Bay v. United States of America

Filing 7

MEMORANDUM re: 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) filed by Petitioner James K. Bay ; An appropriate Order will accompany this Memorandum.. Signed by District Judge Carol E. Jackson on 6/24/13. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JAMES K. BAY,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 4:12-CV-2162 (CEJ)

MEMORANDUM
This matter is before the Court upon the motion of James K. Bay to vacate, set
aside, or correct sentence pursuant to 28 U.S.C. § 2255. The United States has filed
a response in opposition.
I. Background
On June 10, 2010, a superseding indictment charged Bay with manufacturing
actual methamphetamine, in violation of 21 U.S.C. § 841(a)(1) (Count I); possession
with intent to distribute actual methamphetamine, in violation of 21 U.S.C. § 841(a)(1)
and 18 U.S.C. § 2 (Count II); possession of pseudoephedrine with intent to
manufacture methamphetamine, in violation of 21 U.S.C. § 841(c)(1) (Count III); and
possession of a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g) (Count
IV). The charges stemmed from a warrantless search of Bay’s residence and his arrest
in St. Francois County, Missouri.
Bay filed pretrial motions to suppress evidence seized during the search of his
property and to suppress statements. Both motions were denied. After Bay waived
his right to a jury, the case proceeded to trial and the Court found Bay guilty on all
counts. He was sentenced to a term of imprisonment of 140 months.

On appeal, Bay challenged the denial of his motions to suppress. The court of
appeals affirmed the judgment. United States v. Bay, 662 F.3d 1033 (8th Cir. 2011).
II. Discussion
In the instant motion, Bay asserts: (1) that this Court erred in denying his
motions to suppress; and (2) that he was denied effective assistance of counsel at the
suppression hearing. For the following reasons, Bay is not entitled to relief on either
claim he asserts in the motion.
With respect to Bay’s first claim, the issue of the validity of the search and the
admissibility of Bay’s statements was presented and determined on appeal. Bay, 662
F.3d at 1035-36. It is well-settled that claims raised and decided on direct appeal
cannot be relitigated in a motion to vacate pursuant to 28 U.S.C. § 2255. Bear Stops
v. United States, 339 F.3d 777, 780 (8th Cir. 2003).
As to the second claim, to prevail on a claim of ineffective assistance of counsel,
a movant must show (1) that his attorney’s performance fell below an objective
standard of reasonableness and (2) that he was prejudiced thereby. Strickland v.
Washington, 466 U.S. 668, 687 (1984). Under the first prong of the test, counsel has
wide latitude to make tactical decisions and therefore judicial scrutiny must be highly
deferential to those decisions.

Id. at 689.

The movant must overcome the

presumption that the challenged action(s) might be considered sound trial strategy
given the circumstances. Id. Under the second prong of the test, the movant must
demonstrate 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.
The record of the criminal proceedings reflects that Bay’s attorney challenged

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the seizure and the admissibility of Bay’s statements both before and during the trial.
Defense counsel thoroughly cross-examined the witnesses at the suppression hearing,
and he filed a lengthy objection to the magistrate judge’s recommendation that the
motions to suppress be denied.

United States v. James K. Bay, Case No. 4:10-CR-

164 (CEJ) (E.D. Mo.)(Doc. ## 59, 67). Bay has not identified any argument that his
attorney could have made or any evidence that his attorney could have presented that
would have brought about a different ruling on the motions.

Thus, Bay has not

demonstrated that his attorney’s performance fell below an objective standard of
reasonableness or that he suffered prejudice.
III. Conclusion
For the foregoing reasons, the Court concludes that motion and the files and
records of this case show that Bay is not entitled to relief under 28 U.S.C. § 2255
based on any of the claims he asserts in his motion. Therefore, the 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 Bay 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 appropriate Order will accompany this Memorandum.
___________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE

Dated this 24th day of June, 2013.

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