Overbey v. USA

Filing 14

MEMORANDUM AND ORDER..For the foregoing reasons, Grounds One, Two, Three, Four and Five in the Petition filed by Keith William Overbey are denied without an evidentiary hearing. On Ground Six, an evidentiary hearing is set for the resolution of Overb eys claim that his attorney did not convey a 14 year plea offer to him on Monday, March 31, 2014 at 11:00 a.m. Evidentiary Hearing set for 3/31/2014 11:00 AM in Southeast Div - Courtroom 4B before District Judge Stephen N. Limbaugh Jr. Attorney Jacob Zimmerman is appointed to represent Petitioner Overbey. Signed by District Judge Stephen N. Limbaugh, Jr on 1/29/14. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
KEITH WILLIAM OVERBEY,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 1:13CV00134 SNLJ

MEMORANDUM AND ORDER
This case is a motion under 28 U.S. C. § 2255 to vacate, set aside or correct sentence by
Keith William Overbey, a person in federal custody. Overbey was convicted by a jury of being a
Felon in Possession of a Firearm but a mistrial was declared on two other counts. He later plead
guilty to one of those counts, Aiding and Abetting Brandishing a Firearm During a Crime of
Violence. At sentencing this Court varied upward from the advisory United States Sentencing
Guidelines range and sentenced Overbey to the Bureau of Prisons for a term of 240 months
imprisonment. Overbey’s § 2255 action is fully briefed and ripe for disposition.
INTRODUCTION
Overbey has filed a Petition under 28 U.S.C. Section 2255 requesting that his convictions
be set aside on the grounds that he received ineffective assistance of counsel at his sentencing.
He lists four allegations of ineffective assistance of counsel: (1) His lawyer failed to file a
“written objection” at sentencing to the upward departure; (2) His lawyer failed to object at
sentencing to an inappropriate application of the sentencing factors under 18 U.S.C. Section
3553(a); (3) His lawyer failed to object to a “procedural error” by which the sentencing judge
failed to give an adequate explanation of the sentence; and (4) His lawyer failed to provide

“effective assistance of counsel in sentencing, direct appeal, and in all critical phases of the
proceedings.”
Overbey also filed a Motion to Supplement his 28 U.S.C. 2255 Motion, alleging two
additional grounds for relief. In Supplemental Ground One, Overbey claims that he is entitled to
“vacatur” of his 84 month sentence on Count Two, for the offense of aiding and abetting the use,
carrying, and brandishing of a firearm in furtherance of an armed bank robbery. He claims that he
should have been sentenced to a five year term for Count Two, consecutive to his term of
imprisonment imposed for Count IV, rather than a seven year consecutive term of imprisonment.
Overbey denies that he ever admitted to brandishing a firearm during the offense alleged in
Count Two, and bases his claim on the holding of Alleyne v. United States, 133 S.Ct. 2151
(2013).
In Supplemental Ground Two, Overbey claims that he was denied his Sixth Amendment
right to effective assistance of counsel for Count II because he alleges that his counsel failed to
adequately convey the Government’s purported plea offer of 14 years imprisonment. Overbey
claims that he would have accepted the Government’s purported 14 year plea offer and would not
have insisted on proceeding to trial.
Supplemental Grounds One and Two are addressed as Grounds 5 and 6 in the remainder
of the memorandum.
PROCEDURAL HISTORY
The background of the case was succinctly described by the Eighth Circuit in its opinion
affirming Overbey’s conviction in his direct appeal. The Court wrote:
On December 14, 2010, Teresa Aguilera robbed Peoples Bank of
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Altenburg, Missouri, using a rifle to threaten bank employees. Overbey,
Aguilera’s brother, helped plan the robbery, drove the getaway car, and supplied
Aguilera with the rifle and other items Aguilera used during the robbery. After the
robbery, Overbey gave the rifle to his son, Keith Ryan Overbey (Ryan), with
instructions to throw the rifle in the river.
