Robinson v. United States of America

Filing 25

OPINION MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the Motion to Vacate, Set aside or Correct Sentence, [Doc. No. 1 ], is denied. IT IS FURTHER ORDERED that this Court will not issue a Certificate of Appealability as Movant has not made a substantial showing of the denial of a federal constitutional right.A separate judgment is entered this same date. Signed by District Judge Henry Edward Autrey on 3/16/15. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DONALD ROBINSON,
Petitioner,
vs.
UNITED STATES OF AMERICA,

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) Case No: 4:12CV83HEA
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Respondent.

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Donald Robinson’s Motion to Vacate, Set
Aside or Correct Sentence pursuant to 28 U.S.C. § 2255, [Doc. No. 1]. The United
States of America has responded to the motion, pursuant to the Court’s Case
Management Order, and Movant has filed a Reply thereto. For the reasons set
forth below, the Motion is denied.
PROCEDURAL HISTORY
A grand jury indicted Movant, charging him in a six count indictment with
two counts of maintaining a drug-involved premises; possession with intent to
distribute more than fifty grams of methamphetamine; two counts of possession of
at least one firearm in furtherance of a drug-trafficking crime; and possession with
intent to distribute more than five grams of methamphetamine.

On March 3, 2009, after a two day bench trial, the Court convicted Movant
on all six counts.
Movant appealed his conviction arguing that there was insufficient evidence
to support his June-based § 924(c) charge (Count VI); (2) the District Court
violated his Sixth Amendment confrontation rights in allowing one chemist to
testify to the findings made by another chemist; (3) a proper chain of custody was
not established as the substance evidence; and (4) Movant’s 300-month sentence
under Count VI constituted cruel and unusual punishment. The Eighth Circuit
affirmed the judgment and conviction of this Court on August 18, 2010. United
States v. Donald Robinson, 617 F.3d 984 (8th Cir. 2010). Movant filed a motion
for rehearing. That motion was denied on October 21, 2010.
Movant filed this Motion for Post-Conviction Relief pursuant to Title 28
U.S.C. Section 2255 on January 17, 2012.
CLAIM FOR RELIEF
Movant has raised the following grounds for post-conviction relief:
Ground One: Counsel was ineffective in failing to inform him of the plea
agreement offered by the government and advise him that if he proceeded to trial,
he faced a mandatory 300 month sentence on Count VI.
Ground Two: Ineffective assistance of counsel by counsel misinforming
him concerning the need for his waiver of jury trial.
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Ground Three: Ineffective assistance of counsel in failing to investigate
and present evidence that had a reasonable probability of affecting the outcome of
the trial.
Ground Four: Movant was denied his right to due process of law under the
Fifth Amendment due to prosecutorial misconduct.
Ground Five: Movant was denied his right under U.S. Const. Amend. VI
to effective assistance of counsel and to confront adverse witnesses when trial
counsel stipulated to the testimony of a laboratory technician who was not present
“by mistake” and without obtaining an informed waiver from Movant.
Ground Six: Ineffective assistance of counsel by counsel failing to object
to the testimony of Movant’s wife, Virginia Robinson, concerning privileged
communications between herself and her husband.
Ground Seven: Ineffective assistance of counsel by counsel failing to raise
meritorious arguments in his motion to suppress evidence seized in the searches of
Movant’s home.
STANDARD FOR RELIEF UNDER 28 U.S.C. 2255
A federal prisoner seeking relief from a sentence under 28 U.S.C. § 2255 on
the ground “that the 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
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is otherwise subject to collateral attack, may move the court which imposed the
sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255. In order to
obtain relief under § 2255, the movant must allege a violation constituting “‘a
fundamental defect which inherently results in a complete miscarriage of justice.’”
United States v. Gomez, 326 F.3d 971, 974 (8th Cir. 2003) (quoting United States
v. Boone, 869 F.2d 1089, 1091 n.4 (8th Cir. 1989)).
Claims brought under § 2255 may also be limited by procedural default. A
movant “cannot raise a nonconstitutional or nonjurisdictional issue in a § 2255
motion if the issue could have been raised on direct appeal but was not.” Anderson
v. United States, 25 F.3d 704, 706 (8th Cir. 1994) (citing Belford v. United States,
975 F.2d 310, 313 (7th Cir. 1992)). Furthermore, even constitutional or
jurisdictional claims not raised on direct appeal cannot be raised collaterally in a §
2255 motion “unless a petitioner can demonstrate (1) cause for the default and
actual prejudice or (2) actual innocence.” United States v. Moss, 252 F.3d 993,
1001 (8th Cir. 2001) (citing Bousley v. United States, 523 U.S. 614, 622 (1998)).
DISCUSSION
Right to Evidentiary Hearing
The Court must hold an evidentiary hearing to consider claims in a § 2255
motion “‘[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
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1040, 1043 (8th Cir. 1994) (alteration in original) (quoting 28 U.S.C. § 2255).
Thus, a movant is entitled to an evidentiary hearing “‘when the facts alleged, if
true, would entitle [the movant] 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.
