Sills v. United States of America

Filing 42

OPINION, MEMORANDUM AND ORDER: HEREBY ORDERED that the Motion to Vacate, Set aside or Correct Sentence, [Doc. No. 1 ], is denied. FURTHER ORDERED that this Court will not issue a Certificate of Appealability as Movant has not made a substantial showing of the denial of afederal constitutional right.A separate judgment is entered this same date. Signed by District Judge Henry Edward Autrey on 05/07/2015. (CLK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ROBERT MONTELL SILLS,
Petitioner,
vs.
UNITED STATES OF AMERICA,

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) Case No: 4:12CV1771HEA
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Respondent.

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Robert Montell Sills’ 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
On December 16, 2010, the government filed a two count indictment against
Petitioner and three co-defendants. Specifically, Count One of the indictment
charged petitioner with being part of a conspiracy to distribute and possess with
intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. The
government alleged that the quantity of cocaine involved in the conspiracy was in
excess of five kilograms punishable pursuant to 21 U.S.C. § 841(b)(1)(A)(ii)(II).

On June 28, 2011, Petitioner entered a guilty plea as to Count One. On
September 16, 2011, this Court sentenced him to a term of imprisonment of
120 months on Count One. This sentence was ordered to run concurrent to his
120 month sentence in United States v. Robert M. Sills, et al., No. 4:10-CR-523JCH (E.D. Mo.), and consecutive to his 136 month sentence in United States v.
Robert M. Sills, et al., No. 06-CR-20663-AC-15 (E.D. Mich.). The Court fined
Petitioner $10,000.00, and sentenced him to five years supervised release to run
concurrent with that imposed in Case No. 4:10-CR-523-JCH and consecutive that
imposed in 06-CR-20663-AC-15. Petitioner did not file a notice of appeal.
Petitioner filed this Motion for Post-Conviction Relief pursuant to Title 28
U.S.C. Section 2255 on October 1, 2012.
CLAIMS FOR RELIEF
Petitioner has raised the following grounds for post-conviction relief:
Ground One: Petitioner’s guilty plea to the drug conspiracy charge was
not knowing, intelligent and voluntary because as part of his plea agreement with
the government, he entered a guilty plea in United States v. Robert M. Sills, et al.,
No. 4:10-CR-523-JCH (E.D. Mo.). Petitioner, however, would not have entered a
guilty plea to the drug conspiracy charge if he understood that the guilty plea he
entered in Case No. 4:10-CR-523-JCH lacked a factual basis. Instead, he would

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have proceeded to trial on the drug conspiracy charge. Because one of the
conditions for entering a plea to the drug conspiracy charge was the invalid witness
tampering charge, Petitioner’s conviction to the drug conspiracy charge should be
vacated. The two guilty pleas are so intertwined that the invalidation of one of
them automatically invalidates the other.
Ground Two: Plea counsel was ineffective because he advised Petitioner to
enter a guilty plea to the witness tampering charge as part of the package deal to
enter a guilty plea to the drug conspiracy charge. If Petitioner had known that he
could not have been convicted of the witness tampering charge, he would not have
entered a guilty plea to it or the drug conspiracy charge and proceeded to trial.
Ground Three: The government committed prosecutorial misconduct when
it linked the guilty plea in the drug conspiracy charge with the witness tampering
charge. The government required as part of its agreement to accept Petitioner’s
pleas that he enter a guilty plea to a charge to which he was innocent. The
government’s actions violated Petitioner’s rights to due process and the right to a
jury trial under the Fifth and Sixth Amendments to the United States Constitution.1
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
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Petitioner originally stated four claims for relief. On September2, 2014, Petitioner filed a Motion to Withdraw his
Fourth claim. The Court granted the Motion on September 4, 2014.