On September 27, 2011, a federal grand jury charged Overbey with (1)
aiding and abetting armed bank robbery, in violation of 18 U.S.C. Sections 2 and
2113(a) and (d) (Count I); (2) aiding and abetting the use, carrying, and
brandishing of a firearm during a bank robbery (Count II); and (3) being a felon in
possession of a firearm (Count IV). At Overbey’s trial, Ryan testified Overbey
admitted his role in the robbery and told Ryan to dispose of the rifle. Overbey’s
ex-girlfriend, Ida Mangrum, reported Overbey called her shortly before his trial
and asked her to tell Ryan not to testify. The jury found Overbey guilty of Counts
II and IV and not guilty of Count I. The district court accepted the guilty verdict
on Count IV and rejected the verdicts on Counts I and II as inconsistent,
instructing the jurors to continue deliberating. After the jury indicated it could not
agree on Counts I and II, the district court declared a mistrial on those counts. On
November 29, 2011, pursuant to a plea agreement, Overbey pled guilty to Count II
in exchange for dismissing Count I.
The presentence investigation report (PSR) calculated a total offense level
of twenty-four, which included an enhancement for obstruction of justice based on
Overbey’s attempt to dissuade Ryan from testifying, and a criminal history
category of IV. This calculation resulted in a Guidelines range of 77 to 96 months
on Count IV and a consecutive Guidelines sentence of 84 months (the statutory
mandatory minimum) on Count II, for a total range of 161 to 180 months
imprisonment.
The district court adopted, without objection by either party, the PSR’s
factual findings and Guidelines calculation and then varied upward to a sentence
of 240 months imprisonment. The district court found the Guidelines calculation
understated Overbey’s criminal history because the calculation did not include
several convictions and because Overbey had ‘been in and out of prison all of
[his] adult life.’ The court explained Overbey ‘seem[ed] to be incorrigible’ and
had ‘shown no remorse.’ The district court also expressed concern with Overbey’s
conduct toward his son and sister, noting Ryan ‘had tears coming down his face
because he had to testify against his father because his father wouldn’t man up and
admit that he was guilty’ and his sister ‘was terribly emotional and crying.’ The
district court added, “Overbey’s attempt to . . . get them not to testify’ was
‘downright rotten.’ The district court stated it had considered all of the 18 U.S.C.
Section 3553(a) sentencing factors,
in particular the nature and circumstances of the offense[,] . . .
[Overbey’s] criminal history and [his] lack of remorse . . . the
seriousness of the offense, the need to promote respect for the law
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and to provide just punishment in this case, also to afford adequate
deterrence to [Overbey’s] criminal conduct and to protect the
public from further criminal activity which [Overbey had] given no
indication that will dissipate in any respect.
The district court also expressed concern for ‘the sentencing objectives of just
punishment and general deterrence and incapacitation.’
United States v. Overbey, 696 F.3d 702, 704-705 (8th Cir. 2011).
TEST FOR INEFFECTIVE ASSISTANCE OF COUNSEL
In order to prevail on a theory of ineffective assistance of counsel, the Movant must
demonstrate two separate things: (1) that counsel’s representation fell below an objective
standard of reasonableness; and (2) that counsel’s deficient performance materially and adversely
prejudiced the outcome of the case. Strickland v. Washington, 466 U.S. 668 (1984); Furnish v.
United States of America, 252 F.3d 950, 951 (8th Cir. 2001). While counsel has a duty to make
reasonable investigations and decisions, “in determining whether counsel’s performance was
deficient, the court should ‘indulge a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.’” Collins v. Dormire, 240 F.3d 724, 727 (8th
Cir. 2001) (citing Strickland, 466 U.S. at 689).
In order to prove that counsel’s error was prejudicial, Movant must show that Athere is a
reasonable probability that, but for counsel’s unprofessional errors, the results of the proceedings
would have been different.” Strickland, 466 U.S. at 694. A reasonable probability has been
described as “a probability sufficient to undermine confidence in the outcome.” Id. However, the
reviewing court need not address the issue of counsel’s performance if it determines that the
movant “suffered no prejudice from the alleged ineffectiveness.” Pryor v. Norris, 103 F.3d 710,

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712 (8th Cir. 1997).