986)). The Court may dismiss a claim “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 (citing Larson v. United States, 905
F.2d 218, 220-21 (8th Cir. 1990)). Since the Court finds that Movant’s claim can
be conclusively determined based upon the parties’ filings and the records of the
case, no evidentiary hearing will be necessary.
Standard for Ineffective Assistance of Counsel
It is well-established that a petitioner=s ineffective assistance of counsel
claim is properly raised under 28 U.S.C. ' 2255 rather than on direct appeal.
United States v. Davis, 452 F.3d 991, 994 (8th Cir.2006); United States v. Cordy,
560 F.3d 808, 817 (8th Cir. 2009). The burden of demonstrating ineffective
assistance of counsel is on a defendant. United States v. Cronic, 466 U.S. 648, 658
(1984); United States v. White, 341 F.3d 673, 678 (8th Cir.2003). To prevail on an
ineffective assistance of counsel claim, a convicted defendant must first show
counsel=s performance Afell below an objective standard of reasonableness.@
Strickland v. Washington, 466 U.S. 668, 687-88 (1984). The defendant must also
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establish prejudice by showing Athere is a reasonable probability that, but for
counsel=s unprofessional errors, the result of the proceeding would have been
different. Id., at 694.
Both parts of the Strickland test must be met in order for an ineffective
assistance of counsel claim to succeed. Anderson v. United States, 393 F.3d 749,
753 (8th Cir.), cert. denied, 546 U.S. 882 (2005). The first part of the test requires
a Ashowing that counsel made errors so serious that counsel was not functioning as
the >counsel= guaranteed the defendant by the Sixth Amendment.@ Id. Review of
counsel=s performance by the court is Ahighly deferential,@ and the Court presumes
Acounsel=s conduct falls within the wide range of reasonable professional
assistance.@ Id. The court does not Asecond-guess@ trial strategy or rely on the
benefit of hindsight, id., and the attorney=s conduct must fall below an objective
standard of reasonableness to be found ineffective, United States v. LedezmaRodriguez, 423 F.3d 830, 836 (2005). If the underlying claim (i.e., the alleged
deficient performance) would have been rejected, counsel's performance is not
deficient. Carter v. Hopkins, 92 F.3d 666, 671 (8th Cir.1996). Courts seek to
Aeliminate the distorting effects of hindsight@ by examining counsel=s performance
from counsel=s perspective at the time of the alleged error. Id.
The second part of the Strickland test requires that the movant show that he
was prejudiced by counsel=s error, and Athat >there is a reasonable probability that,
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but for counsel=s unprofessional errors, the result of the proceeding would have
been different.= @ Anderson, 393 F.3d at 753-54 (quoting Strickland, 466 U.S. at
694). AA reasonable probability is a probability sufficient to undermine confidence
in the outcome.@ Strickland, 466 U.S. at 694. When determining if prejudice
exists, the court Amust consider the totality of the evidence before the judge or
jury.@ Id. at 695; Williams v. U.S., 452 F.3d 1009, 1012-13 (8th Cir. 2006).
The first prong of the Strickland test, that of attorney competence, is applied
in the same manner to guilty pleas as it is to trial convictions. The prejudice prong,
however, is different in the context of guilty pleas. Instead of merely showing that
the result would be different, the defendant who has pled guilty must establish that
Athere 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); Matthews v. United States, 114 F.3d 114.
Ground One: Counsel was ineffective in failing to inform him of the plea
agreement offered by the government and advise him that if he proceeded to trial,
he faced a mandatory 300 month sentence on Count VI.
Movant sets out that the prosecutor sent his attorney a proposed plea
agreement. In the proposed plea agreement, in exchange for movant’s plea of
guilty to Counts II and III, the government would dismiss Counts I, IV, V, and VI.
The total sentence range would have been 106-117 months’ imprisonment.
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As Respondent correctly argues, Movant admits in his pleadings that counsel
did indeed inform him of the government’s offer. Movant rejected the offer by
advising his attorney to make a counter-offer. Ground one is denied.
Grounds Two: Ineffective assistance of counsel by counsel misinforming
him concerning the need for his waiver of jury trial.
Movant argues that counsel was ineffective for advising him that in order to
preserve an appeal of the adverse ruling on his motion to suppress, he must waive a
jury trial. Unfortunately, Movant’s trial counsel, Mr. Frank Anzalone is deceased,
and therefore unable to provide the Court with an affidavit of any kind. Movant’s
claim, however, provides no relief. Considering Mr. Anzalone’s practice in this
Court and the Court’s numerous interactions with Mr. Anzalone over several years
in both the federal and state court systems, the Court finds it unlikely that Mr.
Anzalone would have mistakenly advised Movant in such a manner.
More importantly, the record belies Movant’s claim. In his closing
argument, Mr. Anzalone articulated his rationale for advising Movant to waive a
jury trial.
The reason why I chose to try the case to the Court is because it realizes
the issue of drugs and the terrible toll that methamphetamine has taken
and the emotions, that one can easily become wrapped up in the emotions
and ignore the facts of the case and specifically the burden of proof....

