Shores v. United States of America

Filing 29

MEMORANDUM: For the reasons discussed above, the Court concludes that motion and the files and records of this case conclusively show that Shores is not entitled to relief under 28 U.S.C. § 2255 based on any of the claims he asserts his motio n to vacate. 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 Shores 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. Signed by District Judge Carol E. Jackson on 5/16/17. (JAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MARK EDWIN SHORES,
Movant,
vs.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 4:14-CV-1019 (CEJ)

MEMORANDUM
This matter is before the Court upon the motions of Mark Edwin Shores to
vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 and for an
evidentiary hearing.1 The United States has filed a response, and the issues are fully
briefed.
I. Background
On October 5, 2011, a jury found Shores guilty of possession with intent to
distribute heroin on September 16, 2009 and on September 9, 2010, in violation of 21
U.S.C. § 841(a)(1) (Count One and Count Six); possession with intent to distribute
cocaine base, in violation of 21 U.S.C. § 841(a)(1) (Count Two); maintaining a drug
premises, in violation of 21 U.S.C. § 856(a)(2) (Count Three); being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g) (Count Five); and possessing
a firearm in furtherance of the drug trafficking crime charged in Count Six, in violation

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Shores also filed an amended motion to vacate which will be addressed separately.

of 18 U.S.C. § 924(c) (Count Seven).2

He was sentenced to concurrent 240-month

terms of imprisonment for the drug offenses, a concurrent 262-month term of
imprisonment for the felon in possession offense3, and a mandatory consecutive 60month term of imprisonment for possessing a firearm in furtherance of a drug
trafficking crime—a total of 322 months’ imprisonment.4 The judgment was affirmed on
appeal. United States v. Shores, 700 F.3d 366 (8th Cir. 2012), cert. denied, 133 S.Ct.
2780 (2013).
The evidence supporting the convictions is detailed in the opinion of the court of
appeals. It will not be repeated verbatim here, but will be referred to as necessary to
address the claims asserted in the motion to vacate.
II. Discussion
In the instant motion, Shores asserts that he was denied effective assistance of
counsel at trial and on appeal. To prevail on an ineffective assistance claim, a movant
must show that his attorney=s performance fell below an objective standard of
reasonableness and that he was prejudiced thereby.

Strickland v. Washington, 466

U.S. 668, 688 (1984). With respect to the first Strickland prong, there exists a strong
presumption that counsel=s conduct falls within the wide range of professionally
reasonable assistance. Id. at 689. In Strickland, the Court described the standard for
determining an ineffective assistance claim:

Shores was found not guilty of the charge of possessing heroin with intent to distribute
on April 7, 2010, alleged in Count Four of the superseding indictment.
2

Shores was sentenced as an armed career criminal under 18 U.S.C. § 18 U.S.C. §
924(e)(1). In a supplemental motion to vacate, Shores argues that following the decision in
Johnson v. United States, 135 S.Ct. 2551 (2015), he no longer qualifies as an armed career
criminal. This argument will be addressed in a separate memorandum.
3

2

[A] court deciding an actual ineffectiveness claim must judge
the reasonableness of counsel=s challenged conduct on the
facts of the particular case, viewed as of the time of
counsel=s conduct. A convicted defendant making a claim of
ineffective assistance must identify the acts or omissions of
counsel that are alleged not to have been the result of
reasonable professional judgment. The court must then
determine whether, in light of all the circumstances, the
identified acts or omissions were outside the wide range of
professionally competent assistance.
In making that
determination, the court should keep in mind that counsel=s
function, as elaborated in prevailing professional norms, is
to make the adversarial testing process work in the
particular case.
At the same time, the court should
recognize that counsel is strongly presumed to have
rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional
judgment.
Strickland, 466 U.S. at 690.
To establish the Aprejudice@ prong, the movant must show Athat there is a reasonable
probability that, but for counsel=s unprofessional errors, the result of the proceeding
would have been different.

A reasonable probability is a probability sufficient to

undermine confidence in the outcome.@ Id. at 694. The failure to show prejudice is
dispositive, and a court need not address the reasonableness of counsel=s performance
in the absence of prejudice.

United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir.

1996).
Ground One
(A) Alibi evidence
Shores first asserts that he was denied effective assistance of counsel as a result of his
attorney’s failure to present alibi evidence that would have shown he was not present

The underlying criminal case is United States v. Mark Edwin Shores, No. 4:10-CR-00449CEJ.
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at a drug transaction that occurred on September 15, 2009.

