Lockett v. United States of America

Filing 35

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Corey Allen Lockett's motion under 28 U.S.C. § 2255 is DENIED. IT IS FURTHER ORDERED that Lockett's motion for an evidentiary hearing is DENIED. IT IS FURTHER ORDERED that this court will not issue a certificate of appealability, as Lockett has not made a substantial showing of the denial of a federal constitutional right.. Signed by District Judge Rodney W. Sippel on 10/21/13. (LGK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
COREY ALLEN LOCKETT,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 4:12 CV 31 RWS

MEMORANDUM AND ORDER
Petitioner Corey Allen Lockett moves to vacate his sentence pursuant to 28 U.S.C. §
2255. Lockett alleges that his Sixth Amendment right to effective assistance of counsel was
violated and that his plea agreement was induced by evidence obtained through an
unconstitutional search and seizure. For the reasons set forth below, both allegations lack merit,
and I will deny Lockett‘s motion.
I.

Background
On July 15, 2010, Corey Allen Lockett (―Lockett‖) was indicted on a charge of interstate

transportation in aid of the racketeering enterprise of prostitution in violation of 18 U.S.C. §
1952 (a)(3). The U.S. Magistrate Judge Noce set an evidentiary hearing for August 19, 2010.
On July 23, Lockett, through his counsel, an Assistant Federal Public Defender, filed a motion
requesting a time extension for pretrial motions, which was granted. Lockett filed a waiver of
his pretrial motions on August 6, 2010. Three days later, however, on August 9, Lockett
withdrew his previous waiver and filed a motion to suppress evidence. Later, on August 11,
2010, Lockett withdrew his motion to suppress evidence and once again waived his pretrial
motions.

The following facts are established by Locketts‘ plea agreement entered in the underlying
criminal case:
On June 26, 2010, at 5:00 a.m., a Missouri State Highway Patrol officer
observed the defendant Corey Allen Lockett operating a vehicle on Interstate 55
in Jefferson County, Missouri. The officer attempted to stop the defendant for a
traffic violation and he failed to stop. The defendant took off and led the trooper
on a high speed chase. The trooper lost the vehicle and the Arnold, Missouri
Police subsequently found the defendant, who failed to pull over again. During
the course of the second chase, the defendant struck an Arnold Police vehicle.
The defendant was subsequently arrested for traffic violations and
identified. Officers also observed two young females in his vehicle, identifies as
―Jane Doe One,‖ age 16 and ―Jane Doe Two,‖ age 15. Officers would testify that
they were suspicious about the circumstances of the travelling party. Officers
checked with the Springfield police and determined the parent of ―Jane Doe One
and Two‖ had filed a missing persons report and had not allowed the defendant to
take the girls. Officers searched the defendant‘s car and found prostitution related
advertisements, customer lists and scripts for prostitutes to reply to customers via
phone or texts. Agents also seized a Blackberry cellular telephone belonging to
Lockett and a digital camera, which were searched pursuant to federal search
warrants. Investigators have reviewed the cellular telephone‘s content of
numerous text messages, including at least two communications made while
Lockett was driving through the Eastern District of Missouri, that relate to the
commission of sex acts between ―Jane Doe One‖ and potential customers.
Investigators would also testify that ―Jane Doe One and Two‖ both
indicated that the defendant lived in their neighborhood in Springfield, Illinois
where they met. ―Jane Doe One‖ told FBI agents that the defendant had placed
her advertisements on Craigslist and that she had performed act of prostitution on
behalf of the defendant. Agents would testify that ―Jane Doe One‖ told them that
the defendant drove her to calls, rented the hotel rooms, took her pictures, posted
her pictures and paid for the advertisements. The defendant and ―Jane Doe One‖
shared the proceeds of the prostitution. Lockett now admits the same.
In addition, Lockett was interviewed by FBI agents and he made a postMiranda statement that he knew that the girls were under age and that ―Jane Doe
One‖ was 16. The defendant admitted that he was a massage therapist and a
pimp, and that he split the prostitution proceeds with ―Jane Doe One.‖ The
defendant told agents that he was in the process of driving ―Jane Doe One and
Two‖ to Mississippi, through Memphis, and that he was not going to do it for
free, and that ―Jane Doe One‖ would have to earn some money to pay her way
down.
Lockett also admits that the sex trafficking or prostitution described in this
stipulation of facts was in or affecting interstate commerce.
Case No. 4:10CR386 RWS [Doc. # 33, pp. 9-10].