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Clearly, Mr. Anzalone’s trial strategy was to avoid problems and any emotions
against methamphetamine jurors may have that could have impacted on their
decision. This rationale fits squarely within the parameters of trial strategy.
Indeed, as the government points out, Movant has raised this issue for the
first time in this Motion. He did not address the Court with his contrary position
regarding the jury waiver at any proceeding in this matter, in spite of the fact that
the Court allowed allocution at sentencing and ample time between the conviction
and sentencing passed such that Movant could have approached the Court
regarding this issue.
Moreover, the Court, after sentencing, advised Movant of his appeal rights.
Movant at that time remained silent on the issue of the alleged advice regarding
waiver of jury trial. Movant’s subsequent self-serving declaration cannot negate
the record before the Court.
Ground Three: Ineffective assistance of counsel in failing to investigate
and present evidence that had a reasonable probability of affecting the outcome of
the trial.
Movant argues that counsel was ineffective for failing to call his brother,
Darrell Robinson, Mary Eyberg Brent, Tim Mansfield and Dana McNaughty, and
failed to cross examine Virginia Robinson about Virginia calling his home and

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telling his mother and sister that she was being threatened with prosecution if she
refused to waive her marital privilege and testify against her husband.
At the outset, the Court notes that decisions of trial strategy, including
whether to call witnesses, generally will not support a finding of ineffective
assistance of counsel. Strickland, 466 U .S. at 689; United States v. Staples, 410
F.3d 484, 488 (8th Cir.2005). In conducting an analysis of whether defense
counsel's failure to call certain witnesses is prejudicial, the Court must be mindful
of the following: (1) the credibility of all witnesses, including the likely
impeachment of the uncalled defense witnesses; (2) the interplay of the uncalled
witnesses with the actual defense witnesses called; and (3) the strength of the
evidence actually presented by the prosecution. McCauley–Bey v. Delo, 97 F.3d
1104, 1106 (8th Cir. 1996).
Movant argues that calling his brother to testify would have established that
Movant did not have exclusive control of the workshop area where the drugs and
firearms were found; his wife had access to the workshop; the key to the workshop
was readily accessible to anyone in the house.
Regarding Mary Eyberg Brent, Movant argues that she would have testified
that Movant did not live at the residence in June 2007 and that he was staying with
her.

