare for trial and to
avoid or minimize the danger of surprise at trial. Id. But it is not a discovery device to

6

The court found that movant had distributed 127 total grams of heroin to Arthur
Scott and 312 total grams of heroin to Essex McKenzie (criminal docket no. 304 at 17).
16

be used to require the government to provide a detailed disclosure of the evidence it would
present at trial. Id. Yet that is what movant appears to be contending that trial counsel
should have attempted. Contrary to what movant suggests, a motion for bill of particulars
could not have been used to establish the details of the conspiracy. In any event, the
government’s pretrial disclosures and pretrial motions and responses were more than
sufficient to enable movant to understand the nature of the charges, prepare a defense and
avoid unfair surprise. See id. Trial counsel was not deficient in failing to file a meritless
motion, nor was movant prejudiced by it.
b.

Failure to object to Jury Instruction 23

Movant next contends that trial counsel was ineffective for failing to renew his
objection at trial to the crack cocaine distribution evidence by failing to object to Jury
Instruction 23, which provides as follows:
You have heard evidence that the defendant participated
in distributing crack cocaine. You may consider this evidence
only if you unanimously find it is more likely true than not
true. This is a lower standard than proof beyond a reasonable
doubt. It is instead proof by the greater weight of the
evidence. If you find that this evidence of other acts is proved
by the greater weight of the evidence, you may consider it to
help you decide issues related to the defendant’s intent,
knowledge and/or motive. You should give it the weight and
value you believe it is entitled to receive. You must disregard
it unless you find it is proved by the greater weight of the
evidence.
Remember, even if you find that the defendant may
have committed similar uncharged acts, this is not evidence
that he committed the acts charged in the Indictment. You
may not convict a person simply because you believe he may
have committed similar uncharged acts. The defendant is on
trial only for the crimes charged, and you may consider the
evidence of similar acts only on the issues of intent, knowledge
and/or motive
17

(criminal docket no. 178 at 26).
As previously mentioned, the court permitted the crack cocaine distribution
evidence to be introduced at trial for non-propensity purposes under Federal Rule of
Evidence 404(b) (criminal docket no. 165 at 8, 10). The Eighth Circuit Court of Appeals
affirmed this ruling on direct appeal. See Thomas, 760 F.3d at 884-84. Jury Instruction
23 adequately and correctly set forth the limited purposes for which the evidence could be
considered and largely mirrors the Eighth Circuit Model Instruction 2.08 (Defendant’s
Prior Similar Acts). Cf. United States v. Cruz–Zuniga, 571 F.3d 721, 725-26 (8th Cir.
2009) (finding no abuse of district court’s wide discretion in formulating appropriate jury
instructions where court gave Eighth Circuit Model Instruction on reasonable doubt;
defendant is not entitled to particularly-worded instruction when instructions actually given
by trial court adequately and correctly cover substance of requested instruction).
Movant contends, however, that the preponderance standard set forth in Jury
Instruction 23 “reduces the government’s burden of proof as to the essential elements” of
his charge and permits the jury to “mix and match the level of proof needed to sustain his
conviction” (civil docket no. 1-1 at 40). Nothing in Jury Instruction 23 removes the
government’s burden of proving beyond a reasonable doubt every element of the charged
offenses. Jury Instruction 23 properly defines the burden of proof for other acts as
“greater weight” or preponderance of the evidence. See United States v. Vieth, 397 F.3d
615, 617-18 (8th Cir. 2005) (to be admissible under Rule 404(b), the evidence must be
proved by a preponderance of the evidence).
Movant further argues that Jury Instruction 23 constitutes a constructive amendment
to the indictment. “A constructive amendment occurs when the essential elements of the
offense as charged in the indictment are altered in such a manner—often through the
evidence presented at trial or the jury instructions—that the jury is allowed to convict the
defendant of an offense different from or in addition to the offenses charged in the