On January 5, 2012, Lockett filed his § 2255 motion. Pursuant to this motion, Lockett
alleges that: (1) his right to effective assistance of counsel was violated when his attorney waived
his pretrial motions and failed to suppress evidence and (2) that his plea agreement was induced
by evidence uncovered by an unconstitutional search and seizure.
II.

Discussion
A. Timeliness
There is an initial question of whether Lockett‘s motion was timely filed. To be timely, a

§ 2255 motion must be filed within one year of the judgment becoming final. 28 U.S.C. §
2255(f)(1). Lockett‘s sentencing hearing took place on November 23, 2010, where he was
informed of his right to file notice of an appeal within 14 days. Fed. R.App. P. 4(b)(1). Lockett
did not file an appeal, and his conviction became final on December 7, 2010. Thus, Lockett had
until December 7, 2011, to file a § 2255 motion.
Lockett filed his § 2255 motion on January 5, 2012, after the one-year period had lapsed.
Lockett argues, however, that his motion is saved by virtue of either the ―prison mailbox rule‖ or
equitable tolling. See Houston v. Lack, 487 U.S. 266, 266-267 (1988) (explaining the reasoning
behind the prison mailbox rule as it applies to pro se litigants). To gain the benefit of the
prisoner mailbox rule, Lockett must have deposited his § 2255 motion with prison authorities
prior to the ―pertinent due [date],‖ in this case December 7, 2011. Grady v. United States, 269
F.3d 913, 918 (8th Cir. 2001). In order to be entitled to equitable tolling, Lockett must show that
he diligently pursued his rights and that extraordinary circumstance prevented timely filing. See
Holland v. Florida, 130 S. Ct. 2549, 2562 (2010).
Lockett claims that he first delivered his petition to the prison mailroom attendant on
November 23, 2011, and he attempts to show that he diligently pursued his rights but that his

