Dickerson v. USA

Filing 19

OPINION MEMORANDUM re: 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) filed by Petitioner Raymond Dickerson. IT IS HEREBY ORDERED that the Motion to Vacate, Set aside or Correct Sentence, [Doc. 1], and the supplement thereto, are DENIED . IT IS FURTHER ORDERED that this Court will not issue a Certificate of Appealability as Movant has not made a substantial showing of the denial of a federal constitutional right.A separate judgment is entered this same date. Signed by District Judge Henry E. Autrey on 1/14/14. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
RAYMOND DICKERSON,
Movant,
vs.
UNITED STATES OF AMERICA,
Respondent.

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No. 1:11CV188 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Movant’s Motion under 28 U.S.C. § 2255
by a Person in Federal Custody, [Doc. No. 1], and Movant’s Supplemental Motion
to Vacate, Set Aside or Correct Sentence, . Pursuant to this Court’s Order, the
government has responded to the motion to vacate. On March 5, 2013, the Court
conducted a hearing with respect to Movant’s claim that he asked counsel to file a
notice of appeal and that counsel did not do so. For the reasons set forth below,
the Motion is denied.
Movant’s Claims
Movant makes the following claims in his Motion:
Ground One: Ineffective assistance of counsel-failure to file a notice of appeal
when directed to do so by Movant.
Ground Two: Ineffective assistance of counsel-failure to object to ACCA

Enhancement based on 1984 conviction for Unlawful use of a weapon.
Ground Three: Ineffective assistance of counsel-failing to object to predicate
convictions under one-year time served.
Supplemental Motion: Ineffective Assistance of counsel in not investigating the
search of his home.
Ineffective Assistance of Counsel-attorney failed to investigate prior
enhancements resulting in upward departure of sentencing resulting in being
declared armed career criminal.
Facts and Background
On January 21, 2010, Movant was indicted by a federal grand jury which
charged Movant with felon in possession of a firearm. Movant plead guilty,
pursuant to a written plea agreement on July 19, 2010. In the plea agreement,
Movant admitted that he was an armed career criminal and that he had been
convicted of the following crimes punishable by a term of imprisonment
exceeding one year:
(1) On or about February 7, 1984, in the Circuit Court of the City of

St. Louis, Missouri, in Case No. 831-01761, of the violent felony of
Unlawful Use of a Weapon (Exhibiting);
(2) On or about September 9, 1994, in the Circuit Court of the City of
St. Louis, Missouri, in Case No. 941-00235(K), of the violent felony
of Robbery in the Second Degree; and,
(3) On or about November 7, 2001, in the Circuit Court of Butler
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County, Missouri, in Case No. CR301-1140FX, of the violent felony
of Assault in the Second Degree.
Movant also agreed that his offense of conviction carried a minimum
sentence of 15 years imprisonment.
A presentence investigation report was prepared, as ordered by the Court.
The Court sentenced Movant to 180 months incarceration. Movant did not
appeal his conviction, judgment or sentence.
Standards for Relief Under 28 U.S.C. 2255
Pursuant to 28 U.S.C. § 2255, a federal prisoner may seek relief from a
sentence imposed against him on the ground that “the sentence was imposed in
violation of the Constitution or law of the United States, or that the court was
without jurisdiction to impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to collateral attack.” 28
U.S.C. § 2255. Claims brought under § 2255 may also be limited by procedural
default. A Movant “cannot raise a nonconstitutional or nonjurisdictional issue in a
§ 2255 motion if the issue could have been raised on direct appeal but was not.”
Anderson v. United States, 25 F.3d 704, 706 (8th Cir. 1994) (citing Belford v.
United States, 975 F.2d 310, 313 (7th Cir. 1992)). Furthermore, even
constitutional or jurisdictional claims not raised on direct appeal cannot be raised

