McKanry v. United States of America

Filing 16

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that movant William E. McKanry's Motion to Vacate, Set Aside or Correct Sentence Under 28 U.S.C. § 2255 is DENIED. [Doc. 1 ] IT IS FURTHER ORDERED that the government's motion to dismiss is DENIED as moot. [Doc. 15 ] IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability as to any of the claims raised in movant's § 2255 motion. See Slack v. McDaniel, 529 U.S. 473, 484- 85 (2000); Miller-El v. Cockrell, 537 U.S. 322, 342 (2003). An appropriate judgment will accompany this memorandum and order. Signed by District Judge Charles A. Shaw on 2/4/15. (KXS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

WILLIAM E. MCKANRY,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

)
)
)
)
)
)
)
)
)

No. 4:12-CV-64 CAS

MEMORANDUM AND ORDER
This matter is before the Court on movant William E. McKanry’s Motion to Vacate, Set
Aside or Correct Sentence Under 28 U.S.C. § 2255. The government responded to the motion by
filing a motion to dismiss. Movant did not respond to the government’s motion and the time for
doing so has passed. For the following reasons, the Motion to Vacate, Set Aside or Correct Sentence
will be denied.
Background
On June 12, 2008, movant was charged by a twenty-count criminal indictment with
conspiracy, mail fraud, and wire fraud arising out of the sale of twelve real estate properties. On
July 16, 2009, movant was charged by a twenty-one-count superseding criminal indictment with the
original crimes and an additional count of making a false statement. See Case No. 4:08-CR-365
CAS; Docs. 1 and 76.
Initially movant was represented by Brian Witherspoon of the Federal Public Defender. On
April 7, 2009, private counsel Freeman R. Bosley, Jr. entered his appearance on behalf of movant.
Shortly thereafter, private counsel Daniel Brown entered his appearance on behalf of movant.
On October 5, 2009, defendant went to trial before a jury on Counts 1-21 of the superseding

indictment. After a five day trial, the jury returned a verdict of guilty as to Counts 1-2 and Counts
15-21, and not guilty as to Counts 3-14. The jury found defendant guilty of conspiracy (Count 1),
making a false statement to a postal inspector (Count 2), and mail and wire fraud with respect to
three of the twelve properties (Counts 15-21). On December 22, 2009, defendant was sentenced to
27 months imprisonment followed by a term of 2 years supervised release.
On January10, 2012, defendant filed the instant § 2255 motion to vacate, set aside, or correct
his sentence. In addition to these forms of relief, defendant states he seeks to “vacate [the]
judgment, or conduct [an] evidentiary hearing, or resentence.” (Mot. at 15). Movant asserts
ineffective assistance of counsel as his only ground for relief. Within this ground, movant asserts
seven separate failures of trial counsel:
(1)

counsel lacked experience in federal court;

(2)

counsel failed to adequately defend against the charge of lying to a U.S. Postal
Inspector;

(3)

counsel seemed hesitant or uncertain and had to be assisted by the Court;

(4)

counsel failed to ask many relevant questions regarding 100% loans;

(5)

counsel failed to obtain appropriate witnesses;

(6)

counsel’s questioning was ineffective and incomplete; and

(7)

counsel failed to give an adequate closing argument.

Within months of filing his motion to vacate, plaintiff completed his 27-month term of
imprisonment. (See Doc. 8). On March 7, 2013, the Court granted defendant’s request for early
discharge from supervision. (See Case No. 4:08-CR-365 CAS, Doc. 219).