Claims which could have been raised on direct appeal and were not so raised are not
cognizable pursuant to 28 U.S.C. 2255 unless the movant can show cause and prejudice for his
default in failing to raise the issue on direct appeal. Dyer v. United States, 23 F.3d 1421 (8th Cir.
1994); Thompson v. United States 7 F.3d 1377, 1379 (8th Cir. 1993); Peltier v. Henman, 997
F.2d 461 (8th Cir. 1993). Additionally, a Movant’s pro se status does not excuse procedural
default. Stewart v. Nix, 31 F.3d 741, 743 (8th Cir. 1994); Stanley v. Lockhart, 941 F.2d 707, 710
(8th Cir. 1991).
ISSUES RAISED ON DIRECT APPEAL MAY NOT BE RE-LITIGATED IN POST
CONVICTION MOTIONS
Issues raised on direct appeal and denied may not be re-litigated under 28 U.S.C. § 2255.
English v. United States, 998 F.2d 609, 612-13 (8th Cir. 1993); United States v. McGee, 201 F.3d
1022 (8th Cir. 2000).
TEST FOR WHEN AN EVIDENTIARY HEARING IS REQUIRED
AND BURDEN OF PROOF
A motion filed under 28 U.S.C. § 2255 should be denied without an evidentiary hearing
when the court records conclusively show that the movant is not entitled to relief. The statute
provides, in pertinent part:
Unless the motion and the files and records of the case conclusively show that the
prisoner is not entitled to relief, the court shall . . . grant a prompt hearing thereon.
Rule 4(b) of the Rules Governing § 2255 Proceedings for the United States District Court states:
The motion, together with all the files, records, transcripts, and correspondence
relating to the judgment under attack, shall be examined promptly by the judge to
whom it is assigned. If it plainly appears from the face of the motion and any
annexed exhibits in the prior proceedings in the case that the movant is not
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entitled to relief in the district court, the judge shall make an order for its
summary dismissal and cause the movant to be notified.
When a petition is brought under § 2255, the petitioner bears the burden of establishing
the need for an evidentiary hearing. In determining whether petitioner is entitled to an evidentiary
hearing the court must take many of petitioner’s factual averments as true, but the court need not
give weight to conclusory allegations, self-interest and characterizations, discredited inventions,
or opprobrious epithets. United States v. McGill, 11 F.3d 223, 225 (1st Cir. 1993). A § 2255
motion may be dismissed without hearing if: (1) the movant’s allegations, accepted as true,
would not entitle him to relief; or (2) the allegations cannot be accepted as true because they are
contradicted by the record, are inherently incredible, or are conclusions rather than statements of
fact. Winters v. United States, 716 F.3d 1098, 1103 (8th Cir. 2013).
The remedy provided by § 2255 does not encompass all claimed errors in conviction and
sentencing. Sun Bear v. United States, 644 F.3d 700, 704 (8th Cir. 2011) (en banc) (quoting
United States v. Addonizio, 442 U.S. 178, 185, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979)). A federal
prisoner may file a § 2255 motion if he claims that the sentence was imposed in violation of the
Constitution or laws 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. Meirovitz v. United States, 688 F.3d 369, 370-71 (8th Cir.
2012) cert. denied, 133 S. Ct. 1248 (2013).
A district court is given discretion in determining whether to hold an evidentiary hearing
on a motion under 28 U.S.C. § 2255. 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,

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entitle the movant to relief. Payne v. United States, 78 F.3d 343, 347 (8th Cir.1996). When all
the information necessary for the court to make a decision with regard to claims raised in a §
2255 motion is included in the record, there is no need for an evidentiary hearing. Rogers v.