18

indictment.” United States v. Hill, 835 F.3d 796, 799 (8th Cir. 2016) (quoting United
States v. Johnson, 719 F.3d 660, 668 (8th Cir. 2013)). In evaluating a constructive
amendment claim, the court “consider[s] whether the admission of evidence or the jury
instructions created a ‘substantial likelihood’ that the [movant] was convicted of an
uncharged offense.” Id. Jury Instruction 23 did not alter the charges in the indictment.
Indeed, it was not an elemental instruction; rather, it was a Rule 404(b) limiting instruction
informing the jury that, if it found that evidence of movant’s crack cocaine distribution was
proved by the greater weight of the evidence, it could then consider the evidence but “only
on the issues of [movant’s] intent, knowledge and/or motive” (criminal docket no. 178 at
26) (emphasis added). Jury Instruction 23 explicitly cautioned the jury that: (1) the crack
cocaine distribution evidence “is not evidence that the defendant committed the acts
charged in the Indictment”; (2) it could “not convict the defendant simply because [it]
believed he may have committed similar uncharged acts”; and (3) the defendant “is on trial
only for the crimes charged” (id.). Thus, Jury Instruction 23 did not materially alter the
elements of the charged offenses such that it was substantially likely that the jury convicted
movant of an uncharged offense.
To the extent movant’s claim is based on the similar doctrine of variance of the
evidence, the claim fails. “The basic difference between a constructive amendment and
a variance is this: a constructive amendment changes the charge, while the evidence
remains the same; a variance changes the evidence, while the charge remains the same.”
United States v. Stuckey, 220 F.3d 976, 981 (8th Cir. 2000). A variance in the evidence
affects a defendant’s right to adequate notice, that is, the Sixth Amendment right “to be
informed of the nature and cause of the accusation.” U.S. Const. amend. VI; Stuckey, 220
F.3d at 981. Thus, a variance between the indictment and proof at trial requires reversal
of a conviction only if the variance actually prejudiced the defendant. See United States
v. Begnaud, 783 F.2d 144, 148 (8th Cir. 1986). The primary consideration in this

19

determination is whether the indictment fully and fairly apprised the defendant of the
charges he or she must meet at trial. Id. Clearly, the indictment here fully apprised
movant of the proof that the government ultimately presented against him at trial. The
indictment charged movant with conspiracy to distribute, and distribution of, heroin. This
was the evidence the government produced at trial. Further, movant cannot now claim that
he was unaware that the government would present evidence of his crack cocaine
distribution in view of the fact that the court issued an in limine order allowing the
government to present this evidence at trial. See United States v. Whirlwind Soldier, 499
F.3d 862, 871 (8th Cir. 2007); see also United States v. Cain, 487 F.3d 1108, 1113-14
(8th Cir. 2007) (rejecting challenge to conviction on variance argument where the
defendant had notice of evidence to be adduced at trial).
Ineffective assistance claims cannot succeed where the argument counsel failed to
make is without merit. See Gray v. Bowersox, 281 F.3d 749, 756 n.3 (8th Cir. 2002)
(“[B]ecause the underlying objection would have been without merit, a claim of ineffective
assistance is not viable.”). Accordingly, movant’s Jury Instruction 23 claim, either as a
substantive claim or an ineffective assistance of counsel claim, is futile.
c.

Failure to conduct an adequate background investigation and obtain
movant’s Illinois incarceration records

Movant claims that trial counsel failed to conduct an adequate background
investigation and obtain his Illinois incarceration records, which he asserts “could have
been used to challenge the government witnesses[’] testimony” (civil docket no. 1 at 4).
“[T]he duty to investigate does not force defense lawyers to scour the globe on the off
chance something will turn up; reasonably diligent counsel may draw a line when they
have good reason to think further investigation would be a waste.” Forrest v. Steele, 764
F.3d 848, 859 (8th Cir. 2014) (quoting Rompilla v. Beard, 545 U.S. 374, 383 (2005)).
Counsel has a “duty to make reasonable investigations or to make a reasonable decision

