Gillimas v. United States of America

Filing 29

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Movant's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (ECF No. 1 ) is DENIED, and Movant's claims are DISMISSED with prejudice. An Order of Dismissal wil l accompany this Memorandum and Order. IT IS FURTHER ORDERED that because Movant cannot make a substantial showing of the denial of a constitutional right, the Court will not issue a certificate of appealability. See Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997), cert. denied, 525 U.S. 834 (1998). Signed by Honorable Jean C. Hamilton on 8/18/11. (TRC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

OFFIONG GILLIMAS,
Movant,
vs.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 4:09CV1118 JCH

MEMORANDUM AND ORDER
This matter is before the Court on Movant Offiong Gillimas’ Motion under 28 U.S.C. § 2255
to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, filed July 15, 2009. (ECF
No. 1).
BACKGROUND
By way of background, on June 4, 2008, Movant pled guilty to one count of knowingly and
intentionally possessing with the intent to distribute at least fifty grams of a mixture or substance
containing a detectable amount of cocaine base, in violation of 21 U.S.C. § 841(a)(1) (Count II); one
count of knowingly possessing one or more firearms in furtherance of a drug trafficking crime, in
violation of 18 U.S.C. § 924(c) (Count IV); and one count of knowingly using and attempting to use
the threat of physical force or intimidation against a witness, in violation of 18 U.S.C. §
1512(a)(2)(A) (Count IX). The Plea Agreement recommended a base offense level of 32, with a two
level increase pursuant to U.S.S.G. § 3C1.1, as Movant willfully attempted to obstruct or impede the
administration of justice with respect to the offenses for which he was convicted. The Plea
Agreement also recommended a full three level decrease if Movant accepted responsibility for his
conduct under Section 3E1.1 of the Sentencing Guidelines. The parties thus estimated a total offense

level of 31. The Plea Agreement left the determination of Movant’s Criminal History Category to
the Court, after it reviewed the Presentence Report. Notwithstanding these recommendations, the
parties recommended that no sentence be imposed that was less than a term of imprisonment of 20
years for Count II, and a consecutive term of 5 years for Count IV, as provided by statute.
On August 22, 2008, Movant was sentenced to 300 months imprisonment, consisting of 240
months on each of Counts II and IX, such terms to be served concurrently, and 60 months on Count
IV, to be served consecutively. Movant’s term of imprisonment was to be followed by supervised
release for five years. No direct appeal was filed. As the Court construes the instant § 2255 Motion,
Movant alleges the following grounds for relief:
(1)

That Movant received ineffective assistance of counsel, in that counsel failed
to inform Movant of his right to file a notice of appeal;

(2)

That the police officer testified falsely, when he claimed to have seen Movant
at a place he could not have been due to his electronic ankle bracelet;

(3)

That Movant received ineffective assistance of counsel, in that counsel failed
to file pre-trial motions;

(4)

That Movant received ineffective assistance of counsel, in that counsel failed
to file motions to recover samples of recovered fingerprints and DNA
materials for analysis;

(5)

That Movant received ineffective assistance of counsel, in that counsel failed
to secure Movant’s house arrest records in order to dispute the police
officer’s testimony regarding Movant’s whereabouts;

(6)

That Movant received ineffective assistance of counsel, in that counsel failed
to present evidence Movant’s girlfriend was an unreliable witness for the
Government due to her past and present position as a drug dealer;

(7)

That Movant received ineffective assistance of counsel, in that counsel failed
to present exculpatory evidence tending to show the letters Movant wrote did
not constitute threats to a witness, but rather demonstrated only Movant’s
“broken heart”;

(8)

That Movant received ineffective assistance of counsel, in that counsel failed
to challenge the confidential informant’s statement;
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(9)

That Movant received ineffective assistance of counsel, in that counsel failed
to advise Movant regarding the efficacy of entering a nolo contendere or
Alford1 plea;

(10)

That Movant received ineffective assistance of counsel, in that counsel used
threats and scare tactics in order to coerce Movant into pleading guilty;

(11)

That Movant received ineffective assistance of counsel, in that counsel failed
to investigate in whose name the house was titled;

(12)

That Movant received ineffective assistance of counsel, in that counsel failed
to challenge the veracity of the search warrant;

(13)

That Movant received ineffective assistance of counsel, in that counsel failed
to investigate the disciplinary records of the arresting officer;

(14)

That Movant received ineffective assistance of counsel, in that counsel failed
to secure all the physical evidence from the crime scene;

(15)

That Movant received ineffective assistance of counsel, in that counsel failed
to research the law before recommending that Movant enter a plea of guilty;

(16)

That Movant received ineffective assistance of counsel, in that counsel
misguided Movant with respect to the drug quantity to which he pled guilty;

(17)

That Movant received ineffective assistance of counsel, in that counsel
incorrectly informed Movant the sentence for his gun charge could only be run
consecutive to any other sentence, rather than concurrent;

(18)

That Movant received ineffective assistance of counsel, in that counsel lied
with respect to the amount of time with which he would be credited; and

(19)

That Movant received ineffective assistance of counsel, in that counsel failed
to make an argument pursuant to Blakely v. Washington, 542 U.S. 296
(2004).