mail could not be processed until December 21, 2011, due to unavoidable problems with the
prison‘s mailing label printer. Although Lockett fails to explain why he failed to diligently
pursue his rights before November 23, 2011—and I am not satisfied as to why the temporary
unavailability of the label printer delayed Lockett‘s mail from being processed until December
21, 2011—the record is sufficiently muddled to prevent me from reaching the decision that
Lockett‘s petition is time-barred. However, assuming Lockett‘s petition was timely filed, it fails
on the merits for the reasons set out below.
B. Ineffective Assistance of Counsel
Lockett next claims that his Sixth Amendment right to effective counsel was violated.
The Sixth Amendment guarantees a criminal defendant the right to effective assistance of
counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). To succeed on a claim of
ineffective assistance of counsel, Lockett must show that: (1) ―counsel made errors so serious
that counsel was not functioning as the ‗counsel‘ guaranteed the defendant by the Sixth
Amendment‖ and (2) that this deficient representation ―prejudiced the defense.‖ Id. at 687.
When evaluating counsel‘s performance under the first prong, the court ―must indulge in
a strong presumption that counsel‘s conduct falls within the wide range of reasonable
professional assistance.‖ Id. at 689. Lockett must show that ―counsel‘s representation fell below
an objective standard of reasonableness.‖ Id. at 688.
To prove the second prong, that the deficient representation caused prejudice, Lockett
must show that there is a reasonable probability that, but for counsel‘s unprofessional errors, the
result of the proceeding would have been different. Id. at 694. In this context, Lockett must
show 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).
Lockett argues that his attorney waived his pretrial motions without first consulting him.
The Assistant Federal Public Defender‘s sworn affidavit directly contradicts this claim.
Assistant Federal Public Defender explains that on August 4, 2010, she met with Lockett to
discuss the issues he could raise by way of pretrial motions, including the lawfulness of his
arrest, possible Fourth Amendment claims based on the searches of his car and cell phone, and
the circumstances under which he made statements to law enforcement agents. After initially
waving his right to pretrial motions, Lockett reversed course on August 9, 2010, and advised his
attorney to withdraw the waiver and prepare motions to suppress evidence. The motions were
filed that same day.
On August 11, 2010, Lockett met with his attorney to discuss a plea agreement that
included a recommendation for a sentence of 76 months if Lockett pleaded guilty to two lesser
charges. His attorney explained that the then-existing charge in the indictment carried a
mandatory minimum sentence of 120 months if Lockett was convicted. The plea agreement was
contingent on Lockett withdrawing his pretrial motions and waiving his right to a hearing on his
motions. Following this conversation, Lockett agreed to withdraw his motions and accept the
plea agreement.
On August 12, 2010, Lockett‘s attorney explained the strategy and procedural
background of the case to U.S. Magistrate Judge Noce, who then held the following colloquy
with Lockett, under oath, at his waiver of motions hearing:
THE COURT: You have discussed this matter with Ms. Liggett as she has
described; is that true?

MR. LOCKETT: Yes, sir.
THE COURT: All right. And are you in agreement with what she has said?
MR. LOCKETT: Yes, sir.
THE COURT: All right. You know that you do have the right to file pretrial
motions in this case, and in fact some have been filed. They are documents that
you and your attorney would discuss. And assuming there‘s something to bring to
the Court‘s attention, those documents could call into question some or all of the
Government‘s case against you. The Court could hold a hearing and then would
make a decision one way or the other way on such motions. You understand that
you have that right?
MR. LOCKETT: Yes, sir
THE COURT: All right. Consistent with what Ms. Liggett said, is it your
decision to give up your right to go forward on any motions that have been filed,
and to give up your right to file any more pretrial motions in this case and instead
to go before Judge Sippel without having had pretrial motions heard before
appearing before him?
MR. LOCKETT: Yes, sir
THE COURT: All right. And you know that making that choice at this time, you
won‘t be able to change your mind and file pretrial motions in this case in the
future; do you understand that?
MR. LOCKETT: Yes.

THE COURT: All right. Now, Ms. Liggett has described that you‘ve gone back
and forth on this. And then are you confident in your decision now that you‘ve
just stated to me.
MR. LOCKETT: I am.
THE COURT: All right. And is anybody forcing you to do this?
MR. LOCKETT: No.
Case No. 4:10CR386 RWS [Doc. # 49, pp. 3-4].
The above representations made by Lockett in open court contradict his claim of ineffective
counsel. The record is devoid of evidence showing that Lockett‘s attorney fell below an
objective standard of reasonableness and that his defense was prejudiced as a result. The record
is, however, filled with sworn statements from Lockett and his attorney, under oath, affirming
that Lockett understood that the decision to waive his pretrial motions and move forward with
the plea agreement was his alone. The record further establishes that Lockett‘s attorney provided
him effective counsel regarding the plea agreement, and that Lockett‘s guilty plea was knowing,
voluntary, and intelligent. As a result, Lockett‘s claim that he received ineffective assistance of
counsel is without merit.
C. Unconstitutional Search and Seizure
Lockett argues that his plea agreement was induced by evidence obtained through an
unconstitutional search and seizure. Yet Lockett gave up his right to make this claim by
pleading guilty:
A guilty plea represents a break in the chain of events which has preceded it in the
criminal process. When a criminal defendant has solemnly admitted in open court
that he is in fact guilty of the offense with which he is charged, he may not