United States, 1 F.3d 697, 699 (8th Cir. 1993). An evidentiary hearing is unnecessary where the
files and records conclusively show petitioner is not entitled to relief. United States v. Schmitz,
887 F.2d 843, 844 (8th Cir. 1989); Dall v. United States, 957 F.2d 571, 573 (8th Cir. 1992).
DISCUSSION
1. Defense counsel was not ineffective for failing to “timely file” a “written
objection” at sentencing to the upward variance by the court in imposing a
sentence above the Sentencing Guidelines range.
In his first claim, Overbey maintains that his lawyer was ineffective for failing to “timely
file” a “written objection” at sentencing to the upward variance by the court in imposing a
sentence above the Sentencing Guidelines range. This allegation is conclusively refuted by the
files, records and transcripts of the case.
At the outset, it should be noted that Overbey’s counsel could not have filed a “written
objection” to the upward variance prior to sentencing because the Presentence Report
(Presentence Investigation Report (DCD 92) filed by U. S. Probation Officer Paul H. Boyd did
not recommend an upward variance. In fact, the probation officer stated: “The probation officer
has not identified any factors under 18 USC 3553(a) that may warrant a variance and imposition
of a non-guideline sentence.” (DCD 92, page 19). Defense counsel can hardly be faulted for not
filing a written objection to that statement.
At the sentencing hearing, both the Government and defense counsel requested the Court
to follow the recommendation of the Government for a sentence of 170 months. The prosecutor
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noted: “[C]onsistent with the terms of the plea agreement the Government is recommending the
midpoint of the sentencing range for . . . Mr. Overbey being a . . . convicted felon in possession
of a firearm . . . [which is] 86 months. And for that sentence by statute to be served consecutive
to the 84 months for Count 2 . . . So the overall sentence the Government is recommending is
170 months.” TR. 4-5. Defense counsel concurred, stating:
Judge, we are asking the Court to abide by the recommendation that’s been
negotiated with the Government in this case. There is more than I can tell that
underlies this whole case, that the long relationship between Keith and his sister
and who was really responsible here. And some of the – I mean, I don’t think this
bank robbery was his idea in the first place. She was the one who actually the
evidence shows was talking to other people about who’s down for a robbery and
scheming and things like that.
But I think that the PSI puts their roles as being equal, and I’m not going
to quarrel with that. He did what he did and he was, of course, found guilty.
So far as the total sentence that has been recommended by the Government
I think is appropriate. The guidelines take into account all of these factors.
Mr. Hahn said that some of those things that he mentioned about those
assaults received no points, but I think each of them did. Each of them were
counted as one point in computing the criminal history score, which is what the
Court is – part of what the Court has adopted and comes up with the range of 77
to 94 months, I think it is, and then the mandatory 7 consecutive years that I think
that is a rather significant sentence, Judge, and we would ask the Court to adopt
similarly between the low end of what would be the guidelines or what the
Government is recommending, which is 170 months.
(TR. 9-11).
This Court, on its own, after considering all of the relevant factors, then stated to the
defendant: “The recommendation from the Government and from your lawyer is simply not
sufficient to satisfy the factors in the sentencing guidelines.” (TR. 13). After carefully explaining
the reasoning, this Court imposed an upward variance and sentenced the defendant to 240
months. (TR. 14). Neither the prosecution nor the defense objected to the upward variance at the
time. However, a written objection was not required and was not necessary to preserve the
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defendant’s right to appeal the upward variance. Indeed, the defendant did in fact appeal the
Court’s decision to vary upward. The Eighth Circuit found such claim to have no merit. United
States v. Overbey, 699 F.3d 702 (8th Cir. 2012).
2. Defense counsel was not ineffective for failing to object at sentencing to an
“inappropriate application” of the sentencing factors under Title 18 U.S.C.
Section 3553(a).
Defense counsel was not ineffective for failing to object to the application of the
sentencing factors under Title 18 U.S.C. Section 3553(a) for the simple reason that the Court
applied them correctly. The Eighth Circuit has reviewed this Court’s explanation of its analysis
of the relevant sentencing factors, and concluded: “Here, the district court stated it considered the
18 U.S.C. Section 3553(a) factors, discussing several in detail. The district court did not commit
any procedural error, plain or otherwise.” United States v. Overbey, 696 F.3d 702, 705 (8th Cir.