(§ 2255 Motion, PP. 4-10, 15-22).
STANDARDS GOVERNING MOTIONS UNDER 28 U.S.C. § 2255
Pursuant to 28 U.S.C. § 2255, a federal prisoner may seek relief on the ground that “the
sentence was imposed in violation of the Constitution or laws of the United States, or that the court

1

North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
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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 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, 114 S.Ct. 2291, 129
L.Ed.2d 277 (1994) (citations omitted).2
The Court must hold an evidentiary hearing to consider claims in a § 2255 motion “‘[u]nless
the motion and the 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 him 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 (citation omitted).
DISCUSSION
I.

Claim Subject To Waiver
In Ground 2 of his § 2255 Motion Movant claims the police officer testified falsely, when he

claimed to have seen Movant at a place he could not have been due to his electronic ankle bracelet.
(§ 2255 Motion, PP. 5, 15). The Plea Agreement between Movant and the Government contained
the following waivers of post-conviction rights:

2

“[A]t least where mere statutory violations are at issue, ‘§ 2255 was intended to mirror §
2254 in operative effect.’” Reed, 512 U.S. at 353 (quoting Davis v. United States, 417 U.S. 333, 344
(1974)).
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2(C)(1)(a) Non-Sentencing Issues: In the event the Court accepts the plea, as part of
this agreement, both Defendant and the Government hereby waive all rights to appeal
all non-jurisdictional issues, including but not limited to, any issues relating to pretrial motions, hearings, and discovery; and any issues relating to the negotiation,
taking, or acceptance of the guilty plea or the factual basis for the plea.
2(C)(1)(b) Sentencing Issues: In the event the Court accepts the plea and, in
sentencing Defendant: 1) applies the recommendations agreed to by the parties herein,
and 2) after determining a Sentencing Guideline range, sentences Defendant within
that range (or, if applicable, to a statutory minimum term of imprisonment of 25 years),
then, as part of this agreement, both Defendant and the Government hereby waive all
rights to appeal all sentencing issues, including any issues relating to the determination
of the Total Offense Level, the Criminal History Category, and Career Offender and
Armed Career Criminal status, except contested criminal history.
2(C)(2) Habeas Corpus: Defendant acknowledges being guilty of the crime(s) to
which a plea is being entered, and further states that neither defense counsel nor the
Government has made representations which are not included in this document as to
the sentence to be imposed. Defendant further agrees to waive all rights to contest the
conviction or sentence in any post-conviction proceeding, including one pursuant to
28 U.S.C. § 2255, except for claims of prosecutorial misconduct or ineffective
assistance of counsel.
(Plea Agreement, Guidelines Recommendations, and Stipulations (Cause No. 4:07CR430 JCH, ECF
No. 38), PP. 5-6).
The Eighth Circuit has held that a defendant’s right to appeal his conviction or sentence is
purely a statutory right, and, “[i]t is well settled that a procedural right, whether constitutionally
derived or grounded in statute, may be waived by a criminal defendant.” United States v. Mendoza,
341 F.3d 687, 695 (8th Cir. 2003) (internal quotations and citation omitted). Further, waivers of both
direct-appeal rights and collateral-attack rights are enforceable in the plea agreement context. DeRoo
v. United States, 223 F.3d 919, 923 (8th Cir. 2000) (citations omitted). Accordingly, direct-appeal
and collateral-attack waivers are generally binding, and the Court will not review a waived issue,
“unless the plea agreement was not entered knowingly and voluntarily.” United States v. Mendoza,
341 F.3d at 695 (citations omitted).

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During the change of plea proceeding in the instant case, the District Court questioned Movant
with respect to his guilty plea and the waiver of his right to file an appeal and/or § 2255 motion, as
follows:
THE COURT:

Now, do you understand that you are under oath and if you
would answer any of my questions falsely you might later be
prosecuted for making a false statement or for perjury?

DEFENDANT:

Yes, ma’am....

THE COURT:

And in addition-- and I’m now looking at Page 5 under Section 2C(1)-do you understand that you do--that in the event that I accept your plea
of guilty, you and the Government have agreed to waive or give up
your right to appeal all nonjurisdictional issues and if I accept your
plea of guilty and sentence you within the Guideline range, then you
and the Government agree to waive or give up your right to appeal all
sentencing issues?

DEFENDANT:

Yes, ma’am.

THE COURT:

Now, have you discussed those waivers with Ms. Good?

DEFENDANT:

Yes, ma’am.

THE COURT:

Do you have any question about either of them?

DEFENDANT:

No, ma’am.

THE COURT:

Are you in agreement with them?

DEFENDANT:

Yes, ma’am.

THE COURT:

And in the next section, under Section 2C(2), beginning on
page 5 and going to page 6, you have also agreed to waive your
right to challenge the conviction or the sentence in a
subsequent proceeding unless you challenge it on the grounds
of the prosecutor’s misconduct or ineffective assistance of
counsel. Now, have you discussed that waiver with Ms. Good?

DEFENDANT:

Yes, ma’am.

THE COURT:

And do you have any questions about it?

DEFENDANT:

No, ma’am.

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THE COURT:

Are you in agreement with it?

DEFENDANT:

Yes, ma’am....