This transaction was

described in an affidavit submitted by Detective Anthony Boettigheimer in support of a
search warrant application. According to the affidavit, on that date, officers of the St.
Louis Metropolitan Police Department saw Shores engaging in a hand-to-hand
transaction in which he sold a quantity of heroin to a confidential informant.

In the

affidavit, Boettigheimer also recited the informant’s observation of drugs and a firearm
inside Shores’ house as well as police officers’ surveillance of activity consistent with
drug trafficking there.

Boettigheimer further set forth facts demonstrating the

informant’s reliability and describing the results of the police investigation that
corroborated the informant’s information. A magistrate judge reviewed the application
and affidavit and issued a warrant to search Shores’ home. The search was conducted
on September 16, 2009.
Shores’ attorney filed a motion to suppress evidence seized during the search,
and a hearing was held in which Boetigheimer was the sole witness. Defense counsel
also filed a motion for an order directing the government to disclose the confidential
informant’s identity.

Both motions were denied.

Evidence seized pursuant to the

search warrant was admitted at trial.
Shores was not charged with any offense based on the September 15, 2009
transaction.

During the trial, the government briefly alluded to the transaction as

follows:
Q [by prosecutor]: You had received information regarding this
defendant; is that correct?
A [by Boettigheimer]: That is correct.
Q: And did you conduct an investigation based upon that information?

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A: Yes, sir.
Q: Among other things, did you actually observe the defendant
participate in a hand-to-hand narcotics transaction?
A: Yes, sir.
Q: Based upon your investigation, did you apply for and did you
receive a federal search warrant?
A: Yes, sir.
United States v. Mark Edwin Shores, No. 4:10-CR-00449-CEJ, Trial Tr., pp. 348-49
(Doc. # 151).
In support of the claim that his attorney should have presented alibi evidence,
Shores submits the affidavits of his wife and friend, both of whom state that they were
with him on September 15 at varying times between 7:30 a.m. and 11:30 p.m. Shores
also submits documents that purport to be from the Social Security Administration
indicating that he was in the agency’s office at 10:30 a.m. on September 15.
Shores cannot establish that his attorney’s exercise of a strategic decision not to
call the so-called alibi witnesses was objectively unreasonable. Hepresents no evidence
that either of the affiants or the author of the Social Security documents would have
been available at the time of the suppression hearing or trial and would have testified if
called as a witness. Also, the affidavits and the documents do not account for Shores’
whereabouts or his activities for the entire day. Further, Shores’ participation in a drug
transaction is not precluded by the fact that was in the company of his wife and friend
for most of the day.
Even if defense counsel’s performance was deficient, Shores cannot show that he
was prejudiced. Shores has not demonstrated a reasonable probability that the court

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would have found the testimony of his witnesses more credible than that of
Boettigheimer and would have granted his motion to suppress.

Indeed, the affiants’

relationship with Shores would have been a reason to discount their credibility. Shores
has also failed to demonstrate a reasonable probability that outcome of the trial would
have been different had the alibi evidence been presented.

As noted above, Shores

was not charged with any offense based on the September 15 transaction and there
was only an oblique reference to the incident during Boettigheimer’s testimony. Thus,
testimony that Shores was with his wife and friend on September 15 was not relevant
and, even if admitted into evidence, it would have only served to highlight a non-issue
in the case.
Shores is not entitled to relief on this claim.
(B) Confidential informant
Shores next asserts that he was denied effective assistance of counsel as a result
of his attorney’s failure to obtain the identity of the confidential informant.

Defense

counsel filed a motion for disclosure of the informant’s identity, but the motion was
denied by the Court. As such, there was nothing more that defense counsel could do.
Shores is not entitled to relief on this claim.
(C) Failure to call movant to testify
Shores next claim is that his attorney’s failure to call him to testify at trial
constitutes deficient performance.

This claim is belied by the record which clearly

shows that Shores, after thorough questioning by the Court, announced his voluntary
decision not to testify.

United States v. Mark Edwin Shores, No. 4:10-CR-00449-CEJ,

Trial Tr., pp. 639-40 (Doc. # 151).

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Shores is not entitled to relief on this claim.
Ground Two
As his second ground for relief, Shores contends that his attorney failed to
conduct a pretrial investigation.

“[Defense] counsel has a duty to make reasonable

investigations or to make a reasonable decision that makes particular investigations
unnecessary.”

Wiggins v. Smith, 539 U.S. 510, 521 (2003).

It is axiomatic that a

movant asserting an ineffective assistance claim based on failure to conduct an
investigation must identify the evidence that an investigation would have revealed.
Here, Shores argues that had defense counsel investigated his “alibi” evidence he would
have learned that Shores could not have participated in the September 15, 2009 drug
transaction.