2012). Likewise, this Court committed no substantive error in determining Overbey’s sentence
nor did it abuse its discretion in varying upward. Id., at 705-6. Certainly, any objection by
defense counsel would have been meritless and futile.
3. Defense counsel was not ineffective for failing to object at sentencing to the
sentencing judge’s explanation of his sentence.
In his third point, Overbey claims that his lawyer rendered ineffective assistance of
counsel by failing to object to this Court’s explanation of his application of the sentencing factors
under 18 U.S.C. Section 3553(a). Once again, the Eighth Circuit has already ruled that the
district court’s explanation of its consideration of the relevant sentencing factors was not error,
“plain or otherwise.” United States v. Overbey, 696 F.3d 702, 705 (8th Cir. 2012). It was not
ineffective to refrain from making a meritless objection. This issue was squarely put to rest on

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appeal.
4. Petitioner’s fourth allegation that he did not receive “effective assistance of
counsel in sentencing, Direct Appeal, and in all critical phases of the
proceedings” fails to state facts which would call for relief.
In his fourth ground for relief in Overbey’s petition is the bald and conclusory statement
that he did not receive “effective assistance of counsel in sentencing, direct appeal, and in all
critical phases of the proceedings.” A conclusory statement of this sort is too vague and devoid of
facts to meet Overbey’s burden to allege facts, which if true, would entitle him to relief.
5. Alleyne Does Not Benefit Overbey
A. The sentencing element of brandishing a firearm was charged in
Count II of the Indictment, and Overbey admitted in the Plea Agreement and
during the plea hearing that he aided and abetted his co-defendant in
committing the armed bank robbery as alleged in Count I of the Indictment
by the use, carrying and brandishing a firearm.
The defendant in Alleyne v. United States, -- U.S. --, 133 S.Ct. 2151 (2013), was
convicted of using or carrying a firearm during a crime of violence, in violation of 18 U.S.C. §
924(c). Section 924(c) provides for a five-year mandatory minimum sentence for any violation,
but the minimum term is increased to seven years if the firearm was brandished, and to ten years
if the firearm was discharged. See 18 U.S.C. § 924(c)(1)(A)(i)-(iii). The jury at Alleyne’s trial
did not find that the firearm he used was brandished, and Alleyne argued that imposition of the
seven-year mandatory minimum sentence based on the sentencing judge’s finding of brandishing
would violate his Sixth Amendment right to a jury trial under Apprendi v. United States, 530
U.S. 466 (2000). The judge rejected that claim and found by a preponderance of the evidence that
the firearm was brandished and sentenced Alleyne to seven years of imprisonment for the Section
924(c) offense. The Supreme Court reversed the enhancement of Alleyne’s sentence, holding that

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the sentencing enhancement of brandishing should have been charged in the indictment as an
element, and been found beyond a reasonable doubt by the jury to subject Alleyne to the
increased punishment.
Overbey can claim no benefit from the holding of Alleyne because the sentencing element
of brandishing a firearm was charged in Count II of the Indictment, to which Overbey pled guilty.
In the Plea Agreement and during the plea hearing Overbey admitted that he aided and abetted
his co-defendant’s commission of armed bank robbery as alleged in Count I of the Indictment by
the use, carrying and brandishing a firearm.
