Boice v. United States of America

Filing 18

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Movant=s Amended Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. ' 2255 (ECF No. 12) is DENIED, and Movant=s claims are DISMISSED with prejudice. An Order of Dismissal will ac company 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. Signed by District Judge Jean C. Hamilton on 2/17/14. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

JENNIFER ANN BOICE,
Movant,
vs.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 4:11CV701 JCH

MEMORANDUM AND ORDER
This matter is before the Court on Movant Jennifer Ann Boice=s Amended Motion under 28
U.S.C. ' 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, filed May
20, 2013. (ECF No. 12).
BACKGROUND
On May 13, 2010, a jury found Movant guilty of one count of conspiracy to possess
pseudoephedrine with the intent to manufacture methamphetamine, and one count of possession of
pseudoephedrine with the intent to manufacture methamphetamine. On August 16, 2010, Movant
was sentenced to 84 months imprisonment, followed by supervised release for two years. Movant
voluntarily dismissed the direct appeal of her conviction and sentence. In the instant ' 2255 Motion,
Movant alleges the following four grounds for relief:
(1)

That Movant received ineffective assistance of counsel, in that trial counsel
failed to present any evidence at trial;

(2)

That Movant received ineffective assistance of counsel, in that trial counsel
improperly advised Movant to proceed to trial, rather than plead guilty;

(3)

That Movant received ineffective assistance of counsel, in that trial counsel
failed to file a pretrial motion seeking to suppress the pseudoephedrine logs;
and

(4)

That Movant received ineffective assistance of counsel, in that trial counsel
failed to file a pretrial motion seeking to suppress evidence described in the
police reports.

(Amended § 2255 Motion, PP. 4, 13-15).
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 Athe
sentence was imposed in violation of the Constitution or laws 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 based on
a federal statute or rule, rather than on a specific constitutional guarantee, can be raised Aon 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).1
The Court must hold an evidentiary hearing to consider claims in a ' 2255 motion A>[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 A>when the facts alleged, if true, would entitle [her] 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 A>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).
STANDARD FOR INEFFECTIVE ASSISTANCE OF COUNSEL

1

A[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)).

In order to prevail on a claim of ineffective assistance of counsel, Movant must show that her
attorney=s performance was Adeficient,@ and that the deficient performance was Aprejudicial.@
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Counsel
is Astrongly 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, Ain 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, she is not entitled to
relief unless she can prove sufficient prejudice. Id. at 691. To do so, Movant must prove that Athere
is a reasonable probability that, but for counsel=s unprofessional errors, the result of the proceeding
would have been different.@ Id. at 694. AA reasonable probability is a probability sufficient to
undermine confidence in the outcome.@ Id.
DISCUSSION
A.

Ground 1

In Ground 1 of her ' 2255 Motion Movant maintains she received ineffective assistance of
counsel, in that trial counsel failed to present any evidence at trial. Upon consideration the Court
finds Movant‟s attorney‟s trial performance was not deficient in this regard, for several reasons.
First, the Court notes that although trial counsel presented no witnesses, he engaged in crossexamination of each of the Government‟s witnesses, including extensive cross-examination of both
its main law enforcement witness and its expert witness. (See Trial Transcript, Cause No.
4:09CR804 JCH, ECF No. 149, PP. 101-102, 129-158, 162-164, 172-173, 178-180, 186-189, 196198, 204-206; ECF No. 150, PP. 34-69, 77-78). Counsel further made a detailed oral motion for a
judgment of acquittal at the close of the Government‟s case. (See Id., ECF No. 150, PP. 83-85).

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Finally, counsel gave a thorough closing argument, detailing the elements of the crimes charged and
explaining why the Government‟s evidence was insufficient to establish such elements. (See Id.,
ECF No. 150, PP. 108-117). Under these circumstances, the Court does not find counsel‟s
performance fell “outside the wide range of professionally competent assistance@ sanctioned by
Strickland, and so Ground 1 of Movant‟s § 2255 Motion must be denied.
B.

Ground 2

In Ground 2 of her § 2255 Motion Movant maintains she received ineffective assistance of
counsel, in that trial counsel improperly advised Movant to proceed to trial, rather than plead guilty.
Upon consideration, the Court finds that with this claim Movant fails to demonstrate the requisite
prejudice, as she provides no indication that but for counsel=s allegedly unprofessional error the
result of her proceeding would have been different. See Strickland, 466 U.S. at 694. To the
contrary, Movant has consistently maintained her innocence throughout this matter. (See, e.g., Letter
from Movant to Court, Cause No. 4:09CR804 JCH, ECF No. 157 (“When I was indicted in 2009, I
took my case to trial because I was innocent.”); Boice Affidavit, ECF No. 12-1, P. 5 (“I never
participated in any sale of methamphetamines, or any „Sudafed‟, nor did I know or participate in any
manufacturing of methamphetamines.”)). Under these circumstances, there exists no reasonable
probability that Movant would have entered a plea of guilty had she received proper advice from her
attorney, and so Ground 2 must be denied.
C.