-2-

Mootness Inquiry
As a threshold matter, the Court must determine whether it has jurisdiction to consider
McKanry’s case on the merits. McKanry has the duty to “show the subsistence of a case or
controversy in this court.” Hohn v. United States, 262 F.3d 811, 815 (8th Cir. 2001) (citing Lewis
v. Continental Bank Corp., 494 U.S. 472, 477-78 (1990)), vacated on other grounds, 537 U.S. 801
(2002). In other words, McKanry must show that his case is not moot despite his release from
confinement and supervised release. See id., 262 F.3d at 815-16.
As stated above, McKanry seeks to vacate the criminal judgment. His motion challenges not
just his sentence, but also his conviction. When a movant challenges his underlying conviction, the
completion of the sentence does not necessarily render the movant’s motion moot. See Lane v.
Williams, 455 U.S. 624, 631 (1982). Despite the title of the form motion to vacate, section § 2255
is available to attack convictions as well as sentences. Hohn, 262 F.3d at 816 n.3.
Because McKanry was still serving his term of supervised release when the parties briefed
his § 2255 motion, neither party addressed the issue of mootness. At that point in time, McKanry’s
motion was not moot. In the intervening months, however, the motion has been rendered moot by
McKanry’s early release from supervision. However, McKanry’s motion can survive the mootness
inquiry if he can show collateral consequences from his allegedly unlawful criminal conviction.
In Hohn v. United States, the Eighth Circuit explained:
Even when a litigant is unable to meet the requirements of the general mootness
inquiry, the litigant may invoke an exception to the mootness doctrine to gain
judicial review. There are four exceptions to the mootness doctrine, so that a court
will not dismiss a case as moot if: (1) secondary or “collateral” injuries survive after
resolution of the primary injury; (2) the issue is deemed a wrong capable of
repetition yet evading review; (3) the defendant voluntarily ceases an allegedly
illegal practice but is free to resume it at any time; or (4) it is a properly certified
class action suit.
-3-

Hohn, 262 F.3d at 817 (citations omitted). The Supreme Court has instructed that collateral
consequences are presumed to stem from a criminal conviction. Sibron v. New York, 392 U.S. 40,
57 (1968); Leonard v. Nix, 55 F.3d 370, 373 (8th Cir. 1995). Because the Court does not have the
benefit of briefing on this issue, the Court will presume without deciding that McKanry could invoke
the exception to the mootness doctrine that his collateral injuries survive after his release from
confinement and supervision. It is foreseeable to the Court that McKanry’s ability to engage in his
chosen occupation as a licensed real estate broker would be hampered by a criminal conviction for
conspiracy, making false statements, and mail and wire fraud. Thus, the Court will evaluate the
merits of McKanry’s § 2255 motion.
Legal Standard
Movant’s only ground for relief is ineffective assistance of counsel. A movant faces a
“heavy burden” to establish ineffective assistance of counsel in the context of § 2255. United States
v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996). To prevail on an ineffective assistance of counsel
claim, a movant must show both that (1) counsel’s performance was deficient, and (2) he was
prejudiced by the deficient performance. See McReynolds v. Kemna, 208 F.3d 721, 722 (8th Cir.
2000) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). A court may address the two
prongs in any order, and if the movant fails to make a sufficient showing of one prong, the court
need not address the other prong. Strickland, 466 U.S. at 697; Fields v. United States, 201 F.3d
1025, 1027 (8th Cir. 2000).
Under the deficient performance inquiry of Strickland, a court considers whether counsel’s
performance was reasonable “under prevailing professional norms” and “considering all the
circumstances.” Burkhalter v. United States, 203 F.3d 1096, 1098 (8th Cir. 2000) (quoting

-4-

Strickland, 466 U.S. at 688). It is presumed that counsel acted reasonably, and much deference is
granted to counsel’s performance. Id.; see Parkus v. Bowersox, 157 F.3d 1136, 1139 (8th Cir.
1998). Prejudice is shown if there is a “reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. “A
reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.
“A § 2255 motion ‘can be dismissed without a hearing if (1) the petitioner’s allegations,
accepted as true, would not entitle the petitioner to relief, or (2) the allegations cannot be accepted
as true because they are contradicted by the record, inherently incredible, or conclusions rather than
statements of fact.’” Sanders v. United States, 341 F.3d 720, 722 (8th Cir. 2003) (quoting Engelen
v. United States, 68 F.3d 238, 240 (8th Cir. 1995)).
Discussion
I.

Counsel’s Performance
A.

Lack of Experience (Claim Nos. 1 and 3)

Movant claims that his counsel, Freeman Bosley, Jr., provided ineffective assistance because
“he did not reveal to me that he had no previous experience in U.S. Courts” and because he
“sometimes seemed hesitant or uncertain and had to be assisted by the Court in some procedures
and questions.” (Mot. at 14, Nos. 1 and 3).
As stated above, a movant “faces a heavy burden” to establish ineffective assistance of
counsel pursuant to § 2255. DeRoo v. United States, 223 F.3d 919, 925 (8th Cir. 2000). The Court
will assume for purposes of movant’s motion that counsel did not have experience in federal court.
Without more, however, this is insufficient to prevail on an ineffective assistance of counsel claim.
Movant must show counsel’s performance was deficient. General and conclusory allegations are