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collaterally in a § 2255 motion “unless a petitioner can demonstrate (1) cause for
the default and actual prejudice or (2) actual innocence.” United States v. Moss,
252 F.3d 993, 1001 (8th Cir. 2001) (citing Bousley v. United States, 523 U.S. 614,
622 (1998)). Claims based on a federal statute or rule, rather than on a specific
constitutional guarantee, “can be raised on collateral review only if the alleged
error constituted a ‘fundamental defect which inherently results in a complete
miscarriage of justice.’” Reed v. Farley, 512 U.S. 339, 354 (1994)(quoting Hill v.
United States, 368 U.S. 424, 477 n. 10 (1962)).
The Court must hold an evidentiary hearing to consider claims in a § 2255
motion “unless the motion, files and records of the case conclusively show that the
prisoner is entitled to no relief.” Shaw v. United States, 24 F.3d 1040, 1043 (8th
Cir. 1994)(citing 28 U.S.C. § 2255). Thus, a “[movant] is entitled to an
evidentiary hearing ‘when the facts alleged, if true, would entitle [movant] to
relief.’” Payne v. United States, 78 F.3d 343, 347 (8th Cir. 1996)(quoting Wade v.
Armontrout, 798 F.2d 304, 306 (8th Cir. 1986)). The Court may dismiss a claim
“without an evidentiary hearing if the claim is inadequate on its face or if the
record affirmatively refutes the factual assertions upon which it is based.” Shaw,
24 F.3d at 1043. Since the Court finds that Movant’s remaining claims can be
conclusively determined based upon the parties’ filings and the records of the
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case, no evidentiary hearing will be necessary.
Discussion
Standard for Ineffective Assistance of Counsel
It is well-established that a petitioner’s ineffective assistance of counsel
claim is properly raised under 28 U.S.C. § 2255 rather than on direct appeal.
United States v. Davis, 452 F.3d 991, 994 (8th Cir.2006); United States v. Cordy,
560 F.3d 808, 817 (8th Cir. 2009). The burden of demonstrating ineffective
assistance of counsel is on a defendant. United States v. Cronic, 466 U.S. 648,
658 (1984); United States v. White, 341 F.3d 673, 678 (8th Cir.2003). To prevail
on an ineffective assistance of counsel claim, a convicted defendant must first
show counsel’s performance “fell below an objective standard of reasonableness.”
Strickland v. Washington, 466 U.S. 668, 687-88 (1984). The defendant must also
establish prejudice by showing “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different. Id., at 694.
Both parts of the Strickland test must be met in order for an ineffective
assistance of counsel claim to succeed. Anderson v. United States, 393 F.3d 749,
753 (8th Cir.), cert. denied, 546 U.S. 882 (2005). The first part of the test requires
a “showing that counsel made errors so serious that counsel was not functioning as
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the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. Review of
counsel’s performance by the court is “highly deferential,” and the Court
presumes “counsel’s conduct falls within the wide range of reasonable
professional assistance.” Id. The court does not “second-guess” trial strategy or
rely on the benefit of hindsight, id., and the attorney’s conduct must fall below an
objective standard of reasonableness to be found ineffective, United States v.
Ledezma-Rodriguez, 423 F.3d 830, 836 (2005). If the underlying claim (i.e., the
alleged deficient performance) would have been rejected, counsel's performance is
not deficient. Carter v. Hopkins, 92 F.3d 666, 671 (8th Cir.1996). Courts seek to
“eliminate the distorting effects of hindsight” by examining counsel’s performance
from counsel’s perspective at the time of the alleged error. Id.
The second part of the Strickland test requires that the movant show that he
was prejudiced by counsel’s error, and “that ‘there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have
been different.’ ” Anderson, 393 F.3d at 753-54 (quoting Strickland, 466 U.S. at
694). “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694. When determining if
prejudice exists, the court “must consider the totality of the evidence before the
judge or jury.” Id. at 695; Williams v. U.S., 452 F.3d 1009, 1012-13 (8th Cir.
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2006).
The first prong of the Strickland test, that of attorney competence, is applied
in the same manner to guilty pleas as it is to trial convictions. The prejudice
prong, however, is different in the context of guilty pleas. Instead of merely
showing that the result would be different, the defendant who has pled guilty must
establish that “there is a reasonable probability that, but for counsel’s errors, he
would not have pleaded guilty and would have insisted on going to trial.” Hill v.
Lockhart, 474 U.S. 52, 59 (1985); Matthews v. United States, 114 F.3d 114.
Grounds One
Movant argues that counsel was ineffective in failing to file a notice of
appeal when he asked him to do so. At the hearing, the Court heard testimony
from Movant and his attorney. The Court observed the witnesses’ demeanor and
recollection of the events after sentencing. Furthermore, counsel is an Assistant
Public Defender with nothing to gain from not filing a notice when asked to do so
by his clients; Movant has more to gain by claiming he asked his lawyer to file a
notice of appeal. Counsel’s testimony was more credible than Movant’s. Indeed,
considering the appeal waiver Movant agreed to in the plea agreement, Movant’s
attempt to persuade the Court that he asked his lawyer to file a notice of appeal is
unpersuasive.
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Grounds Two and Three
Movant argues that counsel failed to object to his classification as an armed
career criminal. Movant was convicted of Burglary in the Second Degree on April
7, 1971; Burglary in the Second Degree on February 26, 1976; Robbery in the
First Degree for which he was sentenced to 5 years on April 6, 1977; Assault in
the Second Degree, for which he was sentenced to 120 days in jail on December
21, 1979; Unlawful use of a weapon-exhibiting, a sentence of three years
incarceration being imposed on February 27, 1984; Robbery in the Second Degree,
for which Movant was sentence to ten years on September 9, 1994, with a
suspended sentence and two years probation; Assault in the Second Degree for
which Movant was sentenced to six months incarceration on November 7, 2001.
Movant raised no objections to the enhancement to level VI for being an
armed career criminal. Movant raised no objections at sentencing. Movant’s
guideline range was 180-188 months. The Court sentenced him to 180 months.
While Movant contends that two of the convictions should not count in the ACCA
analysis because of the time he was sentenced, as the Government correctly
argues, Movant’s record provides more than ample bases for which the Court
found him to be a career criminal.