(Change of Plea Hearing Transcript (Cause No. 4:07CR430 JCH, ECF 58), PP. 2, 9-10).
The Eighth Circuit has held that, “‘[s]olemn declarations in open court carry a strong
presumption of verity.’” Smith v. Lockhart, 921 F.2d 154, 157 (8th Cir. 1990) (quoting Blackledge
v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 1629, 52 L.Ed.2d 136 (1977)). This Court thus finds that
Movant entered his plea of guilty in a knowing and voluntary manner, and further that Ground 2 of
Movant’s § 2255 Motion does not raise an issue that was preserved in the Plea Agreement. United
States v. Mendoza, 341 F.3d at 695. The Court therefore will enforce the Plea Agreement as written,
and dismiss Ground 2 of Movant’s § 2255 Motion. Id. at 695-96.

II.

Standard For Ineffective Assistance Of Counsel
In order to prevail on a claim of ineffective assistance of counsel, Movant must show that his

attorney’s performance was “deficient,” and that the deficient performance was “prejudicial.”
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).
Counsel is “strongly presumed to have rendered adequate assistance and made all significant decisions
in the exercise of reasonable professional judgment.” Id. at 690. To overcome this presumption,
Movant must prove that, “in light of all the circumstances, the identified acts or omissions were
outside the wide range of professionally competent assistance.” Id.
Even if Movant satisfies the performance component of the analysis, he is not entitled to relief
unless he can prove sufficient prejudice. Id. at 691. Movant must prove that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694. In the context of a guilty plea, to demonstrate prejudice Movant must show

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that, but for counsel’s error, he would not have pled guilty, but would have insisted on going to trial.
Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).
A.

Ground 1

In Ground 1 of his § 2255 Motion Movant maintains he received ineffective assistance of
counsel, in that counsel failed to inform him of his right to file a notice of appeal. (§ 2255 Motion,
P. 4). On September 16, 2010, the Court held an evidentiary hearing on Movant’s claims, and
Movant testified in a contradictory manner with regard to this issue. For example, while Movant first
claimed he was not even made aware of his appeal rights until he “made it to actual federal system,”
in response to the very next question he stated that he had asked his attorney to file a notice of appeal
on his behalf. (Evidentiary Hearing Transcript, P. 14).3 In contrast Movant’s attorney, Ms. Good4,
stated repeatedly and emphatically that Movant did not instruct her to file a notice of appeal. (Id.,
PP. 47, 63).5
“An attorney’s failure to file a notice of appeal after being instructed to do so by his client
constitutes ineffective assistance entitling the [movant] to § 2255 relief.” Evans v. United States,
2006 WL 1300672 at *5 (E.D. Mo. May 8, 2006). “No inquiry into prejudice or likely success on
appeal is necessary.” Id. (citing Holloway v. United States, 960 F.2d 1348, 1356-57 (8th Cir. 1992)).
“The appropriate remedy is to remand for re-sentencing, thus affording the
[movant] an opportunity to take a timely direct appeal.” Barger v. United
States, 204 F.3d 1180, 1182 (8th Cir. 2000). For such a claim to succeed,
3

Movant claims he wanted to appeal, despite his acknowledgment of his waiver of the right
to do so during the change of plea proceeding.
4

Ms. Janis Good represented Movant in his criminal matter.

5

In response to a question as to what she would have done had Movant requested that she
file a notice of appeal, Ms. Good stated, “I would have filed a notice of appeal that he asked but I
would have been in a position where I would ask--I would have had to file an Anders brief because
there weren’t any issues that--I still don’t know of any issues that we could have raised on appeal.”
(Evidentiary Hearing Transcript, PP. 63-64).
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however, Movant must show that he instructed his counsel to file an appeal.
See Holloway, 960 F.2d at 1357.
Evans, 2006 WL 1300672 at *5. “The critical question, then, is whether Movant specifically asked
his lawyer to file a notice of appeal.” Id.6 A bare assertion that he made the request is not by itself
sufficient to support a grant of relief, if evidence that the Court finds to be more credible indicates
the contrary position. Rodriguez v. United States, 964 F.2d 840, 842 (8th Cir. 1992).
After considering the testimony from the evidentiary hearing and the record generally, the
Court finds Movant did not inform Ms. Good of his desire to file an appeal. Specifically, the Court
finds Movant’s testimony during the hearing was not credible, especially in light of his admission that
he had lied to this Court in the past. (See Evidentiary Hearing Transcript, PP. 39-40). The Court
conversely finds Ms. Good’s testimony, to the effect that Movant never indicated a desire to file an
appeal, was credible. Ground 1 of Movant’s § 2255 Motion will therefore be denied.
B.

Ground 3

In Ground 3 of his § 2255 Motion Movant alleges he received ineffective assistance of
counsel, in that counsel failed to file any pre-trial motions despite his requests for her to do so. (§
2255 Motion, PP. 7, 15, 18-19). With this claim, the Court finds Movant fails to establish deficient
performance. Specifically, the Court again finds Movant’s testimony on the issue was conflicting,
as while he first stated he wanted Ms. Good to file “every motion that could be filed,” he later
acknowledged waiving his right to file motions.7 (Evidentiary Hearing Transcript, PP. 3, 5, 7-8, 12-

6

“If Movant did ask for an appeal, his lawyer violated his Sixth Amendment rights by failing
to complete the ministerial task of filing a notice of appeal.” Evans, 2006 WL 1300672 at *5 (internal
quotations and citation omitted).
7

Movant further acknowledged that he had waived his right to file motions through a
colloquy with then-Magistrate Judge Audrey Fleissig, during which he stated it was in his best interest
not to file motions. (Evidentiary Hearing Transcript, PP. 26-27).
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13, 25-26). For her part, during her testimony Ms. Good stated she discussed the various motions
that could be filed with Movant, together with the potential problems she perceived with each. (Id.,
PP. 49-50). She asserted that knowing Mr. Reilly8 as she did, she knew that he would have enhanced
Movant’s sentence to life had they filed pretrial motions. (Id., P. 50). Finally, Ms. Good testified that
while she had advised Movant it was not in his best interest to file motions, she left the decision to
him, and he ultimately decided to waive his right to do so. (Id., PP. 50-52). Ms. Good’s testimony
was credible, and the Court cannot find under these circumstances that her representation fell outside
the wide range of professionally competent assistance sanctioned by Strickland. Ground 3 is denied.9
C.

