Henderson v. United States of America

Filing 19

MEMORANDUM OPINION - An order consistent with this memorandum opinion will be filed separately.. Signed by District Judge Carol E. Jackson on 2/6/15. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

LARRY LEE HENDERSON,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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) No. 4:11-CV-1798 (CEJ)
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MEMORANDUM

This matter is before the court on the motion of Larry Lee Henderson to vacate,
set aside, or correct sentence, pursuant to 28 U.S.C. § 2255. The United States has
filed responses in opposition, and the issues are fully briefed.
I. Background
Following a jury trial, Henderson was found guilty of uttering counterfeit
securities, in violation of 18 U.S.C. § 513. He was sentenced to a 63-month term of
imprisonment followed by a 24-month term of supervised release.
On December 31, 2009, Henderson appeared before the court for a final
supervised release revocation hearing. At the hearing, Henderson admitted that he
violated a condition of supervised release by leaving the judicial district without
permission. Also, the court took judicial notice of its own records which revealed that
Henderson had been indicted again for passing counterfeit checks and that he had
failed to pay any of the previously-ordered restitution or special assessment. The court
revoked Henderson’s term of supervised release and sentenced him to a term of 24

months’ imprisonment; no further term of supervised release was imposed.1 The
judgment was affirmed on appeal. United States v. Henderson, 381 Fed. Appx. 620
(8th Cir. 2010).
II. Discussion
In the motion to vacate, Henderson asserts three claims of ineffective assistance
of counsel. To prevail on an ineffective assistance claim, 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 counsel’s
conduct falls within the wide range of professionally reasonable assistance. Id. at 689.
In Strickland, the Court described the standard for determining an ineffective
assistance claim:
[A] court deciding an actual ineffectiveness claim must
judge the reasonableness of counsel’s challenged conduct
on the facts of the particular case, viewed as of the time of
counsel’s conduct. A convicted defendant making a claim of
ineffective assistance must identify the acts or omissions of
counsel that are alleged not to have been the result of
reasonable professional judgment. The court must then
determine whether, in light of all the circumstances, the
identified acts or omissions were outside the wide range of
professionally competent assistance.
in making that
determination, the court should keep in mind that counsel’s
function, as elaborated in prevailing professional norms, is
to make the adversarial testing process work in the
particular case. At the same time, the court should
recognize that counsel is strongly presumed to have
rendered adequate assistance and made all significant

1

The most serious grade of violation was Grade B (commission of a new felony) and
Henderson’s criminal history category was V. Thus, the guideline range for revocation was 1824 months. U.S.S.G. 7B1.4(a).
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decisions in the exercise of reasonable professional
judgment.
Strickland, 466 U.S. at 690.
To establish the “prejudice” prong, the movant must show “that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.

A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Id. at 694. 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).
A. Conflict of interest
While he was on supervised release, Henderson was again indicted for passing
counterfeit checks. United States v. Larry Lee Henderson, Case No. 4:09CR658 (CAS).
One of the victims named in the original indictment was Auffenberg Chevrolet, an
automobile dealership in St. Louis.2
Henderson was represented by attorney JoAnn Trog in the revocation
proceedings and on the new criminal charges.

Several months after the supervised

release revocation hearing but while the new indictment was still pending, Ms. Trog
learned that her law partner had once represented two members of the Auffenberg
family in connection with tax and real estate matters.

The time period of the

Auffenberg family representation overlapped with a portion of the time that the
indictment was pending. Ms. Trog had not participated in the representation of the

2

Auffenberg Chevrolet was not named in the subsequent superseding indictments filed
by the government.
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Auffenberg family and had had no dealings with them. Nevertheless, she disclosed the
matter to Henderson in a letter dated March 6, 2010, and informed him that she would
file a motion to withdraw if he wanted her to do so. Id., Doc. # 46-2. Three days
later, Ms. Trog filed a motion asking the court to hold a hearing to determine whether
a conflict of interest existed. Id., Doc. # 46. At the hearing, Ms. Trog made an oral
motion to withdraw that was granted by the court. Id., Doc. # 51.
In the motion to vacate, Henderson asserts that he was denied effective
assistance of counsel in the revocation proceedings because a conflict of interest arose
from Ms. Trog’s representation of one of his alleged victims. The Sixth Amendment
guarantees a defendant the right to counsel “free from conflicts of interest or divided
loyalties.” United States v. Acty, 77 F.3d 1054, 1056 (8th Cir. 1996). In United States
v. Young, 315 F.3d 911 (8th Cir.), cert. denied, 538 U.S. 1044 (2003), the court
wrote:
Where the alleged conflict of interest involves multiple or
serial representation, two different standards apply. If the
defendant raised the issue at trial, the defendant need only
prove an actual conflict of interest and reversal follows
automatically upon such a showing. . . Where the issue was
not raised at trial, the defendant must show an actual
conflict of interest that affected the adequacy of his or her
representation. . . On the other hand, where the alleged
conflict involves ethical issues other than multiple or serial
representation, this Circuit has held that Strickland is still
the appropriate standard.
315 F.3d at 915, fn. 5 (citations omitted).

See also Cuyler v. Sullivan, 446 U.S.

335,348, 350 (1980)(when court is not made aware of the conflict, the defendant must
show that defense counsel “actively represented conflicting interests” and that the
conflict “adversely affected his lawyer’s performance.”)

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Henderson did not raise the conflict of interest issue at the December 2009
revocation hearing, nor could he have done so because the purported conflict did not
become known to him or Ms. Trog until March 2010. If at the time of the revocation
hearing Ms. Trog was not aware of her partner’s representation of the Auffenberg
family, then she clearly could not have been conflicted about whether to protect their
interests or Henderson’s. Further, in revoking Henderson’s supervised release term,
the court considered the fact that a new indictment had been returned against him.
The details of the indictment and the identities of the alleged victims were immaterial
to the court’s decision. There was nothing Ms. Trog did or could have done to change
the fact that the new indictment established probable cause that Henderson had
committed a new crime while on supervised release. Likewise, Henderson’s nonpayment of the financial penalties was a matter of record which Ms. Trog could do
nothing to change.
The court finds that Henderson has not established that a conflict of interest
existed at the time of his revocation hearing. Also, even if such a conflict did exist,
Henderson has not established that it affected the representation he received at the
hearing or that he was in any way prejudiced.
B.

Failure to present indemnification certificate and failure to
object to Grade A violation

As discussed above, the revocation was based in part on evidence (i.e., the new
indictment) that Henderson had committed new felony offenses while on supervised
release. Pursuant to the sentencing guidelines, the violation charged in the revocation
petition was Grade B. U.S.S.G. § 7B1.1(a)(2). Henderson’s assertion that he was
accused of a Grade A violation is a misstatement of fact.
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Henderson also asserts that his attorney should have submitted a document
(indemnification certificate) to the court which would have established his “actual
innocence” with respect to the new crimes. Henderson’s guilt or innocence of the new
crimes was not an issue at the revocation hearing, and it was not the duty of defense
counsel to try to contradict the grand jury’s decision. Henderson cannot show that the
document, if offered, would have been given any consideration by the court. Further,
Henderson cannot establish that he was prejudiced by his attorney’s failure to offer
irrelevant evidence or make futile objections.
III. Conclusion
For the reasons discussed above, the court concludes that motions and the files
and records of this case conclusively show that Henderson is not entitled to relief under
28 U.S.C. § 2255 based on any of the claims he asserts. Therefore, the motion and
supplemental 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 Henderson 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 consistent with this memorandum opinion will be filed separately.

____________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 6th day of February, 2015.

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