Kennedy v. United States of America

Filing 14

MEMORANDUM OPINION re: 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) filed by Petitioner Justin Wesley Kennedy, 10 MOTION to Vacate, Set Aside or Correct Sentence (2255) filed by Petitioner Justin Wesley Kennedy motion is DENIED. For the reasons discussed above, the court concludes that motions and the files and records of this case conclusively show that Kennedy is not entitled to relief under 28 U.S.C. § 2255 based on any of the claims he asserts. Therefore, the motion and supplemental motion will be denied without a hearing. See Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995). Additionally, the court finds that Kennedy has not made a substantial showing of the denial of a constitutional right. Therefore, the court will not issue a certificate of appealability. See 28 U.S.C. § 2253 Signed by District Judge Carol E. Jackson on 2/4/15. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

JUSTIN WESLEY KENNEDY,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

)
)
)
)
) No. 1:11-CV-202 (CEJ)
)
)
)
)
MEMORANDUM

This matter is before the court on the motion and supplemental motion of Justin
Wesley Kennedy to vacate, set aside, or correct sentence, pursuant to 28 U.S.C. §
2255. The United States has filed responses in opposition, and the issues are fully
briefed.
I. Background
On February 16, 2010, Kennedy pled guilty to conspiracy to manufacture
methamphetamine, in violation of 21 U.S.C. § 846.

According to the facts he

stipulated to in the plea agreement, Kennedy and two others traveled to several stores
in Cape Girardeau, Missouri where they purchased pseudoephedrine pills and other
items used in manufacturing methamphetamine.
The presentence investigation report revealed that Kennedy had prior state
felony convictions for attempted manufacture of methamphetamine, possession of
ephedrine with intent to manufacture methamphetamine, and manufacturing a
controlled substance. The court determined that Kennedy was a career offender as

defined in U.S.S.G. § 4B1.1(a).1 As a result, the advisory sentencing guideline range
was 151-188 months, based on a total offense level of 29 and a criminal history
category of VI. Kennedy’s attorney did not object to the career offender designation.
However, he filed a sentencing memorandum setting forth reasons justifying a
sentence below the guideline range. At the sentencing hearing, defense counsel again
argued for a sentence below the range. Kennedy was sentenced to a 151-month term
of imprisonment. His appeal of the judgment was dismissed.
II. Discussion
In the motion and supplemental motion to vacate, Kennedy asserts claims of
ineffective assistance of counsel.

To prevail on an ineffective assistance claim, a

movant must show that her attorney’s performance fell below an objective standard
of reasonableness and that she was prejudiced thereby. Strickland v. Washington, 466
U.S. 668, 687 (1984). With respect to the first Strickland prong, there exists a strong
presumption that counsel’s conduct falls within the wide range of professionally
reasonable assistance. Id. at 689. In Strickland, the Court described the standard for
determining an ineffective assistance claim:
[A] court deciding an actual ineffectiveness claim must
judge the reasonableness of counsel’s challenged conduct
on the facts of the particular case, viewed as of the time of
counsel’s conduct. A convicted defendant making a claim of

1

U.S.S.G. § 4B1.1(a) provides that a defendant is a career offender if (1) he was at
least 18 years old at the time of the instant offense of conviction; (2) the instant offense is
either a crime of violence or a controlled substance offense; and he has at least two prior felony
convictions for either a crime of violence or a controlled substance offense.
The term “controlled substance offense” is defined as a state or federal felony offense
in violation of a law that prohibits the manufacture, import, export, distribution, or dispensing
of a controlled substance or the possession of a controlled substance with intent to
manufacture, import, export, distribute, or dispense. U.S.S.G. § 4B1.2(a).
-2-

ineffective assistance must identify the acts or omissions of
counsel that are alleged not to have been the result of
reasonable professional judgment. The court must then
determine whether, in light of all the circumstances, the
identified acts or omissions were outside the wide range of
professionally competent assistance.
in making that
determination, the court should keep in mind that counsel’s
function, as elaborated in prevailing professional norms, is
to make the adversarial testing process work in the
particular case. At the same time, the court should
recognize that counsel is strongly presumed to have
rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional
judgment.
Strickland, 466 U.S. at 690.
To establish the “prejudice” prong, the 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. The failure to show prejudice is
dispositive, and a court need not address the reasonableness of counsel’s performance
in the absence of prejudice. United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir.
1996).
A. Failure to file motion to suppress
Kennedy’s first ineffective assistance claim is that defense counsel should have
filed a pretrial motion to suppress evidence. Kennedy argues that the warrantless
search of his vehicle was unlawful and that the evidence seized from the vehicle and
all evidence obtained as a result of the unlawful seizure (“fruit of the poisonous tree”)
should have been suppressed.
Before pleading guilty, Kennedy appeared before a magistrate judge and
voluntarily waived his right to file pretrial motions. In light of his waiver, Kennedy
-3-

cannot demonstrate that his attorney’s failure to file a motion to suppress fell below
an objective standard of reasonableness.

