McMahan v. United States of America
OPINION, MEMORANDUM AND ORDER: HEREBY ORDERED that the Motion to Vacate, Set aside or Correct Sentence, [Doc. 1 ], is DENIED. FURTHER ORDERED that this Court will not issue a Certificate of Appealability as Movant has not made a substantial showing of the denial of a federal constitutional right. A separate judgment is entered this same date. Signed by District Judge Henry E. Autrey on 12/11/2013. (CLK)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
UNITED STATES OF AMERICA,
No. 4:10CV944 HEA
OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Movant’s Motion under 28 U.S.C. § 2255
by a Person in Federal Custody, [Doc. No. 1]. Pursuant to this Court’s Order, the
government has responded to the motion to vacate. For the reasons set forth
below, the Motion is denied without a hearing.
Movant makes the following claims in his Amended Motion:
Ground One: Ineffective assistance of counsel due to a willful disobedience to
Ground Two: Ineffective assistance of counsel (counsel failed to issue
“truthful” and “competent” plea, and pre-plea advice.
Ground Three: Ineffective assistance of counsel for failure to interview or
contact any witnesses, make objection to enhancements and lied about relevant
Ground Four: Ineffective counsel caused the Court to abuse its discretion in
denying [Movant’s] motion for substitute counsel. Court error.
Facts and Background
On June 26, 2008, Movant was indicted by a federal grand jury which
charged Movant with conspiracy to manufacture, distribute and possession with
intent to distribute methamphetamine, possession of pseudoephedrine,
manufacturing methamphetamine, and using a place for the purpose of unlawfully
manufacturing methamphetamine. Movant plead guilty, pursuant to a written plea
agreement on October 14, 2008. The government dismissed Counts one and
twelve of the indictment in exchange for Movant’s plea to counts two through
eleven. The probation office prepared a presentence investigation report (PSR).
The Court sentenced Movant to 200 months incarceration and four years
supervised release on January 9, 2009. Movant filed his notice of appeal on
January 26, 2009. On April 26, 2009, the Court of Appeals for the Eighth Circuit
granted the government’s motion to dismiss the appeal based on Movant’s appeal
waiver contained in the Plea Agreement.
Standards for Relief Under 28 U.S.C. 2255
Pursuant to 28 U.S.C. § 2255, a federal prisoner may seek relief from a
sentence imposed against him on the ground that “the sentence was imposed in
violation of the Constitution or law 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.” 28
U.S.C. § 2255. Claims brought under § 2255 may also be limited by procedural
default. A Movant “cannot raise a nonconstitutional or nonjurisdictional issue in a
§ 2255 motion if the issue could have been raised on direct appeal but was not.”
Anderson v. United States, 25 F.3d 704, 706 (8th Cir. 1994) (citing Belford v.
United States, 975 F.2d 310, 313 (7th Cir. 1992)). Furthermore, even
constitutional or jurisdictional claims not raised on direct appeal cannot be raised
collaterally in a § 2255 motion “unless a petitioner can demonstrate (1) cause for
the default and actual prejudice or (2) actual innocence.” United States v. Moss,
252 F.3d 993, 1001 (8th Cir. 2001) (citing Bousley v. United States, 523 U.S. 614,
622 (1998)). 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 (1994)(quoting Hill v.
United States, 368 U.S. 424, 477 n. 10 (1962)).
The Court must hold an evidentiary hearing to consider claims in a § 2255
motion “unless the motion, 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 [movant] 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. Since the Court finds that Movant’s remaining claims can be
conclusively determined based upon the parties’ filings and the records of the
case, no evidentiary hearing will be necessary.
Standard for Ineffective Assistance of Counsel
It is well-established that a petitioner’s ineffective assistance of counsel
claim is properly raised under 28 U.S.C. § 2255 rather than on direct appeal.
United States v. Davis, 452 F.3d 991, 994 (8th Cir.2006); United States v. Cordy,
560 F.3d 808, 817 (8th Cir. 2009). The burden of demonstrating ineffective
assistance of counsel is on a defendant. United States v. Cronic, 466 U.S. 648,
658 (1984); United States v. White, 341 F.3d 673, 678 (8th Cir.2003). To prevail
on an ineffective assistance of counsel claim, a convicted defendant must first
show counsel’s performance “fell below an objective standard of reasonableness.”
Strickland v. Washington, 466 U.S. 668, 687-88 (1984). The defendant must also
establish prejudice by showing “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different. Id., at 694.
Both parts of the Strickland test must be met in order for an ineffective
assistance of counsel claim to succeed. Anderson v. United States, 393 F.3d 749,
753 (8th Cir.), cert. denied, 546 U.S. 882 (2005). The first part of the test requires
a “showing that counsel made errors so serious that counsel was not functioning as
the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. Review of
counsel’s performance by the court is “highly deferential,” and the Court
presumes “counsel’s conduct falls within the wide range of reasonable
professional assistance.” Id. The court does not “second-guess” trial strategy or
rely on the benefit of hindsight, id., and the attorney’s conduct must fall below an
objective standard of reasonableness to be found ineffective, United States v.
