Bennett v. USA

Filing 10

MEMORANDUM AND ORDER: For the foregoing reasons, this Court will order a hearing on the sole issue of whether Bennett asked his attorney to file a notice of appeal on Tuesday, January 7, 2025, at 2:00 p.m. IT IS FURTHER ORDERED that this Court will deny Bennett's remaining claims without an evidentiary hearing. In Court Hearing set for 1/7/2025 02:00 PM in Courtroom 4B - Cape before Sr. District Judge Stephen N. Limbaugh Jr.. Signed by Sr. District Judge Stephen N. Limbaugh, Jr on 11/22/2024. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
JUSTIN LEON BENNETT,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 1:22-cv-00025-SNLJ

MEMORANDUM AND ORDER
On March 3, 2022, Petitioner Justin Bennett (“Bennett”) filed this Motion to Vacate,
Set Aside or Correct Sentence pursuant to Title 28, United States Code, Section 2255. This
Court then ordered the United States to show cause why the relief requested in Bennett’s
motion should not be granted. Based on the reasons set forth below, this Court will order
an evidentiary hearing on the sole issue of whether Bennett asked his attorney to file a
notice of appeal. The Court will dismiss Bennett’s additional claims as waived and
procedurally barred or otherwise deny them without an evidentiary hearing because they
fail as a matter of law.
I.

PROCEDURAL HISTORY
On April 21, 2020, police learned that a suspicious parcel from California was

enroute to Brett Holder’s residence in Hillsboro, Missouri. Plea Stip, p. 3 1. Officers
established surveillance and observed Holder hand the parcel to Brittany Whitener, who

1

Plea Stipulation and Agreement, Document # 381, filed in cause 1:20-cr-00075-SNLJ.

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was a passenger in a car being driven by Bennett, who had recently been released from
prison. Id. Bennett fled from officers, striking an unmarked police car. Id. The pursuit
ended when Bennett crashed the car in a field, and both he and Whitener fled on foot. Id.
Bennett abandoned the parcel, which contained approximately three pounds of
methamphetamine and some marijuana into the woods. Id.
The investigation also revealed that Whitener had been in contact with Bennett
about the conspiracy while he was still incarcerated in the Missouri Department of
Corrections. PSR, ¶ 25 2. Bennett’s calls were recorded and monitored as a matter of DOC
policy and later recovered by narcotics investigators. Id. Bennett had provided advice to
Whitener after the seizure of seven pounds of methamphetamine from other conspirators,
and Whitener discussed sending drug proceeds to the supplier in California with Bennett.
PSR, ¶¶ 27-28.
Initially charged in a complaint along with Whitener, Bennett and ten other people
were indicted for conspiracy to distribute methamphetamine on May 12, 2020. Doc. 23,
1:20-cr-00075-SNLJ. On May 19, 2021, Bennett pleaded guilty to possession of more than
500 grams of methamphetamine with intent to distribute. Doc. 381, 1:20-cr-00075-SNLJ.
Bennett’s plea stipulation contained a waiver of his appellate rights as to sentencing issues
provided that he was sentenced within or below the agreed upon sentencing guidelines
range. Plea Stip, p. 5. Bennett also “agree[d] to waive all rights to contest the conviction
or sentence in any post-conviction proceeding, including one pursuant to Title 28, United

2

Presentence Investigation Report, Document # 450, filed in cause 1:20-CR-75-SNLJ.

