Rey v. United States of America

Filing 49

OPINION, MEMORANDUM AND ORDER re: 1 ORDERED that the Motion to Vacate, Set aside or Correct Sentence, [Doc. 1], and the supplements thereto, are 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 3/25/14. (CEL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ROBERT DANIEL REY,
Movant,
vs.
UNITED STATES OF AMERICA,
Respondent.

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No. 4:10CV2382 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], and Movant’s Supplementals.
Pursuant to this Court’s Order, the government has responded to the motion to
vacate. On March 20, 2014, the Court conducted a hearing with respect to
Movant’s claim that he asked counsel to file a notice of appeal and that counsel
did not do so. For the reasons set forth below, the Motion is denied.
Movant’s Claims
Movant makes the following claims in his Motion:
Ground One: Prosecutor failed to provide exculpatory evidence and suborned
perjury, thereby denying Movant his due process rights;
Ground Two: Movant was subjected to false arrest, false imprisonment and
unreasonable searches and seizures;

Ground Three: Ineffective assistance of Counsel.
Ground Four: The proceeding was structurally defective due to Court’s denial of
Petitioner’s Sixth Amendment right to Self-Representation with Assistance of
Counsel;
Ground Five: Movant was coerced into accepting an involuntary plea due to
threats, duress, ineffective assistance of counsel and prosecutorial misconduct.
Ground Six: the Court proceeded without jurisdiction because the Charging
Statute was not Generally Applicable and had no Legal Force or Effect on the
General Public.
Ground Seven: the Court Proceeded to Adjudication without Jurisdiction by
Failing to Establish an Interstate Nexus to Petitioner’s Conduct.
Facts and Background
On December 13, 2007, Movant was indicted by a federal grand jury which
charged Movant with enticement of a minor to engage in sexual activity and
knowingly attempting to threaten a police officer with the Maryland Heights
Police Department by obtaining personal and private information about the Officer
and stating to another person that he wanted to slit the throat of the officer with the
intent to hinder, delay and prevent the communication to a special agent with the
Federal Bureau of Investigation of information relating to the commission of the
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offense in Count One. Movant plead guilty to Count I of the Indictment, pursuant
to a written plea agreement on July 15, 2009. The Government agreed to dismiss
Count II.
A presentence investigation report was prepared, as ordered by the Court.
The Court sentenced Movant to 120 months incarceration. Movant did not
appeal his conviction, judgment or sentence.
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
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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.
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Discussion
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
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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.
2006).
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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- Prosecutorial Misconduct
Movant argues that the prosecutor herein committed misconduct by failing
to produce exculpatory evidence and the subornation of perjury. The government
assures the Court that all evidence it had was produced to Movant. Movant has
produced no evidence that this is in any way untrue.
With respect to Movant’s claim that the government suborned perjury,
Detective Stough never informed Movant during the recorded conversations they
had that she was a 31 year old police officer, therefore, there can be no perjury
regarding this statement. Movant’s ground one is denied.
Grounds Two-False Arrest, False Imprisonment, Unreasonable Searches and
Seizures
Movant’s Plea Agreement bars this claim. Movant agreed to waive all

