Robinson v. United States of America

Filing 20

MEMORANDUM AND ORDER re: 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) filed by Petitioner Ronald Leon Robinson ; An order denying the motion will be separately filed.. Signed by District Judge Carol E. Jackson on 6/18/13. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
RONALD LEON ROBINSON,

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) No. 4:11-CV-1371 (CEJ)
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Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

MEMORANDUM
This matter is before the court on the motion of Ronald Leon Robinson to
vacate, set aside, or correct sentence, pursuant to 28 U.S.C. § 2255. The United
States has filed a response in opposition.
I. Background
Robinson pled guilty to possessing a firearm as a previously convicted felon, in
violation of 18 U.S.C. § 922(g).

According to the stipulated facts in the plea

agreement, Robinson fired two gunshots from inside his mobile home after a police
officer knocked on the door and identified himself as an officer. At sentencing, the
court found that Robinson assaulted a person in the course of the offense, knowing or
having reasonable cause to believe that the person was a law enforcement officer.
Thus, the court applied a six-level increase to Robinson’s base offense level pursuant
to USSG § 3A1.2(c)(1)(2008).1

Robinson was sentenced to 120 months’

imprisonment, which was both the guideline range and the statutory maximum.

According to the guideline, the six-level increase applied “[i]f, in a manner creating
a substantial risk of serious bodily injury, the defendant . . . (1) knowing or having reasonable
cause to believe that the person was a law enforcement officer, assaulted such officer during
the course of the offense . . .” USSG § 3A1.2(c)(1).
1

On appeal, Robinson challenged the application of § 3A1.2(c)(1), arguing that
there was no evidence to support the court’s finding that he knew or had reasonable
cause to believe that the person knocking on his door was a police officer. The court
of appeals agreed and remanded the case to this court. United States v. Robinson,
608 F.3d 379, 381-82 (8th Cir. 2010). At the second sentencing hearing, the court
determined that the evidence presented by the government was not sufficient to
support the six-level increase under § 3A1.2(c)(1). Thus, the guideline range for
imprisonment was determined to be 77-96 months, based on a total offense level of
22 and a criminal history category of V. Robinson was sentenced to an 84-month term
of imprisonment. Robinson again appealed the sentence, but later dismissed his
appeal. United States v. Ronald Leon Robinson, No. 4:08-CR-457 (E.D.Mo.)[Doc. #
104].
II. Discussion
Robinson asserts five grounds for relief in his motion. For the reasons discussed
below, the court concludes that the grounds asserted are either procedurally barred
or lack merit.
A. Ground One
Robinson’s first ground for relief is that he was denied effective assistance of
counsel based on his attorney’s alleged failure to object to the application of USSG §
2A2.1(a)(1).
To prevail on a claim of ineffective assistance of counsel, a movant must show
that his attorney’s performance fell below an objective standard of reasonableness and
that he was prejudiced thereby. Strickland v. Washington, 466 U.S. 668, 687 (1984).
With respect to the first Strickland prong, there exists a strong presumption that
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counsel’s conduct falls within the wide range of professionally reasonable assistance.
Id. at 689. In order to show prejudice in the context of a guilty plea, the movant must
show that there is a reasonable probability that, but for counsel’s errors, he would
have not pleaded guilty, but instead would have proceeded to trial. Hill v. Lockhart,
474 U.S. 52, 59 (1985); United States v. Davis, 583 F.3d 1081, 1091 (8th Cir.
2009);United States v. Nesgoda, 559 F.3d 867, 870 (8th Cir. 2009). The failure to
show prejudice is dispositive, and a court need not address the reasonableness of
counsel’s performance in the absence of prejudice. United States v. Apfel, 97 F.3d
1074, 1076 (8th Cir. 1996).
The record shows that defense counsel did object to the application of USSG §
2A2.1(a)(1) prior to the first sentencing. United States v. Ronald Leon Robinson, No.
4:08-CR-457 (E.D.Mo.)[Doc. # 37]. It was unnecessary for defense counsel to object
again at the second sentencing hearing, because the court did not apply that provision
of the guidelines in determining Robinson’s offense level. Therefore, Robinson’s first
ground for relief is without merit.
B. Ground Two
Robinson’s second claim is that his attorney’s alleged failure to object to the
application of USSG § 2K2.1(b)(6) constituted ineffective assistance.2 In the plea
agreement, Robinson agreed to the application of § 2K2.1(b)(6) if the court
determined that he should be sentenced pursuant to § 2K2.1(a).

Additionally,

Robinson recommended that the court determine his base offense level to be “14, 20,

In relevant part § 2K2.1(b)(6) provides: “If the defendant used or possessed any
firearm . . . in connection with another felony offense . . . increase [the base offense level
determined under § 2K2.1(a)] by 4 levels.”
2

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or 24, depending on the nature of defendant’s criminal history , as found in Sentencing
Guidelines § 2K2.1(a).” At sentencing, the court determined that Robinson’s base
offense level was 20 and applied the four-level increase under § 2K2.1(b)(6).
Robinson and the government agreed that two levels should be deducted for
acceptance of responsibility, resulting in a total offense level of 22. Thus, Robinson
was sentenced pursuant to the guidelines he asked the court to apply in his plea
agreement. Under these circumstances, Robinson’s attorney could not have
successfully objected to the application of the guidelines.
Moreover, Robinson testified at the change of plea hearing that he had reviewed
the plea agreement, discussed it with his lawyer, and understood its contents. He has
not overcome the “strong presumption of verity” attendant to the statements he made
under oath in open court. Blackledge v. Allison, 431 U.S. 63, 74 (1977). See also
United States v. Harvey, 147 Fed. Appx. 627 (8th Cir. 2005).
C. Ground Three
Robinson’s third claim is that the court erred in applying USSG § 2A2.1(a)(1)
with the cross reference to USSG 2K2.1(c)(1) and 2X1.1. As previously discussed,
Robinson’s offense level was based on the application of the guidelines he requested--§ 2K2.1(a) and § 2K2.1(b)(6)---not on § 2A2.1(a)(1).
Even if there were a factual basis for Robinson’s claim, the claim is procedurally
barred and would still fail. Robinson could have raised this claim on direct appeal, but
he failed to do so. 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
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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.
Here, Robinson has neither established ineffective assistance of counsel nor shown
actual innocence.

Therefore, he cannot establish cause to excuse the procedural

default.
Ground Four
Robinson’s fourth claim is that the court violated Rule 32(i)(3) by failing to either
rule on disputed matters in the presentence report or determine that no ruling was
necessary because the disputed matters would not be considered in sentencing. This
is a claim that Robinson could have presented on direct appeal but did not. As such,
the claim is procedurally barred. Reid, 976 F.2d at 447. Because Robinson does not
show cause and prejudice or actual innocence to excuse the default, the court will not
consider the claim here. See McCleskey, 499 U.S. at 494.
Ground Five
Robinson’s final ground for relief is that the court did not adequately explain the
reason for the sentence it imposed. Robinson could have raised this issue on direct
appeal, but he did not do so. This claim is procedurally barred. The court will not
consider it, as Robinson has not made a showing of cause and prejudice or actual
innocence. Id.

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III. Conclusion
For the foregoing reasons, the court concludes that motion and the files and
records of this case show that Robinson is not entitled to relief under 28 U.S.C. § 2255
based on any of the claims he asserts in the motion to vacate. 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 Robinson 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 order denying the motion will be separately filed.

____________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 18th day of June, 2013.

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