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States Code, Section 2255, except for claims of prosecutorial misconduct or ineffective
assistance of counsel.” Plea Stip, p. 6.
Bennett’s base offense level was determined to be 30 pursuant to USSG Section
2D1.1(c)(5). PSR, ¶ 46. Two levels were added pursuant to Section 3C1.2, as Bennett
recklessly created a substantial risk of death or serious bodily injury to another person in
the course of fleeing from a law enforcement officer. PSR, ¶ 50. Three levels were
deducted as Bennett accepted responsibility and notified the Government of his intention
to plead guilty in a timely fashion. PSR, ¶¶ 53-54. Bennett’s total offense level was
determined to be 29. PSR, ¶ 55. All of the sentencing guidelines calculations were in
conformity with the parties’ recommendations in the Plea Stipulation. Plea Stip, p. 4.
Bennett has a substantial criminal history dating back to age 18, which includes
felony convictions for possession of a controlled substance in 2007 (PSR, ¶ 58), burglary
2nd in 2008 (PSR, ¶ 62), possession of a controlled substance in 2010 (PSR, ¶ 66),
tampering with a motor vehicle in the first degree in 2013 (PSR, ¶ 67), and violence to an
inmate by an inmate in 2014 (PSR, ¶ 68). Bennett has had difficulty complying with
supervision and had his probation revoked on three occasions and his parole revoked on
four occasions. PSR ¶¶ 58, 62, 66, 68.
Bennett was still on parole when he committed this offense and had a total of 17
criminal history points for a criminal history category of VI. PSR ¶¶ 71-72.
With a total offense level of 29 and a criminal history category of VI, the advisory
sentencing guidelines range was determined to be 151-188 months, with a mandatory
statutory minimum sentence of 120 months. PSR, ¶¶ 106-107.
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On September 13, 2021, Bennett was sentenced within the agreed upon Sentencing
Guidelines Range to 168 months of incarceration, five years of supervision, and ordered to
pay a $100 special assessment. Doc. 470, 1:20-cr-00075-SNLJ. This sentence was ordered
to run consecutively to several sentences that may be imposed in the Circuit Court of St.
Francois County, Missouri. Bennett did not file an appeal in a timely manner, and on
March 3, 2022, filed his motion under Title 28 U.S.C. Section 2255 herein. Doc. 1. He
now raises four grounds for relief that will be addressed in turn.
II.

LEGAL STANDARD
“Section 2255 was 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) (quotation omitted). And like habeas corpus, this statutory remedy “does not
encompass all claimed errors in conviction and sentencing.” Id. (quoting United States v.
Addonizio, 442 U.S. 178, 185 (1979)). Under Section 2255(a), a petitioner may file a
motion for post-conviction review on four specified grounds: “(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,’ and (4) that the sentence ‘is otherwise subject to
collateral attack’.” Martin v. United States, 150 F. Supp. 3d. 1047, 1049 (W.D. Mo. 2015)
(quoting Hill v. United States, 368 U.S. 424, 426-27 (1962)); See also R. GOVERNING §
2255 PROCEEDINGS 1. The petitioner bears the burden of proof as to each asserted
ground for relief. Golinveaux v. United States, 915 F.3d 564, 567 (8th Cir. 2019) (citation
omitted).
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A. Need for an Evidentiary Hearing
28 U.S.C. § 2255 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 Section 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 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 hearing is unnecessary when a Section 2255 motion
(1) is inadequate on its face, or (2) although facially adequate is conclusively refuted as to
the alleged facts by the files and the records of the case. Id. at 225-6; see also United States
v. Robinson, 64 F.3d 403 (8th Cir. 1995); Engelen v. United States, 68 F.3d 238, 240 (8th
Cir. 1995).
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

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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).
III.

DISCUSSION

A. Ineffective Assistance of Counsel Respecting Consecutive Sentence
Bennett’s first ground for relief appears to be that his attorney lied to him about his
pending charges being “brought up” at sentencing, and that he did not get concurrent
sentencing. Doc. 1, p. 4. According to Bennett, getting a concurrent sentence was his
“concern from the time we agreed to the plea deal,” and his attorney told him that it would
not be brought up. Id. However, pursuant to the plea agreement, Bennett was advised of
the possible penalty range of not less than ten years, nor more than life imprisonment prior
to pleading guilty. Plea Stip, p. 3. Bennett also indicated by signing the plea stipulation
that there were no promises made to him other than what was in the plea agreement, which
contained no agreements about concurrent or consecutive sentencing on any pending
charges.
This document constitutes the entire agreement between the defendant and
the government, and no other promises or inducements have been made,
directly or indirectly, by any agent of the government, including any
Department of Justice attorney, concerning any plea to be entered in this case.
In addition, the defendant states that no person has, directly or indirectly,
threatened or coerced the defendant to do or refrain from doing anything in
connection with any aspect of this case, including entering a plea of guilty.
Plea Stip, p. 9.
Bennett affirmed this to be the case during the plea colloquy.

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The Court:

“Now, the lawyers have given me this written guilty plea agreement
consisting of 10 pages. I see that you and the lawyers have signed it
on page 10; is that right?”

Bennett:

“Yes, sir.”

The Court:

“Have you read the agreement?”

Bennett:

“Yes, sir.”

The Court:

“Have you gone over it in detail with your lawyer?”

Bennett:

“Yes, sir.”

The Court:

“Has he explained the contents of the agreement in detail to you?”

Bennett:

“Yes, sir.”

The Court:

“And do you understand the contents of the agreement?”