Ledezma-Rodriguez, 423 F.3d 830, 836 (2005). If the underlying claim (i.e., the
alleged deficient performance) would have been rejected, counsel's performance is
not deficient. Carter v. Hopkins, 92 F.3d 666, 671 (8th Cir.1996). Courts seek to
“eliminate the distorting effects of hindsight” by examining counsel’s performance
from counsel’s perspective at the time of the alleged error. Id.
The second part of the Strickland test requires that the movant show that he
was prejudiced by counsel’s error, and “that ‘there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have
been different.’ ” Anderson, 393 F.3d at 753-54 (quoting Strickland, 466 U.S. at
694). “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694. When determining if
prejudice exists, the court “must consider the totality of the evidence before the
judge or jury.” Id. at 695; Williams v. U.S., 452 F.3d 1009, 1012-13 (8th Cir.
The first prong of the Strickland test, that of attorney competence, is applied
in the same manner to guilty pleas as it is to trial convictions. The prejudice
prong, however, is different in the context of guilty pleas. Instead of merely
showing that the result would be different, the defendant who has pled guilty must
establish that “there is a reasonable probability that, but for counsel’s errors, he
would not have pleaded guilty and would have insisted on going to trial.” Hill v.
Lockhart, 474 U.S. 52, 59 (1985); Matthews v. United States, 114 F.3d 114.
Grounds One and Two
Movant argues that counsel was Ineffective assistance due to a willful
disobedience to court order and that counsel failed provide “truthful” and
“competent” plea, and pre-plea advice.
Although Movant provides the Court with a declaration which includes his
accusations, the record before the Court establishes that at the time of the plea,
Movant did not notify the Court of any issues he had with his attorney. Movant
was given the opportunity during the plea and at sentencing, to advise the Court of
any misgivings, issues, concerns, or problems he was having with his attorney.
Movant’s post-sentencing declaration does not serve to defeat Movant’s sworn
testimony that counsel provided him with the effective representation. Movant’s
plea was well advised, it was not the result of “willful disobedience to a court
order” nor was it based on untruthful or incompetent advice. As the record clearly
establishes, Movant’s plea was a fully informed, voluntary agreement entered into
by Movant. Movant has failed to establish that counsel’s representation fell below
an objective standard of reasonableness.
Movant argues that counsel did not interview or contact any witnesses,
make objections to enhancement and lied about relevant case law. Counsel has
submitted her affidavit wherein counsel avers that Movant failed to provide her
with any names of witnesses he wished to be interviewed or contacted. Movant
provides no evidence to the contrary.
Additionally, Movant argues that counsel was ineffective for failing to
object to a criminal history calculation based upon a future change to United
States Sentencing Guideline 4A1.1(e). The additional two points were added
because Movant committed the offenses within two (2) years from his release from
prison on a prior criminal offense. The proposed amendment was not even in
effect or pending at the time of Movant’s sentencing on January 9, 2009. Counsel
can not be deemed to be ineffective for failing to pursue a meritless claim which
was not available at the time of Movant’s sentencing. Rodriguez v. United States,
17 F.3d 225, 226 (8th Cir. 1994).
The Court agrees with the government that ground four, while couched in
terms of “ineffective assistance of counsel,” in reality is an attempt to circumvent
the waiver of post conviction relief the plea agreement. Movant claims that the
Court erred and abused its discretion in not affording him substitute counsel. This
claim in no way raises an ineffective assistance of counsel claim and as such, this
caim was waived in Movant’s valid plea agreement.
Based upon the foregoing analysis, Movant’s claims of ineffective
assistance of counsel fail to afford him relief.
Certificate of Appealablity
The federal statute governing certificates of appealability provides that “[a]
certificate of appealability may issue . . . only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). A substantial showing of the denial of a constitutional right requires
that “issues are debatable among reasonable jurists, a court could resolve the
issues differently, or the issues deserve further proceedings.” Cox v. Norris, 133
F.3d 565, 569 (8th Cir. 1997). Based on the record, and the law as discussed
herein, the Court finds that Movant has not made a substantial showing of the
denial of a constitutional right.
IT IS HEREBY ORDERED that the Motion to Vacate, Set aside or
Correct Sentence, [Doc. 1], is DENIED.
IT IS FURTHER ORDERED that this Court will not issue a Certificate of
Appealability as Movant has not made a substantial showing of the denial of a
federal constitutional right.
A separate judgment is entered this same date.
Dated this 11th day of December, 2013.
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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