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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
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

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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
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
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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
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

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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,
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: Petitioner’s guilty plea to the drug conspiracy charge was not
knowing, intelligent and voluntary because as part of his plea agreement with the

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government, he entered a guilty plea in United States v. Robert M. Sills, et al., No.
4:10-CR-523-JCH (E.D. Mo.).
Petitioner waived his post-conviction challenges as part of his plea
agreement. Petitioner argues, however, that his plea was not knowing, intelligent
and voluntary because he believed that in order to not receive a life sentence, he
had to plead guilty in both cases. Subsequently, it was determined that there was
no factual basis for the witness tampering charge. Petitioner argues that because
the plea was not voluntary, his conviction should be vacated.
The record, and indeed, Petitioner’s supplement belie Petitioner’s claim that
the plea was not voluntarily entered. Petitioner claims he was “shocked” when the
Court asked him if he was threatened to plead guilty and that he nudged Mr. Zotos,
who then told Petitioner to say “no.” The record establishes that Petitioner was
given the opportunity at the time of the plea to present any threats,
misunderstandings of the plea in this case or promises. If Petitioner was indeed
“shocked” by the Court’s inquiry, he had the opportunity to so state. This later
after the fact claim that he was threatened in any way to enter the plea cannot
overcome the clear record of the Court’s colloquy with Petitioner wherein he was
given, under oath, all opportunities to express any concerns he may have had
regarding the plea in this case. Ground one is denied as having been validly
waived.
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Grounds Two and Three: Ineffective assistance of counsel by counsel
through counsel’s advising Petitioner to enter a guilty plea to the witness
tampering charge as part of a package deal and governmental misconduct for
linking the guilty plea in the drug conspiracy charge with the witness tampering
charge.
Petitioner argues that counsel was ineffective for advising him to take a
“package deal” on both the underlying case before this Court and the witness
tampering case before Judge Hamilton. Movant’s subsequent self-serving
declaration cannot negate the record before the Court. As the government stated in
open Court and on the record, the government did not condition the negotiated plea
agreement in this case with a guilty plea in Judge Hamilton’s case.
Pursuant to Rule 11(c)(1)(A) and (C), Federal Rules of Criminal
Procedure, in exchange for the defendant’s voluntary plea of guilty
to Count I of the superseding Indictment, the Government agrees
that no further federal prosecution will be brought in this District
relative to the defendant’s participation in the conspiracy to
distribute and possess with the intent to distribute in excess of 5
kilograms of cocaine from 2010 up to the date of this Agreement,
of which the government is aware at this time. In addition,
pursuant to Rule 11(c)(1)(C), Federal Rules of Criminal Procedure,
the parties agree that the defendant’s sentence should be 10 years
consecutive to his term of 136 months imprisonment in Cause No.
2:06-cr-20663-AC-DAS-15, in the Eastern District of Michigan
(Detroit). If the Court informs the parties prior to sentencing that it
will reject this agreement or sentences defendant to a sentence not
in conformity with this agreement, then either party may withdraw
from the plea agreement and the defendant will have an
opportunity to withdraw his guilty plea pursuant to Rule 11(c)(5).
The parties further agree that neither party shall request a sentence
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above or below the sentencing agreement in this paragraph
pursuant to any chapter of the Guidelines, Title 18, United States
Code, Section 3553, or any other provision or rule of law not addressed
herein.
Plea Agreement, pp. 1-2.
Nothing in this recitation of the exchanges between the government and
Petitioner establishes that Petitioner must also plead guilty in the witness
tampering case. Petitioner’s claims are not supported by any evidence other than
his own self-serving declaration.
Significantly, as the government has argued, Petitioner has shown no
prejudice through the alleged ineffective assistance of counsel. Petitioner’s guilty
plea resulted in a recommended sentence of ten years. The Court considered this
recommendation and sentenced Petitioner to that recommended sentence. The
government’s evidence against Petitioner was substantially strong. The
government was prepared to present evidence of Petitioner’s participation in drug
activity as corroborated by airline travel records and the testimony of his coconspirators. Petitioner had already been convicted in Michigan on a single drug
count involving more than 5 kilograms of cocaine. As such, Petitioner would have
been subject to a minimum mandatory term of imprisonment in this case of 20
years if he proceeded to trial and was convicted. Petitioner was aware of the
evidence the government was prepared to present in the drug case. Petitioner

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cannot establish prejudice even if he could show his attorney was ineffective.
Grounds Two and Three are denied
CONCLUSION
Based upon the foregoing analysis, Petitioner 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,
IT IS HEREBY ORDERED that the Motion to Vacate, Set aside or
Correct Sentence, [Doc. No. 1], is denied.

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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 7th day of May, 2015.

_______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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