20

that makes particular investigations unnecessary.” Hinton v. Alabama, 134 S. Ct. 1081,
1088 (2014) (quoting Strickland, 466 U.S. at 690-91).
As an initial matter, trial counsel’s general background investigation clearly met
professional standards. The record reflects that trial counsel obtained discovery material
from the government, discussed the evidence with movant and “even reserved a room at
the jail” where movant could listen to the wiretapped conversations (criminal docket no.
332 at 7). Trial counsel explained in his affidavit that he visited the jail on “many
occasions to meet with [movant] and discuss the evidence” and to review proposed plea
agreements (civil docket no. 7 at 2). Movant concedes that trial counsel met with him in
person on four occasions to review evidence and discuss the case (civil docket no. 1-5 at
1-3, 28). Movant also acknowledges trial counsel’s investigation efforts, stating that,
during their April 19, 2012 meeting, trial counsel brought “wiretap records, recordings
and text messages” disclosed by the government and asked movant questions about “the
meaning of what was in the material” (id. at 2). Trial counsel states in his affidavit that,
as of the July 2, 2012 hearing on movant’s motion for new counsel, he had spent 70.1
hours working on movant’s case (civil docket no. 7 at 2). As the Eighth Circuit Court of
Appeals acknowledged, movant’s “contention that he had not met or discussed the case
with [trial counsel] boiled down to a matter of credibility. The magistrate judge chose to
believe [trial counsel’s] testimony that he had discussed the evidence many times with
[movant] and that [trial counsel] had reserved a room at the prison where [movant] could
listen to the contents of the wiretaps.” See Thomas, 760 F.3d at 887. The Eighth Circuit
Court of Appeals concluded that movant “could demonstrate only ‘frustration with counsel
who d[id] not share [his] tactical opinions.’” Id. (citation omitted).
With regard to movant’s claim that trial counsel failed to obtain movant’s Illinois
incarceration record, counsel’s affidavit demonstrates that he made a reasonable decision
that rendered further investigation unnecessary. Although movant’s Illinois incarceration

21

records may show that movant was in prison for a few months during his trips to
Waterloo, trial counsel explained in his affidavit that he did not “recall any witness
testifying at trial that he or she bought or otherwise obtained heroin or cocaine from
[movant] while [movant] was in custody” (civil docket no. 7 at 3). Thus, it is unclear how
this evidence would have impeached any witnesses’ testimony or otherwise assisted in
movant’s defense. Trial counsel further concluded that the fact movant “was in jail or
prison was not something that would be helpful to present to the jury as an alibi” (id. at
4).

Indeed, trial counsel explained that the evidence demonstrated that movant’s

incarceration “did not deter him from engaging in drug-related activities,” noting that,
after his release from custody in Illinois, movant (1) came to Iowa without his probation
officer’s permission and therefore was taken to jail where he “made a recorded phone call
. . that discussed the location of drugs” and (2) sold heroin to an informant while being
watched by an agent (id.). Hence, trial counsel’s decision not to further investigate, or
obtain records of, movant’s Illinois incarceration does not constitute deficient performance.
Furthermore, movant has not established prejudice based on trial counsel’s decision. To
the contrary, the court carefully considered (and ultimately excluded) movant’s periods of
incarceration when calculating the total drug quantity at sentencing (criminal docket no.
304 at 16-19).
With respect to movant’s allegation that trial counsel failed to interview witnesses,
movant does not identify which witnesses counsel failed to interview or how additional
witness preparation would have affected the outcome of movant’s trial. Hence, this claim
fails.
d.

Failure to recall government agents

Movant asserts that trial counsel failed to comply with Department of Justice pretrial
“Touhy” regulations and the pretrial discovery order by omitting government
agents—Officer Bryan Furman and Special Agent Kelly Meggers—from the defense

22

witness list, and, thus, trial counsel was precluded from recalling these witnesses. Both
government agents testified for the government and were cross-examined by trial counsel.
Movant fails to establish that trial counsel’s conduct prejudiced his defense. First, movant
does not describe what Meggers’ additional testimony would have been or how the
testimony would have changed the outcome of the trial. With respect to Furman, movant
proffers that Furman “could have confirmed whether or not Lucious Simmons[, a
confidential informant], who[] made the June 23, 2011 controlled buy[,] had ever
mentioned [movant’s] name during several debriefing sessions with law enforcement as
someone selling heroin in Waterloo” (civil docket 1-1 at 29). On cross examination of
Furman, trial counsel questioned him extensively as to whether Simmons had ever
mentioned that movant distributed heroin in Waterloo (criminal docket no. 199 at 83-88).
Trial counsel referred to several debriefings and reports involving Simmons, but Furman
repeatedly testified that he could not remember whether Simmons had ever mentioned
movant’s name (id.). Trial counsel offered to refresh Furman’s recollection by furnishing
him with reports from these debriefings, but Furman indicated that “[t]hen we would be
in the same position” (id. at 88). Thus, it is unclear how recalling Furman to continue this
questioning would have generated a definitive answer or how any definitive response
would have assisted the defense. Even if Furman had testified that Simmons had not
mentioned movant’s name during debriefings, there was ample evidence to support the
jury’s determination that movant distributed heroin in Waterloo. Given such evidence, it
is unlikely that the outcome of the jury’s verdict would have been altered had Furman been
recalled to give a definitive answer. Movant has not demonstrated that he was prejudiced
by trial counsel’s failure to recall Furman. Accordingly, movant’s claim is without merit.
e.