Bennett:

“Yes, sir.”

The Court:

“Is there anything in here that you do not understand”

Bennett:

“No, sir.”

The Court:

“Now, have any promises been made by anyone to get you to plead
guilty other than the promises set out in that agreement?”

Bennett:

“No, sir.”

The Court:

“So this is the complete, full, total agreement; right?”

Bennett:

“Yes, sir.”

Plea Tr. pp. 6-7.
The record reflects that Bennett was not promised anything respecting the
concurrent vs. consecutive issue. The Court has broad discretion under Title 18, United
States Code, Section 3584 to impose consecutive terms with other unrelated offenses at

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sentencing. United States v. Becker, 636 F.3d 402, 408 (8th Cir. 2011). Given Bennett’s
significant criminal history, coupled with the fact that he was engaged in the conspiracy
while still in prison, and was caught with a large quantity of methamphetamine so shortly
after being released from prison, together justified a consecutive sentence to Bennett’s
other serious, unrelated pending charges.
A defense attorney’s failure to predict the sentences would be run consecutively is
not ineffective assistance of counsel. Roberson v. United States, 901 F.2d 1475, 1478-79
(8th Cir. 1990). Even if Bennett’s counsel had told him that he believed that Bennett was
going to get concurrent sentences prior to the plea, that would not constitute grounds for
relief. It is well established that a defendant’s reliance on counsel’s mistaken impression
about the length of a sentence does not render a plea involuntary, as long as the defendant
was informed of the possible minimum and maximum sentence.

United States v.

Granados, 168 F.3d 343, 345 (8th Cir. 1999).
Bennett was properly informed of the penalty range both in the written plea
agreement, and in the plea colloquy. Plea Stip, p. 3); Plea Tr., p. 10).
Nor was Bennett prejudiced because he did not receive a concurrent sentence as he
had hoped. In Welker v. United States, the petitioner argued in a 2255 motion that he had
been denied effective assistance of counsel because his counsel failed to request a
concurrent sentence at sentencing. 2009 WL 57139, at *2 (E.D. Mo. Jan. 9, 2009). The
Court denied the motion and ruled that even if the counsel’s performance was deficient in
his failure to request a concurrent sentence, the petitioner failed to meet the prejudice
requirement of an ineffective assistance of counsel claim. Id. at *4. The mere possibility
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the court would award a concurrent sentence instead of a consecutive one was not sufficient
to show actual prejudice. Id.
In order for a counsel’s performance to be constitutionally ineffective it must
be objectively unreasonable and result in actual prejudice. Forsyth v. Ault,
537 F.3d 887, 891 (8th Cir. 2008). “Prejudice exists only if there is a
reasonable probability that the outcome would have been different had
counsel’s performance beenadequate.” Id. A court’s decision to run a
sentence concurrently or consecutively under U.S.S.G. § 5G1.3(c) is left to
the discretion of the court. Because such adecision is discretionary, there is
only a possibility, not a reasonable probability, that a court would impose a
concurrent rather than a consecutive sentence if a motion under § 5G1.3(c)
is properly raised. A “mere possibility of prejudice” does not meet the actual
prejudice threshold needed to establish an ineffective assistance of counsel
claim. See Prewitt v, United States, 83 F.3d 812, 819 (7th Cir. 1996)
(defendant’s counsel’s failure to raise a § 5G1.3(c) motion created only a
possibility of prejudice and did not qualify as actual prejudice to support an
ineffective assistance of counsel claim).
Id. Similarly, the Seventh Circuit held that the mere possibility that the district court would
have imposed a concurrent sentence, instead of a consecutive sentence, was not actual
prejudice justifying relief pursuant to § 2255. Prewitt v. United States, 83 F.3d 812, 819
(7th Cir. 1996).
The record reflects that Bennett was not promised a concurrent sentence with his
other unrelated pending felony cases, nor would he have been prejudiced even if his
attorney had mistaken believed that one would be imposed.
Finally, the decision to run the sentence consecutively or concurrently was not up
to this Court, but was instead the prerogative of the state court judge in St. Francois County
where several state court cases had yet to be decided. This Court’s pronouncement of
consecutive sentences was not binding on the state court. Therefore, this ground will be
dismissed without the necessity of an evidentiary hearing.
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B. Bennett’s Claim That He Was Not Provided with Discovery
Bennett alleges that he “never seen or got to look over any of the evidence against
me.” However, this allegation is refuted by the record. In the written plea stipulation and
Agreement, Bennett acknowledged that he had seen the discovery and had an opportunity
to discuss it with his attorney.
The defendant is fully satisfied with the representation received from defense
counsel. The defendant has reviewed the government’s evidence and
discussed the government’s case and all possible defenses and defense
witnesses with defense counsel. Defense counsel has completely and
satisfactorily explored all areas which the defendant has requested relative to
the government’s case and any defenses.”
Plea Stip, p. 8.
During the plea colloquy, Bennett was specifically asked if he was satisfied with his
counsel’s representation of him in this matter.
The Court:

“Because this is a criminal case you’re entitled to effective
representation from a lawyer at each stage of the proceedings against
you. Do you understand that?”