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Movant argues that counsel was ineffective for failing to investigate the
search of his home, giving rise to the discovery of the firearm. Movant alleges that
the official police records which led to an arrest and search which ultimately led to
the discovery of the prohibited firearms was conducted by a police search that
entailed open trickery.
During the course of the plea agreement, Movant admitted that counsel did
everything he had asked and there was nothing that he wanted counsel to do that
he didn’t do. Moreover, in the plea agreement and in Court under oath, Movant
admitted that he was fully satisfied with the work counsel had performed. Movant
cannot now claim counsel did not perform adequate representation for failing to
investigate.
With respect to Movant’s claim that counsel was ineffective for failing to
investigate prior to enhancement. Even if Movant could establish this claim, and
even if the claim could in some way demonstrate that failure to do so constitutes a
falling below an objective standard of reasonableness, Movant can show no
prejudice. Movant’s criminal record establishes more than the requisite violent
crimes to classify him as an armed career criminal. As such, the supplemental
motion is meritless
Conclusion
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Based upon the foregoing analysis, Movant’s claims of ineffective
assistance of counsel fail to afford him relief.
Certificate of Appealablity
The federal statute governing certificates of appealability provides that “[a]
certificate of appealability may issue . . . only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). A substantial showing of the denial of a constitutional right requires
that “issues are debatable among reasonable jurists, a court could resolve the
issues differently, or the issues deserve further proceedings.” Cox v. Norris, 133
F.3d 565, 569 (8th Cir. 1997). Based on the record, and the law as discussed
herein, the Court finds that Movant has not made a substantial showing of the
denial of a constitutional right.
Accordingly,
IT IS HEREBY ORDERED that the Motion to Vacate, Set aside or
Correct Sentence, [Doc. 1], and the supplement thereto, are DENIED.
IT IS FURTHER ORDERED that this Court will not issue a Certificate of
Appealability as Movant has not made a substantial showing of the denial of a
federal constitutional right.
A separate judgment is entered this same date.
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Dated this 14th day of January, 2014.

_______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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