Failure to effectively cross-examine Christopher Glover

Movant further claims that trial counsel’s cross-examination of Christopher Glover
amounted to ineffective assistance of counsel. Glover, who was a fellow inmate of

23

movant, testified that movant admitted to him that he distributed heroin (criminal docket
no. 200 at 127-29). Movant contends that trial counsel was ineffective for failing to ask
Glover whether movant had ever mentioned distributing crack cocaine. Courts “generally
entrust cross-examination techniques, like other matters of trial strategy, to the professional
discretion of counsel.” United States v. Orr, 636 F.3d 944, 952 (8th Cir. 2011). Movant
has not presented evidence indicating how Glover would have responded, let alone that he
would have definitively testified that movant never mentioned distributing crack-cocaine.
Trial counsel’s decision not to elicit unpredictable responses of uncertain relevance and
weight from a witness is nothing more than a matter of professional judgment and trial
strategy. Indeed, Glover could have provided testimony that would have been detrimental
to the defense. Furthermore, even if Glover had testified that movant never mentioned
distributing crack-cocaine, it is unclear how this testimony would have changed the
outcome of the trial. Thus, this claim fails.
f.

Failure to object to “material matters”

Last, movant baldly asserts that trial counsel failed to “object to material matters
in the case” (civil docket no. 1 at 4). He does not identify the particular “material
matters” to which trial counsel allegedly failed to object. Moreover, “[t]he ineffective
assistance standard is highly deferential to an attorney’s judgment, particularly on issues
such as whether to object to the introduction of evidence at trial.” United States v.
Calhoun, 721 F.3d 596, 604 (8th Cir. 2013). In addition, movant does not allege how trial
counsel’s failure to object to any such “material matters” prejudiced him. Accordingly,
this claim fails.
2. Ineffective Assistance of Appellate Counsel Claims
Movant also asserts that his appellate counsel on direct appeal was ineffective. The
Constitution requires that a criminal defendant receive effective legal representation in his
first direct appeal. Evitts, 469 U.S. at 396; Boliek v. Bowersox, 96 F.3d 1070, 1073 (8th

24

Cir. 1996). In reviewing a claim of ineffective assistance of appellate counsel, a court
must apply the familiar test enunciated in Strickland. To prevail, movant “must show that
his counsel’s performance fell below professional standards and that his defense was
prejudiced by his counsel’s ineffectiveness.” Boliek, 96 F.3d at 1073 (quoting Schneider
v. Delo, 85 F.3d 335, 339 (8th Cir. 1996)); see also Strickland, 466 U.S. at 688, 694.
The Eighth Circuit Court of Appeals applies a “rigorous” standard to each prong of the
analysis when the conduct of appellate counsel is at issue:
The deficient performance standard is rigorous. “Experienced
advocates since time beyond memory have emphasized the
importance of winnowing out weaker arguments on appeal.”
Jones v. Barnes, 463 U.S. 745, 751, 103 S. Ct. 3308, 77 L.
Ed. 2d 987 (1983). Therefore, absent contrary evidence, “we
assume that appellate counsel’s failure to raise a claim was an
exercise of sound appellate strategy.” Roe v. Delo, 160 F.3d
416, 418 (8th Cir. 1998) (quotation omitted). The prejudice
standard is equally rigorous. [The movant] must show that
“the result of the proceeding would have been different” had
he raised the [specified] issue on direct appeal. Becht v.
United States, 403 F.3d 541, 546 (8th Cir. 2005), cert.
denied, 546 U.S. 1177, 126 S. Ct. 1346, 164 L. Ed. 2d 59
(2006).
United States v. Brown, 528 F.3d 1030, 1033 (8th Cir. 2008); accord Johnson v. United
States, 860 F. Supp. 2d 663, 745 (N.D. Iowa 2012).
First, movant alleges that appellate counsel failed “to seek [his] input during the
preparation stage of [his] appeal” and “prior to counsel’s submission of [movant’s] brief
as [he] had requested” (civil docket no 1 at 9). Clearly, counsel has “the overarching duty
to advocate the [movant’s] cause . . . to consult with the [movant] on important decisions
. . . [and] to keep the [movant] informed of important developments.” Ryder v. Morris,
752 F.2d 327, 332 (8th Cir. 1985) (quoting Strickland, 466 U.S. at 688). Here, appellate
counsel’s affidavit indicates that he conferred with movant before he filed the appellate
brief: appellate counsel avers that his billing records reflect that he spoke by telephone
25