Bennett:

“Yes, sir.”

The Court:

“So with that in mind I’ll ask you are you satisfied with the way your
lawyer has handled your case?”

Bennett:

“Yes, sir.”

The Court:

“Has he investigated the case to your satisfaction?”

Bennett:

“Yes, sir.”

The Court:

“Has he done everything you’ve asked him to do?”

Bennett:

“Yes, sir.”

The Court:

“No gripes or complaints whatsoever then?”
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Bennett:

“No, sir.”

Plea Tr., p. 4.
At the guilty plea hearing, Bennett did not make the allegation that he had not seen
the discovery, and the record reflects that he saw the discovery and fully discussed it with
counsel. Bennett’s allegation that he had “never seen or got to look over any of the
evidence against [him]” is refuted by the record, and this ground will be denied
without the necessity of having an evidentiary hearing.
C. Bennett’s Claim That He Made a Timely Request to Counsel to Appeal
In his third ground for relief, Bennett claims that he “never got the direct appeal I
asked for.” Doc. 1, p. 7. Bennett does not state specifically when he requested that appeal
or to whom he addressed his request. The record suggests that he most likely is referring
to the request for documents which he filed, and which the Court construed as a notice of
appeal. Doc. 574, 1:20-cr-00075-SNLJ. Bennett was sentenced on September 13, 2021
(Doc. 470, 1:20-cr-00075-SNLJ) and sent a letter to the Clerk of the Court, which was filed
on December 9, 2021, 88 days after his sentencing and well past the deadline for filing an
appeal. In it he states:
I am trying to do an appeal on my case there in your Court. I am not getting
any response or cooperation from my attorney in this matter.
Doc. 574, 1:20-cr-00075-SNLJ.
Later in that document, Bennett asked for a copy of his docket sheet so that he could
use it to select documents he believes he will need to file a 2255 motion. Id. Bennett uses
both the term “appeal” and “2255 motion” in his request but does not indicate that he
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requested his attorney to file an appeal in a timely manner. 3 This Court construed Bennett’s
letter as a notice of appeal (Doc. 547, 1:20-cr-00075 SNLJ) and the Eighth Circuit Court
of Appeals ultimately dismissed the appeal as being untimely. Doc. 592, 1:20-cr-00075
SNLJ. Bennett sent another letter, which was filed on January 20, 2022, requesting
additional documents, wherein the subject line was “RE Documents for appeal.” Doc. 587,
1:20-cr-00075-SNLJ. Bennett does not allege in this document that he ever requested his
attorney to file an appeal. Id.
Bennett’s attorney indicated that he spoke with Bennett after the sentencing hearing
and that Bennett was “visibly annoyed because his sentence wasn't lower.” Govt. Exhibit
A, ¶ 14. Bennett did not sign notice of compliance with Local Rule 12.07(A), however
Bennett’s attorney told him to contact the attorney if he wanted the attorney to file anything.
Id. Bennett's attorney went on to indicate that he never heard from Bennett or his fiancé
until “sometime around mid to late November, 2021,” well after the time for appeal had
run. Govt. Exhibit A, ¶ 15.
Generally speaking, where a petitioner’s allegations in a Section 2255 Motion, if
true, amount to ineffective assistance of counsel, a hearing must be held unless the record
affirmatively refutes the factual assertions upon which the claim is based. Watson v. United
States, 493 F.3d 960, 964 (8th Cir. 2007). An attorney’s failure to file a notice of appeal
after being instructed to do so by his client constitutes ineffective assistance entitling

Bennett would later tell his attorney on January 21, 2022, that he did not want to appeal anything but had only
sent the letter to the Court because the attorney had not provided copies of Bennett’s documents to him as quickly as
he had hoped and other inmates had told him to write the Court and mention the words “appeal” and “2255” so that
a transcript would have to be made. Govt. Exhibit A, ¶ 20.