-5-

insufficient to support a claim for ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52,
57-59 (1985); Estes v. United States, 883 F.2d 645, 647 (8th Cir. 1989) (conclusory allegation was
insufficient to rebut strong presumption of counsel’s competence). Movant has provided no specific
examples of how Mr. Bosley’s alleged inexperience was detrimental to movant’s criminal trial.
Merely being inexperienced in federal court does not show deficient performance. If it were
otherwise, an attorney’s first criminal trial in federal court would automatically trigger a successful
motion under § 2255.
For his next claim, movant states that counsel seemed hesitant or uncertain and had to be
assisted by the court in some procedures and questions. “He was coached by both the Court and the
prosecutor on where to stand and how to ask questions . . . .” (Mot. at 14, No. 3). Again, assuming
for purposes of this motion that movant’s observations are correct, as stated with respect to movant’s
first claim for relief, merely being inexperienced or “hesitant or uncertain” does not automatically
make counsel’s performance deficient. Certainly movant has pointed to no specific examples of
counsel’s hesitancy or uncertainty or any coaching by the Court. Movant also points to no prejudice
he suffered arising out of counsel’s seemingly hesitant or uncertain performance.
Movant’s argument that because of counsel’s lack of experience in federal court he received
ineffective assistance of counsel is general and conclusory and insufficient to support his claim.
Furthermore, movant has not alleged that but for counsel’s inexperience the results of his trial would
have been different. Movant’s claim numbers one and three will be denied.
B.

Failure to Defend Charge of Lying to Postal Inspector (Claim No. 2)

In his second claim for post-conviction relief, movant asserts his counsel was ineffective by
“tacitly agreeing (with prosecution) that defendant lied and tried to recant rather than forcefully

-6-

arguing for what actually occurred; namely, that defendant simply made a mistake which he then
tried to correct. Making a mistake is not lying—everyone makes mistakes!” (Mot. at 14, No. 2).
The Court cannot find counsel was ineffective for not “forcefully arguing” the defendant
made a mistake in his discussions with the postal inspector. Defendant took the stand in his own
defense and testified that he made a mistake when he first spoke to the postal inspector. During
direct examination by counsel, defendant stated that after this meeting with the postal inspector,
defendant attempted numerous times to contact the postal inspector to clarify this mistake. (Tr. at
IV-A-97, IV-B-14). Defendant produced telephone logs that he claims evidenced his intent to
clarify this mistake. Additionally, the jury instructions clearly instructed the jury that mistakes do
not evidence a fraudulent intent and that even giving an honest, albeit mistaken, opinion does not
evidence a fraudulent intent. (Jury Instr. Nos. 27-28).
The Court finds that the jury was adequately informed and instructed on defendant’s defense
of mistake as to Count 2, making a false statement to a postal inspector. It does not find counsel
ineffective for not more forcefully arguing this point.
C.

Counsel’s Failure to Ask Relevant Questions and Obtain Witnesses
(Claim Nos. 4 and 5)

In his fourth and fifth claims of ineffectiveness, movant argues that counsel was ineffective
for his failure to ask numerous questions and obtain appropriate witnesses who could clarify
practices involved in 100 percent mortgage loans.
The Court is mindful that pro se pleadings must be liberally construed, Haines v. Kerner, 404
U.S. 519 (1972); Stringer v. St. James R-1 School District, 446 F.3d 799, 802 (8th Cir. 2006), but
pro se pleadings “still must allege sufficient facts to support the claims advanced.” Movant’s
allegations are brief, conclusory, and do not cite to the record. Absent an “affirmative showing of
-7-

what the . . . evidence or testimony would have been, a habeas court cannot even begin to apply
Strickland’s standards because it is very difficult to assess whether counsel’s performance was
deficient, and nearly impossible to determine whether petitioner was prejudiced by any deficiencies
in counsel’s performance.” Anderson v. Collins, 18 F.3d 1208, 1221 (5th Cir. 1994) (quotations and
citations omitted); see also United States v. Goodman, 590 F.2d 705, 711 (8th Cir. 1979) (holding
that conclusory allegations unsupported by specific facts may be summarily dismissed). Movant
has not provided any examples of the types of questioning that would have helped clarify for the jury
the methods used for 100 percent loans. Nor has he named a single “appropriate witness” counsel
should have called to clarify these practices. For these reasons, claim numbers four and five may
be summarily dismissed.
Moreover, movant does not show how he was prejudiced by counsel’s alleged failure to
inquire into this line of questioning or call these witnesses. Movant was convicted of mail and wire
fraud with respect to three properties: (1) 1812 Wade Court; (2) 612 Forrester; and (3) 11717 Talbott
Court. For each of these properties the government provided cancelled cashier’s checks purchased
by movant and remitted to the purchaser of the properties, Linda Moses, which were used to fund
the down payments for the property. (Tr. IV-B at 22-23). It is unclear to the Court how additional
evidence regarding 100 percent loans would have changed the outcome of movant’s trial. Movant’s
ineffective assistance of counsel claim numbers 4 and 5 will be denied.
D.