with movant on October 11, 2013 and October 28, 2013 “regarding the issues to be raised
on appeal (the appeal brief was filed on November 11, 2013)” (civil docket no. 8 at 2-3).
In addition, appellate counsel states that movant “wrote letters to [him] of which [he]
considered when drafting the appeal brief” (id. at 3). In his amended motion, movant
states that he “refuses” appellate counsel’s claim regarding phone calls he had with movant
because appellate counsel “never informed the Court that both phone calls combined for
only ten minutes total” (civil docket no. 15 at 1). Thus, movant concedes that appellate
counsel contacted him before filing the appellate brief. Moreover, the phone records
attached to movant’s amended motion support this (id. at 5). That the phone calls were
short in duration does not in any way establish that appellate counsel’s conduct was
deficient. In fact, movant fails to identify how his consultations with appellate counsel
were deficient or how additional consultation would have produced a different outcome on
appeal. Although movant argues that appellate counsel failed to raise several issues on
appeal, he does not allege that more consultations would have persuaded appellate counsel
to raise those issues. Thus, movant’s claim is without merit.
Movant also alleges that appellate counsel rendered ineffective assistance of counsel
by failing to raise multiple issues on appeal. After reviewing movant’s lengthy brief, the
court discerns those issues to include: prosecutorial misconduct based on the government’s
use of McKenzie-Jackson’s plea agreement; alleged constructive amendment of the
indictment; sufficiency of the evidence supporting the court’s drug quantity findings; the
ineffective assistance of trial counsel; the court’s imposition of special supervised release
conditions; the court’s abuse of discretion in denying trial counsel the opportunity to recall
government agents; and the application of Alleyne v. United States, 133 S. Ct. 2151
(2013), and O’Neil v. United States, 549 F. App’x 595 (8th Cir. 2014) (civil docket nos.
1 at 8, 11-13 & 1-1 at 47-58).

26

Contrary to movant’s contention, appellate counsel raised, and the Eighth Circuit
Court of Appeals addressed and rejected, some of these arguments on direct appeal, albeit
under different legal claims or theories. See generally Thomas, 760 F.3d at 882-92. For
example, the Eighth Circuit Court of Appeals addressed and rejected movant’s contention
that he was unconstitutionally convicted for his uncharged crack cocaine distribution
conduct and his contention regarding the applicability of Alleyne to his case. See id. at
888-90. Accordingly, the court will not reconsider these arguments here. See Bear Stops,
339 F.3d at 780.
On direct appeal, appellate counsel also “accentuate[d] alleged errors that [trial
counsel] made at trial.” Thomas, 760 F.3d at 887. But the Eighth Circuit Court of
Appeals declined to address those claims, noting that “ineffective-assistance claims are best
left for collateral proceedings like § 2255 petitions.” Id. at 887-88. Nonetheless, the
Eighth Circuit Court of Appeals addressed movant’s allegations concerning inadequacies
of trial counsel in the context of the court’s denial of movant’s request for a new attorney.
Furthermore, having found that trial counsel was not ineffective, it follows that appellate
counsel would likewise not be ineffective for failing to raise the issue of ineffectiveness of
trial counsel on direct appeal. Stated differently, appellate counsel could not have been
ineffective in failing to raise a non-meritorious claim that trial counsel was ineffective.
Thus, movant’s assertion that appellate counsel was deficient for failing to raise claims of
ineffective assistance of trial counsel on appeal is without merit.
Additionally, the court rejects movant’s claim that appellate counsel was deficient
for failing to argue on appeal that O’Neil rendered unconstitutional the court’s
consideration of movant’s uncharged crack cocaine activity at sentencing. O’Neil, which
applied Alleyne pursuant to the United States Supreme Court’s direct instruction, is
inapplicable to this case because the court considered movant’s crack cocaine distribution
activity only with respect to the advisory United States Sentencing Guidelines’ calculations.