Further, Kennedy presents no facts

supporting his allegation that the stop of his vehicle was pretextual or facts otherwise
showing that a motion to suppress evidence would have been successful. Indeed, the
facts Kennedy stipulated to in the plea agreement (i.e., the officers’ observation of
Kennedy

and

his

accomplices

purchasing

items

used

for

manufacturing

methamphetamine) show that there was probable cause for the search of his vehicle.
As such, the police were not required to obtain a search warrant. Carroll v. United
States, 267 U.S. 132 (1925). See also Pennsylvania v. Labron, 518 U.S. 938, 940
(1996) (per curiam)(“If a car is readily mobile and probable cause exists to believe it
contains contraband, the Fourth Amendment thus permits police to search the vehicle
without more.”). Kennedy’s reliance on Arizona v. Gant, 556 U.S. 332 (2009), is
misplaced, as the legality of the search in this case does not depend on whether it was
incident to a valid arrest. Thus, Kennedy cannot show that he was prejudiced.
B.

Failure to object to career offender designation

Kennedy contends that he did not meet the requirements for the career
offender designation because he did not have the requisite prior convictions.

He

argues that his attorney’s failure to assert this claim at sentencing constitutes
ineffective assistance of counsel.
U.S.S.G. § 4B1.1(a) provides that a defendant is a career offender if (1) he was
at least 18 years old at the time of the instant offense of conviction; (2) the instant
offense is either a crime of violence or a controlled substance offense; and he has at
least two prior felony convictions for either a crime of violence or a controlled

-4-

substance offense. The term “controlled substance offense” is defined as a state or
federal felony offense in violation of a law that prohibits the manufacture, import,
export, distribution, or dispensing of a controlled substance or the possession of a
controlled substance with intent to manufacture, import, export, distribute, or
dispense. U.S.S.G. § 4B1.2(a). Application Note 1 to the guideline makes clear that
the term controlled substance offense includes “the offenses of aiding and abetting,
conspiring, and attempting to commit such offenses.”
Kennedy first asserts that his state court conviction for possession of ephedrine
with intent to distribute does not meet the guideline definition of controlled substance
offense. He points to Mo. Rev. Stat. § 195.246, the Missouri statute under which he
was convicted, which provides, in relevant part:
1.
It is unlawful for any person to possess any
methamphetamine precursor drug with the intent to
manufacture amphetamine, methamphetamine or any of
their analogs.
2. Possession of more than twenty-four grams of any
methamphetamine precursor drug or combination of
methamphetamine precursor drugs shall be prima facie
evidence of intent to violate this section. . . ***
Kennedy argues that because he possessed less than 24 grams of ephedrine, the
offense he committed did not involve “intent to manufacture a controlled substance”
and should not have been counted as a predicate offense under U.S.S.G. § 4B1.2(a).
This argument ignores the plain language of § 195.246.1 which makes it unlawful to
possess ephedrine in any amount with intent to manufacture methamphetamine.
Subsection 2 of the statute establishes an amount that will constitute prima facie
evidence of intent to manufacture, but it does not mean that intent to manufacture

-5-

cannot be proved when there is a lesser amount. Kennedy’s argument rests on his
misinterpretation of the Missouri statute.
Kennedy next asserts that his conviction for attempted manufacture of
methamphetamine is not a controlled substance offense for purposes of the career
offender guideline.

As noted above, under the sentencing guidelines an attempt to

manufacture a controlled substance falls within the definition of controlled substance
offense. U.S.S.G. § 4B1.2, Application Note 1. However, even if Kennedy’s assertion
were accepted, he still has two prior controlled substance offense convictions that
qualify as predicate offenses.2
Given these circumstances, Kennedy cannot show that his attorney’s failure to
object to the career offender designation fell below an objective standard of
reasonableness. Further, he cannot demonstrate that such an objection, if made,
would have been sustained. Therefore, Kennedy suffered no prejudice.
III. Conclusion
For the reasons discussed above, the court concludes that motions and the files
and records of this case conclusively show that Kennedy is not entitled to relief under
28 U.S.C. § 2255 based on any of the claims he asserts. Therefore, the motion and
supplemental motion will be denied without a hearing. See Engelen v. United States,
68 F.3d 238, 240 (8th Cir. 1995). Additionally, the court finds that Kennedy has not
made a substantial showing of the denial of a constitutional right. Therefore, the court
will not issue a certificate of appealability. See 28 U.S.C. § 2253.

2

Because Kennedy has at least two convictions for controlled substances offenses, his
argument based on Begay v. United States, 553 U.S. 137 (2008), is moot.
-6-

An order consistent with this memorandum opinion will be filed separately.

____________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 4th day of February, 2015.

-7-