Haley v. United States of America

Filing 10

MEMORANDUM: For the foregoing reasons, the court concludes that motion and the files and records of this case show that Haley is not entitled to relief under 28 U.S.C. § 2255 based on any of the claims he asserts in his motion. Therefore, the motion will be denied without a hearing. See Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995). Additionally, the court finds that Haley has not made a substantial showing of the denial of a constitutional right. Therefore, the court will not issue a certificate of appealability. See 28 U.S.C. § 2253. An appropriate Order will accompany this Memorandum. Signed by District Judge Carol E. Jackson on 8/29/2012. (KMS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
GERALD HALEY,

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Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

No. 4:09-CV-1122 (CEJ)

MEMORANDUM
This matter is before the Court upon the motion of Gerald Haley to vacate, set
aside, or correct sentence pursuant to 28 U.S.C. § 2255. The United States has filed
a response in opposition to the motion.
I. Background
After pleading guilty to bank robbery, in violation of 18 U.S.C. § 2113(a), Haley
was sentenced to a term of imprisonment of 210 months, to be followed by a threeyear term of supervised release. The court imposed special conditions of supervised
release, one of which was the requirement that Haley participate in the home
confinement program for three years. The judgment was affirmed on appeal. United
States v. Haley, 284 Fed. Appx. 372 (8th Cir. 2008).
II. Discussion
In the motion to vacate, Haley asserts that (1) he received an illegal sentence;
(2) the sentence was inconsistent with the plea agreement; (3) the court erred with
respect to his prior conviction for escape; (4) the government breached an oral
agreement not to oppose a sentence at the low end of the guideline range; and (5) he
was denied effective assistance of counsel.

With the exception of ground 5, all of the claims Haley asserts could have been
presented on direct appeal, but were not. A motion to vacate is not a substitute for
a direct appeal. See Boyer v. United States, 988 F.2d 56, 57 (8th Cir. 1993); Reid v.
United States, 976 F.2d 446, 447 (8th Cir. 1992), cert. denied, 507 U.S. 945 (1993)
[citing United States v. Frady, 456 U.S. 152 (1982)]. Absent a showing of cause and
prejudice, a movant cannot assert a claim in a § 2255 proceeding that could have been
asserted on appeal. Id.

In order to show cause, the movant must establish that

“some objective factor external to the defense” impeded his ability to present his claim
on appeal. McCleskey v. Zant, 499 U.S. 467, 493 (1991)[quoting Murray v. Carrier,
477 U.S. 478, 488 (1986)].

Ineffective assistance of counsel or a showing of actual

innocence may constitute cause sufficient to exempt a movant from the procedural
bar. Id. at 494.
Because Haley asserts that his attorney’s failure to address the issues raised in
grounds 1-4 constituted ineffective assistance of counsel, the Court will consider the
merits of the grounds that would otherwise be subject to the procedural bar. The court
notes, however, that Haley makes no claim, let alone any showing, of actual
innocence.
Ground 1:

Illegal Sentence

The statutory maximum sentence of imprisonment for a violation of 18 U.S.C.
§ 2113(a) is 20 years.

Haley argues that the sentence he received of 210 months’

imprisonment and 36 months of home detention amounts to a 246-month term of
imprisonment, thus exceeding the statutory maximum by six months. At the core of
his argument is the premise that home confinement and imprisonment are the same.

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Haley’s premise is not supported by the law in the Eighth Circuit. In United
States v. Iverson, 90 F.3d 1340 (8th Cir. 1996), the defendant challenged the district
court’s imposition of home confinement as a condition of probation. The court of
appeals found no error, stating “the fact that home detention may be imposed ‘only
as a substitute for imprisonment’...” or “ ‘only as an alternative to incarceration’ does
not mean home detention is a form of imprisonment...” Id. at 1343 (quoting U.S.S.G.
5F1.2 and 18 U.S.C. § 3563(b)(19)). See also United States v. Stroupe, 200 Fed.
Appx. 178, 181-82 (4th Cir. 2006) (“Congress generally views home confinement as
a part of a sentence of...supervised release, not as imprisonment.”) (quoting United
States v. Hager, 288 F.3d 136, 137 (4th Cir. 2002)).
Because the home confinement condition of Haley’s supervised release does not
cause his sentence to exceed the statutory maximum, his sentence is not illegal. He
is not entitled to relief on this claim.
Ground 2:

Sentence Inconsistent with Plea Agreement

Haley next claims that his sentence should be vacated because it was
inconsistent with the plea agreement. In the plea agreement, the parties recommended a base offense level of 20 based on U.S.S.G. § 2B3.1. After recommended
adjustments based on specific offense characteristics and acceptance of responsibility,
Haley’s total offense level would have been 24. However, because he was a career
offender, his offense level was 32. See U.S.S.G. § 4B1.1(b)(C).
The plea agreement specifically stated that the parties’ recommendations were
not binding on the court. Thus, Haley knew the court could reject the recommended
guidelines. Also, the plea agreement specifically stated that “[p]rior convictions can

