Barbee v. USA

Filing 10

ORDER denying 1 Pro Se Motion to Vacate/Set Aside/Correct Sentence (2255) (Criminal Action 14-CR-2047-LRR); denying as moot 2 Pro Se Motion to Hold Case in Abeyance; denying as meritless 7 Pro Se Motion to Amend 1 Motion. Signed by Judge Linda R Reade on 9/27/2017 (copy w/NEF mailed to Plt). (skm)

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

DONTAVIOUS REGINALD BARBEE,
Movant,

No. C16-2072-LRR
No. CR14-2047-LRR

vs.
UNITED STATES OF AMERICA.

ORDER

This matter appears before the court on the movant’s motion to vacate, set aside or
correct sentence pursuant to 28 U.S.C. § 2255 (civil docket no. 1),1 filed on July 1, 2016,
motion to hold case in abeyance (civil docket no. 2), filed on July 1, 2016, and motion to
amend (civil docket no. 7), filed on August 26, 2016.
The movant raises ineffective assistance of counsel as a basis for seeking relief.
Specifically, the movant contends that counsel provided ineffective assistance because
counsel did not adequately contest the application of the advisory sentencing guidelines in
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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).

the pre-sentence report. In support of such contention, the movant claims that counsel (1)
should have contested the application of USSG §2K2.1(a)(2) because his two prior
convictions—a 2009 conviction for possession of simulated marijuana with intent to deliver
and a 2010 conviction for possession of marijuana with intent to deliver—neither qualified
as controlled substance offenses nor qualified as separate offenses and (2) should have
contested the criminal history point assessed for his 2011 assault conviction.2
Having considered the record, the court finds that the movant’s contentions are
frivolous. It cannot be said that counsel provided 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); 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); see also United States v. Cronic, 466 U.S. 648, 657 (1984) (stating that counsel
is not required to attempt a useless charade). It is apparent that counsel’s conduct fell
within a wide range of reasonable professional assistance. See Strickland v. Washington,
466 U.S. 668, 689 (1984). Counsel made appropriate objections and arguments prior to
and during the sentencing hearing. But, the pre-sentence report correctly relied on USSG
§2K2.1(a)(2), USSG §2K2.1(b)(6)(B), USSG §4A1.1(a), USSG §4A1.1(c), USSG
§4A1.2(a)(2) and USSG §4B1.2(b). The movant’s total adjusted offense level and criminal
history category, which would not have changed even if it was based on 10 points rather
than 11 points, are correct. Considering all the circumstances and refraining from
engaging in hindsight or second-guessing counsel’s strategic decisions, the court concludes
2

The movant relies, in part, on Johnson v. United States, ___ U.S. ___, ___, 135
S. Ct. 2551, 2557 (2015). Such case has no impact on this case. See Beckles v. United
States, ___ U.S. ___, ___, ___ S. Ct. ___, ___, 2017 WL 855781, at *6 (Mar. 6, 2017)
(concluding that the United States Sentencing Guidelines are not subject to a void for
vagueness challenge under the Fifth Amendment’s Due Process Clause).
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that no violation of the movant’s constitutional right to counsel occurred as a result of
counsel’s representation. The movant’s misunderstanding of the law as it applies to the
facts in his case, including but not limited to the definition of a controlled substance
offense, the use of a prior sentence that was imposed for an offense that was separated by
an intervening arrest and the use of a prior sentence to compute criminal history, is not a
proper basis to grant relief.
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. See
Strickland, 466 U.S. at 692-94. Despite the advisory sentencing guidelines dictating a 24
rather than a 20 under USSG §2K2.1, counsel argued that the court should vary downward
from those guidelines and impose a sentence between 70 to 87 months. The court rejected
such argument. It is clear that, after highlighting the movant’s history of committing
violent crimes, the escalation of the movant’s violent conduct, the movant’s considerable
unscored criminal history and the movant’s high risk to recidivate, the court relied on the
factors listed in 18 U.S.C. § 3553(a) and imposed a sentence that was sufficient, but not
greater than necessary, to achieve the goals of sentencing. The sentence that the court
imposed, that is, 100 months imprisonment, remains valid.
In sum, the evidence of record conclusively demonstrates that the movant is not
entitled to the relief sought.

Specifically, it indicates that the movant’s ineffective

assistance of counsel claims are 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 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
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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 (civil docket no. 1) is
denied. As for 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. The motion to hold case in abeyance (civil docket no.
2) is denied as moot and the motion to amend (civil docket no. 7) is denied as meritless.
IT IS SO ORDERED.
DATED this 27th day of September, 2017.

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