Ground 3

In Ground 3 of her ' 2255 Motion Movant alleges she received ineffective assistance of
counsel, in that trial counsel failed to file a pretrial motion seeking to suppress the pseudoephedrine
logs. Upon consideration the Court finds that with this claim, Movant fails to establish either prong
of the Strickland test. With respect to deficient performance, the Court notes that Movant initially

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filed a written waiver of pretrial motions on March 18, 2010, indicating there were no issues she
wished to raise by way of pretrial motion. (See Cause No. 4:09CR804 JCH, ECF No. 46). The
Magistrate Judge then conducted a hearing on Movant‟s purported waiver, during which Movant
executed a Memorandum for Court confirming that after discussing the discovery received from the
Government with counsel, she agreed it was in her best interest to waive her right to file pretrial
motions. (See Id., ECF No. 51). Under these circumstances, the Court cannot find Movant‟s
counsel‟s performance in advising/allowing her to waive her pretrial motions was constitutionally
deficient.
With respect to prejudice, the Court notes that subsequent to the above proceedings,
Movant‟s counsel did file a motion to suppress the pharmaceutical records regarding the alleged
purchases of pseudoephedrine. (See Cause No. 4:09CR804 JCH, ECF No. 55). The Magistrate
Judge issued a Report and Recommendation recommending first that Movant‟s motion to suppress
be denied as untimely filed, or alternatively, that it be denied on the merits. (See Id., ECF No. 66).
This Court allowed the late filing, but adopted the Magistrate Judge‟s finding that the motion should
be denied on the merits. (See Id., ECF No. 84). Movant‟s attorney thus pursued the motion at issue
to resolution, and so Movant fails to demonstrate prejudice from his allegedly deficient performance.
Ground 3 is denied.
D.

Ground 4

In Ground 4 of her ' 2255 Motion Movant alleges she received ineffective assistance of
counsel, in that trial counsel failed to file a pretrial motion seeking to suppress evidence described in
the police reports. Specifically, Movant complains that because the jury received undisputed
evidence she resided in a home with her co-defendants during the time period at issue, they

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reasonably could infer she possessed knowledge of the extent of methamphetamine sales taking place
therein.
Upon consideration the Court again finds that with this claim, Movant fails to establish either
Strickland prong. With respect to deficient performance, as noted above Movant‟s trial counsel
engaged in cross-examination of each of the Government‟s witnesses, presented a detailed oral
motion for a judgment of acquittal at the close of the Government‟s case, and gave an extensive
closing argument detailing the elements of the crimes charged and explaining why the Government‟s
evidence was insufficient to establish such elements. This Court witnessed counsel‟s performance,
and does not find it fell “outside the wide range of professionally competent assistance@ sanctioned
by Strickland.
Even assuming counsel‟s performance in failing to file the motion was constitutionally
deficient, the Court finds Movant fails to establish “a reasonable probability that, but for counsel=s
unprofessional error[], the result of the proceeding would have been different.@ See Strickland, 466
U.S. at 694. Specifically, the Court notes that through his cross-examination trial counsel attempted
to rebut the evidence contained in the police reports, by establishing that no witnesses, including the
other defendants in the case, implicated Movant in any way during their police interviews. (See, e.g.,
Cause No. 4:09CR804 JCH, ECF No. 149, PP. 101-102, 132-136, 139-141). Trial counsel then
emphasized the elicited favorable testimony during his closing argument. (See Id., ECF No. 150, PP.
110-113, 115). Despite these efforts, the jury nevertheless found Movant guilty of both charges, and
the Court finds Movant‟s proffered evidence here does nothing to undermine confidence in this
outcome.2 Ground 4 is denied.
CONCLUSION

2 As further support for its ruling, the Court notes Movant provides no legal basis for concluding a motion to

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Accordingly,
IT IS HEREBY ORDERED that Movant=s Amended Motion to Vacate, Set Aside, or
Correct Sentence pursuant to 28 U.S.C. ' 2255 (ECF No. 12) 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 17th Day of February, 2014.

/s/Jean C. Hamilton
UNITED STATES DISTRICT JUDGE

suppress would have been granted, had it been filed.

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