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affect the sentence and usually result in a harsher sentence.” Thus, Haley knew that
his prior convictions could adversely affect him. Haley does not contend that he did
not qualify as a career offender. And, he cannot legitimately argue that the court was
required to ignore the career offender guideline because it was not recommended in
the plea agreement.
This claim is without merit.
Ground 3: Sentencing Error
Haley asserts that the sentence imposed was based on the court’s mistaken
belief that he was “on parole for a crime of violence at the time he committed” the
bank robbery. United States v. Gerald Haley, No. 4:06-CR-341, Transcript, p. 8 [Doc.
# 64]. At the time of the offense, Haley was on parole for escape from custody, which
involved his escaping from a county jail where he was being held on a robbery charge.
Haley contends that escape is a non-violent crime under Missouri law and that he
would have received a more favorable sentence if the district court had known this.
When Haley was sentenced in 2007, the law in the Eighth Circuit was that all
escape offenses were crimes of violence, regardless of the circumstances. See United
States v. Stead, 162 Fed. Appx. 678, 680 (8th Cir. 2006)(“Because we have
determined categorically all escapes are crimes of violence, we need not look at the
underlying facts of the conviction.”); United States v. Nolan, 397 F.3d 665, 667 (8th
Cir. 2005). Even if Haley’s escape were considered “non-violent” under state law, it
would have still been considered a “crime of violence” under federal sentencing law.
Further, Haley’s prior convictions for bank robbery and murder were sufficient
to trigger the career offender designation under § 4B1.1. His contention that the court

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would have sentenced him differently had it believed he was on parole for a non-violent
offense is purely speculative.
Therefore, this claim is without merit.
Ground 4: Breach of Oral Agreement
Haley alleges that the government breached an oral agreement to not oppose
defense counsel’s request for a sentence at the low end of the guideline range. Haley
states that the oral agreement was an inducement for his guilty plea. The United
States denies that any such agreement was made.
Plea agreements are contractual and should be interpreted under general
contract principles. United States v. Sanchez, 508 F.3d 456, 460 (8th Cir. 2007). The
party asserting the breach of an oral argument has the burden of establishing the
breach. United States v. Leach, 562 F.3d 930, 935 (8th Cir. 2009). When an alleged
oral agreement is made prior to, or in conjunction with, a plea agreement, the promise
cannot serve as an inducement to a guilty plea when the terms of the plea agreement
supercede the claim. Id. (citing United States v. Norris, 20 Fed. Appx. 582, 583 (8th
Cir. 2001)). Finally, “an integration clause ‘standing alone,’ is ‘strong evidence that no
implied promises existed--after all, integration clauses establish that the written plea
bargain was adopted by the parties as a complete and exclusive statement of the
terms of the agreement.’” Id. at 936 (quoting United States v. Ahn, 231 F.3d 26, 36
(D.C. Cir. 2000)).
The plea agreement between Haley and the United States contains an
integration clause which states, “this document constitutes the entire agreement
between the defendant and the government, and no other promises or inducements

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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 or the
agreements, recommendations or stipulations contained herein.” United States v.
Gerald Haley, No. 4:06-CR-341, Plea Agreement, p. 10 [Doc. # 51]. This is strong
evidence that there were no inducements to Haley’s guilty plea other than those
contained in the written plea agreement. Haley signed the agreement, acknowledging that he understood its terms.

Haley has not met his burden of establishing the

existence of an oral agreement or its breach.
Ground 5:

Ineffective Assistance of Counsel

Haley’s final claim is that he was denied effective assistance of counsel because
his attorney did not raise any of the claims he now argues in this § 2255 motion.
To prevail on a claim of ineffective assistance of counsel, a movant must show
(1) that his attorney’s performance fell below an objective standard of reasonableness
and (2) that movant was prejudiced thereby. Strickland v. Washington, 466 U.S. 668,
687 (1984). The movant must show that his attorney’s errors were so serious that
they deprived him of his Sixth Amendment right to counsel and denied him the right
to a fair trial. Id. In the context of a guilty plea, the movant must demonstrate that
but for counsel’s errors, he would not have pleaded guilty, but instead would have
insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985).
Haley cannot establish that he suffered any prejudice as a result of his
attorney’s failure to assert the claims set forth in the instant motion. As discussed
above, none of Haley’s claims have merit, and his attorney’s failure to assert them
does not fall below any objective standard of reasonableness. An attorney does not

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render ineffective assistance by failing to pursue meritless claims. Rodriguez v. United
States, 17 F.3d 225, 226 (8th Cir. 1994).
III. Conclusion
For the foregoing reasons, the court concludes that motion and the files and
records of this case show that Haley is not entitled to relief under 28 U.S.C. § 2255
based on any of the claims he asserts in his motion. Therefore, the motion will be
denied without a hearing. See Engelen v. United States, 68 F.3d 238, 240 (8th Cir.
1995). Additionally, the court finds that Haley has not made a substantial showing of
the denial of a constitutional right. Therefore, the court will not issue a certificate of
appealability. See 28 U.S.C. § 2253.
An appropriate Order will accompany this Memorandum.

CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE

Dated this 29th day of August, 2012.

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