27

Appellate counsel has no duty to raise meritless claims, and it is not unreasonable for an
attorney to decline to do so. See Dyer v. United States, 23 F.3d 1424, 1426 (8th Cir.
1994).
With respect to movant’s claim that appellate counsel failed to argue that the
government engaged in misconduct by using McKenzie-Jackson’s plea agreement,
appellate counsel averred that, “[a]s movant notes in his [motion], this claim was ‘ . . . not
developed in the trial record by the Court sufficiently to be raised on appeal’” (civil docket
no. 8 at 2). Appellate counsel’s decision not to raise a claim that had not been developed
in trial proceedings is not unreasonable. Furthermore, as discussed above, movant fails
to demonstrate that use of the plea agreement violated the court’s in limine order or
prejudiced his defense. With respect to movant’s claim regarding appellate counsel’s
failure to argue that trial counsel’s inability to recall the government agents was a result
of prosecutorial misconduct, appellate counsel explained in his affidavit that his “review
of the trial transcript did not reveal a record of prosecutorial misconduct,” and, thus, he
did not raise the issue on appeal (id. at 3). Movant has not presented contrary evidence
to overcome the assumption that appellate counsel’s failure to raise this claim was an
exercise of sound appellate strategy. See Roe, 160 F.3d at 418. Moreover, the underlying
claim regarding recalling government witnesses has been discussed and rejected above.
Similarly, movant’s underlying claim regarding constructive amendment of the indictment
has been discussed and rejected above. Appellate counsel’s decision not to raise these
meritless claims is not unreasonable. See Dyer, 23 F.3d at 1426.
With respect to the remaining claims that movant alleges appellate counsel failed to
raise on appeal, appellate counsel explained in his affidavit that he “researched and drafted
a very comprehensive and thorough appeal brief, petition for rehearing en banc, and
petition for writ of certiorari to the United States Supreme Court,” and that he “raised all
issues that had merit” (civil docket no. 8 at 3). Movant fails to provide contrary evidence

28

to rebut the presumption that appellate counsel’s decision to forego raising certain issues
on appeal is “sound appellate strategy.” See Roe, 160 F.3d at 418. Because movant has
not established that appellate counsel’s strategic selection of appellate claims fell short of
the bar of reasonable professional performance, movant’s ineffective assistance of appellate
counsel claims fail. Even if appellate counsel was deficient in failing to raise other issues
on appeal, movant has not shown that he was prejudiced. Movant has failed to present any
evidence to establish that there is a reasonable probability that the Eighth Circuit Court of
Appeals would have reversed the jury’s verdicts or any pretrial, evidentiary or sentencing
rulings based on the issues that movant claims should have been raised on appeal.
3. Defaulted Claims
Movant’s claims asserting (1) prosecutorial misconduct, (2) the court failed to apply
O’Neil to his case and (3) the court abused its discretion in its trial rulings were not raised
on direct appeal, and, thus, they are procedurally defaulted. In addition, movant’s attempt
to relitigate his Alleyne claim is procedurally barred. Movant has not demonstrated
prejudice or produced any new evidence of his actual innocence to overcome his
procedural default. See Wiley, 245 F.3d at 752. Hence, the court declines to discuss these
defaulted claims.
Moreover, the court thoroughly reviewed the record and finds that the denial of
movant’s 28 U.S.C. § 2255 motion comports with the Constitution, results in no
“miscarriage of justice” and is consistent with the “rudimentary demands of fair
procedure.” Hill, 368 U.S. at 428; 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, 810
F.2d at 821)). Movant’s assertions in support of his request for relief do not lead the court
to conclude that a violation of his constitutional right to counsel occurred prior to, during,

29

or after trial proceedings or on appeal. See Taylor, 258 F.3d at 818 (“We operate on the
‘strong presumption that counsel’s conduct falls within a wide range of reasonable
professional assistance.’” (quoting Strickland, 466 U.S. at 689)). No constitutional error
occurred prior to or during trial, and the jury appropriately found movant guilty in light
of the evidence.