Ground 4

In Ground 4 of his § 2255 Motion Movant asserts he received ineffective assistance of
counsel, in that counsel failed to file motions to recover samples of recovered fingerprints and DNA
materials for analysis. (§ 2255 Motion, P. 8). During the evidentiary hearing Ms. Good testified as
follows regarding this claim:
We did discuss fingerprints and the fact is that I remember distinctly
explaining to him that unlike in state court, in federal court you can actually
argue that the failure of the government to test is evidence that there might be
something out there and to argue reasonable doubt.
I did tell him that it was a bad idea to have fingerprint evidence.
Evidence--fingerprinted because it--the items we’re talking about were found
in his home and the fact is that there are--with regard to guns, I explained to
what other fingerprinting examiners have talked to us even that they don’t
usually fingerprint guns. They also talk about that they don’t always
fingerprint evidence after they seized it because in a search warrant a number
of people come and test and contaminate the evidence but I told him the fact
they didn’t test could be used in argument, much stronger than if we tested

8

Mr. Michael Reilly was the Assistant United States Attorney originally assigned to Movant’s
criminal case.
9

In light of the Court’s ruling that trial counsel’s performance was not deficient, it need not
consider whether Movant suffered prejudice.
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and found something we didn’t like or something else horrible happened so
we talked about it but we--I told him that strategically I did not think it was
a good idea to fingerprint the evidence.
(Evidentiary Hearing Transcript, P. 53). Upon consideration of the foregoing, the Court finds Ms.
Good’s decision not to request fingerprint or DNA analysis represented reasonable trial strategy, and
thus fell within the “wide range of professionally competent assistance” sanctioned by Strickland. See
466 U.S. at 690 (decisions relating to trial strategy are “virtually unchallengeable”). Movant’s
request for relief on this ground must therefore be denied.10
D.

Grounds 5, 6, 7, 8

As stated above, in Ground 5 of his § 2255 Motion Movant asserts he received ineffective
assistance of counsel, in that counsel failed to secure Movant’s house arrest records in order to
dispute the police officer’s testimony regarding Movant’s whereabouts. (§ 2255 Motion, PP. 15-16).
In Ground 6 Movant asserts he received ineffective assistance of counsel, in that counsel failed to
present evidence Movant’s girlfriend was an unreliable witness for the Government due to her past
and present position as a drug dealer. (Id., P. 16). In Ground 7 Movant asserts he received
ineffective assistance of counsel, in that counsel failed to present exculpatory evidence tending to
show the letters Movant wrote did not constitute threats to a witness, but rather demonstrated only
Movant’s “broken heart.” (Id.). In Ground 8 Movant asserts he received ineffective assistance of
counsel, in that counsel failed to challenge the confidential informant’s statement. (Id., P. 17).
Upon consideration, the Court holds it need not consider whether Movant’s counsel’s
performance was deficient, as with these claims Movant fails to demonstrate the requisite prejudice;
in other words, he fails to establish that absent his counsel’s alleged errors, he would have insisted

10

Again, in light of the Court’s ruling that trial counsel’s performance was not deficient, it
need not consider whether Movant suffered prejudice.
- 11 -

on proceeding to trial. Rather, during the guilty plea proceeding, the District Court questioned
Movant extensively regarding his decision to plead guilty, as follows:
THE COURT:

Now, have you received a copy of the indictment or the
charges, the superseding indictment or the charges against
you?

THE DEFENDANT: Yes, ma’am.
THE COURT:

And have you had an opportunity to review and discuss those
with Ms. Good?

THE DEFENDANT: Yes, ma’am.
THE COURT:

Do you have any question about the charges themselves?

THE DEFENDANT: No, ma’am....
THE COURT:

I have received a document entitled Plea Agreement,
Guidelines Recommendations, and Stipulations. This is a 22page document, and I have the original in front of me. Do you
have a copy there in front of you?

THE DEFENDANT: Yes, ma’am.
THE COURT:

Turning to Page 21, which is the second to last page, is that
your signature, Mr. Gillimas–

THE DEFENDANT: Yes, ma’am.
THE COURT:

--at the bottom?

THE DEFENDANT: Yes, ma’am.
THE COURT:

And did you sign that today?

THE DEFENDANT: Yes, ma’am....
THE COURT:

Now, Mr. Gillimas, have you had an opportunity to review
and discuss the provisions of this document with Ms. Good?

THE DEFENDANT: Yes, ma’am.
THE COURT:

And are you in agreement with everything contained in this
document?
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THE DEFENDANT: Yes, ma’am.
THE COURT:

Is there anything in this document with which you disagree?