Overbey denies admitting his responsibility for brandishing a firearm during the
commission of the bank robbery. The record, including the Indictment, Plea Agreement and Plea
Transcript, indicates otherwise. On November 29, 2011, Overbey pled guilty to Count II, which
included the sentencing element of brandishing. In the Plea Agreement, Overbey admitted that he
aided and abetted his sister and co-defendant, Teresa Aguilera, in committing the crime of armed
bank robbery by the use, carrying, and brandishing of a firearm. (Plea Ag., pp. 3-5) In the
Statutory Penalties section of the Plea Agreement, Overbey agreed that “the defendant fully
understands that the maximum possible penalty provided by law for the crime of Possession of a
Firearm in Furtherance of a Crime of Violence, to which defendant is pleading guilty, is
imprisonment of not less than seven (7) years (since the firearm was brandished) . . .” (Id. at p. 5)
Aguilera took the U.S. currency by using force and violence or
intimidation, and in so doing, Aguilera assaulted and put the life of the tellers, and
other Bank employees in jeopardy by using a rifle, a dangerous weapon, while
taking the described money.
As charged in Count II, when Aguilera committed the crime of Bank
Robbery, a crime of violence for which she may be prosecuted in a court of the
United States, on December 14, 2010, in Perry County, Missouri, as charged in
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Count I of the Indictment, she knowingly used, carried, and brandished a firearm
during in and relation to that crime.
Defendant Overbey aided abetted the offenses of Armed Bank Robbery
and Aiding and Abetting the Use of a Firearm in Connection with a Crime of
Violence that was committed by him and his sister, co-defendant Teresa Aguilera
on December 14, 2010, at the Peoples Bank of Altenberg in Perry County,
Missouri.
(Plea Ag., pp. 4-5) In fact, the elements of Count II were set forth in Overbey’s Plea Agreement,
which defined the crime of using a firearm in connection with a crime of violence as having three
essential elements:
One, Teresa Aguilera committed the crime of bank robbery as charged in
Count I of the indictment;
Two, Teresa Aguilera knowingly possessed and brandished a firearm; and
Three, Teresa Aguilera possessed and brandished the firearm during and in
relation to the crime.
(Plea Ag., p. 2) Brandishing the firearm is mentioned twice as elements. Overbey admitted being
guilty of aiding and abetting the offense of using a firearm in connection with a crime of
violence, as defined in the Plea Agreement.
During the Plea Hearing, Overbey admitted the facts recited by the Government regarding
his participation in Count II, including that “Ms. Aguilera approached the counter and threw the
green bank bag to the victim teller and demanded money while pointing the SKS rifle at the
victim teller.” (Plea Tr., pp. 13-14) As charged in Count II, “when Aguilera committed the crime
of bank robbery, . . . she knowingly used, carried and brandished a firearm during in and relation
of that crime.” (Id. at 15) “The Defendant Mr. Overbey’s involvement in that crime is that he
aided and abetted all of the offenses described earlier . . .” (Id.) “Mr. Overbey knowingly
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provided the SKS rifle to Aguilera for the purpose of her using the rifle to commit the armed
bank robbery at The People’s Bank of Altenburg.” (Id. at 16)
When asked if he had heard the statements of the prosecutor, Overbey replied “I have.”
(Id. at 17) Overbey admitted that everything the prosecutor said was true and correct. When
asked if he admitted that he had done all those acts described by the prosecutor, Overbey
responded “I did.” (Id.) This Court subsequently recited the elements of using a firearm in
connection with a crime of violence. Overbey admitted that co-defendant Aguilera “knowingly
possessed and brandished a firearm, and that she possessed and brandished a firearm during and
in relation to that crime of the bank robbery,” and that he was “guilty of aiding and abetting the
offense of using a firearm in connection with a crime of violence . . .” (Id. at 17-18)
Because the Indictment charged Overbey with aiding and abetting a bank robbery,
committed by the use, carrying and brandishing of a firearm, and because Overbey admitted to
the brandishing element in the Plea Agreement and at the plea hearing, no violation of Alleyne
occurred.
B. Overbey’s Waiver of His Right to File a Post-Conviction Relief Motion
Bars His Alleyne Claim
Even if brandishing had not been charged as an element of Count II, in his Plea
Agreement Overbey waived his rights to pursue such a claim.
b. Habeas Corpus: The defendant agrees to waive all rights to contest the
conviction or sentence in any post-conviction proceeding, including one pursuant
to Title 28, United States Code, Section 2255, except for claims of prosecutorial
misconduct or ineffective assistance of counsel. This waiver of habeas corpus
rights includes all issues relative to the case presented to the jury on September 26
and 27, 2011, in which defendant Overbey was found guilty of Count III.