Shores does not contend that defense counsel was unaware of the

evidence—indeed, Shores states that he told counsel about the witnesses who could
provide an alibi for him on September 15. Instead, Shores’ complaint is that defense
counsel chose not to use the evidence.
As discussed above, Shores’ participation in the September 15 drug sale would
not have been foreclosed by the testimony of his wife and friend and other evidence of
his whereabouts on that day.

Also, the September 15 transaction was pertinent only

to the search warrant application.

Given the other evidence presented in the

Boettigheimer affidavit, it cannot be said that the application would have been denied if
the September 15 event had been omitted. Further, Shores has not shown that the
outcome of the suppression hearing or the trial would have been different.
counsel, after considering the evidence, acted reasonably in not pursuing it.

Defense
See Cox

v. Norris, 133 F.3d 565, 573 (8th Cir. 1997) (“Reasonable performance includes an
adequate investigation of the facts, consideration of viable theories, and development

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of evidence to support those theories.”).
Shores is not entitled to relief on Ground Two.

Ground Three
Shores’ third ground for relief is that defense counsel failed to object to false
testimony given by Boettigheimer about the September 15 drug sale. This claim is no
more than a variation of the claims asserted in Grounds Two and Three. Shores does
not show that Boettigheimer’s testimony would have been excluded or that his
credibility would have been undermined by the admission of the so-called alibi
evidence.
Shores is not entitled to relief on Ground Three.
GROUND FOUR
In Ground Four, Shores asserts that he was denied effective assistance of
counsel on appeal.

Specifically, he complains of appellate counsel’s failure to argue

that the search warrant affidavit contained false information about the September 15
transaction. To establish ineffective assistance of appellate counsel, Shores must show
that his attorney’s performance was “constitutionally deficient and that he was
prejudiced by that deficiency.” Charboneau v. United States, 702 F.3d 1102, 1136 (8th
Cir. 2013). In the context of a claim that appellate counsel failed to raise an issue on
direct appeal, the Eighth Circuit has recognized the “importance of winnowing out
weaker arguments on appeal.”
(1983)].

Id. [quoting Jones v. Barnes, 463 U.S. 745, 751

“Therefore, ‘absent contrary evidence, we assume that appellate counsel’s

failure to raise a claim was an exercise of sound appellate strategy.’”

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Id. [quoting

United States v. Brown, 528 F.3d 1030, 1033 (8th Cir.), cert. denied, 555 U.S. 937
(2008)].
As discussed above, the so-called alibi evidence did not establish a basis for
challenging the search warrant affidavit. Counsel cannot be faulted for not presenting a
non-meritorious argument on appeal. Also, Shores has not established prejudice, as he
not demonstrated a reasonable probability that the appellate court would have
considered the alibi evidence and concluded that the search warrant affidavit lacked
probable cause.
Shores is not entitled to relief on Ground Four.
Ground Five
Shores claims that his attorney failed to provide him advice with respect to
pleading guilty instead of going to trial. He alleges that, as a result, he “turned down a
15 year plea offer which could have been conceivably reduced through other aspects of
the U.S.S.G., such as section 5K1.1.” Mot. to Vacate, p. 20 [Doc. # 1-1].
According to the government, the offer made to Shores was to allow him to
plead guilty to an offense that would result in a mandatory minimum sentence of 15
years’ imprisonment. Because the sentence would have been mandated by statute, it
could not be affected by the sentencing guidelines for acceptance of responsibility
(U.S.S.G. § 3E1.1) or substantial assistance (U.S.S.G. § 5K1.1).

Thus, Shores is

mistaken when he states that he could have received a sentence lower than the 15year term in the government’s offer.
Clearly Shores knew of the government’s offer and that he had the option to
plead guilty. He doesn’t state what advice he should have been given that would have
caused him to accept the offer.

Indeed, he doesn’t even state that he would have

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accepted the offer. Moreover, Shores does not contend that but for defense counsel’s
performance he would have pleaded guilty. To the contrary, he “asserts that had he
been allowed to testify [at trial], he would have asserted his ‘actual innocence’ and
explained that he had an alibi defense.” Mot. to Vacate, p. 10 [Doc. # 1-1].

Thus,

Shores has not satisfied either the “performance” or the “prejudice” prong of Strickland.
He is not entitled to relief on Ground Five.
III. Conclusion
For the reasons discussed above, the Court concludes that motion and the files
and records of this case conclusively show that Shores is not entitled to relief under 28
U.S.C. § 2255 based on any of the claims he asserts his motion to vacate. 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 Shores 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 16th day of May, 2017.

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