Counsel’s Lack of Understanding of Real Estate Practices (Claim No. 6)

For his sixth claim of ineffectiveness, movant states that counsel’s “questioning of witnesses
was frequently ineffective and incomplete and betrayed a lack of understanding of real estate
practices.” (Mot. at 14, No. 6). This argument lacks any specificity as to how counsel’s alleged lack

-8-

of understanding of real estate practices resulted in a deficient performance. Movant has not
identified any specific line of questioning that was deficient because of counsel’s lack of knowledge
of real estate practices. Without more, the Court has nothing from which to find ineffective
assistance of counsel and this claim will be summarily dismissed. Goodman, 590 F.2d at 711.
E.

Counsel’s Closing Argument (Claim No. 7)

For his final claim of ineffectiveness, movant states that counsel “utterly failed to provide
the defendant with an effective and complete closing argument.” (Mot. at 14, No. 7). Specifically,
movant points to counsel not countering the “prosecution’s assertions that there were dual
contracts.” Id.
The Court finds that McKanry has failed to establish counsel was not acting as the “counsel”
guaranteed by the Sixth Amendment or that he was prejudiced by counsel’s closing argument.
Strickland, 466 U.S. at 687. McKanry specifically points to counsel’s failure to counter the
government’s assertion regarding dual contracts as being constitutionally ineffective. Movant
testified at trial, however, and counsel specifically asked movant on direct about the government’s
assertion that there were dual contracts. Movant testified he did not participate in dual contracts.
(Tr. IV-B at 20). Considering the totality of the evidence before the jury, the Court does not find
that counsel’s failure to counter the government’s arguments in closing regarding dual contracts rose
to the level of a constitutionally deficient performance. See Williams v. United States, 452 F.3d
1009, 1013 (8th Cir. 2006) (when determining if prejudicial deficient performance by counsel exists,
court must consider totality of evidence before judge or jury). The court will deny movant’s seventh
claim of ineffective assistance.

-9-

II.

Prejudice

The second prong of the Strickland analysis requires a showing that counsel’s ineffectiveness
resulted in prejudice. Movant cannot met the prejudice prong of Strickland because he cannot show
there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694. At trial, the government
introduced overwhelming evidence of McKanry’s guilt, including an undercover recording of
McKanry stating that the government could “get them for” providing down payments to the
purchaser of the properties, cashier’s checks purchased by McKanry and remitted to the purchaser,
and live testimony of movant’s co-conspirators admitting their participation in the conspiracy. In
light of the evidence presented at trial, movant simply cannot show deficient performance of counsel
that prejudiced his case.
Conclusion
Movant has not established that his counsel’s performance was deficient. Strickland, 466
U.S. at 687. Even if his counsel’s performance betrayed a lack of experience, which the Court does
not find, movant has not shown a reasonable probability that but for counsel’s errors the result of
the proceeding would have been different. For the foregoing reasons, the Court finds that each of
the grounds raised in William E. McKanry’s Motion to Vacate, Set Aside or Correct Sentence Under
28 U.S.C. § 2255 is without merit and the motion should be denied without an evidentiary hearing.
Accordingly,
IT IS HEREBY ORDERED that movant William E. McKanry’s Motion to Vacate, Set
Aside or Correct Sentence Under 28 U.S.C. § 2255 is DENIED. [Doc. 1]

- 10 -

IT IS FURTHER ORDERED that the government’s motion to dismiss is DENIED as
moot. [Doc. 15]
IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability as
to any of the claims raised in movant’s § 2255 motion. See Slack v. McDaniel, 529 U.S. 473, 48485 (2000); Miller-El v. Cockrell, 537 U.S. 322, 342 (2003).
An appropriate judgment will accompany this memorandum and order.

__________________________________
CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE

Dated this 4th day of February, 2015.

- 11 -