THE DEFENDANT: No, ma’am.
THE COURT:

Do you have any questions about any provision of this
document?

THE DEFENDANT: No, ma’am.
THE COURT:

Has anyone made any promises or assurances to you other
than what’s contained in this document in order to cause you
to plead guilty today?

THE DEFENDANT: No, ma’am.
THE COURT:

Has anyone tried to force or coerce you into pleading guilty?

THE DEFENDANT: No, ma’am.
THE COURT:

Are you doing this of your own free will?

THE DEFENDANT: Yes, ma’am....
(Change of Plea Hearing Transcript, PP. 4-7). The Court further questioned Movant regarding his
understanding of the possible penalties associated with his plea of guilty, as follows:
THE COURT:

Now, do you understand that the maximum possible penalty
for the offense in Count II is imprisonment of not more than
life, a fine of not more than [$8,000,000], or both
imprisonment and a fine?

THE DEFENDANT: Yes, ma’am....
THE COURT:

And do you understand that this count, Count II, carries a
mandatory minimum term of imprisonment of 20 years?

THE DEFENDANT: Yes, ma’am.
THE COURT:

And do you understand that the maximum possible penalty on
Count IV is a term of imprisonment of not less than five years
nor more than life, which cannot run concurrently with the
sentence imposed in Counts II and IX; it must be consecutive
to those?
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THE DEFENDANT: Yes, ma’am.
THE COURT:

And do you understand that that count carries a term of
supervised release not to exceed five years?

THE DEFENDANT: Yes, ma’am.
THE COURT:

And do you also understand that the maximum possible
penalty under law as to Count IX is imprisonment of not more
than 20 years?

THE DEFENDANT: Yes, ma’am.
THE COURT:

And, again, this has a term--may have a term of supervised
release not to exceed three years.

THE DEFENDANT: Yes, ma’am.
THE COURT:

Now, do you also understand that there is the possibility of an
enhanced sentence depending upon what your criminal history
is?

THE DEFENDANT: Yes, ma’am.
THE COURT:

And have you discussed that with Ms. Good?

THE DEFENDANT: Yes, ma’am....
(Id., PP. 7-9). Mr. Sauer11 then stated the relevant facts in Movant’s case, as follows:
On November 8th, 2006--I’m reading from paragraph--it’s at page 12,
paragraph four from the stipulation. On November 8th, 2006, a confidential
informant who had previously provided reliable information to the St. Louis
Metropolitan Police Department advised SLMPD officers that a man going
by the alias “Peanut” was selling crack cocaine from a residence at 4636
South Compton in the city of St. Louis, at which residence Defendant then
resided. The informant advised officers that he or she had directly observed
Peanut selling crack cocaine to at least four different individuals within the
prior 24 hours. Peanut is one of the Defendant’s aliases, and the informant
provided a description of Peanut that was consistent with the Defendant’s
appearance.

11

Assistant United States Attorney D. John Sauer entered his appearance in Movant’s criminal
matter on March 27, 2008, replacing Mr. Reilly as counsel for the Government.
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On further investigation, the officers observed repeated foot traffic at
the 4636 South Compton residence that was consistent with drug trafficking.
They also observed an individual meeting the description of Peanut to leave
the house and to engage in what appeared to be a hand-to-hand transaction
with a drug purchaser outside the premises....
Defendant possessed the 156.15 grams of crack cocaine seized from
his residence with the intent to distribute it. He possessed the two firearms,
the Glock .40 caliber handgun and the 12-gauge shotgun, in furtherance of
this drug crime.
During the execution of the search warrant, moreover, Defendant
pressured his girlfriend, Tara Bowden, to make false statements to police
about ownership of the guns and drugs that actually belonged to the
Defendant. The majority of the contraband, including all the crack cocaine
and the Glock .40 handgun, was seized from the bedroom in the residence at
4636 South Compton shared by the Defendant and Tara Bowden. Only the
Defendant and Ms. Bowden had access to this bedroom. Ms. Bowden was,
therefore, a potential source of testimony as to the Defendant’s possession of
these guns and drugs, and the Defendant was aware that Ms. Bowden would
be a potential witness in any proceedings against him.
On or about July 24th, 2007, with the intent of influencing or
preventing her testimony, the Defendant mailed a letter to Tara Bowden
threatening to kill her. The letter stated that, quote, “It’s still middle fingers
and trigger fingers when I touch down in them streets because you are really
playing me like a”--expletives deleted. The Defendant intended Ms. Bowden
to understand and she did understand the reference to middle fingers and
trigger fingers as a threat to kill her by shooting her.
Again, on or about December 8th, 2007, Defendant mailed another
letter to Ms. Bowden, threatening to kill her. This letter stated, quote, “I
promise to send you on a trip to see your little cousin Chick Chick, Mac, and
Fresh from the bottom of my heart.” Little cousin Chick Chick, Mac, and
Fresh all refer to three joint acquaintances of the Defendant and Ms. Bowden,
all of whom had been killed by gunshot wounds to the head. The Defendant’s
threat to send Ms. Bowden on a trip to see these deceased shooting victims
was intended as and was understood as a threat to kill Ms. Bowden by
shooting her.
The purpose of these threatening letters was to influence, delay, or
prevent Ms. Bowden’s testimony against Defendant in criminal proceedings
arising from the November 21st, 2006, search of his residence. The
statements in these two letters were particularly threatening to Ms. Bowden
because, on multiple prior occasions, the Defendant had physically threatened
her with a handgun and subjected her to physical abuse.
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(Id., PP. 12-16). Movant testified under oath that he agreed with everything Mr. Sauer had stated,
and that he had committed the acts as described by Mr. Sauer and in the stipulation. (Id., P. 16).12
When asked how he intended to plead to Counts II, IV and IX of the superseding indictment, Movant
stated guilty. (Id., PP. 16-17). Finally, the Court questioned Movant with respect to his satisfaction
with counsel, as follows:
THE COURT:

Now, are you satisfied with the representation you have
received from Ms. Good in this case?