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rights to contest the conviction or sentence in any post-conviction proceeding,
including one pursuant to 28 U.S.C. § 2255. This ground is not based on
prosecutorial misconduct, nor ineffective assistance of counsel, and is therefore
waived.
Likewise, in admitting the facts supporting the conviction in his guilty plea,
Movant has foreclosed any claim of false arrest, false imprisonment and improper
search and seizure claims. United States v. Beck, 250 F.3d 1163, 1166 (8th Cir.
2001). Ground Two is denied.
Ground Three-Ineffective Assistance of Counsel
Movant argues that counsel was ineffective because he coerced him into
pleading guilty. This claim is without merit. The Plea Agreement and the hearing
on Movant’s plea establish that Movant was not coerced; he admitted the facts of
the matter and advised the Court that he was fully satisfied with his attorney.
Nothing in Movant’s after the fact claim of coercion overcomes the
contemporaneous admissions by Movant.
Movant claims counsel was ineffective for failing to obtain witnesses in his
favor, to investigate, and to request exculpatory evidence. Movant’s Plea
Agreement and sworn statements belie this claim. Movant stated that he was fully
satisfied with the representation received from counsel. He admitted to the Court
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that he was fully satisfied with counsel.
Movant argues counsel failed to prepare for trial. There was no trial,
therefore this argument is without merit.
Movant argues that counsel was ineffective in failing to file a notice of
appeal when he asked him to do so. At the hearing, the Court heard testimony
from Movant and his attorney. The Court heard an audio tape wherein Movant
called his attorney on October 5, 2009 and left a message that, among other things,
Movant was “going to need [him] to file an appeal.” Counsel did not return the
telephone call. Movant met with his attorney on October 9, 2009. Also on
October 9, 2009, counsel filed a “Waiver of Right to Appeal” wherein he informed
the Court that Defendant did not wish to file an appeal, in accordance with the
Court’s Local Rule 12.07(A). The Court observed the witnesses’ demeanor and
recollection of the events after sentencing. Considering the appeal waiver Movant
agreed to in the plea agreement, and the filing of the waiver on October 9, 2009,
which was subsequent to Movant’s telephone call, , Movant’s attempt to persuade
the Court that he asked his lawyer to file a notice of appeal is unpersuasive.
Movant argues that counsel failed to provide legal papers to Movant for
Post-Conviction Relief. This claim fails because it does not go to the issue of
representation of Movant during the underlying criminal conviction.
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Movant also argues counsel was ineffective for failing to obtain a
psychiatric examinations. Again, Movant’s representations to the Court through
his Plea Agreement and sworn statement that he was fully satisfied with counsel
foreclose these claims.
The claim that counsel was ineffective for failing to allow him to withdraw
his guilty plea is meritless. Movant claims that counsel refused to allow him to
speak at his “re-sentencing.” There was no re-sentencing in Movant’s criminal
case before this Court. Moreover, if Movant is claiming that counsel refused to
allow him to speak at his sentencing, the claim is incorrect. Movant was allowed
to speak at his sentencing.
Ground Four-Structurally Defective Proceedings
Movant waived all rights to contest his conviction or sentence in any postconviction proceeding, including a Section 2255 motion, except for prosecutorial
misconduct or ineffective assistance of counsel. This claim is therefore barred.
Ground Five-Involuntary Plea
Movant claims he was coerced into pleading guilty. Any claim Movant has
with respect to his state proceedings is irrelevant to this Motion.
Moreover, Movant’s claim is contradicted by his Plea Agreement and his
sworn statements during his plea. Movant admitted that no person had directly or
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indirectly threatened or coerced him into doing or refraining from doing anything
in connection with any aspect of his case, including pleading guilty. Movant’s
claim is without merit.
Ground Six-Lack of Jurisdiction
The Court agrees with the government that any claim Movant is making that
the law under which he was convicted does not apply to him is meritless. Federal
criminal law applies to anyone within the territorial jurisdiction of the United
States. United States v. Peterson, 2009 WL 3062013 (D. Minn. 2009).
Ground Seven-Lack of Interstate Nexus
This ground fails. Use of the internet, a facility of interstate commerce, to
commit the offense for which Movant plead guilty establishes a sufficient nexus to
interstate commere to confer jurisdiction on the Court. United States v. Helder,
452 F.3d 751 (8th Cir. 2006). This basis for relief is denied.
Conclusion
Based upon the foregoing analysis, Movant’s claims 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. §
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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.
Accordingly,
IT IS HEREBY ORDERED that the Motion to Vacate, Set aside or
Correct Sentence, [Doc. 1], and the supplements thereto, are 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 25th day of March, 2014.

_______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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