(Plea Ag., pp. 8-9) Negotiated waivers of appellate rights and rights to pursue post-conviction
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relief have been upheld by the Eighth Circuit. See United States v. Andis, 333 F.3d 886, 889 (8th
Cir. 2003) (waiver of the right to appeal a sentence contained in a plea agreement is generally
enforceable); United States v. His Law, 85 F.3d 379 (8th Cir. 1996).
The Eighth Circuit has determined that a waiver of a right to appeal is enforceable if “the
appeal falls within the scope of the waiver and that both the waiver and plea agreement were
entered into knowingly and voluntarily.” Andis, 333 F.3d at 889-90. The court may still refuse to
enforce a waiver of appeal “if to do so would result in a miscarriage of justice.” Id. at 890.
However, plea agreements “should not be easily voided by the courts,” and this narrow exception
“will not be allowed to swallow the general rule that waivers of appellate rights are valid.” Id. at
891.
As indicated in the Plea Agreement and in the plea hearing, Overbey entered his guilty
plea knowingly and voluntarily. He received a benefit by the dismissal of Count I, Armed Bank
Robbery. Overbey’s Alleyne claim set forth in Supplemental Ground One is not a claim related to
ineffective assistance of counsel or prosecutorial misconduct. It is, therefore, precluded by the
waiver provision. Accordingly, Overbey’s waiver of his right to collaterally attack his conviction
pursuant to 28 U.S.C. § 2255 should be enforced against him. See Chesney v. United States, 367
F.3d 1055 (8th Cir. 2004).
6. Claim of Ineffective Assistance of Counsel for Failing to Convey Plea Offer
In his final ground, Overbey claims that his lawyer was ineffective because he failed to
adequately convey a purported plea offer of 14 years imprisonment. Overbey claims that he
would have accepted the Government’s purported 14 year plea offer and would not have insisted
on proceeding to trial.
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In Missouri v. Frye, –––U.S. ––––, 132 S.Ct. 1399, 1408 (2012), the Supreme Court held
that “defense counsel has the duty to communicate formal offers from the prosecution to accept a
plea on terms and conditions that may be favorable to the accused.” Defense counsel is not
rendering effective assistance to his client if counsel allows a formal plea offer “to expire without
advising the defendant or allowing him to consider it[.]” Id. A “formal offer means that its terms
and its processing can be documented so that what took place in the negotiation process becomes
more clear if some later inquiry turns on the conduct of earlier pretrial negotiations.” Id. at 1409.
If a formal plea offer had been made by the Government and not communicated to the defendant,
to be entitled to relief the defendant must still establish prejudice under Strickland v. Washington,
466 U.S. 668 (1984). The “defendant must show not only a reasonable probability that he would
have accepted the lapsed plea but also a reasonable probability that the prosecution would have
adhered to the agreement and that it would have been accepted by the trial court.” Id. at 1410-11.
In its response in opposition the Government makes a persuasive argument that 1) no
formal plea agreement for 14 years was ever made, and 2) even if that plea agreement had been
offered, Overbey was not prejudiced. However, in an abundance of caution, this Court will order
an evidentiary hearing on the question of whether or not a 14-year plea agreement was made by
the Government and not conveyed to defendant.
CONCLUSION
For the foregoing reasons, Grounds One, Two, Three, Four and Five in the Petition filed
by Keith William Overbey are denied without an evidentiary hearing.
On Ground Six, an evidentiary hearing is set for the resolution of Overbey’s claim that his
attorney did not convey a 14 year plea offer to him on Monday, March 31, 2014 at 11:00 a.m.
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Attorney Jacob Zimmerman is appointed to represent Petitioner Overbey.
SO ORDERED this 29th day of January, 2014.

_______________________________________
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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