THE DEFENDANT: Yes, ma’am.
THE COURT:

Do you have any complaints whatsoever about her
representation of you?

THE DEFENDANT: No, ma’am.
(Id., P. 5). Based on Movant’s representations during his change of plea proceeding, the Court held
as follows:
THE COURT:

It is the finding of the Court in the case of the United States
vs. Gillimas that the Defendant is fully competent and capable
of entering an informed plea, that the Defendant is aware of
the nature of the charges and the consequences of the plea,
and that the plea of guilty is a knowing and voluntary plea
supported by an independent basis in fact containing each of
the essential elements of the offenses in Counts II, IV and IX.
The plea to those counts is, therefore, accepted, and the
Defendant is now adjudged guilty of those offenses....

(Id., P. 17)
As noted above, the Eighth Circuit has held that, “‘[s]olemn declarations in open court carry
a strong presumption of verity.’” Smith v. Lockhart, 921 F.2d at 157 (citation omitted). This Court
finds that Movant’s own testimony demonstrates he committed the offenses at issue, voluntarily pled

12

In so doing, the Court finds Movant specifically admitted to facts tending to contradict the
claims made in Grounds 5, 6, 7 and 8 of the instant motion.
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guilty, and received effective assistance of counsel. Id. Neither the conclusory allegations contained
in Movant’s § 2255 Motion nor his testimony during the evidentiary hearing leads the Court to
conclude otherwise. Grounds 5, 6, 7 and 8 of Movant’s § 2255 Motion will therefore be denied.
E.

Ground 9

In Ground 9 of his § 2255 Motion Movant asserts he received ineffective assistance of
counsel, in that counsel failed to advise Movant regarding the efficacy of entering a nolo contendere
or Alford plea. (§ 2255 Motion, P. 17). During the evidentiary hearing, Movant elaborated upon this
claim during his direct testimony as follows:
MR. STOBBS13:

And you also indicated during the plea agreement that you
were not made aware of a nolo contendere or Alford plea–

MOVANT:

I don’t really know what that is.

MR. STOBBS:

That’s because Ms. Good never told you?

MOVANT:

Right.

MR. STOBBS:

That’s something that you alleged in your complaint, you
indicated that she never advised you of a nolo contendere or
Alford plea and I’m just making sure that we covered that.

MOVANT:

Yes, that--that must have been something that I wanted to find
out was some type of motion that I need but I never was told
by her because I really--not aware of what it is now.

(Evidentiary Hearing Transcript, PP. 16-17). During cross-examination, Movant testified as follows:
MR. SAUER:

Okay. And now you say Ms. Good never told you about a
nolo contendere plea or Alford plea; is that right?

MOVANT:

Right now I’m not aware like exactly what that plea is.

MR. SAUER:

Okay. But do you have any specific argument that you would
have done that instead of the plea that you did do?

13

The Court appointed Mr. John D. Stobbs, II, to represent Movant in this matter. (ECF No.

10).
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MOVANT:

I just got confused.

MR. SAUER:

Okay. Let me ask a different question. Did Ms. Good ever
tell you Mr. Reilly would accept a nolo contendere plea or
Alford plea? Did you ever talk about that possibility at all?

MOVANT:

I don’t know exactly what that plea is.

(Id., PP. 32-33).
Upon consideration of the foregoing, the Court finds that with this claim Movant fails to
demonstrate the requisite prejudice. In other words, the Court notes Movant does not claim that
absent counsel’s allegedly unprofessional error he would have insisted on proceeding to trial; in fact,
he does not even assert he would have elected to enter a nolo contendere or Alford plea. Instead,
Movant admitted during the evidentiary hearing that he did not know the nature of such pleas.
Furthermore, Movant offers absolutely no evidence either that Mr. Reilly would have accepted a
different type of plea, or that his sentence would have been different had he been advised as to their
existence. Ground 9 of Movant’s § 2255 Motion must therefore be denied.
F.