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Movant also argues that counsel should have presented the testimony of Tim
Mansfield and Dana McNaughty. They would have testified that they were staying
in the bedroom where drugs were found during the second search in June, 2007’
that the water pipe belonged to Mr. Mansfield; that the drugs belonged to Mr.
Mansfield; that Movant was not staying in the house; and that he had no
knowledge of what was at the house during the second search.
As to Movant’s claim that counsel was ineffective for failing to crossexamine his wife about calling his mother and sister, Movant has presented their
declarations in which they declare that Virginia Robinson telephoned them and
stated that she was being threatened with prosecution if she refused to waive her
marital privilege and testify against Movant, that she was being offered
inducements and that she was under the influence of drugs during her testimony.
As the government argues, the testimony proposed by Movant was
impeachable: Mr. Robinson’s statement that he would have testified that his
brother did not have exclusive control of the property was subject to challenge for
lack of foundation. Also, there is nothing in his proposed testimony to dispute the
fact that Virginia did not have access to the cabinet in the workshop or the safes in
the house.
Whether Movant was living in the house, as the proposed testimony of Mary
Eyberg Brent would have been, is contradicted by the testimony of his wife.
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Movant had mail addressed to him at the house, postmarked June, 2007, and
Movant was coming out of the bathroom when the police executed the warrant.
Mr. Mansfield and Ms. McNaughty likewise were witnesses who could not
help in Movant’s defense. The government acknowledged that they were living in
the residence, and had they admitted the use of drugs in the house, Movant’s
defense would not have been furthered in any way.
The government’s case against Movant would not have been weakened by
the presentation of the testimony proposed. Indeed, it may have established a
stronger case for the government considering the totality of the testimony.
As to the alleged failure to thoroughly cross examine Movant’s wife,
Movant’s argument fails upon examination of the record. Counsel did question
Virginia Robinson regarding her drug usage, her contact with Movant’s sister and
mother and any alleged threats.
Ground Four: Movant was denied his right to due process of law under the
Fifth Amendment due to prosecutorial misconduct. Movant argues his wife was
being threatened. However, as the record establishes, Virginia testified that she
was not being threatened. Mr. Stevens has submitted an affidavit averring that
there were no threats or promises made to Mrs. Robinson regarding her testimony.
Indeed, the Court conducted a colloquy with Mrs. Robinson before she testified, in
which the Court itself ascertained the voluntary nature of the testimony
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Ground Five: Movant was denied his right under U.S. Const. Amend. VI
to effective assistance of counsel and to confront adverse witnesses when trial
counsel stipulated to the testimony of a laboratory technician who was not present
“by mistake” and without obtaining an informed waiver from Movant.
Movant cannot prove the prejudice prong of his claim of ineffective
assistance of counsel because counsel stipulated to a different technician testifying
regarding the methamphetamine. Had counsel not stipulated, the technician
performing the tests would have been brought in to testify regarding the
methamphetamine. Movant fails to produce anything to establish that this
testimony would have been different.
Ground Six: Ineffective assistance of counsel by counsel failing to object
to the testimony of Movant’s wife, Virginia Robinson, concerning privileged
communications between herself and her husband.
Movant claims that it was ineffective assistance of counsel when counsel
failed to object to Mrs. Robinson’s testimony about a privileged communication
between herself and her husband.
Counsel initially objected to Mrs. Robinson’s testimony as a violation of
spousal communication privilege. The Court overruled the objection. Defense
counsel requested counsel for Mrs. Robinson regarding spousal communications.
The Court granted the request. Moreover, Mr. Stevens advised the Court that he
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did not want to hear about Movant and Mrs. Robinson’s communications, rather,
he only wanted to hear about her observations; what she saw and what she was
aware of that was happening at the residence.
Ground Seven: Ineffective assistance of counsel by counsel failing to raise
meritorious arguments in his motion to suppress evidence seized in the searches of
Movant’s home.
Ground Seven: Ineffective assistance of counsel by counsel failing to raise
meritorious arguments in his motion to suppress evidence seized in the searches of
Movant’s home.
Movant argues that counsel failed to raise meritorious arguments in his
motion to suppress. As the government correctly the points out, counsel raised
numerous issues in the motion:
(1) the search warrant did not describe the persons or items to be
seized with particularity; (2) the search warrant and
application in support of the warrant erroneously referred to
methamphetamine as a narcotic; (3) the affidavit in support of
the application for the search warrant was deficient in that the
information contained therein was stale; (4) the search warrant
was executed by the officers in the middle of the night without
the requisite showing of necessity as required by Missouri
law; and (5) the items seized by the officers exceeded the
purview of the search warrant.
The motion to suppress was thoroughly examined by Judge Medler. Counsel filed
objections to her Report and Recommendation. This Court overruled the
objections and adopted Judge Medler’s recommendation that the Motion be denied.
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Counsel is not compelled to present arguments Movant suggests. Dyer v. United
States, 23 F.3d 1424, 1426 (8th Cir. 1994). Judge Medler, however, did address
certain of Movant’s concerns regarding particularity and the overall validity of the
warrant.
CONCLUSION
Based upon the foregoing analysis, Movant has failed to establish he is
entitled to a hearing and has failed to present any basis upon which the Court may
grant relief.
CERTIFICATE OF APPEALABILITY
The federal statute governing certificates of appealability provides that “[a]
certificate of appealability may issue . . . only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
A substantial showing of the denial of a constitutional right requires that “issues
are debatable among reasonable jurists, a court could resolve the issues differently,
or the issues deserve further proceedings.” Cox v. Norris, 133 F.3d 565, 569 (8th
Cir. 1997). Based on the record, and the law as discussed herein, the Court finds
that Movant has not made a substantial showing of the denial of a constitutional
right.
Accordingly,

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IT IS HEREBY ORDERED that the Motion to Vacate, Set aside or
Correct Sentence, [Doc. No. 1], is denied.
IT IS FURTHER ORDERED that this Court will not issue a Certificate of
Appealability as Movant has not made a substantial showing of the denial of a
federal constitutional right.
A separate judgment is entered this same date.
Dated this 16th day of March, 2015.

_______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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