thereafter raise independent claims relating to the deprivation of constitutional
rights that occurred prior to the entry of the guilty plea.
Tollett v. Henderson, 411 U.S. 258, 267 (1973).
Lockett waived his right to appeal or file any post-conviction motions other than claims
of ineffective assistance of counsel or prosecutorial misconduct. Although Lockett attempts to
couch it as a claim of prosecutorial misconduct, the argument that he was subject to an
unconstitutional search and seizure does not fall within an exception to his waiver. See Fischer
v. United States, No. 4:09–cv–1783 CAS, 2010 WL 3719934, at *8 (E.D.Mo. Sept. 13, 2010)
(finding that a claim of unconstitutional search and seizure did not fall within exception for
prosecutorial misconduct); Johnson v. United States, No. 4:10–CV–01531–CDP, 2011 WL
1559764, at *6 (E.D.Mo. April 25, 2011).
For this waiver to be valid, Lockett must have made it knowingly and voluntarily.
DeRoo v. United States, 223 F.3d 919, 923 (8th Cir.2000). This requirement applies individually
to each term of the plea and waiver. United States v. Andis, 333 F.3d 886, 890 (8th Cir.2003).
With regard to the waiver, I questioned Lockett specifically about the appellate rights he was
waiving at his plea colloquy.
THE COURT: If I sentence you consistent with the plea agreement, you‘ve
agreed not to file any other motions or any other lawsuits challenging how your
case has been handled except for a claim you may have for misconduct by the
prosecutor or ineffective assistance by your lawyer?
MR. LOCKETT: Yes, sir.
Case No. 4:10CR386 RWS [Doc. #47, pp. 16-17].

Lockett can overcome the waiver if he can show that enforcing the waiver would lead to
a miscarriage of justice. See Andis, 333 F.3d at 891. ―[T]his exception is a narrow one and will
not be allowed to swallow the general rule that waivers of appellate rights are valid.‖ Id.; see
also United States v. Sisco, 576 F.3d 791, 796 (8th Cir.2009) (noting that the miscarriage of
justice exception arises ―in only limited contexts‖). Lockett‘s petition fails to show that
enforcement of his waiver of post-conviction rights would constitute a miscarriage of justice.
Thus, Lockett‘s claim of unconstitutional search and seizure falls within the scope of his
waiver. The waiver was entered into knowingly and voluntarily, and Lockett has not shown that
enforcing it would lead to a miscarriage of justice. By pleading guilty, Lockett has given up his
right to challenge the alleged unconstitutional search and seizure that occurred before his plea.
III. Request for Evidentiary Hearing
A petitioner is entitled to an evidentiary hearing on a § 2255 motion unless the motion,
rules, and record conclusively show that the petitioner is not entitled to relief. Anjulo-Lopez v.
United States, 541 F.3d 814, 817 (8th Cir.2008). Because the record conclusively establishes
that Lockett is not entitled to relief, I need not hold an evidentiary hearing.
IV. Certificate of Appealability
To grant a certificate of appealability, a court must find a substantial showing of a denial
of a constitutional right. See Cox v. Norris, 133 F.3d 565, 569 (8th Cir.1997) (holding that a
substantial showing requires that ―issues are debatable among reasonable jurists, a court could
resolve the issues differently, or the issues deserve further proceedings‖). Because Lockett has
not made such a showing, I will not issue a certificate of appealability.
Accordingly,

IT IS HEREBY ORDERED that Corey Allen Lockett‘s motion under 28 U.S.C. § 2255
is DENIED.
IT IS FURTHER ORDERED that Lockett‘s motion for an evidentiary hearing is
DENIED.
IT IS FURTHER ORDERED that this court will not issue a certificate of appealability,
as Lockett has not made a substantial showing of the denial of a federal constitutional right.

RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE
Dated this 21st day of October, 2013.