Ground 10

In Ground 10 of his § 2255 Motion Movant asserts he received ineffective assistance of
counsel, in that counsel used threats and scare tactics in order to coerce Movant into pleading guilty.
(§ 2255 Motion, PP. 17-18). With this claim, the Court finds Movant fails to satisfy either prong of
the Strickland analysis. With respect to deficient performance, the Court notes that during the
evidentiary hearing Movant confirmed Ms. Good never made any physical threats. (Evidentiary
Hearing Transcript, P. 27). Rather, he claimed the coercion came through her repeated assertions
that should Movant proceed to trial, he would receive “life plus thirty.” (Id.). Movant further
testified he felt pressured by Ms. Good’s contention that only approximately one in one thousand
federal defendants got his or her conviction overturned on appeal. (Id., PP. 4, 17, 29). For her part,

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Ms. Good did not deny giving the advice as recounted by Movant. Rather, she maintained she
explained the following to Movant:
Well, the benefit of the [plea] bargain was is that he would have a 25
year sentence rather than risk the entire life plus 30 so he would get out in his
lifetime. That was definitely--considering how old Mr. Gillimas was, that was
certainly a benefit because I think I explained to him that he probably would
be younger than I was at the time that I am when he would get out of prison.
(Id., P. 49). Ms. Good emphatically maintained she left the decision whether or not to plead guilty
to Movant. (Id.). In light of this credible testimony, the Court does not find Ms. Good’s counsel fell
outside the wide range of professional assistance sanctioned by Strickland.
With respect to prejudice, as noted above Movant testified as follows during the change of
plea proceeding:
THE COURT:

Has anyone made any promises or assurances to you other
than what’s contained in this document in order to cause you
to plead guilty today?

THE DEFENDANT: No, ma’am.
THE COURT:

Has anyone tried to force or coerce you into pleading guilty?

THE DEFENDANT: No, ma’am.
THE COURT:

Are you doing this of your own free will?

THE DEFENDANT: Yes, ma’am....
(Change of Plea Hearing Transcript, PP. 6-7). Movant offers insufficient evidence to rebut this sworn
testimony, and so the Court finds Movant fails to establish that absent his counsel’s alleged error, he
would have insisted on proceeding to trial. Ground 10 is denied.
G.

Ground 11

In Ground 11 of his § 2255 Motion Movant asserts he received ineffective assistance of
counsel, in that counsel failed to investigate in whose name the house was titled. (§ 2255 Motion,

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P. 18). Movant did not elaborate on this point during the evidentiary hearing, and upon review of
the record the Court finds no evidence that any such investigation would have affected Movant’s
decision to plead guilty. Ground 11 is denied.
H.

Ground 12

In Ground 12 of his § 2255 Motion Movant asserts he received ineffective assistance of
counsel, in that counsel failed to challenge the veracity of the search warrant. (§ 2255 Motion, P.
19). During the evidentiary hearing, Ms. Good testified that in federal court it is very difficult to get
a Franks14 hearing to challenge a search warrant. (Evidentiary Hearing Transcript, P. 50). She stated
she discussed this difficulty with Movant, in conjunction with her advice regarding the undesirability
of filing pretrial motions. (Id., PP. 49-50, 52). Under these circumstances, the Court does not find
that her representation fell outside the wide range of professionally competent assistance sanctioned
by Strickland. Ground 12 is denied.15
I.

Ground 13

In Ground 13 of his § 2255 Motion Movant asserts he received ineffective assistance of
counsel, in that counsel failed to investigate the disciplinary records of the arresting officer. (§ 2255
Motion, P. 19). Movant elaborated upon this claim during the evidentiary hearing as follows:
Well, the reason I wanted [the disciplinary records] was because the
same officers that gave me this case, they gave me a case in 2003 and I was
guilty of that case but he wanted me to be a snitch or a narc for him and I
didn’t and he always told me that he was going to make me pay for this one
day and it was--it was a coincidence or whatever it was that I have out of all
the officers in the City of St. Louis this is the same officer who built this case
on me and it was all lies.

14

Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).

15

As further support for its ruling, the Court notes Movant fails to establish prejudice with
this claim, as during the change of plea proceeding he testified under oath as to the validity of the
search warrant. (Change of Plea Hearing Transcript, PP. 13-15).
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(Evidentiary Hearing Transcript, P. 18). On cross-examination, however, Movant acknowledged he
had no idea whether the records at issue would have been available, had Ms. Good requested them.
(Id., P. 33). Movant further acknowledged this motion to compel was one of the pretrial motions Ms.
Good advised him to waive, in an effort to reduce his chances for an enhanced sentence. (Id., P. 34).
Finally, as noted above, during his change of plea proceeding Movant testified under oath that he had
committed the acts he pled guilty to, and that he had no complaints whatsoever regarding Ms. Good’s
representation. (Change of Plea Proceeding Transcript, PP. 5, 12-16). The Court thus finds Movant
fails to demonstrate Ms. Good’s advice and/or performance was deficient in this regard, and further
fails to show he would have proceeded to trial absent her alleged error. Ground 13 is denied.
J.

Ground 14

In Ground 14 of his § 2255 Motion Movant asserts he received ineffective assistance of
counsel, in that counsel failed to secure all the physical evidence from the crime scene. (§ 2255
Motion, P. 20). With this claim, the Court finds Movant fails to demonstrate the requisite prejudice.
In other words, other than the conclusory statements in his motion, Movant offers no evidence as to
the nature of the physical evidence his attorney should have attempted to procure, or how such
procurement would have aided in Movant’s defense.16 Absent these details, the Court cannot find
a reasonable probability that, but for counsel’s allegedly unprofessional error, the result of Movant’s
proceeding would have been different. See Anderson v. Collins, 18 F.3d 1208, 1221 (5th Cir. 1994)
(internal quotations and citation omitted) (finding petitioner’s “brief and conclusory allegations”
regarding counsel’s failure to investigate and develop useful evidence insufficient, as “without a
specific, affirmative showing of what the missing evidence or testimony would have been, a habeas

16

Movant does mention Ms. Good’s failure to obtain a fingerprint analysis, a claim addressed
and rejected in Section II(C), supra.
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court cannot even begin to apply Strickland’s standards because it is very difficult to assess whether
counsel’s performance was deficient, and nearly impossible to determine whether the petitioner was
prejudiced by any deficiencies in counsel’s performance.”). Ground 14 is denied.
K.