Given the reasonableness of the strategy pursued in light of the

information that trial counsel had obtained, it is clear that no violation of movant’s
constitutional right to trial counsel occurred. Further, no constitutional error occurred
during sentencing or on appeal. Given the reasonableness of the strategy pursued in light
of the record developed at the trial court level, it is clear that no violation of movant’s
constitutional right to appellate counsel occurred. The conduct of trial counsel and
appellate counsel fell within a wide range of reasonable professional assistance, Strickland,
466 U.S. at 689, and both counsel’s performances did not prejudice movant’s defense, id.
at 692-94. Additionally, movant’s other arguments are procedurally defaulted and movant
has produced no new evidence that he is actually innocent. Nonetheless, it is clear that
movant’s conviction is based on substantial evidence and his term of 240 months’
imprisonment is appropriate.
V. CONCLUSION
In sum, the alleged errors that are asserted by movant warrant no relief under 28
U.S.C. § 2255. Movant’s claims are without merit and/or procedurally defaulted. Based
on the foregoing, movant’s 28 U.S.C. § 2255 motion shall be denied.
In a 28 U.S.C. § 2255 proceeding before a district judge, the final order is subject
to review, on appeal, by the court of appeals for the circuit in which the proceeding is
held. See 28 U.S.C. § 2253(a). Unless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken to the court of appeals. See 28 U.S.C.
§ 2253(c)(1)(A).

A district court possesses the authority to issue certificates of

appealability under 28 U.S.C. § 2253(c) and Fed. R. App. P. 22(b). See Tiedeman v.

30

Benson, 122 F. 3d 518, 522 (8th Cir. 1997). Under 28 U.S.C. § 2253(c)(2), a certificate
of appealability may issue only if a movant has made a substantial showing of the denial
of a constitutional right. See Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); Garrett
v. United States, 211 F.3d 1075, 1076-77 (8th Cir. 2000); Carter v. Hopkins, 151 F.3d
872, 873-74 (8th Cir. 1998); Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997); Tiedman,
122 F.3d at 523. To make such a showing, the issues must be debatable among reasonable
jurists, a court could resolve the issues differently, or the issues deserve further
proceedings. Cox, 133 F.3d at 569 (citing Flieger v. Delo, 16 F.3d 878, 882-83 (8th Cir.
1994)); see also Miller-El, 537 U.S. at 335-36 (reiterating standard).
Courts reject constitutional claims either on the merits or on procedural grounds.
“‘[W]here a district court has rejected the constitutional claims on the merits, the showing
required to satisfy [28 U.S.C.] § 2253(c) is straightforward: the [movant] must
demonstrate that the reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.’” Miller-El, 537 U.S. at 338 (quoting Slack v.
McDaniel, 529 U.S. 473, 484 (2000)). When a federal habeas petition is dismissed on
procedural grounds without reaching the underlying constitutional claim, “the [movant
must show], at least, that jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right and that jurists of reason would
find it debatable whether the district court was correct in its procedural ruling.” See Slack,
529 U.S. at 484.
Having thoroughly reviewed the record in this case, the court finds that movant
failed to make the requisite “substantial showing” with respect to the claims that he raised
in his 28 U.S.C. § 2255 motion. See 28 U.S.C. § 2253(c)(2); Fed. R. App. P. 22(b).
Because he does not present a question of substance for appellate review, there is no
reason to grant a certificate of appealability. Accordingly, a certificate of appealability
shall be denied. If he desires further review of his 28 U.S.C. § 2255 motion, movant may

31

request issuance of the certificate of appealability by a circuit judge of the Eighth Circuit
Court of Appeals in accordance with Tiedeman, 122 F.3d at 520-22.
IT IS THEREFORE ORDERED:
1) Movant’s amended motion (civil docket no. 15) is GRANTED.
2) Movant’s 28 U.S.C. § 2255 motion (civil docket no. 1) is DENIED.
3) A certificate of appealability is DENIED.
DATED this 16th day of August, 2017.

32