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petitioner to an evidentiary hearing, and no inquiry into prejudice or likely success on
appeal is necessary to that determination. Barger v. United States, 204 F.3d 1180, 1182
(8th Cir. 2000). This is true even if the Movant waived their right to appeal as part of a plea
agreement. United States v. Sellner, 773 F.3d 927, 930 (8th Cir. 2014)
Here, Bennett makes non-specific allegations that he “never got the direct appeal I
asked for.” While Bennett never alleges he asked his attorney to file a notice of appeal, to
the extent the Court interprets this ground for relief as an ineffective assistance of counsel
claim alleging a failure to file a notice of appeal, it can “mak[e] a factual determination
based on the relative credibility of [former defense counsel and the petitioner] without the
benefit of an evidentiary hearing” only if Bennet’s claims are “facially incredible” or the
competing allegations regarding the appeal request do not “contain similar specificity.”
See Witthar v. United States, 793 F.3d 920, 923 (8th Cir. 2015) (quotation omitted).
Bennett’s attorney’s explanation of the events following the sentencing hearing is
significantly more detailed that Bennett’s, and thus, the Court may deny Bennett’s claims
to the extent it relates to his attorney, Jacob Zimmerman.
In short, Bennett simply has not established that he requested that his attorney file
an appeal in a timely fashion, given that his “notice of appeal” was really a request for
documents, nor does he claim that he asked his counsel to pursue an appeal in a timely
fashion. As a result, Bennett’s Section 2255 Motion is inadequate on its face within the
meaning of United States v. McGill, 11 F.3d 223, 225 (1st Cir. 1993). All that said, in an
abundance of caution, this Court will order a hearing on the sole issue of whether Bennett
asked his attorney to file a notice of appeal.
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D. Bennett’s Claim That He Was Promised a Ten-Year Sentence
In his final ground for appeal, Bennett alleges that he was promised a ten-year
sentence if he waived his detention hearing and pretrial motions. Doc. 1, p. 8. The record
reflects that this allegation is without merit.
As indicated in Section "A" supra, the record reflects that there were no promises
made other than those in the plea agreement. In addition, the Court was clear that there
was no guarantee of any particular sentence.
The Court:

“I need to tell you, too, though, that the Sentencing Guidelines,
whatever they turn out to be, are simply guidelines. And by
that I mean I can impose a sentence against you that’s above
the guidelines or a sentence that’s below the guidelines. Do
you understand that too?”

Bennett:

“Yes, sir.”

The Court:

“What I’m bound by then is the statutory penalty. That’s
Paragraph 5 on page 3. For this offense the penalty is
imprisonment for up to life, a fine of up $10 million or a
combination of imprisonment and fine. After your release
there would be a period of supervised release of at least five
years, and there is a mandatory minimum term of
imprisonment of at least 10 years. Do you understand all
that?”

Bennett:

“Yes, sir.”

The Court:

“Knowing that you still wish to plead guilty?”

Bennett:

“Yes, sir.”

The Court:

“Now, I’m going to consider the full range of punishment from
10 years minimum to life maximum, and then the sentence to
be imposed will be in my discretion within that range of
punishment. Do you understand that too?”

Bennett:

“Yes, sir.”
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The Court:

“So with that in mind has anyone told you or promised you
what sentence you’ll receive in the case?”

Bennett:

“The guidelines are from anywhere from 150 -- at a Category
VI it would be 152 to 186.

The Court:

“I understand, but that’s why I mentioned it. I’m going to
consider the full range of punishment --”

Bennett:

“Right.”

The Court:

“ -- from 10 years to life although -- and I’m not bound by the
guidelines. I can go above or below the guidelines. Do you
understand all that?”

Bennett:

“Yes.”

The Court:

“And knowing that you still wish to plead guilty?”

Bennett:

“Yes, sir.”

Plea Tr. , pp. 10-11.
The record clearly reflects that there was no promise made to Bennett that he would
only get ten years at sentencing. Therefore, this allegation is without merit and will be
dismissed without the necessity of an evidentiary hearing.
VI.

CONCLUSION
For the foregoing reasons, this Court will order a hearing on the sole issue of

whether Bennett asked his attorney to file a notice of appeal on Tuesday, January 7, 2025,
at 2:00 p.m.
IT IS FURTHER ORDERED that this Court will deny Bennett’s remaining claims
without an evidentiary hearing.

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SO ORDERED this 22nd day of November, 2024.

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

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