Ground 15

In Ground 15 of his § 2255 Motion Movant asserts he received ineffective assistance of
counsel, in that counsel failed to research the law before recommending that Movant enter a plea of
guilty. (§ 2255 Motion, P. 20). Specifically, Movant claims his attorney “coerced [him] to plead
guilty to count 4 when firearm was not on search warrant, in plain view, or even used in drug
trafficking crime.” (Id.). As noted above, however, Movant admitted to the validity of the search
warrant process during his change of plea proceeding. (Change of Plea Hearing Transcript, PP. 1315). Movant further admitted that he had possessed two firearms, a Glock .40 caliber handgun and
a 12-gauge shotgun, in furtherance of his drug crime. (Id., PP. 14-15). Under these circumstances,
the Court finds Movant fails to demonstrate the requisite prejudice, as he offers absolutely no
evidence that the conducting of any additional research would have impacted his decision to plead
guilty. Ground 15 must therefore be denied.
L.

Ground 16

In Ground 16 of his § 2255 Motion Movant asserts he received ineffective assistance of
counsel, in that counsel misguided Movant with respect to the drug quantity to which he pled guilty.
(§ 2255 Motion, PP. 20-21). Movant elaborated upon this claim during the evidentiary hearing as
follows:
I had seen in particular part of my paperwork that I had that it was
some crack that I was supposed to have been pleading to but then I seen it
was also somewhere where it was some marijuana in the house that somebody
pleaded to which is in the paper work that he pleaded to and got probation for
it, but in the end it was still added on to my drugs so I was like how are they

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charging two people with the same amounts of weed but charging me with all
the crack and heroin that was in the house.
(Evidentiary Hearing Transcript, P. 19). When questioned regarding the drug attribution, however,
Ms. Good testified as follows:
I will just explain to you that he was charged--well 1B.13 [of the
U.S.S.G.] allows all kinds of drugs in the house to be attributable to someone.
The drug quantity didn’t actually determine the guidelines in this case because
there was an enhancement, so the mandatory minimum went to 20 years, so
how many--how much drugs were found in the house other than over 50
grams wasn’t really relevant. The marijuana wasn’t counted against him, his
guidelines were not higher. In fact, they were at the 240 plus 60 by statute as
opposed to the guidelines.
(Id., P. 54). Movant offers no rebuttal to Ms. Good’s assertion that he was sentenced to a statutorily
mandated minimum sentence, and so Ground 16 must be denied for failure to demonstrate prejudice.
M.

Ground 17

In Ground 17 of his § 2255 Motion Movant asserts he received ineffective assistance of
counsel, in that counsel incorrectly informed Movant the sentence for his gun charge could only be
run consecutive to any other sentence, rather than concurrent. (§ 2255 Motion, P. 21). With this
claim, Movant fails to demonstrate his counsel’s performance was deficient. In other words, the
Court notes that pursuant to 18 U.S.C. § 924(c)(1)(D)(ii), Movant’s sentence for his conviction for
possession of a firearm was required to run consecutive to his other sentences. Ms. Good’s advice
thus was accurate, and cannot form the basis for a claim of ineffective assistance of counsel. Ground
17 is denied.
N.

Ground 18

In Ground 18 of his § 2255 Motion Movant asserts he received ineffective assistance of
counsel, in that counsel lied with respect to the amount of time with which he would be credited. (§
2255 Motion, P. 22). Movant did not elaborate upon this point during the evidentiary hearing, and

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upon review of the record the Court finds no evidence that such alleged misrepresentation affected
Movant’s decision to plead guilty in any way. 17 Under these circumstances, Ground 18 must be
denied.
O.

Ground 19

In his final claim for relief Movant asserts he received ineffective assistance of counsel, in that
counsel failed to make an argument pursuant to Blakely v. Washington, 542 U.S. 296 (2004). (§
2255 Motion, P. 22). While Movant testified during his evidentiary hearing that he requested that
Ms. Good conduct research on the Blakely issue (see Evidentiary Hearing Transcript, P. 20), at no
time did he claim that the results of such research would have influenced his decision to plead guilty.
Ground 19 of Movant’s § 2255 Motion must therefore be denied.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Movant’s Motion to Vacate, Set Aside, or Correct
Sentence pursuant to 28 U.S.C. § 2255 (ECF No. 1) is DENIED, and Movant’s claims are
DISMISSED with prejudice. An Order of Dismissal will accompany this Memorandum and Order.
IT IS FURTHER ORDERED that because Movant cannot make a substantial showing of
the denial of a constitutional right, the Court will not issue a certificate of appealability. See Cox v.
Norris, 133 F.3d 565, 569 (8th Cir. 1997), cert. denied, 525 U.S. 834 (1998).

Dated this 18th

day of August, 2011.

17

In other words, Movant offers absolutely no evidence tending to demonstrate that had he
received accurate information with respect to time credited, he would have insisted upon proceeding
to trial.
- 24 -

/s/Jean C. Hamilton
UNITED STATES DISTRICT JUDGE

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